Burke: Oregon LP Ballot Access at Risk, Judge Breithaupt was “not accurate.”

(new, improved, updated logo of the “Burke faction”)

IPR received a copy of the following email earlier today.  Submitted to the Oregon Secretary of State’s office last Friday, the unity apparent at the online convention last month seems to have fractured, as the Burke group asks for relief.

Once again (somewhere some IPR reader is keeping track) the Burke faction asks for something the courts and past secretaries of state have declined to provide: recognition of their declared leadership as the state-recognized, official, Libertarian Party of Oregon.

Selected highlights:

“The March 31st, 2011 meeting was raucous. . . .”

“We need this nine-year dispute to be resolved once and for all. We therefore file this complaint for the purpose of reuniting our party and ensuring that any Libertarian candidates nominated for office in 2020 will not be stricken from the ballot. (paragraph 4)

We respectfully request that your office agree to replace its Unwritten Policy with a written policy.” (paragraph 4, sub paragraph 5)

In Point 4, owing to his reference to the Libertarian National Convention as the “LNC”, it is not clear whether he is referring to the Libertarian National Committee or the Libertarian National Convention.” (paragraph 18, sub paragraph c)

“Unfortunately, the LNC was unable to hold Sarwark accountable . . . ” (paragraph 18, sub paragraph d, sub sub paragraph 3)

It was a clunky way to bring the two sides together . . . ” (paragraph 20)

Again, if there is any documentation your office needs regarding anything in this document . . .” (paragraph 29)

From: Richard Burke <rpbcentral@gmail.com>
Date: Fri, Jun 5, 2020, 12:15 PM
Subject: Election Law Complaints Regarding PAC #622 Libertarian Party of Oregon
To: TROUT Steve * SOS <steve.trout@oregon.gov>,
TROUT, Steve <steve.trout@state.or.us>,
Stephen Elzinga <stephen.elzinga@(redacted).com>,
Timothy Perkins <timothy.hey@(redacted).com>,
Katy Brumbelow <katy.brumbelow@lporegon.org>,
Tim Reeves <timothy.reeves@(redacted).com>,
Ian Epstein <johannstein@(redacted).com>,
Greg Burnett <greg@(redacted).com>,
Aaron Starr <starrcpa@(redacted).com>,
Alicia Mattson <agmattson@(redacted).com>,
M Carling <mcarling@(redacted).com>

Dear Mr. Trout,

Attached to this email you will find a PDF version of a complaint (reproduced in full below) we sent via fax to your office today relating to the nine-year dispute within the Libertarian Party of Oregon we recently spoke about on the phone.  The complaint is signed by LPO Chair Timothy Reeves.

Also included in the attached PDF file is a completed SEL 221 we ask your office to process at its earliest opportunity signed by LPO Treasurer Greg Burnett.  Finally, a current copy of the Libertarian Party of Oregon’s organizational documents as adopted and amended by LPO members in properly noticed conventions from the 1970s-2019 is also contained within the attached PDF document.

As discussed, we would be happy to meet with you, your staff, and those you currently recognize as the Chair, Vice-Chair, Secretary, and Treasurer of  PAC #622 in order to discuss a lawful and final resolution to this dispute for the benefit of Libertarians throughout Oregon.  Our proposal resolving this dispute in a lawful way that facilitates party unity is described in the attached document.

If you have questions or need more information, please contact me at your convenience.  Thank you, and stay well.

Respectfully,

Richard P. Burke, Secretary
Libertarian Party of Oregon
503 (redacted)

Attachment

cc:  Stephen Elzinga, Timothy Perkins, Katy Brumbelow, Timothy Reeves, Ian Epstein, Gregory Burnett, Aaron Starr, Alicia Mattson, M Carling

Timothy Perkins
Chair, Libertarian Party of Oregon
503 (redacted)

Monday, June 30, 2019 (sic)
Ms. Beverly Clarno, Oregon Secretary of State
Mr. Stephen Trout, Director of Elections

Dear Secretary Clarno and Mr. Trout,

SUMMARY. Your office is aware that there has been an ongoing dispute within the Libertarian Party of Oregon (LPO) regarding which set of organizational documents properly govern the organization. Because a political party’s organizational documents determine how candidates are properly nominated to partisan public offices, who is authorized to sign certificates of nomination on behalf of a political party, and because the two sets of organizational documents contain different and mutually exclusive processes for nominating candidates to general election ballots, this dispute is relevant to ORS 248.009, ORS 249.720 and other statutes within Oregon election law.

Our opponents in this dispute contend that the LPO’s legitimate organizational documents (hereinafter referred to as the “StateComm Documents”) are those which were purportedly adopted in a monthly March 31st, 2011 LPO State Committee meeting without prior notice to the membership and purportedly “ratified” through a boycotted vote-by-mail election held in 2012 with only 5.7% of ballots returned. This meeting took place nineteen days after a March 12th, 2011 session of the 2011 LPO Annual Business Convention failed to achieve quorum and voted to Adjourn to a Meeting to be held on May 21st, 2011 on the premise that quorum could be reached at that time. The March 31st, 2011 meeting was raucous, featuring a walkout of two members of the LPO State Committee, two abstentions, and at least one physical altercation. Several other LPO State Committee members were not present.

Our side of this dispute contends that the LPO’s legitimate organizational documents (hereinafter referred to as the “Convention Documents”) are those which have been adopted and amended by LPO members in properly noticed conventions from the 1970s through 2019 (Robert’s Rules of Order as Newly Revised is cited in the Convention Documents as the LPO’s parliamentary authority). We further contend that the LPO’s organizational documents only provide for their amendment in properly noticed conventions, not through LPO State Committee action or through vote-by-mail elections. Given the Convention Documents cannot amended through LPO State Committee action, we have contended that such actions cannot be “ratified” by any means.

Repeatedly, explicitly, and consistently, your office has refused to adjudicate any dispute over organizational documents for fear of violating ORS 248.011 which precludes your office from enforcing political party rules except as required by law. In an April 2nd, 2013 legal declaration, your office reiterated this position by saying that, “We have told the parties that they have to go to court to adjudicate this matter if there is to be any change because we do not adjudicate this kind of dispute.” Your office reiterated this position again on April 7th, 2017, citing ORS 248.011 in a memo from the late Secretary of State Dennis Richardson.

In lieu of adjudicating our dispute, your office adopted an “Unwritten Policy” of accepting as valid, without challenge, question, or adjudication, any organizational documents or list of officers provided to you by whomever your office lists as the current “Chair of Record.” This Unwritten Policy, which will be referred to as such throughout this document, proved to be more than problematic as it confers onto a political party’s “Chair of Record” the ability to unilaterally revise a party’s organizational documents and/or officer lists at will regardless of any previously existing organizational documents, processes, or checks on authority contained within. This policy can be used to co-opt the legal authority of your office and transmit false legitimacy to other entities and unwitting activists who come into organizations over time. All of this is, in fact, what has happened within the LPO.

On December 12th, 2018, your office became aware of a ruling from the Oregon Court of Appeals (COA) in the case of Reeves v. Wagner, addressing this dispute. While the COA upheld the dismissal for a different reason than the lower court, which erroneously dismissed on the grounds it was “nonjusticiable,” the COA made a series of findings relating to the merits of our dispute which make it clear that, despite what any of us previously thought, your office has the responsibility and authority to deal with disputes such as ours, that your office is obliged to consider a political party’s organizational documents when doing so, and that doing so does not constitute a violation of ORS 248.011.

Specifically, the COA found that it is incumbent on the Secretary of State to enforce election laws (p.306), that doing so may “…depend on the construction of organizational documents” (p. 307), and that considering organizational documents to enforce Oregon law does not constitute a violation of 248.011 (p. 307-308). These findings effectively invalidate your office’s Unwritten Policy and require your office to deal directly with this dispute, which is what we are asking you to do now. The COA made this job easy for your office as it also found that “There is no provision in either the 2007 constitution or the 2009 bylaws for the State Committee to amend or replace the bylaws” (p. 304).

In discussions with our colleagues on the other side of this dispute, we find that they are hanging their hat on the fact that we did not appeal, through the Administrative Procedures Act (APA), an order issued on September 29th, 2011 by your office within the allotted sixty days.

This order, grounded in your office’s Unwritten Policy, was issued so “…the voters affiliated with the Libertarian Party of Oregon will be able to have a candidate for the Special Election in the 1st Congressional District.” The order said that, “We currently recognize, and will continue to recognize Wagner as Chair of the Libertarian Party of Oregon. We will accept the Libertarian nominee for the 1st Congressional District Special Election from Mr. Wagner.” On April 7th, 2017, your office stood by that order in a memo by saying, “…this office has continued to follow the September 2011 decision and allowed the same group to nominate candidates for three election cycles.” This order is not applicable any longer for the following reasons:

1. The September 29th, 2011 Order Does Not Deal With Organizational Documents. As mentioned above, your office has repeatedly, explicitly, and consistently refused to adjudicate the question of which organizational documents properly govern the LPO for fear of violating ORS 248.011. Such is the central question to be addressed now and, subsequent to the COA ruling, your office is obliged to answer this question for the purpose of ensuring compliance with ORS 248.009, ORS 249.720 and other statutes.

2. The September 29th, 2011 Order is No Longer Operative. The “same group” referred to in your office’s April 7th, 2017 memo no longer exists. Leadership changes have taken place among both groups of Libertarians. More specifically, nobody on either side of this dispute contends that Wes Wagner, whom your office ordered that it would “continue to recognize” as Chair of the Libertarian Party of Oregon, chairs either group any longer. It is also clear that your office’s order of September 29th, 2011 was issued to apply specifically to the 1st District Congressional Election, referring to that election as the reason for your order and making it clear that your office would accept the Libertarian nominee for that race from Mr. Wagner. No other races or elections were mentioned in the order.

3. The Determination of Leadership Should be Derived from the Organizational Documents. Your office’s September 29th, 2011 order recognizing Wes Wagner as Chair of the LPO was derived from your office’s Unwritten Policy. Subsequent to the COA ruling, with fresh groups of leaders and a fresh election, your office is now obliged to consider organizational documents when determining who may lawfully sign Certificates of Nomination for a political party. The COA found that, “In receiving a list of officers from a political party so as to determine who may sign a candidate’s certificate of nomination, the Secretary is in a position to determine whether the person signing the certificate became an officer in accordance with procedures set forth in a party’s organizational documents” (p.306-307). As the COA found that there is no way the LPO State Committee could have amended or replaced the Convention Documents, the only leaders your office should recognize are those which were elected to their positions through processes outlined in the Convention Documents.

4. Outside Entities Can Now Sue to Strike Libertarian Candidates from the Ballot. Given the COA’s unambiguous finding that “There is no provision in either the 2007 constitution or the 2009 bylaws for the State Committee to amend or replace the bylaws” (p. 304), candidates nominated by other parties feeling disadvantaged by the presence of a Libertarian candidate now have sufficient grounds to sue for the removal of Libertarian candidates nominated in accordance with the StateComm Documents from general election ballots for violating ORS 248.009, ORS 249.720, and possibly other statutes. To ensure this does not happen, it is imperative that your office accept only those Certificates of Nominations which are the product of processes and leaders associated with the Convention Documents.

We have waited until now to file this complaint in hopes that the two sides could unite behind a lawful solution that could be jointly presented to your office. Several initiatives have been made along these lines, all unsuccessful. Unfortunately, we’re out of time. Now that both organizations are preparing to nominate slates of candidates to public office, we need this nine-year dispute to be resolved once and for all. We therefore file this complaint for the purpose of reuniting our party and ensuring that any Libertarian candidates nominated for office in 2020 will not be stricken from the ballot. We therefore charge that violations of ORS 248.009, ORS 249.720, and possibly other statutes took place when processes different from those outlined in the Convention Documents were used to nominate candidates to Oregon general election ballots on behalf of the Libertarian Party in 2012, 2014, 2016, and 2018. We allege that those operating under the StateComm Documents are planning to do so again this year and must be prevented. Respectfully, we therefore make the following requests:

1. Organizational Documents. We respectfully request that your office make clear that it recognizes the Convention Documents as the exclusively legitimate organizational documents for the Libertarian Party of Oregon and

2. Certificates of Nomination. We respectfully request that your office makes clear that it will only accept Certificates of Nomination relating to Libertarian candidates nominated in accordance with processes outlined in the Convention Documents and,

3. LPO Leadership. We respectfully request that your office accept and process the SEL 221 form affixed to this complaint to restore the leadership of PAC #622 to those who have been elected to positions of leadership in accordance with the Convention Documents and,

4. Signatures on Certificates of Nomination. We respectfully request that your office only accept Certificates of Election from those listed on the affixed SEL 221 form or their successors as determined by processes outlined in the Convention Documents and,

5. Replace Your Office’s Unwritten Policy. We respectfully request that your office agree to replace its Unwritten Policy with a written policy. Such a policy should require that persons submitting updated organizational documents and/or officer lists on behalf of a political party attest to their authorization to do so, attest that any such organizational documents and/or officer lists submitted were the direct product of processes contained in a political party’s organizational documents, and that approved meeting minutes, convention minutes, or other such documentation be affixed to any submitted documents to support their validity. Ideally such submissions should require signatures from a political party’s presiding officer and recording officer. Persons who can be shown to have submitted false documents should in some way be held accountable.

REUNITING THE LIBERTARIAN PARTY. Sadly, this dispute has been one of the most persistent and divisive in our party’s history. We acknowledge that we have a share of responsibility for bringing our party back together when this dispute is lawfully resolved. Toward that end, while not necessary from a legal standpoint, we wish to outline our intentions once the above requests are granted.

1. Ceding Party Leadership. At the first available LPO State Committee meeting, all officers operating under the Convention Documents agree to serially resign their positions and appoint their opposite members to the resulting vacant positions if they are willing to serve and willing to meet eligibility requirements as outlined in the Convention Documents. LPO officer positions under the Convention Documents will be up for election at the LPO’s 2021 Annual Business Convention in March. Those holding officer positions under the Convention Documents will agree not to seek election to any officer position at that convention.

2. 2020 National Libertarian Convention Delegation. Because of the Covid 19 crisis, our party elected to split its convention by nominating its presidential and vice-presidential candidates in an on-line convention session while conducting other business in a live convention session to be held in Orlando, Florida during July. Those operating under the Convention Documents did not send a delegation to the on-line session because of questions relating to the legality of such a session. But if the above requests are granted we will accede to any convention slate constructed by our colleagues who are currently operating under the StateComm Documents.

3. Future Amendments to the Convention Documents. At the 2021 convention mentioned above, the consideration of amendments to our organizational documents will be part of the agenda. Those currently holding positions of leadership under the Convention Documents offer to work with those operating under the StateComm Documents to craft proposed amendments which will help to reunite the party.

4. Libertarian Party of Oregon (PAC #16869). We will agree to re-purpose and rename PAC #16869 to serve as a PAC dedicated to supporting Libertarian Party projects and infrastructure, Libertarian campaigns for public office, and libertarian-oriented ballot measure campaigns.

5. Files, Furniture and Other Property. Those operating under the Convention Documents are in possession of historical party files, office furniture, and more. This will all be made available to PAC #622 with the hopes of re-establishing a full-time office for candidates and volunteers.

6. No Punitive Measures. If the requests above are granted, though some operating under the StateComm Documents may be personally responsible for violations of Oregon election law, we ask that no punitive measures be taken against them by your office. We are all Libertarians on both sides of this dispute. While the nature of our legal environment makes resolving this dispute a prerequisite to doing so, at some point we need to come together in the spirit of goodwill. There are people of operating in good faith on both sides of this dispute whom we respect.

7. Social Media Resources. We will agree to immediately transfer all social media and internet resources to PAC #622 which relate to the Libertarian Party.

8. Work with All Libertarians. Under lawful governance consistent with the Convention Documents, we will work constructively with our colleagues who had been working under the StateComm Documents to build the Libertarian Party in Oregon and enable it to impact public policy. We are of the belief that, apart from a dozen or so activists on either side of the current dispute, most rank and file Libertarians just want an organization that can support the candidates we nominate and advance libertarian policy between elections.

HISTORY OF THIS DISPUTE. Because many Libertarians have come into the organizations operating under the Convention Documents and StateComm Documents since this dispute began in 2011, the Oregon dispute has been debated within the Libertarian Party throughout the country, and that this document will be read by Libertarians who have followed this dispute, the remainder of this document is intended to provide additional documentation and a history of the dispute from our perspective. Election officials working on our dispute will find additional information below to support the information, charges, and requests outlined above. This dispute has already been heavily documented. If your office lacks any documentation referred to in this document, we will provide it to you as quickly as possible.

Your office first applied its Unwritten Policy when it complied with an order by Wes Wagner to accept the StateComm Documents purportedly adopted, without advance notice to the membership, at a March 31st, 2011 monthly LPO State Committee meeting. At the same meeting, those supporting the StateComm Documents appointed themselves as Directors on the newly created “Board of Directors” established in the StateComm Documents to replace the LPO State Committee as constituted in the Convention Documents.

The newly created “Board of Directors” met again under the auspices of the StateComm Documents on April 19th, 2011. At this meeting, board members selected officers to new terms of office from among them, including Wes Wagner as Chair of the new body. Your office again applied its Unwritten Policy when it complied with an order by Wes Wagner to accept a new SEL 221 reflecting the officers selected. At the same meeting, the “Board of Directors” purportedly canceled the scheduled May 21st, 2011 adjourned meeting of the 2011 LPO Annual Business Convention, to be held as ordered by delegates assembled at the March 12th, 2011 session of that convention.

On May 21st, 2011, at the designated time and place, LPO members and leaders operating under the Convention Documents assembled at the Adjourned Meeting of the 2011 LPO Annual Business Convention to do the party’s business. Because the Adjourned Meeting was called by order of the March 12th, 2011 session of the convention, not by order of the LPO State Committee (as constituted in the Convention Documents) or even the “Board of Directors” (as constituted under the StateComm Documents), attendees did not recognize the authority of the “Board of Directors” to cancel it. In both sets of documents, the governing board is made subordinate to direction from an LPO convention:

1. Convention Documents. Article VI, Section 1, Paragraph B of the LPO Bylaws says, “The State Committee shall have the responsibility, subject to direction by the LPO convention, for the development and implementation of party policy, the operations of the LPO… [emphasis added]”

2. StateComm Documents. Article V, Section 2 of the StateComm Documents says, “The board of directors has full power and authority over the affairs of the LPO between conventions with the following exceptions: modifying actions taken in convention… [emphasis added]”

As indicated by the approved minutes of the May 21st, 2011 Adjourned Meeting of the 2011 LPO Annual Business Convention previously submitted to your office, the body selected a chair pro-tem and secretary pro-tem because none of the LPO officers were present. The convention came to order and it was determined that no quorum was present. The convention then adjourned sine die, at which time all LPO officer and Judicial Committee positions became vacant because their terms of office had expired.

Article VI, Section 3, Paragraph 1 of the Convention Documents require that the LPO State Committee meet immediately after the conclusion of each Annual Business Convention. Paragraph 6 of the same section says that a quorum of the LPO State Committee is 20% of its members. With all officer positions vacant, the LPO State Committee now consisted of 11 county representatives as recognized by both sides of the current dispute prior to March 31st, 2011. As the approved and previously provided minutes of the May 12th, 2011 LPO State Committee meeting show, five county representatives were present at LPO State Committee meeting held at the conclusion of the 2011 LPO Annual Business Convention. These five representatives, representing 43% of the entire LPO State Committee, exceeded the 20% quorum requirement.

NOTE: The other side of this dispute has disputed the existence of a quorum at the May 21st, 2011 LPO State Committee meeting by claiming that some of those who participated as county representatives were not authorized to do so. But prior to this dispute, all of those purporting to be county representatives at the May 21st, 2011 LPO State Committee meeting had been previously recognized as such by both sides. Approved meeting minutes indicate that nobody present at the meeting objected to the credentialing of any county representative. Finally, in all of the legal proceedings which have taken place since the dispute began, no judge has ruled that any of those purporting to be representatives at the May 21st, 2011 LPO State Committee meeting did so improperly.

As indicated in the approved minutes of the May 21st, 2011 LPO State Committee meeting, because all of the officer positions were vacant, the county representatives selected a Chair pro-tem and Secretary pro- tem as required by Robert’s Rules of Order. The meeting was called to order and the vacant officer positions were filled with Tim Reeves (Chair), Eric Saub (Vice Chair), Carla Pealer (Secretary), and Gregory Burnett (Treasurer).

Your office again applied its Unwritten Policy when it complied with another order from Wes Wagner to reject a properly submitted SEL 221 form, featuring Tim Reeves as the new LPO State Chair subsequent to the May 21st, 2011 LPO State Committee meeting. To its credit, your office properly and subsequently looked to the Libertarian Party’s internal dispute resolution mechanisms during the Spring and Summer of 2011 for guidance:

1. The LPO Judicial Committee. As later observed by Clackamas County Circuit Court Judge Henry C. Breithaupt in 2013, and as noted by the Oregon Court of Appeals (COA) in 2018, the LPO Judicial Committee would be the proper venue to resolve disputes relating to interpretations of the LPO’s organizational documents. Judge Breithaupt wrote, “…the [LPO] Judicial Committee is the final arbiter of disputes concerning the interpretation of the bylaws.” While Judge Breithaupt wrote that he “…does not purport to interpret the 2009 Bylaws,” only the Convention Documents feature the LPO Judicial Committee that he refers to. Unfortunately, neither Judge Breithaupt, the COA, or your office seemed to be aware that the LPO Judicial Committee lost a working majority during 2010 due to resignations. Unlike LPO officer vacancies which could be filled by LPO State Committee appointments, vacancies on the LPO Judicial Committee without a working majority could only be filled by an LPO convention operating with a quorum. As there was no quorum at the 2011 LPO Annual Business Convention, the LPO Judicial Committee became completely depopulated when the convention adjourned sine die, and therefore unable to resolve this dispute.

2. The Libertarian National Committee (LNC). To resolve the dispute without a functioning LPO Judicial Committee, we went to our parent organization, the LNC. On July 18th, 2011, the Executive Committee of that body passed two resolutions supporting our side in this dispute by a 6-1 vote. These resolutions, copies of which have been provided to your office, have never been rescinded. The resolution first said, “Based upon the available evidence, the Executive Committee of the Libertarian National Committee finds that the Bylaws of the Libertarian Party of Oregon (as amended March 14-15, 2009) are the Bylaws of the Libertarian Party of Oregon, and that these bylaws have been in effect since March 15, 2009.” The second resolution said, “Based upon the available evidence, the Executive Committee of the Libertarian National Committee recognizes as the officers of the Libertarian Party of Oregon those people elected by the State Committee during its meeting on May 21, 2011. They are, Chair: Tim Reeves, Vice Chair: Eric Saub, Secretary: Carla J. Pealer, Treasurer: Gregory Burnett.”

3. The Libertarian Party National Judicial Committee. Wes Wagner then appealed the LNC resolutions to the National Libertarian Party Judicial Committee, the highest dispute resolution body in our organization. On August 25th, 2011, without ruling on the merits of our dispute, that body ruled 4-3 that, “We find that the Libertarian Party of a particular state, in this case the State of Oregon, it the (sic) entity recognized by the secretary of state, in this case the Secretary of State of Oregon.” The majority opinion was written by Nick Sarwark, who would be elected as the Chair of the Libertarian National Committee in 2014 and re-elected in 2016 and 2018. That body underscored this position, again without ruling on the merits, in a September 23rd, 2011 clarification. This ruling had the effect of nullifying the LNC resolutions concerning our dispute and kicking the dispute back to your office, a dispute upon which your office has repeatedly, consistently, and explicitly refused to rule.

Your office responded to this ruling by defaulting back to its Unwritten Policy. On September 29th, 2011 your office issued the following order: “We understand the Judicial Committee of the National Libertarian Party has left it up to this office to decide which of your competing groups will be recognized by the state as the leadership of the Libertarian Party of Oregon. While we have attempted to stay out of your internal party processes, it is clear that we will have to make a decision so that the voters affiliated with the Libertarian Party of Oregon will be able to have a candidate for the Special Election in the 1st Congressional District. We currently recognize, and will continue to recognize, Wes Wagner as Chair of the Libertarian Party of Oregon, We will accept the Libertarian nominee for the 1st Congressional District Special Election from Mr. Wagner.”

Your office solidified its position of applying its Unwritten Policy to our situation. Additionally, your office now insisted that any parties to the dispute seeking redress must do so in court, which we did as plaintiffs in bringing the case of Reeves v. Wagner. As part of the court’s proceedings, your office’s reiterated and formalized its position in a April 2nd, 2013 declaration where Election Director Stephen Trout testified, “The Secretary of State’s Elections Division has not and will not enforce or adjudicate disputes about political party bylaws. We have told the parties that they have to go to court to adjudicate this matter if there is to be any change because we do not adjudicate this type of dispute.”

This dispute has had many moving parts. During the time when the Reeves v. Wagner was being litigated, circumstances with respect to this dispute have taken place on both the state and national levels.

1. Libertarian National Committee. After the National Libertarian Party Judicial Committee’s decision of August 25th, 2011 and its clarification of September 23rd, 2011, the full LNC considered two more resolutions, copies of which have been provided to your office.

On October 16th, 2011 the first resolution, offered by supporters of Wes Wagner, failed by a 5-10 vote. The resolution would, “…direct our Executive Director to reinstate Wagner et al. As our official LPOregon affiliate as per the [national] Judicial Committee decision of 8/25/11 and the [national] Judicial Committee clarification of of 9/23/2011.”

On November 20th, 2011, the second resolution passed by a 12-5 vote which said, “Whereas, it is apparent under the 2009 Libertarian Party of Oregon Bylaws that it was impossible for Wes Wagner and his associate claimants to be the legitimate leadership of the LPO as of the date of the Judicial Committee appeal, and … Whereas a direct consequence of the Judicial Committee’s improper actions of August 25 and September 23 was the Oregon Secretary of State’s September 29 decision to recognize the last officers known to them, rather than the officers elected by members of the Libertarian Party of Oregon in accordance with its bylaws. Therefore be it resolved, it is the sense of the Libertarian National Committee that the decision by four members of the [national] Judicial Committee in its 4-3 declaration regarding the Libertarian Party of Oregon is not justified by the [national] Libertarian Party Bylaws, and that the Judicial Committee has acted outside of its limited authority, which is clearly and explicitly defined…”

2. The 2012 LPO Annual Business Convention. On March 10, 2012, operating under the Convention Documents, the LPO held its Annual Business Convention in Beaverton. As in 2011, quorum was not reached. The convention adjourned sine die at which time all LPO officer positions again became vacant. At the LPO State Committee meeting held immediately after, four of eleven county representatives to the LPO State Committee were present achieving quorum with 36% of the entire LPO State Committee present. As in 2011 there were no credentials challenges and a Chair pro-tem and Secretary pro-tem were elected. Tim Reeves, Eric Saub, Carla Pealer, and Greg Burnett were again elected to the positions of LPO Chair, LPO Vice Chair, LPO Secretary, and LPO Treasurer, respectively. Your office has a copy of the approved convention and LPO State Committee meeting minutes on file.

3. The 2012 Libertarian National Convention. On May 4th, 2012, those operating in under the Convention Documents and those operating under the StateComm Documents each sent delegations to the Libertarian National Convention held in Las Vegas, Nevada. After a floor fight over which delegation would represent Oregon at the convention, the delegation sent by those operating in accordance with the Convention Documents was seated. Your office has a copy of the approved convention minutes on file.

4. The 2013 LPO Annual Business Convention. On March 9th, 2013, the LPO, operating under the Convention Documents held its 2013 Annual Business Convention in Eagle Crest. After a campaign to recruit new members, and a campaign to secure resignations from those unable to attend the convention, a quorum was finally reached and the convention was able to conduct business. A copy of the approved minutes of this convention are on file with your office.

The Convention Documents were properly amended to deal with the persistent quorum issue, provide certainty over who represents affiliated county parties on the LPO State Committee, channel factional discourse, and address other structural problems. Many of these amendments were crafted in personal consultation with Thomas Balch, one of the actual members of the Robert’s Rules of Order authorship team, with an eye towards curbing factional discourse.

Members to the LPO Judicial Committee, which had been unable to function after losing a working majority because of resignations during 2010, were finally elected. LPO officers were also elected in convention, with all officers remaining the same except for Amy O’Connor who replaced Carla J. Pealer as the LPO Secretary.

One set of amendments to the Convention Documents was to extend the terms of office of LPO State Committee officers and Judicial Committee members to two years, staggered so that the LPO State Committee officers and Judicial Committee members would never again be elected in the same convention. This would make it more difficult for any future faction to completely take over the Libertarian Party of Oregon in one convention.

Another set of amendments to the Convention Documents was to elect county representatives to the LPO State Committee at LPO Annual Business Conventions to eliminate all doubt as to who those representatives are. Two representatives could be elected from each county where at least five LPO members from that county were present at an LPO Annual Business Convention.

Another set of amendments to the Convention Documents was to require that future amendments to the Convention Documents be approved by 2/3 majorities at two consecutive odd-numbered year LPO Annual Business Conventions. This would make it impossible for one faction to “sandbag” other factions at a single Annual Business Convention and increase the likelihood that any amendments adopted would be those around which a broad base of support could be built.

The amendments provided for emergency amendments to be made through larger super- majorities at a single convention. As amended, the Convention Documents maintained all of the internal party institutions which previously existed, including the LPO Judicial Committee. They kept faith with those who were already LPO members including Lifetime members. They also addressed some of the issues which had been important to those operating under the StateComm Documents.

5. The 2013 Biennial Convention for the LPO Operating Under the StateComm Documents. Those operating under the StateComm Documents attempted to hold their first biennial business convention. The convention adjourned sine die after failing to achieve quorum. Wes Wagner was subsequently elected Chair by the organization’s “Board of Directors.”

6. Ruling of Judge Breithaupt of the Clackamas County Circuit Court. On May 21st, 2011, without ruling on the merits of the dispute, Judge Breithaupt dismissed the case of Reeves v. Wagner on the grounds that it the (sic) matter is “…either nonjusticiable or, if the court has the power to address the dispute, it also has the discretion to stay its hand in light of the existence of other remedies that may lead to resolution of these sensitive matters without the need for the court to intrude upon the inner workings of a political party.”

In his ruling, Judge Breithaupt repeatedly noted that the proper venue for deciding this dispute was the LPO Judicial Committee which had no working majority after 2010 and was depopulated until the March 9, 2013 LPO Annual Business Convention. Judge Breithaupt ruled, “This constitution of the LPO provides for a judicial committee of the party, that is stated to be ‘the final body of appeal in all matters requiring interpretation of the Constitution, Bylaws, rules, or resolutions of the LPO, subject to the provision that a decision of the Judicial Committee may be overruled by a three quarters vote at the next convention.”

Judge Breithaupt went on to reiterate that, “…the LPO has established a Judicial Committee to address the exact kind of questions Plaintiffs would have this court decide. The Constitution of the LPO dictates that the decisions of the Judicial Committee, not the decisions of a court, will be final, subject only to appropriate action of the full membership of the party.”

Again, it is worth noting that the Judicial Committee referred to by Judge Breithaupt only exists within the Convention Documents. The StateComm Documents have no Judicial Committee or equivalent organization which can be turned to in order to resolve disputes over the interpretation of organizational documents.

Finally, Judge Breithaupt wrote, “The record indicates that the question of which faction is to be recognized as the incumbent leadership of the LPO has been submitted to the national party for resolution and has received the attention and rulings of the national party.”

This was not accurate. As your office noted on September 29th, 2011, Libertarian National Judicial Committee handed the dispute back to your office after overruling the Libertarian National Committee which recognized the Convention Documents and the officers elected after the 2011 LPO Annual Business Convention. As your office refused to adjudicate matters relating to a political party’s organizational documents, your office continued to apply its Unwritten Policy.

7. The 2013 Decision of the LPO Judicial Committee. On June 2nd, 2013, with a full complement of five LPO members elected to the LPO Judicial Committee at the March 9th 2013 LPO Annual Business Convention, the LPO Judicial Committee was finally able to weigh in on the dispute. Your office has been provided with a copy of this ruling.

By a 5-0 vote the LPO Judicial Committee ruled that the “LPO State Committee did not and could not have amended the LPO Constitution or Bylaws [the Convention Documents] on March 31, 2011.” The LPO Judicial Committee ruled that the LPO’s organizational documents could only have been amended in a properly noticed convention.

Also, by a 5-0 vote, The LPO Judicial Committee also ruled that, “The May 21st, 2011 [adjourned] meeting of the 2011 LPO Annual Business Convention was ordered by a vote of the members of the LPO members assembled in convention on March 12th, 2011. The LPO State Committee, a body subordinate to the members assembled in convention, had no authority to cancel or amend any order of the members assembled in convention.” The ruling went on to say that the adjourned meeting was, “…validly called, validly noticed by means of having been ordered by the convention itself, and validly held in accordance with the LPO Constitution and Bylaws in force on May 21st, 2011.”

Also by a 5-0 vote, the LPO Judicial Committee ruled that, “The March 9th, 2013 convention was properly called, properly noticed, and properly held. Quorum was achieved and it would now be too late to challenge quorum regardless. There can be no question that the members of the LPO assembled in convention had the authority to amend or replace the LPO Constitution and Bylaws. The unanimous vote of the members assembled in convention on March 9th, 2013 is unassailable. The 2013 Bylaws of the LPO are valid and currently in force.”

Finally, also by a 5-0 vote, the LPO Judicial Committee ruled that, “The current officers of the LPO are Tim Reeves (Chairperson), Eric Saub (Vice-Chairperson), Amy O’Connor (Secretary), and Greg Burnett (Treasurer), all of whom were re-elected on March 9th, 2013 by members of the LPO assembled in convention [emphasis in original].”

Despite Judge Breithaupt’s findings that the LPO Judicial Committee is the proper venue to resolve disputes such as ours, and despite the June 2nd ruling of the LPO Judicial Committee, your office continued to apply its Unwritten Policy. Because your office continued to maintain that it would change its position only as a consequence of court action, we decided to appeal Judge Breithaupt’s decision in the case of Reeves v. Wagner to the Oregon Court of Appeals (COA). The appeal was submitted in October 2014. A ruling on the dispute, which will be discussed below, was not arrived at until December 12, 2018.

8. Your Office Ordering the Formation of a Miscellaneous PAC. Since the dispute began, LPO leaders operating under the Convention Documents had been in a state of limbo with respect to campaign finance issues because your Unwritten Policy had placed those operating under the StateComm Documents in control of the “Libertarian Party of Oregon” (PAC #622) and, consequently, bank accounts associated with PAC #622.

On April 10, 2012 your office recognized that monies being raised by Tim Reeves was for litigation against those operating under the StateComm documents. On January 15th, 2014 your office directed us, Tim Reeves specifically, to file as another PAC.

As directed, we then formed miscellaneous PAC “Libertarian Party of Oregon” (PAC #16869). Those operating under the StateComm Documents, objecting to our use of the name “Libertarian Party of Oregon” demanded that the PAC be dissolved administratively. Your office refused to do so. Since that time, we have operated financially as PAC #16869 for the purpose of complying with Oregon election law until this dispute is resolved.

Since formed, the LPO Treasurer has been responsible for all ORESTAR filings. The work of the LPO Treasurer has been supported by Lori Piercy, a hired campaign finance compliance specialist who works to ensure our compliance with Oregon election law.

9. The 2014 LPO Annual Convention. On March 22, 2014, the LPO operating under the Convention Documents held its Annual Business Convention in Salem. Quorum was again reached. Your office has been provided with an approved copy of the convention minutes. In keeping with the enactment of the 2013 amendments made to the Convention Documents, fresh elections to the LPO Judicial Committee elections took place.

10. The 2014 Libertarian National Convention. On June 27th, 2014 the National Libertarian Party held its biennial convention in Columbus, Ohio. Again, those operating under the Convention Documents and those operating under the StateComm Documents sent delegations to represent Oregon. The LNC Chair, Geoffrey Neale, ruled that seating the delegates sent by those LPO members under the Convention Documents was out of order. The ruling of the Chair was appealed, and the Chair was overruled from the floor. Over the objection of those operating under the StateComm Documents, the delegate configuration offered by those operating under the Convention Documents, which included the delegates sent by both delegations, was seated.

After Wes Wagner, as the delegation chair, said he would refuse to register votes cast by delegates sent by those operating under the Convention Documents, he was replaced by Tim Reeves as the delegation Chair. It is noteworthy that Nicholas Sarwark, who wrote the majority opinion in its August 25th, 2011 ruling, was elected to replace Geoffrey Neale as Chair the Libertarian National Committee. Your office has been provided with the minutes of the convention.

11. The Libertarian National Committee. At the September 20-21st, 2014 meeting of the LNC, two resolutions were considered relating to the delegation seated at the 2014 Libertarian National Convention. The first was sponsored by Nicholas Sarwark, the new LNC Chair, former member of the Libertarian Party National Judicial Committee. The resolution, which failed by a vote of 5- 11, would have apologized to the LPO for “…the erroneous ruling of the National Convention Chair” after he acknowledged being overruled by the floor.

A second resolution passed by a vote of 9-7-1 which said that, “Whereas, the 11th edition of Robert’s Rules of Order Newly Revised, which is the Parliamentary Authority for the Libertarian Party as stated in Article 16 of its Bylaws, states (p. 483) that “In any event, no action of the board can alter or conflict with any decision made by the assembly of the society, and any such action of the board is null and void (see p. 577, II. 23-33).”, and Whereas, the Libertarian National Committee nevertheless regrets the situation wherein some delegates believe the above decision was incorrectly decided, therefore, Be it resolved that it is the sense of the Libertarian National Committee that it wishes to convey those regrets to the Libertarian Party of Oregon.

This second resolution, which simply expressed regret that “..some delegates believe the [2014 national convention Oregon delegation seating] was incorrectly decided,” has been dishonestly represented to your office as an endorsement of those operating under the StateComm Documents and the legitimacy of the StateComm Documents themselves. Neither resolution, copies of which have been provided to your office, endorsed anything or rescinded the LNC votes on resolutions considered on July 18th, 2011, October 16th, 2011, or November 20, 2011.

12. The 2015 LPO Annual Business Convention. LPO members operating under the Convention Documents assembled in Pendleton on March 21st, 2015. Quorum was reached. Ian Epstein was elected LPO Chair. Tim Reeves was elected LPO Vice Chair. An amendment to the Convention Documents received initial approval which prohibits the LPO from becoming financially involved in federal races for the purpose of preventing the need to file FEC reports on a regular basis. Richard Burke was elected LPO Secretary. Greg Burnett was elected LPO Treasurer. Three vacancies on the LPO Judicial Committee were filled. The approved minutes of this convention were submitted to your office.

13. The 2015 Biennial Convention for the LPO Operating Under the StateComm Documents. For the second time, those operating under the StateComm Documents attempted to hold their biennial business convention. Once again, the convention adjourned sine die after failing to achieve quorum. Lars Hedbor was subsequently elected to Chair this organization by its “Board of Directors.”

14. The Libertarian Party National Judicial Committee. A new Libertarian Party National Judicial Committee was elected at the 2014 Libertarian National Convention. M Carling, who had been involved in the current dispute, was elected as the new Chair. Carling is a professional registered parliamentarian (PRP) with the National Association of Parliamentarians.

Ian Epstein, the new Chair for the LPO operating under the Convention Documents elected at the 2015 LPO Annual Business Convention, petitioned the Libertarian National Judicial Committee to reconsider their 2011 ruling on the Oregon situation. In his petition, Epstein alleged that the August 25th, 2011 ruling of the Libertarian National Judicial Committee violated national party bylaws as it constituted the “constructive disaffiliation” of a Libertarian state affiliate party (that which operates under the Convention Documents). The Libertarian Party National Judicial Committee agreed to reconsider Epstein’s charge.

In reviewing Epstein’s charge, the Libertarian National Judicial Committee decided to revisit its original August 25th, 2011 ruling and subsequent clarification of September 23rd, 2011. On September 13th, 2015, by a 4-2-1 vote (Chair M Carling abstained), the Libertarian National Judicial Committee decided to rescind its ruling of August 25th, 2011.

With the ruling rescinded, Epstein’s charges became moot and the resolutions passed on July 18th , 2011 by the LNC supporting the Convention Documents and those operating under them, came back into force. Resolutions passed by the LNC on October 16th, 2011 and November 20th, 2011 condemning the Libertarian Party’s National Judicial Committee decision of August 25th, 2011 was vindicated.

A clarification of the September 13th, 2015 ruling of the Libertarian Party National Judicial Committee was issued on February 20th, 2016, joined by three other members of that body constituting a majority. In the clarification, several written statements immediately relevant to the dispute, copies of which have been provided to your office. They are as follows:

a. The LPO’s Legitimate Organizational Documents. The clarification said, “The current Bylaws of the Libertarian Party of Oregon, PAC 622, are the Bylaws adopted by the members of the LPO at the March 9th, 2013 convention, the last convention at which they were amended.”

b. The LPO’s Legitimate Chair. The clarification also said, “The current Chairperson of the Libertarian Party of Oregon, PAC 622, is Ian Epstein.”

Summation to Date. After the September 13th, 2015 ruling of the Libertarian Party’s National Judicial Committee and its subsequent clarification of February 20th, 2016, the Convention Documents, and the leadership produced by following them, were exclusively recognized as legitimate by the Libertarian National Committee, the Libertarian Party National Judicial Committee (which your office looked to for guidance in 2011), and the Libertarian Party of Oregon Judicial Committee (which Judge Breithaupt found to be the proper venue in which to settled disputes such as ours. At this point, and to date, no authoritative body within the Libertarian Party recognizes the StateComm Documents or those operating under them as legitimate except your office by way of its Unwritten Policy.

Because of your office’s Unwritten Policy, your office has stood against every authoritative body within the Libertarian Party on this dispute. LNC Chair Nicholas Sarwark’s refusal to implement the September 13th, 2015 ruling of the Libertarian Party National Judicial Committee, and the LNC resolutions brought back into force by that ruling, are grounded in the position taken by your office because of its Unwritten Policy. In a September 15th, 2015 letter responding to the ruling, Sarwark writes, “The LNC affiliates with state Libertarian parties. Some of those parties are allowed or required to organize under state laws, some are not. In Oregon, the LNC is affiliated with the Libertarian Party of Oregon, an Oregon political party.”

15. The 2016 LPO Annual Business Convention. Those operating under the Convention Documents held the LPO’s Annual Business Convention on March 26th, 2016 in Hillsboro. Quorum was reached. During the convention, Judicial Committee members were elected. The convention also featured a public debate between candidates for the Libertarian nomination for U.S. president between former New Mexico governor Gary Johnson and Austin Petersen. Your office has been provided with a copy of the approved convention minutes.

16. The 2016 Libertarian National Convention. Angry because their delegations had been rejected as submitted at the 2012 and 2014 national conventions, those operating under the StateComm Documents boycotted the 2016 national convention in Orlando, Florida and chose not to send a delegation. Those operating under the Convention Documents sent a delegation and asked to be seated.

Those operating under the StateComm Documents controlled the Libertarian Party’s ballot line because of your Unwritten Policy. Using that leverage, they demanded the national convention seat no Oregon delegation and threatened to exclude the national convention’s nominees for US president and vice-president from Oregon’s general election ballot if the national convention did not comply. On their vote-by-mail primary ballot, those operating under the StateComm Documents offered questions on whether the party should include the national convention’s nominees for U.S. president and vice-president should the national convention seat an Oregon delegation against their wishes. These questions were referred to on the ballot as “Board Referral #5” and “Board Referral #6.”

The national convention dealt with this issue by not seating an Oregon delegation per se, but seating members of the delegation sent by those operating under the Convention Documents within other state delegations including those of Washington and North Dakota. Once seated, though they cast votes within the state delegations they were seated in, delegates sent by those operating under the Convention Documents caucused and effectively operated as the Oregon delegation, even being physically seated under the Oregon delegation banner on the convention floor. Your office has been provided copies of the approved 2016 Libertarian Party National Convention minutes and copies of the 2016 vote-by-mail primary ballot used by those operating under the StateComm Documents.

17. The 2017 LPO Annual Business Convention. Those operating under the Convention Documents held their 2017 Annual Business Convention in Redmond on March 18th, 2017. Once again, the convention made quorum. A copy of the convention minutes has been provided to your office.

The bylaw amendment initially approved at the 2015 LPO Annual Business Convention relating to federal elections was adopted. New amendments which clarified dues-paying membership and provided for Libertarian candidate nominations to be made via conventions, vote-by-mail ballots, internet voting, and participation in state-monitored primary elections received initial approval and would be up for adoption at the 2019 LPO Annual Convention. LPO Officers were elected with Ian Epstein being re-elected to the position of LPO Chair.

18. Action Taken by Your office. On April 7th, 2017, after consulting with his staff, Secretary of State Dennis Richardson issued a memo standing by your office’s order of September 11th, 2019 recognizing Wes Wagner as the LPO Chair. Though we have the highest regard and fondness for the late Secretary, and while we believe he acted with the best intentions on the information he was provided with, the memo itself included a number of statements and relevant factual errors of note:

a. Refusal to Adjudicate Disputes Over Organizational Documents. In Point 2 of his memo, doubling down on your office’s refusal to adjudicate disputes over a political party’s organizational documents, Secretary Richardson wrote, “ORS 248.011 make is clear, and both groups have agreed in legal pleadings, that the Secretary of State has no jurisdiction to referee bylaw disputes.” This is noteworthy as the question of which organizational documents properly govern the LPO continues to sit at the heart of the current dispute regardless of who the leaders are. We really don’t care who the leaders are.

b. Which Groups Followed the 2009 Bylaws. In Point 1 of his memo, Secretary Richardson wrote that, “Neither group followed the 2009 bylaws that both groups agree were in force in March 2011.” This statement, which belies your office’s unwillingness to adjudicate disputes over a political party’s organizational documents, was derived from an assertion made in a brief, a copy of which was submitted to your office, for a May 16th, 2013 court hearing by legal counsel on behalf of those operating under the StateComm Documents.

This is noteworthy because we were never made aware of this representation made to your office nor were we afforded to rebut this assertion before Secretary Richardson’s memo was released.

c. Rulings by the National Libertarian Party. In Point 4 of his memo, Secretary Richardson wrote that “Each of the two groups has alleged that rulings in its favor by the Libertarian National Convention (LNC) are dispositive, yet the national party has issued conflicting rulings on the issue. Most recently, the LNC voted to recognize the same group currently recognized by this office.”

Given this dispute has featured a lot of moving parts, and as various organs of the national party have issued conflicting rulings on the issue, Secretary Richardson can be forgiven for confusing the “LNC,” which stands for the Libertarian National Committee, with Libertarian National Conventions. We were not given an opportunity to offer corrections to Secretary Richardson’s statement before he released his memo, but there were other errors within.

In Point 4, owing to his reference to the Libertarian National Convention as the “LNC”, it is not clear whether he is referring to the Libertarian National Committee or the Libertarian National Convention. In any case, neither body has ever supported the leadership or organizational documents of those operating under the StateComm Documents.

1) The Libertarian National Convention. As described above, at every Libertarian National Convention where the seating of Oregon delegates has been contested, the delegate slates of those operating under the StateComm Documents have either not been seated at all or were not seated as submitted. In contrast, the delegate slates of those operating under the Convention Documents have always been seated. Even at the 2016 national convention, where no Oregon delegation was seated per se, the entire delegation sent by those operating under the Convention Documents were ultimately seated in the delegations of other states and then caucused as the Oregon delegation under that banner. Beyond that, no Libertarian National Convention has passed any resolution or measure relating to the Oregon dispute.

2) The Libertarian National Committee. After the Libertarian National Judicial Committee’s ruling of August 25th, 2015 and its clarification of October 15th, 2015, the resolutions passed on July 18th, 2011 by the LNC supporting the Convention Documents and the leaders operating under them, came back into force. Further resolutions passed by the LNC on October 16th, 2011 and November 20th, 2011 condemning the Libertarian Party’s National Judicial Committee decision of August 25th, 2011 was vindicated. None of these resolutions, as outlined above, has ever been rescinded.

In Point 4, Secretary Richardson may have been referring to a resolution passed by the LNC after the 2014 Libertarian National Convention discussed above which simply expressed regret that “..some delegates believe the [2014 national convention Oregon delegation seating] was incorrectly decided.” If so, this resolution has been dishonestly represented to your office as an endorsement of the StateComm Documents and leaders operating under them.

The resolution was meant to assuage hurt feelings but did not endorse anything. Even if it did, it would be nullified by the Libertarian National Judicial Committee’s ruling of August 25th, 2015 and its clarification of October 15th. The bottom line is that no LNC resolution has ever passed supporting the legitimacy of the StateComm Documents or the leaders operating under them.

3) Nicholas Sarwark, LNC Chair. What may have confused Secretary Richardson and/or his staff is that LNC Chair Nicholas Sarwark, whose 2011 Libertarian Party National Judicial Committee ruling was rescinded, refused to implement the 2015 Libertarian Party National Judicial Committee ruling or abide by the LNC resolutions supporting the Convention Documents and those leaders operating under them. Sarwark’s position of recognizing state parties recognized by Secretaries of State leads back to your office’s Unwritten Policy.

To be sure, as noted above, the 2015 Libertarian Party National Judicial Committee ruling found that Sarwark’s position violated the Libertarian Party’s “Statement of Principles” and was in violation 6.5 and 6.2 of the national party Bylaws. Your office has been provided with a copy of that ruling.

Unfortunately, the LNC was unable to hold Sarwark accountable for lack of the 2/3 super-majority on the LNC necessary to do so. The LNC Chair is not empowered to establish policy on behalf of the entire LNC, which has unambiguously supported the Convention Documents and the LPO leaders operating in accordance with them.

d. Failing to Appeal under Oregon’s Administrative Procedures Act (APA). In Point 3 of this memo, Secretary Richardson said, “In September 2011, the Secretary of State was required to decide which of these groups would be allowed to nominate a candidate in a special election. This office made a decision based on the information provided by the chair of record [in accordance with your Unwritten Policy] and sent an official decision memo to both groups. At that point, the group that was not recognized had an opportunity to challenge the decision. Oregon’s Administrative Procedures Act allows 60 days to challenge such a decision, and no such challenge was filed.” We were not given an opportunity to respond to this statement before Secretary Richardson released this memo, but our response to this is found on pages 2 and 3 of this documents.

19. The 2017 Biennial Convention for the LPO Operating Under the StateComm Documents. For the third time, those operating under the StateComm Documents attempted to hold their biennial business convention. Once again, the convention adjourned sine die after failing to achieve quorum. Kyle Markley was subsequently elected to Chair this organization by its “Board of Directors.”

20. The 2018 LPO Annual Business Convention. Those operating under the Convention Documents held their 2018 Annual Business Convention in Salem. Once again, the convention made quorum. Fresh elections to the LPO Judicial Committee were held and LPO members were subsequently elected to that committee. During the previous year an effort was made to reach out to those operating under the StateComm Documents to try and heal the rift between the two groups within the parameters of your Unwritten Policy. Kyle Markley, elected Chair of the group operating under the StateComm Documents, had offered an idea whereby the two groups would unify with the understanding that those operating under the StateComm Documents would be in charge of elections and those operating under the Convention Documents would deal with matters of public policy.

Seizing on Markley’s idea, those operating under the Convention Documents drafted what would be called, the “Unity Resolution,” an attempt to formalize this relationship between the two groups. The organizational documents of both organizations would be essentially preserved, though sections of each would be rendered “inoperative” if they conflicted with the “Unity Resolution” which assigned roles to each group. A committee made up of representatives from both organizations would resolve disputes, with the leadership of that committee alternating between the groups every year.

It was a clunky way to bring the two sides together, but was possible under your office’s Unwritten Policy. A resolution was passed which endorsed the “Unity Resolution” and encouraged Kyle Markley to complete negotiations on the resolution as soon as possible.

21. Action by Your Office. In consultation with Stephen Elzinga, the Governmental and Legal Affairs Director for Oregon Secretary of State Dennis Richardson, we asked questions of your office regarding whether or not our proposed idea to unify the LPO through the “Unity Resolution,” submitted in a manner consistent with your office’s Unwritten Policy, would be acceptable to your office. In an May 29th, 2018 email, Election Director Stephen Trout indicated that it would be.

22. 2018 Libertarian National Convention. On June 30th, 2018, the Libertarian Party held its national convention in New Orleans. For the purpose of advancing negotiations relating to the “Unity Resolution,” those operating under the Convention Documents initiated a proposal to those operating under the StateComm Documents that the two organizations send a joint delegation. This proposal was accepted and a joint delegation was seated. At the convention, Nicholas Sarwark was re-elected as the LNC Chair. 23. 2018 Oregon General Election. For the purpose of advancing “Unity Resolution” negotiations, those operating under the Convention Documents agreed not to contest the candidate slate submitted by those operating under the StateComm Documents as they did previously. During the Summer and Autumn of 2019, it became clear that Kyle Markley, Chair of the organization operating under the StateComm Documents, would not agree to join with Ian Epstein in submitting the necessary documents to your office necessary to enact the “Unity Resolution.”

24. December 12th, 2018 Oregon Court of Appeals (COA) Ruling. While upholding the lower court’s dismissal of Reeves v. Wagner dealing with this dispute, there were significant findings in the COA’s ruling providing a clear road map for a final resolution to this dispute.

a. Your Office Has Authority to Resolve this Dispute. Contrary to what we had all previously thought, the court found that the Secretary of State has both the authority and an obligation to determine the legitimacy of a political party’s organizational documents and officer lists for the purpose of enforcing election laws including ORS 248.009 and ORS 249.720 and that doing so does not violate ORS 248.011. These findings effectively nullify your office’s Unwritten Policy. On pages 306-308 the court writes:“...we conclude that ORS 248.011 does not prevent the Secretary from construing political party bylaws or organizational documents in the course of determining who should be listed as the officers of a political party for the purpose of nominating candidates.

As the state’s chief elections officer, the Secretary of State is responsible for ‘obtain[ing] and maintain[ing] uniformity in the application, operation and interpretation of the election laws.’ ORS 246.110. A candidate may be nominated by a minor political party through a certificate of nomination signed by a party officer. ORS 249.720(3). Among the Secretary’s responsibilities are the duties to register certificates of nomination, ORS 249.810, and to receive a list of political party officers, ORS 248.009(2). As noted, ORS 248.009(1) requires a minor political party to file with the Secretary ‘a copy of its organizational documents establishing its process for nominating candidates for public office.’ The statute further provides that a minor political party ‘shall nominate candidates for public office only in accordance with the procedures set forth in its organizational documents.’ In receiving a list of officers from a political party so as to determine who may sign a candidate’s certificate of nomination, the Secretary is in a position to determine whether the person signing the certificate became an officer in accordance with the procedures set forth in the party’s organizational documents. See Goldstein v. Radakovich, 68 Or App 843, 847, 683 P2d 149, rev den, 297 Or 824 (1984) (Secretary had duty to investigate complaint that candidate’s certificate of nomination was in violation of statutory requirements). That determination, in turn, may depend on the construction of the organizational documents.

Plaintiffs assert that a determination by the Secretary of which organizational documents control would violate ORS 248.011, because it would constitute the “enforcement” of LPO rules. We disagree. ORS 248.011 imposes a prohibition against enforcement of party rules “except as required by law.” The Secretary’s statutory obligation to receive lists of party officers and certificates of nomination signed by a party officer implicitly includes the authority to determine whether the persons listed are, in fact, officers, and whether the person signing is, in fact, an officer. Additionally, “enforcement” implies compelling a political party to act in accordance with its governing documents or rules. See Webster’s Third New Int’l Dictionary 751 (unabridged ed 2002) (defining ‘enforcement’ as ‘the compelling of the fulfillment (as of a law or order)’). The Secretary’s construction of organizational documents for the purpose of determining whom the Secretary should list as the party’s officers does not compel the party to take any action; rather, it satisfies the Secretary’s own obligation to receive a list of party officers.”

b. The LPO State Committee Could Not Have Properly Adopted the StateComm Documents on March 31st, 2011. In its ruling, the COA was very clear as it outlined the procedures by which the Convention Documents could be legitimately amended. On page 304 of the ruling, the court writes: “Defendants contend that the process that they chose to use to replace the 2007 constitution and 2009 bylaws was nonetheless permitted. Defendants note the statement in the 2009 bylaws that the bylaws ‘may be amended by a two-thirds majority vote of all votes cast at an LPO convention.’ (Emphasis added.) They contend that the use of the word ‘may’ suggests that the bylaws do not provide the exclusive means of amending or replacing them, and that they may also be amended or replaced in other, undescribed, but statutorily supported ways.

The 2007 constitution requires the State Committee to manage the affairs of the LPO ‘consistent with this Constitution and Bylaws.’ Article XVI of the 2009 bylaws, entitled ‘Amendment Procedures,’ describes multiple processes to amend the bylaws. With respect to amendments proposed in advance of an annual convention, Article XVI, section (1), provides that the proposed amendments ‘shall be entered on the agenda of the next annual convention to be held in an odd numbered year unless the State Committee authorizes a special convention to be held sooner for that purpose,’ and requires that the LPO secretary ‘make the texts of such approved amendments available to each LPO member via written or electronic means, as each member prefers, no fewer than forty-five days prior to the opening of said convention.’

Article XVI, section 2, allows the proposal of bylaw amendments at a convention. Any delegate to a convention ‘at an odd-numbered year, or to any special convention held to consider the amendments’ may propose an amendment of the constitution or bylaws, if such amendment is presented in writing before that convention finishes and if requested to be considered by at least ten percent of the delegates present. Finally, Article XVI, section 3, is entitled ‘Two Thirds Majority Required’ and states: ‘These Bylaws may be amended by a two-thirds majority vote of all votes cast by registered delegates present at an LPO convention.’

There is no provision in either the 2007 constitution or the 2009 bylaws for the State Committee to amend or replace the bylaws [Emphasis added].”

c. Insofar as Disputes May be Settled Internally, the LPO Judicial Committee is the Best Avenue of Redress. The COA referred to the lower court’s ruling on page 299 where Judge Breithaupt wrote:

The 2007 constitution also creates a ‘Judicial Committee,’ which ‘shall be the final body of appeal in all matters requiring interpretation of the Constitution, Bylaws, rules or resolutions of the LPO, subject to the provision that a decision of the Judicial committee may be overruled by a three quarters vote at the next convention.’ Thus, under the 2009 bylaws, the Judicial Committee is the final arbiter of disputes concerning an interpretation of the bylaws. This opinion does not purport to interpret the 2009 bylaws.”

While the LPO Judicial Committee did not have a working majority during 2011 and 2012, it was repopulated at the 2013 LPO Annual Business Convention where quorum was finally achieved. As described above, later that year, the LPO Judicial Committee ruled that the Convention Documents and the leaders elected under those documents were exclusively legitimate. While the opinion does not purport to interpret the 2009 bylaws, it is a de-facto endorsement of the Convention Documents as the StateComm Documents feature no Judicial Committee or equivalent institution. Were the StateComm Documents legitimate, and no Judicial Committee existed, this finding would be pointless.

It is also worth reiterating that the 2013 ruling of the LPO Judicial Committee was supported by the 2015 Libertarian Party National Judicial Committee by a 4-2-1 vote. That body also explicitly acknowledged as legitimate the May 21st, 2011 Adjourned Meeting of the 2011 Annual Business Convention, the officer appointments which took place at the May 21st, 2011 LPO State Committee meeting, the amendments to the Convention Documents adopted at the 2013 LPO Annual Business Convention, and the leaders elected at that convention. That body’s ruling also brought back into force the 2011 resolutions of the Libertarian National Committee which recognized the Convention Documents and the leaders operating under it as legitimate.

d. Administrative Procedures Act. The court has found that if we wanted to dispute your order of September 29, 2011, we should have pursued recourse through the Administrative Procedures Act (APA) within the allotted 60 window and that we did not. As discussed in pages 2 and 3 of this complaint,

1) Organizational Documents. Neither your office’s order of September 29th , 2011, your office’s legal declaration of April 2nd, 2013, or your office’s memo of April 7th, 2017 addresses the question of which organizational documents properly govern the Libertarian Party of Oregon. In fact in your offices April 2nd , 2013 declaration and your office’s memo of April 7th, 2017 explicitly says that your office would not adjudicate matters relating to organizational documents. The question of which organizational documents properly govern the Libertarian Party of Oregon is therefore a unique question not covered by your original order of September 29th, 2011. Given COA findings outlined above, your office is now obligated and authorized to resolve this dispute.

2) The September 29th, 2011 Order is No Longer Operative. As explained on pages 2 and 3 of this complaint, your office’s order of September 29th, 2011 is no longer operative and is therefore moot.

Your order was issued to ensure that “…voters affiliated with the Libertarian Party of Oregon will be able to have a candidate for the Special Election in the 1 st Congressional District” and that, “We will accept the Libertarian nominee for the 1st Congressional District Special Election from Mr. [Wes] Wagner.” Since that election is over, that part of your office’s order is no longer operative.

Your order also said that, “We currently recognize, and will continue to recognize, Wes Wagner as Chair of the Libertarian Party of Oregon.” As nobody on either side of this dispute contends that Wes Wagner is Chair of anything any longer, that part of your office’s order is no longer operative.

In his April 7th, 2017 memo, Secretary Richardson said, “…this office has continued to follow the September 2011 decision and allowed the same group to nominate candidates for three election cycles.” This statement is also non- operational because the leaderships of those operating under the Convention Documents and the Statecomm Documents have changed significantly. The “same groups” don’t exist anymore. In any case, in the same memo, Secretary Richardson made clear that he refused to adjudicate our bylaws for fear of violating ORS 288.011, reinforcing that it is a separate issue unrelated to your office’s order of September 29th, 2011.

25. The 2019 LPO Annual Business Convention. Those operating under the Convention Documents held their 2019 Annual Business Convention in Pendleton. Once again, the convention made quorum. LPO Officers were elected. Tim Reeves was elected Chair, Ian Epstein was elected Vice-Chair, Gregory Burnett was elected Secretary, and Richard Burke was elected Treasurer (at a subsequent LPO State Committee meeting, Burnett and Burke serially resigned their positions and were appointed to the positions of LPO Treasurer and LPO Secretary, respectively.

A proposed amendment to the Convention Documents, which received initial approval at the 2017 LPO Annual Business Convention, was adopted. The proposal provided for the Libertarian Party to nominate candidates through vote-by-mail ballots, internet voting, or participation in state monitored primary elections subject to certain conditions. This amendment was adopted in hopes of increasing the Libertarian Party of Oregon’s flexibility concerning nominations and to lawfully incorporate a major feature of the StateComm Documents in hopes of reaching a compromise with them. Finally, a presentation was made by Libertarian state senator Laura Ebke of Nebraska. Your office has been provided with approved minutes from this convention.

26. The 2019 Biennial Convention for the LPO Operating Under the StateComm Documents. For the fourth time, those operating under the StateComm Documents attempted to hold their biennial business convention. Once again, the convention adjourned sine die after failing to achieve quorum. Timothy Perkins was subsequently elected to Chair this organization by its “Board of Directors.”

27. The 2020 LPO Annual Business Convention. Those operating under the Convention Documents held their 2020 Annual Business Convention in Lake Oswego. Owing to the Covid 19 crisis and governor Brown’s Executive Orders, LPO officers convened the convention and Adjourned to a Meeting to be held on March 30th, 2020. On March 30th, 2020, again because of the Covid 19 crisis and governor Brown’s Executive Orders, LPO officers convened the Adjourned Meeting and again Adjourned to a Meeting to be held on July 11th, 2020.

28. The 2020 Special Convention for the LPO Operating Under the StateComm Documents. For the fourth time, those operating under the StateComm Documents attempted to hold a convention, this time a special convention. Owing to the Covid 19 crisis and governor Brown’s Executive Orders, this convention was canceled.

Again, if there is any documentation your office needs regarding anything in this document, please let us know and we will provided (sic) it to you quickly.

Thank you.

Respectfully,

Tim Reeves, Chair Libertarian Party of Oregon

10 thoughts on “Burke: Oregon LP Ballot Access at Risk, Judge Breithaupt was “not accurate.”

  1. Joe Buchman

    Also see:

    https://independentpoliticalreport.com/2016/09/burke-writes-to-the-oregon-secretary-of-state-tries-to-replace-the-libertarian-party-of-oregons-candidates/

    https://independentpoliticalreport.com/2016/07/libertarian-party-of-oregon-richard-burke-is-at-it-again/

    https://independentpoliticalreport.com/2016/04/richard-p-burke-libertarian-party-of-oregon-pac-secretary-endorsing-trump-for-primary/

    https://independentpoliticalreport.com/2015/01/lp-oregon-quote-pres-jefferson-seek-attorney-fee-reimbursement-from-pac-16869/

    https://independentpoliticalreport.com/2014/10/libertarian-candidate-in-oregon-receives-letter-from-richard-burke-recommending-he-vote-for-republican-competitor/

    https://independentpoliticalreport.com/2014/10/oregon-republican-party-files-brief-backs-burkereeves/

    https://independentpoliticalreport.com/2014/06/oregons-burke-helping-other-3rd-parties-benefits-lp/

    https://independentpoliticalreport.com/2014/04/aaron-starr-revealed-to-be-primary-source-of-funding-for-oregon-lps-lawsuit/

    https://independentpoliticalreport.com/2014/04/wes-wagner-writes-to-lp-state-chairs-list-re-oregon-lp-activity/

    https://independentpoliticalreport.com/2014/01/reeves-is-ordered-by-secretary-of-state-of-oregon-to-file-as-a-pac-against-the-lpo/

    https://independentpoliticalreport.com/2014/01/geoff-neale-reaffirms-that-the-lnc-recognizes-wes-wagner-as-lp-of-oregon-chair/

    https://independentpoliticalreport.com/2013/11/reeves-group-files-appeal-in-judges-decision-re-leadership-of-lp-of-oregon/

    https://independentpoliticalreport.com/2013/10/final-judgement-comes-down-re-libertarian-party-of-oregon/

    https://independentpoliticalreport.com/2013/10/more-on-the-libertarian-party-of-oregon-dispute/

    https://independentpoliticalreport.com/2013/06/reeves-oregon-group-files-objection-with-court-judge-reiterates-his-judgement/

    https://independentpoliticalreport.com/2013/05/oregon-libertarian-party-lawsuit-dismissed/

    https://independentpoliticalreport.com/2013/05/motion-for-summary-judgement-heard-in-oregon-libertarian-party-lawsuit/

    https://independentpoliticalreport.com/2013/05/2013-libertarian-part-of-oregon-chair-report-from-wes-wagner/

    https://independentpoliticalreport.com/2013/03/update-on-libertarian-party-of-oregons-lawsuit/

    https://independentpoliticalreport.com/2012/08/new-document-filed-by-wagner-group-re-oregon-lp-lawsuit/

    https://independentpoliticalreport.com/2012/08/oregon-august-1st-2012-reeves-group-motion-immediately-dismissed/

    https://independentpoliticalreport.com/2012/07/johnson-in-ballot-in-oregon-expedited-trial-motion-denied/

    https://independentpoliticalreport.com/2012/07/latest-oregon-lp-development/

    https://independentpoliticalreport.com/2012/07/wagner-amended-complaint-submitted/

    https://independentpoliticalreport.com/2012/07/reeves-faction-attorney-in-or-lp-lawsuit-featured-in-article-about-or-gop-delegate-process/

    https://independentpoliticalreport.com/2012/07/wagner-and-group-respond-to-the-claims-from-the-reeves-group-in-the-oregon-lawsuit/

    https://independentpoliticalreport.com/2012/07/ca-lnc-alternate-rep-suggests-johnson-campaign-should-sacrifice-ballot-access-to-unseat-wagner/

    https://independentpoliticalreport.com/2012/06/lp-oregon-reeves-group-wins-latest-court-battle/

    https://independentpoliticalreport.com/2012/05/wes-wagner-threatens-gary-johnson-will-withhold-ballot-access-unless-campaign-intervenes-in-lawsuit/

    https://independentpoliticalreport.com/2012/05/wes-wagner-lnc-elections-have-gone-a-long-way-towards-mending-wounds/

    https://independentpoliticalreport.com/2012/05/wagner-et-al-unlikely-to-put-lp-national-ticket-on-oregon-ballot/

    https://independentpoliticalreport.com/2012/05/libertarian-party-convention-seats-reeves-oregon-delegation/

    https://independentpoliticalreport.com/2012/04/reeves-lpo-convention-delegates-letter-comments-from-mark-vetanen/

    https://independentpoliticalreport.com/2012/04/libertarian-party-of-oregon-legal-case-amended-complaint-from-tyler-smith-counsel-for-reeves-group/

    https://independentpoliticalreport.com/2012/04/corresponce-between-the-chair-of-the-credentialing-comitttee-for-the-libertarian-national-convention-and-chair-of-one-of-the-oregon-groups/

    https://independentpoliticalreport.com/2012/04/oregon-libertarians-announce-first-statewide-primary-election/

    https://independentpoliticalreport.com/2012/04/letter-from-oregons-secretary-of-state/

    https://independentpoliticalreport.com/2012/04/press-release-reeves-group-encouraged-by-first-hearing-over-future-of-the-libertarian-party-of-oregon/

    https://independentpoliticalreport.com/2012/04/reeves-group-encouraged-by-first-hearing-over-future-of-the-libertarian-party-of-oregon/

    https://independentpoliticalreport.com/2012/03/oregon-lp-response-to-lawsuit-to-wagner-group-from-the-reeves-group/

    https://independentpoliticalreport.com/2012/02/wes-wagner-plans-to-run-for-libertarian-national-committee-chair/

    https://independentpoliticalreport.com/2012/01/lp-or-reeves-group-sues-wagner-group/

    https://independentpoliticalreport.com/2011/11/lp-nat-com-votes-to-overturn-jc-on-oregon-lp/

    https://independentpoliticalreport.com/2011/11/updated-correspondence-from-the-lncoregon-lp-saga/

    https://independentpoliticalreport.com/2011/10/michael-jingozian-resolving-the-lp-oregon-fiasco/

    https://independentpoliticalreport.com/2011/10/updates-in-conflict-over-the-libertarian-party-of-oregon/

    https://independentpoliticalreport.com/2011/10/joe-tabor-the-oregon-conflict-and-lnc%E2%80%99s-upcoming-major-embarrassment/

    https://independentpoliticalreport.com/2011/10/exchange-between-lnc-chair-mark-hinkle-and-judicial-committee-chair-bill-hall-on-wagner-vs-lnc/

    https://independentpoliticalreport.com/2011/10/lnc-reportedly-voting-by-email-whether-to-follow-judicial-committee-decision-on-oregon/

    https://independentpoliticalreport.com/2011/09/lnc-loses-judicial-committee-appeal-about-oregon/

    https://independentpoliticalreport.com/2011/09/anonymous-source-lnc-will-now-vote-by-mail-ballot-on-disaffiliating-oregon-lp/

    https://independentpoliticalreport.com/2011/09/wagner-side-of-oregon-libertarian-dispute-appeals-to-judicial-committee-again/

    https://independentpoliticalreport.com/2011/09/mark-hinkle-emails-the-lnc-re-the-jud-com-ruling-about-oregon/

    https://independentpoliticalreport.com/2011/08/libertarian-national-committee-disbands-judicial-committee-cites-fec-recognition-as-its-authority-to-act/

    https://independentpoliticalreport.com/2011/08/libertarian-judicial-committee-voids-executive-committee-action-in-oregon-credentials-dispute/

    https://independentpoliticalreport.com/2011/07/fourteen-lnc-members-file-joint-response-to-judicial-committee-appeal/

    https://independentpoliticalreport.com/2011/07/legal-brief-filed-by-lnc-member-for-the-judicial-committee-regarding-the-oregon-ex-com-power-struggle/

    https://independentpoliticalreport.com/2011/07/libertarian-national-committee-lnc-to-decide-fate-of-libertarian-party-of-oregon-lpo/

    or not . . .

  2. Fred Stein

    Boy, am I glad I am not a Lawyer. I couldn’t read more than one page before falling asleep.

  3. Jeremy

    There is STILL a “Burke faction” of the Oregon LP???

    Of all the strange people involved in third party politics (and I often say that with love and affection, but not about Burke), this man is the strangest. He seems to have made it his life’s work to take over the Libertarian Party of Oregon and use its ballot line to nominate random people for President. Some people have weirder hobbies, I guess. But does anyone have a hobby more pointless?

  4. Anastasia Beaverhausen

    LPO has postponed its 2020 primary election multiple times, always blaming the inability to obtain tellers to count the ballots – a classic case of putting the cart before the horse as they haven’t even managed to send out the ballots.

  5. NewFederalist

    Well, well, well… just when it appears things couldn’t get worse…

  6. Joe Buchman

    “Monday, June 30, 2019 (sic)”

    Interestingly June 30th 2019 was a Sunday.

    June 30th 2020 is a Tuesday . . .

    June 30th 2014 was on a Monday.

    (BTW: I say “interestingly” only becasuse, COVID-19 and I’ve grown fatigued reading about motions to overturn the ruling of the chair . . .)

  7. Richard P. Burke

    I don’t see anyone disputing what is in the complaint.

    We’re not interested in taking over the LPO. We are interested in restoring organizational documents into force which were adopted and amended by LPO members in properly noticed conventions rather than those purportedly adopted without notice of the members at a monthly state committee meeting in violation of the organizational documents which were in force at that time.

    In fact, if you read the full complaint, if the Sec. of State properly enforces the law, we have agreed to cede all officer positions to our counterparts in the other group and not run for any officer positions at our next scheduled Annual Business Convention in March. How is that a “takeover?”

    Richard P. Burke

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