A federal judge has cleared the way for the Oregon House to vote on whether Rep. Diego Hernandez should be expelled on multiple violations of a legislative rule against sexual harassment.
Though Judge Ann Aiken turned aside state arguments that the U.S. District Court has no authority in the dispute, she also denied the request by the Portland Democrat for a temporary restraining order to block further proceedings against him.
The House is scheduled to take up the recommendation from its Committee on Conduct during a floor session scheduled Tuesday, Feb. 23. A two-thirds majority is required under the Oregon Constitution for expulsion, which would be a first in Oregon's 162 years of statehood.
The committee voted its recommendation on Feb. 5 after four days of hearings involving allegations by five women, although it did not find evidence to support claims by two of them. The three whose claims were supported in 18 separate violations were not identified; Hernandez said they were a lobbyist and two aides to local elected officials.
The rule was broadened in 2019 to cover anyone who does business with the Legislature, not just members and staffs.
Hernandez, 33, is a third-term Democrat who represents District 47 in East Portland. He has argued that the committee ignored evidence in his favor and that he has not had due process.
Aiken conducted oral arguments Friday, Feb. 19 — she is based in Eugene — and issued her opinion on Saturday, Feb. 20.
Hernandez had refiled the suit, which originally was in Marion County Circuit Court. In addition to the Legislature, it names House Speaker Tina Kotek, D-Portland, Reps. Julie Fahey, D-Eugene, and Ron Noble, R-McMinnville, co-leaders of the conduct committee, and Jackie Sandmeyer, interim legislative equity officer and staff to the committee.
Aiken, 69, was chief clerk of the Oregon House back in 1983. She became a Lane County judge in 1988, and a U.S. District Court judge in 1998.
Aiken acknowledged that federal courts have been asked to intervene in similar cases elsewhere, but never before a vote was taken by the legislature. She wrote:
"Importantly, plaintiff (Hernandez) cites no cases, nor has the court found any authority, where a federal District Court has enjoined a state legislature from taking a vote on a bill or resolution before it.
"This court has serious reservations about exercising such action here as plaintiff has made no showing that House of Representatives will vote to expel him by the required two-thirds margin. This is the greatest obstacle to granting the preliminary relief requested by plaintiff."
She did conclude that contrary to arguments by the Oregon Department of Justice, federal courts are not bound by state constitutional provisions and they do have authority to decide what might be considered political a question, because the question does not involve a dispute between federal legislative and executive branches.
"Questions as to whether this court could impose manageable standards resolving disputes over the expulsion of a state legislator or whether cases such as this can be handled under basic equal protection and due process principles are best left for another day.
"For now, it is sufficient to note that numerous other courts have not dismissed similar due process suits on political question grounds."
But Aiken also said the Oregon Legislature does have authority under the state Constitution to discipline legislators or others for "disruptive behavior," and that Hernandez was unlikely at this stage to succeed in his claims that lawmakers deprived him of his federal constitutional rights to free speech or equal protection of the laws.
"Granting the temporary restraining order would require this court to interfere with internal deliberations and processes of the Oregon Legislature on an incredibly limited record. Placing such a restraint on an elected Legislature would not be in the public interest.
"Further, while not binding on this court, principals of comity and federalism indicate that the court should give some deference to the Oregon's constitutional provisions protecting the individual defendants from civil service while the legislature is in session.
"More importantly, the public has strong interest in the Legislature being able to maintain its integrity. The Oregon Legislature is entrusted with power over policing of its own members."
Asia Alvarez Zeller
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