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, )
Plaintiffs, ) Clackamas County
7 ) Circuit Court
and ) No. CV12010345
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, )
JOSEPH SHELLEY, )
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.
2 Tyler Smith and Anna Adams,
Attorneys at Law,
3 Appearing on behalf of the Plaintiffs;
4 Robert Steringer, James Leuenberger and
Colin Andries, Attorneys at Law,
5 Appearing on behalf of the Defendants.
6 * * *
KATIE BRADFORD, CSR 90-0148
8 Court Reporter
Proceedings recorded by digital sound recording;
10 transcript provided by Certified Shorthand Reporter.
11 * * *
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
9 * * *
1 (Volume 4, Thursday, May 16, 2013, 9:13 a.m.)
2 P R O C E E D I N G S
3 (Whereupon, the following proceedings
4 were held in open court:)
5 THE COURT: This is Reeves and others
6 against Wagner and others and, in particular, an
7 organization identified as the Libertarian Party of
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
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
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
23 MR. SMITH: No, Your Honor. No
24 duplicity, then fine.
25 THE COURT: Okay. And you're welcome to
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
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
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
1 step in and adjudicate or resolve differences as to
2 who is the real Presbyterian or who is the legitimate
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
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
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.
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?
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
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
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
1 being involved to almost any extent is relatively
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
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
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
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
25 MR. SMITH: Correct. Correct. And the
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
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
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
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.
1 THE COURT: Mm-hmm.
2 MR. SMITH: County central committees,
3 by their definition, have to be comprised of precinct
4 committee people.
5 THE COURT: Mm-hmm.
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
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
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
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.
7 MR. SMITH: Your Honor --
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
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
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 --
17 MR. SMITH: Your Honor --
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?
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
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
1 that very directly. 248.010 --
2 THE COURT: Mm-hmm.
3 MR. SMITH: -- is one of the key pieces,
4 the use of party name.
5 THE COURT: Mm-hmm.
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.
11 THE COURT: Mm-hmm.
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
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
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
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
24 MR. SMITH: Your Honor, that's why I
25 said we've already had this fight. This has already
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
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
25 What we have here is --
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.
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
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?
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
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.
8 THE COURT: Mm-hmm.
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
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
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
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
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
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
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.
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.
15 MR. SMITH: Your Honor --
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
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
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.
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
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
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
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
25 MR. SMITH: Election. Officers were
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
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
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.
14 THE COURT: Mm-hmm.
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,
1 which you mentioned at the beginning?
2 THE COURT: Mm-hmm.
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
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.
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
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
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 --
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
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
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
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
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
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,
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
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.
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
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.
1 THE COURT: Mm-hmm.
2 MR. SMITH: Other officers, I'd have to
3 refresh my memory.
4 THE COURT: But the point is the Wagner
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
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 --
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
12 THE COURT: Right.
13 MR. SMITH: We're on Article V.
14 THE COURT: Mm-hmm.
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
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
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
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
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
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.
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
1 meeting where you assert there was a proper quorum,
2 the Reeves group were chosen as the new state
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
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
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
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
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
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
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
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
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
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,
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
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
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
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
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.
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
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 --
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
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
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
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
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
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.
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
19 MR. SMITH: The Reeves state committee
20 suspended the dues requirement after they took
22 THE COURT: Oh, well. That doesn't
24 MR. SMITH: They also --
25 THE COURT: This is just another version
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.
1 MR. SMITH: -- that what the
2 defendants --
3 THE COURT: Now, wait. Are we talking
4 about requirements suspended?
5 MR. SMITH: That's one aspect to it.
6 THE COURT: Okay. Let's stop there for
7 just a moment.
8 MR. SMITH: Okay.
9 THE COURT: Requirement suspended by
10 Reeves, right?
11 MR. SMITH: Correct.
12 THE COURT: Which, I think, is a perfect
13 definition of a bootstrap, because the whole question
14 here is who has legitimate authority to do anything
15 and if we get down to, "Well, I have legitimate
16 authority because I seized the chair and then
17 declared that I didn't have to pay dues and so now I
18 don't have to pay dues."
19 MR. SMITH: That's why -- partial
20 summary judgment, Your Honor. That's all we're
21 asking for is partial summary judgment, 'cause those
22 are questions of fact (indiscernible).
23 THE COURT: Well, now, just a moment.
24 Just -- no, no, no, no, no. This is a very serious
25 point. This goes to standing.
1 MR. SMITH: Mm-hmm.
2 THE COURT: Mr. Steringer is saying your
3 client simply lacks standing because under the --
4 they cannot on the one hand embrace the '09 bylaws
5 and seek the benefit of them and then when it becomes
6 inconvenient, namely, the dues requirement, say, "Oh,
7 well, but those don't apply because we changed them."
8 MR. SMITH: Right. And --
9 THE COURT: So what gets you there other
10 than Reeves changes the rules?
11 MR. SMITH: Your Honor, the other points
12 that I haven't even gotten to talk about yet are
13 the --
14 THE COURT: No, no. I want you to stay
15 on the subject of payment of dues, so --
16 MR. SMITH: Dues. Absolutely. There
17 was no dues --
18 THE COURT: So I'm going to put B on
19 my --
20 MR. SMITH: Okay. There was no dues
22 THE COURT: I'm going to say no --
23 MR. SMITH: Under their bylaws.
24 THE COURT: Now, under their bylaws,
25 meaning which date?
1 MR. SMITH: Their 2011 bylaws that
2 they --
3 THE COURT: But we're talking about
4 2009, aren't we?
5 MR. SMITH: Assuming 2009 are the
6 governing documents, yes, we're talking 2009.
7 THE COURT: Under 11 --
8 MR. SMITH: They're asserting that
9 they're the leadership. And as you pointed out,
10 there's only one organization, so we have to
11 determine which governing documents were required.
12 Theirs had no bylaw requirement.
13 THE COURT: Okay. And now you're doing
14 the -- the what's good for the goose is good for the
15 gander argument. Namely, if you want to -- you,
16 Steringer, want the '11 bylaws, then you've got to
17 take the disadvantage of the '11 bylaws, which is
18 they don't contain a dues requirement.
19 MR. SMITH: Yes.
20 THE COURT: What do you say to that?
21 MR. STERINGER: Well, what I say is that
22 if the plaintiffs are willing to concede today that
23 the 2011 bylaws are operative, then I'm not sure what
24 we've been fighting over for the last year. The --
25 the claim that is brought by the plaintiffs is that
1 the 2009 bylaws are in effect.
2 If the 2011 bylaws are in effect, it is
3 true, the -- the individuals, including the party
4 itself that revised the bylaws, removed this $50 dues
5 requirement. They determined that that was not an
6 appropriate way to run a party.
7 THE COURT: That was -- that was your
8 people in the '11.
9 MR. STERINGER: That's the -- the
10 defendant group.
11 THE COURT: Because this is part of
12 the -- the dues requirement and also the where do you
13 live requirement.
14 MR. STERINGER: Correct.
15 THE COURT: Or not where do you live,
16 but there be some geographic limitation to who's a
17 Libertarian in Oregon.
18 MR. STERINGER: Exactly.
19 THE COURT: Okay.
20 MR. SMITH: Your Honor -- Your Honor, if
21 I may --
22 THE COURT: Back to you.
23 MR. SMITH: So on the points that I'm
24 making, I have two more to talk about with regard to
1 THE COURT: So I'm at C.
2 MR. SMITH: Okay. Yes.
3 THE COURT: A is requirement is
4 superseded by Mr. Reeves; B, no dues requirement
5 under '11 --
6 MR. SMITH: Right.
7 THE COURT: -- C --
8 MR. SMITH: We're getting back to the
9 standing. This is started out as a standing and
10 that's where I mentioned the -- the pejorative of a
11 red herring is because we're talking about standing
12 here. It's uncontested that my clients were all
13 members in March 12th of 2011, March 31st of 2011,
14 May 21st, 2011 --
15 THE COURT: Wait. Hold it. Uncontested
16 that plaintiffs were members when?
17 MR. SMITH: Those -- during the 2011
18 time period. The whole year for that matter, but
19 March 12th, 2011, March 31st, 2011, particularly.
20 The reason I mention that --
21 THE COURT: And May 21, right?
22 MR. SMITH: And May 21.
23 THE COURT: Now, you say it's
24 uncontested and yet Mr. Steringer I think has just
25 contested it. So let me go back to him and see --
1 MR. SMITH: Okay.
2 THE COURT: Or do we have another one of
3 these you say west, he says east?
4 MR. STERINGER: I'm not -- I'm not sure
5 where we get the -- the idea that the defendants have
6 conceded membership all the way through 2011. I'd
7 have to dig into my motions here.
8 But we have the -- in the record, we
9 have the evidence of the last payments that were made
10 by the various plaintiffs and my recollection is
11 that -- that those occurred in October, maybe the
12 latest was December of 2010. And so their
13 memberships had expired in the latter half of 2011.
14 THE COURT: And the critical point for
15 you is not March or May of 2011. It's the date on
16 which is action is filed.
17 MR. STERINGER: That's correct. For
18 purposes of standing, that is the --
19 THE COURT: For purposes of standing.
20 MR. SMITH: And, Your Honor, the reason
21 I bring that up is because for purposes of standing,
22 the statutes point out exactly what's required for
23 standing on the --
24 THE COURT: Which statute?
25 MR. SMITH: -- our claims.
1 THE COURT: Which statutes?
2 MR. SMITH: We have three claims. I'm
3 going to go through those in detail. We do in our
4 memorandum. Each of the statutes that we're bringing
5 under declaratory relief, 28.010 and 020, 65.084 --
6 THE COURT: Hang on. Hang on. Hang on.
7 Hang on.
8 Well, first of all, let me go back.
9 I've got A, B and C. So far, that's three reasons
10 why the dues payment requirement isn't a bar.
11 MR. SMITH: Right.
12 THE COURT: And now Mr. Steringer has
13 disagreed with you and said, no, you -- you don't --
14 there's no factual question and your people hadn't
15 paid their dues within the requisite period when they
16 filed the -- this lawsuit.
17 Now, do you have anything more to say on
19 MR. SMITH: Yes.
20 THE COURT: Or we'll move on to D, which
21 would be the fourth reason.
22 MR. SMITH: Yes.
23 THE COURT: You're on C still?
24 MR. SMITH: I was going to add -- add D.
25 THE COURT: Okay.
1 MR. SMITH: We -- I think it's in the
2 record, and as you said, October through December of
3 2011, even their records, whatever the dates are,
4 October through December. Their records, I think, is
5 what you were saying would show that all dues were
6 paid to that period of time.
7 What I'm going to suggest is that those
8 are not measuring dates for standing on these claims.
9 THE COURT: What? Now, wait just a
10 moment. Are they the measuring dates for membership?
11 MR. SMITH: No.
12 THE COURT: What tells me what the
13 membership period is when one makes a payment?
14 MR. SMITH: Whenever they make their
16 THE COURT: What tells me that?
17 MR. SMITH: Well, the bylaws --
18 THE COURT: I mean, I can imagine in my
19 experience, especially in the tax law, all kinds of
20 payments are made in April for the prior year,
21 payments are made in advance, payments are made in
23 Is there anything that tells me that
24 when somebody -- under the '09 bylaws -- when
25 somebody wrote a check for dues, were they paying in
1 advance? Were they paying in arrears? Were they
2 paying on a rolling basis?
3 In other words, if I pay on
4 October 12th, I'm a member until the next
5 October 12th and some guy next to me may pay on
6 October 30th and he's a member 'til the next
7 October 30th.
8 MR. SMITH: Yeah.
9 THE COURT: I mean, I'd hate to keep the
10 membership records of this organization, but if that
11 was the rule, but --
12 MR. SMITH: Membership records are
13 actually in there, Your Honor, and they show the
14 expirations of my clients long after that.
15 Article III of the 2009 bylaws covers membership,
16 talks about the requirements for membership and it
17 talks about only OPL members who pay dues and keep
18 them current may hold the office and participate and
20 THE COURT: But did it ever tell me what
21 current means?
22 MR. SMITH: Yes. It talks about the
23 terms of membership, Section 3. "Each membership is
24 valid for the length of time specified on the
25 application it was submitted on. Membership remains
1 in effect for one year following the date of
2 application, payment of dues, whichever comes later,
3 unless terminated under the provisions of this
4 Article, Section 5 covers a termination."
5 There has to be a hearing to actually
6 then terminate membership rights.
7 THE COURT: Where are you reading from?
8 MR. SMITH: Article III of the -- it's
9 Exhibit 1 again, Page 2 of the 2009 bylaws.
10 THE COURT: Article III, Section 2.
11 Hang on. Article --
12 MR. SMITH: And the first sentence of
13 Section 2 is particularly important.
14 THE COURT: Wait, wait. Section 2,
15 requirements of membership?
16 MR. SMITH: The first sentence is what I
17 was going to point out on that.
18 THE COURT: "Full voting membership in
19 LPO shall be open to any individual who submits a
20 completed application and pays dues."
21 MR. SMITH: "As may be in effect at the
22 time of that application."
23 THE COURT: Right.
24 MR. SMITH: That's why suspension
1 THE COURT: Hang on. "Only LPO members
2 who pay dues and keep them current may hold office or
3 participate as voting delegates. Membership remains
4 in effect for one year following the date of the
5 application or the date of payment of dues, whichever
6 comes later." So it could only last a year.
7 MR. SMITH: That's (indiscernible)
8 determination. They --
9 THE COURT: I'm sorry. It can only last
10 a year, correct?
11 MR. SMITH: The ability to hold office
12 or participate as a delegate --
13 THE COURT: No, no, no.
14 MR. SMITH: -- at the national
16 THE COURT: No, no, no. Section 4,
17 "Membership remains in effect for one year following
18 the date of application or the payment of dues,
19 whichever comes later," so -- but let's just take
20 payment of dues. "Unless terminated under the
22 MR. SMITH: If there's a dues
23 requirement, yes. (Indiscernible) we read above
24 too --
25 THE COURT: What do you mean, if there's
1 a dues requirement? Unless terminated. I'm assuming
2 what that means is, "I pay my money, I'm a member for
3 a year. However, I may do something bad and get
5 MR. SMITH: There's not always a dues
6 requirement. That's what Section 2 talks about.
7 "Full voting membership in the LPO shall be open to
8 any individual who submits a completed application to
9 the LPO and pays such dues as may be in effect at the
10 time of the application."
11 THE COURT: Right.
12 MR. SMITH: "At the time of the
13 application" if there were no dues requirements at
14 that point --
15 THE COURT: But -- but -- but this is
16 just a variation of the first argument, which is
17 Reeves changed the rules, isn't it?
18 MR. SMITH: No, Your Honor. The
19 Secretary of State -- they have filed three
20 complaints to the Secretary of State and the
21 Secretary of State -- we have been barred by
22 operation of law, the Secretary -- these are in the
24 THE COURT: Wait, wait, wait. Stop.
1 MR. SMITH: I said we can't be --
2 THE COURT: Stop. Stop. Stop. Stop.
4 Your assertion is that somehow there
5 was, in fact, not a dues requirement, not because of
6 the action of Reeves, but because of the action of
7 the organization, that somehow the dues requirement
8 had been dispensed with by the old organization.
9 That's what I hear you saying.
10 MR. SMITH: Because the -- they were
11 forced to by law. They had to.
12 THE COURT: Do you agree that you
13 had to?
14 MR. STERINGER: What -- what I
15 understand Mr. Smith to be arguing is that the -- the
16 defendants filed complaints with the Secretary of
17 State complaining about the fact that the plaintiffs'
18 group was raising money under the name of the
19 Libertarian Party of Oregon.
20 And because the Secretary of State
21 recognized the defendants' group as the
22 Libertarian Party of Oregon, that has consequences.
23 And, specifically, it meant that the plaintiffs
24 needed to turn over money to the treasurer of the
25 party so that it could be reported for campaign
1 finance purposes.
2 The Secretary of State disposed of that
3 complaints by -- by concluding after receiving input
4 from the plaintiffs that whatever the plaintiffs were
5 doing, they were not doing it as the Libertarian
6 Party of Oregon; and, therefore, would not be subject
7 to the -- the statutes on the reporting of campaign
9 THE COURT: And so could keep the money.
10 MR. STERINGER: And -- and so they could
11 keep the money under the -- under the Secretary of
12 State's rulings. They didn't have to turn it over to
13 the treasurer of the party.
14 THE COURT: But none of this sounds
15 anything like a suspension of the dues requirement.
16 MR. SMITH: They immediately upon that
17 later ruling -- there's a -- I don't remember the
18 gap, multi-month gap in between the first complaint,
19 which they rejected, and the third complaint.
20 THE COURT: Who's "they"?
21 MR. SMITH: The Secretary of State
22 rejected and the third complaint, which they rejected
23 with an explanation. The Reeves Libertarian Party of
24 Oregon immediately started the dues requirement again
25 after that period of time when the Secretary of State
1 said, "You can collect your own money."
2 THE COURT: The Reeves group. I don't
3 care about the Reeves group.
4 MR. SMITH: The dues, they were paying
6 THE COURT: I don't care about the
7 Reeves group. I care about the old-fashioned
8 Libertarian Party of Oregon under the '09 bylaws,
9 where the incumbent officers were the Wagner group.
10 MR. SMITH: If the '09 bylaws are
11 stipulated to be in effect, then --
12 THE COURT: No, no, no. They don't have
13 to stipulate. You're -- that's what you want. All
14 Mr. Steringer is saying is if that's what you want,
15 then you've got to live with what those bring with
16 them. And what they bring with them is the
17 requirement to pay dues, dues which you've admitted
18 you didn't pay.
19 MR. SMITH: We have not admitted that,
20 Your Honor.
21 THE COURT: Well, there's a request for
22 missions with the word admitted.
23 MR. SMITH: They did not pay the $50.
24 What I was getting at, I think you have D on your
25 list. We haven't even gotten to D yet on this point.
1 THE COURT: Well, we were trying to get
2 there and then you took me a little route around what
3 Mr. Steringer says has nothing to do with dues.
4 MR. SMITH: We've got the two other
5 aspects of this.
6 THE COURT: So what is D?
7 MR. SMITH: A proper date for standing
8 requirements and D --
9 THE COURT: No. What is D? What is on
10 your list?
11 MR. SMITH: D is also that it's a
12 practice in the Libertarian Party of Oregon long
13 before this dispute that payment by dues in kind is
15 THE COURT: So?
16 MR. SMITH: So payment by dues, as it's
17 stated in the declarations was made during that time
18 by some of the plaintiffs. So, again --
19 THE COURT: Well, wait a minute. Wait,
20 wait, wait, wait. Hold it.
21 The request was no plaintiff paid 50
22 more -- or dollars more in dues. Doesn't say how.
23 In cash, in kind, whatever. Answer admitted. Didn't
24 do it. Sorry.
1 MR. SMITH: The relevant date,
2 Your Honor, for the standing, as we pointed out in
3 our standing argument, that the claims here, we've
4 got declaratory relief, the rights and duties of
6 There is no -- no contest that the
7 plaintiffs, who are registered Libertarians in the
8 state of Oregon are members of -- if their membership
9 list is the Reeves list --
10 THE COURT: I'm sorry?
11 MR. SMITH: If the membership list is
12 the Reeves list or if the membership list is their
13 list that they would be members of those two lists,
14 but -- so they'd be members. What I'm getting at is
15 28.010, the first claim for relief that in order to
16 have standing under that you would have to have a
17 right, contract right.
18 We've cited the cases to have a contract
19 right that bylaws create contract rights and are
20 enforceable. The Oregon Supreme Court case on that
21 was Dentell, 273 Or 31.
22 THE COURT: You have no case involving a
23 political party, do you? They're all -- they're all
24 corporate -- I mean, they're all business
1 MR. SMITH: In Oregon?
2 THE COURT: Yeah.
3 MR. SMITH: In Oregon, we do not.
4 There's not.
5 THE COURT: Okay. Keep going.
6 MR. SMITH: I want to point out that ORS
7 Chapter 248.004 specifically applies.
8 THE COURT: No, wait. First of all, we
9 have the -- do you have -- you seek declaratory
10 relief and you say we have standing even though we
11 weren't -- arguably weren't members.
12 MR. SMITH: The standing would be when
13 the dispute arose, what -- at the time the dispute
14 arose, who --
15 THE COURT: Dispute arose? No. I think
16 it's the time the action is filed.
17 MR. SMITH: The relevant period of time
18 as to when their membership, when their rights were
19 violated would be when the improper action is taken.
20 THE COURT: No, no, no, no, no, no, no.
21 It would be the lawsuit. It would be the lawsuit.
22 MR. SMITH: And there's no -- there's
23 no -- I don't believe there's a contention by them
24 that the -- any of the plaintiffs are not registered
25 Libertarians in the state of Oregon.
1 THE COURT: No. There is a contention.
2 Their contention is that at the time this action was
3 filed the plaintiffs did not have standing because
4 they were not members of the organization.
5 MR. SMITH: I don't believe that's their
7 MR. STERINGER: Under the --
8 MR. SMITH: That's contradicts what they
9 say in the documents.
10 THE COURT: Well, that's really easy to
11 figure out.
12 Mr. Steringer, is that your argument?
13 MR. STERINGER: Under the 2009 bylaws.
14 THE COURT: Yes, under the 2009 bylaws.
15 MR. STERINGER: That -- that is correct.
16 MR. SMITH: And we dispute that fact,
17 Your Honor. That's what the record --
18 THE COURT: Dispute what fact?
19 MR. SMITH: The declarations from the --
20 Mr. Reeves, who was the chair --
21 THE COURT: No, no. Listen. Listen.
22 Dispute what fact?
23 MR. SMITH: That my clients are members
24 and were members the entire period of time. They
25 were the chair, treasurer, the secretary and were
2 THE COURT: Okay. Next.
3 Mr. Steringer, how about back to you.
4 We were at the standing.
5 MR. STERINGER: Are the -- are we
6 looking at the -- the next motion?
7 THE COURT: Yes.
8 MR. STERINGER: Have you heard what you
9 need to hear on -- on standing?
10 THE COURT: Right.
11 MR. STERINGER: Okay. The -- the
12 fourth -- the fourth motion we have offered asks for
13 summary judgment on the grounds that the plaintiffs
14 did not have authority to bring this claim on behalf
15 of the Libertarian Party of Oregon and that follows
16 necessarily from everything we've -- we've talked
17 about here today.
18 The fifth motion is the --
19 THE COURT: But that would only, of
20 course, affect the claims that are denominated as
21 claims of the Libertarian Party of Oregon.
22 MR. STERINGER: That -- brought by --
23 that are purported to be brought by the
24 Libertarian Party of Oregon --
25 THE COURT: Yes.
1 MR. SMITH: -- as the plaintiff,
3 THE COURT: For example, let's assume
4 that I concluded that, in fact, they did have --
5 they, the individuals, Reeves, Saub and others did
6 have standing.
7 You might win the motion that they can't
8 bring it on behalf of Libertarian Party -- I'm
9 sorry -- of the Libertarian Party, but you might lose
10 the motion on -- as to whether they could bring it
12 This motion, your --
13 MR. STERINGER: That's correct.
14 THE COURT: -- fourth motion, is just
15 are they the proper representatives of that
17 MR. STERINGER: That's correct,
18 Your Honor.
19 THE COURT: Okay. Next.
20 MR. STERINGER: Motion No. 5 is the
21 argument that to the extent the plaintiffs are
22 seeking to challenge the decision of the Secretary of
23 State to recognize Mr. Wagner as the chair of the
24 organization and Mr. Vetanen as the treasurer of the
25 organization, that is something that they need to
1 do -- they needed to seek judicial review under the
2 Administrative -- Administrative Procedures Act in
3 order to have that reviewed.
4 THE COURT: Okay.
5 MR. STERINGER: The response to that has
6 been that's what we're not asking the -- the Court to
7 do. And if that is -- if they're held to that, we
8 would -- we would concede that we don't need to move
9 forward on that.
10 THE COURT: Well, you articulated the
11 motion as "to the extent that," and I -- I take it
12 from what you said -- I'll ask Mr. Smith -- are you
13 saying, "Well, we're not -- we don't seek in this
14 proceeding to challenge what Secretary of State did."
15 MR. SMITH: We did not seek to challenge
16 it. Your Honor, it's actually interesting. We
17 didn't seek to challenge what the Secretary of State
18 did, because we agree. Their proposition -- and we
19 had this in oral argument before when this argument
20 was denied.
21 They wanted us to challenge a -- a
22 reading of Secretary of State of 248.011 that we
23 agree with, that the Secretary of State could not get
24 involved. And that's what the director of elections
25 says. "We will not get involved in this. You've got
1 to go to court to have this resolved."
2 THE COURT: What document is it that the
3 Secretary of State -- what is the action? What's the
4 evidence of the action that you say if they disagreed
5 with that they should have gone through the APA
7 MR. STERINGER: That is Exhibits 26 and
8 27 to the first Wagner declaration. That should be
9 the large one.
10 THE COURT: Mm-hmm. Oh, is this the --
12 MR. STERINGER: The -- the first --
13 THE COURT: 27. Secretary of State.
15 MR. STERINGER: Yeah. Primarily 27.
16 Exhibit 26 is some e-mail correspondence that reaches
17 the same conclusion.
18 Exhibit 27 is the letter from the
19 director of elections recognizing Wagner as the chair
20 of the Libertarian Party of Oregon.
21 THE COURT: Okay. Very well.
22 MR. SMITH: Your Honor --
23 THE COURT: Just one moment.
24 Mr. Conn (phonetic)?
25 MR. CONN: I'm happy to wait while the
1 internal workings of the Libertarian Party of Oregon
2 are litigated (indiscernible) because Mr. Dunbar has
3 an active complaint.
4 THE COURT: Do you expect your opponent
5 to show up today?
6 MR. CONN: Possibly. He has a habit of
7 being late.
8 THE COURT: Yes.
9 MR. CONN: And he's pro se and he
10 probably doesn't know where the Holman Building is.
11 And it's okay with me --
12 THE COURT: Fine.
13 MR. CONN: -- that we wait for him to
14 appear because this is more important than our little
15 contract dispute.
16 THE COURT: Well, but let me ask one
17 final question. And that is I am -- I was not given
18 and I'm not aware, but I was not given any response
19 to your motion by your --
20 MR. CONN: (Indiscernible) file a
22 THE COURT: I'm sorry?
23 MR. CONN: He did not file a response.
24 THE COURT: All right. Thank you.
25 MR. CONN: (Indiscernible) I think.
1 THE COURT: Well, that's true.
2 MR. CONN: I don't want to limit his due
3 process rights.
4 THE COURT: Mm-hmm.
5 MR. CONN: Because he's a reasonably
6 intelligent person who's not (indiscernible) but --
7 THE COURT: Okay.
8 MR. CONN: -- you know, (indiscernible)
9 could argue.
10 THE COURT: Yeah.
11 MR. CONN: I'm okay to listen to this
12 for a while.
13 THE COURT: All right. Well, no, and
14 that's what you'll get to do. But -- but we may
15 charge admission here if you want. If you find this
16 entertaining, maybe you should pay for it.
17 MR. CONN: I'm going to get a lot more
18 out of this than I'm going to read in The Oregonian,
19 believe me.
20 THE COURT: Here's my final concern and
21 that is your opponent may, because of that door, feel
22 that he needs to stay outside the door.
23 MR. CONN: I'll go check.
24 THE COURT: From time to time, will you
25 check and make sure that he isn't loitering out
2 MR. CONN: I'll check now and in 10
4 THE COURT: Yeah. Fine.
5 MR. CONN: He's pretty good about that
6 kind of thing.
7 THE COURT: Okay. Good. Thank you.
8 MR. CONN: He's not here now.
9 THE COURT: All right. Next.
10 MR. STERINGER: Our sixth motion is the
11 motion that we make based on our counterclaim for
12 declaratory judgment. Again, this is assuming that
13 the Court decides to get into the intraparty dispute.
14 And what we're able to establish based
15 on -- primarily on the failure to pay dues, but
16 there's another item that I want to hit on that is
17 that plaintiffs Reeves, Saub, Burnett and Pealer do
18 not occupy the officer positions that they claim to
20 The -- the bylaws argument or the dues
21 argument under the bylaws has to do with the
22 requirement to maintain dues or else you lose an
23 officer position. The -- the other argument applies
24 only to -- to plaintiff Burnett, who claims to be the
25 treasurer of the party and plaintiff Pealer, who
1 claimed -- I understand she doesn't anymore, but she
2 did claim to be the secretary of the party.
3 And the reason we can establish as a
4 matter of law that neither of them occupy those
5 positions is that the bylaws themselves do not
6 provide for determination of those officer positions
7 until they are filled.
8 And so at the May 21st meeting, at the
9 time of the May 21st meeting with the Reeves folks
10 got together and appointed the people that they call
11 the officers, the offices of -- of treasurer and
12 secretary had not been vacated, reason being that
13 there was no convention that was organized to hold
14 elections to elect new people to those positions.
15 THE COURT: But that's only as to two
16 offices, not as to --
17 MR. STERINGER: It's only to those two
18 because the vice president position had been vacated
19 by Mr. Wagner to take the position of chair.
20 THE COURT: Mm-hmm.
21 MR. STERINGER: And the -- the chair
22 position -- when the chair position is filled on
23 account of a vacancy, the -- the -- the vice chair
24 holds that position until the end of the next
1 And we noted this in our -- in our
2 brief. There is a question about, in these
3 circumstances, what is the next convention and that
4 is because the vacancy occurred while the parties
5 were attempting to organize a convention.
6 And if next means the next one to occur,
7 then it would be two years after that. If next
8 includes the one that was ongoing at the time, then
9 -- then he would have held the position until the end
10 of that convention, but that convention never
12 So we have that issue as well. We
13 decided not to raise that issue on summary judgment.
14 THE COURT: Okay. Next.
15 MR. STERINGER: Our seventh motion is
16 against plaintiffs' claim against the Libertarian
17 Party of Oregon under ORS 65.084, which is a
18 nonprofit corporation statute. We argued before that
19 this particular statute does not apply to political
21 THE COURT: When you say before, you
22 mean under Rule 21?
23 MR. STERINGER: In Rule 21 motions.
24 THE COURT: Mm-hmm.
25 MR. STERINGER: We -- at the time, my
1 recollection was that the claim was asserted only
2 against the individuals. I could be wrong about
3 that, but I do know that the plaintiffs now assert
4 that claim against the party as well.
5 And our interpretation of the statute is
6 that while they may be able to assert claims against
7 individuals, their claim is not one that can be
8 brought against the entity itself. Now, this is --
9 this is one of the motions where the individual
10 defendants have different arguments to make, but ours
11 is -- is fairly narrow.
12 THE COURT: Okay.
13 MR. STERINGER: And then the last motion
14 that the party brought at the outset was Motion No.
15 8. The plaintiffs have asserted a claim for breach
16 of fiduciary duty against the party itself. And we
17 believe it's self-evident that a -- that the
18 organization cannot breach a fiduciary duty to the --
19 the plaintiffs.
20 THE COURT: Because?
21 MR. STERINGER: Because there's no law
22 establishing any such duty that a political party has
23 to -- to its members.
24 THE COURT: And what is the relief
25 sought, Mr. Smith, on the breach of fiduciary duty
1 claim? Is it monetary relief?
2 MR. SMITH: Your Honor, the breach of
3 fiduciary duty, it's -- it's injunctive relief and
4 declaratory relief. And the -- order them to turn
5 over the financial books, order them to notify the --
6 the Secretary of State that Mr. Wagner was not, in
7 fact, elected as he -- as he purported to be. I'd
8 have to review the complaint.
9 THE COURT: But it's not monetary
11 MR. SMITH: It's not monetary. We do
12 ask for in -- in the complaint and it's allowed for
13 in the statute, we do ask for as part of the prayer.
14 And I believe it's leave -- there's in the statute it
15 calls for leave to file a supplemental pleading after
16 you've gotten that relief. It's -- it's -- I'd have
17 to cite it. (Indiscernible).
18 THE COURT: Are you thinking about the
19 declaratory relief or the breach of fiduciary duty
21 MR. SMITH: Yeah. Maybe the declaratory
22 relief. There's a part of prayer --
23 THE COURT: I think you may be talking
24 about the declaratory relief.
25 MR. SMITH: Yeah. There's a part of the
1 prayer that --
2 THE COURT: Okay. All right. Let me
3 hear just briefly from the individual defendants who
4 are separately represented here as to what
5 Mr. Steringer indicated. And you may have some other
6 arguments with respect to certain of the plaintiffs'
7 claims. Then I'll come back to Mr. Smith.
8 Who wishes to go first?
9 MR. LEUENBERGER: Yes. Our motion
10 No. 9. And we -- we -- we adopted the Libertarian
11 Party of Oregon's Motions 1 through 8. And our
12 Motion No. 9 is that if, as plaintiffs assert,
13 Chapter 65 applies to a political party, then
14 pursuant to Chapter 65, the state committee was
15 authorized to amend the bylaws, as was the membership
16 of the LPO, authorized to amend the bylaws and that
17 they did so in accordance with ORS Chapter 65.464.
18 THE COURT: Okay. And any -- any
19 difference from --
20 MR. LEUENBERGER: And -- well, our
21 Motion 10 is --
22 THE COURT: Oh, I'm sorry.
23 MR. LEUENBERGER: -- that my client,
24 Mr. Wagner, did not breach any duty. And that's
25 basically because he was authorized by -- by state
1 statute, et cetera, as well as all the arguments made
2 by the Libertarian Party of Oregon, to do the acts
3 that he took -- take the actions that he took as
4 chairman of the -- or chairperson of the Libertarian
5 Party of Oregon.
6 THE COURT: And again, as to the
7 individual, Wagner, you seek no -- do you seek
8 monetary relief or again, just injunctive and
9 declaratory -- injunctive relief, if you will.
10 MR. SMITH: Your Honor, that's where we
11 left open under the Declaratory Relief Act the
12 ability to file that supplemental complaint after
13 declaratory relief is -- is granted against
14 Mr. Wagner personally. It's in the prayer and it's
15 in our complaint.
16 THE COURT: And do you today -- are you
17 willing to do to concede that you will not seek
18 monetary relief against Mr. Wagner or do you want
19 to -- do you reserve the right to seek monetary
21 MR. SMITH: Your Honor, once the LPO is
22 properly constituted back and this is all settled,
23 that's -- we've -- we've -- my clients have decided
24 that's an decision the entire body needs to make
25 whether they want -- what kind of remedy they want to
1 seek against Mr. Wagner.
2 THE COURT: I'm talking about this
3 lawsuit. Do you seek --
4 MR. SMITH: Right. That's why we put
5 that in there as (indiscernible).
6 THE COURT: In this lawsuit, do you
8 MR. SMITH: In this lawsuit as its pled,
9 we do not, but we ask for leave to file that later as
10 ORS Chapter 28 allows. It's the specific statutory
11 provision that allows a supplemental complaint to be
12 made after declaratory relief has been established.
13 And that is the one that reserves the
14 right -- asked for the Court to authorize, to reserve
15 the right to seek damages against Mr. Wagner for what
16 he had done.
17 THE COURT: Mr. Leuenberger, do you read
18 Chapter 28 that way? That is, that -- 'cause this
19 proceeding could end up going up to the Oregon
20 Supreme Court and back. Do they get to hold out for
21 a damage action or do they need to get the
22 declaration in in this same proceeding get the
23 damages if they wish to have them and then have that
24 all go up?
25 MR. LEUENBERGER: Well, that's my
1 understanding, Your Honor, is that if they want
2 monetary damages, they have to ask for them in
3 this -- in this lawsuit.
4 THE COURT: Okay. Now, I think I'm
5 acquainted with -- I know I'm acquainted with -- I
6 might not be adequately acquainted with the language
7 of the statute, which is that you can seek
8 declaratory relief and then -- and then -- and then
9 other relief.
10 But the question is -- if I understand
11 Mr. Smith's argument, it would be, "Well, we can seek
12 this relief and if we get it and then if we exhaust
13 any appeals and now we know that the Reeves folks are
14 in charge, then the Reeves folks can ask the
15 membership, "Should we go out and get money out of
16 Mr. Wagner?"
17 And then we can -- as if this proceeding
18 is still pending, we can then, in effect, amend the
19 complaint and say, "Wagner would pay us several
20 thousand dollars or several hundred thousand
21 dollars," or whatever.
22 Is that what you're saying, Mr. Smith?
23 MR. SMITH: Your Honor, yes. ORS 28.080
24 is what allows this.
25 THE COURT: Which says --
1 MR. SMITH: Looks like that -- I don't
2 have the statute. That's where we prayed -- that's
3 where we've made --
4 THE COURT: That's fine.
5 MR. SMITH: -- in the complaint.
6 THE COURT: I can find it.
7 MR. SMITH: 28.080 is what authorizes us
8 to do that precise thing, to make that at a later
10 THE COURT: Okay.
11 MR. SMITH: Again, also -- I'll let you
13 THE COURT: No. Wait. Mr. --
14 MR. ANDRIES: Andries. And we
15 incorporate all the prior 10 motions on behalf of my
16 clients. And we added Motion 11, which was the same
17 as Mr. Leuenberger's Motion 10, which was brought on
18 behalf of Mr. Wagner. Our Motion 11 extends that to
19 all of my clients, the remaining defendants.
20 THE COURT: Okay.
21 MR. ANDRIES: So I will let
22 Mr. Leuenberger answer questions as he was the
23 original drafter.
24 THE COURT: Okay. It's now 11 o'clock.
25 Mr. Conn?
1 MR. CONN: I'll go outside, but I --
2 THE COURT: I'm sorry?
3 MR. CONN: I'll go outside. I'll come
5 THE COURT: You mean, you'll go out on
6 the street?
7 MR. CONN: Yes.
8 THE COURT: Thank you.
9 MR. CONN: I'll see what's up and I'll
10 come back.
11 THE COURT: Thank you. Do you have a
12 cross motion? Or do you --
13 MR. SMITH: Ours was a partial motion.
14 THE COURT: Partial --
15 MR. SMITH: Motion for partial summary
16 judgment based on just the interpretation on the
17 bylaws and which bylaws govern.
18 THE COURT: And that partial motion
19 seeks what?
20 MR. SMITH: Seeks the declaration that
21 the 2009 bylaws were not changed at that March 31st
22 meeting, March 31st, 2011 meeting. We point the --
23 the 2009 bylaws show, you know, clearly that bylaws
24 can only be changed in a meeting, in a convention.
25 45 days' notice is required before a bylaw change.
1 THE COURT: Mm-hmm.
2 MR. SMITH: And that they didn't have
3 the right people there to constitute --
4 THE COURT: Anything else sought by way
5 of declaration? That's as to the bylaws.
6 MR. SMITH: On our partial summary
7 judgment, we're only asking for -- that the 2009
8 bylaws were not changed.
9 THE COURT: What about the status of
10 the -- of Reeves and others as officers?
11 MR. SMITH: I believe that's caught up
12 in questions of fact, Your Honor. If this Court
13 disagrees, we --
14 THE COURT: Well, but you're not
15 asking -- no, no, no. I'm just saying your -- your
16 -- your motion back does not go to that.
17 MR. SMITH: Does not go to that.
18 THE COURT: Is fair to me to summarize
19 your motion as, "We believe Rulebook '09 ought to
20 apply rather than Rulebook '11. Give us that
21 declaration and" --
22 MR. SMITH: Prior to trial, yeah.
23 THE COURT: "And then other things will
24 work out." Is that the way you understand it? I'm
25 not suggesting that Mr. Smith hasn't been
1 forthcoming, but is that the way you understand it,
2 Mr. Steringer?
3 MR. STERINGER: I understand Mr. Smith's
4 motion for partial summary judgment as being limited
5 to seeking a declaration that the 2009 bylaws were
6 not changed in 2011. We filed a cross motion to
8 THE COURT: Mm-hmm. Yes, as to the
9 officer status.
10 MR. STERINGER: Well --
11 THE COURT: Now -- go ahead.
12 MR. STERINGER: If I may, we actually --
13 once that was put on the table, we did file another
14 -- another motion.
15 THE COURT: Mm-hmm.
16 MR. STERINGER: We had our own cross
17 motion that -- that takes up the argument that
18 Mr. Leuenberger just mentioned; which is, again,
19 plaintiffs have argued that ORS Chapter 65 applies
20 here. And, in that case, ORS 65.464 allows the board
21 of directors of organizations to amend bylaws --
22 THE COURT: Mm-hmm.
23 MR. SMITH: -- unless articles of
24 incorporation --
25 THE COURT: Mm-hmm.
1 MR. STERINGER: Make that exclusively
2 the province of members.
3 THE COURT: Mr. Smith, do you -- do you
4 really see Chapter 248 as providing for total
5 application of Chapter 65 on the nonprofits or -- in
6 the way I read it, it -- it has very limited -- it
7 has limited application. It's as to certainly
8 liability, contract in tort.
9 It's sort of -- this is a strange --
10 this is strange animal, this political party. The
11 law always likes to have some kind of set of rules
12 governing some things or some things are really
13 important and so we'll borrow from the Chapter 65,
14 but in a very limited way.
15 And are you suggesting, "No, it's --
16 it's -- Chapter 65 comes over really in total"?
17 MR. SMITH: I think there is a strong
18 mix between the two. And I say -- Subsection (1),
19 ORS 248.004, "A minor political party or a major
20 political party shall have all the powers granted to
21 a nonprofit corporation under ORS 65.077."
22 THE COURT: Power.
23 MR. SMITH: And the power. Let me read
24 65.077. "They have the power to make and amend
25 bylaws, not inconsistent with its articles of
1 incorporation or the laws of the state for
2 regulating, managing the affairs of the corporation,
3 power to impose dues."
4 In here's a bigger one: "Conduct its
5 activities and -- and locate offices and exercise the
6 powers granted by this chapter within or without this
7 state." So there's -- there's a pretty big
8 incorporation by that specific incorporation in the
9 248 of Chapter 65.
10 "Purposes of contract, tort and other
11 liability." Well, that's what we're dealing with
12 here is we're dealing with contract in the
13 declaratory relief. We're dealing with liability in
14 the breach of duty and we're talking about derivative
15 liability in the corporate authority to act.
16 So that's exactly what we're doing. So
17 those provisions from 65 do apply. The -- the fact
18 that --
19 THE COURT: What do you do with their
20 argument with that if you want to grab ahold of that
21 principle, then you've got to grab ahold of the
22 principle that the incumbent board gets to change the
24 MR. SMITH: The board is the members.
25 They're -- again, they're skipping the --
1 THE COURT: The board is the members.
2 Who -- who --
3 MR. SMITH: ORS 248 --
4 THE COURT: Who says that?
5 MR. SMITH: The state legislature in
6 passing ORS 248.
7 THE COURT: Uh-huh.
8 MR. SMITH: 248.004(4), "Any member of a
9 governing body of a major or minor political party,
10 including local subdivisions of the party shall be
11 treated as directors of a nonprofit corporation for
12 liability in all the matters relating to political
14 THE COURT: Wait, wait, wait, wait,
15 wait. "Any member of a governing body."
16 MR. SMITH: Right. The convention is
17 the governing body of the entire Libertarian Party of
18 Oregon, the members assembled at convention. This is
19 fundamental principle.
20 THE COURT: Of what?
21 MR. SMITH: Of --
22 THE COURT: The party?
23 MR. SMITH: Organizational. The -- the
24 members at convention are the governing body of -- as
25 is -- the Libertarian Party of Oregon has a
1 Constitution and has bylaws. The Constitution says
2 who's in charge and that we --
3 THE COURT: Wait, wait, wait, wait.
4 Hold it.
5 Mr. Steringer, your thoughts on this.
6 I mean, so what you're saying is -- so
7 you're saying this is, essentially, an organization
8 that will always be governed by plebiscite.
9 MR. SMITH: Not plebiscite. The members
10 of the LPO that -- that sign up and --
11 THE COURT: Yes. Yes. Plebiscite. The
12 plebiscite of the membership. Not a board, not a
13 group of officers. Why do -- why do the bylaws that
14 you seek to have talk -- don't they talk about
15 officers and a board?
16 MR. SMITH: No.
17 THE COURT: They don't?
18 MR. SMITH: They don't talk about a
20 THE COURT: Do they, Mr. Steringer?
21 MR. SMITH: The members are the board.
22 That's the -- the board of directors is the LPO.
23 THE COURT: Mr. Steringer?
24 MR. STERINGER: No. Your Honor, I
25 guess --
1 THE COURT: Am I just missing something
3 MR. STERINGER: No, I don't think so. A
4 couple points need to be made here. We're talking
5 about ORS Chapter 65. That's where we need to start
6 with the analysis of what -- what is the board of
7 directors for purposes of ORS Chapter 65.
8 And, frankly, Mr. Smith has convinced me
9 through his citation to 65.077 that this issue of the
10 bylaws can be -- can be directly connected back to
11 Chapter 248. And so we should be looking at
12 Chapter 65 when we're talking about the authority of
13 the -- the board of directors to -- to revise bylaws.
14 Chapter -- let's see. ORS 65.001(4)
15 defines what is a board of directors for purposes of
16 Chapter 65. And what it says with apologies for
17 reading to the Court is: "A board of directors is
18 the group of individuals," quote, "vested with
19 overall management of the affairs," end quote, "of
20 the corporation."
21 And it says, "regardless of the name by
22 which they are designated." So we don't have to look
23 for a group within the -- within the organization
24 that's called a board of directors. What we look for
25 is the group of individuals vested with overall
1 management of the affairs.
2 THE COURT: Overall management.
3 MR. STERINGER: Overall management of
4 the affairs.
5 THE COURT: Mm-hmm.
6 MR. STERINGER: Then I would direct the
7 Court's attention to Article -- Article IV, Section 4
8 of the bylaws, the 2009 bylaws that the plaintiffs
9 seek to enforce here. And Article IV, Section 4,
10 says, quote, "The state committee shall be
11 responsible for the control and management of all the
12 affairs, properties and funds of the LPO."
13 THE COURT: Now, wait a minute. Article
14 IV, Section 4?
15 MR. STERINGER: That's what I have.
16 THE COURT: Is one that Exhibit 1, Page
17 3 of Burke? 'Cause my Article IV, Section -- oh,
18 Section 4. I'm sorry. This is Section 1, Subsection
19 4. Hang on. Section 4.
20 MR. STERINGER: That's --
21 THE COURT: Oh, wait a minute.
22 Endorsements by affiliate -- no. Hang on. Hang on.
23 Hang on.
24 MR. STERINGER: No. I'm sorry,
25 Your Honor. I have misdirected.
1 THE COURT: Okay.
2 MR. STERINGER: It's -- I -- I switched
3 my -- my digits on the Roman numerals. It's
4 Article VI.
5 THE COURT: Ah-hah.
6 MR. STERINGER: Section --
7 THE COURT: The dyslexic Roman.
8 MR. STERINGER: Section 1.
9 THE COURT: Article VI, Section 1. Ah.
10 "State committee shall have the sole authority,"
11 blah-blah-blah. "The state committee shall have the
12 sole authority for affiliating organizations, calling
13 special conventions, resolutions of issues pertaining
14 to vacancy, execution (indiscernible)."
15 Okay. Am I reading where you're
17 MR. STERINGER: Yeah, Your Honor. And I
18 apologize. I'm --
19 MR. SMITH: Your Honor --
20 MR. STERINGER: I'm relying on notes.
21 MR. SMITH: The Section B there is very
22 telling. "State committee has the responsibility
23 subject to direction by the LPO convention."
24 THE COURT: Mm-hmm.
25 MR. SMITH: LPO convention is in its own
1 bylaws being referred to as an entity. It's -- it's
2 a convention. That's the board of directors. This
3 is -- this is talking about --
4 MR. STERINGER: No.
5 MR. SMITH: -- limited authority.
6 THE COURT: Wait, wait, wait, wait.
7 MR. STERINGER: If I might,
8 Your Honor --
9 THE COURT: First of all -- wait. Wait.
10 First of all, the words "board of directors" don't
11 appear in these bylaws, do they?
12 MR. SMITH: No. The --
13 THE COURT: Excuse me. They don't
14 appear: Board of directors. Instead, state
15 committee and other such words are used, right?
17 Now, Mr. Leuenberger.
18 MR. LEUENBERGER: Yes. I just wanted to
19 address the concept that the LPO convention is the --
20 the highest authority. That may be true when the
21 convention is convened and has a quorum. But unless
22 it is convened, sitting in a quorum with the
23 necessary quorum, the state convention does not
25 And in the absence of the LPO convention
1 existing and having a quorum and actually meeting,
2 then the state committee is the board of directors
3 pursuant to the definition of Chapter 65.
4 THE COURT: And, again, that's not
5 because the word "board of directors" appears in the
6 articles of the Libertarian Party -- or I'm sorry --
7 the bylaws of the Libertarian Party. It's because
8 you have -- you have graciously accepted Mr. Smith's
9 invitation to have Chapter 65 apply.
10 You've then used the definition of a
11 board, which says it's the organization responsible
12 for management by whatever name called. You've taken
13 the step, here that's the state committee. And then
14 you've said, "Thank you very much. We were the state
15 committee. We did what was necessary in a critical
17 MR. STERINGER: And, Your Honor --
18 THE COURT: "We -- we win."
19 MR. STERINGER: And I apologize for --
20 for misciting the source of -- of that power. It's
21 actually the Constitution of the Libertarian Party of
22 Oregon. That is Exhibit -- looks like it's Exhibit 2
23 to the Wagner supplemental declaration.
24 THE COURT: Okay. Let me see. Wagner
25 supplemental. Oh, I've got Burke. So Wagner
1 supplemental. Here it is. Exhibit 2, you say?
2 MR. STERINGER: And it's on the first
3 page of Exhibit 2, Article IV, Section 3.
4 THE COURT: "The state committee shall
5 consist of all officers of the LPO and any directors
6 or representatives which may be defined in the
7 bylaws. The state committee shall be responsible for
8 the control and management of all the affairs,
9 properties and funds of the LPO consistent with its
10 Constitution and bylaws and with any rules or
11 resolutions which may be adopted in convention."
12 MR. LEUENBERGER: And in addition to
13 that, Article VI of the 2009 bylaws, Section 1,
14 subpart B says much the same. Says that the state
15 committee shall have the responsibility for the
16 operations of the LPO, expenditures of LPO funds --
17 MR. STERINGER: And the development and
18 implementation of party policy.
19 MR. LEUENBERGER: Right.
20 THE COURT: Mm-hmm. Subject to
21 direction by the LPO convention. Direction.
22 Mr. Smith?
23 MR. SMITH: That's right, Your Honor.
24 The state committee is subordinate to the LPO
25 convention. But here, state law trumps this. State
1 law defines who the directors are. So I don't think
2 we should escape the --
3 THE COURT: Which state law?
4 MR. SMITH: ORS 248.004(4), that the
5 member of the governing body is the director.
6 THE COURT: No, no, no, no, no, no.
7 MR. SMITH: The bylaws here give --
8 THE COURT: Well, here. You're --
9 you're proceeding from the premise that the governing
10 body of this minor political party is the convention
11 rather than the member of the state committee.
12 MR. SMITH: Right. Who have the --
13 THE COURT: Are you not? Isn't your
14 premise --
15 MR. SMITH: Exactly. Yes. Yes.
16 THE COURT: Your premise is that the
17 governing body is the convention, not the state
19 MR. SMITH: The governing -- yes.
20 THE COURT: What do you say to that,
21 Mr. Steringer?
22 MR. STERINGER: What I say is that that
23 is directly contrary to the Constitution and the
24 bylaws of the -- of the organization, which makes the
25 state committee the governing body for the
1 organization, subject to direction from the
2 convention when it is in -- when it is organized.
3 And it does -- and it is also contrary
4 to Chapter 65, which is where we really need to look
5 for the definition of a board of directors for
6 purposes of Chapter 65. And there, it talks about
7 the group of individuals charged with the affairs of
8 the corporation.
9 And the interesting thing is that the --
10 the language is almost parallel. Both of them
11 refer -- both the -- the statute in ORS Chapter 65,
12 the definition of board of directors -- board of
13 directors and the language in the constitution refer
14 to the state committee as being that --
15 THE COURT: The governing body.
16 MR. STERINGER: -- charged with the
17 affairs of the organization.
18 THE COURT: Yeah. Okay.
19 MR. SMITH: Your Honor, the -- the state
20 committee does not have the ability to change the
21 bylaws. That's the point here. The convention is
22 the higher body of authority. The limited authority
23 is given to the state committee to do certain things.
24 For instance, on May 12th, when the
25 convention --
1 THE COURT: Well, now, just a moment.
2 Just a moment. Just a moment.
3 What your opponents are arguing is that
4 they've accepted your invitation to apply Chapter 65.
5 And Chapter 65 gives the board -- Chapter -- if I
6 understand it, Chapter 65, essentially, trumps the
7 organizational documents of the party and says the
8 state committee has this authority.
9 MR. STERINGER: Well, it --
10 MR. LEUENBERGER: Technically --
11 MR. STERINGER: It trumps the bylaws.
12 THE COURT: Trumps the bylaws.
13 MR. LEUENBERGER: Yes.
14 MR. STERINGER: If the bylaws say
15 anything about how the bylaws are to be amended, that
16 is trumped by ORS Chapter 65. If there are articles
17 of incorporation that limit the ability of the state
18 committee to amend the bylaws, then ORS Chapter 65
19 respects that.
20 THE COURT: But you're saying there are
21 no articles here.
22 MR. STERINGER: There are no articles.
23 And if --
24 THE COURT: Is there anything in what's
25 referred to as to constitution of the
1 Libertarian Party that restricts that?
2 MR. STERINGER: The -- the -- the
3 constitution does not limit the means for -- or even
4 talk about amendment of the bylaws.
5 MR. SMITH: We disagree with that,
6 Your Honor.
7 THE COURT: Okay. Well, then tell me
8 where it would have --
9 MR. SMITH: The Constitution says
10 that --
11 THE COURT: Excuse me. Take me to the
12 specific text of the Constitution on which you rely.
13 MR. SMITH: I am digging up my copy.
14 We've cited this in our brief. I'll dig up a copy of
15 the Constitution here where it says --
16 THE COURT: Do you remember the article?
17 MR. SMITH: I do not remember off the
18 top of my head, Your Honor. Let me find if somebody
19 has a copy handy. I can find it in my brief.
20 THE COURT: The bylaws are hereby
21 affixed to and subordinate to this Constitution.
22 MR. SMITH: And the state -- there's a
23 provision in there that talks about the state
24 committee being subordinate to the LPO convention,
25 the Constitution --
1 THE COURT: No, no, no, no. I don't
2 worry about that. I just -- I asked you: Is there
3 anything in the constitution of the Libertarian
4 Party, which purports to restrict the state committee
5 from taking action with respect to the bylaws?
6 MR. SMITH: Yes. It says they must
7 follow the bylaws.
8 THE COURT: Excuse me. There's a been
9 difference between, "You must follow," and "You may
10 not change." Those are two fundamentally different
11 legal concepts. So take me to the Libertarian Party
12 Constitution, the text on which you rely for this
14 MR. SMITH: "But the state committee
15 shall" --
16 THE COURT: Which -- the text are you
18 MR. SMITH: Oh, Article IV, Section 3.
19 THE COURT: See IV, 3. "The state
20 committee shall consist of all officers, the officers
21 that are defined in the bylaws; shall responsible for
22 the control and management of all affairs."
23 Your opponents applaud that language.
24 MR. SMITH: Sure. And the rest of it.
25 THE COURT: "Properties and funds
1 consistent with the Constitution and bylaws and with
2 any rules or resolutions that may be adopted."
3 MR. SMITH: Right.
4 THE COURT: But, of course, what this
5 doesn't say is the state committee may not amend the
7 MR. SMITH: Does not say that. Says
8 they must follow the bylaws.
9 THE COURT: Yeah.
10 MR. SMITH: And the bylaws say how
11 amendments to the bylaws can take place.
12 THE COURT: But your opponents have
13 said, "Ah, but that all gets overridden by the fact
14 that you have invoked the paramount authority of
15 Chapter 65."
16 MR. SMITH: Only if --
17 THE COURT: And they say, "Thank you
18 very much."
19 MR. SMITH: Only if there's an
21 THE COURT: Why is that?
22 MR. SMITH: Because Chapter 65 does not
23 purport to declare what's in their bylaws. It says,
24 you know, if your -- if your articles don't --
25 THE COURT: No, no, no, no. You -- you
1 provided it. You provided it when you read 65.077.
2 The powers include the power to have -- to make and
3 change bylaws, right?
4 MR. SMITH: Correct.
5 MR. STERINGER: Well, that's true.
6 And -- and what ORS 65.464 says is that the board has
7 the power to do that unless the articles of
8 incorporation --
9 THE COURT: Sure. Which, essentially,
10 says that unlike what may be true in any other
11 business organization in the area of Chapter 65
12 corporations, these boards have got some muscle,
13 unless the articles say otherwise, to which I think
14 Mr. Steringer's argument is number one, there ain't
15 any articles. There aren't any articles.
16 And, number two, even if we treat the
17 Constitution as an analogue to articles, it doesn't
18 say the board can't change the bylaws. And he says
19 game, set, match, right?
20 MR. STERINGER: Yes, Your Honor.
21 MR. SMITH: Your Honor, 248.004 says,
22 "Any member of a governing body." It doesn't have to
23 say the governing body is the director.
24 THE COURT: Well, how many governing
25 bodies are there here?
1 MR. SMITH: The -- with respect to the
2 bylaws, there's one.
3 THE COURT: No, no. Listen to my
4 question. How many governing bodies do you purport,
5 do you argue, exist?
6 MR. SMITH: There would be the LPO
7 convention. There would be a state committee. There
8 would be county-affiliated parties. Those would be
9 all different governing bodies of LPO entities.
10 THE COURT: But as to the LPO itself.
11 MR. SMITH: The LPO in convention is the
12 ultimate authority.
13 THE COURT: But it may not be the
14 governing body, because it's also true in
15 corporations that there are boards of directors who
16 are the governing body, but they're not the ultimate
17 authority. The ultimate authority are the
18 shareholders at the shareholder meeting.
19 MR. SMITH: I understand that could be
20 true, Your Honor, but there's nothing on the record
21 that would state that that is even close to the
22 reality here. There is -- there was never any
23 suggestion that the state committee prior to this
24 could ever change the bylaws. Why would they have
25 been struggling with --
1 THE COURT: Well, just a moment. Just a
2 moment. Just a moment. That's the argument from
3 silence. That doesn't work, because we -- until you
4 have a fight, it doesn't occur to anybody to solve
5 the fight.
6 So the argument, "Well, we -- we must
7 win because it's never occurred before," why don't
8 they win because it's never occurred before?
9 MR. SMITH: Because it go to the
10 interpretation of -- what's at stake here really is
11 who is the board of directors in this? Which --
12 which entity is the board of directors that's
13 authorized to change the bylaws?
14 Is the board of directors the convention
15 or is the board of directors, as they suggest, the
16 state committee?
17 THE COURT: Well, that's -- that's --
18 MR. SMITH: And all of the evidence --
19 THE COURT: Boy, you're making it easier
20 for me.
21 MR. SMITH: All of the evidence goes to
22 say that the board of directors is the convention.
23 The bylaws say how they can change the bylaws.
24 THE COURT: Just a moment. Just a
25 moment. I'm going to have one more --
1 Mr. Conn?
2 MR. CONN: I didn't see him here.
3 THE COURT: Okay. Come forward. Let's
4 take a brief recess on -- not recess, literally
5 brief. Don't even change your positions and be
6 careful about whispering.
7 Mr. Conn, come to --
8 (Recess taken, 11:24 a.m. - 11:28 a.m.).
9 THE COURT: Okay. We're going to take
10 about five more minutes and then I'm going to take it
11 under advisement. What do you have finally for me
12 in -- in your three of those five minutes?
13 MR. SMITH: Okay.
14 THE COURT: What do you want me to
15 remember or particularly focus on?
16 MR. SMITH: Yes, Your Honor. I haven't
17 gotten to go through the exact standing requirements
18 yet, because we abandoned that ship. But I want to
19 point out first, when you're thinking about who could
20 change the bylaws, the Constitution also would have
21 had to have been changed and repealed.
22 The Constitution specifically says --
23 the Constitution is the articles. How could they go
24 about changing the Constitution?
25 THE COURT: What do you mean, the
1 constitution is the articles? What are we talking
2 about here?
3 MR. SMITH: Under the ORS 65 argument
4 about who could change the bylaws and who is the
5 board of directors.
6 THE COURT: Yeah.
7 MR. SMITH: The LPO Constitution is also
8 their governing document under their -- their words,
9 "the ultimate governing document." And that would
10 still be in effect.
11 If they -- if they somehow had to power
12 to change the bylaws in a state committee meeting,
13 the Constitution itself clearly says they don't have
14 the power to change the Constitution.
15 THE COURT: Where does it say that?
16 MR. SMITH: The Constitution --
17 THE COURT: Well, first of all, they
18 didn't purport to change the Constitution.
19 MR. SMITH: I don't take -- then it is
20 still sitting there. Then it -- then it would be
21 still sitting there. The Constitution --
22 THE COURT: What -- what do you mean? I
23 don't understand what you are saying.
24 MR. SMITH: The 2009 -- the Constitution
25 that was in place from 2009 and up until March of
1 2011 would then be in -- still in place, even if they
2 have the power to amend the bylaws.
3 THE COURT: And I have it here as
4 Exhibit 2.
5 MR. SMITH: Okay.
6 THE COURT: And so what are you
7 invoking? What language from it are you invoking?
8 MR. SMITH: Article VIII would get to
9 amendments of the Constitution.
10 THE COURT: Article -- hang on just a
11 moment. Article VIII. But I don't understand your
12 argument that in order for -- in order for an
13 incumbent board to amend the bylaws, they have to
14 amend the -- the equivalent of the articles of the
15 Constitution. Where do you get that?
16 MR. SMITH: From Article XIII,
17 Your Honor, that the Constitution -- I don't want to
18 waste my three minutes if that's all I have on this
19 argument. You can point it out under advisement.
20 If you can think logically about the
21 fact that if the bylaws were somehow changed by the
22 state committee rather than the convention, wouldn't
23 they all -- somehow have the power to change the
24 Constitution? And they don't. It's -- it's an
25 example --
1 THE COURT: No. The -- the answer's no,
2 they wouldn't.
3 MR. SMITH: It's an example. Okay. So
4 they could not change that.
5 THE COURT: They wouldn't.
6 I mean, Mr. Steringer, you wouldn't
7 claim that, would you?
8 MR. STERINGER: Your Honor, the -- the
9 question of the -- the 2007 bylaws isn't before the
11 THE COURT: No. 2009 bylaws.
12 MR. LEUENBERGER: 2007 --
13 MR. STERINGER: I'm sorry. 2007
14 Constitution is not before the Court.
15 THE COURT: Okay. Very well.
16 MR. SMITH: Your Honor, getting quickly
17 to the rest of my three minutes here.
18 THE COURT: Yeah.
19 MR. SMITH: Again, we'll point out that
20 the -- there's declarations explaining this. The
21 2007 convention took the power away from the state
22 committee to change the bylaws.
23 So in 2007, the previous bylaws gave the
24 state committee that power, but that was removed in
25 the 2007 changes we talked about that were proposed
1 by Mr. Wagner and adopted.
2 THE COURT: And that's in the record.
3 MR. SMITH: That's -- the declaration
4 talks about those changes, yes.
5 THE COURT: And what do you say to that?
6 2007 --
7 MR. SMITH: Took away the power of the
8 state --
9 THE COURT: -- convention?
10 MR. SMITH: The changes that were done
11 in 2007 at the convention, yes, the bylaw changes.
12 Same ones that changed the quorum requirement.
13 THE COURT: Well, those would be found
14 in the 2009 bylaws, right?
15 MR. SMITH: Right.
16 THE COURT: And what is it in the 2009
17 bylaws that says they can't by changed by the board?
18 MR. SMITH: It's -- this is evidence
19 that that's not just -- they can be changed by the
20 board, but the state committee is not the board is
21 what we're saying.
22 THE COURT: And what language in the --
23 in the 2009 bylaws, on what language do you rely?
24 MR. SMITH: Statutory interpretation
1 THE COURT: No, no. I assume you're
2 relying on language in the bylaws themselves.
3 MR. SMITH: Talking about physical
4 evidence of what used to be, does no longer. It
5 used -- the state committee used to be --
6 THE COURT: I don't understand. I do
7 not understand what you are saying, sir.
8 MR. SMITH: Under the rules of statutory
9 construction -- here, we're interpreting a document.
10 THE COURT: Wait a minute. Wait, wait,
11 wait. You started me on this trip with a reference
12 to the 2007 convention of the party.
13 MR. SMITH: Mm-hmm.
14 THE COURT: At that point, I'm not -- I
15 don't care about Oregon statutes. You've now invited
16 me to look at some kind of action of the 2007
17 convention. And I'm asking you, what document
18 reflects the action on which you rely?
19 MR. SMITH: The 2009 bylaws do not state
20 -- say the state committee has the power to change
21 the bylaws, but they used to.
22 THE COURT: Do they say -- excuse me.
23 Do they say that they do not have the
24 power to change the bylaws?
25 MR. SMITH: Yes, we believe so.
1 THE COURT: Where? You believe so.
2 MR. SMITH: That the convention is --
3 THE COURT: No, no, no.
4 MR. SMITH: Yes, Your Honor.
5 THE COURT: Where do they say it?
6 Which --
7 MR. SMITH: Article -- Article XVI,
8 "Amendment Procedures."
9 THE COURT: Article XVI, "Amendment
10 Procedures." Okay. "Proposed amendments to this
11 Constitution and bylaws shall be entered in the
12 agenda for the convention."
13 Okay. And you're saying there it is.
14 MR. SMITH: All three of those, yeah.
15 THE COURT: You've got to do it at
17 And, Mr. Steringer, what do you say
18 about this restriction in the bylaws themselves?
19 MR. STERINGER: The -- the only
20 restrictions contained in Article XVI are
21 restrictions on a -- on an amendment process --
22 process that is carried out under Article XVI.
23 This provides one means for amending a
24 bylaws, through a convention process. And we've
25 identified -- and it doesn't purport -- we can
1 look -- we can look at this for a long time, and we
2 will not find any words in Article XVI saying that
3 this is the exclusive method of amending the bylaws.
4 And as a result, we are allowed to look at other
5 appropriate means of amending bylaws.
6 THE COURT: Including Chapter 65.
7 MR. STERINGER: Well, 65 is the case
8 notwithstanding anything that is in the bylaws.
9 THE COURT: Mm-hmm.
10 MR. STERINGER: We don't even look at
11 the bylaws for -- for the purpose of interpreting
12 Chapter 65.
13 THE COURT: Okay.
14 MR. SMITH: Your Honor, if I can go --
15 THE COURT: Where else would you look?
16 MR. STERINGER: We would look to ORS --
17 we talked about it some -- ORS 248 I think it's 072,
18 the general power -- yeah. 248.072, the general
19 power granted to the state central committee. We
20 argue that the analogue for the purposes of the
21 Libertarian Party of Oregon is the state committee.
22 THE COURT: Mm-hmm.
23 MR. STERINGER: Has the -- the power to
24 adopt rules or resolutions for any matter of party
25 government. We invoked the rule of the necessity
1 under the circumstances. And -- and then, of course,
2 ORS Chapter 65.
3 THE COURT: Okay. Back to Mr. Smith.
4 MR. SMITH: Your Honor, I want to point
5 out before we get too far -- close to the end here on
6 our standing argument -- ORS 28.020 gives, quote,
7 "any person interested under a written contract or
8 other writing the right to sue."
9 So we're talking about the timeline and
10 when is it relevant. It's any person interested.
11 Membership rights changed, that would be interest.
12 If officers were lost, that would be an interested
13 person under -- under that statute. We can save time
14 if you want to look that up. That's why I'm trying
15 to give my closing comment here --
16 THE COURT: Go ahead.
17 MR. SMITH: -- on things to keep in
19 As to our second -- our second claim for
20 relief, I'd ask you to look at 65.172, which talks
21 about that the -- "shall have been a member when the
22 transaction complained of occurred." So back when
23 this transaction complained of, the illegitimate
24 bylaw change. That's the requirement for the second
25 claim for relief under 65.084.
1 And the third one, breach of fiduciary
2 duty, the same thing, it's a suit against an officer
3 under the -- and it's "shall have been a member when
4 the transaction occurred." We have covered that in
5 great detail in our brief. If you want to reference
6 back, those things are cited in our brief as to the
7 standing argument. I wanted to make sure that --
8 point that out.
9 THE COURT: Okay. Anything, finally,
10 Mr. Steringer or Mr. Leuenberger or Mr. --
11 MR. ANDRIES: Andries.
12 THE COURT: -- Andries?
13 MR. STERINGER: Your Honor, I think
14 we've covered the -- the -- the issues, so I'd have
15 no further argument.
16 MR. LEUENBERGER: I agree.
17 MR. ANDRIES: I agree.
18 THE COURT: Thank you all. I'll take it
19 under advisement.
20 When do you have your trial?
21 MR. STERINGER: July 9th.
22 * * *
23 (Court adjourned, Volume 4, 5-16-13 at 11:36 a.m.)
Reporter's Certificate 269
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
7 HENRY C. BREITHAUPT, Circuit Judge, on May 16, 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 4 of 5,
12 Pages 133 through 268, both inclusive, constitutes a
13 full, true and accurate record of said proceedings
14 taken from a CD and so reported by me in stenotype as
16 Witness my hand and CSR Seal at
17 Portland, Oregon, this 10th day of March, 2014.
Katie Bradford, CSR 90-0148
21 Court Reporter