Hernandez v. Oregon House of Representatives

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

EUGENE DIVISION

DIEGO HERNANDEZ, individually and Case No. 6:21-cv-00238-MK

as an elected official and member of the OPINION AND ORDER

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.

AIKEN, District Judge:

Plaintiff, Diego Hernandez, brings this action pursuant to 28 U.S.C. § 1983

against defendants, the Oregon Legislature, the Oregon House of Representatives,

PAGE 1 – ORDER AND OPINION

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.

PAGE 2 – ORDER AND OPINION

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

PAGE 3 – ORDER AND OPINION

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

1 It has been reported by however that plaintiff did submit to a second

interview on January 13, 2021 with his counsel present.

https://www.opb.org/article/2021/01/25/investigation-oregon-state-lawmaker-likely-

created-a-hostile-workplace-at-state-capitol/. However, for the purposes of this

motion, the Court accepts plaintiff’s allegations as true.

2 In that statement, plaintiff also alleged that the investigation was politically

motivated because he opposed Speaker Kotek on a vote the previous year.

PAGE 4 – ORDER AND OPINION

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

3 In a statement to the committee, plaintiff claimed to “take full responsibility

for my actions in making anyone uncomfortable.” Lafky Decl. Ex. 5 at 1. He qualified

his actions as “mistakes” and “offenses of ignorance.” Id. at 2.

4 In his complaint, plaintiff alleges that the Committee voted to make this

recommendation on a 3-1 vote. Compl. ¶ 30. However, state records, of which this

Court takes notice, indicate that the vote was unanimous. https://olis.oregon

legislature.gov/liz/2021R1/Downloads/MeasureAnalysisDocument/56431. Judicial

notice may be taken of “[p]ublic records and government documents available from

reliable sources on the Internet, such as websites run by governmental agencies.”

Callister v. Owen, 2017 WL 1499224, at *2 (D. Idaho 2017) (citing to U.S. ex rel.

PAGE 5 – ORDER AND OPINION

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 28 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.

Modglin v. DJO Glob. Inc., 48 F. Supp.3d 1362, 3181 (C.D. Cal. 2014). However,

When the court takes notice of a public record, including websites, it does so “not for

the truth of the facts recited therein, but for the existence of the [record] which is not

subject to reasonable dispute over its authenticity.” Vesta Corp. v. Amdocs

Management Ltd., 129 F.Supp. 3d 1012, 1021 (D. Or. 2015) (internal citations

omitted).

5 Plaintiff filed a reply to defendants’ opposition shortly before oral argument

on this matter. The Court notes that it has thoroughly reviewed all submitted

briefing and exhibits prior to reaching its decision.

PAGE 6 – ORDER AND OPINION

LEGAL STANDARD

A TRO is an “extraordinary and drastic remedy.” Mazurek v. Armstrong, 520

U.S. 986, 972 (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 (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 (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)

PAGE 7 – ORDER AND OPINION

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 preliminary relief requested by

plaintiff. While his pleadings are somewhat unclear, many of plaintiff’s potential

injuries only arise if he is expelled from the House of Representatives. In his motion

he specifically contends that “he will suffer public condemnation, damaged

reputation, and reduced financial expectations if the House of Representatives expels

[p]laintiff without providing him a meaningful opportunity to be heard.” Pl’s. Mot for

PAGE 8 – ORDER AND OPINION

TRO. at 8. (emphasis added).6 However, plaintiff has not plead any facts that his

expulsion is certain or even likely to occur. 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 plaintiff requests, that the House of Representatives not

even consider a resolution submitted by its own members.

Ultimately, the Court denies this motion because plaintiff has not satisfied the

factors outlined in Winter, but certainly “[p]rudence 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.” Monserrate v. New York State Senate, 599 F.3d 148, 157 (2d Cir. 2010)

I. Initial Matters

Defendants raise two preliminary objections to the Court granting plaintiff’s

motion. Defendants first argue that this Court should not consider this motion or

lawsuit while the Oregon Legislature is in session. Article VI. § 9 of the Oregon

Constitution provides that “Senators and Representatives in all cases, […] shall not

be subject to any civil process during the session of the Legislative Assembly.”

6 To the extent plaintiff claims that he has been damaged by the investigation

and vote of the House Conduct Committee, that harm has already occurred and does

not warrant prospective injunctive relief. Indeed, plaintiff complains that he “has

already been the subject of public condemnation and multiple articles have been

written about the proceedings against him in an unfavorable light, likely because

Plaintiff was not provided with an opportunity to refute the charges made against

him.” Id.

PAGE 9 – ORDER AND OPINION

Defendants contend that because plaintiff may not advance civil process at this time,

the Court should also not entertain the application for a TRO.

As an initial matter, defendants fail to show that a state constitutional

provision is binding on this Court when it is considering claims for violations of

Federal law. See United States v. Gillock, 445 U.S. 360, 370 (1980). (“in those areas

where the Constitution grants the Federal Government the power to act, the

Supremacy Clause dictates that federal enactments will prevail over competing state

exercises of power.”) Accordingly, the Court does not find that this provision prevents

it from considering the motion.7

Next defendants argue that this case is not justiciable because it presents a

political question. If a case presents a political question, federal courts lack subject

matter jurisdiction to decide that question. Corrie v. Caterpillar, Inc., 503 F.3d 974,

982 (9th Cir. 2007). The political question doctrine is “primarily a function of the

separation of powers.” Baker v. Carr, 369 U.S. 186, 210 (1962). In Baker, the

Supreme Court identified six criteria, each of which could individually signal the

presence of a political question:

[(1) A] textually demonstrable constitutional commitment of the issue to

a coordinate political department; [(2)] a lack of judicially discoverable

and manageable standards for resolving it; [(3)] the impossibility of

deciding without an initial policy determination of a kind clearly for

7 If defendants are making an argument that the individual defendants who

are members of the Legislature are entitled to legislative immunity, that would weigh

in the Court’s consideration of whether plaintiff can show a likelihood of success on

the merits.

PAGE 10 – ORDER AND OPINION

nonjudicial discretion; [(4)] the impossibility of a court's undertaking

independent resolution without expressing lack of the respect due

coordinate branches of government; [(5)] an unusual need for

unquestioning adherence to a political decision already made; or [(6)]

the potentiality of embarrassment from multifarious pronouncements

by various departments on one question.

Baker, 369 U.S. at 217. The Baker Court made clear however, that “it is the

relationship between the judiciary and the coordinate branches of the Federal

Government, and not the federal judiciary’s relationship to the States, which gives

rise to the ‘political question.’” Id. at 211; see also Gillock, 445 U.S. at 370 (“as we

have noted, federal interference in the state legislative process is not on the same

constitutional footing with the interference of one branch of the Federal Government

in the affairs of a coequal branch”).

Defendants suggest that the Supreme Court’s more recent holding in Rucho v.

Common Cause, undermines Baker. __ U.S. __, 139 S. Ct. 2484 (2019). This Court

does not read Rucho to overrule Baker as defendants suggest. In Rucho, the Supreme

Court found that partisan political gerrymandering presented a political question

rendering the case nonjusticiable. The Supreme Court itself noted, however, that

Rucho presented a “rare circumstance” where it had “no commission to allocate

political power and influence in the absence of a constitutional directive or legal

standards to guide us in the exercise of such authority.” Id. at 2508.

Questions as to whether this Court could impose manageable standards

resolving disputes over the expulsion of a state legislator or whether cases such as

PAGE 11 – ORDER AND OPINION

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. See Mcarley v.

Sanders, et al., 309 F. Supp 8, (M.D. Ala. Jan 27, 1970); Gamrat v. Allard, 320 F.

Supp. 3d 927 (W.D. Mich. 2018); Shooter v. Arizona, 2019 WL 2410808 (D. Ariz. June

7, 2019); Durham v. Eley, 2020 WL 7385277 (M.D. Tenn. Dec. 16, 2020), (all dismissed

on other grounds); see also Monserrate v. New York State Senate, 695 F. Supp. 2d 80

(S.D.N.Y. Feb. 19, 2010), aff'd, 599 F.3d 148 (2d Cir. 2010) (denying preliminary

injunction on other grounds).

II. Winter Factors

A. Likelihood of Success on the Merits

1. Legislative Immunity

The Court first notes that Representative Fahey, Representative Noble, and

Speaker Kotek may be entitled to legislative immunity from plaintiff’s Section 1983

claims. It is well established that federal, state, and regional legislators are entitled

to absolute immunity from civil liability for their legislative activities. Bogan v. Scott-

Harris, 523 U.S. 44, 46 (1998); Tenney v. Brandhove, 341 U.S. 367, 372, (1951).

“Absolute immunity includes within its protections anything “generally done in a

session of the House by one of its members in relation to the business before it.” Doe

v. McMillan, 412 U.S. 306, 311 (1973) (internal citations omitted).

PAGE 12 – ORDER AND OPINION

Absolute legislative immunity attaches to all actions “in the sphere of

legitimate legislative activity.” Tenney, 341 U.S. at 376. Whether an act is legislative

turns on the nature of the act, rather than on the motive or intent of the official

performing it. Bogan, 523 U.S. at 54. “An absolute immunity defeats a suit [for

damages] at the outset, so long as the official’s actions were within the scope of the

immunity.” Imbler v. Pachtman, 424 U.S. 409, 419 n.13 (1976).

Here, the Oregon Legislature has been specifically granted the power to expel

members for disorderly conduct by the Oregon Constitution. House Ccommittee

proceedings to investigate such claims, propose legislation for sanctions related to

fact finding would seem to fall within the sphere of legitimate legislative activity.

2. Due Process Claims

Plaintiff alleges that the individual defendants have violated his Fourteenth

Amendment right to procedural due process. To establish a claim for violation of due

process, plaintiff must show that defendants deprived him of a constitutionally

protected property or liberty interest without adequate procedural protections.

Haggard v. Curry, 631 F.3d 931, 935 (9th Cir. 2010).

Turning to the interests at stake, plaintiff alleges that he possesses a property

interest in his work benefits including his salary, per diem, and other state benefits.

Plaintiff cannot not claim a property interest in his office itself. “The decisions are

numerous to the effect that public offices are mere agencies or trusts, and not

property as such. […] In short, generally speaking, the nature of the relation of a

PAGE 13 – ORDER AND OPINION

public officer to the public is inconsistent with either a property or a contract

right.” Taylor v. Beckham, 178 U.S. 548, at 577 (1900) see also Burks v. Perk, 470

F.2d 163, 165 (6th Cir. 1972) (noting that “[p]ublic office is not property within the

meaning of the Fourteenth Amendment.”)

Setting aside whether plaintiff’s office and the associated benefits are

inextricably intertwined, the Court notes that no actual deprivation of the benefits

has yet occurred here.

Plaintiff also pleads a liberty interest in his reputation, of which he contends

he will be deprived if the House of Representatives votes to expel him. However,

“injury to reputation alone is not sufficient to establish a deprivation of a liberty

interest protected by the Constitution.” Ulrich v. City & Cty. of San Francisco, 308

F.3d 968, 982 (9th Cir. 2002) (citing Paul v. Davis, 424 U.S. 693, 711 (1976).8 Instead,

courts apply a stigma-plus test when determining whether a plaintiff has established

a claim for deprivation of liberty based on governmental defamation. Id. “To prevail

on a claim under the stigma-plus doctrine, plaintiff must show (1) public disclosure

of a stigmatizing statement by the government, the accuracy of which is

contested; plus (2) the denial of some more tangible interest such as employment, or

8 Defamation by an elected official does not state a claim under 42 U.S.C. §

1983. Paul v. Davis, 424 U.S. at712, 96 S. Ct. 1155, 1161, 47 L. Ed. 2d 405, 414 (1976).

(“Any harm or injury to [reputation], even where as here inflicted by an officer of the

State, does not result in a deprivation of any “liberty” or “property” recognized by

state or federal law, nor has it worked any change of respondent’s status as

theretofore recognized under the State’s laws.”)

PAGE 14 – ORDER AND OPINION

the alteration of a right or status recognized by state law.” Green v. Transportation

Sec. Admin., 351 F. Supp. 2d 1119, 1129 (W.D. Wash. 2005) (emphasis added). Where

these elements exist, the plaintiff is “entitled to notice and a hearing to clear his

name.” Bollow v. Federal Reserve Bank, 650 F.2d 1093, 1100 (9th Cir.1981).

It is not seriously disputed that plaintiff would satisfy the first prong of the

stigma-plus test. However, plaintiff has not suffered the denial of a tangible interest,

as the House has not voted expel him, nor has he presented evidence that the House

will certainly expel him.

Assuming, however, that plaintiff had shown the deprivation of a protected

interest, it appears, based on this record, that plaintiff received adequate due process.

See Monserrate, 599 F.3d at 158 (“the availability of adequate process defeats a

stigma-plus claim.”) (internal citations and quotations omitted).

Constitutional due process requires that a party affected by government action

be given “the opportunity to be heard at a meaningful time and in a meaningful

manner.” Mathews v. Eldridge, 424 U.S. 319, 333, (1976) (internal quotation marks

and citations omitted); see also Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532,

546 (1985) (“The opportunity to present reasons, either in person or in writing, why

proposed action should not be taken is a fundamental due process requirement.”)

“[D]ue process is flexible and calls for such procedural protections as the

particular situation demands.” Morrissey v. Brewer, 408 U.S. 471, 481 (1972). “In

determining how much process is due, a court must weigh (1) the private interest

PAGE 15 – ORDER AND OPINION

affected, (2) the risk of erroneous deprivation through the procedures used and the

value of other safeguards, and (3) the government’s interest.” Spinelli v. City of

N.Y., 579 F.3d 160, 170 (2d Cir. 2009) (citing Mathews v. Eldridge, 424 U.S. at 335).

Here, plaintiff received notice of the allegations against him and was

interviewed by an independent investigator. Plaintiff was given an opportunity to

review and respond to the investigator’s report. Plaintiff also appeared through

counsel at the House Conduct Committee hearing and was allowed to present

evidence and argument regarding the allegations. Indeed, plaintiff’s counsel

presented a lengthy statement to the Committee which made many of the same

arguments plaintiff is making here. The Committee then considered the evidence

before it and voted to recommend that the full House of Representatives expel

plaintiff for disorderly conduct. Following this, plaintiff is still guaranteed the

opportunity to have unlimited time to speak about these allegations and the

investigative process to the House of Representatives when it considers the resolution

expelling him.

Plaintiff makes numerous arguments that defendants did not properly follow

the requirements of Rule 27. For example, plaintiff alleges he was only given seven

days to respond to the draft report instead of ten. He also complains that he was not

allowed to cross-examine his accusers. However, these technicalities do not in

themselves mean that plaintiff has failed received adequate due process under the

Fourteenth Amendment. The “very nature of due process negates any concept of

PAGE 16 – ORDER AND OPINION

inflexible procedures universally applicable to every imaginable situation.” Cafeteria

Workers v. McElroy, 367 U.S. 886, 895 (1961). The Supreme Court has also explained:

[m]ere violation of a state statute does not infringe the federal

Constitution. And state action, even though illegal under state law, can

be no more and no less constitutional under the Fourteenth Amendment

than if it were sanctioned by the state legislature.

Snowden v. Hughes, 321 U.S. 1, 11 (1944) (internal citation omitted).

Here the Court finds that plaintiff has failed to show a likelihood of success

on the merits of this claim because he has not been deprived of a protected interest

and he has received a meaningful opportunity to be heard.

3. Equal Protection Claim

Plaintiff is Latino, and he alleges that Speaker Kotek, Representative Fahey,

Representative Noble, and Ms. Sandmeyer’s actions in this case “are based

substantially on [his] race and/or nation origin[.]” Comp. at ¶ 63. He alleges that

“many Caucasian members […] have committed much more severe acts” than him

but never faced expulsion. Id. at ¶ 64. Excluding these two conclusory allegations,

plaintiff has presented no evidence that defendants took any actions based on his

ethnicity or that Rule 27 facially involves a suspect classification. See Wright v.

Incline Vill. Gen. Improvement Dist., 665 F.3d 1128, 1140 (9th Cir. 2011). Indeed, in

plaintiff’s numerous exhibits detailing some aspects of the investigation, his race is

not mentioned. Rather the focus of the investigation was on the numerous allegations

PAGE 17 – ORDER AND OPINION

of harassment against him. Further, plaintiff do not present any substantive

argument in his motion that this specific claim is likely to succeed on the merits.

At this time, the Court cannot find that plaintiff has shown likely to succeed

on his equal protection claim based on the limited allegations in his complaint.

4. First Amendment Retaliation Claim

In determining whether a public employee has suffered retaliation for

asserting her First Amendment rights, courts must determine (1) whether the

plaintiff spoke on a matter of public concern; (2) whether the plaintiff spoke as a

private citizen or public employee; (3) whether the plaintiff’s protected speech was a

substantial or motivating factor in the adverse employment action; (4) whether the

state had an adequate justification for treating the employee differently from other

members of the general public; and (5) whether the state would have taken the

adverse employment action even absent the protected speech. Eng v. Cooley, 552 F.3d

1062, 1070 (9th Cir. 2009). A plaintiff bears the burden of demonstration at the first

three steps of the inquiry; at step four, the burden shifts to the defendant. Id. at

1070-72. Steps one, two, and four are questions of law; steps three and five are

questions of fact.9 Id.

9 The court in Eng noted that steps two and four, while ultimately legal

questions, may entail resolution of underlying factual disputes. 552 F.3d at 1071.

PAGE 18 – ORDER AND OPINION

As noted above, prior to the House Conduct Committee convening, defendant

posted a lengthy statement on his campaign’s Facebook page commenting on the

investigation and the allegations against him. After doing so, he received noticed

from the LEO that this activity had been reported to them as potential retaliation

against the complainants under Rule 27. No interim measures were taken at the

time of the notification, and the matter was referred to the outside investigator, Ms.

Ryan.

Plaintiff alleges that because of this conduct, he suffered a deprivation of his

First Amendment right to free speech. The Court finds that he has failed to show a

likelihood of success on the merits of this claim for several reasons.

First, the parties do not dispute that the plaintiff was speaking on a matter of

public concern. Defendants argue, however, that plaintiff did not make the statement

as a private citizen, but rather that he did so in his capacity as an elected

representative addressing his constituents. No evidence has been submitted

regarding the use of plaintiff’s campaign Facebook, specifically if it was regularly

used a tool of governance to inform the public of plaintiff’s official activities or cloaked

in the trappings of his office. See Garnier v. Poway Unified Sch. Dist, 2019 WL

4736208, at *7 (S.D. Cal. Sept. 26, 2019). However, the message itself indicates

plaintiff was speaking in a public role as an elected representative. First, it was

broadly addressed by plaintiff “[t]o my community[.]” Hernandez Supp. Decl. Ex.12

PAGE 19 – ORDER AND OPINION

at 1. In addition to addressing the allegations against him, plaintiff also commented

on other legislative work he was undertaking. For example, he wrote that:

I’ve been working hard for my district through these challenges. My

recent re-election and my public service is about the families of my

district. I am dedicated to making sure they get the State’s full support

and their fair share of the resources they need during this turbulent

crisis and uneven recovery. Despite my criticisms of the process, I

respect the conduct committee members, and I look forward to the

conduct committee hearing next week, where I will submit into evidence

my full rebuttal. I hope we can move forward and focus on providing

relief to Oregonians impacted by COVID and the economic downturn

without sacrificing our values or asking vulnerable workers and

frontline communities to bear the worst burdens.

Id.at 4-5. Plaintiff signed the statement “Rep. Diego Hernandez” using his official

title.

Even assuming that the statement was made in a private capacity, plaintiff

still could not show that an adverse employment action has occurred as a result of

the statement. Plaintiff was simply informed that the statements had been reported

to the LEO and that they had been forwarded to the appointed investigator. This

statement was not considered by the House Conduct Committee at its recent hearings

nor was it a basis for their recommendation that plaintiff be expelled based on the

allegations of harassment.

Accordingly, the Court finds that plaintiff has failed to show a likelihood of

success on the merits of his first amendment retaliation claim.

/ / /

/ / /

PAGE 20 – ORDER AND OPINION

B. Likelihood of Irreparable Harm

It is axiomatic that a moving party must demonstrate a significant threat of

impending irreparable injury, irrespective of the magnitude of the injury. Big

Country Foods, Inc. v. Bd. of Educ. of Anchorage Sch. Dist., Anchorage, Alaska, 868

F.2d 1085, 1088 (9th Cir. 1989). “Speculative injury does not constitute irreparable

injury.” Goldie's Bookstore, Inc. v. Superior Court of Cal., 739 F.2d 466, 472 (9th

Cir.1984). As noted above, plaintiff has not yet shown the requisite likelihood of

irreparable harm necessary for the Court to grant this motion. The House not yet

voted on whether to expel him. More importantly, plaintiff has not presented any

evidence to the Court that the expulsion is inevitable or even likely.

Also, lost benefits and salary or reduced earning potential could be

compensable through monetary damages. The possibility that adequate

compensatory or other corrective relief will be available at a later date, in the

ordinary course of litigation, weighs heavily against a claim of irreparable harm.

Sampson v. Murray, 415 U.S. 61, 90 (1974) (internal citation omitted.)

C. Balance of Equities and the Public Interest in an Injunction.

Plaintiff must demonstrate that “the balance of equities tips in his favor” and

that “an injunction is in the public interest.” Winter, 555 U.S. at 20. “These factors-

merge when the Government is the opposing party.” Nken v. Holder, 556 U.S. 418,

435 (2009). In assessing these factors, the Court must “balance the competing claims

of injury and must; consider the effect on each party of the granting or withholding

PAGE 21 – ORDER AND OPINION

of the requested relief,” as well as “the public consequences in employing the

extraordinary remedy of injunction.” Winter, 553 U.S. at 24.

These factors tip sharply in favor of denying the TRO for several reasons.

First, granting the TRO 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

maintain its integrity. The Oregon Legislature is entrusted with power over of

policing its own members. The Second Circuit recognized in a similar context that:

[i]t is fundamental that a legislature has an important interest in

upholding its reputation and integrity. See, e.g., In re Chapman, 166

U.S. 661, 668, 17 S.Ct. 677, 41 L.Ed. 1154 (1897) (recognizing that

Congress “necessarily possesses the inherent power of self-

protection”); French v. Senate of State of Cal., 146 Cal. 604, 606, 80 P.

1031 (1905) (“[E]very legislative body in which is vested the general

legislative power of the state, has the implied power to expel a member

for any cause which it may deem sufficient.”); Hiss v. Bartlett, 69 Mass.

468, 473 (1855) (“The power of expulsion is a necessary and incidental

power, to enable the house to perform its high functions, and is

necessary to the safety of the State. It is a power of protection.”).

Monserrate v. New York State Senate, 599 F.3d at 155–56.

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As discussed at oral argument, Rule 27 has been heavily revised in recent

years to provide increased accountability for workplace harassment. 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. 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.

CONCLUSION

For the reasons set forth above, plaintiff’s motion for a TRO (Doc. 2) and

emergency stay is DENIED.

IT IS SO ORDERED.

Dated this 20th day of February 2021.

s/Ann Aiken

Ann Aiken

United States District Judge

PAGE 23 – ORDER AND OPINION