ReevesCA155616_2013-05-16_V4
-
Upload
wes-wagner -
Category
Documents
-
view
215 -
download
0
Transcript of ReevesCA155616_2013-05-16_V4
-
7/27/2019 ReevesCA155616_2013-05-16_V4
1/137
1 IN THE CIRCUIT COURT OF THE STATE OF OREGON
2 FOR THE COUNTY OF CLACKAMAS
3 TIM REEVES, ERIC SAUB, GREG )
BURNETT, as the Libertarian )
4 Party of Oregon; DAVID TERRY,)M. CARLING and RICHARD BURKE,)
5 as members of the Libertarian)
Party of Oregon, )
6 )
Plaintiffs, ) Clackamas County
7 ) Circuit Court
and ) No. CV12010345
8 )
CARLA PEALER, as the ) CA A155618
9 Libertarian Party of Oregon, )
)
10 Plaintiff, ) Volume 4 of 5
)
11 v. )
)
12 WES WAGNER, HARRY JOE TABOR, )
MARK VETANEN, BRUCE KNIGHT, )
13 JEFF WESTON, JIM KARLOCK, )
RICHARD SKYBA, and JEFF )
14 WESTON, individuals; and )
LIBERTARIAN PARTY OF OREGON, )
15 )
Defendants, )16 )
and )
17 )
JOSEPH SHELLEY, )
18 )
Defendant. )
19
20 TRANSCRIPT OF PROCEEDINGS ON APPEAL
21 BE IT REMEMBERED that the above-entitled
22 Court and cause came on regularly for hearing before
23 the Honorable Henry C. Breithaupt, on Thursday, the
24 16th day of May, 2013, at the Clackamas County
25 Courthouse, Holman Hearing Room, Oregon City, Oregon.
-
7/27/2019 ReevesCA155616_2013-05-16_V4
2/137
Appearances 134
1 APPEARANCES
2 Tyler Smith and Anna Adams,
Attorneys at Law,
3 Appearing on behalf of the Plaintiffs;
4 Robert Steringer, James Leuenberger andColin Andries, Attorneys at Law,
5 Appearing on behalf of the Defendants.
6 * * *
7
KATIE BRADFORD, CSR 90-0148
8 Court Reporter
(503) 267-5112
9
Proceedings recorded by digital sound recording;
10 transcript provided by Certified Shorthand Reporter.
11 * * *
12
13
14
15
16
17
18
19
20
21
22
23
24
25
-
7/27/2019 ReevesCA155616_2013-05-16_V4
3/137
Appearances 135
1 GENERAL INDEX
2 VOLUME 4
3 Page No.
4 May 16, 2013 Proceedings 136
5 Case Called; Parties Introduced 136
6 Colloquy Between the Court and Counsel 137
7 Matter Taken Under Advisement 268
8 Reporter's Certificate 269
9 * * *
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
-
7/27/2019 ReevesCA155616_2013-05-16_V4
4/137
136
1 (Volume 4, Thursday, May 16, 2013, 9:13 a.m.)
2 PROCEEDINGS
3 (Whereupon, the following proceedings
4 were held in open court:)
5 THE COURT: This is Reeves and others
6 against Wagner and others and, in particular, an
7 organization identified as the Libertarian Party of
8 Oregon.
9 If counsel would introduce themselves,
10 beginning here, I suppose.
11 MS. ADAMS: Good morning, Your Honor.
12 My name's Anna Adams and I represent the plaintiff,
13 along with Mr. Smith.
14 THE COURT: Okay.
15 MR. SMITH: Morning, Your Honor. Tyler
16 Smith, 075287, represent all the plaintiffs in this
17 Libertarian Party of Oregon and all of the officers
18 associated there.
19 MR. LEUENBERGER: James Leuenberger on
20 behalf of Wes Wagner.
21 MR. STERINGER: Bob Steringer on behalf
22 of the Libertarian Party of Oregon.
23 MR. ANDRIES: Colin Andries, 051892.
24 I'm here on behalf of all the other defendants.
25 THE COURT: All right. I've read -- I
-
7/27/2019 ReevesCA155616_2013-05-16_V4
5/137
137
1 will not confess to have read everything you've given
2 me, but I've read much of what you've given me. And
3 I suppose the first question I have is among the
4 defendants, how are you going to proceed in making
5 presentations?
6 I know in your briefing to some extent
7 folks tied their wagon to Mr. Steringer's wagon and
8 in some cases, I think Mr. -- is it Andries?
9 MR. ANDRIES: Correct, Your Honor.
10 THE COURT: Mr. Andries had some
11 substantive matters in particular regarding the
12 charitable -- or the nonprofit corporation statute
13 that you seem to state independently of
14 Mr. Steringer. But did you -- have you agreed on a
15 method for making presentations here today?
16 MR. STERINGER: Your Honor, what we
17 anticipated doing was having me take the lead and
18 present on several of the motions and then my counsel
19 for -- or counsel for the other defendants would make
20 whatever comments they would like to add to that.
21 THE COURT: Any objection to that
22 process?
23 MR. SMITH: No, Your Honor. No
24 duplicity, then fine.
25 THE COURT: Okay. And you're welcome to
-
7/27/2019 ReevesCA155616_2013-05-16_V4
6/137
138
1 remain seated during your presentations. If you wish
2 to stand you may, but you're not required to.
3 MR. STERINGER: Thank you, Your Honor.
4 THE COURT: Now, in general, my
5 understanding is that an organization known as the
6 Libertarian Party of Oregon came into existence and
7 purported in some fashion to adopt some bylaws, later
8 described by a -- I believe it's a person associated
9 with the national party, as creating a, in his words,
10 circular firing squad. These were the 2009 bylaws as
11 I understand it.
12 Then various things occurred and some
13 2011 bylaws came into -- into being and some actions
14 were taken. And now the defendants, Mr. Wagner and
15 others, assert -- and I may be overdoing it here --
16 but assert that, in effect, there is a Libertarian
17 Party of Oregon and they are the incumbent central
18 committee? Incumbent what, officers? How best to
19 describe them?
20 MR. STERINGER: At a minimum, I think --
21 I think the clearest description of them would be
22 that they are the incumbent officers. There are
23 additional defendants who make up the board of
24 directors under the organization as well.
25 THE COURT: All right. Let me ask a
-
7/27/2019 ReevesCA155616_2013-05-16_V4
7/137
139
1 very basic question if you -- I assume you can -- you
2 can agree on this, that's it's not a matter of
3 contest. Is the organization identified as the
4 Libertarian Party of Oregon -- or at least as you
5 folks conceive of it -- a major political party under
6 Oregon law, Chapter 248, or a minor political party?
7 MR. SMITH: Minor, Your Honor, is what
8 we would assert.
9 THE COURT: Do you agree, minor?
10 MR. STERINGER: We agree with that.
11 THE COURT: And without necessarily
12 putting too much weight in this observation, I view
13 it as -- at least preliminarily as essentially a
14 fight among factions of -- well, factions or groups
15 of people, each of whom claim to be the real
16 libertarians.
17 And I am quite reluctant to have, at
18 least at my level until told differently, quite
19 reluctant to have the judicial branch of the State
20 step into an intraparty fight, an intraorganizational
21 fight where a political party is involved in the same
22 way that on at least one occasion -- well, actually
23 on the one -- on several occasions the Courts have
24 said in respect of other what I'll call First
25 Amendment organizations, namely churches, we don't
-
7/27/2019 ReevesCA155616_2013-05-16_V4
8/137
140
1 step in and adjudicate or resolve differences as to
2 who is the real Presbyterian or who is the legitimate
3 Catholic.
4 We do step in -- and I've had occasion
5 to step in out in -- in Multnomah County where the
6 claim is a claim having not to do with who is
7 legitimate or true or proper, but rather in the case
8 I'm thinking of where an organization terminated the
9 employment of a pastor and the pastor made a claim
10 for damages for -- or where the classic -- yeah, the
11 classic that occurs and I think has occurred recently
12 in Oregon Courts.
13 That is, a religious organization has a
14 split and there's only one house of worship and
15 obviously there's a dispute as to whose is it and so
16 you have to adjudicate -- may have to adjudicate who
17 owns the house of worship. Courts do step in there
18 to some extent, but are reluctant to get involved.
19 And I -- to me, there's a lot about
20 political parties that are like -- similar to
21 religion. And I -- for that, I refer to the rule of
22 my barber when I was a young man, who informed me
23 that there were two things that were not discussed in
24 the barbershop.
25 One was politics and the other was
-
7/27/2019 ReevesCA155616_2013-05-16_V4
9/137
141
1 religion. Sports, okay. Certain other things, okay,
2 but not those things. Come here, get your hair cut.
3 That's it. Talk about sports or something, but not
4 those two subjects, so -- and they're both First
5 Amendment, very important First Amendment functions:
6 Political organization, religious organization and
7 practice.
8 So now my question -- that's where I
9 start. And I think it's Mr. Smith who's going to say
10 to me, "Well, don't worry so much. This is a little
11 different. You, the judiciary, ought to get involved
12 in this matter."
13 And let me ask you in my most basic
14 terms then, Mr. Smith, what is it you want?
15 MR. SMITH: Your Honor --
16 THE COURT: And I don't mean that
17 facetiously. I mean what remedy are you seeking
18 here? What declaration? What is it that you would
19 have the judicial branch afford you or give you?
20 MR. SMITH: Thank you, Your Honor.
21 That's a good question. And I'll point out this
22 exact argument as we pointed out in our brief has now
23 been made. This is the third time we've sat in front
24 of a Clackamas County sitting judge to make this
25 argument and this exact argument.
-
7/27/2019 ReevesCA155616_2013-05-16_V4
10/137
142
1 So we've had this oral argument on this
2 twice, so I hope I don't skip over anything.
3 THE COURT: Help me. I know you've had
4 it one -- tell me when you've had it.
5 MR. SMITH: We had it, the first motion
6 dismiss. We had it again. There was no -- there was
7 no decision on that first motion to dismiss. We had
8 a second motion to dismiss and there was a decision
9 on that second motion to dismiss. We've made this
10 oral argument now twice for this Court.
11 So it's been considered. It's been
12 looked at from every angle and Judge Redman
13 specifically said, "This Court has jurisdiction."
14 And declined the argument, the very argument that
15 they're making.
16 And that you had mentioned it was your
17 predisposition to decline that argument for the
18 reasons that we will get to.
19 THE COURT: Well, I'll say it's my very
20 real concern.
21 MR. SMITH: Okay. So that has been
22 explored fully.
23 THE COURT: Now, as to that, you've
24 claimed law of the case. And I have you're -- or are
25 you retreating from that?
-
7/27/2019 ReevesCA155616_2013-05-16_V4
11/137
143
1 MR. SMITH: No, Your Honor. But that's
2 only -- that's an alternative argument.
3 THE COURT: Okay. Good. Because I
4 think it's a losing argument.
5 MR. SMITH: And I -- and I agree that
6 this Court does have the discretion to change --
7 THE COURT: Sure.
8 MR. SMITH: -- particularly its own
9 prior ruling, but in this case it's a different
10 scenario because there's another judge.
11 THE COURT: Yeah.
12 MR. SMITH: So, obviously, it's --
13 THE COURT: But that -- that's happened
14 to me elsewhere. Superbilt, I think, is the other
15 case that teaches that, but --
16 MR. SMITH: That's a --
17 THE COURT: Now -- so you say that
18 Judge Redman considered this very argument and said,
19 "I think it's okay for people in black mu'u mu'us to
20 walk out into this minefield."
21 MR. SMITH: Absolutely, Your Honor. And
22 I'll get to -- I'll get to those points. I just
23 wanted to point that out.
24 THE COURT: Okay. Just -- just a
25 moment.
-
7/27/2019 ReevesCA155616_2013-05-16_V4
12/137
144
1 Let me ask Mr. Steringer, do you agree
2 that Judge Redman did that?
3 MR. STERINGER: Well, what I can agree
4 to is that Judge Redman denied a motion to dismiss
5 under Rule 21 on grounds that the relief sought by
6 the plaintiffs was unconstitutional if rendered by a
7 Court in Oregon.
8 It was made under Rule 21 and it was
9 made without the benefit of the extensive record that
10 we've now been able to provide to the Court to
11 further demonstrate the political nature of the --
12 the dispute that is central to the -- the claims.
13 THE COURT: Okay. And so your position
14 is a not uncommon one, that a Rule 21 motion, it's
15 important, but surviving a Rule 21 motion doesn't
16 mean that when the record is developed you can
17 survive summary judgment. Mr. Smith may well say
18 that's a distinction without a difference.
19 But I'll go back to Mr. Smith.
20 MR. SMITH: Well, just on the question
21 of law, Your Honor, I'll just say that the Rule 21
22 stage it's a pure question of law. That question of
23 law here, basically, is the same regardless of any of
24 the facts.
25 The question of law is can the Court
-
7/27/2019 ReevesCA155616_2013-05-16_V4
13/137
145
1 wade into and -- and have jurisdiction to do the
2 things that plaintiffs are asking them to do.
3 THE COURT: Well, except that this. I
4 began recently for the first time to look at -- when
5 I say for the first time, I've never had occasion
6 otherwise to do it -- and that is to look at
7 Chapter 248 and to think about: What is a political
8 party? What role does the State play in political
9 party, the organizational political parties?
10 I know, for example, from talking with
11 an elderly gentleman who knows something about
12 constitutional law that in the 19th century,
13 political parties, they weren't -- there were no --
14 there were virtually no state statutes about
15 political parties. Political parties existed. They
16 handed out ballots.
17 Indeed, in some jurisdictions, they
18 handed out colored ballots. If you were a democrat
19 it was red and if you were a republican it was green
20 and if somebody was seen walking down the street with
21 a green ballot, they could be beaten up by a gang, I
22 mean, literally, okay?
23 But the idea that we have currently of
24 political parties and primary elections as being, in
25 effect, some kind of state -- state -- the State
-
7/27/2019 ReevesCA155616_2013-05-16_V4
14/137
146
1 being involved to almost any extent is relatively
2 new.
3 So I began looking at 248 and I asked
4 myself this question, which maybe your record touches
5 on. And that is: Is there no way under Oregon law
6 for this dispute to be solved internally through what
7 I'm going to call the political process of the party
8 itself?
9 In other words, could the -- I think
10 it's the plaintiffs here, essentially, go to those
11 people in Oregon who identify themselves as
12 Libertarians -- and I don't know what the word
13 "identify themselves" means. Whether they have to be
14 registered, whether they simply have to put, in
15 effect, a name tag on saying, "For this purpose I am
16 a Libertarian."
17 Is there no process under Oregon law by
18 which the question of whether it's Tim Reeves or
19 Wes Wagner, just to pick on the two first names, that
20 that question can't be resolved by -- in some -- in
21 some fashion by people that call themselves
22 Libertarians?
23 MR. SMITH: Your Honor, I'd love to
24 answer that question. So I've got two questions. I
25 don't want to skip over the jurisdictional question
-
7/27/2019 ReevesCA155616_2013-05-16_V4
15/137
147
1 you mentioned before, but I'll answer that question
2 directly, 'cause you mentioned that.
3 THE COURT: Well, it relates to the
4 jurisdiction question. And that's what I'm saying it
5 relates to this issue of how has the record been
6 developed because if I gain an -- if I gain an
7 understanding that under Chapter 248 and the way
8 things operate, there is a method for a group of
9 people called Libertarians to -- essentially, this is
10 a fight about is it -- is it Reeves or is it Wagner?
11 If there's a way for them to work that
12 out, then I say let them work it out.
13 MR. SMITH: Your Honor, there's not a
14 way for them to work that out under ORS 248.
15 THE COURT: Mm-hmm.
16 MR. SMITH: As we pointed out,
17 particularly in ORS 248, the Secretary of State and
18 elections officials, being county clerks mainly in
19 the Secretary of State's Office are prohibited from
20 doing that kind of thing. This is the constitutional
21 protection at work: That elections officials can't
22 get involved in this. So there's not --
23 THE COURT: That's 248.011 or whatever
24 provision.
25 MR. SMITH: Correct. Correct. And the
-
7/27/2019 ReevesCA155616_2013-05-16_V4
16/137
148
1 director of the Secretary of State's elections
2 division has explained that. And I'm not sure
3 whether the defendants have withdrawn their argument
4 about the APA, but that goes directly to that point,
5 'cause there is no --
6 THE COURT: No, no. Wait, wait, wait,
7 wait. No. No, it doesn't. Because what I asked
8 was: Isn't there a way to work it out internally?
9 What you've said and the statute seems to support
10 clearly is, "Well, there's not a way for the
11 Secretary of State to resolve that."
12 MR. SMITH: Mm-hmm.
13 THE COURT: But my question is let's
14 assume for a moment that the judges say, "Uh-uh,"
15 Secretary of State reads the statute and says,
16 "Uh-uh," is there still a way for libertarians to
17 say, "Those are the rebels, we're the true."
18 MR. SMITH: Right. I understand your
19 question, Your Honor, exactly and I was just about to
20 get there -- is that no, there's not. What we have
21 here is a dispute about what are the rules. That's
22 what we're asking this Court to do. Earlier, you
23 asked us what's our remedy. We want this Court to
24 decide what are the rules.
25 Everybody agrees that the 2009 bylaws
-
7/27/2019 ReevesCA155616_2013-05-16_V4
17/137
149
1 were in place and were the governing documents up to
2 March of 2011. After that point in time, we have two
3 separate entities. Mr. Wagner, we pointed out in his
4 deposition, says he created a new government
5 structure, new government documents.
6 And here importantly for your question,
7 new set of membership. The memberships are different
8 between the old organization and their new
9 organization.
10 So it's -- it's an entire -- it's got
11 different governing documents, different membership,
12 different officers and as he called it in his
13 deposition, I believe, a different government,
14 different form of government I think is what he said.
15 THE COURT: Now, just a moment. Does
16 this minor political party have a state central
17 committee?
18 MR. SMITH: No, Your Honor. And as we
19 pointed out in our brief -- and I happen to be legal
20 counsel for two, in one political party and then my
21 plaintiffs here, a state central committee is a
22 particular statutory -- the central part of that is a
23 particular statutory creation. And it's defined
24 as -- in ORS 248, as an organization of county
25 central committees.
-
7/27/2019 ReevesCA155616_2013-05-16_V4
18/137
150
1 THE COURT: Mm-hmm.
2 MR. SMITH: County central committees,
3 by their definition, have to be comprised of precinct
4 committee people.
5 THE COURT: Mm-hmm.
6 MR. SMITH: Precinct committee people
7 can only be elected individuals of the major
8 political parties.
9 THE COURT: Yeah. And that's --
10 MR. SMITH: As we stipulated --
11 THE COURT: And that's why I asked
12 earlier about this.
13 MR. SMITH: Right.
14 THE COURT: So the whole system of
15 precinct leads to county leads to state --
16 MR. SMITH: Central committee.
17 THE COURT: -- committee structures is a
18 major political party --
19 MR. SMITH: Correct.
20 THE COURT: -- function.
21 MR. SMITH: And exclusively a major
22 political party function.
23 THE COURT: Any disagreement on that,
24 Mr. Steringer?
25 MR. STERINGER: Well, what I disagree on
-
7/27/2019 ReevesCA155616_2013-05-16_V4
19/137
151
1 is if we look at the statute that talks about one
2 particular function of state central committees. The
3 statute, and I can -- I can get the -- the citation.
4 THE COURT: 072?
5 MR. STERINGER: I believe that is
6 correct.
7 THE COURT: State central committee --
8 MR. STERINGER: Yes.
9 THE COURT: -- is the highest party
10 authority and may adopt rules or resolutions for any
11 matter of party government --
12 MR. STERINGER: That's --
13 THE COURT: -- controlled by the law of
14 the state.
15 MR. STERINGER: -- correct. That
16 statute is -- it is stated in terms of parties
17 generally. And so we argue that the -- the -- the
18 job of the -- the Court here in interpreting that
19 statute is to determine whether there is an analogue
20 to a state central committee in minor political
21 parties to which that statute would apply.
22 And -- and, in fact, the Secretary of
23 State, which is charged with implementing ORS Chapter
24 248 has -- has taken the position that the state
25 committee of the Libertarian Party of Oregon is the
-
7/27/2019 ReevesCA155616_2013-05-16_V4
20/137
152
1 entity that is the equivalent of a state central
2 committee under 248.072; and, therefore, fulfills
3 that role.
4 THE COURT: And I see that in what
5 document in the record? I'm assuming the Secretary
6 of State did this by a writing.
7 MR. SMITH: Your Honor --
8 MR. STERINGER: They did, Your Honor.
9 MR. SMITH: We'd stipulate there's a
10 letter from that in -- in the record; but it's a
11 low-level Elections Division employee that's
12 making -- writing that letter.
13 THE COURT: Is this Exhibit 5 to
14 Wagner's response of declaration?
15 MR. STERINGER: It's Exhibit 5 to the
16 Wagner response. Thank you. It is, Your Honor.
17 MR. SMITH: It's not the Secretary of
18 State or the director or the associate director.
19 It's a low-level elections employee who made that
20 reference.
21 THE COURT: Well, it's only a low-level
22 IRS official who denied or worked over certain
23 organizations for their viewpoints on C4 status, but
24 I think the responsibility has gone upstream.
25 MR. STERINGER: And -- and it is a
-
7/27/2019 ReevesCA155616_2013-05-16_V4
21/137
153
1 decision of the Secretary of State's Office on -- on
2 an elections question.
3 THE COURT: Now, I think Mr. --
4 Mr. Smith has already told me, Mr. Steringer, that
5 because the state central committee shall consist of
6 at least two delegates from each county's central
7 committee, when you work back through the statutes,
8 it's hard to conclude that a state central committee
9 exists as such for a minor political party.
10 But you're saying the spirit of 072,
11 248.072, should apply.
12 MR. STERINGER: And we do argue that,
13 Your Honor. And our position is supported by the
14 decision of the Oregon Secretary of State that we've
15 provided to the Court.
16 THE COURT: Okay. Now --
17 MR. SMITH: Your Honor --
18 THE COURT: -- let me go back --
19 MR. SMITH: Okay.
20 THE COURT: -- one more step and then
21 I'll -- again, what are we fighting about here? Are
22 we fighting about the bank account? I don't think
23 so. Are we fighting about the offices, the premises
24 of -- I don't know if there are any -- or are we
25 fighting about the name?
-
7/27/2019 ReevesCA155616_2013-05-16_V4
22/137
154
1 MR. SMITH: Fighting about the bylaws,
2 Your Honor, and the name. Those -- those are the key
3 things and -- and then ultimately who's in control of
4 those two things.
5 THE COURT: But who's in control of
6 what? Because --
7 MR. SMITH: The --
8 THE COURT: -- obviously if -- let's
9 assume that Reeves is successful and says -- gets
10 somebody to declare he is it. Now, when I say, "he
11 is it," I understand he doesn't say -- he's not
12 trying to be a dictator. He just is saying, "I'm
13 the -- the leader of this organization."
14 Well, other Libertarians with vote with
15 their feet and say, "Well, you may be it, but you're
16 -- you're -- you're it for a group of 13 people. Go
17 to it. We'll go over here and we'll engage in
18 political activity in the nature of organizing, doing
19 things."
20 Ultimately, would you agree, Counsel,
21 248 really talks about the role of parties in -- in
22 nominating candidates, right? I mean, isn't it real
23 functional significance of being a party the ability
24 to get names on a ballot?
25 MR. SMITH: Your Honor, I can answer
-
7/27/2019 ReevesCA155616_2013-05-16_V4
23/137
155
1 that very directly. 248.010 --
2 THE COURT: Mm-hmm.
3 MR. SMITH: -- is one of the key pieces,
4 the use of party name.
5 THE COURT: Mm-hmm.
6 MR. SMITH: And in order -- I'll point
7 you backwards from that. 248.007 talks specifically
8 about the organization -- or I'm sorry -- 248.008
9 is -- is the part that talks about the organization
10 and structure for minor political parties.
11 THE COURT: Mm-hmm.
12 MR. SMITH: Well, background to all of
13 this, when this dispute erupted, the conversation was
14 had with the Secretary of State. What happens?
15 Secretary of State, this is sort of tangential, but
16 it's background material, said, "Well" --
17 THE COURT: And this is in the record,
18 by the way, what you're going to tell me?
19 MR. SMITH: Ah --
20 THE COURT: I don't want you to talk --
21 MR. SMITH: I'm -- just background
22 explanation here from the law.
23 THE COURT: No, no. I don't want even
24 background unless I've got something in the record.
25 MR. SMITH: Well, the way the law -- the
-
7/27/2019 ReevesCA155616_2013-05-16_V4
24/137
156
1 way the law here applies is what I'll talk about, not
2 facts, is that the Secretary of State recognizes
3 whomever they had last on their roster as an officer
4 of the party. And so those -- whoever they had --
5 THE COURT: Who -- who -- where -- has
6 the Secretary of State told us this by rule or how --
7 how do we know this?
8 MR. SMITH: There -- there is
9 correspondence. I think the other side would
10 stipulate that they have -- I'm not -- I would expect
11 they would stipulate the Secretary of State has
12 stated that.
13 But the key, what I'm getting at with
14 that is that, it's the registered Libertarians in the
15 state of Oregon, whoever has the party name, has the
16 control over what happens with the registered
17 Libertarians.
18 And so for -- if you were to say,
19 "Wouldn't to be easy to just go and split off and try
20 and recruit all the people away?" Secretary of State
21 and the law only allows there to be one form of
22 registered Libertarian voter. And the registered
23 Libertarian voters, of course, affiliated with the
24 national and the entire line of registered
25 Libertarians.
-
7/27/2019 ReevesCA155616_2013-05-16_V4
25/137
157
1 THE COURT: Well, now -- no. Wait,
2 wait, wait, wait, wait. Isn't it the case that --
3 and I know names are important, brands are important.
4 Isn't it possible that Mr. Reeves and
5 his colleagues could form the real Libertarian -- the
6 statute talks about any part of a name, but for
7 purposes of my example, the Legitimate Libertarian
8 Party of Oregon and could go to the Secretary of
9 State and have themselves recognized as that.
10 And then you could complete with the
11 other people called the Libertarian Party of Oregon
12 and part of that competition would be to go to the
13 national organization and say, "You, national, have
14 something that you can add to -- you can help us, one
15 of us, but perhaps not both of us."
16 And you could make your case for why you
17 should be the affiliate and Mr. Steringer and his
18 clients, these folks' clients could make their case
19 and -- and the national body could ultimately say,
20 "Now, it's too bad there's a fight out in Oregon, but
21 we have to -- we need to" -- let's assume they said,
22 "We need to choose one group and we'll choose your
23 group."
24 MR. SMITH: Your Honor, that's why I
25 said we've already had this fight. This has already
-
7/27/2019 ReevesCA155616_2013-05-16_V4
26/137
158
1 been discussed and -- and extensively. They already
2 have. The national party has already spoken. And
3 the plaintiffs --
4 THE COURT: Do I have that in the
5 record?
6 MR. SMITH: Yes, it's in the record.
7 THE COURT: And what has the national
8 party said?
9 MR. SMITH: The national party in 2012
10 in their national convention for the selection of
11 presidential, vice presidential candidates looked at
12 this issue, had a credentials committee hearing, had
13 the entire delegation of the entire national
14 convention of the Libertarian Party decide that the
15 Reeves delegates that were sent by the Reeves party
16 to the national convention were to be seated as the
17 delegates of the Libertarian Party of Oregon.
18 So to answer your question -- I
19 mentioned that to answer your question. It's
20 possible for the national organization to recognize
21 that and they have. They seated them. My clients'
22 delegates voted for presidential nominations and --
23 and voted in all the matters at the national
24 convention.
25 What we have here is --
-
7/27/2019 ReevesCA155616_2013-05-16_V4
27/137
159
1 THE COURT: Okay. Just a moment.
2 Any -- any disagreement?
3 MR. STERINGER: Major disagreement here,
4 Your Honor.
5 THE COURT: I was going to say, I
6 thought this went the other way in your briefing.
7 MR. STERINGER: It did. We need to
8 understand that --
9 THE COURT: How can we have a 180-degree
10 difference between two members of the bar?
11 MR. STERINGER: We need to understand
12 the difference between what a convention decided to
13 do in seating a group of delegates and an official
14 decision of the Libertarian National Committee.
15 And the -- the decision of the
16 Libertarian National Committee was to recognize the
17 -- the leadership of Wes Wagner as the legitimate
18 leadership of the party and we've provided evidence
19 in the record about the fact that the Libertarian
20 National Party website still links to the
21 Libertarian Party of Oregon website that is -- that
22 is run by the Wagner faction.
23 THE COURT: So did -- did the Wagoner
24 faction send delegates to be seated?
25 MR. STERINGER: They did, Your Honor.
-
7/27/2019 ReevesCA155616_2013-05-16_V4
28/137
160
1 THE COURT: Were they seated?
2 MR. STERINGER: They were not.
3 THE COURT: That's in the record?
4 MR. SMITH: Yes, Your Honor. And,
5 Your Honor, with the -- if I can address that factual
6 contention. There were decisions prior to that made
7 by the executive committee and the judicial committee
8 of the Libertarian -- before the convention, almost a
9 year prior, and they were conflicting.
10 I believe there were three decisions
11 actually made. There was one by the executive
12 committee. There was one by the judicial committee.
13 Of those decisions, one recognized the Reeves group.
14 The judicial committee, I believe, said, "Whatever
15 the Secretary of State says is what we'll do."
16 And so there was, amongst the smaller
17 group of the executive committee and the judicial
18 committee at the national level there was conflicting
19 matters and that -- that was preliminary. So there
20 were -- there were I think three bounces amongst the
21 executive committee.
22 MR. STERINGER: Well, and Your Honor
23 will appreciate that it's the decision of the
24 judicial committee of the LNC that controls. That
25 was an appeal from the decision of the Libertarian
-
7/27/2019 ReevesCA155616_2013-05-16_V4
29/137
161
1 National Committee that had originally recognized the
2 Reeves faction. The judicial committee found that to
3 be incorrect and reversed it.
4 MR. SMITH: But this case would not
5 reverse the judicial committee. They said they'll
6 recognize whomever the Secretary of State recognizes.
7 THE COURT: I was going to say, to me,
8 the reason I'm interested in this is not because it's
9 going to -- it necessarily is precedent for this
10 decision, but I'm just trying to understand how
11 organization -- how the organizations work. I
12 mean -- okay.
13 MR. SMITH: So, Your Honor, going
14 back --
15 THE COURT: Mr. Smith, you're too young
16 to remember the Democratic convention of 1964.
17 MR. SMITH: I am.
18 THE COURT: The same problem with --
19 MR. STERINGER: So am I, Your Honor.
20 THE COURT: So are you. Anybody here --
21 anybody here --
22 MR. ANDRIES: Yes, I was there.
23 THE COURT: You were at --
24 MR. ANDRIES: I was there.
25 THE COURT: In '64?
-
7/27/2019 ReevesCA155616_2013-05-16_V4
30/137
162
1 MR. ANDRIES: That's right.
2 THE COURT: All right. Good for you.
3 Well, then you know that there was a question of
4 which delegation from Mississippi.
5 MR. SMITH: And we have cited those
6 cases, Your Honor --
7 THE COURT: Yeah.
8 MR. SMITH: -- in our briefing. I will
9 get to that when we get to the jurisdictional -- when
10 we --
11 THE COURT: Okay.
12 MR. SMITH: -- get into the
13 jurisdictional, because I think that's important.
14 And that shows the distinction between what we're
15 talking about in this case versus other cases. And
16 that law is absolutely -- I don't think it's even
17 controverted. They don't talk about it much, but we
18 do talk about it.
19 The United States Supreme Court and
20 throughout federal districts. We've cited the cases
21 that point out that when the decision can be remedied
22 by a larger body, such as the convention of the
23 National Libertarian Party, like that, then the
24 Courts have said, "We stay out of it in those
25 circumstances, because it's delegates. Who were the
-
7/27/2019 ReevesCA155616_2013-05-16_V4
31/137
163
1 proper delegates to your body?"
2 If you're going to -- if we were going
3 to have a meeting across the street and we were going
4 to pick who goes there and multiple groups pick who
5 goes there, that group gets to decide, does their own
6 credentialing and decides who are the proper people
7 to be a part of that group.
8 THE COURT: Mm-hmm.
9 MR. SMITH: But that's been decided.
10 Here, again, the -- that was decided in the
11 plaintiffs' favor at that national convention. So
12 that's not the -- that's not the issue here.
13 THE COURT: Oh, I understand seating at
14 a convention isn't the issue.
15 MR. SMITH: So if -- if this Court was
16 to go along the lines that it doesn't have -- doesn't
17 have jurisdiction or the First Amendment would bar
18 it, than that would be the binding precedent and my
19 clients should be ruled to have won, because the
20 largest body that deals with anything Libertarian in
21 the United States has said that my clients were the
22 appropriate -- the convention is the largest.
23 That's --
24 THE COURT: No, no, no. Just a moment.
25 The whole point is, is if there is a remedy in the
-
7/27/2019 ReevesCA155616_2013-05-16_V4
32/137
164
1 party, the judges stand aside.
2 MR. SMITH: Right.
3 THE COURT: And then you and the party
4 folks at national can have whatever mix of salad you
5 want to have.
6 MR. SMITH: And here the --
7 THE COURT: And it may be very confusing
8 to a lot of folks, because there may be a constant
9 trumpeting of, "We're still legitimate Libertarians.
10 Don't pay attention to these people, pay attention to
11 these people."
12 But that's the -- the -- the kind of,
13 you know, argument that --
14 MR. SMITH: Mm-hmm.
15 THE COURT: -- I guess we are supposed
16 to have.
17 MR. SMITH: And that's why we're having
18 the dispute about which -- which rules govern,
19 Your Honor. If we were to have an internal process,
20 whose internal process do you use? We have the 2009
21 bylaws, which sat there and were agreed by everybody
22 and were operated by everybody --
23 THE COURT: Well, okay. Let me ask --
24 MR. SMITH: -- and they have different
25 bylaws.
-
7/27/2019 ReevesCA155616_2013-05-16_V4
33/137
165
1 THE COURT: Okay. Let me ask this. The
2 2009 bylaws were described, as I said, as a circular
3 firing squad. I take it that the -- the problem with
4 the 2009 bylaws from my reading is that there was a
5 core requirement that, essentially, was almost
6 impossible to meet as a practical matter. Is that
7 fair to say?
8 MR. SMITH: I don't think so,
9 Your Honor. We met it. My clients in March of this
10 year met --
11 THE COURT: Well -- well --
12 MR. SMITH: -- the quorum requirement.
13 THE COURT: Just a moment. Just a
14 moment. Historically, Mr. Steringer, what was the
15 problem with the -- was there a problem with the 2009
16 bylaws? And if so, what was it?
17 MR. STERINGER: That was the problem.
18 After -- well, that was one problem. I think it's a
19 problem that is most -- most critical here. In March
20 of 2010, the Libertarian party got together and had a
21 convention and passed a reform plan. Nobody
22 complained about quorums at that time.
23 When it came time to implement the
24 bylaws changes that would effectuate that reform
25 plan, the group affiliated with the plaintiffs came
-
7/27/2019 ReevesCA155616_2013-05-16_V4
34/137
166
1 up with this quorum problem and actually convinced
2 the party at their November 2010 special convention
3 that the quorum issue prevented them from organizing
4 because there weren't enough people there to -- to
5 meet quorum.
6 The same issue arose again in March 2011
7 at the regular convention. They were not able to get
8 the number of -- of participants necessary to meet
9 that interpretation of -- of quorum. Mr. Smith
10 alluded to their position that they were able to meet
11 quorum at their -- the meeting that they had by
12 themselves.
13 THE COURT: Just a moment, just so I
14 stay on. It's following the March of 2011 -- what
15 you describe as the regular convention --
16 MR. STERINGER: Right.
17 THE COURT: -- that then your clients,
18 I'll call them, took the actions they took to
19 institute a new set of bylaws and proceed on.
20 MR. STERINGER: That's when the -- the
21 group, the Libertarian Party of Oregon state
22 committee, which is under even the 2009 bylaws,
23 the -- the group of individuals charged with carrying
24 out the affairs of the -- the party, developing
25 policy for the party, they broke the log jam by
-
7/27/2019 ReevesCA155616_2013-05-16_V4
35/137
167
1 adopting the -- a new set of bylaws that implemented
2 the reforms that were passed in 2010.
3 THE COURT: Passed by whom in 2010?
4 MR. STERINGER: By -- in a convention,
5 in a full convention of the party.
6 THE COURT: As to which no objection was
7 made regarding quorum?
8 MR. STERINGER: Correct. Correct. And
9 took the extra step of referring those bylaws out for
10 a vote-by-mail vote of every Libertarian Party of
11 Oregon elector in the state. And the results of that
12 was over 750 Libertarian Party electors participated
13 in that election, far more than would ever attend the
14 convention.
15 And they overwhelmingly ratified the new
16 bylaws that had been adopted by the state committee
17 in 2011. The vote, if my -- if memory serves, was
18 725 to 26.
19 That was a process -- if we want to try
20 to tie it back to Chapter 248, Chapter 248, as we've
21 discussed 248.005 in a rule that can't be enforced by
22 the Secretary of State; but, nevertheless, provides
23 the party is responsible for ensuring the widest and
24 fairest representation of party members in the party
25 organization and activities.
-
7/27/2019 ReevesCA155616_2013-05-16_V4
36/137
168
1 And party members, it's important to
2 understand for purposes of the statute, party members
3 means those who register as Libertarian Party
4 electors. They are affiliated with the party.
5 And that is distinct from the definition
6 of membership that had been used by the party through
7 2011, which included anybody who wrote a $50 check to
8 the organization, whether they lived in Oregon,
9 whether they were Libertarian Party members or not,
10 that's -- those were the individuals who were
11 accorded full party membership under the 2009 bylaws.
12 The 2010 reform plan decided that that
13 was not appropriate and -- and -- and went to what we
14 now have in the 2011 bylaws.
15 MR. SMITH: Your Honor --
16 THE COURT: Just one moment. And then
17 what I was picking up is the background to
18 Mr. Smith's point and that is that at some point he
19 asserts -- and I'll have him explain -- that the
20 Reeves faction was able to muster a quorum and do
21 something, so will you take me through that process
22 again --
23 MR. SMITH: Absolutely, Your Honor.
24 THE COURT: -- with attention to the
25 fact that it's got to be in the record that I've got
-
7/27/2019 ReevesCA155616_2013-05-16_V4
37/137
169
1 here.
2 MR. SMITH: Absolutely. The -- it's in
3 the record. The 2010 -- the 2009 bylaws state that
4 even-numbered years is an election -- is an
5 election -- particular type of a convention meeting.
6 Odd-numbered years they will consider bylaw
7 amendments.
8 So in 2010, they could not enact some
9 sort of reform plan, a formalized reform plan, change
10 the bylaws. It was an election only. That's the
11 first key that I'll mention about the 2010.
12 So that when the -- in November of 2010
13 and then March of 2011, there's a four-month gap
14 where they talk about, "Oh, there's the quorum
15 problem." And yes, my clients did, in fact, make
16 quorums. It's in the affidavits and declarations in
17 there. They did, in fact, make quorum this March,
18 so --
19 THE COURT: Wait, wait, wait. "This
20 March" being March of --
21 MR. SMITH: Being a month and a half
22 ago, 2013.
23 THE COURT: 2013.
24 MR. SMITH: An odd-numbered year.
25 THE COURT: Yeah.
-
7/27/2019 ReevesCA155616_2013-05-16_V4
38/137
170
1 MR. SMITH: So they did, in fact, make
2 quorum. So the contention that somehow there's a
3 rule of necessity or --
4 THE COURT: Now, is there a -- is there
5 a dispute about your clients making a quorum?
6 MR. SMITH: I believe there is,
7 Your Honor. That's why our motion for partial
8 summary judgment is particularly appropriate here.
9 We're asking that the 2009 bylaws be ruled the proper
10 bylaws, because they didn't have authority to change
11 them. They had no authority to change them.
12 And you asked about the internal --
13 before we go too past the internal process, 2009
14 bylaws did have an internal process. But the
15 defendants here assert that the 2009 bylaws are no
16 more, so the process under their bylaws would be
17 different.
18 THE COURT: What's the -- what was the
19 process under the '09 bylaws?
20 MR. SMITH: There would be a judicial
21 committee. You could have a meeting of the members.
22 Again, it's a different membership group than their
23 members, but you had -- you had the office of a
24 judicial committee or the -- the group of a judicial
25 committee available. They have a judicial committee
-
7/27/2019 ReevesCA155616_2013-05-16_V4
39/137
171
1 now under the --
2 THE COURT: Who's they?
3 MR. SMITH: We. We. My clients has --
4 Libertarian Party of Oregon under Tim Reeves has a
5 judicial committee and is operating under the 2009 --
6 well, they changed the 2009 bylaws last month. They
7 had quorum. They updated them, made some changes to
8 the 2009 bylaws to the 2013 bylaws.
9 Now, I want to point out one of your
10 introductory comments --
11 THE COURT: Hang on just a moment.
12 Mr. Steringer, what, if anything, do you
13 make or how do you respond to the distinction that
14 Mr. Smith has raised between under the '09 bylaws,
15 the odd-even -- the odd-year even-year substantive
16 limitations, which, as I understood it, was odd
17 year -- I'm sorry -- even year, election only.
18 MR. SMITH: Right. And platform, I
19 believe.
20 THE COURT: What do you mean by -- what
21 do you mean by election?
22 MR. SMITH: Of officers.
23 THE COURT: Election -- election of
24 officers?
25 MR. SMITH: Election. Officers were
-
7/27/2019 ReevesCA155616_2013-05-16_V4
40/137
172
1 elected each --
2 THE COURT: Okay.
3 MR. SMITH: -- each year.
4 THE COURT: Election of officers versus
5 odd numbered years bylaws.
6 MR. STERINGER: Your Honor, I -- I'm not
7 sure how that is relevant to the issue before the
8 Court. And I -- I must admit I'm at a loss in
9 understanding why that comes into play in this
10 particular situation.
11 The fact is that the party had a special
12 convention called in -- in 2010, November of 2010, to
13 consider and -- and presumably adopt the bylaws
14 revisions that were called for under the reform plan
15 that had been -- that had been adopted earlier in the
16 year.
17 The party, again, was unable to meet
18 quorum in March of 2011 to -- in its normal business
19 convention. And so it was at that point that the --
20 the State committee took the action that it -- that
21 it took.
22 MR. SMITH: Your Honor, the point -- the
23 point is --
24 THE COURT: What is the relevance?
25 MR. SMITH: The Article XVI of the
-
7/27/2019 ReevesCA155616_2013-05-16_V4
41/137
173
1 bylaws for amendment provisions to the 2009 bylaws --
2 and these are in the record -- says that the annual
3 convention for bylaw amendments be held in
4 odd-numbered years.
5 Now, they're contending that this reform
6 plan somehow required -- their contention earlier
7 mentioned this reform plan somehow required there to
8 be bylaw changes or approved bylaw changes or somehow
9 ratified, I think was the word they're using.
10 They're saying that their actions in --
11 in changing these bylaws in contradiction of the 2009
12 bylaws was ratified by 2010 and then ratified by a
13 vote by mail at some later point.
14 THE COURT: Mm-hmm.
15 MR. SMITH: So they didn't have the
16 authority to do any of those things. And that's the
17 point is why the bylaws need to be enforced is they
18 didn't have the authority to send out a mail ballot.
19 They didn't have the authority to, in 2010, change
20 the bylaws. And I do have M. Carling. You mentioned
21 the circular file and firing squad.
22 THE COURT: I'm sorry. You have what?
23 MR. SMITH: Mr. M. Carling is one of my
24 clients. He's here in the courtroom today. There
25 was a citation to him as the circular firing squad,
-
7/27/2019 ReevesCA155616_2013-05-16_V4
42/137
174
1 which you mentioned at the beginning?
2 THE COURT: Mm-hmm.
3 MR. SMITH: He's -- he's one of the
4 plaintiffs in this case. And so to -- to state that
5 proposition or for them to state that proposition as
6 if that is a fact that you could not operate under
7 those bylaws is -- is a misstatement, I believe. And
8 my client would disagree with that contention.
9 THE COURT: No. I took -- I took
10 circular firing squad simply to mean there were a set
11 of bylaws which caused lots of problems in terms of
12 operation rather than what we would -- what most
13 people I think would think bylaws would do and that
14 is provide a pathway for operation.
15 MR. SMITH: And I'll point out, the
16 quorum dilemma was --
17 THE COURT: Although, that said,
18 there's -- it's quite possible -- the Court can
19 imagine it's quite possible that organizations would
20 set up rules of operation that were, indeed, clumsy
21 and difficult and even -- and some people would say
22 the U.S. Constitution is designed not to move quickly
23 or particularly well at times, but that's the choice.
24 You make your choice about maybe you
25 want to go over more hurdles before you get to the
-
7/27/2019 ReevesCA155616_2013-05-16_V4
43/137
175
1 answer.
2 MR. SMITH: And I wanted to point out
3 that it was Mr. Wagner himself that made the change
4 to the bylaws that created the quorum problem. It
5 was earlier. It was 2007, but it was Mr. Wagner
6 himself. And this is in the record. Our affidavits
7 talk about these --
8 THE COURT: Mr. Wagner himself?
9 MR. SMITH: Well, he proposed it.
10 THE COURT: Meaning he just takes out a
11 pen and writes it?
12 MR. SMITH: Correct. Thank you for the
13 correction. He proposed it and it was passed back in
14 sometime 2007. It's in the record and the
15 declarations. But the change that created this
16 quorum problem was from that amendment that
17 Mr. Wagner had proposed.
18 So it's, I guess, strange or in a sense
19 ironic or estopped from staying that somehow he as
20 the -- as the purported chair now is -- shouldn't be
21 bound by the change that he purported.
22 THE COURT: Now, we're at 10 o'clock.
23 There's a 10:45 proceeding?
24 THE CLERK: No, Your Honor. Sorry.
25 Yes, you are correct. There is a 10:45.
-
7/27/2019 ReevesCA155616_2013-05-16_V4
44/137
176
1 THE COURT: We may have a 10:45
2 proceeding. Otherwise, we have some more time.
3 Well, we have time now until 10:45. Let me ask this
4 question.
5 Mr. Smith, if you win, what happens?
6 What's the state of affairs?
7 MR. SMITH: Your Honor, if we win this,
8 our motion for partial summary judgment, the 2009
9 bylaws are ruled to be the -- the remaining bylaws
10 after that March 31st meeting.
11 THE COURT: Which March 31st --
12 MR. SMITH: March 31st, 2011, when they
13 purportedly replaced the bylaws with their set of
14 bylaws. Then --
15 THE COURT: So March 31 is erased. '09
16 bylaws replaced.
17 MR. SMITH: Replaced.
18 THE COURT: Or --
19 MR. SMITH: Stay -- stay there.
20 THE COURT: -- declared -- declared
21 operative.
22 MR. SMITH: Correct. We have factual
23 disputes. They one tend that they might be quorum
24 problems with the election of my clients as officers.
25 They can --
-
7/27/2019 ReevesCA155616_2013-05-16_V4
45/137
177
1 THE COURT: When?
2 MR. SMITH: After that point, May 21st.
3 At the March 12th meeting --
4 THE COURT: May 21st of --
5 MR. SMITH: 2011. At the March 12
6 normal annual convention that everybody attended,
7 Mr. Wagner --
8 THE COURT: Now, wait. Go slow.
9 MR. SMITH: 2011.
10 THE COURT: You guys are very familiar
11 with this.
12 MR. SMITH: Okay.
13 THE COURT: If you would help me, slow
14 down. I got March 31st of '11 action would be
15 erased. The '09 bylaws would be considered
16 operative. There's a question about the May 21, 2011
17 quorum that led to -- on the decision to elect
18 Reeves, right?
19 MR. SMITH: Correct. I believe so. I
20 think they would assert that.
21 THE COURT: And then what did you say?
22 MR. SMITH: What I was getting at is --
23 THE COURT: There was another date you
24 gave me. March?
25 MR. SMITH: The March of 2011 regular
-
7/27/2019 ReevesCA155616_2013-05-16_V4
46/137
178
1 convention was continued until May 21st. Mr. Wagner
2 made the motion to continue that meeting, hold it
3 open 'til May. My clients showed up at the May
4 meeting.
5 THE COURT: And this is the one that
6 turns into a social event?
7 MR. SMITH: No. No, not social.
8 THE COURT: No, no, no. It's continued,
9 but, in fact, it's never -- doesn't it become then
10 a --
11 MR. STERINGER: The -- the leadership of
12 the party did turn it into a social event after they
13 took the action to revise the bylaws.
14 THE COURT: Right.
15 MR. SMITH: There. That's the
16 March 31st meeting.
17 THE COURT: Yes.
18 MR. SMITH: Ours was the May 21st, but
19 the full body, the full convention moved and passed
20 to continue the meeting 'til May. So March 12th,
21 different date. There's March 12th, March 31st. The
22 March 12th full convention moved and passed to
23 continue that convention on ultimately May 21st.
24 Plaintiffs, my clients, showed up on
25 May 21st, had those meetings on May 21st, while the
-
7/27/2019 ReevesCA155616_2013-05-16_V4
47/137
179
1 defendants --
2 THE COURT: What was the quorum
3 requirement at that point?
4 MR. SMITH: They -- it was --
5 THE COURT: In number of persons?
6 MR. SMITH: There was two meetings held,
7 so we'd have to distinguish between the meetings.
8 There was the convention and they did not make quorum
9 on the convention. They had a state committee
10 meeting following that and they did have quorum at
11 the state committee meeting.
12 So those are -- I think -- I think the
13 defendants will dispute some of these facts, but
14 those were the two meetings that were held according
15 to the bylaws. Those are laid out right in the
16 bylaws.
17 THE COURT: Wait, wait, wait, wait,
18 wait, wait, wait. What had been adjourned was a
19 convention, correct?
20 MR. SMITH: Continued, yes. There's
21 distinctions.
22 THE COURT: Or continued, not adjourned.
23 Continued. What had been continued was a convention?
24 MR. SMITH: Correct.
25 THE COURT: Then on May 21,
-
7/27/2019 ReevesCA155616_2013-05-16_V4
48/137
180
1 notwithstanding the actions of the defendants in
2 purporting to, I guess, cancel that continuation and
3 have a social event, your folks show up and say,
4 "Well, here we are on May 21. We're here for the
5 convention, but there's no quorum."
6 MR. SMITH: Right.
7 THE COURT: And then what do they do?
8 MR. SMITH: They adjourn that meeting.
9 THE COURT: Adjourn what meeting?
10 MR. SMITH: The convention.
11 THE COURT: The convention.
12 MR. SMITH: 'Cause you can without a
13 quorum. You can adjourn.
14 THE COURT: Yeah.
15 MR. SMITH: And they opened the state
16 committee meeting.
17 THE COURT: And by what right did they
18 open a state committee meeting?
19 MR. SMITH: The bylaws call for a state
20 committee meeting to follow the closing of the annual
21 convention.
22 THE COURT: But, of course, the
23 convention hadn't closed.
24 MR. SMITH: Yeah. It had adjourned. It
25 was adjourned (indiscernible) on May 21st.
-
7/27/2019 ReevesCA155616_2013-05-16_V4
49/137
181
1 MR. STERINGER: It never occurred.
2 MR. SMITH: You can adjourn -- these are
3 Robert's Rules of Order parliamentary questions, but
4 you can --
5 THE COURT: Whoa, whoa, whoa, whoa,
6 whoa. What tells me that Robert's Rules of Order --
7 it may be --
8 MR. SMITH: The bylaws.
9 THE COURT: -- but what tells me that
10 Robert's Rules of Order governs the parliamentary
11 procedure?
12 MR. SMITH: Article XVII of the 2009
13 bylaws. "The rules contained in the current edition
14 of Robert's Rules of Order, newly revised, shall
15 govern the LPO in all cases to which they are
16 applicable and in which they are not inconsistent
17 with the LPO Constitution, these bylaws."
18 THE COURT: So now just prior to the
19 May 21 convention, which you say, indeed, tried to
20 organize but couldn't because of a lack of quorum,
21 just prior to that convention, who were the incumbent
22 officers of the party?
23 MR. SMITH: It would have been --
24 Mr. Wagner would have been the vice chair sitting in
25 the seat of the chair because the chair had resigned.
-
7/27/2019 ReevesCA155616_2013-05-16_V4
50/137
182
1 THE COURT: Mm-hmm.
2 MR. SMITH: Other officers, I'd have to
3 refresh my memory.
4 THE COURT: But the point is the Wagner
5 faction.
6 MR. SMITH: Right. Had been --
7 THE COURT: Now, what law or bylaw or
8 rule tells me who elects or chooses officers of the
9 party?
10 MR. SMITH: The 2009 bylaws.
11 THE COURT: And what do they say?
12 MR. SMITH: These are in the exhibits,
13 Your Honor. I'll find the portion and read it to
14 you. It is cited in our briefing. "Article V,
15 officers and directors." Officers and
16 directors operate -- Section 1, "Officers and
17 directors operate the organization pursuant to
18 Article I of these bylaws and are responsible to the
19 body of the LPO and the state committee. Officers
20 manners of elections. The" --
21 THE COURT: Where are you reading from?
22 What is it?
23 MR. SMITH: Article V.
24 THE COURT: What exhibit? What number?
25 What exhibit or what --
-
7/27/2019 ReevesCA155616_2013-05-16_V4
51/137
183
1 MR. SMITH: Oh, Exhibit 1. Officer --
2 which document --
3 THE COURT: To whose declaration?
4 MR. SMITH: To the declaration of
5 Richard Burke.
6 THE COURT: Burke. Hang on here. Which
7 exhibit again?
8 MR. SMITH: Exhibit 1, Page 5.
9 THE COURT: Okay.
10 MR. SMITH: The declaration of Richard
11 Burke.
12 THE COURT: Right.
13 MR. SMITH: We're on Article V.
14 THE COURT: Mm-hmm.
15 MR. SMITH: I was about to read
16 Section 2.
17 THE COURT: Mm-hmm. "Shall consistent
18 of a chairperson," dadadadada. "Terms of office
19 begin immediately upon the close of the annual
20 convention."
21 MR. SMITH: There you go. Down below,
22 there's the conversation about vacancy and
23 succession, what happens if they're vacant.
24 THE COURT: So you assert that following
25 a convention that couldn't organize because of lack
-
7/27/2019 ReevesCA155616_2013-05-16_V4
52/137
184
1 of quorum, who then shows Mr. Reeves as -- and his
2 faction as the officers?
3 MR. SMITH: Under (B), the state
4 committee may select any LPO member to fill any such
5 vacancy until the next annual convention.
6 THE COURT: And who was the state
7 committee?
8 MR. SMITH: State committee at the time
9 was comprised of representatives from each -- I think
10 they are called affiliated county parties as well as
11 the state officers.
12 THE COURT: And were they all there?
13 MR. SMITH: There were some there.
14 There was enough for the quorum.
15 THE COURT: Were they -- enough for a
16 quorum of what?
17 MR. SMITH: Of the state committee.
18 That was the official state committee.
19 THE COURT: Who tells me what a quorum
20 of the state committee is?
21 MR. SMITH: Again, the bylaws, I'll have
22 to find the exact provision, Your Honor.
23 THE COURT: Well, I mean, after all, the
24 legitimacy of your client depends on this, doesn't
25 it?
-
7/27/2019 ReevesCA155616_2013-05-16_V4
53/137
185
1 MR. SMITH: Yes. That's why we have
2 disputed facts that I've mentioned.
3 THE COURT: That's why what?
4 MR. SMITH: I think -- I think they will
5 make the argument we didn't have quorum. We would
6 make the argument we do have quorum. They --
7 THE COURT: Well, just saying, you
8 know --
9 MR. SMITH: Sure. I'll find it for you
10 here.
11 THE COURT: Good.
12 MR. SMITH: "A quorum shall be 20" --
13 THE COURT: Where are you reading from?
14 MR. SMITH: It's the same exhibit,
15 Page 7. It's Article XI, Section 3.6.
16 THE COURT: Article XI, Section 3. Hang
17 on. Page 7? Exhibit 1, Page --
18 MR. SMITH: Exhibit 1, Page 6 is the
19 start of Section 3.
20 THE COURT: I see.
21 MR. SMITH: Bullet points. Number 6
22 particularly points out a quorum shall be 20 --
23 THE COURT: No. Wait, wait, wait, wait.
24 Hold it. Hold it. "The state committee shall hold
25 at least one regular meeting every three months.
-
7/27/2019 ReevesCA155616_2013-05-16_V4
54/137
186
1 Notice of time each member -- per each member of the
2 state committee shall have one vote. All meetings
3 shall be open. A quorum is 20 percent of the members
4 of the state committee."
5 MR. SMITH: That's it, Your Honor.
6 THE COURT: Who tells me who the state
7 committee is?
8 MR. SMITH: The -- normally the -- well,
9 the membership lists and the credentials committee
10 would normally decide that. And the -- that's -- we
11 have -- there's an established membership list.
12 THE COURT: When -- who would decide who
13 is a member of the state committee?
14 MR. SMITH: Article XI again, Section 2.
15 The bylaws decide who's a member --
16 THE COURT: "Each affiliated county
17 party will be entitled to two state committee seats."
18 MR. SMITH: Right.
19 THE COURT: "Each ACP will select state
20 committee representatives or alternates."
21 MR. SMITH: That's it.
22 THE COURT: And then 20 percent --
23 MR. SMITH: Of those are required to
24 have an official meeting.
25 THE COURT: And then at this official
-
7/27/2019 ReevesCA155616_2013-05-16_V4
55/137
187
1 meeting where you assert there was a proper quorum,
2 the Reeves group were chosen as the new state
3 committee?
4 MR. SMITH: Correct, Your Honor.
5 THE COURT: And what do you say,
6 Mr. Steringer?
7 MR. STERINGER: I -- I do want to make
8 one thing clear, big picture, when it comes to this
9 meeting.
10 THE COURT: Which meeting? The
11 meeting --
12 MR. STERINGER: This purported meeting,
13 the May 21st meeting in which a few of the defendants
14 got together and purported to have a state committee
15 meeting.
16 MR. LEUENBERGER: Plaintiffs.
17 MR. STERINGER: Plaintiffs. Thank you.
18 I don't think either party has put the
19 legitimacy of the May 21st meeting at issue in the
20 summary judgment motions, primarily because -- well,
21 we just didn't. I think Mr. Smith correctly
22 identifies that there may be factual issues that need
23 to be worked out there.
24 But we have put in some evidence into
25 the record that would show or seriously question
-
7/27/2019 ReevesCA155616_2013-05-16_V4
56/137
188
1 whether they actually had a quorum for a state
2 committee meeting if it was a legitimate state
3 committee meeting in the first place.
4 Understand, this is something that was
5 not attended by any of the officers of the -- of the
6 organization, because the two months prior to that,
7 they had adopted new bylaws that no longer had or
8 required a state committee meeting in -- in May of
9 2011.
10 And so the motions that we have that
11 deal with officers of the party focus on legal
12 questions where it -- where the answer is clearly
13 established by the bylaws. And --
14 THE COURT: And now that's a good segue
15 to go through more motions for me. With the
16 background we've had, discussion, you come and say,
17 "Here's why we win and here's why we can win without
18 regard to messy fact questions regarding this May
19 meeting."
20 MR. STERINGER: Well, our -- our first
21 motion is our motion that asserts that this issue was
22 already decided by the Washington County Circuit
23 Court. And the issue that was decided was that a
24 Circuit Court in Oregon cannot order the type of
25 relief that plaintiffs seek in this case with respect
-
7/27/2019 ReevesCA155616_2013-05-16_V4
57/137
189
1 to the Libertarian Party of Oregon.
2 And that decision was based on the
3 constitutional issue that we've spent some time on
4 this morning. We've asserted the constitutional
5 issue as a separate motion as well, independent of
6 the issue preclusion argument.
7 That's our second motion for summary
8 judgment. And, at some point, I'd like to come back
9 to the -- to the point that Mr. Smith raises in his
10 briefing about whether subject matter jurisdiction is
11 properly presented to the Court in the form of a
12 summary judgment motion. And so I could --
13 THE COURT: Well, I can short-circuit
14 that, I think. Subject matter jurisdiction is
15 relevant at each and every stage of a proceeding,
16 including on appeal.
17 MR. STERINGER: And -- and --
18 THE COURT: Would you disagree,
19 Mr. Smith?
20 MR. SMITH: It depends upon the bases,
21 Your Honor. Some arguments are lost if they're not
22 made in motion to dismiss stage. Aside from that, I
23 would agree with your (indiscernible).
24 THE COURT: No, no, no. An argument on
25 subject matter jurisdiction is never lost. If a
-
7/27/2019 ReevesCA155616_2013-05-16_V4
58/137
190
1 Court has -- does not have subject matter
2 jurisdiction, it -- it doesn't -- it isn't created by
3 the failure of a party to object. It can't be.
4 MR. SMITH: I don't -- I don't think
5 that argument is going to decide today. I think we
6 win on all the other grounds (indiscernible).
7 THE COURT: Well, good. I'm just saying
8 I'm not going to spend much time on the subject
9 matter jurisdiction argument, because if I don't have
10 it, I don't have it.
11 MR. SMITH: Yeah.
12 THE COURT: And I'm not going to -- I'm
13 not going to walk that plank.
14 MR. STERINGER: Right. And the reason
15 that I wanted to come back to it is I -- if I have
16 wondered about anything in connection with these
17 motions, it's the question of whether a summary
18 judgment motion versus a motion to dismiss was the
19 proper way to phrase some of these arguments,
20 including standing in the exclusive remedy of the
21 APA.
22 Some may say the constitutional issue
23 also implicates subject matter jurisdiction. And
24 what I -- what I wanted to -- to propose was that
25 if -- if the plaintiffs are concerned that summary
-
7/27/2019 ReevesCA155616_2013-05-16_V4
59/137
191
1 judgment is not the proper procedural mechanism for
2 raising subject matter jurisdiction and it's -- and
3 if it's acceptable to the Court, we would stipulate
4 that these motions should be considered as motions to
5 dismiss and decided under a motion to dismiss
6 standard rather than a summary judgment motion.
7 I don't think anybody wants to have this
8 -- this issue left undecided two months before trial,
9 because we called it a summary judgment motion
10 instead of a motion to dismiss.
11 THE COURT: Mr. Smith?
12 MR. SMITH: Your Honor, reclassifying
13 these I think has already been done. I mean, I don't
14 think this Court's going to -- so the Spada
15 (phonetic) case stands for itself. The Spada case
16 says what it says. I think it's good law.
17 THE COURT: Well, tell me what it says.
18 MR. SMITH: Okay.
19 THE COURT: Well, first of all, tell me,
20 do you agree with Mr. Steringer that I ought to
21 decide this matters and you're not going to object on
22 procedural grounds?
23 MR. SMITH: I'll find the Spada case,
24 Your Honor.
25 THE COURT: Well, before you do that,
-
7/27/2019 ReevesCA155616_2013-05-16_V4
60/137
192
1 just -- this is an easier one. Do you agree with
2 Mr. Steringer -- do you accept Mr. Steringer's
3 invitation to simply waive procedural objections and
4 go to the merits?
5 MR. SMITH: On that we do, Your Honor.
6 THE COURT: So then we don't care about
7 Spada.
8 MR. SMITH: Okay.
9 THE COURT: So I'm assuming Spada has
10 something to do with motion to -- Rule 21 versus
11 Rule 47?
12 MR. SMITH: Yes.
13 THE COURT: Okay. So you've -- if
14 you're -- if you're agreeing then, for the record,
15 I'll just proceed to the merits. And now go ahead.
16 MR. STERINGER: Thank you, Your Honor
17 and thank you, Counsel, for that.
18 Our third motion has to do with whether
19 the individuals identified as plaintiffs in this case
20 had standing to bring the claims that they assert
21 here. And it is in this motion that we get to the
22 question of -- of membership and whether the
23 plaintiffs were members of the LPO under the bylaws
24 that they seek to enforce.
25 And on that question, we rely primarily
-
7/27/2019 ReevesCA155616_2013-05-16_V4
61/137
193
1 on the plaintiffs' responses to requests for
2 admissions where they admitted that they did not pay
3 dues to the Libertarian Party of Oregon in the
4 one-year period leading up to the filing of their
5 complaint.
6 And that's determinative on the question
7 of whether they would have been members under the
8 2009 bylaws that they seek to enforce.
9 THE COURT: Hmm.
10 MR. STERINGER: And since they were not
11 members, they lacked standing to find the lawsuit
12 that they -- they filed. It also has other
13 implications, the primary one being that the fact
14 that their memberships expired under the 2009
15 bylaws --
16 THE COURT: Expired.
17 MR. STERINGER: The -- the -- under the
18 2009 bylaws, individuals had to pay $50 per year to
19 maintain their membership in the party.
20 THE COURT: Okay. So they perhaps had
21 paid in the past, but in the year preceding the
22 complaint, they didn't --
23 MR. STERINGER: Correct.
24 THE COURT: -- pay 50.
25 MR. STERINGER: Correct. Their -- their
-
7/27/2019 ReevesCA155616_2013-05-16_V4
62/137
194
1 memberships expired in the time period leading up to
2 the filing of the complaint.
3 THE COURT: Okay.
4 MR. STERINGER: And the -- the effect of
5 that expiration is that even if they held a
6 legitimate meeting in -- in May of 2011 where they
7 elected themselves the officers of the party, under
8 the 2009 bylaws, which require the maintenance of
9 membership in order to hold officer positions, they
10 lost those positions.
11 So that impacts whether they had the
12 authority to bring a claim on behalf of the
13 Libertarian Party of Oregon. And it also comes into
14 play in our counterclaim for declaratory judgment in
15 which if the -- if the Court decides it wants to wade
16 into this intraparty dispute, one -- one of the
17 things that it can decide, as a matter of law, is
18 that the individuals who have identified themselves
19 as officers in the organization, that's plaintiffs
20 Reeves, Saub, Burnett and Pealer, those individuals
21 are not officers of the organization. And -- and
22 that can be determined under the bylaws. That --
23 THE COURT: But that's only four, right?
24 MR. STERINGER: That -- those are the
25 four individuals, the four lead plaintiffs.
-
7/27/2019 ReevesCA155616_2013-05-16_V4
63/137
195
1 THE COURT: Yes. What about Terry,
2 Carling, Burke?
3 MR. STERINGER: Those individuals
4 identify themselves as members of the party. That's
5 how they seek to establish standing to bring the --
6 the complaint. And, as we said --
7 THE COURT: But they -- are they swept
8 up in the they didn't pay the 50 bucks?
9 MR. STERINGER: Correct. That's
10 correct. We have --
11 THE COURT: What about the 50-buck
12 requirement?
13 MR. SMITH: Your Honor, that's a giant
14 red herring. First of all --
15 THE COURT: Red herring won't help me.
16 It's just a --
17 MR. SMITH: That's -- that's --
18 THE COURT: It's just a pejorative
19 phrase that won't --
20 MR. SMITH: Well, it's fine. It's a
21 question of fact that's subsequent to that. Our
22 declarations -- I'm sorry if the Court --
23 THE COURT: Well, wait, wait, wait,
24 wait. It's a question of fact, meaning --
25 MR. SMITH: Whether they --
-
7/27/2019 ReevesCA155616_2013-05-16_V4
64/137
196
1 THE COURT: -- you're saying that
2 summary judgment can't lie?
3 MR. SMITH: Summary judgment cannot lie
4 on that question.
5 THE COURT: Okay.
6 MR. SMITH: We have declarations from
7 Mr. Reeves, Mr. Burke. We have an exhibit, the
8 membership lists of plaintiffs' Libertarian Party of
9 Oregon. We have an exhibit, the Libertarian Party of
10 Oregon suspended the dues requirement during that
11 period of time.
12 We have records of payments in the
13 record showing those dues payments during that period
14 of time.
15 THE COURT: Okay. Just a moment.
16 Mr. Steringer, you -- you -- I believe
17 you said you relied on a request for admission.
18 MR. STERINGER: We -- we have a request
19 for admission. It is -- it's in the -- the John Rake
20 (phonetic) declaration. And it is exhibit -- let's
21 see. It's Exhibit 17 to the revised declaration of
22 John Rake. The admitted state --
23 THE COURT: The revised declaration?
24 I've got a declaration. Declaration.
25 MR. STERINGER: It's also attached to
-
7/27/2019 ReevesCA155616_2013-05-16_V4
65/137
197
1 the original declaration, but I'm not sure it's the
2 same exhibit number.
3 THE COURT: Which -- where is it
4 attached on the original declaration?
5 MR. STERINGER: Let me see if I can --
6 MR. SMITH: Your Honor, I wouldn't be
7 opposed to him just simply reading it, because it's
8 talking about payments to their organization.
9 There's no -- yes, my clients didn't pay their
10 organization after they were in charge of their own
11 organization.
12 That's what he -- go ahead and have him
13 read it, because I -- we -- it's in there, but
14 that -- that doesn't apply here.
15 THE COURT: Just a moment. Just a
16 moment. There's only one organization, isn't there?
17 MR. SMITH: There's --
18 THE COURT: There's one organization and
19 the question is who controls it. You've just
20 suggested there are two organizations.
21 MR. SMITH: There are two organizations,
22 Your Honor.
23 THE COURT: Then go live your life.
24 You've got yours. They've got his -- he's got his.
25 Don't ask me to decide who governs one. That is
-
7/27/2019 ReevesCA155616_2013-05-16_V4
66/137
198
1 fundamentally inconsistent. You either retreat from
2 that position or we go no further.
3 MR. SMITH: There's two organizations
4 that believe they are the sole --
5 THE COURT: Sir, sir, you either retreat
6 from that position or we go no further. Do you
7 retreat?
8 MR. SMITH: Yes, Your Honor. There's
9 one --
10 THE COURT: Stop. That's all. You
11 retreat. Back.
12 MR. STERINGER: The admission that --
13 THE COURT: It's hard enough for me to
14 try to figure this out if we're talking about who
15 controls one organization. If your theory is there
16 are two organizations, I will go no further.
17 MR. STERINGER: The admission --
18 THE COURT: You can each have your own
19 organization and you can meet on the field of battle
20 somewhere and solve it by jousting. Rake. Which
21 Rake? Which exhibit?
22 MR. STERINGER: It's Exhibit 17 in -- in
23 both of the declarations, so you should be able to
24 find it there.
25 THE COURT: Rake. You said there was a
-
7/27/2019 ReevesCA155616_2013-05-16_V4
67/137
199
1 revised Rake? I'm -- I'm assuming I've got it. I've
2 got a lot.
3 MR. STERINGER: If you have one of the
4 Rakes --
5 THE COURT: 17. I've got it.
6 MR. STERINGER: Okay.
7 THE COURT: Defendant Libertarian --
8 request for admissions.
9 Okay. Go ahead.
10 MR. STERINGER: And it's Request for
11 Admission No. 3 on Page 3.
12 THE COURT: Okay.
13 MR. STERINGER: Top of the page.
14 THE COURT: "No plaintiff paid $50 or
15 more in dues to the Libertarian Party of Oregon
16 between January 16th and January 16th, '12."
17 Response, blank.
18 MR. STERINGER: And then we have to turn
19 to later in the --
20 THE COURT: Were their responses filed?
21 MR. STERINGER: They were. It's -- if
22 you turn to Page 9 of exhibit.
23 THE COURT: Okay.
24 MR. STERINGER: We have their responses
25 and that is admitted.
-
7/27/2019 ReevesCA155616_2013-05-16_V4
68/137
200
1 THE COURT: Okay. What can you do with
2 that, Mr. Smith?
3 MR. SMITH: Your Honor, this dues
4 requirement was suspended during that -- that period
5 of time that they're talking about to pay the dues.
6 My client, Mr. Burnett, is the treasurer.
7 THE COURT: Well, just a moment. Just a
8 moment. But the request for admission was no
9 plaintiff paid 50 or more in dues to the Libertarian
10 Party of Oregon. And the response is admitted.
11 MR. SMITH: It's 'cause they suspended
12 the dues requirement, Your Honor. They --
13 THE COURT: Who's "they"?
14 MR. SMITH: Let me rewind. The state
15 committee suspended the dues requirement. People pay
16 dues --
17 THE COURT: Who -- well, which state
18 committee?
19 MR. SMITH: The Reeves state committee
20 suspended the dues requirement after they took
21 office.
22 THE COURT: Oh, well. That doesn't
23 work.
24 MR. SMITH: They also --
25 THE COURT: This is just another version
-
7/27/2019 ReevesCA155616_2013-05-16_V4
69/137
201
1 of the two-organization argument.
2 MR. SMITH: Your Honor, we have dues.
3 They're in the declarations. There are --
4 THE COURT: Well, just a moment. Just a
5 moment. Let me make sure I've got my dates right
6 here. The request is between January 16th of '11 and
7 January 16th of '12. Now, during that time period,
8 the Reeves faction files this lawsuit.
9 MR. STERINGER: The Reeves faction filed
10 the lawsuit on the last day of that period.
11 THE COURT: Okay.
12 MR. STERINGER: What this establishes is
13 what happened during the year preceding the filing of
14 the lawsuit.
15 THE COURT: And they didn't pay dollars
16 to that organization, they admit, but then Mr. Smith
17 says yes, but --
18 MR. SMITH: There's a couple of things,
19 Your Honor.
20 THE COURT: Okay. Then why don't you
21 take me through them carefully and slowly.
22 MR. SMITH: Okay.
23 THE COURT: One is --
24 MR. SMITH: One is --
25 THE COURT: -- requirement suspended.
-
7/27/2019 ReevesCA155616_2013-05-16_V4
70/137
202
1 MR. SMITH: -- that what the
2 defendants --
3 THE COURT: Now, wait. Are we talking
4