[Lnc-business] My comments on the Judicial Committee's actions

Tue Sep 15 20:05:47 EDT 2015

Having read the recent Judicial Committee decision regarding Oregon, and
Nick Sarwark’s response, I have several comments to make:

1. HISTORICAL CONTEXT

The fundamental dispute in 2011 was over the LNC Executive Committee’s
motions which (1) recognized that the state Bylaws in effect since March
15, 2009 were in fact the Bylaws of the Libertarian Party of Oregon; and
(2) that based on those Bylaws and the available evidence, the slate of
officers led by Tim Reeves were in fact the officers of the LPO.  It was
the position of the LNC that no disaffiliation had taken place; the LPO
remained the state affiliate, and the LNC was simply identifying who the
legitimate officers were.  The Judicial Committee (including as one of its
members Nick Sarwark) instead ruled by a 4-3 vote that the LNC had
“constructively disaffiliated” the LPO, and that the state affiliate was
whoever the Oregon Secretary of State recognized as the state affiliate.

The Oregon Secretary of State’s office understandably did not want to be
caught in the middle of an intra-party dispute.  The SoS’s default position
was that it recognized whoever the last known Chair of the LPO reported to
them to be the current or new Chair.  When that failed to resolve matters,
the SoS issued a brief letter on September 29, 2011 (see attached) which
said *“We understand that 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.”*  On that basis, the SoS continued its
default position of recognizing Wagner as the Chair of the LPO.

The Judicial Committee has now rescinded the Judicial Committee decisions
of August 25, 2011 and September 23, 2011, and ruled that *“Rescinding our
ruling in Wes Wagner vs. the Libertarian National Committee leaves standing
the 2011 decisions of the Libertarian National Committee and its Executive
Committee concerning the Libertarian Party of Oregon. Those decisions found
that on May 21, 2011, Tim Reeves was properly elected Chairperson of the
Libertarian Party of Oregon in accordance with the Constitution and Bylaws
of the Libertarian Party of Oregon then in effect.”*

2. POTENTIAL PROCEDURAL DEFECTS

*Nick claimed*: *“**There are a number of procedural defects in how the
Judicial Committee came to meet, whether notice was proper, whether the
issue they took up was actually authorized by the Bylaws, whether the
explicit enumeration of causes in the Bylaws precludes rescinding a prior
decision four years after the fact, etc.  Any one or more of those would
make the decision we received invalid.”*

*My response*: Although Nick does not spell out details of those claimed
defects, I’m sure there will be considerable argument by people on both
sides as to whether they exist.  Similarly, back in 2011 there was a great
deal of criticism (some of it from me) regarding procedural defects in the
original Judicial Committee’s actions.  In fact the Libertarian National
Committee passed a resolution by a 12-5 vote on November 21, 2011 in which
it expressed the *“**sense of the Libertarian National Committee that the
decision by four members of the Judicial Committee in its 4-3 declaration
regarding the Libertarian Party of Oregon constituted a violation of the
Libertarian Party Bylaws, and that the Judicial Committed has acted outside
of its limited authority, which is clearly and explicitly defined in the
Libertarian Party Bylaws”.  *The entire text of that resolution is attached.

Notwithstanding those procedural defects in the 2011 Judicial Committee
ruling and the LNC’s strong disagreement with the Judicial Committee’s
actions, *the LNC nonetheless abided by that decision*.  The LP’s web site
lists the Wagner group’s web site under its Oregon page, and they have been
receiving data dumps from national.  I personally have supported that
position, and I also authored a resolution immediately after the last
national convention which tried to tamp down the controversy over the
credentialing of delegates in the Oregon delegation by expressing the *“**sense
of the Libertarian National Committee that it wishes to convey its regrets
to Libertarian Party of Oregon.”*  The entire text of that resolution is
also attached.  It required a lot of wordsmithing and compromising to come
up with language which could obtain a majority, but in the end I managed to
get a 9-7 vote in its favor.

*Regardless of whether we agree or disagree, the LNC needs to abide by the
Judicial Committee’s decisions.*  Under our Bylaws there is no higher body
to appeal to, other than the next national convention which has the power
to alter the Bylaws and elect a new Judicial Committee.

3. DIRECT EFFECTS OF JUDICIAL COMMITTEE’S DECISION

As noted above, the Judicial Committee specifically stated that its
rescission “*leaves standing the 2011 decisions of the Libertarian National
Committee and its Executive Committee concerning the Libertarian Party of
Oregon*.  That means that there was no “constructive disaffiliation” and
that the LPO Chair at that time was Tim Reeves, not Wes Wagner.  It also
voids the Judicial Committee’s finding in 2011 that *“the Libertarian Party
of a particular state, in this case the State of Oregon, is the entity that
is recognized by the secretary of state, in this case the Secretary of
State of Oregon.”  *And it voids the JC’s 2011 assertion that *“the LNC
must by default recognize the affiliate representatives that are currently
recognized by the affiliate’s secretary of state, and that it would take an
exercise of LNC’s 6.6 disaffiliation power to do otherwise.”*

So where does that leave us now?  Based on the JC’s latest decision, Lars
Hedbor is not currently the Chairperson of the Libertarian Party of Oregon,
since he has not been elected under the rules and procedures of the LPO
Bylaws which the LNC Executive Committee’s motion recognizes as being in
effect.  And Tim Reeves no longer is the LPO Chair.

The Judicial Committee’s current decision suggests that *“common sense
would indicate that any process that respects the Bylaws of the Libertarian
Party of Oregon (the March 2009 Bylaws until March 9, 2013 and the March
2013 Bylaws thereafter) should produce a legitimate successor to Tim Reeves
as Chairperson.”*  And that may well be “common sense”.  But note that the
Judicial Committee carefully refrained from identifying who that
“legitimate successor” is.  Maybe it’s Ira Epstein, if indeed he was
elected Chair according to the LPO Bylaws currently and legally in effect.
It’s an internal matter for the Libertarian Party of Oregon to determine,
and the only way it would reach the LNC is if that determination is
seriously called into question.  In that case the LNC will have to identify
the correct LPO officers and web site for the purposes of sending data
dumps and listing the LPO web site on the national page.  (As the JC noted,
Bylaws Articles 6, 8, 11, and 12 also contain provisions which require such
identification.)

The immediate actions which I believe should be taken are as follows:

   - The Secretary of the Libertarian Party should convey the information
   to the Oregon Secretary of State’s office that the Judicial Committee has
   rescinded the previous decision that “*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*.”
   - The national office should delete http://www.lporegon.org/ from its
   http://www.lp.org/state/oregon page, and cease sending data dumps to the
   individuals listed at http://www.lporegon.org/index.php/state-committee.
   - Let’s remember that there was a third motion in 2011: *“The Executive
   Committee of the Libertarian National Committee urges the members of the
   Libertarian Party of Oregon to work together to resolve their
   disagreements.” *How about if we make one more stab at implementing that?
   Maybe we can find one or more people to serve as neutral arbitrators or
   facilitators, who would be acceptable to both factions (I can think of some
   possibilities).  There’s a huge amount of bad blood and personality
   conflicts on both sides, so it would probably be best not to include Tim
   Reeves, Wes Wagner, Richard Burke, and perhaps others who I’m not familiar
   with in the negotiations.  To the extent that the LNC will be involved,
   we should also exclude Nick Sarwark and Alicia Mattson.

4.  CONCLUSION

We are all sick and tired of dealing with the Oregon dispute, and wish it
would just go away.  But it isn’t going away.  I don’t hold out a lot of
hope that further negotiations or arbitration can produce an acceptable
solution, but I think it’s at least worth another shot.

Daniel Wiener
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