Andrew Hawkins v. Town of Shaw, Mississippi

GEWIN, Circuit Judge

(with whom COLEMAN and DYER, Circuit Judges, join, dissenting in part and concurring in part):

I am in substantial agreement with what has been said in sections I and II of the per curiam opinion (the opinion). I respectfully dissent from the expressions in section •LH'"/wherein the court directs the appellees (defendants) to submit a plan to the district court in order to eliminate the disparities which have been found to exist. The only apparent reason assigned in the opinion for directing the district court to require the municipal authorities “to submit a plan” is the fact that “the matter had received extended attention in the district court.” However, the opinion recognizes that under the guidance of the district court, or voluntarily, much has been accomplished in the Town of Shaw. A biracial committee has been formed to advise the mayor and council with respect to city services, and a black citizen has been elected to the city council.

'(in my view it would be more desirable to leave the matter of the remedy to the local district judge who is well known for his expertise, fairness, understanding, and unqualified adherence to the requirement that all citizens be accorded equal protection of the laws. Federal appellate courts should exercise utmost care not to be too meddlesomgi The mere possession of power does not dictate its use. I hold the confident conviction that the distinguished judge, working in close cooperation with local municipal authorities, can and will remedy the evils which have been found to exist. As the late Mr. Justice Harlan observed in Ohio v. Wyandotte Chemicals Corp., 401 U.S. 493 , 91 S.Ct. 1005 , 28 L.Ed.2d 256 , a federal court should not ambitiously grasp the opportunity to impose its notions of what should be done in every case. In that case the national problem of pollution, obviously one of grave public importance, was involved. The court had jurisdiction of the controversy but it decided not to exercise the power it possessed. The Court concluded: *1178 401 U.S. at 505 , 91 S.Ct. at 1013 , 28 L.Ed.2d at 266 .

*1177 What has been said here cannot, of course, be taken as denigrating in the slightest the public importance of the underlying problem Ohio would have us tackle. Reversing the increasing contamination of our environment is manifestly a matter of fundamental import and utmost urgency. What is dealt with above are only considerations respecting the appropriate role this Court can assume in efforts to eradicate such environmental blights. We mean only to suggest that our competence is necessarily limited, not that our concern should be kept within narrow bounds, (emphasis added)

*1178 In fashioning the appropriate remedy to be applied, this court should take its cue from Mr. Justice Clark (Ret.) in his opinion in Kennedy Park Homes Assoc., Inc. v. City of Lackawanna, 436 F.2d 108 (2d Cir. 1970), cert. denied 401 U.S. 1010 , 91 S.Ct. 1256 , 28 L.Ed.2d 546 . That case is remarkably similar to the case at hand. Speaking for the Second Circuit Mr. Justice Clark stated:

Even were we to accept the City’s allegation that any discrimination here resulted from thoughtlessness rather than a purposeful scheme, the City may not escape responsibility for placing its black citizens under a severe disadvantage which it cannot justify. Norwalk CORE, supra; Southern Ala-meda Spanish Speaking Organization v. City of Union City, California, 424 F.2d 291 (9th Cir. 1970). The City must provide sewerage facilities to the plaintiffs in conformity with the Equal. Protection Clause of the Fourteenth Amendment and provide it as soon as it does for any other applicant. Oyama v. California, 332 U.S. 633 , 68 S.Ct. 269 , 92 L.Ed. 249 (1948). The particular manner in which this is done is for the District Court. (Emphasis added).

436 F.2d at 114 .

(i consider it inappropriate to outline with specificity the relief which the district court may fashion in the exercise of its sound and wise diseretion.^ln-deed, in view of the essentially local nature of the problem presented, the officials of the Town of Shaw can best accomplish the remedial measures neces-sa^yj In this case the responsibility, like school boards in desegregation cases, rests primarily with the Town of Shaw and its officials. Brown v. Board of Education of Topeka, 347 U.S. 483 , 74 S.Ct. 686 , 98 L.Ed. 873 (1954); Brown v. Board of Education of Topeka, 349 U.S. 294 , 75 S.Ct. 753 , 99 L.Ed. 1083 (1955). See also Ohio v. Wyandotte Chemicals Corp., supra. It is entirely proper to direct the district court to retain jurisdiction of the case for an appropriate period of time in order to permit the officials of the Town of Shaw to discharge their responsibilities in eradicating prevalent discriminatory practices unfettered and unrestrained by specific appellate court decrees and orders. . During such period the actions of the city officials would be subject to the close scrutiny of the district court, ffaf present practices continue without local remedial action, the district court, having retained jurisdiction, should fashion and enforce the necessary remedy. When the district court is satisfied that effective good faith efforts have been made and adequate results achieved, this litigation may be terminated.)

This is not the type of case which should continue indefinitely in the federal courts requiring the fashioning of plans, the submission of the same to the court for hearings thereon as to approval or disapproval, resulting in extended litigation and numerous appeals.