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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 Court

and ) No. CV12010345

8 )

CARLA PEALER, as the ) CA A155618

9 Libertarian Party of Oregon, )

)

10 Plaintiff, ) Volume 4 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 Henry C. Breithaupt, on Thursday, the

24 16th day of May, 2013, at the Clackamas County

25 Courthouse, Holman Hearing Room, Oregon City, Oregon.

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Appearances 134

1 APPEARANCES

2 Tyler Smith and Anna Adams,

Attorneys at Law,

3 Appearing on behalf of the Plaintiffs;

4 Robert Steringer, James Leuenberger andColin Andries, Attorneys at Law,

5 Appearing on behalf of the Defendants.

6 * * *

7

KATIE BRADFORD, CSR 90-0148

8 Court Reporter

(503) 267-5112

9

Proceedings recorded by digital sound recording;

10 transcript provided by Certified Shorthand Reporter.

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Appearances 135

1 GENERAL INDEX

2 VOLUME 4

3 Page No.

4 May 16, 2013 Proceedings 136

5 Case Called; Parties Introduced 136

6 Colloquy Between the Court and Counsel 137

7 Matter Taken Under Advisement 268

8 Reporter's Certificate 269

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1 (Volume 4, Thursday, May 16, 2013, 9:13 a.m.)

2 PROCEEDINGS

3 (Whereupon, the following proceedings

4 were held in open court:)

5 THE COURT: This is Reeves and others

6 against Wagner and others and, in particular, an

7 organization identified as the Libertarian Party of

8 Oregon.

9 If counsel would introduce themselves,

10 beginning here, I suppose.

11 MS. ADAMS: Good morning, Your Honor.

12 My name's Anna Adams and I represent the plaintiff,

13 along with Mr. Smith.

14 THE COURT: Okay.

15 MR. SMITH: Morning, Your Honor. Tyler

16 Smith, 075287, represent all the plaintiffs in this

17 Libertarian Party of Oregon and all of the officers

18 associated there.

19 MR. LEUENBERGER: James Leuenberger on

20 behalf of Wes Wagner.

21 MR. STERINGER: Bob Steringer on behalf

22 of the Libertarian Party of Oregon.

23 MR. ANDRIES: Colin Andries, 051892.

24 I'm here on behalf of all the other defendants.

25 THE COURT: All right. I've read -- I

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1 will not confess to have read everything you've given

2 me, but I've read much of what you've given me. And

3 I suppose the first question I have is among the

4 defendants, how are you going to proceed in making

5 presentations?

6 I know in your briefing to some extent

7 folks tied their wagon to Mr. Steringer's wagon and

8 in some cases, I think Mr. -- is it Andries?

9 MR. ANDRIES: Correct, Your Honor.

10 THE COURT: Mr. Andries had some

11 substantive matters in particular regarding the

12 charitable -- or the nonprofit corporation statute

13 that you seem to state independently of

14 Mr. Steringer. But did you -- have you agreed on a

15 method for making presentations here today?

16 MR. STERINGER: Your Honor, what we

17 anticipated doing was having me take the lead and

18 present on several of the motions and then my counsel

19 for -- or counsel for the other defendants would make

20 whatever comments they would like to add to that.

21 THE COURT: Any objection to that

22 process?

23 MR. SMITH: No, Your Honor. No

24 duplicity, then fine.

25 THE COURT: Okay. And you're welcome to

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1 remain seated during your presentations. If you wish

2 to stand you may, but you're not required to.

3 MR. STERINGER: Thank you, Your Honor.

4 THE COURT: Now, in general, my

5 understanding is that an organization known as the

6 Libertarian Party of Oregon came into existence and

7 purported in some fashion to adopt some bylaws, later

8 described by a -- I believe it's a person associated

9 with the national party, as creating a, in his words,

10 circular firing squad. These were the 2009 bylaws as

11 I understand it.

12 Then various things occurred and some

13 2011 bylaws came into -- into being and some actions

14 were taken. And now the defendants, Mr. Wagner and

15 others, assert -- and I may be overdoing it here --

16 but assert that, in effect, there is a Libertarian

17 Party of Oregon and they are the incumbent central

18 committee? Incumbent what, officers? How best to

19 describe them?

20 MR. STERINGER: At a minimum, I think --

21 I think the clearest description of them would be

22 that they are the incumbent officers. There are

23 additional defendants who make up the board of

24 directors under the organization as well.

25 THE COURT: All right. Let me ask a

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1 very basic question if you -- I assume you can -- you

2 can agree on this, that's it's not a matter of

3 contest. Is the organization identified as the

4 Libertarian Party of Oregon -- or at least as you

5 folks conceive of it -- a major political party under

6 Oregon law, Chapter 248, or a minor political party?

7 MR. SMITH: Minor, Your Honor, is what

8 we would assert.

9 THE COURT: Do you agree, minor?

10 MR. STERINGER: We agree with that.

11 THE COURT: And without necessarily

12 putting too much weight in this observation, I view

13 it as -- at least preliminarily as essentially a

14 fight among factions of -- well, factions or groups

15 of people, each of whom claim to be the real

16 libertarians.

17 And I am quite reluctant to have, at

18 least at my level until told differently, quite

19 reluctant to have the judicial branch of the State

20 step into an intraparty fight, an intraorganizational

21 fight where a political party is involved in the same

22 way that on at least one occasion -- well, actually

23 on the one -- on several occasions the Courts have

24 said in respect of other what I'll call First

25 Amendment organizations, namely churches, we don't

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1 step in and adjudicate or resolve differences as to

2 who is the real Presbyterian or who is the legitimate

3 Catholic.

4 We do step in -- and I've had occasion

5 to step in out in -- in Multnomah County where the

6 claim is a claim having not to do with who is

7 legitimate or true or proper, but rather in the case

8 I'm thinking of where an organization terminated the

9 employment of a pastor and the pastor made a claim

10 for damages for -- or where the classic -- yeah, the

11 classic that occurs and I think has occurred recently

12 in Oregon Courts.

13 That is, a religious organization has a

14 split and there's only one house of worship and

15 obviously there's a dispute as to whose is it and so

16 you have to adjudicate -- may have to adjudicate who

17 owns the house of worship. Courts do step in there

18 to some extent, but are reluctant to get involved.

19 And I -- to me, there's a lot about

20 political parties that are like -- similar to

21 religion. And I -- for that, I refer to the rule of

22 my barber when I was a young man, who informed me

23 that there were two things that were not discussed in

24 the barbershop.

25 One was politics and the other was

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1 religion. Sports, okay. Certain other things, okay,

2 but not those things. Come here, get your hair cut.

3 That's it. Talk about sports or something, but not

4 those two subjects, so -- and they're both First

5 Amendment, very important First Amendment functions:

6 Political organization, religious organization and

7 practice.

8 So now my question -- that's where I

9 start. And I think it's Mr. Smith who's going to say

10 to me, "Well, don't worry so much. This is a little

11 different. You, the judiciary, ought to get involved

12 in this matter."

13 And let me ask you in my most basic

14 terms then, Mr. Smith, what is it you want?

15 MR. SMITH: Your Honor --

16 THE COURT: And I don't mean that

17 facetiously. I mean what remedy are you seeking

18 here? What declaration? What is it that you would

19 have the judicial branch afford you or give you?

20 MR. SMITH: Thank you, Your Honor.

21 That's a good question. And I'll point out this

22 exact argument as we pointed out in our brief has now

23 been made. This is the third time we've sat in front

24 of a Clackamas County sitting judge to make this

25 argument and this exact argument.

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1 So we've had this oral argument on this

2 twice, so I hope I don't skip over anything.

3 THE COURT: Help me. I know you've had

4 it one -- tell me when you've had it.

5 MR. SMITH: We had it, the first motion

6 dismiss. We had it again. There was no -- there was

7 no decision on that first motion to dismiss. We had

8 a second motion to dismiss and there was a decision

9 on that second motion to dismiss. We've made this

10 oral argument now twice for this Court.

11 So it's been considered. It's been

12 looked at from every angle and Judge Redman

13 specifically said, "This Court has jurisdiction."

14 And declined the argument, the very argument that

15 they're making.

16 And that you had mentioned it was your

17 predisposition to decline that argument for the

18 reasons that we will get to.

19 THE COURT: Well, I'll say it's my very

20 real concern.

21 MR. SMITH: Okay. So that has been

22 explored fully.

23 THE COURT: Now, as to that, you've

24 claimed law of the case. And I have you're -- or are

25 you retreating from that?

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1 MR. SMITH: No, Your Honor. But that's

2 only -- that's an alternative argument.

3 THE COURT: Okay. Good. Because I

4 think it's a losing argument.

5 MR. SMITH: And I -- and I agree that

6 this Court does have the discretion to change --

7 THE COURT: Sure.

8 MR. SMITH: -- particularly its own

9 prior ruling, but in this case it's a different

10 scenario because there's another judge.

11 THE COURT: Yeah.

12 MR. SMITH: So, obviously, it's --

13 THE COURT: But that -- that's happened

14 to me elsewhere. Superbilt, I think, is the other

15 case that teaches that, but --

16 MR. SMITH: That's a --

17 THE COURT: Now -- so you say that

18 Judge Redman considered this very argument and said,

19 "I think it's okay for people in black mu'u mu'us to

20 walk out into this minefield."

21 MR. SMITH: Absolutely, Your Honor. And

22 I'll get to -- I'll get to those points. I just

23 wanted to point that out.

24 THE COURT: Okay. Just -- just a

25 moment.

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1 Let me ask Mr. Steringer, do you agree

2 that Judge Redman did that?

3 MR. STERINGER: Well, what I can agree

4 to is that Judge Redman denied a motion to dismiss

5 under Rule 21 on grounds that the relief sought by

6 the plaintiffs was unconstitutional if rendered by a

7 Court in Oregon.

8 It was made under Rule 21 and it was

9 made without the benefit of the extensive record that

10 we've now been able to provide to the Court to

11 further demonstrate the political nature of the --

12 the dispute that is central to the -- the claims.

13 THE COURT: Okay. And so your position

14 is a not uncommon one, that a Rule 21 motion, it's

15 important, but surviving a Rule 21 motion doesn't

16 mean that when the record is developed you can

17 survive summary judgment. Mr. Smith may well say

18 that's a distinction without a difference.

19 But I'll go back to Mr. Smith.

20 MR. SMITH: Well, just on the question

21 of law, Your Honor, I'll just say that the Rule 21

22 stage it's a pure question of law. That question of

23 law here, basically, is the same regardless of any of

24 the facts.

25 The question of law is can the Court

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1 wade into and -- and have jurisdiction to do the

2 things that plaintiffs are asking them to do.

3 THE COURT: Well, except that this. I

4 began recently for the first time to look at -- when

5 I say for the first time, I've never had occasion

6 otherwise to do it -- and that is to look at

7 Chapter 248 and to think about: What is a political

8 party? What role does the State play in political

9 party, the organizational political parties?

10 I know, for example, from talking with

11 an elderly gentleman who knows something about

12 constitutional law that in the 19th century,

13 political parties, they weren't -- there were no --

14 there were virtually no state statutes about

15 political parties. Political parties existed. They

16 handed out ballots.

17 Indeed, in some jurisdictions, they

18 handed out colored ballots. If you were a democrat

19 it was red and if you were a republican it was green

20 and if somebody was seen walking down the street with

21 a green ballot, they could be beaten up by a gang, I

22 mean, literally, okay?

23 But the idea that we have currently of

24 political parties and primary elections as being, in

25 effect, some kind of state -- state -- the State

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1 being involved to almost any extent is relatively

2 new.

3 So I began looking at 248 and I asked

4 myself this question, which maybe your record touches

5 on. And that is: Is there no way under Oregon law

6 for this dispute to be solved internally through what

7 I'm going to call the political process of the party

8 itself?

9 In other words, could the -- I think

10 it's the plaintiffs here, essentially, go to those

11 people in Oregon who identify themselves as

12 Libertarians -- and I don't know what the word

13 "identify themselves" means. Whether they have to be

14 registered, whether they simply have to put, in

15 effect, a name tag on saying, "For this purpose I am

16 a Libertarian."

17 Is there no process under Oregon law by

18 which the question of whether it's Tim Reeves or

19 Wes Wagner, just to pick on the two first names, that

20 that question can't be resolved by -- in some -- in

21 some fashion by people that call themselves

22 Libertarians?

23 MR. SMITH: Your Honor, I'd love to

24 answer that question. So I've got two questions. I

25 don't want to skip over the jurisdictional question

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1 you mentioned before, but I'll answer that question

2 directly, 'cause you mentioned that.

3 THE COURT: Well, it relates to the

4 jurisdiction question. And that's what I'm saying it

5 relates to this issue of how has the record been

6 developed because if I gain an -- if I gain an

7 understanding that under Chapter 248 and the way

8 things operate, there is a method for a group of

9 people called Libertarians to -- essentially, this is

10 a fight about is it -- is it Reeves or is it Wagner?

11 If there's a way for them to work that

12 out, then I say let them work it out.

13 MR. SMITH: Your Honor, there's not a

14 way for them to work that out under ORS 248.

15 THE COURT: Mm-hmm.

16 MR. SMITH: As we pointed out,

17 particularly in ORS 248, the Secretary of State and

18 elections officials, being county clerks mainly in

19 the Secretary of State's Office are prohibited from

20 doing that kind of thing. This is the constitutional

21 protection at work: That elections officials can't

22 get involved in this. So there's not --

23 THE COURT: That's 248.011 or whatever

24 provision.

25 MR. SMITH: Correct. Correct. And the

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1 director of the Secretary of State's elections

2 division has explained that. And I'm not sure

3 whether the defendants have withdrawn their argument

4 about the APA, but that goes directly to that point,

5 'cause there is no --

6 THE COURT: No, no. Wait, wait, wait,

7 wait. No. No, it doesn't. Because what I asked

8 was: Isn't there a way to work it out internally?

9 What you've said and the statute seems to support

10 clearly is, "Well, there's not a way for the

11 Secretary of State to resolve that."

12 MR. SMITH: Mm-hmm.

13 THE COURT: But my question is let's

14 assume for a moment that the judges say, "Uh-uh,"

15 Secretary of State reads the statute and says,

16 "Uh-uh," is there still a way for libertarians to

17 say, "Those are the rebels, we're the true."

18 MR. SMITH: Right. I understand your

19 question, Your Honor, exactly and I was just about to

20 get there -- is that no, there's not. What we have

21 here is a dispute about what are the rules. That's

22 what we're asking this Court to do. Earlier, you

23 asked us what's our remedy. We want this Court to

24 decide what are the rules.

25 Everybody agrees that the 2009 bylaws

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1 were in place and were the governing documents up to

2 March of 2011. After that point in time, we have two

3 separate entities. Mr. Wagner, we pointed out in his

4 deposition, says he created a new government

5 structure, new government documents.

6 And here importantly for your question,

7 new set of membership. The memberships are different

8 between the old organization and their new

9 organization.

10 So it's -- it's an entire -- it's got

11 different governing documents, different membership,

12 different officers and as he called it in his

13 deposition, I believe, a different government,

14 different form of government I think is what he said.

15 THE COURT: Now, just a moment. Does

16 this minor political party have a state central

17 committee?

18 MR. SMITH: No, Your Honor. And as we

19 pointed out in our brief -- and I happen to be legal

20 counsel for two, in one political party and then my

21 plaintiffs here, a state central committee is a

22 particular statutory -- the central part of that is a

23 particular statutory creation. And it's defined

24 as -- in ORS 248, as an organization of county

25 central committees.

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2 MR. SMITH: County central committees,

3 by their definition, have to be comprised of precinct

4 committee people.


6 MR. SMITH: Precinct committee people

7 can only be elected individuals of the major

8 political parties.

9 THE COURT: Yeah. And that's --

10 MR. SMITH: As we stipulated --

11 THE COURT: And that's why I asked

12 earlier about this.

13 MR. SMITH: Right.

14 THE COURT: So the whole system of

15 precinct leads to county leads to state --

16 MR. SMITH: Central committee.

17 THE COURT: -- committee structures is a

18 major political party --

19 MR. SMITH: Correct.

20 THE COURT: -- function.

21 MR. SMITH: And exclusively a major

22 political party function.

23 THE COURT: Any disagreement on that,

24 Mr. Steringer?

25 MR. STERINGER: Well, what I disagree on

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1 is if we look at the statute that talks about one

2 particular function of state central committees. The

3 statute, and I can -- I can get the -- the citation.

4 THE COURT: 072?

5 MR. STERINGER: I believe that is

6 correct.

7 THE COURT: State central committee --

8 MR. STERINGER: Yes.

9 THE COURT: -- is the highest party

10 authority and may adopt rules or resolutions for any

11 matter of party government --

12 MR. STERINGER: That's --

13 THE COURT: -- controlled by the law of

14 the state.

15 MR. STERINGER: -- correct. That

16 statute is -- it is stated in terms of parties

17 generally. And so we argue that the -- the -- the

18 job of the -- the Court here in interpreting that

19 statute is to determine whether there is an analogue

20 to a state central committee in minor political

21 parties to which that statute would apply.

22 And -- and, in fact, the Secretary of

23 State, which is charged with implementing ORS Chapter

24 248 has -- has taken the position that the state

25 committee of the Libertarian Party of Oregon is the

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1 entity that is the equivalent of a state central

2 committee under 248.072; and, therefore, fulfills

3 that role.

4 THE COURT: And I see that in what

5 document in the record? I'm assuming the Secretary

6 of State did this by a writing.


8 MR. STERINGER: They did, Your Honor.

9 MR. SMITH: We'd stipulate there's a

10 letter from that in -- in the record; but it's a

11 low-level Elections Division employee that's

12 making -- writing that letter.

13 THE COURT: Is this Exhibit 5 to

14 Wagner's response of declaration?

15 MR. STERINGER: It's Exhibit 5 to the

16 Wagner response. Thank you. It is, Your Honor.

17 MR. SMITH: It's not the Secretary of

18 State or the director or the associate director.

19 It's a low-level elections employee who made that

20 reference.

21 THE COURT: Well, it's only a low-level

22 IRS official who denied or worked over certain

23 organizations for their viewpoints on C4 status, but

24 I think the responsibility has gone upstream.

25 MR. STERINGER: And -- and it is a

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1 decision of the Secretary of State's Office on -- on

2 an elections question.

3 THE COURT: Now, I think Mr. --

4 Mr. Smith has already told me, Mr. Steringer, that

5 because the state central committee shall consist of

6 at least two delegates from each county's central

7 committee, when you work back through the statutes,

8 it's hard to conclude that a state central committee

9 exists as such for a minor political party.

10 But you're saying the spirit of 072,

11 248.072, should apply.

12 MR. STERINGER: And we do argue that,

13 Your Honor. And our position is supported by the

14 decision of the Oregon Secretary of State that we've

15 provided to the Court.

16 THE COURT: Okay. Now --


18 THE COURT: -- let me go back --

19 MR. SMITH: Okay.

20 THE COURT: -- one more step and then

21 I'll -- again, what are we fighting about here? Are

22 we fighting about the bank account? I don't think

23 so. Are we fighting about the offices, the premises

24 of -- I don't know if there are any -- or are we

25 fighting about the name?

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1 MR. SMITH: Fighting about the bylaws,

2 Your Honor, and the name. Those -- those are the key

3 things and -- and then ultimately who's in control of

4 those two things.

5 THE COURT: But who's in control of

6 what? Because --

7 MR. SMITH: The --

8 THE COURT: -- obviously if -- let's

9 assume that Reeves is successful and says -- gets

10 somebody to declare he is it. Now, when I say, "he

11 is it," I understand he doesn't say -- he's not

12 trying to be a dictator. He just is saying, "I'm

13 the -- the leader of this organization."

14 Well, other Libertarians with vote with

15 their feet and say, "Well, you may be it, but you're

16 -- you're -- you're it for a group of 13 people. Go

17 to it. We'll go over here and we'll engage in

18 political activity in the nature of organizing, doing

19 things."

20 Ultimately, would you agree, Counsel,

21 248 really talks about the role of parties in -- in

22 nominating candidates, right? I mean, isn't it real

23 functional significance of being a party the ability

24 to get names on a ballot?

25 MR. SMITH: Your Honor, I can answer

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1 that very directly. 248.010 --


3 MR. SMITH: -- is one of the key pieces,

4 the use of party name.


6 MR. SMITH: And in order -- I'll point

7 you backwards from that. 248.007 talks specifically

8 about the organization -- or I'm sorry -- 248.008

9 is -- is the part that talks about the organization

10 and structure for minor political parties.


12 MR. SMITH: Well, background to all of

13 this, when this dispute erupted, the conversation was

14 had with the Secretary of State. What happens?

15 Secretary of State, this is sort of tangential, but

16 it's background material, said, "Well" --

17 THE COURT: And this is in the record,

18 by the way, what you're going to tell me?

19 MR. SMITH: Ah --

20 THE COURT: I don't want you to talk --

21 MR. SMITH: I'm -- just background

22 explanation here from the law.

23 THE COURT: No, no. I don't want even

24 background unless I've got something in the record.

25 MR. SMITH: Well, the way the law -- the

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1 way the law here applies is what I'll talk about, not

2 facts, is that the Secretary of State recognizes

3 whomever they had last on their roster as an officer

4 of the party. And so those -- whoever they had --

5 THE COURT: Who -- who -- where -- has

6 the Secretary of State told us this by rule or how --

7 how do we know this?

8 MR. SMITH: There -- there is

9 correspondence. I think the other side would

10 stipulate that they have -- I'm not -- I would expect

11 they would stipulate the Secretary of State has

12 stated that.

13 But the key, what I'm getting at with

14 that is that, it's the registered Libertarians in the

15 state of Oregon, whoever has the party name, has the

16 control over what happens with the registered

17 Libertarians.

18 And so for -- if you were to say,

19 "Wouldn't to be easy to just go and split off and try

20 and recruit all the people away?" Secretary of State

21 and the law only allows there to be one form of

22 registered Libertarian voter. And the registered

23 Libertarian voters, of course, affiliated with the

24 national and the entire line of registered

25 Libertarians.

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1 THE COURT: Well, now -- no. Wait,

2 wait, wait, wait, wait. Isn't it the case that --

3 and I know names are important, brands are important.

4 Isn't it possible that Mr. Reeves and

5 his colleagues could form the real Libertarian -- the

6 statute talks about any part of a name, but for

7 purposes of my example, the Legitimate Libertarian

8 Party of Oregon and could go to the Secretary of

9 State and have themselves recognized as that.

10 And then you could complete with the

11 other people called the Libertarian Party of Oregon

12 and part of that competition would be to go to the

13 national organization and say, "You, national, have

14 something that you can add to -- you can help us, one

15 of us, but perhaps not both of us."

16 And you could make your case for why you

17 should be the affiliate and Mr. Steringer and his

18 clients, these folks' clients could make their case

19 and -- and the national body could ultimately say,

20 "Now, it's too bad there's a fight out in Oregon, but

21 we have to -- we need to" -- let's assume they said,

22 "We need to choose one group and we'll choose your

23 group."

24 MR. SMITH: Your Honor, that's why I

25 said we've already had this fight. This has already

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1 been discussed and -- and extensively. They already

2 have. The national party has already spoken. And

3 the plaintiffs --

4 THE COURT: Do I have that in the

5 record?

6 MR. SMITH: Yes, it's in the record.

7 THE COURT: And what has the national

8 party said?

9 MR. SMITH: The national party in 2012

10 in their national convention for the selection of

11 presidential, vice presidential candidates looked at

12 this issue, had a credentials committee hearing, had

13 the entire delegation of the entire national

14 convention of the Libertarian Party decide that the

15 Reeves delegates that were sent by the Reeves party

16 to the national convention were to be seated as the

17 delegates of the Libertarian Party of Oregon.

18 So to answer your question -- I

19 mentioned that to answer your question. It's

20 possible for the national organization to recognize

21 that and they have. They seated them. My clients'

22 delegates voted for presidential nominations and --

23 and voted in all the matters at the national

24 convention.

25 What we have here is --

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1 THE COURT: Okay. Just a moment.

2 Any -- any disagreement?

3 MR. STERINGER: Major disagreement here,

4 Your Honor.

5 THE COURT: I was going to say, I

6 thought this went the other way in your briefing.

7 MR. STERINGER: It did. We need to

8 understand that --

9 THE COURT: How can we have a 180-degree

10 difference between two members of the bar?

11 MR. STERINGER: We need to understand

12 the difference between what a convention decided to

13 do in seating a group of delegates and an official

14 decision of the Libertarian National Committee.

15 And the -- the decision of the

16 Libertarian National Committee was to recognize the

17 -- the leadership of Wes Wagner as the legitimate

18 leadership of the party and we've provided evidence

19 in the record about the fact that the Libertarian

20 National Party website still links to the

21 Libertarian Party of Oregon website that is -- that

22 is run by the Wagner faction.

23 THE COURT: So did -- did the Wagoner

24 faction send delegates to be seated?

25 MR. STERINGER: They did, Your Honor.

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1 THE COURT: Were they seated?

2 MR. STERINGER: They were not.

3 THE COURT: That's in the record?

4 MR. SMITH: Yes, Your Honor. And,

5 Your Honor, with the -- if I can address that factual

6 contention. There were decisions prior to that made

7 by the executive committee and the judicial committee

8 of the Libertarian -- before the convention, almost a

9 year prior, and they were conflicting.

10 I believe there were three decisions

11 actually made. There was one by the executive

12 committee. There was one by the judicial committee.

13 Of those decisions, one recognized the Reeves group.

14 The judicial committee, I believe, said, "Whatever

15 the Secretary of State says is what we'll do."

16 And so there was, amongst the smaller

17 group of the executive committee and the judicial

18 committee at the national level there was conflicting

19 matters and that -- that was preliminary. So there

20 were -- there were I think three bounces amongst the

21 executive committee.

22 MR. STERINGER: Well, and Your Honor

23 will appreciate that it's the decision of the

24 judicial committee of the LNC that controls. That

25 was an appeal from the decision of the Libertarian

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1 National Committee that had originally recognized the

2 Reeves faction. The judicial committee found that to

3 be incorrect and reversed it.

4 MR. SMITH: But this case would not

5 reverse the judicial committee. They said they'll

6 recognize whomever the Secretary of State recognizes.

7 THE COURT: I was going to say, to me,

8 the reason I'm interested in this is not because it's

9 going to -- it necessarily is precedent for this

10 decision, but I'm just trying to understand how

11 organization -- how the organizations work. I

12 mean -- okay.

13 MR. SMITH: So, Your Honor, going

14 back --

15 THE COURT: Mr. Smith, you're too young

16 to remember the Democratic convention of 1964.

17 MR. SMITH: I am.

18 THE COURT: The same problem with --

19 MR. STERINGER: So am I, Your Honor.

20 THE COURT: So are you. Anybody here --

21 anybody here --

22 MR. ANDRIES: Yes, I was there.

23 THE COURT: You were at --

24 MR. ANDRIES: I was there.

25 THE COURT: In '64?

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1 MR. ANDRIES: That's right.

2 THE COURT: All right. Good for you.

3 Well, then you know that there was a question of

4 which delegation from Mississippi.

5 MR. SMITH: And we have cited those

6 cases, Your Honor --

7 THE COURT: Yeah.

8 MR. SMITH: -- in our briefing. I will

9 get to that when we get to the jurisdictional -- when

10 we --

11 THE COURT: Okay.

12 MR. SMITH: -- get into the

13 jurisdictional, because I think that's important.

14 And that shows the distinction between what we're

15 talking about in this case versus other cases. And

16 that law is absolutely -- I don't think it's even

17 controverted. They don't talk about it much, but we

18 do talk about it.

19 The United States Supreme Court and

20 throughout federal districts. We've cited the cases

21 that point out that when the decision can be remedied

22 by a larger body, such as the convention of the

23 National Libertarian Party, like that, then the

24 Courts have said, "We stay out of it in those

25 circumstances, because it's delegates. Who were the

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1 proper delegates to your body?"

2 If you're going to -- if we were going

3 to have a meeting across the street and we were going

4 to pick who goes there and multiple groups pick who

5 goes there, that group gets to decide, does their own

6 credentialing and decides who are the proper people

7 to be a part of that group.


9 MR. SMITH: But that's been decided.

10 Here, again, the -- that was decided in the

11 plaintiffs' favor at that national convention. So

12 that's not the -- that's not the issue here.

13 THE COURT: Oh, I understand seating at

14 a convention isn't the issue.

15 MR. SMITH: So if -- if this Court was

16 to go along the lines that it doesn't have -- doesn't

17 have jurisdiction or the First Amendment would bar

18 it, than that would be the binding precedent and my

19 clients should be ruled to have won, because the

20 largest body that deals with anything Libertarian in

21 the United States has said that my clients were the

22 appropriate -- the convention is the largest.

23 That's --

24 THE COURT: No, no, no. Just a moment.

25 The whole point is, is if there is a remedy in the

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1 party, the judges stand aside.

2 MR. SMITH: Right.

3 THE COURT: And then you and the party

4 folks at national can have whatever mix of salad you

5 want to have.

6 MR. SMITH: And here the --

7 THE COURT: And it may be very confusing

8 to a lot of folks, because there may be a constant

9 trumpeting of, "We're still legitimate Libertarians.

10 Don't pay attention to these people, pay attention to

11 these people."

12 But that's the -- the -- the kind of,

13 you know, argument that --

14 MR. SMITH: Mm-hmm.

15 THE COURT: -- I guess we are supposed

16 to have.

17 MR. SMITH: And that's why we're having

18 the dispute about which -- which rules govern,

19 Your Honor. If we were to have an internal process,

20 whose internal process do you use? We have the 2009

21 bylaws, which sat there and were agreed by everybody

22 and were operated by everybody --

23 THE COURT: Well, okay. Let me ask --

24 MR. SMITH: -- and they have different

25 bylaws.

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1 THE COURT: Okay. Let me ask this. The

2 2009 bylaws were described, as I said, as a circular

3 firing squad. I take it that the -- the problem with

4 the 2009 bylaws from my reading is that there was a

5 core requirement that, essentially, was almost

6 impossible to meet as a practical matter. Is that

7 fair to say?

8 MR. SMITH: I don't think so,

9 Your Honor. We met it. My clients in March of this

10 year met --

11 THE COURT: Well -- well --

12 MR. SMITH: -- the quorum requirement.

13 THE COURT: Just a moment. Just a

14 moment. Historically, Mr. Steringer, what was the

15 problem with the -- was there a problem with the 2009

16 bylaws? And if so, what was it?

17 MR. STERINGER: That was the problem.

18 After -- well, that was one problem. I think it's a

19 problem that is most -- most critical here. In March

20 of 2010, the Libertarian party got together and had a

21 convention and passed a reform plan. Nobody

22 complained about quorums at that time.

23 When it came time to implement the

24 bylaws changes that would effectuate that reform

25 plan, the group affiliated with the plaintiffs came

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1 up with this quorum problem and actually convinced

2 the party at their November 2010 special convention

3 that the quorum issue prevented them from organizing

4 because there weren't enough people there to -- to

5 meet quorum.

6 The same issue arose again in March 2011

7 at the regular convention. They were not able to get

8 the number of -- of participants necessary to meet

9 that interpretation of -- of quorum. Mr. Smith

10 alluded to their position that they were able to meet

11 quorum at their -- the meeting that they had by

12 themselves.

13 THE COURT: Just a moment, just so I

14 stay on. It's following the March of 2011 -- what

15 you describe as the regular convention --

16 MR. STERINGER: Right.

17 THE COURT: -- that then your clients,

18 I'll call them, took the actions they took to

19 institute a new set of bylaws and proceed on.

20 MR. STERINGER: That's when the -- the

21 group, the Libertarian Party of Oregon state

22 committee, which is under even the 2009 bylaws,

23 the -- the group of individuals charged with carrying

24 out the affairs of the -- the party, developing

25 policy for the party, they broke the log jam by

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1 adopting the -- a new set of bylaws that implemented

2 the reforms that were passed in 2010.

3 THE COURT: Passed by whom in 2010?

4 MR. STERINGER: By -- in a convention,

5 in a full convention of the party.

6 THE COURT: As to which no objection was

7 made regarding quorum?

8 MR. STERINGER: Correct. Correct. And

9 took the extra step of referring those bylaws out for

10 a vote-by-mail vote of every Libertarian Party of

11 Oregon elector in the state. And the results of that

12 was over 750 Libertarian Party electors participated

13 in that election, far more than would ever attend the

14 convention.

15 And they overwhelmingly ratified the new

16 bylaws that had been adopted by the state committee

17 in 2011. The vote, if my -- if memory serves, was

18 725 to 26.

19 That was a process -- if we want to try

20 to tie it back to Chapter 248, Chapter 248, as we've

21 discussed 248.005 in a rule that can't be enforced by

22 the Secretary of State; but, nevertheless, provides

23 the party is responsible for ensuring the widest and

24 fairest representation of party members in the party

25 organization and activities.

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1 And party members, it's important to

2 understand for purposes of the statute, party members

3 means those who register as Libertarian Party

4 electors. They are affiliated with the party.

5 And that is distinct from the definition

6 of membership that had been used by the party through

7 2011, which included anybody who wrote a $50 check to

8 the organization, whether they lived in Oregon,

9 whether they were Libertarian Party members or not,

10 that's -- those were the individuals who were

11 accorded full party membership under the 2009 bylaws.

12 The 2010 reform plan decided that that

13 was not appropriate and -- and -- and went to what we

14 now have in the 2011 bylaws.


16 THE COURT: Just one moment. And then

17 what I was picking up is the background to

18 Mr. Smith's point and that is that at some point he

19 asserts -- and I'll have him explain -- that the

20 Reeves faction was able to muster a quorum and do

21 something, so will you take me through that process

22 again --

23 MR. SMITH: Absolutely, Your Honor.

24 THE COURT: -- with attention to the

25 fact that it's got to be in the record that I've got

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1 here.

2 MR. SMITH: Absolutely. The -- it's in

3 the record. The 2010 -- the 2009 bylaws state that

4 even-numbered years is an election -- is an

5 election -- particular type of a convention meeting.

6 Odd-numbered years they will consider bylaw

7 amendments.

8 So in 2010, they could not enact some

9 sort of reform plan, a formalized reform plan, change

10 the bylaws. It was an election only. That's the

11 first key that I'll mention about the 2010.

12 So that when the -- in November of 2010

13 and then March of 2011, there's a four-month gap

14 where they talk about, "Oh, there's the quorum

15 problem." And yes, my clients did, in fact, make

16 quorums. It's in the affidavits and declarations in

17 there. They did, in fact, make quorum this March,

18 so --

19 THE COURT: Wait, wait, wait. "This

20 March" being March of --

21 MR. SMITH: Being a month and a half

22 ago, 2013.

23 THE COURT: 2013.

24 MR. SMITH: An odd-numbered year.

25 THE COURT: Yeah.

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1 MR. SMITH: So they did, in fact, make

2 quorum. So the contention that somehow there's a

3 rule of necessity or --

4 THE COURT: Now, is there a -- is there

5 a dispute about your clients making a quorum?

6 MR. SMITH: I believe there is,

7 Your Honor. That's why our motion for partial

8 summary judgment is particularly appropriate here.

9 We're asking that the 2009 bylaws be ruled the proper

10 bylaws, because they didn't have authority to change

11 them. They had no authority to change them.

12 And you asked about the internal --

13 before we go too past the internal process, 2009

14 bylaws did have an internal process. But the

15 defendants here assert that the 2009 bylaws are no

16 more, so the process under their bylaws would be

17 different.

18 THE COURT: What's the -- what was the

19 process under the '09 bylaws?

20 MR. SMITH: There would be a judicial

21 committee. You could have a meeting of the members.

22 Again, it's a different membership group than their

23 members, but you had -- you had the office of a

24 judicial committee or the -- the group of a judicial

25 committee available. They have a judicial committee

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1 now under the --

2 THE COURT: Who's they?

3 MR. SMITH: We. We. My clients has --

4 Libertarian Party of Oregon under Tim Reeves has a

5 judicial committee and is operating under the 2009 --

6 well, they changed the 2009 bylaws last month. They

7 had quorum. They updated them, made some changes to

8 the 2009 bylaws to the 2013 bylaws.

9 Now, I want to point out one of your

10 introductory comments --

11 THE COURT: Hang on just a moment.

12 Mr. Steringer, what, if anything, do you

13 make or how do you respond to the distinction that

14 Mr. Smith has raised between under the '09 bylaws,

15 the odd-even -- the odd-year even-year substantive

16 limitations, which, as I understood it, was odd

17 year -- I'm sorry -- even year, election only.

18 MR. SMITH: Right. And platform, I

19 believe.

20 THE COURT: What do you mean by -- what

21 do you mean by election?

22 MR. SMITH: Of officers.

23 THE COURT: Election -- election of

24 officers?

25 MR. SMITH: Election. Officers were

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1 elected each --

2 THE COURT: Okay.

3 MR. SMITH: -- each year.

4 THE COURT: Election of officers versus

5 odd numbered years bylaws.

6 MR. STERINGER: Your Honor, I -- I'm not

7 sure how that is relevant to the issue before the

8 Court. And I -- I must admit I'm at a loss in

9 understanding why that comes into play in this

10 particular situation.

11 The fact is that the party had a special

12 convention called in -- in 2010, November of 2010, to

13 consider and -- and presumably adopt the bylaws

14 revisions that were called for under the reform plan

15 that had been -- that had been adopted earlier in the

16 year.

17 The party, again, was unable to meet

18 quorum in March of 2011 to -- in its normal business

19 convention. And so it was at that point that the --

20 the State committee took the action that it -- that

21 it took.

22 MR. SMITH: Your Honor, the point -- the

23 point is --

24 THE COURT: What is the relevance?

25 MR. SMITH: The Article XVI of the

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1 bylaws for amendment provisions to the 2009 bylaws --

2 and these are in the record -- says that the annual

3 convention for bylaw amendments be held in

4 odd-numbered years.

5 Now, they're contending that this reform

6 plan somehow required -- their contention earlier

7 mentioned this reform plan somehow required there to

8 be bylaw changes or approved bylaw changes or somehow

9 ratified, I think was the word they're using.

10 They're saying that their actions in --

11 in changing these bylaws in contradiction of the 2009

12 bylaws was ratified by 2010 and then ratified by a

13 vote by mail at some later point.


15 MR. SMITH: So they didn't have the

16 authority to do any of those things. And that's the

17 point is why the bylaws need to be enforced is they

18 didn't have the authority to send out a mail ballot.

19 They didn't have the authority to, in 2010, change

20 the bylaws. And I do have M. Carling. You mentioned

21 the circular file and firing squad.

22 THE COURT: I'm sorry. You have what?

23 MR. SMITH: Mr. M. Carling is one of my

24 clients. He's here in the courtroom today. There

25 was a citation to him as the circular firing squad,

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1 which you mentioned at the beginning?


3 MR. SMITH: He's -- he's one of the

4 plaintiffs in this case. And so to -- to state that

5 proposition or for them to state that proposition as

6 if that is a fact that you could not operate under

7 those bylaws is -- is a misstatement, I believe. And

8 my client would disagree with that contention.

9 THE COURT: No. I took -- I took

10 circular firing squad simply to mean there were a set

11 of bylaws which caused lots of problems in terms of

12 operation rather than what we would -- what most

13 people I think would think bylaws would do and that

14 is provide a pathway for operation.

15 MR. SMITH: And I'll point out, the

16 quorum dilemma was --

17 THE COURT: Although, that said,

18 there's -- it's quite possible -- the Court can

19 imagine it's quite possible that organizations would

20 set up rules of operation that were, indeed, clumsy

21 and difficult and even -- and some people would say

22 the U.S. Constitution is designed not to move quickly

23 or particularly well at times, but that's the choice.

24 You make your choice about maybe you

25 want to go over more hurdles before you get to the

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1 answer.

2 MR. SMITH: And I wanted to point out

3 that it was Mr. Wagner himself that made the change

4 to the bylaws that created the quorum problem. It

5 was earlier. It was 2007, but it was Mr. Wagner

6 himself. And this is in the record. Our affidavits

7 talk about these --

8 THE COURT: Mr. Wagner himself?

9 MR. SMITH: Well, he proposed it.

10 THE COURT: Meaning he just takes out a

11 pen and writes it?

12 MR. SMITH: Correct. Thank you for the

13 correction. He proposed it and it was passed back in

14 sometime 2007. It's in the record and the

15 declarations. But the change that created this

16 quorum problem was from that amendment that

17 Mr. Wagner had proposed.

18 So it's, I guess, strange or in a sense

19 ironic or estopped from staying that somehow he as

20 the -- as the purported chair now is -- shouldn't be

21 bound by the change that he purported.

22 THE COURT: Now, we're at 10 o'clock.

23 There's a 10:45 proceeding?

24 THE CLERK: No, Your Honor. Sorry.

25 Yes, you are correct. There is a 10:45.

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1 THE COURT: We may have a 10:45

2 proceeding. Otherwise, we have some more time.

3 Well, we have time now until 10:45. Let me ask this

4 question.

5 Mr. Smith, if you win, what happens?

6 What's the state of affairs?

7 MR. SMITH: Your Honor, if we win this,

8 our motion for partial summary judgment, the 2009

9 bylaws are ruled to be the -- the remaining bylaws

10 after that March 31st meeting.

11 THE COURT: Which March 31st --

12 MR. SMITH: March 31st, 2011, when they

13 purportedly replaced the bylaws with their set of

14 bylaws. Then --

15 THE COURT: So March 31 is erased. '09

16 bylaws replaced.

17 MR. SMITH: Replaced.

18 THE COURT: Or --

19 MR. SMITH: Stay -- stay there.

20 THE COURT: -- declared -- declared

21 operative.

22 MR. SMITH: Correct. We have factual

23 disputes. They one tend that they might be quorum

24 problems with the election of my clients as officers.

25 They can --

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1 THE COURT: When?

2 MR. SMITH: After that point, May 21st.

3 At the March 12th meeting --

4 THE COURT: May 21st of --

5 MR. SMITH: 2011. At the March 12

6 normal annual convention that everybody attended,

7 Mr. Wagner --

8 THE COURT: Now, wait. Go slow.

9 MR. SMITH: 2011.

10 THE COURT: You guys are very familiar

11 with this.

12 MR. SMITH: Okay.

13 THE COURT: If you would help me, slow

14 down. I got March 31st of '11 action would be

15 erased. The '09 bylaws would be considered

16 operative. There's a question about the May 21, 2011

17 quorum that led to -- on the decision to elect

18 Reeves, right?

19 MR. SMITH: Correct. I believe so. I

20 think they would assert that.

21 THE COURT: And then what did you say?

22 MR. SMITH: What I was getting at is --

23 THE COURT: There was another date you

24 gave me. March?

25 MR. SMITH: The March of 2011 regular

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1 convention was continued until May 21st. Mr. Wagner

2 made the motion to continue that meeting, hold it

3 open 'til May. My clients showed up at the May

4 meeting.

5 THE COURT: And this is the one that

6 turns into a social event?

7 MR. SMITH: No. No, not social.

8 THE COURT: No, no, no. It's continued,

9 but, in fact, it's never -- doesn't it become then

10 a --

11 MR. STERINGER: The -- the leadership of

12 the party did turn it into a social event after they

13 took the action to revise the bylaws.

14 THE COURT: Right.

15 MR. SMITH: There. That's the

16 March 31st meeting.

17 THE COURT: Yes.

18 MR. SMITH: Ours was the May 21st, but

19 the full body, the full convention moved and passed

20 to continue the meeting 'til May. So March 12th,

21 different date. There's March 12th, March 31st. The

22 March 12th full convention moved and passed to

23 continue that convention on ultimately May 21st.

24 Plaintiffs, my clients, showed up on

25 May 21st, had those meetings on May 21st, while the

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1 defendants --

2 THE COURT: What was the quorum

3 requirement at that point?

4 MR. SMITH: They -- it was --

5 THE COURT: In number of persons?

6 MR. SMITH: There was two meetings held,

7 so we'd have to distinguish between the meetings.

8 There was the convention and they did not make quorum

9 on the convention. They had a state committee

10 meeting following that and they did have quorum at

11 the state committee meeting.

12 So those are -- I think -- I think the

13 defendants will dispute some of these facts, but

14 those were the two meetings that were held according

15 to the bylaws. Those are laid out right in the

16 bylaws.

17 THE COURT: Wait, wait, wait, wait,

18 wait, wait, wait. What had been adjourned was a

19 convention, correct?

20 MR. SMITH: Continued, yes. There's

21 distinctions.

22 THE COURT: Or continued, not adjourned.

23 Continued. What had been continued was a convention?

24 MR. SMITH: Correct.

25 THE COURT: Then on May 21,

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1 notwithstanding the actions of the defendants in

2 purporting to, I guess, cancel that continuation and

3 have a social event, your folks show up and say,

4 "Well, here we are on May 21. We're here for the

5 convention, but there's no quorum."

6 MR. SMITH: Right.

7 THE COURT: And then what do they do?

8 MR. SMITH: They adjourn that meeting.

9 THE COURT: Adjourn what meeting?

10 MR. SMITH: The convention.

11 THE COURT: The convention.

12 MR. SMITH: 'Cause you can without a

13 quorum. You can adjourn.

14 THE COURT: Yeah.

15 MR. SMITH: And they opened the state

16 committee meeting.

17 THE COURT: And by what right did they

18 open a state committee meeting?

19 MR. SMITH: The bylaws call for a state

20 committee meeting to follow the closing of the annual

21 convention.

22 THE COURT: But, of course, the

23 convention hadn't closed.

24 MR. SMITH: Yeah. It had adjourned. It

25 was adjourned (indiscernible) on May 21st.

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1 MR. STERINGER: It never occurred.

2 MR. SMITH: You can adjourn -- these are

3 Robert's Rules of Order parliamentary questions, but

4 you can --

5 THE COURT: Whoa, whoa, whoa, whoa,

6 whoa. What tells me that Robert's Rules of Order --

7 it may be --

8 MR. SMITH: The bylaws.

9 THE COURT: -- but what tells me that

10 Robert's Rules of Order governs the parliamentary

11 procedure?

12 MR. SMITH: Article XVII of the 2009

13 bylaws. "The rules contained in the current edition

14 of Robert's Rules of Order, newly revised, shall

15 govern the LPO in all cases to which they are

16 applicable and in which they are not inconsistent

17 with the LPO Constitution, these bylaws."

18 THE COURT: So now just prior to the

19 May 21 convention, which you say, indeed, tried to

20 organize but couldn't because of a lack of quorum,

21 just prior to that convention, who were the incumbent

22 officers of the party?

23 MR. SMITH: It would have been --

24 Mr. Wagner would have been the vice chair sitting in

25 the seat of the chair because the chair had resigned.

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2 MR. SMITH: Other officers, I'd have to

3 refresh my memory.

4 THE COURT: But the point is the Wagner

5 faction.

6 MR. SMITH: Right. Had been --

7 THE COURT: Now, what law or bylaw or

8 rule tells me who elects or chooses officers of the

9 party?

10 MR. SMITH: The 2009 bylaws.

11 THE COURT: And what do they say?

12 MR. SMITH: These are in the exhibits,

13 Your Honor. I'll find the portion and read it to

14 you. It is cited in our briefing. "Article V,

15 officers and directors." Officers and

16 directors operate -- Section 1, "Officers and

17 directors operate the organization pursuant to

18 Article I of these bylaws and are responsible to the

19 body of the LPO and the state committee. Officers

20 manners of elections. The" --

21 THE COURT: Where are you reading from?

22 What is it?

23 MR. SMITH: Article V.

24 THE COURT: What exhibit? What number?

25 What exhibit or what --

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1 MR. SMITH: Oh, Exhibit 1. Officer --

2 which document --

3 THE COURT: To whose declaration?

4 MR. SMITH: To the declaration of

5 Richard Burke.

6 THE COURT: Burke. Hang on here. Which

7 exhibit again?

8 MR. SMITH: Exhibit 1, Page 5.

9 THE COURT: Okay.

10 MR. SMITH: The declaration of Richard

11 Burke.

12 THE COURT: Right.

13 MR. SMITH: We're on Article V.


15 MR. SMITH: I was about to read

16 Section 2.

17 THE COURT: Mm-hmm. "Shall consistent

18 of a chairperson," dadadadada. "Terms of office

19 begin immediately upon the close of the annual

20 convention."

21 MR. SMITH: There you go. Down below,

22 there's the conversation about vacancy and

23 succession, what happens if they're vacant.

24 THE COURT: So you assert that following

25 a convention that couldn't organize because of lack

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1 of quorum, who then shows Mr. Reeves as -- and his

2 faction as the officers?

3 MR. SMITH: Under (B), the state

4 committee may select any LPO member to fill any such

5 vacancy until the next annual convention.

6 THE COURT: And who was the state

7 committee?

8 MR. SMITH: State committee at the time

9 was comprised of representatives from each -- I think

10 they are called affiliated county parties as well as

11 the state officers.

12 THE COURT: And were they all there?

13 MR. SMITH: There were some there.

14 There was enough for the quorum.

15 THE COURT: Were they -- enough for a

16 quorum of what?

17 MR. SMITH: Of the state committee.

18 That was the official state committee.

19 THE COURT: Who tells me what a quorum

20 of the state committee is?

21 MR. SMITH: Again, the bylaws, I'll have

22 to find the exact provision, Your Honor.

23 THE COURT: Well, I mean, after all, the

24 legitimacy of your client depends on this, doesn't

25 it?

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1 MR. SMITH: Yes. That's why we have

2 disputed facts that I've mentioned.

3 THE COURT: That's why what?

4 MR. SMITH: I think -- I think they will

5 make the argument we didn't have quorum. We would

6 make the argument we do have quorum. They --

7 THE COURT: Well, just saying, you

8 know --

9 MR. SMITH: Sure. I'll find it for you

10 here.

11 THE COURT: Good.

12 MR. SMITH: "A quorum shall be 20" --

13 THE COURT: Where are you reading from?

14 MR. SMITH: It's the same exhibit,

15 Page 7. It's Article XI, Section 3.6.

16 THE COURT: Article XI, Section 3. Hang

17 on. Page 7? Exhibit 1, Page --

18 MR. SMITH: Exhibit 1, Page 6 is the

19 start of Section 3.

20 THE COURT: I see.

21 MR. SMITH: Bullet points. Number 6

22 particularly points out a quorum shall be 20 --

23 THE COURT: No. Wait, wait, wait, wait.

24 Hold it. Hold it. "The state committee shall hold

25 at least one regular meeting every three months.

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1 Notice of time each member -- per each member of the

2 state committee shall have one vote. All meetings

3 shall be open. A quorum is 20 percent of the members

4 of the state committee."

5 MR. SMITH: That's it, Your Honor.

6 THE COURT: Who tells me who the state

7 committee is?

8 MR. SMITH: The -- normally the -- well,

9 the membership lists and the credentials committee

10 would normally decide that. And the -- that's -- we

11 have -- there's an established membership list.

12 THE COURT: When -- who would decide who

13 is a member of the state committee?

14 MR. SMITH: Article XI again, Section 2.

15 The bylaws decide who's a member --

16 THE COURT: "Each affiliated county

17 party will be entitled to two state committee seats."

18 MR. SMITH: Right.

19 THE COURT: "Each ACP will select state

20 committee representatives or alternates."

21 MR. SMITH: That's it.

22 THE COURT: And then 20 percent --

23 MR. SMITH: Of those are required to

24 have an official meeting.

25 THE COURT: And then at this official

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1 meeting where you assert there was a proper quorum,

2 the Reeves group were chosen as the new state

3 committee?

4 MR. SMITH: Correct, Your Honor.

5 THE COURT: And what do you say,

6 Mr. Steringer?

7 MR. STERINGER: I -- I do want to make

8 one thing clear, big picture, when it comes to this

9 meeting.

10 THE COURT: Which meeting? The

11 meeting --

12 MR. STERINGER: This purported meeting,

13 the May 21st meeting in which a few of the defendants

14 got together and purported to have a state committee

15 meeting.

16 MR. LEUENBERGER: Plaintiffs.

17 MR. STERINGER: Plaintiffs. Thank you.

18 I don't think either party has put the

19 legitimacy of the May 21st meeting at issue in the

20 summary judgment motions, primarily because -- well,

21 we just didn't. I think Mr. Smith correctly

22 identifies that there may be factual issues that need

23 to be worked out there.

24 But we have put in some evidence into

25 the record that would show or seriously question

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1 whether they actually had a quorum for a state

2 committee meeting if it was a legitimate state

3 committee meeting in the first place.

4 Understand, this is something that was

5 not attended by any of the officers of the -- of the

6 organization, because the two months prior to that,

7 they had adopted new bylaws that no longer had or

8 required a state committee meeting in -- in May of

9 2011.

10 And so the motions that we have that

11 deal with officers of the party focus on legal

12 questions where it -- where the answer is clearly

13 established by the bylaws. And --

14 THE COURT: And now that's a good segue

15 to go through more motions for me. With the

16 background we've had, discussion, you come and say,

17 "Here's why we win and here's why we can win without

18 regard to messy fact questions regarding this May

19 meeting."

20 MR. STERINGER: Well, our -- our first

21 motion is our motion that asserts that this issue was

22 already decided by the Washington County Circuit

23 Court. And the issue that was decided was that a

24 Circuit Court in Oregon cannot order the type of

25 relief that plaintiffs seek in this case with respect

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1 to the Libertarian Party of Oregon.

2 And that decision was based on the

3 constitutional issue that we've spent some time on

4 this morning. We've asserted the constitutional

5 issue as a separate motion as well, independent of

6 the issue preclusion argument.

7 That's our second motion for summary

8 judgment. And, at some point, I'd like to come back

9 to the -- to the point that Mr. Smith raises in his

10 briefing about whether subject matter jurisdiction is

11 properly presented to the Court in the form of a

12 summary judgment motion. And so I could --

13 THE COURT: Well, I can short-circuit

14 that, I think. Subject matter jurisdiction is

15 relevant at each and every stage of a proceeding,

16 including on appeal.

17 MR. STERINGER: And -- and --

18 THE COURT: Would you disagree,

19 Mr. Smith?

20 MR. SMITH: It depends upon the bases,

21 Your Honor. Some arguments are lost if they're not

22 made in motion to dismiss stage. Aside from that, I

23 would agree with your (indiscernible).

24 THE COURT: No, no, no. An argument on

25 subject matter jurisdiction is never lost. If a

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1 Court has -- does not have subject matter

2 jurisdiction, it -- it doesn't -- it isn't created by

3 the failure of a party to object. It can't be.

4 MR. SMITH: I don't -- I don't think

5 that argument is going to decide today. I think we

6 win on all the other grounds (indiscernible).

7 THE COURT: Well, good. I'm just saying

8 I'm not going to spend much time on the subject

9 matter jurisdiction argument, because if I don't have

10 it, I don't have it.

11 MR. SMITH: Yeah.

12 THE COURT: And I'm not going to -- I'm

13 not going to walk that plank.

14 MR. STERINGER: Right. And the reason

15 that I wanted to come back to it is I -- if I have

16 wondered about anything in connection with these

17 motions, it's the question of whether a summary

18 judgment motion versus a motion to dismiss was the

19 proper way to phrase some of these arguments,

20 including standing in the exclusive remedy of the

21 APA.

22 Some may say the constitutional issue

23 also implicates subject matter jurisdiction. And

24 what I -- what I wanted to -- to propose was that

25 if -- if the plaintiffs are concerned that summary

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1 judgment is not the proper procedural mechanism for

2 raising subject matter jurisdiction and it's -- and

3 if it's acceptable to the Court, we would stipulate

4 that these motions should be considered as motions to

5 dismiss and decided under a motion to dismiss

6 standard rather than a summary judgment motion.

7 I don't think anybody wants to have this

8 -- this issue left undecided two months before trial,

9 because we called it a summary judgment motion

10 instead of a motion to dismiss.

11 THE COURT: Mr. Smith?

12 MR. SMITH: Your Honor, reclassifying

13 these I think has already been done. I mean, I don't

14 think this Court's going to -- so the Spada

15 (phonetic) case stands for itself. The Spada case

16 says what it says. I think it's good law.

17 THE COURT: Well, tell me what it says.

18 MR. SMITH: Okay.

19 THE COURT: Well, first of all, tell me,

20 do you agree with Mr. Steringer that I ought to

21 decide this matters and you're not going to object on

22 procedural grounds?

23 MR. SMITH: I'll find the Spada case,

24 Your Honor.

25 THE COURT: Well, before you do that,

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1 just -- this is an easier one. Do you agree with

2 Mr. Steringer -- do you accept Mr. Steringer's

3 invitation to simply waive procedural objections and

4 go to the merits?

5 MR. SMITH: On that we do, Your Honor.

6 THE COURT: So then we don't care about

7 Spada.

8 MR. SMITH: Okay.

9 THE COURT: So I'm assuming Spada has

10 something to do with motion to -- Rule 21 versus

11 Rule 47?

12 MR. SMITH: Yes.

13 THE COURT: Okay. So you've -- if

14 you're -- if you're agreeing then, for the record,

15 I'll just proceed to the merits. And now go ahead.

16 MR. STERINGER: Thank you, Your Honor

17 and thank you, Counsel, for that.

18 Our third motion has to do with whether

19 the individuals identified as plaintiffs in this case

20 had standing to bring the claims that they assert

21 here. And it is in this motion that we get to the

22 question of -- of membership and whether the

23 plaintiffs were members of the LPO under the bylaws

24 that they seek to enforce.

25 And on that question, we rely primarily

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1 on the plaintiffs' responses to requests for

2 admissions where they admitted that they did not pay

3 dues to the Libertarian Party of Oregon in the

4 one-year period leading up to the filing of their

5 complaint.

6 And that's determinative on the question

7 of whether they would have been members under the

8 2009 bylaws that they seek to enforce.

9 THE COURT: Hmm.

10 MR. STERINGER: And since they were not

11 members, they lacked standing to find the lawsuit

12 that they -- they filed. It also has other

13 implications, the primary one being that the fact

14 that their memberships expired under the 2009

15 bylaws --

16 THE COURT: Expired.

17 MR. STERINGER: The -- the -- under the

18 2009 bylaws, individuals had to pay $50 per year to

19 maintain their membership in the party.

20 THE COURT: Okay. So they perhaps had

21 paid in the past, but in the year preceding the

22 complaint, they didn't --

23 MR. STERINGER: Correct.

24 THE COURT: -- pay 50.

25 MR. STERINGER: Correct. Their -- their

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1 memberships expired in the time period leading up to

2 the filing of the complaint.

3 THE COURT: Okay.

4 MR. STERINGER: And the -- the effect of

5 that expiration is that even if they held a

6 legitimate meeting in -- in May of 2011 where they

7 elected themselves the officers of the party, under

8 the 2009 bylaws, which require the maintenance of

9 membership in order to hold officer positions, they

10 lost those positions.

11 So that impacts whether they had the

12 authority to bring a claim on behalf of the

13 Libertarian Party of Oregon. And it also comes into

14 play in our counterclaim for declaratory judgment in

15 which if the -- if the Court decides it wants to wade

16 into this intraparty dispute, one -- one of the

17 things that it can decide, as a matter of law, is

18 that the individuals who have identified themselves

19 as officers in the organization, that's plaintiffs

20 Reeves, Saub, Burnett and Pealer, those individuals

21 are not officers of the organization. And -- and

22 that can be determined under the bylaws. That --

23 THE COURT: But that's only four, right?

24 MR. STERINGER: That -- those are the

25 four individuals, the four lead plaintiffs.

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1 THE COURT: Yes. What about Terry,

2 Carling, Burke?

3 MR. STERINGER: Those individuals

4 identify themselves as members of the party. That's

5 how they seek to establish standing to bring the --

6 the complaint. And, as we said --

7 THE COURT: But they -- are they swept

8 up in the they didn't pay the 50 bucks?

9 MR. STERINGER: Correct. That's

10 correct. We have --

11 THE COURT: What about the 50-buck

12 requirement?

13 MR. SMITH: Your Honor, that's a giant

14 red herring. First of all --

15 THE COURT: Red herring won't help me.

16 It's just a --

17 MR. SMITH: That's -- that's --

18 THE COURT: It's just a pejorative

19 phrase that won't --

20 MR. SMITH: Well, it's fine. It's a

21 question of fact that's subsequent to that. Our

22 declarations -- I'm sorry if the Court --

23 THE COURT: Well, wait, wait, wait,

24 wait. It's a question of fact, meaning --

25 MR. SMITH: Whether they --

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1 THE COURT: -- you're saying that

2 summary judgment can't lie?

3 MR. SMITH: Summary judgment cannot lie

4 on that question.

5 THE COURT: Okay.

6 MR. SMITH: We have declarations from

7 Mr. Reeves, Mr. Burke. We have an exhibit, the

8 membership lists of plaintiffs' Libertarian Party of

9 Oregon. We have an exhibit, the Libertarian Party of

10 Oregon suspended the dues requirement during that

11 period of time.

12 We have records of payments in the

13 record showing those dues payments during that period

14 of time.

15 THE COURT: Okay. Just a moment.

16 Mr. Steringer, you -- you -- I believe

17 you said you relied on a request for admission.

18 MR. STERINGER: We -- we have a request

19 for admission. It is -- it's in the -- the John Rake

20 (phonetic) declaration. And it is exhibit -- let's

21 see. It's Exhibit 17 to the revised declaration of

22 John Rake. The admitted state --

23 THE COURT: The revised declaration?

24 I've got a declaration. Declaration.

25 MR. STERINGER: It's also attached to

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1 the original declaration, but I'm not sure it's the

2 same exhibit number.

3 THE COURT: Which -- where is it

4 attached on the original declaration?

5 MR. STERINGER: Let me see if I can --

6 MR. SMITH: Your Honor, I wouldn't be

7 opposed to him just simply reading it, because it's

8 talking about payments to their organization.

9 There's no -- yes, my clients didn't pay their

10 organization after they were in charge of their own

11 organization.

12 That's what he -- go ahead and have him

13 read it, because I -- we -- it's in there, but

14 that -- that doesn't apply here.

15 THE COURT: Just a moment. Just a

16 moment. There's only one organization, isn't there?

17 MR. SMITH: There's --

18 THE COURT: There's one organization and

19 the question is who controls it. You've just

20 suggested there are two organizations.

21 MR. SMITH: There are two organizations,

22 Your Honor.

23 THE COURT: Then go live your life.

24 You've got yours. They've got his -- he's got his.

25 Don't ask me to decide who governs one. That is

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1 fundamentally inconsistent. You either retreat from

2 that position or we go no further.

3 MR. SMITH: There's two organizations

4 that believe they are the sole --

5 THE COURT: Sir, sir, you either retreat

6 from that position or we go no further. Do you

7 retreat?

8 MR. SMITH: Yes, Your Honor. There's

9 one --

10 THE COURT: Stop. That's all. You

11 retreat. Back.

12 MR. STERINGER: The admission that --

13 THE COURT: It's hard enough for me to

14 try to figure this out if we're talking about who

15 controls one organization. If your theory is there

16 are two organizations, I will go no further.

17 MR. STERINGER: The admission --

18 THE COURT: You can each have your own

19 organization and you can meet on the field of battle

20 somewhere and solve it by jousting. Rake. Which

21 Rake? Which exhibit?

22 MR. STERINGER: It's Exhibit 17 in -- in

23 both of the declarations, so you should be able to

24 find it there.

25 THE COURT: Rake. You said there was a

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1 revised Rake? I'm -- I'm assuming I've got it. I've

2 got a lot.

3 MR. STERINGER: If you have one of the

4 Rakes --

5 THE COURT: 17. I've got it.

6 MR. STERINGER: Okay.

7 THE COURT: Defendant Libertarian --

8 request for admissions.

9 Okay. Go ahead.

10 MR. STERINGER: And it's Request for

11 Admission No. 3 on Page 3.

12 THE COURT: Okay.

13 MR. STERINGER: Top of the page.

14 THE COURT: "No plaintiff paid $50 or

15 more in dues to the Libertarian Party of Oregon

16 between January 16th and January 16th, '12."

17 Response, blank.

18 MR. STERINGER: And then we have to turn

19 to later in the --

20 THE COURT: Were their responses filed?

21 MR. STERINGER: They were. It's -- if

22 you turn to Page 9 of exhibit.

23 THE COURT: Okay.

24 MR. STERINGER: We have their responses

25 and that is admitted.

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1 THE COURT: Okay. What can you do with

2 that, Mr. Smith?

3 MR. SMITH: Your Honor, this dues

4 requirement was suspended during that -- that period

5 of time that they're talking about to pay the dues.

6 My client, Mr. Burnett, is the treasurer.

7 THE COURT: Well, just a moment. Just a

8 moment. But the request for admission was no

9 plaintiff paid 50 or more in dues to the Libertarian

10 Party of Oregon. And the response is admitted.

11 MR. SMITH: It's 'cause they suspended

12 the dues requirement, Your Honor. They --

13 THE COURT: Who's "they"?

14 MR. SMITH: Let me rewind. The state

15 committee suspended the dues requirement. People pay

16 dues --

17 THE COURT: Who -- well, which state

18 committee?

19 MR. SMITH: The Reeves state committee

20 suspended the dues requirement after they took

21 office.

22 THE COURT: Oh, well. That doesn't

23 work.

24 MR. SMITH: They also --

25 THE COURT: This is just another version

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1 of the two-organization argument.

2 MR. SMITH: Your Honor, we have dues.

3 They're in the declarations. There are --

4 THE COURT: Well, just a moment. Just a

5 moment. Let me make sure I've got my dates right

6 here. The request is between January 16th of '11 and

7 January 16th of '12. Now, during that time period,

8 the Reeves faction files this lawsuit.

9 MR. STERINGER: The Reeves faction filed

10 the lawsuit on the last day of that period.

11 THE COURT: Okay.

12 MR. STERINGER: What this establishes is

13 what happened during the year preceding the filing of

14 the lawsuit.

15 THE COURT: And they didn't pay dollars

16 to that organization, they admit, but then Mr. Smith

17 says yes, but --

18 MR. SMITH: There's a couple of things,

19 Your Honor.

20 THE COURT: Okay. Then why don't you

21 take me through them carefully and slowly.

22 MR. SMITH: Okay.

23 THE COURT: One is --

24 MR. SMITH: One is --

25 THE COURT: -- requirement suspended.

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1 MR. SMITH: -- that what the

2 defendants --

3 THE COURT: Now, wait. Are we talking

4

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