1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 IN THE CIRCUIT COURT OF THE STATE OF OREGON FOR THE COUNTY OF WASHINGTON DANIEL A. BERNATH, Petitioner, vs. JOHN LILYEA, Respondent. ) ) ) ) ) ) ) ) ) No. C140741RO TRANSCRIPT OF PROCEEDINGS BE IT REMEMBERED THAT, the above-entitled matter came on regularly for hearing before the Honorable Thomas Raymond Rask, III, Pro Tem Judge of the Circuit Court of the County of Washington, State of Oregon, commencing on the 29th day of May, 2014.
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IN THE CIRCUIT COURT OF THE STATE OF OREGON
FOR THE COUNTY OF WASHINGTON
DANIEL A. BERNATH,
Petitioner,
vs.
JOHN LILYEA,
Respondent.
)))))))))
No. C140741RO
TRANSCRIPT OF PROCEEDINGS
BE IT REMEMBERED THAT, the above-entitled matter
came on regularly for hearing before the Honorable Thomas
Raymond Rask, III, Pro Tem Judge of the Circuit Court of
the County of Washington, State of Oregon, commencing on
the 29th day of May, 2014.
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APPEARANCES:
APPEARING FOR THE PETITIONER(S)
Daniel A. Bernath10335 SW Hoodview DriveTigard, OR [email protected]
APPEARING FOR THE RESPONDENT(S)
Roderick A. BoutinBoutin & Associates5005 Meadows Road, Suite 405Lake Oswego, OR [email protected]
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Witness Index
D X
For the Petitioner:
John Lilyea 31
Daniel Bernath 53 60
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P R O C E E D I N G S
THE COURT: Daniel Bernath, Petitioner, and
John Lilyea, Respondent, Case Number C140741RO.
MR. BOUTIN: Good morning, Your Honor.
THE COURT: Good morning.
MR. BERNATH: [Indiscernible] over there.
THE COURT: Yes, that's right.
MR. BOUTIN: Good afternoon, Your Honor.
Rod Boutin representing Mr. Lilyea, Respondent. And I have
two preliminary motions.
THE COURT: Okay. And I understand your
client will be appearing by phone, correct, Counsel?
MR. BOUTIN: That is correct.
THE COURT: Okay.
MR. BOUTIN: We are advised by the clerk to
stand by before we got him on the phone, so we haven't
called him yet. Perhaps we could deal with preliminary
matters first.
THE COURT: Did you want to proceed without
your client -- That's fine, if you're fine doing that, we
can deal with the preliminary matters first.
Petitioner, Mr. Bernath, I want to just
confirm, you're representing yourself, correct?
MR. BERNATH: Yes. I'm a California lawyer,
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and I will advise myself on any issue of Oregon law.
THE COURT: All right. So why don't we take
up your preliminary matters, Counsel.
MR. BOUTIN: Preliminary matters are
twofold, Your Honor. Both of them are motions to dismiss
this proceeding.
One of them, the basis for one is that my
client is a resident of West Virginia. And by offer of
proof, we can put him on the stand if necessary, but it's
recited in the petition in this case that my client was a
resident of West Virginia, we'll accept that as true, as he
is, and my client has never been in Oregon. He's not
subject to the jurisdiction of the Court.
So that would be the first basis to dismiss
this proceeding, the Court does not have jurisdiction over
Mr. Lilyea. Never having been in Oregon, he's not subject
to the jurisdiction.
The second is whether -- in order to proceed
and have relief under the statute, Mr. Bernath as
petitioner needs to be a resident in this county, it being
accepted by his allegation that Mr. Lilyea is not a
resident in this county.
I have for the Court a copy of a declaration
Mr. Bernath filed two weeks ago in Clackamas County Circuit
Court, Case Number CV14040431, but I'll hand the Court this
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copy of his declaration as well as the 500 pages of
exhibits that were filed with his declaration, and draw the
Court's attention to the following specific points, which
go to the issue of whether or not Mr. Bernath is a resident
of this county and therefore eligible for relief sought
here today.
On the beginning of the second page --
excuse me, of the second paragraph of the first page,
Mr. Bernath makes the statement, Defendant -- and he is the
defendant in this proceeding in Clackamas County Circuit
Court -- this is his motion to quash service of summons
made in Washington County.
He makes the statement in his declaration,
"Defendant lives, dwells, his domicile's in Florida." I
direct the Court's attention to page 2, he makes the
statement, this is at line 31, "I am a natural person. I
reside and am domiciled in Fort Myers, Florida. Florida is
my home and my domicile."
On page 37 -- line 37, that same page too,
Your Honor, he makes the statement, "I have lived and been
domiciled in Florida since November 3, 2013, approximately,
by relation."
Direct the Court's attention further to line
60 -- 59, 60 on page 3 of the declaration. Mr. Bernath
makes the statement, "I come to Oregon to wrap up little
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matters here after my domicile here ended," referring to
his ending his domicile in Oregon.
And on page 14, line 232 to line 235, he
makes the statement in his declaration, he says that he
served a dwelling in a domicile, Fort Myers, Florida
resident, by substitute service on an unidentified person
at a mailbox inside of a shipping store -- and this is the
operative phrase of this awkward sentence "-- 3,000 miles
away from where I dwell."
This reference is to substitute service that
was made in this Clackamas County case. Mr. Bernath's
mailbox drop in Tigard that he was using at the time, but
his statement is that that mailbox drop is 3,000 miles away
from where he dwells. And that's lines 232 to 235 which
appear on 14.
So the point of which is that he's not
entitled under the statute to proceed in this court on this
matter if he's not domiciled in Washington County.
Two weeks ago, he filed a declaration in
Clackamas County Circuit Court to quash service, saying
[indiscernible] places that he's not domiciled here, he's
domiciled in Florida. So on the strength of his
declaration, I move the Court to dismiss this proceeding.
THE COURT: Okay. And, Counsel, you may
proceed with your response.
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MR. BERNATH: Thank you, Your Honor.
Just as Counsel didn't know where to sit, he
didn't read Oregon Revised Statute 124.010 (3) which states
moving does not affect [indiscernible]. In order to
petition for relief under the Disabled Persons and
Terrorized Act, he is not effectively the only person or
person with a disability that has left the residence or
household to avoid abuse, and that's what we have done.
Lilyea says that he is in West Virginia.
Either he or his agent is terrorizing me and my family to
the point where my wife has heart palpitations, and I've
broken down in stress related shingles.
But on 3/16/14, there was a knock at my
door -- This is after Lilyea began his terrorism -- no
one's there. I see bushes moving. At 3:50 the same day, I
get to the door, there's no one there after a knock, no
message, no deliveries. Sunday, I see the bushes moving.
5/11, the same.
5/12/14 at 1:29, I hear a knock, no one's
there. I later in the day hear a knock on the glass, it
was a light knock, knock, knock. 5/23/14 at 1:15, I hear a
loud knock at my front door, look out, there is no one
there. I get a phone call from his agent saying he's going
to get me. He hangs -- I hang up on him, he has a -- he
calls me back.
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Through his abilities to -- He is in Oregon.
He's contacted the National Veterans of Foreign War, they
have me expelled. Lilyea has contacted the local VFW post
in Tualatin to have me expelled, he contacted KGW
Television, city, Portland.
He contacted The Oregonian reporter Bryan
Denson, the crime reporter, who forwarded me with 10 to 20
emails about my fraud he's going to publish tomorrow, what
have you got to say. And Lilyea comments, we're ready to
go live on Bernath.
Oh. He contacted Lars Larson in Portland,
Oregon, and they called me a fraud on the local TV -- radio
show, TV or radio, and then they went nationwide and called
me a fraud and terrorized me there.
They had a WANTED poster published in the --
Lilyea and his agents said they're going to put those
posters --
I haven't finished, Counsel. Would you sit
down till I finish?
They blurted out --
MR. BOUTIN: Your Honor, the issue at this
point --
[Indiscernible].
MR BERNATH: -- WANTED posters around --
THE COURT: Hold on.
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MR. BERNATH: -- the City of Portland.
THE COURT: Hold on. Petitioner, let me
stop you for a second. I appreciate you feel strongly
about what your contentions are as to why you filed the
restraining order.
What I want to focus, though, your argument
on, so what we're hearing now is just a preliminary matter
of jurisdiction and domicile, so I want to focus on that.
MR. BERNATH: Okay. Could I speak to that?
THE COURT: Yes, you may address that.
MR. BERNATH: Okay. As the Supreme Court
says, I can be a resident of many places but only domiciled
in one. So I'm domiciled in Florida because that is where
I intend to remain, however, I'm also a resident of Oregon
and other states as well. So that does not deprive me of
jurisdiction to protect myself under the statute.
And then the statute that I read, the right
to petition does not -- my rights under the statute does
not change if I escape to stop the abuse.
So that would be my comments, Your Honor.
THE COURT: Well, let me ask a few questions
about what I see in the petition. I want to verify some
things, and we'll maybe hear some more argument.
But, Petitioner, on your documentation, you
indicate you're residing in Washington County, and you list
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an address.
MR. BERNATH: Yes.
THE COURT: Are you currently residing in
Washington County at that address?
MR. BERNATH: Yes.
THE COURT: Okay. And this -- And how long
have you been residing at that address?
MR. BERNATH: Since 1994 or '95, as well as
other places.
THE COURT: And you've been continuously
residing at that address?
MR. BERNATH: No.
THE COURT: When you say "other places,"
what do you mean? Explain to me how often you've been
there, let's say, in the last year.
MR. BERNATH: Let's say nine to ten months.
THE COURT: And you allege in your petition
that the events surrounding why you believe you're entitled
to the continuation of this restraining order, all the
allegations you make relate to what happened at your
premises where you were residing in --
MR. BERNATH: Yes.
THE COURT: -- Washington County?
MR. BERNATH: Yes. Although, in all 50
states --
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THE COURT: I'm just talking about what's
happened here.
MR. BERNATH: Yes.
THE COURT: Let me just -- so the -- Okay.
The other thing I noticed on the petition, you acknowledge
that the respondent is residing in West Virginia, that's
what you put in your petition.
MR. BERNATH: I don't know, but still,
either he's been here or he uses agents here. That's
something you can ask him.
THE COURT: But on the petition you filed
with this Court, you list that Respondent is a resident of
Mineral County, State of West Virginia.
MR. BERNATH: Well, I would move to amend
that because I took that information and belief, and I had
no personal knowledge that he lives there.
He made a motion that he not appear here
because he had to be close to his medical team, and then he
went -- he travelled to Washington, DC. So I don't...
And then a judge in Montgomery County,
Maryland said that he had lied in his testimony, so I don't
think that we should take anything he says at face value
based on [indiscernible].
THE COURT: Well, I'm just talking about
what you filed with the Court.
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MR. BERNATH: Well, I would amend that to
say that upon information and belief from somebody that a
judge in Montgomery County called not truthful.
THE COURT: So --
MR. BOUTIN: Your Honor, I would like to
object to that reference.
THE COURT: So noted.
MR. BERNATH: I'll present that, what the
judge said in Montgomery County.
THE COURT: Well, we'll cross that bridge in
a little bit.
What I want to make sure of is the
allegations that you're referring to, the knocking on the
door that you talked about earlier, you believe that was
the respondent here in Washington County knocking on your
door.
MR. BERNATH: Yes.
THE COURT: And your testimony you're going
to present is that you physically saw the respondent
knocking on your door?
MR. BERNATH: No, I didn't see anybody
knocking on my door.
THE COURT: Okay.
MR. BERNATH: But looking at ORS 124.020 9
(c), the contested hearing is not limited to issues raised
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PACE REPORTING503.655.4183
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in the request for hearing form. So apparently I can amend
that form, and I would now amend it to say, upon
information and belief from John Lilyea, who other people,
not me, has said is untruthful, I would now amend it to say
John Lilyea says he's a resident of West Virginia.
THE COURT: Counsel, was your client served
with this restraining order?
MR. BOUTIN: My client was served on April
19th by the sheriff in Mineral County, that is correct,
Your Honor.
THE COURT: Sheriff of which County?
MR. BOUTIN: Mineral County, West Virginia.
MR. BERNATH: I also want to make a motion
that this is so detailed that I would request that this be
a noticed motion so that I could refute all these sudden
things that he threw at me.
This doesn't seem at all like a due process
of law, in compliance with, because he could have told me
all these things weeks ago when he asked for the hearing,
and now he's bringing it up. And I'm sitting here tap
dancing, trying to help the Court make a decision. I think
we should have a noticed motion.
THE COURT: Well, I do want to address that
issue, because I think that's an important point.
And, Counsel, I do want to address that in
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terms of -- I mean, I appreciate these are expedited
processes with the fact document, the way things normally
go, but I'm concerned that both sides -- I mean, I've not
been -- I've not received any pleadings from you, and I
don't know that I assume you're filing any in these
motions, but that would be helpful for the Court to see any
law that you think is applicable that would apply that
might be helpful to give the other side a chance to
respond.
And I am concerned about hip-shooting an
issue that the Court doesn't see very often in terms of
jurisdiction and in terms of domicile versus residence.
And to the extent that the petitioner may
have a point, you can be domiciled in one place and reside
in others, I'm sensitive to that issue. And, I guess, why
don't you let me know, I'd like to hear from you on what
did Petitioner get in terms of notice about this motion, if
any?
MR. BOUTIN: As to whether or not this is a
matter of surprise, the Court should have in the Court file
the opposition. We initially filed a motion for appearance
by telephone, creating a record that Mr. Lilyea has
advancing ALS disease, difficulty standing, difficulty
walking.
I will advise the Court that he can stand as
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long as he doesn't move. If he seeks to ambulate around
his house, he uses his walker. If he seeks to use -- if he
needs to leave his house, he travels by wheelchair.
In response to that motion for permission to
appear by phone, Mr. Bernath filed an opposition motion,
which the Court should have in the Court's file.
THE COURT: Okay.
MR. BOUTIN: So none of this is a surprise
to Mr. Bernath.
Mr. Bernath goes on at great length, talking
about Mr. Lilyea, who resides in his home in West Virginia,
a trip that Mr. Lilyea made to the White House to attend a
medal of honor ceremony. He includes photographs that
Mr. Lilyea took at the White House, showing the president
and a medal of honor recipient, he includes photographs of
Mr. Lilyea in his wheelchair --
MR. BERNATH: Can I get through this
irrelevant --
THE COURT: Hold on. Let me hear what he
says.
MR. BOUTIN: -- while in Washington, DC. He
includes Mapquest instructions for Mr. Lilyea's home to the
White House showing how long it would take and what route
of travel it would take for Mr. Lilyea and his travel
companions to make that drive from his home in West
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Virginia to the White House. He --
THE COURT: So, let me interrupt, Counsel.
You're suggesting that the issue of his
residency in West Virginia is not an issue of surprise to
Petitioner?
MR. BOUTIN: Clearly, yes, Your Honor, that
is correct.
THE COURT: How about the other issue
regarding -- because you made two arguments, one is about
the residency of the domicile of the respondent, the other
is about the petitioner. Has that issue been argued or
raised to the point that Petitioner would be on notice of
that?
MR. BOUTIN: It has not been specifically
briefed. I believe the statute is very clear that the
petitioner has the burden of proof on all issues created
under the statute; all issues created under the statute, he
has his burden of proof.
He's filing sworn statements in other
litigation, and there's quite a bit of litigation that
Mr. Bernath is involved in, the US District Court,
Multnomah County Circuit Court, Clackamas County Circuit
Court, I believe this last matter in Washington County
Circuit Court was resolved last month. But he's got a
sworn statement that says he does not reside, and therefore
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he seeks to quash service of summons in the Clackamas
County case.
So if he -- if it's a matter of convenience
at any given time to adopt a certain version of the facts,
then that may be his view, but it's his obligation to get
to the point that Your Honor made, it's his obligation to
prove every element of his case, and it should not be a
matter of surprise that he has to do that.
And he's making declarations to the Court in
other litigation that he doesn't reside here. If he
doesn't reside here, he does not qualify for relief under
the statute.
MR. BERNATH: Okay. I do reside here, but
that's not the point of his speech.
The Court specifically asked him, and this
was -- If you remember, ten minutes ago, please tell me if
this is brand new, you're hitting Bernath on the side of
the head here in court for the first time --
THE COURT: Well, let me interrupt, Counsel.
That's not what I said.
What I'd like to know is what notice do
people have about the issues being raised?
MR. BERNATH: I'm sorry. I'm -- I was a
little too colorful.
THE COURT: No.
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MR. BERNATH: And I would retract that.
Could I?
THE COURT: And I understand -- No.
And, I mean, let me stop you. I appreciate
it, I don't -- I want to get to the bottom of it, if
possible, today, to move this along.
MR. BERNATH: Well, I --
THE COURT: I do agree that it seems pretty
apparent that the issue about West Virginia, the residency
of the respondent is not a surprise issue, your own
petition said he lives in West Virginia. So everyone seems
to acknowledge that's not the issue.
The second argument being made by Counsel
relates to your residency. That is, it sounds like, a new
issue. My question, then, and I have to make a decision on
this, is that an issue that is of such a nature to preclude
us moving forward, or whether or not we can move forward
hearing the evidence on the restraining order, granting the
parties a chance to respond both in brief form and
potential evidence about this residency issue, and then
make a determination.
And I think where the Court's inclined to go
at this point is along that line, meaning, I'm going to
reserve judgment on the issues raised. I'm going to wait
and determine whether or not they are applicable to the
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case in the course of the evidence presented.
I find that the issue in terms of surprise,
if that's -- to use that word, that it -- well, that we
will proceed with the arguments presented by both, the
evidence on the issue of residency and domicile on both
parties.
I will, at the end of the closing of the
evidence, entertain the requests by either side to leave
the record open for further briefing if there's a legal
question that needs to be briefed.
But in terms of the residency, I do agree
with the respondent. It's your job, Petitioner, to meet
the elements of the statute. So they're questioning your
residency, you've got the burden of proving it.
I'm not going to rule on the motion now
because I'm going to give you a chance to present evidence
on that, and then we'll cross that bridge about whether any
further motions or record need to be open for other
briefing or evidence, but I think at this point we're going
to proceed.
So let me ask Petitioner, do you have any
witnesses to call besides yourself?
MR. BERNATH: Yes. John Lilyea.
THE COURT: Okay. And, Counsel, you've got
your client on the phone to call in. Other than him, do
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you have any other witnesses to call?
MR. BOUTIN: No other witnesses at this
point, subject to rebuttal witnesses. We'll have to see
how all that goes.
We don't have him on the phone yet. We were
advised to wait until we were instructed by the Court to do
that.
THE COURT: Right. So let's get him on the
phone, Cheryl.
THE CLERK: I called him.
THE COURT: [Indiscernible].
THE CLERK: [Indiscernible].
THE COURT: One and a half to two hours, and
three to four witnesses. Thank you. So one of the --
THE CLERK: [Indiscernible].
THE COURT: Okay.
MR. BOUTIN: Your Honor, my paralegal is
with me here today. Can she join me at counsel table?
THE COURT: Sure.
MR. BOUTIN: Thank you.
MS. CLAYTON: Hi, John. I'm going to give
you a number and ask you to call in to the Court. The
number is 1-503-846-2268.
THE COURT: He'll be able to answer
[indiscernible], right.
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MS. CLAYTON: Yeah. That's correct. Please
call in right now. Thank you.
Your Honor?
THE COURT: Yes.
MS. CLAYTON: May I approach, please.
THE COURT: Yes, you may.
Counsel, we'll work on Judge Latourneau to
sort out the scheduling, so we'll keep you posted as we
hear.
A VOICE: [Indiscernible].
THE COURT: Right.
Hello, Mr. Lilyea?
MR. LILYEA: Yes, it is.
THE COURT: Yes. This is Judge Rask.
You've got -- we've got you on speaker here in the
courtroom, we have started with the proceeding. Your
counsel is present, along with the opposing party, and
we're going to proceed with the hearing.
So at this point, until you're called as a
witness, you may just remain on the phone. I would ask you
to raise your right hand to be sworn.
MR. LILYEA: Yes, sir, it's raised.
THE COURT: Okay. Let's swear in this
witness.
/////
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JOHN LILYEA,
having first been sworn or affirmed, was examined and
testified under penalties of perjury as follows:
THE CLERK: If you can please spell and
state your full name for the record.
MR. LILYEA: My name is John Victor Lilyea.
THE COURT: Thank you, Mr. Lilyea.
And before we proceed, Petitioner, will you
please raise your right hand to be sworn as well, since
you're going to provide testimony today.
DANIEL BERNATH,
having first been sworn or affirmed, was examined and
testified under penalties of perjury as follows:
THE CLERK: If you can please spell and
state your full name for the record.
THE WITNESS: Daniel A. Bernath, Daniel the
usual way, Bernath is B E R N A T H.
THE COURT: Okay. Thank you.
So we'll proceed with your -- The way we
normally proceed on matters of this nature is that the
petitioner will go forward to prove they can establish and
need to continue the restraining order and meet the
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elements, at that point the burden will then shift to the
respondent to provide evidence as to why they believe the
elements have not been met or other evidence as to why it
shouldn't be continued.
So we'll start with Mr. Bernath. And you
can present, since you're testifying for yourself -- Do you
have a witness here in the courtroom?
MR. BERNATH: No.
THE COURT: Is your witness out in the hall?
MR. BERNATH: I have no witnesses, I have
Mr. Lilyea and I have documentary evidence --
THE COURT: Okay.
MR. BERNATH: -- from Mr. --
THE COURT: I misunderstood. I thought you
said you had a witness. Okay.
Then you may present your evidence.
You both -- you can waive opening argument
or have a brief opening argument.
MR. BERNATH: Well, here's my brief opening
argument.
THE COURT: Sure, then we'll do that.
Proceed.
MR. BERNATH: It will sound like I'm crazy
to tell you this.
A hearing officer at Social Security
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Administration attacked me four years ago, when I was
getting on an elevator. He has been terrorizing me for the
last four years.
He contacted John Lilyea and said to John
Lilyea, hey, look, this Dan Bernath fellow that I hate so
much is staking out that he's a chief petty officer in the
United States Navy, he never was, go get him.
Now, this group is known as a suicide
self-murder advocacy group of Vietnam Veterans. And you
think I'm crazy when I'm saying this. It's an association
of active duty US Army, Navy, Coast Guard -- and I'll give
you all the evidence if you think I'm crazy -- plus retired
combat veterans who this judge in Montgomery County says,
you're a bunch of crazed veterans who haven't come down
from the war.
What they will do is pick a target and
terrorize them to death. They have murdered five people so
far.
THE COURT: Let me interrupt you, Mr.
Bernath.
I appreciate some background, but because of
the docket and the hearings --
MR. BERNATH: Let me move on.
THE COURT: Yeah. Here's what I want you to
do: You can present evidence, and we'll to get that. This
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is only opening, brief opening, focused on the allegations
you made in your petition, because that's all we're here on
today.
MR. BERNATH: Okay.
THE COURT: We're not here on someone being
murdered, thank goodness, we're not here on things outside
the scope of the petition. I can't hear things that
aren't --
MR. BERNATH: Well, let me get right to
that.
THE COURT: Go ahead.
MR. BERNATH: So, Dan Hyatt then contacted
John Lilyea. John Lilyea then went to his group who said,
let's make his life as miserable as hell, as possible.
John Lilyea went to this group and said, let's shame this
man, on and on and on.
Thereafter, all these things happened that I
spoke of, I guess, in my preopening statement. So what I'm
going to show the Court is that he clearly, Exhibit 1, made
this WANTED poster to make my life as miserable as possible
and shame me. And then all those other things occurred.
So that is the crux of this petition. He is
the leader, he is the person who controls them, he --they
all communicate with -- through this website. So that's
the beginning and end of my opening statement.
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Now what I'd like to do now, could I
approach the Bench with the --
THE COURT: Sure, you have exhibits and
copies for Counsel?
MR. BERNATH: He has the copies, he just
gave that to you.
THE COURT: Okay. On the --
MR. BERNATH: On the 500 things he
complained about, the pages.
So this is the -- I would ask the Court to
look at that, maybe get a long one, judge gets the rubber
band.
Now, Mr. Lilyea, you're there on the phone,
aren't you?
MR. LILYEA: I [indiscernible].
THE COURT: Hold on. No commentary to the
parties.
This is your case, put it on. You present
your evidence, there will be an option if you want to call
a witness. If I hear anything out of --
MR. BERNATH: He's my first witness.
THE COURT: Okay. Well, you're testifying
first, so give me your evidence. Then when you're done
testifying, we'll take another witness.
MR. BERNATH: Well, could I take him first?
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THE COURT: If you'd like to.
MR. BERNATH: All right. Mr. Lilyea, this
is --
MR. BOUTIN: Can I make my opening
statement?
THE COURT: Who wants -- Go again.
Yeah, I'd like to hear your opening.
MR. BOUTIN: The matters involving Judge
Hyatt and Mr. Bernath for which Mr. Bernath is criminally
convicted in US District Court --
MR. BERNATH: Objection, that's false.
THE COURT: Hold on.
MR. BOUTIN: -- are not the matter on which
we are here today.
Mr. Lilyea is an administrator of a website
called This Ain't Hell, which is a website that pays some
attention to people who they, in their vernacular, refer to
as valor thieves.
A few months ago, Mr. Bernath appropriated,
the evidence will be, appropriated a photograph of a chief
in the Navy, Photoshopped, to use the term, his head onto
this other person's image, which is a formal photograph
showing his chevrons of service, his chevrons of rank, his
medals that he received in his 18 years of service.
Mr. Bernath served a little bit less than
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PACE REPORTING503.655.4183
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four years as a photographer's mate on an aircraft carrier
during the Vietnam War.
People in the valor thief community took
exception to that. The evidence will be that the poster is
not something that Mr. Lilyea created.
I think we will acknowledge that the poster
appeared on this website. There are some 350,000 posts on
this website, but they are not from Mr. Lilyea.
The evidence will also be that Mr. Lilyea
has never been in Oregon, has never met Mr. Bernath, has
never attempted to contact Mr. Bernath other than an email
he sent a few months ago asking Mr. Bernath to stop
contacting him and otherwise contact me as his counsel, and
that he has done nothing to harass, threaten or intimidate
Mr. Bernath.
And further, as a quick point of procedure,
I do not have a copy of the exhibits that Mr. Bernath --
MR. BERNATH: Your Honor, I can show them --
THE COURT: Hold on.
MR. BOUTIN: He showed them --
THE COURT: If I hear an interruption again,
we're not going to continue this. You're a lawyer, you
know better. Wait.
Go ahead.
MR. BOUTIN: He did show them to me in
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advance of the hearing, but I do not have copies, so I may
ask to reference them during the course of the testimony.
THE COURT: That's fine. We'll work around
the copy problem.
MR. BERNATH: May I address those two
points?
THE COURT: I'm sorry?
MR. BERNATH: Could I address those two
points?
THE COURT: You're going to present your
evidence. This isn't an argument time, it's evidence.
MR. BERNATH: Okay. Well, I'll -- I'll
state under oath that I was not criminally convicted of
anything. I've been a California lawyer for 30 years.
THE COURT: Okay. Counsel, I want to
proceed in a way that's going to make this --
MR. BERNATH: Very good.
THE COURT: -- flow.
You've asked to call a witness, you said you
want to call Mr. Lilyea.
MR. BERNATH: I will do that. I'll do that
right now.
THE COURT: Okay. Then it will be clear,
that means you're not testifying yet, Mr. Lilyea is. So
let's go in an orderly flow.
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MR. BERNATH: Very good.
THE COURT: So if you want to call yourself
first, fine --
MR. BERNATH: No, I don't.
THE COURT: -- but if you want to call
Mr. Lilyea, that's fine. So let's call Mr. Lilyea first,
then.
Mr. Lilyea, are you present on the phone?
MR. LILYEA: Yes, I am.
THE COURT: Okay. The petitioner is going
to inquire of you questions that are relevant petitioner --
to the petition that's been filed.
And, Mr. Lilyea, you will be required to
answer them if I think they are appropriate and legal
questions to be asked. So we will proceed with the
inquiry.
Counsel, you may inquire of this witness.
MR. BERNATH: And I proceed under Oregon
Rule 40.180, routine practice.
DIRECT EXAMINATION
BY MR. BERNATH:
Q. Now, do you remember -- Could you address me as
Chief Petty Officer Bernath? I prefer to be called that.
Mr. Lilyea?
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A. Me? No, I won't. You're not.
THE COURT: Well, hold on a second.
THE WITNESS: I will call you Mr. Bernath.
THE COURT: Yeah. You're going to be called
Petitioner or Mr. Bernath, that's how we're going to
address Mr. Bernath.
Q. Okay. Why do you believe I'm not a chief petty
officer, honorary or otherwise?
A. Because I have your military records and you were
never promoted to that rank.
Q. Are you aware that the Sea Scouts have hundreds,
if not thousands, of chief petty officers of that club?
A. No.
Q. Are you aware that hundreds of yacht clubs in the
United States have commodores and chief petty officers?
Are you aware of that?
A. No.
Q. Are you aware --
MR. BOUTIN: Object to relevancy, Your
Honor.
THE COURT: Yeah. Mr. Bernath, we're going
to stick to the petition.
MR. BERNATH: Okay.
THE COURT: I mean, the evidence that you
need to provide to this court is evidence that shows that
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PACE REPORTING503.655.4183
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this respondent threatened to injure you or otherwise did
something to you with words or deeds that meets the
statutory requirement to continue the restraining order.
So we're not going to get caught up in the
debate about who posted what about you on the Internet,
whether it's true or not. That's not what's in this --
This has nothing to do with this matter.
MR. BERNATH: Okay. Well, let me --
THE COURT: You can't litigate the matter
here. All we can cover is do you meet the statute
requirements.
So you can ask him about the knock on your
door, you know, evidence you want me to solicit from him --
I mean, you can solicit from him about -- to meet statute
requirements, but that's it. So feel free to ask
questions, but they need to be focused on your petition.
MR. BERNATH: Very good.
BY MR. BERNATH: [Continuing]
Q. Now, I do want to ask you, did you testify in the
court, Karen Williams versus John Lilyea --
MR. BOUTIN: Objection, Your Honor.
THE COURT: Hold on.
What's the question? Let's hear the
question first. Testifying about what?
MR. BERNATH: Did -- I just -- You've seen
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the statute that I just spoke of about how he -- he's
acting in routine practice. And a judge has found that he
is dishonest, and he was accused of doing to Karen Williams
a few months ago the same thing he's accused of doing to
me, and that would be in his routine practice.
THE COURT: Okay. So you're trying to --
Why don't you ask a question, then, because I -- because
I'm not clear where you're going with it. So ask your
question and we'll decide about that objection. Go ahead,
ask your question.
BY MR. BERNATH: [Continuing]
Q. Did you call up a Paul Wicker and say you were
going to take a pick ax to his kneecaps and stick a shotgun
in his mouth?
MR. BOUTIN: Objection, Your Honor.
THE COURT: I'll allow it.
Answer the question, Mr. Lilyea.
THE WITNESS: No, I did not.
Q. Did you hear Karen Williams so testify under oath
in this court in Wasco, Maryland?
A. Yes, I heard it.
MR. BOUTIN: Your Honor, in order to
expedite, may I have a standing objection to this line of
inquiry?
THE COURT: Sure.
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MR. BOUTIN: Thank you, Your Honor.
THE COURT: Continuing objection.
Q. Okay. So --
THE COURT: So noted.
Q. Just threaten to decapitate his knees and head,
sawed-off shotgun in his mouth, page 98, line 7 through 8.
Does that refresh your recollection?
A. I admitted that I heard her say that, but I did
not say that.
Q. Did you say that you were going to defecate on
his mother -- his mother's grave?
A. No, I did not.
Q. Okay. Let's talk about what the Court said.
THE COURT: Mr. Bernath, I'm going to cut
you off here, because I still haven't heard you ask any
questions that are relevant to the petition in front of us.
MR. BERNATH: Okay. I'm trying to show that
he acted in character --
THE COURT: But --
MR. BERNATH: -- which was his habit of
terrorizing people who they picked on as a target.
THE COURT: Well, you need to show that he
did it to you. Showing he did it to somebody else isn't
going to cut it for -- I mean --
MR. BERNATH: Well, I don't want to argue
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with the Court, but 40.180 says I can talk about his habit.
THE COURT: Right. But habit requires more
than one time. Habit evidence is of a standard that is,
you know, birds fly south in the winter, and whether the
sun's going to rise in the morning. I mean, habit evidence
is of a certain nature.
This is not habit evidence, what you're
soliciting. You can't use a prior wrong to try to prove
this wrong.
MR. BERNATH: Well, okay --
THE COURT: You've got to prove to this
court that the allegations you've made about this
respondent are of a type that need to be -- the restraining
order needs to be continued. And I'm going to --
MR. BERNATH: Well, I'm there. I'm there,
Your Honor.
THE COURT: Well, then stick to that issue.
MR. BERNATH: It's very easy, Your Honor.
Lilyea threats to a person called Dallas.
BY MR. BERNATH: [Continuing]
Q. Do you remember sending an email to a guy called
Dallas Whittenberg who said, I'm personally going to stomp
your ignorant ass, I already have your address and the
means to get there? Do you remember sending that email to
Dallas Whittinger of Florida?
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A. You mean Dallas Wickentide?
Q. That's the -- that's -- You pronounce it your
way, I'll do it my way.
Did you in fact send an email saying, I
personally am going stomp your ignorant ass, I already have
your address and the means to get there? Did you send him
that email?
MR. BOUTIN: Before --
THE WITNESS: No.
MR. BOUTIN: -- you answer, objection;
relevancy.
MR. BERNATH: I'm showing his pattern, I'm
showing his habit.
THE COURT: Okay. I'm going to allow you to
answer the question. I'll overrule the objection. Go
ahead, answer the question.
THE WITNESS: Honestly, I don't remember
sending it, but I may have.
THE COURT: All right.
BY MR. BERNATH: [Continuing]
Q. Okay. Let's get to the present. Now, you
testified that your memory -- in Montgomery Court, you
testified your memory isn't real good now; is that correct?
A. No, I'm not saying [indiscernible].
Q. Okay. You have ALS, correct, Lou Gehrig's
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disease?
A. Yes, I do.
Q. Has any doctor told you that there's a mental
component and a mental deficiency related to your ALS?
A. No.
Q. All right. Let me then -- If I ask you a
question, then you can answer it, then?
A. Sure. And that's what I've been doing,
Mr. Bernath.
Q. Okay. Let me ask you this: Do you recall on
February 13th, 2014, on your website, posting this: Here's
your WANTED poster for Daniel Bernath who was never a chief
petty officer, honorably or otherwise. Do you remember
doing that?
A. Yeah, I do.
Q. Okay. Well, you're not here, so I'll read it to
you.
A. You don't need to. I know what it says.
Q. Okay. I'm asking the questions.
A. [Indiscernible].
Q. I'll identify it.
Did you want to say something?
THE COURT: No. Mr. Bernath, let me ask --
The witness has testified that he posted it.
Let me ask counsel, Counsel, do you have any
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objection? Is this what was posted? Do we all agree this
is what was posted online? Since your witness isn't here,
try to move this along.
MR. BOUTIN: Mr. Lilyea, did you create this
poster?
THE WITNESS: No, I did not.
MR. BERNATH: He's trying to cross-examine
him now.
THE COURT: Hold on.
The question was did he post it online, and
he answered --
Mr. Lilyea, did you in fact post it online?
THE WITNESS: Yes, I did.
THE COURT: Okay.
MR. BOUTIN: Your Honor, it appears to be
the poster that's at issue, yes.
THE COURT: Okay. Thank you.
MR. BERNATH: Okay. They'll stipulate to
[indiscernible].
BY MR. BERNATH: [Continuing]
Q. Let's just read some of it.
THE COURT: Well, why don't -- to move this
along, I can read it. If you want to present it to the
Court, offer it as an exhibit --
MR. BERNATH: I just want to know what he
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meant.
THE COURT: What he what?
MR. BERNATH: What this means.
THE COURT: Okay. You can inquire about
what it means.
BY MR. BERNATH: [Continuing]
Q. Okay. Let me ask you a question or two about
this poster that you admit that you posted. Now, all the
stuff where you state that I did this and I did that,
that's the subject of another lawsuit in Clackamas County,
downtown Portland; isn't that correct? So we're not going
to go into that today. Correct?
I'm going to ask you what these said -- what you
said on this poster related to this restraining order.
Correct? That's where I'm going to go.
MR. BOUTIN: Your Honor, object to the form
of the question.
THE COURT: Yeah.
MR. BOUTIN: He said he posted it, he did
not create it, so I'm going to --
MR. BERNATH: I don't doubt that. I know
who posted it, it was Guy Power of NASA.
THE COURT: Okay. Hold on a second. I'm
going to sustain the objection, I agree. That's the
evidence that I understand from the testimony, is that it
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was posted but not created by Mr. Lilyea.
MR. BERNATH: That was always my
understanding.
THE COURT: Okay.
BY MR. BERNATH: [Continuing]
Q. And you say that 60,000 people then saw this
poster, correct? That's the [indiscernible]?
A. I'm not exactly sure how many people, but that
sounds about right.
Q. All right. So, "Subject Bernath is a liar."
Would you agree that's a derogatory term?
A. No. Not [indiscernible] if it's the truth, it's
not derogatory.
Q. Okay. So we'll leave that to the Court to decide
if that's a derogatory statement.
"Extremely annoying, there are legions of people
who agree with you." So I won't ask you about that.
Okay. Then you have a red circle with a line
through it, in big black words it says, "fraud," correct?
A. Yes.
Q. Okay. Now, would that be ridicule or harassment
or derogatory? Would you agree with that?
A. Not if -- not if it's true.
Q. Okay. So if it isn't true, then it is
derogatory, correct?
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A. Sure.
Q. Okay. So --
A. [Indiscernible].
Q. -- I'm under oath right now, and I'm going to
tell you that I didn't create this picture.
THE COURT: Mr. Bernath, this is -- this is
not an opportunity to present evidence for you.
MR. BERNATH: Okay. Then I'll proceed.
THE COURT: Yeah, just ask the questions.
Yeah.
Q. "So anyone with information on this POS --" Now,
is that an Army term or a West Virginia term? What is POS,
please.
A. It's an Internet term.
Q. Piece of shit; is that right?
A. As long as you're saying it, yes. I'm not going
to talk like that in court, but go ahead.
Q. What -- Okay. Now, is that what that POS means?
A. Yes, it is, normally.
Q. "To interface with him," does that mean to harass
him? What does that mean, "to interface with him"?
A. It means to make sure that you don't spread your
fraud everywhere else in the world.
Q. Well, how would they do that?
A. By calling you out in public.
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Q. Okay. So if I'm in public, then you would yell
at me and call me out like -- what? How would they
interface with me?
A. Let's say you've been wearing those stripes that
you claim you earned, you didn't earn those, you didn't
earn those medals that you're wearing.
Q. Okay. Okay. So they would do this in public,
correct?
A. If that's where they ran into you, yeah.
Q. Okay. Sixty thousand people or so, you told this
to.
Now, let me ask you this, here's the next
sentence: "Make his life hell."
A. Yes.
Q. You posted that, correct?
A. I'm sorry. What did you say?
Q. This phrase, "make his life hell," you posted
that phrase about me, Daniel Alan Bernath?
A. Sure.
Q. Okay. What did you mean, "make his life hell"?
Did you mean go up to his house and knock on it, send him
emails and tell him he's a fraud, go to the VFW and demand
that they pull his membership? Go to The Oregonian
newspaper and say that he was a fraud? Go to Lars Larson
TV, radio show and say, he's a fraud? Is that what you
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meant by "make his life hell"?
A. I -- No, not necessarily. For one thing, when I
went on the Lars Larson show, I didn't even mention you.
Q. Well, your -- your coconspirator, codefendant,
Terence Hoey, did. Now --
MR. BOUTIN: Well, I'm going to --
MR. BERNATH: He's going to --
THE COURT: Well, I'm going to cut you
off --
MR. BERNATH: Okay.
THE COURT: -- before Counsel says anything,
because there is no codefendant in this case, so we're not
trying any other elements of any other continuing
litigation, just this issue.
MR. BERNATH: Okay.
THE COURT: So --
MR. BERNATH: Okay.
THE COURT: Any more questions about this
document?
MR. BERNATH: Yes. Okay.
BY MR. BERNATH: [Continuing]
Q. When you say "make his life hell," did you mean
that you'd cause him so much stress that he would break out
in stress induced shingles? Is that "make his life hell"?
Was that part that -- that could be part of that?
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A. No. Part of making his life hell would be like,
you know, I don't know, filing frivolous lawsuits all over
the country, you know, things like that.
Q. Okay. So you'd abuse process, but you wouldn't
cause me shingles; is that right?
A. No.
Q. Okay. Well, let me ask you another question.
Now, I told you that my wife has heart palpitations because
of this poster and what you posted. Was this -- was this
making my life hell? Was that part of making my life hell,
to see my wife suffer?
A. The only time that you communicated to me about
your wife's problems was this last weekend where I was
under this restraining order.
Q. Okay. So --
A. So I couldn't even read -- I read part of the
email and I didn't read the rest of it, so -- I certainly
didn't mean for anything to happen to your wife.
Q. Okay. So there is a bright line about how you
make Daniel Alan Bernath's life hell, and it stops at his
wife suffering heart palpitations. Is that your testimony?
A. Yeah, I guess so.
MR. BERNATH: I would move to enter Exhibit
1.
THE COURT: Any objection?
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MR. BOUTIN: No objection, Your Honor.
THE COURT: Okay. Thank you. Any further
questions of this witness?
MR. BERNATH: I have to take a look.
BY MR. BERNATH: [Continuing]
Q. Oh, okay. Now, on your website -- and I'll just
be three minutes -- on your website, and according to
Montgomery County, the lawyer asked you, "So if I see John
Lilyea on This Ain't Hell website, it's because John Lilyea
wrote it?" Isn't that correct, you said that in court and
you would adopt that today?
A. I'm sorry. I didn't understand what you were
saying.
Q. If I see John Lilyea on your website, it's John
Lilyea that wrote it, yes?
A. Yes.
Q. Okay. So how to be a good phony soldier, that
you posted February 9th, 2014. So you said, "So we're
going to give you the thing that you craved when you put
that shit on." Correct?
A. Well [indiscernible].
MR. BOUTIN: Objection.
THE WITNESS: It wasn't said to you, it was
said generally to the public. It doesn't say, "dear Daniel
Bernath."
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Q. February 9th, 2014. This was -- We're talking
about your motivation to do what you did to me.
Now, you're really unhappy that the Stolen Valor
Act was knocked down by the Supreme Court. You said, "Even
though what you're doing is not illegal, it's not immoral."
The Supreme Court -- And I want to focus on this
sentence, "The Supreme Court case of US versus Alvarez gave
us a warrant to hunt you down and bring you to the justice
of public opinion." Isn't that your feelings?
A. Yeah, I wrote that.
Q. And I shouldn't go to my wife because, your
words, "it makes you look like the giant pussy you are."
Those are your words?
A. I wasn't talking to you, was I?
Q. No.
A. I made a general statement. It was not made to
Daniel Bernath.
Q. So I'm part of the general, aren't I?
A. No, because as a matter of fact, I was thinking
of somebody completely different when I wrote that line.
Q. Is it -- is this thing still on your website even
as we speak?
A. Yes, it is.
Q. "You're only going to be further humiliated if
you do it in the public forum." That says, don't sue me,
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right? You remember saying that?
A. Yeah, I wrote that.
Q. "I sleep with a .45 by my bed. I have another
.45 in my work space, and I carry a .357 Magnum on my hip
at all times."
A. Yeah, I'm -- To keep that statement in context, I
said, "Don't make death threats to me because I have a .45
by my bed, I have a .45 in my work space, and I carry a
.357 on my hip."
Q. Well, okay. We'll look at those weapons in just
a second.
THE COURT: Mr. Bernath, I'm going to stop
you here for a second.
MR. BERNATH: Could I have one more minute?
This is the key point.
THE COURT: Okay. Then get to the key
point.
Q. You're really angry about the Alvarez case, US
versus Alvarez, as you've testified. And I'm going to read
this last statement because I told you to remove it, I
said, is this still your feelings, and it's still up there,
but, "This Ain't Hell and all of our partners are the stops
and dunking chairs in the village square of the Internet, a
place where folks can come and throw rotten tomatoes at
valor thieves. The Supreme Court gave us a warrant to be
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the Internet's vigilantes and bounty hunters." You said
that, it's still on your website, correct?
A. Sure.
Q. Okay. I just want -- Isn't that funny how you
can never find something when you want it.
I have here Exhibit 8 and 9, and this looks to be
some sort of military rifle with a scope, and at the top
there's a -- looks like it could be a Glock .45 with
30-bullet magazine. This is something that I found on the
Internet under your name. Does this sound like a picture
that you posted of your arsenal?
MR. BOUTIN: Objection, Your Honor. We need
to identify it so he can speak to what's appearing in this
photograph.
MR. BERNATH: I identified it as
Petitioner's number 8.
THE COURT: I'm going to --
MR. BOUTIN: The witness --
THE COURT: I'm going to sustain the
objection, I think it's too vague. You can ask him if he
owns guns, he's testified about certain guns, but just
saying -- asking a question about something you might have
found on the Internet, I'm going to sustain it.
BY MR. BERNATH: [Continuing]
Q. Okay. Is this a picture you posted on the
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Internet? You did mention that you have a large magazine
for your pistol because it pisses people off because they
think it's scary looking. Is that correct?
MR. BOUTIN: Your Honor, same objection.
The witness cannot identify the photograph and the witness
has --
THE COURT: Yeah, I'm going to sustain it.
MR. BOUTIN: [Indiscernible].
THE COURT: You can ask him if he's posted
pictures on the Internet of guns he owns.
BY MR. BERNATH: [Continuing]
Q. Do you have a picture of guns on the Internet
including one with a 30 or so bullet magazine, and you got
that magazine because it makes people angry or pisses them
off or something like that? Yes? No?
A. Yeah, that picture that I posted, I posted about
three years ago, before I knew who Daniel Bernath was.
Q. You didn't take them down when you started your
campaign on me, though, did you?
A. No.
Q. Okay. Now, looking at Exhibit No. 10, and it is
a postcard, it says, "Cafe Press is a place to put the
stamp, a place to put the address," and it's the -- it's
the poster again. So did you take this poster and have it
printed up so that people could mail it all over the
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country?
A. No.
Q. Okay. Do you know who did that?
A. Yes.
Q. Who did that?
A. I'm waiting to see if my lawyer objects.
Q. He isn't.
MR. BOUTIN: Go ahead.
THE COURT: You can answer the question.
THE WITNESS: Okay. Yeah, I know who it
was. It was one of my readers, Frankie.
Q. Okay. Frank Carlisle, correct?
A. I -- I do not know him by Frank, just --
Q. Frankie C, correct?
A. Yeah.
Q. Okay. Now, one of your readers --
And I don't know how much time you want to spend
to get into how much control he has over them --
THE COURT: Right.
MR. BERNATH: -- but I'm going to read this
to the Court.
THE COURT: I'm going to cut you off,
because here's the problem: Petitioner, you're making a
strong case about what you think are defamatory statements
made by --
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MR. BERNATH: No, Your Honor.
THE COURT: -- Respondent, or statements
that you think are intended to injure you.
MR. BERNATH: I'm just tracking the statute,
Your Honor.
THE COURT: I understand where you're trying
to go, and I appreciate that you're doing the best you can
with what you've got. The -- But so far I'm not hearing
evidence to meet the statutory requirement. What I hear is
an ongoing battle between two people about what or was not
the truth about this picture.
And I hear things being said that are
derogatory and are disconcerting, but that's what civil
defamation lawsuits are for.
Restraining orders -- The statutory
requirement for a restraining order for elder abuse
requires something higher than what I'm hearing, so I --
And I've read your petition, and I'm not hearing anything,
I'm not seeing anything here that's different than what
evidence you're presenting.
MR. BERNATH: Well, could I argue the point?
THE COURT: You need to -- Yes, you need to
connect the dots --
MR. BERNATH: Okay.
THE COURT: -- because at the end of the
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day, clearly, you have a conflict with this gentleman, and,
clearly, you don't appreciate what he's saying about you.
MR. BERNATH: Well, it rises much higher
than that.
THE COURT: Well --
MR. BERNATH: I'm looking at the statute, it
says ORS 124.005 1 (a), any physical injury caused. It's
causing me stress, causing me shingles, painful shingles.
ORS 124.005 1 (d), willful inflicting of
physical pain or injury. 124.005 1 (e) -- and this is the
point, you know, it could be defamation, but I don't care
if he calls me a poo-poo head, and they do, you know, the
equivalent of that. What I care about is they set loose
this torrent of people to harass me.
Now -- and it could be defamation too, but
it sure fits right into 124.005 1 (e), using derogatory or
inappropriate names, phrases or profanity, ridicule,