Back to Video Lottery Terminal Initiative of 2006
Government and People
BEFORE THE BOARD OF ELECTIONS AND ETHICS
DISTRICT OF COLUMBIA
IN RE: PROPOSED VIDEO LOTTERY INITIATIVES OF 2006/2006(B)
OPPOSITION TO ISSUANCE OF PETITION
A. THE IDENTITY OF ACTUAL PROMOTER IN INTEREST OF INITIATIVE IS AT ISSUE
A recent article by Lori Montgomery in the Washington Post, Metro Section (B), page 1, published March 14, 2006, discloses the real party in interest in the proposed initiatives. In that .article, the following disclosures are made:
Such admission against interest by counsel for Scott and Jerrels, is conclusive evidence that both proposals constitute a fraud on this Board. Notwithstanding the March 14, 2006 Affidavit of Proposer, the real party in interest proponent of these initiatives is not Barry E. Jerrels. The real party in interest is Shawn A. Scott. As indicated in the Post article, Scott is apparently not a District of Columbia resident.
Accordingly, the measures should, be summarily rejected without further proceedings. Those persons who sought to perpetrate this fraud on this Board should be called to account. The Board should immediately convene an evidentiary hearing to determine, what, if any, penalty can and should be assessed. Further, at that hearing the Board should also determine what, if any, referrals should be made to the appropriate law enforcement authorities.
Such a hearing, if convened, will be the fourth proceeding before this Board caused by Mr. Scott or his associates and/or alter ego individuals and committees. A discussion of those proceedings follows.1
B. THE HISTORY OF SCOTT AND HIS ALTER EGOS BEFORE THIS BOARD IS PROLOGUE FOR THE PRESENT MEASURES
In the event the Board does not summarily reject these measures, the Board should take administrative notice of its own records of the prior three hearings and the outcome in each. Based thereon, the Board can then review these proposals in context with the past as prologue.
The first case was Citizens Committee for the D.C. Video Lottery Terminal Initiative v. District of Columbia Board of Elections and Ethics, and Ronald L. Drake, et al., 860 A.2d 813 (D.C. 2004) (Board of Elections and Ethics Administrative Hearing No. 04-020). That case resulted in the rejection of the 2004 slots initiative measure. The rejection was for a pervasive pattern of systemic fraud, false affidavits, false signings, and "serious violations of law that cast doubt on the validity of the signatures gathered permeated and polluted the petition drive operation conducted from the Red Roof Inn. . ." Id., at 826. it was a "petition drive process that was polluted with irregularities and improprieties." Id., at 827. There was a "general taint from the pollution of the system." Id., at 828.
The Board heard reports of intimidation and violence committed by Scott's agents and alter egos during preparation of the challenge. The Board was sustained on appeal.
The second hearing resulted from Scott and/or his alter egos circulation of unauthorized petitions without Board approval. on the already rejected 2004 proposed slots initiative. There the Board imposed a fine of approximately $100,000.00 against Scott's alter egos. The Board's hearing transcript should show that Scott and/or his off-shore alter egos provided the funds to pay that fine. Moreover, in addition to the fine, the Board imposed and Scott's alter egos accepted certain requirements if they again brought an initiative before this Board. Query, has Scott and/or his alter ego(s) complied with those Board imposed requirements?
The third hearing was Drake, et al., v. Citizens Committee for the D.C. Video Lottery Terminal Initiative of 1004, Administrative Hearing No. 05-002. That hearing resulted in the Board's imposition of a fine of $622,880.00 for the initial violations. See, Board of Elections July 29, 2005 Memorandum Opinion and order, at page 44. Neither Scott nor his alter egos have paid that $622,880.00 fine. See Washington Post, supra.
C. NECESSARY SAFEGUARDS AND REMEDIES IF SCOTT AND ALTER EGOS PERMITTED TO PROCEED
The effort to place slots before the District of Columbia electorate comes before this Board as a ghost from the past. That past is bad. That past is fraught with fraud. If the Board permits the measures to proceed, then, given that past as prologue, safeguards and remedies must be put in place before the petition is issued.
There must be safeguards against a repeat of the past systemic-fraud, false affidavits, false signings, a general taint from the pollution of the system, and serious violations of law that cast doubt on the validity of the signatures. Scott should not permitted to again cause the Board and the Court to expend substantial resources to address such conduct. Further, there must be safeguards against a repetition of intimidation and violence against potential challengers. A discussion of those proposed safeguards and remedies follows.
1. Appointment of District of Columbia Resident as Agent for Service of Process
In the foregoing Scott related proceedings, the Board was unable to obtain vital testimony due to its inability to issue process to reach the non-resident circulators and off-shore promoters. Further, Scott associates and circulators frustrated the effort of the Board and challengers to obtain that testimony. They absented themselves from the District of Columbia and the Board hearing room at those crucial times.
Accordingly, if the Board does issue the petition, then the Board should require Scott, his alter ego(s), and any out-of-state circulators, to appoint a District of Columbia resident as agent for service of process. The Board should issue notice a failure to appear after service of process on the resident agent for service of process, without good cause shown, will result in the Board's rejection of all petition signatures at issue.
2. Require Payment into Court Registry of Outstanding Fine Prior to Issuance of Petition
As already noted, the $622,880.00 fine remains unpaid. In fact, during the March 17, 2006 presentation of DC Politics Hour, commentator Jonetta Rose Barras called for emergency legislation to require payment of any outstanding fine prior to a proponent being permitted to circulate petitions. An alternative approach would be for the Board to require payment of the outstanding fine into the District of Columbia Superior Court Registry, to be held there pending the final outcome of the court proceeding on that fine.
Accordingly, the Board should on its own motion require payment of the outstanding fine into the Court Registry.
3. Remedy for Vital Testimony Unavailable Due to Assertion of Fifth Amendment Privilege
In the foregoing Scott related proceedings, numerous Scott circulators asserted the Fifth Amendment privilege. Thus, that vital testimony became unavailable due to the assertion of the privilege.
Accordingly, the Board should issue notice that the assertion of the privilege by Scott, his alter egos, agents and/or circulators in a Board proceeding will result in the Board's rejection of all petition signatures at issue.
4. Protection Against Intimidation and/or Violence Against Challengers
In the foregoing Scott related proceedings, the Board heard reports of intimidation and violence committed by Scott's alter egos and/or agents during preparation of the challenge. The. Board must not permit Scott's alter egos and/or agents to frustrate and chill any challenge by intimidation or violence.
Accordingly, the Board should issue notice that upon receipt of a verified complaint alleging intimidation or violence, the Board will immediately suspend the petition gathering process, and conduct an evidentiary hearing on that verified complaint. If the Board finds that Scott's agents, alter ego(s) and/or circulators, have engaged in intimidation and/or violence, then all signatures gathered up to that point should be rejected.
5. Training of Circulators
The Board has already imposed a requirement for training if Scott alter egos submitted further proposed initiatives. There is no indication that such training has been requested or received by Scott and/or his. alter egos.
Accordingly, the Board should issue notice that all circulators on behalf of the proponent in the petition gathering process must receive training by the Board. The Board should bar any person from commencing to circulate petitions until that person has satisfactorily completed that training.
6. Counsel Appearance Before Board
At the prior hearings Scott's counsel, who was not a member of the District of Columbia Bar, failed to enter an appearance to participate in the proceedings. Notwithstanding that failure, that counsel submitted a seemingly never-ending stream of apparent written instructions to counsel for the slots proponents. That intervention was so pervasive it seemed that such non-appearing counsel exercised in the hearing room de facto control of the proponents' presentation.
Accordingly, the Board should order that any counsel who is going to be involved in any hearings before this Board shall be required to enter an appearance. Such counsel should further be required to take all necessary steps to satisfy D.C. Bar requirements for such appearance.
7. Board Should Place Inspectors in Field to Monitor the Petition Circulation
Given the history of this issue, the Board should be proactive in this matter. The Board should not await a formal challenge before it. steps in to stop ongoing misconduct.
Accordingly, the Board should place inspectors in the field to monitor the petition gathering process. Upon discovery by an inspector of possible violations of law or this Board's requirements, the Board should immediately suspend the petition gathering process, and conduct an evidentiary hearing. If the Board finds that Scott's agents, alter ego(s) and/or circulators, have committed those violations, then all signatures gathered up to that point should be rejected.
8. Assessment and Escrow of Potential Costs and Expenses
The Board has incurred substantial costs and expenses and use of its resources as a result of the prior activities in the District of Columbia by Scott and/or his alter egos. With the past three experiences as prologue, it is likely that the Board will again incur substantial costs and expenses.
Accordingly, the Board should issue notice that upon a determination of wrongdoing in the petition process, all related costs and expenses incurred by the Board will be assessed against Scott and his alter egos, payable to the District treasury. To protect its potential claim for costs and expenses, prior to issuance of the petition the Board should order the proponent to place in escrow an amount reasonably calculated to defray the resultant increased costs incurred by the Board.
For all the foregoing reasons, the undersigned urges the Board to summarily reject the measures for cause. In the alternative, the undersigned urges the Board to impose the, recommended safeguards. Further, in the event the Board finds that it is without current statutory authority to impose the recommended safeguards, then the Board should request the District of Columbia Council to enact emergency legislation imposing those safeguards.
Undersigned requests to be permitted to present these arguments to the Board at the upcoming hearing on this matter.
District of Columbia Registered Voter
CERTIFICATE OF SERVICE
I hereby certify that I served a copy of the foregoing OPPOSITION TO ISSUANCE OF PETITION on counsel for the proponents, by U.S. Mail, First Class, postage prepaid, this March 29, 2006, postage prepaid, addressed as follows:
Mr. Jeffrey D. Robinson, Esquire
Counsel for Barry Jerrels
Ronald L. Drake
1. Preservation of the integrity of the electoral process and prevention of corruption are interests of the highest importance. First National Bank of Boston v. Bellotti, 435 U.S. 765, 788-789 (1978). The Board has every right to uphold the integrity of the electoral process itself. Brown v. Hartlage, 456 U.S. 45, 52 (1982). The purpose of circulation procedures is to confirm that signatures were obtained according to law. Brousseau v. Fitzgerald, 675 P.2d 713, 715-716 (Ariz. 1984).
The Board has a legitimate interest in preventing election fraud. Orange v. Board of Elections and Ethics,, 629 A.2d 575, 579 (D.C.App. 1993). To the extent that a citizen's right to vote is debased, he is that much less a citizen. Kamins v. Board of Elections for the District of Columbia, 324 A.2d 187, 191 (D.C.App. 1974). Accordingly, the Board may regulate the petition process so as to deter fraud and diminish corruption. Buckley v. American Constitutional Law Foundation, Inc., 525 U.S. 182, 204-205, 119 S.Ct. 636 (1999). Every injury must have its proper redress. Marbury v. Madison, 1 Cranch 137, 147 (1803).
The Board has wide discretion when implementing legislation pursuant to statute. Mitchell v. District of Columbia, 741 A.2d 1049, 1055 (D.C.App. 1999). To protect the integrity of the circulation process, this Board may adopt a remedy commensurate with the wrongdoing. Williams v. District of Columbia Board of Elections and Ethics, 804 A.2d 316, 319 (D.C.App. 2002).
The intentional use of invalid signatures on petitions warrants the strongest possible condemnation. Board of Elections v. Democratic Central Committee, 300 A.2d 725, 727 (D.C.App. 1973). Concern about disenfranchisement of legitimate voters must give way to the Board's right to protect the integrity of the petition process by forgeries and possible fraud. Williams v. District of Columbia, Board of Elections and Ethics, 804 A.2d 316, 321 (D.C.App. 2002). In fact the issue of disenfranchisement does not arise when the very misconduct of the circulators casts doubt on the signatures themselves. Citizens Against Legalized Gambling v. District of Columbia Board of Elections and Ethics, 501 F.Supp 786, 790-791 (D.D.C. 1980).
In the event the proponent fails to produce a necessary witness, the Board may impose the missing witness rule to create the presumption that that witness's testimony would have been unfavorable to the proponent. 2 McCormick on Evidence, Fourth Edition (1992), Sec. 264; 2 Wigmore, Evidence (3rd Ed.), Sec. 285; Bufco Corp. v. National Labor Relations Board, 147 F.3rd, 964 (D.C.Cir 1998).
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