Hook v. Arizona Dept. of Corrections
| Citation | 107 F.3d 1397 |
| Decision Date | 22 April 1997 |
| Docket Number | Nos. 95-17317,CV-90-00054-PHX-CA,96-15642,CV-84-01626-PHX-CAM,P,CV-73-0097-PHX-CAM,s. 95-17317 |
| Parties | , 97 Cal. Daily Op. Serv. 1405, 97 Daily Journal D.A.R. 2080, 97 Daily Journal D.A.R. 5118 Evan Arthur HOOK, In re Hook plaintiffs in; Alan L. Gluth, In re Gluth plaintiffs in; Fletcher Charles Casey, Jr., In re Casey plaintiffs inlaintiffs-Appellees, v. ARIZONA DEPARTMENT OF CORRECTIONS, Defendant-Appellant. Evan Arthur HOOK, In re Hook plaintiffs in; Alan L. Gluth, In re Gluth plaintiffs in; Fletcher Casey, Jr., In re Casey plaintiffs inlaintiffs-Appellees, v. ARIZONA DEPARTMENT OF CORRECTIONS, Defendant-Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Thomas J. Dennis, Assistant Attorney General, Phoenix, AZ, for the defendant-appellant.
Joel W. Nomkin, Brown & Bain, Phoenix, AZ, for the Gluth plaintiffs-appellees.
Andrew S. Gordon, Coppersmith & Gordon, Phoenix, AZ, for the Hook plaintiffs-appellees.
Elizabeth Alexander, National Prison Project of the American Civil Liberties Foundation, Washington, DC, for the Casey plaintiffs-appellees.
Appeals from the United States District Court for the District of Arizona, David A. Ezra, District Judge, Presiding. D.C. Nos. CV-73-00097-CAM, MISC-95-00086-CAM.
Before: BEEZER and THOMPSON, Circuit Judges, and GONZALEZ, * District Judge.
In each of four prisoner civil rights actions, the district court entered a consent decree or an injunction and appointed a special master to monitor compliance with the decree and injunctions. Thereafter, the Arizona Legislature enacted Arizona Revised Statute Section 35-152. This statute prohibits the payment of fees and expenses incurred by a special master appointed by a federal court, unless the state legislature appropriates funds for such payment.
The defendants moved to modify the consent decree and injunctions to eliminate the requirement of a special master. The district court denied the motion and held the director of the Arizona Department of Corrections (Department), Samuel Lewis, in contempt of court for failing to pay the special masters' court ordered fees and expenses.
The defendants appeal the district court's order denying their modification motion and the court's order holding Lewis in contempt. They contend newly enacted section 35-152 required the district court to grant their modification motion and excused their failure to pay the special masters' fees and expenses.
As discussed more thoroughly below, we have jurisdiction over this appeal pursuant to 28 U.S.C. §§ 1291 and 1292(a)(1). We affirm the district court's denial of the modification motion and its contempt order. 1
The present appeal involves four prisoner civil rights actions: Hook v. State of Ariz. After these orders were entered, the State of Arizona enacted Arizona Revised Statute Section 35-152. This section provides:
Gluth v. Arizona Dep't of Corrections, and two cases entitled Casey v. Lewis. In each case, the defendants were subject either to an injunction or a consent decree. Also, in each case, the district court appointed a special master to monitor compliance with the injunctions and consent decree and ordered the Department to pay the fees of the special masters on a timely basis and to maintain an account with a minimum balance that the masters could use for expenses. These orders require the special masters to submit a statement of fees by the first of the month and the defendants to pay the fees within fourteen days of receipt of the statement. The defendants also are required to maintain a minimum account balance of $5,000 in each of the Gluth and Casey cases and $3,000 in the Hook case
A. An officer, employee or agent of this state shall not open and maintain an account for the purpose of paying fees and expenses that are incurred by a special master who is appointed by a federal court.
B. Notwithstanding any law to the contrary, an officer, employee or agent of this state is not subject to personal liability for complying with subsection A.
C. An officer, employee or agent of this state shall not pay fees and expenses for special masters appointed by a federal court unless the legislature appropriates monies for the payment of the special master fees and expenses.
D. Notwithstanding any law to the contrary, the failure of the legislature to appropriate monies for the payment of fees and expenses for special masters appointed by a federal court does not subject an officer, employee or agent of this state to personal liability for the special master fees and expenses.
E. This section applies to all bills for fees and expenses for special masters appointed by a federal court that are submitted after the effective date of this section.
Ariz.Rev.Stat. § 35-152.
Section 35-152 became effective on July 13, 1995. On August 1 and 2, 1995, the special masters submitted their invoices for services performed during July 1995. Under the court's orders, the defendants were required to pay the bills by August 16, 1995. The defendants did not pay the bills, did not maintain the minimum account balances, and the State Legislature did not appropriate funds for the fees and expenses. Instead, on the date payment was due, the defendants filed a motion to modify the district court's orders regarding the timing of payments of the special masters' fees and expenses to allow presentment of the statements to the Arizona Legislature, as required by section 35-152. The defendants contended the district court should substitute a magistrate judge for the special masters to avoid a conflict with section 35-152. The prisoners responded with a petition to compel payment and moved the district court to hold Lewis in contempt.
On September 28, 1995, the district court heard the parties' motions. At that time, the defendants had not paid the bills submitted for July or August 1995. The district court declined to modify the injunctions and decree and found Lewis in civil contempt. The district court set a date of November 1, 1995, to hear argument on the appropriate contempt sanctions. Two days prior to the hearing, the defendants paid the two outstanding invoices and replenished the expense accounts.
The district court noted the defendants' "continuous history of noncompliance" with the court's orders and imposed a coercive fine of $10,000 per day for future noncompliance with the special master provisions. The defendants appeal from the district court's orders denying their modification motion and holding Lewis in contempt.
We first must determine whether we have jurisdiction over this appeal. The parties do not dispute that we have jurisdiction over the district court's post-judgment contempt order. See Stone v. City and County of San Francisco, 968 F.2d 850, 854-55 (9th Cir.1992), cert. denied, 506 U.S. 1081, 113 S.Ct. 1050, 122 L.Ed.2d 358 (1993). The prisoners argue, however, that we do not have jurisdiction over the district court's order denying the defendants' modification motion.
In this argument, the prisoners contend that "[o]rders of reference to a master are generally interlocutory and not appealable." National Org. for the Reform of Marijuana Laws v. Mullen, 828 F.2d 536, 540 (9th Cir.1987); see also Thompson v. Enomoto, 815 F.2d 1323, 1326-27 (9th Cir.1987). In Mullen and Thompson, we concluded the appointment of a special master was not an appealable order under 28 U.S.C. § 1292(a)(1) because the appointment did not modify any provision of an injunction or consent decree.
Section 1292(a)(1) allows appeals of interlocutory orders "granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions...." 28 U.S.C. § 1292(a)(1). In Thompson, we explained the appointment did not modify a consent decree because the decree contemplated the appointment and, thus, the appointment was "pursuant to, and not a modification of, the original consent decree." Thompson, 815 F.2d at 1327.
The present case is distinguishable. The defendants are not appealing from the appointment of or reference to a special master. Instead, based on an intervening state statute, the defendants seek to modify the injunctions and consent decree to eliminate the special master provisions by substituting a magistrate judge for the special masters. By denying the defendants' motion, the district court has required the defendants to continue paying the masters' fees and expenses. The denial has an injunctive effect because the defendants must timely pay the fees and expenses or be subject to contempt. The denial of the motion, therefore, is appealable under section 1292(a)(1). See Stone, 968 F.2d at 859 (). 2
The next question is whether the defendants filed a timely notice of appeal.
On October 17, 1995, the district court granted the prisoners' contempt motion and denied the defendants' modification motion. On November 14, 1995, the district court granted the prisoners' request for attorney fees and costs and imposed sanctions for the contempt. The defendants filed their notice of appeal on November 20, 1995.
We requested supplemental briefing on the question whether the defendants were required to file a notice of appeal within thirty days of the October 17th order or whether the defendants could appeal from the modification order by filing a notice of appeal within thirty days of the November 14th order. Having read and considered the parties' supplemental briefs, we conclude the notice of appeal was timely.
If an interlocutory order is appealable, a party may immediately appeal that order without awaiting entry of a...
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