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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 4 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 16th day of May, 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 Proceedings recorded by digital sound recording; transcript provided by Certified Shorthand Reporter. * * * KATIE BRADFORD, CSR 90-0148 Court Reporter (503) 267-5112 APPEARANCES Tyler Smith and Anna Adams, Attorneys at Law, Appearing on behalf of the Plaintiffs; Robert Steringer, James Leuenberger and Colin Andries, Attorneys at Law, Appearing on behalf of the Defendants. * * *

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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 May 16, 2013 Proceedings Case Called; Parties Introduced Colloquy Between the Court and Counsel Matter Taken Under Advisement Reporter's Certificate * * * GENERAL INDEX VOLUME 4

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Page No. 136 136 137 268 269

136 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 (Volume 4, Thursday, May 16, 2013, 9:13 a.m.) P R O C E E D I N G S (Whereupon, the following proceedings were held in open court:) THE COURT: This is Reeves and others

against Wagner and others and, in particular, an organization identified as the Libertarian Party of Oregon. If counsel would introduce themselves, beginning here, I suppose. MS. ADAMS: Good morning, Your Honor.

My name's Anna Adams and I represent the plaintiff, along with Mr. Smith. THE COURT: MR. SMITH: Okay. Morning, Your Honor. Tyler

Smith, 075287, represent all the plaintiffs in this Libertarian Party of Oregon and all of the officers associated there. MR. LEUENBERGER: behalf of Wes Wagner. MR. STERINGER: Bob Steringer on behalf James Leuenberger on

of the Libertarian Party of Oregon. MR. ANDRIES: Colin Andries, 051892.

I'm here on behalf of all the other defendants. THE COURT: All right. I've read -- I

137 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 process? MR. SMITH: duplicity, then fine. THE COURT: Okay. And you're welcome to No, Your Honor. No will not confess to have read everything you've given me, but I've read much of what you've given me. I suppose the first question I have is among the defendants, how are you going to proceed in making presentations? I know in your briefing to some extent folks tied their wagon to Mr. Steringer's wagon and in some cases, I think Mr. -- is it Andries? MR. ANDRIES: THE COURT: Correct, Your Honor. And

Mr. Andries had some

substantive matters in particular regarding the charitable -- or the nonprofit corporation statute that you seem to state independently of Mr. Steringer. But did you -- have you agreed on a

method for making presentations here today? MR. STERINGER: Your Honor, what we

anticipated doing was having me take the lead and present on several of the motions and then my counsel for -- or counsel for the other defendants would make whatever comments they would like to add to that. THE COURT: Any objection to that

138 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 remain seated during your presentations. If you wish

to stand you may, but you're not required to. MR. STERINGER: THE COURT: Thank you, Your Honor.

Now, in general, my

understanding is that an organization known as the Libertarian Party of Oregon came into existence and purported in some fashion to adopt some bylaws, later described by a -- I believe it's a person associated with the national party, as creating a, in his words, circular firing squad. I understand it. Then various things occurred and some 2011 bylaws came into -- into being and some actions were taken. And now the defendants, Mr. Wagner and These were the 2009 bylaws as

others, assert -- and I may be overdoing it here -but assert that, in effect, there is a Libertarian Party of Oregon and they are the incumbent central committee? Incumbent what, officers? How best to

describe them? MR. STERINGER: At a minimum, I think --

I think the clearest description of them would be that they are the incumbent officers. There are

additional defendants who make up the board of directors under the organization as well. THE COURT: All right. Let me ask a

139 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 very basic question if you -- I assume you can -- you can agree on this, that's it's not a matter of contest. Is the organization identified as the

Libertarian Party of Oregon -- or at least as you folks conceive of it -- a major political party under Oregon law, Chapter 248, or a minor political party? MR. SMITH: we would assert. THE COURT: Do you agree, minor? We agree with that. Minor, Your Honor, is what

MR. STERINGER: THE COURT:

And without necessarily

putting too much weight in this observation, I view it as -- at least preliminarily as essentially a fight among factions of -- well, factions or groups of people, each of whom claim to be the real libertarians. And I am quite reluctant to have, at least at my level until told differently, quite reluctant to have the judicial branch of the State step into an intraparty fight, an intraorganizational fight where a political party is involved in the same way that on at least one occasion -- well, actually on the one -- on several occasions the Courts have said in respect of other what I'll call First Amendment organizations, namely churches, we don't

140 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 step in and adjudicate or resolve differences as to who is the real Presbyterian or who is the legitimate Catholic. We do step in -- and I've had occasion to step in out in -- in Multnomah County where the claim is a claim having not to do with who is legitimate or true or proper, but rather in the case I'm thinking of where an organization terminated the employment of a pastor and the pastor made a claim for damages for -- or where the classic -- yeah, the classic that occurs and I think has occurred recently in Oregon Courts. That is, a religious organization has a split and there's only one house of worship and obviously there's a dispute as to whose is it and so you have to adjudicate -- may have to adjudicate who owns the house of worship. Courts do step in there

to some extent, but are reluctant to get involved. And I -- to me, there's a lot about political parties that are like -- similar to religion. And I -- for that, I refer to the rule of

my barber when I was a young man, who informed me that there were two things that were not discussed in the barbershop. One was politics and the other was

141 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 facetiously. here? start. religion. Sports, okay. Certain other things, okay,

but not those things. That's it.

Come here, get your hair cut.

Talk about sports or something, but not

those two subjects, so -- and they're both First Amendment, very important First Amendment functions: Political organization, religious organization and practice. So now my question -- that's where I And I think it's Mr. Smith who's going to say This is a little

to me, "Well, don't worry so much. different.

You, the judiciary, ought to get involved

in this matter." And let me ask you in my most basic terms then, Mr. Smith, what is it you want? MR. SMITH: THE COURT: Your Honor -And I don't mean that

I mean what remedy are you seeking What is it that you would

What declaration?

have the judicial branch afford you or give you? MR. SMITH: That's a good question. Thank you, Your Honor. And I'll point out this

exact argument as we pointed out in our brief has now been made. This is the third time we've sat in front

of a Clackamas County sitting judge to make this argument and this exact argument.

142 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 dismiss. So we've had this oral argument on this twice, so I hope I don't skip over anything. THE COURT: Help me. I know you've had

it one -- tell me when you've had it. MR. SMITH: We had it, the first motion There was no -- there was We had

We had it again.

no decision on that first motion to dismiss.

a second motion to dismiss and there was a decision on that second motion to dismiss. We've made this

oral argument now twice for this Court. So it's been considered. It's been

looked at from every angle and Judge Redman specifically said, "This Court has jurisdiction." And declined the argument, the very argument that they're making. And that you had mentioned it was your predisposition to decline that argument for the reasons that we will get to. THE COURT: real concern. MR. SMITH: explored fully. THE COURT: claimed law of the case. you retreating from that? Now, as to that, you've And I have you're -- or are Okay. So that has been Well, I'll say it's my very

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

only -- that's an alternative argument. THE COURT: Okay. Good. Because I

think it's a losing argument. MR. SMITH: And I -- and I agree that

this Court does have the discretion to change -THE COURT: MR. SMITH: Sure. -- particularly its own

prior ruling, but in this case it's a different scenario because there's another judge. THE COURT: MR. SMITH: THE COURT: to me elsewhere. Yeah. So, obviously, it's -But that -- that's happened

Superbilt, I think, is the other

case that teaches that, but -MR. SMITH: THE COURT: That's a -Now -- so you say that

Judge Redman considered this very argument and said, "I think it's okay for people in black mu'u mu'us to walk out into this minefield." MR. SMITH: Absolutely, Your Honor. I just And

I'll get to -- I'll get to those points. wanted to point that out. THE COURT: Okay.

Just -- just a

144 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 Let me ask Mr. Steringer, do you agree that Judge Redman did that? MR. STERINGER: Well, what I can agree

to is that Judge Redman denied a motion to dismiss under Rule 21 on grounds that the relief sought by the plaintiffs was unconstitutional if rendered by a Court in Oregon. It was made under Rule 21 and it was made without the benefit of the extensive record that we've now been able to provide to the Court to further demonstrate the political nature of the -the dispute that is central to the -- the claims. THE COURT: Okay. And so your position

is a not uncommon one, that a Rule 21 motion, it's important, but surviving a Rule 21 motion doesn't mean that when the record is developed you can survive summary judgment. Mr. Smith may well say

that's a distinction without a difference. But I'll go back to Mr. Smith. MR. SMITH: Well, just on the question

of law, Your Honor, I'll just say that the Rule 21 stage it's a pure question of law. That question of

law here, basically, is the same regardless of any of the facts. The question of law is can the Court

145 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 wade into and -- and have jurisdiction to do the things that plaintiffs are asking them to do. THE COURT: Well, except that this. I

began recently for the first time to look at -- when I say for the first time, I've never had occasion otherwise to do it -- and that is to look at Chapter 248 and to think about: party? What is a political

What role does the State play in political

party, the organizational political parties? I know, for example, from talking with an elderly gentleman who knows something about constitutional law that in the 19th century, political parties, they weren't -- there were no -there were virtually no state statutes about political parties. handed out ballots. Indeed, in some jurisdictions, they handed out colored ballots. If you were a democrat Political parties existed. They

it was red and if you were a republican it was green and if somebody was seen walking down the street with a green ballot, they could be beaten up by a gang, I mean, literally, okay? But the idea that we have currently of political parties and primary elections as being, in effect, some kind of state -- state -- the State

146 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 being involved to almost any extent is relatively new. So I began looking at 248 and I asked myself this question, which maybe your record touches on. And that is: Is there no way under Oregon law

for this dispute to be solved internally through what I'm going to call the political process of the party itself? In other words, could the -- I think it's the plaintiffs here, essentially, go to those people in Oregon who identify themselves as Libertarians -- and I don't know what the word "identify themselves" means. Whether they have to be

registered, whether they simply have to put, in effect, a name tag on saying, "For this purpose I am a Libertarian." Is there no process under Oregon law by which the question of whether it's Tim Reeves or Wes Wagner, just to pick on the two first names, that that question can't be resolved by -- in some -- in some fashion by people that call themselves Libertarians? MR. SMITH: answer that question. Your Honor, I'd love to I

So I've got two questions.

don't want to skip over the jurisdictional question

147 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 provision. MR. SMITH: Correct. Correct. And the you mentioned before, but I'll answer that question directly, 'cause you mentioned that. THE COURT: jurisdiction question. Well, it relates to the And that's what I'm saying it

relates to this issue of how has the record been developed because if I gain an -- if I gain an understanding that under Chapter 248 and the way things operate, there is a method for a group of people called Libertarians to -- essentially, this is a fight about is it -- is it Reeves or is it Wagner? If there's a way for them to work that out, then I say let them work it out. MR. SMITH: Your Honor, there's not a

way for them to work that out under ORS 248. THE COURT: MR. SMITH: Mm-hmm. As we pointed out,

particularly in ORS 248, the Secretary of State and elections officials, being county clerks mainly in the Secretary of State's Office are prohibited from doing that kind of thing. protection at work: This is the constitutional

That elections officials can't So there's not -That's 248.011 or whatever

get involved in this.

THE COURT:

148 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 wait. was: No. director of the Secretary of State's elections division has explained that. And I'm not sure

whether the defendants have withdrawn their argument about the APA, but that goes directly to that point, 'cause there is no -THE COURT: No, no. Wait, wait, wait,

No, it doesn't.

Because what I asked

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

What you've said and the statute seems to support clearly is, "Well, there's not a way for the Secretary of State to resolve that." MR. SMITH: THE COURT: Mm-hmm. But my question is let's

assume for a moment that the judges say, "Uh-uh," Secretary of State reads the statute and says, "Uh-uh," is there still a way for libertarians to say, "Those are the rebels, we're the true." MR. SMITH: Right. I understand your

question, Your Honor, exactly and I was just about to get there -- is that no, there's not. What we have That's

here is a dispute about what are the rules. what we're asking this Court to do. asked us what's our remedy. decide what are the rules.

Earlier, you

We want this Court to

Everybody agrees that the 2009 bylaws

149 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 were in place and were the governing documents up to March of 2011. After that point in time, we have two Mr. Wagner, we pointed out in his

separate entities.

deposition, says he created a new government structure, new government documents. And here importantly for your question, new set of membership. The memberships are different

between the old organization and their new organization. So it's -- it's an entire -- it's got different governing documents, different membership, different officers and as he called it in his deposition, I believe, a different government, different form of government I think is what he said. THE COURT: Now, just a moment. Does

this minor political party have a state central committee? MR. SMITH: No, Your Honor. And as we

pointed out in our brief -- and I happen to be legal counsel for two, in one political party and then my plaintiffs here, a state central committee is a particular statutory -- the central part of that is a particular statutory creation. And it's defined

as -- in ORS 248, as an organization of county central committees.

150 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: MR. SMITH: Mm-hmm. County central committees,

by their definition, have to be comprised of precinct committee people. THE COURT: MR. SMITH: Mm-hmm. Precinct committee people

can only be elected individuals of the major political parties. THE COURT: MR. SMITH: THE COURT: earlier about this. MR. SMITH: THE COURT: Right. So the whole system of Yeah. And that's --

As we stipulated -And that's why I asked

precinct leads to county leads to state -MR. SMITH: THE COURT: major political party -MR. SMITH: THE COURT: MR. SMITH: Correct. -- function. And exclusively a major Central committee. -- committee structures is a

political party function. THE COURT: Mr. Steringer? MR. STERINGER: Well, what I disagree on Any disagreement on that,

151 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 state. MR. STERINGER: -- correct. That correct. THE COURT: State central committee -Yes. is if we look at the statute that talks about one particular function of state central committees. The

statute, and I can -- I can get the -- the citation. THE COURT: 072? I believe that is

MR. STERINGER:

MR. STERINGER: THE COURT:

-- is the highest party

authority and may adopt rules or resolutions for any matter of party government -MR. STERINGER: THE COURT: That's --

-- controlled by the law of

statute is -- it is stated in terms of parties generally. And so we argue that the -- the -- the

job of the -- the Court here in interpreting that statute is to determine whether there is an analogue to a state central committee in minor political parties to which that statute would apply. And -- and, in fact, the Secretary of State, which is charged with implementing ORS Chapter 248 has -- has taken the position that the state committee of the Libertarian Party of Oregon is the

152 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 entity that is the equivalent of a state central committee under 248.072; and, therefore, fulfills that role. THE COURT: document in the record? And I see that in what I'm assuming the Secretary

of State did this by a writing. MR. SMITH: Your Honor -They did, Your Honor.

MR. STERINGER: MR. SMITH:

We'd stipulate there's a

letter from that in -- in the record; but it's a low-level Elections Division employee that's making -- writing that letter. THE COURT: Is this Exhibit 5 to

Wagner's response of declaration? MR. STERINGER: Wagner response. Thank you. It's Exhibit 5 to the It is, Your Honor.

MR. SMITH:

It's not the Secretary of

State or the director or the associate director. It's a low-level elections employee who made that reference. THE COURT: Well, it's only a low-level

IRS official who denied or worked over certain organizations for their viewpoints on C4 status, but I think the responsibility has gone upstream. MR. STERINGER: And -- and it is a

153 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. decision of the Secretary of State's Office on -- on an elections question. THE COURT: Now, I think Mr. --

Mr. Smith has already told me, Mr. Steringer, that because the state central committee shall consist of at least two delegates from each county's central committee, when you work back through the statutes, it's hard to conclude that a state central committee exists as such for a minor political party. But you're saying the spirit of 072, 248.072, should apply. MR. STERINGER: And we do argue that,

And our position is supported by the

decision of the Oregon Secretary of State that we've provided to the Court. THE COURT: MR. SMITH: THE COURT: MR. SMITH: THE COURT: Okay. Now --

Your Honor --- let me go back -Okay. -- one more step and then Are

I'll -- again, what are we fighting about here? we fighting about the bank account? so.

I don't think

Are we fighting about the offices, the premises

of -- I don't know if there are any -- or are we fighting about the name?

154 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 what? MR. SMITH: Fighting about the bylaws, Those -- those are the key

Your Honor, and the name.

things and -- and then ultimately who's in control of those two things. THE COURT: Because -MR. SMITH: THE COURT: The --- obviously if -- let's But who's in control of

assume that Reeves is successful and says -- gets somebody to declare he is it. Now, when I say, "he

is it," I understand he doesn't say -- he's not trying to be a dictator. He just is saying, "I'm

the -- the leader of this organization." Well, other Libertarians with vote with their feet and say, "Well, you may be it, but you're -- you're -- you're it for a group of 13 people. to it. We'll go over here and we'll engage in Go

political activity in the nature of organizing, doing things." Ultimately, would you agree, Counsel, 248 really talks about the role of parties in -- in nominating candidates, right? I mean, isn't it real

functional significance of being a party the ability to get names on a ballot? MR. SMITH: Your Honor, I can answer

155 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 very directly. 248.010 -Mm-hmm. -- is one of the key pieces,

THE COURT: MR. SMITH: the use of party name. THE COURT: MR. SMITH: you backwards from that.

Mm-hmm. And in order -- I'll point 248.007 talks specifically

about the organization -- or I'm sorry -- 248.008 is -- is the part that talks about the organization and structure for minor political parties. THE COURT: MR. SMITH: Mm-hmm. Well, background to all of

this, when this dispute erupted, the conversation was had with the Secretary of State. What happens?

Secretary of State, this is sort of tangential, but it's background material, said, "Well" -THE COURT: And this is in the record,

by the way, what you're going to tell me? MR. SMITH: THE COURT: MR. SMITH: Ah -I don't want you to talk -I'm -- just background

explanation here from the law. THE COURT: No, no. I don't want even

background unless I've got something in the record. MR. SMITH: Well, the way the law -- the

156 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 way the law here applies is what I'll talk about, not facts, is that the Secretary of State recognizes whomever they had last on their roster as an officer of the party. And so those -- whoever they had -Who -- who -- where -- has

THE COURT:

the Secretary of State told us this by rule or how -how do we know this? MR. SMITH: correspondence. There -- there is

I think the other side would

stipulate that they have -- I'm not -- I would expect they would stipulate the Secretary of State has stated that. But the key, what I'm getting at with that is that, it's the registered Libertarians in the state of Oregon, whoever has the party name, has the control over what happens with the registered Libertarians. And so for -- if you were to say, "Wouldn't to be easy to just go and split off and try and recruit all the people away?" Secretary of State

and the law only allows there to be one form of registered Libertarian voter. And the registered

Libertarian voters, of course, affiliated with the national and the entire line of registered Libertarians.

157 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: wait, wait, wait, wait. Well, now -- no. Wait,

Isn't it the case that --

and I know names are important, brands are important. Isn't it possible that Mr. Reeves and his colleagues could form the real Libertarian -- the statute talks about any part of a name, but for purposes of my example, the Legitimate Libertarian Party of Oregon and could go to the Secretary of State and have themselves recognized as that. And then you could complete with the other people called the Libertarian Party of Oregon and part of that competition would be to go to the national organization and say, "You, national, have something that you can add to -- you can help us, one of us, but perhaps not both of us." And you could make your case for why you should be the affiliate and Mr. Steringer and his clients, these folks' clients could make their case and -- and the national body could ultimately say, "Now, it's too bad there's a fight out in Oregon, but we have to -- we need to" -- let's assume they said, "We need to choose one group and we'll choose your group." MR. SMITH: Your Honor, that's why I This has already

said we've already had this fight.

158 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 party said? MR. SMITH: The national party in 2012 record? MR. SMITH: THE COURT: Yes, it's in the record. And what has the national been discussed and -- and extensively. have. They already And

The national party has already spoken.

the plaintiffs -THE COURT: Do I have that in the

in their national convention for the selection of presidential, vice presidential candidates looked at this issue, had a credentials committee hearing, had the entire delegation of the entire national convention of the Libertarian Party decide that the Reeves delegates that were sent by the Reeves party to the national convention were to be seated as the delegates of the Libertarian Party of Oregon. So to answer your question -- I mentioned that to answer your question. It's

possible for the national organization to recognize that and they have. They seated them. My clients'

delegates voted for presidential nominations and -and voted in all the matters at the national convention. What we have here is --

159 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: I was going to say, I THE COURT: Okay. Just a moment.

Any -- any disagreement? MR. STERINGER: Major disagreement here,

thought this went the other way in your briefing. MR. STERINGER: understand that -THE COURT: How can we have a 180-degree It did. We need to

difference between two members of the bar? MR. STERINGER: We need to understand

the difference between what a convention decided to do in seating a group of delegates and an official decision of the Libertarian National Committee. And the -- the decision of the Libertarian National Committee was to recognize the -- the leadership of Wes Wagner as the legitimate leadership of the party and we've provided evidence in the record about the fact that the Libertarian National Party website still links to the Libertarian Party of Oregon website that is -- that is run by the Wagner faction. THE COURT: So did -- did the Wagoner

faction send delegates to be seated? MR. STERINGER: They did, Your Honor.

160 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: Were they seated? They were not.

MR. STERINGER: THE COURT: MR. SMITH:

That's in the record? Yes, Your Honor. And,

Your Honor, with the -- if I can address that factual contention. There were decisions prior to that made

by the executive committee and the judicial committee of the Libertarian -- before the convention, almost a year prior, and they were conflicting. I believe there were three decisions actually made. committee. There was one by the executive

There was one by the judicial committee.

Of those decisions, one recognized the Reeves group. The judicial committee, I believe, said, "Whatever the Secretary of State says is what we'll do." And so there was, amongst the smaller group of the executive committee and the judicial committee at the national level there was conflicting matters and that -- that was preliminary. So there

were -- there were I think three bounces amongst the executive committee. MR. STERINGER: Well, and Your Honor

will appreciate that it's the decision of the judicial committee of the LNC that controls. That

was an appeal from the decision of the Libertarian

161 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 back -THE COURT: Mr. Smith, you're too young National Committee that had originally recognized the Reeves faction. The judicial committee found that to

be incorrect and reversed it. MR. SMITH: But this case would not They said they'll

reverse the judicial committee.

recognize whomever the Secretary of State recognizes. THE COURT: I was going to say, to me,

the reason I'm interested in this is not because it's going to -- it necessarily is precedent for this decision, but I'm just trying to understand how organization -- how the organizations work. mean -- okay. MR. SMITH: So, Your Honor, going I

to remember the Democratic convention of 1964. MR. SMITH: THE COURT: I am. The same problem with -So am I, Your Honor. Anybody here --

MR. STERINGER: THE COURT: anybody here -MR. ANDRIES: THE COURT:

So are you.

Yes, I was there.

You were at -I was there.

MR. ANDRIES: THE COURT:

In '64?

162 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. ANDRIES: THE COURT: That's right. Good for you.

All right.

Well, then you know that there was a question of which delegation from Mississippi. MR. SMITH: cases, Your Honor -THE COURT: MR. SMITH: Yeah. -- in our briefing. I will And we have cited those

get to that when we get to the jurisdictional -- when we -THE COURT: MR. SMITH: Okay. -- get into the

jurisdictional, because I think that's important. And that shows the distinction between what we're talking about in this case versus other cases. And

that law is absolutely -- I don't think it's even controverted. They don't talk about it much, but we

do talk about it. The United States Supreme Court and throughout federal districts. We've cited the cases

that point out that when the decision can be remedied by a larger body, such as the convention of the National Libertarian Party, like that, then the Courts have said, "We stay out of it in those circumstances, because it's delegates. Who were the

163 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 proper delegates to your body?" If you're going to -- if we were going to have a meeting across the street and we were going to pick who goes there and multiple groups pick who goes there, that group gets to decide, does their own credentialing and decides who are the proper people to be a part of that group. THE COURT: MR. SMITH: Mm-hmm. But that's been decided.

Here, again, the -- that was decided in the plaintiffs' favor at that national convention. that's not the -- that's not the issue here. THE COURT: Oh, I understand seating at So

a convention isn't the issue. MR. SMITH: So if -- if this Court was

to go along the lines that it doesn't have -- doesn't have jurisdiction or the First Amendment would bar it, than that would be the binding precedent and my clients should be ruled to have won, because the largest body that deals with anything Libertarian in the United States has said that my clients were the appropriate -- the convention is the largest. That's -THE COURT: No, no, no. Just a moment.

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

164 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 bylaws. to have. MR. SMITH: And that's why we're having party, the judges stand aside. MR. SMITH: THE COURT: Right. And then you and the party

folks at national can have whatever mix of salad you want to have. MR. SMITH: THE COURT: And here the -And it may be very confusing

to a lot of folks, because there may be a constant trumpeting of, "We're still legitimate Libertarians. Don't pay attention to these people, pay attention to these people." But that's the -- the -- the kind of, you know, argument that -MR. SMITH: THE COURT: Mm-hmm. -- I guess we are supposed

the dispute about which -- which rules govern, Your Honor. If we were to have an internal process, We have the 2009

whose internal process do you use?

bylaws, which sat there and were agreed by everybody and were operated by everybody -THE COURT: MR. SMITH: Well, okay. Let me ask --

-- and they have different

165 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 moment. Your Honor. year met -THE COURT: MR. SMITH: THE COURT: Well -- well --- the quorum requirement. Just a moment. Just a THE COURT: Okay. Let me ask this. The

2009 bylaws were described, as I said, as a circular firing squad. I take it that the -- the problem with

the 2009 bylaws from my reading is that there was a core requirement that, essentially, was almost impossible to meet as a practical matter. fair to say? MR. SMITH: We met it. I don't think so, My clients in March of this Is that

Historically, Mr. Steringer, what was the

problem with the -- was there a problem with the 2009 bylaws? And if so, what was it? MR. STERINGER: That was the problem. I think it's a In March

After -- well, that was one problem.

problem that is most -- most critical here.

of 2010, the Libertarian party got together and had a convention and passed a reform plan. Nobody

complained about quorums at that time. When it came time to implement the bylaws changes that would effectuate that reform plan, the group affiliated with the plaintiffs came

166 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 stay on. up with this quorum problem and actually convinced the party at their November 2010 special convention that the quorum issue prevented them from organizing because there weren't enough people there to -- to meet quorum. The same issue arose again in March 2011 at the regular convention. They were not able to get

the number of -- of participants necessary to meet that interpretation of -- of quorum. Mr. Smith

alluded to their position that they were able to meet quorum at their -- the meeting that they had by themselves. THE COURT: Just a moment, just so I

It's following the March of 2011 -- what

you describe as the regular convention -MR. STERINGER: THE COURT: Right.

-- that then your clients,

I'll call them, took the actions they took to institute a new set of bylaws and proceed on. MR. STERINGER: That's when the -- the

group, the Libertarian Party of Oregon state committee, which is under even the 2009 bylaws, the -- the group of individuals charged with carrying out the affairs of the -- the party, developing policy for the party, they broke the log jam by

167 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 adopting the -- a new set of bylaws that implemented the reforms that were passed in 2010. THE COURT: Passed by whom in 2010? By -- in a convention,

MR. STERINGER:

in a full convention of the party. THE COURT: made regarding quorum? MR. STERINGER: Correct. Correct. And As to which no objection was

took the extra step of referring those bylaws out for a vote-by-mail vote of every Libertarian Party of Oregon elector in the state. And the results of that

was over 750 Libertarian Party electors participated in that election, far more than would ever attend the convention. And they overwhelmingly ratified the new bylaws that had been adopted by the state committee in 2011. The vote, if my -- if memory serves, was

725 to 26. That was a process -- if we want to try to tie it back to Chapter 248, Chapter 248, as we've discussed 248.005 in a rule that can't be enforced by the Secretary of State; but, nevertheless, provides the party is responsible for ensuring the widest and fairest representation of party members in the party organization and activities.

168 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 party members, it's important to understand for purposes of the statute, party members means those who register as Libertarian Party electors. They are affiliated with the party. And that is distinct from the definition of membership that had been used by the party through 2011, which included anybody who wrote a $50 check to the organization, whether they lived in Oregon, whether they were Libertarian Party members or not, that's -- those were the individuals who were accorded full party membership under the 2009 bylaws. The 2010 reform plan decided that that was not appropriate and -- and -- and went to what we now have in the 2011 bylaws. MR. SMITH: THE COURT: Your Honor -Just one moment. And then

what I was picking up is the background to Mr. Smith's point and that is that at some point he asserts -- and I'll have him explain -- that the Reeves faction was able to muster a quorum and do something, so will you take me through that process again -MR. SMITH: THE COURT: Absolutely, Your Honor. -- with attention to the

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

169 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 ago, 2013. THE COURT: MR. SMITH: THE COURT: 2013. An odd-numbered year. Yeah. the record. here. MR. SMITH: Absolutely. The -- it's in

The 2010 -- the 2009 bylaws state that

even-numbered years is an election -- is an election -- particular type of a convention meeting. Odd-numbered years they will consider bylaw amendments. So in 2010, they could not enact some sort of reform plan, a formalized reform plan, change the bylaws. It was an election only. That's the

first key that I'll mention about the 2010. So that when the -- in November of 2010 and then March of 2011, there's a four-month gap where they talk about, "Oh, there's the quorum problem." quorums. there. so -THE COURT: March" being March of -MR. SMITH: Being a month and a half Wait, wait, wait. "This And yes, my clients did, in fact, make It's in the affidavits and declarations in

They did, in fact, make quorum this March,

170 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 committee. Your Honor. quorum. MR. SMITH: So they did, in fact, make

So the contention that somehow there's a

rule of necessity or -THE COURT: Now, is there a -- is there

a dispute about your clients making a quorum? MR. SMITH: I believe there is,

That's why our motion for partial

summary judgment is particularly appropriate here. We're asking that the 2009 bylaws be ruled the proper bylaws, because they didn't have authority to change them. They had no authority to change them. And you asked about the internal -before we go too past the internal process, 2009 bylaws did have an internal process. But the

defendants here assert that the 2009 bylaws are no more, so the process under their bylaws would be different. THE COURT: What's the -- what was the

process under the '09 bylaws? MR. SMITH: There would be a judicial

You could have a meeting of the members.

Again, it's a different membership group than their members, but you had -- you had the office of a judicial committee or the -- the group of a judicial committee available. They have a judicial committee

171 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 officers? MR. SMITH: Election. Officers were believe. THE COURT: do you mean by election? MR. SMITH: THE COURT: Of officers. Election -- election of What do you mean by -- what now under the -THE COURT: MR. SMITH: Who's they? We. We. My clients has --

Libertarian Party of Oregon under Tim Reeves has a judicial committee and is operating under the 2009 -well, they changed the 2009 bylaws last month. had quorum. They

They updated them, made some changes to

the 2009 bylaws to the 2013 bylaws. Now, I want to point out one of your introductory comments -THE COURT: Hang on just a moment.

Mr. Steringer, what, if anything, do you make or how do you respond to the distinction that Mr. Smith has raised between under the '09 bylaws, the odd-even -- the odd-year even-year substantive limitations, which, as I understood it, was odd year -- I'm sorry -- even year, election only. MR. SMITH: Right. And platform, I

172 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 is -THE COURT: MR. SMITH: What is the relevance? The Article XVI of the elected each -THE COURT: MR. SMITH: THE COURT: Okay. -- each year. Election of officers versus

odd numbered years bylaws. MR. STERINGER: Your Honor, I -- I'm not

sure how that is relevant to the issue before the Court. And I -- I must admit I'm at a loss in

understanding why that comes into play in this particular situation. The fact is that the party had a special convention called in -- in 2010, November of 2010, to consider and -- and presumably adopt the bylaws revisions that were called for under the reform plan that had been -- that had been adopted earlier in the year. The party, again, was unable to meet quorum in March of 2011 to -- in its normal business convention. And so it was at that point that the --

the State committee took the action that it -- that it took. MR. SMITH: Your Honor, the point -- the

173 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 clients. bylaws for amendment provisions to the 2009 bylaws -and these are in the record -- says that the annual convention for bylaw amendments be held in odd-numbered years. Now, they're contending that this reform plan somehow required -- their contention earlier mentioned this reform plan somehow required there to be bylaw changes or approved bylaw changes or somehow ratified, I think was the word they're using. They're saying that their actions in -in changing these bylaws in contradiction of the 2009 bylaws was ratified by 2010 and then ratified by a vote by mail at some later point. THE COURT: MR. SMITH: Mm-hmm. So they didn't have the And that's the

authority to do any of those things.

point is why the bylaws need to be enforced is they didn't have the authority to send out a mail ballot. They didn't have the authority to, in 2010, change the bylaws. And I do have M. Carling. You mentioned

the circular file and firing squad. THE COURT: MR. SMITH: I'm sorry. You have what?

Mr. M. Carling is one of my There

He's here in the courtroom today.

was a citation to him as the circular firing squad,

174 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 which you mentioned at the beginning? THE COURT: MR. SMITH: plaintiffs in this case. Mm-hmm. He's -- he's one of the And so to -- to state that

proposition or for them to state that proposition as if that is a fact that you could not operate under those bylaws is -- is a misstatement, I believe. my client would disagree with that contention. THE COURT: No. I took -- I took And

circular firing squad simply to mean there were a set of bylaws which caused lots of problems in terms of operation rather than what we would -- what most people I think would think bylaws would do and that is provide a pathway for operation. MR. SMITH: quorum dilemma was -THE COURT: Although, that said, And I'll point out, the

there's -- it's quite possible -- the Court can imagine it's quite possible that organizations would set up rules of operation that were, indeed, clumsy and difficult and even -- and some people would say the U.S. Constitution is designed not to move quickly or particularly well at times, but that's the choice. You make your choice about maybe you want to go over more hurdles before you get to the

175 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 correction. answer. MR. SMITH: And I wanted to point out

that it was Mr. Wagner himself that made the change to the bylaws that created the quorum problem. was earlier. himself. It

It was 2007, but it was Mr. Wagner Our affidavits

And this is in the record.

talk about these -THE COURT: MR. SMITH: THE COURT: pen and writes it? MR. SMITH: Correct. Thank you for the Mr. Wagner himself? Well, he proposed it. Meaning he just takes out a

He proposed it and it was passed back in It's in the record and the But the change that created this

sometime 2007. declarations.

quorum problem was from that amendment that Mr. Wagner had proposed. So it's, I guess, strange or in a sense ironic or estopped from staying that somehow he as the -- as the purported chair now is -- shouldn't be bound by the change that he purported. THE COURT: Now, we're at 10 o'clock.

There's a 10:45 proceeding? THE CLERK: No, Your Honor. Sorry.

Yes, you are correct.

There is a 10:45.

176 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 disputes. operative. MR. SMITH: Correct. We have factual proceeding. THE COURT: We may have a 10:45

Otherwise, we have some more time. Let me ask this

Well, we have time now until 10:45. question.

Mr. Smith, if you win, what happens? What's the state of affairs? MR. SMITH: Your Honor, if we win this,

our motion for partial summary judgment, the 2009 bylaws are ruled to be the -- the remaining bylaws after that March 31st meeting. THE COURT: MR. SMITH: Which March 31st -March 31st, 2011, when they

purportedly replaced the bylaws with their set of bylaws. Then -THE COURT: bylaws replaced. MR. SMITH: THE COURT: MR. SMITH: THE COURT: Replaced. Or -Stay -- stay there. -- declared -- declared So March 31 is erased. '09

They one tend that they might be quorum

problems with the election of my clients as officers. They can --

177 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 gave me. down. with this. MR. SMITH: THE COURT: Okay. If you would help me, slow THE COURT: MR. SMITH: When? After that point, May 21st.

At the March 12th meeting -THE COURT: MR. SMITH: May 21st of -2011. At the March 12

normal annual convention that everybody attended, Mr. Wagner -THE COURT: MR. SMITH: THE COURT: Now, wait. 2011. You guys are very familiar Go slow.

I got March 31st of '11 action would be The '09 bylaws would be considered There's a question about the May 21, 2011

erased.

operative.

quorum that led to -- on the decision to elect Reeves, right? MR. SMITH: Correct. I believe so. I

think they would assert that. THE COURT: MR. SMITH: THE COURT: March? MR. SMITH: The March of 2011 regular And then what did you say? What I was getting at is -There was another date you

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

made the motion to continue that meeting, hold it open 'til May. meeting. THE COURT: And this is the one that My clients showed up at the May

turns into a social event? MR. SMITH: THE COURT: No. No, not social. It's continued,

No, no, no.

but, in fact, it's never -- doesn't it become then a -MR. STERINGER: The -- the leadership of

the party did turn it into a social event after they took the action to revise the bylaws. THE COURT: MR. SMITH: March 31st meeting. THE COURT: MR. SMITH: Yes. Ours was the May 21st, but Right. There. That's the

the full body, the full convention moved and passed to continue the meeting 'til May. different date. So March 12th, The

There's March 12th, March 31st.

March 12th full convention moved and passed to continue that convention on ultimately May 21st. Plaintiffs, my clients, showed up on May 21st, had those meetings on May 21st, while the

179 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 Continued. defendants -THE COURT: What was the quorum

requirement at that point? MR. SMITH: THE COURT: MR. SMITH: They -- it was -In number of persons? There was two meetings held,

so we'd have to distinguish between the meetings. There was the convention and they did not make quorum on the convention. They had a state committee

meeting following that and they did have quorum at the state committee meeting. So those are -- I think -- I think the defendants will dispute some of these facts, but those were the two meetings that were held according to the bylaws. bylaws. THE COURT: wait, wait, wait. Wait, wait, wait, wait, Those are laid out right in the

What had been adjourned was a

convention, correct? MR. SMITH: distinctions. THE COURT: Or continued, not adjourned. Continued, yes. There's

What had been continued was a convention? MR. SMITH: THE COURT: Correct. Then on May 21,

180 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 quorum. notwithstanding the actions of the defendants in purporting to, I guess, cancel that continuation and have a social event, your folks show up and say, "Well, here we are on May 21. We're here for the

convention, but there's no quorum." MR. SMITH: THE COURT: MR. SMITH: THE COURT: MR. SMITH: THE COURT: MR. SMITH: Right. And then what do they do? They adjourn that meeting. Adjourn what meeting? The convention. The convention. 'Cause you can without a

You can adjourn. THE COURT: MR. SMITH: Yeah. And they opened the state

committee meeting. THE COURT: And by what right did they

open a state committee meeting? MR. SMITH: The bylaws call for a state

committee meeting to follow the closing of the annual convention. THE COURT: But, of course, the

convention hadn't closed. MR. SMITH: Yeah. It had adjourned. It

was adjourned (indiscernible) on May 21st.

181 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 bylaws. whoa. MR. STERINGER: MR. SMITH: It never occurred.

You can adjourn -- these are

Robert's Rules of Order parliamentary questions, but you can -THE COURT: Whoa, whoa, whoa, whoa,

What tells me that Robert's Rules of Order --

it may be -MR. SMITH: THE COURT: The bylaws. -- but what tells me that

Robert's Rules of Order governs the parliamentary procedure? MR. SMITH: Article XVII of the 2009

"The rules contained in the current edition

of Robert's Rules of Order, newly revised, shall govern the LPO in all cases to which they are applicable and in which they are not inconsistent with the LPO Constitution, these bylaws." THE COURT: So now just prior to the

May 21 convention, which you say, indeed, tried to organize but couldn't because of a lack of quorum, just prior to that convention, who were the incumbent officers of the party? MR. SMITH: It would have been --

Mr. Wagner would have been the vice chair sitting in the seat of the chair because the chair had resigned.

182 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 What is it? MR. SMITH: THE COURT: What exhibit or what -Article V. What exhibit? What number? Your Honor. you. faction. MR. SMITH: THE COURT: Right. Had been -THE COURT: MR. SMITH: refresh my memory. THE COURT: But the point is the Wagner Mm-hmm. Other officers, I'd have to

Now, what law or bylaw or

rule tells me who elects or chooses officers of the party? MR. SMITH: THE COURT: MR. SMITH: The 2009 bylaws. And what do they say? These are in the exhibits,

I'll find the portion and read it to "Article V,

It is cited in our briefing.

officers and directors."

Officers and

directors operate -- Section 1, "Officers and directors operate the organization pursuant to Article I of these bylaws and are responsible to the body of the LPO and the state committee. manners of elections. The" -Where are you reading from? Officers

THE COURT:

183 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 Section 2. THE COURT: Mm-hmm. "Shall consistent Burke. THE COURT: MR. SMITH: THE COURT: MR. SMITH: Right. We're on Article V. Mm-hmm. I was about to read MR. SMITH: which document -THE COURT: MR. SMITH: Richard Burke. THE COURT: exhibit again? MR. SMITH: THE COURT: MR. SMITH: Exhibit 1, Page 5. Okay. The declaration of Richard Burke. Hang on here. Which To whose declaration? To the declaration of Oh, Exhibit 1. Officer --

of a chairperson," dadadadada.

"Terms of office

begin immediately upon the close of the annual convention." MR. SMITH: There you go. Down below,

there's the conversation about vacancy and succession, what happens if they're vacant. THE COURT: So you assert that following

a convention that couldn't organize because of lack

184 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 committee? MR. SMITH: State committee at the time of quorum, who then shows Mr. Reeves as -- and his faction as the officers? MR. SMITH: Under (B), the state

committee may select any LPO member to fill any such vacancy until the next annual convention. THE COURT: And who was the state

was comprised of representatives from each -- I think they are called affiliated county parties as well as the state officers. THE COURT: MR. SMITH: And were they all there? There were some there.

There was enough for the quorum. THE COURT: quorum of what? MR. SMITH: Of the state committee. Were they -- enough for a

That was the official state committee. THE COURT: Who tells me what a quorum

of the state committee is? MR. SMITH: Again, the bylaws, I'll have

to find the exact provision, Your Honor. THE COURT: Well, I mean, after all, the

legitimacy of your client depends on this, doesn't it?

185 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 Hold it. on. Page 7? Page 7. here. THE COURT: MR. SMITH: THE COURT: MR. SMITH: Good. "A quorum shall be 20" -Where are you reading from? It's the same exhibit, know -MR. SMITH: Sure. I'll find it for you MR. SMITH: Yes. That's why we have

disputed facts that I've mentioned. THE COURT: MR. SMITH: That's why what? I think -- I think they will We would

make the argument we didn't have quorum. make the argument we do have quorum. THE COURT:

They --

Well, just saying, you

It's Article XI, Section 3.6. THE COURT: Article XI, Section 3. Hang

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

start of Section 3. THE COURT: MR. SMITH: I see. Bullet points. Number 6

particularly points out a quorum shall be 20 -THE COURT: Hold it. No. Wait, wait, wait, wait.

"The state committee shall hold

at least one regular meeting every three months.

186 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 Notice of time each member -- per each member of the state committee shall have one vote. shall be open. All meetings

A quorum is 20 percent of the members

of the state committee." MR. SMITH: THE COURT: committee is? MR. SMITH: The -- normally the -- well, That's it, Your Honor. Who tells me who the state

the membership lists and the credentials committee would normally decide that. And the -- that's -- we

have -- there's an established membership list. THE COURT: When -- who would decide who

is a member of the state committee? MR. SMITH: Article XI again, Section 2.

The bylaws decide who's a member -THE COURT: "Each affiliated county

party will be entitled to two state committee seats." MR. SMITH: THE COURT: Right. "Each ACP will select state

committee representatives or alternates." MR. SMITH: THE COURT: MR. SMITH: That's it. And then 20 percent -Of those are required to

have an official meeting. THE COURT: And then at this official

187 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 meeting -MR. STERINGER: This purported meeting, meeting where you assert there was a proper quorum, the Reeves group were chosen as the new state committee? MR. SMITH: THE COURT: Mr. Steringer? MR. STERINGER: I -- I do want to make Correct, Your Honor. And what do you say,

one thing clear, big picture, when it comes to this meeting. THE COURT: Which meeting? The

the May 21st meeting in which a few of the defendants got together and purported to have a state committee meeting. MR. LEUENBERGER: MR. STERINGER: Plaintiffs. Thank you.

Plaintiffs.

I don't think either party has put the legitimacy of the May 21st meeting at issue in the summary judgment motions, primarily because -- well, we just didn't. I think Mr. Smith correctly

identifies that there may be factual issues that need to be worked out there. But we have put in some evidence into the record that would show or seriously question

188 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 whether they actually had a quorum for a state committee meeting if it was a legitimate state committee meeting in the first place. Understand, this is something that was not attended by any of the officers of the -- of the organization, because the two months prior to that, they had adopted new bylaws that no longer had or required a state committee meeting in -- in May of 2011. And so the motions that we have that deal with officers of the party focus on legal questions where it -- where the answer is clearly established by the bylaws. THE COURT: And --

And now that's a good segue With the

to go through more motions for me.

background we've had, discussion, you come and say, "Here's why we win and here's why we can win without regard to messy fact questions regarding this May meeting." MR. STERINGER: Well, our -- our first

motion is our motion that asserts that this issue was already decided by the Washington County Circuit Court. And the issue that was decided was that a

Circuit Court in Oregon cannot order the type of relief that plaintiffs seek in this case with respect

189 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. Mr. Smith? MR. SMITH: It depends upon the bases, judgment. to the Libertarian Party of Oregon. And that decision was based on the constitutional issue that we've spent some time on this morning. We've asserted the constitutional

issue as a separate motion as well, independent of the issue preclusion argument. That's our second motion for summary And, at some point, I'd like to come back

to the -- to the point that Mr. Smith raises in his briefing about whether subject matter jurisdiction is properly presented to the Court in the form of a summary judgment motion. THE COURT: that, I think. And so I could -Well, I can short-circuit

Subject matter jurisdiction is

relevant at each and every stage of a proceeding, including on appeal. MR. STERINGER: THE COURT: And -- and --

Would you disagree,

Some arguments are lost if they're not Aside from that, I

made in motion to dismiss stage.

would agree with your (indiscernible). THE COURT: No, no, no. An argument on If a

subject matter jurisdiction is never lost.

190 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 Court has -- does not have subject matter jurisdiction, it -- it doesn't -- it isn't created by the failure of a party to object. MR. SMITH: It can't be.

I don't -- I don't think I think we

that argument is going to decide today.

win on all the other grounds (indiscernible). THE COURT: Well, good. I'm just saying

I'm not going to spend much time on the subject matter jurisdiction argument, because if I don't have it, I don't have it. MR. SMITH: THE COURT: Yeah. And I'm not going to -- I'm

not going to walk that plank. MR. STERINGER: Right. And the reason

that I wanted to come back to it is I -- if I have wondered about anything in connection with these motions, it's the question of whether a summary judgment motion versus a motion to dismiss was the proper way to phrase some of these arguments, including standing in the exclusive remedy of the APA. Some may say the constitutional issue also implicates subject matter jurisdiction. And

what I -- what I wanted to -- to propose was that if -- if the plaintiffs are concerned that summary

191 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: Well, before you do that, judgment is not the proper procedural mechanism for raising subject matter jurisdiction and it's -- and if it's acceptable to the Court, we would stipulate that these motions should be considered as motions to dismiss and decided under a motion to dismiss standard rather than a summary judgment motion. I don't think anybody wants to have this -- this issue left undecided two months before trial, because we called it a summary judgment motion instead of a motion to dismiss. THE COURT: MR. SMITH: Mr. Smith? Your Honor, reclassifying I mean, I don't

these I think has already been done.

think this Court's going to -- so the Spada (phonetic) case stands for itself. says what it says. The Spada case

I think it's good law. Well, tell me what it says. Okay. Well, first of all, tell me,

THE COURT: MR. SMITH: THE COURT:

do you agree with Mr. Steringer that I ought to decide this matters and you're not going to object on procedural grounds? MR. SMITH: I'll find the Spada case,

192 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 Spada. MR. SMITH: THE COURT: Okay. So I'm assuming Spada has just -- this is an easier one. Do you agree with

Mr. Steringer -- do you accept Mr. Steringer's invitation to simply waive procedural objections and go to the merits? MR. SMITH: THE COURT: On that we do, Your Honor. So then we don't care about

something to do with motion to -- Rule 21 versus Rule 47? MR. SMITH: THE COURT: Yes. Okay. So you've -- if

you're -- if you're agreeing then, for the record, I'll just proceed to the merits. MR. STERINGER: And now go ahead.

Thank you, Your Honor

and thank you, Counsel, for that. Our third motion has to do with whether the individuals identified as plaintiffs in this case had standing to bring the claims that they assert here. And it is in this motion that we get to the

question of -- of membership and whether the plaintiffs were members of the LPO under the bylaws that they seek to enforce. And on that question, we rely primarily

193 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 on the plaintiffs' responses to requests for admissions where they admitted that they did not pay dues to the Libertarian Party of Oregon in the one-year period leading up to the filing of their complaint. And that's determinative on the question of whether they would have been members under the 2009 bylaws that they seek to enforce. THE COURT: Hmm. And since they were not

MR. STERINGER:

members, they lacked standing to find the lawsuit that they -- they filed. It also has other

implications, the primary one being that the fact that their memberships expired under the 2009 bylaws -THE COURT: Expired. The -- the -- under the

MR. STERINGER:

2009 bylaws, individuals had to pay $50 per year to maintain their membership in the party. THE COURT: Okay. So they perhaps had

paid in the past, but in the year preceding the complaint, they didn't -MR. STERINGER: THE COURT: Correct.

-- pay 50. Correct. Their -- their

MR. STERINGER:

194 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 memberships expired in the time period leading up to the filing of the complaint. THE COURT: Okay. And the -- the effect of

MR. STERINGER:

that expiration is that even if they held a legitimate meeting in -- in May of 2011 where they elected themselves the officers of the party, under the 2009 bylaws, which require the maintenance of membership in order to hold officer positions, they lost those positions. So that impacts whether they had the authority to bring a claim on behalf of the Libertarian Party of Oregon. And it also comes into

play in our counterclaim for declaratory judgment in which if the -- if the Court decides it wants to wade into this intraparty dispute, one -- one of the things that it can decide, as a matter of law, is that the individuals who have identified themselves as officers in the organization, that's plaintiffs Reeves, Saub, Burnett and Pealer, those individuals are not officers of the organization. And -- and That --

that can be determined under the bylaws. THE COURT:

But that's only four, right? That -- those are the

MR. STERINGER:

four individuals, the four lead plaintiffs.

195 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 wait. red herring. requirement? MR. SMITH: Your Honor, that's a giant correct. THE COURT: Carling, Burke? MR. STERINGER: Those individuals That's Yes. What about Terry,

identify themselves as members of the party.

how they seek to establish standing to bring the -the complaint. And, as we said -But they -- are they swept

THE COURT:

up in the they didn't pay the 50 bucks? MR. STERINGER: We have -THE COURT: What about the 50-buck Correct. That's

First of all -THE COURT: Red herring won't help me.

It's just a -MR. SMITH: THE COURT: phrase that won't -MR. SMITH: Well, it's fine. It's a Our That's -- that's -It's just a pejorative

question of fact that's subsequent to that. declarations -- I'm sorry if the Court -THE COURT:

Well, wait, wait, wait,

It's a question of fact, meaning -MR. SMITH: Whether they --

196 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: -- you're saying that

summary judgment can't lie? MR. SMITH: on that question. THE COURT: MR. SMITH: Mr. Reeves, Mr. Burke. Okay. We have declarations from We have an exhibit, the Summary judgment cannot lie

membership lists of plaintiffs' Libertarian Party of Oregon. We have an exhibit, the Libertarian Party of

Oregon suspended the dues requirement during that period of time. We have records of payments in the record showing those dues payments during that period of time. THE COURT: Okay. Just a moment.

Mr. Steringer, you -- you -- I believe you said you relied on a request for admission. MR. STERINGER: for admission. We -- we have a request

It is -- it's in the -- the John Rake And it is exhibit -- let's

(phonetic) declaration. see.

It's Exhibit 17 to the revised declaration of The admitted state -THE COURT: The revised declaration? Declaration. It's also attached to

John Rake.

I've got a declaration.

MR. STERINGER:

197 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've got yours. Then go live your life. moment. the original declaration, but I'm not sure it's the same exhibit number. THE COURT: Which -- where is it

attached on the original declaration? MR. STERINGER: MR. SMITH: Let me see if I can --

Your Honor, I wouldn't be

opposed to him just simply reading it, because it's talking about payments to their organization. There's no -- yes, my clients didn't pay their organization after they were in charge of their own organization. That's what he -- go ahead and have him read it, because I -- we -- it's in there, but that -- that doesn't apply here. THE COURT: Just a moment. Just a

There's only one organization, isn't there? MR. SMITH: THE COURT: There's -There's one organization and You've just

the question is who controls it.

suggested there are two organizations. MR. SMITH: There are two organizations,

They've got his -- he's got his. That is

Don't ask me to decide who governs one.

198 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 retreat. one -THE COURT: Back. MR. STERINGER: THE COURT: The admission that -Stop. That's all. You fundamentally inconsistent. You either retreat from

that position or we go no further. MR. SMITH: There's two organizations

that believe they are the sole -THE COURT: Sir, sir, you either retreat Do you

from that position or we go no further. retreat? MR. SMITH:

Yes, Your Honor.

There's

It's hard enough for me to

try to figure this out if we're talking about who controls one organization. If your theory is there

are two organizations, I will go no further. MR. STERINGER: THE COURT: The admission --

You can each have your own

organization and you can meet on the field of battle somewhere and solve it by jousting. Rake? Which exhibit? MR. STERINGER: It's Exhibit 17 in -- in Rake. Which

both of the declarations, so you should be able to find it there. THE COURT: Rake. You said there was a

199 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 Rakes -THE COURT: 17. I've got it. Okay. revised Rake? got a lot. MR. STERINGER: If you have one of the I'm -- I'm assuming I've got it. I've

MR. STERINGER: THE COURT: request for admissions. Okay.

Defendant Libertarian --

Go ahead. And it's Request for

MR. STERINGER: Admission No. 3 on Page 3. THE COURT:

Okay. Top of the page.

MR. STERINGER: THE COURT:

"No plaintiff paid $50 or

more in dues to the Libertarian Party of Oregon between January 16th and January 16th, '12." Response, blank. MR. STERINGER: to later in the -THE COURT: Were their responses filed? They were. It's -- if And then we have to turn

MR. STERINGER:

you turn to Page 9 of exhibit. THE COURT: Okay. We have their responses

MR. STERINGER: and that is admitted.

200 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 work. MR. SMITH: THE COURT: They also -This is just another version committee? MR. SMITH: The Reeves state committee moment. THE COURT: that, Mr. Smith? MR. SMITH: Your Honor, this dues Okay. What can you do with

requirement was suspended during that -- that period of time that they're talking about to pay the dues. My client, Mr. Burnett, is the treasurer. THE COURT: Well, just a moment. Just a

But the request for admission was no

plaintiff paid 50 or more in dues to the Libertarian Party of Oregon. And the response is admitted. It's 'cause they suspended They --

MR. SMITH:

the dues requirement, Your Honor. THE COURT: MR. SMITH:

Who's "they"? Let me rewind. The state People pay

committee suspended the dues requirement. dues -THE COURT:

Who -- well, which state

suspended the dues requirement after they took office. THE COURT: Oh, well. That doesn't

201 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: Okay. Then why don't you moment. here. of the two-organization argument. MR. SMITH: Your Honor, we have dues. There are -Just a

They're in the declarations. THE COURT:

Well, just a moment.

Let me make sure I've got my dates right

The request is between January 16th of '11 and Now, during that time period,

January 16th of '12.

the Reeves faction files this lawsuit. MR. STERINGER: The Reeves faction filed

the lawsuit on the last day of that period. THE COURT: Okay. What this establishes is

MR. STERINGER:

what happened during the year preceding the filing of the lawsuit. THE COURT: And they didn't pay dollars

to that organization, they admit, but then Mr. Smith says yes, but -MR. SMITH: There's a couple of things,

take me through them carefully and slowly. MR. SMITH: THE COURT: MR. SMITH: THE COURT: Okay. One is -One is --- requirement suspended.

202 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. SMITH: defendants -THE COURT: Now, wait. Are we talking -- that what the

about requirements suspended? MR. SMITH: THE COURT: just a moment. MR. SMITH: THE COURT: Reeves, right? MR. SMITH: THE COURT: Correct. Which, I think, is a perfect Okay. Requirement suspended by That's one aspect to it. Okay. Let's stop there for

definition of a bootstrap, because the whole question here is who has legitimate authority to do anything and if we get down to, "Well, I have legitimate authority because I seized the chair and then declared that I didn't have to pay dues and so now I don't have to pay dues." MR. SMITH: That's why -- partial That's all we're

summary judgment, Your Honor.

asking for is partial summary judgment, 'cause those are questions of fact (indiscernible). THE COURT: Well, now, just a moment. This is a very serious

Just -- no, no, no, no, no. point.

This goes to standing.

203 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 requirement. THE COURT: MR. SMITH: THE COURT: meaning which date? I'm going to say no -Under their bylaws. Now, under their bylaws, my -MR. SMITH: Okay. There was no dues MR. SMITH: THE COURT: Mm-hmm. Mr. Steringer is saying your

client simply lacks standing because under the -they cannot on the one hand embrace the '09 bylaws and seek the benefit of them and then when it becomes inconvenient, namely, the dues requirement, say, "Oh, well, but those don't apply because we changed them." MR. SMITH: THE COURT: Right. And --

So what gets you there other

than Reeves changes the rules? MR. SMITH: Your Honor, the other points

that I haven't even gotten to talk about yet are the -THE COURT: No, no. I want you to stay

on the subject of payment of dues, so -MR. SMITH: was no dues -THE COURT: So I'm going to put B on Dues. Absolutely. There

204 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 -THE COURT: 2009, aren't we? MR. SMITH: Assuming 2009 are the But we're talking about MR. SMITH: Their 2011 bylaws that

governing documents, yes, we're talking 2009. THE COURT: MR. SMITH: they're the leadership. Under 11 -They're asserting that And as you pointed out,

there's only one organization, so we have to determine which governing documents were required. Theirs had no bylaw requirement. THE COURT: Okay. And now you're doing

the -- the what's good for the goose is good for the gander argument. Namely, if you want to -- you,

Steringer, want the '11 bylaws, then you've got to take the disadvantage of the '11 bylaws, which is they don't contain a dues requirement. MR. SMITH: THE COURT: Yes. What do you say to that? Well, what I say is that

MR. STERINGER:

if the plaintiffs are willing to concede today that the 2011 bylaws are operative, then I'm not sure what we've been fighting over for the last year. The --

the claim that is brought by the plaintiffs is that

205 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 I may -THE COURT: MR. SMITH: Back to you. So on the points that I'm the 2009 bylaws are in effect. If the 2011 bylaws are in effect, it is true, the -- the individuals, including the party itself that revised the bylaws, removed this $50 dues requirement. They determined that that was not an

appropriate way to run a party. THE COURT: people in the '11. MR. STERINGER: defendant group. THE COURT: Because this is part of That's the -- the That was -- that was your

the -- the dues requirement and also the where do you live requirement. MR. STERINGER: THE COURT: Correct.

Or not where do you live,

but there be some geographic limitation to who's a Libertarian in Oregon. MR. STERINGER: THE COURT: MR. SMITH: Exactly.

Okay. Your Honor -- Your Honor, if

making, I have two more to talk about with regard to this.

206 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 time period. standing. THE COURT: MR. SMITH: THE COURT: So I'm at C. Okay. Yes.

A is requirement is

superseded by Mr. Reeves; B, no dues requirement under '11 -MR. SMITH: THE COURT: MR. SMITH: Right. -- C -We're getting back to the

This is started out as a standing and

that's where I mentioned the -- the pejorative of a red herring is because we're talking about standing here. It's uncontested that my clients were all

members in March 12th of 2011, March 31st of 2011, May 21st, 2011 -THE COURT: Wait. Hold it. Uncontested

that plaintiffs were members when? MR. SMITH: Those -- during the 2011

The whole year for that matter, but

March 12th, 2011, March 31st, 2011, particularly. The reason I mention that -THE COURT: MR. SMITH: THE COURT: And May 21, right? And May 21. Now, you say it's

uncontested and yet Mr. Steringer I think has just contested it. So let me go back to him and see --

207 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. SMITH: THE COURT: Okay. Or do we have another one of

these you say west, he says east? MR. STERINGER: I'm not -- I'm not sure

where we get the -- the idea that the defendants have conceded membership all the way through 2011. have to dig into my motions here. But we have the -- in the record, we have the evidence of the last payments that were made by the various plaintiffs and my recollection is that -- that those occurred in October, maybe the latest was December of 2010. And so their I'd

memberships had expired in the latter half of 2011. THE COURT: And the critical point for It's the date on

you is not March or May of 2011. which is action is filed. MR. STERINGER:

That's correct.

For

purposes of standing, that is the -THE COURT: MR. SMITH: For purposes of standing. And, Your Honor, the reason

I bring that up is because for purposes of standing, the statutes point out exactly what's required for standing on the -THE COURT: MR. SMITH: Which statute? -- our claims.

208 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: THE COURT: Yes. Or we'll move on to D, which Hang on. Well, first of all, let me go back. I've got A, B and C. So far, that's three reasons THE COURT: MR. SMITH: Which statutes? We have three claims. I'm

going to go through those in detail. memorandum.

We do in our

Each of the statutes that we're bringing

under declaratory relief, 28.010 and 020, 65.084 -THE COURT: Hang on. Hang on. Hang on.

why the dues payment requirement isn't a bar. MR. SMITH: THE COURT: Right. And now Mr. Steringer has

disagreed with you and said, no, you -- you don't -there's no factual question and your people hadn't paid their dues within the requisite period when they filed the -- this lawsuit. Now, do you have anything more to say on

would be the fourth reason. MR. SMITH: THE COURT: MR. SMITH: THE COURT: Yes. You're on C still? I was going to add -- add D. Okay.

209 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 payment. THE COURT: MR. SMITH: THE COURT: What tells me that? Well, the bylaws -I mean, I can imagine in my moment. MR. SMITH: We -- I think it's in the

record, and as you said, October through December of 2011, even their records, whatever the dates are, October through December. Their records, I think, is

what you were saying would show that all dues were paid to that period of time. What I'm going to suggest is that those are not measuring dates for standing on these claims. THE COURT: What? Now, wait just a

Are they the measuring dates for membership? MR. SMITH: THE COURT: No. What tells me what the

membership period is when one makes a payment? MR. SMITH: Whenever they make their

experience, especially in the tax law, all kinds of payments are made in April for the prior year, payments are made in advance, payments are made in arrears. Is there anything that tells me that when somebody -- under the '09 bylaws -- when somebody wrote a check for dues, were they paying in

210 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 advance? Were they paying in arrears? Were they

paying on a rolling basis? In other words, if I pay on October 12th, I'm a member until the next October 12th and some guy next to me may pay on October 30th and he's a member 'til the next October 30th. MR. SMITH: THE COURT: Yeah. I mean, I'd hate to keep the

membership records of this organization, but if that was the rule, but -MR. SMITH: Membership records are

actually in there, Your Honor, and they show the expirations of my clients long after that. Article III of the 2009 bylaws covers membership, talks about the requirements for membership and it talks about only OPL members who pay dues and keep them current may hold the office and participate and vote. THE COURT: current means? MR. SMITH: Yes. It talks about the "Each membership is But did it ever tell me what

terms of membership, Section 3.

valid for the length of time specified on the application it was submitted on. Membership remains

211 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 matters. Hang on. in effect for one year following the date of application, payment of dues, whichever comes later, unless terminated under the provisions of this Article, Section 5 covers a termination." There has to be a hearing to actually then terminate membership rights. THE COURT: MR. SMITH: Where are you reading from? Article III of the -- it's

Exhibit 1 again, Page 2 of the 2009 bylaws. THE COURT: Article -MR. SMITH: And the first sentence of Article III, Section 2.

Section 2 is particularly important. THE COURT: Wait, wait. Section 2,

requirements of membership? MR. SMITH: The first sentence is what I

was going to point out on that. THE COURT: "Full voting membership in

LPO shall be open to any individual who submits a completed application and pays dues." MR. SMITH: "As may be in effect at the

time of that application." THE COURT: MR. SMITH: Right. That's why suspension

212 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 convention. THE COURT: No, no, no. Section 4, THE COURT: Hang on. "Only LPO members

who pay dues and keep them current may hold office or participate as voting delegates. Membership remains

in effect for one year following the date of the application or the date of payment of dues, whichever comes later." So it could only last a year. That's (indiscernible)

MR. SMITH: determination. They --

THE COURT: a year, correct? MR. SMITH:

I'm sorry.

It can only last

The ability to hold office

or participate as a delegate -THE COURT: MR. SMITH: No, no, no. -- at the national

"Membership remains in effect for one year following the date of application or the payment of dues, whichever comes later," so -- but let's just take payment of dues. provisions." MR. SMITH: requirement, yes. too -THE COURT: What do you mean, if there's If there's a dues "Unless terminated under the

(Indiscernible) we read above

213 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 Stop. requirement. a dues requirement? Unless terminated. I'm assuming

what that means is, "I pay my money, I'm a member for a year. However, I may do something bad and get

terminated." MR. SMITH: There's not always a dues

That's what Section 2 talks about.

"Full voting membership in the LPO shall be open to any individual who submits a completed application to the LPO and pays such dues as may be in effect at the time of the application." THE COURT: MR. SMITH: Right. "At the time of the

application" if there were no dues requirements at that point -THE COURT: But -- but -- but this is

just a variation of the first argument, which is Reeves changed the rules, isn't it? MR. SMITH: No, Your Honor. The

Secretary of State -- they have filed three complaints to the Secretary of State and the Secretary of State -- we have been barred by operation of law, the Secretary -- these are in the record. THE COURT: Wait, wait, wait. Stop.

214 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 had to? MR. STERINGER: What -- what I Stop. Your assertion is that somehow there was, in fact, not a dues requirement, not because of the action of Reeves, but because of the action of the organization, that somehow the dues requirement had been dispensed with by the old organization. That's what I hear you saying. MR. SMITH: forced to by law. Because the -- they were MR. SMITH: THE COURT: I said we can't be -Stop. Stop. Stop. Stop.

They had to. Do you agree that you

THE COURT:

understand Mr. Smith to be arguing is that the -- the defendants filed complaints with the Secretary of State complaining about the fact that the plaintiffs' group was raising money under the name of the Libertarian Party of Oregon. And because the Secretary of State recognized the defendants' group as the Libertarian Party of Oregon, that has consequences. And, specifically, it meant that the plaintiffs needed to turn over money to the treasurer of the party so that it could be reported for campaign

215 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 finance purposes. The Secretary of State disposed of that complaints by -- by concluding after receiving input from the plaintiffs that whatever the plaintiffs were doing, they were not doing it as the Libertarian Party of Oregon; and, therefore, would not be subject to the -- the statutes on the reporting of campaign contributions. THE COURT: And so could keep the money. And -- and so they could

MR. STERINGER:

keep the money under the -- under the Secretary of State's rulings. They didn't have to turn it over to

the treasurer of the party. THE COURT: But none of this sounds

anything like a suspension of the dues requirement. MR. SMITH: They immediately upon that

later ruling -- there's a -- I don't remember the gap, multi-month gap in between the first complaint, which they rejected, and the third complaint. THE COURT: MR. SMITH: Who's "they"? The Secretary of State

rejected and the third complaint, which they rejected with an explanation. The Reeves Libertarian Party of

Oregon immediately started the dues requirement again after that period of time when the Secretary of State

216 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: Well, there's a request for dues. THE COURT: Reeves group. I don't care about the said, "You can collect your own money." THE COURT: The Reeves group. I don't

care about the Reeves group. MR. SMITH: The dues, they were paying

I care about the old-fashioned

Libertarian Party of Oregon under the '09 bylaws, where the incumbent officers were the Wagner group. MR. SMITH: If the '09 bylaws are

stipulated to be in effect, then -THE COURT: to stipulate. No, no, no. They don't have All

You're -- that's what you want.

Mr. Steringer is saying is if that's what you want, then you've got to live with what those bring with them. And what they bring with them is the

requirement to pay dues, dues which you've admitted you didn't pay. MR. SMITH: We have not admitted that,

missions with the word admitted. MR. SMITH: They did not pay the $50.

What I was getting at, I think you have D on your list. We haven't even gotten to D yet on this point.

217 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 list? MR. SMITH: D is also that it's a THE COURT: Well, we were trying to get

there and then you took me a little route around what Mr. Steringer says has nothing to do with dues. MR. SMITH: aspects of this. THE COURT: MR. SMITH: requirements and D -THE COURT: No. What is D? What is on So what is D? A proper date for standing We've got the two other

practice in the Libertarian Party of Oregon long before this dispute that payment by dues in kind is accepted. THE COURT: MR. SMITH: So? So payment by dues, as it's

stated in the declarations was made during that time by some of the plaintiffs. THE COURT: wait, wait, wait. So, again -Wait,

Well, wait a minute.

Hold it.

The request was no plaintiff paid 50 more -- or dollars more in dues. In cash, in kind, whatever. do it. Sorry. Next. Doesn't say how. Didn't

Answer admitted.

218 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. SMITH: The relevant date,

Your Honor, for the standing, as we pointed out in our standing argument, that the claims here, we've got declaratory relief, the rights and duties of members. There is no -- no contest that the plaintiffs, who are registered Libertarians in the state of Oregon are members of -- if their membership list is the Reeves list -THE COURT: MR. SMITH: I'm sorry? If the membership list is

the Reeves list or if the membership list is their list that they would be members of those two lists, but -- so they'd be members. What I'm getting at is

28.010, the first claim for relief that in order to have standing under that you would have to have a right, contract right. We've cited the cases to have a contract right that bylaws create contract rights and are enforceable. The Oregon Supreme Court case on that

was Dentell, 273 Or 31. THE COURT: political party, do you? You have no case involving a They're all -- they're all

corporate -- I mean, they're all business organizations.

219 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 There's not. THE COURT: MR. SMITH: Okay. Keep going. MR. SMITH: THE COURT: MR. SMITH: In Oregon? Yeah. In Oregon, we do not.

I want to point out that ORS

Chapter 248.004 specifically applies. THE COURT: No, wait. First of all, we

have the -- do you have -- you seek declaratory relief and you say we have standing even though we weren't -- arguably weren't members. MR. SMITH: The standing would be when

the dispute arose, what -- at the time the dispute arose, who -THE COURT: Dispute arose? No. I think

it's the time the action is filed. MR. SMITH: The relevant period of time

as to when their membership, when their rights were violated would be when the improper action is taken. THE COURT: It would be the lawsuit. MR. SMITH: No, no, no, no, no, no, no. It would be the lawsuit. And there's no -- there's

no -- I don't believe there's a contention by them that the -- any of the plaintiffs are not registered Libertarians in the state of Oregon.

220 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. figure out. Mr. Steringer, is that your argument? MR. STERINGER: THE COURT: Under the 2009 bylaws. argument. MR. STERINGER: MR. SMITH: say in the documents. THE COURT: Well, that's really easy to Under the -THE COURT: No. There is a contention.

Their contention is that at the time this action was filed the plaintiffs did not have standing because they were not members of the organization. MR. SMITH: I don't believe that's their

That's contradicts what they

Yes, under the 2009 bylaws. That -- that is correct.

MR. STERINGER: MR. SMITH:

And we dispute that fact,

That's what the record -THE COURT: MR. SMITH: Dispute what fact? The declarations from the --

Mr. Reeves, who was the chair -THE COURT: Dispute what fact? MR. SMITH: That my clients are members They No, no. Listen. Listen.

and were members the entire period of time.

were the chair, treasurer, the secretary and were

221 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 members. THE COURT: Okay. Next.

Mr. Steringer, how about back to you. We were at the standing. MR. STERINGER: Are the -- are we

looking at the -- the next motion? THE COURT: Yes. Have you heard what you

MR. STERINGER:

need to hear on -- on standing? THE COURT: Right. Okay. The -- the

MR. STERINGER:

fourth -- the fourth motion we have offered asks for summary judgment on the grounds that the plaintiffs did not have authority to bring this claim on behalf of the Libertarian Party of Oregon and that follows necessarily from everything we've -- we've talked about here today. The fifth motion is the -THE COURT: But that would only, of

course, affect the claims that are denominated as claims of the Libertarian Party of Oregon. MR. STERINGER: That -- brought by --

that are purported to be brought by the Libertarian Party of Oregon -THE COURT: Yes.

222 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: Okay. Next. correct. THE COURT: For example, let's assume MR. SMITH: -- as the plaintiff,

that I concluded that, in fact, they did have -they, the individuals, Reeves, Saub and others did have standing. You might win the motion that they can't bring it on behalf of Libertarian Party -- I'm sorry -- of the Libertarian Party, but you might lose the motion on -- as to whether they could bring it themselves. This motion, your -MR. STERINGER: THE COURT: That's correct.

-- fourth motion, is just

are they the proper representatives of that organization. MR. STERINGER: That's correct,

MR. STERINGER:

Motion No. 5 is the

argument that to the extent the plaintiffs are seeking to challenge the decision of the Secretary of State to recognize Mr. Wagner as the chair of the organization and Mr. Vetanen as the treasurer of the organization, that is something that they need to

223 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. do -- they needed to seek judicial review under the Administrative -- Administrative Procedures Act in order to have that reviewed. THE COURT: Okay. The response to that has

MR. STERINGER:

been that's what we're not asking the -- the Court to do. And if that is -- if they're held to that, we

would -- we would concede that we don't need to move forward on that. THE COURT: Well, you articulated the

motion as "to the extent that," and I -- I take it from what you said -- I'll ask Mr. Smith -- are you saying, "Well, we're not -- we don't seek in this proceeding to challenge what Secretary of State did." MR. SMITH: We did not seek to challenge We

Your Honor, it's actually interesting.

didn't seek to challenge what the Secretary of State did, because we agree. Their proposition -- and we

had this in oral argument before when this argument was denied. They wanted us to challenge a -- a reading of Secretary of State of 248.011 that we agree with, that the Secretary of State could not get involved. says. And that's what the director of elections You've got

"We will not get involved in this.

224 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 Yes. MR. STERINGER: Yeah. Primarily 27. wait. MR. STERINGER: THE COURT: 27. The -- the first -Secretary of State. to go to court to have this resolved." THE COURT: What document is it that the What's the

Secretary of State -- what is the action?

evidence of the action that you say if they disagreed with that they should have gone through the APA process? MR. STERINGER: That is Exhibits 26 and That should be

27 to the first Wagner declaration. the large one. THE COURT: Mm-hmm.

Oh, is this the --

Exhibit 26 is some e-mail correspondence that reaches the same conclusion. Exhibit 27 is the letter from the director of elections recognizing Wagner as the chair of the Libertarian Party of Oregon. THE COURT: MR. SMITH: THE COURT: Okay. Very well.

Your Honor -Just one moment.

Mr. Conn (phonetic)? MR. CONN: I'm happy to wait while the

225 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 response. THE COURT: MR. CONN: THE COURT: MR. CONN: I'm sorry? He did not file a response. All right. Thank you. being late. THE COURT: MR. CONN: Yes. And he's pro se and he internal workings of the Libertarian Party of Oregon are litigated (indiscernible) because Mr. Dunbar has an active complaint. THE COURT: to show up today? MR. CONN: Possibly. He has a habit of Do you expect your opponent

probably doesn't know where the Holman Building is. And it's okay with me -THE COURT: MR. CONN: Fine. -- that we wait for him to

appear because this is more important than our little contract dispute. THE COURT: final question. Well, but let me ask one

And that is I am -- I was not given

and I'm not aware, but I was not given any response to your motion by your -MR. CONN: (Indiscernible) file a

(Indiscernible) I think.

226 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 a while. THE COURT: All right. Well, no, and could argue. THE COURT: MR. CONN: Yeah. I'm okay to listen to this THE COURT: MR. CONN: process rights. THE COURT: MR. CONN: Mm-hmm. Because he's a reasonably Well, that's true. I don't want to limit his due

intelligent person who's not (indiscernible) but -THE COURT: MR. CONN: Okay. -- you know, (indiscernible)

that's what you'll get to do.

But -- but we may If you find this

charge admission here if you want.

entertaining, maybe you should pay for it. MR. CONN: I'm going to get a lot more

out of this than I'm going to read in The Oregonian, believe me. THE COURT: Here's my final concern and

that is your opponent may, because of that door, feel that he needs to stay outside the door. MR. CONN: THE COURT: I'll go check. From time to time, will you

check and make sure that he isn't loitering out

227 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 minutes. THE COURT: MR. CONN: kind of thing. THE COURT: MR. CONN: THE COURT: Okay. Good. Thank you. Yeah. Fine. there? MR. CONN: I'll check now and in 10

He's pretty good about that

He's not here now. All right. Next.

MR. STERINGER:

Our sixth motion is the

motion that we make based on our counterclaim for declaratory judgment. Again, this is assuming that

the Court decides to get into the intraparty dispute. And what we're able to establish based on -- primarily on the failure to pay dues, but there's another item that I want to hit on that is that plaintiffs Reeves, Saub, Burnett and Pealer do not occupy the officer positions that they claim to occupy. The -- the bylaws argument or the dues argument under the bylaws has to do with the requirement to maintain dues or else you lose an officer position. The -- the other argument applies

only to -- to plaintiff Burnett, who claims to be the treasurer of the party and plaintiff Pealer, who

228 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 claimed -- I understand she doesn't anymore, but she did claim to be the secretary of the party. And the reason we can establish as a matter of law that neither of them occupy those positions is that the bylaws themselves do not provide for determination of those officer positions until they are filled. And so at the May 21st meeting, at the time of the May 21st meeting with the Reeves folks got together and appointed the people that they call the officers, the offices of -- of treasurer and secretary had not been vacated, reason being that there was no convention that was organized to hold elections to elect new people to those positions. THE COURT: offices, not as to -MR. STERINGER: It's only to those two But that's only as to two

because the vice president position had been vacated by Mr. Wagner to take the position of chair. THE COURT: Mm-hmm. And the -- the chair

MR. STERINGER:

position -- when the chair position is filled on account of a vacancy, the -- the -- the vice chair holds that position until the end of the next convention.

229 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 brief. And we noted this in our -- in our There is a question about, in these

circumstances, what is the next convention and that is because the vacancy occurred while the parties were attempting to organize a convention. And if next means the next one to occur, then it would be two years after that. If next

includes the one that was ongoing at the time, then -- then he would have held the position until the end of that convention, but that convention never occurred. So we have that issue as well. We

decided not to raise that issue on summary judgment. THE COURT: Okay. Next.

MR. STERINGER:

Our seventh motion is

against plaintiffs' claim against the Libertarian Party of Oregon under ORS 65.084, which is a nonprofit corporation statute. We argued before that

this particular statute does not apply to political parties. THE COURT: mean under Rule 21? MR. STERINGER: THE COURT: In Rule 21 motions. When you say before, you

Mm-hmm. We -- at the time, my

MR. STERINGER:

230 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 recollection was that the claim was asserted only against the individuals. I could be wrong about

that, but I do know that the plaintiffs now assert that claim against the party as well. And our interpretation of the statute is that while they may be able to assert claims against individuals, their claim is not one that can be brought against the entity itself. Now, this is --

this is one of the motions where the individual defendants have different arguments to make, but ours is -- is fairly narrow. THE COURT: Okay. And then the last motion

MR. STERINGER:

that the party brought at the outset was Motion No. 8. The plaintiffs have asserted a claim for breach And we

of fiduciary duty against the party itself. believe it's self-evident that a -- that the

organization cannot breach a fiduciary duty to the -the plaintiffs. THE COURT: Because? Because there's no law

MR. STERINGER:

establishing any such duty that a political party has to -- to its members. THE COURT: And what is the relief

sought, Mr. Smith, on the breach of fiduciary duty

231 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 relief. relief? MR. SMITH: It's not monetary. We do claim? Is it monetary relief? MR. SMITH: Your Honor, the breach of

fiduciary duty, it's -- it's injunctive relief and declaratory relief. And the -- order them to turn

over the financial books, order them to notify the -the Secretary of State that Mr. Wagner was not, in fact, elected as he -- as he purported to be. have to review the complaint. THE COURT: But it's not monetary I'd

ask for in -- in the complaint and it's allowed for in the statute, we do ask for as part of the prayer. And I believe it's leave -- there's in the statute it calls for leave to file a supplemental pleading after you've gotten that relief. to cite it. It's -- it's -- I'd have

(Indiscernible). THE COURT: Are you thinking about the

declaratory relief or the breach of fiduciary duty relief? MR. SMITH: Yeah. Maybe the declaratory

There's a part of prayer -THE COURT: I think you may be talking

about the declaratory relief. MR. SMITH: Yeah. There's a part of the

232 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 No. 9. prayer that -THE COURT: Okay. All right. Let me

hear just briefly from the individual defendants who are separately represented here as to what Mr. Steringer indicated. And you may have some other

arguments with respect to certain of the plaintiffs' claims. Then I'll come back to Mr. Smith. Who wishes to go first? MR. LEUENBERGER: Yes. Our motion

And we -- we -- we adopted the Libertarian And our

Party of Oregon's Motions 1 through 8.

Motion No. 9 is that if, as plaintiffs assert, Chapter 65 applies to a political party, then pursuant to Chapter 65, the state committee was authorized to amend the bylaws, as was the membership of the LPO, authorized to amend the bylaws and that they did so in accordance with ORS Chapter 65.464. THE COURT: difference from -MR. LEUENBERGER: Motion 10 is -THE COURT: Oh, I'm sorry. -- that my client, And that's And -- well, our Okay. And any -- any

MR. LEUENBERGER:

Mr. Wagner, did not breach any duty.

basically because he was authorized by -- by state

233 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 statute, et cetera, as well as all the arguments made by the Libertarian Party of Oregon, to do the acts that he took -- take the actions that he took as chairman of the -- or chairperson of the Libertarian Party of Oregon. THE COURT: And again, as to the

individual, Wagner, you seek no -- do you seek monetary relief or again, just injunctive and declaratory -- injunctive relief, if you will. MR. SMITH: Your Honor, that's where we

left open under the Declaratory Relief Act the ability to file that supplemental complaint after declaratory relief is -- is granted against Mr. Wagner personally. in our complaint. THE COURT: And do you today -- are you It's in the prayer and it's

willing to do to concede that you will not seek monetary relief against Mr. Wagner or do you want to -- do you reserve the right to seek monetary relief? MR. SMITH: Your Honor, once the LPO is

properly constituted back and this is all settled, that's -- we've -- we've -- my clients have decided that's an decision the entire body needs to make whether they want -- what kind of remedy they want to

234 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 seek? MR. SMITH: In this lawsuit as its pled, lawsuit. seek against Mr. Wagner. THE COURT: Do you seek -MR. SMITH: Right. That's why we put I'm talking about this

that in there as (indiscernible). THE COURT: In this lawsuit, do you

we do not, but we ask for leave to file that later as ORS Chapter 28 allows. It's the specific statutory

provision that allows a supplemental complaint to be made after declaratory relief has been established. And that is the one that reserves the right -- asked for the Court to authorize, to reserve the right to seek damages against Mr. Wagner for what he had done. THE COURT: Chapter 28 that way? Mr. Leuenberger, do you read

That is, that -- 'cause this

proceeding could end up going up to the Oregon Supreme Court and back. Do they get to hold out for

a damage action or do they need to get the declaration in in this same proceeding get the damages if they wish to have them and then have that all go up? MR. LEUENBERGER: Well, that's my

235 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 understanding, Your Honor, is that if they want monetary damages, they have to ask for them in this -- in this lawsuit. THE COURT: Okay. Now, I think I'm

acquainted with -- I know I'm acquainted with -- I might not be adequately acquainted with the language of the statute, which is that you can seek declaratory relief and then -- and then -- and then other relief. But the question is -- if I understand Mr. Smith's argument, it would be, "Well, we can seek this relief and if we get it and then if we exhaust any appeals and now we know that the Reeves folks are in charge, then the Reeves folks can ask the membership, "Should we go out and get money out of Mr. Wagner?" And then we can -- as if this proceeding is still pending, we can then, in effect, amend the complaint and say, "Wagner would pay us several thousand dollars or several hundred thousand dollars," or whatever. Is that what you're saying, Mr. Smith? MR. SMITH: is what allows this. THE COURT: Which says -Your Honor, yes. ORS 28.080

236 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. Conn? finish. THE COURT: No. Wait. Mr. -And we MR. SMITH: have the statute. Looks like that -- I don't

That's where we prayed -- that's

where we've made -THE COURT: MR. SMITH: THE COURT: MR. SMITH: That's fine. -- in the complaint. I can find it. 28.080 is what authorizes us

to do that precise thing, to make that at a later time. THE COURT: MR. SMITH: Okay. Again, also -- I'll let you

MR. ANDRIES:

Andries.

incorporate all the prior 10 motions on behalf of my clients. And we added Motion 11, which was the same

as Mr. Leuenberger's Motion 10, which was brought on behalf of Mr. Wagner. Our Motion 11 extends that to

all of my clients, the remaining defendants. THE COURT: Okay. So I will let

MR. ANDRIES:

Mr. Leuenberger answer questions as he was the original drafter. THE COURT: Okay. It's now 11 o'clock.

237 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 seeks what? MR. SMITH: Seeks the declaration that come back. THE COURT: cross motion? Thank you. Do you have a the street? MR. CONN: THE COURT: MR. CONN: Yes. Thank you. I'll see what's up and I'll back. THE COURT: You mean, you'll go out on MR. CONN: THE COURT: MR. CONN: I'll go outside, but I -I'm sorry? I'll go outside. I'll come

Or do you -Ours was a partial motion. Partial -Motion for partial summary

MR. SMITH: THE COURT: MR. SMITH:

judgment based on just the interpretation on the bylaws and which bylaws govern. THE COURT: And that partial motion

the 2009 bylaws were not changed at that March 31st meeting, March 31st, 2011 meeting. We point the --

the 2009 bylaws show, you know, clearly that bylaws can only be changed in a meeting, in a convention. 45 days' notice is required before a bylaw change.

238 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 work out." THE COURT: MR. SMITH: Mm-hmm. And that they didn't have

the right people there to constitute -THE COURT: of declaration? Anything else sought by way

That's as to the bylaws. On our partial summary

MR. SMITH:

judgment, we're only asking for -- that the 2009 bylaws were not changed. THE COURT: What about the status of

the -- of Reeves and others as officers? MR. SMITH: I believe that's caught up If this Court

in questions of fact, Your Honor. disagrees, we -THE COURT: asking -- no, no, no.

Well, but you're not

I'm just saying your -- your

-- your motion back does not go to that. MR. SMITH: THE COURT: Does not go to that. Is fair to me to summarize

your motion as, "We believe Rulebook '09 ought to apply rather than Rulebook '11. declaration and" -MR. SMITH: THE COURT: Prior to trial, yeah. "And then other things will I'm Give us that

Is that the way you understand it?

not suggesting that Mr. Smith hasn't been

239 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 forthcoming, but is that the way you understand it, Mr. Steringer? MR. STERINGER: I understand Mr. Smith's

motion for partial summary judgment as being limited to seeking a declaration that the 2009 bylaws were not changed in 2011. that. THE COURT: officer status. MR. STERINGER: THE COURT: Well -Mm-hmm. Yes, as to the We filed a cross motion to

Now -- go ahead. If I may, we actually --

MR. STERINGER:

once that was put on the table, we did file another -- another motion. THE COURT: Mm-hmm. We had our own cross

MR. STERINGER:

motion that -- that takes up the argument that Mr. Leuenberger just mentioned; which is, again, plaintiffs have argued that ORS Chapter 65 applies here. And, in that case, ORS 65.464 allows the board

of directors of organizations to amend bylaws -THE COURT: MR. SMITH: incorporation -THE COURT: Mm-hmm. Mm-hmm. -- unless articles of

240 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 65.077. MR. STERINGER: the province of members. THE COURT: Mr. Smith, do you -- do you Make that exclusively

really see Chapter 248 as providing for total application of Chapter 65 on the nonprofits or -- in the way I read it, it -- it has very limited -- it has limited application. It's as to certainly

liability, contract in tort. It's sort of -- this is a strange -this is strange animal, this political party. The

law always likes to have some kind of set of rules governing some things or some things are really important and so we'll borrow from the Chapter 65, but in a very limited way. And are you suggesting, "No, it's -it's -- Chapter 65 comes over really in total"? MR. SMITH: mix between the two. I think there is a strong

And I say -- Subsection (1),

ORS 248.004, "A minor political party or a major political party shall have all the powers granted to a nonprofit corporation under ORS 65.077." THE COURT: MR. SMITH: Power. And the power. Let me read

"They have the power to make and amend

bylaws, not inconsistent with its articles of

241 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 liability." incorporation or the laws of the state for regulating, managing the affairs of the corporation, power to impose dues." In here's a bigger one: "Conduct its

activities and -- and locate offices and exercise the powers granted by this chapter within or without this state." So there's -- there's a pretty big

incorporation by that specific incorporation in the 248 of Chapter 65. "Purposes of contract, tort and other Well, that's what we're dealing with

here is we're dealing with contract in the declaratory relief. We're dealing with liability in

the breach of duty and we're talking about derivative liability in the corporate authority to act. So that's exactly what we're doing. those provisions from 65 do apply. that -THE COURT: What do you do with their So

The -- the fact

argument with that if you want to grab ahold of that principle, then you've got to grab ahold of the principle that the incumbent board gets to change the bylaws? MR. SMITH: The board is the members.

They're -- again, they're skipping the --

242 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 wait. THE COURT: Who -- who -MR. SMITH: THE COURT: MR. SMITH: passing ORS 248. THE COURT: MR. SMITH: Uh-huh. 248.004(4), "Any member of a ORS 248 -Who says that? The state legislature in The board is the members.

governing body of a major or minor political party, including local subdivisions of the party shall be treated as directors of a nonprofit corporation for liability in all the matters relating to political party." THE COURT: Wait, wait, wait, wait,

"Any member of a governing body." MR. SMITH: Right. The convention is

the governing body of the entire Libertarian Party of Oregon, the members assembled at convention. fundamental principle. THE COURT: MR. SMITH: THE COURT: MR. SMITH: Of what? Of -The party? Organizational. The -- the This is

members at convention are the governing body of -- as is -- the Libertarian Party of Oregon has a

243 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 guess -board. THE COURT: MR. SMITH: Do they, Mr. Steringer? The members are the board. Hold it. Mr. Steringer, your thoughts on this. I mean, so what you're saying is -- so you're saying this is, essentially, an organization that will always be governed by plebiscite. MR. SMITH: Not plebiscite. The members Constitution and has bylaws. The Constitution says

who's in charge and that we -THE COURT: Wait, wait, wait, wait.

of the LPO that -- that sign up and -THE COURT: Yes. Yes. Plebiscite. The

plebiscite of the membership. group of officers.

Not a board, not a

Why do -- why do the bylaws that

you seek to have talk -- don't they talk about officers and a board? MR. SMITH: THE COURT: MR. SMITH: No. They don't? They don't talk about a

That's the -- the board of directors is the LPO. THE COURT: Mr. Steringer? No. Your Honor, I

MR. STERINGER:

244 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 here? MR. STERINGER: No, I don't think so. We're talking A THE COURT: Am I just missing something

couple points need to be made here. about ORS Chapter 65.

That's where we need to start

with the analysis of what -- what is the board of directors for purposes of ORS Chapter 65. And, frankly, Mr. Smith has convinced me through his citation to 65.077 that this issue of the bylaws can be -- can be directly connected back to Chapter 248. And so we should be looking at

Chapter 65 when we're talking about the authority of the -- the board of directors to -- to revise bylaws. Chapter -- let's see. ORS 65.001(4)

defines what is a board of directors for purposes of Chapter 65. And what it says with apologies for "A board of directors is

reading to the Court is:

the group of individuals," quote, "vested with overall management of the affairs," end quote, "of the corporation." And it says, "regardless of the name by which they are designated." So we don't have to look

for a group within the -- within the organization that's called a board of directors. What we look for

is the group of individuals vested with overall

245 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. 3 of Burke? Section 4. 4. the affairs. THE COURT: Mm-hmm. Then I would direct the management of the affairs. THE COURT: Overall management. Overall management of

MR. STERINGER:

MR. STERINGER:

Court's attention to Article -- Article IV, Section 4 of the bylaws, the 2009 bylaws that the plaintiffs seek to enforce here. And Article IV, Section 4,

says, quote, "The state committee shall be responsible for the control and management of all the affairs, properties and funds of the LPO." THE COURT: IV, Section 4? MR. STERINGER: THE COURT: That's what I have. Now, wait a minute. Article

Is one that Exhibit 1, Page

'Cause my Article IV, Section -- oh, I'm sorry. This is Section 1, Subsection

Hang on.

Section 4. MR. STERINGER: THE COURT: That's --

Oh, wait a minute. Hang on. Hang on.

Endorsements by affiliate -- no. Hang on. MR. STERINGER: No.

I'm sorry,

I have misdirected.

246 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 telling. apologize. reading? MR. STERINGER: I'm -MR. SMITH: Your Honor -I'm relying on notes. Yeah, Your Honor. And I THE COURT: Okay. It's -- I -- I switched It's

MR. STERINGER:

my -- my digits on the Roman numerals. Article VI. THE COURT: Ah-hah. Section --

MR. STERINGER: THE COURT:

The dyslexic Roman. Section 1. Ah.

MR. STERINGER: THE COURT:

Article VI, Section 1.

"State committee shall have the sole authority," blah-blah-blah. "The state committee shall have the

sole authority for affiliating organizations, calling special conventions, resolutions of issues pertaining to vacancy, execution (indiscernible)." Okay. Am I reading where you're

MR. STERINGER: MR. SMITH:

The Section B there is very

"State committee has the responsibility

subject to direction by the LPO convention." THE COURT: MR. SMITH: Mm-hmm. LPO convention is in its own

247 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 appear: bylaws being referred to as an entity. a convention. It's -- it's This

That's the board of directors.

is -- this is talking about -MR. STERINGER: MR. SMITH: THE COURT: No.

-- limited authority. Wait, wait, wait, wait. If I might,

MR. STERINGER: Your Honor -THE COURT:

First of all -- wait.

Wait.

First of all, the words "board of directors" don't appear in these bylaws, do they? MR. SMITH: THE COURT: No. The -They don't

Excuse me.

Board of directors.

Instead, state

committee and other such words are used, right? Okay. Now, Mr. Leuenberger. MR. LEUENBERGER: Yes. I just wanted to

address the concept that the LPO convention is the -the highest authority. That may be true when the But unless

convention is convened and has a quorum.

it is convened, sitting in a quorum with the necessary quorum, the state convention does not exist. And in the absence of the LPO convention

248 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 existing and having a quorum and actually meeting, then the state committee is the board of directors pursuant to the definition of Chapter 65. THE COURT: And, again, that's not

because the word "board of directors" appears in the articles of the Libertarian Party -- or I'm sorry -the bylaws of the Libertarian Party. It's because

you have -- you have graciously accepted Mr. Smith's invitation to have Chapter 65 apply. You've then used the definition of a board, which says it's the organization responsible for management by whatever name called. You've taken And then

the step, here that's the state committee. you've said, "Thank you very much. committee. situation." MR. STERINGER: THE COURT:

We were the state

We did what was necessary in a critical

And, Your Honor --

"We -- we win." And I apologize for -It's

MR. STERINGER:

for misciting the source of -- of that power.

actually the Constitution of the Libertarian Party of Oregon. That is Exhibit -- looks like it's Exhibit 2

to the Wagner supplemental declaration. THE COURT: supplemental. Okay. Let me see. Wagner

Oh, I've got Burke.

So Wagner

249 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 supplemental. Here it is. Exhibit 2, you say? And it's on the first

MR. STERINGER:

page of Exhibit 2, Article IV, Section 3. THE COURT: "The state committee shall

consist of all officers of the LPO and any directors or representatives which may be defined in the bylaws. The state committee shall be responsible for

the control and management of all the affairs, properties and funds of the LPO consistent with its Constitution and bylaws and with any rules or resolutions which may be adopted in convention." MR. LEUENBERGER: And in addition to

that, Article VI of the 2009 bylaws, Section 1, subpart B says much the same. Says that the state

committee shall have the responsibility for the operations of the LPO, expenditures of LPO funds -MR. STERINGER: And the development and

implementation of party policy. MR. LEUENBERGER: THE COURT: Right. Subject to Direction.

Mm-hmm.

direction by the LPO convention. Mr. Smith? MR. SMITH:

That's right, Your Honor.

The state committee is subordinate to the LPO convention. But here, state law trumps this. State

250 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 premise -MR. SMITH: THE COURT: Exactly. Yes. Yes. law defines who the directors are. we should escape the -THE COURT: MR. SMITH: Which state law? ORS 248.004(4), that the So I don't think

member of the governing body is the director. THE COURT: MR. SMITH: THE COURT: No, no, no, no, no, no. The bylaws here give -Well, here. You're --

you're proceeding from the premise that the governing body of this minor political party is the convention rather than the member of the state committee. MR. SMITH: THE COURT: Right. Who have the -Isn't your

Are you not?

Your premise is that the

governing body is the convention, not the state committee. MR. SMITH: THE COURT: Mr. Steringer? MR. STERINGER: What I say is that that The governing -- yes. What do you say to that,

is directly contrary to the Constitution and the bylaws of the -- of the organization, which makes the state committee the governing body for the

251 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 organization, subject to direction from the convention when it is in -- when it is organized. And it does -- and it is also contrary to Chapter 65, which is where we really need to look for the definition of a board of directors for purposes of Chapter 65. And there, it talks about

the group of individuals charged with the affairs of the corporation. And the interesting thing is that the -the language is almost parallel. Both of them

refer -- both the -- the statute in ORS Chapter 65, the definition of board of directors -- board of directors and the language in the constitution refer to the state committee as being that -THE COURT: The governing body. -- charged with the

MR. STERINGER: affairs of the organization. THE COURT: MR. SMITH:

Yeah.

Okay.

Your Honor, the -- the state

committee does not have the ability to change the bylaws. That's the point here. The convention is

the higher body of authority.

The limited authority

is given to the state committee to do certain things. For instance, on May 12th, when the convention --

252 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 if -THE COURT: Is there anything in what's THE COURT: Just a moment. Well, now, just a moment.

Just a moment.

What your opponents are arguing is that they've accepted your invitation to apply Chapter 65. And Chapter 65 gives the board -- Chapter -- if I understand it, Chapter 65, essentially, trumps the organizational documents of the party and says the state committee has this authority. MR. STERINGER: Well, it -Technically --

MR. LEUENBERGER: MR. STERINGER: THE COURT:

It trumps the bylaws.

Trumps the bylaws. Yes.

MR. LEUENBERGER: MR. STERINGER:

If the bylaws say

anything about how the bylaws are to be amended, that is trumped by ORS Chapter 65. If there are articles

of incorporation that limit the ability of the state committee to amend the bylaws, then ORS Chapter 65 respects that. THE COURT: no articles here. MR. STERINGER: There are no articles. But you're saying there are

referred to as to constitution of the

253 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 -THE COURT: Excuse me. Take me to the Your Honor. THE COURT: where it would have -MR. SMITH: The Constitution says Okay. Well, then tell me Libertarian Party that restricts that? MR. STERINGER: The -- the -- the

constitution does not limit the means for -- or even talk about amendment of the bylaws. MR. SMITH: We disagree with that,

specific text of the Constitution on which you rely. MR. SMITH: I am digging up my copy. I'll dig up a copy of

We've cited this in our brief.

the Constitution here where it says -THE COURT: MR. SMITH: Do you remember the article? I do not remember off the Let me find if somebody

top of my head, Your Honor. has a copy handy.

I can find it in my brief. The bylaws are hereby

THE COURT:

affixed to and subordinate to this Constitution. MR. SMITH: And the state -- there's a

provision in there that talks about the state committee being subordinate to the LPO convention, the Constitution --

254 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 reading? MR. SMITH: THE COURT: Oh, Article IV, Section 3. See IV, 3. "The state shall" -THE COURT: Which -- the text are you THE COURT: worry about that. No, no, no, no. I don't Is there

I just -- I asked you:

anything in the constitution of the Libertarian Party, which purports to restrict the state committee from taking action with respect to the bylaws? MR. SMITH: follow the bylaws. THE COURT: Excuse me. There's a been Yes. It says they must

difference between, "You must follow," and "You may not change." Those are two fundamentally different So take me to the Libertarian Party

legal concepts.

Constitution, the text on which you rely for this argument. MR. SMITH: "But the state committee

committee shall consist of all officers, the officers that are defined in the bylaws; shall responsible for the control and management of all affairs." Your opponents applaud that language. MR. SMITH: THE COURT: Sure. And the rest of it.

"Properties and funds

255 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 very much." MR. SMITH: inconsistency. THE COURT: MR. SMITH: Why is that? Because Chapter 65 does not It says, Only if there's an consistent with the Constitution and bylaws and with any rules or resolutions that may be adopted." MR. SMITH: THE COURT: Right. But, of course, what this

doesn't say is the state committee may not amend the bylaws. MR. SMITH: Does not say that. Says

they must follow the bylaws. THE COURT: MR. SMITH: Yeah. And the bylaws say how

amendments to the bylaws can take place. THE COURT: But your opponents have

said, "Ah, but that all gets overridden by the fact that you have invoked the paramount authority of Chapter 65." MR. SMITH: THE COURT: Only if -And they say, "Thank you

purport to declare what's in their bylaws.

you know, if your -- if your articles don't -THE COURT: No, no, no, no. You -- you

256 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 provided it. You provided it when you read 65.077.

The powers include the power to have -- to make and change bylaws, right? MR. SMITH: Correct. Well, that's true.

MR. STERINGER:

And -- and what ORS 65.464 says is that the board has the power to do that unless the articles of incorporation -THE COURT: Sure. Which, essentially,

says that unlike what may be true in any other business organization in the area of Chapter 65 corporations, these boards have got some muscle, unless the articles say otherwise, to which I think Mr. Steringer's argument is number one, there ain't any articles. There aren't any articles.

And, number two, even if we treat the Constitution as an analogue to articles, it doesn't say the board can't change the bylaws. game, set, match, right? MR. STERINGER: MR. SMITH: Yes, Your Honor. And he says

Your Honor, 248.004 says, It doesn't have to

"Any member of a governing body."

say the governing body is the director. THE COURT: bodies are there here? Well, how many governing

257 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 convention. question. MR. SMITH: bylaws, there's one. THE COURT: No, no. Listen to my The -- with respect to the

How many governing bodies do you purport,

do you argue, exist? MR. SMITH: There would be the LPO There

There would be a state committee.

would be county-affiliated parties.

Those would be

all different governing bodies of LPO entities. THE COURT: MR. SMITH: ultimate authority. THE COURT: But it may not be the But as to the LPO itself. The LPO in convention is the

governing body, because it's also true in corporations that there are boards of directors who are the governing body, but they're not the ultimate authority. The ultimate authority are the

shareholders at the shareholder meeting. MR. SMITH: I understand that could be

true, Your Honor, but there's nothing on the record that would state that that is even close to the reality here. There is -- there was never any

suggestion that the state committee prior to this could ever change the bylaws. been struggling with -Why would they have

258 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 moment. for me. MR. SMITH: All of the evidence goes to moment. silence. THE COURT: Just a moment. Well, just a moment. Just a

That's the argument from

That doesn't work, because we -- until you

have a fight, it doesn't occur to anybody to solve the fight. So the argument, "Well, we -- we must win because it's never occurred before," why don't they win because it's never occurred before? MR. SMITH: Because it go to the

interpretation of -- what's at stake here really is who is the board of directors in this? Which --

which entity is the board of directors that's authorized to change the bylaws? Is the board of directors the convention or is the board of directors, as they suggest, the state committee? THE COURT: MR. SMITH: THE COURT: Well, that's -- that's -And all of the evidence -Boy, you're making it easier

say that the board of directors is the convention. The bylaws say how they can change the bylaws. THE COURT: Just a moment. Just a

I'm going to have one more --

259 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. Conn? MR. CONN: THE COURT: I didn't see him here. Okay. Come forward. Let's

take a brief recess on -- not recess, literally brief. Don't even change your positions and be

careful about whispering. Mr. Conn, come to -(Recess taken, 11:24 a.m. - 11:28 a.m.). THE COURT: Okay. We're going to take

about five more minutes and then I'm going to take it under advisement. What do you have finally for me

in -- in your three of those five minutes? MR. SMITH: THE COURT: Okay. What do you want me to

remember or particularly focus on? MR. SMITH: Yes, Your Honor. I haven't

gotten to go through the exact standing requirements yet, because we abandoned that ship. But I want to

point out first, when you're thinking about who could change the bylaws, the Constitution also would have had to have been changed and repealed. The Constitution specifically says -the Constitution is the articles. about changing the Constitution? THE COURT: What do you mean, the How could they go

260 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 constitution is the articles? about here? MR. SMITH: Under the ORS 65 argument What are we talking

about who could change the bylaws and who is the board of directors. THE COURT: MR. SMITH: Yeah. The LPO Constitution is also

their governing document under their -- their words, "the ultimate governing document." still be in effect. If they -- if they somehow had to power to change the bylaws in a state committee meeting, the Constitution itself clearly says they don't have the power to change the Constitution. THE COURT: MR. SMITH: THE COURT: Where does it say that? The Constitution -Well, first of all, they And that would

didn't purport to change the Constitution. MR. SMITH: still sitting there. still sitting there. I don't take -- then it is

Then it -- then it would be The Constitution -What -- what do you mean? I

THE COURT:

don't understand what you are saying. MR. SMITH: The 2009 -- the Constitution

that was in place from 2009 and up until March of

261 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 moment. invoking? Exhibit 2. MR. SMITH: THE COURT: Okay. And so what are you 2011 would then be in -- still in place, even if they have the power to amend the bylaws. THE COURT: And I have it here as

What language from it are you invoking? MR. SMITH: Article VIII would get to

amendments of the Constitution. THE COURT: Article VIII. Article -- hang on just a But I don't understand your

argument that in order for -- in order for an incumbent board to amend the bylaws, they have to amend the -- the equivalent of the articles of the Constitution. Where do you get that? From Article XIII,

MR. SMITH:

Your Honor, that the Constitution -- I don't want to waste my three minutes if that's all I have on this argument. You can point it out under advisement. If you can think logically about the fact that if the bylaws were somehow changed by the state committee rather than the convention, wouldn't they all -- somehow have the power to change the Constitution? example -And they don't. It's -- it's an

262 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: they wouldn't. MR. SMITH: It's an example. Okay. So No. The -- the answer's no,

they could not change that. THE COURT: They wouldn't.

I mean, Mr. Steringer, you wouldn't claim that, would you? MR. STERINGER: Your Honor, the -- the

question of the -- the 2007 bylaws isn't before the Court. THE COURT: No. 2009 bylaws. 2007 -2007

MR. LEUENBERGER: MR. STERINGER:

I'm sorry.

Constitution is not before the Court. THE COURT: MR. SMITH: Okay. Very well.

Your Honor, getting quickly

to the rest of my three minutes here. THE COURT: MR. SMITH: Yeah. Again, we'll point out that The

the -- there's declarations explaining this.

2007 convention took the power away from the state committee to change the bylaws. So in 2007, the previous bylaws gave the state committee that power, but that was removed in the 2007 changes we talked about that were proposed

263 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 here. state -THE COURT: MR. SMITH: -- convention? The changes that were done 2007 -MR. SMITH: Took away the power of the by Mr. Wagner and adopted. THE COURT: MR. SMITH: And that's in the record. That's -- the declaration

talks about those changes, yes. THE COURT: And what do you say to that?

in 2007 at the convention, yes, the bylaw changes. Same ones that changed the quorum requirement. THE COURT: Well, those would be found

in the 2009 bylaws, right? MR. SMITH: THE COURT: Right. And what is it in the 2009

bylaws that says they can't by changed by the board? MR. SMITH: It's -- this is evidence

that that's not just -- they can be changed by the board, but the state committee is not the board is what we're saying. THE COURT: And what language in the --

in the 2009 bylaws, on what language do you rely? MR. SMITH: Statutory interpretation

264 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 wait. THE COURT: No, no. I assume you're

relying on language in the bylaws themselves. MR. SMITH: Talking about physical It

evidence of what used to be, does no longer. used -- the state committee used to be -THE COURT: I don't understand.

I do

not understand what you are saying, sir. MR. SMITH: Under the rules of statutory

construction -- here, we're interpreting a document. THE COURT: Wait a minute. Wait, wait,

You started me on this trip with a reference

to the 2007 convention of the party. MR. SMITH: THE COURT: Mm-hmm. At that point, I'm not -- I You've now invited

don't care about Oregon statutes.

me to look at some kind of action of the 2007 convention. And I'm asking you, what document

reflects the action on which you rely? MR. SMITH: The 2009 bylaws do not state

-- say the state committee has the power to change the bylaws, but they used to. THE COURT: Do they say -- excuse me.

Do they say that they do not have the power to change the bylaws? MR. SMITH: Yes, we believe so.

265 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 convention. And, Mr. Steringer, what do you say about this restriction in the bylaws themselves? MR. STERINGER: The -- the only Procedures." Which -MR. SMITH: "Amendment Procedures." THE COURT: Okay. Article XVI, "Amendment Article -- Article XVI, THE COURT: MR. SMITH: THE COURT: MR. SMITH: THE COURT: Where? You believe so.

That the convention is -No, no, no. Yes, Your Honor. Where do they say it?

"Proposed amendments to this

Constitution and bylaws shall be entered in the agenda for the convention." Okay. And you're saying there it is. All three of those, yeah. You've got to do it at

MR. SMITH: THE COURT:

restrictions contained in Article XVI are restrictions on a -- on an amendment process -process that is carried out under Article XVI. This provides one means for amending a bylaws, through a convention process. And we've

identified -- and it doesn't purport -- we can

266 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 look -- we can look at this for a long time, and we will not find any words in Article XVI saying that this is the exclusive method of amending the bylaws. And as a result, we are allowed to look at other appropriate means of amending bylaws. THE COURT: Including Chapter 65. Well, 65 is the case

MR. STERINGER:

notwithstanding anything that is in the bylaws. THE COURT: Mm-hmm. We don't even look at

MR. STERINGER:

the bylaws for -- for the purpose of interpreting Chapter 65. THE COURT: MR. SMITH: THE COURT: Okay. Your Honor, if I can go -Where else would you look? We would look to ORS --

MR. STERINGER:

we talked about it some -- ORS 248 I think it's 072, the general power -- yeah. 248.072, the general We

power granted to the state central committee.

argue that the analogue for the purposes of the Libertarian Party of Oregon is the state committee. THE COURT: Mm-hmm. Has the -- the power to

MR. STERINGER:

adopt rules or resolutions for any matter of party government. We invoked the rule of the necessity

267 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 mind. As to our second -- our second claim for relief, I'd ask you to look at 65.172, which talks about that the -- "shall have been a member when the transaction complained of occurred." So back when under the circumstances. ORS Chapter 65. THE COURT: MR. SMITH: Okay. Back to Mr. Smith. And -- and then, of course,

Your Honor, I want to point

out before we get too far -- close to the end here on our standing argument -- ORS 28.020 gives, quote, "any person interested under a written contract or other writing the right to sue." So we're talking about the timeline and when is it relevant. It's any person interested.

Membership rights changed, that would be interest. If officers were lost, that would be an interested person under -- under that statute. if you want to look that up. We can save time

That's why I'm trying

to give my closing comment here -THE COURT: MR. SMITH: Go ahead. -- on things to keep in

this transaction complained of, the illegitimate bylaw change. That's the requirement for the second

claim for relief under 65.084.

268 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 third one, breach of fiduciary duty, the same thing, it's a suit against an officer under the -- and it's "shall have been a member when the transaction occurred." great detail in our brief. We have covered that in If you want to reference

back, those things are cited in our brief as to the standing argument. point that out. THE COURT: Okay. Anything, finally, I wanted to make sure that --

Mr. Steringer or Mr. Leuenberger or Mr. -MR. ANDRIES: THE COURT: Andries.

-- Andries? Your Honor, I think

MR. STERINGER:

we've covered the -- the -- the issues, so I'd have no further argument. MR. LEUENBERGER: MR. ANDRIES: THE COURT: under advisement. When do you have your trial? MR. STERINGER: * * * (Court adjourned, Volume 4, 5-16-13 at 11:36 a.m.) July 9th. I agree.

I agree. I'll take it

Thank you all.

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

269

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 May 16, 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 4 of 5, Pages 133 through 268, 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.