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Back to Video Lottery Terminal Gambling Initiative of 2006 main page

Barry Jerrels and Citizens for the VLT Inititiative of 2006
Intervenor's Petition for Rehearing and Rehearing En Banc
December 6, 2006




Dorothy Brizill
Bonnie Cain
Jim Dougherty
Gary Imhoff
Phil Mendelson
Mark David Richards
Sandra Seegars


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No. 06-CV-686




Appeal from the Superior Court of the District of Columbia
Civil Division


Jeffrey D. Robinson, Esq. (Bar No. 376037)* 
Baach Robinson & Lewis PLLC 
1201 F Street, N.W., Suite 500 
Washington, D.C. 20004-1225 
(202) 833-8900
(202) 466-5738 (facsimile)

Deborah Deitsch-Perez, Esq. 
Lackey Hershman, L.L.P.
3102 Oak Lawn Avenue, Suite 777 
Dallas, Texas 75219 
(214) 560-2221
(214) 560-2203 (facsimile)

Pursuant to District of Columbia Court of Appeals Rules 35 and 40, Intervenors Barry Jerrels and Citizens for the VLT Initiative of 2006 respectfully petition the Court en banc and the Division to rehear the November 22, 2006 decision holding that the Video Lottery Terminal Gambling Initiative of 2006 is not a "proper subject" of initiative. Rehearing is warranted because the decision erroneously concludes that a potential conflict between the proposed initiative and a federal statute, the Johnson Act, 15 U.S.C. § 1171 (2006) et. seq., renders the initiative violative of the Home Rule Act. Rehearing en banc is warranted because the decision raises questions of exceptional importance, to wit: (1) the legislative authority of the District of Columbia to enact measures that conflict with, but do not purport to amend or repeal federal statutes and (2) the continued validity of the operations of the District of Columbia Lottery and Charitable Games Control Board.

I. The Division's Decision Erroneously Concludes that the Proposed Initiative Would Violate the Home Rule Act by Amending or Repealing an Act of Congress.

When it granted limited Home Rule to the District of Columbia in 1973, Congress explicitly limited the authority of the Council of the District of Columbia stating that the Council could not, inter alia, "[e]nact 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." D.C. Code § 1-206.02(a)(3) (2006). The Division concluded that the proposed VLT Gambling Initiative of 2006 is not a "proper subject" of initiative because it violates this restriction on the District of Columbia's legislative power. That conclusion rests upon the mistaken premise that the initiative seeks to amend or repeal an Act of Congress. Review of the text of the initiative demonstrates that it no where purports to amend or repeal any act of Congress. The initiative is entirely silent with respect to the Johnson Act or any other federal statute. The initiative simply authorizes the Lottery and Charitable Games Control Board to conduct yet another game of chance - this one using video lottery terminals instead of ticket dispensing machines, Keno monitors, or the various devices used in Monte Carlo Night charity events.

Identifying no explicit amendment or repeal of a federal statute in the proposed initiative, the opinion instead relies upon a seeming conflict between the initiative's authorization of video lottery terminals and the Johnson Act's apparent prohibition of the devices. Even if such a conflict exists, and Intervenors do not concede that it does, the existence of such a conflict is not an appropriate basis for holding that the initiative is not a "proper subject." Neither D.C. Code § 1-206.02(a)(3) nor any other provision in the Home Rule Act prohibit the District from enacting laws that conflict with federal law.

This Court has previously dealt with the situation where the District, by initiative, enacts a law that conflicts with federal law. In McConnell v. US, 537 A.2d. 211 (D.C. 1988) the Court considered whether the sentencing procedures available under the federal Narcotic Addicts Rehabilitation Act of 1966, 18 U.S.C. §§ 4251 - 55 (1985) (NARA), remained available after the passage by initiative of an amendment to the District of Columbia's Uniform Controlled Substances Act of 1981 (UCSA). The UCSA limited availability of the addict exemption to mandatory minimum sentences to persons with no prior drug conviction. This conflicted with NARA which allowed individuals with one prior conviction to be sentenced: pursuant to the addict exemption. This Court concluded that "because the amendment to UCSA did not effect the repeal of any aspect of NARA" its provisions remained available as a sentencing option for NARA eligible individuals. McConnell, 537 A.2d at 215. Most importantly for this case, the Court in McConnell did not find that the conflict between NARA and UCSA rendered the UCSA, or any of its provisions invalid as beyond the legislative authority of the District of Columbia.

An approach similar to that taken in McConnell should be adopted by the Court here. The Court should hold that the VLT Gambling Initiative of 2006 is a "proper subject" but that it does not in anyway amend or repeal the Johnson Act. If the initiative is approved by the voters and enacted into law, it will be left to subsequent federal litigation, if any, to determine whether, as Intervenors argued in their initial brief, the specific program for administering video lottery terminals adopted by the Lottery and Charitable Gaming Control Board complies with the Johnson Act.1

II.   The Division's Decision Improperly and Unprecedently Limits the Legislative Authority of the District of Columbia.

"Except as provided in §§ 1-206.01 to 1-206.03, the legislative power of the District shall extend to all rightful subjects of legislation within the District consistent with the Constitution of the United States and the provisions of this chapter subject to all the restrictions and limitations imposed upon the states by the 10th section of the 1st article of the Constitution of the United States."

D.C. Code 1-203.02 (2006).

With these words Congress expressed its intent to grant the District of Columbia full legislative authority, authority to act within its territorial confines in the same manner in which states act. That expansive grant of authority is limited only to the extent that Congress chooses to prohibit explicitly the District from acting in certain areas, and is subject to Congressional retention of authority to act directly with respect to the District. See D.C. Code § 1-206.01 (2006). The decision of the Division impermissibly limits this broad grant of authority by interpreting D.C. Code §1-206.02(a)(3) to impose a further restriction prohibiting the District from legislating in a manner that conflicts or is inconsistent with federal law. This Court should reject this judicially created limitation on Home Rule.

Should individual private citizens be allowed to possess firearms?2 Is sexual orientation a status worthy of civil rights protection?3 Are needle exchange programs an appropriate public health response to the HIV/AIDS crisis?4 Each of these is an area in which ;the District has chosen to legislate in a manner that conflicts or is inconsistent with federal law. In these areas, and others, the District, like various states, has chosen to act contrary to federal law and policy.5 The District has done so acting within. the authority it was granted by Congress. The rule applied by the Division would call into question the District's authority with respect to each of these areas.

The Division's holding that D.C. Code §1-206.02(a)(3) prohibits District laws that are inconsistent with federal law is not compelled by the language of the provision or this Court's prior decisions. As discussed above, D.C. Code §1-206.02(a)(3) only prohibits enactment of laws that directly seek to amend or repeal federal law applicable outside the District. Limiting the provision to its terms and applying it only when the District seeks to directly amend or repeal a law of national scope would avoid the constraint on Home Rule inherent in the Division's opinion.

This Court has recognized that the core of D.C. Code § 1-206.02(a)(3) is restricting the authority of the District to amend or repeal Congressional Acts only to those measures enacted when Congress was acting in its capacity as the local legislature for the District of Columbia. In determining whether proposed legislation would contravene D.C. Code §1-206.02(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.6 This common sense approach has been consistently applied in cases upholding proposed legislative measures against challenge under the Home Rule Act.7

The interpretation of this provision as allowing the District to legislate with respect to prior Congressional Acts enacted in its capacity as the local legislature for the District is entirely consistent with the purpose and history of the Home Rule Act. A central purpose of the Home Rule Act was to "relieve Congress of the burden of legislating upon essentially local District matters." D.C. Code § 1-201.02(a). Because District law at the time Home Rule was established was essentially all enacted by Congress, the District had to be authorized to amend or repeal certain Congressional Acts if its legislative authority was to be meaningful.8 Nevertheless, Congress was concerned that its delegation to the District might be viewed as authorizing the Council to effect national laws.9 Hence inclusion of the provision codified at D.C. Code § I - 206.02(a)(3). The Division's opinion converts this practical, common sense provision into a formalistic bar to the District acting in precisely the manner Congress intended.10

Even if the proposed initiative were seeking to amend or repeal an Act of Congress, it would be within the broad legislative authority granted the District. In adopting 15 U.S.C. § 1175(a), Congress was clearly acting as the local legislature for those jurisdictions in which it held that responsibility. 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 legislation, codified as 15 U.S.C. § 1175, 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:

[T]he purpose of the bill is to support the basic policy of the States which outlaws slot machines and similar gambling devices....By way of additional support, foreign import or export of the machines is prohibited, and their manufacture, possession, and use is forbidden in those parts of the United States where the Federal Government is primarily responsible for enforcement of the criminal laws, such as the District of Columbia. We come to that by way of specific recommendation made by the Attorney General's Conference on February 15.... [T]he members of the Conference called attention to the existence of troublesome problems concerning slot machines in or emanating from certain areas where the Federal Government exercises exclusive criminal jurisdiction. Therefore, may I reemphasize the five points that the Conference suggested that this bill contain.... 5. Strengthening the controls in areas where the Federal Government exercises primary criminal jurisdiction.11

The Division's opinion ignores this reality. Instead it holds that because Congress chose to act in one provision as the local legislature for a number of jurisdictions, the District cannot utilize its clear authority to amend the provision. According to the Division, if only Congress had created separate parts for each of the jurisdictions, then the District could act consistent with D.C. Code §1-206.02(a)(3). Such a formalistic approach is not mandated by the Home Rule Act.

III.   The Division's Decision Would Jeopardize the Operations of the District of Columbia Lottery and Charitable Gaming Control Board.

The VLT Gambling Initiative of 2006 authorizes the District of Columbia Lottery and Charitable Gaming Control Board ("the Lottery Board") to conduct a new game -- a video lottery. Since its inception in 1981, established by Initiative 6, the Lottery Board has been a significant contributor to the finances of the District of Columbia. For fiscal year 2007, the contribution is projected to be $72.1 million. See FY 2007 Proposed Budget and Financial Plan submitted to the Congress of the United States by the Government of the District of Columbia June 5, 2006 at p. 4-15. As part of its current operations, the Lottery Board uses a number of "machine[s] or mechanical device[s] (a) which when operated may deliver, as the result of the application of an element of chance, any money or property, or (b) by the operation of which a person may become entitled to receive, as the result of the application of an element of chance, any money or property," gambling devices as defined by the Johnson Act. 15 U.S.C. § 1171(a)(2). Those devices include the machines which dispense tickets in the numerous online lottery games including, Power Ball, DC Lucky Numbers and DC-4, the monitors and ticketdispensers employed in the Keno game, and the various gaming tables and devices used in authorized Monte Carlo might events.12

The Division's opinion casts a pall over all of these operations. If District legislative authority is insufficient to authorize the Lottery Board to operate video lottery terminals, as the Division concludes, then that authority is insufficient to authorize the online lottery games, Keno and Monte Carlo Nights currently conducted by the Lottery Board. Conversely, if the District's legislative authority was sufficient to authorize the activities of the Lottery Board, as has been assumed for twenty-five years, then that authority is sufficient for purposes of approving the VLT Gambling Initiative of 2006.

IV. Conclusion

For the reasons set forth above, Intervenors respectfully request that the Court, either by Division or en banc rehear the appeal in this matter, affirm the decision of the trial court, and conclude that the Video Lottery Terminal Gambling Initiative of 2006 is a proper subject of initiative.

Respectfully submitted,

Jeffrey D. Robinson, Esq. (Bar No. 376037) 
1201 F Street, N.W., Suite 500 
Washington, D.C. 20004-1225 
(202) 833-8900 (telephone) 
(202) 466-5738 (facsimile)

Deborah Deitsch-Perez, Esq. 
3102 Oak Lawn Avenue, Suite 777 
Dallas, Texas 75219 
(214) 560-2221 (telephone) 
(214) 560-2203 (facsimile)



I hereby certify that a copy of the foregoing Intervenor and Rehearing En Banc Petition for Rehearing was served via Federal Express on this the 6th day of December, 2006, upon the following:

Dorothy Brizill
1327 Girard Street, N W 
Washington, D.C. 20009 
(202) 234-6982

Thelma Jones
2217 T Place, SE 
Washington, D.C. 20020

Anthony Muhammad 
1609 21st Place, SE 
Washington, D.C. 20020 
(202) 359-3517

Kenneth McGhie, General Counsel
Terri Stroud, Staff Attorney
District of Columbia Board of Elections and Ethics
441 4th Street, NW, Suite 250
Washington, D.C. 20001 

Jeffrey D. Robinson

1. The issues of whether the proposed initiative actual amends or repeals an act of Congress arose and were discussed during oral argument. During that discussion, the Court noted that the District of Columbia Attorney General when advising to the Board of Elections and Ethics regarding whether the proposed initiative was a "proper subject" declined to comment on whether the initiative possibly conflicted with Federal law. See Joint Appendix at Tab 7, Letter from Robert J. Spagnoletti, Attorney General for the District of Columbia, to Kenneth J. McGhie, General Counsel for Board of Elections and Ethics, footnote 11 (Mar. 10, 2006). While not authorized to speak for the Attorney General, Intervenors submit that the Attorney General's advice reflects precisely the considerations discussed above. The question of whether a proposed initiative conflicts with Federal Law is simply not relevant to the "proper subject" determination because a conflict does not violate the Home Rule Act.

2. D.C. Code § 7-2502.01(2006).

3. D.C. Code §§ 2-1402.01-1404.4(2006).

4. D.C. Code § 48-1103.01(2006).

5. Perhaps the most notable examples of states acting contrary to Federal law are the various state measures authorizing the medical use of marijuana. See e.g., Cal. Health and Safety Code §§ 11362.5 et seq., 22 MRSA § 2383-B, R.I. GEN. LAWS §§ 21-28.6-1 el. seq. (2006). The District, by initiative, also sought to join theses states. It is notable that the District's effort in this regard was halted by an explicit Congressional exercise of its retained authority, the Barr amendment Pub.L. No. 107-96, § 127(a), 115 Stat. 923 (2001). The Home Rule Act's prohibition on enacting laws that amend or repeal Congressional Acts that do not apply exclusively to the District was not sufficient to stop District legislative action in this area. See Marijuana Policy Project v. U.S., 304 F.3d 82 (D.C. Cir. 2002).

6. McConnell, 537 A.2d at 215.

7. See District of Columbia v. Greater Wash. Cent. Labor Council, 442 A.2d 1 10 (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).

8. See, Home Rule for the District of Columbia 1973-74, Background and Legislative History of H.R. 9056 and H.R. 9682 and Related Bills Culminating in the District of Columbia Self-Government and Governmental Reorganization Act, ("Home Rule Legislative History") at 1036. "Mr. Hogan: Would you have the District Council acting to amend an enactment of Congress or would the action they take supersede enactment of Congress?

Mr. Adams: To the degree that we have passed, and by we l mean the Congress of the United States, for many years innumerable code sections, the whole basis of this bill is that we would let local government be changing those unless this Committee prohibited it because we cannot and have not been able to sit down and do away with the old archaic systems..."

9. Id. at 218. "Mr. Murphy: ... The difficulty I would see in talking about authorizing the District Government to legislate in a truly legislative sense, affecting lands outside the confines of the District, I think might rise to Constitutional proportions.

The Congress of the United States can, depending on the cessation jurisdiction by the state, make laws effective in those areas as United States-owned areas. I would hesitate, I would have a real problem in seeing how the Congress could delegate to the District a power that really Congress exercises not solely because it has exclusive legislative power of the District, but because it has the general sovereign powers."

10. The Division opinion concludes that this interpretation of the scope of D.C. Code § 1206.02(a)(3) is required by the rule of statutory construction directing courts to look to the exact words used by the legislature. Opinion at page 8, footnote 8. However, this Court often has recognized that such adherence to the "superficial clarity" in a statute is not warranted when the circumstances indicate that another result was intended. See District of Columbia v. Edison Place, 892 A.2d 1108, 1111 (D.C. 2006). See also Jeffrey v. United States, 892 A.2d 1122, 1128 (D.C. 2006), Luck v. District of Columbia, 617 A.2d 509, 512-13 (D.C. 1992); and National Organization of Women v. Mutual of Omaha Insurance Co., Inc., 531 A.2d 274,276 (D.C. 1987) citing, West v. Kerr-McGee Corp., 765, F.2d 526, 530 (5th Cir. 1985)

11. 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).

12. See, D.C. Mun. Regs. tit. 30, §§ 802.1, 803.1, 804.6, 925, 928 and 1602.1 (2006).

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