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IN THE CIRCUIT COURT OF THE STATE OF OREGON FOR THE COUNTY OF CLACKAMAS TIM REEVES, ERIC SAUB, GREG ) BURNETT, as the Libertarian ) Party of Oregon; DAVID TERRY,) M. CARLING and RICHARD BURKE,) as members of the Libertarian) Party of Oregon, ) ) Plaintiffs, ) ) and ) ) CARLA PEALER, as the ) Libertarian Party of Oregon, ) ) Plaintiff, ) ) v. ) ) WES WAGNER, HARRY JOE TABOR, ) MARK VETANEN, BRUCE KNIGHT, ) JEFF WESTON, JIM KARLOCK, ) RICHARD SKYBA, and JEFF ) WESTON, individuals; and ) LIBERTARIAN PARTY OF OREGON, ) ) Defendants, ) ) and ) ) JOSEPH SHELLEY, ) ) Defendant. )

Clackamas County Circuit Court No. CV12010345 CA A155618 Volume 5 of 5

TRANSCRIPT OF PROCEEDINGS ON APPEAL BE IT REMEMBERED that the above-entitled Court and cause came on regularly for hearing before the Honorable Henry C. Breithaupt, on Thursday, the 1st day of August, 2013, at the Clackamas County Courthouse, Holman Hearing Room, Oregon City, Oregon.

Appearances 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 August 1, 2013 Proceedings Case Called; Parties Introduced Defendants' Motion for Findings Plaintiffs' Argument by Mr. Smith Defendants' Argument by Mr. Steringer Matter Taken Under Advisement Reporter's Certificate * * * Proceedings recorded by digital sound recording; transcript provided by Certified Shorthand Reporter. * * * GENERAL INDEX VOLUME 5 KATIE BRADFORD, CSR 90-0148 Court Reporter (503) 267-5112 Robert Steringer, James Leuenberger and Colin Andries, Attorneys at Law, Appearing on behalf of the Defendants. * * * APPEARANCES Tyler Smith, Attorney at Law, Appearing on behalf of the Plaintiffs;

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Page No. 272 272 273 319 326 326 328

272 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Mr. Wagner. MR. STERINGER: Libertarian Party of Oregon. THE COURT: Thank you. Colin Andries for the Bob Steringer for the (Volume 5, Thursday, August 1, 2013, 10:44 a.m.) P R O C E E D I N G S (Whereupon, the following proceedings were held in open court:) THE COURT: All right. Is everyone here

for Reeves versus Wagner?

Please come forward.

(Whispered discussion, off the record, 10:44 a.m. - 10:45 a.m.) THE COURT: Okay. We are on the record

in Reeves versus Libertarian Party of Oregon and others. If counsel would introduce themselves for the record. MR. SMITH: Thank you, Your Honor. With me are

Tyler Smith for the plaintiffs.

Mr. Tim Reeves, Mr. Greg Burnett, Mr. Richard Burke. THE COURT: Okay. James Leuenberger for

MR. LEUENBERGER:

MR. ANDRIES: remaining defendants. THE COURT:

Thank you.

All right.

We

273 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Your Honor. Your Honor. THE COURT: MR. SMITH: THE COURT: Any different view? That's correct, Your Honor. And following -- and, of But Your Honor. THE COURT: If those findings were made are here on defendants' motion for findings under 20.105, correct? MR. STERINGER: That's correct,

as -- if, big word -- if those findings were made as you request them to be made, that would be -- as I understand, it would be a step, but only a step in the process of obtaining an attorney fee award under Rule 68. Am I correct? MR. STERINGER: That is correct,

course, if they were not made, things would end. if they were made, then we would move -- would we

then be -- we would then be beyond the entitlement stage and we would be to the amount stage of the Rule 68 proceeding. MR. STERINGER: That's right,

We would expect that after this

proceeding is closed, I -- I hope that we can work with plaintiffs' counsel to agree on a form of general judgment that we could submit.

274 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 fact. you. Mr. Smith? MR. SMITH: I think that's procedurally And following that, we would submit a statement of attorney fees under Rule 68. THE COURT: Any different view,

how it would go, Your Honor. THE COURT: Okay. Very good. Thank

By the way, you're welcome to remain seated.

If you wish to stand, you're welcome to, but you don't need to. MR. STERINGER: THE COURT: Thank you. So -- and I'm Obviously,

All right.

just going to look at plaintiffs' motion.

the heart of this is that, "Plaintiffs' claims lacked an objectively reasonable basis at the time they were filed for two reasons: One, the law of," I'll call

it, the First Amendment. "Secondly, the arguably preclusive or other effect of the prior ruling of Judge Hernandez in Wagner v. Libertarian Party of Oregon." And then a series of other statements of For example, Plaintiff Richard Burke claimed

to speak for all plaintiffs; Plaintiff Richard Burke directed the LPO's participation in the Circuit Court case in Washington County, that sort of thing.

275 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Then a conclusion, defendants are entitled to recover reasonable attorney fees under 2105 and would be awarded pursuant to 68. Okay. So my first question, given the

nature of some of these statements in the motion is did anybody expect to put on evidence today or have you put your evidence in in the form of affidavits or other matters? MR. SMITH: Your Honor, I did not

expect -- did not expect to put on evidence, but there is an development that's arisen that I was going to bring up in my oral argument. THE COURT: MR. SMITH: And that development is -That development is the

Libertarian Party of Oregon's general counsel, Oren Grover, who had been the general counsel of the party before this dispute arose is still in possession of physical property and furniture, furnishings, office supplies and the records and files of the Libertarian Party of Oregon. He was waiting for and is still waiting for this Court to decide this matter in order to know whom to give that property to. He called me last

week and told me his intention of filing a motion to intervene based on this Court's, you know, current

276 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Your Honor. THE COURT: you aware of this? Okay. Mr. Steringer, are order, and called me this morning letting me know obviously he had not had a chance to do that, but asked me the inform the Court he didn't, and expect to do that. THE COURT: MR. SMITH: Intervene in what? In this dispute. Ask this

Court to do something so that somebody knows who's got the property. THE COURT: To intervene in this dispute

regarding attorney's fees? MR. SMITH: No, Your Honor, in the

lawsuit, in the larger lawsuit. THE COURT: Then why would that in any Maybe Maybe

way affect what we're doing here this morning? -- maybe you weren't suggesting that it would. you were just reporting to me a development. MR. SMITH: Yes.

That's basically it,

Well, I suppose it in the nature

of -- he may be -- he may be in a position of someone who wishes to in plead the furniture and equipment. MR. STERINGER: going through my mind. That was the thought

I am aware of the fact that

Mr. Grover has these materials and we've been in

277 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 to -- okay. discussions about how to deal with them. This is

news to me that Mr. Grover might think that intervention is the way to resolve that. THE COURT: Well, Mr. Grover -- is

Mr. Grover himself an attorney? MR. SMITH: THE COURT: that, didn't you? MR. SMITH: asked about the facts. And I mentioned that. You He is, Your Honor. Okay. I guess you did say

There was an e-mail that he

was written to Mr. Steringer that I was going to read from where he was saying that having been present at the board meeting when the judicial committee was eviscerated and the -THE COURT: MR. SMITH: I won't. THE COURT: At this stage, all I want to Hold it. Hold it. Hold it.

That's what I was going

hear about for now is -- well, you said there's a development. The development is someone named Grover

is uncertain what to do with the things he -- of which he has physical possession. out, I'm sure. He'll figure that

It's not an unusual problem.

But -- well, it doesn't occur that often, but it's not that unusual. The law has ways

278 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 of dealing with determining what a custodian of some property should do when they are maybe two or more parties contending for it. But we're here now and Any

you do not have -- anything for the record? evidence to be taken today?

If not, let's go to a discussion of what I have already in the record. MR. STERINGER: Defendants do not intend

to offer additional evidence. THE COURT: All right. I can have -- I

can have you repeat your -- what you've written in your papers and I will do that for the purpose of having a brief discussion. Mr. Smith, let's take the -- the law of the First Amendment. Let's -- let's -- because it's,

A, it's first; and, B, it's the First Amendment. And I know you've said, for example, "Well, there's somebody at the Secretary of State's office who said X and that ought to be enough for us to get beyond an attorney fee exposure." Mr. Steringer, for example, says, "No, you know, that can't be." So let's just take the

points you've raised in your paper and move fairly quickly. MR. SMITH: Okay.

279 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: Anything to add to -- I

mean, I think Mr. Steringer is basically saying, "Well, now, just a moment. You can't go out and say,

'Well, I saw somebody on the street and I asked him about this and'" -- no, he's not quite saying that, 'cause after all, he's an employee of the Secretary of State. But how does that give you an objectively reasonable basis? Remember, we -- that's

divided in the statute or in the case law into fact and law. I'm assuming you're claiming law. That is,

the shield you want is a legal shield or a shield regarding the legal basis, not the factual basis. MR. SMITH: to answer that. Yes, Your Honor. Let me try

And I'll direct you towards the

First Amendment, as you said. I don't believe that the defendants here made a big distinction in their motion on whether they were saying our argument's on fact or law were their basis, so we're addressing both in our memorandum. And today, I'm addressing both. But I

think you're right. Motion -- subject matter jurisdiction, the case on point on that is -- is Specialty Risk Services, 213 Or App 620, 624 to 625 is a question of

280 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 law, so -THE COURT: I'm saying is this. No, no, no, no, no. What

Unless I'm missing something, My clients

what Mr. Steringer is saying is, "Look.

have been put to a lot of trouble and expense by Mr. Smith's clients. Mr. Smith's clients didn't have

an objectively reasonable basis for starting this fight. They should have known. "In fact, they knew. They had used

exactly the same legal doctrines themselves successfully." And in the face of that, under the

First Amendment, forget the preclusive effective whatever Judge Hernandez said, Mr. Steringer at this point is simply saying, "You can't say, 'Well, we didn't know about the First Amendment doctrines that say Courts stay out of fights.' "And because you knew about them or should have known about them, when you take" -- this is Mr. Steringer talking -- "when you take my clients around the block and they have to hire me and spend money and then you lose for precisely the reason that you lost, it's objectively -- that -- I ought to get attorney's fees under 2105, because I pass over the somewhat high hurdle of no objectively reasonable basis in law."

281 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 going there. MR. SMITH: And, Your Honor, I'm -- I'm

I didn't even get a chance to state the I disagree

standard that I think we're subject to.

100 percent with the hypothetical argument that you're saying he's making, the argument that he's making on that. First amendment, the reason the First Amendment does not operate the way they say, going directly to the First Amendment -- and I'll address the Secretary of State in this. The First Amendment

-- first, we're not saying solely because the Secretary of State said that, that alone is the only reason. THE COURT: MR. SMITH: Mm-hmm. Here -- here the legal

standard under Williams is entirely void of legal or factual support. those. And here we have support on both of The Secretary of

We have lots of support.

State's statement that you have to go to court is factual support. It's factual support that a reasonable attorney would listen to the director of elections when he says, "The only way to resolve this elections dispute is by going to court." THE COURT: Stop just a moment. You're

282 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 say? MR. STERINGER: The -- the opinion of Your Honor. THE COURT: MR. SMITH: has -- I'm sorry. THE COURT: Mr. Steringer, what do you Okay. Now, Mr. -again. support? MR. SMITH: It would go to that. I mean claiming it's factual support. MR. SMITH: The director of elections --

it's factual support for that. THE COURT: Are you claiming it's legal

the director of elections has -THE COURT: Well, here. Let's try this

It's a simple question.

It requires either

yes, no or I don't know. Are you claiming that the statement of the Secretary of State's employee is legal support for your having brought the claim? MR. SMITH: It would be both,

The director of elections

Mr. Trout would not provide factual support for the claims that were alleged. And I -- I think it's

important that we -- we, here, draw a distinction between the claims that were alleged and the

283 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 subjective mindset of the plaintiffs in deciding whether or not to file their claims. THE COURT: Because subjective -- it's

objectively reasonable is the standard. MR. STERINGER: Exactly. And if

Mr. Trout said something to Mr. Smith that would make Mr. Smith and his clients subjectively believe that they had a stronger case than they actually had, that's irrelevant. So then the question is: Did

Mr. Trout's statement have any factual bearing on the claims themselves? And I honestly can't -- I can't draw any -- any connection between Mr. Trout's statement and the claims that were alleged here as far as being relevant to those claims. THE COURT: MR. SMITH: Okay. Mr. Smith?

Your Honor, Mr. Steringer

made the exact same claim that we made for declaratory relief. declaratory relief. How could it be objectively unreasonable for us to make a declaratory relief claim -- for him to make a declaratory relief claim and for only for us for it to be objectively unreasonable? THE COURT: Easy. His first counterclaim is

284 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ridiculous. that -THE COURT: And there's -- and to answer I mean, Look. MR. SMITH: THE COURT: Then how -- how could -It's easy. I mean, come on. The

There are winners and there are losers.

reason we have the attorney fee statute is when you lose and you lose for a really good reason that you knew or should have known about, you get to pay the other side's fees because you can't just take them around the block. MR. SMITH: And -- and, Your Honor,

your question, that's what happens.

otherwise, everybody who not only defended against a claim but made a currently claim would be faced with the argument, "Well, you can't recover attorney's fees because, after all, you made a claim as well." I mean, that's ridiculous. MR. SMITH: I'm pointing it out,

Your Honor, because it's the exact same claim. THE COURT: You lost. MR. SMITH: THE COURT: I don't care. They won. And, Your Honor -I'm saying they necessarily It's

get attorney's fees, but the argument that because they fired back, therefore, my having taken out the

285 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 objective -THE COURT: Was this argued as a subject gun and shot it first is okay? MR. SMITH: Your Honor, that's not -The reason

that's not where I was going with that.

that it's that way is they made the claim that it was objectively reasonable from the get-go. Redman -THE COURT: MR. SMITH: THE COURT: claim that what was -MR. SMITH: The defendants have made the Wait, wait. Hold it. Judge

The defendants -Hold it. They made the

claim that our -- made the argument that our claims were objectively reasonable from the get-go. THE COURT: MR. SMITH: THE COURT: MR. SMITH: Objectively reasonable? Objectively unreasonable. That's what I didn't follow. However, they made that

exact same -- they made the argument, this exact same summary motion subject matter jurisdiction argument to Judge Redman. jurisdiction. Judge Redman ruled that we did have

How could it -Was this --- it could not be

THE COURT: MR. SMITH:

286 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 law. THE COURT: all, what did he do? What did -- well, first of please. MR. SMITH: -- ruled on a question of it. matter jurisdiction claim? MR. SMITH: It was, Your Honor. July --

the order came out July 10th, 2012.

We twice briefed

that exact issue and we twice had oral argument on this exact issue. April 9th -Now, wait. Hold it. Hold

THE COURT:

I'm done -- I don't want to hear this for the I've heard it too many times. I mean, I I

15th time.

know it's there.

I don't need to hear it again.

mean, now we need to analyze it. What's the significance of what Judge Redman ruled? Judge Redman do? MR. SMITH: That's why I was talking Subject First of all, what did

about the question of law, Your Honor.

matter jurisdiction in Oregon is a question of law. He -THE COURT: No, no. Listen. Listen,

He entered an order, right? Correct. In the face of a motion

MR. SMITH: THE COURT:

287 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 for -MR. SMITH: THE COURT: MR. SMITH: THE COURT: MR. SMITH: THE COURT: MR. SMITH: THE COURT: To dismiss. On the basis of -Jurisdiction. And he said -And other things. -- there's jurisdiction. Correct. How does that get you

around -- I mean, Judge Hernandez had jurisdiction when he decided, "We don't get into -- Courts don't get into political party squabbles." what's a jurisdiction question. MR. SMITH: Your -- your ruling said They I don't see

that this Court didn't have jurisdiction.

argued -- they're argument was that this Court didn't have jurisdiction under the First Amendment. THE COURT: Mr. Steringer? Our argument was that

MR. STERINGER:

the claims were not judicable. THE COURT: MR. SMITH: Right. And what we pointed out is Now, let me get to

that the claims are judicable.

the First Amendment piece that they are judicable, because when we look at the Eu case, the whole of the

288 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 middle. THE COURT: Mr. Smith -- Mr. Smith, case. MR. SMITH: In -- in the Cousins v. Eu case, the facts are so dissimilar to this case. THE COURT: I'm not worried about the Eu

Wigoda case, the facts were so distinguished in the Cousins v. Wigoda -THE COURT: MR. SMITH: Mr. Smith --- that we're here in the

every single case that I've seen is a winner for Steringer and a loser for you. MR. SMITH: THE COURT: Your Honor -With the exception perhaps

of the cases that Mr. Steringer points out were some -- were a group in change for receiving federal funding agreed by contract to do certain (indiscernible). MR. SMITH: Your Honor, we listed out

five cases that were from Federal District Courts where the Court specifically interpreted, applied bylaws and incorporated Robert's Rules because it was incorporated in those bylaws to adjudicate that dispute. That's all we were asking for, for this

Court to take --

289 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 And -THE COURT: No, no, sir, please. THE COURT: Mr. Steringer?

Mr. Steringer, do you recognize these five cases? MR. STERINGER: We have provided

briefing on that and I can -- I actually brought them, I believe. We can go through and -Why don't we? -- talk again about --

THE COURT:

MR. STERINGER: MR. SMITH:

Okay. -- why not one of those

MR. STERINGER:

cases involved a Court deciding what bylaws were in effect for a political party or deciding the identity of leaders within a party. THE COURT: MR. SMITH: Internal governance. But they also -Deciding an internal

MR. STERINGER: dispute, correct. THE COURT: MR. SMITH: can't do it either.

All right.

Why don't you --

But none of them say you

That's the point. Oh, now, that -- okay. Big loser. Doesn't

THE COURT: Right now -- hold it. help you. Hurts you. MR. SMITH:

Loser.

I've cited them, Your Honor.

290 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 v. Gargan. THE COURT: Mr. Steringer. Gargan. Your Honor. those cases. minute? THE COURT: MR. SMITH: Yes. What's the first case? something. MR. SMITH: THE COURT: I understand. Saying that they -- you need

You can't say, "Well, they don't say it.

They don't -- they don't tell me what" -- you know the point. MR. SMITH: I know the point,

I -- I've put in the parentheticals in You want me to just hold on for a

First, there's Reform Party

MR. STERINGER:

Gargan involves the

Reform Party, which was receiving federal funds under the Presidential Election Campaign Act; and, therefore, had to agree to be bound by certain organizational requirements. THE COURT: argument, essentially. MR. STERINGER: MR. SMITH: Correct, Your Honor. This is the contract

And they specifically

applied their Constitution and Robert's Rules of Order in that case to make the outcome of the case. THE COURT: Was it decided under the

291 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 because -MR. SMITH: THE COURT: They can do it. It arises by contract. They use. Next. First Amendment? MR. SMITH: nothing to do with it. THE COURT: No. Thank you. Good. No. The First Amendment had

First Amendment had nothing to do with You could not have said it more eloquently. It's irrelevant. Next. MR. SMITH: Your Honor, I would -- I

would -- I'll go move on. THE COURT: No. It's irrelevant

agreed that they would do certain things in exchange for funding. MR. SMITH: THE COURT: And -It wasn't a free-standing,

"Courts are now going to intervene and tell you how to run your affairs." MR. SMITH: And as you pointed out, There's

there's contracts in this case.

free-standing contracts that will be enforced. THE COURT: MR. SMITH: Mr. Smith. Okay.

292 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 v. -MR. SMITH: THE COURT: Riddell, R-i-d-d-e-l-l. Mr. Steringer. My understanding of that THE COURT: MR. SMITH: Next case. Jackson v. Riddell. The

court was specifically -THE COURT: Hang on. Hang on. Jackson

MR. STERINGER:

case is that the -- the Court, which was the Northern District Court for Mississippi back in 1979 before the Eu case was decided, I believe. before. In that case, the Court refused to hear the parties' dispute, because the plaintiffs failed to use intraparty dispute resolution. MR. SMITH: And they said, specifically, Yes, ten years

there's an intraparty rule, that they enforced the intraparty rule. THE COURT: MR. SMITH: Next. Reform Party v. Bysiewicz.

Specifically, the Court reviewed and enforced the bylaws. THE COURT: Hang on. Hang on.

Bysiewicz, Mr. Steringer. MR. STERINGER: Well, that's -- that's

293 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 case. THE COURT: Now, Mr. Steringer on that? A 1948 case from Your Honor. THE COURT: MR. SMITH: Okay. Next. the second of the two cases involving -THE COURT: cases, right? MR. STERINGER: That's correct, Second of the two Reform

They -- we also have the

Democratic Farm Labor Central Committee v. Holm was citing Fosser (phonetic) -THE COURT: MR. SMITH: Hold it. Yes. Holm? H-o-l-m?

And this is an older

MR. STERINGER:

Minnesota where the Court said that where there's -where there's involved no controlling statute or clear right based on statute law, the Courts will not assume jurisdiction, but will leave the matter for determination within the party organization. And that is in reference to factual controversies within a political party. THE COURT: And you take comfort from

this case why, Mr. Smith? MR. SMITH: Because it's -- it's stating

back to Fosser that says the Court --

294 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 cases? MR. SMITH: It's another case that says THE COURT: MR. SMITH: THE COURT: Stating back to whom? State v. Fosser. Is that another of the

the court can have jurisdiction over these disputes. And I would -- you know, I would ask the Court if -THE COURT: State v. Fossor, do you -Fosser's from North It

MR. STERINGER:

Dakota in 1900 where the Court did two things.

had to decide which party was going to go on -- or which candidate was going on the ballot and so the Court refused to pass judgment on the parliamentary tactics that occurred within a convention, saying that those are matters that they could not get into, but they did have to decide which candidate for county auditor was going to be placed on the ballot. MR. SMITH: And every single one of

these cases had an internal party dispute where the Court relied on bylaws, interpreted bylaws and applied bylaws and internal rules. THE COURT: Mr. Steringer. MR. SMITH: I would ask this Court to Not according to

take a look at those cases before issuing a decision.

295 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that. MR. SMITH: argument is that -THE COURT: MR. SMITH: THE COURT: I know it's your argument. Okay. But how can reasonable Well, I would -- I -- my THE COURT: Well, what Mr. Steringer --

well, how can Mr. Smith be of such a view and you be so strongly of such a different view? a different language? MR. STERINGER: Your Honor, I think we Is he speaking

just read the cases differently. THE COURT: MR. SMITH: Okay. Your Honor, and that's the

point that I wanted to make at the very beginning of this. Reasonable -- reasonable people can disagree Reasonable attorneys can disagree Even in this case, we've seen

about the law. about the law.

reasonable judges disagree about this question of law. THE COURT: I'm not sure we've seen

people who have once been victorious on a doctrine then turn around and decide, "Now we're going to take the diametrically opposed position and raise heck with our opponents"?

296 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 question. MR. SMITH: THE COURT: Okay. My question was what -- what MR. SMITH: Your Honor, we were not

victorious on this doctrine previously. THE COURT: Mr. Steringer, were they? If we're talking about

MR. STERINGER: the Washington County -THE COURT:

Yes. -- case? Yes.

MR. STERINGER: MR. SMITH:

Your Honor, one of my

clients was tangentially involved in that because he was employed. The rest of my clients were not Some of them were not even

involved in that.

involved in the Libertarian Party at the time. In that case, as we talked about, your opinion didn't mention -- even mention the word "issue preclusion," their argument. issue preclusion thing -THE COURT: Mr. Smith, that wasn't my And so that, the

do I do, if anything, at this stage, because now I'm looking at objectively reasonable basis in fact or law. And I note in the record you've presented to me

material that suggests, more than suggests that when the shoe is on the other foot.

297 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 And does the record show, Mr. Steringer, that these plaintiffs knew about the Washington County matter? MR. STERINGER: Well, what the record

shows is that Mr. Burke, one of the plaintiffs, was intimately involved in the defense of the Washington County matter on behalf of the Libertarian Party, which was the defendant in that case. And we've provided -- we've provided evidence of that in connection with the summary judgment motions, including billing statements that reflect that. THE COURT: Let's just take Burke. Mr. Burke? MR. SMITH: Mr. Burke was an employee at Mr. Leuenberger Okay. Let's take Burke.

What do you say about

that time of the organization.

actually brought that claim and is the one that filed the suit in the -- in the case. So if it's

objectively unreasonable to bring the claim, was it objectively unreasonable for him to do the same thing? I would say not, neither one. Mr. Burke was an employee at the time. He was not a named party. parties in that case. He was not one of the

He was not a --

298 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 it is. Hold it. THE COURT: Hold it. It would be helpful rather than say -if somebody in that case decided not to seek attorney's fees against Mr. Leuenberger's clients, so be it. That's not where we are today. Well, first of -- hold it.

Mr. Leuenberger's clients and Mr. Steringer's clients and Mr. Andries' clients are seeking attorney's fees. So, again, the fact that somebody didn't do something in the past isn't going to get me there. What's going to get me there is we have Mr. Burke, who Mr. Steringer says knew about this. After all,

Libertarian Party of Oregon is a legal fiction, correct? MR. SMITH: THE COURT: No, Your Honor. It has -- it has to -- yes, You can't touch it.

It has no substance.

You can't talk with it.

You can only talk with Would

people who are associated with it, its agents. you agree? MR. SMITH: THE COURT: agent, correct? And it -- it has a --

And Mr. Burke was such an

Or employee, correct? Correct. And Mr. Burke was

MR. SMITH: THE COURT:

299 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 conclusion? MR. SMITH: THE COURT: Correct. A writ was issued or are you knowledgeable about the litigation, correct? MR. SMITH: THE COURT: MR. SMITH: Probably. Yeah. To some degree. We don't

have exact facts on that, but -THE COURT: MR. SMITH: knew something about it. MR. STERINGER: Well, what we have is Well, what do we have? He knew -- I would assume

the billing records from that case from Mr. Meade, who represented the Libertarian Party, which discuss his communications with Mr. Burke about the handling of the lawsuit. And, in fact, it was -- I think we have evidence that Mr. Burke hired Mr. Meade to defend not only himself, should that be necessary, but the party. MR. SMITH: Your Honor, the larger point

on that case is what was the conclusion of that case. It was a writ of mandamus, an extraordinary remedy and the summary -THE COURT: No. Wait. What was the

300 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 fact that -MR. SMITH: That it's a writ of things. THE COURT: And your point is that the of mandamus. THE COURT: MR. SMITH: THE COURT: All right. And which is an -In the Washington County what I said. THE COURT: MR. SMITH: What did you say? The request was for a writ no. saying what was the prayer or what was the claim or what was the relief requested? MR. SMITH: If you're relying on that,

what should somebody have known about that case -THE COURT: No, no, no, no, no, no, no,

I'm trying to get an answer to my question here.

You said the conclusion was a writ of mandamus. MR. SMITH: No, no, no, no. That's not

case, the request was a writ of mandamus directed by -- by the Court directed against somebody. MR. SMITH: Somebody, through some sort

of double-entry bookkeeping -THE COURT: MR. SMITH: Okay. And --

-- and other -- other

301 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 mandamus. It's a summary determination. THE COURT: MR. SMITH: Yeah. It has totally different

factual and legal standards in order to prevail on such a claim. THE COURT: MR. SMITH: Yeah. So if no one would take away

from that claim that you couldn't do something else in the law -THE COURT: MR. SMITH: THE COURT: different kind of fight? MR. STERINGER: a different form of action. Well, it was a -- it was I think we could agree Different kind of fight. Different kind of fight. Okay. Mr. Steringer,

on that, but it was a decision of a -- of an Oregon Circuit Court on a claim that was before it. And there is no law which I'm aware of that suggests an issue decided in the context of a writ of mandamus proceeding is entitled to any less preclusive effect than one that's initiated through a civil pleading. THE COURT: MR. SMITH: Do you have any such law? It requires a full and --

we've briefed that in our -- in our thing.

302 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Your Honor. now? MR. SMITH: It requires a full and final THE COURT: MR. SMITH: determination. THE COURT: -- why don't you help me That may be, but -It requires a full and final

determination, adjudication on the merits in order to have any preclusive effect whatsoever. THE COURT: MR. SMITH: Yeah. And the point is that Ms. --

that Judge Hernandez said -THE COURT: wait, wait, wait, wait. But a full and final determination isn't necessarily inconsistent with, "Well, this was a mandamus." You're telling me, "Well, this -- that Well, wait, wait, wait,

was mandamus and this is another kind of action; and, therefore, can't learn anything from mandamus." Then Steringer says, "No. some something from mandamus." MR. SMITH: You might learn something, You can learn

Judge Hernandez specifically said, Why don't you go get a

"You've got remedies at law. declaratory relief?" THE COURT:

Thank you.

Judge Hernandez

303 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 things. said, "Mandamus is -- does not lie when there's a plain, speedy and adequate remedy at law. I'm not going to issue the writ," right? MR. SMITH: He -- he said a lot of Therefore,

I think we dispute the -- the substance, the

exact reason; but he did say that, yes. THE COURT: Well, Mr. Steringer, my

summary, do you agree that what Judge Hernandez did was to say, "I'm not going to issue a -- issue a writ of mandamus because you have a plain, speedy and adequate remedy elsewhere"? MR. STERINGER: He identified the plain

and adequate -- plain, speedy and adequate remedy as an alternative basis for denying -- for dismissing the writ. The first statement he said was he doesn't

believe the Court can be involved in adjudicating the -- the dispute that was before him. THE COURT: Okay. (Indiscernible).

So we have one of

these problems with all due respect to now federal Judge Hernandez, that when a Court says two things, you're not quite sure which one is -- which trumps or which is dicta and which is holding. Mr. Smith says the holding was plain, speedy and adequate remedy. You say, "Yes, but there

was also a lot of talk about how Courts don't get

304 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 have here? involved and they can't run away from that learning at this stage." MR. STERINGER: Well, what I -- what I When

would say is a little more specific in that.

he -- when he made his decision, the first thing he said was, "Courts don't get involved in these types of matters." And then he said, "And even if I could" -- and I'd have to -- to pull the transcript, so I'm just paraphrasing. THE COURT: MR. SMITH: Do I have them in my record? The transcript would be

better, Your Honor, because I don't agree with his statements. THE COURT: Is it in my record that I

And when I say my record, let me show you

what I consider my record to be. MR. SMITH: It is. And we've cited it

in our briefing word for word a number of times -THE COURT: MR. SMITH: THE COURT: Okay. -- in this. That's the official court Probably shouldn't do Okay.

Trader Joe's bag by the way. that.

Probably a trademark violation. MR. SMITH:

You want to get back to my

305 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 attorney. MR. SMITH: Objectively reasonable And under listing if you want or where are we at? THE COURT: MR. SMITH: Yes, please. Okay. Your Honor, the

other -- the other thing that we'd want to point out is that the Oregon Constitution -- here, we're starting at a baseline. few minutes. THE COURT: MR. SMITH: Mm-hmm. We're starting at a If I can go for -- go for a

baseline, objectively reasonable. THE COURT: MR. SMITH: Mm-hmm. So, therefore, it's sort of

like what would an objective attorney do, advise? What would be a claim that an objective attorney would do? THE COURT: Objectively reasonable

attorney or what claims would you bring?

Article XII, Section 9, the Oregon Constitution authorizes circuit courts to have jurisdiction over all subject matter unless it's specifically divested by statute or rule. So here what we've got is an

arguable claim on First Amendment barring, okay? You've ruled that the First Amendment

306 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 point. Mr. Steringer, are you -- you're in the position I think of saying had -- well, let me ask it this way. "Okay. What's wrong with me saying to Mr. Smith, bars it. But there's no bright line rule. There's

no hard and fast case law.

That's why I said there's We've got general

no case saying you can't do this.

jurisdiction says Circuit Courts have jurisdiction over these things. And there's no bright line rule that says you can't do that, so a reasonable attorney would say, "I see ORS 28.020 that says any person with an interest in a contract, rights, legal relations can get that resolved by a Circuit Court." The same thing, if -- if not -THE COURT: Okay. I -- I see your

You win on the attorney's fees, but I never

ever want to see you do this again"? In other words, Mr. Smith's claim is, "Hey, what the heck? couldn't do it. You know, nothing said I

You know, it's up to me to -- to

zealously prosecute the claims of my clients within the bounds of the law. If, as and when somebody

tells me on point, 'You may not do this,' I will salute the flag and -- and not do it again. But like

307 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the one free bite rule, I get to try once." MR. STERINGER: First point is that

Mr. Burke and the Libertarian Party, which is the entity through which the other plaintiffs claim to act here, had their first bite in Judge Hernandez's courtroom, so we're not talking about a first bite in this particular case. Second point is we filed a pretty substantial summary judgment motion that I think gives a -- a good sense of the fact that the defendants dispute the merits of the claims that plaintiffs made, setting aside the preclusion and constitutional issues. They certainly disagree and have plenty to say about those claims. Nevertheless, we're not

here today to say that it was -- that -- that those claims as stated were objectively unreasonable but for the constitutional and -- and an issue precluding arguments. We are focused entirely on the fact that the issue preclusion and the constitutional arguments were present from the beginning. And while the

plaintiffs may have been able to invoke the Court's general jurisdiction but for the constitutional and -- and preclusion issues, we -- we can't just ignore

308 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 of merit. hurdles. the fact that those -- that those hurdles existed (indiscernible). And, in fact, they were more than They were barriers over which they -- they

could not pass to -- to be able to assert the claims that they made. And, therefore, whatever they might say about contracts and the Court's general jurisdiction and all of that, if there was obvious in the case a hurdle -- a burden that prevented them from asserting their claims, that means that those claims were objectively unreasonable. They were wholly -- wholly devoid of -Why can't we just say they get one try? It's a

Well, ORS 20.105 doesn't provide that.

statute that says that the Court shall award fees in these instances. THE COURT: Mm-hmm. And so if the Court does

MR. STERINGER:

make the factual findings that we've requested, we -we -- we don't think the Court has the discretion to then say, "We'll just give them a pass." THE COURT: No, no. But you could get

there by saying -- and I think Mr. Smith is saying, "Now, just a moment. Viewing this from the point of

309 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 view of the beginning of this particular fight, not back in Washington County, but this particular fight, if I surveyed all of the law and -- let's say, all of the law, I could have an objectively reasonable basis for concluding that I could take a shot at this." "I might lose, but I could take a shot at it, and if I lose, well, I'm not going to take that shot again on behalf of someone else or the same people, but I think I can -- I think I -- I have a legitimate basis." Your -- your -- your response, I think you said it is, "No, no. The reason -- 2105 calls

upon judges to make a decision that there's a line across which an objectively reasonable attorney cannot pass. "And an objectively reasonable attorney would have looked at the law, would have distinguished the cases that Mr. Smith relies upon, as you've -- as you have distinguished them and said, 'I can't do this. I can't get there. I'm asking a

Court to get involved in an intra-party squabble.' And when they don't do that, they get to pay attorney's fees." MR. STERINGER: THE COURT: Well -- and, in fact --

When they don't do that and

310 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 they lose. MR. STERINGER: And, in fact, we see

within cases that the plaintiffs cite the -- the very principle on which the defendants have relied, which is except in those -- well, I wouldn't even say except in those narrow circumstances. We do see in

cases like Fosser and these upper Midwest cases very clear statements that the Courts are not going to get involved in intraparty disputes. And -- and they found ways to distinguish what they were doing from being involved in intraparty disputes. What we've -- what we've

demonstrated through this record is that this case is nothing but an intraparty dispute. And there was no basis upon which the plaintiffs could distinguish the holdings of their own authorities that they rely on. And, more

importantly, they completely ignore the U.S. Supreme Court decisions that have come out since the cases upon which they rely, which make it clear if it wasn't clear before that absent a compelling State interest, States can't get involved in intraparty disputes. And, moreover, the internal integrity of the party is not a compelling State interest. It

311 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 something. MR. STERINGER: Well, our motion -- we won? Mr. Steringer, you say he didn't win will never be. The only time the Court can get

involved is when, for example, it's impacting the public in a way, for example, in needing to make decisions about who has ballot access. MR. SMITH: Your Honor, and his argument

that we ignored something is complete false and irrelevant. We clearly distinguished those cases way That's --

back in front of Judge Redman and we won.

I believe -- that's why I point out Judge Redman, so -THE COURT: Why do you keep saying you

did file a motion asking the Court to dismiss the claims on the ground that -- that the Court couldn't grant the relief sought because of the constitutional issue. THE COURT: Mm-hmm. It was on a very

MR. STERINGER: different record.

It was a skinny record, because we And Judge Redman denied the I don't

were early in the case.

motion without comment on why he did that.

think there's anything that we can draw from that

312 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 other than he denied a motion. MR. SMITH: THE COURT: Your Honor -Well, but -- but if we --

(indiscernible) says that you have to evaluate the reasonableness at each stage -- at all stages or throughout. A claim that can be thought of as valid at the beginning in the light of additional discovery or evidence or proceedings can then be found at some point going beyond that to be unreasonable. But if Judge Redman did say, "I'm not going to dismiss this," just as you rely upon what Judge Hernandez first said in Washington County in his colloquy about his decision, why can't Mr. Smith rely on what Judge Herndon -- Herndon? MR. SMITH: THE COURT: Redman. Redman. Redman. I'm sorry. Redman.

What Judge Redman for this court said initially, which is, "I'm not going to kick him out because of this 'I can't deal with it, I'm a Court.'" Mr. Smith rely on that? Mr. Leuenberger. MR. STERINGER: The primary reason is Why can't

I'll hear from you and then

what -- what Judge Redman ruled -- if Judge Redman ruled in a way that gave Mr. Smith and his clients

313 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 some sort of subjective belief that they might have -- might have cleared that hurdle, it's irrelevant. We're not here to talk about the

subjective views of the -- of the parties or the -or the counsel. The question is what was -- what did we know about the case? What were the facts and what And

were the claims that were -- that were made?

Judge Redman didn't have the benefit of all the facts in this case when -- when the Court made its decision. On the other hand, the plaintiffs did know what those facts were. THE COURT: And so --

And what facts are those

that without which Judge Redman's talking about the role of courts in intraparty disputes -- well, wait. Maybe he didn't talk about it. a ruling apparently. But you talked -- you talked about it to Judge Redman, what facts would have, in your view, might have changed Judge Redman's ruling, which later were developed, which had he known about them would have perhaps affected things? MR. STERINGER: The -- the facts that Maybe he just issued

were developed gave the entire history of the dispute

314 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 from the -- the time in which the Libertarian Party adopted a reform plan and then was thwarted in its efforts to implement that plan by the actions of Mr. Burke and people associated with (indiscernible). The -- and the -- the -- the effect of that was effectively to paralyze the Libertarian Party, because by -- by taking action to avoid the party from organizing its annual convention, that -that not only stopped the party from implementing its reform plan, but also stopped it from taking any other action that it normally would take. THE COURT: merits, doesn't it? But that kind of goes to the

In other words, it goes to the

what's happening inside the party as opposed to can judges get involved in intraparty disputes without regard to how bad its gotten inside the party. MR. STERINGER: The -- the reason it's

different is that when the dispute was before Judge Redman, the plaintiffs had the entire focus of the case on the question of whether the Court had a -- the ability through a declaratory judgment action to interpret bylaws. And the record was not

sufficiently developed at that time to demonstrate that. That question had to be looked at in the

315 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 broader context of a political dispute that had been ongoing for -- for over a year prior to that. THE COURT: Okay. Let me -- let me hold

for a moment, hear from Mr. Leuenberger and then on this point, Mr. Smith. MR. LEUENBERGER: Your Honor, I'd like

to make a -- I think was -- is an important point. And that is through arguments to Judge Redman, the plaintiffs' position was they had a different Libertarian Party of Oregon than that associated with Wes Wagner. And so what they're presenting was as an

interparty dispute. Their Libertarian Party versus my client's Libertarian Party. You eviscerated that

line of argument, and, essentially, told Mr. Smith if he continued that, he would -- he would lose post haste during the -- or in the course of that hearing we had on summary judgment. THE COURT: Well, I remember it, just It was difficult enough

because it was so difficult. to have one party problem. okay. MR. LEUENBERGER: THE COURT:

If we suddenly had two --

That's right.

But --

And you're saying that at

the stage of Redman, it was an interparty dispute?

316 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. LEUENBERGER: That's the way it was They had

presented by the plaintiffs, Your Honor.

their Libertarian Party and they wanted to take over and say that we couldn't be -- our people couldn't Libertarian Party. THE COURT: MR. SMITH: Mr. Smith? Your Honor, to quickly

dismiss that, I think we can look at the pleadings. I disagree with that. The pleadings, our complaint Our complaint never

never substantively changed. substantively changed.

We make a couple of particular arguments in there about the property that only -- out of these two groups, only one can use the name. one party. It has to be

Our entire argument is there's one party. There's one group that has

There's one website.

access to the registered Libertarians. THE COURT: You can see why I got so

upset with you when you said there were two parties. MR. SMITH: Well, right. There has to

be, by law, by Oregon statutes, there is only Libertarian Party of Oregon. Those have ownership of

the registered Libertarians, the use of those Libertarians. They have the party name. They have the

317 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 trademark. There's only one and that's -- so that's

not the case. THE COURT: Mr. Leuenberger. Now to Mr. Steringer. MR. SMITH: To Mr. Steringer's point, I Okay. That's -- that's to

would ask this Court, again, to look at the documents, because there is not a single fact argument. I looked for this, because he argued this

in his brief. There's not a single fact argument in his jurisdiction, judiciability argument in summary judgment at all, let alone any that changed from his motion to dismiss to his motion for summary judgment. He says that there was a skinny record and that facts were discovered and elucidated. There are not any citations to exhibits. not any citations of declarations in his judiciability jurisdiction argument. So it was -- and that's why I pointed out very early on it was a question of law. matter jurisdiction's a question of law. Subject No.

There are

It's not a

question of fact, where you incorporate a whole bunch of facts to determine whether, you know, whether the Court had jurisdiction.

318 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 When it's -- this question was presented to yourself and to Judge Redman on the question of law. THE COURT: Well, now, wait, wait, wait,

wait, wait, wait, wait, wait. A question of law verses a question of fact doesn't mean that facts aren't important. MR. SMITH: THE COURT: True. Judges regularly have

questions of law to decide, but they have to have a factual record. MR. SMITH: THE COURT: Absolutely. For example, in diversity

jurisdiction in the Federal Court, where is the defendant incorporated? That -- there could be a

factual dispute about that about which there would be a hearing. MR. SMITH: THE COURT: And that -The question of -- of

jurisdiction is -- is legal, but it may have an underlying factual substrate that has to be settled. Your point, if I understand it -- and then we'll have to move on to our 11:30, I think, fairly soon -- is that this wasn't carried out as a factual argument, so the idea that Redman's actions don't matter

319 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 doesn't fly. MR. SMITH: Correct. If it's a question Like I said,

of law, it's the same question of law. there were not changes to facts.

They didn't

incorporate discovery or exhibits or anything later on. THE COURT: It was -- I think what I'm

hearing you say -- correct me if I'm wrong -- is it wasn't -- it was interparty dispute all along. MR. SMITH: And it was the same question

of law that was answered. THE COURT: Okay. It is 11:30 and we

need to move on to another hearing, so I'm going to ask the patience of the 11:30 people just briefly and let's take five minutes. MR. SMITH: You get three, you get two. Okay. Your Honor, the first

thing I'll point out is even this Court's order, it appeared to me, a fair reading of your order on this is that you're exercising discretion. And when the Court's exercising discretion, you use words like, "Case law counsels either cannot or should not, matter is either not judicable or the Court has the power to exercise its discretion," either/or language, again, supports under the law our proposition there's no bright line

320 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 rule. This is not something where we -- we could have been a case of first impression. is -- this is a new area of law. This

There's not a lot

of developed case law on this question, on this question that we're faced with factually. THE COURT: MR. SMITH: party's bylaws? Which question? Can you enforce a political And I point

Are they enforceable?

out -- I point that out, because as attorneys in Oregon, we have the obligation to answer this question, like you said. Should we be rectified?

I'm in the situation -- it's on the record that I also represent the Republican Party of Oregon as -- as general counsel. We have -- it's in

the press that there's a recall election for the chair of the Republican Party. For instance, if this is nonjudicable and there's no way that a Court can enforce a party's bylaws, if that chair gets recalled, they can simply do what Mr. Wagner did and say, "I'm still the chair," and there's nothing that anyone could do about it. There's no remedy at law. THE COURT: Well, I wouldn't -- well, Nothing that anybody

now, wait, wait, wait, wait.

321 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 State -THE COURT: -- the whole message of my can do and no remedy at law are two different statements. MR. SMITH: THE COURT: MR. SMITH: Well -I mean, the whole --- and the Secretary of

ruling is Courts do some things and groups of people do others. MR. SMITH: Okay. The Secretary of The larger

State said they wouldn't do anything.

political party couldn't do anything, so -THE COURT: Right. You know, it's the Now lie in it.

old phrase, you've made your bed. MR. SMITH:

And you had -- you had said

early on in our first oral argument that you saw this case going to the Supreme Court. To me, a clear

indication that you see this as a close call, if you will. Reasonable minds. You may not remember that,

but I remember that you had said that. THE COURT: MR. SMITH: THE COURT: facetious here. MR. SMITH: I'm not sure you Which Supreme Court? You didn't distinguish. No, I'm not -- I'm not being

322 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 distinguished, Your Honor. But enter next year is

again, as to Mr. Grover's concerns, we specifically asked this Court to determine what happens with the party funds. Who's got control of the party assets? Paragraph 7 of our complaint talks about who's got control of the money. Paragraph 38, who's Who's got the

got custody and control of the assets? right to use the name? website?

Who's got the right to the

Our Prayer No. 5 specifically asks this Court to rule on -- to tell them to turn over the possession and control of the LPO property, the website, the -- to tell the Secretary of State to release those lists of names to us. And that gets right into, as you analyzed, the religious liberties cases. The -- the

Supreme Court of the United States and even the Oregon Court of Appeals has pointed out the First Amendment does not have an absolute bar on Courts getting in using neutral principles, such as bylaws, Robert's Rules of Order to determine disputes. We're not asking this Court to make any sort of a political decision. We never did. And for

that -- that reason, we think the jurisdiction should be reversed. We're not asking the Court to do

323 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 too far. MR. SMITH: I have -- I have the job of Come on. Come on. I think -THE COURT: Come on. MR. SMITH: reasonable attorney -THE COURT: Come on. MR. SMITH: THE COURT: How can a -You know you're going way Come on. Come on. Come on. And as an objectively I mean, come on. Come on. too far. MR. SMITH: Okay. Maybe you disagree. anything political: Just interpret the documents and

then apply the facts that took place afterwards to see, you know, who was right and who was wrong. so that -- that is not barred. If that's barred by jurisdiction, we have all kinds of problems. If an officer of a And

political party can't be held accountable for breaching fiduciary duty, they can abscond with money. They can do anything may want and there's no If -- if this -Now -- now you're going way

remedy at law.

THE COURT:

advising the Republican Party this coming weekend.

324 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 pretty well. MR. SMITH: THE COURT: I think the questions -You have a tendency, though, What happens if the chair gets recalled? THE COURT: But that's a lot different

from a conversion claim by an organization against an individual in tort. MR. SMITH: ORS 248.004 says, "Political

parties are nonprofits for purpose of tort, contract and other liabilities." requirement. there. THE COURT: You know, you were doing That's a statutory

So it's -- it's -- the question is

to go out way over the edge and then it causes the board to flip back and hit you in the forehead, really. MR. SMITH: THE COURT: Your Honor -I mean, the fact -- look,

if -- the fact that a political party is roaming around somewhere doesn't insulate everybody from tort claims or -- I mean, if -- if a member of a political party breaks in to the organization's headquarters at night, it's not going to be a defense that, "Well, it was a political party. apply." No other -- no other laws

325 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 support. take -THE COURT: MR. SMITH: Okay. But -- so, again, to factual We've This was -- well, it was an -- there were two groups, each of which claimed they were the rightful Libertarian Party of Oregon. MR. SMITH: THE COURT: Mm-hmm. And guess what? There's a

group of folks out there in society who can determine that. They're called Libertarians. MR. SMITH: Your Honor, I don't want to

We talked legal and factual support.

talked about some of the factual support. other factual support.

There's

We had four decisions from

the national organizations. We have the LNC, we have the convention, we have the executive committee that were ignored by Mr. Wagner. So what that (indiscernible) Cousins v.

Wigoda, the reason the Court abstained in Cousins v. Wigoda, in those cases, is because there was a different body that could resolve it. convention delegation questions. In this case, that's not available, because that did happen. national organization. The plaintiffs won with a They were

We -- my clients were seated

326 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 at the national organization. But that didn't

resolve the state law issues, the state law conflict. THE COURT: Mr. Steringer, on that? We haven't had an The -- the

MR. STERINGER:

opportunity to get into this battle.

National Libertarian Party has nothing to say about the -- the true leadership of the Libertarian Party of Oregon except to the extent it impacts what they do as a national party. They can decide who to recognize or not, but the Libertarian Party of Oregon is a -- is a state organization that happens to charter with a national organization and is not bound by what that national organization says about the identity of it's leadership. THE COURT: this under advisement. Okay. I'm going to take

I have your submissions. I will get you a Is

I've benefited from this argument.

decision in due course, probably a week or so.

there anything brewing out there that makes a week or 10 days untimely other than your need to advise others? It's why you get paid the big bucks. MR. SMITH: THE COURT: Right. Take those -- no. I'm --

I'm -- I'm being facetious.

It is difficult if you

327 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 (Conclusion of proceedings, Volume 5, 8-1-13 at 11:41 a.m.) have to make decisions on behalf of Client B when you're not quite sure what happened to Client A. All right. Thank you all. Thank you.

MR. STERINGER: * * *

Reporter's Certificate 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ___________________________ Katie Bradford, CSR 90-0148 Court Reporter (503) 267-5112 REPORTER'S CERTIFICATE

328

I, Katie Bradford, Court Reporter of the Circuit Court of the State of Oregon, Fifth Judicial District, certify that I transcribed in stenotype from a CD the oral proceedings had upon the hearing of the above-entitled cause before HENRY C. BREITHAUPT, Circuit Judge, on August 1, 2013; That I have subsequently caused my stenotype notes, so taken, to be reduced to computer-aided transcription under my direction; and that the foregoing transcript, Volume 5 of 5, Pages 270 through 327, both inclusive, constitutes a full, true and accurate record of said proceedings taken from a CD and so reported by me in stenotype as aforesaid. Witness my hand and CSR Seal at Portland, Oregon, this 10th day of March, 2014.