Can Nearman Replace Himself as Rep?

Mike Nearman openly disagreed with the decision to only allow the public to view the proceedings of the Oregon Legislature remotely during the worst days of the COVID-19 pandemic. A member of the Oregon State House of Representatives, Nearman looked out at the crowds gathered outside the Legislature and did not see the surly, shouting mob that most of his colleagues saw. He heard them screaming “Enemies of the State!” and “Traitors!” and in case their point was not yet clear, “We hate you!”  

Yet he saw, not a potential source of danger for himself and his co-workers, but his constituents, his own people, who surely deserved to join him on the inside of the Capitol. He gave out his very own phone number so those full-throated types could text so he would know they were ready to come in, an act he referred to jocularly as “Operation Hall Pass.”  

Nearman described the people he invited into the Capitol as “mostly blue-haired old ladies,” but the state-sanctioned video of the intruders showed a somewhat different profile. 

The House voted to expel him, voting 59-1 for the resolution, with only Nearman himself voting “No.” Prior to the vote, Nearman was urged by his fellow Republicans to resign rather than become the first member expelled in 160 years of statehood. 

Now, a replacement will have to be found for Dear Old Nearman to represent District 23 – which incidentally includes parts of Polk, Yamhill, Marion counties, and almost all of Benton County other than Corvallis and its immediate environs. 

Nearman’s supporters have what they think is a perfectly swell idea: when the County Commissioners gather to choose a new Representative, they are going to nominate… Mike Nearman. 

There is nothing in the Oregon Constitution that explicitly prohibits such a maneuver. Worse yet, the Constitution does explicitly prohibit the Legislature from expelling a member for the same offense twice. The authors of the Constitution presumably intended the latter rule to prevent a highly partisan Legislature from repeatedly ejecting a once-ejected Representative or Senator who had been elected to the same post again. 

If Nearman is indeed appointed to the seat he was removed from, it will be up to the courts to determine whether he can lawfully be appointed in this way. 

He may not be. Even though much of the population of Benton County don’t reside in District 23, the entire group of Benton County Commissioners will be voting on filling the vacancy. The bulk of those Commissioners were elected by people who live in and near Corvallis, people who are unlikely to be amenable to the idea of Nearman re-entering the Capitol. The Commissioners in each county which has part of its territory inside District 23 will vote, their votes being weighted by how many county residents live in the District.  

At present, Nearman is not actively campaigning for appointment. Instead, he is working with two members of the Legislature, David Brock Smith (R-Port Orford) and E. Werner Reschke (R-Klamath Falls), both of whom voted to expel him, to try to bring to the ballot an initiative petition to repeal gun safety regulations passed by the Legislature 

“People are beating my door down right now telling me to run during the appointment process,” Nearman told Coos Bay radio station KWRO on Monday.   

The next day, Salem talk show host Jeff Kropf read on the air an email which he said came from a District 23 resident: “If Mike Nearman thinks it’s a good idea to run for the open seat, then I am with him lock, stock and barrel.” 

Dexter Johnson, the official attorney of the Legislature, said in an opinion posted on the Legislature’s website: “The county commissioner appointment process is itself an inherently political process which renders it unlikely, in our view, that these circumstances would actually present themselves.” Meaning, of course, he doesn’t think the people who elected Nearman four times would be willing to keep him around. 

If he is appointed to replace himself, the Legislature might be unable to remove him.  

Johnson said in an email to the Oregonian, “I think the language in Article IV, section 15, that a member may not be expelled ‘a second time for the same cause’ would prohibit the House or Senate from expelling the member again, if the expulsion is based on the same facts and circumstances.” 

Asked about how well he would be able to work in the Legislature alongside people who had voted to expel him, Nearman told KWRO that he was not concerned, declaring that his fellow Republicans voted unanimously to expel him only to ensure their access to funding in the Legislature to  “get the senior center repainted in Gooberville.”  

By John M. Burt