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1 IN THE CIRCUIT COURT OF THE STATE OF OREGON

2 FOR THE COUNTY OF CLACKAMAS

3 TIM REEVES, ERIC SAUB, GREG )BURNETT, as the Libertarian )

4 Party of Oregon; DAVID TERRY,)M. CARLING and RICHARD BURKE,)

5 as members of the Libertarian)Party of Oregon, )

6 )Plaintiffs, ) Clackamas County

7 ) Circuit Courtand ) No. CV12010345

8 )CARLA PEALER, as the ) CA A155618

9 Libertarian Party of Oregon, ))

10 Plaintiff, ) Volume 3 of 5 )

11 v. ))

12 WES WAGNER, HARRY JOE TABOR, )MARK VETANEN, BRUCE KNIGHT, )

13 JEFF WESTON, JIM KARLOCK, )RICHARD SKYBA, and JEFF )

14 WESTON, individuals; and )LIBERTARIAN PARTY OF OREGON, )

15 )

Defendants, )16 )

and )17 )

JOSEPH SHELLEY, )18 )

Defendant. )19

20 TRANSCRIPT OF PROCEEDINGS ON APPEAL

21 BE IT REMEMBERED that the above-entitled

22 Court and cause came on regularly for hearing before

23 the Honorable James E. Redman, on Monday, the 22nd

24 day of October, 2012, at the Clackamas County

25 Courthouse, Courtroom No. 3, Oregon City, Oregon.

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Appearances 107

1 APPEARANCES

2 Tyler Smith, Attorney at Law,Appearing on behalf of the Plaintiffs;

3Robert Steringer, James Leuenberger and

4 Colin Andries, Attorneys at Law,Appearing on behalf of the Defendants.

5 * * *

6KATIE BRADFORD, CSR 90-0148

7 Court Reporter(503) 267-5112

8Proceedings recorded by digital sound recording;

9 transcript provided by Certified Shorthand Reporter.

10 * * *

11

12 GENERAL INDEX

13 VOLUME 3

14 Page No.

15 October 22, 2012 Proceedings 108

16 Case Called 108

17 Defendants' Rule 21 Motions/Second Amended

18 Complaint 108

19 Defendants' Argument by Mr. Andries 108

20 Plaintiffs' Argument by Mr. Smith 113

21 Defendants' Argument by Mr. Andries 125

22 Plaintiffs' Argument by Mr. Smith 129

23 Court's Ruling 130

24 Reporter's Certificate 132

25 * * *

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1 (Volume 3, Monday, October 22, 2012, 9:16 a.m.)

2 P R O C E E D I N G S

3 (Whereupon, the following proceedings

4 were held in open court:)

5 THE COURT: I see a room full of people

6 back there. Is everyone here on Reeves? Let's --

7 let's -- everyone here? Let's give that another try.

8 Okay. The status, as I understand it,

9 is this is Defendants' Rule 21 motions on the second

10 amended complaint. So who wants to go first on that?

11 MR. ANDRIES: That's correct. For the

12 record, Your Honor, Colin Andries, Bar No. 051892;

13 Andries, A-n-d-r-i-e-s. This was my -- and if you

14 don't mind, I will be seated throughout my oral

15 arguments, if that's okay with you, Your Honor.

16 THE COURT: Okay.

17 MR. ANDRIES: This was my motion that I

18 submitted to the Court. Before I begin, have you had

19 an opportunity to read the motions? Would you -- do

20 you need me to rehash it?

21 THE COURT: I've read the motion. This

22 was assigned to me on the objections to the last

23 complaint --

24 MR. ANDRIES: Mm-hmm.

25 THE COURT: So I think I'm pretty well

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1 up to speed, but I have an open mind if you have more

2 you'd like to say.

3 MR. ANDRIES: Thank you. And I just

4 asked that 'cause I just wanted to make sure. And to

5 my right is Bob Steringer. He represents the

6 Libertarian Party of Oregon. And to his right is

7 James Leuenberger, who represents Mr. Wes Wagner.

8 THE COURT: I remember you from before.

9 MR. ANDRIES: Wonderful.

10 MR. STERINGER: Good morning.

11 MR. LEUENBERGER: Morning, Your Honor.

12 MR. ANDRIES: The motion that we are

13 presenting to the Court has been brought under -- for

14 subject jurisdiction. It's a Rule 21 motion. While

15 the plaintiffs' response has stated that jurisdiction

16 has already been decided, this is a motion that's

17 brought pursuant to the Administrative Procedures

18 Act.

19 And Lake County v. State, 142 Or App

20 162, which states that when APA review is available,

21 APA jurisdiction is exclusive. So while there has

22 been jurisdiction, has been decided previously

23 pursuant to Chapter 28 in the Declaratory Judgment

24 Act, saying that there is jurisdiction in this case

25 for that matter, in this matter, we're saying that

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1 there had been a final order previously brought to

2 the Court's -- that had been previously provided by

3 the Secretary of State's department.

4 As a result, the Administrative

5 Procedures Act, the review in that procedure in the

6 APA is exclusive and any jurisdiction that's going to

7 come through is pursuant to the APA.

8 THE COURT: And if I rule in your favor,

9 they're too late and they'd be out of court.

10 MR. ANDRIES: That is correct.

11 THE COURT: Okay.

12 MR. ANDRIES: And as a result, the --

13 the order that was granted, that was determined back

14 in, I believe, September of 2011, 60 days has passed.

15 There's a 60-day window for when a review can be

16 brought.

17 And whether you like the decision or

18 not, whether you don't believe that the Secretary of

19 State had the authority to make that order, that can

20 be brought in that 60-day window to be brought to the

21 Clackamas County Court.

22 THE COURT: Repeat to me what it was

23 that the Secretary of State decided.

24 MR. ANDRIES: The Secretary of State --

25 and I will -- the letter, the order is very brief and

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1 I will actually read the whole thing. But here

2 stated that he recognizes Wes Wagner and -- as the

3 chair of the Libertarian Party of Oregon, and he's

4 going to continue to recognize that group of

5 individuals as the leadership of the Libertarian --

6 THE COURT: Is that what's before me

7 today? Is it -- is it, who is the chairman or are we

8 talking about a -- a set of bylaws and what set of

9 bylaws applies?

10 MR. ANDRIES: That's a good question.

11 It's my understanding and in my review of the

12 complaint, while plaintiffs have stated that this is

13 about bylaws, in reality, the issue at hand is who

14 gets to determine who gets to be put on the ballot

15 for the Secretary -- for any election that's brought

16 forth, and who the Secretary of State is going to

17 recognize, 'cause there's a dispute between which

18 bylaws are at hand and which bylaws are in charge.

19 However, the plaintiffs have viewed

20 this, couched it as an argument that the bylaws are

21 at issue. And, in reality, it's trying to determine

22 who is going to be able to make a determination and

23 talk to the Secretary of State and -- and recognized

24 by the Secretary of State for any elections-type

25 issues that come up.

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1 And so while plaintiffs have made

2 arguments that bylaws are at issue, in reality, I

3 believe that's an end run, an end run around to get

4 the Secretary of State's Office to recognize their --

5 their candidates and their -- their leadership.

6 If you look at the second amended

7 complaint, they ask that the defendants, if they were

8 to succeed, defendants direct the Secretary of

9 State's Office to recognize the plaintiffs and

10 plaintiffs' situation.

11 I believe, while they have couched it in

12 a bylaws argument, the crux of the matter is that it

13 is about who's the leadership. And then you look at

14 other complaints and other motions and other issue --

15 writings to the Court, the plaintiffs have actually

16 recognized that.

17 I believe it was in their motion for an

18 expedited hearing, they stated that, "The crux of

19 this lawsuit is about which group of officers is the

20 legitimate leadership of the Libertarian Party of

21 Oregon." And that was Page 2, Line 2 of the

22 plaintiffs' motion to expedite trial.

23 So while the excerpt is issued with the

24 bylaws, the main point of this entire litigation is

25 to determine who the Secretary of State can

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1 recognize.

2 The Secretary of State has made that

3 order and created a final order in September of 2011,

4 60 days past from that. And, therefore, jurisdiction

5 should no longer be in this court.

6 THE COURT: I'm with you. I understand.

7 I'm not saying I agree, but I understand what you're

8 saying.

9 MR. ANDRIES: Yeah.

10 THE COURT: Okay. Interesting point.

11 Okay.

12 MR. SMITH: Thank you, Your Honor.

13 Before it gets too far into my arguments, I will

14 point out --

15 THE COURT: If you're comfortable being

16 seated, you're welcome to be seated.

17 MR. SMITH: Might be better for the

18 microphone. I have no problem. Thank you,

19 Your Honor.

20 Before I go too far into my argument, I

21 will point out the -- the single case they cited here

22 was a Lake County case. Notice first thing Lake

23 County. This is a government actor.

24 All the cases and all the authority that

25 they're citing, the entire rubric that they're citing

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1 here involves government actors when there's a

2 government -- you know, when there's an

3 administrative procedure involved.

4 Here we have two private parties. The

5 entire crux of this case is two private parties

6 having a dispute about their own government --

7 governing documents.

8 And the issue here, obviously, is a

9 simple one, simple question of law, is does the APA

10 apply here when you have one private party with a

11 dispute against another private party?

12 And for two reasons, the APA does not

13 apply here. One is based on the law. There's a

14 simple legal preclusion of having the APA apply here.

15 And the second is on the facts of this particular

16 case, the APA wouldn't apply either.

17 As to the law, ORS 248.011, which we've

18 discussed extensively before -- and I'm glad

19 Your Honor is sitting before us today, because you

20 know the background and you know the background and

21 complexity of some of these issues, ORS 248.011

22 explicitly prohibits the Secretary of State from

23 getting involved in enforcing the rules of a

24 political party.

25 Now, the other two defendants vehemently

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1 made that argument the last time we were here and

2 suggested that neither the Secretary of State nor

3 this Court could even adjudicate this matter. They

4 said that nobody can adjudicate this bylaw dispute.

5 And that was the dispute we had last time.

6 Obviously, this Court ruled they were

7 wrong. As to this Court's jurisdiction into

8 litigating this -- this dispute. And, you know,

9 we've come to the agreement that the Secretary of

10 State cannot -- could not have before, cannot now

11 have adjudicated this dispute. The --

12 THE COURT: And your -- your opinion of

13 what the dispute is, just tell me in ten words or

14 less.

15 MR. SMITH: It's a dispute about the

16 bylaws, Your Honor.

17 THE COURT: All right.

18 MR. SMITH: The 2009 bylaws --

19 THE COURT: All right.

20 MR. SMITH: -- versus the 2011 bylaws.

21 THE COURT: Go ahead.

22 MR. SMITH: The Secretary of State, when

23 this -- when this occurred, the Secretary of State

24 themselves said, "Go to court and get an order."

25 We -- we asked them, "How can you accept these bylaws

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1 when these guys aren't the officers anymore?"

2 They said, "Our hands are tied. 248.011

3 says we cannot get involved in determining party

4 rules or making an adjudication." It's -- it goes

5 without saying, the Secretary of State is not

6 equipped for this kind of litigation.

7 The Secretary of State never litigates

8 breaches of duties, contract disputes, challenges to

9 corporate officers. So the -- the plaintiffs here,

10 Plaintiff Libertarian Party of Oregon agrees with the

11 Secretary of State in that regard.

12 248.011 means what it says. Secretary

13 of State can't do this. It's Defendant Karlock and

14 the other board of directors who have just been added

15 because they may have some supposed interest in this

16 organization are the ones that have a dispute with

17 the Secretary of State as to that statute.

18 It's kind of unusual that they would

19 suggest that the plaintiffs in this case would have

20 to file a lawsuit against the Secretary of State,

21 overturn ORS 248.011 and -- and get a judge to say,

22 "Secretary of State, that law is invalid. It doesn't

23 prohibit you from doing what it says it prohibits you

24 from doing in order for plaintiffs to then file suit

25 against another private party." It doesn't square.

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1 And that's why the APA simply doesn't apply here.

2 As to the facts of this case, the APA

3 does not apply to the facts of this case either. The

4 facts show that it's a private party against a

5 private party. This Court's familiar with the

6 pleadings. We've talked about the pleadings

7 extensively.

8 There's not a claim or allegations

9 against the Secretary of State. There's not

10 allegations against any government actor. It's

11 allegations primarily against Defendant Wagner. As

12 we argued last time, we don't even think some of the

13 other defendants even need to be a part of this case.

14 It's primarily against Defendant Wagner,

15 particularly with respect to the second and third

16 claims for relief, because he's punitively acting or

17 alleges that he's the chairman. So -- and then

18 again, with respect to the remedies, as I pointed out

19 in our brief, the Secretary of State is not even

20 mentioned in the remedies.

21 We're not asking this Court to do

22 anything to the Secretary of State, to overturn any

23 order of the Secretary of State. Of course, every

24 corporation, every political entity, every person

25 that does UCC filings, has interactions with the

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1 Secretary of State. Lots of people have interactions

2 with government entities all the time.

3 Two people get in a car crash with each

4 other, they don't go to the DMV and ask for an APA

5 hearing about it. It's a dispute that's adjudicated

6 in court. Just as in this case, we have specific

7 statutory statutes that are being adjudicated in this

8 case.

9 ORS 28.010 is only the first claim for

10 relief. But I've got to recap some of the facts to

11 show why this is a dispute between the parties. It's

12 been a long time since our last argument.

13 March 12th of 2011, the

14 Libertarian Party had its annual convention. At that

15 -- at that convention, and this is an uncontested

16 fact that's been admitted by the two parties that

17 have filed their answers already, that the 2009

18 bylaws controlled that convention.

19 At that same meeting, Defendant Wagner

20 was the one that moved to adjourn the meeting until

21 May. So it was March 12th, moved to adjourn until

22 May.

23 At that May 21st meeting, the plaintiff

24 Libertarian Party of Oregon met to continue the

25 convention. They elected the plaintiffs' officers as

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1 the new officers of the LPO and continued operations

2 thereon after.

3 Meanwhile, during that period of time,

4 Defendant Wagner took the chairmanship, because the

5 former chair resigned. Defendant Wagner, from

6 March 12th to March 31st called a separate

7 independent meeting of his own -- which, again, they

8 have admitted in the defendant Libertarian Party of

9 Oregon's answer.

10 Paragraph 16 they admit that that was

11 not a convention. The bylaws require -- and during

12 that meeting, they replaced the bylaws in their

13 entirety.

14 They've admitted that meeting was not a

15 convention. While under the 2009 bylaws, which are

16 acknowledged by all the parties that have answered so

17 far to have been the governing documents at that

18 time, Article XV1, Section I says there must be

19 advance notice of bylaw changes. That's cited in

20 Paragraph 10 of our second amended complaint.

21 "The proposed amendments to the

22 Constitution and bylaws shall be entered on the

23 agenda at the next annual convention to be held in

24 odd-numbered year unless the state -- central and

25 state committee authorizes a special convention to be

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1 held sooner for that purpose." So advance notice is

2 required.

3 Secondly, in Section II of that same

4 thing, that, "Amendments can only take place at a

5 convention."

6 Article XVI, again, Section II.

7 "Amendment in convention: Any delegate to an annual

8 convention held in an odd-numbered year or during a

9 special convention held to consider amendments they

10 propose any amendments to this constitution and

11 bylaws if such amendment is presented in writing to

12 the secretary before that convention finishes

13 considering amendments and if at least 10 percent of

14 the delegates present request its consideration."

15 So it's required to be at a convention.

16 Third, Article XI requires 45 days notice for a

17 convention. It goes without saying, between

18 March 12th and March 31st, there were not 45 days.

19 Therefore -- and they've admitted it wasn't a

20 convention.

21 So their proposed bylaw changes on

22 March 31st can't have taken place, even according to

23 their admissions that are already on this record.

24 Therefore, the 2009 bylaws are still controlling and

25 all operations done after that date should be

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1 according to the 2009 bylaws.

2 That's what our first claim for relief

3 is about. But we make three claims for relief.

4 They're all separately stated, they're all separate

5 laws and they're all private party versus private

6 party. The declaratory judgment is ORS 28.010.

7 We've cited that already. We've litigated about

8 that.

9 So it gives this Court the authority to

10 determine the rights, status and legal relations

11 between parties and 020 says when it -- when it's a

12 written document the Court can do the same thing.

13 Bylaws -- as we've talked about before, bylaws give

14 judicially enforceable contract rights.

15 The cases that we cite on that were in

16 our brief. That's Dentell (phonetic), 273 Or 31,

17 Delaney (phonetic), 278 Or 305, Brewster (phonetic),

18 212 Or 177. And I apologize for having to repeat

19 these from the last hearing, but those say quite

20 clearly that bylaws create judicially enforceable

21 contract rights. That's where we're at. These are

22 judicial enforceable rights.

23 So none of the -- none of the three

24 claims are precluded from being in this court. But,

25 again, they make no substantive argument to the

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1 second or third claim for relief. Their -- their

2 argument is that somehow we're skirting the APA, when

3 the Secretary of State themselves said, "This

4 doesn't -- you don't apply. You've got to go to

5 court if you want to dispute this as a private

6 dispute."

7 And we believe that the state law says

8 what it says. So all claims are private versus

9 private. The pleadings and the prayer both show

10 that. There's no state actor, no state action, no

11 allegation against the government, no remedy sought

12 against the government, no ruling sought to be

13 overturned.

14 The e-mail that they produced was a

15 question about who was going to be the replacement

16 candidate for the first congressional district

17 election that came up suddenly. There is no -- the

18 ballot right now has already been printed.

19 We're not here litigating today who's

20 going to be on the ballot on November 6th. That's

21 not -- that's not why we're here. Your Honor made a

22 good question as to that.

23 We're not about deciding who's on the

24 ballot. We're about deciding who's in control of

25 this organization for tomorrow -- well, it's

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1 obviously a decision that can go out tomorrow, but --

2 THE COURT: Are you sure you want to say

3 that, that this is about who's in control? Or do you

4 want to say the core issue for me is what set of

5 bylaws apply, according to your pleadings?

6 MR. SMITH: Well, Your Honor, they both

7 go hand in hand. The bylaws are the governing

8 documents. State law says that -- for instance, in

9 our third claim for relief, a breach of a duty of a

10 corporate officer. State law is very clear that a

11 corporate officer must follow his bylaws, so they go

12 hand in hand.

13 We've claimed in our third claim for

14 relief that Mr. Wagner breached his corporate duty,

15 his fiduciary duty to follow the bylaws. The 2009

16 bylaws are the precursor of all of this. This whole

17 thing is about if -- if the 2011 bylaws are somehow

18 valid; then, yes, all of our -- this case -- this

19 case would probably be over.

20 We'd have to review the -- the rest of

21 the pleadings and see if there's anything left. It's

22 about the 2009 bylaws, are what the substance of all

23 the case is about. There are certainly things that

24 will cascade downwards and facts and law that could

25 be applied, depending on which set of bylaws is

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1 valid.

2 And one of those, obviously, we have two

3 competing groups of leaders. You can't deny that.

4 Those are the plaintiffs and those are the

5 defendants. But the crux of the dispute is about the

6 bylaws. What are the governing documents of this

7 organization and then, therefore, what acts after

8 that date are valid or invalid.

9 THE COURT: So you're saying for the

10 record that you're not trying to overturn a decision

11 of a governmental official?

12 MR. SMITH: Yes. That's what we're --

13 that's what we're doing, Your Honor.

14 THE COURT: That would be your position

15 as far as a trial court is concerned?

16 MR. SMITH: Yes, Your Honor. There's --

17 the Secretary of State has stated their position and

18 told us to go to court.

19 THE COURT: Okay. Anything else?

20 MR. SMITH: Yes, Your Honor. So the --

21 as -- as I pointed out, the Secretary of State

22 doesn't even have the capacity -- they're prohibited

23 from adjudicating this type of dispute. They've said

24 they can't litigate or adjudicate this type of -- of

25 dispute between private parties.

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1 They don't -- aren't even set up to do

2 things like contract breaches to interpret private

3 party documents, do corporate power struggles. When

4 there's a derivative action by shareholders against a

5 corporation, do they go to the Secretary of State,

6 even though the Secretary of State has registered

7 that corporation and say, "We want an APA hearing?"

8 No. This entire argument is tangential to the facts

9 of this -- and circumstances of this case.

10 THE COURT: I don't want to cut you off,

11 but I think I understand your position.

12 MR. SMITH: Okay. With that said,

13 Your Honor, I'll answer -- I'd be happy to answer any

14 questions.

15 THE COURT: Anyone else with the

16 plaintiffs?

17 Okay. Mr. Andries.

18 MR. ANDRIES: Yes. A couple of points.

19 Mr. -- plaintiffs' counsel has stated a couple of

20 times that the Secretary of State's Office has said

21 we -- they will not -- they will not enter this

22 decision and they will not make a decision on this

23 issue and they need to go to court and get an order

24 from the Court to determine who's going to be the

25 leader and who -- which bylaws are in charge.

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1 If that is the case, through discovery,

2 we have requested communications about that issue.

3 The only communications that we have received in

4 regards to the Secretary of State's decision about

5 and making a statement that they need a court order,

6 it was provided to the court on Exhibit 2, Page 3 to

7 my motion.

8 I mean, in it was an e-mail from the

9 Secretary of State's division to plaintiffs' counsel

10 saying that, "The only way we can remove the

11 qualification of the LPO is that if we were presented

12 with a valid Oregon court order stating that the LPO

13 can no longer exist because the LNC, the Libertarian

14 National Committee, will not allow their use of the

15 name libertarian."

16 Now, if there is other communication

17 that say that they're not going to make a decision,

18 they're not equipped, through the discovery process,

19 that has not been provided.

20 The determinations from the Secretary of

21 State's Office and where they have stated that we

22 have seen through discovery that there needs to be a

23 court order is in that one e-mail and in regards to

24 the use of the name Libertarian.

25 As a result, I don't believe that the

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1 Secretary of State's Office has said, "You need to go

2 get a court order." If you look at the order that

3 they actually provided, we provided to the court

4 Secretary of offices -- State's Office has actually

5 made.

6 They actually said, "We are attempting

7 to stay out of your internal party processes and its

8 clear that we will have to make a decision." So they

9 have made a decision. And while plaintiffs' counsel

10 has stated over and over that this is a private party

11 verses a private party matter, that just -- it isn't

12 true.

13 There are -- the Secretary of State has

14 made a decision. They are the Elections Board. The

15 Libertarian Party provides names for elections

16 processes and the Secretary of State's Office is a

17 party to this.

18 While they're not a named party, just

19 because they haven't been named as a party doesn't

20 mean they are not a government -- there isn't a

21 government actor in this situation.

22 Further, there have been -- on May 9th,

23 2012, plaintiffs' counsel sent a letter to Secretary

24 of State's Office again asking for a determination

25 and asking that their leadership be put in charge, be

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1 rightfully placed into -- as the leaders of the

2 party.

3 So while in this situation on this -- in

4 this case they haven't named the Secretary of State's

5 Office as a party to a litigation, they are. If you

6 look at -- on the complaint, while it wasn't stated

7 in the remedies, spelled out in the remedies, and

8 plaintiffs' counsel was careful not to phrase that,

9 the first and second claim are asking that actions be

10 filed with the Secretary of State so that their

11 officers could be recognized based on that prior

12 election.

13 So while they say that it's private

14 party versus private party, there was on order. And

15 we need to get that -- Lake County says if

16 Administrative Procedure Act is -- review is

17 available, that is the exclusive remedy here.

18 And so while we can talk about all the

19 prior dates and the calendars and when actions

20 happened, there was an order that was made. There

21 was a final order.

22 Plaintiffs' counsel has not disputed

23 that the letter was there. And looking at the terms

24 of ORS 184 and 183, that was a final order. As a

25 result, the remedy -- if the proper remedy is through

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1 the APA, and as a result, they had 60 days to file a

2 review of that decision.

3 THE COURT: One minute.

4 MR. SMITH: Your Honor, if I may, yes.

5 Thank you.

6 That letter is quite interesting for

7 them to cite that out. That was to a different

8 party. While my name was on that letter, I was

9 actually representing the Libertarian National

10 Committee at the time. And it was about a federal

11 election matter.

12 And so it's interesting that they bring

13 that up and say that that was somehow involving or

14 adjudicating the rights of my clients. As you

15 pointed out, the Secretary of State has never decided

16 any of these issues that are before this Court.

17 They never decided whether there was

18 45 days to have a convention. They never decided

19 whether the 2009 bylaws and the 2011 bylaws were

20 properly adopted. They never adjudicated the quorum

21 dispute about that meeting, which is at stake. They

22 never adjudicated the meaning as you've seen, the --

23 the interpretive disagreements about what the bylaws

24 say.

25 They never adjudicated any of these

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1 things. So I don't want to go past my minute.

2 THE COURT: Okay. You've used your

3 minute up.

4 All right. I'm going to make the same

5 -- I see people in the back on the courtroom. I

6 assume some of you are parties to this litigation; is

7 that correct? I see nodding heads.

8 Okay. I'm going to make the same

9 observation I made the last time this was before me.

10 The lawyers on both sides have done exceptional work

11 in briefing this matter. So that's always helpful to

12 the Court.

13 I spent most of Saturday morning reading

14 the file, so I believe I'm familiar with the -- the

15 issues. I'm denying the motion.

16 And, Mr. Smith, if you will prepare the

17 appropriate order.

18 MR. ANDRIES: Your Honor --

19 THE COURT: Yes.

20 MR. ANDRIES: If I could ask for a

21 little bit of clarification. Is it your ruling that

22 there was not a final order -- a final order was not

23 made or that jurisdiction does not -- there was a

24 final order and jurisdiction not apply?

25 THE COURT: My -- my reasoning is that

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1 what the Secretary of State decided is not before me

2 in this lawsuit. And I think we should put that in

3 the order in case, you know, you want to cite that

4 and if you should decide to appeal this.

5 MR. ANDRIES: Thank you.

6 THE COURT: Anything else you'd like me

7 to add in there?

8 MR. ANDRIES: No, Your Honor.

9 THE COURT: Okay. Thank you, everyone.

10 MR. ANDRIES: Thank you, Your Honor.

11 MR. SMITH: Thank you, Your Honor.

12 * * *

13 (Court adjourned, Volume 3, 10-22-12 at 9:42 a.m.)

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Reporter's Certificate 132

1 REPORTER'S CERTIFICATE

2 I, Katie Bradford, Court Reporter of the

3 Circuit Court of the State of Oregon, Fifth Judicial

4 District, certify that I transcribed in stenotype

5 from a CD the oral proceedings had upon the hearing

6 of the above-entitled cause before JAMES E. REDMAN,

7 Circuit Judge, on October 22, 2012;

8 That I have subsequently caused my

9 stenotype notes, so taken, to be reduced to

10 computer-aided transcription under my direction; and

11 that the foregoing transcript, Volume 3 of 5 ,

12 Pages 106 through 131 , both inclusive, constitutes a

13 full, true and accurate record of said proceedings

14 taken from a CD and so reported by me in stenotype as

15 aforesaid.

16 Witness my hand and CSR Seal at

17 Portland, Oregon, this 10th day of March, 2014.

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20 ___________________________Katie Bradford, CSR 90-0148

21 Court Reporter(503) 267-5112

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