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SIDLEY AUSTIN BROWN & WOOD LLP 1501 K STREET, N.W. WASHINGTON, D.C. 20005 TELEPHONE 202 736 8000 FACSIMILE 202 736 8711 www.sidley.com
WRITER'S DIRECT NUMBER
WRITER'S E-MAIL
ADDRESS
September 21, 2004
Garland Pinkston Jr., Clerk Re: Citizens Committee for the D.C. Video Lottery Terminal Initiative v. District of Columbia Board of Elections and Ethics and Ronald L. Drake, et al., D.C. No. 04-AA-957 Dear Mr. Pinkston: Enclosed for filing in the above-referenced matter is an original and three copies of the Memorandum of Petitioner Citizens Committee for the District of Columbia Video Lottery Terminal Initiative in Response to the Board's Clarification Opinion.I would appreciate it if you would make sure the enclosed response is circulated to the panel as promptly as possible on Friday morning. Best regards
cc: Kenneth J. McGhie (By telecopy) No. 04-AA-957 IN THE DISTRICT OF COLUMBIA COURT OF APPEALS CITIZENS COMMITTEE FOR THE D.C. VIDEO LOTTERY TERMINAL
INITIATIVE, Petitioner On Petition for Review of the District of Columbia Board of Elections and Ethics Memorandum of Petitioner Citizens Committee for the District of Columbia Video Lottery Terminal Initiative in Response to the Board's Clarification OpinionJohn Ray (Bar No. 214353) George W. Jones, Jr. (Bar No. 323139)* Erik S. Jaffe (Bar No. 440112) *Counsel of Record TABLE OF CONTENTS
TABLE OF CONTENTS No. 04-AA-957 IN THE DISTRICT OF COLUMBIA COURT OF APPEALS CITIZENS COMMITTEE FOR THE D.C. VIDEO LOTTERY TERMINAL
INITIATIVE, Petitioner On Petition for Review of the District of Columbia Board of Elections and Ethics Memorandum of Petitioner Citizens Committee for the District of Columbia Video Lottery Terminal Initiative in Response to the Board's Clarification OpinionPetitioner Citizens Committee for the District of Columbia Video Lottery Terminal Initiative submits this memorandum in response to the "Clarification Memorandum Opinion" filed by the Board of Elections and Ethics on September 20, 2004. This Court's Order of September 13, 2004 posed two simple questions for the Board of Elections and Ethics (the "Board"): "(1) whether or not [the Board] intends its decision invalidating the Stars and Stripes petitions to rest `independently' on either class of improprieties found, in particular on the false signings, and (2) if so, the reasons why." Order at 5. The Court also directed the Board to consider these questions and respond to the Court "on an expedited basis." Id. After a full week, instead of responding to the two questions posed by the Court, the Board has offered a new opinion based in large part on a new, unprecedented, and indefensible rationale, namely, the Board's failure to serve and enforce its subpoenas on circulators. As far as we have been able to determine, the Board has never struck the signatures of registered voters because it was unable to serve a subpoena on a circulator. The Board's Clarification Memorandum cites no precedent from this jurisdiction even suggesting - much less supporting - such a severe and counterproductive response to a problem that is more accurately attributable to the Board's own decisions about how to proceed in this case than it is to any wrongdoing by anyone. The Board's new rationale and its complaints about Petitioner's failure to do more to find additional witnesses are in stark contrast to its position during the hearings. See Declaration of John L. Ray (attached hereto as Exhibit A). As a practical matter, it would have been extremely difficult for the Board to hear testimony from 103 witnesses and rule on the challenges within the 10-day statutory time period for ruling on challenges. The Board heard from just 38 witnesses and did not rule on most of the challenges until the very last day of the statutory period. Indeed, it was not until midway through the hearings on July 26, 2004 that the Board even advised the parties that it was having difficulty locating and serving circulators. Declaration of John L. Ray, ¶ 4. By that time, however, the Board's General Counsel already had informed the parties that no more than two additional witnesses from each side would be permitted. See Declaration of John L. Ray, 13. Two days later, on July 28, 2004, the Board closed the record, except for the expected testimony of Michael Jones on August 2, 2004. In contrast to the Board's current complaints about Petitioner's failure to do more to help find additional witnesses, during the hearings the Board ignored two separate offers of assistance. On July 28, 2004, John Ray and Elise Dang, counsel for Petitioner, had a discussion with Board General Counsel McGhie in which Ray offered to hire a professional server to locate the circulators the Board had been unable to find. The General Counsel indicated he would present the offer to the Board. Neither the General Counsel nor the Board ever responded to the offer. Declaration of John L. Ray, ¶ 6. Similarly, on July 29, 2004, Dang and Ray called the Board's Staff Attorney, Terri Stroud, inquiring whether the Board would provide the reasons the Board was unable to serve subpoenaed circulators. Stroud agreed, and on July 30, 2004, faxed a list of the subpoenaed circulators with the reasons they had not been served. See Board Exhibit 43. Ray also informed Stroud that Petitioner was willing to try to locate these circulators. Declaration of John L. Ray, ¶ 7. In contrast to its current complaints about the failure of witnesses to appear and testify, the Board refused to make time to hear from two of the alleged wrongdoers. On August 2, 2004, Daryl Bonner, a Stars and Stripes employee who circulated petitions with Evelyn Gerst, voluntarily presented himself at the hearing to refute Gerst's testimony and to assert his innocence of any wrongdoing. Gerst is a District of Columbia resident and employee of Red Roof Inn who was given immunity by the Board and testified that she signed affidavits of petitions circulated by Bonner without "being in the presence of' those who signed the petitions. July 26 Tr. at 193. Ray and Dang took Bonner to the General Counsel's office and introduced him to General Counsel McGhie. Ray and Dang asked if the Board would allow Bonner to testify. The General Counsel indicated he would present their request. Stroud interviewed Bonner ex parte in her office. The Board did not call Bonner to testify. Declaration of Daryl Bonner (attached hereto as Exhibit B); see Declaration of John L. Ray, ¶ 10. In addition, the Board refused to allow Mike Jones to appear on August 3, 2004, the first day he could be available due to his work on another petition drive in Ohio. See Clarification Memorandum at 11; Aug. 2 Tr. at 45.1 Moreover, the Board's new rationale punishes the wrong people and it is wholly insufficient to support its decision to refuse to count the signatures of thousands of registered voters collected by circulators as to whom the Board admittedly has literally no evidence of any wrongdoing . Finally, the Board's attempt to stretch the evidence of individual wrongdoing in the record to cover its erroneous decision in this case fails. No matter how many times the Board describes the evidence in different ways, at the end of the day, it is still the same evidence. It establishes individual wrongdoing by a small fraction of the more than 300 people involved in the massive effort to collect the required number of signatures of registered voters in five days. That evidence cannot support the Board's conclusion that it is free to disregard the signatures of thousands of registered voters of the District of Columbia who expressed their view that the entire electorate of the District of Columbia should consider the policy issues presented by Initiative 68 in November 2004. The result in this case is fundamentally inconsistent with this Court's repeated admonitions to the Board that the initiative statutes are to be liberally construed in favor of the franchise to further the purposes of the initiative statutes, namely, "to permit the electorate to vote on appropriate issues." Dankman v. BOEE, 443 A.2d 507, 514-15 (D.C. 1981) (en banc). The result in this case is also inconsistent with the fundamental nature of the First Amendment rights at stake. I. THE BOARD EXCLUDES THOUSANDS OF SIGNATURES COLLECTED BY CIRCULATORS WITHOUT INDIVIDUAL EVIDENCE OF WRONGDOING.Although buried in the middle of its September 10, 2004 supplemental filing in this Court, the Board confirmed that excluding only the signatures of presumptively valid registered voters on petition sheets signed by the 13 Stars and Stripes circulators the Board individually rejected, Initiative 68 meets the signature requirements of the initiative statutes.2 The Board confirmed that the petition sheets from these 13 individuals account for only 1773 signatures of registered voters. See Board Supplemental Filing at 6. The total number of registered voters subject to the random sampling procedure is therefore at least 19,506 (21,2791773), well over the minimum requirement of 17,599.3 Thus, only because the Board also disregarded the signatures collected by Stars and Stripes circulators as to whom the Board had no evidence of wrongdoing did the Board conclude that Initiative 68 failed to meet the statutory signature requirements. Although the Board's Clarification Memorandum contains data that are different in several noteworthy respects from the data in the Board's Supplemental Filing, the Clarification Memorandum also demonstrates that the Board can conclude that Initiative 68 does not satisfy the signature requirements of the initiative statutes only by excluding the signatures of registered voters collected by circulators as to whom the Board has no evidence of any individual wrongdoing. After excluding all the signatures collected by the Stars and Stripes circulators, the Board concluded that the proponents had submitted the signatures of only 14,687 registered voters. See A. Miller Memorandum to the Board at 5 (August 5, 2004) [Pet. App. at 36]. Adding the signatures as to which the Board's data show there is no plausible basis for exclusion, the number of signatures of registered voters increases to at least 18,382.4 The Board's new opinion specifically identifies 1868 signatures as to which there is no conceivable rational basis for refusing to count them:
The Board's unprecedented new "failure to serve a subpoena" rationale has no application to any of the signatures collected by any of these 38 circulators. As explained in Part II below, although the Board and Challengers repeatedly assert that the record contains substantial evidence of pervasive thoroughgoing fraud, when the evidence underlying these assertions is examined, it turns out to be nothing more than same evidence of individual wrongdoing by a relative few of the hundreds of people involved in the circulation effort, described in several different ways. So, using the Board's numbers, adding back in this group of signatures increases the total to 16,555. Next, the Board's Supplemental Filing identifies 20 Stars and Stripes circulators it was "unable to serve," but who accounted for another 2191 signatures of registered voters. Board Supplemental Filing at 7-8. The Board does not suggest there was any "evidence" of wrongdoing by any of the 20, noting only that each of them was the "subject of allegations of wrongdoing by the challengers." Id. at 7 n.10. The Board's initial opinion correctly did not rely on the failure to serve subpoenas on any of these circulators as a basis for refusing to consider the 2191 signatures collected by them, and with good reason. The Challengers alleged similar wrongdoing by virtually every circulator involved in the process, including those who were based at 1501 M Street, not the Red Roof Inn. The Board correctly rejected many of the Challengers' allegations of wrongdoing as baseless. The Board's Clarification Memorandum identifies the same 20 circulators, who accounted for the same 2191 signatures, but now asserts that six of them (i.e., Stephen Jones, Annitta Riddick, Rickey Satterwaite, Randolph Green, Sheila Washington, and Gerald Williams, who accounted for a total of 553 signatures) were "properly served and failed to appear." Clarification Mem. Attachment A at 2. Contrary to the Board's assertion, Sheila Washington not only testified at the hearing, but also conclusively refuted each of the allegations respecting her petition signatures. July 22 Tr. at 188-190 ("For the record, I'm Sheila Washington. There was no second party involved with any of my affidavits and I resent the fact that my name is on any document that says forgery [;] ... the word `forgery' and my name don't belong on the same piece of paper. I circulated all the documents myself."); see also id. at 314-323. The Board offers no explanation for why it claimed on September 10, 2004 that it had been unable to serve these six individuals, Supplemental Filing at 7-8, but 10 days later asserts in its Clarification Memorandum that these six were in fact served and failed to appear. The testimony before the Board offers one explanation for the discrepancy. Terri Stroud, a staff attorney for the Board, testified that she prepared and issued the subpoenas in this case. Aug. 2 Tr. at 106. Stroud testified she prepared 102 or 103 subpoenas and gave them to another Board staffer, Arlin Budoo, to serve. Compare Aug. 2 Tr. at 106-107, 108 (103) with Aug. 2 Tr. at 110 (102).5 During her examination by the Board's General Counsel, Stroud explained that she determined who had been served essentially by inference (Aug. 2 Tr. at 110-111):
Mr. Budoo's "notations" were not introduced in the hearings before the Board and they are not part of the record on appeal. The Board's Supplemental Filing gave no reason for the failure to serve these six individuals, and they are not on the list of individuals the Board was unable to serve introduced at the hearing. Exhibit 43. Thus, the Board's assertion that these six individuals were properly served and failed to appear seems to rest entirely on the absence of evidence that they were not served. Such a speculative inference is a wholly unreliable basis to rest an assertion that the six individuals were in fact properly served. Moreover, it is no basis whatsoever for refusing to count the 553 signatures of registered voters collected by these six circulators. See Clarification Mem., Attachment A at 2. Including these 553 signatures increases the total to 17,108. Next, the Clarification Memorandum repeats the same reasons for failure to serve the remaining 14 circulators listed in the Board's Supplemental Filing. Compare Clarification Mem., Attachment A at 2 with Supplemental Filing at 7-8. The most obvious explanation for the Board's failure to serve these 14 circulators (and many others) is that the Board asked a single Board staffer (rather than a professional process server) to attempt to serve 103 witnesses in a relatively short period of time to meet the Board's hearing schedule. The Board staffer to whom Ms. Stroud gave the subpoenas for service had a number of jobs at the Board. He testified that he worked in "Facilities Operations Assessment" and his responsibilities included "[d]eliveries, telecommunications and polling places." Aug. 2 Tr. at 113. There is no indication in the record that he had ever been assigned responsibility for serving subpoenas on any prior occasion, and certainly no indication that he ever had responsibility for trying to organize and carry out service of subpoenas for 103 witnesses to appear and testify during eight days of hearings. That would have been an extraordinary challenge for even a professional. It proved to be virtually impossible for a person with little or no prior experience. The cryptic "reasons" offered for the failure to serve the remaining 14 circulators identified at page 2 of Attachment A to the Board's Clarification Memorandum confirm the point with respect to at least 11 of the 14 circulators, who accounted for a total of 1274 signatures:
Thus, the Board's failure to hear testimony from these 11
circulators to rebut the Challengers' bare allegations of wrongdoing is
largely attributable to the Board's decision to rely on a single
Facilities Operations Assessment staffer rather than a professional
process server. In the absence of any suggestion that any of these
circulators deliberately took action to avoid service, there is no basis
for any inference that the failure to appear to testify was willful or wrongful in any way, and the bare "allegation"
of wrongdoing by challengers is no basis for either inferring wrongdoing
or disregarding the signatures of registered voters collected by any of
these circulators. Counting the signatures collected by these 11
circulators as to whom the No post hoc rationalization of the result in its original decision can obscure the one essential fact demonstrated by the data the Board and its staff have submitted to this Court: Initiative 68 clearly satisfies the statutory requirements for inclusion on the November, 2004 ballot. Whether one starts with 21,279 registered voters and deducts only the signatures collected by the 13 circulators the Board excluded individually (21,279-1773 = 19,506) or one starts with the 14,687 registered voters remaining after the exclusion of all the signatures collected by the Stars and Stripes circulators and adds back only those as to whom the Board's own filing shows there is no basis for exclusion (14,687+3695 = 18,382), Initiative 68 clearly satisfies the 5% threshold of 17,599 signatures of registered voters. To support the result in its August 13 decision, therefore, the Board must offer a rationale and substantial evidence sufficient to support its decision to exclude the signatures collected by each of these circulators as to whom the Board had no evidence of individual wrongdoing. As explained in Part II of this Memorandum, the Board's Clarification Memorandum fails to supply either. II. THE BOARD'S ATTEMPT TO GENERALIZE THE WRONGDOING IS FICTIONAL.In a strained attempt to sustain its result without relying on its previously central - and unconstitutional - "false speech" justification, the Board also resorts to repeated recycling of the same limited evidence of wrongdoing and adds a raft of justifications that are either speculative or, in some cases, wholly fictional. The Board's new reasoning is not only inadequate to disenfranchise thousands of voters, but demonstrates that the Board's Clarification Memorandum is little more than post hoc rationalization for a result reached on other impermissible grounds. In a single-minded attempt to reach its predetermined result, the Board distorts the record and takes the notion of guilt-by-association to new and unlawful heights. This Court's September 13, 2004 remand Order, at 2, summarized the falsesignings evidence presented in the Board's initial opinion: The Board credited testimony ... of six individuals who "on the instruction and/or knowledge of individuals associated with the petition circulation companies, ... completed the circulator's affidavit of certification for petition sheets which had been circulated by other individuals while out of their presence." This testimony also implicated other circulators in similar wrongdoing, and additional testimony established instances of forgery of circulator names on petition affidavits, as well as forgery of the names of petition signers. The six individuals who testified as to their own malfeasance were Campbell, Colbert, Darnell, Gerst, Rempson, and Jeffries. The two other individuals implicated by such testimony were Pitter and Farrell.8 The two circulators whose names were allegedly forged were Atkins and Jenkins. And the only instances of forgery of petition signatures were a mere two names that Rempson admitted copying and Robert Price's testimony that his signature was forged. (The Board's Supplemental memorandum identifies a single additional alleged forgery, though the scatological nature of the name suggests that it was an isolated juvenile prank rather than any actual attempt to deceive.) Two other circulators were excluded for having taken the Fifth Amendment after being told - falsely - by the Board that perfectly legal conduct was a crime. The exclusion of the petition sheets from these 12 circulators is not challenged here, notwithstanding the excessive nature of the remedy. What is challenged by Petitioner is the attempt, through repetition and recycling of the same supposed wrongdoing over and over, to exclude the sheets of circulators as to whom there is no individual evidence of wrongdoing. Recycling Evidence about Individual Wrongdoers Already Rejected. Beginning with what little evidence it does have, the Board seeks to create the impression of wider problems through endless repetition and recycling. Based on the ten individually implicated circulators and two circulators who took the Fifth and were not immunized, the Board argues that such problems were indicative of a broader pattern of wrongdoing. Yet when the Board seeks to claim a pattern extending beyond the individual wrongdoers, it cites either ambiguous generic statements or evidence relating back to the very same persons and not once identifies any additional circulators who engaged in similar conduct. For example, despite Ms. Colbert's generic testimony that she signed for some non-residents because "everybody else was doing it," Clarification Mem. at 4, she not once identifies any other circulators involved. The most she says is that the behavior revolved around Mike Jones, one of the non-residents. Even if such testimony raised suspicions against other circulators who worked with Mike Jones, that is a far cry from the entirety of the Stars and Stripes operation and, once again, loops back to the very same individual circulators already rejected. See Clarification Mem. at 4-5 (Colbert, Jeffries, and Rempson each describing wrongdoing in connection with Mike Jones). Indeed, the Board itself, at 6, grudgingly recognizes that the only "supervisor" claimed to be involved in the malfeasance is Mike Jones, yet still tries to impute blame to the vast majority of Stars and Stripes circulators who had no connection with Jones. It is only through repeated references to the same wrongdoing already accounted for that the Board seeks to create the impression of a wider problem. The testimony of Danielle Campbell and Andre Rempson are two other examples where there is no mention of any other circulators involved, yet the Board pretends otherwise. Clarification Mem. at 4-5. The only thing Campbell described, however, is her own behavior in signing for non-residents. Rempson likewise recounts his own malfeasance, but not once mentions a single other circulator who engaged in similar behavior. All of the petition sheets from Campbell and Rempson were individually rejected for such behavior, and the Board is merely recycling evidence that does not implicate others beyond the identified group of wrongdoers. The nonrepresentativeness of this confirmed group of testifying wrongdoers is highlighted by the fact that they had a variety of connections to each other that make them more likely to have acted in concert with each other, but which distinguish them from the remainder of the Stars and Stripes circulators. For example, Colbert and Jeffries were dating each other and Rempson was dating Colbert's mother. See July 22 Tr. at 328; July 28 Tr. at 56. That this small clique of persons connected by personal relationships accounted for a substantial amount of the wrongdoing relied on by the Board is telling. It not only provides an explanation for their behavior unrelated to the rest of the Stars and Stripes operation, but it also illustrates that they were far from a random sample of circulators. Rather, they are an independently related group far more likely to appear together and to have committed wrongdoing. Any competent statistician would reject out of hand any inferences drawn from such a small and demonstrably skewed sample. Unverified Statements from Unexamined Complainants. The Board's efforts to manufacture evidence from non-evidence become even more stark when it resorts to unsworn complaints from persons who never testified. Clarification Mem. at 6 (citing complaints from Angela Rooney, J. Marcus Meeks, and Norman L. Brown). And even that evidence at best describes behavior by non-residents without even a hint of which circulators were supposedly signing unwitnessed sheets. Given that the individually rejected wrongdoers signed a sizeable number of sheets - all of which were excluded - there simply is no basis for inferring that some other circulators signed the sheets of the non-residents described in the unverified complaints. The Board's effort to turn the fairly defined behavior of a group of individual circulators into a "common practice" among all Stars and Stripe circulators is nothing more than speculation driven by a predetermined conclusion that the Board seems stubbornly unwilling to question with an open mind.9 False Imputation of Wrongdoing from Affidavit Corrections. The Board next cites 54 petition sheets on which the affidavits were "altered" as supposed evidence of broader wrongdoing. Clarification Mem. at 7. That new ground for imputing wrongdoing to others does not withstand scrutiny. As an initial matter, the open and unconcealed correction of a circulator affidavit does not raise any inference of fraud or perjury, merely the suggestion of a mistake. Most often, the mistake will be that a voter signs the petition in the wrong place and the name has to be crossed out and replaced by that of the circulator. Indeed, the Board curiously neglects to direct this Court to the only testimony in the record on this point. During Intervenor Drake's cross examination of Colbert, he specifically asked about a name crossed out on one of her affidavits. July 22 Tr. at 281-82. She explained that a person whose signature she was gathering "accidentally started signing down there. He started signing the wrong slot." In order to sign her own name, she obviously had to cross out the name of the errant signatory. Given that Ms. Colbert's testimony is the only actual evidence in the record on such matters, it is truly a marvel of speculation and results-driven inferences for the Board to attribute such mistakes to circulator fraud.10 Noting that some of the corrected affidavits from Hope Williams were initially signed by Roy Kingsford, the Board attempts to brand Kingsford as a corrupter of multiple circulators. But the corrected affidavits, coming from the very first day of petition gathering, are far more likely mistakes than fraud, and the Board's assertion that Kingsford participated in Danielle Campbell's malfeasance is false. Campbell's testimony makes perfectly clear that only Curtis Fuentes, not Ray Kingsford, was involved in her false affidavits. July 26 Tr. at 288-314. (That Mack or Campbell let Kingsford take payment credit for some of the petition sheets that they personally circulated and personally signed is not wrongdoing at all, and whether the women thought of themselves as circulators or witnesses does not change the fact that the affidavits they signed with Kingsford were completely truthful.) The suggestion that Kingsford was a serial malfeasant who encouraged wrongdoing by even one circulator, much less multiple circulators, is simply and definitively refuted by the record. That the Board persists in this fiction - and expands upon it in its latest memorandum - illustrates just how far it is stretching to defend its result, without regard to the actual facts. Rather than "physical evidence" of false signings, Clarification Mem. at 7, the limited number of corrected affidavits are not evidence of fraud at all, and the only testimonial evidence on the subject is directly contrary to the Board's speculative inference. That 23 different circulators had such corrections - in most cases on only one or two petition sheets - does not suggest widespread wrongdoing, but rather the occasional error by a voter signing in the wrong place.11 Post Hoc Shifting of the Burden of Proof. The Board's next gambit is to claim that Petitioner did nothing to rebut the "steady flow of adverse evidence" regarding the Red Roof Inn. Clarification Mem. at 9. Once again, that claim is both disingenuous and in some instances outright false. For example, Petitioner put on ample evidence about the steps it took to solve the T-shirt problem - which was a major focus of the Board during the hearing, though ultimately an improper basis for its decision. Likewise, Petitioner put on evidence that in its purging process it rejected sheets that appeared problematic and in one instance turned sheets over to the Board due to suspected forgery. That Petitioner did not waste its time rebutting the testimony of individuals who confessed to their own wrongdoing is hardly remarkable, given Petitioner had nothing to gain from a pointless effort at rebuttal of individual wrongdoing. And when Petitioner presented Daryl Bonner, who vehemently sought to clear his name, Board Counsel interviewed Bonner ex parte but then never allowed him to testify before the Board. In short, upon examination, the web of pervasive fraud that the Board claims to see in the evidence turns out to be nothing more than a "house of cards," wholly insufficient to support the result in this case. CONCLUSIONFor the foregoing reasons and the reasons stated in each of the Committee's previous submissions, this Court should reverse the decision of the Board and order the Board to place Initiative 68 on the November 2004 ballot for consideration by the voters of the District of Columbia, subject to the outcome of any required random sampling. Respectfully submitted, George W. Jones, Jr. (Bar No. 323139) John Ray (Bar No. 214353) Erik S. Jaffe (Bar No. 440112) Counsel for Citizens Committee for the D.C. Video Lottery Terminal Initiative CERTIFICATE OF SERVICEI hereby certify that a copy of the foregoing Memorandum of Petitioner Citizens Committee for the District of Columbia Video Lottery Terminal Initiative in Response to the Board's Clarification Opinion was served this 23rd day of September, 2004 upon the following: BY TELECOPY Kenneth J. McGhie, General Counsel BY ELECTRONIC MAIL Jeffrey
D. Robinson BY TELECOPY Ronald L. Drake, Esq. BY ELECTRONIC MAIL Arthur B. Spitzer BY ELECTRONIC MAIL Dorothy Brizill BY ELECTRONIC MAIL D.C. Against Slots EXHIBIT A No. 04-AA-957IN THE DISTRICT OF COLUMBIA COURT OF APPEALS CITIZENS COMMITTEE FOR THE D.C. VIDEO LOTTERY TERMINAL
INITIATIVE, Petitioner DECLARATION OF JOHN L. RAYI, JOHN L. RAY, hereby declare and state as follows: 1. I have personal knowledge of the facts set forth herein and, if called upon, would and could testify thereto. 2. I am counsel to the Citizens Committee for the Video Lottery Terminal Initiative of 2004 (the "Committee"). I represented the Committee during the D.C. Board of Elections and Ethics' (the "Board") hearings held on July 21 through July 28, 2004 and August 2, 2004. 3. On July 24, 2004, at Challenger Drake's suggestion, the Board directed the parties to participate in a mid-hearing conference without the presence of the Board to determine the witnesses the parties felt were essential to present testimony. (July 24 Tr. at 33) On July 25, 2004, the mid-hearing conference was held off-the-record by General Counsel McGhie wherein he informed the parties that each party would be limited to two additional witnesses. (July 25 Tr. at 11, 28). 4. On July 26, 2004, in response to an inquiry from Challenger Brizill, the Board informed the parties for the first time that it was having difficulty locating and serving some subpoenaed circulators. (July 26 Tr. at 537). At this point in the proceedings, the parties did not have a list of the subpoenaed circulators that the Board had been able or unable to serve. 5. On July 28, 2004, I expressed an interest in providing information to help the Board locate the unservable circulators; however, the Board appeared annoyed that I would suggest bringing in more witnesses when it had already limited, and the parties agreed, the number of additional witnesses. (July 28 Tr. at 399-401). Also, at this hearing, the Board closed the record, with the exception of receiving testimony from Mike Jones on August 2, 2004. (July 28 Tr. at 401). At this hearing, the parties were presented with the Board's list of unservable circulators, which did not state the reasons why the Board was unable to serve them. (Aug. 2 Tr. at 91-92). 6. At the conclusion of the July 28, 2004 hearing, I and my co-counsel, Elise Dang, Esq., had a discussion with General Counsel Ken McGhie in which I offered to, hire a professional server to locate the unservable circulators. The General Counsel indicated he would present our offer to the Board. Neither the General Counsel nor the Board ever provided us with a response. 7. On July 29, 2004, my co-counsel, Ms. Dang, and I called the Board's Staff Attorney, Tern Stroud, inquiring whether the Board could provide us with the reasons why the Board was unable to serve certain subpoenaed circulators. Ms. Stroud agreed, and on July 30, 2004, her assistant, Karla Garcia, faxed Ms. Dang a revised list of subpoenaed circulators with the reasons why they were unservable. (Board Exhibit 43). I also informed Ms. Stroud that we were willing to try to locate these unservable circulators. 8. On August 2, 2004, the Board provided all parties with the revised list of unservable witnesses (which was the same list as the one faxed to Ms. Dang on July 30, 2004). 9. On August 2, 2004, we informed the Board that Mike Jones was unable to testify that day due to prior a commitment with another petition drive in Dayton, Ohio. (Aug. 2 Tr. at 6, 46). Mr. Jones asked us to present his affidavit to the Board. The Challengers objected to the affidavit being entered into the record. The Board sustained the objection and disregarded Mr. Jones' affidavit. (Aug. 2 Tr. at 139). 10. On August 2, 2004, Darryl Bonner, a Stars and Stripes employee who circulated petitions with Evelyn Gerst, voluntarily presented himself at the hearing to refute Ms. Gerst's testimony and to assert his innocence of any wrongdoing. Ms. Gerst is a D.C. resident and employee of Red Roof Inn who was given immunity by the Board and testified that she signed affidavits of petitions circulated by Mr. Bonner without "being in the presence of' those who signed the petitions (July 26 Tr. at 193). My co-counsel, Ms. Dang, and I took Mr. Bonner to the General Counsel's office and introduced him to General Counsel McGhie and inquire whether the Board would allow Mr. Bonner to testify. The General Counsel indicated he would present our request. Ms. Stroud interviewed Mr. Bonner ex parte in her office.- The Board did not call Mr. Bonner to testify. I declare under penalty of perjury that the foregoing is true and correct. Executed on September 23, 2004. EXHIBIT BFROM : COMFORT INN & SUITES LAX A PHONE N0. : 310 671 11304 SEP. 22 2004 05 :14PM DISTRICT OF COLUMBIA BOARD OF ELECTIONS AND ETHICS Ronald Drake, D.C. Against Slots, and D.C. Watch, Challengers, Administrative Heating DECLARATION OF DARYL BONNER Daryl Bonner hereby declares and states as follows; 1. My name: is Daryl Bonner. I worked as a non-resident circulator-assistant for the signature gathering effort for Initiative #68. 2. I worked under Stars and Stripes and stayed in the Rod Roof Inn. 3. When I went out to gather signatures it was always with a DC resident, sometimes two. One of the DC residents with whom I worked was Evelyn Gerst. 4. I met Evelyn Gerst two years ago when I worked on the initiative supporting treatment instead of jail for certain offenses and also stayed in the Red Roof Inn, at which Evelyn was a housekeeper, on I met Evelyn again at the start of the petition drive for Initiative #68 1 asked her if she wanted by work with me and she agreed. She could only work in the afternoon, evening and night because she worked at the Red Roof Inn during the day. This was fine with me. I am a big man and I cannot work in the heat of the day in DC or other very hot and humid places. We collected signatures together during the petition drive after 4:00 p.m. on each day we worked. 5. We normally worked in front of the Safeway in Adams Morgan. There was a surveillance camera in the front of the store and Evelyn and I will be on it for each of the days we worked. 6. At some point I learned that Evelyn claimed that she had signed petitions that I circulated myself when she was not with me and was not in be presence of the petition signers. This was not true. I collected no signatures without a DC resident in my presence and I never had Evelyn sign petitions for which she did not witness all of the signatures on the petition. When I heard what she was saying, I went to Washuigton to testily to clear my name. On or about Monday, August 2, 2004, I appeared at the Board of Elections and asked to testify. The Board would not allow me to testify, but asked me to speak privately with a Board of Elections attorney. I do not remember her name but she was a short African American woman. I told her the information recounted above and I also told her that I believed that Evelyn wan mad because she heard that other people were being paid $5.00 a signature and I was paying her less. I said that I believed Evelyn thought I was cheating her and testified falsely to try to get even for what she thought was my mistreament of her. I told the Board of Elections lawyer about the surveillance tapes and gave her the names and phone numbers of two witnesses who saw Evelyn working with me and/or who heard Evelyn talking about our going out together to collect signatures. The Board of Elections lawyer with whom I spoke took notes. 7. I have since learned thin the Board of Elections has listed me as a wrongdoer in a public opinion. without even mentioning that I vehemently dispute Evelyn's testimony about me, and without in any way referencing what really happoed. I also do not know whether the Board made any effort to get the surveillance tapes I told them about. This is extremely unfair and I make this declaration to register my: strong protest. I declare under penalty of perjury that the foregoing is true and correct. Executed on September 22, 2004. Daryl Bonner 1. Contrary to the approach in the Clarification Memorandum, during the hearing Chair Wilma Lewis explicitly disclaimed any inference of improper motives from Jones's inability to testify until August 3, 2004. See Aug. 2 Tr. at 46 ("I'm not suggesting that he's trying to evade being here or anything of the sort. We have the reality of the practical issue to deal with and that's what I'm trying to get to. I'm not questioning his motives or suggesting that he had some other agenda.") 2. The thirteen circulators are: (1) Steven Atkins, (2) Danielle Campbell, (3) Tenicia Colbert, (4) Melissa Darnell, (5) Evelyn Gerst, (6) Andre Rempson, (7) Shamika Mack, (8) Forrest Jackson, (9) Angelo Farrell, (10) Antoinette Pitter, (11) Antoine Jeffries, (12) Tanica Hunter, and (13) Gwendolyn Squirewell. 3. The 19,506 number reported by the Board excludes approximately 178 signatures collected by Shamika Mack. There is, however, no evidence in the record that Mack was guilty of any wrongful conduct. Petitioner's Reply Brief at 14 & n. 13. The Board has made no effort in any of its filings in this Court or in the Clarification Memorandum to defend the exclusion of the signatures Mack collected. The 19,506 number reported by the Board also excludes signatures based on the omission of the dates during which the petition was circulated. See Petitioner's Opening Brief at 46-47 n. 29. Although Petitioner conceded the omission of the dates, the omission was harmless error and the signatures of the registered voters in this group also should be added back to the total. Id. The Board offers no arguments to the contrary. 4. There is no basis for the exclusion of many of-the other signatures the Board has refused to count, but time does not permit a comprehensive analysis of all the excluded signatures. The essential point is that the Board's data show beyond any serious dispute that Initiative 68 satisfies the signature requirements of the initiative statutes. 5. Remarkably, the Board and its staff appear to be incapable of determining the precise number of subpoenas issued. Clarification Mem. at 2 n.2. In any event, it appears to have been either 102 or 103. 6. Furthermore, as to Rose Daniels, she in fact did appear to testify, but the Board failed to call her. July 28 Tr. at 395. 7. The Board's assertion that Cynthia Allen submitted a false declaration of residence and that the address she provided was an abandoned shelter is indefensible. The testimony before the Board on this point is clear, and Petitioner pointed out the error in its Supplemental Submission. Cynthia Allen's circulator declaration plainly states that her address is 516 50th Place, N.E., Washington, D.C. The Board's staffer testified that he went to the address listed for another circulator. Aug. 2 Tr. at 114-115. Yet, in its Clarification Memorandum, the Board not only continues to exclude the signatures collected by-Allen, but also asserts that she lied on her circulator declaration. The fact that Mr. Budoo was unable to serve Allen at an address different from the one she listed is hardly surprising. It is no basis whatsoever for refusing to count the 98 signatures of registered voters she collected. 8. As noted above, Shamika Mack, though discussed in the testimony, was not even remotely implicated in any wrongdoing. Petitioner's Reply Br. at 14 n.13. Further, while the Board credits Gerst's testimony about Daryl Bonner, it fails to acknowledge that Bonner unequivocally denied Gerst's assertions and the Board refused to permit him to testify after interviewing him ex parte. See Declaration of Daryl Bonner, Exh. B. 9. The Board's attempt, at 6-7 & n. 10, to convert the Clint Hyatt memorandum responding to "rumors" of non-residents gathering petitions without witnesses into an admission of widespread wrongdoing is yet another example of the lengths to which it will go to manufacture something from nothing. Those rumors came from the Challengers via the press, and nothing in the Hyatt memo purports to confirm the rumors or comment on the breadth of such activity. That the memo was addressed to "all petitioners" hardly constitutes a concession that all, or even a significant portion of, petition gatherers were involved in such rumored activity. Rather, it is a sensibly prophylactic response to an unverified rumor and a mere reminder of what petition gatherers had been repeatedly told in their training - that residents must be present to witness all signatures gathered. Had Mr. Hyatt not prepared such a memo, the Board would undoubtedly be chastising him for lack of responsiveness and oversight. Such a Catch-22 position shows that the Board will warp any facts to fit its conclusion, regardless of what an objective view of those facts might suggest. 10. And even if some of the crossed-out names on the affidavits indeed were those of nonresidents - g&, Roy Kingsford's name on some of Hope Williams' petitions - that still does not raise an inference of perjury. Insofar as a resident and non-resident were working together, it is equally reasonable that the non-resident signed by mistake and then corrected that mistake by crossing out the name and having his or her associated resident properly sign as a witness. That the resident's signature replaced another's signature in no way establishes that the resident was not there for the signature gathering or otherwise falsified the affidavit. The fact that the corrections were obvious on the face of the affidavits certainly suggests that nobody was trying to conceal them. 11. In the Board's initial brief to this Court (at 27 n.20), it listed the number of circulators with corrections as being 17. It now claims that number is 23, without citation to the sheets or any explanation for the change. Clarification Mem. at 8. Insofar as the Board declines to explain its ever-shifting evidence, it is difficult to tell whether its assertions to this Court are accurate as to the new-found six circulators with allegedly corrected sheets. |
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