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Diego Hernandez acts after the state seeks to quash action because of constitutional ban on civil suits during sessions.

PMG FILE PHOTO - State Rep. Deigo Hernandez has moved his lawsuit against Oregon Legislative leaders to federal court.State Rep. Diego Hernandez has moved his lawsuit against the Oregon Legislature, and his request for an order to block a House vote on his pending expulsion, to federal court.

The new suit seeks a temporary restraining order against the Oregon House, which has scheduled consideration of a recommendation to expel him on Tuesday, Feb. 23.

The suit was refiled Thursday, Feb. 18, in U.S. District Court in Eugene, the day after lawyers for the Oregon Department of Justice moved to quash the suit by the Portland Democrat.

Arguments filed by Assistant Attorney General Marc Abrams said that the Oregon Constitution bars Hernandez (or anyone else) from filing a civil suit against the Legislature while it is in session, that he was unlikely to prevail in court on the merits of his case, and that it was a political question outside the authority of the court.

Salem lawyer Kevin Lafky filed the original suit on Hernandez's behalf Feb. 12 in Marion County Circuit Court.

Deprived of due process

Hernandez, 33, is in his third term from District 47 in East Portland. The House Committee on Conduct, which is equally divided between Democrats and Republicans, recommended Feb. 5 that the House expel Hernandez on 18 violations of a legislative rule barring sexual harassment creating a hostile work environment. The rule originally applied to lawmakers and staff, but was broadened in 2019 to cover anyone doing business with the Legislature.

The committee came to those conclusions after outside investigators found there was evidence to support allegations by three of five women. The three were not named — the identities of the other two surfaced during public hearings Feb. 1 to 4, although the committee turned aside their allegations — but Hernandez said one was a lobbyist and two were aides to local elected officials.

Hernandez has argued that he did not get a fair chance to rebut evidence presented against him during four days of hearings, except for a written report. He also alleges that the rule, as it was carried out, deprives him of procedural due process.

The full House is scheduled on Feb. 23 to take up the recommendation, which would require a two-thirds majority for expulsion, an action never taken by either chamber during Oregon's 162 years of statehood. Legislators in Arizona and Colorado were expelled in 2018 on grounds of sexual harassment.

Hernandez seeks a temporary restraining order to block further proceedings. Named as defendants are House Speaker Tina Kotek, D-Portland — who called last year for Hernandez to resign when she announced the investigation — Democratic Rep. Julie Fahey of Eugene and Republican Rep. Ron Noble of McMinnville, the co-leaders of the conduct committee, and Jackie Sandmeyer, interim legislative equity officer, and staff to the committee.

Hernandez's request says federal courts are not bound by the state ban on civil lawsuits against lawmakers while the Legislature is in session. He said it is a matter of his federal constitutional rights to free speech and equal protection under the laws, not a political question, that is at stake. He also argued that his case can succeed on the merits.

The suit says: "Plaintiff does not need to prove that his constitutional rights to procedural due process have already been violated for this court to grant a temporary restraining order. Plaintiff need only show the likelihood of a deprivation of his constitutional rights and an irreparable injury absent a temporary restraining order, which, as explained in more detail below, he has sufficiently done."

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