David Argo, Dorothy Brizill, and Regina James
Amended complaint, petition for review and writ for mandamus, in the
Superior Court of the District of Columbia
June 25, 2004

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DAVID ARGO. 2877 Arizona Terrace, NW, Washington, D.C. 20016, (202) 364-0083
DOROTHY BRIZILL, 1327 Girard Street, NW, Washington, D.C. 20009, (202) 234-6982, and
REGINA JAMES, 1363 Adams Street, NE, Washington, D.C. 20018, (202) 526-1681, 
Plaintiffs

v. 

DISTRICT OF COLUMBIA BOARD OF ELECTIONS AND ETHICS 
441 4th Street, N.W., Suite 250, Washington, DC 20001
Serve: 
Kenneth J. McGHIE, General Counsel,
Defendant 

Civil Action No. 04 ca004740

and

PEDRO ALFONSO, VICKEY M. WILCHER, MARGARET GENTRY, THE CITIZENS COMMITTEE FOR THE D.C. LOTTERY TERMINAL INITIATIVE
Serve: 
B. Michael Rauh (D.C. Bar #027664)
John Ray (D.C. Bar #214353)
Elise Dang (D.C. Bar #482645)
Manatt Phelps & Phillips, LLP
1501 M Street, N.W., Suite 700
Washington, D.C. 20005-1702
(202) 463-4300
Intervenor Defendants

DAVID ARGO. 2877 Arizona Terrace, NW, Washington, D.C. 20016, (202) 364-0083
DOROTHY BRIZILL, 1327 Girard Street, NW, Washington, D.C. 20009, (202) 234-6982, and
REGINA JAMES, 1363 Adams Street, NE, Washington, D.C. 20018, (202) 526-1681

v. 

DISTRICT OF COLUMBIA BOARD OF ELECTIONS AND ETHICS 
441 4th Street, N.W., Suite 250, Washington, DC 20001
Serve: 
Kenneth J. McGHIE, General Counsel,
Defendant 

Civil Action No. 04 ca004740

AMENDED COMPLAINT
(Petition for Review and Writ of Mandamus)

1. Plaintiff, David Argo (ARGO) is a registered qualified elector of the District of Columbia.

2. Plaintiff, Dorothy Brizill, (BRIZILL) is a registered qualified elector of the District of Columbia.

3. Plaintiff, Regina James, (JAMES) is a registered qualified elector of the District of Columbia.

4. Defendant, District of Columbia Board of Elections and Ethics ("the Board"), is an independent agency of the District of Columbia, composed of three members appointed by the Mayor of the District of Columbia, to impartially regulate and conduct elections in the District of Columbia.

5. Intervenors-Defendants are Pedro Alfonso, Vickey M. Wilcher, Margaret Gentry, and the Citizens Committee for the D.C. Video Lottery Terminal Initiative.

6. The court has jurisdiction over this case under D.C. Official Code § 1-1001.16(e)(1)(A) and this court’s general equitable powers.

7. On April 22, 2004, Pedro Alfonso (the proponent) submitted a proposed initiative to the Board entitled the "Jobs, Education, and Healthcare Lottery Expansion Initiative of 2004." As first proposed, (Initial Proposal) the initiative would amend the "Law to Legalize Lotteries, Daily Numbers Games, and Bingo and Raffles for Charitable Purposes,"( D.C. Official Code §3-1301 et seq.) to legalize installation of 3, 500 Video Lottery Terminals (VLTs) (more commonly called "slot machines" and hereinafter also called "slot machines") at one specified site in the District of Columbia, to one licensee, for a period of ten years. This grants an exclusive license, or contract, for a period of ten years, to a specifically designated licensee. In return the District of Columbia would receive 25% of the net proceeds of each installed slot machine (VLT). The Initiative also established two special funds, and allocated VLT (slot machine) net proceeds for these funds and the general fund, after certain incurred costs were first paid.

8. The Board gave a mere 5 days notice, in the District of Columbia Register (the DC Register) on Friday, May 28, 2004 (51 D.C. Reg., Vol. 22), that it would hold a public hearing on Wednesday, June 2, to consider whether the "Initial Proposal" was a proper subject for an initiative. The DC Register is the only official legal bulletin of the District of Columbia. It is published by the Office of the Secretary of the District of Columbia. Rules for publication in the DC Register are set forth in the DC Code and the DC Municipal Regulations.

9. Also, on May 28, 2004, the Friday afternoon before the three day Memorial Day weekend, at 4:00 PM, the proponents submitted extensive revisions of the proposed initiative (Proposal 2) to the Board. The Board and its staff had not previously seen this text.

10. At the June 2, 2004, meeting of the Board, it deemed the "revisions" to the Initial Proposal "substantive changes" and refused to hear testimony on the "subject matter question," then scheduled, until either the proponents: (1) published the revisions in the DC Register, or (2) withdrew the first proposal and resubmitted it as a new initiative. The Board gave the proponent a third option, which was to proceed with the proposal as originally filed on April 22, 2004, but indicated that the first proposal had serious flaws.

11. On at least two occasions during the June 2, 2004 meeting, the Board chair asked whether Mr. Ray was withdrawing the first proposed initiative, to which Mr. Ray answered, "yes."

12. The Board then, with advise its counsel, set a new "subject matter" hearing for either June 9, 2004 or June 14, 2004, depending on when the DC Register publication of the "revisions" could be accomplished (either on Friday, June 4, 2004 or Friday, June 11, 2004).

13. The Office of Documents could not publish the "revisions" in the June 4, 2004 edition of the DC Register because they were not submitted to the Office of Documents prior to May 27, 2004, the legal deadline. (See, D.C. Municipal Regulations, Title I, Chapter 3).

14. In order to meet the Board’s requirement of publication prior to the hearing, and to preserve the earlier hearing date of June 9, the proponents (or their agents) independently produced and printed a DC Register Supplement, dated June 4, 2004. The proponents do not dispute that they paid for the printing at Kinkos and the first class postage. Moreover, the proponents (through their agent) were given mailing labels by the Office of Secretary, mailed it themselves, and hand distributed copies to DC Government Offices themselves.

15. When the Board convened on Wednesday, June 9, 2004, a major point of discussion was the question of whether proper DC Register publication, as required by the Board and their regulations was accomplished. The Board ruled that notification of the hearing had been accomplished because of a brief legal notice they published two days before the hearing date. The Board ignored its earlier determination on June 2 that the revisions to the First Proposal either had to be properly published in the DC Register or the initiative withdrawn and resubmitted to the Board. The Board did not make a determination on whether the June 4, 2004 independently printed DC Register Supplement was legally sufficient. Instead, the Board stated that it would refer the legality and propriety of the private publication of the DC Register to either the D.C. Auditor or the D.C. Inspector General for investigation. The Board then proceeded with a hearing on the "subject matter question."

16. Prior to hearing any public testimony on the second version of the initiative, the Board heard their legal counsel’s opinion that the second version of Initiative was a proper subject of an Initiative and recommended the Board accept it.

17. When public comments were made at the hearing, the proponents were represented by their legal counsel, John Ray, who sat throughout the hearing at the front table and aggressively defended his clients’ position in response to testimony. Several members of the general public spoke against the proposal. Mr. Ray was also given rebuttal time.

18. At the conclusion of the hearing, the Board approved their legal counsel’s prior recommendation to accept the Second Proposal as a proper subject for an initiative under D. C. Law.

19. The Board immediately moved into the examination of the proposed short title, summary statement and legislative text as required by D.C. Official Code §§ 1-1001.16(c)(1),(c)(2) and (c)(3).

20. After hearing the various opinions of the parties present regarding the short title and summary statement, the Board took a "short break," after which it delivered the final language to the open hearing.

21. Before adjournment, the Board was asked whether they would seek expedited publication of the second proposal, now referred to as Initiative 68, in the DC Register. The Board’s Counsel stated that he would seek no special treatment of the initiative, and that it would be submitted to the DC Register, "in the regular course of time."

22. The next day, June 10, 2004, a special supplement to the DC Register was prepared by the Office of Documents. Initiative 68 was published in the DC Register (Vol. 51 D.C. Reg. 24, Vol. 2), on June 11, 2004. This Special Supplement was published on the day the District of Columbia Government was closed to observe the official day of mourning for former President Ronald Reagan, despite the fact that the submission deadline for this edition was June 3, 2004. Apparently, Council Member Vincent Orange, who had no legal authority to do so, had requested expedited treatment of Initiative 68, in a letter dated June 10, 2004, the day after the Board’s hearing and formulation of the final language.

23. This action is a timely challenge to the proposed initiative under D.C. Code §§ 11001.16(e)(1)(A).

24. The Board should have rejected the proposed initiative for multiple procedural reasons: 

A. The proposed initiative should not have been approved by the Board because it was not properly submitted according to the procedures set forth in D.C. Official Code § 1-1001.16 et seq.

B. The Board exceeded its authority, asset forth in D.C. Official Code § 1001.16 et seq. when it accepted substantive revisions to the initial proposal on June 4, 2004. 

C. Initiative 68 was never "officially" published in the DC Register and cannot be properly be brought to the District of Columbia electorate for signatures in accordance with D.C. Official Code § 1001.16 et seq.

D. The proposed initiative was not otherwise fairly subjected to public or Board scrutiny.

25. The proposed initiative should have been rejected because it conflicts with the District of Columbia Home Rule Act.

26. The proposed initiative is not in proper legal form because §§3-1353(b)(2), 3-1353(c), 3-1354(1), and 3-1355(c)(1) of the initiative set a qualification on the "selection" of the "Person" to be granted the initial ten-year monopoly license that effectively limits the party that can be selected to only one possibility, the funders of the initiative. That provision makes this initiative both special interest legislation and an attempt to bind the District of Columbia to a contract through legislation, An initiative cannot do anything that cannot be done by council legislation. The city council is specifically prohibited from passing special interest legislation and from contracting through legislation. In an initiative, an error in proper legal form cannot be excused by saying that the error could be cured through later amendment by the city council; the initiative itself, in the form in which it is proposed, must be in proper legal form.

27. The proposed initiative is not in proper legal form because, beginning in §2(5) and following that section throughout, it vests licensing and regulation power and authority in the "District of Columbia Lottery and Charitable Games Board," a nonexistent entity. The former "District of Columbia Lottery and Charitable Games Board" was abolished several years ago by the DC Financial Responsibility and Management Assistance Authority. It no longer exists, so it cannot be granted any role in licensing, developing regulation, or regulating. That makes the initiative unenforceable and meaningless. If it were passed, since there is no "District of Columbia Lottery and Charitable Games Board" that could license or regulate a slots gambling casino, and since no other entity could be granted those roles under the terms of the initiative, those sections of the initiative would be null and void, and are misleading as they are currently worded.

28. The proposed initiative should have been rejected because it is a "law appropriating funds," which is a prohibited subject for an Initiative under D.C. law. §3-1356(3)(A) attempts to avoid appropriating funds by specifying that the licensee will provide at no cost to the "D.C. Lottery and Charitable Games Board" space at their facility, a computer, and software required for the staff of the Board to monitor and regulate the activities of the slots gambling casino. If there were a "D.C. Lottery and Charitable Games Board," and if it had staffers, however, the initiative would require the Board to hire and maintain staff to perform these functions; thus it appropriates funds.

29. The Title of the proposed initiative, the "District of Columbia Video Lottery Terminal Initiative of 2004," is misleading because the phrase "District of Columbia," which was not requested either by the proponents or the opponents of the initiative, but was added by the Board of Elections and Ethics, falsely implies to the unknowing voter that the initiative is sanctioned by, initiative by, or is somehow otherwise connected to the District of Columbia government.

30. The proposed initiative should have been rejected because it would "negate or limit an act of the Council" pursuant to D.C. Official Code § 1-204.46. §3-1358 of the initiative specifies the "annual VLT Usage Fee" to be 25 percent of the "Net VLT Proceeds." The VLT Usage Fee is the equivalent of the taxes and fees that the District of Columbia would receive from the operation of the slots gambling casino. An initiative cannot abrogate the budget prerogatives of the city council by specifying a tax rate or by specifying a ceiling on the total receipts that the District of Columbia could collect from all possible activities conducted by the licensee.

31. The proposed initiative should have been rejected because the short title, summary and legislative text are misleading, biased and inaccurate and are otherwise in improper form. The Short Title and Summary Statement of the initiative are unclear and misleading because they use terminology that is unfamiliar to the general public and that creates an image that misrepresents the subject of the initiative. The terms "video lottery terminals" and "VLTs" are specialized euphemistic jargon terms that are used by gambling promoters but are unknown to the public. The commonly used and widely recognized term "slot machines" describes these gambling devices accurately, and should have been used for clarity, to promote popular understanding of the purpose of the initiative, and to avoid the bias that results from adopting the euphemisms of gambling promoters.

32. The proposed initiative should have been rejected because the summary statement is misleading and biased. The summary statement is supposed to be a neutral, evenhanded summation of the actual effects of the initiative, should it become legislation. The final bullet point of the summary statement, however, stresses the mere possibility that some part of the District government's returns from the slots gambling casino could be spent on schools and on prescription drugs for seniors. It has no purpose other than to promote the initiative. It is a biased selling point, rather than an unbiased statement of the actual legal effects of the initiative.

33. The proposed initiative should have been rejected because it is not otherwise a proper subject for an initiative in the District of Columbia.

WHEREFORE, plaintiffs ask the court to find that the initiative is not proper and that it direct the Board to reject the proposed initiative, and to grant further appropriate relief.

David Argo, pro se
Dorothy Brizill, pro se
Regina James, pro se

June 25, 2004

CERTIFICATE OF SERVICE

I hereby certify that I did, this day, June 25, 2004, deliver by facsimile a copy of this Revised Complaint and Writ of Mandamus to Kenneth McGhie, General Counsel, District of Columbia Board of Elections and Ethics, 441 4th Street, NW, Suite 250, Washington, DC 20001, fax number 628-5952; and to B. Michael Rauh, Manatt Phelps and Phillips, 1501 M Street, NW, Suite 500, Washington, DC 20005-1702, fax number 463-4394.

Gary Imhoff