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IN THE SUPERIOR COURT OF THE DISTRICT OF COLUMBIADOROTHY BRIZILL, THELMA JONES, ANTHONY MUHAMMAD, Plaintiffs, v. DISTRICT OF COLUMBIA BOARD OF ELECTIONS AND ETHICS, Defendant, and BARRY JERRELS and CITIZENS FOR THE VLT INITIATIVE OF 2006, Intervenors/Defendants. Civil Action No. 0003939-06 Intervenor/Defendants' Reply Brief in Further Support of Motion to DismissIntervener/defendants submit this reply brief in further support of their motion to dismiss plaintiffs' challenges to the findings made by the Board of Elections and Ethics on May 3, 2006 concerning the Video Lottery Terminal Gambling Initiative of 2006 ("Initiative 69"). The arguments plaintiffs have advanced generally require no reply. We do, however, respectfully call the following discrete matters to the Court's attention.1. Plaintiffs' reliance on District of Columbia Board of Elections and Ethics v. District of Columbia, 866 A.2d 788 (D.C. 1991) as the "most on point" authority supporting their argument that Initiative 19 "appropriates funds" merely serves to highlight that argument's total lack of merit. Unlike Initiative 69, the initiative measure at issue in that case imposed numerous, mandatory obligations that would require the trial court to expend funds to establish a treatment program for nonviolent drug offenders within strict time constraints. 866 A.2d at 796. Plaintiffs cannot show that Initiative 69 would impose prescriptions of like scope, or indeed, of any broader scope than approved in Hessey v. Board of Elections and Ethics, 601 A.2d 3 (D.C. 1991) (en bane), which was followed in District of Columbia Board of Elections and Ethics v. District of Columbia. Most tellingly, Plaintiffs make no attempt to address Argo v. D.C. Board of Elections & Ethics, Civil Action No. 04-4740 (June 29, 2004) (see Appendix 9 and 11 to Intervenor/defendants' initial memorandum), which expressly rejected an "appropriates funds" challenge to an initiative measure virtually identical to Initiative 69, and therefore, should be followed here under the doctrine of stare decisis. 2. Although Plaintiffs' argument that Initiative 69 "encroaches Mayoral authority" requires no reply, Intervenor/defendants respectfully take this opportunity to provide an additional precedent that may be of assistance to the Court, Biodiversity Associates v. Gables, No. 03-1002 (10' Cir., Feb. 4, 2004). (See Exhibit 1 hereto.) That decision involved certain environmental groups' challenge to a rider (the "706" Rider") to an unrelated appropriations bill on the basis that Congress, without changing governing law itself, was encroaching on the authority of the United States Forrest Service to interpret the law, and in the process, requiring the Forrest Service to violate the terms of a prior settlement agreement with the environmental groups. In rejecting that separation of powers challenge, the Tenth Circuit set forth an in-depth review of Supreme Court precedent in the course of holding:
We submit that the Tenth Circuit's careful explication is fully applicable in this case and provides further support to reject Plaintiffs' challenge on the basis that Initiative 69's "specificity" would violate the principle of separation of powers. Respectfully submitted, Dated: June 6, 2006 |
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