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 1 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 9th day 24 of April, 2012, at the Clackamas County Courthouse, 25 Holman Hearing Room, Oregon City, Oregon. Appearances 2 1 APPEARANCES 2 Tyler Smith, Attorney at Law, Appearing on behalf of the Plaintiffs; 3 Robert Teringer and James Leuenberger, 4 Attorneys at Law, Appearing on behalf of the Defendants. 5 * * * 6 KATIE BRADFORD, CSR 90-0148 7 Court Reporter (503) 267-5112 8 Proceedings recorded by digital sound recording; 9 transcript provided by Certified Shorthand Reporter. 10 * * * 11 GENERAL INDEX 12 VOLUME 1 13 Page No. 14 April 12, 2012 Proceedings 3
15 Court's Comment 3 16 Defendants' Argument by Mr. Steringer 3 17 Defendants' Argument by Mr. Leuenberger 15 18 Colloquy, re: Bylaws Exhibit 16 19 Defendants' Argument Continues 17 20 Plaintiffs' Argument by Mr. Smith 22 21 Court's Ruling 42 22 Plaintiffs Request Leave to Amend 44 23 Reporter's Certificate
24 * * * 25 3 1 (Volume 1, Monday, April 9, 2012, 9:47 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 (TRANSCRIBER'S NOTE: Audio record 6 begins midsentence.) 7 THE COURT: -- yesterday afternoon from 8 Judge Bowerman saying, "I think I have a conflict. 9 Can you help me out?" So I've -- I've read the file. 10 I spent some time in the library, but I would invite 11 everyone to pretend I don't know anything in your 12 presentations. 13 So I have -- I have two motions in the 14 file. And who would like to go first? 15 MR. STERINGER: Good morning, 16 Your Honor. Bob Steringer for the defendant, 17 Libertarian Party of Oregon. 18 THE COURT: Okay. How do you -- how do 19 you spell your last name? 20 MR. STERINGER: It's S-t-e-r-i-n-g-e-r. 21 THE COURT: Thank you. 22 MR. STERINGER: Your Honor, we have a 23 set of motions that -- that really fall in three 24 different levels. There's a constitutional argument; 25 there's a statutory construction argument and then 4 1 there's a procedural argument. And those span the 2 four motions that we have presented today. 3 THE COURT: I show five motions. 4 MR. STERINGER: You're correct. 5 THE COURT: Okay. 6 MR. STERINGER: I apologize. They span 7 the five motions that -- 8 THE COURT: Okay. 9 MR. STERINGER: -- that we have before 10 you today. 11 THE COURT: Go ahead. 12 MR. STERINGER: The -- the first motion 13 we have poses the constitutional question, and it is 14 aimed at all of the claims that are made in the 15 complaint. We make this motion because it's our view 16 that this is a political dispute that requires a 17 political resolution, and that the First Amendment, 18 combined with the Fourteenth Amendment, prevents the 19 -- the State from interfering with -- with political 20 party operations in the absence of a compelling State 21 interest. 22 That's what the -- the U.S. Supreme 23 Court cases teach us about the extent of the -- the 24 -- the right of association. The -- the cases then 25 distinguish between two types of -- of -- of 5 1 situations. 2 And if -- if you get the opportunity to 3 read the U.S. Supreme Court cases, and, quite 4 frankly, a number of the other cases that have been 5 cited by both parties, what we find is that where the 6 State is operating to protect the electoral process, 7 the Court has found a compelling State interest in -- 8 in making sure that the electoral process is -- is 9 protected. 10 But, on the other hand, the Court has 11 been equally clear that when we're talking about 12 intra-party disputes over the governance of -- of a 13 party, the Courts find that you don't have, that the 14 State doesn't have a compelling State interest to, 15 essentially, protect parties from themselves. 16 It's been described as there's an 17 interest in protecting the electoral process. That 18 should be -- that should be maintained in a regular 19 way, but in terms of within the party, that is not 20 something that the -- the State has an interest in 21 getting into. And I think the -- I think the 22 Bysiewicz case that's cited in the materials by the 23 plaintiffs is a good example of that. 24 That's a more recent case than the -- 25 the EU case, the Supreme Court case that we rely on. 6 1 That's a demonstration where -- of a situation where 2 the Court has -- has made that distinction and 3 clearly said that we're going to protect the ability 4 of the national party to get a presidential candidate 5 on the ballot, and in doing that, we're going to be 6 very careful not to get into intra-party matters. 7 I liken it to some except to what the 8 Courts do in separation of church and state cases, 9 where because of the First Amendment religion 10 clauses, Courts are very reluctant to get into 11 disputes over who runs a -- a church organization, 12 for example. Those are things that are committed to 13 church processes. Here, we should be -- this matter 14 should be committed to political processes. 15 The -- the second motion we have is 16 directed at the -- the first claim for relief, the 17 declaratory judgment action. Your Honor might have 18 noticed that we had two alternate bases for that 19 motion when we filed it. 20 We have withdrawn one of them; and, 21 instead, we're focusing solely on the question of 22 whether all the parties that need to be before this 23 Court are before this Court. And I think that's a 24 fairly straightforward -- 25 THE COURT: You're arguing that some of 7 1 the officers are missing? 2 MR. STERINGER: Exactly. 3 THE COURT: Okay. 4 MR. STERINGER: On both sides. In -- in 5 both of the factions that are in dispute here. The 6 plaintiffs are asking this Court to put one group of 7 individuals into power, but not all of those 8 individuals are before the Court as parties. 9 And they're also trying to take out of 10 power another group of people, in fact, a larger 11 group of individuals, but they've only named one of 12 the people that they're trying to take out of power. 13 THE COURT: I'm going to ask you a 14 question. If I allow -- and I haven't made up my 15 mind, so be ready to argue -- but if I do allow the 16 motion on the basis of we're missing some parties, 17 does that make the balance of the motions premature? 18 In other words, if we join other 19 parties, aren't they going to want to have the right 20 to file similar motions? 21 MR. STERINGER: From the -- from the 22 parties' standpoint and from the motions that we have 23 presented, I believe our motions would -- I take your 24 point that they would want to be heard on that, but I 25 believe that the motions that we have raised are not 8 1 specific to any of the particular individuals. 2 We've raised fairly global questions 3 that are going to be -- will -- will be applicable no 4 matter which parties -- 5 THE COURT: But shouldn't any new party 6 have the opportunity to argue the -- the other 7 motions that you've raised? 8 MR. STERINGER: Well, if the -- if the 9 Court decides to dismiss the complaint, as we asked 10 the Court to do, then those individuals will not be 11 bound by the decision. Under the declaratory 12 judgment statute, I think it's -- it's fairly clear. 13 And so if those individuals for whatever 14 reason decided that they wanted to bring their own 15 identical action, they would not be precluded from 16 doing that. And so because their rights are not 17 affected, would not be affected in those 18 circumstances, I believe that the Court may still 19 proceed with respect to the parties that are here 20 today. 21 THE COURT: Would it be desirable to 22 avoid multiple hearings, perhaps involving different 23 judges, on those points? 24 MR. STERINGER: Our view is that it 25 would be preferable to get a decision of the Court on 9 1 the motions that have been presented so that -- and 2 we, of course, hope that it is favorable to the 3 defendant, Libertarian Party here. 4 We would prefer to have the ruling and 5 if others choose to file new lawsuits, they would -- 6 they would have the ability to do that. 7 THE COURT: Okay. Go ahead. 8 MR. STERINGER: Thank you. The third 9 motion we have is the statutory construction argument 10 and it's focused on the second claim for relief. The 11 plaintiffs bring that claim under ORS 65.084, which 12 is one section of the Nonprofit Corporation Act that 13 allows certain individuals to challenge the exercise 14 of corporate authority by a nonprofit corporation. 15 And the question we -- we pose to the 16 Court in that motion is whether that statute applies 17 to a political party. In going through and reading 18 -- reading the statutes, I think it becomes fairly 19 clear that it does not. 20 The jumping off point is ORS 248.004. 21 That statute is in the -- the chapter of the Oregon 22 Revised Statutes regarding political parties. And 23 what it provides is that in some instances, political 24 parties will be treated as if they are nonprofit 25 corporations. 10 1 And the -- there are very specific ways 2 in which that is the case. First, the powers of a 3 political party are the same as those that are 4 granted to nonprofit corporations. And I think 5 that's the -- that's the subsection that is being 6 relied on by plaintiffs here, although they might -- 7 they might extend that. 8 We'll see. But what is clear is 9 ORS 248.004 doesn't say that political parties are 10 nonprofit corporations. In fact, it's very clear 11 that they're not. They're only treated as -- as -- 12 in other words, I guess the way I would describe it 13 is the Legislature has borrowed from the Nonprofit 14 Corporation Act in certain instances to provide a 15 framework within which political parties would act. 16 That takes us to the question of whether 17 in 248.004 is there any linkage between the ways in 18 which political parties are treated like nonprofit 19 corporations and the statute that the plaintiffs rely 20 on within the Nonprofit Corporation Act? 21 The -- I think it's -- it's beyond -- 22 it's -- there's no dispute that the initial part of 23 248.004 does not link to the statute that plaintiffs 24 rely on. When the Legislature has described the 25 powers of a political party, it's a reference to 11 1 ORS 65.077, which lays out the specific powers that 2 are granted to -- to nonprofit corporations. 3 So there's no explicit citation to the 4 statute that the plaintiffs rely on. What the 5 plaintiffs have done instead is try to bootstrap in 6 65.084 through other means. And as we've laid out in 7 our briefing, we don't think -- we don't think that 8 the Court can get there. 9 We don't think the plaintiffs can get 10 there. For example, they cite the general 11 proposition that a nonprofit corporation can sue and 12 be sued. Well, that doesn't mean that -- that the 13 political party is a nonprofit corporation. 14 And without the finding that the 15 political party is a nonprofit corporation, you 16 simply can't get to 65.084, which only allows certain 17 individuals to take actions against nonprofit 18 corporations. 19 I'm not sure if there's much more I can 20 say about that other than there's no -- the bridge 21 doesn't exist between the -- the chapter on political 22 parties and the -- the chapter -- or that specific 23 section of the chapter on nonprofit corporations. 24 We have an alternative motion there with 25 respect to that statute. If our third motion is not 12 1 granted, we would ask the Court to strike those 2 requests for relief in the complaint that are brought 3 under 65.084 that fall outside the scope of the 4 relief that is available under 65.084. 5 So because that statute really goes to 6 the -- the ability to void a corporate act, we've 7 identified in our briefing those forms of relief that 8 fall outside that scope. 9 And so, for example, there's -- you 10 know, there's a request that the Court order an 11 individual to go to the Secretary of State and report 12 something, for example. And that's -- that's just 13 simply not the type of relief that's -- that's 14 allowed. 15 The -- the final motion we have is with 16 respect to the attorney fee demand. As we all know, 17 under Rule 68, the plaintiffs need to state basis for 18 their attorney fee demand. We've moved to strike 19 their demand for attorney fees for failing to meet 20 that standard. 21 The -- there's -- there are citations to 22 statutes in plaintiffs' complaint. And it appears 23 that the -- the statute -- well, actually, I don't -- 24 I don't want to speculate on exactly what the 25 plaintiffs are -- are alleging, because it's not 13 1 quite clear to me. 2 What the -- what the plaintiffs are 3 alleging is that there's a separate provision in 4 Rule 68 that says you can allege a right to attorney 5 fees before the substantive right to -- to receive 6 that award has accrued. 7 And -- and so I think on that basis, 8 they're saying that they can state a claim for 9 attorney fees, even though they can't identify on 10 what grounds in the future they may become entitled 11 to that award. 12 It's my -- you know, the -- the 13 defendants' view of the -- of the rule is that that's 14 not what -- what is meant by the -- the provision of 15 Rule 68 that allows pleading in that manner. 16 The example we give is that if a -- if a 17 party's suing on a contract that has an attorney, a 18 prevailing party provision in the contract, wishes to 19 state a demand for attorney fees on that basis, they 20 may do so by identifying the contractual basis for 21 the -- the claim to attorney fees. 22 And they may do that even though they 23 have not yet prevailed in the lawsuit in a way that 24 gives them the right to collect. That's a situation 25 where you can plead before the substantive right has 14 1 accrued. 2 What the plaintiffs seem to be doing in 3 this case is simply saying, "There may be 4 circumstances down the road when a right to attorney 5 fees will accrue. We're not going to state on what 6 basis that might be. We're not identifying the 7 factual grounds for that. We just want to have a 8 placeholder." 9 And I don't think the rule allows that. 10 I think every -- it would swallow the requirement 11 that individuals state the basis for their claim for 12 attorney fees. And parties in the situation of the 13 defendant in this case would not have a reasonable 14 basis for understanding why that claim is being 15 asserted against them. 16 So, for that reason, at least until 17 the -- the plaintiffs can -- can state the basis for 18 a demand for attorney fees, it should be stricken. 19 Unless Your Honor has questions, that's 20 our -- our argument. 21 THE COURT: No, not at this point, 22 Mr. Steringer. Thank you. 23 MR. STERINGER: Thank you. 24 THE COURT: Who would like to go next? 25 MR. LEUENBERGER: I would, Your Honor. 15 1 James Leuenberger for Wes Wagner. 2 THE COURT: Thank you. Proceed. 3 MR. LEUENBERGER: I'm going to address 4 the -- the -- our motions that are separate from, 5 distinct from the -- the Libertarian Party of 6 Oregon's arguments and we're going to rely upon 7 Mr. Steringer's oral argument on those, as well as 8 his written argument. 9 But as for ours, first, the caption of 10 the complaint includes irrelevant language that 11 shouldn't be there. It has no place in a lawsuit, 12 that Mr. Wagner's allegedly acting as chairperson of 13 the Libertarian Party of Oregon. A, it's irrelevant. 14 B, it's argumentative. 15 At most, it would -- it would perhaps 16 belong below the caption in the allegations, but it 17 doesn't belong in the caption, which is only supposed 18 to identify the parties by name. The -- the first 19 really important one, though, is the plaintiffs do 20 not have the legal capacity to -- the plaintiffs do 21 not have the legal capacity to sue. 22 I know what I did and I believe the 23 plaintiff did as well is we cited to the -- the 24 Libertarian Party of Oregon Constitution and Bylaws, 25 particularly 2009, though I don't think we provided 16 1 the Court with those. 2 I have provided -- I have copies of the 3 2009 version and what -- what my client and the 4 Libertarian Party of Oregon asserts are the current 5 versions in my hands here. And I'd like to provide 6 them to the Court at this time. I've given copies to 7 counsel. 8 THE COURT: Please do. 9 MR. SMITH: Your Honor, with regard to 10 those exhibits, we would like somebody to 11 authenticate what they're asserting the valid bylaws 12 are. As you know, one of the questions of material 13 fact are what are the valid bylaws. 14 If they're submitting two forms of 15 bylaws, we'd like to know which they're asserting are 16 the current bylaws and that -- have that on the 17 record. 18 THE COURT: Well, if you can -- 19 MR. SMITH: 'Cause we're -- we're 20 disputing whether anything other than the 2009 could 21 be valid. 22 THE COURT: I think that's a matter for 23 you to argue here in a moment. 24 MR. SMITH: Okay. Thank you, 25 Your Honor. 17 1 THE COURT: Okay. Thank you. 2 MR. SMITH: And the one has a 2009 date. 3 The other one does not have any date on it. 4 THE COURT: Okay. 5 MR. LEUENBERGER: In order to -- in 6 order to sue in a declaratory judgment action, a 7 plaintiff has to have some skin in the game. And the 8 plaintiffs in this case do not have that skin in the 9 game. 10 Pursuant to the -- the bylaws that they 11 say control, none of them are members of the 12 Libertarian Party of Oregon, because one of the 13 requirements to be a Libertarian Party member is that 14 you pay dues. And none of them have paid dues. 15 And in their reply, they, essentially, 16 acknowledge the same and say that instead of paying 17 the dues, what they've done is, as they formed what 18 they called a state committee that met and -- and 19 decided that that provision of the 2009 bylaws does 20 not apply. 21 And that by a vote of eight people, they 22 were able to basically amend the 2009 bylaws by 23 saying, "We don't have to pay dues." As I've put in 24 my reply, that puts the plaintiff -- that gives him 25 an impossible election. They're either going to have 18 1 to take the position that they can amend the 2009 2 bylaws by a vote of eight people at what they call a 3 state committee meeting and thereby not have to pay 4 dues. And, therefore, they are members. 5 Or that the version of the Constitution 6 and bylaws that Mr. Wagner and the Libertarian Party 7 of Oregon assert are the correct bylaws, that they 8 are members because they're registered to vote as 9 Libertarian Party -- as members of the Libertarian 10 Party, registered voters as Libertarian Party on 11 record with the Oregon Secretary of State. 12 But if they choose either one of 13 those -- and I think they have to choose one, they 14 lose; because on the one, if the 2009 bylaws can be 15 amended by the vote of eight persons, then -- then 16 what they alleged that my clients did wrongfully was 17 every bit as right as what they did when they claimed 18 they waived the $50 membership or dues requirement. 19 Alternatively, if they admit that they 20 are members because the current bylaws and 21 Constitution does not have a dues-paying requirement, 22 and they are registered voters of the Libertarian 23 Party, then they have acknowledged that the -- the 24 version of the bylaws and Constitution that my client 25 and the LPO say is the correct version is the correct 19 1 version, they lose. 2 But as I say, in the interim and 3 pursuant to the motion, they have to be members of 4 the party and since they haven't paid their dues, 5 they aren't members of the party; therefore, they 6 have, pursuant to the Declaratory Judgment Act, they 7 don't have any -- they don't have any grounds or 8 standing to -- to sue. 9 And as -- as Mr. Steringer said, they 10 haven't even included all the people on their side, 11 the people that they claim are all the officers of 12 the Libertarian Party. And they certainly haven't 13 named as defendants all the officers of 14 Libertarian Party of Oregon. 15 Therefore, we've got people that in 16 order to have a declaratory judgment action, they're 17 not before the Court. 18 THE COURT: That's your motion four. 19 And you know my concern about how many hearings would 20 we have to have if the people that you've suggested 21 in your motion that need to be joined are joined. 22 And then where are we if they plead that there are 23 additional parties that need to be joined? 24 It seems to me we come back to the -- 25 the issues that you and Mr. Steringer have raised 20 1 multiple times. I'm talking about the other motions 2 today. 3 MR. LEUENBERGER: Mm-hmm. 4 THE COURT: Other than his motion two 5 and other than your motion four. So at this -- I 6 want everyone to know that concerns me. And the 7 result you may get today is that -- that I will 8 require joinder and that the other matters will be 9 placed in abeyance until the joined parties appear. 10 MR. LEUENBERGER: Well -- 11 THE COURT: That -- I want you to know 12 that's in my head. 13 MR. LEUENBERGER: Yes. 14 THE COURT: I'm keeping an open mind. 15 MR. LEUENBERGER: Yes. And I -- I 16 thought that would be a distinct possibility when we 17 walked in here today. And -- and, frankly, I think 18 that -- I think that might be the best route to take, 19 because were you to dismiss the case today and other 20 people that wanted to join in, then joined in with a 21 subsequent case, to the extent they tried to include 22 the people that are named plaintiffs now, those 23 people would have a difficult time, 'cause we would 24 issue -- we would use issue preclusion on any 25 existing plaintiffs who tried to join in a future 21 1 suit with additional plaintiffs who are non-named 2 officers according to their way of looking at things, 3 so -- 4 THE COURT: Plus you'd have -- if it 5 were my rotation on the motion docket, that would be 6 fine, but if it's another judge, then you have 7 another judge that would have to get up to speed. 8 MR. LEUENBERGER: But that's a technical 9 thing I think could be addressed with calendaring 10 that -- 11 THE COURT: Yes. You're correct. 12 MR. LEUENBERGER: -- we could have the 13 case -- 14 THE COURT: Okay. 15 MR. LEUENBERGER: -- held -- held by 16 you. 17 THE COURT: But you see -- you see my 18 worry. 19 MR. LEUENBERGER: Yes, I do. 20 THE COURT: Okay. All right. Go ahead. 21 MR. LEUENBERGER: And I think it's 22 legitimate and I'll leave it to the Court. On behalf 23 of my client, I'd prefer the whole case be dismissed 24 today. It will cut the costs incurred by the 25 plaintiffs in paying for their attorneys and for 22 1 paying for ours, but -- and perhaps they should be 2 given the opportunity to dismiss their case 3 voluntarily, but I think that's ultimately what's 4 going to have to happen. 5 THE COURT: Okay. Thank you. 6 Who's next? 7 MR. SMITH: Thank you, Your Honor. 8 Tyler Smith representing the Libertarian Party of 9 Oregon. With me at the bar is Tim Reeves, the 10 chairperson of the Libertarian Party of Oregon. And 11 the rest of my clients are -- or most of my clients 12 are with me in the courtroom today. 13 THE COURT: Mr. Smith, go ahead, please. 14 MR. SMITH: Your Honor, this is -- this 15 case presents a very unique situation to this Court. 16 We have defendants, particularly Mr. Wagner, this 17 whole case reinvolves around Mr. Wagner and his 18 actions. 19 You will note if you read carefully our 20 complaint and our brief, the -- the injunctive relief 21 we request and the declaratory relief we request are 22 specifically and only against Mr. Wagner in his 23 personal capacity and against the organization 24 itself. 25 Defendants are in the unique position of 23 1 asking this Court to state that bylaws do not matter, 2 that they are above the law and that the law does not 3 apply to them because they're a political party. 4 Your Honor, I can just imagine the news 5 that comes out of this Court if what they literally 6 ask this Court to say that this Court cannot get 7 involved in a bylaw dispute and that the chair of any 8 political party is above the law and cannot be 9 brought to justice. 10 I can imagine the news coverage of this. 11 The question is absurd. Can you imagine the news 12 coverage of this? The chairman of the Oregon 13 Republican Party cannot be brought to justice before 14 a Court if they ignore their bylaws. 15 The chairman of the Democratic Party of 16 Oregon, Meredith Wood Smith, cannot be brought to 17 justice in a court of law because she's the chair of 18 a political party. 19 This entire case revolves around a 20 singular action that's precluding Mr. Reeves and the 21 Libertarian Party of Oregon from continuing on their 22 business the way they should have and that revolves 23 around Mr. Wagner. 24 The Oregon Secretary of State -- you 25 asked us to inform you of the background information. 24 1 I'm going to cover a little background information. 2 The Oregon Secretary of State keeps a list. That 3 list is of who the active officers are of a political 4 organization and they keep a copy of the bylaws. 5 State law specifically requires that 6 they file a copy of the bylaws with the Secretary of 7 State Elections Division. Last spring, defendant 8 Mr. Wagner was the vice chair of the Libertarian 9 Party of Oregon. 10 The chairman, shortly after we had 11 here -- we had a March 12th, their annual state 12 convention was on March 12th. At that March 12th 13 state convention, Mr. Wagner was the vice chair. 14 Shortly after that March 12th state convention, a 15 gentleman by the name of Jeff Weston resigned. 16 Mr. Wagner then became the chair, is 17 sitting, filling in his seat. However, at that 18 March 12th convention, Mr. Wagner himself moved to 19 continue the meeting and hold it over until May 28th. 20 At the -- the adjustment was made to that motion to 21 move it to the 21st. 22 This is Mr. Wagner's own motion to 23 continue that meeting 'til May 21st. That motion 24 passed. The state convention was to continue on 25 May 21st. In that interim time when Mr. Wagner 25 1 became chair, he called his own meeting of his own 2 people where five people changed the bylaws and 3 elected him chairman. 4 Now, according to the Secretary of 5 State's list, the only people that can submit new 6 documents or new officer lists to the Secretary of 7 State were on the old list. What that means is that 8 those four people that were on the old list are the 9 -- and now the listed chair, Mr. Wagner, is the only 10 person that can ever give up power of the Libertarian 11 Party of Oregon. 12 Secretary of State will do nothing about 13 it. As you've seen, the statutes cite that they can 14 do nothing about it. So the Secretary of State, nor 15 anybody else, has any power to do anything about a 16 political party chair that refuses to give up power. 17 It wouldn't matter whether it was a 18 recall, whether they lost 10 elections, lost one 19 election. Nothing would matter, according to the 20 Secretary of State's rule unless that person 21 voluntarily gives up power. Secretary of State will 22 not challenge it. That's why it's a unique question 23 before this Court. 24 That's why this Court has to be able to 25 make a decision on this. I'll get into all the other 26 1 case law about this, but this Court needs to make a 2 decision about this. Nothing in the political realm 3 could solve this solution for the plaintiffs. 4 So getting into, you know, their legal 5 arguments, Your Honor, as to the jurisdiction of this 6 case, the defendant's legal arguments literally have 7 to jump a chasm as wide as the Grand Canyon to -- for 8 this Court to believe there's not a statutory basis. 9 As the Court surely knows, under the 10 Declaratory Relief Act and to have jurisdiction as we 11 cited in our brief with specific statutory authority. 12 This is a state court of general jurisdiction. 13 State and federal legal questions can be 14 answered, but all three of our claims, first claim 15 for relief, second claim for relief, third claim for 16 relief, come from specific statutory authority. 17 Claim No. 1 comes from ORS 28.010, 18 declaratory relief. Contract rights are at stake. 19 Membership rights are at stake. Specific expressed 20 rights are at stake. That's a very broad -- ORS 21 Chapter 28 gives very broad powers to this Court 22 under the Declaratory Relief Act. 23 Also you can adjudicate rights that come 24 from other statutory rights under the Declaratory 25 Relief Act. So our second claim for relief comes 27 1 both from the statutory rights of declaratory relief, 2 but also specifically as to the corporate rights. 3 Now, the defendants here have argued 4 that the nonprofit corporation status is somehow in 5 question. But the Legislature -- there's no 6 statutory interpretation here required. That's why I 7 used the metaphor of the Grand Canyon. The language 8 of the statute is very clear. 9 ORS 208.003 and 208.004 specifically and 10 expressly says that the officers of political parties 11 are officers of nonprofits. The members of political 12 parties are directors of nonprofits. ORS 248.004 13 also says that ORS 65.077 applies to political 14 parties and they have the powers therein. 15 Those -- it's right there in the 16 statute. There's no interpretation required. It 17 says that political parties have the power to make 18 and amend bylaws not inconsistent with state law. 19 The only piece I took out there is the articles of 20 incorporation. 21 It literally says, "To make and amend 22 bylaws not inconsistent with their articles of 23 incorporation or state law." The Legislature clearly 24 says that bylaws of a political organization must 25 comply with state law, particularly when they're 28 1 amending it. It's right there literally in the 2 statute itself. 3 But above and beyond all that, we have 4 cited a plethora the cases that bylaws are 5 enforceable. Bylaws create contractual rights. 6 Bylaws create other rights, both when they're in a 7 corporate setting, and, as they briefly argued, in an 8 unincorporated setting. It doesn't matter. Bylaws 9 create rights that can be adjudicated through the 10 Declaratory Relief Act. 11 In oral argument today, they have not 12 mentioned ORS 248.011, which is the bar on Secretary 13 of State and elections officers. I take it they may 14 have abandoned that argument. Obviously, this Court 15 is not an elections officer as that's deemed by 16 statute and defined by statute. That's in our brief, 17 but clearly that doesn't apply here. 18 And I think importantly as to their 19 argument that there's some sort of a constitutional 20 question here, Your Honor, there's two private 21 parties here. There is the Libertarian Party of 22 Oregon and Mr. Wagner and his group of -- who claims 23 to be the Libertarian Party of Oregon. 24 My client has been operating since the 25 May 21st meeting onwards. They've been having their 29 1 monthly meetings. They have their convention last 2 months. Been operating as the Libertarian Party of 3 Oregon ever since then. 4 There is no state party here. You can't 5 have a constitutional challenge against the Secretary 6 of State under that statute without there being a 7 state party. Where is the state actor here? 8 The important piece -- there is no case 9 that either side has been able to find or cite that 10 directly says that bylaws of a political party are 11 not enforceable. We specifically pointed out 12 multiple cases of both the United States Supreme 13 Court, various Federal Circuit Courts and Federal 14 District Courts did, in fact, read the bylaws, 15 interpret the bylaws, cite to the bylaws in their 16 findings. 17 If their argument is somehow valid that 18 the Court cannot read or rely on bylaws, then a 19 plethora of cases have been totally outside their 20 constitutional limits. Even the United States 21 Supreme Court, where they even use as much -- 22 Robert's Rules of Order that are referenced in 23 organizational bylaws, political organizational 24 bylaws. 25 So their argument is far afield from 30 1 reality, Your Honor. But they have -- they seem to 2 rely on the March Fong Eu case. In that Eu case, if 3 you pay attention -- and I encourage you if that's -- 4 if that case has any weight on your mind at all, to 5 read that case in -- in close detail. It's totally 6 factually inapplicable. 7 So the legal conclusions and the dicta 8 in that case simply don't apply here. That -- the 9 facts surrounding that case, where it was a 10 constitutional challenge to a specific statute. The 11 constitutional challenge a specific statute. You had 12 a state actor challenging the validity under the 13 Constitution of that particular statute. 14 Here, there's no such thing. The 15 statute that was in question there banned political 16 parties from making political endorsements. Not 17 here. They dictated the composition of how they 18 structured the organization, particularly requiring 19 the chairperson to be from the north every -- 20 northern California every two years and then southern 21 California every two years. 22 Not even -- not even close to this 23 factual scenario. There were term limits that were 24 overturned in that and the factual scenario in that 25 case is -- is just not even close to applicable here. 31 1 And there's no statutory constitutional challenge at 2 stake here. 3 This is a private litigation between 4 private, nongovernmental parties. So there is no -- 5 that whole case that -- the case analyzes the 6 arguments about whether there's a compelling 7 government interest, substantial interest, all that, 8 just totally inapplicable here. 9 We're not -- there is no constitutional 10 challenge of a statute that's at stake. They don't 11 cite any statute that they think should be 12 overturned. There is no need to weigh substantial 13 government interest, compelling government interest 14 at all. 15 That -- that statute in the case law 16 lays out, it says, when you're -- when a Court is 17 deciding whether internal affairs of a political 18 organization are regulated by statute improperly, 19 then they would apply that analysis. Here, there's 20 no statute that's regulating the internal affairs of 21 a political party. 22 It's the political party itself that has 23 regulated itself by adopting bylaws; by, you know, 24 using those bylaws. Mr. Wagner himself was vice 25 chair under those bylaws. It's why we raised the 32 1 argument today that they're -- they're, again, 2 asserting to this Court that the bylaws have somehow 3 been changed. 4 That's the ultimate question of fact 5 here. Did they change these bylaws? This is a 6 contract dispute, easy for this Court, no different 7 than any other contractual dispute between parties to 8 get involved with and determine whose rights are 9 which under the Declaratory Relief Act. 10 The March Fong Eu case even particularly 11 cites Store (phonetic). The defendants seem to want 12 to switch the place of the Legislature with the Court 13 to say maybe the Court is now the state actor. Can 14 the Court not even make a decision on this entire 15 subject matter? 16 That case is not cited. That's not what 17 the case stands for. That's not what happens in the 18 case, but even if they were to make that sort of 19 switch, the case that's cited by the Supreme Court in 20 You specifically states that a state government -- 21 well, if this case, even if you switch hats -- a 22 Court can enact laws -- or with a switch to regulate 23 or make an adjudication when it's about fair and 24 honest elections or the integrity of the primaries. 25 There are cases and that does -- that is 33 1 a compelling government interest. Compelling 2 government interest analysis shouldn't apply, but 3 Store and cases cited in You, if you do through some 4 sort of an osmosis, switching hats here, the leap 5 that they're asking you to make, it's justified even 6 under that standard. 7 And that March Fong Eu case even points 8 out that laws that are an indirect consequence of the 9 party's external responsibilities to the outside 10 world are allowed. And that's cited at 232. So the 11 You case factually isn't applicable; but even if it 12 was partially applicable in the dicta that the Court 13 states, it supports our assertion that this Court has 14 jurisdiction over this matter. 15 And, ultimately, I'll repeat -- repeat 16 the question here when we were talking about the 17 jurisdiction. If this Court didn't have 18 jurisdiction, there would literally be no remedy for 19 the plaintiffs. 20 There would be nothing that anyone could 21 do to a political party's chair that wants to stay in 22 office or change the bylaws under any rules or any 23 procedures that he -- he or she should choose to do. 24 All the cases that were -- that we've 25 cited that relate in the briefs that relate to this 34 1 constitutional jurisdictional question, the ones 2 where the Court abstained and kept their hands out 3 all revolved around there was some superior 4 organization that would ultimately decide that 5 political dispute. 6 They happen mostly about national 7 conventions when there was going to be a national 8 convention, who are the delegates that get to sit and 9 vote in that national convention? 10 Here, there's no such arbiter. There 11 is -- this is a state entity that has no super entity 12 that has jurisdiction and authority over them in the 13 political sphere. This is the be -- this is the 14 state Libertarian Party of Oregon. They're the be 15 all and end all of libertarian politics in the state, 16 so we don't have that option. 17 This Court can't abstain for those 18 reasons that they did in a few cases that were 19 determining who the convention delegates were to a 20 coming convention. 21 Next, I'll move to the -- the parties. 22 As they have mentioned -- and I think as this Court 23 seems to have the -- 24 THE COURT: Concern. 25 MR. SMITH: -- the commentary earlier as 35 1 to whether this should be the -- the time and place 2 where this gets adjudicated, Mr. Steringer even 3 seemed to have -- have stated that there are no 4 additional arguments that would need to be made by 5 outside parties. At least he couldn't conceive 6 of any. 7 And I would submit to this Court this 8 is -- these are the affected parties. As you can see 9 in our brief, the relief we're requesting is against 10 Mr. Wagner in his personal capacity as to basically 11 negative and positive injunctive relief and the 12 declaratory relief we're asking for is as to the 13 Libertarian Party of Oregon as the organization. 14 The -- again here, I'll get to the legal 15 leap over the Grand Canyon they're asking this Court 16 to make is that somehow in the Declaratory Relief 17 Act, any time a corporation is involved or any time 18 an organization involved -- is involved that all of 19 the members would need to be -- need to be joined. 20 Literally here, the members -- 21 Mr. Wagner through Mr. Leuenberger argues that all 22 the members need to be joined. Under his proposed 23 bylaws, every registered libertarian in the entire 24 state of Oregon is a member of the organization. 25 And as we pointed out in our brief, 36 1 ORS 248.004 makes members of a political party 2 directors of the organization of a nonprofit 3 corporate status. And so their -- their argument 4 would literally require us to name every registered 5 Libertarian in the entire state of Oregon. 6 THE COURT: Does it require every 7 registered Libertarian or does it require joining 8 just the officers? 9 MR. SMITH: Your Honor, our argument is 10 it doesn't require joining the officers. If you look 11 at all of the case law about how this operates when 12 you challenge a corporate authority to act, you never 13 see the CEO, the CFO, the CTO, all the vice 14 presidents the secretaries, the treasurers of these 15 organizations all named. It just doesn't happen. 16 THE COURT: Okay. 17 MR. SMITH: That's not how it works. 18 But I would argue that even if this Court wanted the 19 other officers of the organization joined, we could 20 certainly do that, but that's where we get back to 21 the statutory. The Legislature specifically cited to 22 ORS 65.077. 23 Sue and be sued in the corporate name is 24 what that statute says. They have the power to sue 25 and be sued in their corporate name. Does not say 37 1 you need to name all the officers. It's not how it's 2 done in the for-profit corporate world, the nonprofit 3 corporate world and that's not what the statute says. 4 I would -- I'd argue to the Court that 5 there's no need to join any additional parties, 6 first, because they're not affected. We need -- we 7 need -- we need a ruling. And the Secretary of State 8 has said that we need a ruling from a Court that says 9 Mr. Wagner is not the chair and the bylaws were not 10 legitimately changed in order for them to change 11 their opinion. 12 That's literally all we need from this 13 Court. And we have asked for an interpretation on 14 whether the bylaws were properly amended. The 15 conclusion that Mr. Wagner is not the chair falls 16 naturally from that and we believe it's automatic if 17 the bylaws were not changed. 18 So the only relief that we're 19 requesting -- we had frankly -- frankly, don't care 20 if anybody else is affected or bound by this besides 21 the Libertarian Party of Oregon as the organization 22 and Mr. Wagner. We need Mr. -- we need this court 23 order to order Mr. Wagner to acknowledge that he's no 24 longer the chair. 25 So affected parties, the statute calls 38 1 for the affected parties. Those are the two affected 2 parties, Your Honor. Whether we need to name -- I 3 have -- Mr. Saub is here, Ms. Pealer are here. 4 They're both now clients of mine based on these 5 memos. 6 They'd be happy to join in this lawsuit. 7 We could certainly name the other officers that 8 purport to be working with Mr. Wagner in his version 9 of the LPO, but that's unnecessary under the law. 10 It's not how it's done on any of the rest of the 11 cases. 12 THE COURT: Okay. 13 MR. SMITH: So those arguments -- and 14 the case -- 15 THE COURT: I have to tell everyone we 16 don't have an unlimited amount of time you today, so 17 if you could wrap it up fairly soon that would be 18 good. 19 MR. SMITH: I will, Your Honor. Thank 20 you. 21 We cited the cases, Oregon Supreme Court 22 cases, Wright and Salem. Wright is 293 Or 259 and 23 City of Salem is 144 Or 93 and it specifically state 24 that the participates to the controversy are who 25 should be joined under that statute. And that's 39 1 Wagner, the LPO and -- and the organization itself. 2 We're asking the organization to be 3 enjoined from acting under those improper bylaws that 4 they supposedly enacted. Again, as to their motions 5 to strike, I believe this Court will see that they're 6 not -- there is nothing that's a sham, irrelevant or 7 immaterial. 8 Their complaint that we say that 9 Mr. Wagner is alleging he's the chair. That's 10 literally the factual scenario. That's an ultimate 11 question of ultimate fact. A question of ultimate 12 fact couldn't be immaterial or irrelevant. And 13 that's -- so that's the one they go to. 14 And this Court, obviously, has 15 substantial power to set -- under ORS 65.084, this 16 Court has specific statutory authority to set aside 17 or give prospective relief, positive or negative in 18 effect, under the Declaratory Relief Act and 65.084. 19 And the Court -- the case law that we've 20 cited says you can fashion appropriate remedies under 21 declaratory relief. And that's what we've asked this 22 Court to do. It -- it should be determined at a 23 later date if our remedies are exactly what this 24 Court determines are appropriate or not for the 25 ignoring and filing of improper bylaws. 40 1 The complaint, as this Court knows, as 2 to their ORCP 21A8 argument that motions to dismiss 3 are determined on the face of the pleadings as to any 4 facts our complaint more than -- as we've cited in 5 our brief, more than states the sufficient facts to 6 make all of our claims. Even any inferences should 7 be decided on -- on behalf of the plaintiffs. 8 And we -- they didn't even cite any 9 missing that they would think we're somehow missing 10 aside from membership. We've asserted that the facts 11 on the membership -- you've seen the membership list. 12 I assume it's in the record, the membership list, the 13 full and accurate membership list as of January of 14 this year is in the record. Plaintiffs have asserted 15 that they are members. 16 And regardless of their membership 17 status, Your Honor, another thing that should be 18 pointed out, they're officers. The membership status 19 question is in essence a sidebar, because they're 20 officers and they're actually the organization. Like 21 I said, they've been operating as the organization 22 for the last eight months. 23 And then their argument about Mr. Wagner 24 breaching his fiduciary duties they seem to have 25 skipped over that one in oral argument, because 41 1 clearly as I said before, state law, ORS 248.004(3) 2 and (4) make Mr. Wagner an officer of a nonprofit 3 corporation, clear expressed directive from the 4 statute, and director of the organization which has 5 fiduciary duties under the applicable statutes. 6 I'd be happy to -- that's -- that's the 7 link, Your Honor. They argued there was no link. 8 THE COURT: How many -- how many 9 officer -- how many officers are there altogether? 10 MR. SMITH: Your Honor, of -- of our 11 organization I think there are four titled officers 12 that get elected, but the question then remains if 13 the defendants want to argue that any officer -- well 14 does that mean a -- a committee chair -- does their 15 argument that there's somehow interests that might be 16 affected because somebody's sitting in a seat? 17 THE COURT: Well, let me -- let me ask 18 you, because your -- your identification of the 19 plaintiffs is Tim Reeves, David Terry, M. Carling, 20 Greg G. Burnett and Richard Berg as members and 21 officers of the Libertarian Party of Oregon. So my 22 question is: Are they all of the officers? 23 MR. SMITH: Your Honor, there were -- 24 there are two other elected officers with that -- 25 THE COURT: Okay. 42 1 MR. SMITH: -- route, and that's one -- 2 the individuals I mentioned. 3 THE COURT: Okay. 4 MR. SMITH: Mr. Saub, who's here and 5 Ms. Carla Pealer who are both clients of mine -- 6 THE COURT: Okay. 7 MR. SMITH: -- that will join on this 8 and -- 9 THE COURT: Here's my ruling. You -- 10 you don't need to say anything further. I'm -- I'm 11 going to -- help me make sure I'm identifying the 12 right motions here. Of the Libertarian Party of 13 Oregon motion, I've identified Motion 2 as the motion 14 to join or that there are parties that haven't been 15 joined? 16 MR. STERINGER: Yes, Your Honor. 17 THE COURT: Okay. And then, 18 Mr. Leuenberger, is it your Motion 4 where you claim 19 that there are parties that aren't joined? 20 MR. LEUENBERGER: Let me look. Yes. 21 THE COURT: Okay. Here's what we're 22 going to do. Except for those motions, all the other 23 motions will be deferred for later ruling. 24 The Libertarian Party of Oregon Motion 25 No. 2 is allowed in that this Court believes there 43 1 are other parties, meaning the balance of the 2 officers, that need to be joined. And I think that's 3 clear where you identify as part of the plaintiffs 4 that they're officers. 5 I think we have to have all officers 6 join. The same ruling with respect to Motion 4 for 7 Mr. Wagner and for the same reasons. 8 MR. SMITH: Your Honor, we request leave 9 to amend. 10 THE COURT: Of course. 11 MR. SMITH: Okay. 12 THE COURT: Of course. Now, I -- I know 13 everyone here wanted a ruling on everything, but it 14 just seems to me it'll be helpful if we get all the 15 other motions heard at the same time when we have the 16 additional parties joined. 17 I just -- I just -- I can't see any 18 point in ruling today and then we have new people on 19 board and they want to file the same motions. We 20 have to go through the hearing all over again. You 21 have to appear again and then the lawyers for the new 22 parties have to appear again. 23 MR. LEUENBERGER: Your Honor, it's a 24 small thing, but I think it is important, 25 symbolically, at least, and that is that the relevant 44 1 wording in the caption be eliminated in our motion to 2 strike. That is the alleged -- the acting as -- 3 THE COURT: I'm not going to rule on 4 that today, Mr. Leuenberger. I appreciate your 5 point. 6 MR. SMITH: Your Honor, I would ask two 7 things on this. First, that we -- if we can docket 8 this back as quickly as possible. There are 9 elections coming up. We had intended to ask for an 10 expedited trial on this as soon as possible because 11 there are -- this is an election year. Elections are 12 coming up. The resolution of this case matters 13 significantly in that regard. 14 THE COURT: I will -- any objection to 15 that request? 16 MR. LEUENBERGER: To expedited continued 17 proceedings on this motion? 18 THE COURT: Yes. 19 MR. LEUENBERGER: No objection. 20 THE COURT: Okay. 21 MR. STERINGER: Right. No. 22 THE COURT: There's a practical matter, 23 of course. You have to say who the additional 24 parties are. They have to be served. Then they have 25 to appear. So the immediacy may not be as immediate 45 1 as you'd like. 2 MR. SMITH: And, Your Honor, if I could 3 ask one additional clarifying point on that. Are we 4 stipulating or is it your order that the officers 5 that they assert today are their officers, are the 6 people that need joined, because as an ongoing 7 organization, they could play games with this and 8 switch them around or those types of things. 9 THE COURT: That's a lawyer call, not -- 10 not for the Court to call. I can't tell you how to 11 do that part of the pleading. 12 MR. SMITH: Can -- is your order that 13 the officers are the necessary parties? 14 THE COURT: Well, when you file a 15 pleading and allege certain officers, it would have 16 to be the officers, it seems to me, that are the 17 current officers. 18 MR. SMITH: Okay. Not the -- not the 19 members that were -- that's off the table? 20 THE COURT: I said officers and somebody 21 said there were two other officers and that's what my 22 ruling refers to. 23 MR. SMITH: Your Honor, we have two 24 other officers. Are you just saying the plaintiffs' 25 officers? 'Cause they're here. They will join -- 46 1 well, one of them's here right now. 2 THE COURT: Yes. Yes. 3 MR. SMITH: Okay. Just the plaintiffs' 4 officers. Okay. 5 THE COURT: All right. 6 MR. STERINGER: Well, wait. I don't 7 believe that's the Court's ruling. I believe there 8 are also other directors of the Libertarian Party of 9 Oregon, other officers of the Libertarian Party of 10 Oregon. 11 THE COURT: Well, they -- they haven't 12 alleged -- 13 MR. STERINGER: No. What the other side 14 is trying to do is -- 15 THE COURT: They haven't alleged the 16 directors. 17 MR. STERINGER: No, I said officers. I 18 meant officers. 19 MR. LEUENBERGER: (Indiscernible). 20 MR. STERINGER: I meant officers. 21 THE COURT: Okay. 22 MR. STERINGER: But what their side is 23 saying is that their people should be replacing our 24 people. That is, their group versus our group. And 25 I'm just (indiscernible) for Mr. Wagner, but the LPO 47 1 has officers now. They were identified in my reply 2 by name. 3 THE COURT: It's -- it's -- I appreciate 4 your point, but it seems to me it's up to Mr. Smith 5 to bring the parties in that he thinks should be in 6 and then you, of course, have the right to say he 7 hasn't doesn't it correctly. 8 MR. STERINGER: Okay. 9 THE COURT: Is that clear? 10 MR. LEUENBERGER: Yes, Your Honor. I 11 was going to ask a question about the board of 12 directors, which is separate from the officers, but I 13 understand your -- 14 THE COURT: This Court doesn't see any 15 need for the directors. 16 MR. LEUENBERGER: Well, if I may, 17 Your Honor, the plaintiffs are seeking the removal of 18 that board of directors and so we would -- we would 19 respectfully suggest that they must be parties to 20 this case if they're going to be removed from their 21 positions. 22 THE COURT: I think you should confer 23 with Mr. Smith. And -- and, again, I'm reluctant to 24 say who you have to join. I think you should -- you 25 should talk with Mr. Smith and -- and see if you can 48 1 come to some agreement as to who the parties are that 2 are necessary and then join them. 3 MR. LEUENBERGER: Will do, Your Honor. 4 THE COURT: It'll certainly save all 5 kinds of lawyer fees and court time if you can come 6 to an agreement on that, okay? 7 MR. SMITH: Your Honor, the whole 8 dispute is about who the officers are, so that may 9 be -- 10 THE COURT: I understand that. I 11 understand that. Okay. Thank you. Good 12 presentations. Complex case. And we'll just get the 13 joinder solved and then we can rule on the other 14 motions. 15 MR. SMITH: Your Honor, will you want 16 oral argument on the other motions or have you -- 17 assuming that we solve the joinder, are we going to 18 be pleading -- 19 THE COURT: Well, I think -- I think we 20 have to see where my rotation is on the docket. 21 I'm -- I rotate about once a month. And so by chance 22 it may be that I hear it. I have my notes here. 23 I'll keep them. If I hear it, that'll shorten your 24 arguments down. 25 MR. SMITH: Can we look to your 49 1 calendar, Your Honor? I mean, I'd hate to have to 2 re-educate another judge on this matter. I know it's 3 how Clackamas County does it. Is it possible? 4 THE COURT: Okay. I -- I will -- I will 5 do this. 6 THE CLERK: They can contact me. 7 THE COURT: Okay. 8 THE CLERK: I have your -- I have your 9 rotation. 10 THE COURT: This is Ms. Tegman. Contact 11 her and you can -- if there's no objection, then 12 she'll put me as the -- as the judge on the next 13 motion and that'll save about an hour's argument 14 time, I think, unless the newly joined parties are 15 long-winded. Okay? 16 MR. SMITH: That's fine, Your Honor. 17 THE COURT: All right. Gentlemen, thank 18 you very much. It's a most interesting case. 19 MR. STERINGER: Thank you, Your Honor. 20 * * * 21 (Court adjourned, Volume 1, 4-9-12 at 10:44 a.m.) 22 23 24 25 Reporter's Certificate 50 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 the HONORABLE 7 JAMES E. REDMAN, Circuit Judge, on April 9, 2013; 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 1 of 5, Pages 1 12 through 49, both inclusive, constitutes a full, true 13 and accurate record of said proceedings taken from a 14 CD and so reported by me in stenotype as aforesaid. 15 Witness my hand and CSR Seal at 16 Portland, Oregon, this 10th day of March, 2014. 17 18 19 ___________________________ Katie Bradford, CSR 90-0148 20 Court Reporter (503) 267-5112 21 22 23 24 25