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Rep. Diego Hernandez Tells OPB He Will Resign Rather Than Face Feb. 23 Expulsion Vote

His decision comes after a federal judge on Feb. 20 rejected his bid to block the vote.

State Rep. Diego Hernandez told Oregon Public Broadcasting on Sunday night that he would resign rather than face a Feb. 23 vote on whether to expel him from the Oregon House.

"Today I tendered my resignation so my colleagues may focus on serving Oregonians and so I can move forward with my life and focus on my health and family," Hernandez told OPB on Sunday evening.

U.S. District Judge Ann Aiken denied state Rep. Diego Hernandez's bid for a temporary restraining order against the Oregon House on Feb. 20, clearing the way for a vote Feb. 23 whether to expel Hernandez after findings by the House Conduct Committee that he harassed women and created a hostile workplace.

In a 23-page opinion and order, first reported by OPB, Aiken noted that Hernandez and his attorney, Kevin Lafky, were asking the court for a highly unusual ruling.

"[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," Aiken wrote. "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."

Aiken found two problems with the request for a temporary restraining order: It would be highly unusual for a court to block a vote from taking place, and prior to the vote, Hernandez could not cite any actual harm. From a broader perspective, the fundamental principle of the separation of powers between the legislative, judicial and executive branches of government supports the notion that judges should not generally tell lawmakers how to do their work.

Aiken returned to the importance of separation of powers later in her ruling.

"'Prudence dictates that a federal court should exercise a respectful reluctance to interfere in the measures taken by a state legislature to regulate its affairs, discipline its members, and protect its integrity and good name,'" she wrote, citing a New York case which established a precedent on federal judges steering clear of getting involved in legislative matters.

Hernandez ended up in federal court after the House Conduct Committee, which consists of two Democrats and two Republicans, found that results of an investigation by the Legislative Equity Office into allegations of harassment made by five women against Hernandez were grounds for expulsion.

That is a step lawmakers have not taken before. It requires a two-thirds vote of the House's 60 members. (Democrats hold a 37-23 majority over Republicans.)

On Feb. 12, Hernandez filed a lawsuit in Marion County Circuit Court, seeking to block an expulsion vote and asking for $1 million in damages for "emotional distress" and Hernandez's potential loss of his legislative pay and benefits. The Oregon Department of Justice then requested the case be moved to federal court, where Aiken heard oral arguments Feb. 18.

Aiken did not find convincing Hernandez's claims that he'd been denied due process or held to a different standard because he is Latinx, nor his argument that other lawmakers had committed worse offenses and not been expelled. She noted that he would get every opportunity to make those arguments in the debate expected to precede the Feb. 23 expulsion vote. He and all his House colleagues would have unlimited time to make all the arguments they saw fit.

In effect, Aiken ruled, the Legislature is trying to catch up with behavioral norms.

"The Legislature has been subject to similar scandals in past years, and it may be, as plaintiff 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."