Petition — Local Union No. 35 of the International Brotherhood of Electrical Workers v. City of Hartford

Supreme Court brief1981

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Text

Supre ne Court, U.S,

‘ FILED

80-8 33 NOV 24 1980

- MICHAEL RODAK, JR., CLERK

Hu Che

Supreme Court Of The United States

OCTOBER TERM, 1980

LOCAL UNION NO. 35 OF THE INTERNATIONAL

BROTHERHOOD OF ELECTRICAL WORKERS,

Petitioner,

Vv.

CITY OF HARTFORD, CITY MANAGER OF THE CITY

OF HARTFORD, COMMISSION ON HUMAN RELATIONS

OF THE CITY OF HARTFORD, CONTRACT

ENFORCEMENT COMMITTEE OF THE CITY OF HART-

FORD, AND RONALD FLETCHER, INDIVIDUALLY AND

AS SENIOR FIELD REPRESENTATIVE OF THE

COMMISSION ON HUMAN RELATIONS OF THE

CITY OF HARTFORD,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

WILLIAM S. ZEMAN |

JOEL M. ELLIS

18 North Main Street

West Hartford, Connecticut 06107

(203) 521-4430

Attorneys for Petitioner

QUESTIONS PRESENTED

1. Whether a City may, as a subordinate govern-

mental body, absent any finding that it or any other

municipality has engaged in employment discrimination,

voluntarily establish a goal for membership, training

and employment of minorities (defined as including

women) for public and private construction projects in

an area encompassing the City and 23 other separate

municipalities and require preferential hiring for and re-

ferral to City financed construction projects to the detri-

ment of non-minority job applicants.

2. Whether it is sufficient for such a City legisla-

tively to adopt such a goal and preferential hiring

requirement based solely on a non-particularized general

finding of industry-wide employment discrimination in

the affected area.

3. Whether a Court of Appeals may abjure a resolu-

tion of the threshold issue of a City’s authority to so

legislate in regard to employment discrimination and re-

fuse to remit that issue for resolution to the state

court.

4. Whether a City in implementing such a preferen-

tial employment requirement for City construction pro-

jects may require a union to refer preferentially minority

applicants to those projects contrary to the require-

ments of the union’s chronological Out of Work List

which was established pursuant to its pre-existing collec-

tive bargaining agreement.

TABLE OF CONTENTS

QUESTIONS PRESENTED ...............se00.

eg 4 se

es nvdncncksscocdnenetanoedna kas

CONSTITUTIONAL PROVISIONS, STATUTES,

GOVERNOR’S EXECUTIVE ORDER,

CITY CHARTER AND CITY ORDINANCE

STATEMENT OF THE CASE...............05.

ARGUMENT:

A. A City, As A Subordinate Governmental

Body, May Not Legislatively Establish

An Affirmative Action Plan In Regard To

Public And Private Construction Employ-

ment Based On Generalized Non-Specific

Findings of Employment Discrimination

Nor May It On The Basis Of Such Find-

ings Justify Racial Preferences For Hiring

On City Construction Projects...........

B. The City Possessed No Authority To

Adopt The Ordinance Or Plan ...........

C. The City’s Lack Of Authority To Adopt

The Ordinance And Plan Is A Threshold

State Law Issue Which The Court

Erroneously Abstained From Resolving 17

D. The Destruction Of The Union’s Non-

Discriminatory Out-Of-Work List Violated

National Labor Policy...............ss000. 19

E. The City’s 15% Minority Manning

Requirement Was A Means To Confer A

Racial Preference As An End In Itself

And Both On Its Face And As Imple-

mented It Was In Violation Of Equal

DI A cas ds eae nns Gaede aus oa 21

REASONS FOR GRANTING THE WRIT ...... 26

I 5 og De ec eee ceeue 29

APPENDIX (Separately Bound)

Opinion And Judgment Of The Court Of

Appeals For The Second Circuit ............. Al

Opinion Of The District Court of Connecti-

cut Entitled “Ruling On Pending Motions”... A28

Post-Judgment Ruling Of The District

Court Of Connecticut Entitled ‘“‘Ruling On

gg AR eR ay OU DY arn A56

Memorandum Of Decision Of The Contract

Enforcement Committee, City Of Hartford... A61

Judgment Of The District Court

Soe INS 61s cbs chdiaehsurebsecndus¥ bas A66

Denial Of Petition For Rehearing And

Suggestion For Rehearing En Banc.........

. Hartford Code, Article X. Affirmative

pS SS RS SEL ot

City Of Hartford Interdepartmental

Memorandum From Arthur L. Johnson To

Councilman Monteiro. ....icccccccccccccccce

Interdepartmental Memorandum From

Ronald Fletcher To Arthur L. Johnson......

. Article VII, Referral Procedure Excerpted

From Principal Labor Agreement Between

Local Union No. 35, IBEW And National

Electrical Contractors Association, Inc. .....

A109

TABLE OF AUTHORITIES

Page

Cases:

Associated General Contractors of Massachusetts,

Inc. v. Altschuler, (CA 1st, 1973), 490 F.2d 9,

SE es Se RA OE 4s hoe eedovaudscaiecaens 27

Associated Gen., ETC. v. San Francisco Unified

SCH. (CA 9th, 1980), 616 F.2d 1381 ..... 13,14,15,16,

18,28

Austin v. Housing Authority, (1956) 143 Conn.

es Re Bae Os Keio adic ewok hWesiens cocci 15

Barr v. Matteo, (1957), 355 U.S. 171 ............. 18

Bridgeport v. Agostinelli, (1972) 163 Conn. 537,

SE, SRI WEE was dky dk oe he ohehaeaauneeunen eas 15

Brunetti v. City of Berkeley, (U.S.D.C., N.D. Cal.,

ee ee get ee ae 17

California Brewers Association v. Bryant, (1980)

Oe WER SS an vknhince onbuncs Goan enone 19,20

City of Chicago v. Fieldcrest, (1942) 316 U.S. 168 18

Groton v. Commission on Human Rights and

Opportunities, (1975) 169 Conn. 89, 362 A.2d

Construction Building Materials & Miscl. Drivers

Local No. 83, (1979) 243 NLRB No. 26,

1979-80 CCH NLRB Par. 16003 ............. 20

Contractors Association of Eastern Pennsylvania

v. Secretary of Labor, (CA 3d, 1971) 442 F.2d

159, cert. den. 404 U.S. 854.................. 26,27

Council of the City of West Haven v. Hall (Conn.

Supreme Court, Apr. 15, 1980) 41 Conn. Law

us es A, is Bi ss cc kicccccn ccnacs 14,15

Cuyler v. Sullivan, (1980) _____ U.S.

"1. TC aie sila dhe Gi 4 tent 0 binch a Sale wm baie ans 18

Detroit Police Officers Ass'n v. Young, Supreme

Court docket number 79-1080................ 29

District Attorney for County of Sacramento v.

Sacramento Civil Service Commission,

Supreme Court docket no. 79-1996........... 29

Franks v. Bowman Transportation Co., (1976),

SE IEE div ovet ace Ges « dsthidekonadcuneats 19

Fullilove v. Beame, (1979) 48 NY 2d 376, 398

EW utah bh enh kd kab eb dewdod tens os 16

Fullilove v. Carey, (1979) 48 NY 2d 826, 399

8 BE SEN ees Raye wie ee» 7 16

Fullilove v. Klutznick, (1980) US.

8 | er 12,13,17,24,25,26,27,28

Hiatt v. City of Berkeley, (Cal. Ct. App. 1979)

88 CA 3d 503, 151 Cal. Rptr. 895............ 17

Hull v. Cason, (Cal. Ct. App. 1978) 88 CA 3d 768,

ee es I M6 ceed cree wane Gwape dean 16

International Brotherhood of Teamsters v. United

States, (1977) 481 U.G. 384 ..... cc cccccscecs 19

Interstate Electric Company (1977) 227 NLRB

AE Seine a oa geuuGeveuees os bas ds 20

Lige v. Town of Montclair, (1976) 72 NJ 5, 367

Ns bch db ae Soe datas Dae er wes cawes os 16

Lutcher v. Moore Lumber Co., (1910) 217 U.S.

ME AOCTRA 544) bane beck cenwds Céotuerierlieke 18

Maehren v. City of Seattle, Supreme Court

docket number 79-1061 .......cccccccccccccce 29

Matter of Broidrick v. Lindsay, (1976) 39 NY 2d

ee re 14,15,16,17

Midwest Employers Council, Inc. v. City of

Omaha, (1964), 177 Neb. 877, 131 NW 2d 609 16

Minnick v. California Department of Corrections,

U.S. Supreme Court docket number 79-1213... 29

NLRB v. Houston Chap., Assoc. Gen. Con. of

America, Inc., (CA 5th, 1965) 349 F.2d 449,

Us Hs ae I I oo bn vas vo vam otrccds 19

Norwalk v. Daniele, (1955) 143 Conn. 85, 119

ME ie aiigisand das oabendeke chek cate cds 14

PASS De RiDSaA cadvbs Ord ech bees és oes 14

Pik-Kwik Store v. Commission on Human Rights

and Opportunities, (1976) 170 Conn. 327, 365

er Cee re rte teers be ee 16

Railroad Commission of Texas v. Pullman, (1941)

I MN Nh kaa 18

Regents of the University of California v. Bakke,

(1978) 436 U.S. 266. ......ccccccees 10,12,17,25,26,28

Robertson v. NLRB, (CA 10th, 1979) 597 F.2d

Aids ceed bs ecbdd oe Whats GEC euies OLR dk% es 20

Southbridge Plastic Div. v. Local 759 (CA 5th,

PP Ne A OE 6 6bs bnctnvcnsdcthbvckesi< 20

Southeastern Community College v. Davis, (1979)

Pe eT 5 68 bs Sea nk nh earn es un 14

Southport v. Ogden, (1854) 23 Conn. 128......... 15

State v. Brennan, 3 Conn. Cir. 413, 216

POE BG 5 i ur ck casa abies oo be kun bebes ch beast 15

Teamsters Local v. Labor Board (1961) 365

So Ge a bk sacks ceewes OSs cn WUE teen od 20

Truax v. Raich, (1915) 239 U.S. 33 .............. 13,28

United States v. East Texas Motor Freight

System, (CA 5th, 1977) 564 F.2d 179......... 20

United States Steelworkers of America v. Weber,

OT I vv xa cnccoceccscenen 12,24,26,27

Veeder-Root Co. v. Commission on Human Rights

and Opportunities, (1973) 165 Conn. 318, 334

Pcs Oba hs chutsakknethakekeeehascea 16

Constitutions, Statutes, Governor’s Executive Order,

City Charter, City Ordinance:

U.S. Comet. Amamemnemt Vins. ccccccccccsactocss xi,18

U.S. Const. Amendment XIV.................. xi,13,25

Conn. Const. Art. first asc. 20......cccccccccsces xi,14

ge | NTO ie x,xi

Se Dts. OU: TIED vacivcvedinseccngstvcaceodeucs xii, 1

ee re xii,1

SB UBS. COG. CE oe ce tinds Fak HNC Swe ea Nee S08 xii,1,10

42 U.S.C. sec. 2000e-2

eeeeeeeeeceeeeeeeeseeeeeeeees

Conn. Gen. Statutes, Chap 563.................. xiv,15

Conn. Gen. Statutes sec. 31-122(c)............... xiv,15,16

| PEE xiv,15

UE SUPE. co wrcccccceecs xiv,15

OS | xv,15

ee xv,15

ee ene xv,15

IES oc cisecds dicks ices xv,15

I ss obs 6 swat cend xv,15

Governor’s Executive Order.................... Xvi,14,15

City of Hartford Charter Chap. II sec. 5....... Xviii,14,15

Chap. II sec. 7....... xviii,14,15

Chap. VIII sec. 11 ... xviii,14,15

Affirmative Action Plan Ordinance ............ xix,1,3,4,7,

10-12,14,15,18,22,23,27,28,App. A71

Miscellaneous:

1970 Wisconsin Law Review 341 ........:....... 27

Sandalow, Judicial Protection of Minorities,

75 Mich L. Rev. 1162

Standards Relating to Appellate Courts, ABA

Commission On Standards of Judicial

Administration, Approved Draft

Petitioner LOCAL UNION NO. 35, IBEW, respect-

fully prays that a Writ of Certiorari issue to review the

decision rendered by the United States Court of Appeals

for the Second Circuit entered in this case on June 13,

1980.

OPINIONS BELOW

a. Administrative

The opinion of the Contract Enforcement Committee

of the City of Hartford dated and rendered July 7, 1977

is unreported and is reproduced in the Appendix A61.

b. Court

The opinion of the United States Court of Appeals

for the Second Circuit (App. Al) is reported at 625

F.2d 416 and at 22 FEP Cases 1786. A denial of a peti-

tion for rehearing and suggestion for rehearing en banc

(App. A68) is not reported. The opinion of the district

court (App. A28) is reported at 462 F. Supp. 1271 and

18 FEP Cases 1338, its ruling on post-judgment motions

(App. A656) and its judgment (App. A66) are not re-

ported.

JURISDICTION

The opinion containing the judgment of the United

States Court of Appeals for the Second Circuit was

dated and filed on June 13, 1980. That court’s order,

denying your petitioner’s Petition For Rehearing and

Suggestion For Rehearing En Banc was dated and filed

on September 3, 1980. The jurisdiction of this court is

invoked under 28 U.S.C. §1254(1).

CONSTITUTIONAL PROVISIONS, STATUTES,

GOVERNOR’S EXECUTIVE ORDER, CITY

CHARTER AND CITY ORDINANCE |

1. Constitutional Provisions.

a. United States

Amendments to the Constitution

No person shall be...deprived of life, liberty, or prop-

erty, without due process of law....

XIV.

Section 1. ...No State shall make or enforce any law

which shall abridge the privileges or immunities of citi-

zens of the United States; nor shall any State deprive

any person of life, liberty, or property, without due pro-

cess of law; nor deny to any person within its jurisdic-

tion the equal protection of the laws.

b. Connecticut

ARTICLE FIRST:

Sec. 20. No person shall be denied the equal protec-

tion of the law nor be subjected to segregation or dis-

crimination in the exercise or enjoyment of his civil or

political rights because of religion, race, color, ancestry

or national origin.

2. Statutes

a. Federal

28USC $1254. Courts of ; certiorari; a ;

cortitiedt questions. — _

Cases in the court of appeals may be reviewed by

the Supreme Court by the following methods:

(1) By writ of certiorari granted upon the petition of

any party to any civil or criminal case, before or after

rendition of judgment or decree...

28USC §1343. Civil rights and elective franchise.

The district courts shall have original jurisdiction of

any civil action authorized by law to »e commenced by

any person....

(3) To redress the deprivation, under color of any

State law, statute, ordinance, regulation,

Dasceanatmntitas asttanentlinrdimettame

and shall be subject to like punishment, pains, penalties,

taxes, licenses, and exactions of every kind, and to no

other.

42 USC §1983

Every person who, under color of any statute, ordinance,

reguation, custom or usage, of any State,...subjects, or

causes to be subjected, any citizen of the United States

or other person within the jurisdiction thereof to the

deprivation of any rights, privileges, or immunities

secured by the Constitution and laws, shail be liable to

the party injured in an action at law, suit in equity, or

other proper proceeding for redress.

42 USC §2000e-2

Unlawful employment practices

(a) It shall be an unlawful employment practice for an

employer—

(1) to fail...to hire...or otherwise to discriminate

against any individual...because of such individual's race

...8@X, OF...

(2) to limit, segregate, or classify his employees or

applicants for employment in any way which would de-

prive...any individual of employment opportunities...be-

cause of such individual’s race,...religion, sex....

(b) It shall be an unlawful employment practice for an

employment agency to fail...to refer for employment, or

otherwise to discriminate against, any individual be-

cause of his race...sex,...or to classify or refer for employ-

ment any individual on the basis of his race,...sex....

labor organization—

(1) to...discriminate against, any individual because

of his race,...sex...

(2) to limit, segregate, or classify its membership or

applicants for membership, or to classify or fail...to refer

for employment any individual, in any way which would

deprive...any individual of employment opportunities...or

otherwise adversely affect his status as an employee or

as an applicant for employment, because of such in-

dividual’s race,...sex...;or

(3) to cause or attempt to cause an employer to dis-

criminate against an individual in violation of this

section.

(h) Notwithstanding any other provision of this sub-

chapter, it shall not be an unlawful employment practice

for an employer to apply...different terms, conditions, or

privileges of employment pursuant to a bona fide senior-

ity or merit system...provided that such differences are

not the result of an intention to discriminate because of

b. State - Connecticut

CHAPTER 563

FAIR EMPLOYMENT PRACTICES

Sec. 31-122:...[Definitions]...

taking...to procure employees or opportunities to work;

(d) ‘labor organization’’ means any organization

which exists for the purpose,...of collective bargaining or

of dealing with employers concerning grievances, terms

or conditions of employment, or of other mutual aid or

protection in connection with employment...

(f) ‘‘“employer” includes the state and all political

subdivisions thereof and means any person or employer

with three or more persons in his employ...

(h) ‘“‘ccommission’”’ means the commission on human

rights and opportunities created by section 31-123...

Sec. 31-123. Commission on human rights and opportuni-

ties. Appointment. Duties.

The commission shall...investigate the possibilities of

affording equal opportunity of profitable employment to

all persons, with particular reference to job training and

placement. The commission shall compile facts concern-

ing discrimination in employment, violations of civil

liberties and other related matters. The commission shall

investigate and proceed in...all cases of discrimination in

employment because of race, color, religion, sex, age,

national origin or ancestry...

§31-125.

The commission [on human rights and opportunities]

Shall have the following powers and duties:

(e) to receive, initiate, investigate and mediate com-

plaints of unfair employment practices...

xiv

§31-12u. Unfair employment practices.

It shall be an unfair employment practice (a) for an

employer, by himself or his agent...because of the race...

sex...of any individual, to refuse to hire...such individual

or to discriminate against him in...terms, conditions or

privileges of employme.t; (b) for any employment

agency...to fail or refuse to classify properly or other-

wise to discriminate against, any individual because of

his race,...sex...; (c) for a labor organization, because of

the race,...sex...of any individual to...discriminate in any

way against any of its members or against any employ-

er or any individual employed by an employer...; (e) for

any person, whether an employer or an employee or not,

to aid, abet, incite, compel or coerce the doing of any of

the acts herein declared to be unfair employment prac-

tices or to attempt to do so....

§31-127. Procedure.

Any person claiming to be aggrieved by an alleged

unfair employment practice may...file with the commis-

sion a complaint.... The commission...may issue a com-

plaint.... After the filing of any complaint, the chairman

of the commission shall refer the same to a commis-

sioner...to make prompt preliminary investigation...and,

if such commissioner...determines...that there is reason-

able cause for believing that an unfair employment prac-

tice has _ been...committed...he shall immediately

endeavor to eliminate the...practice.... In case of failure

to eliminate such practice, the...investigating commis-

sioner shall certify the complaint and the results of his

investigation to the chairman of the commission.... The

chairman of the commission shall thereupon appoint a

hearing tribunal... If...the tribunal finds that a respon-

dent has engaged in any unfair employment practice, it

shall...cause to be served on such respondent an order

requiring such respondent to cease and desist from such

unfair employment practice and further requiring such

respondent to take such affirmative action...as in the

judgment of the tribunal will effectuate the purpose of

this chapter...

§ 31-128. Enforcement of orders. Appeals.

(a) The commission may...petition the court...for the

enforcement of any order issued by a tribunal under the

provisions of this chapter and for appropriate temporary

relief or a restraining order.... The court shall have juris-

diction of the proceedings and of the questions deter-

mined thereon, and shall have the power to grant such

relief by injunction or otherwise, including temporary

relief, as it deems just and suitable and to make and

enter...a decree enforcing...any order of the commission

or hearing tribunal...

[Note: The Connecticut legislature in 1980 adopted

Public Act 80-422 which amended many of the above

provisions in Chapter 563. The amendments were tech-

nical in nature and did not change the substance of the

legislation set out above.]

3. Governor’s Executive Order No. 3

WHEREAS, sections 4-6ld(b) and 4-ll4a of the

1969 supplement to the general statutes require non-

discrimination clauses in state contracts and subcon-

tracts for construction on public buildings, other public

works and goods and services...

NOW, THEREFORE, I, THOMAS J. MESKILL,

Governor of the State of Connecticut, acting by virtue

of the authority vested in me under section twelve of

article fourth of the constitution of the state, as sup-

plemented by section 3-1 of the general statutes, do

hereby ORDER and DIRECT, as follows, by this Execu-

tive Order:

The labor commissioner shall be responsible for the

administration of this Order.... Upon the promulgation

of this Order, the commissioner of finance and control

xvi

shall issue a directive...to all state agencies, that...all

state contracts and subcontracts for construction on

public buildings, other public works and goods and ser-

vices shall contain a provision rendering such contract

or subcontract subject to this Order, and that such con-

tract or subcontract may be cancelled, terminated or

suspended by the labor commissioner for violation of or

noncompliance with this Order or state or federal laws

concerning nondiscrimination....

III

Whenever the contractor...has a collective bargaining

agreement...with a labor organization...the labor commis-

sioner may require a compliance report to be filed with...

the labor commissioner...by such organization...to the ef-

fect that the signer’s practices and policies...do not dis-

criminate on grounds of race, color, religious creed, age,

sex or national origin, or ancestry of any individual, and

that the signer will either affirmatively cooperate in the

implementation of the policy and provisions of this

Order, or that it consents and agrees that recruitment,

employment and the terms and conditions of employ-

ment under the proposed contract shall be in accordance

with the purposes and provisions of the Order....

(a) The labor commissioner may hold or cause to be

held hearings, prior to imposing ordering or recommend-

ing the imposition of penalties and sanctions under this

Order... [T]he labor commissioner may...

(2) Recommend to the commission on human

rights and opportunities that in cases in which

there is substantial or material violation or

threat thereof of the contractual provision or re-

lated state statutes concerned herein, appropri-

ate proceedings be brought to enforce them....

xvii

(4) Cancel, terminate, suspend...any contract...for

failure of the contractor...to comply with the

nondiscrimination provisions of the contract....

XIII

The labor commissioner may delegate to any officer,

agency or employee in the executive branch any func-

tion or duty of the labor commissioner under this Order

except authority to promulgate regulations of a general

nature...

4, Charter - City of Hartford

Chapter II

POWERS OF THE CITY

Sec. 5. Power to adopt regulatory ordinances.

The city shall have power to adopt ordinances not in

conflict with the general statutes or the provisions of

this charter, for the preservation of the public peace,

health, safety, comfort and welfare of the inhabitants of

the city and to provide penalties for the violation there-

of enforceable in the city and police court but not ex-

ceeding a fine of one hundred dollars ($100.00) or im-

prisonment for more than thirty days or both....

Sec. 7. General grant of powers.

The city shall have not only all the powers specific-

ally granted by this charter but all powers fairly implied

in or incident to the powers expressly granted, and all

other powers incident to the management of the prop-

erty, government and affairs of the city the exercise of

which is not expressly forbidden by the constitution and

general statutes of the State of Connecticut....

Chapter VIII

Sec. 11. Contracts for public works and improvements.

The council shall establish by ordinance rules and

regulations under which contracts shall be made and

Xvi

STATEMENT OF THE CASE

Introduction

Local Union No. 35 is an electrical workers’

union which has a contract with an association of elec-

trical contractors which provides that the latter shall

use the Union’s hiring hall for job referrals. The Union

in making referrals uses a non-discriminatory Out Of

Work List that lists applicants in chronological order of

their signing up and the worker on the list the longest

is referred out first. By direct and indirect means the

defendant City in attempting to enforce its affirmative

action plan requires the Union to jump minorities on the

list and refer them in preference to non-minorities who

have “seniority” on the list. The Union sought declara-

tory and injunctive relief in the district court of Con-

necticut invoking its jurisdiction under 28 USC Sec.

1343(3) and (4)! and also its pendent jurisdiction for the

purpose of invalidating the City’s affirmative action

plan contending, inter alia, that the plan mandates dis-

criminatory treatment of non-minority emplo: ees on the

basis of race, in violation of the 14th Amendment to the

United States Constitution, 42 USC sec. 1981, 42 USC

sec. 1983, and state statutory and constitutional stand-

ards. (App. A28-35) The district court denied the Union’s

motion for summary judgment for a preliminary injunc-

tion and granted defendants’ cross motion for summary

judgment. (App. A28) The Union thereafter filed a

Motion to Amend and Make Additional Findings of

Fact, a Motion for a New Trial, a Motion to Alter and

Amend Judgment, a Motion for Permission to File Third

Amendment to Complaint, a Motion for Permission to

Amend Proposed Third Amendment to Complaint, and a

Motion for Permission to File Fourth Amendment to

Complaint. In a subsequent ruling the district court

below denied all of the aforesaid post-judgment motions.

1The district court would also have jurisdiction under 28 U.S.C. sec.

1331. The matter in controversy exceeds $10,000 and arises under

the Constitution or laws of the United States.

1 ‘

(App. A56) The Union then appealed to the United

States Court of Appeals for the Second Circuit (‘Court

of Appeals”’) from the judgment below.

The appeal was heard by a three judge panel and on

June 13, 1980, a majority of the panel affirmed the

judgment below, one judge dissenting. (App. Al) The

Union then filed a Petition for Rehearing and Sugges-

tion for Rehearing En Banc (hereinafter ‘Petition for

Rehearing’’) which was denied on September 3, 1980.

(App. A68) On October 9, 1980, the plaintiff filed a

Notice of Motion for Permission to File a Petition for

Reconsideration of its previously filed Petition For Re-

hearing and the latter motion was denied on October 30,

1980. On October 11, 1980, the plaintiff filed a Notice of

Motion for Modification of Decision and Notice of

Motion for Modification of Mandate, both of which were

denied on October 30, 1980.

Statement Of Facts

The Union is a labor organization. It represents all

electrical workers who work for any and all employers

with whom Union has a contractual relationship in six

counties all in the State of Connecticut and, also in the

Westerly Township of Washington County, Rhode

Island. (App. A2) The Union has entered into a collec-

tive bargaining agreement with the Central Connecticut

Chapter, Hartford Division, National Electrical Con-

tractors Association, Inc. (hereinafter referred to as

“NECA”). Said agreement applies to all employers

that assent to be bound by it. (App. A31-32). Under

said agreement the Union is the sole and exclusive

source of referral of applicants for employment with

assenting firms. The referral procedure is open to both

members and non-members of the Union (App. A32)

and the Union is required to refer applicants without

discrimination (App. A109). In brief, the referral proce-

dure is on the basis of referring applicants in the order

of their place on the Out of Work List. The Out of Work

List lists out of work applicants in the chronological

order of the dates they register their availability for

employment. (App. A49) Under Article III, section

25(b), of said labor agreement, a contractor is prohibited

from discriminating against any employee. (Ct. of App.

Jt. App. A6, A91).

In 1975, the City passed an Ordinance, entitled

“Article X. Affirmative Action Plan,” as part of the

Municipal Code of the City of Hartford. (App. A4, A71).

Among the stated purposes of said Ordinance is that of

ensuring equal employment opportunity for minority

group persons [defined as persons of Black, Puerto Ri-

can, Spanish-American, Oriental or American Indian eth-

nic or racial origin and women] in all phases of construc-

tion work performed pursuant to major contracts offered

and awarded by the City under the provisions of the

(City) Chater and the (City) Code. (App. A71, A73). The

Ordinance contains a recitation of legislative policy and

findings which are, in pertinent part: (a) Many contract-

ors, labor unions, hiring halls, crafts and trades in the

construction industry in the Greater Hartford Area have

discriminated, and continue to discriminate, against

minority group persons and women....; (c) The continuing

effects of past and present discrimination against mi-

nority group persons and women by the construction

industry may be prevented, mitigated and/or eliminated

by an affirmative action plan....; (g) The Thirteenth and

Fourteenth Amendments to the United States Constitu-

tion, Article 1, Section 20 of the Constitution of the

State of Connecticut, 42 United States Code, Section

1981, 42 United States Code, Section 2000(e), Presiden-

tial Executive Order Numbers 11246 and 11375, the

Governor’s Executive Order Number 3, and Chapter II,

Sections 5 and 7 and Chapter VIII, Section 11 of the

Charter authorize and mandate that the city adopt an

affirmative action plan to be incorporated in all major

construction or improvement contracts to insure that no

public funds are used to promote, maintain or effectuate

the denial of equal employment opportunity. (App. A71-

72).

The Ordinance, in sec. 2-325 thereof, requires the

City Council to adopt a Hartford Affirmative Action

Plan. (App. A74) Pursuant to section 2-328 of said

Ordinance, if a labor organization performs substantial

construction work beyond the Greater Hartford Area,

such organization will be allowed to participate in the

construction work required by a City contract but only

if it is ‘“‘certified’’ by the City Manager or his designee.

(App. A76) In order to be “certified” under the above

procedure, the labor organization is required to submit

an affidavit stating that it agrees with Hartford’s

affirmative action plan and will make a good faith effort

to comply with its provisions. The city manager (or its

designee) may issue a certification under the foregoing

only if, inter alia, it finds that public funds will not be

used, directly or indirectly, to promote or maintain dis-

crimination as a result of such certification and the

documents and data submitted clearly indicate that such

organization has accepted, is accepting or will in the im-

mediate future be accepting adequate minority group

and women participation in its operations. (App. A76-77)

The Union was so certified on October 31, 1975. (App.A7)

Pursuant to said Ordinance the City adopted ‘‘The

Greater Hartford Affirmative Action Plan.” (App. 4)

Said Plan is incorporated into City construction con-

tracts; a breach of the Plan constitutes a breach of the

construction contract and subjects the contractor to

remedies provided in the Ordinance. (App. A5, A82). The

Plan provides that the parties to it agree to make every

good faith effort over a five year period to achieve a

level of membership and employment of qualified mi-

nority group employees on public and private construc-

tion work in the Hartford Labor Market area2 to at

least 15% (App. A83-86) and the City is required to set

minimum participatory goals on City projects for

minority personnel which shall be at least 15% of the

daily manhours worked by each trade on each project.

(App. A86-87). The contractor and its labor referral union

2Defined as encompassing Hartford and 23 surrounding municipali-

ties. (App. A84)

are to bear the responsibility to achieve that goal. (App.

A86). The [Ilan deals with the training of applicants

and also requires that all apprentice applicants shall be

subject to the guidelines set forth by federal and state

requirements for registered apprenticeship programs.

(App. A97). The Plan provides that it is not the intent

of the Plan to interfere with any bona fide seniority

system which does not perpetuate past discrimination

(App. A103) and that it is not the intent of the City to

violate any laws of any governmental authority having

jurisdiction of the subject matter of the agreement

[Plan] and the City agrees that, in the event any provi-

sion of the agreement [Plan] is held unlawful the re-

mainder shall remain in force, if severable. (App. A104).

At the May 16, 1977, hearing before Judge Blumenfeld,

the City conceded that if there is any inconsistency

between federal and state law and the Plan, the Plan

must yield to the federal or state law. (Court of Appeals

Jt. App. A44)

Rather than setting a ‘‘goal” of 15% the City has

set a mandatory “quota” of 15% on City projects for

the employment of minority persons on a trade-by-trade

basis for the contractor’s daily work force. (Court of

Appeals Jt. App. A7-A8, A34, A101).

By Memorandum dated February 28, 1977 from

Arthur Johnson, executive director of the Commission

on Human Relations for the City of Hartford addressed

to the City’s Contract Enforcement Committee, Mr.

Johnson indicated that based on a staff report, the

Union’s use of its referral list to refer workers to con-

tractors performing construction work on City projects

will be directly in conflict with the minority manning

provisions of the City’s Plan. (App. Al05) The staff

report recited that contractors reported that their refer-

ral agreement with Local 35 preempted their utilizing

other sources to comply with the minority manning

requirements for City projects. (App. Al07) The report

stated that the Union informed the City that it was

using a rotation system for the referral of workers; that

the Union's position was that such rotation list took

precedence over any minority manning requirements in

the Plan; that the following statistics were supplied;

IBEW #35 total membership - 550; Working - 229; Not

Working - 321; Total minority - 41; Minority working -

24; Minority not working - 17; that as of 2/8/77 the

rotation list contained 321 names; and that minority

workers occupy the following positions on that list: 85,

94, 121, 145, 157, 166, 167, 184, 188, 204, 212, 224, 236,

238, 287, 299, 308. The report concluded that the use of

the list for the referral of minority workers would direct-

ly conflict with the minority manning provisions of the

“Greater Hartford Plan.’’ (App. A107-108).

In the NECA contract, under Article VII (Referral

Procedure) (App. Al09) the Union is to maintain a

groups. (App. A110) Group I, the highest group, con-

sists of applicants who have four or more years of ex-

perience and are journeymen and who are residents of

the geographical area constituting the normal construc-

tion Jabor market as defined therein. (App. A110) In the

instant case, all the [321] workers who were unemployed

were in Group I, all of the [321] applicants on the Out

of Work list were in Group I, all the [17] minorities on

that list were in Group I, and all of the [41] minority

members of the Union were in Group I. (Court of Ap-

peals, Jt. App. A109, A116, A117, A126)

On April 5, 1977, the plaintiff filed its Complaint in

the United States District Court in Hartford, Connecti-

cut seeking therein a preliminary injunction. (Court of

Appeals, Jt. App. A4).

The City’s Contract Enforcement Committee held a

public hearing to consider Mr. Johnson’s determination

of the Union’s non-compliance. (App. A33).

At the hearing Mr. Johnson testified that the Union

was in violation of the Plan and the Ordinance [solely]

because of the way the Union operated its referral list.

(Court of Appeals Jt. App. Al12-A113). Mr. Aresco, at-

torney for the Committee ruled that the issue was that

the operation of the list would not supply “the neces-

sary quota” that the City required. (Court of Appeals

Jt. App. A113). Mr. Johnson testified that when the

Union was certified under the Plan in October, 1975, it

had supplied to his office as part of the certification

procedure a copy of its labor agreement with NECA.

(Court of Appeals Jt. App. All4). Mr. Fletcher, Mr.

Johnson’s assistant, then testified that he recommended

to Mr. Johnson that the Union be disqualified because

its referral list was preempting contractors from

meeting the minority manning requirements. (Court of

Appeals Jt. App. A115). He explained that workers

signed the list when they became unemployed and the

earliest one signing was referred first. (Court of Appeals

Jt. App. All5, A116, A117). He agreed that the

minority workers were in the position they were on

the list because that was when they signed it. (Court of

Appeals Jt. App. A117). He stated that over 50% of the

Union members were unemployed and that the percen-

tage of minorities unemployed was less than the per-

centage for the total membership unemployed. (Court of

Appeals Jt. App. A118). Both Mr. Fletcher and Mr.

Johnson testified that the Union should, in effect, jump

minorities ahead of others on the list when making job

referrals. (Court of Appeals Jt. App. A119-A120).

Robert W. Murray, business mauager for the Union,

testified that the referral list wor. >d in an impartial and

neutral chronological manner (Court of Appeals Jt. App.

A122-A123); that the list was established about a year

and a half ago in the winter of 1975-1976 (Court of

Appeals Jt. App. Al24-A125); that before that there was

no need for a list because there was a lack of unemploy-

ment (Court of Appeals Jt. App. A124); that about Jan-

uary 1977 the Union received a letter from Mafco (Court

of Appeals Jt. App. A104) [a contractor] requesting a

satisfy the affirmative action program (Court of Appeals

Jt. App. A125), but when the Mafco request was made

the Union consulted with its attorney and he advised

the Union that under State and Federal law the Union

was obligated to operate the list strictly on a rotation

basis and, therefore, Mafco’s request could not be honor-

ed (Court of Appeals Jt. App. A123-A124); that the

as follows: ‘““The Union shall maintain an ‘Out of Work

ability for employment.’’ (App. A112) [The Transcript of

the Commiteee hearing was submitted to the District

Court as part of the support for the plaintiff's later filed

Motion for Summary Judgment. The above evidence

was undisputed.|

The Contract Enforcement Committee decided that

use of the referral list evidenced the Union's lack of

good faith effort to comply with the Plan and, therefore,

the Union would be decertified. (App. A61). The Com-

mittee also found that the Union had been in compliance

when it previously had referred minorities out of chrono-

logical turn. (App. A62).

Thereafter, in the trial court, the City filed a motion

for summary judgment and the Union filed a motion for

summary judgment on its request for a preliminary

injunction. A court hearing was held on said motions on

August 3, 1977, before Judge Blumenfeld. (Court of

Appeals Jt. App. Al27, A128). At said hearing the fol-

lowing occurred: .

“The Court: The plaintiff has not challenged and

not

challenge that there is past discrimination...

Ellis: ... Your Honor...suggested that there has been

some finding of past discrimination which the union

does not challenge. That is not correct. There has been

no finding of past discrimination against this union.

That is not in issue in this case at all.... I don’t dispute

that the city has made...a legislative finding, your

Honor, as a generality. But as to this particular union,

there has been no particular finding that this union is

guilty of past discrimination which has any continuing

effects today.’’ (Court of Appeals Jt. App. A132-A133).

Mr. Ellis’ statement was never disputed.

does

Mr.

At the conclusion of the August 3, 1977, hearing the

court invited the parties to submit to it any new matter

that each might come across in their research pending

the trial court’s ruling. (Court of Appeals Jt. App.

A138).

On March 2, 1978, the defendants filed ‘‘Defendants’

Supplemental Memorandum In Opposition to Plaintiff's

Motion for Preliminary Injunction And Summary Judg-

ment, And In Support of Defendants’ Motions to

Dismiss And For Summary Judgment’’? (hereinafter

referred to as “Supplemental Memorandum’’). In defen-

dants’ Supplemental Memorandum (pp. 13-14) the claim

was made that the City council had substantial evidence

before it to support its legislative finding and that the

statistical evidence pointing to discrimination in the con-

struction industry was overwhelming (p. 20). In its April

1978, memorandum in response thereto, the Union ex-

plained that at the “stage of the proceedings” in which

the case was at that time the City’s legislative finding

was not in issue and therefore the offer of the evidence

of legislative history and the argument based thereon

3Said memorandum is docket entry no. 32 and appeal index no. 3.

*Said memorandum is docket entry no. 36 and appeal index no. 27.

was irrelevant. (p. 8). Even so, the Union presented an

argument in said memorandum that the “‘evidence’’ sub-

mitted by the City did not, in fact, support any legisla-

tive finding of past discrimination. (pp. 8-11). After the

Bakke® case was decided the issue of the authority of

the City to make its legislative finding was argued. On

page 8 of ‘Plaintiff's Supplemental Brief Re Bakke’’é

the Union made the claim that the City had no author-

ity to make any such legislative finding because it pos-

sessed no authority to adopt the Ordinance or Plan.

(Court of Appeals Jt. App. A166).

On July 3, 1979, the Union filed a Second Amend-

ment to the Complaint in which it asserted a cause of

action against the City under 42 USC sec. 1983. (Court

of Appeals Jt. App. A152).

On December 11, 1978, the trial court filed its Rul-

ing on Pending Motions in which it denied the Union’s

- motion for summary judgment for a preliminary injunc-

tion and granted the City’s motion for summary judg-

ment. (App. A28). The Union then filed a variety of

post judgment motions. (Court of Appeals Jt. App.

A208-A214). In its Motion For A New Trial it was

claimed that the court erred in refusing to consider the

Union’s claim that the City had no legal authority to

adopt its Ordinace and Plan. (Court of Appeals Jt. App.

A211). The district court denied the post judgment

motions in its Ruling on Pending Motions filed March 7,

1979. (App. A56).

In ‘Defendants Memorandum In Opposition to

Plaintiff's Post-Judgment Motions.’ filed January 29,

5438 U.S. 265 (1978).

6Said brief is docket entry no. 39 and appeal index no. 30.

7Said memorandum is docket entry no. 52 and appeal index no. 5.

1979, the City conceded that “The affirmative action

ordinance is not directed against Local Union No. 35....”’

(memo. pp. 5-6).

In its brief before the Court of Appeals, the Union

pursued its claim that the City possessed no authority

to adopt an affirmative action plan Ordinance or Plan in

implementation thereof (P’s Court of Appeals Brief, pp.

14-21). In affirming the judgment below, the Court of

Appeals ignored said issue (App. 1) In its Petition

for Rehearing, plaintiff argued that the Court of

Appeals erroneously failed to resolve this issue. (P’s

Petition for Rehearing, p. 7). The Petition For Rehearing

was denied without opinion. (App. A68). The plaintiff

then filed a Notice of Motion for Permission to file Peti-

tion for Reconsideration of said Petition for Rehearing

on the asserted ground that plaintiff’s counsel had sub-

sequently discovered two unpublished Connecticut state

trial court decisions both of which are currently on

appeal to the Connecticut Supreme Court wherein the

City of New Haven’s Commission on Equal Opportuni-

ties [established by City ordinance] and its orders were

ruled invalid on the ground that the City had no statu-

torily delegated authority to regulate employment prac-

tices protective against racial discrimination. As an

additional ground, plaintiff's counsel pointed to newly

enacted Connecticut Public Act 80-403 [of which said

Counsel had been previously unaware] which was passed

in response to the above unpublished cases and which

gave municipalities [prospective] power to establish

equal rights and opportunities commissions which would

have power, inter alia, to remedy employment discrimi-

nation. The purpose of seeking to file the petition for re-

consideration was to argue to the Court of Appeals that

since it had refused [and, thus, abstained] from address-

ing the threshold state law issue of the City’s authority

to adopt its Ordinance and Plan it should remit that

question to the state court for resolution. Said Motion

was denied on October 30, 1980. For the same purpose,

the plaintiff on October 11, 1980 filed with the Court of

Appeals a Notice of Motion for Modification of Decision

and a Notice of Motion For Modification of Mandate.

The latter motions were denied on October 30, 1980.

ARGUMENT

A. ACITY, AS A SUBORDINATE GOVERN-

MENTAL BODY, MAY NOT LEGISLA-

TIVELY ESTABLISH AN AFFIRMATIVE

ACTION PLAN IN REGARD TO PUBLIC AND

PRIVATE CONSTRUCTION EMPLOYMENT

BASED ON GENERALIZED NON-SPECIFIC

FINDINGS OF EMPLOYMENT DISCRIMINA-

TION NOR MAY IT, ON THE BASIS OF SUCH

FINDINGS, JUSTIFY RACIAL PREFERENCES

FOR HIRING ON CITY CONSTRUCTION

PROJECTS.

The City could not have induced anyone to agree

to its Plan if thereby an entity would be deemed to have

admitted that it had engaged in discriminatory acts. So

the City’s Ordinance indulged in no particularized find-

ings of discrimination which in turn permitted entities

to join the Plan free from fear they would be open to

accusations of discrimination such as those speculatively

indulged in by the Court of Appeals. (App. A11) Thus,

the Ordinance and Plan did not assume or establish that

those that joined it were guilty of discrimination. 'There-

fore, one question raised by this case is whether a politi-

cal subdivision of a state can require an innocent partici-

pant in its affirmative action plan to refer for employ-

ment minorities in preference to non-minorities. Neither

Bakke, Weber or Fullilove® involved this issue. In gen-

eral terms, Fullilove involved the right to bid on a

government contract that did not involve the status of

the bidders as individuals. It could be said that there

8Respectively, (1978) 438 U.S. 265; (1979) 443 U.S. 193; (1980) 100

S.Ct. 2758.

was no personal value of freedom to pursue a vocation

that was derogated by the classification of bidders in

Fullilove. But in our case there is implicated the status

of the non-minority job applicants as individuals and

this Court has held that the basic “right to work for a

living in the common occupations of the community is

of the very essence of the personal freedom and oppor-

tunity that it was the purpose of the [Fourteenth]

Amendment to secure.” Truax v. Raich, (1915), 239 U.S.

33, 41. Here the non-minorities are penalized as indivi-

duals solely because of their race. Since the preferential

referral required by the City constitutes state action

detrimental to persons solely because of that person’s

race the requirement is offensive to the Equal Protec-

tion Clause of the Fourteenth Amendment.

Since the governmental action in this case trenches

upon values that are fundamental that action should be

the product of a deliberate and broadly based political

judgment. Such governmental action should be the pro-

duct of a process that is entitled to speak for the

society. Associated Gen., ETC. v. San Francisco Unified

SCH., (CA 9th, 1980), 616 F.2d 1381 1390. The City, as

a subordinate governmental institution, does not meet

that test for its action “‘is likely to be the product of

partial political pressures that are not broadly reflective

of society as a whole.” Sandalow, Judicial Protection of

Minorities, 75 Mich. L. Rev. 1162, 1188 (1977). As a

subordinate governmental body not possessing the

sweeping powers of a Congress nor even the less sweep-

ing powers of a state legislature, the City had no consti-

tutional right to address regional discrimination, identify

it by non-particularized findings and then justify its

racial preference policies thereon. Associated Gen., ETC,

Supra, and at 1390 n. 14; Fullilove v. Klutznick (1980)

100 S.Ct. 2758, at p. 2794 n. 14. (“The degree of specifi-

city required in the findings of discrimination and the

breadth of discretion in the choice of remedies may vary

with the nature and authority of a governmental body.”’

Powell,J.)

B. THE CITY POSSESSED NO AUTHORITY TO

ADOPT THE ORDINANCE OR PLAN

The City of Hartford (hereinafter ‘‘City’’) is a politi-

cal subdivision of the State of Connecticut occupying a

part of the territorial area of the state. Norwalk v.

Daniele, (1955), 143 Conn. 85, 88, 119 A.2d 732. As a

municipality it is solely a creation of the state and it

has no inherent powers of its own. Pepin v. Danbury,

(1976) 171 Conn. 74, 83, 368 A.2d 88. Unlike the inher-

ent powers that appertain to the state legislature the

only powers that a Connecticut town or municipality has

are those granted to it by the state. Pepin, supra, p. 83;

Council of the City of West Haven v. Hall, (Conn.

Supreme Court, Apr. 15, 1980) 41 Conn. Law Journal,

No. 42, pp. 8, 10. The only appropriate sources of

authority which the City relies on as authorizing it to

enact its Ordinance are Article 1, Section 20 of the Con-

necticut Constitution (supra, p. xi), the Governor’s Ex-

ecutive Order Number 3 (supra, p. xvi) and Chapter II,

Sections 5 and 7 and Chapter VIII, Section 11 of its

Charter.? (supra, p. xviii) Article First, section 20 of the

State Constitution provides that ‘‘No person shall be de-

nied the equal protection of the law nor be sub. ected to

..discrimination in the exercise of his civil...rights be-

cause of ...race....’’ The city has been given no enforce-

ment power in regard to Section 20 and that section

does not constitute an express source of authority for

its Ordinance. Associated Gen., ETC. v. San Francisco

Unified SCH., (CA 9th, 1980), 616, F.2d 1381, 1386-1388;

Matter of Broidrick v. Lindsay, (1976) 39 NY 2d 641, 350

N.E. 2d 595; see, also, Southeastern Community College

v. Davis, (1979) 442 U.S. 397 (Rehabilitation Act prohib-

iting discrimination against handicapped persons did not

impose affirmative action obligation on recipients of

9The claimed federal sources of power set forth in the Ordinance

[App. A72] are inapposite. There was no evidence that any federal

authority required the City to adopt the Ordinance or Plan. The

City has no enforcement authority under said federal sources.

federal funds.) The Governor’s Executive Order Number

3 applies only to state contracts and does not deal with

municipalities in any respect. (supra, p. xvi).98 Charter

Sec. 5 provides that the City may not adopt ordinances

in conflict with the general statutes, (supra, p. xviii). This

is not a grant of authority to pass the Ordinance. Chart-

er section 7 provides that the City shall have implied

powers incident to the powers expressly granted. (supra,

p. xviii). Since there was no express power there could

be no implied power to pass the Ordinance. Council of

the City of West Haven, supra. Charter section 11 pro-

vides that the City may pass ordinances concerning city

contracts and provides that the same may be awarded to

the lowest responsible bidder. (supra, p. xviii). The crite-

rion of “responsible” bidder does not authorize a require-

ment that a bidder adhere to an affirmative action plan.

Associated Gen., Etc. v. San Francisco Unified SCH.,

supra, p. 1385; see Austin v. Housing Authority, (1956),

143 Conn. 338, 344-346, 122 A.2d 399, and Matter of

Broidrick v. Lindsay, (1976), 39 NY 2d 641, 648, 350

N.E. 2d 595.

A Connecticut municipality may not pass an ordin-

ance which deals with the same subject matter as that

dealt with by an act of the state legislature. Southport

v. Ogden, (1854), 23 Conn. 128, 132-133. If the legisla-

ture has delegated a field of regulation to a state board

or agency the state has preempted the field and any city

ordinance dealing with the same subject matter is in-

valid. State v. Brennan, (1965), 3 Conn. Cir. 413, 216

A.2d 294, 296-297. Chapter 563 of the state statutes

(Conn. Gen. Statutes, secs. 31-122 et seq., supra, p. xiv)

is entitled “Fair Employment Practices” and under it

discrimination in public and private employment is pro-

hibited. Conn. Gen. Statutes sec. 31-122(c) and (f), 31-

126(a) (c) and (e). Acts of prohibited employment dis-

crimination may be rectified by the state’s Commission

on Human Rights and Opportunities in response to a

complaint or on its own initiative and it may make

98A Connecticut municipality is not a state

inect agency. Bridgeport v.

Agostinelli, (1972) 163 Conn. 537, 550, 316 A.2d 371.

remedial orders which may include affirmative action

relief. Conn. Gen. Stat. secs. 31-125(e), 31-127, 31-

128. The purpose of Chapter 563 was to delegate

to the Commission the duty to eliminate employ-

ment discrimination which it may accomplish by

initiating class wide complaints and provide for class

wide relief. The Act is co-extensive with 42 USC

sec. 2000e-2. Pik-Kwik Stores v. Commission on

Human Rights and Opportunities, (1976), 170 Conn.

327, 330-331, 368, A.2d 1210; Groton v. Commis-

sion on Human Rights and Opportunities, (1975), 169

Conn. 89, 99-100, 362 A.2d 1359; Veeder-Root Co. v.

Commission on Human Rights and Opportunities, (1973)

165 Conn. 318, 327-330, 334 A.2d 443. Thus, the field of

rectifying employment discrimination on a class wide

basis by providing for affirmative relief in the nature of

racial preference hiring has been preempted by the state

abrogating all city ordinances dealing with the subject.

Midwest Employers Council, Inc. v. City of Omaha,

(1964), 177 Neb. 877, 881-888, 131 N.W. 2d 609 (Oma-

ha’s ordinance prohibiting employment discrimination

was invalid since city had no power to legislate on fair

employment practices and power concerning labor rela-

tions and practices including civil rights lies in the state

not in a municipality); Associated Gen., ETC v. San

Francisco Unified SCH., (CA 9th, 1980), 616 F.2d 1381

(a school board’s affirmative action policy lacked legisla-

tive authorization and could not be legally imposed):

Matter of Broidrick v. Lindsay, (1976), 39 N.Y. 2d, 641,

648-649, 350 N.E. 2d 595 (Mayor of NYC’s affirmative

action plan regulations held invalid as unauthorized un-

der the law);!9 Lige v. Town of Montclair, (1976), 72 NJ

5, 367 A.2d 833 (a racial hiring quota for Town of Mont-

clair imposed by state agency held to be in violation of

10Broidrick was followed by Fullilove v. Beame (1979) 48 N.Y.2d,

376, 398 N.E. 2d, 765 and Fullilove v. Carey, (1979) 48 N.Y. 2d

826, 399 N.E. 2d 1203 (affirming 62 A.D. 798, 406 NYS 2d 888).

Beame held that NYC Mayor’s mayoral order as well as regula-

tions were invalid as in excess of legislative authorization and in

Carey the Governor’s executive order requiring contractors to

undertake programs of affirmative action was ruled invalid as

being in excess of authority.

state constitution prohibiting discrimination); Hull v.

Cason, (Cal. Ct. App., 1978) 88 CA 3d 768, 151 Cal.

Rptr. 438 (California anti-discrimination statutes would

invalidate fire department affirmative action plan); and,

see, Hiatt v. City of Berkeley, (Cal. Ct. App., 1979) 88

CA 3d 503, 151 Cal. Rptr. 895 (Berkeley’s affirmative

action plan held unconstitutional) and Brunetti v. City

of Berkeley (U.S.D.C.N.D. Cal., 1975) 12 FEP Cases 937

(same result).

The Plan sets a 15% minority membership and

employment goal for private as well as public construc-

tion projects for those doing business with the City.

(App. A86-87). In attempting to regulate private (as well

as public) construction projects, the City used its con-

tracting policy to promote an extrinsic social policy for

which there was no grant of legislative power. Matter of

Broidrick, supra, p. 648.

In short, the City had no power to legislate in re-

gard to the employment practices of privately owned

contractors or the training, membership, employment or

referral practices of unions in order to provide affirma-

tive relief for minorities.

C. THE CITY’S LACK OF AUTHORITY TO

ADOPT THE ORDINANCE AND PLAN IS A

THRESHOLD STATE LAW ISSUE WHICH

THE COURT ERRONEOUSLY ABSTAINED

FROM RESOLVING.

Both in Regents of State University of California v.

Bakke, (1978), 438 US 265 and in Fullilove v. Kluiznick

(1980) 100 S.Ct. 2758, it was indicated that a threshold

issue in determining the legality of racial preference

legislation is whether the promulgating body possessed

the requisite authority to enact such legislation. Since

resolution of such an issue is a necessary predicate to an

intelligent resolution of the ultimate question of whether

the means adopted to redress identifiable employment

discrimination passes constitutional muster the thres-

hold issue must first be resolved. Cuyler v. Sullivan,

(1980), 100 S.Ct. 1708, 1715, n. 6. The threshold issue of

the City’s authority to adopt its Ordinance and Plan

was raised below. (supra, 10-11) The Court of Appeals ig-

nored!! that fundamental claim and dealt first and last

with the ultimate question. It was an erroneous exercise

of judicial power for the Court of Appeals to so abjure

its proper judicial function; Barr v. Matteo (1957), 355

U.S. 171-173; Associated Gen., ETC. v. San Francisco

SCH., (CA 9th, 1980), 616 F.2d 1381, 1384; unless the

absention doctrine or a proper exercise of its pendent

jurisdiction over state-law questions permitted it to re-

frain from resolving the state-law issue and proceed

directly to the ultimate constitutional question without

remitting the former to the State Court or resolving it

itself. There was error either because the absention doc-

trine required state court remission; Railroad Commis-

sion of Texas v. Pullman, (1941), 312 U.S. 496, 498-501;

City of Chicago v. Fieldcrest, (1942), 316 U.S. 168-173;

or because pendent jurisdiction principles required the

appeals court to resolve the issue. Associated Gen.,

ETC., supra. In failing to properly apply either the

absention doctrine or its pendent jurisdiction, the Court

of Appeals denied to plaintiff its day in court in viola-

tion of Due Process. Compare, Lutcher v. Moore Lumber

Co., (1910), 217 U.S. 257 (CA denied plaintiffs their day

11The Court of Appeals merely stated that the City’s Council was a

competent and responsible legislative body citing no Connecticut

Constitutional provision, legislation or case law. (App. All) This

does not qualify as a “resolution” of the basic issue. Compare the

extensive discussion of such a threshold issue in Associated Gen.,

ETC. v. San Francisco Unified SCH., (CA 9th, 1980), 616 F.2d

1381.

—_ —

—= EE

in court when it refused to rule on issue properly before

it.)!2

D. THE DESTRUCTION OF THE UNION’S

NON-DISCRIMINATORY OUT-OF WORK LIST

VIOLATED NATIONAL LABOR POLICY.

A seniority system which applies to all races and

ethnic groups, is consistent with NLRB precedents, does

not have its genesis in racial discrimination and which

was negotiated and jas been maintained free from any

illegal purpose is lawful, does not violate Title VII, and

is protected by 42 USC §2000e-2(h) (supra, p. xiii). Inter

national Brotherhood of Teamsters v. United States,

(1977), 431 U.S. 324. A seniority system allots to em-

ployees improving employment rights as their relative

lengths of pertinent employment increase. California

Brewers Association v. Bryant, (1980) 444 US 598, 605-

606. A referral system, as does a seniority system, allo-

cates entitlements to scarce benefits since it determines

who gets an available job. NLRB v. Houston Chap.

Assoc. Gen. Con. of America, Inc., (CA 9th, 1965), 349

F.2d 449, 452, cert. den. 382 U.S. 1026 (a hiring hall pro-

vides for employee security); see, Franks v. Bowman

Transportation Co., (1976), 424 U.S. 747, 766. A senior-

ity system also includes ancillary rules which need not,

in and of themselves, operate on a factor involving pas-

sage time but which accomplish necessary functions con-

nected with the system. California Brewers Association

v. Abram Bryant, supra, 607-608.

The Union’s referral system divides workers into

four groups ranked primarily according to length of

12In addition, said Due Process violation was inconsistent with

standards 3.11 and 3.36, Standards Relating to Appellate Courts,

ABA Commission on Standards of Judicial Administration,

Approved Draft, which require an appellate court in a full written

opinion to meet in a candid fashion, all the issues presented in

cases of importance.

work experience. (App. A110) Referrals from each group

are made in the order of an applicant’s place on an “Out

of Work List.”’ (App. Al12) This grouping provides for

employee security and allocates entitlements to scarce

benefits and it qualifies as a seniority system. The rule

that referrals within a grouping are to be made from the

“Out of Work List”’ is an ancillary one which is a neces-

sary part of the system within the meaning of California

Brewers Association, supra. There was no evidence pre-

sented, claim made or issue pursued before any of the

courts below, to the effect that said system did not

apply alike to all races and ethnic groups, that it had its

genesis in racial discrimination or that it was negotiated

or maintained with an illegal purpose.!5 The Union's re-

ferral system was valid under the federal labor laws.

Interstate Electric Company, (1977), 227 NLRB 1996

(No. 291);!4 Teamsters Local v. Labor Board, (1961), 365

U.S. 667. It was a non-discriminatory referral system

which could not be set aside absent specific Congres-

sional authorization. Teamsters Local v. Labor Board,

supra. There being no such authority granted, the

district court and the Court of Appeals had no authority

to invalidate the Union’s Out of Work List. United

States v. East Texas Motor Freight System (CA 5th,

1977), 564 F.2d 179, 185 (seniority system could not be

set aside to satisfy governmental order which, in effect,

declared unlawful what Title VII made lawful on the

theory that it was a barrier to minority movement to

jobs); Southbridge Plastic Div. v. Local 759, (CA 5th,

1978), 565 F.2d 913 (conciliation agreement could not

override non-discriminatory seniority system since that

would, inter alia, conflict with NLRA).

13The district court disclaimed any intention to imply that the Union

in operating its hiring hall sought to thwart the City's affirmative

action plan. (App. A48 n. 17)

14NLRB's analysis as to an aspect of the referral system not at issue

in our case was rejected in Robertson v. NLRB (CA 10th, 1979)

597 F.2d 1331. But in Construction Building Materials & Miscl.

Driver's Local No. 83, (1979) 243 NLRB No. 26 at n. 8, 1979-80

CCH NLRB par. 16003, the NLRB disagreed with the 10th Cir-

cuit’s holding and adhered to its position in Interstate.

—_

The Plan, itself, provides that “It is not the intent

of this Agreement to interfere with any bona fide senior-

ity system which does not perpetuate past discrimina-

tion.”” (App. A103) The City’s action, approved by both

lower courts, is in violation of that provision and the

national labor policy discussed above.

E. THE CITY’S 15% MINORITY MANNING

REQUIREMENT WAS A MEANS TO CONFER

A RACIAL PREFERENCE AS AN END IN

ITSELF AND BOTH ON ITS FACE AND AS

IMPLEMENTED IT WAS IN VIOLATION OF

EQUAL PROTECTION.

1. Invalid On Its Face

The Plan required that each craft would make a

good faith effort over a five-year period!5to achieve in

regard to the qualified minority labor force in the Hart-

ford Labor Market Area (hereinafter referred to as ‘‘Re-

gion’’) concerning public and private construction pro-

jects a goal of minority training, membership and

employment to at least 15% (hereinafter the “Regional

Goal.”’). (App. A83-86) This Regional Goal was to over-

come the effects of discrimination which the Ordinance

identified as existing on a Region-Wide basis. (App. A71)

The Hartford Labor Market Area consisted of Hartford

and 23 surrounding municipalities. (App. A84),

The Plan also required a 15% minority

level (on the basis of manhours) on City of Hartford con-

struction projects. (App. A86) This 15% manning re-

quirement was not a function of or correlated with the

1The Plan provides that achievement of the 15% goal, after consul-

tation between the City and affected parties, shall be set at no less

than 1 year and no more than 5 years, as determined by said con-

sultation. (App. A86). There was no showing that the goal as set

was to be achieved in less than 5 years. (App. A31).

Regional Goal or with manning levels existing in the

other 23 municipalities. Even if a contractor or union

was in strict or in excess compliance with the Regional

Goal said contractor or union still could be in momen-

tary non-compliance with Hartford's 15% manning re

quirement because of a temporary inability to supply to

Hartford projects sufficient minorities because of their

prior utilization elsewhere in the Region or because of

their location on a non-discriminatory referral list. To

punish such a momentary lapse could only be for a pur-

pose to hire on the basis of race as an end in itself.

Even if it is assumed that a local manning requirement

could have a rational relationship to the achievement of

the Regional Goal in order for it to have any possi: le

chance of doing so it at least would have had to be

applied on an across-the-board basis in all of the 24

municipalities in the Region and not solely in Hartford.!®

The lower courts’ approval of the Ordinance and Plan, if

upheld, would mean that the other 23 municipalities in

the Region could each adopt separate Regional Plans!?

each containing its own local manning provision. Even if

each of the 23 municipalities was to set its manning

level as low as 3% any contractor or union operating on

a Region-wide basis would be contending with an aggre

gate minority manning quota so far in excess of the

Regional Goal that it could not possibly bear any

rational or reasonable relationship to it.'

The flaw in the 15% Hartford manning provision

was that in regard to it the Plan treated Hartford as if

16 Although the Plan focused on a Regional remedy and permitted

other towns to join it [App. A93] there was no showing that any

other town, city or municipality had ever joined the Plan. Also, the

Plan made no provision for an adjustment of the 15% Hartford

manning level depending on the actual level of minority utilization

in the remaining 23 municipalities in the Region in regard to public

or private construction prejects or in regard to private construction

projects in Hartford.

17Also, each could arrive at its own definition of what towns should

be part of the “region."’

1TAaE.g., 15% + (3% x 23) = 84%,

it was the only employer (public or private) in the

Region.

2. Invalid As Implemented.

The Union was certified under the Ordinance and

Plan on October 31, 1975 and was found by the City to

be in violation of the Ordinance and Plan on July 7,

1977, more than three years prior to the date by which

it was to achieve the Regional Goal. Apart from the

City’s objection to the Out of Work List, there was no

evidence, claim or issue before either of the lower courts

that the Union had failed to satisfy its affirmative

obligations under the Ordinance or Plan to achieve a

level of minority membership and employment consis-

tent with the Regional Goal.!® Thus, there was no

dispute that the achievement by the Union of a

7.45%19 minority membership was, at the time in ques-

tion, in satisfactory fulfillment of the Regional Goal. In

these circumstances, the only complaint the City could

make and, in fact, the only complaint it did make

against the Union was that the Union’s then interim

minority referrals (from its satisfactory complement of

minority and non-minority workers) did not then place

on City project jobs a sufficient number of minority

workers. 20

Job layoffs from an ever changing number of con-

tractors occur at sporadic times and in unpredictable

'8it should be noted that the City’s Plan attempts to remedy minor-

ity problems in regard to entrance aspects of the craft employment

field, such as, training and apprenticeship programs. (App. A94-98).

There was no allegation, issue or proof before the lower courts that

that Union was not in full compliance with those aspects of the

Plan.

19% App. All)

2°The City made no complaint below that the contractors were not

fulfilling their affirmative action plan requirements in any respect

except in regard to the Union's operation of the Out of Work List.

numbers. Because of this, minorities are and will always

be unevenly distributed on the Out of Work List even if

the Union had a 15%, 20%, 30%, 40% or 50%, etc.,

minority membership or applicant pool and it would be

inevitable that at some isolated interval of time such as

the one seized upon by the City it would not be able to

refer enough minorities to City jobs to satisfy whatever

was the City’s minority manning requirement unless the

Union abandoned the chronological referral of its listed

workers. Since the ‘‘deficiency’’ would arise even where

a union had been fulfilling its Regional obligations, as

here was the case, the purpose of the City’s objection

and the only result it could have accomplished wouid be

to require the Union to utilize a racial classification in

referrals solely as a means to confer a racial preference

and not to eliminate traditional patterns of racial dis-

crimination the City had found to exist in the Region.

“Such a purpose plainly would be unconstitutional.”

Fullilove v. Klutznick, (1980), 100 S.Ct. 2758, 2790 (J.

Powell).

United Steelworkers of America v. Weber, (1979),

443 U.S., 193, does not apply to our case because our

case involves state action.2! Nevertheless, it was held in

Weber that although a [private] employer is free to

achieve a racially balanced workforce by racial prefer-

ence methods, once it has achieved that goal, it may no

longer discriminate in order to maintain a racial balance.

In our case, there was no complaint or issue below that

the Union had not achieved a racially balanced work-

force fulfilling, at that time, the Regional Goal. Thus,

any attempt by the City to maintain a racial balance

on City construction projects was solely an end

21The Court of Appeals erroneously implied [App. A18] that the

plaintiff agreed that the Weber ruling permitting a private em-

ployee to adopt an affirmative action program required the same

result in regard to a racial preference plan adopted by a public

body. The plaintiff had made no such concession. (P’s Court of

Appeals brief, pp. 43-44).

of itself, a requirement to hire or refuse to hire on the

basis of race. Any attempt by the City to do so involved

state action not precisely tailored to serve any compel-

ling governmental interest and was contrary to Four-

teenth Amendment requirements. Regents of the Univer

sity of California v. Bakke, (1978), 438 U.S. 265; Fulli-

love v. Klutznick, (1980), 100 S.Ct. 2758, 2772, 2778-

2779, 2790; see Truax v. Raich (1915), 239 U.S. 33 (a law

requiring at least 80% of the employees of certain busi-

nesses to be citizens was held to be an unconstitutional

infringement of an alien’s right to work).

It was undisputed that the Union had

been able to satisfy the City’s 15% manning requirement

when the Union had previously referred minorities out

of chronological turn. (App. A62) Thus, there was no

need for nor was there any claim or issue before the

lower courts that the Union’s complement of minorities

in general or the number of minorities on the Out of

Work List in particular was insufficient to satisfy the

City’s 15% manning requirement. For that reason there

was no claim or issue below that the Union should have

engaged in any means ‘to satisfy the 15% manning

requirement other than to jump the minorities on the

List in preference to senior non-minorities on the List.

The “solution” invented by the Court of Appeals was

that the Union should have recruited other unlisted

unemployed minority electricians and that they should

be referred. The contention is that the latter referrals

would be non-objectionable because they ‘“‘may” have

been out of work longer and “perhaps” no union mem-

ber would be chronologically jumped over. (App. A16).

The infirmity of this “solution” is adequately pointed

out in the dissent.22 (App. A25-26) Ironically, the “solu-

tion’’ would let the present minorities on the list remain

22 Also, contrary to the Court of Appeals contentions (App. Al2-13)

the Union’s list was open to non-minorities, non-minorities knew

about the list, and the Union did not restrict its list to members.

There was no evidence or claim presented below which supported

the Court’s contentions. (App. A26, 32, 48 n. 17, 109).

where they were and both they and the listed ‘‘senior”’

non-minorities would be bypassed in favor of “new”

minorities to be referred first to City jobs. The ‘‘solu-

tion’”’ inferentially accepts as a basic premise that it was

legally improper to ‘‘jump’”’ the lower listed minorities

but not legally improper to let previously unlisted

minorities ‘‘jump over’”’ all of the members on the List

including the listed minorities. The illogic is self evident.

Neither a purpose to overcome alleged vestiges of pre-

viously identified discrimination nor any other compel-

ling state interest is served by preferring one group of

minorities over another group belonging to the same

minority.

REASONS FOR GRANTING THE WRIT

1. It is important for this Court to settle the ques-

tion of whether a City may legislatively adopt an

affirmative action plan setting goals fer region-wide

employment of minorities in regard to public and private

construction and require preferential hiring of minorities

for said City’s construction projects where there is no

particularized finding of employment discrimination by

contractors or unions affected by the plan. That ques-

tion continues to remain open after Weber and Fullilove

and its resolution is necessary for the guidance of affect-

ed members of the construction industry and its employ-

ees of all races and sexes and to inform them of what

expectations they may have with regard to employment

opportunities.

Fullilove did not rule on the scope of authority of a

subordinate governmental body of a state to rectify the

equivalent of societal employment discrimination nor did

it deal with governmentally mandated minority hiring

preferences or the implementation thereof. Our case pre-

sents issues which are next for resolution in a logical

progression from those dealt with in the prior cases. The

lower courts, herein, mistakenly relied (App. Al1-12, A37)

on Justice Powell’s comment in Bakke that in Contract-

ors Association of Eastern Pennsylvania v. Secretary of

Labor (CA 3d, 1971), 442 F.2d 159, cert. den. 404 U.S.

854, and Associated General Contractors of Massachu-

setts, Inc. v. Altschuler, (CA 1st, 1973), 490 F.2d 9,

cert. den. 416 U.S. 957, the circuit courts upheld racial

preference employment plans based on generalized find-

ings of past discrimination. In Contractors the federal

Department of Labor under the authority of Executive

Order No. 11246 as a basis for the promulgation of the

Philadelphia Plan, made findings as to six specific

trades and the plan applied only to those six trades. 442

F.2d 159, 163. The extensive nature and specificity of

those findings are detailed in 1970 Wisconsin Law Re-

view 341, at 368-373. In the Associated case the plan in

question was imposed not by a subordinate governmen-

tal subdivision of a state, but by the Commonwealth of

Massachusetts which found minority underrepresenta-

tion in 19 specific unions. 490 F.2d 9, 13. Neither of the

above two cases support judicial approval of a conclu-

sionary non-particularized finding made by a subordin-

ate governmental body such as the City of Hartford as

a justifiable basis for the City’s Ordinance or Plan.

2. The type of implementation complained of, in this

case, is that which the facts in Fullilove did not reach

but left for resolution on another day. That day has ar-

rived. It should be determined whether the ruling below

falls on the impermissible side of the line left undefined

in Weber and Fullilove. If the ruling below is left unre-

viewed, it together with Fullilove will lead to a prolifera-

tion of similar racial preference hiring plans at all levels

of government unrestrained by any realistic limit. Judge

Nickerson stated that such programs may be intended

[i.e., there is liberty to adopt such programs] to achieve

a moral equality rather than as deferred recompense for

past injustices (App. A9).23 That admission candidly

23See, Contractors Ass'n of Eastern Penn. v. Secretary of Labor, (CA

3d 1971) 442 F.2d 159 at 176 where the court stated ‘The Plan

does not impose a punishment for past misconduct. It exacts a

covenant for present performance.”

reveals the policy ground for the decision below. Unim-

pressed by the holdings of this court denouncing

governmental impediments established on the basis of

guilt by association the court below permits that con-

cept to have full sway as a device to achieve ‘moral

equality.’” A governmental entity relying on the ruling

below may now declare that society as a whole is

‘“‘guilty’’ of discrimination and, therefore, that every

employer from the most simple to the most sophisti-

cated enterprise shall be subjected to racial hiring re-

quirements no matter how ‘“‘innocent’’ he may be

because he is guilty of belonging to a society where

others may have discriminated. It is important for this

Court to rule whether or not there is any stopping place

along this extraordinary road, See, Truax v. Raich,

(1915), 239 U.S. 33.

3. The destruction of the Union’s Out of Work List

conflicts with other rulings by this Court and other cir-

cuits and conflicts with national labor policy as discus-

sed above. (supra, 19, 20). It is important for the guid-

ance of the many unions across the nation which use

such a referral system previously deemed and ruled to

be perfectly legal to know whether their similarly bar-

gained for benefits are now in unrestrained jeopardy.

4. Equally as important for resolution is the conflict

between the Court of Appeals ruling and the Pullman

abstention doctrine or the proper implementation of the

pendent jurisdiction doctrine. The opinion below enig-

matically fails to locate the source of the City’s author-

ity to adopt its Ordinance and Plan and fails to seek

any resolution of that question in the state court. This

failure to resolve a threshold issue conflicts with Bakke,

Fullilove and with Associated Gen., ETC.*4 and raises a

question of whether such a ruling is premature. It if is

premature then it is important for this court to so label

it so it will not mistakenly be accorded precendental

value.

24(CA 9th 1980) 616 F.2d 1381.

5. This petition for certiorari raises questions that

bear a close similarity to issues already pending before

this Court in No. 79-1213, Minnick v. California Depart-

ment of Corrections, petition filed February 6, 1980,

certiorari granted, July 2, 1980. In Minnick, two of the

questions that are raised concern the power of a state

agency to voluntarily establish goals, set aside positions

and grant preferences for hiring of minorities to the

detriment of other applicants and employees based on

conclusionary allegations of discriminatory impact of its

past policies and practices on minorities. Obviously,

those issues have been deemed to be sufficiently impor-

tant to merit this Court’s consideration. Also, there are

now pending before this Court petitions for cetiorari in

No. 79-1080 Detroit Police Officers Ass'n v. Young (pet.

cert. filed 1/10/80); No. 79-1061 Maehren v. City of Seat-

tle (pet. cert. filed 1/5/80); and No. 79-1996 District At-

torney for County of Sacramento v. Sacramento Civil

Service Commission (pet. cert. filed 6/18/80); which have

not been acted upon and in which issues similar to those

presented in this case have been raised.

CONCLUSION

For these reasons, a writ of certiorari should issue

to review the judgment and opinion of the Second Cir-

cuit.

Respectfully submitted,

/s/ William S. Zeman

William S. Zeman

and

/s/ Joel M. Ellis

Joel M. Ellis

both of

18 North Main Street

West Hartford, Connecticut 06107

Tel: (203) 521-4430

Counsel for Petitioner

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