Amicus Curiae Brief — Hill v. Michigan Attorney Grievance Commission

(i) NOV 12 1999

No. 26-1896

CLERK

oa. NO |

In THE

Supreme Court of the United States

Leia JEANNE Hitt, AupREY HIMMELMANN,

AND Everitt W. Simpson, Jr.,

Petitioners,

Vv.

Tue Stare or CoLorapo,

Britt Owens, GOVERNOR, ET AL.,

Respondents.

On Writ of Certiorari to the

Colorado Supreme Court

Amicus Brief of Life Legal Defense Foundation

In Support of Petitioners

ANDREW W. ZEPEDA

(Counsel of Record)

CATHERINE W. SHORT

Lire Lecat DereNse FOUNDATION

P.O. Box 2105

Napa, California 94558

(707) 224-6675

Attorneys for Amicus

ae

TABLE OF CONTENTS

I. Introduction and Summary of Argument .....

II. Section 18-9-122 is Unconstitutionally Vague

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TABLE OF AUTHORITIES

CASES:

Page

City of Houston v. Hill, 482 U.S. 451 (1987) ...... 4

Connally v. General Construction Co.,

269 U.S. 385 (1926) ......cccccccecceeeeeeees 4

Edwards v. City of Santa Barbara,

150 F.3d. 1213 (1998), cert. denied,

210 BCs. 1348 (IBRD) .ccccccvcvccccecsseceses 1

Foti v. Menlo Park, 146 F.3d 629 (9th Cir. 1998) ...

Grayned v. City of Rockford, 408 U.S. 104 (1972) ...

Heffron v. Int'l Soc. for Krishna Consciousness,

408 US. G60 (IGRI) .ccccccsccceseccssssessse 9

ISKCON v. Lee, 505 U.S. 672 (1992) ..........48. we)

Kolender v. Lawson, 461 U.S. 352 (1983) .. 4, 12, 15

Minnesota ex. rel. Pearson v. Probate Court,

ee Ye aa 5

Papachristou v. City of Jacksonville,

ey eT eee 12

Sabelko v. Phoenix, 120 F.3d 161 (9th Cir. 1997) ... 1

Schenck v. Pro-Choice Network, 519 U.S. 357 (1997) 15

Thompson v. City of San Fose,

32 Cal.App.4th 330 (1995) cert. denied, 516 U.S.932 1

Thornhill v. Alabama, 310 U.S. 88 (1940) ........ 12

United States v. Reese, 92 U.S. 214 (1876) ......... 3

ill

TABLE OF AUTHORITIES—Continued

Page

U.S. v. Kokinda, 497 U.S. 720 (1990) ............ wy)

Village of Hoffman Estates v. Flipside, Hoffman Estates

TED ¢cnccccccccccecceeccecs 4,5

Wainwright v. Stone, 414 U.S. 21 (1973) .......... 5

STATUTORY PROVISIONS:

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ED sretdneueececssscsccocecece 13

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Interests of Amicus’

Amicus Life Legal Defense Foundation (LLDF) is a Cali-

fornia non-profit corporation which provides legal assistance

to pro-life advocates. LLD” was started in 1989, when mas-

sive arrest of pro-life advocates engaging in non-violent civil

disobedience created the need for attorneys and attorney

services to assist those facing criminal prosecution. Most of

these prosecutions resulted in convictions for trespass and

blocking, sentences consisting of fines, jail time, or commu-

nity service, and stern lectures from judges about the neces-

sity of protesting within the boundaries of the law.

By the early 1990s, most of these pro-life advocates were

seeking out other channels to express their opposition to abor-

tion. ret the response of municipalities in Cali-

fornia was not to applaud this conversion to lawful means

of protest, but to seek out ways to make the protests unlaw-

ful. For example, many California cities passed residential

picketing ordinances, including ordinances which prohib-

ited picketing within 300 feet of a “targeted” residence. See

Thompson v. City of San Fose, 32 Cal.App.4th 330 (1995)

cert. denied, 516 U.S. 932. Some cities passed “back-off”

buffer zone laws, such as those struck down by the Ninth

Circuit in Sabelko v. Phoenix, 120 F.3d 161 (9th Cir. 1997).

At least one city enacted an ordinance creating eight-foot

“demonstration-free” zones around the driveway entrances

to health care facilities. Edwards v. City of Santa Barbara,

150 F.3d 1213 (1998), cert. denied, 119 S.Ct. 1142 (1999).

Another city attempted to limit the size of picket signs and

' Counsel of Record to the parties in this case have consented to the

filing of this brief and letters of consent have been filed with the Clerk

pursuant to Rule 37.

2

force picketers to keep moving. Foti v. Menlo Park, 146 F.3d

629 (9th Cir. 1998).

LLDF and those associated with it are very concerned

about the proliferation of laws designed specifically to re-

strict anti-abortion speech.* Whether or not these ordinances

survive facial challenges to their content-neutrality, they risk

undermining the integrity of police and prosecutors charged

with enforcing laws such as these, laws which are generally

known and understood to be directed at particular speakers

and viewpoints. LLDF submits that this Court should give

careful scrutiny to restrictions on speech which are aimed

directly at expressive activities surrounding particular social

and political controversies.

I. Introduction and Summary of Argument

In 1993, the Colorado General Assembly enacted § 18-9-

122, indisputably in response to reports of “harassment” and

obstruction of individuals seeking access to medical facilities

where abortions are provided. See Joint Appendix, 58a-2 16a.

Unfortunately, the Assembly apparently was so focused on

this particular context, and possibly even on particular loca-

tions, that it failed to consider the application of the statute

to other contexts, as well as whether the language it used

would be clear to those who wished to engage in peaceful

expressive activity.

Although the Legislature was only thinking “inside the

2 E.g., “There is no doubt that the City passed these ordinances in

response to Fou: and Larsen’s [anti-abortion picketing] activities or that

the City specifically sought to restrict their protests.” Fot: v. Menlo Park,

supra, 146 F.3d at 633 n. 1.

3

box” of certain forms of anti-abortion protest, § 18-9-122

applies to a wide range of speech activity on public streets

and sidewalks in the vicinity of any “health care facility”

in the state. Thus, it was left to reviewing courts to place

limiting constructions on the statute’s broad terms in an ef-

fort to bring the application of the statute back within the

confines of “the box” of anti-abortion protests. For example,

the Colorado Court of Appeal stated, “As pertinent here,

‘protest’ refers to written or oral communication advocating

a particular viewpoint on medical treatment and procedures.”

Pet. at 44a (emphasis added). Obviously, there is nothing on

the face of the statute that indicates that the term “protest”

applies only to certain topics. The Court of Appeals also

explained, “ ‘Counseling and education’ refer to efforts to

present information or guidance to persons entering or leav-

ing a health care facility.” Id. (emphasis added). Again, noth-

ing in the plain language of the statute indicates that, in the

case of oral counseling and education, the “no-approach”

strictures apply only when the approached person is entering

or leaving a facility.

This Court observed a century and a quarter ago, “It

would certainly be dangerous if the legislature could set a

net large enough to catch all possible offenders, and leave it

to the courts to step inside and say who could be rightfully

detained and who should be set at large.” United States v.

Reese, 92 U.S. 214, 221 (1876). Yet this is exactly the role

that the lower courts here have agreed to play, namely, putting

pinches and tucks in the legislature’s net, allowing some to

be detained while others go free, without any discernible

relationship to a legitimate governmental interest.

A statute or ordinance which forbids an act “in terms so

vague that men of common intelligence must necessarily guess

4

at its meaning and differ as to its application violates the first

essential of due process.” Connally v. General Construction

Co., 269 U.S. 385, 391 (1926). Laws must “give the person

of ordinary intelligence a reasonable opportunity to know

what is prohibited, so that he may act accordingly.” Grayned

v. City of Rockford, 408 U.S. 104, 108 (1972). Moreover,

laws which regulate or restrict speech must satisfy “a more

stringent vagueness test.” Village of Hoffman Estates v. Flip-

side, Hoffman Estates 455 U.S. 489, 499 (1982) (footnote

omitted).

Although the [void-for-vagueness | doctrine focuses both

on actual notice to citizens and arbitrary enforcement,

we have recognized recently that the more important

aspect of vagueness doctrine is not actual notice, but the

other principal element of the doctrine, the requirement

that a legislature establish minimal guidelines to govern

law enforcement. Where the legislature fails to provide

such minimal guidelines, a criminal statute may permit

a standardless sweep |that} allows policemen, prosecu-

tors, and juries to pursue their personal predilections.

Kolender v. Lawson, 461 U.S. 352, 357-58 (1983) (internal

quotations and citations omitted.)

It is undisputed that C.R.S. 18-9-122 restricts consti-

tutionally protected speech activity in the “quintessential”

public forum of public streets and sidewalks. Because of

the vagueness of its terms, the ordinance is arguably “vio-

lated scores of times daily, . . . yet only some individuals,

those chosen by the police in their unguided discretion, are

arrested.” City of Houston v. Hill, 482 U.S. 451, 466-67

(1987).

Petitioners challenged the statute on a number of grounds

5

including the void-for-vagueness doctrine. Pet. 4a, 44a.

The Colorado Supreme Court breezily pronounced that the

statute’s terminology was “simple and straightforward.” Pet.

at 24a. In the petition for certiorari, petitioners have re-

lied principally on other constitutional challenges and have

not highlighted their earlier void-for-vagueness challenge, al-

though the issue has been preserved in the first question

presented in the petition. Rather, Petitioners contend the

statute is content-based or impermissibly delegates content-

based censorship powers to the audience. Should those facial

challenges prove unavailing, amicus submits that this Court

should carefully consider the void-for-vagueness challenge

which Petitioners preserved throughout the Colorado appel-

late process and that this Court should hold the statute to

be void for vagueness.

II. Section 18-9-122 is Unconstitutionally Vague

“In evaluating a facial challenge to a state law, a federal

court must, of course, consider any limiting construction that

a state court or enforcement agency has proffered.” Village of

Hoffman Estates v. Flipside, supra, 455 U.S. at 494 (1982).

“For the purpose of determining whether a state statute is too

vague and indefinite to constitute valid legislation ‘we must

take the statute as though it read precisely as the highest court

of the State has interpreted it’” Wainwright v. Stone, 414

U.S. 21, 22-23 (1973), quoting Minnesota ex. rel. Pearson

v. Probate Court, 309 U.S. 270, 273 (1940).

Section 18-9-122, in pertinent part, makes it a misde-

meanor to “knowingly approach another person within eight

feet of such person, unless such person consents, for the pur-

pose of passing a handbill or leaflet to, displaying a sign to,

or engaging in oral protest, education, or counseling with

6

such other person in the public way or sidewalk area within

a radius of one hundred feet from any entrance door to a

health care facility.”

Section 18-9-122 is vague in at least four respects.

A. “approach”

The Supreme Court of Colorado stated that § 18-9-122(3)

sets out the prohibited conduct “in rather simple but straight-

forward language.” Pet. at 24a. However, other than simply

repeating the term “knowingly approach,” the court did not

attempt to further describe the prohibited conduct. What

the court did describe was conduct that would not violate

the statute. The court stated that, “If one of the petitioners

is standing still within the fixed buffer zone,” then that per-

son could not violate the ordinance. /d. (emphasis added).

In the next sentence, the court states, “In other words, so

long as the petitioner remains still, he or she cannot commit

the actus reus of approaching, . . .” /d (emphasis added).

These formulations indicate that any bodily movement by a

speaker, e.g., holding out a leaflet at arm’s length, gesturing

to a person to come closer, repositioning or holding out a

sign for better visibility, could constitute “approaching.”

Webster’s Third New International Dictionary defines “ap-

proach” as “to draw near to.” Does § 18-2-122(3) prohibit

only that motion which brings the speaker’s entire body closer

to the approached individual? Or does it also prohibit any

bodily movement by the speaker directed at an individual

who is within eight feet?

The Supreme Court of Colorado did not concern itself

with the dynamic situation likely to be encountered on a busy

sidewalk. Suppose, for example, that a protester is twenty

feet from another person and, in compliance with the statute,

7

walked ten feet toward that person. Suppose further that,

as the protester moved ten feet, the other person advanced

five feet toward the protester. Has the protester committed a

prohibited “approach”? One can formulate an argument that

the protester has not violated the statute but, without any

certain rule akin to basketball’s offensive foul for charging,

the argument provides little comfort. In the hurly-burly of

a crowded sidewalk, any movement by a protester could be

interpreted as a prohibited “approach.”

Rather than being a “simple and straightforward” prohibi-

tion, the vagueness of the statute gives rise to many questions

and no certain answers. Even if refined rules were adopted,

fair application of the rules in a dynamic real life scenario

would require a combination of referees, umpires and instant

replay. The Assembly, having failed to set forth the rules of

the game, has left it to policemen and prosecutors to for-

mulate their own rules of engagement. This is intolerable

especially where the regulated activity is speech in a public

forum on matters of controversy.

B. “unless such person consents”

The Colorado Court of Appeals defined the term “con-

sent” as “oral communication or unmistakable physical con-

duct manifesting agreement.” Pet. at 44a. What does “man-

ifesting agreement” mean? Is the speaker limited to ap-

proaching within eight feet of another if and only if the

intended audience has unmistakably signaled that he agrees

with the speaker’s position? In other words, is the speaker

limited to preaching to the choir, i.e., a person who already

agrees with his viewpoint on the taboo subject of medi-

cal treatment and procedures? Or does “agreement” mean

only “agreement” that one can come within eight feet of

8

the other to leaflet, display a sign, or counsel and edu-

cate?

Even presuming that “agreement” means agreement to be

approached, it is difficult to apply that definition in the noisy,

fluid environment of a city street or sidewalk. In contrast

to the image of raucous crowds of demonstrators jostling

abortion-bound women invoked by the General Assembly

in enacting § 18-9-122, the courts reviewing the ordinance

seemed to assume a sidewalk occupied by only two people,

the patient and the speaker. In such a setting, the presump-

tion runs, the speaker could ask permission to approach and

the other person could consent or refuse, all with minuet-like

precision and clarity.

In reality, it is highly likely that there will be other people

on the sidewalk, including some who will interfere with the

communication of request and consent. As the legislative his-

tory of § 18-9-122 indicates, abortion providers frequently

employ “escorts” to patrol the public sidewalk and insert

themselves between demonstrators and patients. Obviously,

it would be very difficult for a speaker effectively to ask con-

sent to approach and a patient effectively to communicate a

response, with one or more escorts standing between, walk-

ing the patient down the sidewalk.*

Patient companions, e.g., boyfriends, husbands, parents

also often take it upon themselves to inhibit or prevent com-

munication between speakers and potential patients, includ-

>It should be noted that nothing in § 18-9-122 prohibits an escort

from approaching an individual and saying, “I think these people are

idiots or dangerous or both. Ill walk with you into the clinic.” The

escort can continue making such enlightening comments (which are

neither protest of a medical procedure nor education nor counseling)

all the while the would-be speaker is attempting to request permission

to approach.

9

ing the communication necessary to solicit and obtain con-

sent.

For the speaker who simply wants to hand out leaflets

to passers-by, the requirement of obtaining consent is ex-

tremely onerous. In U.S. v. Kokinda, 497 U.S. 720, 734

(1990) (O’Connor, J.) and ISKCON v. Lee, 505 U.S. 672,

690 (1992) (O’Connor. J.), a majority of this Court noted

the distinction between leafleting and solicitation in terms of

the impact on the flow of pedestrian traffic: “[C]onfrontation

by a person asking for money disrupts passage and is more

intrusive than an encounter with a person giving out informa-

tion. One need not ponder the contents of a leaflet in order

mechanically to take it out of someone’s hand. . . . “The dis-

tribution of literature does not require that the recipient stop

in order to receive the message the speaker wishes to convey’

[citing Heffron v. Intl Soc. for Krishna Consciousness, 452

U.S. 640, 665 (1981) (Blackmun, J. conc. and diss.)}.”

Under § 18-9-122, the ostensible purpose of which is to

prevent interference with pedestrian and vehicular traffic, this

“common sense” distinction is reversed. A person solicit-

ing money may approach another without seeking consent.

However, the speaker who wishes to offer a leaflet must first

ask consent, and the intended recipient cannot “mechanically

take it” but must affirmatively give consent. The process of

the recipient pondering whether to give consent, pausing to

communicate that consent, and waiting for the approach is

more likely to disrupt sidewalk passage than is simple leaflet-

ing unencumbered by such requirements.

10

C. “oral protest, education, or counseling”

On its face, the challenged portion of the Colorado statute

prohibits approaching within eight feet of another person for

any of three purposes:

(a) passing a leaflet or handbill;

(b) displaying a sign; or

(c) engaging in oral protest, education or counsel-

ing. The three purposes are listed in the disjunctive

and therefore presumably provide three indepen-

dent bases for prosecution.

The Colorado courts have placed a limiting construction

on only the third proscribed purpose. According to the Col-

orado Court of Appeal, “protest” does not encompass the

entire universe of possible protests. Rather it is limited by the

subject matter of the “protest”, namely, to “written or oral

communication advocating a viewpoint on medical treatment

and procedures.” Pet. at 44a.‘ But the limiting definition of

“protest” does not seem to apply to the other prohibited

purposes, i.e., wielding a sign or passing out leaflets. Thus

the prohibition on “approaches” for the purpose of leaflet-

ing or displaying a sign is absolute. On the other hand,

“approaching” to engage in “oral protest” appears to vio-

late the statute only if the protest addresses a taboo subject,

* The Colorado Supreme Court initially seems to reject the Court of

Appeal’s narrowing construction of “protest” when it held that “[t}he re-

strictions apply squarely to all demonstrators, regardless of viewpoint,

and the statutory language makes no reference to the content of the

speech.” Pet. at 21a, 22a. But the state supreme court ultimately af-

firmed the Court of Appeal’s decision, including presumably its nar-

rowing construction, when it concluded: “section 18-9-122(3) repre-

sents a fair legislative balancing of the ‘right to protest or counsel against

certain medical procedures’ while protecting ‘a person’s right to obtain

medical counseling and treatment.’” Jd. at 28a.

1 what LA a ee

11

in this case, “a viewpoint on medical treatment or proce-

dures.”

The limiting construction the Colorado Court of Appeals

places on “education or counseling” also complicates mat-

ters. The Court of Appeals not surprisingly defines education

and counseling as “efforts to present information or guid-

ance.” Pet. at 44a. This definition is apparently not limited

to the taboo subject of “medical treatment and procedures”

but applies to the entire universe of possible subject matters.

But the Court of Appeals goes on to limit the meaning of

“counseling and education” by reference to a limited audi-

ence, namely, those “persons entering or leaving a health

care facility.” Id. Presumably, this leaves a citizen within 100

feet of a health care facility free to approach another with-

out consent for the purpose of “counseling and education”

provided that the other person is a mere passerby, i.e., is

not entering or leaving the health care facility.

Perhaps because it seems the least confrontational form of

speech and is presumed to be deserving of the most protec-

tion, one of the most popular activities outside of abortion

facilities is public prayer. But whether prayer is prohibited

by the Colorado statute is unclear. Might law enforcement

consider prayer a form of “oral protest”? Can prayer con-

ceivably be viewed as “counseling or education?” The terms

are too vague to allow one to hazard an answer.

“A viewpoint on a medical treatment or procedure” is also

subject to arbitrary interpretation by law enforcement and

prosecutors. Is a person who advocates adoption in front of

an abortion facility, expressing “a viewpoint on a medical

treatment or procedure”? Is a person in front of a “health

care facility” who offers economic assistance to poor preg-

nant women so that they may have the opportunity to give

birth and raise a child, engaged in “protest”? Is a feminist

12

who has no objection to abortion procedures as such, but

who protests against “sex-selection” abortions within 100

feet of a “health care facility”, expressing a “viewpoint on a

medical treatment or procedure”?

Indeed, the very notion of “protest” is relative. Protest is

by definition an expression of dissent from, and objection

to, the established order of things. In a democracy, protest

is by the nature of things, a minority viewpoint. Hence to

punish protest is to punish the minority viewpoint. It was

to prevent just such oppression by majorities that the First

Amendment was adopted.

The limiting construction placed on “protest” does not

diminish the vagueness of the term; it simply focuses law

enforcement on a smaller target, namely, those who would

have the temerity to protest against “medical treatment or

procedures” outside of “health care facilities.” In light of

the legislative history, these terms appear to be euphemisms

for one particularly controversial medical procedure, namely,

abortion. The legislative history strongly suggests that the

legislature purposefully chose broad and expansive— indeed,

very vague—language to ensure the appearance of facial con-

tent neutrality while affording “a convenient tool for ‘harsh

and discriminatory enforcement by local prosecuting off-

cials, against particular groups deemed to merit their dis-

pleasure.” Papachristou v. City of Jacksonville, 405 U.S.

156 (1972), quoting Thornhill v. Alabama, 310 U.S. 88,

97-98 (1940). Here the full discretion afforded to police to

determine whether the suspect has engaged in oral protest,

education or counseling “necessarily entrust[s] law making

to the moment-to-moment judgment of the policeman on

his beat.” Kolender, supra, 461 U.S. at 1859-60 (internal

quotation marks and citations omitted).

13

D. “within a radius of one hundred feet from any

entrance door to a health care facility”

First, this provision contains no requirement that the ap-

proaching person knows that he or she is within one hun-

dred feet of the entrance door to a health care facility.” Thus,

before leafleting for any purpose on any public sidewalk, an

individual must ascertain the nature of all of the surrounding

businesses, vertically as well as horizontally, to determine

whether the area is subject to the restrictions of § 18-9-122.

The presence of a single chiropractic office or optometric

outlet creates a no-approach zone applicable to all potential

speakers.

Second, “health care facility” is defined as “any entity

that is licensed, certified, or otherwise authorized or permit-

ted by law to administer medical treatment in this state.”

Pet. at 65a. Thus, the wouldbe speaker is charged with

knowing both what types of entities are licensed, certi-

fied, authorized or otherwise permitted to “administer med-

ical treatment,” as well as the actual status of any entity

which could potentially create a no-approach zone. For ex-

ample, is a dental office or a drug store a “health care

facility”? A citizen who leaflets without first studying the

* Cf, e.g., 18 U.S.C.A. §922(q)(2)(A): “It shall be unlawful for any

individual to knowingly possess a firearm that has moved in or that

otherwise affects interstate or foreign commerce at a place that the in-

dividual knows, or has reasonable cause to believe, is a school zone.” 18

U.S.C.A. § 921(a)(25): “The term ‘school zone’ means . . . b) within a

distance of 1000 feet from the grounds of a public, parochial or private

school.”

See also Cal. Pen. C. § 626.9(b) (West 1999): “Any person who pos-

sesses a firearm in a place that the person knows, or reasonably should

know, is a school zone . . . shall be punished as specified in subdivision

(f).”

14

state health code and/or business code does so at his own

peril.

Third, “health care facility” is defined as “any entity that

is licensed, certified, or otherwise authorized or permitted

by law to administer medical treatment in this state.” By

this definition, doctors, nurses, optometrists, dentists, etc.

are themselves “health care facilities.” Thus, an individual

must ascertain what is the “entrance door” to one of these

professionals.

At first glance, the easiest answer would be that the doors

to a doctor’s office are his entrance doors. However, in the

case of multi-tenant office buildings, vagueness returns. Is

the “entrance door” the door to the building or the door to

a particular office within the building? How is the speaker to

know the extent of the doctor’s leasehold within the building,

e.g., that, while the doctor’s main office is on the fifth floor

at the back, he also rents space for a lab on the first floor

in the front?

Moreover, does a medical professional carry his “entrance

doors” with him? Does the presence of a nurse on school

premises create a no-approach zone within a hundred feet

of any entrance door to the school? Does the presence of a

company doctor create no-approach zones within one hun-

dred feet of entrance doors to the company?

These examples illustrate not only the dangers arising from

the lack of a scienter requirement as to the existence of a

“no-approach” zone, but also the overbreadth of the statute.

Section 18-9-122 creates literally thousands of zones in the

state of Colorado where expressive activity is restricted.

Conclusion

In its discussion of this Court’s decision in Schenck v.

Pro-Choice Network, 519 U.S. 357 (1997), the Colorado

Supreme Court noted that “it was the uncertainty of how to

comply with the injunction about which the Supreme Court

appeared most concerned.” Pet. at 27a. Indeed, if uncer-

tainty was the main source of this Court’s concern, then

§ 18-9-122 provides plenty of grounds for concern as well.

Far from being a “simple and straightforward” time, place,

and manner restriction, the prohibitions of § 18-9-122 are

vague as to time, place, and manner.

This Court should find § 18-9-122 unconstitutional on its

face. Concern for certainty “has, at times, led [this Court] to

invalidate a criminal statute on its face even when it could con-

ceivably have had some valid application.” Kolender, supra,

461 U.S. at 359 n.8. This is just such a statute.

Respectfully submitted,

Anprew W. ZEPEDA

(Counsel of Record)

CaTHERINE W. SHORT

Lire Lecat Derense FOUNDATION

P.O. Box 2105

Napa, California 94558

(707) 224-6675

Attorneys for Amicus

November 12, 1999