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

    No. 92-1544

In  T h e

Supreme Court of tfje Umtcb States?
O ctober Term , 1992

Pacific Legal F oundation,
Petitioner,

v.

Paul Kayfetz, et al,
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 OF THE NAACP LEGAL DEFENSE 

AND EDUCATIONAL FUND, INC., AS AMICI CURIAE 
IN SUPPORT OF THE PETITION FOR A 

WRIT OF CERTIORARI

Antonia Hernandez 
E. Richard Larson 
Mexican American 
Legal Defense and 
Educational Fund 

634 South Spring St. 
Eleventh Floor 
Los Angeles, CA 90014 
(213) 629-2512

Elaine R. Jones 
Charles Stephen Ralston 
(Counsel of Record)
NAACP Legal Defense and 
Educational Fund, Inc.

99 Hudson Street 
Sixteenth Floor 
New York, NY 10013 
(212) 219-1900

Attorneys fo r  A m icus Curiae



No. 92-1544

In The

Supreme Court of tije Hntteb States;
October Term , 1992

Pacific Legal Foundation,
Petitioner,

v.

Paul Kayfetz, et al,
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 OF THE 
NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, 

INC., AND THE MEXICAN AMERICAN LEGAL 
DEFENSE AND EDUCATIONAL FUND AS AMICI 

CURIAE IN SUPPORT OF THE PETITION 
FOR A WRIT OF CERTIORARI

The NAACP Legal Defense and Educational Fund, 
Inc., and the Mexican American Legal Defense and 
Educational Fund move the Court for leave to file the 
attached brief amici curiae in support of the grant of a writ 
of certiorari in the present case.1 The motion for leave to 
file states the interest of amici.

lrThe Petitioner has consented to the filing of the attached brief, 
but respondent has refused consent.



2

The NAACP Legal Defense and Educational Fund, 
Inc. ("LDF') is a non-profit corporation that was established 
for the purpose of assisting black citizens in securing their 
constitutional and civil rights. It was established in 1940 as 
a legal aid society under the laws of the state of New York, 
and is one of the oldest public interest legal organizations in 
the United States. This Court has noted the Fund’s 
"reputation for expertness in presenting and arguing the 
difficult questions of law that frequently arise in civil rights 
litigation." NAACP  v. Button, 371 U.S. 415, 422 (1963).

The Mexican American Legal Defense and 
Educational Fund ("MALDEF') is a non-profit national civil 
rights organization headquartered in Los Angeles. Its 
principal objective is to secure, through litigation and 
education, the civil rights of Hispanics living in the United 
States

As public interest legal organizations LDF and 
MALDEF have a deep concern with the use of a federal 
court’s "inherent power" to impose sanctions on 
organizations seeking to carry out the Congressional policy 
of private enforcement of the civil rights laws and other laws 
impacting on the public interest. Further, we are concerned 
with the use of the sanctioning power on plaintiffs and 
private counsel who seek to vindicate their rights in federal 
court.

We believe our long experience as public interest 
organizations will be of assistance to the Court in deciding 
whether to grant certiorari in this case. Therefore, we pray



3

that leave be granted to file the accompanying amicus curiae 
brief in support of the petition for a writ of certiorari.

Charles Stephen Ralston 
(Counsel of Record)
NAACP Legal Defense and 
Educational Fund, Inc.

99 Hudson Street 
Sixteenth Floor 
New York, NY 10013
(212) 219-1900

Antonia Hernandez 
E. Richard Larson 
Mexican American 
Legal Defense and 
Educational Fund 

634 South Spring St. 
Eleventh Floor 
Los Angeles, CA 90014
(213) 629-2512

Attorneys fo r  A m icus Curiae



TABLE OF CONTENTS

M otion  for  Leave to F ile Brief Amicus Curiae . 1

Argument .............................................................................1

The  Decision Below R aises Important Questions 
Concerning the Scope and Meaning of this 
Court’s Decision in  Chambers v . Nasco, Inc. . . .  1

Conclusion 5



u

TABLE OF AUTHORITIES

Cases: Pages:

Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975) . . .  3

Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 
240 (1975) ..................................................  5

Chambers v. Nasco, Inc., I l l  S.Ct. 2123 (1 9 9 1 ).......... 4, 5

Griggs v. Duke Power Co., 401 U.S. 424 (1971) . . . . . . .  3

In re Primus, 436 U.S. 412 (1 9 7 8 )...............   4

Lockary v. Kayfetz, 974 F.2d 1166 (9th Cir. 1992) . . . . .  2

NAACP v. Button, 371 U.S. 415 (1963) ........................  2, 4

Sassower v. Fields, No. 92-1405, cert, denied, April 19,
1993 ..............     5

Statutes and Rules: Pages:

28 U.S.C. § 1927 ....................... .. ................. 2, 4, 5

Rule 11, F.R.Civ. Proc. ................................................  2, 4, 5

Rule 23, F.R. Civ. Proc. . . . . 3



No. 92-1544

In  The

Supreme Court of tfje Mmteb States
October Term , 1992

Pacific Legal Foundation,
Petitioner,

v.

Paul Kayfetz, et al,
Respondents.

On Petition for a Writ of Certiorari to the 
United States Court of Appeals 

for the Ninth Circuit

BRIEF OF THE NAACP LEGAL DEFENSE AND 
EDUCATIONAL FUND, INC., AND THE MEXICAN 

AMERICAN LEGAL DEFENSE AND EDUCATIONAL 
FUND AS AMICI CURIAE IN SUPPORT OF THE 

PETITION FOR A WRIT OF CERTIORARI

Argument

The Decision Below Raises Important Questions 
Concerning the Scope and Meaning of this 
Court’s Decision in  Chambers v . Nasco, Inc.

I.

Amici believe that review of the Ninth Circuit’s 
decision is particularly important because of the basis on 
which that court justified the use of "inherent authority" to 
impose sanctions on a not-for-profit public interest legal



2

organization that was supporting litigation. The decision 
below was founded on assumptions about the manner in 
which such an organization functions that are, with all due 
respect, not accurate. These assumptions were the basis of 
the holding that the district court had the authority to 
impose sanctions on the Pacific Legal Foundation even 
though the foundation was not subject to Rule 11, F.R.Civ. 
Proc., 28 U.S.C. § 1927, or any other rule or statute that 
provided for the imposition of sanctions.

Thus, the court below cited the acknowledgement of 
Pacific Legal Foundation in its appellate brief that it seeks 
"to participate in precedent setting litigation in the public 
interest" as inconsistent with the Foundation’s position that 
it was furnishing counsel to plaintiffs who could not 
otherwise afford to bring suit. The court held that because 
the Foundation’s goal was to "establish a legal precedent" 
the plaintiffs were merely "nominal" and "were merely pawns 
or puppets in this effort." Lockary v. Kayfetz, 91A F.2d 1166, 
1171 (9th Cir. 1992).

Amici urge that the fact that an organization has as 
one, or even a primary goal, the establishment of precedent 
does not in any way lead to the conclusion that the plaintiffs 
in the lawsuits it supports are either nominal or "pawns or 
puppets." Organizations such as the Foundation and amici 
are limited in resources. They cannot serve as general legal 
aid providers and represent everyone who seeks their 
services, even if the cases are within the scope of their 
purposes and expertise. They are necessarily selective, and 
attempt to choose those cases that will have the greatest 
impact either in terms of establishing precedent that can 
then be used by others in similar circumstances, or by 
bringing actions that will in themselves affect many persons. 
The ideal case, of course, is one that accomplishes both 
purposes.1

lrThus, an employment discrimination case brought as a class 
action on behalf of a large group of workers at a particular plant can 
both directly benefit the plaintiffs and establish a precedent that can



3

In either event, the interests of the real people with 
real claims on whose behalf actions are brought are not only 
central but, properly, paramount. Attorneys who work for 
public interest organizations are fully aware of their ethical 
obligations to represent the interests of their clients, and do 
not subordinate them to the dictates of "a higher cause." 
While the decision whether or not to take a case in the first 
instance may be dictated by whether that case, among many 
other possible cases, is compatible with and will further the 
objectives of the organization, once representation has been 
assumed, litigation decisions are made based on whether the 
interests of the clients will be served.

For example, it is not uncommon that a case that was 
taken as a vehicle for the vindication of a legal principle, will 
result in a settlement that provides appropriate relief for the 
plaintiffs. Organizations such as amici fully understand that 
if such is the case, the settlement must be presented to their 
clients and accepted on their behalf if that is their decision. 
This is mandated not only by ethical standards, but also, in 
the case of class actions, by the requirements of Rule 23, 
F.R. Civ. Proc.

Of course, disagreements between public interest 
lawyers and their clients may arise, just as they arise between 
any other lawyers and their clients. If conflicts do arise, they 
must and are resolved consistent with the ethical obligations 
of the lawyers, and there are instances in which a public 
interest legal organization may have to seek to be relieved 
as counsel if the differences are irreconcilable. Although, in 
the experience of amici, such instances are rare, they have 
occurred in the many years of the our work.

Thus, certiorari should be granted to make clear the 
extent to which, if any, the fact that an organization supports 
litigation that is consistent with its purposes is a proper basis

benefit large numbers of other persons. Two examples from the 
work of LDF are Griggs v. Duke Power Co., 401 U.S. 424 (1971) and 
Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975).



4

for holding that it can be sanctioned for abuses that occur 
during the course of the litigation. The activities of such 
organizations have long been held to be protected by the 
first amendment. NAACP v. Button, 371 U.S. 415 (1963); In 
re Primus, 436 U.S. 412 (1978). The decision of the Ninth 
Circuit has grave implications for the ability of such 
organizations to carry out constitutionally protected activities 
free of the chilling effect of the danger of the imposition of 
sanctions based on pre-conceived notions of their role in 
supporting litigation.

II.

Certiorari should also be granted in the present case 
because it presents an opportunity for the Court to deal with 
a broader issue of great importance for the guidance of the 
lower courts, the proper application of the decision in 
Chambers v. Nasco, Inc., I l l  S.Ct. 2123 (1991). In Chambers 
this Court affirmed the use of inherent powers to sanction 
a party before the district court for actions taken by that 
party in and out of court with the intent of impeding or 
directly disobeying the rulings and orders of the court, such 
out-of-court actions not being within the reach of the terms 
of the various fees acts, Rule 11, section 1927, or other bases 
for imposing sanctions. Rather than applying Chambers to 
comparable factual situations, in a number of instances the 
lower courts have extended Chambers far beyond its 
appropriate reach.

Thus, Chambers involved a party who was responsible 
for litigation carried out for abusive purposes and for out-of- 
court actions designed to undermine the district court’s 
jurisdiction. The award of sanctions was based on record- 
based factual findings that established responsibility for the 
sanctioned actions. In the present case, on the other hand, 
the sanctions were based on assumptions that formed the 
predicate for a holding that the named plaintiffs were not 
the real parties in interest, but that rather an organization 
that supported the litigation was. Moreover, the present



5

case involves alleged improper litigation conduct that 
occured entirely in court, all of which could ahve been 
reached through Rule 11 or section 1927. Yet the district 
court resorted to the use of inherent power.

Another case that involves an unwarranted extension 
of Chambers is Sassower v. Fields, No. 92-1405, cert, denied, 
April 19, 1993. In that case, the court of appeals first held 
that fee shifting was not proper under the fee provision of 
the Fair Housing Act, that sanctions were not proper under 
Rule 11 and only partly proper under section 1927, but then 
affirmed the entire award of sanctions under the authority 
of Chambers. The present case and Sassower, amici submit, 
are indicative of a growing trend to undermine the American 
Rule as explicated in Alyeska Pipeline Serv. Co. v. Wilderness 
Soc’y, 421 U.S. 240 (1975), by swallowing it up through the 
over-expansion of exceptions to it. We urge that it is 
essential that the Court provide guidance to the lower 
federal courts as to the proper scope and meaning of 
Chambers v. Nasco, supra.

For the foregoing reasons, the petition for a writ of 
certiorari should be granted.

C o n c l u s io n

Respectfully submitted,

Antonia Hernandez 
E. Richard Larson 
Mexican American 
Legal Defense and 
Educational Fund 

634 South Spring St. 
Eleventh Floor 
Los Angeles, CA 90014 
(213) 629-2512

Elaine R. Jones 
Charles Stephen Ralston 
(Counsel of Record)
NAACP Legal Defense and 
Educational Fund, Inc.

99 Hudson Street 
Sixteenth Floor 
New York, NY 10013 
(212) 219-1900

Attorneys fo r  A m icus Curiae