Perennially ethically challenged Loudoun Republican Supervisor Eugene Delgaudio (R-Sterling) is never one to miss a chance to stage a bit of political theater, but this time he may even have outdone himself: facing a possible vote of censure at tomorrow night’s Board of Supervisors for unethical conduct that even his fellow GOP supervisors cannot completely ignore, Delgaudio last night filed suit in Loudoun Circuit Court seeking a temporary injunction to block the Board from taking up the little matter of his misuse of office, accepting $5,000 in illegal cash campaign contributions from a local pastor, abuse of his staff, and neglect of basic duties of office.
Of course you never know what a court will do, but as even Eugene’s 15-year-old lawyer must realize, the only thing less likely than any court on the planet granting such an injunction is Eugene being named pope.
Based on only about five centuries of English and American legal precedent, most recently reaffirmed by the U.S. Supreme Court in a 2008 decision, it is only under the most extraordinary circumstances that a court may issue a restraining order in advance of a trial to hear the merits of a case. The plaintiff must establish all of the following conditions:
• that there is a “substantial likelihood” he will prevail on the merits
• that he will suffer “irreparable harm” if the preliminary injunction is not granted
• that the harm the plaintiff will suffer from not having an injunction granted will outweigh the harm the other party may suffer as a result of the injunction being issued
As for irreparable harm, even if the Board were to censure Delgaudio or vote for some punishment such as taking away his office budget, any harm he suffered would be temporary and reversible if (very unlikely) a court subsequently ruled in his favor on the merits.
But much more to the point, there are overwhelming legal precedents — including one involving a Loudoun Couty Republican supervisor who went to court in 1996 seeking to have the Board’s censure of his unethical conduct invalidated (my, how history repeats itself) — establishing that courts have no power whatsoever to interfere in the business of a legislative body disciplining one of its members. As the Federal court of appeals ruled in that 1996 Loudoun case, “a legislative body’s discipline of one of its members is a core legislative act,” to which “absolute legislative immunity” applies. Courts simply have no legal basis to second-guess the actions of a co-equal branch of government in such matters.
So why is Eugene engaging in this apparently futile and hopeless stunt? The answer, as always, is that it is pure political theater. Delgaudio is hoping to build a whiny case in the court of public opinion (where he has done so well in the past) that poor, persecuted Eugene is being unfairly picked on and denied his rights. His motion for an injunction demands, among other things, that before the Board takes any vote to censure him, it must present him with a written list of formal charges, provide advance notice of any hearings, allow him to cross-examine witnesses, and grant him the power to subpoena his own witnesses — all specious attempts to suggest that disciplining a member of a legislative body for misconduct is somehow akin to a court proceeding where the defendant enjoys the presumption of innocence and all the other trappings of a trial. Of course it is no such thing.
What this also shows is of course real desperation. Delgaudio is willing to go down in flames and take the rest of the Board with him if he can.
As we said before, it’s certainly cheap entertainment! Might be worth staying up late Wednesday night for Item 18 on the Board’s agenda to see if Eugene goes completely postal — or, possibly even more entertaining, if he manages to provoke Chairman Scott York (R) into one of his legendary anger-management failures.