Hernandez resigns before potential expulsion vote
State Rep. Diego Hernandez has resigned in advance of a scheduled vote to expel him from the Oregon House on multiple violations of a legislative rule against sexual harassment and creating a hostile work environment.
The Portland Democrat sent an email to the House chief clerk and the Oregon secretary of state on Sunday, Feb. 21, that he would resign effective March 31. His formal letter, received Monday, Feb. 22, now says his resignation takes effect March 15.
Hernandez, 33, was in his third term from District 47 in East Portland.
Once his resignation takes effect, Democrats within the district will nominate three to five candidates, and Multnomah County commissioners will appoint one of them to complete the 21 months remaining in Hernandez's term. They have 30 days to complete the process.
A federal judge on Saturday cleared the way for the Oregon House to proceed with the vote during a scheduled floor session on Tuesday, Feb. 23.
Judge Ann Aiken denied Hernandez's bid for a temporary restraining order that would have blocked the House from taking an expulsion vote, which would have been a first in Oregon's 162 years of statehood. A two-thirds majority (40) would have been required under the Oregon Constitution to expel him on grounds of "disruptive behavior."
The House Committee on Conduct 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 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. The committee concluded there were 18 violations of a legislative rule against sexual harassment and creating a hostile work environment.
Hernandez argued that the committee ignored evidence in his favor and that he has not had due process.
Aiken conducted oral arguments Friday — she is based in Eugene — and issued her opinion on Saturday.
Hernandez had refiled the suit, which originally was in Marion County Circuit Court.
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."
NOTE: Updates with resignation taking effect March 15, as stated in letter received Monday by the House chief clerk and Oregon secretary of state.
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