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