But Superior Court Judge Anthony C. Epstein said in a Friday hearing he saw no grounds to intervene. “I don’t think I have any conceivable authority to tell a member of the legislative branch . . . what they can consider and what they can’t consider,” he said.
Graham’s attorneys argued that the ethics board broke its own laws and regulations, as well as constitutional due process rights, by not allowing Graham to review documents and present evidence countering the findings of a previous investigation. That report, ordered by Metro’s board of directors, became the basis of the ethics board’s probe.
But while the board said it had found cause to pursue a formal investigation and possible sanctions, it dropped the case against Graham, saying it had no authority to penalize Graham under laws in place at the time he is said to have acted improperly.
The board said it was free under its rules to explain the findings of its preliminary investigation without proceeding to a more formal hearing process, and Epstein appeared to agree.
“I don’t think he has established a high likelihood of success” on the merits of the case, Epstein told Graham attorney Caroline J. Mehta. “I don’t see any reason not to take the board’s statement . . . at face value.”
Graham, a four-term legislator who holds two law degrees and served as a clerk to former Chief Justice Earl Warren during his retirement, attended the hearing and sat at the plaintiffs’ table. He watched as Mehta argued that allowing the board’s opinion to stand would affect his “continuing relationship with his constituents.”
Mehta spoke on Graham’s behalf after the hearing, saying they were “undeterred” and would continue to pursue the case.
“Our point was to send a message to the board and really everyone who is making judgments in this matter that the board’s rush to judgment . . . does not deserve any respect or weight,” she said.
D.C. Council Chairman Phil Mendelson (D) suggested on Thursday that he would proceed with Monday’s reprimand vote regardless of how the court ruled. But Mehta warned lawmakers to tread carefully.
“We encourage any council member to put themselves in Mr. Graham’s shoes and ask them themselves what process they would like to be entitled to before being subject to professional sanction,” she said. “It’s completely unwarranted.”