Petition for Review of a Decision of the District of Columbia Board of Elections and Ethics.
Before Farrell and Ruiz, Associate Judges, and Newman, Senior Judge.
The opinion of the court was delivered by: Farrell, Associate Judge
Opinion for the court by Associate Judge FARRELL.
Concurring opinion by Associate Judge RUIZ at page 38.
Petitioner, the Citizens Committee for the District of Columbia Video Lottery Terminal Initiative (the Citizens Committee), challenges a decision of the District of Columbia Board of Elections and Ethics (the Board) rejecting proposed Initiative Measure No. 68, entitled "The District of Columbia Video Lottery Terminal Initiative of 2004," on the ground that irregularities in the petition circulation process so "polluted" the signature-gathering operation conducted by a subcontractor, Stars and Stripes, Inc. (Stars and Stripes), as to require invalidation of all petition sheets circulated and signatures gathered by the Stars and Stripes circulators. After exclusion of these signatures, the number of apparent verified signatures remaining was below the number of 17,599 signatures of voter registrants citywide necessary to place the measure on the election ballot.*fn1 The Board therefore declined to certify the initiative for submission to the electorate. For the reasons that follow, we affirm the decision of the Board.
The Board rejected the petition sheets and signatures attributable to the Stars and Stripes operation*fn2 after a lengthy evidentiary hearing and after finding essentially two classes of wrongdoing by Stars and Stripes circulators headquartered at the Red Roof Inn, a hotel located at 500 H Street, N.W. The first, so-called "false signing" irregularities, concerned the affidavit requirement of D.C. Code § 1-1001.16 (h) (2001), which requires an initiative petition circulator to certify under penalty of perjury that, among other things, he or she is a District of Columbia resident who "was in the presence of each person [signing a petition sheet] when the appended signature was written," and that "according to the best information available to the circulator, each signature is the genuine signature of the person it purports to be." Id. § 1-1001.16 (h)(3) & (4).*fn3 The second class of irregularities, which the Board called "false advertising," concerned the regulation of the Board, 3 DCMR § 1003.6, that requires a circulator to swear that he or she "has not made any false statements regarding the initiative . . . to anyone whose signature is appended to the petition." The Board found that language on a T-shirt worn by circulators ("Sign Up! For Jobs, Education & Healthcare") and oral communications to the same effect by circulators "were designed to induce potential signers to sign the petition based on the representation that the initiative would produce benefits for [District of Columbia] schools and healthcare." But because "Initiative Measure No. 68 did not - and could not - make any such promise or guarantee," the Board found that the representations made to potential signers both orally and via the T-shirts "constituted misrepresentations of Initiative Measure No. 68, and were therefore in violation of the attestation in the circulators affidavit that prohibits the making of false statements regarding the Initiative."
This court initially remanded the record to the Board for clarification of its ruling in light of significant First Amendment concerns raised by the Citizens Committee (as well as the ACLU as amicus) regarding the Board's exclusion of signatures based on "false advertising." We asked the Board to clarify (1) whether or not it intended its decision invalidating the Stars and Stripes petitions to rest independently on either class of improprieties found, in particular on the "false signings," and (2) if so, why. We further stated that "assuming the Board answers the first question affirmatively, it may wish to offer additional explanation of why it believes exclusion of signatures gathered by Stars and Stripes circulators, or sub-classes of such circulators, in addition to those who testified or were named in testimony before the Board, is warranted."
Following the remand, the Board issued a lengthy memorandum opinion that stated in conclusion:
The Board's finding regarding "false signings" is separate from its "false advertisement" finding and provides an independent basis on which the Board intends its decision to rest. Because of the pervasiveness of the irregularities associated with the "false signings" and the accompanying pollution of the process that those irregularities fostered, the Board's decision invalidating the Stars and Stripes petition sheets rests independently on the finding regarding "false signings."
The Board reaffirmed and further explained its conclusion that "there was a systemic pattern of wrongdoing that permeated the Red Roof Inn operation," a "pervasive pattern of fraud, forgeries and other improprieties" that necessitated exclusion not just of petition sheets circulated by individuals implicated in wrongdoing by name at the hearing, but of all those circulated by the Stars and Stripes operation.
We affirm the Board's thoroughly documented and carefully explained decision, substantially for the reasons stated in its supplemental opinion attached hereto.
The Board's manifold findings of circulator impropriety, which are supported by substantial evidence in the record as a whole, Pendleton v. District of Columbia Bd. of Elections & Ethics, 449 A.2d 301, 307 (D.C. 1982),*fn4 include the following:
- - Of the seventy-nine Stars and Stripes circulators the Board was able to identify from documents provided by the Citizens Committee, twelve appeared at the hearing in response to subpoena by the Board. Eight of these testified to having falsely signed circulator affidavits, and two refused to testify on grounds of self-incrimination. Those who testified identified three other circulators by name who had engaged in similar false signings. The Citizens Committee, by contrast, called no Stars and Stripes circulators to testify.
- - Besides implicating themselves and naming other wrongdoers, the witnesses "implicated . . . a much larger group of unnamed wrongdoers." In particular, Mike Jones, a "mid-level/supervisory affiliate of the Stars and Stripes organization," had engaged in the "well-known common practice" of having D.C. residents sign the affidavits of non-resident circulators. ("The out-of-towners," as one resident witness testified, would "go out all day and get signatures; but they didn't have [any]body to sign it. And so I made a couple of extra dollars by just signing . . . their papers.") Other non-resident circulators likewise claimed not "to worry about D.C. residents being there [to witness petition signatures] . . . [T]hey had D.C. residents all lined up to sign off on the signature[ petitions] after they turned them in."
- - Regarding some fifty-four petition sheets, the documents themselves showed that the signatures or printed names on the circulator affidavits had been crossed out and another signature or name substituted. "Indeed, the names of twenty-three different circulators appear as the replacements for the crossed-out signatures or names on the altered petition sheets."*fn5
- - Witnesses testified to forgery of their signatures on affidavits. One witness said that of the twenty petition sheets attributed to him, he circulated only two; and another said he had circulated none of the forty petition sheets attributed to him. In addition, the Board "gave some credence" to reports of a "signing party" at the Red Roof Inn where names and addresses were allegedly copied from the telephone books onto petition sheets.
- - Eight circulators who could not be subpoenaed had listed addresses on the affidavits that were non-existent or related to premises that were abandoned.
On the basis of this evidence, the Board found "a pervasive pattern of fraud, forgeries, and other improprieties that permeated the petition circulation process" operated by Stars and Stripes, in that witnesses had testified "not to individual acts of wrongdoing in an otherwise lawfully functioning system, but to an operation in which false signings were an established practice." In determining the proper remedy for this practice, the Board also considered the failure of the Citizens Committee to produce contrary evidence:*fn6
The Citizens Committee provided no evidence which contradicted the individual acts of wrongdoing to which the witnesses testified. It provided no evidence to rebut the established practice of "false signings" in which Mike Jones was identified as playing a key role . . . . It provided no evidence to rebut the physical evidence presented by the altered circulator affidavits - indeed, it conceded the vast majority of those challenged sheets. And . . . it made no apparent effort to produce witnesses who could not be located through the Board's subpoena process. [Emphases in original.]
Given the unrebutted "evidence of pervasive 'false signing' irregularities," the Board concluded that "the taint on the entire Stars and Stripes process requires the rejection of all signatures associated therewith." Because there was substantial unrebutted "evidence of wrongdoing which goes beyond named individuals to the [Stars and Stripes] operation as a whole," invalidation of the entire fruits of that operation was necessary, it concluded, "[i]f the integrity of the electoral process is to be maintained."
Just as we uphold the Board's findings of fact as supported by substantial evidence, we hold too that its conclusions of law flow rationally from those findings and comport with the applicable law. See generally, e.g., Cathedral Park Condo. Ass'n v. District of Columbia Zoning Comm'n, 743 A.2d 1231, 1239 (D.C. 2000). The Board's conclusion that the pervasiveness of the wrongdoing associated with Stars and Stripes required exclusion of all petitions circulated by that operation is a mixed one of law and fact. It is factual, and thus requires substantial deference by this court, to the extent that it rests on the determination that the improprieties shown by the evidence point to "systemic" wrongdoing, i.e., an established pattern of fraud, forgery, and disregard of the statutory "in the presence" requirement by circulators and condoned by supervisors such as Mike Jones. It is more legal in nature to the extent that it presents the question whether the Board properly drew inferences adverse to the Citizens Committee from the Committee's failure to produce any Stars and Stripes circulators to contradict the evidence of wrongdoing presented. In the circumstances of this case, the Board's use of what amounts to a missing witness inference to extrapolate from the evidence it heard to a broader conclusion about the integrity of the Stars and Stripes operation was proper. As the Board pointed out, fully 83% of the Stars and Stripes circulators who responded to its subpoena gave testimony about false signings. Others were properly served with a subpoena but failed to appear, and the Board was unable to serve a still larger number. These circulators, because they had been employed by the Citizens Committee (and in many instances had been paid by it), were peculiarly within its control or ability to present as witnesses, and could be expected to shed significant light on the issues before the Board. Yet the Committee did not present a single one of them as a witness. In such circumstances, the law permits a trier of fact to draw unfavorable inferences about testimony against the party best equipped to call the witness but who fails to do so. See, e.g., McPherson-Corder v. Chinkhota, 835 A.2d 1081, 1085-86 (D.C. 2003); Strong v. United States, 665 A.2d 194, 197 (D.C. 1995); Lawson v. United States, 514 A.2d 787, 789 (D.C. 1986).*fn7 The Board's conclusion, drawn partly - but only partly - from this absence of rebuttal evidence, that the wrongdoing shown by the evidence extended well into the ranks and hierarchy of the Stars and Stripes operation is supported factually and legally.
The Citizens Committee's response to this conclusion is basically twofold. First, the witnesses who testified and admitted wrongdoing were not "a random sample of circulators," it says; rather they were a small sub-group who "had a variety of connections to each other that make them more likely to have acted in concert with each other, but which distinguish them from the remainder of the Stars and Stripes circulators." The Board was not required to accept this improbable notion that those who alone had behaved wrongly were also those more "likely to appear together" under oath and admit wrongdoing. Similarly, the Committee asserts that it would have been "pointless" for it to attempt to "rebut the testimony of individuals who confessed to their own wrongdoing." But while it indeed might have been fruitless to attempt to rehabilitate these witnesses in particular, the Board found that their testimony demonstrated a pattern and practice of wrongdoing by Stars and Stripes circulators, and the absence of any contrary testimony showing the proper day-to-day conduct of the operation - by persons "informed about what was going on in the field" - was something that the Board could properly take into account.
We likewise uphold as reasonable the Board's determination that striking all of the petition sheets generated by Stars and Stripes was necessary to preserve the integrity of the ballot process. D.C. Code § 1001.16 (k)(1)(D) permits the Board to reject an initiative or referendum petition if "[t]he petition sheets do not have attached to them the statements of the circulators as provided in subsection (h) of this section." Subsection (h), as explained at the beginning, sets forth the important affidavit requirements to be met by a petition circulator, including an assertion under penalty of perjury that the circulator was in the presence of each person who signed a petition sheet. In cases of proven false signing of affidavits, the Board thus has undeniable authority to strike whole petition sheets associated with that impropriety. We likewise believe that, in a case such as this where the Board has justifiably found that wrongdoing permeated a signature-gathering operation, it may adopt the remedy of excluding all petitions associated with that operation - here Stars and Stripes. That remedy does not "disenfranchise legitimate voters," as the Citizens Committee argues, but rather upholds "the integrity of [an initiative] process" that has been "undermined by forgeries and . . . fraud." Williams v. District of Columbia Bd. of Elections & Ethics, 804 A.2d 316, 321 (D.C. 2002).
In Williams, a nominating petition case, we held that the Board "acted within its proper authority by disallowing all of the [voter] signatures attributable to" a family of circulators, the Bishops, who the Board found had engaged in widespread pollution of the petition-circulating process. Id. at 321 (emphasis added). The Citizens Committee argues that Williams may support exclusion of a subset (not clearly defined) of the Stars and Stripes petitions but not the entire class; the Board there did not imply, it says, that the petition sheets from other circulators who had not participated in the Bishops' wrongdoing could properly be rejected. In fact, of course, neither the Board nor the court in Williams had occasion to reach that issue of extrapolation because exclusion of the Bishop petition sheets alone brought the number of valid ones below what the law required for the candidate to appear on the ballot. Id. at 317. Williams nevertheless endorsed the principle that the filing of a false affidavit by a petition circulator is much "'more than a technicality'" and instead "'destroys the safeguards [by which nomination signatures are obtained and verified] unless there are strong sanctions for such conduct such as voiding of petitions with false certifications.'" Id. at 319 (emphasis added) (quoting Brousseau v. Fitzgerald, 675 P.2d 713, 715 (Ariz. 1984)). In the present case, the Board found the relevant analogue to the Bishop circulators in Williams to be the Stars and Stripes operation, stained as it was by "a pervasive pattern of fraud, forgeries and other improprieties that permeated the petition circulation process." Given that finding, exclusion of all of the Stars and Stripes petitions was a proper remedy.
It is worth pointing out, moreover, that even a remedy well short of excluding all of the Stars and Stripes signatures would have placed the Citizens Committee's effort to gain ballot access in grave jeopardy. In briefs and at oral argument, the parties agreed that after the Board's initial check of petition signatures against the voter registration lists, and after withdrawal of a large number of petition sheets by the Citizens Committee, some 21,664 signatures remained in support of the initiative, a number subsequently reduced to 21,279 by challenges technical in nature. Only at that point did the Board take up the substantive allegations about the petitioning process that gave rise to the evidentiary hearing and the ultimate findings of serious wrongdoing we have described. As Attachment A to the Board's supplemental opinion reveals, approximately 19,506 apparently valid signatures remained after the Board struck the petition sheets of the eight Stars and Stripes circulators who testified and admitted to false signings, the two who appeared at the hearing but refused to testify, and the three named by the testimony as additional false signers. Attachment A sets forth three additional categories of Stars and Stripes circulators whose petition sheets, if excluded, further reduced the number of remaining signatures to 18,093 - less than five hundred above the citywide required minimum of 17,599. These were circulators who (1) had submitted false declarations of address of residence, (2) had participated in alteration of affidavits, or (3) had been properly served with Board subpoenas but failed to appear in the face of allegations of wrongdoing on their part. Regarding each of these categories, the Board was within its right to exclude - as it did - all signatures attributed to those circulators. But further, in Attachment B the Board named fifteen more circulators described as "unaffiliated" who evidence showed had taken part in similar acts of affidavit alteration and false declarations of address. If excluded, the signatures attributed to these circulators would have reduced the remaining signatures before the Board by almost another thousand, well below the statutory minimum. The Board did not strike these signatures only because it could not link the circulators to Stars and Stripes, although it made clear (in footnote 25 of the supplemental opinion) its belief that blame for the inability to establish their affiliation lay with the Citizens Committee.
The point of this discussion is not to furnish an alternative rationale for the agency's decision: the Board struck all of the Stars and Stripes petition sheets, and no others.*fn8 What the numbers do signify, however, is that unless the Board was obliged to choose the narrowest feasible remedy for the wrongdoing it found - i.e., excluding only the petition sheets of specifically named circulators for Stars and Stripes - then the remaining signatures after any remedy it imposed were almost certain to fall short. For the reasons discussed, the Board acted within its authority in concluding that a broad remedy of exclusion - commensurate with the magnitude of the wrongdoing it had found - was necessary to preserve the integrity of the circulation process.*fn9
CLARIFICATION MEMORANDUM OPINION
In an oral ruling of the District of Columbia Board of Elections' and Ethics ("the Board") rendered on August 3, 2004, as memorialized in a written Memorandum Opinion and Order issued on August 13, 2004, the Board concluded that the petition circulation process for the "Video Lottery Terminal Initiative of 2004" ("Initiative Measure No. 68") was so polluted by irregularities and improprieties as to warrant the rejection of signatures collected by Stars and Stripes, Inc., the primary petition drive subcontractor operating out of the Red Roof Inn hotel. Following an appeal to the District of Columbia Court of Appeals, the Court, by Order entered on September 13, 2004, remanded the record to the Board for a clarification of the Board's Opinion. Specifically, the Board was directed to address the question whether the Board's finding regarding "false signings" is an independent basis - separate from its "false advertising" finding - upon which the Board intends its decision to invalidate the Stars and Stripes petition sheets to rest, and if so, the reasons why. (See Order at 5.)*fn10 The Board was also invited to offer any additional explanation for the "exclusion of signatures gathered by particular Stars and Stripes circulators or sub-classes of such circulators in addition to those who testified or were named in testimony before the Board." (Id.) This Clarification Memorandum Opinion constitutes the Board's response to the Court's inquiries.
The Board's finding regarding "false signings" is separate from its "false advertisement" finding and provides an independent basis on which the Board intends its decision to rest. Because of the pervasiveness of the irregularities associated with the "false signings" and the accompanying pollution of the process that those irregularities fostered, the Board's decision invalidating the Stars and Stripes petition sheets rests independently on the finding regarding "false signings." The reasons, together with explanatory information regarding the justification for excluding Stars and Stripes circulators, are discussed below.
The Independent Nature of the "False Signings" Finding
The Board attempted to subpoena 102 circulators, fifty-three of whom could not be served and sixteen of whom ultimately appeared before the Board.*fn11 Of the sixteen subpoenaed circulator witnesses who appeared, twelve were from the Red Roof Inn operation.*fn12 Of the twelve witnesses, eight testified of false signings;*fn13 two witnesses asserted their Fifth Amendment right against self-incrimination and were not recalled;*fn14 and two witnesses were found by the Board to have essentially complied with the "in the presence" component of the circulator affidavit requirement.*fn15 Thus, ten of twelve - or 83% - of the circulator witnesses who responded to the Board's subpoena from the Red Roof Inn operation either testified about false signing irregularities in the petition circulation drive, or asserted their Fifth Amendment right against self-incrimination in connection with questions concerning the affidavit they had signed. All of these witnesses worked under the auspices of Stars and Stripes.*fn16
The fact that such a high percentage of the subpoenaed circulator witnesses who appeared before the Board from the Red Roof Inn operation testified to false signing irregularities or chose not to testify raised serious concerns regarding whether the irregularities were isolated instances confined to these individuals, or were indicative of a pervasive pattern of wrongdoing as the Challengers had alleged. The testimony of these individuals and others, together with relevant documentary and other evidence, ...