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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 06-CV-686
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)
(Argued September 21, 2006 Decided November 22, 2006)
Dorothy Brizill, pro se, with whom Thelma Jones and
Anthony Muhammad were on the brief, pro se, for appellants.
Terri D. Stroud, Staff Attorney, with whom Kenneth J.
McGhie, General Counsel, was on the brief, for appellee.
Jeffrey D. Robinson, with whom Duane K. Thompson, Sarah
L. Knapp, and Deborah Deitsch-Perez, were on the brief, for intervenors.
Before KRAMER and FISHER, Associate Judges, and NEWMAN,
Senior Judge.
FISHER, Associate 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, intervenor Barry 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.1 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).2 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.3 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.4 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 1175.5 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.6 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.7 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.8
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.
1. The Initiative, Referendum, and Recall Procedures Act
of 1979, as amended, establishes procedures for enacting law in the
District of Columbia through voter initiatives. D.C. Code § 1-1001.16
(2001). Among other things, that Act requires the Board to reject the
proposed measure if it is not a proper subject of initiative under Title
IV of the Home Rule Act (enumerating the powers of the Council of the
District of Columbia). § 1-1001.16 (b)(1).
2. Section 1172 states in relevant part:
(a) General rule. It shall be unlawful knowingly to
transport any gambling device to any place in a State or a possession of
the United States from any place outside of such State or possession:
Provided, 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 provisions of this
section . . . .
3. As amended, 15 U.S.C. § 1171 (b) provides that
“[t]he term ‘State’ includes the District of Columbia, Puerto
Rico, the Virgin Islands, and Guam.”
4. Section 1175 provides in part:
(a) General rule. It shall be unlawful to manufacture,
recondition, repair, sell, transport, possess, or use any gambling
device in the District of Columbia, in any possession of the United
States, within Indian country as defined in section 1151 of Title 18 [of
the United States Code] or within the special maritime and territorial
jurisdiction of the United States . . . .
5 Congress did not expressly amend or repeal section 1175
to make it inapplicable to the District of Columbia, and it is a
cardinal rule of statutory interpretation that “repeals by implication
are not favored.” Morton v. Mancari, 417 U.S. 535, 549 (1974);
United
States Parole Comm’n v. Noble, 693 A.2d 1084, 1087 (D.C. 1997),
opinion adopted, 711 A.2d 85, 86 (D.C. 1998) (en banc). To find a repeal
by implication, the intention of Congress to repeal the earlier act must
be “clear and manifest.” Noble, 693 A.2d at 1087 (quoting Speyer v.
Barry, 588 A.2d 1147, 1165 (D.C. 1991)). Neither the legislative history
nor the plain language of the 1962 amendments exhibits a “clear and
manifest” intention to repeal section 1175 as it applies to the
District. Furthermore, the opt-out provision in section 1172 applies
only to “this section.” See note 2, supra.
6. The Board and intervenors do not contest that these
video lottery terminals are “gambling devices” covered by the
Johnson Act. 15 U.S.C. § 1171 (a) (defining “gambling device”).
See also Citizen Band Potawatomi Indian Tribe of Oklahoma v. Green, 995
F.2d 179, 181 (10th Cir. 1993) (affirming district court’s conclusion
“that the Johnson Act would prohibit the importation of VLTs onto the
Tribe’s land”).
7. It is widely known that there are gambling casinos on
many Indian reservations, and the reader may wonder how this is possible
given the prohibitions of section 1175 of the Johnson Act. On October
17, 1988, Congress passed the Indian Gaming Regulatory Act (“IGRA”),
expressly permitting gambling on Indian reservations under certain
circumstances. Pub. L. No. 100-497, 102 Stat. 2467 (codified at 25 U.S.C.
§§ 2701 to 2721). Section 2710 of IGRA permits the use of gambling
devices, including slot machines, where: (1) the Chairman of the
National Indian Gaming Commission and the Indian tribe’s governing
body authorize such activity; (2) the Indian reservation is within a
State that permits such activity; and (3) the activity is regulated by
the terms of a Tribal-State compact between the tribe and the State in
which the tribal lands are located. 25 U.S.C. § 2710 (d)(1). Section
2710 (d)(6) of IGRA expressly exempts certain types of gambling from the
prohibitions of section 1175 of the Johnson Act. See generally Deborah
F. Buckman, Annotation, Interplay Between Indian Gaming Regulatory Act
and Johnson Act, 2 A.L.R. FED. 2D 241 (2005). We note, in addition, that
section 1175 does not apply to Puerto Rico and the Virgin Islands, which
are not expressly mentioned in its text and are defined as “states,”
not possessions. See 15 U.S.C. § 1171 (b).
8. Appellee and intervenors argue that section 1175 is
“essentially a local law” because it applies only to jurisdictions
where Congress has the ultimate legislative authority – in other
words, where Congress may act as a “local,” rather than a federal,
legislature. They also claim that the Council has the power to amend or
repeal acts passed by Congress in its capacity as the “local”
lawmaker for the District.
Accepting this argument would require us to ignore the
basic rules of statutory interpretation. “The primary and general rule
of statutory construction is that the intent of the lawmaker is to be
found in the language that he has used.” Jeffrey v. United States, 892
A.2d 1122, 1128 (D.C. 2006) (quoting Peoples Drug Stores, Inc. v.
District of Columbia, 470 A.2d 751, 753 (D.C. 1983) (en banc)). The Home
Rule Act does not use shorthand references to laws of “local” or
“national” scope. Rather, its language is clear and unambiguous:
“The 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) (emphasis added).
As we have demonstrated, section 1175 of the Johnson Act
does not apply exclusively in or to the District of Columbia. If
Congress had intended the Council, or District voters, to have the power
to amend or repeal all Acts of Congress constituting “local law,” it
could have used such language in the Home Rule Act. However, it employed
more precise language – “not restricted in its application
exclusively in or to the District” – which precludes the voters from
amending or repealing section 1175 by approving the VLT Gambling
Initiative.