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D.C. Board of Elections and Ethics 
Defendant's Opposition to Plaintiff's Motion for Stay Pending Appeal
June 13, 2006




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


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DOROTHY BRIZILL, et al., Plaintiffs, 




BARRY JERRELS, et al., Intervenor-Defendants  

Civil Action No. 0003939-06
Calendar 14
Next Event: Initial Conference (9/15/06) 
Judge Judith E. Retchin 


On June 8, 2006, this Court issued an order in this matter granting Defendant’s and Intervenor/Defendants’ Motions to Dismiss Plaintiffs’ complaint. Through their complaint, Plaintiffs sought to have this court direct the Board to reject Initiative Measure No. 69 on the grounds that the measure was an improper subject of initiative and that it was improperly processed by the Board. The court rejected each of the arguments raised by the Plaintiffs, finding that the Defendant Board’s acceptance and administrative processing of the measure was in accordance with established initiative law. Brushing aside the demonstrated weakness of their position on the merits, and without offering any justification whatsoever in support of their motion, Plaintiffs now seek a stay of the Court's order pending appeal. For the reasons set forth herein, Plaintiffs oppose the motion, and ask that this Court reject the same. 

“To prevail on a motion for stay, a movant must show that he or she is likely to succeed on the merits, that irreparable injury will result if the stay is denied, that opposing parties will not be harmed by a stay, and that the public interest favors the granting of a stay.”1 Akassy v. William Penn Apts. Ltd. Partnership, 891 A.2d 291, 309 (D.C. 2006)(citing Barry v. Washington Post Co., 529 A.2d 319, 320-21 (D.C.1987)); see also In re Antioch Univ., 418 A.2d 105, 109 (D.C.1980). Among these factors, the most important inquiry is that concerning irreparable injury. See Antioch, 418 A.2d at 109. 

It is difficult to imagine how Plaintiffs would be irreparably harmed if the stay is denied and the proponents of Initiative Measure No. 69 are allowed to circulate petitions in support of the measure. Even assuming for the sake of argument that the appellate court were to find that Initiative Measure No. 69 is not a proper subject of initiative and that the Board improperly processed it – and it is exceedingly doubtful that that court would reach such a conclusion – the only entity that would conceivably be harmed in any way would be the measure’s proponent, who would have commenced the laborious and time-consuming task of petition circulation (which is in no way guaranteed to result in ballot access, not to mention voter approval) for naught. See District of Columbia Board of Elections and Ethics v. District of Columbia, 866 A.2d 788 (D.C. 2005)(measure ruled an improper subject of initiative after gaining ballot access and gaining voter approval at election). 

Moreover, Plaintiffs have in no manner demonstrated a likelihood that they would succeed on the merits in the appellate court, nor can they. This Court considered each argument raised by the Plaintiffs against Initiative Measure No. 69 and correctly found that the Board’s actions in connection with the measure were warranted by governing law. Indeed, this Court saw no need to hold a motions hearing in order to reach that determination. Plaintiffs have shown no basis upon which to establish that the D.C. Court of Appeals would likely arrive at a contrary conclusion. 

Plaintiffs have failed to demonstrate that they meet the most significant factors that would merit a stay pending appeal. Accordingly, their Motion for Stay Pending Appeal should be denied.

Respectfully submitted,
Kenneth J. McGhie
General Counsel
Terri Stroud (D.C. Bar # 465884)
Staff Attorney
D.C. Board of Elections and Ethics
441 4th Street, NW, #270N
Washington, DC 20001
(202) 727-2194
Counsel for Defendant

Date: June 13, 2006   


I hereby certify that on June 13, 2006, copies of the foregoing Defendant’s Opposition to Plaintiffs’ Motion for Stay Pending Appeal were delivered by hand to: 

Dorothy Brizill
1327 Girard Street, NW
Washington, DC 20016

Thelma Jones
2217 T Place, SE
Washington, DC 20020

Anthony Muhammad
1609 21st Place, SE
Washington, DC 20020

Jeffrey D. Robinson, Esq. 
Baach Robinson & Lewis, PLLC
1201 F Street, NW, Suite 500
Washington, DC 20004-1225

Terri D. Stroud

1. In their Motion for Stay Pending Appeal, Plaintiffs do not even address these factors.  Instead, they continue in the pattern they exhibited in the filing of their initial Opposition to Defendant’s and Intervenor/Defendants’ Motions to Dismiss by filing a pleading that is completely devoid of supporting argument and analysis and expect that it will carry the day.

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