Oregon state Rep. Diego Hernandez, D-Portland, speaks at a rally Sunday, June 24, 2018, in Portland, Ore.

A judge will allow the state legislature's vote to expel Rep. Diego Hernandez to proceed.

Bryan M. Vance / OPB

Oregon Rep. Diego Hernandez’s attempt to stop the House of Representatives from voting on whether to expel him from the state Legislature failed Saturday when a judge declined to intervene.

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Earlier this month, a panel of lawmakers determined Hernandez harassed and created a hostile work environment for three women. The entire House could vote as soon as Tuesday on whether to expel the Portland Democrat.

Hernandez’s lawsuit sought a temporary restraining order to stop the vote on expulsion and to prevent any other sanctions. But United States District Court Judge Ann Aiken made it clear the Oregon Legislature has been “entrusted with power over policing its own members,” and she was leery of allowing the court to intervene.

In her opinion, issued Saturday afternoon, the judge noted Hernandez’s contention was he would suffer “public condemnation, damaged reputation, and reduced financial expectations” if he was expelled without being provided “a meaningful opportunity to be heard.”

“However, plaintiff has not plead any facts that his expulsion is certain or even likely to occur,” Aiken wrote. “In order to forestall the possibility of this uncertain outcome, the Court would need to intrude on the prerogatives of the Oregon Legislature, ordering, as (Hernandez) requests, that the House of Representatives not even consider a resolution submitted by its own members.”

It would take a two-thirds vote or 40 members of the House to expel Hernandez.

The third-term Democratic lawmaker, who represents East Portland, would be the first person expelled from the Legislature, according to available state records. The vote would not happen, however, if Hernandez decided to resign first.

During the oral arguments held on Thursday, Hernandez’s attorney, Kevin Lafky, argued the lawmaker has not had a meaningful chance to present his case. The House Conduct Committee, Lafky said, missed evidence that would have added context and nuance to Hernandez’s case. When Hernandez tried to offer more evidence to bolster his case, his attorney pointed out, much of it was highly redacted.

“It would be like a jury saying, ‘Well, judge, thanks for those exhibits. But I’m not going to consider them,’” Lafky told the judge.

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Hernandez’s lawsuit included several text messages with the women who were part of the investigation and extensive communication records that were not presented during legislative hearings examining his behavior.

Aiken, the judge, disagreed with Lafky’s interpretation in her opinion, noting Hernandez was able to participate and respond to the investigation, to the House Conduct Committee members. And, she noted, he will have a chance to speak to his colleagues on the House floor before they vote on whether to expel him.

House Speaker Tina Kotek, also a Portland Democrat, has already said the normal time constraints put on floor debates would be waived, giving anyone an opportunity to speak as long as they needed while discussing the vote.

During the oral arguments, the judge also pointed out the vote was initially planned for last Tuesday and Hernandez had not planned to attend or testify.

The Feb. 16 scheduled vote was canceled due to the weather, but Hernandez filed an excused absence on Feb. 12 citing he would not be present for the vote due to “physical and mental health reasons.”

Marc Abrams, the attorney representing the state Legislature, argued the lawmaker was “subjected to an extensive investigation and he was found to have committed most of the alleged acts.” He also disagreed with Lafky’s assertion that Hernandez was denied due process.

Hernandez “has received abundant process; he merely dislikes the outcome,” Abrams wrote in the reply to the lawsuit.

In her opinion, Aiken also writes Hernandez has claimed the actions against him are “based substantially on (his) race,” and alleges “many Caucasian members ... have committed much more severe acts” than him but never faced expulsion.”

But, she continued, Hernandez has failed to present any evidence that any action taken against him was based on his ethnicity.

Hernandez has also argued extensively throughout this process that the rule prohibiting workplace harassment in the Capitol is flawed.

“The Legislature has been subject to similar scandals in past years, and it may be, as (Hernandez) alleges, that some transgressors were able to resign or reach some other settlement prior to facing expulsion,” Aiken wrote. “However, the public has interest in beginning to address these inequities at the highest levels of state government and ensuring that harassment is no longer tolerated or excused.”

In addition to a restraining order, Hernandez’s lawsuit seeks $1 million in damages, plus attorney fees, noting the process of investigating allegations against him has inflicted “emotional distress in the form of anguish, embarrassment, loss of reputation, fear, worry, grief, anger, confusion, frustration, loss of sleep, and interference with usual life activities” for him.

That part of the lawsuit is expected to move forward, according to Lafky.

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