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SUPERIOR COURT OF THE DISTRICT OF COLUMBIA
DOROTHY BRIZILL, et al., Plaintiff,
DISTRICT OF COLUMBIA BOARD OF ELECTIONS AND ETHICS, Defendant,
BARRY JERRELS, et al., Intervenor-defendants.
Civil Action No. 06-3939
Judith E. Retchin
(June 8, 2006)
This matter is before the Court on Defendant's and the
Intervenor/Defendants' Motions to Dismiss; the plaintiffs1
Opposition and Amended Opposition; Defendant's Reply and Intervenor/Defendants'
Reply. For the reasons stated below, the motions to dismiss the
complaint are granted.
On April 10, 2006, Barry Jerrels ("proponent")
submitted a proposed initiative to the Board of Elections and Ethics
(the "Board") to allow for video lottery terminals ("VLTs"),
and the Board accepted the proposed measure and designated it as
Initiative 69. On April 12, 2006, the Board sent copies of Initiative 69
to all members of the D.C. Council, the Office of the D.C. Attorney General, and the Office of the General Counsel
for the D.C. Council for comments. On April 18, 2006, the D.C. Attorney
General submitted comments indicating that Initiative 69 was a proper
subject for initiative.2
On April 21, 2006, Initiative 69 was published in the
D.C. Register giving notice that a public hearing would be held on May
3, 2006, to determine whether Initiative 69 was a proper subject for
initiative. The notice also provided that if the Board determined that
Initiative 69 was a proper subject for initiative, the Board would go on
to formulate its short title and summary statement at the same meeting.
At the Board's meeting on May 3, 2006, it heard comments from interested
persons including plaintiffs and ultimately determined that Initiative
69 was a proper subject for initiative. The Board then went on to
formulate Initiative 69's short title and summary statement. On May 12,
2006, the Board's formulations for the Video Lottery Terminal Gambling
Initiative of 2006, Initiative 69, were published in the D.C. Register.
On May 22, 2006, plaintiffs timely filed their complaint.
On May 24 2006, the proponent and the Citizens for the VLT Initiative of
2006 ("Movants") moved to intervene and filed their motion to
dismiss. On May 25, 2006, the Board also moved to dismiss the complaint.
On May 26, 2006, plaintiffs filed an opposition to the Board's motion to
dismiss. By order dated May 30, 2006, the Court informed the parties
that it would treat this matter on an expedited basis. The Court also
granted movants' motion to intervene and directed plaintiffs to file any
additional opposition to the motions to dismiss by June 5, 2006.
Plaintiffs filed their amended opposition on June 5, 2006. On June 6,
2006, Intervenor/Defendants filed a Reply, and on June 7, 2006, defendant filed its Reply. The Court is able to
resolve the motions without a hearing given that the parties fully have
addressed the issues and have had the opportunity to submit all relevant
materials to the Court.
An initiative is the process by which the electors of the
District of Columbia may propose laws and present such proposed laws
directly to the registered qualified voters. Dist. of Columbia Bd. of
Elections and Ethics v. Jones, 481 A.2d 456,458 (D.C. 1984). An
initiative proposal approved by a majority of the electorate "shall
be an act of the Council." D.C. Code §1-204.105. The initiative
process is subject to the same legislative restrictions as the D.C.
Council, including congressional veto power. Convention Ctr. Referendum
Comm. v. Dist. of Columbia Bd. of Elections & Ethics, 441 A.2d 889,
897 (D.C. 1981) (en banc) .
The Board is charged with determining whether a proposed
measure constitutes a "proper subject" for an initiative. D.C.
Code §1-100.16(b)(1). In addition to other restrictions, the Board may
not accept initiatives that conflict with powers granted to the D.C.
Council in the Home Rule Act, authorize discrimination prohibited by the
D.C. Human Rights Act, or negate or limit budget acts of the D.C.
Council. Marijuana Policy Project v. United States, 304 F.3d 82, 84
(D.C. Cir. 2002).
Section § 1-1001.16 of the D.C. Code sets out the
initiative and referendum process in the District of Columbia and
includes a detailed time schedule. After a registered qualified elector
submits an initiative measure, the Board must refuse to accept the
proposed measure if it determines it is not a "proper subject"
of initiative.4 If the Board accepts the measure, it must
assign a number to the initiative, and within 20 calendar
days, the Board must prepare a true and impartial statement, short
title, and the legislative text of the initiative. See D.C. Code §
1-1001.16(c). After preparation of the above, the Board must adopt a
summary statement, short title and legislative form at a public meeting and
must within 5 days notify the proponent of the exact language, and
within another 5 days of the adoption of the above, the Board must
submit the summary statement, short title and legislative form to the
District of Columbia Register for publication. § 1-1001.16(d). Section
1-1101.16(e)(1)(A) of the D.C. Code provides that if a registered
qualified elector objects to the summary statement, short title or
legislative form formulated by the Board, that person may seek review in
the Superior Court within 10 calendar days from the date the Board
publishes the items, stating objections and requesting appropriate
changes. The Superior Court must expedite consideration of the matter.
Plaintiffs have filed a complaint challenging the Board's
procedure and substantive decisions.5 Plaintiffs contend the Board's
hearing on May 3, 2006 on the short title and summary statement was not
properly advertised and held. Specifically, plaintiffs contend the Board
improperly held a single hearing on the same day to consider both 1)
whether the initiative was a proper subject for an initiative and 2) the
short title, summary statement and legislative text. Plaintiffs argue that the statute required two
separate meetings and notice of two separate hearings. Defendant
counters that the statute does not require meetings on different days.
A review of the statute reveals that the Board first must
determine whether the measure is a proper statute, and if so, the Board
then must consider the short title, short statement and legislative
text. The statute provides that within 20 calendar days of accepting a
measure as a proper subject, the Board must prepare the summary
statement, short title and legislative draft. The statute does not
specify that the meetings must occur on different days. Rather, it
requires only that the determinations be made in sequence within 20
calendar days. The Board did precisely that. The Court adopts
defendant's well-reasoned argument on this issue. See Def.'s Mot. to
Dismiss 5-6; see also Hessey v. Burden, 615 A.2d 562 (D.C. 1992)
(holding that the Board should first determine whether measure is a
proper subject of initiative before preparing summary statement, short
title and legislative form, but not addressing whether those tasks may
occur at the same meeting). The Court agrees with the Board that it was
permitted to conduct the second prong of its inquiry immediately after
determining the measure was a proper subject where the Board gave notice
in advance it intended to move onto the second prong of the inquiry
immediately after determining the measure was a proper subject.
Additionally, as intervenor/defendants point out, the
Board's long-standing approach of consolidating these issues appears to
be efficient, and plaintiffs have not been prejudiced by the
consolidation. In their Reply, plaintiffs allege that they were
prejudiced because the meeting went on for many hours, and some of the
attendees were unable to attend the entire meeting. Nevertheless,
plaintiffs still have not demonstrated how the evidence or arguments
would have been different if the second prong of the hearing had been
held on a separate day. Moreover, to the extent an attendee was unable to observe the entirety
of the hearing, there is no such individual right, and transcripts of
the entire hearing are available.
Plaintiffs next contend the hearing on the short title
and summary was incomplete and improperly restricted in that the Board
refused to hear any testimony on the legislative text of the initiative.
In particular, plaintiffs argue that the Board should have permitted
debate on the merits of the proposal, attaching to their Reply the
written testimony of Aubrey Thagard, the Ward 8 Neighborhood Planning
Coordinator, and a letter from the Deputy Mayor to the Board, both of
which question the wisdom of the initiative for various reasons.
Defendant responds that it did not refuse to hear testimony on the
legislative form,6 and that the Board is not empowered to make
substantive changes in the initiative.
Section 1-1001.16(c)(3) of the D.C. Code provides the
prepare, in the proper legislative form, the proposed
initiative ... which shall conform to the legislative drafting format of
acts of the Council of the District of Columbia. The Board may consult
experts in the field of legislative drafting, including, but not limited
to Corporation Counsel of the District of Columbia and officers of the
Council of the District of Columbia for the purpose of preparing the
measure in its proper legislative form.
The Board interpreted this provision to mean it could
only edit the proposed initiative for proper legislative form and not
change the substance of the initiative.
The Court agrees with this interpretation of the statute.
Such an interpretation is consistent with the framework of the
initiative process where the registered voters, not the Board, decide
the wisdom and merits of the initiative. As the Board noted during its
hearing, whether the Board likes the initiative or not, its authority is
prescribed by statute. This provision is necessary to enable the Board
to make technical edits affecting the form of the initiative given that any initiative passed by the electorate will have
the effect of a law passed by the D.C. Council and therefore must be in
the correct legislative form.
Additionally, the transcript of the hearing shows that
the Board allowed all who wished to be heard to do so, and that it
addressed each of the concerns raised by the participants. To the extent
that some challenged whether Initiative 69 would be good or bad for the
District of Columbia, the Board properly determined that its functions
were prescribed by statute. The Board was not permitted to assess the
merits of the initiative, only whether it was a proper subject within
the constraints of the statute, and after doing so, the Board was
obliged to prepare a short title and true and impartial summary
statement that would not create prejudice for or against the measure.
Plaintiffs argue that the Board should have found that
Initiative 69 was not a proper subject for initiative because 1) it
seeks to amend or overturn a federal law, namely the Johnson Act, 15
U.S.C. § 1171-1178 in violation of the Home Rule Act; 2) it requires
the appropriation of funds; and 3) it seeks to exercise mayoral
authority in violation of the Home Rule Act. The Court addresses each
argument in turn.
The Board concluded that the initiative did not violate
the Home Rule Act in that it did not violate the Johnson Act, 15 U.S.C.
§1171-1178 (also referred to as the Gambling Devices Act). The Board
based its decision on the fact that the Johnson Act allows a state to
exempt itself from the statute. There is ample support for the Board's
conclusion. Indeed, although the Johnson Act provides that "it
shall be unlawful ... to transport any gambling device to any place in a
State7 or a possession of the United States," the Act further
provides that a state may exempt itself from this legislation, and states may enact laws
to permit the use of gambling devices.8 15
U.S.C. §1172. As noted at
the hearing, certain states have exempted themselves from the
antigambling law. (Bd. Meeting Tr. 129, May 3, 2006.) Given that an
initiative is coextensive with a legislative act of the D.C. Council,
the initiative would be a permissible exemption from the statute. Of
course, the District's right to authorize gambling by initiative would
be subject to Congressional review as are all District laws.
The Board further concluded that the initiative would not
be in violation of 15 U.S.C. §1175, which makes it unlawful "to manufacture,
recondition, repair, sell, transport, possess, or use any gambling
device in the District of Columbia (or the U.S. possessions and Indian
territories)." As the Board correctly concluded, this provision is
tantamount to a local law and thus amending it would not violate the
Home Rule Act. (Bd. Meeting Tr. 147-49, May 3, 2006.) Under the Home
Rule Act, D.C. Code § 1-233(a)(3)(1981), the D.C. Council, as well as
the voters through initiative, are prohibited from enacting any law that
would "amend or repeal any Act of Congress ... which is not
restricted in its application exclusively in or to the District."
McConnel v. United States, 537 A.2d 211, 214 (D.C. 1988). Because this
provision of the Johnson Act is tantamount to a local law and not
national in scope, an initiative, which effectively would repeal it,
would not run afoul of the prohibition.
Plaintiffs next contend Initiative 69 is not a proper
subject because it is a law appropriating funds. Specifically,
plaintiffs argue that Initiative 69 will impose additional costs on the
D.C. Lottery and Charitable Games Control Board ("Lottery
Board"), because the initiative requires the Lottery Board to
assume additional regulatory functions such as licensing VLTs, managing funds and revenues from VLTs, making rules
and regulations, creating forms, and training personnel.9
The "law appropriating funds" prohibition in
the Home Rule Act, states that voters in the District may propose laws
(except laws appropriating funds) directly to registered voters through
the initiative process. D.C. Code §1-204.101. "Laws appropriating
funds" has been interpreted to prohibit initiatives allocating
funds, limiting the District's sources of revenue or constituting an
affirmative effort to appropriate funds. See Dorsey v. Dist. of Columbia
Bd. of Elections and Ethics, 648 A.2d 675, 677 (D.C. 1994); Hessey v.
Dist. of Columbia Bd. of Elections and Ethics, 601 A.2d 3, 15 (D.C.
1991); and Dist. of Columbia Bd. of Elections and Ethics v. Jones, 481
A.2d 456, 460 (D.C. 1984). It does not prohibit initiatives that propose
a program so long as the initiative does not mandate funding. Dist. of
Columbia Bd. of Elections and Ethics v. District of Columbia, 520 A.2d
671, 673-75 (D.C. 1986), rehearing en banc denied (overnight shelter
initiative did not offend "laws appropriating funds"
restriction and did not divest D.C. Council of discretion to make
adjustments in funding various projects where initiative contained no
self-actuating funding mechanism); Convention Ctr. Referendum Comm. v.
Dist. of Columbia Bd. of Elections and Ethics, 441 A.2d 889, 914-15
(D.C. 1981) (holding that the "laws appropriating funds"
exception does not preclude initiative to establish substantive
authorization for a new project or an initiative with a prospective
The Board correctly concluded that the initiative did not
run afoul of the prohibition against laws appropriating funds. As the
Board noted, the initiative comports with existing case law, and
although the initiative may authorize a new project, the D.C. Council
can choose whether to fund the project. (Bd. Meeting Tr. 150-51, May 3,
2006.) Our Court of Appeals has found that an initiative that established a right to
shelter did not violate the laws appropriating funds prohibition even
though the initiative could have had profound fiscal consequences given
that the initiative did not mandate appropriations, and the funding
level for overnight shelter still remained with the D.C. Council and
Congress. Dist. of Columbia Bd. of Elections and Ethics, 520 A.2d at
675. The Court of Appeals opined "the fact that the [overnight
shelter] initiative may be denominated loosely an entitlement program
... [does not make it] a law appropriating funds," and to construe
the initiative otherwise "would be to effectively write the
initiative process out of existence." Id. at 675-76.
Plaintiffs compare Initiative 69 to the drug-treatment
measure that was found to be a prohibited law appropriating funds in
Dist. of Columbia Bd. of Elections and Ethics v. Dist. of Columbia, 866
A.2d 788 (D.C. 2005), because both measures use the mandatory term
"shall." As noted in defendant's reply, there are major
dissimilarities between the measures. Given that the power of the
initiative is to be construed liberally, and the funding level for the
Lottery Board still remains with elected members of the D.C. government
and Congress, Initiative 69 is not a prohibited "law appropriating
To the extent the initiative requires the Lottery Board
to issue a temporary initial license in 14 days there is no evidence
that it cannot be done by existing staff within the existing budget. In
any event, such incidental, de minimis expenses are inherent with most
initiatives and should not trump the power of the initiative.10
Lastly, plaintiffs contend Initiative 69 is not a proper
subject for initiative because it impermissibly usurps the executive
function of the mayor. In particular, plaintiffs allege that because the
initiative requires the Board to award a temporary license to one,
specified person, the initiative effectively usurps the power of the
mayor to award licenses, an administrative function of the executive
branch. The Board concluded that the mayor's authority would not be
usurped because the initiative provides for an additional suitability
determination that must be made by the executive branch. The Board
appears to have misread the initiative. As the Court reads Initiative
69, the suitability determination comes into play only after the
temporary license must be awarded to the person who satisfies the unique
criteria in the statute.'' Hence, the Court reads Initiative 69 as
requiring the Lottery Board to award a temporary initial license to the
person described in footnote 11. Although Section 5(d) contemplates that
the Lottery Board may deny a temporary license if it finds that no
person satisfies the criteria, that scenario is extremely remote given
that Initiative 69 presumably would not be worded as it is unless a
person intended to satisfy the unique criteria specified in the
proposal. Hence, the wording of the initiative has the effect of giving
what is tantamount to a temporary exclusive franchise to one person.
Because Initiative 69 does in fact require that a temporary initial
license be awarded, the Court next determines whether such a provision
violates the Home Rule Act.
Plaintiffs have proffered authority from other states for
the proposition that an initiative may not be used to award an exclusive
franchise. Because each state has its own unique constitution and law,
the Court cannot base its decision on these cases. The Court believes a more useful analysis is whether the initiative is
"legislative" or "administrative."
Our Court of Appeals has determined that an initiative
cannot extend to administrative matters. Convention Ctr. Referendum
Comm. v. Dist. of Columbia Bd. of Elections and Ethics, 441 A.2d 889,
907 (D.C. 1981). Whether an initiative is "legislative" or
"administrative" depends on whether the proposition makes a
new law or executes one already in place. Id. at 908. An initiative is
"administrative" if it "would meddle with the details of
executing established policy" or addresses "merely
administrative concerns or impermissibly interfere[s] with the execution
of existing law." Id. at 908-09. Initiative 69 would amend the
existing law to legalize VLTs under prescribed circumstances. In
addition to addressing the basic policy question of whether to authorize
VLTs, it requires the Lottery Board (executive branch) to issue a
temporary initial license under extremely strict criteria. Since
Initiative 69 does more than merely address administrative concerns, it
would be deemed to be "legislative." Because the right of
initiative should be liberally construed, and Initiative 69 is
predominantly "legislative," the Court cannot find that the
initiative violates the Home Rule Act by impermissibly usurping the
mayor's authority. Convention Ctr. Referendum Comm., 441 A.2d at 913.
Moreover, it is noteworthy that the Attorney General found the
initiative to be a proper subject and did not raise as a concern the
usurpation of the mayor's authority despite the fact that he recognized
the special interest nature of the initiative and that the
Lottery Board would be required to issue a temporary initial license to
one person whether it wanted to or not.12
As the statutory framework for initiative process
contemplates, this ruling is only the beginning of the initiative
process. The statute and the Board envision there will be vigorous
debate about the pros and cons of the initiative. Just as the Board's
opinion about the merits of the initiative are not relevant, this
Court's opinion, if the Court were to have an opinion, is not relevant
to the Court's ruling. For the reasons stated above, the motions to
dismiss the complaint are granted.
Based on the foregoing it is this 8th day of June, 2006,
HEREBY ORDERED that defendant's and intervenor/defendants'
motions to dismiss the complaint are granted; and it is
FURTHER ORDERED that intervenor/defendants' amended
motion to dismiss the complaint is denied as moot.
Judith E. Retchin
Kenneth J. McGhie, General Counsel
D.C. Board of Elections and Ethics
441 4th Street, N. W., Suite 270
Washington, DC 20001
Street, N. W.
Washington, DC 20009
Washington, DC 20020
21st Place, S.E.
Jeffrey D. Robinson, Esq.
Duane K. Thompson, Esq.
L. Knapp, Esq.
BAACH ROBINSON & LEWIS PLLC
1201 F Street, N. W., Suite 500
Washington, DC 20004-1225
1. Plaintiffs are registered qualified voters.
Additionally, plaintiff Dorothy Brizill is executive director of DC
Watch, "a civic good government watchdog organization" in the
District. Plaintiff Thelma Jones is president of the Fairlawn Citizens
Association, a civic organization in the Anacostia-Fairlawn community.
Plaintiff Anthony Muhammad is the ANC commissioner for the Anacostia
2. By letter dated April 4, 2006, the General Counsel for
the D.C. Council submitted comments on an earlier draft of Initiative 69
opining that it should not be certified as a proper subject, because the
limitation on revenue would amount to an impermissible appropriation of
funds, and because it conflicted with the Home Rule Act by dictating use
of a specific parcel and land and by requiring a two-thirds vote for the
Council to authorize additional VLTs The current version of Initiative
69 has no revenue constraint on the D.C. Council and does not require a
supermajority vote by the D.C. Council to authorize additional VLTs.
3. Intervenor/defendants also filed an amended motion to
intervene when the Clerk's Office refused to accept their motion to
dismiss. There is no substantive difference in the amended motion.
4. It is not a proper subject if
(A) [t]he verified statement of contributions has not
been filed [as required]; (B) the petition is not in the proper form [as
required by the statute]; (C) the measure authorizes, or would have the effect of authorizing discrimination [under the Human
Rights Act] or (D) the measure presented would negate or limit an act of the Council of the
District of Columbia ....
D.C. Code § 1-1001.16(b)(1). The proponent of the
rejected measure may appeal to the Superior Court and expedited
consideration must be given to the matter. If the Court determines that
the measure is a "proper subject," it must issue an order
requiring the Board to accept the measure." § 1-1001.16(b)(3).
Although the Court is vested with authority on issues of statutory
construction, it must "defer to an agency's interpretation of the
statute it administers ... so long as that interpretation is reasonable
and consistent with the statutory language." Franklin v. Dept. of
Employment Services, 709 A.2d 1175, 1176 (D.C. 1998). When reviewing the
Board's legal conclusions, the Court should give deference to the
Board's interpretation of the statute it administers so long as that
interpretation is not plainly wrong or inconsistent with the legislative
purpose. Allen v. Dist. of Columbia Bd. of Elections, 663 A.2d 489, 495
6. The Board heard and addressed comments about changes to
the legislative form at the May 3, 2006 hearing. (Bd. Meeting Tr.
230-48, May 3, 2006.)
7. The term "state" includes the District of
Columbia. 15 U.S.C. § 1171(b).
8. 15 U.S.C. § 1172(a) goes on to read "[p]rovided,
that this section shall not apply to transportation of any gambling
device to a place in any State which has enacted a law providing for the
exemption of such State from the provision of this section. ..."
9. Attached to plaintiffs' Reply is a letter from the D.C.
Office of the Chief Financial Officer indicating that if Initiative 69
is passed, it will require the Lottery Board to assume additional
regulatory functions. The letter points out "[t]here are costs, as
yet undefined, inherently associated with undertaking such additional
10. Intervenor/defendants contend that this Court is bound
by the doctrine of stare decisis, because in Argo v. Dist. of Columbia
Bd. of Elections and Ethics, 04-CA-4740 (June 29, 2004), Judge Boasberg
found that the initiative was not a law appropriating funds. (Intevenor/Def.'s
Mot. Dismiss Ex. 11). First, a decision from another trial judge has no
precedential value for this Court. United States v. Cerceda, 172 F.3d
806, 812 (11th Cir. 1999) ("The opinion of a district court carries
no precedential weight even within the same district."); TMF Tool
Co. v. Muller, 913 F.2d 1185, 1191 (7th Cir. 1990) ("For a variety
of quite valid reasons, including consistency of result, it is entirely
proper for district judges to give deference to persuasive opinions by
their colleagues on the same court. But, while this is a laudable and
worthwhile practice, it does not convert district court decisions into
binding precedent. In discussing the doctrine of stare decisis, this
court has said: [D]istrict court judges ... must not treat decisions by
other district court judges ... as controlling, unless of course the
doctrine of res judicata or collateral estoppel applies.").
Moreover, Judge Boasberg appears to have based his decision on the
alleged cap on revenues to the District from the initiative. There is no
indication he addressed whether an increase in an agency's regulatory
costs would be a prohibited law appropriating funds.
11. Initiative 69 provides, in significant part, that within
14 days of receipt of an application after the effective date of the
Initiative, the Board must grant a temporary initial license to the
first person who submits an application demonstrating the person owns
and has the right to possess more than 50% (or is the lessee of more
than 50% or has the contractual right to acquire more than 50%) of the
property consisting of an approximately 9000 square foot area consisting
of lots 5, 812, and 813 in square 5770 in Ward 8. Within 180 days of the
Board's granting of a temporary initial license, the Board must create
procedures by which persons may apply for an initial license. Again, to
be eligible for an initial license, the person must demonstrate the
person owns or otherwise has the right to operate on the property noted
above and that the person is "suitable pursuant to sections 11 and
12 of this Title." (Initiative 69 §5(a)). Section 11 goes on to
exempt the holder of the temporary initial license from the
12. See Letter of Robert Spagnoletti to Kenneth
dated March 30, 2006. Intervenor/Defendants' Motion to Dismiss, Exhibit
3. Although Mr. Spagnoletti was commenting on the predecessor version of
Initiative 69, on this issue, there was no meaningful change.