Hernandez v. Or. Legislature

521 F.Supp.3d 1025

Diego HERNANDEZ, individually and as an elected official and member of the Oregon House of Representatives, Plaintiff,

v.The OREGON LEGISLATURE, the Oregon House of Representatives, Ron Noble, in his official and person capacity, Julie Fahey, in her official and personal capacity, Jackie Sandmeyer, in her official and personal capacity, and Tina Kotek, in her Official and personal capacity, Defendants.

Case No. 6:21-cv-00238-MK

United States District Court, D. Oregon, Eugene Division.

Signed February 20, 2021

Kevin T. Lafky, Lafky & Lafky, Salem, OR, for Plaintiff.

Marc Abrams, Oregon Department of Justice, Portland, OR, for Defendants.

OPINION AND ORDER

AIKEN, District Judge:

Plaintiff, Diego Hernandez, brings this action pursuant to 42 U.S.C. § 1983 against defendants, the Oregon Legislature, the Oregon House of Representatives, Representative Ron Noble, R-District 24, Representative Julie Fahey, D-District 14, Interim Director of the Legislative Equity Office Jackie Sandmeyer, and House of Representatives Speaker Tina Kotek, D-District 24. This case arises out of an investigation into allegations that plaintiff engaged in harassing conduct which has resulted in his potential expulsion from the Oregon House of Representatives. Plaintiff alleges claims for due process and equal protection violations under the Fourteenth Amendment as well as a claim for First Amendment retaliation. He also seeks a declaratory judgment that Rule 27 of the Oregon House of Representatives facially unconstitutional and unconstitutional as applied to him. Now before the Court is plaintiff's motion for a temporary restraining order ("TRO") and emergency stay. Doc. 2. For the reasons set forth herein, the motion is denied.

BACKGROUND

Plaintiff is a member of the Oregon House of Representatives, one of the two chambers comprising the Oregon Legislature. Plaintiff has represented District 47 in that body since 2019. In the Spring of 2020, allegations of harassment came to light related to plaintiff's relationship with women who had business before or worked in connection with the Oregon Legislature. These allegations prompted an investigation for potential violations of Legislative Branch Personnel Rule 27 ("Rule 27") by the Legislative Equity Office ("LEO") which is headed by defendant Jackie Sandmeyer.

Rule 27 is the Oregon Legislative Branch's workplace harassment policy. The policy applies to members of the Legislature like plaintiff. Those who are covered by the policy "are expected to conduct themselves in a manner that is free of harassment and to discourage all harassment in the workplace and at events, professional meetings, seminars or any events at which legislative business is conducted." Compl. Ex 1. at 1. If a formal complaint is filed alleging inappropriate conduct by a legislator, an experienced investigator who is not an employee of the Legislative Assembly is appointed to conduct the investigation into the allegations. Members and other persons involved in the investigation must keep information regarding the investigation confidential.

Upon completion of her investigation, the investigator then forwards a final report to a "special committee on conduct." Id. at 4. The Committee must then hold a public hearing on the allegations, giving notice to both the complainant and the alleged harasser. "At the hearing, the complainant, and alleged harasser, or their attorneys may present documents or other evidence and may suggest witnesses." Id. However, by rule, only Committee members can question or address witnesses. The Committee must then consider the final report as well as the testimony and other evidence presented at the hearing and report a recommendation to full legislative chamber to which it belongs. The Committee may recommend reprimand, censure, or expulsion of a member. The Committee may also recommend taking no further action. After a review period, the recommendation shall be made to the full chamber for which the Committee serves. That body will then consider adopting sanctions against the member, which may only be adopted by a two-thirds majority vote.

Here, the LEO hired an outside attorney, Sara Ryan, to conduct the investigation into the allegations against plaintiff. On May 5, 2020, plaintiff was notified that a Rule 27 investigation regarding a complaint against him was being conducted by Ms. Ryan. Plaintiff was also interviewed by the investigator on August 19, 2020. Ms. Ryan contacted defendant on December 17, 2020 to request a second interview regarding two new subjects of the investigation, however plaintiff alleges that the second interview never occurred.¹

The investigator issued her draft report on December 23, 2020. A final report was later issued to the House Conduct Committee, though the exact date is unclear from the pleadings.

On January 21, 2021, plaintiff posted a public statement on his campaign's Facebook page disputing the allegations against him and attacking the House of Representative's investigation.² On January 31, 2021, defendant Sandmeyer wrote to plaintiff alerting him that her office had received a report of retaliation in relation to the Rule 27 investigation and his social media statement. No new interim measures were recommended by the LEO, but plaintiff was informed that Ms. Ryan would investigate the report to determine if retailing occurred against any of the complainants.

Plaintiff submitted a response and rebuttal to the final report on January 31, 2021, though he alleges it was heavily redacted by the LEO to strip out identifying information regarding his accusers.

On February 1, 2021, the House Conduct Committee, which was co-chaired by defendants Julie Fahey and Ron Noble, convened to consider whether the conduct alleged in the final report violated Rule 27. Over the course of that week, the committee heard testimony from five anonymous subjects of the investigation. Plaintiff also presented evidence and arguments disputing the allegations and contesting the investigative process through his counsel.³ On February 5, 2021, the House Conduct Committee voted to recommend to the full chamber that plaintiff be expelled from the House of Representatives.⁴

The House of Representatives was originally set to consider HR-1A, the proposed resolution expelling plaintiff from that body on February 16, 2021. However, inclement weather delayed those proceedings. Consideration of the resolution by the House of Representatives is now set for February 23, 2021. Speaker Kotek has represented that, when the matter is brought before the House, all limits on debate will be lifted so that any member, including plaintiff, can speak on the resolution as long they wish. Plaintiff has stated that he will take part in floor debate on the proposed resolution.

Plaintiff originally filed this action in the Circuit Court of the State of Oregon for Marion County. (Case No. 21CV05290). Prior to service being perfected, defendants filed a notice of removal pursuant to 42 U.S.C. 1441 and 1443, removing the action to this Court. Doc. 1. Contemporaneously, plaintiff filed the present motion for a TRO and emergency stay. Doc. 2. The Court allowed defendants to file responsive briefing in this matter.⁵ The Court heard oral argument on this matter on February 18, 2021.

LEGAL STANDARD

A TRO is an "extraordinary and drastic remedy." Mazurek v. Armstrong , 520 U.S. 968, 972, 117 S.Ct. 1865, 138 L.Ed.2d 162 (1997). The purpose of a TRO is to preserve the status quo and prevent irreparable harm until a hearing may be held on the propriety of a preliminary injunction. See Reno Air Racing Ass'n, Inc. v. McCord , 452 F.3d 1126, 1131 (9th Cir. 2006). The same general legal standards govern TROs and preliminary injunctions. Fed. R. Civ. P. 65 ; New Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co. , 434 U.S. 1345, 1347 n.2, 98 S.Ct. 359, 54 L.Ed.2d 439 (1977). A plaintiff seeking such relief must establish (1) a likelihood of success on the merits; (2) a likelihood of irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in the plaintiff's favor; and (4) a preliminary injunction is in the public interest. Winter v. Nat'l Resources Def Council , 555 U.S. 7, 21, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008).

DISCUSSION

The power to expel members from the Oregon Legislature is exclusively granted to the Legislative Branch by the Oregon Constitution which provides that "[e]ither house may punish its members for disorderly behavior, and may with the concurrence of two thirds, expel a member; but not a second time for the same cause." Or. Const. Art. IV, § 15

In his motion, plaintiff requests that this Court enjoin defendants from

(1) proceeding with expulsion, sanction, punishment, or any other adverse action against Plaintiff based on the findings and recommendations from the Rule 27 investigation and/or hearing; (2) placing any restrains on Plaintiff from exercising his freedom of speech/expression; and (3) proceeding with expulsion, sanction, punishment, or any other adverse action against Plaintiff for exercising his freedom of speech/expression.

Pl's Mot. For TRO. at 2. Plaintiff also moves that this Court "stay any vote to expel sanction, punish, or take any other adverse action against Plaintiff." Id.

The relief requested by the plaintiff is somewhat novel. The Court notes that while there have been cases in other federal districts where legislative members have brought suits related to their expulsion, those claims were filed after the expulsion occurred. Importantly, plaintiff 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...