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HomeMy WebLinkAboutCOM 0295.004 1998-2000 CUUNTY OF HAWAII FICE OF THE CORYORAT[ON COUN: r Hilo Lagoon Center 1 u ~ ` 101 Aupunl Street, Sulte 325 - Hllo, HI 96720 C MEMORANDUM ~r Mr. Guy Paul Geac February 16, 198~CEIVED ^ Chie£ of Police ~ a~__._ ~v--_`.,.~. • Aaron S. Y. Chung, Deputy Corporation Cou'fis D°n'-----~~K.7-I pUUU~~--..---- County Council ,n; Methods 1mployed by Police in Marijuana Eradication Programs We sire enclosing for your information and reference copies of a 1985 U.S. District Caurt case and its subsequent appeal at the U. S. Court of Appeals level. The case, The National _O_r_g~an_ization for the :3eform of Mari uana Laws (NOItML) v. Mullen, 828 I~.~3~3~5^ ~h~ir'-Z~SS7) in ice es that a Aral m nary n unction may be issued t~~ enjoin certain police activities related with a law enfarcem~ant program designed to eradicate marijuana cultivation. In aa6ition, a master may be appointed to insure that the terms of the injunction are complied with. The pertinence o! such a decision is obvious in light of the department's 'operation grsenhar~isst" program. The case originated from a class action whereby the . plaintif:ES (°NORML") bropght suit against various state and federal ~:ntities participating in the Campaign Against Marijuana , Planting ("CAMP"), a sophisticated law enforcement program , employed in 37 California counties designed t0 eradicate the state's marijuana cultivation industry. In the complaint, the plaintiffs disputed the methods used by the law enforcement official: in carrying out: the objectives of the program. Alleged was that CAMP's air and ground activities violated the plaintiffs` fourth amendment rights. 6pecifically, plaintiffs complained of warrantl~sss searches and seizures, arbitrary detegtions, destruction of property. invasions of privacy, disruptive behavior ano indiscriminate and dangerous helicopter surve111ance of homes and cartilages. sas~ad on the testlmpny adduced, the bistrict Court .issued a prelimin~sry injunction limiting the scope of sUCb activities and issued a~ order appointipg a master to monitor compliance with the injuncti~~n, The Circuit Court of Appeals upheld the propriety of both the injunction and khe appointment of a master. The case is valuable with respect to the guridance it may provide to law enforcement officials in directing marijuana . eradication operations, Furthermore, it serves to indicate that a Comm. No, ~ /Sr GO~ ale No. VS ~f. Tot-PresMteil t puNC.tr^ Ref. Date ~tr ~ 2 _ , Ub:5~- FdS .9 UbkIU1b6Y2 CIJHP CIIUNSLL ~UU2 Mr. Guy A. Paul Page 2 February 16, 1988 court may be willing to appoint a master to monitor police operations in such programs where there is reason to believe that noncompliance with the law is occurring. We suggest that you read through the District Court's decision in that it elaborates on the specific instances of police misconduct cited. We will then be available to discuss with you the cases and their relation to police activities in greenharvest operations. ASYC:jk Enclosures APPROVED: J N A. I r C poratton Counsel 536 828 FEDERAL REPORTER, 2d SERIES I, and in particular the Wilkinson property s ca 'I The County, by contrast, has not suggested NATIONAL ORGANIZATION $OR THE U any off-reservation interest in imposing its REFORM OF MARIJUANA LAWS; the et zoning code on fee land within the reaerva- Civil Liberties Monitoring Project, Inc., la ~ tion. See Meaealero Apache, 462 U.S. at a California nonprofit corporatton; Na• in 336, 109 S.Ct. at 2387 ("The exercise of Lionel Organization for the Reform of it ~ y P Mar uena Lawa, a non- ro i, state authorit which im oses additional ~ P tit District tE burdens on a tribal enterprise must ordi- of Columbia Corporation; the Civil m Warily be justified by functions or services Liberties Monitoring Project, Inc., a in performed by the State in connection with California Non-Profit Corporation; p+ Richard Jay Moller, a California citi- (1 the on-reservation activity. Thus a State zen; Katherine Bauer, a California till- lc seeking to impose a tax on a transaction zen; Patricia Parson, a California citi- d between a tribe and nonmembers must zen, Plaintiffs-A I~, point to more than its general interest in Ppelleee, p raising revenues. A State's regulatory in- v' P Francle M. MULLEN, Jr., individuall ~ ICI, terest will be particularly substantial if the y o I! State can point to off-reservation effects end in hie official rapacity as Director e that necessitate state intervention.") (tits- of the Drug Enforcement Adminiatra- l tion; Casper Weinberger, individually lions omitted). and in hie capacity as Secretary of the ~ United States Department of Defense, [6l We conclude, however, that for this William French Smith, individually and 1 court to weigh the varying interests at this ~ head of the United States Depart- time would be premature. Because the ment of Justice, James M. Beggs, indi- E district court found that Yakima Nation vidually and in hie official capacity ae ~ lacked the authority to zone fee land owned administrator of the National Aeronau- ; by non-Indians within the open area, it did lice and apace Administration; John K. not make findings of fact concerning the Van De Katnp, individually and in his , interests asserted, nor did it balance the official capacity se Attorney General of l federal, tribal, and state interests. We the State of California; Glendon B. ~ therefore remand to the district court the Cragi, individually and in his capacity + issue of whether the interests of Yakima as Chief Officer of the California High• , Nation, as shaped by federal policy, out- way Patrol, Defendants-Appellants. weigh the interests of the County in impos- No. 86-1978. ing zoning ordinances on fee land owned by United Staten Court of Appeals, non-Indiana in the open area. Ninth Circuit. Argued and Submitted Feb. 11, 1987. CONCLUSION Decided Sept. 21, 1987. The district court's judgment in White- aide I is affirmed. Its judgment in White- Action was brought against various aide II is reversed and remanded. state and federal entities participating in S. As alleged, Yakima Nation's interest in con- there is a substantial danger of severe erosion _ trolling land use in the open area, although and runoff fn.m the subdivision and that the obviously less compelling than that in the closed contemplated change in the land tue of the '~y area, appears also to be strong. The open area Wilkinson parcel and development of the sur• is largely used for agriculture, upon which rounding arcs, would interfere with Yakima many tribal members depend for their liveli- Nation's interest in the integrity of its culture hood. Specifically with regard to the Wilkinson , ~ + property, Yakima Nation has assened that the and way of Iife. Sacred burial grounds are r,_ proposal would require the construction of new located in the area. Finally, Yakima Nation roads and coWd alter the flow end quantity of alleges that increased development would re- ground water. Yakima Nation alleges that 9Wre additional police services. i i I i l . ~ ORGANIZATION FOR REFORM OF MARIJUANA LAWS v. MULLEN 537 Clte u B78 F2d 88a (9th C4. 1987) campaign against marijuana planting. The diction, under test set forth in Bauman v. E United States District Court for the North- United Staten District Court, Court of 1e ern District of California, Robert P. Agui- Appeals is required to consider extent to lar, J., issued preliminary injunction limit which case before court conforms with a- ing scope of federal and state entities activ- guidelines; rarely will all guidelines be eat- ~ ~ of ides and later issued order appointing mss- isfied in any individual case. et ter to monitor compliance with injunction, q. Mandamus 4=47 •il and state and federal entities participating Inasmuch as three of guidelines set a in campaign appealed. The Court of Ap- forth in Bauman v. United States District li tn; peals, Pregerson, Circuit Judge, held that: Court for determining whether Court of ai_ (1) order of reference to master-was inter Appeals could review district court's order i ti- locutory order and not appealable; (2) or of reference to master under mandamus ti- der of reference to master to monitor com- jurisdiction were clearly met, Bauman bal- pliance with preliminary injunction was ancing teat should allow mandamus juria- 1 proper under federal rules and under All diction over pretrial order of reference to Writs Act; and (3) United States could be master if order was clearly erroneous as ily ordered to pay master's fees, costa and or matter of law. expenses. re- 8. Federal Civil Procedure 4=1877 Petition for writ of mandamus denied. Ily Prospect of noncompliance with injunc- i the tion is exceptional condition that justifies ` se, 1. Federal Courts a=686 reference to master; there is no require- ` end Orders of reference to master are gen- ment of final determination of constitution- f ~ erally interlocutory and not appealable. 28 al violation or determination of intentional ~di- U.S.C.A. § 1292(a). disregard of court order before exceptional u condition justifying reference to master au- 2. Federal Courts ~e686 can arise. Fed.Rulea Civ.Proc.Rule b3(c), R. Even if order of reference to master ~ U.S.C.A. hied was construed to contain implied order for I of parties not to interfere with duties of mss- 8. Federal Civil Procedure 4=1877 B• ter, such order wen not injunctive, and thus Federal Courts 4=627 city order was interlocutory and not appealable. District court's finding that various iBh= 28 U.S.C.A. § 1292(a). state and federal entities participating in S. Mandamus ~4T campaign against marijuana planting had Mandamus may be used to challenge vl°lated court injunction, though not de]'b- district court's improper exercise of power erately, and would likely violate injunction rating master. in future warranted reference to master m appo under federal rule and under All Writs Act, ,y '7. 4. Mandamus t~164(2) and thus pretrial order of reference to mss- y ' Court of Appeals may, where appropri- ter was not reviewable under Court of Ap• .,.~y ate, treat appeals as petitions for mends- peals' mandamus jurisdiction. Fed.Rules rious; mue. Civ.Proc.Rule 53(c), 28 U.S.C.A.; 28 U.S. 'g ul 6. Mandamus 4=47 C.A. § 1651(a). -onion'' Court of Appeals could review district 10. Federal Civil Procedure 4=1893 at the: court's order of reference to master under In context of monitoring compliance ~f they mandamus jurisdiction if test set forth in with wurt order, the district court properly stir- Bauman v. United States District Court gave master power to act as investigator as aitinuE well as hearing officer. :uittux was satisfied. is are 6. Mandamus X47 11. Federal Civil Procedure 4=1690 Nation ' ,id re- In determining whether Court of Ap- Masters may not be placed in control peals may review district court's order of of governmental defendants for purpose of reference to master under mandamus juris- forcing them to comply with court orders. 538 828 FEDERAL REPORTER, 2d BERIES O 12. Conetitutlonal Law e=73 ties. The district court later issued an Septemb Federal Civil Procedure x+1890 order appointing a master to monitor tom- Hied the Master appointed to monitor compli- pliance with the injunction. CAMP appeals to contei ance with injunction against various elate Chia order. require i and federal entities participating in cam- CAMP argues that the prerequisites for nel meet paign against marijuana planting was not appointment of a special master have not plan ra' given power to control or administer gov- been met here, that the powers invested in violating ernmental efforts, only to observe them, the master are too broad, and that the cal lean and thus duties assigned did not create federal entities participating in CAMP can- before ~ impermissible incursion upon function of not be required to pay for the coats and mlun~c executive. expenses of the master. We hold that the that all 13. Federal Civil Procedure x=1890 order of reference is not a be brief ppealable and flight p Master appointed to monitor compli- that a writ of mandamus should not issue. maintain ance with injunction issued against various We also hold that the federal entities can The Se elate and federal entities participating in be required to pay for the coats and ex- distric P• f campaign against matquana planting had penses of the master. Wr pun ability to compel production of confidential i Septemt documents and to conduct confidential in- BACKGROUND terviewa. ~ On M CAMP is slaw-enforcement program de- - its Ordt 14. United States X147(3) signed to halt the cultivation of marijuana The cou Master's fees, coats, and expenses in California. The program involves the r had not were costa which could be assessed against use of airplanes and helicopters to locate deuce tl United States. 28 U.S.C.A. 1920, areas in which marijuana is grown. Once the injt 2412(a). those areas are located, CAMP agents ob- credible fain warrants, enter the areas, and destroy trio ce~ Harold J. Krent, Washington, D.C., for the plants. National Lhg. for the Reform Suc defendants-appellants, of Marijuana Lawa v. Mullen, 608 F.Supp. - an in, R. Elaine Lehner and David J. Meadows, 946, 949 (N.D.Ca1.1986), remanded forcon- year San Francisco, Cal., for plaintiffs-appellees. aideration of subsequent authority, 790 lions, ' F.2d 276 (9th Cir.1980). the f: Appeal from the United States District NORML contends, and has provided dec- ter o1 f Court for the Northern District of Califon bastions to show, that CAMP engaged in tivitie nia. warrantless searches and seizures, arbi- and t Before CHOY, PREGERSON and trar9 detentions and destruction of proper- that f CANBY, Circuit Judges. ty, invasion of privacy, and otherwise dis- under rnptive behavior. Id at 960. The district lute PREGERSON, Circuit Judge: court in preliminary injunction proceedings for tl The plaintiffs, the National Organization found that CAMP had conducted numerous (here, for the Reform of Marijuana Laws, the illegal searches and seizures, may have il- al Rc Civil Liberties Monitoring Project, and ten legally detained various individuals, and ~ comp residents of Northern California (collective- had created a hazard by violating FAA The dis ly "NORML"), brought this class action safety regulations. Id at 906. The dis- ment o. against various state and federal entities trict court enjoined CAMP from malting ant to ' participating in the Campaign Against Mar- warranUeea searches and using helicopters enforce ijuana Planting ("CAMl"'). The complaint m various intrusive and unsafe ways and The alleges that CAMP violated 42 U.S.C. ordered CAMP to instruct its staff as to a among § 1983 and the fourth amendment to the the terms of the injunction. Id at 96fr66. ately r United Statee Constitution in the execution The injunction issued on April 12, 1986. practice of its marijuana eradication program. The In September 1986, the district court heard `t t Fed district court issued a preliminary, infant- NORML's motion to hold CAMP in con- coup lion limiting the scope of CAMP's activi- tempt for violation of the injunction. On point i, ORGANiZATiON FOR REFORM OF MARIJUANA LAWS v. MULLEN ~j39 Clte u 828 F2d S36 (91h Ctr. 1987) September 2'I, 1985, the district court de• violate the letter or spirit of any term of nied the order to show cause with respect the Preliminary Injunction." In addition, to contempt, but amended the injunction to the order gives the monitor the following i ' require (1) that CAMP supervisory person- powers: + net meet with CAMP local team leaders to The Monitor shall not purport to direct plan raids so as to minimize the risk of any CAMP activities or agents, or issue violating the injunction, (2) that CAMP lo- orders, but shall have the power to: cal team leaders brief each team member [l.] obtain advance notice of CAMP- before each raid as to the terms of the sponsored planning and training cessions ~ injunction and the scope of the raid, and (3) that pertain to particular acts of surveil- ' that all helicopter pilots involved in a raid lance and raids, and to attend such acs- ~ be briefed about the injunction and the sions, with or without advance notice to flight paths and altitudes that must be defendants; maintained to comply with the injunction. [2.] obtain any document produced by i i The September 27 order also announced the CAMP or cooperating agencies or individ- diatrict court's intention to appoint a moni• oats that may be relevant to a determina- ~ I for pursuant to Fed.R.Civ.P. 53(s).' The tion of compliance with the injunction; September 27 order was not appealed. [3.] interview, on a confidential basis On March 6, 1986, the district court filed or otherwise, any CAMP director, super- ita Order of Reference to Special Master. vieoz, or team member, or any person The court stated that even though NORML assisting in the implementation of the had not shown clear and convincing evi- CAMP program. However, the Monitor dance that CAMP had deliberately violated shall not base any findings or legal con- the injunction, "[t]here was nevertheless elusions in any subsequent contempt i, credible evidence of violations." The dis- hearing on statements received in this trio court continued ea follows: manner, or on statements received infor- Such evidence of noncompliance with malty from citizens and witnesses; an injunction that first issued nearly a [4.] obtain details of the times and year earlier portends continuing viola- locations of CAMP eradication raids and tiona, especially when viewed in light of field operations in advance of those raids the faetpaced and wide-ranging chase- and operations, as soon as practicable ter of CAMP's surveillance and raid ac- after defendants determine the times and tivitiea, the difficult legal issues involved, locations; and the numerous affirmative measures [5.] be present during CAMP ground that the Court hoe ordered defendants to and air surveillance, the execution of undertake. These circumatancea conati• warrants and raids, and all other field - tote an "exceptional condition;' and call activities, with or without advance notice, for the appointment of a Special Master but complying with all reasonable re- ~ (hereafter "MOnltor") pursuant to Feden * quests of CAMP personnel or counsel al Rule of CivII Procedure 53 to monitor regarding safety and secrecy; compliance with the injunction. [6.] upon receipt of declarations or The district court stated that its appoint- pleadings alleging violations, or when ment of the monitor was also made pureu- otherwise necessary, convene evidentiary g ant to "the inherent power of the Court to hearings concerning any matter relating i enforce its orders." to compliance with the Preliminary In- The March 6 order assigns the monitor, junction, compel the attendance of wiG among other duties, the duty to "immedb nesaest and take evidence. At such hear ately report to the court any policies or inga the Monitor shall give the parties a practices that the Monitor believes may reasonable opportunity to be heard, t. Fed.R.Civ.P. 53(s"~ states in relevant part: "I'he rules the word 'master includes a ttferee, an wort in which any scion is pending may ap-~. auditor, an e2aminer, and an assessor." point a special master therein. Aa used in these l j G40 828 FEDERAL REPORTER, 2d SERIES make a stenographic record of the pro- lion that issued on September 27 of the Ga ccedinga, and exercise all other powers previous year. refer described in Federal Aule of Civil Proce- CAMP contends, however, that by giving ment dare b3(c); the monitor the power to obtain various injun ' [7.] within 16 days of the conclusion types of information from CAMP, the Post-: of any such hearing make written find- March 6 order modified the injunction. readi i ings of fact and conclusions of law for The March 6 order, however, does not in deers submission to the Court; and fact modify any individual directive in the abilit; [8.] retain when necessary experts, April 12 injunction or the September 27 _ give epecialista, or other persona whose ad- amendment. We assume, therefore, that fore j vice or testimony the Monitor deems im- CAMP's contention ie that by appointing a is alr I portattt to resolve questions concerning monitor and assigning the monitor inveati- order compliance with the injunction. The gative duties, the court has implicitly or proap Monitor moat obtain the approval of the dered the parties not to interfere with the cur tc . ~ Court before retaining any such person. monitor's duties, and this implicit order is K'~h Pursuant to the order, the monitor must itself injunctive. 1985) serve the parties with copies of a proposed ~ U.S. report or proposed findings, give the par- [2) If CAMP's contention is accepted, ' (1986) ties sufficient time to submit objections and all orders appointing a master and assign- Fur request a hearing, serve the parties with ing him or her powers that must be re- ~ court ' copies of any modifications of the report or spected by the parties would be appealable, preset findings, and hold hearings when request- because, according to CAMP, all such or even i ed, before filing any report or findings with dera are injunctive. Under Deckert, it is Thom the district court The order also directs clear that orders of reference to a master Cir.19 that all of the monitor's fees, costs, and are generally not appealable, and thus not ment expenses are to be borne by the defend- injunctive. Deckert involved reference to a ~ moniG master "tu take testimony and file a re was n~ pork" 311 U.S. at 286, 61 S.Ct at 232. thus ` DISCUSSION Thus in Deckert, as in the present case, the order master was assigned duties with which the in the I. Appeala6itity of the Order parties could not interfere. Deckert held power [lI Orders of reference to a master are that this reference was not appealable. It ~ tendin generally interlocutory and not appealable. ~ therefore clear from Deckert that even and sx Deckert v. Independence Shares Corp., ~ CAMP contends, en order of refer- comer 311 U.S. 282, 290-91, 291 n. 4, 61 S.Ct. 229, ence is construed to contain an implied tembe~ 234, 234 n. 4, Sb L.Fd. 189 (1940); 9 C. order not to interfere with the duties of the injunet Wright & A. Miler, Federal Practtce $ master, such an order is not appealable. plated Procedure, §2616 (1971). However, CAMP telies on Gary W. v. Louisiana, future CAMP contends that the March 6 order of 601 F.2d 240, 243-44 (6th Cir.1979), for the m Tieo 1 reference modifies a preliminary injunction proposition that an order investing a mss- ing fu under 28 U.S.C. $ 1292(axl), and thus is ter with investigatory powers is tanta- referee ` appealable. It is true that 28 U.S.C. mount to a modification of an injunction. lion of § 1292(axl) allows appeals of interlocutory In that case, the district judge granted a itself I orders "granting, continuing, modifying, permanent injunction following a trial. tent to refusing or dissolving injunctions, or re- The district judge retained jurisdiction over pealabi fusing to dissolve or modify injunctions, the matter and, two years after the is- not pr except where a direct review may be had in suance of the permanent injunction, ap• order ~ the Supreme Court" But the March 6 pointed a master to monitor implements- master order of reference is not on its face a lion of the decree. The Fifth Circuit held In li mad cation of the preliminary injunction that the order appointing the master mod- hold it 1 that issued on Apn'l 12 of the prerous year ified the permanent injunction and was re- appeals or of the amendment to the April 12 it>juno- viewable. nary is ORGANIZATION FOR REFORM OF MARIJUANA LAWS v. MULLEN 541 Clte k 828 P.2d 536 (9lh Cir. 1987) Fart' W. is distinguishable. The order of Il. Mandamus ~ •ence in Cary W. followed a final judg- [3l CAMP argues that, even if there is I t on the merits, viz., the permanent no jurisdiction under 28 U.S.C. § 1292(a), action. Courts allow appeals from this court has mandamus jurisdiction over ~ -judgment orders or decrees more the present controversy. Mandamus may illy than from interlocutory orders or be used to challenge a district court's im- rees. "The policy against and the prob• proper exercise of power in appointing a ~ ; ity of piecemeal review is not as deci- master. LaBuy v, Howes Leather Co., 3b2 e a consideration after judgment as be- U.S. 249, 2b6, 77 S.Ct. 309, 313, 1 L.Ed.2d -e judgment since the underlying dispute 290 (1957). already settled. Moreover, unless such -dens are found final, there is often little [4, b1 NOAML maintains, however, that ospect that further proceedings will oe- there is no mandamus jurisdiction because :r to make them final." United States v. CAMP has not filed a petition for manda- 'ashington, 761 F.2d 1404, 1406 (9th Cir. mus. In this circuit, however, we may, '85) (citations omitted), cert. denied, 474 where appropriate, treat appeals as peti- S. 1100, 106 S.Ct. 879, 88 L.Ed.2d 916 tions for mandamus. See Hartland v. , C, . :986y Alaska Airlines, 544 F.2d 992, 1001 (9th l: Furthermore, recent authority of this Cir.1976). Therefore, we may review the E court makes it doubtful whether the district court's order under mandamus jur- present order of reference is appealable isdiction if the teat set forth in Bauman v. even if issued following final judgment. in United States District Court, 557 F.2d 650 Thompson v. Enomoto, 815 F.2d 1323 (9th {9th Cir.i977} is satisfied. t, Cir,1987), we determined that apost-judg- [6] Under the Bauman test, we consid- ~ `t meat order of reference to a master to er the extent to which the following guide- E monitor compliance with a consent decree lines are met: was not a modification of an injunction and thus not appealable. Id. at 1327. The (1) The party seeking the writ has no order of reference in that case, like the one other adequate means, such as a direct g in the present case, gave the master the appeal, to attain the relief he or she power to investigate by interviewing, at- desires. tending meetings, obtaining documents, (2) The Petitioner will be damaged or and convening hearings. In addition, the prejudiced in a way not correctable an consent decree in Thompson, like the Sep- appeal. (This guideline is closely relat• ! tember 27 amendment to the preliminary ed to the first.) injunction in the present case, contem- (3) The district court's order is clearly x plated the appointment of a master in the erroneous as a matter of law. t future to help ensure compliance. We held (4) The district court's order is an oft-re- ij in Thompson that even when issued fo]]ow• peated error, or manifests a persistent ing final judgment or decree, an order of disregard of the federal rules, h reference is not appealable as a modifies- (5) The district court's order raises new tion of an injunction because it does not by and important pmblema, or issues of y itself have injunctive effect, It is impor- law of first impression. tant to point out, however, that the nonap~ Id. at 654-55 (citations omitted), quoted in pealability of the order of reference does Columbia Broadcasting Sya, v. United not preclude appeal of any district court States Diaf Court, 729 F.2d 1174, 1177 n. order that may eventually stem from the 1 (9th Cir.1984); accord City ojLas Vegas master's findings or reports. v. Foley, 747 F.Zd 1294, 1296 (9th Cir.1984) In light of Deckert and Thompson we (quoting In re Cement Antitrust Litiga• hold that the order of reference is nat lion, B88 F.2d 1297, 1301 (9th Cir.1982), E; appealable as a modification of the prelimi- affd sub nom. Arizona v. United Sfatea nary injunction. Dist. Court, 459 U.S. 1191, 103 S.Ct. 1173, ' 542 828 FEDERAL REPORTER, 2d SERIES 75 L.Ed.2d 425 (1983)). Rarely will all of if the order was clearly erroneous as a Comm these guidelines be satisfied in any individ- matter of law. See /n re United States, 3053, ' ual case. To determine whether the reme- 816 F.2d 1083, 1091 (6th Cir.1987) (manda- Estelle dy of mandamus is available, we are re- mua granted to vacate parts of pretrial amens quired to consider the extent to which the order of reference). We address this issue .t 266 (5t case before the court dcea nor does not below. 601 F. conform with the guidelines. Bauman, CAN 567 F.2d at 655 ("[R]arely if ever will a A. Reference to the Master tional case arise where all the guidelines point in only v the same direction or even where each 1. Rule 58(6) determ guideline is relevant or applicable.... Fed.R.Civ.P. b3(b) states in relevant part: and a [P]roper disposition will often require a "A reference to a master shall be the ex- regard balancing of wnflicting indicators...."). ception and not the rule.... In actions to for th' ' The first guideline in the Bauman teat is be tried without a jury, save m matters of Ther , ~ met in the present case because, as we just account and of difficult computation of a final concluded, CAMP cannot appeal the order damages, a reference shall be made only Uon be for which it seeks review. With respect to upon a showing that some exceptional con- fying r the second guideline, CAMP contends that dition requires it" Rule 5+ it will be damaged in a way not correctable CAMP argues that no exceptional rondi- tional by appeal after trial. It argues that the lion is present in the instant action. CAMP 25 (2d master is currently hindering CAMP in its contends that the district court appointed a rested law-enforcement activities. If indeed the master because of the prospect of Homer against master improperly obstructs CAMP's ef- ous, Umeconsuming hearings concerning more s forts, the Iaw~nforcement opportunities noncompliance with the injunction, and that dered lost while this suit is pending can never be this does not constitute an exceptional con- junctiot regained. Therefore, there is the prospect dition. eral m of irreparable harm, and the second guide- rales t line is met in the present case.: The third [81 Contrary to CAMP's contention, the (E.D.Te guideline, whether the district court's order prospect of noncompliance is an "exception- junctiot was clearly erroneous, will be discussed in al condition" Utat justifies reference to a }tgs "th the next section of this opinion. The master. The Supreme Court recently slat- any vic fourth guideline is not met in this case. ed in a civil rights case in which the district oleo Rt There is no evidence that Utie purported court issued an injunctien after trial that 53 is cc error is frequently repeated or is a man- in light of the difficulties inherent in ment o1 ifeatation of disregard for the federal monitoring compliance with the court's advanc ' rules. The fifth guidelbte is met because orders, and especially petitioners' estab• as an e whether a master may be employed to mon- lished record of resistance to prior state damage itor compliance with a preliminary injtm^- and federal court orders designed to end finding Uon of law4nforeement activities has not their discriminatory membership practic- Uae of been decided in Utia circuit. es, appointment of an administrator was Litigate ' [7] Because three of the guidelines are well within the District Court's discre- (empha: clearly met, the Bauman balancing teat lion. See Fed. Rule Civ.Prce. b3. of no ht should allow mandamus jurisdiction over Local 28 of Sheet Metal Workers Intl determi the pretrial order of reference to a master Asa'n v. Equal Employment Opportunity before ; J ter and 2 Although there is the prospect of irreparable ing the paymrnt of fees even if there is manda- harm from interference with lawtnforcement mus jurisdiction with respect to the remainder ment w efforts pursuant m the order of reference, there of the order. However, the importance of the tera to ~ is no prospect of irreparable harm from pay- issue of governmental immunity from the pay- their of i men[ of the maslels fees, costs, and expenses men[ of such fees, and the absence of relevant because the money paid can be recouped. For precedrnt, that is, the strength of conformity to Similt I this reason, it is arguable that the sewed Bau- the fihh Bauman guideline, would support man- that re man guideline is not met as to fees, and then demos jurisdiction, other things being equal, q I should be no mandamus jurisdiclio;i with re despite the absrnce of irreparable harm. diaregat 'i spec[ to the part of the order of reference direct- master I , I ORGANIZATION FOR REFORM OF MARIJUANA LAWS v. MULLEN 543 I ; Clle u B1B F.3d 336 (91h C4. 1987) Comm'n, - U.S. 106 S.Ct. 3019, In Hoptowit v. Ray, 682 F.2d 1237, 1263 i 3053, 92 L.Ed.2d 344 (1986); see Ruiz v. (9th Cir.1982) (order of reference vacated Estelle, 679 F.2d 1115, 1160-61 (5th Cir.), because of error in findings of underlying amended in part on rehearing, 688 F.2d violations), we upheld the appointment of a 266 (5th Cir.1982); Gary W. v. Louisiana, master to "monitor compliance with the i 601 F.2d 240, 294-45 (5th Cir.1979). court's orders." In that case, the refer CAMP contends, however, that an excep- ence to the master was part of the injunr banal condition under Rule 53(b) arises five order. There in fact were no previous only when there has been both a final injunctive orders to be disregarded. We determination of a constitutional violation explicitly stated in Hoptowit that the ex- I and a determination of intentional dis- ceptional condition requirement had been i regard of court orders. We see no support met "[b]ecause of the complexity of this for this argument in existing case law. litigation and of compliance with the dis- There are no judicial decisions requiring trio court's orders." Id. at 1263; accord a final determination of constitutional viola- New York State Ass n jor Retarded Chi[- tion before an "exceptional condition" juati- dren, lnc. a Carey, 706 F.2d 956, 962-63 fying reference to a master can arise under (2d Cir.) (complexity of consent judgment Rule 53(b). See Inmates of Attica Corree- warrants appointment of master), cert. de- tional Facility v. Roekeje[[er, 453 F.2d 12, Hied, 464 U.S. 915, 104 S.Ct. 277, 78 2b (2d Cir.1971) ("The district court is dr L.Ed.2d 257 (1989); Ruiz, 679 F.2d at 1162 reefed to enter a preliminary injunction ("The awpe and complexity of the decree against such conduct and to consider any and the importance as well as the difficulty , more specific measures that might be or of ensuring compliance gave the court ade- ~ dered to implement the [preliminary] in- quate reason" to appoint a master). The junction, incinding the appointment of fed- complexity of compliance, and not a finding era] monitors to serve at Attica."); Mo- of earlier noncompliance, provided the juati- j Tales v. Turman, 369 F.Supp. 166, 179 fication for reference to a master in Hop { (E.D.Tex.1973) (as part of preliminary in- Count. ' - junction, court appoints "ombudsman" who CAMP could be understood to argue that has "the duty of reporting to this court 'i any violation of this court's order"); see despite the circuit court precedent, dis- also Ruiz, 679 F.2d at 1160 n. 234 ("[R]ule cussed above, the Supreme Court in Local 53 is rnneerned primarily with the appoinb ~8 ojSheet Metal Workers International r ment of a special master 'as a factfinder in Association v. Equal Employment Oppo-r I tunity Commission, - U.S. 106 advance of the court's remedial decree or S Ct. 3019, 92 L.Ed.2d 344 (1986), eatab- c' as an expert to recommend the amount of damages or other remedial relief after a liahed that final determinations of conatitu- finding of liability.' (quoting Nathan, The tional violation and of intentional disregard Uae of Masters in Institutional Reform of court orders are prerequisites to a find- Litigation, 10 U.To1.L.Rev. 419, 428 (1979) ing of "exceptional condition" under Rule (emphasis added in Ruiz We are aware 53(b). We reject this reading of Local 28. of no holding of this court requiring a final Local $8 does involve a final determina- determination of a constitutional violation lion, but the determination was that Title before a district court may appoint a mas- VII of the Civil Rights Act of 1964, 42 ter under Rule b3(b). Any such require- U.S.C. 2000e-2000e-17, not the Conati- ment would severely limit the use of mac- tution, was violated. 106 S.Ct. at 5026. F tern to aid courts in the enforcement of Furthermore, although the district court in their orders and decrees. Local E8 did find that earlier court orders Similarly, there is no circuit authority had been disregarded, it did not find, as far that requires a determination of intentional as can be discerned from the Supreme disregard of court orders before a special Court's opinion, that they had been inten- master may be appointed under Rule b3(b). tionally disregarded. F i. I' 544 828 FEDERAL REPORTER, 2d SERIES [9] In the instant case, the district court master pursuant to "the inherent power of - found a disregard of court orders, but not the court to enforce its orders." This in- an intentional disregard. The district court herent power is codified in the All Write stated in its order of reference: Act. 2S U.S.C. § 1651(a) provides that The Court ruled that plaintiffs had failed "[tJhe Supreme Court and all courts estab- to show by clear and convincing evidence lished by Act of Congress may issue all that any defendant had deliberately vio- write necessary or appropriate in aid of lated the injunction. There was never their respective jurisdictions and agreeable thelese credible evidence of violations, to the usages and principles of law." One and the Court found that some CAMP of the recognized applications of the All j personnel still are not adequately trained Writs Act is the issuance of orders neces- ~ i ae to the terms and practical significance nary to ensure the integrity of orders previ- of the injunction, are not adequately ously issued. The Supreme Court "has briefed before each raid as to the permis- repeatedly recognized the power of a feder sible scope of and methods to be used in al court W issue such commands under the a raid, and are not adequately super- All Writs Act as may be necessary or ap- vised. It was also apparent from the propriate to effectuate and prevent the testimony that the ra~da are not suffi- frustration of orders it has previously is- ciently planned out ahead of time Wmini- sued in its exercise of jurisdiction other- mize the chance of violations. ~ j wise obtained." United States v. New ~ i Such evidence of noncompliance with York Tel. Co., 434 U.S. 1b9, 172, 98 S.Ct. an in unction that first issued marl a ' J Y 364, 372, 54 L.Ed.2d 376 (1977). 1 ~ year earlier portends continuing viola- The appointment of a master to monitor c lion.... compliance with the preliminary injunction ] ~ In light of the fact that Local 28 does in the instant case validly applies the All 1 ! not involve a constitutional violation, all Write Act. The district court had reason to I that remains of CAMP's argument, there- doubt that CAMP was wmplying with the fore, is that Loca188 requires a final judg- preliminary injunction, and the Court had 5 ment ae a prerequisite for the existence of no other way to ensure that its order was 9 an "exceptional condition" under Rule not being frustrated. As the order of ref- I 63(b), and that in doing so Local 88 implicit- erence stated, the evidence of noncompli- h ly overrules Inmates of Attica and Mo- ance ralea. In considering the factors that g, made appointment of a master appropriate, portends wntinuing violations, especially Local 28 never discusses or relies oa the When viewed in light of the fasbpaced fact that the master was appointed after and wide-ranging character of CAMP final judgment. Furthermore, the Court surveillance and raid activities.... Only did not state that any particular feet is a monitor, as the Court's expert on the indispensable to the existence of an eacep• exigencies presented by CAMP's aviation 4 tional condition. All that can be concluded and field practices, remote and inaccessi- from Local $8, therefore, ie that its facts ble terrain, sad grower tactics, can pro- are sufficient to support reference to a vide the Court with objective, first-hand master, not that say particular fact is abso- information necessary to fairly enforce lately necessary. Accordingly, we decline its injunction. to hold that Local 88 implicitly overruled Consequently, the district court's reference s' Inmates ojAttica sad Morales. Instead, to a master was proper under the All Writs in rejecting CAMP's argument, we are eab Act, as well se under Fed.R.Civ.P. b3, and iafied to agree with the reasoning of these was therefore not clearly erroneous as a ~ cases. matter of law. ~ 1 2. The All Writs Act B. Duties of the Master 6. In addition to invoking Fed.R.Civ.P. b3, [10] CAMP argues that the district the district wort ordered reference toe court improperly gave the master the pow- , ORGANIZATION FOR REFORM OF MARIJUANA LAWS v. MULLEN rj4rj 1~ Ctte D eta R.2d axe (9th CU. 19!71 i er to act as investigator as well as hearing administer CAMP's efforts, only to observe officer. We adopt the position of the Fifth them. In fact, the March 6 order of refer- Circuit, which upholds the dual function of ence states explicitly that "[t]he Monitor the master in the context of monitoring shall not purport to direct any CAMP activ- compliance with a court order. Ruiz v. ities or agents, or issue orders." Estelle, 679 F.2d 1115, 1170-71 (5th Cir.) {master had access to all records and meet- [131 Finally, CAMP argues that the inga, the power to conduct confidential in- ability of the master to compel production terviewa, and the power to conduct hear- of confidential documents and to conduct inga), amended in part on rehe¢ring, 688 confidential interviews is improper. CAMP F.2d 266 (5th Cir.1982) a; Gary W„ 601 has pointed to no authority substantiating F.2d at 245 ("The Special Master's funs thts argument, and we have found none. lions as fact finder, monitor and hearing We reject this contention. officer" held to be proper). C. PaymenE of Feea (11,12] CAMP further contends that [14) CAMP argues that sovereign im- 1 the duties assigned the master create an munity allows the United States to avoid impermissible incursion upon the function paying the master's fees, costs, and ex- of the executive. We have recognized the pensea as required by the district court's need for limitations upon the use of a mss- order. CAMP argues that the master's ter. Masters may not be placed in control of governmental defendants for the ur- fees, coats, and expenses are "coats"' and poee of forcing them to comply with court that under 28 U,S.C. § 2412(s) a and 28 orders. Hoptotvit v. R¢y, 682 F.2d- 1237, U.S.C. § 1920 the United States may not 1263 (9th Cir.1982); see Sierra Club v. be forced to pay these costa. United States Army Corps of Eng'ra, 701 We conclude that master's fees, costa, F.2d 1011, 1042-43 (2d Cir.1983); United and expenses are "costa;' and that Z8 States v, City of Parmn, 661 F.2d 582, U.S.C. § 2412(x) dose not preclude payment ~ 578-79 (6th Cir.1981), cert. denied, 456 U.S. of them by the federal government. 926, 102 S.Ct. 1972, 72 L.Ed.2d 441 (1982). 28 U.S.C. § Z412(a) provides that the In the instant case, however, the master government may be assessed all costs lisb has not been given the power to control or ed in 28 U.S.C. § 1920.° CAMP argues i 3. Ruiz did refuse to uphold the power of the (1) Fees of the clerk and marshal; ~ master to submit reports to the coon without (2) Fees of the court reporter for all or any ~ allowing the parties the right to objets. 679 part of the stenographic transcript necessarily F.2d at 1162-63. In the instant cat, the order obtained for use in the case; of reference affords the parties the opportunity (3) Fees and disbursements for printing and to submit written objections to the masters re- witnesxs; ports and findings. (4) Fees for exemplification and espies of pa• 4. Fed.R.Civ.P. 54(d) states in pare "[C]osts shall Pers necessarily obtained Eor use in the case; be allowed as of worse to the pmafling party (5) Docket fees under section 1923 of this ~f unless the wort otherwise directs; but costs titlr, it against the United States, its officers, and agen- (6) Compensation of court appointed experts, Gies shall he imposed only to the extent permit- compensation of interpreters, and salaries, y fees, expenses, and costs of special interprcn• tad b law." tion services under section 1828 of this title. gypp` S. 28 US.C. § 2412(x) states in part: "Except as A bill of wets shall 6e filed in the case and, u otherwise specifically provided by statute, a upon allowance, included in the judgment or fi~: judgment for costs, as enumerated in section decree." 1920 of this title may be awarded to the - 'F prevailing party in any civil action brought by 7• NORML argues that the masters fees, costs, or against the United States or any agenty or and expenses are taxable as costs under 28 f' any official of the United States acting in his or U.S.C. § 1920(6), which fneludes "[c]ampenss- her official capacity...." tion of wort appointed experts." The legislative history, however, supports CAMP's argument f' 6. 28 U.S.C. § 1920 states: that the words "mart appointed experts' in 28 "A judge or clerk of any mutt of the United US.C. § 1920(ti) refer only to expert witnesses, Slates may tax as costs the following: and that the language does not Include masters. i 546 828 FEDERAL REPORTER, 2d SERIES that 28 U.S.C. § 2412(a) limits coats assess- federal entities-for the costa and expenses I~ able to the United States to those listed in of the master, was not clearly erroneous. i 28 U.S.C. § 1920. This is incorrect. 28 petition for a writ of mandamus is DE• U.S.C. §2412(x) states that "a judgment NIED. ~ for coats, ea enumerated in section 1920 of this title, may be awarded to the pre- w veiling party in any Civil action brought by o Snt auasu tines or against the United States." This Ian- r guage is not explicitly exclusive. More- over, the legislative history indicates that the purpose of section 2412(a) is to cause the United States to pay all coats that could be assessed an ordinary citizen. The Sen- Eduardo C. BAUTISTA, et sl., ate Report to the 1966 amendment at 28 Plaintifta-Appellants, ~ U.S.C. §2412 states the following: v. The present law permits a disparity of pAN AMERICAN WORLD AIRLINES, I treatment between private litigants and DvC., et sl., Defendants-Appellees. the United States concerning the allow- ance of court costs. This bill will correct No. 86-2881. this disparity by putting the private ]iti- United States Court of Appeals, gent and the United States on an equal Ninth Circuit. footing ae regards the award of mats to the prevailing party in litigation involy- Argued and Submitted Aug. 14, 1987. ing the Government. Decided Sept. 21, 1987. S.Rep. No. 1329, 89th Cong., 2d Sass., re- printed in 1966 U.S.Code Cong. & Admin. Discharged employees brought action News 2627, 2628 (emphasis added); see 10 against employer and union for breach of C. Wright, A. Miller & M. Kane, Federat contract and breach of duty of fair repre- { Practice and Procedure §2672 (1985). aentation. The United States District , Because a court may assess a private party for the Northern District of Califon for master's fees and expenses as costs, 6 1 J. Moore, W. Taggart & J. Wicker, dfoora'a Manlyn H. Patel' J., granted defend- Federal Practice 1164.77[3] (1986), the ant's motion for summary judgment, and court may also sasses the United States for employees appealed. The Court of Ap• such costs. Young v. Pierce, 640 F.5upp. peals, Merrill, Circuit Judge, held that: (1) 1476, 1491 (E.D.Tex.1986), vacated on oth- unton did not violate duty of fair represen- er grounds, 822 F.2d 1368 (bth Cir.1987). tation by negotiating contract which per milted discharge of employees; (2) union did not breach duty of fair representation CONCLUSION by maloltg statements during course of The March 6 order of reference to a strike indicating belief that contract pro- master is not appealable. We therefore employees' jobs; and (3) claim a have construed the appeal as a petition for against employer was required to be mandamus. We hold that the district Presented to National Railroad Adjustment ~ court's March 6 order appointing a master, Board. assigning the master specific duties, and Affirmed in part, reversed in part, and aseessing the defendants--including the remanded in part The House Report to the bill enacting 28 US.C. Evidence." HRRep. No. 91687, 95th Cong., § 1920(6) states that the language in section 2d Seas. 13, reprinted in 1978 US.Code Cong. & 1920(6) referring to court appointed experts Admin.Nevn 4652, 4664. Fed.REvid. 706, enti- "makes express refereaa to the taxation of the fed Appointed Experts," refers to expert compensation of a coon appoiated expeR, u wimeasea. permitted by ruk 706 of the Federal Rules of I