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 2 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 James E. Redman, on Thursday, the 14th
24 day of June, 2012, at the Clackamas County
25 Courthouse, Holman Hearing Room, Oregon City, Oregon.
Appearances/Index 52
1 APPEARANCES
2 Tyler Smith, Attorney at Law,
Appearing on behalf of the Plaintiffs;
3
Robert Steringer, James Leuenberger and
4 Colin Andries, Attorneys at Law,
Appearing on behalf of the Defendants.
5 * * *
6
KATIE BRADFORD, CSR 90-0148
7 Court Reporter
(503) 267-5112
8
Proceedings recorded by digital sound recording;
9 transcript provided by Certified Shorthand Reporter.
10 * * *
11
12 GENERAL INDEX
13 VOLUME 2
14 Page No.
15 June 14, 2012 Proceedings 54

16 Case Called; Parties Introduced 54
17 Defendants' Argument by Mr. Steringer 54
18 Defendants' Argument by Mr. Leuenberger 63
19 Defendants' Argument by Mr. Andries 64
20 Plaintiffs' Argument by Mr. Smith 65
21 Defendants' Argument by Mr. Steringer 85
22 Defendants' Argument by Mr. Andries 87
23 Court's Ruling 88
24 Colloquy, re: Clarification on Motion 3 94
25 Court's Ruling 96
Index 53
1 GENERAL INDEX
2 VOLUME 2
3 Page No.
4 Court's Ruling 97
5 Court's Ruling 98
6 Colloquy, re: Attorney Fees 98
7 Court's Ruling 98
8 Mr. Smith Recaps Rulings 99
9 Court's Ruling 101
10 Court's Ruling 102
11 Court's Ruling 103
12 Reporter's Certificate 105
13 * * *
14
15
16
17
18
19
20
21
22
23
24
25
54
1 (Volume 2, Thursday, June 14, 2012, 1:06 p.m.)
2 P R O C E E D I N G S
3 (Whereupon, the following proceedings
4 were held in open court:)
5 (TRANSCRIBER'S NOTE: Audio record
6 begins midsentence.)
7 THE COURT: -- to work in this
8 courtroom. Just stay seated when you're talking to
9 me and we'll have a little discussion. I've made
10 notes. I've read the file. I'm not going to claim
11 that I understand it fully, so you're going to have
12 to help me out here a little bit. Anyway, we have
13 Rule 21 motions or LPO.
14 And, Mr. Wagner, I can tell you right
15 now I have some fairly strong feelings about some
16 things, but go ahead.
17 And who wants to go first?
18 Mr. Steringer?
19 MR. STERINGER: I'd be glad to,
20 Your Honor. Thank you.
21 THE COURT: Okay. Why don't you go
22 first?
23 MR. STERINGER: Your Honor, mindful of
24 the fact now that you've had the opportunity the
25 spend more time with the file, which you were not
55
1 given the last time we were here, and the fact we --
2 we had some argument on these issues, I'll try to
3 focus on the -- the arguments that have been raised
4 by the plaintiffs against our various motions,
5 starting with the fundamental point that we have
6 three different types of motions before you on behalf
7 of the Libertarian Party.
8 One motion is based on a constitutional
9 issue, one is based on statutory interpretation and
10 the other is based on the -- our Rule of Civil
11 Procedure on attorney fees.
12 Starting with the constitutional
13 issue --
14 THE COURT: Why don't you refer to the
15 number of your motions as they are addressed in your
16 document?
17 MR. STERINGER: Motion No. 1 is the
18 motion that we've made on the constitutional issue
19 and it's in that motion that we seek dismissal of the
20 entire complaint filed by the plaintiffs on
21 constitutional grounds.
22 The -- the motion is -- is based on
23 the -- the First Amendment and the holdings of the
24 U.S. Supreme Court that the right of association
25 under the First Amendment prohibits states from
56
1 getting involved in intra-party disputes, disputes
2 within factions of political parties when there is no
3 compelling interest, compelling governmental interest
4 in getting engaged in that dispute.
5 And the Court has made clear that the
6 government does not have a compelling interest in
7 regulating internal party affairs. In the Court's
8 words, the State has no interest in protecting the
9 integrity of the party against the party itself. And
10 that's from the Tashjian case, 479 U.S. 208 of 224.
11 Now, with that backdrop, at the last
12 hearing I heard -- I heard three arguments from the
13 plaintiffs in -- in attempting to establish why,
14 notwithstanding the Supreme Court's holdings, this
15 Court should still get involved in this intra-party
16 dispute.
17 The first argument I heard was that if
18 this does -- it this Court doesn't take action, then
19 -- then they won't be able to get relief for the
20 wrongs that they perceive. And -- but that's not a
21 legal argument and it's not stating anything that is
22 particularly novel.
23 There are many situations where a party
24 isn't able to get relief for a perceived wrong. You
25 might think of the economic loss doctrine that
57
1 prevents a party from asserting a claim for purely
2 economic damages when they've been injured
3 negligently. And more to the point here, there are
4 situations where the -- where a Constitution prevents
5 a party from obtaining certain types of relief.
6 Sticking with the First Amendment, a
7 good example of that would be the free speech and
8 free press clauses of the First Amendment which place
9 very strict restrictions on a party's ability to
10 obtain relief for defamation, for example.
11 And yet we don't -- we don't throw the
12 First Amendment to the side in a situation, simply
13 because enforcing it would prevent a party from
14 remedying a wrong that they have suffered.
15 The -- the second argument that -- that
16 plaintiffs made at the last meeting, if I understood
17 it correctly, was that this is not a case that
18 involves State action. And what I understand the
19 plaintiffs to be arguing is that this is not a case
20 like the -- the Eu v. San Francisco County Democratic
21 Central Committee case, which we rely on, which
22 involved a challenge to the constitutionality of a
23 California state statute that regulated internal
24 party affairs.
25 The simple answer to that question is
58
1 that the State -- I'm sorry -- the Court is an arm of
2 the State. It is bound by the same constitutional
3 restrictions that apply to other branches of
4 government. And to avoid any doubt about that, we
5 cited the Cousins v. Wigoda case, another U.S.
6 Supreme Court case. That's from 1975 and it's found
7 at 419 U.S. 477.
8 Cousins didn't involve an
9 unconstitutional statute. It involved an injunction
10 that was issued by a state trial Court regarding the
11 seating of delegates and the Court in that case found
12 that that was a state action that was improper under
13 the First Amendment.
14 The third argument I heard from
15 plaintiffs was that there are cases out there where
16 the Courts have, in fact, made decisions regarding
17 the internal affairs of political parties.
18 Now, setting aside the cases that were
19 decided before the U.S. Supreme Court set out the
20 rules that we operate under now, plaintiffs pointed
21 to two cases from 2000, the year 2000, that involved
22 the Reform Party.
23 And those cases simply don't help the
24 plaintiffs here. One was the Gargan case and in that
25 case the constitutional issue as far as I can tell
59
1 was not raised. It's not evident in the -- in the
2 opinion, at least. So that -- the constitutional
3 question was not posed or answered there. And so the
4 Court went ahead and decided questions involving the
5 party.
6 The other case is Bysiewicz. And there,
7 the Court expressly recognized that there were
8 constitutional limits to what it could do. And --
9 and it stated that its job in that case was to,
10 "avoid engaging in deciding political questions while
11 at the same time attempting to ensure that a national
12 political party may present to the elector its chosen
13 candidates."
14 That was recognizing the distinction
15 that's been made in the U.S. Supreme Court cases,
16 which say that while the State does not have a
17 compelling governmental interest in the orderly
18 operation of political parties, it does have a
19 compelling interest in orderly elections.
20 And so the Court was -- was striking
21 that balance, recognizing that it couldn't get into
22 the internal party affairs. So the relief sought by
23 the plaintiffs would have this Court
24 unconstitutionally entangle itself in the internal
25 affairs of a party.
60
1 And for that reason, we've asked in
2 Motion 1 that the -- that the entire complaint be
3 dismissed.
4 THE COURT: Don't you also, at least one
5 of the defendant's attorneys, it seems to me has
6 claimed it should be dismissed for failure to join
7 five other people?
8 MR. STERINGER: I -- I'll defer to -- to
9 other counsel on that. We -- we had slightly
10 different motions on that subject initially. The --
11 the motions that -- or the motion that was filed by
12 my client, the Libertarian Party of Oregon, was
13 focused on the failure to join certain parties as
14 plaintiffs, individuals that wanted to take positions
15 in the party that were currently held by others.
16 The plaintiffs have -- have -- based on
17 the Court's order requiring them to do so, have
18 joined those parties. And so we have -- from our
19 standpoint, that's been decided.
20 I understand that the other defendants
21 have taken the position, I think appropriately so,
22 that to the extent that the plaintiffs are seeking to
23 remove people from office beyond those who are named
24 here as defendants, they need to be joined in this
25 case.
61
1 THE COURT: I take it you would agree
2 with that.
3 MR. STERINGER: Well, I -- I would agree
4 with that.
5 THE COURT: Okay.
6 MR. STERINGER: I would.
7 THE COURT: Okay. Your Motion 2.
8 MR. STERINGER: Motion 2, I believe we
9 actually --
10 THE COURT: You withdrew that?
11 MR. STERINGER: -- omitted in this
12 second round.
13 THE COURT: You withdrew that, if my
14 notes are correct?
15 MR. STERINGER: That is -- that is true,
16 because the Court granted it the first time around.
17 THE COURT: Right.
18 MR. STERINGER: We -- we're satisfied
19 with that, although like I said and as the Court has
20 observed, the other defendants have those joinder
21 questions yet to be resolved.
22 THE COURT: So your Motion 3.
23 MR. SMITH: Motion No. 3 is the -- our
24 statutory interpretation argument, which is aimed at
25 the second claim for relief of the -- of the
62
1 plaintiffs. And I don't know that there's much to
2 add beyond the briefing on that. There's one simple
3 fact. The Libertarian Party of Oregon is not a
4 nonprofit corporation. It's not organized that way.
5 There is a -- a statute in Chapter 248
6 applying to political parties, which says that
7 political parties will be treated as if they are
8 nonprofit corporations in certain instances.
9 THE COURT: You're referring to
10 248.004(2)?
11 MR. STERINGER: That's correct.
12 THE COURT: Okay.
13 MR. STERINGER: 248, that -- that
14 provision does not make the entire -- the entirety of
15 ORS Chapter 65 applicable to political parties.
16 It's -- it's very specific as to which provisions
17 apply. And it does not provide that ORS 65.084 is
18 applicable to political parties.
19 THE COURT: That's the argument there.
20 MR. STERINGER: That's the statute --
21 THE COURT: Okay.
22 MR. STERINGER: That's the statute cited
23 by the plaintiffs.
24 THE COURT: I don't think you need to
25 say any more there. I'm pretty up to speed on that.
63
1 MR. STERINGER: Okay. The -- our Motion
2 No. 4 is if the Court were not to grant Motion No. 3,
3 we've -- we've identified certain types of relief
4 that are sought by the plaintiffs that would fall
5 outside the scope of 65.084 if the Court allowed
6 plaintiff to proceed under that statute.
7 And -- and that's just recognizing that
8 65.084 only provides for certain types of relief.
9 And the plaintiffs are asking for some relief that is
10 not allowed. And we've marked that in the complaint
11 in the attachment to our motions that identifies
12 which forms of relief are not allowed under 65.084.
13 THE COURT: Okay. Gotcha.
14 MR. STERINGER: Motion No. 5 is our
15 motion --
16 THE COURT: I can tell you right now you
17 can save your breath on that. I'm going to grant it.
18 MR. STERINGER: Okay. Thank you,
19 Your Honor. That's all I have.
20 THE COURT: Okay. Any of the other
21 defense attorneys wish to be heard? Not on the same
22 argument I've just heard, but anything in addition?
23 MR. LEUENBERGER: I'm content to rest on
24 my briefing, Your Honor. I'm James Leuenberger on
25 behalf of Wes Wagner.
64
1 THE COURT: Okay. All right.
2 MR. ANDRIES: Your Honor, Colin Andries
3 on behalf of Defendants Tabor, Vetanen and Knight.
4 And I submitted three Rule 21 motions.
5 First was based on that my defendants
6 were not properly joined, but they have been named as
7 in their corporate capacity and not as individuals.
8 THE COURT: You represent who, again?
9 MR. ANDRIES: Defendants Tabor --
10 THE COURT: Tabor, Vetanen and --
11 MR. ANDRIES: Vetanen.
12 THE COURT: Vetanen.
13 MR. ANDRIES: And Knight.
14 THE COURT: And Knight. Got it.
15 MR. ANDRIES: For the record,
16 Colin Andries, A-n-d-r-i-e-s.
17 THE COURT: Okay. So your first motion,
18 say it again?
19 MR. ANDRIES: Was to dismiss, because
20 my -- my clients, Defendants Tabor, Vetanen and
21 Knight have not been properly joined. This was based
22 on --
23 THE COURT: Okay.
24 MR. ANDRIES: -- 21A7. The second
25 motion was to make plaintiffs' complaint more
65
1 definite and certain, based on confusion in the
2 complaint on who was being referred to throughout
3 plaintiffs' complaint when he labeled Defendants LPO,
4 Wagner and there's a variety of confusion there.
5 And the third one, piggy-backed off of
6 one of Mr. Leuenberger's motions was to make more
7 definite and certain the third claim for relief. But
8 I understand that you've read my briefing on it and
9 I'd be content to --
10 THE COURT: Okay.
11 MR. ANDRIES: -- rest on your reading of
12 my briefing.
13 THE COURT: Okay. Then if I'm following
14 everyone, Mr. Steringer, it's your turn.
15 MR. SMITH: Mr. Smith, Your Honor.
16 THE COURT: Pardon me?
17 MR. SMITH: Plaintiffs' -- I'm
18 Mr. Smith. I apologize.
19 THE COURT: Sorry.
20 MR. SMITH: (Indiscernible),
21 Mr. Steringer.
22 THE COURT: Sorry. Somebody was
23 complimented and somebody was insulted, I assume.
24 MR. SMITH: Thank you, Your Honor. So
25 I'll address their rebuttals here in a moment, but
66
1 I'm going to go back here and explain a little bit,
2 which I don't think was explained at the first
3 hearing about why -- and the significance of why our
4 relief is only -- the relief we're requesting is only
5 against Mr. Wagner and the corporation, the
6 Libertarian Party, the organization.
7 As this Court is fully aware,
8 corporations, no private individual can act in his
9 own private individual capacity for an organization.
10 The organization, through its either elected offices
11 or through boards, through collective bodies,
12 quorums, can act. This is a big reason why
13 defendants appear to be confused.
14 We're seeking -- our relief is against
15 Mr. Wagner and against the organization. We're not
16 seeking relief against anybody else. We don't need
17 relief against anybody else.
18 As ORS 28.010 makes perfectly clear and
19 I read, "Courts of record within their respective
20 jurisdictions shall have the power to declare rights,
21 status and other legal relations whether or not
22 further relief is or could be claimed."
23 Certainly, my clients might be able to
24 make other claims against other defendants, unknown
25 defendants. Their assertion that we're trying to do
67
1 something against their membership or their directors
2 is simply wrong. We don't ask for that under our
3 relief.
4 We're asking for injunctive relief
5 against Mr. Wagner, who purports to be the chair, and
6 the organization, who purports that Mr. Wagner is the
7 chair to the Secretary of State. That's why there's
8 been confusion in this and that's why are the parties
9 that we've joined have been proper from the get-go
10 and are proper now still.
11 We go back to March 12th of 2011. The
12 Libertarian Party of Oregon convened its annual
13 convention. At the time, Mr. Jeff Weston was the
14 chair. Defendant Wagner was the vice chair. At that
15 very meeting, Mr. Wagner himself moved to continue
16 the meeting to May.
17 That meeting was held on May 21st. And
18 after that meeting on that day, my client, the
19 plaintiffs, were elected the officers of the
20 Libertarian Party of Oregon. Since that day, they've
21 been operating as the Libertarian Party of Oregon.
22 Even up 'til -- and apparently since
23 that same period of time, Mr. Wagner and his officers
24 amended the bylaws and kept operating under -- under
25 their organization under the same -- same heading,
68
1 the same title.
2 The problem is, the Secretary of State
3 on that date had Mr. Wagner still on her list of
4 officers because of the prior year where Mr. Wagner
5 was the vice chair.
6 But as we've seen in the years since
7 then, even as recently as May 2nd through 6th at the
8 Libertarian National Convention, the Libertarian
9 National Convention voted at the credentials
10 committee that Mr. Reeves and his officers are the
11 proper officers of the Libertarian Party of Oregon.
12 The minutes aren't out yet.
13 We'd be happy to make an offer of proof
14 if this material -- I think it's just background
15 information at this time. And the -- so the
16 credentials committee voted and said that Mr. Reeves
17 is the proper chair, that his officers elected the
18 proper delegates to go to the national convention.
19 Mr. Wagner himself was not even seated
20 as a delegate. His officers were rejected by both
21 the credentials committee and the full body.
22 Mr. Wagner was not even seated at the convention. So
23 to the extent that in some of their arguments,
24 Mr. Steringer just pointed out the Cousins v. Wigoda
25 case.
69
1 I've addressed that in our briefing. To
2 the extent that a larger convention is the proper
3 body to determine who the officers are, the
4 plaintiffs have won already. Therefore, this Court
5 would have jurisdiction if that were a different
6 independent claim, but that's not -- their analysis
7 of the jurisdictional argument is wrong.
8 But this Court would have jurisdiction
9 there anyways, because a larger convention has
10 determined that my client, the plaintiffs, are the
11 officers. The problem is different. The problem is
12 the Secretary of State has stated that she requires a
13 court order to change the list that she has of
14 officers, going back to the ones that were elected in
15 2010.
16 That's the problem. That cannot by
17 rectified by the larger convention. That's why
18 Cousins v. Wigoda has no bearing on this case. The
19 March Fong Eu case has no bearing on this case for a
20 different reason, which I've briefed, and I'll get
21 into in just a second.
22 But the problem is with Mr. Wagner and
23 the -- and his refusal to admit to the Secretary of
24 State that he was not elected at a convention. He
25 was not elected at a duly convened state central
70
1 committee, as we've alleged in our complaint.
2 So that's why this Court must act and
3 that's why, as you can see, we argued last time the
4 defendants are trying to make this jurisdictional
5 argument that requires quite a bit of imagination to
6 argue that this Court doesn't have jurisdiction.
7 Under the case law cited by us in our
8 briefing, the Oregon Supreme Court has stated that
9 bylaws create contract rights and are enforceable.
10 The cases we cited for that were Dentell (phonetic)
11 273 Or 31 and Delaney (phonetic) 278 Or 305.
12 THE COURT: Okay. Again, I've -- I've
13 read your briefing.
14 MR. SMITH: Okay. Then I'll -- I'll
15 skip through that then, Your Honor. I appreciate
16 that.
17 Again, we have -- we have specific
18 statutory jurisdiction on all three of the claims
19 here. ORS 28.010, "Courts within their respective
20 jurisdictions" -- that's this jurisdiction -- "have
21 the power to declare the rights, status and other
22 legal relations."
23 28.020, "Any person interested under a
24 deed, will, written contract or other writing
25 constituting a contract" -- I'll skip some of the
71
1 middle part -- "may have determined any question of
2 construction or validity arising under such
3 instrument." And there's more that goes on. 28.020,
4 not a mystery.
5 This is simple application by reading of
6 the statute. But as to their construction that
7 ORS 65 doesn't apply to them, there's a lot that
8 needs to go into that, Your Honor, and I'm sure that
9 you've --
10 THE COURT: I've --
11 MR. SMITH: You've said -- yes,
12 Your Honor.
13 THE COURT: I've read that.
14 MR. SMITH: Thank you. Okay. And the
15 point -- I'll just stick to the point there.
16 ORS 248.004 is what references 65.077. And it goes
17 beyond the subsection that they cited. ORS 28.004
18 says, "A minor political party or a major political
19 party shall have all the powers granted to a
20 nonprofit corporation under ORS 65.077."
21 They assert that that means only
22 affirmative powers, but that's clearly not the case.
23 When you read 65.077, it's affirmative and
24 obligations. And then when you read that same
25 section, 248.004(2) says, "A major or minor political
72
1 party shall be treated for purposes of contractual,
2 tort or other liability as a nonprofit corporation."
3 THE COURT: Mr. Smith, I've -- I've read
4 that, so --
5 MR. SMITH: Okay.
6 THE COURT: Yeah. It's -- it's
7 engrained in my --
8 MR. SMITH: Okay.
9 THE COURT: -- mind here. You don't
10 have to repeat it.
11 MR. SMITH: If I could just -- the three
12 words that I want to get to the punch line,
13 Subsection (3) says, "for all matters." Subsection
14 (3) reiterates the same thing and says, "for all
15 matters."
16 So when we get to 65.077, No. 3 about
17 making the bylaws is not the only one. Subsection 1,
18 about suing and being sued, Subsection (3) about
19 making bylaws that are not inconsistent.
20 That's an affirmative obligation on them
21 that they have to make bylaws that are not
22 inconsistent with the laws of this state, regulating
23 and managing the affairs of the corporation.
24 Going down further, Subsection (10),
25 that they have to conduct their activities, locate
73
1 offices and exercise the powers granted by this
2 chapter within or without the state. The whole --
3 this is stating -- 65.077 explicitly applied by the
4 Legislature to political parties says that this
5 chapter applies to them.
6 Subsection (17), "Do any other acts that
7 are not inconsistent with the law." Clearly, they
8 can't violate the law. Forgetting the statutory
9 interpretation, it's just a maximum statutory
10 construction that this Legislature knows what it's
11 referencing to. It's pure language here. We don't
12 need case law on this.
13 So as to our claims and the
14 jurisdictions, state law gives it on all three of our
15 claims. And as we -- I'll quickly go through as I
16 briefed this on the Eu case, why it's inapplicable.
17 I explained why the Cousins v. Wigoda case is
18 inapplicable, 'cause we're not dealing here with the
19 seating of delegates. We're dealing with whether
20 the -- what the bylaws say and who are the officers
21 under whatever the proper bylaws are.
22 The Eu case, again, it was overturning a
23 statute. Well, I'll point out here that none of the
24 defendants have copied or included the attorney
25 general. If they want to challenge a statute, state
74
1 law requires them to copy and join the attorney
2 general if they want to challenge the
3 constitutionality of the statute.
4 And they have not done that. There is
5 no statute that's challenged in this case. The
6 challenge of that statute that was overturned in Eu
7 was banning endorsements, dictating the composition
8 of the organization, limiting the terms of those
9 officers and requiring the chair of the California
10 Democrat Party to rotate from northern California to
11 southern California.
12 Totally inapplicable to this case. To
13 the extent that there was anything even cited or
14 referenced in Eu that was -- that was, I guess,
15 meaningful to the facts that are before us, it's that
16 the State does have the power to -- and I'll
17 paraphrase here the quote -- to regulate a party's
18 external responsibilities.
19 That's what they've done with 65.077.
20 By making political parties same as a nonprofit
21 corporation, they're regulating those political
22 parties' external responsibilities with regards to
23 fiduciary duties and managing money and being liable
24 or potentially liable as officers, directors, those
25 things, for wrongs that they could commit to
75
1 outsiders, external responsibilities.
2 And that's Eu at 232. And they cite the
3 Storer case, which is a Supreme Court case. Here --
4 and the Oregon Legislature has just done just that by
5 enacting ORS 248.004, 65.007 and so on and so forth.
6 But, moreover, Oregon law specifically
7 requires that political parties have and file their
8 organizational documents. That's ORS 248.009. They
9 have to file those annually with the Secretary of
10 State. So their constitutional claim, number one,
11 it's not properly brought before this Court. The
12 cases that they've cited are both entirely
13 inapplicable.
14 We cited the cases where even the
15 Supreme Court in various federal jurisdictions had
16 referenced Robert's Rules of Order, the bylaws,
17 interpreting the bylaws. And none of those were
18 addressed, overturned, anything by Eu or by Cousins
19 v. Wigoda.
20 There's -- and there's no contention
21 that they were. They say that because those were
22 pre-March Fong Eu case that somehow they're
23 inapplicable. I'm sure this Court has had a chance
24 to read the Eu case and it doesn't say anything like
25 that that it overturned those other cases.
76
1 As to the specific, in -- in Oregon, the
2 Supreme Court has stated for this Court to have
3 jurisdiction, "A jurisdiction of the subject matter
4 is the power to deal with the general subject
5 involved. In other words, the Court must have
6 cognizance of the class of cases to which one of
7 adjudication belongs." And that's Black v. Arizala,
8 337 Or 250.
9 In Oregon, Circuit Courts have subject
10 matter jurisdiction over all actions unless statute
11 overrule divests them of jurisdiction.
12 THE COURT: Mr. Smith, you're still on
13 their Motion No. 1 essentially?
14 MR. SMITH: I am, Your Honor.
15 THE COURT: Okay. I don't want to cut
16 you off, but I have read the file.
17 MR. SMITH: Okay.
18 THE COURT: And I've read your extensive
19 briefing. So I'm just trying to let you know, don't
20 put me to sleep. Tell me something I don't know.
21 MR. SMITH: Okay. Your Honor, one of
22 the things I want to point out, they don't really --
23 they don't attack our third claim on -- on -- on the
24 jurisdictional grounds, because that's -- well, I
25 guess they do tangentially, so I'll skip through
77
1 that.
2 But as to our second claim for relief, I
3 want to point out that that we make two legal
4 assertions under that. First is that it's a
5 challenge of corporate authority against the
6 corporation itself, which is ORS 65.084(2)(A). I
7 briefed this, so I'll keep it short.
8 The second part of our second claim for
9 relief is the challenge of a corporate officer's
10 authority to act, a former corporate officer. And
11 that's ORS 65.084(2)(B). When they -- when we get it
12 to their arguments about whether the proper parties
13 were joined or not, that second part, under
14 65.084(2)(B) has nothing to do with any other party.
15 The only person that's involved in that
16 dispute is Mr. Wagner. And Subsection (3) of 65.084
17 specifically only applies to Subsection (2)(A) of
18 that statute.
19 THE COURT: Enjoining.
20 MR. SMITH: Enjoining. So if Mr. Wagner
21 was to be joined and we go to the adjudication on the
22 merits, that is irrespective of any other party being
23 joined to this.
24 THE COURT: Okay.
25 MR. SMITH: So our second claim for
78
1 relief and our third claim are relief are entirely
2 independent of their arguments about proper joinder.
3 If you recall, all their proper -- all their
4 arguments about joinder came from 65.084, Sentence
5 No. 3, that said, "affected parties."
6 And that would only apply to
7 potentially, even if it was to apply, our first claim
8 for relief and second claim for relief -- part of
9 your second claim for relief, not the entire claim
10 for relief and not at all our third claim for relief.
11 So that's an important distinction to
12 make, even though I think all their arguments about
13 the parties fail. And the distinction that's
14 different here, I briefly touched on in my
15 introduction, is that the plaintiffs have the power
16 to bring the claims that they want to make against
17 the parties that they need relief from.
18 As I said before, we only need relief
19 from Mr. Wagner. If Mr. Wagner was tomorrow to walk
20 down or be ordered by this Court to walk down to the
21 Secretary of State's Office and say, "I'm not the
22 chair. We didn't have this meeting. We adopted
23 these bylaws with only five of us there and there was
24 no quorum," all these things, whatever the Court
25 ordered him to go down and say, that's all we would
79
1 need. The remedy would be solved.
2 The national convention has already
3 recognized my clients. The only remaining hurdle is
4 somebody to tell the Secretary of State. They have
5 deferred to Your Honor to say, "Well, we're not going
6 to get involved in that. We'll need a Court to tell
7 us." So that's all we need.
8 Now, granted, they argued last time that
9 the rest of their officers needed to be joined. We
10 acknowledged that. We joined them. I believe it's
11 true and I think this Court would take notice that
12 the corporation has to act through its officers, so
13 if Mr. Wagner stepped down tomorrow, somebody else
14 might step into his place and assert whatever claims
15 against the corporate -- the corporation might want
16 to make as a corporate body, so all the officers of
17 the corporation have now been joined.
18 But the corporation, as I argued last
19 time, already has its own power to sue or be sued in
20 its corporate name. We didn't really -- I don't
21 believe and this Court didn't expressly rule who
22 needed to be joined or who didn't need to be joined.
23 I don't believe even as of last time the
24 three people that we added on the defendants' side
25 even needed to be added, but we did. We wanted to
80
1 comply with expediting this along and get them named.
2 But a full relief is available without anybody but
3 Mr. Wagner.
4 And we're not here, again, seeking to
5 unseat anybody else besides Mr. Wagner, and have a
6 determination that those bylaws were not properly
7 enacted and the 2009 bylaws are still the governing
8 documents. They've made arguments that directors
9 need to be joined.
10 Well, ORS 248.004 says that the members
11 of the political party, under their alleged bylaws,
12 that's every registered Libertarian -- ORS 248.004
13 says every member of the political party is a
14 director. We would need to certify a class,
15 Your Honor.
16 That's -- I used a strong word in my
17 first brief. I think I said that's absurd. We'd
18 certify a class to remove Mr. Wagner and have these
19 bylaws interpreted and the actions interpreted to
20 determine which bylaws are -- are binding.
21 So we -- they, in their briefing, they
22 didn't acknowledge that we filed our proofs of
23 service on all three of the newly joined plaintiffs.
24 They implied that they weren't joined, but they've
25 all been properly joined.
81
1 They've all been served a summons,
2 amended complaint and the proof of service has been
3 recorded in the court file. I find it interesting
4 that now they're arguing that they were -- they
5 shouldn't be joined or that they should be dismissed
6 from this case when Mr. Tabor, Mr. Vetanen and
7 Mr. Knight, through their attorney that's acting for
8 the corporation, were the ones that argued in the
9 first place that they should be joined.
10 I think they estopped from asserting
11 that they shouldn't be parties to this case, because
12 they acted --
13 THE COURT: Again, Mr. Smith, I -- I
14 know I'm kind of picking on you, but you keep telling
15 me things that you briefed thoroughly and that I've
16 read thoroughly.
17 MR. SMITH: Thank you, Your Honor. I'll
18 skip then to their new -- newer arguments that I
19 hadn't briefed, which is the last page anyways. I
20 appreciate your -- your patience.
21 And they're arguing somehow that we
22 violated the court order. As this Court probably
23 remembers, you were pretty explicit at the end of
24 that hearing that you were not making a ruling with
25 detail as to who necessary parties were.
82
1 We battled a bit on the form of the
2 order. I have in my notes -- and, you know, believed
3 to the day I die -- that you said orally on that date
4 that the directors did not need to be joined.
5 In phone conversations with defendants'
6 counsels, they didn't remember that or the ones that
7 did remember that had said that you had later changed
8 that language and retracted from that language.
9 I'm not sure which. I had in my notes
10 you said the directors did not need to be joined. I
11 still am of the opinion the directors do not need to
12 be joined. But we didn't violate any court order is
13 the point. If there's people that need to be joined,
14 we need to be made how.
15 If you've seen -- the argue was made at
16 the last oral argument that somebody else that wasn't
17 joined might need to make a different argument.
18 Well, you've seen from the addition of Mr. Tabor,
19 Mr. Knight and Mr. Vetanen, they didn't make any
20 different arguments. They made no substantive
21 arguments.
22 They made some procedural arguments they
23 weren't joined properly, these things. There were no
24 additional substantive arguments brought to the
25 table. So the right parties are here, Your Honor.
83
1 This is ready for adjudication.
2 Mr. Steringer asserted that there was
3 somehow some holdings out there that said that this
4 Court was a State actor and couldn't get involved in
5 political affairs. There's no such holdings.
6 That's not what Eu says. This Court's
7 probably read Eu. That's clearly not what it says.
8 It goes about the Legislature and overturning a
9 statute. They don't even cite other holdings that
10 say that. They admit -- he admitted that he was
11 relying on Eu.
12 And there's no political questions at
13 stake here. The plaintiffs aren't asking Your Honor
14 to rule how they go about campaigning, you know,
15 anything regarding that. Where this is a declaratory
16 relief case on a written document where the document
17 will speak for itself and whether it was changed or
18 not.
19 We're not asking for political remedies
20 or a political opinion or anything that's subjective.
21 Again, the last rebuttal point I'll make is he used a
22 term I think is entirely incorrect as to the
23 applicability of Chapter 65. He said certain
24 instances. He was referencing to statute and the
25 statute does not say certain instances, anywhere
84
1 near it.
2 You obviously have that statute. You
3 shut me up once about that statute. But the statute
4 is pretty clear how broadly that Chapter 65, 365.077
5 and through 248.004 applies to political parties.
6 And I'd be happy to answer or address any other --
7 any other questions that Your Honor has.
8 THE COURT: Well, I think you've covered
9 it. And I take it you have some of your clients
10 in -- in the room here?
11 MR. SMITH: I do, Your Honor. I have
12 the chairman, Mr. Timothy Reeves. I have Eric Saub
13 in the back, whose one of the --
14 THE COURT: All right.
15 MR. SMITH: -- newly joined officers on
16 our side.
17 THE COURT: And who else do we have
18 here?
19 MR. TABOR: I'm Joel Tabor.
20 THE COURT: Mr. Tabor?
21 MR. WESTON: I'm Jeff Weston.
22 THE COURT: Okay. Thank you for being
23 here. I just want to make a general comment for the
24 parties here. What you've seen demonstrated is
25 lawyers on all sides who have been very professional,
85
1 absolutely thoroughly prepared.
2 So I'm about to make a ruling and I want
3 you to know it's my understanding of what I'm
4 required to do under the rules and regulations and
5 statutes. And you can rest assured that if I rule
6 against somebody on some point, it's not because the
7 lawyers haven't thoroughly briefed me and informed
8 me.
9 Having said that, Mr. Steringer, I won't
10 call you Mr. Smith. Do you have anything you want to
11 add?
12 MR. STERINGER: You know, if I may,
13 Your Honor, I -- I do want to address a couple
14 things. One is Mr. Smith referred to the -- the
15 party on numerous occasions today as a corporation.
16 I just want to make sure that the record is clear
17 that it is not a nonprofit corporation and that's
18 why --
19 THE COURT: Okay.
20 MR. STERINGER: -- ORS Chapter 65 does
21 not apply in its entirety to the party.
22 It was also stated that we've cited no
23 authority for the proposition that the Court itself
24 is a State actor. I thought I was clear in -- in
25 saying that the -- the Wigoda case did do that. I
86
1 went back and pulled the case, if you don't mind me
2 reading just one sentence from the concurrence in
3 that case.
4 Justice Rehnquist wrote, "The operation
5 of the injunction issued by the Illinois Circuit
6 Court in this case was as direct and severe an
7 infringement of the right of association as can be
8 conceived."
9 And that was an injunction that made a
10 decision about what faction was going to have their
11 delegates seated at a -- at a political convention.
12 Wigoda clearly says that the restrictions of the
13 First Amendment apply to cases that -- that are -- go
14 beyond challenges to the constitutionality of a
15 statute.
16 We don't challenge the constitutionality
17 of a statute here. That's why we have not notified
18 the -- the attorney general. And the only other
19 point that I would make, because Your Honor asked
20 about the -- our view on the joinder issue --
21 THE COURT: I can -- I can tell you now,
22 I'm prepared to rule on that and you don't need to
23 add anything to it.
24 MR. STERINGER: Okay. Thank you,
25 Your Honor.
87
1 THE COURT: Mr. Leuenberger.
2 MR. LEUENBERGER: No, Your Honor.
3 Nothing further.
4 THE COURT: Okay. And did you say
5 Anderson?
6 MR. ANDRIES: Andries.
7 THE COURT: Andries.
8 MR. ANDRIES: Andries, yeah.
9 THE COURT: Okay. Anything to add?
10 MR. ANDRIES: Just briefly in regards to
11 I believe you are ready to rule on the joinder issue.
12 Mr. Smith had stated that my clients are being
13 wishy-washy and at one point they're trying to say
14 that they need to be involved and the next point they
15 don't need to be involved.
16 Our Rule 21 motion is not arguing on the
17 basis of whether they should or should not be, but
18 whether they have properly been joined to the -- to
19 the case. The caption to the complaint labels them
20 in their corporate capacity, not individually.
21 And so that is where we're -- our
22 argument rests on, not whether or not they should be
23 involved, 'cause I believe that was ruled upon.
24 THE COURT: Which argument is that?
25 MR. ANDRIES: Motion 1 --
88
1 THE COURT: Okay.
2 MR. ANDRIES: -- from my argument.
3 THE COURT: Okay.
4 MR. ANDRIES: And so it's -- there is a
5 difference. We're not trying to go back and forth,
6 but whether they have been properly joined with the
7 action.
8 THE COURT: Okay.
9 MR. ANDRIES: And that's all.
10 THE COURT: All right. Here's what
11 we're going to do. And, Mr. Smith, we're going to
12 make you do the work.
13 MR. SMITH: Okay.
14 THE COURT: Mr. Andries, you have three
15 motions and if I have tracked everyone, they are in
16 addition to the motions filed by Mr. Leuenberger and
17 Mr. Steringer.
18 MR. ANDRIES: That is correct.
19 THE COURT: Okay. Your Motion 1 is
20 allowed.
21 Your Motion 2 is denied.
22 Your Motion 3 is denied.
23 And I'm going to need some guidance here
24 from Mr. Leuenberger and Mr. Steringer, because the
25 motions are very similar, but I want to make sure
89
1 that we have clarity here.
2 The LPO Motion No. 1 to dismiss is
3 denied, but I'm requiring that Weston, Karlock,
4 Skyba, Grover and Shelley (phonetic) be added as
5 parties.
6 MR. SMITH: Is that four -- there's four
7 of them, Your Honor? Is that what I'm understanding?
8 THE COURT: Well, I believe there's
9 five.
10 MR. SMITH: Is there five? Okay.
11 THE COURT: Mr. Leuenberger or
12 Mr. Steringer, can you help me on that? Were there
13 five additional people?
14 MR. LEUENBERGER: Are you talking about
15 the members of the LPO board?
16 THE COURT: Yes. I have Weston,
17 Karlock, Skyba, Grover and Shelley. Does that sound
18 right?
19 MR. STERINGER: Your Honor, I would just
20 inform the Court that Ms. Grover has resigned as a --
21 as a board member. And so I -- I hope that the
22 defendants at least would agree that she does not
23 need to be joined.
24 MR. LEUENBERGER: We do.
25 THE COURT: Okay. So the other four.
90
1 MR. SMITH: Your Honor, if I can get
2 clarification on this part?
3 THE COURT: Yes.
4 MR. SMITH: If they add any other
5 directors, we don't need to join them. This is the
6 problem with a fluid organization. We -- these four
7 is enough?
8 THE COURT: I don't want to answer that
9 today.
10 MR. SMITH: Okay.
11 THE COURT: Okay. Let's see if we have
12 a bridge to cross or not.
13 MR. SMITH: Okay.
14 THE COURT: Okay. So do we have clarity
15 on the LPO and the Wagner Motion 1? Denied, except
16 add those people?
17 MR. STERINGER: Yes, Your Honor.
18 MR. SMITH: Okay.
19 THE COURT: Mr. Leuenberger, are we on
20 board there?
21 (Whispered discussion, off the record,
22 1:49 p.m.)
23 MR. LEUENBERGER: All right. So the
24 motion to dismiss based on not having all the
25 necessary parties is denied, but the plaintiffs'
91
1 required to add the four additional directors that we
2 identified and put on -- on the -- our -- our motion.
3 THE COURT: Mm-hmm.
4 MR. LEUENBERGER: Our second motion?
5 THE COURT: Right. And that motion also
6 had to do with the issue of jurisdiction.
7 MR. LEUENBERGER: Yes.
8 THE COURT: So that I'm -- I have that
9 in mind when I deny except for adding those people.
10 MR. LEUENBERGER: Okay.
11 THE COURT: Okay. And then Motion
12 No. 2, Mr. Leuenberger, you withdrew that; is that
13 correct?
14 MR. LEUENBERGER: I don't believe I
15 withdrew any motion. Mr. Steringer withdrew --
16 THE COURT: Did you withdraw No. 2,
17 Mr. Steringer?
18 MR. STERINGER: I -- I did.
19 THE COURT: Okay.
20 MR. STERINGER: I did, Your Honor.
21 No. 2 had to do with joinder.
22 THE COURT: Okay. Of the same people
23 we've just talked about?
24 MR. STERINGER: Actually, no. Our
25 motion was limited to the -- the people that needed
92
1 to be added as plaintiffs. That was granted at our
2 last hearing, and so we withdrew it.
3 THE COURT: That's withdrawn.
4 MR. STERINGER: That's withdrawn.
5 THE COURT: So we don't have to deal
6 with that.
7 And, Mr. Leuenberger, on behalf of
8 Mr. Wagner, do you -- do you have a ruling you need
9 on Motion 2?
10 MR. LEUENBERGER: Let me look. You're
11 talking about the -- the LPO Motion 2 or our
12 Motion 2?
13 THE COURT: Your Motion 2.
14 MR. LEUENBERGER: Okay. I believe
15 Wagner's Motion 2 is, essentially, the same as LPO's
16 Motion 1 --
17 THE COURT: Okay.
18 MR. LEUENBERGER: -- which you've --
19 you're denying.
20 THE COURT: Okay.
21 MR. LEUENBERGER: Okay.
22 THE COURT: Very good.
23 MR. LEUENBERGER: We don't need
24 additional -- we don't need an additional ruling on
25 that.
93
1 THE COURT: Okay. Very good.
2 And then Motion 3, I believe they're
3 identical for LPO and Wagner? Am I correct on that?
4 MR. LEUENBERGER: No, I don't believe
5 so, Your Honor. Our LPO -- our -- Wagner's 3 is that
6 the plaintiffs are not members of the LPO pursuant to
7 the old Constitution, which they're alleging their
8 rights arise, because they've not paid fees to the
9 LPO.
10 THE COURT: Okay.
11 MR. LEUENBERGER: And they have to be
12 members in order to be either officers or plaintiffs.
13 THE COURT: Okay. And -- and that's
14 your Motion 3.
15 MR. LEUENBERGER: Yes.
16 THE COURT: Mr. Steringer, your Motion 3
17 again is corporate authority?
18 MR. STERINGER: Correct.
19 THE COURT: Okay. Your Motion 3 is
20 denied. Mr. Leuenberger, your Motion 3 is allowed.
21 We all together here?
22 MR. LEUENBERGER: Yes.
23 MR. SMITH: Your Honor, can I request
24 clarification on that?
25 THE COURT: Sure.
94
1 MR. SMITH: On -- so you're saying that
2 LPO -- Defendant LPO's Motion No. 3 was allowed?
3 THE COURT: Yes.
4 MR. SMITH: I'd ask for clarification on
5 to what extent on that. We had both the A, 2A and 2B
6 provisions there, one against the corporation, the
7 second against the -- Mr. Wagner himself.
8 THE COURT: Okay. So --
9 MR. SMITH: And depending on the
10 grounds, I guess, it would differ. If it was because
11 they're not proper parties, then I would say it could
12 only be A. If it was for some other reason --
13 THE COURT: Let's do it this way.
14 Mr. Leuenberger, please read to me your
15 Motion 3.
16 MR. LEUENBERGER: Yes, Your Honor.
17 "Plaintiffs do not have the legal capacity to sue."
18 Then I have points and authorities. You want me to
19 read them or summarize them?
20 THE COURT: Summarize them.
21 MR. LEUENBERGER: They -- in order to --
22 to be a plaintiff, they have to be -- have to
23 demonstrate that they're members of the LPO. One of
24 the requirements of becoming a membership -- a
25 member -- becoming or remaining a member of the LPO
95
1 under the old Constitution was that member had to pay
2 the party $50 a year.
3 And pursuant to the records of the LPO,
4 none of the plaintiffs had paid the LPO the $50
5 membership fee. Therefore, none of them were members
6 of the LPO and, therefore, were not qualified to be
7 either officers of the LPO or plaintiffs in this
8 lawsuit.
9 MR. SMITH: And -- and, Your Honor, if I
10 could, I think you already denied that, Mr. Wagner's
11 Motion No. 3. We were talking about
12 Mr. Leuenberger's Motion No. 3 -- or Mr. Steringer's
13 Motion No. 3, if I'm not mistaken.
14 THE COURT: No. We're talking about
15 Mr. Leuenberger's. I've asked him to read to me his
16 Motion No. 3. We've denied -- we've denied
17 Mr. Steringer's point on corporate authority.
18 MR. SMITH: Oh, okay.
19 THE COURT: So now we're talking about
20 Mr. Leuenberger. You want to say that again, please.
21 MR. LEUENBERGER: Yes, Your Honor. That
22 the -- none of the plaintiffs is qualified to be a
23 member of the LPO or to be a plaintiff because none
24 of them -- none of the plaintiffs had paid the LPO
25 membership fee required under the old Constitution.
96
1 THE COURT: Okay. That's -- that's the
2 summary --
3 MR. LEUENBERGER: Yes.
4 THE COURT: -- or your 3?
5 MR. LEUENBERGER: Yes.
6 THE COURT: Okay. Mr. Smith, what do
7 you say to that?
8 MR. SMITH: Your Honor, we -- on that
9 particular one, we submitted affidavits from -- of
10 the membership list showing that my clients were
11 members. I'm not sure that this --
12 THE COURT: Okay.
13 MR. SMITH: -- was argued very much. We
14 submitted factual evidence showing that my clients
15 were members.
16 Mr. Reeves is sitting here asserting
17 that he's a member, you know, before your -- before
18 your eyes.
19 THE COURT: All right. Here's what I'm
20 going to do on that. And probably the trial Court
21 will be unhappy, but I'm -- I'm going to deny your 3,
22 Mr. Leuenberger, and give you authority to raise it
23 again.
24 On No. 4, the LPO motion, Mr. Steringer,
25 just tell me in 10 words or less what that was.
97
1 MR. STERINGER: What I had asked
2 Your Honor was that we -- that the Court strike
3 certain requests for relief under the corporate
4 authority claim.
5 THE COURT: Okay. That's denied.
6 MR. STERINGER: Okay.
7 THE COURT: And, Mr. Leuenberger, is
8 your motion identical?
9 MR. LEUENBERGER: Let me check,
10 Your Honor.
11 No. Wagner 4 is plaintiffs have failed
12 to join necessary parties. And that is that they had
13 failed to name all the officers and directors of the
14 LPO. And I believe that your ruling earlier is,
15 basically, a grant of that with permission to
16 replead --
17 THE COURT: Yes.
18 MR. LEUENBERGER: -- and add.
19 THE COURT: Yes. So your 4 is denied,
20 but I'm requiring a replead to add the people, the
21 four other people we've agreed to.
22 So far, so good?
23 MR. LEUENBERGER: Mm-hmm.
24 THE COURT: Okay. No. 5, I'm allowing
25 that. Is that the same on both, both Mr. Steringer
98
1 and Mr. Leuenberger?
2 MR. STERINGER: The -- the LPO's Motion
3 No. 5 was on the attorney fees.
4 THE COURT: Got it. Got it. Okay.
5 MR. LEUENBERGER: Your Honor,
6 Mr. Wagner's 5 was an incorporation of the
7 Libertarian Party arguments. So it's -- it's a "me
8 too" on theirs.
9 THE COURT: So the -- the "me too" will
10 be guided by the other rulings we've made.
11 MR. LEUENBERGER: Okay.
12 THE COURT: Okay. Now, the issue of
13 attorney fees under several statutes that were cited,
14 I think -- I think Mr. Smith, there's -- the law
15 requires that those be cited in a different manner,
16 so I'm going to allow that motion. You may replead.
17 I think your main problem there is
18 you -- you sort of lead into that with an "if
19 something happens." So you basically need to say
20 that you're entitled to attorney fees and cite the
21 statute.
22 MR. SMITH: Thank you, Your Honor. I'll
23 do that. For a point of clarification there, I -- I
24 just had this in Circuit Court in Marion County and I
25 don't believe there's any guidance from the court of
99
1 appeal on this that the rule that says you must plead
2 it at your first pleading is why we had to plead that
3 there and why we cited that the rule says that you
4 can do it before the affirmative right, because we
5 had not pled it in a Rule 21 response previously.
6 THE COURT: You -- you were right to
7 bring it up in the initial pleading --
8 MR. SMITH: Okay.
9 THE COURT: -- but the language you used
10 was a hypothetical approach.
11 MR. SMITH: Okay.
12 THE COURT: And you need to avoid that.
13 Okay. I see that all of you feel like
14 we've addressed everything?
15 MR. SMITH: Your Honor, if I may, can I
16 recap? Since I'm writing the order here, I don't
17 want us to have to hopefully avoid another objection
18 to the order if I can recap what I'm understanding.
19 THE COURT: Okay. Go ahead.
20 MR. SMITH: The LPO's No. 1, motion to
21 dismiss on the jurisdiction grounds was denied except
22 you're directing plaintiffs to add the five or four
23 directors, the four remaining directors.
24 On LPO's Motion No. 2, that was
25 withdrawn.
100
1 The Wagner Motion No. 2 was denied.
2 LPO Motion No. 3 relating to membership
3 issue was denied -- or I'm sorry, that was on the
4 corporate authority was denied.
5 Wagner Motion No. 3, which was on
6 membership, was denied with the authority to raise
7 that again --
8 THE COURT: Yes.
9 MR. SMITH: -- at trial.
10 THE COURT: Or before.
11 MR. SMITH: LPO No. 4 was denied.
12 THE COURT: Where -- where are you on
13 discovery? Have you done depositions?
14 MR. SMITH: We have not, Your Honor.
15 THE COURT: So I think what I'm trying
16 to do is give you a window there, Mr. Leuenberger,
17 depending on what happens on further discovery.
18 MR. LEUENBERGER: Okay.
19 THE COURT: Okay.
20 MR. SMITH: LPO Motion No. 4 was denied.
21 Wagner Motion No. 4 was denied with
22 adding the -- the four other directors.
23 A question on that, Your Honor. You may
24 not want to answer this, but if we could get clarity,
25 it might help.
101
1 Is it your intent that those individuals
2 be named and -- and serve separately or through the
3 corporation? Is that sufficient?
4 THE COURT: I'm going to leave that up
5 to you.
6 MR. SMITH: Okay.
7 THE COURT: I'm not going to touch that.
8 MR. SMITH: Okay.
9 THE COURT: You have to decide how they
10 should be named.
11 MR. SMITH: Okay.
12 THE COURT: I'm just saying they're
13 necessary parties.
14 MR. SMITH: All right. And their Motion
15 No. 5 on attorney's fees, it will be stricken, but we
16 may replead that, taking out the hypothetical.
17 THE COURT: I'm not telling you how to
18 do it. I'm just saying it's allowed and you can have
19 another shot at it.
20 MR. SMITH: Okay.
21 THE COURT: Okay? And, Mr. Andries, if
22 you followed what we were doing, he didn't mention
23 yours. And coming back to yours, which are in
24 addition to Mr. Steringer and Mr. Leuenberger, your
25 first motion was allowed. 2 and 3 were denied.
102
1 MR. ANDRIES: Correct.
2 THE COURT: Okay.
3 MR. ANDRIES: Thank you.
4 THE COURT: You got that, Mr. Smith?
5 MR. SMITH: I did, Your Honor.
6 THE COURT: Okay.
7 MR. LEUENBERGER: Your Honor, I believe
8 that there were two Wagner motions that haven't been
9 addressed yet.
10 THE COURT: Okay.
11 MR. LEUENBERGER: Wagner No. 6 to
12 dismiss. Plaintiffs have failed to state all the
13 facts, because Wes Wagner is the LPO chairperson
14 pursuant to the old bylaws.
15 THE COURT: Okay. That'll be denied.
16 MR. LEUENBERGER: Okay. And Wagner 7,
17 dismiss, dismiss failure to state a claim, the 2009
18 bylaws contained only one office's term. In other
19 words, in the complaint, the allegation is made that
20 the officers other than Wes Wagner's terms of office
21 had concluded.
22 But in point of fact, pursuant to the
23 2009 Constitution, there was no termination date for
24 any office other than that of vice chairperson, who
25 has taken the -- taken the position of chair through
103
1 resignation. And, therefore, the allegation that
2 their slate of candidates were stepping into empty
3 offices fails because of the plain meeting --
4 THE COURT: Okay.
5 MR. LEUENBERGER: -- of the 2009
6 constitution.
7 THE COURT: Okay. Good thinking,
8 Mr. Leuenberger, but I'll deny that.
9 Anything else?
10 Mr. Smith, you're up to speed on what
11 we've been doing?
12 MR. SMITH: I think so, Your Honor. I
13 have them all listed here and I will --
14 THE COURT: And you'll circulate among
15 counsel?
16 MR. SMITH: I will.
17 THE COURT: You're not facing a trial
18 date yet?
19 MR. SMITH: No, Your Honor. We do plan
20 to -- I'll consult with opposing parties first, but
21 ask for an expedited trial. The Secretary of State
22 has a deadline -- I believe it's August 4th -- of
23 having the candidates on the ballot for printing of
24 ballots; and, obviously, we have competing candidates
25 who have been nominated from both organizations or
104
1 will be nominated from both organizations.
2 THE COURT: Well, do -- do your best to
3 get an order to me in 15 days from today.
4 MR. SMITH: Okay.
5 THE COURT: Okay? I thank you again.
6 Good presentations. I'm more often where you are
7 than where I am today, so I know the feeling.
8 MR. SMITH: Thank you, Your Honor.
9 THE COURT: Okay. You're welcome.
10 That'll be all.
11 * * *
12 (Court adjourned, Volume 2, 6-14-12 at 2:04 p.m.)
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Reporter's Certificate 105
1 REPORTER'S CERTIFICATE
2 I, Katie Bradford, Court Reporter of the
3 Circuit Court of the State of Oregon, Fifth Judicial
4 District, certify that I transcribed in stenotype
5 from a CD the oral proceedings had upon the hearing
6 of the above-entitled cause before JAMES E. REDMAN,
7 Circuit Judge, on June 14, 2012;
8 That I have subsequently caused my
9 stenotype notes, so taken, to be reduced to
10 computer-aided transcription under my direction; and
11 that the foregoing transcript, Volume 2 of 5,
12 Pages 51 through 104, both inclusive, constitutes a
13 full, true and accurate record of said proceedings
14 taken from a CD and so reported by me in stenotype as
15 aforesaid.
16 Witness my hand and CSR Seal at
17 Portland, Oregon, this 10th day of March, 2014.
18
19
20 ___________________________
Katie Bradford, CSR 90-0148
21 Court Reporter
(503) 267-5112
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