Amicus Curiae Brief — Pacific Legal Foundation v. Kayfetz

No. 92-1544

IN THE

Supreme Court of the United States

OCTOBER TERM, 1992

PACIFIC LEGAL FOUNDATION,

‘ Petitioner,

PAUL KAYFETZ; VICTOR AMOROSO;

DIANA LOPEZ FARNSWORTH; DorRIS ELAINE LEMIEUX;

JACK BOWEN MCCLELLAN; WILLIAM NIMAN;

ORVILLE SCHELL; MARGUERITTE HARRIS; JUDITH WESTON;

and BOLINAS COMMUNITY PUBLIC UTILITY DISTRICT,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

MOTION FOR LEAVE TO FILE BRIEF AMICI CURIAE

AND BRIEF AMICI CURIAE OF

AMERICAN FARM BUREAU FEDERATION AND

CALIFORNIA FARM BUREAU FEDERATION

IN SUPPORT OF PETITIONER

JOHN J. RADEMACHER *

General Counsel

JEROME J. WERDERITCH

AMERICAN FARM BUREAU

FEDERATION

225 Touhy Avenue

Park Ridge, IL 60068

(312) 399-5735

NANCY N. MCDONOUGH

General Counsel

CALIFORNIA FARM BUREAU

FEDERATION

1601 Exposition Boulevard

Sacramento, CA 95815

(916) 924-4035

April 19, 1993 * Counsel of Record

WILSON - EPES PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

IN THE

Supreme Comet of the Muited States

OCTOBER TERM, 1992

No. 92-1544

PACIFIC LEGAL FOUNDATION,

. Petitioner,

PAUL KAYFETZ; VICTOR AMOROSO;

DIANA LOPEZ FARNSWORTH; DORIS ELAINE LEMIEUX;

JACK BOWEN MCCLELLAN; WILLIAM NIMAN;

ORVILLE SCHELL; MARGUERITTE HARRIS; JUDITH WESTON;

and BOLINAS COMMUNITY PUBLIC UTILITY DISTRICT,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

MOTION FOR LEAVE TO FILE BRIEF

AMICI CURIAE OF

AMERICAN FARM BUREAU FEDERATION

AND

CALIFORNIA FARM BUREAU FEDERATION

American Farm Bureau Federation and California

Farm Bureau Federation (collectively “Farm Bureau” )

respectfully move for leave to file the attached brief

amici curiae, pursuant to Supreme Court Rule 37. Con-

sent from Petitioner is attached hereto. Consent has been

requested from Respondents. It has been denied by

Respondent Bolinas Community Public Utility District,

but it has neither been granted nor denied by other

Respondents.

American Farm Bureau Federation is a not-for-profit,

voluntary, general farm organization incorporated under

the laws of the State of Illinois. Its purposes are to pro-

mote, protect and represent the economic, social and

educational interests of farmers and ranchers across the

United States. The largest general farm organization in

the country, American Farm Bureau Federation has

member state organizations in all 50 states and Puerto

Rico, representing the interests of more than four million

member families. The American Farm Bureau Federa-

tion has brought litigation and assisted in litigation on

issues of national significance and impact to agriculture.

California Farm Bureau Federation is a nongovern-

mental, nonprofit, voluntary membership California cor-

poration. Its members are 53 county Farm Bureaus with

a combined membership of more than 75,000 individual

families in 56 California counties. California Farm Bu-

reau Federation membership represents more than 80%

of all commercial farmers in California. Its purposes in-

clude to work for the solution of the problems of the farm,

the farm home, and the rural community and to represent,

protect, and advance the social, economic and educational

interests of the farmers in California. California Farm

Bureau Federation has provided assistance to parties who

choose to litigate matters which may significantly impact

California’s farms.

The preservation of the right to utilize the courts to

correct injustices and pursue policy issues through liii-

gation and review by the U.S. Courts of Appeals and

U.S. Supreme Court are of paramount importance to the

American Farm Bureau Federation and the California

Farm Bureau Federation. The ability of Farm Bureau

to bring litigation on behalf of its members or to support

member litigation (in a nonbarratrous manner) are vital

in order that Farm Bureau promote the interests of agri-

culture. Many agricultural issues are dependent upon the

courts for resolution.

Farm Bureau members have a direct and vital interest

in the preservation of the ability to pursue remedies

through the courts. The Ninth Circuit’s utilization of its

“inherent power” to impose sanctions extends beyond the

realm of caution for litigants; it sends a message to future

litigants that overaggressive and perhaps tenuously founded

claims will not be tolerated, but instead punished. Legal

creativity, which is essential to the evolution and develop-

ment of the law, will be deterred.

WHEREFORE, Applicants American Farm Bureau

Federation and California Farm Bureau Federation re-

spectfully pray that their Motion for Leave to file the

attached Brief Amici Curiae in favor of the Writ of Cer-

tiorart be granted.

Respectfully submitted,

JOHN J. RADEMACHER *

General Counsel

JEROME J. WERDERITCH

AMERICAN FARM BUREAU

FEDERATION

225 Touhy Avenue

Park Ridge, IJ. 60068

(312) 399-5735

NANCY N. MCDONOUGH

General Counsel

CALIFORNIA FARM BUREAU

FEDERATION

1601 Exposition Boulevard

Sacramento, CA 95815

(916) 924-4035

April 19, 1993 * Counsel of Record

TABLE OF CONTENTS

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REASONS FOR GRANTING THE WRIT

I. THE NINTH CIRCUIT COURT OF APPEALS

ERRONEOUSLY APPLIED THE INHERENT

POWERS DOCTRINE TO THE FACTS OF

THIS CASE ESPECIALLY BY APPLYING

THE DOCTRINE TO A NON-PARTY TO THE

Ball RE AAI sicesonctiniince‘euhmiaesaiaieeceaima nanan

Il. THE NINTH CIRCUIT COURT OF APPEALS

HAD SUFFICIENT MEANS TO IMPOSE

SANCTIONS WITHOUT USE OF INHERENT

POT scicdecassseetnesec

CONCLUSION

Page

ii

TABLE OF AUTHORITIES

CASES Page

Link v. Wabash R. Co., 370 U.S. 626, 82 S.Ct. 1886

EUMIIIED sscscscininc dycccencarcantuniaidekdealaaege iene gaaaaaeee ane 8

Van Sickle v. Holloway, 791 F.2d 1431 (10th Cir.

BOING? cis: ceric vebsecsnsincngsecisonaiedommmeeganeas nasitamenaeaaae maaan 4

Chambers v. Nasco, Inc., 111 S.Ct. 2123 (1991).... 4,5, 6

Pennoyer v. Neff, 95 US. 714, 24 L.Ed. 565

1g pf FERRMRCRORCI IR SeM RB Re dN cae a Ip Ti a eel Ae 4

Shaffer v. Heitner, 483 U.S. 186, 97 S.Ct. 2659,

ee By 3 RRR ans eee 4

International Shoe Co. v. Washington, 326 U.S.

$10, 66 S.Ct. 154, 90 L.Ed. (1946) .—................... 4

F.T.C. v. Compagnie De Saint-Gobain-Pont-A-

Mousson, 636 F.2d 1300 (D.C. Circuit 1980)... 4,5

Harris v. Marsh, 679 F. Supp. 1204 (E.D.N.C.

| cca aba ne 5

Blue v. U.S. Depart. Of Army, 914 F.2d 525 (4th

Ree UPIPTED oso ss sccus clan eccacecceaang eee ainen eee ean aenaA 5

Lockary v. Kayfetz, 974 F.2d 1166 (9th Cir.

ERECT A ate aI AE Monee eT MR Rag ee 5

Pavelic & LeFlore v. Marvel Entertainment Group,

493 U.S. 120, 110 S.Ct. 456, 107 L.Ed. 438

(1989) ........ “ican Sonckineishcend seetaeaaesh-abaaedaguaaaa acai aaa ne 6

OTHER AUTHORITIES

ING OF UIEN npsscosicschadenssecacizetemaatennenuseeestbessee cece 5, 6

Se ile a IE 6 ED cenecicscvencunckeousndcacianabarestncerentaianea im . 6,6

IN THE

Supreme Court of the United States

OCTOBER TERM, 1992

No. 92-1544

PACIFIC LEGAL FOUNDATION,

" Petitioner,

PAUL KAYFETZ; VICTOR AMOROSO;

DIANA LOPEZ FARNSWORTH; DorIs ELAINE LEMIEUX;

JACK BOWEN MCCLELLAN; WILLIAM NIMAN;

ORVILLE SCHELL; MARGUERITTE HARRIS; JUDITH WESTON;

and BOLINAS COMMUNITY PUBLIC UTILITY DISTRICT,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF AMICI CURIAE OF

AMERICAN FARM BUREAU FEDERATION

AND

CALIFORNIA FARM BUREAU FEDERATION

IN SUPPORT OF PETITIONER

American Farm Bureau Federation and California

Farm Bureau Federation respectfully submit this brief

aS amici curiae.

Amici curiae, the American Farm Bureau Federation

and California Farm Bureau Federation (collectively

“Farm Bureau’), pray that a Writ of Certiorari be issued

to review the judgment of the United States Court of

Appeals for the Ninth Circuit in this case.

9)

INTEREST OF AMICI CURIAE

American Farm Bureau Federation (AFBF) is a vol-

untary general farm organization formed in 1919 and

organized in 1920 under the General Not-For-Profit Cor-

poration Act of the State of Illinois. AFBF has its princi-

pal offices in Park Ridge, Illinois. AFBF was founded to

protect, promote, and represent the business, economic,

social, and educational interests of American farmers and

ranchers. AFBF has member organizations in 50 states

and Puerto Rico, representing more than four millicn

member families. AFBF farm and ranch members pro-

duce virtually every kind of agricultural commodity pro-

duced commerciaily in the United States. The American

Farm Bureau Federation has brought litigation and as-

sisted in litigation on issues of national significance and

impact to agriculture.

California Farm Bureau Federation is a nongovernmen-

tal, nonprofit, voluntary membership California corpora-

tion. Its members are 53 county Farm Bureaus with a

combined membership of more than 75,000 individual

families in 56 California counties. California Farm Bu-

reau Federation membership represents more than 80%

of all commercial farmers ii California. Its purposes in-

clude to work for the solution of the problems of the

farm, the farm home, and the rural community and to

represent, protect, and advance the scoial, economic and

educational interests of the farmers of California. Cali-

fornia Farm Bureau Federation has provided assistance

to parties who choose to litigate matters which may sig-

nificantly impact California’s farms.

The preservation of the right to utilize the courts to

correct injustices and pursue policy issues through litiga-

tion and review by the U.S. Courts of Appeals and U.S.

Supreme Court are of paramount importance to the

American Farm Bureau Federation and the California

Farm Bureau Federation. The ability of Farm Bureau to

bring litigation on behalf of its members or to support

3

member litigation (in a nonbarratrous manner) are vital

in order that Farm Bureau promote the interests of agri-

culture. Many agricultural issues are dependent upon the

courts for resolution.

Farm Bureau members have a direct and vital interest

in the preservation of the ability to pursue remedies

through the courts. The Ninth Circuit’s utilization of its

‘inherent power” to impose sanctions extends beyond the

realm of caution for litigants; it sends a message to future

litigants that overaggressive and tenuously founded claims

will not be tolerated, but instead punished. Legal creativ-

ity, which is essential to the evolution and development

of the law, will be deterred.

At the same time, Farm Bureau recognizes that the

court system is not to be abused. The sanctity and

decorum of the courts are to be preserved. However,

decisions which infuse a reluctance on potential litigants

due to overzealous application of the inherent power doc-

trine must be remedied by this Court. The decision below

threatens the right to litigate and be properly heard. It is

necessary that this Court further define guidelines for the

implementation of the inherent powers of a court.

STATEMENT OF THE CASE

The case is as stated by the Petitioner.

REASONS FOR GRANTING THE WRIT

I. THE NINTH CIRCUIT COURT OF APPEALS ER-

RONEOUSLY APPLIED THE INHERENT POWERS

DOCTRINE TO THE FACTS OF THIS CASE ESPE-

CIALLY BY APPLYING THE DOCTRINE TO A

NON-PARTY TO THE LITIGATION

It is generally acknowledged that the courts have a

power, inherent power, to impose sanctions which are nec-

essary for a court to dispense in order for “courts to

manage their own affairs so as to achieve the orderly and

expeditious disposition of cases.” Link v. Wabash R. Co.,

4

370 U.S. 626, 82 S.Ct. 1386 (1962). See also Van

Sickle v. Holloway, 791 F.2d 1431 (10th Cir. 1986).

Such “inherent powers must be exercised with restraint

and discretion.”” Chambers v. Nasco, Inc., 111 S.Ct. 2123

(1991). Yet none of the cases cited by the Ninth Circuit

nor those cited in Chambers v. Nasco, supra, extended

the inherent powers of the court to implementation of

Sanctions Over parties who were not attorneys in the liti-

gation or parties to the suit.

It is unprecedented for a court as did the Ninth Circuit

Court of Appeals, to reach beyond the confines of the

case itself and impose sanctions against neither attorney

nor a party merely because of an ex parte finding that the

facts warranted such. This is contrary to Pennoyer vy.

Neff, 95 U.S. 714, 24 L.Ed. 565 (1877) where this Court

early on determined that due process required that a court

not exert authority over an individual unless it had the

power to reach the individual. Due process has always

required “traditional notions of fair play and substantial

justice,” Shaffer v. Heitner, 433 U.S. 186, 97 S.Ct. 2659,

53 L.Ed.2d 683 (1977), before a court can exert its

jurisdiction over an individual. See also Jnternational

Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90

L.Ed. (1945).

It is the properly accomplished service of process which

confers jurisdiction on an individual to adjudicate its

rights. F.T.C. v. Compagnie De Saint-Gobain-Pont-A-

Mousson, 636 F.2d 1300 (D.C. Circuit 1980). The

record does not indicate that service of process was ever

accomplished on Petitioner." The question precedes one

of a valid service of process: it is a question of adjudica-

1 Petitioner’s Petition For A Writ Of Certiorari indicates on page

13 that it never submitted to the jurisdiction of the District Court.

It only appeared to defend itself against the sanctions and con-

sistently argued that the District Court lacked in personam juris-

diction. Petitioner in this Brief refers to Pacific Legal Foundation

(PLF).

5

tion of sanctions without any service of process on the

sanctioned Petitioner.”

The question before the Court is not whether in per-

sonam jurisdiction over Petitioner exists; it is whether

Petitioner can be sanctioned without effect of in personam

jurisdiction through service of process. Fed. R. Civ. P.

11 and 28 U.S.C. § 1927 were rejected. Either could

have been imposed over attorneys or parties to the suit.

The District Court and the Circuit Court broadly reached

out to one not on record as an attorney or a party and

imposed sanctions pursuant to the “inherent powers” doc-

trine. Such sanctions were imposed on one not before the

court pursuant to a summons, subpoena, or warrant. Such

conduct by a court goes beyond “fair play and substantial

justice.” F.7T.C. v. Compagnie De Saint-Gobain-Pont-A-

Mousson, supra. Such abuse of inherent power must be

considered by this Court. Chambers v. Nasco, Inc., supra,

which was relied on by the Ninth Circuit, required a court

to comply “with the mandates of due process” when

invoking its inherent power.

II. THE NINTH CIRCUIT COURT OF APPEALS HAD

SUFFICIENT MEANS TO IMPOSE SANCTIONS

WITHOUT USE OF INHERENT POWERS

Even if the issue of whether Petitioner was subject to

the court’s in personam jurisdiction is open to debate, it

is quite clear that Petitioner was not a named plaintiff in

the underlying litigation, neither was Petitioner acting

as a law firm representing the plaintiffs in the underlying

litigation as the Ninth Circuit concedes, Lockary vy.

Kayfetz, 974 F.2d 1166, 1170 n.2 (9th Cir. 1992).

2The protracted litigation which resulted in Harris v. Marsh,

679 F. Supp. 1204 (E.D.N.C. 1987), Blue v. U.S. Depart. Of Army,

914 F.2d 525 (4th Cir. 1990), and others, indicated that the NAACP

Legal Defense Fund was also a party of record in those proceedings.

The lower court’s order reversed by the Fourth Circuit at least ap-

parently was not further tarnished by the District Court not having

the sanctioned party before it as a party to the proceedings.

6

Expansion of the court’s sanctioning power to an entity

who is neither a named party nor a representative of a

party raises significant concern to organizations like Farm

Bureau who may offer legal, financial or expert assistance

in a court proceeding to further members’ interests. Sig-

nificant assistance may be given without official participa-

tion and without any real ability to control the course of

proceedings. An extension of the sanctioning authority

may impede the ability to protect valuable rights.

In assessing a court's power to sanction, the Ninth

Circuit focused on Pavelic & Leklore v. Marvel Enter-

tainment Group, 493 U.S. 120, 110 S.Ct. 456, 107 L.Ed.

438 (1989) and Chambers v. Nasco, Tnc., V1 S.Ct.

2123. Although the two cases appear to arrive at differ-

ent conclusions regarding a court’s use of inherent power

to extend sanctions beyond delineated federal statutes or

rules, both cases stress the risk of venturing outside the

confines of legislatively enacted rules. The decision by

the Ninth Circuit to uphold sanctions against Petitioner

warrants review to demonstrate the error in reaching out

with inherent power when the sanctity of judicial proceed-

ings could have been maintained through existing rules

and statutes.” It is appropriate to analyze the extension

of authority to sanction because Petitioner does not fall

neatly into the categories of entities sanctioned as out-

lined in Pavelic, a law firm, or Chambers, a party. It is

essential to review the reason for focusing on Petitioner

as the entity to be sanctioned, rather than the individual

attorneys who prepared and submitted court documents on

behalf of the plaintiffs.

Farm Bureau, who may elect to participate in litigation

to further its members’ interests, is by necessity depend-

ent upon the attorneys who participate in court proceed-

mings. The organization, managed by non-attorneys, is not

competent to make an institutional judgment as to how

3 Fed. R. Civ. P. 11 and 280 U.S.C. § 1927 were the appropriate

means of imposing sanctions.

OE ——

7

far existing law may be stretched or the appropriateness

of filings. The responsible attorneys must remain account-

able for making legal determinations, as should have been

the case for Petitioner. [t is appropriate that responsibility

for any conduct outside acceptable boundaries be limited

to parties or representatives who possess appropriate au-

thority. If the Ninth Circuit's interpretation of the manner

in which sanctions are imposed is allowed to stand, organi-

zations will be reluctant to expose their members to the

financial risk of sanctions, as a result valuable rights may

go unchampioned.

CONCLUSION

It is incumbent upon this Court to review extreme

abuses by lower courts. In the instant case the District

Court and the Circuit Court elevated inherent powers to

a level of plenipotentiary power of the court. The courts

are to correct disregard for due process and the tradi-

tional rules of fair play, not impose them. If the dignity

of the courts is to be preserved, it is necessary that this

Court review the Ninth Circuit decision in order that

proper guidelines for administration of the inherent powers

of a court be established.

We submit that the issues presented are of such im-

portance that they should be considered by this Court.

For these reasons, the Writ of Certiorari should be

granted,

April 19, 1993

8

Respectfully submitted,

JOHN J. RADEMACHER *

General Counsel

JEROME J. WERDERITCH

AMERICAN FARM BUREAU

FEDERATION

225 Touhy Avenue

Park Ridge, IL 60068

(312) 399-5735

NANCY N. MCDONOUGH

General Counsel

CALIFORNIA FARM BUREAU

FEDERATION

1601 Exposition Boulevard

Sacramento, CA 95815

(916) 924-4035

* Counsel of Record