Pacific Legal Foundation v. Kayfetz Motion for Leave to File and Brief Amici Curiae

    N o. 92-1544

In T he

&u|imnr (tart of tljr lluitri States
O ctober T erm , 1992

Pacific L egal Foundation,
Petitioner,v.

Paul Ka y fetz ; V ictor A moroso;
D iana Lopez  Farnsworth; Doris E laine L eM ieux; 

J ack Bowen McC lellan ; W illiam N iman; 
O rville Schell; M arguerittf. Harris; J udith Weston; 

andBoLiNAS 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

J ohn J. Rademacher * 
General Counsel 

J erome 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

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1 ii
In T he

$upr?nt? (Erntrt of tip luitFft States
O ctober T erm , 1992

No. 92-1544

Pacific L egal F oundation,
Petitioner,v.

Paul Kayfetz; V ictor A moroso;
D iana Lopez Farnsworth; Doris E laine LeM ieux; 

J ack Bowen McC lellan ; W illiam N iman; 
Orville Schell; M argueritte Harris; J udith Weston; 

and Bolinas Community P ublic Utility D istrict,
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 liti­
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
tiorari be granted.

Respectfully submitted,

J ohn J. Rademacher * 
General Counsel 

J erome J. Werderitch 
American Farm Bureau 

Federation 
225 Touhy Avenue 
Park Ridge, IL G0068 
(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



1
TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ............................................. ii

INTEREST OF AM ICI CURIAE  ..................................... 2

STATEMENT OF THE CASE ................................... —  3

REASONS FOR GRANTING THE WRIT............................... 3
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 
LITIGATION.......................... ........................ - ....... 3

II. THE NINTH CIRCUIT COURT OF APPEALS 
HAD SUFFICIENT MEANS TO IMPOSE 
SANCTIONS WITHOUT USE OF INHERENT 
POWERS....................................................................  5

CONCLUSION................   7



I
ii

TABLE OF AUTHORITIES
CASES Page

Link v. Wabash R. Co., 370 U.S. 626, 82 S.Ct. 1386
| (1962) ..........................................................................  3

Van Sickle v. Holloway, 791 F.2d 1431 (10th Cir.
; 1986)............................................................................. 4

Chambers v. Nasco, Inc., I l l  S.Ct. 2123 (1991) -. 4, 5, 6 
i Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565

(1877) ........................................................................ 4
Shaffer v. Heitncr, 433 U.S. 186, 97 S.Ct. 2659,

53 L.Ed. 683 (1977) .......................... - ...................  4
International Shoe Co. v. Washington, 326 U.S.

310, 66 S.Ct 154, 90 L.Ed. (1945) ......................  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.

1987) ...........................................................................  5
Blue v. U.S. Depart. Of Army, 914 F.2d 525 (4th

Cir. 1990) ..................................................................  5
Lockary v. Kayfetz, 974 F.2d 1166 (9th Cir.

1992) ........   5
Pavelic & LeFlore v. Marvel Entertainment Group,

493 U.S. 120, 110 S.Ct. 456, 107 L.Ed. 438 
(1989) ...........................      6

4- OTHER AUTHORITIES
28U.S.C. § 1927................................   5,6
Fed. R. Civ. P. 11 .....................   5 ,6

In T he

g’ujuTim* (Emtrt nf tljT ilnitrii
October T erm , 1992

No. 92-1544

Pacific Legal Foundation,
Petitioner,v.

Paul Kayfetz; V ictor A moroso;
D iana Lopez Farnsworth; Doris Elaine L eM ieux; 

J ack Bowen McC lellan; William N iman; 
Orville Sch ell ; Margueritte Harris; J udith Weston; 

and Bolinas Community Public Utility D istrict,
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 Fafm 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.



2

INTEREST OF AM ICI 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 million 
member families. AFBF farm and ranch members pro­
duce virtually every kind of agricultural commodity pro­
duced commercially 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 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 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., 1 1 1 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 v. 
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 International 
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.1 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 ttie 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.2

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

2 The 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 ol der 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 & LeFlore v. Marvel Enter­
tainment Group, 493 U.S. 120, 110 S.Ct. 456, 107 L.Ed. 
438 (1989) and Chambers v. Nasco, Inc., I l l  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.'1 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
ings. The organization, managed by non-attorneys, is not 
competent to make an institutional judgment as to how 3

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

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. It 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.



8

April 19,1993

Respectfully submitted.

J ohn J. Rademacher * 
General Counsel 

J erome 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



N-4

document in its possession relating to the moratorium. 
Notwithstanding the extraordinary broad nature of the request 
an|d the existence of the discovery stay, BCPUD did its best 
to respond. After obtaining certain clarification and 
liitiitations on the request, BCPUD made available virtually 
alj o f its documents relating to its water system or the 
moratorium. Nevertheless, the Pacific Legal Foundation 
("PLF") pursued litigation in state court seeking a writ of 
mandate against BCPUD to produce the requested documents.

10. In response to the PLF’s complaint, the 
Superior Court of Marin County concluded that the PLF’s 
claims were wholly without merit. The Court went on to 
find that the plaintiffs case was "clearly frivolous" and 
brought solely "to harass the District" and "for an improper 
motive." The Court awarded sanctions against the PLF. 
Attached to this declaration as Exhibit E is a true and correct 
copy o f the Superior Court’s decision. This decision was 
affirmed on appeal. Attached to this declaration as Exhibit F 
is a true and correct copy of the decision o f the First 
Appellate District affirming the lower court’s decision.

* * *

16. I am aware that the PLF is a well-financed 
organization engaged primarily in the "business" of litigation. 
Attached as Exhibit G is a true and correct copy o f the PLF’s 
Periodic Report filed with the State o f California for the year 
ending February 28, 1983. That annual report reflects that 
the PLF received gross contributions for that year in excess 
of $2,200,000. The PLF Periodic Reports for the subsequent 
three years each reflect gross contributions in excess of 
$ 2 ,000,000.

17. Attached to this declaration as Exhibit H is a 
PLF publication which discusses the Lockarv litigation. On

N-5

page 2 of that publication, the PLF’s president explains his 
rationale in asserting massive damages claims against so 
many individual defendants.

18. I am aware that the PLF has made reference 
to the Lockarv litigation in reports to prospective contributors 
and has publicized its efforts in this case. Even after the 
claims in this action were rejected by the Court, the PLF 
continued to publicize its litigation effects against BCPUD. 
Thus, within the past few months, the PLF publicized its 
more recent filing o f a state action against BCPUD 
challenging the same moratorium that was the subject of the 
present action. Attached to this declaration as Exhibit H 
through K are copies of some of the PLF publicity references 
to its litigation against BCPUD.

Executed this 16th day o f February, 1988, at 
San Francisco, California.

I declare under penalty of petjury that the foregoing 
is true and correct.

Richard E. V. Harris