lpo tabor et al cross assignment reply
DESCRIPTION
Reply to cross assignment for appeal.TRANSCRIPT
April 2015
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
DEFENDANT-RESPONDENTS AND CROSS-APPELLANTS’,
HARRY JOE TABOR, MARK VETANEN, BRUCE KNIGHT, JEFF
WESTON, JIM KARLOCK, RICHARD SKYBA AND WES
WAGNER, REPLY TO CROSS-ASSIGNMENT OF ERROR
TIM REEVES, ERIC SAUB, GREG BURNETT, as the Libertarian Party of Oregon; DAVID TERRY, M. CARLING and RICHARD BURKE, as members of the Libertarian Party of Oregon,
Plaintiffs-Appellants and Cross Respondents,
and
CARLA PEALER, as the Libertarian Party of Oregon,
Plaintiff and Cross-Respondent,
v. WES WAGNER, HARRY JOE TABOR, MARK VETANEN, BRUCE KNIGHT, JEFF WESTON, JIM KARLOCK, and RICHARD SKYBA, individuals and LIBERTARIAN PARTY OF OREGON,
Defendants-Respondents, and Cross-Appellants,
and
JOSEPH SHELLEY,
Defendant.
Clackamas County Circuit Court Case No. CV 12010345 Appellate Court Case No. A155618
April 2015
Appeal from the General Judgment of Dismissal entered on October 25,
2013, and the Supplemental Judgment entered on May 30, 2014, in the
Circuit Court of Clackamas County by the Honorable Henry C. Breithaupt.
Colin Andries, OSB 051892
Andries Law Offices
1001 SW Fifth Ave., Suite 1100
Portland, OR 97204
(503)206-6002
Attorney for Respondent and Cross-
Appellants Bruce Knight, Harry Joe
Tabor, Mark Vetanen, Jeff Weston,
Richard Skyba and Jim Karlock
C. Robert Steringer, OSB 983515
Harrang Long Gary Rudnick P.C.
1001 SW Fifth Ave., 16th Floor
Portland, OR 97204
(503)242-0000
Attorney for Respondent and Cross-
Appellants Libertarian Party of
Oregon
James E. Leuenberger, OSB 891542
James E. Leuenberger PC
4500 SW Kruse Way, Suite 100
Lake Oswego, OR 97035
(503)542-7433
Attorney for Respondent and Cross-
Appellant Wes Wagner
Tyler Smith, OSB 075287
Tyler Smith & Associates, P.C.
181 N. Grant St., STE 212
Canby, OR 97013
(503)266-5590
Attorney for Appellants and Cross-
Respondents
James L. Buchal, OSB 921618
Murphy & Buchal LLP
3425 SE Yamhill St., Suite 100
Portland, OR 97214
(503)227-1011
Attorney for Amici Curiae Oregon
Republican Party
i
TABLE OF CONTENTS
TABLE OF CONTENTS ...................................................................................... i
TABLE OF AUTHORITIES ............................................................................... ii
RESPONDENTS’ REPLY ................................................................................... 1
Summary of the Arguments Presented ................................................................. 1
Argument .............................................................................................................. 1
Conclusion ............................................................................................................ 4
ii
TABLE OF AUTHORITIES
Cases
Harrington v. Water Resources Dept., 216 Or App 16, 25, 171 P3d 1001 (2007)
........................................................................................................................... 3
Lucas v. Oregon Dept. of Transp., 168 Or App 593, 4 P3d 745 (2000) .............. 3
Statutes
ORS 183.310(6) ................................................................................................1, 2
ORS 183.310(6)(b) ............................................................................................... 1
ORS 183.482 .....................................................................................................1, 3
ORS 183.484 .....................................................................................................1, 3
ORS 246.110 ......................................................................................................... 2
1
RESPONDENTS’ REPLY
Summary of the Arguments Presented
It is undisputed that a Secretary of State’s final order is subject to the
judicial review procedures of ORS 183.484. Despite Plaintiff’s arguments to
the contrary, the Secretary of State did issue a final order subject to these
review procedures. By failing to file for judicial review within the 60 days
mandated by ORS 183.482, Plaintiffs lost the chance for review and lack
subject matter jurisdiction for the current complaint.
Argument
In Plaintiff’s Combined Reply Answering Brief and Response to
Defendant-Respondents and Cross Appellants’ Harry Joe Tabor, Mark Vetanen,
Bruce Knight, Jeff Weston, Jim Karlock, Richard Skyba, and Wes Wagner
Cross Assignment of Error (“Plaintiff’s Response”), Plaintiffs did not address
or dispute Defendant’s argument that final orders, as defined in ORS
183.310(6)(b), are required to be reviewed through the process set forth in the
Administrative Procedures Act (the “APA”). Further, Plaintiffs do not dispute
that a petition for review of a final order is required to be filed within 60 days
following the date the order is served. ORS 183.482. Plaintiffs do, however,
contend that the current complaint is solely between two private parties and that
the Secretary of State did not, nor did it have the authority to, adjudicate the
2
issues raised in Plaintiff’s complaint. The reality is that at the behest of
Plaintiffs, the Secretary of State did issue a final order in this case. As a result,
Plaintiff’s sole remedy was through the review process set forth by the APA.
Because Plaintiffs did not seek a remedy through the APA they now lack
subject matter jurisdiction to bring this action.
Plaintiff’s first, and most common, argument is that the Secretary of State
did not adjudicate the issues contained in the complaint. As Plaintiffs
previously stated, “The crux of this lawsuit is about which group of officers is
the legitimate leadership of the Libertarian Party of Oregon.” SSER-22.
Despite Plaintiff’s arguments about bylaw amendments, lost memberships, and
organizational leadership, the complaint comes down to the fact that “there can
be only one recognized political party as the LPO.” Pg. 7, Plaintiff’s Response.
In its September 29th Final Order, the Secretary of State, as the chief elections
officer in the state, made a ruling that went to the heart of this case. ORS
246.110. By recognizing Defendant’s candidate, and continuing to recognize
Defendants as the Libertarian Party of Oregon, the Secretary of State issued a
ruling that qualifies as a final order under ORS 183.310(6)(a) and (b).
Plaintiffs further contend that the Secretary of State did not have the
authority to adjudicate the matter. However, that is an argument that needed to
be raised during a review of the final order, not in a separate lawsuit for
declaratory judgment. The court has repeatedly held that “when judicial review
3
under the APA is available, then that review is the sole method for challenging
an agency’s action.” Harrington v. Water Resources Dept., 216 Or App 16, 25,
171 P3d 1001 (2007). In Lucas v. Oregon Department of Transportation, 168
Or App 593, 4 P3d 745 (2000), Plaintiffs unsuccessfully sought a declaratory
judgment even though administrative remedies were available. As the court
stated, “By seeking a declaratory judgment rather than using the available
administrative procedures, plaintiffs attempted to short circuit that
determination. That is something they may not do.” Id. at 748. In this situation
judicial review was available to Plaintiffs under ORS 183.484. If Plaintiffs
disagreed with the order, or believed the Secretary of State did not have the
right or lacked authority to issue the order (which would be odd considering
that Plaintiff’s attorney requested the order), then they had 60 days to request
judicial review. ORS 183.482. The 60 days lapsed and thus Plaintiffs claims
are not timely.
Finally, Plaintiffs argue that this is a dispute between private parties
about corporate bylaws and that a government actor is not involved. Plaintiffs
primarily base this premise on the fact that they have not named the Secretary
of State or the State of Oregon as a party to the complaint. However, simply
ignoring the existence of the final order does not make it go away. Plaintiffs
sought a declaration from the Secretary of State as to whom the State of Oregon
would recognize. By purposely seeking this determination, Plaintiffs made the
4
Secretary of State a party to this dispute. Plaintiffs had an opportunity to
review and dispute the final order, but the time lapsed and Plaintiffs cannot
recreate the issue by ignoring the final order and not naming the Secretary of
State as a party to the litigation.
Conclusion
For the foregoing reasons and those stated in Defendant’s Cross-
Assignment of Error, Defendants respectfully request that this court reverse the
circuit court’s denial of Defendants’ Rule 21 Motion for lack of subject matter
jurisdiction.
DATED this 27th day of April, 2015.
Respectfully submitted,
By: /s/ Colin G. Andries By: /s/ James E. Leuenberger
Colin Andries, OSB# 051892 James E. Leuenberger, OSB 891542
Andries Law Offices James E. Leuenberger PC
[email protected] [email protected]
Attorney for Respondent and Attorney for Respondent and Cross-
Cross-Appellants Bruce Knight, Appellant Wes Wagner
Harry Joe Tabor, Mark Vetanen,
Jeff Weston, Richard Skyba and
Jim Karlock
CERTIFICATE OF COMPLIANCE
WITH BRIEF LENGTH AND
TYPE SIZE REQUIREMENTS
Brief Length
I certify that (1) this brief complies with the word-count limitation in ORAP
5.05(2)(b) and (2) the word count of this brief (as described in ORAP 5.05(2)(a)) is
808 words.
Type Size
I certify that the size of the type in this brief is not smaller than 14 point for
both the text of the brief and footnotes as required by ORAP 5.05(4)(f).
Dated: April 27, 2015.
/s/ Colin G. Andries
Colin Andries, OSB# 051892
Andries Law Offices
1001 SW Fifth Ave., Suite 1100
Portland, OR 97204
(503)206-6002
Attorney for Respondent and Cross-Appellants Bruce
Knight, Harry Joe Tabor, Mark Vetanen, Jeff Weston,
Richard Skyba and Jim Karlock
Page 1 – CERTIFICATE OF FILING AND SERVICE
CERTIFICATE OF FILING AND SERVICE
I certify that on April 27, 2015, I filed the foregoing DEFENDANT-
RESPONDENTS AND CROSS-APPELLANTS’, HARRY JOE TABOR,
MARK VETANEN, BRUCE KNIGHT, JEFF WESTON, JIM KARLOCK,
RICHARD SKYBA AND WES WAGNER, REPLY TO CROSS-
ASSIGNMENT OF ERROR with the Appellate Court Administrator by using the
eFiling system.
The following participants in this case are registered eFilers and will be
served via the electronic mail function of the eFiling system.
Tyler Smith, OSB 075287
Tyler Smith & Associates, P.C.
181 N. Grant St., STE 212
Canby, OR 97013
(503)266-5590
Attorney for Appellants and Cross-
Respondents
C. Robert Steringer, OSB 983515
Harrang Long Gary Rudnick P.C.
1001 SW Fifth Ave., 16th Floor
Portland, OR 97204
(503)242-0000
Attorney for Respondent and Cross-
Appellants Libertarian Party of
Oregon
James E. Leuenberger, OSB 891542
James E. Leuenberger PC
4500 SW Kruse Way, Suite 100
Lake Oswego, OR 97035
(503)542-7433
Attorney for Respondent and Cross-
Appellant Wes Wagner
James L. Buchal, OSB 921618
Murphy & Buchal LLP
3425 SE Yamhill St., Suite 100
Portland, OR 97214
(503)227-1011
Attorney for Amici Curiae Oregon
Republican Party
Page 2 – CERTIFICATE OF FILING AND SERVICE
Respectfully submitted,
/s/ Colin G. Andries
Colin Andries, OSB# 051892
Andries Law Offices
1001 SW Fifth Ave., Suite 1100
Portland, OR 97204
(503)206-6002
Attorney for Respondent and Cross-Appellants
Bruce Knight, Harry Joe Tabor, Mark Vetanen,
Jeff Weston, Richard Skyba and Jim Karlock
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
SECOND SUPPLEMENTAL
EXCERPT OF RECORD
TIM REEVES, ERIC SAUB, GREG BURNETT, as the Libertarian Party of Oregon; DAVID TERRY, M. CARLING and RICHARD BURKE, as members of the Libertarian Party of Oregon,
Plaintiffs-Appellants and Cross Respondents,
and
CARLA PEALER, as the Libertarian Party of Oregon,
Plaintiff and Cross-Respondent,
v. WES WAGNER, HARRY JOE TABOR, MARK VETANEN, BRUCE KNIGHT, JEFF WESTON, JIM KARLOCK, and RICHARD SKYBA, individuals and LIBERTARIAN PARTY OF OREGON,
Defendants-Respondents, and Cross-Appellants,
and
JOSEPH SHELLEY,
Defendant.
Clackamas County Circuit Court
Case No. CV 12010345
Appellate Court Case No. A155618
1
SECOND SUPPLEMENTAL EXCERPT OF RECORD
INDEX
Relevant Portions of Plaintiffs’ Motion To Expedite Trial…… SSER 21-22
SSER - 21
SSER - 22