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Brizill v. District of Columbia Board of Elections and Ethics

DISTRICT OF COLUMBIA COURT OF APPEALS


November 22, 2006

DOROTHY BRIZILL, ET AL., APPELLANTS,
v.
DISTRICT OF COLUMBIA BOARD OF ELECTIONS AND ETHICS, APPELLEE, AND BARRY JERRELS AND CITIZENS FOR THE VLT INITIATIVE OF 2006, INTERVENORS.

Appeal from the Superior Court of the District of Columbia (CA-3939-06) (Hon. Judith E. Retchin, Trial Judge)

The opinion of the court was delivered by: Fisher, Associate Judge

Argued September 21, 2006

Before KRAMER and FISHER, Associate Judges, and NEWMAN, Senior Judge.

Appellants Brizill, Jones, and Muhammad sued the District of Columbia Board of Elections and Ethics (the "Board") in the Superior Court, asserting that the Video Lottery Terminal Gambling Initiative of 2006 is not a proper subject of initiative. Concluding that approval of the VLT Gambling Initiative would exceed the legislative powers granted to the District and its citizens by the Home Rule Act, we agree with appellants.

I. The Procedural Background

On April 10, 2006, intervenorBarry Jerrels presented to the Board a proposed initiative to allow video lottery terminals in the District of Columbia. According to the summary statement describing the initiative, video lottery terminals are "very similar to slot machines." If approved by the voters, the initiative would, among other things, order that the District of Columbia Lottery and Charitable Games Control Board grant licenses for operating VLTs; regulate the operation of VLT facilities; and issue permits for persons who manufacture, distribute, service, repair, or perform maintenance on VLTs within the District of Columbia. The initial VLT gambling facility would be located at the intersection of Martin Luther King, Jr., Avenue and Good Hope Road in the Anacostia neighborhood. Additionally, the proposed initiative would require the Lottery and Charitable Games Control Board to grant a Temporary Initial License to the applicant who owns or leases, and has the right to possess, more than fifty percent of the land designated as the initial VLT site.

At a meeting on May 3, 2006, the Board approved the proposed legislation as a proper subject of initiative.*fn1 It then formulated the short title, summary statement, and legislative text of the initiative, which were published in the D.C. Register on May 12, 2006.

As registered qualified voters, appellants filed their complaint challenging the VLT Gambling Initiative on May 22, 2006. Appellant Dorothy Brizill is executive director of DCWatch (a government watchdog organization in the District), appellant Thelma Jones is president of the Fairlawn Citizens Association (a civic organization in the AnacostiaFairlawn community), and appellant Anthony Muhammad is one of the ANC commissioners for the Anacostia community. On June 8, 2006, the Superior Court dismissed the complaint, and appellants timely noticed this appeal.

Appellants challenge the VLT Gambling Initiative on three grounds: (1) that it conflicts with the Johnson Act, 15 U.S.C. §§ 1171-1178 (2006), a Congressional enactment prohibiting the transportation, manufacture, possession, and use of gambling devices in the District of Columbia and certain other jurisdictions; (2) that it impermissibly requires the appropriation of funds; and (3) that it improperly invades the authority of the Mayor by dictating matters of administration. Because the initiative conflicts with, and would amount to a repeal of, the Johnson Act, we hold that it is not a proper subject for initiative. We do not reach the other issues raised by appellants.

II. Legislative Power

This appeal does not require an extended discussion of legislative power in the District of Columbia. In brief, the United States Constitution vests in Congress the power to legislate for the District of Columbia "in all cases whatsoever." U.S. CONST. art. I, § 8, cl. 17. It is often said that Congress has "plenary" power to legislate for the District. See, e.g., Palmore v. United States, 411 U.S. 389, 397 (1973). However, in 1973 Congress enacted D.C. Code § 1-201.01 et seq., popularly known as the District of Columbia Home Rule Act, delegating some, but not all, of its legislative powers to the Council of the District of Columbia while retaining ultimate legislative authority over the District. See D.C. Code § 1-206.01. See also District of Columbia v. Greater Washington Central Labor Council, AFL-CIO, 442 A.2d 110, 113 (D.C. 1982).The Home Rule Act contains several limitations on the power delegated to the Council. D.C. Code § 1-206.02 (2001), formerly D.C. Code § 1-233 (1981). Most importantly for this case, Congress declared that "[t]he Council shall have no authority to . . . enact any act to amend or repeal any Act of Congress . . . which is not restricted in its application exclusively in or to the District." D.C. Code § 1-206.02 (a)(3).

Under certain circumstances the citizens of the District may exercise legislative power directly.For example, the qualified registered voters of the District of Columbia generally may approve through initiative any law that the Council may enact through legislation. D.C. Code §1-204.101 (a), formerly D.C. Code § 1-281 (a) (1981); Convention Ctr. Referendum Comm. v. District of Columbia Bd. of Elections and Ethics,441 A.2d 889, 897 (D.C. 1981) (en banc) (plurality opinion) ("absent express or implied limitation, the power of the electorate to act by initiative is coextensive with the power of the legislature to adopt legislative measures"); id. at 921 (concurring opinion of Newman, C.J., joined by Pryor, J.) (incorporating by reference the rationale of the opinion Chief Judge Newman wrote for the division majority, see 441 A.2d 871, 876 (D.C. 1980) ("the power of the electorate to propose laws through the initiative is co-extensive with the power of the legislative branch of government to pass legislative acts, ordinances, and resolutions")). Nevertheless, the power of initiative is subject to certain additional limitations, including that an initiative may not appropriate funds. D.C. Code § 1-204.101 (a). See District of Columbia Bd. of Elections and Ethics v. District of Columbia (Campaign for Treatment), 866 A.2d 788, 793-94 (D.C. 2005); Hessey v. District of Columbia Bd. of Elections and Ethics, 601 A.2d 3, 16 (D.C. 1991) (en banc). Additionally, an initiative may not be administrative in nature. Hessey v. Burden, 615 A.2d 562, 578 (D.C. 1992).

III. The Johnson Act

In 1951, Congress enacted what has become popularly known as the Johnson Act. Pub. L. No. 81-906, 64 Stat. 1134 (1951) (current version at 15 U.S.C. §§ 1171-1178). The stated purpose of the Johnson Act is "to prohibit transportation of gambling devices in interstate and foreign commerce." Pub. L. No. 81-906 (title).The 1951 Act also prohibited, among other things, the use and possession of gambling devices within the District of Columbia and certain other jurisdictions.

Section 1172 of the Johnson Act prohibits the transportation of gambling devices "to any place in a State or a possession of the United States from any place outside of such State or possession." 15 U.S.C. § 1172 (a).*fn2 However, section 1172 contains an opt-out provision by which "states" can exempt themselves from the provisions of "this section." Id. Although the District of Columbia was not originally defined as a "state" for purposes of the Johnson Act, Congress amended that definition in 1962 to include the District.*fn3 See Gambling Devices Act of 1962, Pub. L. No. 87-840, § 3, 76 Stat. 1075 (1962) (codified as amended at 15 U.S.C. § 1171 (b)).

Section 1175 of the Johnson Act, by contrast, goes well beyond regulating the transportation of gambling devices in interstate and foreign commerce and imposes wide-ranging restrictions within the District of Columbia and certain possessions and territories of the United States.*fn4 15 U.S.C. § 1175 (a). That section makes it unlawful to "manufacture, recondition, repair, sell, transport, possess, or use any gambling device" within one of the covered jurisdictions. Id. The District of Columbia is named individually as a jurisdiction covered by section 1175, and Congress did not change that in 1962 when it defined the District as a "state." Moreover, there is no opt-out provision in section 1175.*fn5 The result is that the prohibitions contained in section 1175 continue to apply to the District of Columbia.

IV. The Initiative

The VLT Gambling Initiative would authorize the transportation, possession, repair and use of video lottery machines within the District of Columbia. However, these very same activities are prohibited by section 1175 of the Johnson Act, which clearly applies to the District of Columbia.*fn6 See 15 U.S.C. § 1175 (a). Most importantly for present purposes, section 1175 also applies to jurisdictions outside the District of Columbia, including "any possession of the United States, . . . Indian country . . . [and] the special maritime and territorial jurisdiction of the United States . . . ." Id.*fn7 Thus, section 1175 obviously "is not restricted in its application exclusively in or to the District." D.C. Code § 1-206.02 (a)(3).

Because section 1175 does not apply exclusively to the District, neither the Council nor the voters through initiative may amend or repeal this Congressional prohibition on using and possessing gambling devices within the District of Columbia.*fn8 Id. See McConnell v. United States, 537 A.2d 211, 214-15 (D.C. 1988) ("although the Council . . . may repeal a congressionally-enacted statute limited in application to the District of Columbia, the Council may not repeal a federal statute of broader application"). Cf. Greater Washington Central Labor Council, 442 A.2d at 116 (Council could repeal workers' compensation legislation enacted by Congress because, although program was administered by the Secretary of Labor, it was "a local law enacted by Congress which was restricted in its application 'exclusively in or to the District'").

V. Conclusion

The VLT Gambling Initiative is not a proper subject of initiative because its adoption would be an attempt to repeal or amend an Act of Congress which does not apply exclusively to the District. This conclusion is dispositive, so we do not reach the other two challenges involving appropriation of funds and infringement on administrative authority. We declare the VLT Gambling Initiative invalid and instruct the Superior Court to grant judgment for plaintiffs. The judgment of the Superior Court is hereby

Reversed and remanded.


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