Dorothy Brizill, Thelma Jones, and Anthony Muhammad, plaintiffs - appellants
D.C. Board of Elections and Ethics, defendant - appellee
Barry Jerrels, and Citizens for the Video Lottery Terminal Initiative of 2006, intervenor/defendant - appellee

Dorothy Brizill

TABLE OF CONTENTS

TABLE OF AUTHORITIES
STATEMENT OF ISSUES
STATEMENT OF FACTS
ARGUMENT

An Initiative in the District of Columbia Cannot Overturn a Federal Law
The Initiative Appropriates Funds
The Initiative Encroaches Upon Mayoral Authority and Therefore Conflicts with the Home Rule Act

CONCLUSION

JOINT APPENDIX

1. Order of the Superior Court of the District of Columbia, Civil Division, in Civil Action No. 06-3939, June 8, 2006

2. D.C. Board of Elections and Ethics, "Proper Subject Matter Determination" summary sheet, distributed at the May 3, 2006, hearing

3. 15 USC 1171-1178, popularly known as the Johnson Act

4. Letter from the General Counsel of the Office of the Chief Financial Officer, Jerry L. Malone, submitted to the DC Board of Elections and Ethics, May 3, 2006

5. Letter from Stanley Jackson, Deputy Mayor for Planning and Economic Development, submitted to the D.C. Board of Elections and Ethics, May 3, 2006

6. Letter from Aubrey Thagard, Ward 8 Neighborhood Planner in the Office of Planning, submitted to the D.C. Board of Elections and Ethics, May 3, 2006

7. Letter from Robert J. Spagnoletti, Attorney General of the District of Columbia, submitted to the D.C. Board of Elections and Ethics, March 30, 2006

8. Letter from Charlotte Brookins-Hudson, General Counsel to the D.C. City Council, submitted to the D.C. Board of Elections and Ethics, April 4, 2006

9. Resolution from Advisory Neighborhood Commission 8A, April 17, 2006

10. Letter from the Federation of Citizens Associations of the District of Columbia to the D.C. Board of Elections and Ethics, April 28, 2006

11. Testimony of Thelma E. Jones before the Board of Elections and Ethics, May 3, 2006

12. Letter from Robert J. Spagnoletti, Attorney General of the District of Columbia, submitted to the D.C. Board of Elections and Ethics, April 18, 2006

13. District of Columbia Court of Appeals order vacating the decision of the Superior Court in American Cancer Society Action Network, et al., v. Restaurant Association of Metropolitan Washington, et al., CA1785-04, May 24, 2006

14. D.C. Register, Notice of Public Hearing by the Board of Elections and Ethics on the "Video Lottery Terminal Initiative of 2006," including the short title, summary statement, and legislative text proposed by the proponent, April 21, 2006

15. D.C. Register, Publication of the "Video Lottery Terminal Initiative of 2006," including the short title and summary statement formulated by the Board of Elections and Ethics on May 3, 2006; May 12, 2006

16. Council of the District of Columbia, Legislative Drafting Manual title page and preface, February 1999

17. Argo v. D.C. Board of Elections and Ethics, Civil Action No. 04-4740 (June 29, 2004), transcript of court hearing, June 29, 2004

TABLE OF AUTHORITIES

Cases

Argo v. D.C. Board of Elections and Ethics, Civil Action No. 04-4740 (June 29, 2004)
Convention Ctr. Referendum Comm. v. Dist. of Columbia Bd. of Elections & Ethics, 441 A.2d 889 (D.C. 1981)
District of Columbia v. Greater Washington Central Labor Council, 442 A.2d (1983)
District of Columbia v. District of Columbia Board of Elections, 131 WLR 885 (Super. Ct. 2003)
District of Columbia Board of Elections and Ethics v. District of Columbia., 520 A.2d 671 (D.C.App. 1986)
*District of Columbia Board of Elections and Ethics v. District of Columbia, 866 A.2d 788 (D.C. 2005)
Don’t Tear It Down, Inc. v. Pennsylvania Ave. Development Corp., C.A.D.C.1980, 642 F.2d 527, 206 U.S.App.D.C. 122
Hessey v. Board of Elections & Ethics, 601 A.2d 3, 16
*Marijuana Policy Project, et al. v. United States of America and District of Columbia Board of Elections and Ethics, 304 F.3d 82
McClough v. U.S., 1987, 520 A.2d 285
*McConnel v. United States, 537 A.2d (D.C. 1988)
Washington Coin Mach. Ass’n v. Callahan, 1944, 142 F.2d 97,79 U.S.App.D.C. 41

Laws

D.C. Code §§1-206.01 - 1-206.02 (the Home Rule Act, Sec. 601-602)
D.C. Code §1-1001.16
D.C. Code §3-1301 et seq.
D.C. Municipal Regulations, Volume 3, Chapter 10
15 USC 1171-1178 (the Johnson Act)
U.S. Constitution. Article I, Section 8, Clause 17 and Article VI, Clause 2

STATEMENT OF ISSUES

1. In this case, the appellants (Brizill, Jones, and Muhammad) are citizens of and registered voters in the District of Columbia who are appealing an Order of the Superior Court (Appendix 1) that upheld a decision of the D.C. Board of Elections and Ethics (BOEE) that a proposed initiative, the Video Lottery Terminal Gambling Initiative of 2006, was a "proper subject for an initiative" under D.C. Code §1-1001.16(b)(1). Brizill, et al., contend that the BOEE’s decision was incorrect and contrary to provisions of the D.C. Code and the D.C. Municipal Regulations, Vol. 3, Chapter 10. It is also inconsistent with the BOEE’s one-page summary fact sheet distributed at the May 3, 2006, public hearing entitled "Proper Subject Matter Determination" (Appendix 2), which details the grounds on which the BOEE will reject a proposed initiative measure.

2. In their complaint to the Superior Court, Brizill, et al., raised procedural issues about the proceedings of the BOEE when it considered the issue of whether the initiative presented a proper subject for an initiative. While they still contend that the BOEE’s actions were improper, they are not appealing these procedural questions. This appeal is restricted to the three substantive issues Brizill raised in the Superior Court complaint as to whether the initiative presents a proper subject for an initiative under D.C. law.

3. The first issue arises because the initiative seeks to overturn, amend, or repeal a federal law, 15 USC 1171-1178, popularly known as the Johnson Act (Appendix 3), that prohibits the transportation, manufacturing, possession, and use of gambling devices in the District of Columbia. The appellees, the BOEE and Barry Jerrels, the proponent of the initiative, contended, and the Superior Court held, that a law passed by the City Council of the District of Columbia, and thus an initiative, has the power and authority to overturn, amend, or repeal a federal law, passed by the Congress of the United States and codified in the U.S. Code. A matter is not a proper subject for an initiative if it violates the U.S. Constitution or is contrary to the Home Rule Act.

4. The second issue arises because an initiative cannot appropriate funds under D.C. Code §1-1001.16(b)(1). Brizill contends that the initiative appropriates funds by mandating that the District of Columbia Lottery Board, an agency within the Office of the Chief Financial Officer of the District of Columbia, fund and staff a new regulatory body that would oversee the operation and management of slots gambling casinos.

5. The third issue stems from the fact that legislation, whether it is passed by initiative or by the City Council, must deal solely with legislative matters, and may not intrude upon the power and authority of the executive branch of government by dealing with matters that are purely administrative in nature. The explicit purpose of the initiative is to require the District of Columbia to issue a license to the sponsors and funders of the initiative to operate a gambling casino at a specific site in Anacostia. The granting of a license is an administrative action that is the responsibility of the executive and the departments and agencies in the executive branch, and thus it is not a proper subject matter for an initiative or legislation.

STATEMENT OF FACTS

6. On April 10, 2006, Barry E. Jerrels, the initiative’s proponent, submitted a proposed initiative to the BOEE entitled the "Video Lottery Terminal Initiative of 2006." (The title of the initiative was later amended by the Board to the "Video Lottery Terminal Gambling Initiative of 2006.") As proposed, 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 authorize the licensing of video lottery terminals (more commonly called "slot machines" and hereinafter also called "slot machines" or "slots"). The initiative would mandate that the Lottery Board of the District of Columbia issue the initial license for a slot machine casino to the person who owns or controls three specified lots in Square 5770 at the intersection of Good Hope Road and Martin Luther King Avenue in the historic Anacostia neighborhood of the District of Columbia. The initiative also provides for a procedure to license additional casinos throughout the District of Columbia.

7. On April 21, 2006, the BOEE advertised in the D.C. Register, the official legal bulletin of the District of Columbia, notice of a public hearing to be held on May 3, 2006, to determine whether the proposed initiative would be a "proper subject for an initiative." The notice also indicated that if the Board ruled the initiative was a proper subject, it would proceed to formulate the short title, summary statement, and legislative text of the initiative at the same hearing.

8. Under District law, D.C. Code §1-1001.16(b)(1), the Board is charged with determining whether a proposed measure is a proper subject for a voter initiative pursuant to criteria prescribed by statute. To that end, the BOEE must reject any proposed initiative that is contrary to the terms of or seeks to amend the Home Rule Act, would appropriate funds, would violate the U.S. Constitution, is not in compliance with the Office of Campaign Finance filing requirements, is not in the proper legislative form, would unlawfully discriminate, or would negate or limit a budget act.

9. At its hearing on May 3, 2006, the Board approved the initiative as a proper subject for an initiative and formulated the short title, summary statement, and legislative text of the initiative.

10. Public notice of the Board’s actions at the May 3, 2006, meeting was subsequently published in the D.C. Register on May 12, 2006. Plaintiffs filed a timely Complaint in the Superior Court of the District of Columbia on May 22, 2006, within 10 days of publication, under D.C. Code §1-1001.16(e)(1)(A).

11. Subsequent to filing the complaint, the Superior Court received a Motion to Dismiss from the DC Board of Elections and Ethics, and a Motion to Intervene and a Motion to Dismiss from the proponent of the initiative, Barry Jerrels. The court granted the Motion to Intervene, and allowed Brizill to file an Amended Motion in Opposition to the Motions to Dismiss. No court hearing was held.

12. On June 8, 2006, the Superior Court issued an order granting the BOEE’s and Jerrel’s Motions to Dismiss and notified the parties by postal mail.

13. The appellants are appealing that order as a matter of right under the Rules of the D.C. Court of Appeals, Title 2, "Appeals from Orders and Judgments of the Superior Court," Rule 3.

ARGUMENT

AN INITIATIVE IN THE DISTRICT OF COLUMBIA MAY NOT OVERTURN A FEDERAL LAW

14. The proposed initiative should have been rejected by the BOEE because it attempts to amend or overturn a federal law, and thus conflicts both with the U.S. Constitution and the District of Columbia Home Rule Act. Article I, Section 8, Clause 17 of the Constitution gives Congress exclusive power to define the District of Columbia’s legislative authority. Moreover, Article VI, Clause 2 of the Constitution establishes that federal laws are supreme over state laws: "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all the Treaties made, or which shall be made, under the Authority of the United States, shall be the Supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." And the Home Rule Act, Sec. 601 (D.C. Code §1-206.01), reserves to the Congress of the United States, "the right, at any time, to exercise its constitutional authority as legislature for the District, by enacting legislation for the District on any subject, whether within or without the scope of legislative power granted to the Council by this chapter, including legislation to amend or repeal any act in force in the District prior to or after enactment of this chapter and any act passed by the Council." The Home Rule Act Sec. 602(a)(3) (D.C. Code §1-206.02(a)(3)), further states that the City Council of the District of Columbia cannot "Enact any act, or enact any act to amend or repeal any Act of Congress, which concerns the functions or property of the United States or which is not restricted in its application exclusively in or to the District." The initiative process is subject to the same legislative restrictions that are imposed on laws adopted by the D.C. City Council, as well as to a few additional restrictions that are unique to initiatives.

15. The slots initiative attempts to enact District of Columbia legislation that would overturn the "Johnson Act," a federal law. By enacting expressly preemptive statutes, Congress preempts states from legislating on the same subject, and the "Johnson Act," 15 U.S.C. §1171-1178, makes it "unlawful to manufacture, recondition, repair, sell, transport, possess, or use any gambling device in the District of Columbia. . . ." (15 U.S.C. §1175(a)). Washington Coin Mach. Ass’n v. Callahan, 1944, 142 F.2d 97,79 U.S.App.D.C. 41, found that, "The purpose of Congress in enacting statute of District of Columbia making it unlawful to set up or keep in the District any kind of gambling device designed for the public of playing any game of chance for money or property was to make criminal the use of all contrivances by which money or property is bet or wagered or risked on the chance of some material reward." That intention, and that power of Congress, remains unchanged.

16. The BOEE and Jerrels, in their motions to dismiss in the lower court, relied upon 15 U.S.C. §1172(a), and the lower court discussed this section at length in its Order. That section of the Johnson Act sets forth the general rule that makes the transportation of gambling devices illegal except where a state "has enacted a law providing for the exemption of such State from the provisions of this section. . . ." If that section were the only provision in the Johnson Act that applied to the District of Columbia, Brizill would agree that the City Council or an initiative would be able to pass a law legalizing the transportation, possession, and use of gambling devices.

17. However, Brizill did not rely on that section of the Johnson Act in her complaint, and so the Order’s discussion of it is irrelevant. The Johnson Act does not treat the District of Columbia exactly the same as states. The District of Columbia is explicitly mention in 15 U.S.C. §1175(a), which cites specific jurisdictions -- including the District of Columbia -- within which manufacturing, repairing, selling, possessing, and using gambling machines is absolutely prohibited. This section of the Act does not contain any provision for the jurisdictions it covers, including the District of Columbia, to opt out of its requirements. There is no parallel "opt-out" provision in §1175(a) similar to that given to the states in §1172(a).

18. The lower court did not address or credit an argument made by the BOEE and Jerrels that, since the Johnson Act was amended in 1962 to include the District of Columbia within the definition of a state (§1171(b)), it should be included under the provisions of §1172(a), and should not be included under §1175(a). In other words, they argued that they believe that in 1962 Congress intended to exclude or drop the District of Columbia from the absolute prohibition of §1175(a). They argued that the retention of the second provision separately and explicitly covering the District of Columbia, and giving the District of Columbia no opportunity to opt out of its restrictions, is a mere drafting error, and that the court should therefore disregard the absolute prohibition regarding gambling devices in the District of Columbia in §1175(a). However, the court must deal with the law as it is actually written, not as the Board and Jerrels wish it were written. It is unlikely that the retention of §1175(a) is a mere drafting error, and even if it were it would be the responsibility of Congress to amend it, and not the prerogative of District voters to repeal it through an initiative. Given that the lower court took no notice of this argument, Brizill infers that it accepted that §1175(a) is a provision of federal law that is still in full effect.

19. However, the BOEE and Jerrels also asserted that Congress can only legislate for the District of Columbia through legislation that is national in scope; and that if Congress passes legislation that applies solely or specifically to the District of Columbia, such as §1175(a), that legislation can be overturned by the City Council of the District of Columbia, and thus by an initiative. This novel assertion stems from a misreading of Home Rule Act Sec. 602(a)(3) (D.C. Code §1-206.02(a)(3)). Section 602 of the Home Rule Act is entitled "Limitations on the Council," and it deals with restrictions on the powers of the City Council. Sec. 602(a)(3) states that the Council shall have no authority to: "Enact any act, or enact any act to amend or repeal any Act of Congress, which concerns the functions or property of the United States or which is not restricted in its application exclusively in or to the District" This provision places two restrictions on the City Council: the first limits its ability to deal with the "functions or property of the United States," and the second limits it to passing legislation whose "application is restricted exclusively in or to the District." The Board and Jerrels contended, and the lower court agreed, that this second restriction on the Council, listed in a section of the Home Rule Act that contains only limitations and restrictions on the Council, is instead a sweeping grant of power, by Congress, giving the City Council an authority that is given to no other state or locality -- the power to overturn or amend any Congressional legislation or provision of the U.S. Code that is restricted in its application exclusively in or to its jurisdiction.

20. The lower court arrived at this misreading of the Home Rule Act, by relying upon McConnel v. United States, 537 A.2d 211,214 (D.C. 1988). In this case, as in McConnel, the court achieved its misinterpretation by quoting Sec. 602 of the Home Rule Act with a misleading ellipsis that alters its meaning thusly: "amend or repeal any Act of Congress . . . which is not restricted in its application exclusively in or to the District." In context, it is clear that this provision means that laws of the Council must be restricted in their application exclusively in or to the District; the ellipsis turns the meaning of provision on its head by implying that it refers to Acts of Congress that are restricted in their application exclusively in or to the District.

21. In its Order, the lower court ignored an extensive record of contrary case law. "Federal statutes prevail over local regulations when the two collide or are otherwise inconsistent in their effect and, correlatively, constitutionally grounded federal operations may not, absent congressional consent, be thwarted by local fiat." (Don’t Tear It Down, Inc. v. Pennsylvania Ave. Development Corp., C.A.D.C.1980, 642 F.2d 527, 206 U.S.App.D.C. 122). "Congress’ plenary power over the District of Columbia means no more than that Congress is akin to a state legislature, and not that government thereof is not legislative in character." (McClough v. U.S., 1987, 520 A.2d 285). And, "Neither the Council nor the electors of the District of Columbia can overrule acts of Congress." (Hessey v. Board of Elections & Ethics, 601 A.2d 3, 16). The contention that the City Council, and thus an initiative, has the power to repeal §1175(a) also runs contrary to the U.S. Court of Appeals 2002 decision in Marijuana Policy Project, et al. v. United States of America and District of Columbia Board of Elections and Ethics, 304 F.3d 82: ". . . through the Home Rule Act, Congress delegated some, but not all, of its Article I ‘exclusive’ legislative authority over the District of Columbia to the D.C. Council. For instance, only Congress, not the D.C. Council, may impose a commuter tax or permit buildings above a certain height. The Barr Amendment’s ban on expenditures ‘to enact . . . any law . . . to . . . reduce penalties associated with’ marijuana adds another item to this list of matters that, in the words of the Home Rule Act, are not ‘rightful subjects of legislation.’" The Johnson Act has added gambling devices to that list of matters that are not rightful subjects of legislation, and it is up to Congress, not the City Council, to make the determination of whether or not the federal legislation that absolutely prohibits them in the District of Columbia should be repealed.

22. The Order of the lower court gives the City Council of the District of Columbia, and the District’s voters through the initiative, plenary power to overturn, amend, or repeal any Act of Congress that refers solely to the District of Columbia. This is a power that is not granted to any other state, city, or jurisdiction in the United States, and it conflicts with the plenary power of Congress over the District of Columbia in the Constitution that is reaffirmed in the Home Rule Act. The City Council has never claimed that it has been granted this power, and it has never adopted any law that attempted to overturn, amend, or repeal any federal law, even if that federal law applied solely to the District. If the lower court ruling were to be affirmed by this court, the consequences would be staggering. For example, the City Council or the voters through initiative could repeal the Congressional prohibition on the use of District funds and taxpayer dollars to lobby for statehood; the limitation on building heights in the District; the prohibition against imposing a commuter tax; the federal legislation that established school vouchers in the District of Columbia; the Congressional prohibition against District funding of needle exchange programs; the Congressional legislation that established the Control Board, the Office of the Chief Financial Officer, and the Office of the Inspector General; and a host of federal budget riders that have been adopted by Congress over the years. If this court were to uphold the lower court’s ruling, then the U.S. Circuit Court of Appeals decided Marijuana Policy Project wrongly, because the initiative had the power to simply overturn the Barr Amendment, a rider to the District of Columbia Appropriations Act that was purely local and not national in scope.

23. However, even if Brizill were to concede that the lower court and McConnel read the provision of the Home Rule Act correctly, the lower court would still have selectively cited, and thus misread, the findings of McConnel. This court properly found, both in McConnel and in D.C. v. Greater Washington Central Labor Council, 442 A.2d (1983), that the power of the City Council (and thus of initiatives) to amend federally passed sections of the D.C. Code does not extend to the U.S. Code. With a few narrowly defined exceptions, the City Council does have the power to overturn, amend, or repeal local laws for the District of Columbia that were originally passed by Congress but that were codified in the D.C. Code. Read properly, McConnel, relying on District of Columbia v. Greater Washington Central Labor Council, claims only that the D.C. City Council has the power to amend federally passed provisions of the D.C. Code. It does not support the view of the lower court that the D.C. City Council has been granted the power to amend the U.S. Code; in fact, it explicitly disavows that conclusion. McConnel says, describing DC v. Greater Washington Central Labor Council:

In that case, we approved the Council’s repeal of a workers’ compensation statute enacted by Congress, codified in the District of Columbia Code, and applicable only to private businesses in the District; but, we suggested that the Council would lack authority to repeal or amend the federal workers’ compensation statute codified in the United States Code and applicable to the public sector both in the District of Columbia and in other jurisdictions. Id. At 115. Consistent with our reasoning in Greater Washington Central Labor Council, we conclude that the District had no authority to repeal or amend the federal statute at issue here. (537 A.2d 211)

24. The lower court finds, without further explanation, that since "this provision of the Johnson Act [15 U.S.C. §1175(a)] is tantamount to a local law and not national in scope," (Opinion at 8) the City Council or an initiative could treat it as a local law. However, there is no such thing as a federal law’s being "tantamount to a local law." If a law passed by Congress has been codified in the D.C. Code, it is a local law. If it has been codified in the U.S. Code, it is a federal law; it is not "tantamount to a local law"; and it does not come under the authority of the DC City Council or a local District initiative to overturn, amend, or repeal.

25. In its order, the lower court did not address or give credit to an argument made by Jerrels, though not the Board of Elections. In his pleading, Jerrels argued that the "video lottery terminals" envisioned in the slots initiative are not gambling devices as defined in the Johnson Act. However, the definition of gambling devices in the Johnson Act is very broad, and includes "any so-called ‘slot machine.’" In a previously case on a nearly identical initiative with the same sponsors and funders, the Superior Court found that "video lottery terminals" are very similar to slot machines (which are specifically enumerated in the Johnson Act as gambling devices), and required them to be described in that way (Argo v. D.C. Board of Elections and Ethics, Civil Action No. 04-4740 (June 29, 2004). And at the May 3, 2006, public hearing, the BOEE recognized that video lottery terminals are gambling devices by formulating its version of the Short Title of the initiative as the "Video Lottery Terminal Gambling Initiative of 2006."

THE INITIATIVE APPROPRIATES FUNDS

26. The BOEE should have rejected the proposed initiative because it is a "law appropriating funds," which is not a proper subject of an initiative under D.C. Law (D.C. Code §1-1001.16(b)(1), 3 DCMR 1001.3). The initiative mandates the Lottery Board of the District of Columbia to license at least one slots casino, to be located in Anacostia at the intersection of Martin Luther King, Jr., Avenue and Good Hope Road, SE. It requires the Lottery Board to account for and manage "All funds, fees, fines, or other revenues collected by the Board with respect to the licensing, operation, administration, or regulation of VLTs, including but not limited to any VLT usage fees. . . ." (Initiative §2) It requires the Board to "create and publish regulations setting forth a procedure by which Persons may apply for the Initial License." (Initiative §5(a)) It makes the Board responsible for creating regulations and supervising a licensing process for any additional gambling licenses (Initiative §6). It requires the Board to create a permitting form and process for manufacturers and service technicians dealing with the gambling machines (Initiative §9). It requires the Board to determine the suitability of licensees (Initiative §12), to adopt rules to regulate slots casinos, and to regulate those casinos (Initiative §15). It requires the Executive Director of the Lottery Board to investigate and inspect slots casinos and to enforce its regulations (Initiative §15) and to "Engage, train, supervise and direct such staff, as the Executive Director and the Board shall deem necessary or appropriate to enable the Executive Director to perform his duties and obligations under this chapter." (Initiative §15(5))

27. The District of Columbia Lottery Board is a District agency that is within the Office of the Chief Financial Officer (CFO) of the District of Columbia, and operates under the direction of the CFO. The General Counsel of the Office of the Chief Financial Officer, Jerry L. Malone, submitted a letter to the DC Board of Elections and Ethics on May 3, 2006, that stated that "the Initiative, if passed, would establish a regulatory scheme under which the DC Lottery and Charitable Games Control Board (‘DCLB’) would be mandated to assume additional regulatory functions. There are costs, as yet undefined, inherently associated with undertaking such additional regulatory functions." (Appendix 4) The duties mandated, required, and imposed by this initiative to establish a gambling regulatory regime in the District of Columbia could clearly not be accomplished by the Lottery Board with its present staff, expertise, equipment, and resources. Thus, the initiative imposes costs and expenses on the District of Columbia and the Lottery Board, and would require an appropriation of funds. Moreover, both Stanley Jackson, Deputy Mayor for Planning and Economic Development, and Aubrey Thagard, Ward 8 Neighborhood Planner in the Office of Planning, submitted statements to the Board also raising concerns about the slots initiative and the casino’s impact on the city’s $75 million investment in the historic Anacostia community (Appendices 5 and 6).

28. In their pleadings, both the BOEE and Jerrels claimed that the initiative merely authorizes a program, and does not require the government to appropriate funds to implement that program. They both cited Convention Center Referendum Committee v. D.C. Board of Elections, 441 A.2d 889 (D.C. 1981) and District of Columbia Board of Elections v. District of Columbia., 520 A.2d 671 (D.C.App. 1986) as support for the proposition that an initiative does not violate the prohibition against appropriating funds if it merely authorizes a program, without funding it. The lower court accepted their arguments and their legal citations.

29. However, the present initiative does not just authorize a program that could go into effect were the Council to fund it; it mandates and requires the Lottery Board to carry out all the duties enumerated in ¶26 above. The lower court held that the law "does not prohibit initiatives that propose a program so long as the initiative does not mandate funding." (Opinion at 9) But the initiative does not merely propose a program, and make that program contingent upon financing being authorized by the City Council; the regulatory duties that it imposes on the Lottery Board are not discretionary but mandatory. While the Lottery Board could perhaps postpone writing regulations to license additional slots casinos if the City Council did not fund it to do so, under the terms of the initiative the Lottery Board could not postpone or refuse to license the initial casino to be operated by the initiative’s sponsor. While the lower court correctly noted that the issuance of an initial casino license need not necessarily involve much governmental expense, since the licensing authority is prohibited from investigating or determining the suitability of the licensees, it is incorrect in believing that that initial licensing is the only governmental action that the initiative requires. If the slots casino were licensed, the Lottery Board would not have the option of allowing it to operate without any regulations or oversight. Since the Lottery Board does not have the staff, funding, or expertise to regulate or oversee a full-scale gambling casino, passage of the initiative would force the City Council to allocate funds for the Lottery Board to fulfill these functions. Thus, the initiative does not merely authorize a program that could go into effect were the City Council to appropriate funds for it; it puts a program into operation that the Council would be forced to fund.

30. While the appellees and the lower court both cite only Convention Center and District of Columbia Board of Elections v. District of Columbia, 520 A.2d 671 (D.C.App. 1986) in support of their interpretation of the prohibition against an initiative’s appropriating funds, they ignore a lengthy list of subsequent applicable cases that expand upon and broaden the definition of appropriation of funds. For example, Hessey v. District of Columbia Board of Elections and Ethics, 1991, 601 A.2d 3 found both that the "power of the purse which Congress delegated to the District of Columbia government in the Self-Government and Governmental Reorganization Act remains with elected officials of the District government and is not subject to control by the electorate through initiative," and that the "Limitation in the District of Columbia initiative statute prohibiting electors from proposing laws appropriating funds applies to more than the Budget Request Act; the language of limitation must refer to the council’s role in the District government’s budget process." District of Columbia v. District of Columbia Board of Elections, 131 WLR 885 (Super. Ct. 2003) found that an initiative that made certain defendants eligible for court-ordered drug treatment was an improper intrusion upon the discretion of the mayor and the District of Columbia Council to allocate the amount of funding for drug treatment that they determined could be provided within the fiscal limitations facing the District government and, as such, violated the "laws appropriating funds" exception to the right of initiative, even if the coerced spending constituted only a very small portion of the District’s total budget.

31. Most on point, District of Columbia Board of Elections and Ethics v. District of Columbia, 866 A.2d 788 (D.C. 2005) addresses the very theory advanced by the appellees and the lower court, that this initiative only authorizes a program and does not allocate or appropriate funds. In that case, the BOEE also argued that the proposed initiative, the "Treatment Instead of Jail for Certain Non-Violent Drug Offenders Initiative," did not appropriate funds because it simply proposed a program and did not contain a specific provision allocating funds for the program. The court, however, found that the "Treatment Instead of Jail" initiative contained mandatory language, including the use of the word "shall" to describe the actions that trial courts would have to take in certain drug cases. This mandatory language is exactly parallel to the mandate to license the initial casino in the "Video Lottery Terminal Gambling Initiative of 2006." The court found in D C. Bd. of Elections and Ethics v. D.C. that,

Appellants’ [the D.C. Board of Elections and Ethics] theory would have us read ‘subject to the allocation of funds’ into every initiative and would mean that no initiative would ever be invalid for ‘appropriating funds’ regardless of its language or the intent of the voters. . . . In any event, appellants’ argument has no basis in section 1-204.101 [of the Home Rule Act], which provides that the voters may propose laws except those ‘appropriating funds.’ Contrary to appellants’ argument, a law appropriating funds does not lose that characteristic when it is introduced by the voters, but is improper for the initiative process precisely because it both triggers an appropriation of funds and has been proffered by the voters. Whether a law is proposed by the people or the Council does not alter the nature of that law. A law appropriating funds, thus, is not cleansed of its ‘appropriating’ function when it is introduced or enacted by the voters.

Here, again, the lower court has read the words "subject to the appropriation of funds" into an initiative when they are not present in the initiative, and where the initiative mandates and requires a program be established that would require the expenditure of funds.

32. The lower court argues that this initiative should be distinguished from the initiative ("Treatment Instead of Jail") in District of Columbia Board of Elections and Ethics v. District of Columbia, 866 A.2d 788 (D.C. 2005) because "there are major dissimilarities between the measures," (Order at 10) and it refers to, but does not cite, arguments made by the BOEE to arrive at this conclusion (in Defendant Board of Elections and Ethics’ Reply to Plaintiffs’ Opposition to the Board of Elections and Ethics’ Motion to Dismiss [Reply] at 2). The BOEE made two arguments to attempt to distinguish the cases. The first is that "the Lottery Board is not a court that would find itself being forced to choose between noncompliance with the mandates of a measure and issuing hollow orders in the event that the Council did not appropriate funds to substantiate those orders." (Reply at 2) This is a distinction without a difference. In this case, the Lottery Board would be forced to choose between noncompliance with the mandates of the initiative and issuing hollow orders. If it did not receive funding to carry out the mandates of the law, it would be forced to allow a gambling casino to operate without the oversight and regulation that is needed and mandated by the initiative. The fact that District of Columbia Board of Elections and Ethics v. District of Columbia dealt with duties mandated on the courts and this case deals with duties mandated on an executive agency is not an important difference.

33. The second argument made by the BOEE is that the District of Columbia Attorney General, in his comment letter to the BOEE dated March 30, 2006 (Appendix 7), regarding the initial version of the initiative, failed to appreciate the initiative’s implications for appropriations (Reply at 2). However, the Attorney General failed to note several major legal deficiencies in the initial version of the initiative that were pointed out by Charlotte Brookins-Hudson, the General Counsel to the City Council, in her letter of April 4, 2006 (Appendix 8). The proponent of the initiative, Mr. Jerrels, took Ms. Brookins-Hudson’s concerns so seriously that he withdrew that version of the initiative and revised it to address the issues she raised. The fact that Mr. Spagnoletti failed to detect the legal problems that Ms. Brookins-Hudson did is no more evidence that her concerns were invalid than his failure to detect the problems that Brizill did is evidence that Brizill’s objections are invalid. Moreover, in preparing his comments on the initiative for the BOEE, the Attorney General failed to consult with or even inform the executive agencies that would be affected by the initiative, and therefore did not get any comments from them on whether the initiative would impose any budgetary obligations on them. When the executive agencies that would be affected were informed about the initiative, they sent letters to the BOEE on the morning of the Board’s hearing, informing it that the initiative would impose costs on them that would amount to an appropriation of funds (Appendices 4, 5, and 6, referenced in ¶27 above). Most importantly, the General Counsel of the Office of the Chief Financial Officer and the Associate General Counsel of the Office of the Chief Financial Officer who is responsible for the Lottery Board jointly sent a letter (Appendix 4) that said,

Specifically, the Initiative, if passed, would establish a regulatory scheme under which the DC Lottery and Charitable Games Control Board ("DCLB") would be mandated to assume additional regulatory functions. There are costs, as yet undefined, inherently associated with undertaking such additional regulatory functioning.

Because of the additional costs associated with assuming the mandatory regulatory functions, the OCFO requests that the BOEE consider whether the additional regulatory costs mandated by the Initiative constitute an appropriation or allocation of funds as prohibited by D.C. Official Code §1-204.46 (2001), and, therefore, not be a proper subject matter for the initiative process, as set form in D.C. Official Code §1-1001.16(b)(1).

THE INITIATIVE ENCROACHES UPON MAYORAL AUTHORITY AND THEREFORE CONFLICTS WITH THE HOME RULE ACT

34. The BOEE should have rejected the proposed initiative because it impinges upon and usurps what are mayoral powers under the Home Rule Act, and therefore is not a proper subject for an initiative (D.C. Code 1-1001-16(b)(1) and 3 DCMR 1001.3). The initiative mandates and requires the awarding of a slots casino license to the person who owns or controls lots that are specified in the initiative. That is the heart and substance of the initiative, and the sole reason that its sponsor is willing to fund it. It seeks to issue a license by legislation, and the issuing of such a license falls within the regulatory executive authority of the mayor. Licensing and the decision of whether or not to award a license -- for example, licenses to establishments that serve alcoholic beverages, licenses to barbers and beauty operators, and licenses to operations that have terminals that issue lottery tickets -- is an executive or administrative prerogative, and falls under the powers and authority of the mayor. The City Council’s role is to approve a licensing policy; it cannot legislatively award a license or direct the mayor to award a license to any individual. Just as the Council cannot enact legislation to require the Lottery Board to award a license to operate a lottery terminal to the person who operates a business at a specific address, a voter initiative cannot require the Lottery Board to issue a license to operate a slots casino to the person who owns or controls property at a specific address.

35. This initiative clearly goes far beyond simply establishing a policy authorizing Video Lottery Terminals or slot machines; it goes into the area of the administrative powers and authority accorded the executive. The initiative does not simply set up a legislative scheme for licensing slots casinos. Such a legislative scheme would be within the Council’s powers. The initiative goes far beyond that. The primary purpose of the initiative is to require the Lottery Board to issue the initial license for a slots casino to the sponsor of the initiative (who owns or controls the property specified in the initiative as the site of the initial casino, has hired the initiative’s proponent, and has solely financed the initiative effort). In their pleadings, the BOEE and Jerrels argued that legislatively directing, requiring, and mandating that the initial license must be granted to this individual, without discretion, does not undermine the mayor’s licensing authority, impinge upon his administrative prerogatives, or usurp or hamper his ability to determine whom he will license; while the lower court did not agree, it nevertheless did not find that this usurpation of executive authority made the initiative an improper subject.

36. While establishing a scheme of licensing is a proper legislative matter, the actual granting of a license, or mandating the granting of a license to a particular individual (however that individual is specified, whether by name or by location) is not a proper subject for the legislature. "Since the system of government vesting executive/administrative, legislative, and judicial functions in separate entities has been established in the District of Columbia, nonlegislative matters cannot properly be submitted for initiative without violating the sanctity of that division of responsibility, and thus the power of the electorate to propose laws through the initiative is coextensive with the power of the legislative branch of government to pass legislative acts, ordinances and resolutions, and to make policy decisions, and does not extend to executive/administrative decisions." (Convention Center Referendum Committee v. District of Columbia Bd. Of Elections and Ethics, 1980, 441 A.2d 871, on rehearing 441 A.2d 889.)

137. The lower court agreed with Brizill on all the points involved in this analysis. It agreed with Brizill, and disagreed with the BOEE, in finding that the initiative does require the awarding of a slots casino license to the sponsor and funder of the initiative (Order at 11). It agreed that an initiative cannot extend to administrative matters (Order at 12). And it agreed that issuing a license is an administrative matter (Order at 12). However, the lower court found that, "Since Initiative 69 does more than merely address administrative concerns, it would be deemed to be ‘legislative.’" (Order at 12). In order words, the lower court came to the illogical conclusion that, although an initiative cannot address administrative matters, the initiative in question can violate that absolute prohibition and address administrative matters because it also addresses certain legislative matters. Under this logic, if the City Council wished to assume the administrative authority and powers of the mayor, which it would normally be forbidden to do, it could evade that prohibition simply by writing a bill that addressed legislative matters in addition to those administrative matters.

38. The lower court also argued that the usurpation of the mayor’s authority does not make the initiative an improper subject for an initiative because the Attorney General, in his analysis, failed to recognize that it was a problem (Order at 12, 13). As argued above, the failure of the Attorney General’s analysis to recognize a problem with the initiative, in this instance the fact that it usurps executive authority and is thus an improper subject for an initiative, does not mean that this court should ignore it if a more thorough and complete analysis does recognize the issue.

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

CONCLUSION

40. The BOEE should have rejected the proposed initiative because it is not a proper subject for an initiative in the District of Columbia for three reasons: 1) it seeks to overturn, amend, or repeal a federal law, which is contrary both to the Home Rule Act and the Constitution; 2) it seeks to appropriate funds by mandating governmental programs and not making those programs subject to appropriations; and 3) it encroaches upon and usurps mayoral authority, contrary to the provisions of the Home Rule Act, by mandating an administrative action -- the licensing of a gambling casino -- that is a mayoral prerogative and is not within the purview and powers of legislation.

41. The appellants request the Court to find that the proposed initiative is not a proper subject for an initiative; to reverse the decision of the lower court; to direct the Board to reject the proposed initiative, and to grant further appropriate relief.

Respectfully submitted,

Dorothy Brizill, pro se
Thelma Jones, pro se
Anthony Muhammad, pro se

July 17, 2006

CERTIFICATE OF SERVICE

I hereby certify that I did, this day, July 17, 2006, personally deliver a copy of this brief of appellant to

Kenneth McGhie, General Counsel
District of Columbia Board of Elections and Ethics
441 4th Street, NW, Suite 250
Washington, DC 20001

and to

Jeffrey D. Robinson, Esq. (legal counsel to Barry Jerrels)
Baach Robinson & Lewis, PLLC
1201 F Street, NW, Suite 500
Washington, DC 20004-1225

Dorothy Brizill

Dorothy Brizill, Thelma Jones, and Anthony Muhammad Brizill v. District of Columbia Board of Elections and Ethics, et al. Brief of Appellant, D.C. Court of Appeals July 17, 2006

District of Columbia Court of Appeals

BRIEF OF APPELLANT

TABLE OF CONTENTS

JOINT APPENDIX

TABLE OF AUTHORITIES

STATEMENT OF ISSUES

STATEMENT OF FACTS

ARGUMENT

AN INITIATIVE IN THE DISTRICT OF COLUMBIA MAY NOT OVERTURN A FEDERAL LAW

THE INITIATIVE APPROPRIATES FUNDS

THE INITIATIVE ENCROACHES UPON MAYORAL AUTHORITY AND THEREFORE CONFLICTS WITH THE HOME RULE ACT

CONCLUSION

CERTIFICATE OF SERVICE

Dorothy Brizill, Thelma Jones, and Anthony Muhammad
Brizill v. District of Columbia Board of Elections and Ethics, et al.
Brief of Appellant, D.C. Court of Appeals
July 17, 2006

District of Columbia
Court of Appeals