Back to Video Lottery Terminal Gambling Initiative of 2006 main page
|
Columns DCWatch
Archives Elections Government and People Budget issues Organizations |
No. 06-CV-686 IN THE DISTRICT OF COLUMBIA COURT OF APPEALS DOROTHY BRIZILL THELMA JONES ANTHONY MUHAMMAD, Appellants, v. DISTRICT OF COLUMBIA BOARD OF ELECTIONS AND ETHICS, Respondent, and BARRY JERRELS and CITIZENS FOR THE VLT INITIATIVE OF 2006, Intervenor/Defendants. Appeal from the Superior Court of the District of Columbia Civil Division INTERVENOR/DEFENDANTS' RESPONSE TO BRIEF OF APPELLANTJeffrey D. Robinson, Esq. (Bar No. 376037)* Deborah Deitsch-Perez, Esq. LIST OF PARTIES1. Appellant Dorothy Brizill, Pro Se
1327 Girard Street, N.W. Washington, D.C. 20009 TABLE OF CONTENTS
LIST OF PARTIES
TABLE OF AUTHORITIESCASESAm. Council of Life Ins. v. District of Columbia, 645 F.
Supp. 84 (D.D.C.1996) STATUTESFederal15 U.S.C. § 1171 et seq. District of ColumbiaD.C. Code § 1-1001.16 LEGISLATIVE MATERIAL96 Cong. Rec. 13643 No. 06-CV-686 DOROTHY BRIZILL, THELMA JONES, ANTHONY MUHAMMAD, Appellants, DISTRICT OF COLUMBIA BOARD OF ELECTIONS AND ETHICS, Respondent, and BARRY JERRELS and CITIZENS FOR THE VLT INITIATIVE OF 2006, Intervenor/Defendants. Appeal from the Superior Court of the District of Columbia Civil Division INTERVENOR/DEFENDANTS' RESPONSE TO BRIEF OF APPELLANTISSUES PRESENTED1. Does the Home Rule Act permit the District of Columbia to legislatively exempt itself from certain provisions of the Johnson Act? 2. Is a measure that proposes a new program, without mandatory funding, a "proper subject" for initiative? 3. May legislation contain specific guidelines for the granting of a license without improperly encroaching upon executive power? STATEMENT OF THE CASEThe subject of this appeal is the Superior Court's affirmance of the decision of the Board of Elections and Ethics ("the Board") that the Video Lottery Terminal Gambling Initiative of 2006 ("Initiative 69") meets the statutory requirements to be a "proper subject" of an initiative. In reaching its determination that Initiative 69 met the "proper subject" requirement, the Board complied with all of the procedural requirements of the relevant statutes, going out of its way to ensure that all parties had notice and ample opportunity to be heard. The Board also carefully considered and properly rejected each of the arguments now raised by Plaintiffs. The Superior Court recognized that the Board acted correctly when it granted the motions to dismiss Plaintiffs' complaint filed by the Board and intervenors Barry Jerrels and the Citizens' Committee for the VLT Initiative of 2006 ("the Citizens' Committee"). The Superior Court set out the basis of its decision in a well reasoned 13-page opinion that addressed each of Plaintiffs' arguments. It is that ruling that Plaintiffs now seek to overturn. STATEMENT OF FACTSOn April 10, 2006 Mr. Jerrels filed the Video Lottery Terminal Initiative of 2006 with the Board complying with all the requirements of D.C. Code § 1-1001.16.1 The Board published the proposed initiative in the District of Columbia Register dated April 21, 2006 and stated its intention to consider the initiative at its regularly scheduled meeting on May 3, 2006.2 At that meeting, the Board heard from Initiative 69's proponent, each of the challengers, and other public and government witnesses. The Board also considered written submissions from the District of Columbia Attorney General and the General Counsel of the District of Columbia Chief Financial Officer.3 On the basis of the full record before it, the Board concluded that the proposed initiative was a "proper subject." In so doing, the Board carefully considered and addressed each of the contentions that the initiative was not a proper subject. Specifically, the Board found that (1) the proposed initiative did not violate the Home Rule Act by purporting to overturn a federal law of general applicability - the Johnson Act, 15 U.S.C. §§ 1171 et seq.; (2) the proposed initiative did not violate the prohibition on appropriating funds or invade the budget authority of the Mayor and District of 'Columbia Council (Council); and (3) the proposed initiative's provisions prescribing the granting of the temporary initial VLT license did not violate the separation of powers inherent in the District's governmental structure.4 As required by the statute, the Board published its decision approving the proposed initiative as a proper subject and approving a Short Title and Summary Statement in the District of Columbia Register on May 12, 2006.5 The suit that is the subject of this appeal was filed by Plaintiffs on May 22, 2006 - the last day of the statutorily provided challenge period. In their complaint, Ms. Brizill, Ms. Jones, and Mr. Muhammad argued that the Board's decision should be overturned for four reasons:
On May 23, 2006, Mr. Jerrels and the Citizen's Committee filed a motion to intervene in the suit as defendants, a motion to expedite the Superior Court's consideration of the suit, and a motion to dismiss the complaint. On May 25, 2006, the Board also filed a motion to dismiss. The Superior Court granted the motion to intervene and the motion to expedite on May 30, 2006. On June 8, 2006, the Superior Court granted the motions to dismiss.6 On June 13, 2006, Plaintiffs filed this appeal, challenging the lower court's rulings on issues two through four above.7 SUMMARY OF ARGUMENTThe Superior Court's decision rejecting each of Plaintiffs' challenges to Initiative 69 was sound and should be affirmed by this Court for several reasons. First, the Johnson Act provisions upon which Plaintiffs rely are precisely the type of "local legislation" that Congress authorized the Council to modify, limit or repeal by enacting the Home Rule Act. Moreover, in the 1962 amendments to the Johnson Act, Congress specifically granted the District of Columbia the authority to exempt itself from the Johnson Act's prohibitions. Second, this Court has long recognized that an initiative that authorizes a new program but does not mandate specific funding for the program, impact an existing Budget Act, or otherwise burden the Mayor and Council's authority to allocate funds does not run afoul of the prohibition against an initiative appropriating funds. Any other holding would render the right of District of Columbia citizens to enact legislation by means of initiative meaningless. Finally, the legislative establishment of specific and detailed requirements for the granting of a license does not improperly encroach upon the authority of the Executive in violation of the principles of separation of powers inherent in the District's form of government. ARGUMENTI. STANDARD TO BE APPLIEDThe Board is charged with determining whether a proposed measure is a proper subject for an initiative based on certain enumerated grounds.8 It is a basic principle of administrative law that courts defer to administrative agencies with respect to matters in the agencies' jurisdiction and with respect to interpretations of the agencies' governing statute, rules and regulations.9 This Court has recognized that such deference by the trial court is appropriate with respect to the decisions of the Board.10 Thus, the Superior Court "must defer to the Board and may not substitute [its] own interpretation unless the [Board's] construction is clearly erroneous."11 Likewise, although this Court is the final authority on issues of statutory construction, it "must defer to an agency's interpretation of the statute which it administers . . . so long as that interpretation is reasonable and consistent with the statutory language. The agency's interpretation, therefore, is controlling unless it is plainly erroneous or inconsistent with the statute.12 In other words, this court should "not disturb the agency's decision if it flows rationally from the facts which are supported by substantial evidence in the record."13 In this case, both the Board and the lower court carefully and correctly reviewed and dismissed each of Plaintiffs' challenges. The Board's determinations with respect to these matters are entitled to deference from this Court. II. INITIATIVE 69 DOES NOT CONTRAVENE THE HOME RULE ACT'S PROHIBITION ON LEGISLATION AMENDING OR MODIFYING ACTS OF CONGRESS THAT ARE NATIONAL IN SCOPEPlaintiffs argue that Initiative 69 is not a "proper subject" because it contravenes the Home Rule Act's prohibition against legislative enactments that amend or repeal Congressional enactments of national scope. That argument is premised upon a fundamental misunderstanding of the statute at issue, the Johnson Act, 15 U.S.C. §§ 1171 et seq.14 The provisions of the Johnson Act upon which Plaintiffs rely are precisely the type of "local" legislation that Congress empowered the District of Columbia to modify or repeal when it granted limited Home Rule in 1973. Moreover, in the 1962 amendments to the Johnson Act, Congress explicitly granted the District of Columbia the authority to exempt itself from that Act's prohibitions on the transportation of gambling devices. A careful reading of the Johnson Act and its legislative history demonstrates that Initiative 69 is well within the legislative authority granted to the District, and that the measure is a "proper subject" of an initiative. A. The District of Columbia Has Legislative Authority to Amend or Modify Acts of Congress That Are Local Rather Than National In ScopeWhen Congress granted the District limited Home Rule in 1973, it granted the Council extensive legislative authority over local affairs.15 Congress specifically noted its intention "to the greatest extent possible, consistent with the constitutional mandate, [to] relieve Congress of the burden of legislating upon essentially local District matters."16 That grant was restricted only by certain explicit limitations,17 made subject to Congress' right to review legislation proposed by the District,18 and constrained by Congress' retention of concurrent authority to act directly as the legislature for the District.19 Among the limitations on the legislative authority of the District was an explicit prohibition on enacting any legislation "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."20 It is this provision upon which Plaintiffs rely in their argument. The restriction on amending or repealing acts of national applicability placed the District in the same position as states and territories in that it could not alter national laws. However, Congress did not limit the District's ability to amend or repeal acts of Congress that apply only locally. Had it done so, the District's newly granted legislative authority would have been meaningless because since the existing laws governing the District were primarily Congressional enactments. For example, the Council (and Citizens by Initiative) cannot repeal the Sherman Act. However, as long as the Congressional act in question is limited to the District, the Council may enact legislation to amend or repeal it. In determining whether proposed legislation would contravene D.C. Code § 1206.02(a)(3), courts consider whether, in enacting the federal law in question, Congress was acting as the national legislature or as the local legislative body for the District.21 This common sense approach has been consistently applied in cases upholding proposed legislative measures against challenge under the Home Rule Act.22 The result should be no different here. Plaintiffs' argument that Initiative 69 violates § 1-206.02(a)(3) relies upon a studied misreading of the statute. In fact, Plaintiffs' interpretation of the statute ignores its plain meaning of the sentence.23 According to Plaintiffs, § 1-206.02(3) provides that the Council cannot enact legislation which does any one of three things: 1) amend or repeal an act of Congress; 2) deal with property or functions of the United States; or 3) apply to any jurisdiction outside of the District.24 But that is not how the statute is written. Rather, it is written to restrict the Council's ability to pass legislation that either 1) deals with functions or property of the United States or 2) amends on that repeal an act of Congress that applies to a jurisdiction outside of the District.25 Under Plaintiffs reading of the Home Rule Act, the District would be powerless to amend or modify any of the statutes in existence at the beginning of Home Rule as they were all the legacy of Congress' historic role as the local legislature for the District of Columbia. This is clearly not the case.26 Nor is Plaintiffs' attempted distinction between acts codified in the U.S. Code and those in the D.C. Code persuasive. The Home Rule Act does not limit the Council's powers to only to those laws found in the D.C. Code.27 No court has ever relied upon this distinction, and the two cases Plaintiffs rely upon for this proposition do not so hold.28 In McConnell, this Court held that the District's Uniformed Controlled Substances Act could not and did not repeal the federal Narcotic Addicts Rehabilitation Act, not because that act was contained in the U.S. Code, but because that act was national in scope.29 Likewise, in District of Columbia v. Greater Wash. Central Labor Council,30 this Court noted that the Council would not have been able to repeal a workman's compensation act that was national in scope, but that it was well within its powers to repeal an act that applied solely to the District.31 The fact that the repealed act was codified in the D.C. Code rather than the U.S. Code was not even discussed.32 Likewise, Plaintiffs' claim that the lower court's ruling conflicts with the holding of Marijuana Policy Project v. United States33 is incorrect. In that case, Congress passed a specific law, the Barr Amendment, that added marijuana penalties to the list of subjects over which the District did not have legislative power.34 This law was enacted after the passage of the Home Rule Act, in which Congress specifically reserved to itself the power to enact legislation for the District on any subject, including subjects within the scope of the legislative power it had granted to the District.35 The Barr Amendment was simply an exercise of that reserved power.36 The reserved power to enact future legislation does not equate to a finding that legislation passed prior to the passage of the Home Rule Act, such as the Johnson Act, may not be amended or repealed by the District.37 If Marijuana Policy Project is read as Plaintiffs suggest,38 the District could never legislate on any subject that was acted on by Congress during the period that Congress had primary legislative authority over the District, and the Home Rule Act would be meaningless. B. Section 5 of the Johnson Act, 15 U.S.C. § 1175, is "Local" Legislation Subject to Amendment or Repeal by the District of ColumbiaThe Johnson Act generally proscribes the interstate
transport of "gambling devices" as that term is defined in the
statute. However, it also provides that any State, including the
District of Columbia and other specified territories, may enact a law
exempting itself from this Plaintiffs concede that the general provisions in the Johnson Act permit the exemption from the Act that would be accomplished by Initiative 69 and that those provisions cannot serve as a basis for finding that the measure is not a "proper subject."40 Instead, Plaintiffs rely upon another provision in the Johnson Act, § 1175(a), to argue that the District is precluded from exercising its right to exempt itself from the prohibition on the transportation of gambling devices. Section 1175(a) makes it "unlawful to . . . transport, possess or use any gambling device in the District of Columbia" or in other jurisdictions over which Congress has specific legislative control. Plaintiffs claim that this section, rather than the prior sections, controls the District in this regard. Plaintiffs' argument fails, however, because section 1175(a) is precisely the type of "local" legislation that Congress empowered the District of Columbia to amend or repeal. By its terms, section 1175(a) applies only to the District of Columbia; Indian Country, and places within the maritime or territorial jurisdiction of the United States - those places where, in 1951, Congress acted as the local legislature. Review of the legislative history of this provision makes it even clearer that in enacting this restriction, Congress was acting as a local legislature. The drafters of the original Gambling Devices Act of 1951 - from the Department of Justice to the Act's proponents in the House and Senate - repeatedly emphasized that section 5 of the legislation42 was created to handle those territories where the Federal Government had direct responsibility for the creation and enforcement of the criminal laws. Repeating an often cited explanation for why a District of Columbia-specific provision in the Act was included, Herzel H. E. Plaine of the Department of Justice, testified at a hearing:
This history further informs the already clear language of 15 U.S.C. § 1175(a) to make it crystal clear that Congress was acting in its role as a local legislature - where it had both `jurisdiction and responsibility"44 -- complete when it enacted this measure in 1951. As such, the District of Columbia is acting well within its authority under the Home Rule Act to modify this "anti-gambling code for the District of Columbia"45 to allow the video lottery terminals contemplated by Initiative 69. C. The 1962 Amendments to the Johnson Act Authorize the District of Columbia to Exempt Itself from All of the Acts Prohibitions on the Transportation of Gambling DevicesEven if the Court concludes that the District of Columbia does not have authority under the Home Rule Charter to amend or modify 15 U.S.C. § 1175(a) because that provision is not local legislation, it should permit Initiative 69 to proceed because the Johnson Act specifically authorizes the District of Columbia to exempt itself from all of the Acts prohibitions on the transportation of gambling devices. In 1962, the Johnson Act was amended to provide specifically that the term "State" includes the District of Columbia.\ That amendment was made so that the District would be placed in the same position as the states and territories. Plaintiffs' argument would render the 1962 amendment meaningless .as applied to the key provision allowing states, territories, and the District of Columbia to exempt themselves from the Acts' prohibitions. While the District of Columbia had not obtained Home Rule
in 1962, it did have a history of authority to enact local legislative
measures. The District of Columbia had been administered as a municipal
corporation overseen by three appointed commissioners - two civilians
and one from the military corp of engineers.47 Over time, Congress
delegated to this Board of Commissioners substantial administrative and
quasi-legislative authority, including additional grants of authority
between 1951, the date of the original Gambling Devices Act, and 1962,
when 15 U.S.C. 1171(b) was amended to include the District of Columbia.48
The Supreme Court recognized and legitimated the District's exercise of
local legislative authority in its 1953 decision affirming the District
of Columbia's relationship with Congress as similar to that of any other
Territory.49 It was against this background that the 1962 Amendments to
the Johnson Act The original draft of the Gambling Devices Act of 1951, as proposed by the Attorney General's Office and ratified by the Senate, did not include a provision broadening "State" to include certain specified federal territories.50 In the subsequent floor debate in the U.S. House of Representatives, the legislation was amended to add this provision - expanding "State," for purposes of the Act, to include Alaska, Hawaii, Puerto Rico, the Virgin Islands, and Guam.51 The Senate then approved the newly amended bill with the express understanding of Senator Johnson - the Senate Chairman to whom the "Johnson Act" eponymously refers - that this provision granted the specified non-State jurisdictions equal right to become exempt from the Act.52 It was to this provision, placing the "Territories in exactly the same position as the individual States," that the District of Columbia was explicitly added as an non-State entity with equal right to exempt itself by the 1962 amendments.53 Treating the District of Columbia the same as any other Territory - as the Supreme Court had emphasized in its 1953 decision54 - was an essential element in the formulation of the language of the 1962 amendments to 15 U.S.C. 1171(b). In a letter to the Committee Chairman, A. Fernos-Isem, Resident Commissioner of Puerto Rico, argued for the inclusion of the District, as well as other Territories, in the 15 U.S.C. 1171(b) exemption:
Chairman Harris responded to this letter by stating "I have discussed this matter with the staff and have brought your letter to the staff's attention. It is my understanding that your proposal with regard to legislative language is very desirable and this committee will certainly make an effort to give careful consideration to the question you have raised in connection with any legislation coming before this committee."56 This history evidences the clear Congressional intent to place the District in the same position as the states and the Territories with respect to the prohibition on the transportation of gambling devices. Plaintiffs' interpretation of this Act would make the District the only jurisdiction without authority to decide for itself whether to allow such devices. That result was not the intent of Congress in passing either the Johnson Act or in the Home Rule Act. III. THE INITIATIVE DOES NOT UNLAWFULLY APPROPRIATE FUNDSIt is well established that a proposed initiative that invades the authority of the Mayor or the Council with respect to the District of Columbia budget either by appropriating funds or affecting an existing budget act is not a "proper subject" and must be rejected.57 Plaintiffs seek to convert this established principle which serves to shield the District's complex, multi-partied budget process58 from disruption by the initiative process into a sword that would eviscerate the citizens' right to enact measures by popular vote. If Plaintiffs' argument was to prevail, citizens in the District of Columbia would be precluded from ever establishing a new program, or enhancing an old one, or requiring the District government to take any affirmative action, because any government program or action requires funding. Fortunately, this Court's prior rulings preclude such an initiative-crippling interpretation of District law. In Convention Center Referendum Committee v. D.C. Board of Elections, this Court "conclude[d] that the `laws appropriating funds' exception does not preclude initiatives (1) to establish substantive authorization for a new project. ..."59 The Court reached that conclusion after a careful analysis of the legislative history of D.C. Code § 1-1001.16(b)(1), and based upon an understanding of the recognized difference between an act authorizing a program and one appropriating funds. As the Court recognized, the distinction between the authorization of programs and the authorization of expenditures was discussed at length when the "laws appropriating funds" amendment to the initiative process was introduced and passed by the Council.60 When concern was expressed about a broad initiative requiring the Council to seek funding, "[p]roponents of the amendment responded by distinguishing sharply between the power to authorize a substantive program, which the initiative right would confer on citizens, and the power to authorize expenditures, which the amendment explicitly reserved to the Council and Congress."61 This Court in Hessey v. District of Columbia Board of Elections and Ethics further explained the "appropriate funds" limitation on the power of initiative. In Hessey, the Court found that proposed initiatives were not "proper subjects" because they restricted the Council's authority to allocate funds by placing amounts in trust funds, the use of which was limited to specified purposes.62 However, in reaching that conclusion, the Court reaffirmed that, so long as the authority to allocate funds is not impinged, the "initiative right to propose authorizing legislation that the Council could enact is essentially unfettered.63 If passed, Initiative 69 will authorize a new program to be run by the Lottery Board. It will be up to the District of Columbia Council, the Mayor, and the Congress to determine whether and how much to fund the cost of administering the program, as is the case whenever authorizing legislation is enacted. As the District of Columbia Attorney General noted in his comments to the Board, which found that Initiative 69 a "proper subject":
Plaintiffs rely on District of Columbia Board of Elections & Ethics & District of Columbia Campaign for Treatment v. District of Columbia65 in an effort to avoid the clear import of Convention Center Referendum Committee and Hessey.66 That effort fails. As the Court's recital of the history of the initiative at issue in Campaign for Treatment reveals, the initiative at issue in that case was a transparent attempt to convert a measure that was not a "proper subject" into one that met the requirement.67 The initiative's proponents did so by converting a measure that established a special fund and directed how the amounts in the fund should be spent into one that mandated certain treatment and precluded incarceration of offenders who had not received such treatment.68 The Court saw through the effort and held that the measure so burdened the Mayor and Council's exercise of their budget authority, through its mandatory treatment requirements and serious consequences for failure to provide the treatment, that it ran afoul of the "appropriating funds" prohibition. Initiative 69 creates no such burden on the Mayor and Council's exercise of budget authority. No mandatory government program is established. Moreover, as the comments of Attorney General Spagnoletti reflect, no one would be able to require the Council to appropriate funds. If no appropriation were made, the Lottery Board would simply not engage in the activities authorized by the initiative. Read together, Convention Center Referendum Committee, Hessey and Campaign for Treatment provide clear guidance on the appropriate scope of an initiative in the budget and appropriations process. Initiatives are proper when they authorize programs and that right is "essentially unfettered" so long as the measure does not (1) purport to fund the authorized program; (2) enable private citizens to compel funding of the program through a lawsuit; or (3) burden the Mayor and Council's right to allocate funds through the establishment of mandates and adverse consequences when those mandates are not met. Initiative 69 does not run afoul of any of those limitations and, accordingly, does not violate D.C. Code § 1-1001.16(b)(1) by appropriating funds. IV. THE LICENSING PROVISIONS DO NOT VIOLATE THE SEPARATION OF POWERS PRINCIPLES INHERENT IN THE DISTRICT OF COLUMBIA CHARTERPlaintiffs' final argument is that the provisions of the Initiative 69 regarding the award of the temporary initial VLT license are an improper legislative encroachment on the Executive's authority to administer the law. Plaintiffs argue that the specificity in the standards set out in the provisions concerning the award of the temporary initial VLT license set forth in § 4 of the proposed law 69 violates the separation of powers principles inherent in the District of Columbia's form of government. This argument is based upon an incorrect understanding of the separation of powers principles. In Biodiversity Associates v. Gables,70 the United States Court of Appeals for the Tenth Circuit considered whether mere specificity in standards could violate separation of powers requirements. The Court held that "when Congress is exercising its own powers with respect to matters of public right, the executive role of 'tak[ing] Care that the Laws be faithfully executed' is entirely derivative of the laws passed by Congress, and Congress may be as specific in its instructions to the Executive as it wishes. Indeed, as the Supreme Court has noted, Congress may even pass legislation governing a `legitimate class of one."'71 In reaching that conclusion, the Tenth Circuit conducted an in-depth review of the relevant Supreme Court precedent and found that "[t]here is no basis, however, for [Plaintiffs'] assertion that the sheer specificity of the 706 Rider takes it beyond the realm of Congress's legislative powers. Certainly the cases cited above do not support this position."72 Similarly, here, the specificity of the licensing requirements does not improperly encroach upon executive power. The real question in determining whether separation of powers requirements have been violated is whether the provision in question is legislative or administrative. In Convention Center Referendum Committee v. District of Columbia Board of Elections and Ethics,73 the Court identified the test as "whether the proposition is one to make new law or execute a law already in existence."74 In later discussing that very distinction in the course of holding that an initiative would not impermissibly intrude on administrative discretion, this Court stressed that the courts "are required to construe the right of initiative liberally and may impose on the right ,only those limitations expressed in the law or clearly and compellingly implied. "75 The provisions plaintiffs challenge clearly fall on the legislative side of this divide. The provisions regarding the temporary initial VLT facility license set forth the standards to be applied in awarding that license. While those standards are admittedly detailed, they do not purport to direct the executive with respect to how it should exercise its authority under an existing law. Accordingly, this initiative does not improperly encroach the powers of the Executive. CONCLUSIONNone of Plaintiffs' arguments that the Initiative 69 is improper hold up under scrutiny. The Johnson Act specifically allows the District to exempt itself from its provisions; the proposed initiative does not appropriate funds; and the licensing requirements do not infringe upon executive power. Accordingly, the decision of the Superior Court must be affirmed. Respectfully submitted, Jeffrey D. Robinson, Esq. (Bar No. 376037) Deborah Deitsch-Perez, Esq. CERTIFICATE OF SERVICEI hereby certify that a copy of the foregoing Intervenor/Defendants' Response To Brief Of Appellant was served via Federal Express hand on this the 16th day of August, 2006, upon the following: Dorothy Brizill Thelma Jones Anthony Muhammad Kenneth McGhie, General
Counsel 1. An earlier version of the initiative was filed on March 14, 2006. That version was withdrawn by Mr. Jerrels prior to the hearing scheduled for April 5, 2006 to address concerns expressed by the General Counsel of the District of Columbia Council. The General Counsel raised three substantive concerns with the proposed initiative: (a) it mandated the collection of a 25% usage fee, (b) it required a two-thirds vote of the Council to approve additional VLT Facilities, and (c) it did not clearly provide that the initial VLT Facility was subject to the zoning and other laws of the District of Columbia. Letter from the General Counsel of the District of Columbia Council dated April 4, 2006, Joint Appendix ("A.") 8. Each of these concerns was addressed in the revised Initiative filed April 10. 2. A.15. 3. The Attorney General had previously submitted comments regarding the March 14 filed proposed initiative, (See A.7) and supplemented those comments in a letter filed April 18, 2006 with respect to the revised Initiative filed April 10, (See A.12). In each of his letters, the Attorney General concluded that the proposed initiative satisfied the "proper subject" requirement. 4. During its meeting, the Board also rejected the following arguments: (1) that the proposed initiative is improper because it was not consistent with alternative proposals under consideration for the use of the site designated for the initial VLT facility; (2) that the initiative improperly appropriates funds because it contains non-binding recommendations concerning how any funds should be distributed; and (3) that the merits of the proposed law be considered in making the proper subject determination. In addition the Board rejected the suggestion by one challenger that it impose extra legal conditions on the proponent as a condition of approving the initiative as a proper subject. 5. A.15. 6. A.1. Plaintiffs initially sought a stay of the Superior Court's decision rejecting their challenge by motion filed June 12, 2006. The Superior Court rejected that request by Order dated June 13, 2006. This Court also rejected Plaintiffs request for a stay by Order dated June 15, 2006. 7. Plaintiffs did not appeal the Board's determination that it was entitled to consider whether the initiative was a proper subject and to review the short title and summary statement at the same hearing. 8. See D.C. Code § 1-1001.16 (2001). 9. See Franklin v. D. C. Dept of Employment Servs., 709 A.2d 1175, 1176 (D.C. 1998). 10. See Pendleton v. D.C. Bd. of Elections & Ethics, 449 A.2d 301, 307 (D.C. 1982). 11 Id. (citing Goto v. D.C. Bd. of Zoning, 423 A.2d 917,924 (D.C. 1980)). 12. District of Columbia v. Davis, 685 A.2d 389, 393 (D.C. 1996) (internal quotation omitted). 13. Oubre v. D.C. Dep't of Employment Servs., 630 A.2d 699, 702 (D.C. 1993). 14. See also Gambling Devices (Johnson) Act, Pub. L. No. 81-906, 64 Stat. 1134 (1951) (codified as amended at 15 U.S.C. § 1171-8 (2000)). 15. D.C. Code § 1-203.02. 16. D.C. Code § 1-201.02. See Techworld Dev. Corp. v. D.C. Pres. League, 648 F. Supp. 106, 113 (D.D.C. 1986) ("As Senator Eagleton stated: I believe it is not in the interest of this body, nor is it in the interest of the citizens of the United States we are elected to represent, or even of the citizens of the District of Columbia, that the time of the United States Senate be spent preparing, holding hearings, considering and debating matters that are purely local in nature.") (citing legislative history). 17. D.C. Code § 1-206.02. 18. D.C. Code § 1-206.02(c). 19. D.C. Code § 1-206.01. 20. D.C. Code § 1-206.02(a)(3). 21. McConnell v. United States, 537 A.2d 211, 215 (D.C. 1988). 22. See District of Columbia v. Greater Wash. Cent. Labor Council, 442 A.2d 110 (D.C. 1982) (Federal Workers' Compensation Act of 1928, which extended coverage under the Longshoremen's Act to private employees in the District, was a purely local law despite being administered by the U.S. Labor Department); Am. Council of Life Ins. v. District of Columbia, 645 F. Supp. 84 (D.D.C. 1986) (District's Prohibition of Discrimination in the Provision of Insurance Act, which banned discrimination on the basis of AIDS, did not violate the D.C. Home Rule Act because it only applied to insurers doing business in the District); Techworld Dev. Corp. v. D.C. Pres. League, 648 F. Supp. 106 (D.D.C. 1986) (Council did not violate the Home Rule Act when it closed a street and transferred title to federal government property to a developer); Dimond v. District of Columbia, 618 F. Supp. 519 (D.D.C. 1984) aff'd in part and rev'd in part on other grounds, 792 F.2d 179 (D.C. Cir. 1986) (District law requiring residents to obtain out-of-state insurance coverage did not violate Home Rule Act). 23. See Plaintiffs' Brief at 7. 24. Id. 25. id. 26. This misunderstanding explains Plaintiffs critique of McConnell. Plaintiffs' Brief at 8. In McConnell, this Court noted that a voter initiative could not enact a law that would "amend or repeal any Act of Congress ... which is not restricted in its application exclusively in or to the District." 537 A.2d at 214. Although they do not expressly say so, Plaintiffs tacitly acknowledge that their position would require this Court to disavow much of its ruling in McConnell. 27. See D.C. Code § 1-206.02(3). 28. Plaintiffs' Brief at 10. 29. 537 A.2d at 214. 30 442 A.2d 110. 30. 442 A.2d 110. 31. Id. at 116 ("Congress intended ... to withhold from local officials the authority to affect or to control decisions made by federal officials in administering federal laws that are national in scope as opposed to laws that relate solely to the District of Columbia. We are not persuaded that Congress intended that performance of a local function by federal officials prior to the Self-Government Act would transform the function into a `function of the United States."'). 32. See generally id. at 116-117. 33. 304 F.3d 82 (D.C. Cir. 2002). 34. Id. at 84. The Barr Amendment was challenged on First Amendment grounds, not on the grounds that it violated the Home Rule Act. 35. D.C. Code § 1-206.01. 36. See Marijuana Policy, 304 F.3d at 84-85. 37. See Greater Wash., 442 A.2d at 116 ("We are not persuaded that Congress intended that performance of a local function by federal officials prior to the Self-Government Act would transform the function into a `function of the United States."'). 38. Plaintiffs' Brief at 8-9. 39. 15 U.S.C. § 1172(a). 40. Plaintiffs' Brief at 6 ("Brizill would agree [based solely upon those sections] that the Council or an initiative would be able to pass a law legalizing the transportation, possession, and use of gambling devices."). 41. 15 U.S.C. § 1175(a). The other jurisdictions are Indian country as defined in 18 U.S.C. § 1151, possessions of the United States, and places within the United States' maritime or territorial jurisdiction. See H.R. Rep. No. 81-2769, at 10 (1950), as reprinted in 1950 U.S.C.C.A.N. 4240, 4250 (letter from J. Howard McGrath, Attorney General, to Robert Crosser, Chairman, Comm. On Interstate and Foreign Com.) (explaining that this section prohibits the use of gambling devices "in places under the exclusive or concurrent jurisdiction of the Federal Government"). 42. Codified as 15 U.S.C. § 1175. 43. Gambling Devices: Hearing on S. 3357 and H.R. 6736 Before the H. Comm. on Interstate and Foreign Com., 81st Cong. 37-8 (1950) (statement of Herzel H. E. Plaine, Office of Assistant Solicitor General, Department of Justice) (emphasis added). See also id. at 5 (letter from J. Howard McGrath, Attorney General, to Robert Crosser, Chairman, Comm. on Interstate and Foreign Com.) ("Section 5 prohibits ... in places under the exclusive or concurrent jurisdiction of the United States); id. at 300 (statement of Drew J. T. O'Keefe, Special Assistant to the Attorney General) ("I feel it was the proper thing to do because if we are in effect saying that slot machines are an evil, I feel that they are not only an evil within the States but they are an evil within the jurisdiction of the Federal Government, too...."). See also H.R. Rep. No. 812769 at 1, as reprinted in 1950 U.S.C.C.A.N. 4240, 4240 ("In addition, the legislation prohibits ... in those parts of the United States which are under the jurisdiction of the Federal Government."); 96 Cong. Rec. 13643-4 (1950) (statement of Rep. Rogers) ("It just lends to these States, and there are some 44 States of this Nation that prohibits them, a little aid ....Of course, in those places where the Government has jurisdiction these devices are prohibited."). See also 96 Cong. Rec. 15108 (statement of Sen. Johnson) ("[A]s to Federal property, the bill does prohibit the possession or use of slot machines. Frankly, I cannot see how the Congress can prohibit the interstate shipping of devices ... and at the same time permit and encourage their operation on Federal territory. If such machines are bad, they are bad, and we have no business exempting Federal property from the bill."). See also Gambling Devices: Hearing on S. 3357 and H.R. 6736 Before the H. Comm. on Interstate and Foreign Com., 81st Cong. 250 (1950) (statement of Alfred Krebs, Counsel, National Federation of American Shipping) ("[A]s the report of the Attorney General points out, section 5 is designed to cover lands under the jurisdiction of the United States."). 44. 96 Cong. Rec. 13651 (1950) (statement of Rep. Heselton) ("I know that it is the opinion of the members of the committee that if we were going to do anything with this bill insofar as transportation is concerned, it was highly illogical for us to tolerate and exempt an operation under an American flag, where this Congress has jurisdiction and responsibility." (emphasis added)). 45. Gambling Devices: Hearing on S. 3357 and H.R. 6736 Before the H. Comm. on Interstate and Foreign Com., 81st Cong. 122 (1950) (statement of Dudley Ruttenberg, General Counsel, Coin Machine Institute) ("Section 5 is an additional antigambling code for the District of Columbia and for the various possessions of the United States."). 46. 15 U.S.C. § 1171(b). 47. See Organic Act of the District of Columbia, 20 Stat. 102 (1878). 48. See, e.g., Act of Jan. 26, 1887, 24 Stat. 368 (authorizing the Commissioners to "make, modify, and enforce usual and responsible police regulations" in ten areas of public administration - including "pawnbroking"); Act of Feb. 26, 1892, 27 Stat. 394 (authorizing the Commissioners to make and enforce all regulations "they may deem necessary for the protection of lives, limbs, health, comfort and quiet of all persons and the protection of all property within the District of Columbia"); Act of July 1, 1932, Pub. L. No. 72-237, 47 Stat. 550 (authorizing the Commissioners to grant or revoke licenses to "any business, trade, profession or calling in the District of Columbia"); District of Columbia Law Enforcement Act of 1953, Pub. L. No. 83-85, 67 Stat. 90 (placing among other things, a Commissioner on the Council on Law Enforcement in the District). See also Jones v. District of Columbia, 323 F.2d 306, 308 (D.C. Cir. 1963) (upholding a 1961 Congressional act allowing the D.C. Commissioners to create and administer fire regulations, and act in a "quasi-legislative capacity"); Filippo v. Real Estate Comm'n of D.C., 223 A.2d 268, 270 (D.C. 1966) (citing to historical discussion of the some of the "numerous other enabling clauses which give the Commissioners authority to make regulations to carry out specified congressional legislation"). 49. See District of Columbia v. John R. Thompson Co., 346 U.S. 100 (1953) (overturning an appellate opinion holding that unlike the Territories, D.C. government could only receive "municipal," not "general," legislative powers from Congress). 50. See S. 3357, 81st Cong. (as passed by Senate, April 19, 1950); Gambling Devices: Hearing on S. 3357 and H.R. 6736 Before the H. Comm. on Interstate and Foreign Com., 81st Cong. 1-3 (1950) (statement of Rep. Beckworth, Member, House Comm. on Interstate and Foreign Com.). 51. See 96 Cong. Rec. 13650 (1950). 52. See 96 Cong. Rec. 16701 (1950) (statement of Sen. Johnson) ("The House bill defines `State' to include Alaska, Hawaii, Puerto Rico, the Virgin Islands, and Guam. This places these Territories in exactly the same position as the individual States. Hence, the legislative assemblies of all States and Territories, would have the power to authorize the transportation of slot machines into such State or Territory. Prior to this change in the bill these Territories were treated like poor relatives with respect to this matter. They were not given the dignity to which they were entitled, and the provision in the House bill extends to them rights which they should have with respect to gambling services."). 53. See H.R. Rep. No. 87-1828, at 5 (1962), as reprinted in 1962 U.S.C.C.A.N. 3809, 3813 ("This section amends the definition of the term `State' in the first section of the Johnson Act to reflect the admission of the Union, as States of Alaska and Hawaii; adds the District of Columbia as an entity included in the term `State' when used in the act...."); see also id. at 13-4, as reprinted in 1962 U.S.C.C.A.N. 3809, 3821-22 (letter from Robert F. Kennedy, Attorney General, to Oren Harris, Chairman, H. Comm. on Interstate and Foreign Com.) ("Section 2 proposes to delete `Alaska' and `Hawaii' from paragraph (b) of section 1171, which includes certain geographical areas within the term `State' as it is used in this legislation and also proposes to include `the District of Columbia' within the term. This proposed amendment apparently is intended to update the Johnson Act and of course, is completely acceptable."). 55. Gambling Devices: Hearing on H.R. 3024, H.R. 8410, and S. 1658 Before the H. Comm. on Interstate- and Foreign Com., 87th Cong. 96 (1962) (letter from A. Fernos-Isern, Resident Commissioner, Puerto Rico, to Rep. Oren Harris, Chairman, H. Comm. on Interstate and Foreign Com.) (emphasis added). 56. Id. at 97. 57. See D.C. Code § 1-1001.16(b)(1). See also Hessey v. D.C. Bd. of Elections & Ethics, 601 A.2d 3 (D.C. 1991) (en banc); Convention Ctr. Referendum Comm. v. D.C. Bd. of Elections & Ethics, 441 A.2d 889 (D.C. 1981). 58. See, e.g., Spivey v. Barry, 665 F.2d 1222, 1225 (D.C. Cir. 1981) (describing the D.C. budget process as follows: "The Mayor prepares a detailed budget and submits it to the Council. The Council must approve it within 50 days, and may make amendments or supplements after public hearing on the entire budget. The Mayor may veto specific budget items, but the Council can override a veto if, within 30 days of the return of the vetoed act to the Council, two-thirds of the Council members present and voting vote to reenact the act. After the Council approves the budget, the Mayor transmits it to the President for approval. The President, after reviewing the budget, transmits it to Congress, where subcommittees of both the House and the Senate conduct hearings. The final budget must then be enacted as law by Congress and signed by the President." (citations omitted)). 59. 441 A.2d at 914. 60. Id. at 912. 61. Id. 62. 601 A. 2d. at 20-21. 63. Id. at 19. 64. Letter from D.C. Attorney General Robert Spagnoletti to Board General Counsel Kenneth McGhie dated March 20, 2006. A. 7 at page 3. 65. 866 A.2d 788 (D.C. 2005). 66. See Plaintiffs' Brief at 13. 67. 866 A. 2d at-790-l. 68. Id. 69. A. 15 at p. 4021. 70. 357 F.3d 1152 (10th Cir. 2004), cert. denied, 543 U.S. 817 (2004). 71. Id. at 1162 (citations omitted). 72. 1d. at 1161. 73. 441 A.2d at 874. 74. Id. 75. Hessey v. Burden, 584 A.2d 1, 3, 5-6 (D.C. 1990) (citations omitted) (holding that Board erred in determining that an initiative that created an administrative body to challenge valuations used for property taxes improperly intruded on the administrative authority of the Mayor to make such valuations). |
Send mail with questions or comments to webmaster@dcwatch.com
Web site copyright ©DCWatch (ISSN 1546-4296)
