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Back to Video Lottery Terminal Gambling Initiative of 2006

Judge Judith E. Retchin, Superior Court of the District of Columbia
Order dismissing complaint
June 8, 2006




Dorothy Brizill
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DOROTHY BRIZILL, et al., Plaintiff, 




BARRY JERRELS, et al., Intervenor-defendants.

Civil Action No. 06-3939 
Calendar 14
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.

Statutory Framework

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. § 1-1001.16(e)(1)(B).


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 Board must 

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 fiscal effect).

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 funds."

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 
Associate Judge

Copies to:

Kenneth J. McGhie, General Counsel 
D.C. Board of Elections and Ethics
441 4th Street, N. W., Suite 270 
Washington, DC 20001

Dorothy Brizill 
1327 Girard Street, N. W. 
Washington, DC 20009

Thelma Jones 
2217 T Place, S.E. 
Washington, DC 20020

Anthony Muhammed
1609 21st Place, S.E.
Washington, DC 20020 

Jeffrey D. Robinson, Esq. 
Duane K. Thompson, Esq. 
Sarah L. Knapp, Esq.
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 community.

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). 

5. 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 (D.C. 1995).

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. ..." (emphasis added.)

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 regulatory functions."

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 "suitability" requirement.

12. See Letter of Robert Spagnoletti to Kenneth McGhie, 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.

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