Humboldt County Cannabis Abatement Lawsuit Moves Forward in the Ninth Circuit Court of Appeals with a Reply Brief From the Institute of Justice

This week the Institute of Justice (IJ) responded to the County’s statement in the federal class action lawsuit against Humboldt County’s cannabis abatement program now that the suit is in the court of appeals. IJ represents those who claim they were victimized by the County Abatement program. The appeals process calls for three filings, the third of which was just filed. This most recent filing is the Reply to the County’s Response to IJ’s initial brief on the appeal.

See entire brief here.

The next step is either oral arguments, or the Court may simply reach a decision based on the written filings.  That decision will have a serious impact on abatement programs throughout California as many counties and cities use the same tactics against alleged unlicensed cannabis growers as Humboldt does, and have made quite a bit of money from these tactics which IJ’s suit says are unconstitutional.

The county’s responsive brief called the cannabis abatement program “routine enforcement of local land use laws,” and asked the Ninth Circuit to affirm the lower courts total dismissal of all claims in the complaint.

The Institute for Justice’s response reiterates their position that the cannabis abatement program is unconstitutional. 

The reply brief reads,

Humboldt County violated Plaintiffs’ constitutional rights by trapping them in a system designed to punish cannabis growth, even though none of them grew cannabis. Plaintiffs alleged that the County used satellite images to identify minor code violations on their properties and then imposed tens of thousands of dollars in daily fines by charging, without proof, that those violations related to cannabis. Plaintiffs’ fines accumulated for 90 days because the County makes it impossible to “abate” cannabis-related violations and does not provide hearings to contest the charges. All the while, Plaintiffs remain ineligible for land-use permits—both to correct existing violations and to develop their properties in other ways. Because the County won’t schedule hearings, a settlement agreement is the only way out of penalties assessed without probable cause.

Earlier, the County’s legal team countered the plaintiff’s complaint, writing in their responsive brief, “Plaintiffs assemble what amounts to a law school exam, raising a plethora of claims, each assailing routine enforcement of local land use laws as applied to commercial cannabis activities illegal under federal law. Their claims were properly rejected.”

However, this allegation was met with comparable fervor from the Institute for Justice attorneys, who wrote,

Plaintiffs are all victims of the County’s blanket enforcement practices. Like many people in Humboldt, they own properties that were developed over the years without permits. Some developed the land themselves; others bought land from someone who did. No Plaintiff, however, violated the code to grow cannabis. The baseless allegation that they did has upturned Plaintiffs’ lives. Each accrued over a million dollars in fines, with no way out except to pay the County for their freedom. Even now, after Plaintiffs have spent years under the weight of crippling fines, unable to develop their land, the County still insists that they have no right to challenge the County’s enforcement practices.

The Institute for Justice says the Plaintiffs claims are timely, the county just lacks accountability, and continues, “According to the County, a court cannot consider whether its abatement program is unconstitutional until Plaintiffs escape the trap the County set… In the County’s view, the time is never right for accountability.”

Screenshot of the county’s responsive declaration, featuring plaintiff Rhonda Olson’s properties prior to her purchase. All greenhouses were removed immediately and no cannabis was being grown, she later received a notice in her name with over 7 million in fines

The firm also wrote about how despite no one growing, cannabis was used when convenient to skirt property owners rights. 

The Institute for Justice wrote,

Unable [to] defend the constitutionality of its cannabis-abatement orders, the County obfuscates. It defends a different system than the one it’s enforced against hundreds of innocent residents. For large parts of its response, the County pretends this is just a typical abatement case over land-use violations that have nothing to do with cannabis. But when pressed for its interest in imposing multimillion-dollar fines without probable cause, the County pivots to the dangers of cannabis.

Magistrate judges like Robert Iilman, differ from other judges who are confirmed by congress for life, they are instead chosen by merit and given an eight year term in office without the scrutiny of a Congressional Hearing 

The Institute for Justice said they found the magistrate Judge misapplied the law, relied too heavily on the county’s claims and mistakenly, the plaintiffs’ case, showing a bias in favor of the county,

The reply brief reads, 

The judge cast aside impartiality to rule in the County’s favor on every argument, even some—like immunity and improperly sued officials—that hardly made any sense. Anything but “detailed” …the judge’s dismissive and conclusory approach left Plaintiffs with no idea which allegations were implausible… The court disregarded the standard of review and found facts in the County’s favor, without any specific citations, and made perfectly clear that he did not believe Plaintiffs, even though the law required him to do so…

The trial court fell for the County’s bait and switch…the trial court decided that it didn’t even need oral argument to be certain that Plaintiffs’ allegations were all completely implausible. Had the court properly credited the complaint, it should have been easy to conclude that Plaintiffs’ well-pleaded allegations state five justiciable claims. Plaintiffs ask this Court to reverse and remand the case to a judge who has not predetermined Plaintiffs’ case.

Those claims (including procedural), are:

1. Plaintiffs’ Claims Are Justiciable

1. 1. Plaintiffs’ Facial Claims Are Timely
   2. Plaintiffs’ As-Applied Claims Are Timely
   3. Plaintiffs’ Claims Are Ripe 
      1. Plaintiffs’ Claims Relating to Their Ineligibility for Permits Are Ripe 
      2. Plaintiffs’ Eighth Amendment Claim is Ripe
2. The County’s Cannabis-Related NOVs Are Unconstitutional
   1. The Trial Court Disregarded Well-Pleaded Facts
   2. Plaintiffs Stated Five Claims for Relief
      1. Procedural Due Process 
      2. Substantive Due Process
      3. Unconstitutional Conditions 
      4. Excessive Fines 
      5. Jury Right 
3. Reassignment Would Prevent Injustice

The county’s representatives argue in their responsive brief the magistrate judges decision was “thoughtful” and the plaintiffs are “judge shopping,” writing,

Challengers make no showing Magistrate Judge Illman could not adjudicate fairly upon remand, nor that a new judge is needed to preserve the appearance of justice…Magistrate Judge Illman rendered a detailed and thoughtful decision on the evidence before him; surely he can do the same if this Court orders renewed trial on different evidence or under a different standard. This is not the rare circumstance in which a trial judge’s conduct displays clear inability to be fair. Challengers show no actual bias or prejudice, only a cogent opinion compellingly stated. Indeed, Challengers expressly consented to this adjudicator for all purposes likely to appear before the one federal jurist on California’s North Coast, avoiding a four-and-half-hour drive to San Francisco…. That they are unhappy with the result, and desire a new judge now, is not sufficient such judge-shopping is prohibited.

In response the Institute for Justice wrote, “The County’s glowing endorsement of the magistrate judge isn’t surprising.”

The Institute for Justice added,

When Plaintiffs filed their complaint, they had no reason to expect the magistrate judge would be partial to the County. Their initial consent to his jurisdiction does not diminish this Court’s authority to reassign the case to “preserve the appearance of justice.” …. The magistrate has already prejudged Plaintiffs and their claims. If this Court were to remand the case to the same judge, and he once again decides every issue for the County, it would not look like justice. A new judge is necessary.

Whatever is decided in the Ninth Circuit, one thing is for certain, millions are on the line in Humboldt County alone, with impacts to property owners that stretch across the northwestern Ninth Circuit.

We will find out if and when the case is set for oral argument around the end of February, with arguments possibly scheduled around the first week of May. 

Stay tuned to RHBB for more on this story.

Earlier:

• Penalties, Costs, Fines, and Fees: A Deep Look at the Humboldt County Cannabis Abatement Process
• Punished for Another’s Crimes: Humboldt County Demands New Owners Destroy Any Unpermitted Building Used for Cannabis Cultivation
• ‘Buildings for Rich People’: Part Two of Punished for Another’s Crimes, a Look at the Ramifications of the Abatement Process
• Humboldt County Cannabis Abatement Program “Unconstitutional,” Says the Institute for Justice Which Today Filed a Federal Class Action Lawsuit
• Humboldt County Files a Motion to Dismiss the Institute for Justice’s Federal Class Action Lawsuit Against Its Cannabis Abatement Program
• The Pressure Is the Point’: The Institute for Justice Has Filed an Amended Complaint for the Lawsuit Against the Humboldt County Cannabis Abatement Program
• Federal Judge Dismisses Lawsuit Challenging Humboldt County’s Cannabis Abatement Process
• Undeterred: After Judge Grants County’s Motion to Dismiss All Claims Against Abatement Program, Plaintiffs and their Lawyers Appeal
• Humboldt County Strikes Back With Response to Institute of Justice Claims in Federal Class Action Lawsuit Against the Cannabis Abatement Program