National Organization For the Reform of Marijuana Laws v. Mullen

Decision Date21 September 1987
Docket NumberNo. 86-1978,86-1978
Citation828 F.2d 536
PartiesNATIONAL ORGANIZATION FOR THE REFORM OF MARIJUANA LAWS; the Civil Liberties Monitoring Project, Inc., a California nonprofit corporation; National Organization for the Reform of Marijuana Laws, a non-profit District of Columbia Corporation; the Civil Liberties Monitoring Project, Inc., a California Non-Profit Corporation; Richard Jay Moller, a California citizen; Katherine Bauer, a California citizen; Patricia Parson, a California citizen, Plaintiffs-Appellees, v. Francis M. MULLEN, Jr., individually and in his official capacity as Director of the Drug Enforcement Administration; Casper Weinberger, individually and in his capacity as Secretary of the United States Department of Defense, William French Smith, individually and as head of the United States Department of Justice, James M. Beggs, individually and in his official capacity as administrator of the National Aeronautics and Space Administration; John K. Van De Kamp, individually and in his official capacity as Attorney General of the State of California; Glendon B. Cragi, individually and in his capacity as Chief Officer of the California Highway Patrol, Defendants-Appellants.
CourtU.S. Court of Appeals — Ninth Circuit

Harold J. Krent, Washington, D.C., for defendants-appellants.

R. Elaine Leitner and David J. Meadows, San Francisco, Cal., for plaintiffs-appellees.

Appeal from the United States District Court for the Northern District of California.

Before CHOY, PREGERSON and CANBY, Circuit Judges.

PREGERSON, Circuit Judge:

The plaintiffs, the National Organization for the Reform of Marijuana Laws, the Civil Liberties Monitoring Project, and ten residents of Northern California (collectively "NORML"), brought this class action against various state and federal entities participating in the Campaign Against Marijuana Planting ("CAMP"). The complaint alleges that CAMP violated 42 U.S.C. Sec. 1983 and the fourth amendment to the United States Constitution in the execution of its marijuana eradication program. The district court issued a preliminary injunction limiting the scope of CAMP's activities. The district court later issued an order appointing a master to monitor compliance with the injunction. CAMP appeals this order.

CAMP argues that the prerequisites for appointment of a special master have not been met here, that the powers invested in the master are too broad, and that the federal entities participating in CAMP cannot be required to pay for the costs and expenses of the master. We hold that the order of reference is not appealable and that a writ of mandamus should not issue. We also hold that the federal entities can be required to pay for the costs and expenses of the master.


CAMP is a law-enforcement program designed to halt the cultivation of marijuana in California. The program involves the use of airplanes and helicopters to locate areas in which marijuana is grown. Once those areas are located, CAMP agents obtain warrants, enter the areas, and destroy the plants. National Org. for the Reform of Marijuana Laws v. Mullen, 608 F.Supp. 945, 949 (N.D.Cal.1985), remanded for consideration of subsequent authority, 796 F.2d 276 (9th Cir.1986).

NORML contends, and has provided declarations to show, that CAMP engaged in warrantless searches and seizures, arbitrary detentions and destruction of property, invasion of privacy, and otherwise disruptive behavior. Id. at 950. The district court in preliminary injunction proceedings found that CAMP had conducted numerous illegal searches and seizures, may have illegally detained various individuals, and had created a hazard by violating FAA safety regulations. Id. at 965. The district court enjoined CAMP from making warrantless searches and using helicopters in various intrusive and unsafe ways and ordered CAMP to instruct its staff as to the terms of the injunction. Id. at 965-66.

The injunction issued on April 12, 1985. In September 1985, the district court heard NORML's motion to hold CAMP in contempt for violation of the injunction. On On March 6, 1986, the district court filed its Order of Reference to Special Master. The court stated that even though NORML had not shown clear and convincing evidence that CAMP had deliberately violated the injunction, "[t]here was nevertheless credible evidence of violations." The district court continued as follows:

                September 27, 1985, the district court denied the order to show cause with respect to contempt, but amended the injunction to require (1) that CAMP supervisory personnel meet with CAMP local team leaders to plan raids so as to minimize the risk of violating the injunction, (2) that CAMP local team leaders brief each team member before each raid as to the terms of the injunction and the scope of the raid, and (3) that all helicopter pilots involved in a raid be briefed about the injunction and the flight paths and altitudes that must be maintained to comply with the injunction.  The September 27 order also announced the district court's intention to appoint a monitor pursuant to Fed.R.Civ.P. 53(a). 1   The September 27 order was not appealed

Such evidence of noncompliance with an injunction that first issued nearly a year earlier portends continuing violations, especially when viewed in light of the fast-paced and wide-ranging character of CAMP's surveillance and raid activities, the difficult legal issues involved, and the numerous affirmative measures that the Court has ordered defendants to undertake. These circumstances constitute an "exceptional condition," and call for the appointment of a Special Master (hereafter "Monitor") pursuant to Federal Rule of Civil Procedure 53 to monitor compliance with the injunction.

The district court stated that its appointment of the monitor was also made pursuant to "the inherent power of the Court to enforce its orders."

The March 6 order assigns the monitor, among other duties, the duty to "immediately report to the court any policies or practices that the Monitor believes may violate the letter or spirit of any term of the Preliminary Injunction." In addition, the order gives the monitor the following powers:

The Monitor shall not purport to direct any CAMP activities or agents, or issue orders, but shall have the power to:

[1.] obtain advance notice of CAMP-sponsored planning and training sessions that pertain to particular acts of surveillance and raids, and to attend such sessions, with or without advance notice to defendants;

[2.] obtain any document produced by CAMP or cooperating agencies or individuals that may be relevant to a determination of compliance with the injunction;

[3.] interview, on a confidential basis or otherwise, any CAMP director, supervisor, or team member, or any person assisting in the implementation of the CAMP program. However, the Monitor shall not base any findings or legal conclusions in any subsequent contempt hearing on statements received in this manner, or on statements received informally from citizens and witnesses;

[4.] obtain details of the times and locations of CAMP eradication raids and field operations in advance of those raids and operations, as soon as practicable after defendants determine the times and locations;

[5.] be present during CAMP ground and air surveillance, the execution of warrants and raids, and all other field activities, with or without advance notice, but complying with all reasonable requests of CAMP personnel or counsel regarding safety and secrecy;

[6.] upon receipt of declarations or pleadings alleging violations, or when otherwise necessary, convene evidentiary hearings concerning any matter relating to compliance with the Preliminary Injunction, compel the attendance of witnesses, and take evidence. At such hearings the Monitor shall give the parties a reasonable opportunity to be heard [7.] within 15 days of the conclusion of any such hearing make written findings of fact and conclusions of law for submission to the Court; and

make a stenographic record of the proceedings, and exercise all other powers described in Federal Rule of Civil Procedure 53(c);

[8.] retain when necessary experts, specialists, or other persons whose advice or testimony the Monitor deems important to resolve questions concerning compliance with the injunction. The Monitor must obtain the approval of the Court before retaining any such person.

Pursuant to the order, the monitor must serve the parties with copies of a proposed report or proposed findings, give the parties sufficient time to submit objections and request a hearing, serve the parties with copies of any modifications of the report or findings, and hold hearings when requested, before filing any report or findings with the district court. The order also directs that all of the monitor's fees, costs, and expenses are to be borne by the defendants.

I. Appealability of the Order

Orders of reference to a master are generally interlocutory and not appealable. Deckert v. Independence Shares Corp., 311 U.S. 282, 290-91, 291 n. 4, 61 S.Ct. 229, 234, 234 n. 4, 85 L.Ed. 189 (1940); 9 C. Wright & A. Miller, Federal Practice & Procedure, Sec. 2615 (1971). However, CAMP contends that the March 6 order of reference modifies a preliminary injunction under 28 U.S.C. Sec. 1292(a)(1), and thus is appealable. It is true that 28 U.S.C. Sec. 1292(a)(1) allows appeals of interlocutory orders "granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions, except where a direct review may be had in the Supreme Court." But the March 6 order of reference is not on its face a modification of the preliminary injunction that issued on April 12 of the previous year or of the amendment to the April 12 injunction that issued on September 27 of the previous year.

CAMP contends, however, that by giving the...

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