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D.C. LOTTERY BD. CHAIRMAN v. D.C. FIN. RESPONSIBIL

January 17, 1997

D.C. LOTTERY BOARD CHAIRMAN, KEN BREWER, et al., Plaintiffs,
v.
D.C. FINANCIAL RESPONSIBILITY AND MANAGEMENT ASSISTANCE AUTHORITY, et al., Defendants.


JAMES ROBERTSON, United States District Judge


The opinion of the court was delivered by: ROBERTSON

Plaintiffs were members of the D.C. Lottery & Charitable Games Control Board ("Lottery Board"), appointed by the Mayor. They voted on September 20, 1996 to discharge the Lottery Board's Executive Director, Frederick L. King, Jr. On September 21, the D.C. Financial Responsibility and Management Assistance Authority (commonly, if incorrectly, known as the "Financial Control Board") ordered the Lottery Board to reinstate Mr. King and ordered that all Lottery Board personnel were thereafter to report to the Chief Financial Officer of the District of Columbia rather than to the Lottery Board. All three plaintiffs then resigned -- Alice Davis on September 23, and Kenneth Brewer and Barbara Garnett on September 24. *fn1" They filed this suit, challenging the Control Board's order, on October 1. Their application for a temporary restraining order requiring, inter alia, their reinstatement, was heard and denied the next day. Plaintiffs then amended their complaint and moved for a preliminary injunction. Defendants -- the Financial Control Board and the D.C. City Council -- oppose the motion for preliminary injunction and move to dismiss. *fn2"

 As is more fully explained below: (1) All counts against the D.C. City Council will be dismissed because Council members are immune from plaintiffs' claims for money damages and because this Court has no power to direct the votes of Council members. (2) All counts against the Financial Control Board except plaintiffs' First Amendment claim will be dismissed. The First Amendment claim cannot be adjudicated without further proceedings to determine, among other things, whether plaintiffs have standing to pursue that claim and whether the Control Board exceeded its authority when it issued the September 21 order. (3) The motion for preliminary injunction will be denied because the likelihood that plaintiffs will succeed on the merits of their First Amendment claim is outweighed by strong public interest considerations.

 1. D.C. City Council

 Plaintiffs' claims against the City Council apparently arise from the introduction (but not the passage) of two bills (11-901 and 11-902) that would have abolished the Lottery Board as currently constituted and from the holding of a public hearing on those bills. The District of Columbia's local speech and debate statute, D.C. Code § 1-223, protects "everything said, written, or done during legislative sessions, meetings, or investigations of the Council or any committee of the Council, and everything said, written, or done in the process of drafting and publishing legislation and legislative reports." D.C. Code § 1-222(b). That provision immunizes the Council from claims for damages arising from the actions of which plaintiffs complain. See Gross v. Winter, 277 U.S. App. D.C. 406, 876 F.2d 165, 173-74 (D.C. Cir. 1989).

 Plaintiffs' prayer for injunctive relief against the Council is also foreclosed. Council members have a constitutionally protected right to cast unimpeded votes on issues of public importance. See Clarke v. United States, 280 U.S. App. D.C. 387, 886 F.2d 404 (D.C. Cir. 1989), vacated as moot, 286 U.S. App. D.C. 256, 915 F.2d 699 (D.C. Cir. 1990) (en banc). Plaintiffs have identified no compelling interest that stands in opposition to that protection.

 2. Financial Control Board

 a. Retaliation claim

 Plaintiffs complain in Count I of unlawful retaliation in violation of the D.C. Human Rights Act, D.C. Code § 1-2501 et seq., and seek damages for "lost wages, benefits, and entitlement, damages to . . . careers and reputation, pain and suffering, humiliation and emotional distress." Count I fails to state a claim upon which relief may be granted for at least two reasons. First, only three provisions of D.C. law have been made applicable to the Financial Control Board by Section 108(a)(3) of Public Law 104-8, and the D.C. Human Rights Act is not one of them. Second, even if the D.C. Human Rights Act were applicable to the Financial Control Board, these plaintiffs, as D.C. government employees, *fn3" have no private right of action against the Control Board. See Holland v. Board of Trustees of U.D.C., 794 F. Supp. 420, 422 (D.D.C. 1992); Rasul v. District of Columbia, 680 F. Supp. 436, 439 (D.D.C. 1988); Dougherty v. Barry, 604 F. Supp. 1424, 1442 (D.D.C. 1985). *fn4"

 b. First Amendment violation

 Plaintiffs next assert that, by ordering Mr. King's reinstatement, the Control Board effectively ordered Lottery Board members to vote for Mr. King's reinstatement, and that such an order abridged their First Amendment rights to free expression.

 Before addressing the substance of that claim, it is necessary to discuss the Control Board's argument that these plaintiffs lack standing because they all resigned from the Lottery Board before they filed their suit. If indeed their resignations were legally effective, they would lack standing because they could not cast votes against Mr. King's reinstatement. See Keyishian v. Board of Regents, 385 U.S. 589, 592, 17 L. Ed. 2d 629, 87 S. Ct. 675 (1967); see also Bois v. Marsh, 255 U.S. App. D.C. 248, 801 F.2d 462, 466 and n.6 (D.C. Cir. 1986). Plaintiffs Brewer and Garnett contend, however, that they withdrew their resignations before Mayor Barry accepted them and before they filed this suit. The Control Board's reply to that contention is a transcript of the Lottery Board's meeting (or non-meeting) of October 3, 1996, after the commencement of this suit, at which plaintiff Brewer announced that the Mayor had accepted the resignations and that the Board meeting would not take place for lack of a quorum. Neither side has briefed the question of what constitutes a "resignation" -- or whether, indeed, the issue is governed by common law or by some statute or regulation. More importantly, there are unresolved questions of fact regarding the timing and voluntariness of the resignations. The standing argument cannot be decided on the present record.

 The substance of the First Amendment claim is that the Control Board improperly interfered with plaintiffs' votes as Lottery Board members. That theory proceeds from the decision of the Court of Appeals in Clarke v. United States, 280 U.S. App. D.C. 387, 886 F.2d 404 (D.C. Cir. 1989), vacated as moot, 286 U.S. App. D.C. 256, 915 F.2d 699 (D.C. Cir. 1990) (en banc). In 1987, the District of Columbia Court of Appeals ruled that Georgetown University was prohibited by the D.C. Human Rights Act from denying gay students equal access to University facilities and services. Congress reacted to that ruling by making the federal payment to the District of Columbia conditional upon the City Council's amending the D.C. Human Rights Act so that Georgetown and other private educational institutions affiliated with religious organizations could lawfully deny benefits to homosexuals. The members of the City Council sued Congress, asserting that Congress could not constitutionally compel them to vote a particular way. A panel of the United States Court of Appeals agreed with the plaintiffs, concluding that the votes of City Council members are constitutionally protected because they are "intended to express their positions on issues of public policy, and are understood to do so by the Council members' constituents and other observers." 886 F.2d at 412.

 The Control Board responds to plaintiffs' invocation of the Clarke case by attempting to distinguish it: The plaintiffs in Clarke were elected officials, whereas Lottery Board members were appointed; the votes involved in the Clarke case were legislative votes, while a vote to reinstate an executive director ...


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