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Federal judge dismisses former Oregon lawmaker Diego Hernandez’ lawsuit over harassment inquiry

OregonLive.com logo OregonLive.com 11/30/2021 Hillary Borrud, oregonlive.com

A federal judge on Monday dismissed the lawsuit filed earlier this year by former Oregon Rep. Diego Hernandez of Portland as he attempted to stop a planned vote by his House colleagues on whether to expel him for inappropriate behavior.

Hernandez resigned before the House vote could take place, but his $1 million lawsuit continued on in U.S. District Court in Eugene. He faced findings by an independent investigator and the House Conduct Committee that he inappropriately pressured women whose work brought them to the Capitol to restart relationships with him.

On Monday, U.S. District Court Judge Ann Aiken ruled that Hernandez’ fellow lawmakers, House leaders and the legislative equity officer’s handling of the inquiry and planned vote did not violate Hernandez’ constitutional rights.

Aiken found that Hernandez and his lawyer failed to make a case that the Legislature’s personnel rule on which the inquiry proceeded was unconstitutional. Hernandez had also alleged that the state House, specific House lawmakers and the legislative equity officer violated his constitutional rights to due process, equal protection and free speech.

Hernandez was notified of the allegations against him, interviewed by investigator, given a chance to review the investigator’s report and respond, Aiken noted.

“The court concludes that plaintiff was not deprived of a meaningful opportunity to be heard or to dispute the allegations made against him save, perhaps, by his own decision to resign before he had an opportunity to make his case to the House,” the judge wrote.

Regarding Hernandez’ claim that lawmakers retaliated against him for asserting his right to free speech, Aiken found “good reason to doubt” that Hernandez was acting as a private citizen when he posted a statement on his campaign Facebook page criticizing lawmakers’ process to investigation the harassment allegations. Most importantly, she wrote, Hernandez did not allege that he suffered any specific “adverse employment action based on the Facebook post …”

Aiken also agreed with the defendant lawmakers that they qualified for immunity from legal claims over their actions to discipline a fellow lawmaker. The doctrine of legislative immunity protects members of Congress and state legislatures from civil damages for their lawmaking work.

“In contrast to a more conventional employer-employee disciplinary matter, the process for expelling a member of the Oregon Legislature is decidedly legislative in both form and function,” the judge wrote. “Accordingly, the court concludes that the challenged acts are legislative in character and so (Rep. Julie Fahey, Rep. Ron Noble and House Speaker Tina Kotek) are entitled to absolute immunity.”

Finally, Hernandez’ lawsuit accused lawmakers of violating his Fourteenth Amendment right to equal protection because he said the “Legislature has had many Caucasian members who have committed much more severe acts than plaintiff, but have never proposed expulsion for a Caucasian member.” The judge ruled Hernandez could not conflate the actions of previous Legislatures throughout Oregon history with the named defendant lawmakers in the case. The House has since expelled a member for the first time in history: Mike Nearman, who let armed demonstrators into the Capitol during a December 2020 special session.

— Hillary Borrud

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