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Reeves v. Wagner

Court of Appeals of Oregon

December 12, 2018

Tim REEVES, Eric Saub, and Greg Burnett, as the Libertarian Party of Oregon; David Terry, M. Carling, and Richard Burke, as members of the Libertarian Party of Oregon, Plaintiffs-Appellants Cross-Respondents,
v.
Wes WAGNER, Harry Joe Tabor, Mark Vetanen, Bruce Knight, Jeff Weston, Jim Karlock, and Richard Skyba, as individuals; and Libertarian Party of Oregon, Defendants-Respondents Cross-Appellants, and Carla PEALER, as the Libertarian Party of Oregon, Plaintiff Cross-Respondent, and Joseph SHELLEY, Defendant.

          Submitted September 10, 2015

          Clackamas County Circuit Court CV12010345 Henry C. Breithaupt, Judge pro tempore.

          Tyler Smith and Tyler Smith & Associates, P.C. filed the briefs for appellants-cross-respondents and cross-respondent.

          Colin G. Andries, Andries Law Offices; James E. Leuenberger, and James E. Leuenberger PC filed the briefs for respondents-cross-appellants Wes Wagner, Harry Joe Tabor, Mark Vetanen, Bruce Knight, Jeff Weston, Jim Karlock, and Richard Skyba.

         [295 Or.App. 296] C. Robert Steringer, Brett Applegate, and Harrang Long Gary Rudnick P.C. filed the briefs for respondent-cross-appellant Libertarian Party of Oregon.

          James L. Buchal and Murphy & Buchal LLP filed the brief amici curiae for Oregon Republican Party.

          Before Armstrong, Presiding Judge, and Egan, Chief Judge, and Hadlock, Judge.

         Case Summary:

         Plaintiffs appeal from a judgment dismissing their complaint against defendants for declaratory and injunctive relief and breach of fiduciary duty, which arose out of a dispute over control of the Libertarian Party of Oregon. The trial court granted defendants' motion for summary judgment on the ground, among others, that the claims are not justiciable under the Uniform Declaratory Judgments Act (UDJA), because other, nonjudicial remedies are available. Plaintiffs contend that the trial court erred in dismissing the complaint. Defendants cross-appeal, contending that the trial court erred in rejecting their request for an award of attorney fees under ORS 20.105.

         Held:

         Because plaintiffs could have obtained the relief that they seek under the Administrative Procedure Act (APA) through a challenge to an order of the Secretary of State, the APA provided plaintiffs' exclusive remedy. The trial court therefore did not err in dismissing the complaint. The Court of Appeals rejected without discussion defendants' arguments on cross-appeal.

         Affirmed on appeal and on cross-appeal.

         [295 Or.App. 297] ARMSTRONG, P.J.

         Plaintiffs appeal a judgment dismissing their complaint against defendants for declaratory and injunctive relief and breach of fiduciary duty, which arose out of a dispute over control of the Libertarian Party of Oregon (LPO). The trial court granted defendants' motion for summary judgment on the ground, among others, that the claims are not justiciable under the Uniform Declaratory Judgments Act, ORS chapter 28 (UDJA), because other, nonjudicial, remedies are available. As explained below, we conclude for reasons different from the trial court that the claims are not justiciable under the UDJA and therefore affirm on appeal. We reject without discussion defendants' contention on cross-appeal that the trial court erred in rejecting their request for an award of attorney fees under ORS 20.105 and therefore affirm on cross-appeal.

         The facts as alleged in the second amended complaint and drawn from the record are largely undisputed. At the March 2010 annual LPO convention, defendant Wagner was elected LPO vice-chairperson. On March, 12, 2011, the LPO met for its 2011 annual convention, with 20 party members in attendance. The convention fell short of a quorum as defined by the then-existing, 2009 LPO bylaws. On Wagner's motion, the convention was adjourned and continued to May 21, 2011. Shortly after the March 2011 meeting, then LPO state chairperson Weston resigned. Under the 2009 bylaws, upon the resignation of a state chairperson, the vice-chairperson "shall serve as State Chairperson until the close of the next annual convention." Thus, Wagner, as vice-chairperson, assumed the office of state chairperson. Wagner then called a meeting of the "State Committee" (a committee established by the LPO constitution) for March 31, 2011. A majority of those attending the March 31, 2011, meeting adopted a new constitution and bylaws, with new quorum and membership requirements. At the same meeting, the State Committee appointed a board of directors, which subsequently appointed defendants as officers, with Wagner as state chairperson. At a meeting of April 19, 2011, the newly created board of directors met and changed the rescheduled May 21, 2011, annual convention into a social event at a different location. The newly adopted bylaws were [295 Or.App. 298] subsequently ratified by the membership by ballot and filed with the Secretary of State.

         Plaintiffs are registered Libertarian electors. Only one plaintiff, Terry, was present at the March 31, 2011, meeting called by Wagner, and he objected to the proceedings. Plaintiffs instead attended the rescheduled May 21, 2011, annual convention, which defendants did not attend and which, like the March 12, 2011, convention, failed to achieve a quorum. The rescheduled annual convention was adjourned sine die.

         Under the 2009 bylaws, officers' terms begin immediately upon the close of an annual convention. But, because of the lack of a quorum, no officers were elected at the May 21, 2011, annual convention. The 2009 bylaws provide that the State Committee can meet for the purpose of filling vacant officer positions. Immediately after the convention, plaintiffs, as the putative remaining State Committee members, held a State Committee meeting, where the members present elected plaintiffs as officers, with Reeves as state chairperson. In late May 2011, the Secretary of State rejected plaintiffs' attempt to register their elected officers, because the Secretary had previously recognized Wagner as LPO chairperson.

         Since May 2011, the Wagner group and the Reeves group have vied for leadership and control of the LPO. The question underlying their dispute is whether the 2009 bylaws or the bylaws adopted at the March 31, 2011, meeting govern the activities of the LPO.

         The 2009 bylaws require advance notice to LPO members of proposed amendments to either the LPO constitution or bylaws:

"Advance Notification. Proposed amendments to this Constitution and Bylaws 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. The Secretary shall make 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."

         [295 Or.App. 299] The 2009 bylaws further provide:

"These Bylaws may be amended by a two-thirds majority vote of all votes cast by registered delegates present at an LPO convention."

         As alleged in the second amended complaint, the bylaws adopted on March 31, 2011, did not comply with those requirements. On the face of the record, there are no factual disputes on that question.[1] The question presented on appeal is whether a court has authority under the UDJA to make that determination.

         The Libertarian Party is a "minor political party." See ORS 248.006 (defining "major political party"); ORS 248.008 (defining a "minor political party"). Under ORS 248.009(1), a minor political party is required to file with the Secretary of State "a copy of its organizational documents establishing its process for nominating candidates for public office." The minor political party also is required to file copies of "any changes to its organizational documents relating to nomination of candidates for public office not later than 30 days after the date any changes were made." Additionally, not later than 10 days after any selection is made, a minor political party is required to file with the Secretary of State's "filing officer" "a list of any officers selected by the party." ORS 248.009(2).

         As noted, after the March 31, 2011, meeting, the Wagner group filed the newly adopted bylaws with the Secretary of State. The Wagner group also filed a list of officers showing Wagner as LPO chairperson. The Reeves group then ...


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