National Organization for the Reform of Marijuana Laws v. Mullen

828 F.2d 536, 9 Fed. R. Serv. 3d 51
CourtCourt of Appeals for the Ninth Circuit
DecidedSeptember 21, 1987
DocketNo. 86-1978
StatusPublished
Cited by22 cases

This text of 828 F.2d 536 (National Organization for the Reform of Marijuana Laws v. Mullen) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
National Organization for the Reform of Marijuana Laws v. Mullen, 828 F.2d 536, 9 Fed. R. Serv. 3d 51 (9th Cir. 1987).

Opinion

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. § 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.

BACKGROUND

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 [539]*539September 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.

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:

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, [540]*540make a stenographic record of the proceedings, and exercise all other powers described in Federal Rule of Civil Procedure 53(c);
[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
[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.

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Marijuana Laws v. Mullen
828 F.2d 536 (Ninth Circuit, 1987)

Cite This Page — Counsel Stack

Bluebook (online)
828 F.2d 536, 9 Fed. R. Serv. 3d 51, Counsel Stack Legal Research, https://law.counselstack.com/opinion/national-organization-for-the-reform-of-marijuana-laws-v-mullen-ca9-1987.