# Appendix — NAACP, Detroit Branch v. Detroit Police Officers Ass'n > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_1503%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1991 - **Citation:** 499 U.S. 913 ## Text No. IN THE Supreme Court of the United States OCTOBER TERM, 1990 N.A.A.C.P., DETROIT BRANCH; THE GUARDIANS, INC. BRADY BRUENTON; CYNTHIA MARTIN; HILTON NAPOLEON; SHARRON RANDOLPH; BETTY T. ROLLAND; GRANT BATTLE; CYNTHIA CHEATOM; EVIN FosBBs; JOHN H. HAWKINS; HELEN POELNITZ, ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED, Petitioners, vs. DETROIT POLICE OFFICERS ASSOCIATION (DPOA); DAVID WATROBA, PRESIDENT; CiTY OF DETROIT; COLEMAN A. YOUNG, MAYOR; DETROIT POLICE DEPT.; BOARD OF POLICE COMMISSIONERS; WILLIAM HART, CHIEF, Respondents. PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SiXTH CIRCUIT APPENDIX TO PETITION FOR WRIT OF CERTIORARI GARY BENJAMIN Schrauger & Dunn, P.C. THOMAS I. ATKINS 135 Eastern Parkway, #11-B-1 Brooklyn, N.Y. 11238 (718) 638-4153 Counsel of Record JEANNE MIRER BARNHART & MIRER 3310 Cadillac Tower Detroit, MI 48226 (313) 961-6420 Attorneys for Petitioners January 9, 1991 5 Third Street Mt. Clemens, MI 48043 (313) 964-2770 JAMES W. MCGINNIS MCGINNIS & RASHED 561 E. Jefferson Detroit, MI 48226 (313) 962-2240 A-23 A-79 A-126 A-128 A-138 A-158 A-165 A-176 A-200 Date 11/17/81 1/25/82 11/28/83 12/1/83 2/24/84 7/25/84 10/21/85 6/8/87 6/12/87 1/13/88 6/15/88 10/11/88 4/9/90 9/27/90 i INDEX TO APPENDIX Item District Court Opinion Granting Partial Summary Judgment to Plaintiffs NAACP v. DPOA, 525 F. Supp. 1215 (E.D. Mich. 1981) District Court Order on Collateral Estoppel NAACP v. DPOA, (Slip Opinion) District Court Opinion Granting TRO to Plaintiffs wile Recall a of Black Officers NAACP v. DPOA, (Slip Opinion) Stipulation, Order Amending 11/28/83 TRO to Include Recall Rights of All Officers NAACP v. DPOA, (Slip Opinion) District Court Opinion Granting Partial Summary Judgment to Plaintiffs on Issue of Continuing Affirmative Remedial Duty NAACP v. DPOA, (Slip Opinion) District Court Liability, Remedy Opinion NAACP v. DPOA, 591 F. Supp. 1194 (E.D. Mich. 1984) District Court Opinion Awarding Fees, Costs NAACP v. DPOA, 620 F. Supp. 1173 (E.D. Mich. 1985) 6th Circuit Opinion Reversing Award of Fees, Costs NAACP v. DPOA, 819 F.2d 1142 (6th Cir. 1987) 6th Circuit Opinion Reversing Liability, Remedial Orders of District Court NAACP v. DPOA, 821 F.2d 328 (6th Cir. 1987) District Court Opinion peer ge City Motion for oe of Judgment and Denying DPOA Motion for Summary Judgment NAACP v. DPOA, 676 F. Supp. 790 (E.D. Mich. 1988) District Court Opinion Dismissing Case as Moot NAACP v. DPOA, 685 F. Supp. 1004 (E.D. Mich. 1988) District Court Remand Fee Opinion NAACP v. DPOA, 696 F. Supp. 1145 (E.D. Mich. 1988) 6th Circ. Opinion Reversing Mootness, Ordering Dismissal on Other Grounds NAACP v. DPOA, 900 F.2d 903 (6th Cir. 1990), and Order Denying Rehearing 6th Circuit Opinion Reversing Fee Award NAACP v. DPOA, 914 F.2d 1494 (6th Cir. 1990) ’ A-! Opinion NA.A.C.P., DETROIT BRANCH, et al. V. DETROIT POLICE OFFICERS ASSOCIATION, (D.P.O.A.), et al.; CITY OF DETROIT: MAYOR COLEMAN A. YOUNG; et al. 525 F. Supp. 1215 (E.D. Mich. 1981) COUNSEL Jeanne Mirer, 3550 Cadillac Tower, Detroit, MI 48226, On Behalf of plaintiffs. Duane Elston, 1311 East Jefferson Ave., Detroit, MI 48226, On Behalf of plaintiffs. Thomas Atkins, 1790 Broadway, New York, N.Y. 10019, On Behalf of plaintiffs. Walter S. Nussbaum, Ingrid M. Farquharson, Suite 307, 26600 Telegraph Road, Southfield, MI 48034, On Behalf of defendants D.P.O.A. and Watroba. Michael Lockman, 1840 State of Michigan, Plaza Building, 1200 Sixth Street, Detroit, MI 48226, On Behalf of defendants, Governor William G. Milliken and MERC. James Zeman, 1010 City-County Building, Detroit, MI 48226, On Behalf of defendant City of Detroit. OPINION The controversy in this case can be briefly summarized. In October 1979 and September 1980, the City of Detroit laid off approximately 1100 police officers pursuant to the terms of the last hired/first fired seniority provision contained in Article 10, ¢ E of the 1977-1980 Collective Bargaining Agreement between A-2 Opinion r the City and the Detroit Police Officers Association (“‘DPOA’’). Of the 1100 officers laid off, approximately 800 were black. On September 30, 1980, several individual laid-off black police officers and two organizations, the Guardians, a voluntary organization of black police officers, and the NAACP, whose membership includes laid-off black officers, brought this action challenging the layoffs under the 13th and 14th Amendments to the United States Constitution, 42 U.S.C. 1981, 1983, 1985(3), Title VI of the Civil Rights Act of 1964, and Michigan law. Plaintiffs’ claim rests on the findings in Baker v. City of Detroit, 483 F. Supp. 930 (E.D. Mich. 1979)' in which Judge Keith upheld the City of Detroit’s voluntary affirmative action plan as necessary to offset the effects of past discrimination in the Detroit Police Department. Plaintiffs argue that the finding of a constitutional violation in Baker imposed an affirmative obliga- tion on the City of Detroit to dismantle and eliminate all effects of these discriminatory policies. They contend that the seniority- based layoffs are constitutionally and statutorily impermissible because they have a discriminatory impact on blacks and operate to revive and reinstitute the effects of Detroit's past illegal hiring practices. The individual plaintiffs also claim that their union, defendant DPOA, breached its duty of fair representation with regard to the layoffs. The case is currently before the Court on two motions. Defendants DPOA and David Watroba, President of the DPOA, have filed a motion for summary judgment arguing that plaintiffs have failed to state a legally sufficient claim, and that defendants are entitled to judgment as a matter of law under all counts of the complaint. In addition, defendant DPOA challenges the standing of the two organizational plaintiffs, NAACP and the Guardians. Finally, the DPOA requests that, if summary judg- ment is granted in their favor, the Court bifurcate the case into ' Baker is presently on appeal but has not yet been decided by the United States Court of Appeals for the Sixth Circuit. A-3 Opinion liability and remedy stages, and they be permitted to intervene at the remedy stage. Plaintiffs have moved for partial summary judgment. They argue that the doctrine of collateral estoppel precludes relitiga- tion of the issue of the City’s past intentional discrimination as found in Baker v. City of Detroit, supra. Further, plaintiffs contend that, in light of Baker, the City was under a continuing duty to remedy the effects of prior unconstitutional hiring policies. I. DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT A. Standing The first issue raised by defendants DPOA and Watroba in their motion for summary judgment is whether the two organiza- tional plaintiffs—the NAACP and the Guardians—have stand- ing to sue. The defendants contend that the Court’s certification of a class of black police officers precludes the participation of the associations as representatives of their members because the claims asserted and the relief requested make the involvement of the individual officers indispensable to a proper resolution of the case. There is no question that an association may obtain standing to sue in different capacities. It has standing on its own behalf to seek relief from injury to itself, and it also may have standing solely as the representative of its members, even in the absence of injury to itself. Warth v. Seldin, 422 U.S. 490 (1975); Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333 (1977). In order to obtain standing as a representative of its mem- bers, an association must meet certain prerequisites. In Warth, the Suprerne Court held: The association must allege that its members, or any one of them, are suffering immediate or threatened injury as a result of A-4 Opinion the challenged action of the sort that would make out a justicia- ble case had the members themselves brought suit.... So long as this can be established, and so long as the nature of the claim and of the relief sought does not make the individual participa- tion of each injured party indispensable to proper resolution of the cause, the association may be an appropriate representative of its members... .” 422 U.S. at 511. Defendants argue that the organizational plaintiffs’ effort to acquire standing in their representative capacity must fail because the relief sought includes reinstatement and back pay. Since this relief would only benefit the individual class members, defendants assert that the organizational plaintiffs have failed to meet the requirements of Warth. The Court does not agree. First, the defendants have mis- takenly interpreted the Guardians’ posture as that of a represen- tative of its members. The Guardians is a voluntary association of biack police officers. It has alleged that it has suffered diminished financial support and loss of membership as a result of the challenged layoffs. These losses clearly affect its ability to function as an effective organization within the police depart- ment. In short, Guardians has alleged a distinct injury to itself. These allegations of injury to itself, as an association, are suffi- cient to establish standing. See Warth, supra. Thus, the Court need not inquire into whether the association has met the requirements for representational standing. Clearly the Guardi- ans has established sufficient standing. The second organizational plaintiff, NAACP, seeks standing as a representative of its members. Thus, it may obtain standing only if “neither the claim asserted, nor the relief requested, requires the participation of individual members in the lawsuit.” Hunt, supra, at 343. In determining whether an action requires the participation of individual members, the Supreme Court has been primarily concerned with the problems of individualized proof. In Hunt, supra, the Court upheld the association's right to sue on behalf of its members after finding that “neither the A-5 Opinion interstate commerce claim nor the request for declaratory and injunctive relief requires individualized proof and both are thus properly resolved in a group context.” 432 U.S. at 344. The instant case is primarily one for injunctive relief which will not require individualized proof. Plaintiffs’ prayer for relief states, in pertinent part: “2. That this Court enjoin the operation of the senior- ity provisions of the Collective Bargaining Agreement between the City and the DPOA to the extent that the agreement would prevent the City from meeting its affirma- tive obligation to correct its constitutional violations; 3. That this Court enjoin the DPOA from obstructing the City in its remediation efforts; 4. That this Court order defendants City and Police Department to reinstate all minority officers who were illegally laid off as a result of the strict adherence to the seniority system; 5. That the defendants pay the reinstated officers their back pay with interest.” The central issue is whether this Court has the power to alter the effects of an allegedly racially neutral seniority system and compel the layoff of employees in a manner that does not jeopardize the racial balance achieved through a voluntary affirmative action program.’ The issue of back pay, should it arise, simply requires a mechanical, mathematical computation. Such computations may be performed after liability is estab- lished. Cf. Senter v. General Motors Corp., 532 F.2d 511 (6th Cir. 1976). Since the plaintiffs have requested predominately injunctive relief, and since the basic liability issues can be appropriately resolved in a group context, the participation of the individual * It should be noted that the final order entered by Judge Keith requires the defendant City of Detroit to continue its affirmative action program within the Police Department. A-6 Opinion members of the NAACP is not indispensable to a proper resolu- tion of this case. Thus, the NAACP has standing to assert the claims of its members. Therefore, for the reasons given above, the defendants’ motion for summary judgment as to the standing of the NAACP and the Guardians is denied. B. Plaintiffs’ Duty of Fair Representation Claim Plaintiffs’ principal claim against defendant DPOA is that the Union breached its duty of fair representation under State law by discriminating against its black members. Plaintiffs argue that the DPOA discriminated against its black members by insisting on enforcing, and refusing to consider alternatives to enforcing, the seniority-based layoff system, knowing that this would perpetuate the effects of past hiring discrimination.’ Defendant DPOA has moved for summary judgment, arguing that it cannot be liable because it did not act in an arbitrary manner, and that the layoffs in the instant case took place pursuant to a properly negotiated color-blind collective bargain- ing agreement. It is clear that the DPOA, as the exclusive bargaining agent for the police, has a duty of fair representation under Michigan law. See Lowe v. Hotel Employees’ Union, Local 705, 389 Mich. 123 (1973); Steele v. Louisville & Nashville R.R. Co., 323 US. 192 (1944). This case raises novel questions concerning that duty. The duty of fair representation is breached when a union’s conduct towards a member of the collective bargaining unit is arbitrary, discriminatory, or in bad faith. Vaca v. Sipes, 386 U.S. 171 (1967). Thus the duty of fair representation insures that the interests of individual members and specific groups See discussion infra where the City of Detroit has admitted past hiring discrimination against blacks in the Police Department. A-7 Opinion within the union are protected. See Steele v. Louisville and Nashville R.R. Co., supra. Plaintiffs assert that this duty requires the Union to affirma- tively protect (or at least to attempt to protect) their minority members from disproportionate layoffs through a “last hired-first fired” seniority system, even if the system is considered bona fide under Title VII of the Civil Rights Act of 1964. 42 U.S.C. 2000e. They claim that the DPOQA’s history and conduct with respect to these layoffs amounts to discrimination along “irrelevant and invidious” lines in violation of the duty of fair representation as defined in Steele, supra. Plaintiffs contend that the DPOA’s refusal to make concessions to avert layoffs, coupled with the DPOA’s consistent opposition to affirmative action establishes a prima facie case cf racial discrimination against blacks. See Brown v. Neeb, 644 F.2d 551, 564 n. 25 (6th Cir. 1981). Plaintiffs point to several exhibits which they believe evi- dence the DPOA’s discriminatory intent in violation of the duty of fair representation. They point, for example, to exhibit 2 of plaintiffs’ complaint, which is a letter dated September 2, 1980, from the Guardians to Defendant Watroba. In this letter, the Guardians urged the DPOA to accept Mayor Young’s offer to discuss other options in order to avoid the layoffs. Plaintiffs assert that the DPOA never responded to this letter and in fact had no intention of bargaining in good faith to avert the layoffs. They suggest that the DPOA was motivated to accept the layoffs in order to reduce black voting strength within the union. Plaintiffs also contend that the DPOA’s behavior regarding subsequent layoffs is evidence of the union’s intent to discrimi- nate in violation of the duty of fair representation. Specifically, in June 1981, when faced with proposed layoffs that were not as disproportionately black as the 1979-1980 layoffs, the DPOA agreed to a wage freeze in order to avert the layoffs, and arranged for an advisory vote in the union on the acceptability of this concession. ee A-8 Opinion Defendant DPOA raises two basic arguments. It claims, first, that its conduct in agree ng to and maintaining a bona fide seniority system does not violate Title VII but, indeed, is man- dated by Title VII. Thus DPOA says its conduct regarding layoffs cannot violate the duty of fair representation. Second, DPOA maintains that, if it accepted plaintiffs’ proposal, it would be sacrificing contract rights of the majority of its members in favor of a minority in the membership, thus violating its duty of fair representation to the majority members. Defendant maintains that plaintiffs have alleged no facts which, if true, would show that defendants intentionally discrimi- nated against its black members in violation of the duty of fair representation. Defendant argues that the union may agree to terms of a contract which affects individuals differently so long as the union treats the members in a nondiscriminatory, nonarbi- trary fashion. The DPOA insists that it has always acted in good faith. Although the defendant contends that there are no facts indicating that it acted in an arbitrary or discriminatory manner, the Court feels that plaintiffs have produced several exhibits which raise questions of fact concerning the union’s behavior. It appears to the Court that the issue in the instant case is one of first impression, and that plaintiffs have raised sufficient factual claims and issues to preclude the granting of summary judgment at this time. The Court is not currently deciding whether § 703(h) of Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000e-2(h), which insulates bona fide seniority provi- sions from attack under Title VII, has any impact on the union’s duty of fair representation. Such a decision could not properly be made until the development of a full factual record. Defendant's motion for summary judgment on plaintiffs’ claim of a breach of the duty of fair representation is therefore denied without prejudice pending the development of a complete factual record. A-9 Opinion C. Plaintiffs’ claim under the 13th and 14th Amendments to the U.S. Constitution, 42 U.S.C. §§ 1981, 1983, 1985/3) and Title VI of the Civil Rights Act of 1964. Defendants have moved for summary judgment on the ground that plaintiffs have failed to state legally sufficient claims under the 13th and 14th Amendments, 42 U.S.C. 1981, 1983, 1985(3) and Title VI of the Civil Rights Act of 1964. It is clear that a legal summary judgment is not proper at this time. Judgment on the issues raised in this motion must be deferred until a more complete factual record is developed. II. PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT Plaintiffs’ motion for partial summary judgment requests that the Court grant the following declaratory relief: “That in the light of Baker v. City of Detroit, 483 F. Supp., 930 (E.D. Mich. 1979), the City of Detroit has violated the Constitutional rights of blacks and therefore has an affirmative obligation to completely dismantle all aspects of the Detroit Police Department’s intentionally discrimina- tory hiring policies, and eliminate all the effects of those policies.” (Plaintiffs’ brief, p. 1). Plaintiffs maintain that the doctrines of collateral estoppel and stare decisis preclude relitigation of the issue of the City’s past intentional discrimination as found in Baker, supra. Defendant City of Detroit does not oppose plaintiffs’ motion. In fact, the City openly admits the history of past discrimination found in Baker. Defendants DPOA and Watroba oppose plain- tiffs’ motion on several grounds. They argue they cannot be collaterally estopped by Baker because they were not parties to the litigation in Baker. They also claim that Baker cannot operate as collateral estoppei because the case is currently on appeal, and they contend that the findings in Baker were findings of “mediate” fact which cannot be the subject of collateral estoppel. Finally, defendants maintain that Baker had several | A-10 Opinion alternative holdings and therefore cannot be given estoppel effect. The threshold issue is whether collateral estoppel can be used at all since defendants DPOA and Watrcoba, as well as defendants Milliken and the Michigan Employment Relations Commission were not parties to the Baker litigation. The defendants argue that due process prohibits the use of collateral estoppel against those who were not parties to the prior action, and rely upon Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313 (1971), where the Court stated: “Some litigants—those who never appeared in a prior action—may not be collaterally estopped without litigating the issue. They have never had a chance to present their evidence and arguments on the claim. Due process prohibits estopping them despite one or more existing adjudications of the identical issue which stands squarely against their posi- tion.” 402 U.S. at 329. On the other hand, plaintiffs have cited several cases in support of the proposition that collateral estoppel can be applied without abridging the due process rights of the DPOA and other defendants who were not parties in Baker. For example, in Bradley v. Milliken, 484 F.2d 215 (6th Cir. 1973), rev'd on other grounds, Milliken v. Bradley, 418 U.S. 717 (1974), the District Court found that the City of Detroit had a de jure segregated public school system and ordered cross-district bussing involving 53 other school districts. On review, the Sixth Circuit ruled that the nonparty school districts had a right to be heard. However, the Court stated: “‘[T]he District Court will not be required to receive any additional evidence as to the matters contained in its Ruling on the Issue of Segregation...” 484 F.2d at 252.‘ ‘Defendant DPOA argues that Bradley is distinguishable because the Court noted that the school districts were instrumentalities of the State, which was a party in the original case. However, the Court's statement that the local districts were instrumentalities of the state referred to the districts’ ability to be sued as parties defendant. TT A-11 Opinion Accord, United States v. Board of School Commissioners, 503 F.2d 68 (7th Cir. 1974). Thus, in effect, the new parties were estopped from relitigating the issue of de jure segregation with regard to the Detroit School System. The new defendants could only present evidence on the issue of their own culpability. DPOA’s position with respect to the relief requested by plaintiffs is analogous to the situation found in the above cited school desegregation cases. The Baker court found that the City of Detroit was guilty of intentional discrimination in violation of the 14th Amendment through at least 1967-68, and of discrimi- nation in violation of Title VII until 1974. Plaintiffs’ motion asks this Court to accept these findings for the purpose of the present action. The City of Detroit concedes that it discriminated as found in Baker. The issue raised in the present case is whether, and to what extent, the City had a duty to remedy the effects of th «2 discriminatory processes. A finding that Baker acts as collateral estoppel is relevant only to the City’s liability. It says nothing about whether DPOA is guilty of violating plaintiff's rights. To hold that Baker estops this Court from relitigating the question of the City’s past dis- Criminatory practices does not deprive the DPOA of its due process rights. Plaintiffs’ complaint against the DPOA argues that the DPOA had a duty to remedy the past discrimination practiced by the City. In order to establish the DPOA’s liability, plaintiffs will have to produce evidence regarding the DPOA’s knowledge, behavior, and participation in the challenged layoffs. Thus, use of collateral estoppel is appropriate here, assuming the requirements for the application of the doctrine are met, because the parties will only be estopped from relitigating the finding of past discrimination by the City of Detroit, —a fact which has been admitted. Under the doctrine of collateral estoppel, “the judgment in the prior suit precludes relitigation of issues actually litigated and necessary to the outcome of the first action.” Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326 n. 5 (1979). The Baker A-12 . Opinion decision must be examined to determine whether it actually and necessarily held, as plaintiffs claim, that the City was guilty of race discrimination in violation of Title VII and the 14th Amendment. In Baker, several white police officers brought suit challeng- ing the City’s affirmative action promotion plan under Titles VI & VII of the Civil Rights Act of 1964, and 42 U.S.C. §§ 1981 and 1983. The Court held that the City was in violation of Title VII from 1972 to 1974 because it used discriminatory tests in granting promotions. In order to determine whether the race- conscious affirmative action plan was constitutional, the Court subjected the plan to strict scrutiny under the 14th Amendment and held that the City was guilty of intentional discrimination from 1967 to 1968 in its use of hiring tests and the use of subjective criteria in hiring. The Court also found that statistical evidence proved the existence of race discrimination. It upheld the race-conscious promotion plan on the basis that the City had a duty to remedy the effects of its past discrimination. Thus, the finding of past discrimination in hiring, which is relevant to the present case, was an actual and necessary holding in Baker. Defendant DPOA argues Baker cannot operate as collateral estoppel because the case had several alternative holdings. How- ever, the alternative holdings in Baker are independently suffi- cient to support the judgment. Thus, collateral estoppel may be used in a subsequent action. See Winters v. Lavine, 574 F.2d 46 (2d Cir. 1978). Defendant DPOA also contends that Baker cannot estop this Court because it is on appeal and therefore is not a final judgment. However, a judgment is final for purposes of res judicata and collateral estoppel if it makes a “currently effective disposition of the issues raised.” Overseas Motors, Inc. v. Import Motors Limited, Inc., 375 F.Supp. 499, 517 (E.D. Mich. 1974). Thus, the pending appeal in Baker has no effect on the applica- tion of collateral estoppel in the instant case. a A-13 _ Opinion Finally, DPOA argues that the relevant findings in Baker were findings of “mediate” fact which cannot operate as collat- eral estoppel, citing Overseas Motors, Inc. v. Import Motors Limited, Inc., 375 F.Supp. 499 (E.D. Mich. 1974) in support of its argument. Defendants’ reliance on this case is misplaced. The Court in Overseas Motors expressly noted that the use of the “mediate fact—ultimate fact” distinction had “‘little support in policy or logic.” Jd. at 523. The reason behind such a restriction on collateral estoppel is to prevent the use of prior determinations to support unforeseeable inferences in the subsequent litigation. Clearly, the problem of unforeseeable inferences discussed in Oversees Motors has no bearing on the instant case. For the reasons given above, the doctrine of collateral estop- pel precludes relitigation of the issue of the City’s past inten- tional discrimination as found in Baker. However, the Court, at this stage of the proceedings, will not make the ultimate finding requested by plaintiffs as to whether the City has “tan affirmative obligation to completely ‘dismantle all aspects of the Detroit Police Department’s intentionally discriminatory hiring policies, and eliminate all the effects of these policies.” The finding of collateral estoppel on the issue of past racial discrimination by the City does not require the Court to go that far. The determi- nation of whether such a finding will be made on that issue must await the development of a full factual record. Thus, plaintiffs’ motion for partial summary judgment is granted in part. Orders in conformity with this opinion may be presented. A-14 Opinion Civil Action No. 80-73693 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION N.A.A.C.P., DETROIT ) BRANCH, ET AL.. Plaintiffs ) v. ‘ JUDGE DETROIT POLICE ) HORACE W. GILMORE OFFICERS ASSOCIATION ) (DPOA), ET AL., ) Defendants ‘ ORDER GRANTING PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT At a session of said Court held in the Federal Building in the City of Detroit, Michigan on the 25th day of January, 1982. PRESENT: ...........-. Horace W.GILMORE U.S. District Judge Plaintiffs’ Motion for Partial Summary Judgment having on for hearing, and this Court having considered this Motion, Briefs, and the arguments presented, and being fully advised in the premises; IT IS HEREBY ORDERED that consistent with this Court’s Opinion dated November 17, 1981, the Plaintiffs’ Motion for Partial Summary Judgment is granted to the extent the doctrine of collateral estoppel precludes a relitigation of the issue of the City of Detroit’s past intentional discrimination as found in Baker v. City of Detroit, 483 F Supp 930 (ED Mich 1979). A-15 Opinion HORACE W. GILMORE e264 8764 © © 6 «8 88 8 ‘eo A Se ae eS ee ee ee ee ee ee ee ee U.S. District Judge Approved as to form: JEANNE MIRER Jeanne Mirer (P 25853) DAUNE ELSTON ee ee ee ae re ee ee a ee ee ee er ee Daune Elston (P 28682) THOMAS ATKINS ene ee es es se Fee Fe 6 8 6 ® Thomas Atkins Attorneys for Plaintiffs. WALTER NUSSBALM ae ene fae es ce ee Te ee ee ee ee Walter Nussbaum (P 18367) Attorney for DPOA and David Watroba Jim ZEMAN ak 6h SS 6 Ge 6S se ee Oe eee Ce eS Jim Zeman Attorney for City Defendants MICHAEL LOCKMAN Michael Lockman Attorney for State Defendants. A-16 Opinion No. 80-73693 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION N.A.A.C.P., ET AL., ) Plaintiffs ) HON. HORACE GILMORE v ) D.P.O.A., ET AL., ) Defendants ) ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTIONS FOR TEMPORARY AND PRELIMINARY RELIEF At a session of said Court held in the U.S. Courthouse, City of Detroit, County of Wayne, Michigan on this 28th day of November, 1983 PRESENT: HON. HORACE W. GILMORE e688 © 644.0 8 OWE DADS A AS SO C.2 2 TOE Oa ea oe a eek ee ee 7 8 U.S. District Court Judge This matter having come on for hearing on Plaintiffs’ Motions for Temporary Restraining Orders Regarding Lay offs and Regarding Recall Rights, and this Court having considered the briefs and arguments of counsel, IT IS HEREBY ORDERED that Plaintiffs’ Motion for Temporary Restraining Order Regarding Lay offs is denied for the reasons stated by the Court at the hearing on September 7, 1983; and IT IS FURTHER ORDERED that Plaintiffs’ Motion for Temporary Restraining Order Concerning Recall Rights is granted for the reasons stated by the Court at the hearing on A-17 Opinion September 7, 1983, and that pending the outcome of this litiga- tion the Defendant City is enjoined from allowing the recall rights of any class member to lapse. HORACE W. GIMORE SCS COERASGSESCBASAASBSERSEATARBRSESESAEAST ABR eRe agaen4aeeteeaee @ HONORABLE HORACE GILMORE U.S. District Court Judge Dated: November 28, 1983 Approved as to Form: FRANK JACKSON SC SER BDESECHR EBSD TEAC EC OR COB eB Ra Frank Jackson City of Detroit Law Department 1010 City County Bldg. Detroit, Michigan 48226 WALTER NUSSBAUM Walter Nussbaum 333 West Fort Street Suite 2000 Detroit, Michigan 48226 JEANNE MIRER Jeanne Mirer 2900 Cadillac Tower Detroit, Michigan 48226 A-18 Opinion No. 80-73693 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION N.A.A.C.P., ET AL., ) Plaintiffs ) V HON. HORACE GILMORE ) D.P.O.A., ET AL., ) Defendants ) STIPULATION AND ORDER AMENDING THE NOVEMBER 28, 1983 ORDER It is hereby stipulated between the parties that the Order Granting in Part and Denying in Part Plaintiffs’ Motions for Temporary and Preliminary Relief approved as to form by all parties and entered by this Court on November 28, 1983 was incorrect inasmuch as it limited the injunction against the Defen- dant City with regard to the lapsing of recall rights to only class members. The Court had enjoined the Defendant City on Sep- tember 7, 1983 from allowing the recall rights of any laid off officer to lapse. It is therefore stipulated by the parties that an order reflect- ing this change should be entered. JEANNE MIRER i... FRANK JACKSON Jeanne Mirer _ Frank Jackson Attorney for Plaintiffs Attorney for Defendant City of Detroit WALTER NUSSBAUM Walter Nussbaum Attorney for Defendant DPOA A-19 Opinion No. 80-73693 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION N.A.A.C.P., ET AL. ' Plaintiffs ) ’ HON. HORACE GILMORE ) D.P.O.A., ET AL., ) Defendants ) AMENDED ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTIONS FOR TEMPORARY AND PRELIMINARY RELIEF At a session of said Court held in the U.S. Courthouse, City of Detroit, County of Wayne, Michigan on this Ist day of December, 1983 PRESENT: HON. HORACE W’. GILMORE Se eeu esc oe eee ea eee aeaetesraeseecesteega eae wv enaeae@e et 0 ee € @ U.S. District Court Judge This matter having come on for hearing on Plaintiffs’ Motions for Temporary Restraining Orders Regarding Lay offs and Regarding Recall Rights, and this Court having considered the briefs and arguments of counsel, IT IS HEREBY ORDERED that Plaintiffs’ Motion for Temporary Restraining Order Regarding Lay offs is denied for the reasons stated by the Court at the hearing on September 7, 1983; and IT IS FURTHER ORDERED that Plaintiffs’ Motion for Temporary Restraining Order Concerning Recall Rights is granted for the reasons stated by the Court at the hearing on A-20 Opinion September 7, 1983, and that pending the outcome of this litiga- tion the Defendant City is enjoined from allowing the recall rights of any laid off police officers to lapse. Horace W. GILMORE SH CE OH AO O2Ee SC ASCE Cease ere egese eee edge e 680 @ HONORABLE HORACE GILMORE U.S. District Court Judge Dated: December 1, 1983 ! A-21 Opinion Case No. 80-73693 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION N.A.A.C.P., ET AL., ) Plaintiffs ) HON. HORACE GILMORE v. D.P.O.A., ET AL., ) Defendants ) ~~ ee ORDER GRANTING PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT At a session of said Court, held in the United States District Court for the Eastern District of Michigan, Southern Division, U.S. Courthouse, Detroit, MI on PRESENT: HONORABLE HORACE GILMORE District Court Judge This matter having come on for argument on Plaintiffs’ Motion for Partial Summary Judgment, and this Court having considered the Motion, briefs, and arguments of counsel, IT IS HEREBY ORDERED that Plaintiffs’ Motion is granted and the Court makes the following declarations: 1. That based upon the findings of intentional discrimina- tion in Baker the City had a constitutionally-imposed continuing affirmation obligation not only to stop the discrimination, but to remedy all the affects of that discrimination. 2. That the City had not yet remedied the effects of this prior discrimination when in 1979 and 1980 it reduced black representation of the police force. _ eee ——————— A-22 Opinion 3. That by these layoffs, which the City knew full well would reduce the black representation in the police force, the City breached its affirmative obligation to the Plaintiffs, in viola- tion of their rights under the Fourteenth Amendment. Horace Gilmore U.S. District Judge A-23 Opinion N.A.A.C.P., Detroit Branch; The Guardians, Inc.; Brady Bruenton; Cynthia Martin; Hilton Napoleon; Sharron Randolph; Betty T. Roland; Grant Battle; Cynthia Cheatom; Evin Fobbs; John Hawkins; Helen Poelinitz; on behalf of themselves and all others similarly situated, Plaintiffs, > DETROIT POLICE OFFICERS ASSOCIATION (DPOA); David Watroba, President of the DPOA; City of Detroit, a Michigan Municipal Corporation; Mayor Coleman A. Young; Detroit Police Department; Board of Police Commission- ers; Chief William Hart; Governor William Milliken; and The Michigan Employment Relations Commission, Defendants. Civ. A. No. 80-73693. United States District Court, E.D. Michigan, S.D. July 25, 1984. Black police officers of city of Detroit brought action against city, its mayor, its police department, police commissioner, police chief, and police officers association alleging city had violated affirmative duties imposed by prior findings of constitutional violations and that union had breached its duty of fair represen- tation. The District Court, Gilmore, J., held that: (1) city breached its affirmative and constitutionally mandated duty to remedy past potential racial discrimination when it began its massive layoffs of black officers; (2) breach by city was knowing and intentional; and (3) union breached its duty of fair representation. Order accordingly. 1. Civil Rights—9.10 Constitutional obligation of city to eliminate continuing effects of past racial discrimination continued to exist at time of massive layoffs of black police officers, where percentage of A-24 Opinion blacks in ranks of police officers was 28.3%, in all ranks was 27.9%, and relevant labor market in city was over 65% black. 2. Civil Rights—9.10 City’s breach of its affirmative constitutionaily mandated duty to remedy past intentional racial discrimination in police department was willful, where city knew that it was under legal mandate to continue its affirmative obligation to black officers and knew that proposed massive layoff would have drastic effect upon its obligation. 3. Civil Rights— 13.8(3) Good faith is not a defense by municipality to a constitu- tional violation. 4. Civil Rights— 13.10 Neither bona fide seniority clauses nor contractual obliga- tions are a defense to Fourteenth Amendment violation in employment situation. U.S.C.A. Const. Amend. 14. 5. Civil Rights— 13.16 State law cannot stand in way of full and complete remedies for constitutional violations. 6. Contracts—114 Parties cannot by contract limit their liability for preexisting constitutional violations. 7. Civil Rights—9.10 Where past intentional discrimination by city in hiring of black police officers had been found, city was liable every time it knowingly and foreseeably breached its affirmative obligations to remedy discrimination. A-25 Opinion 8. Civil Rights—9.10 Labor Relations—219 City does not fulfill its obligation under Fourteenth Amend- ment, nor does union fulfill its obligations to fairly represent its members, by simply giving difficult problem of redressing racial injustice in society to federal courts. 9. Civil Rights—9.10 In addition to usual losses sustained with loss of employ- ment, class of black police officers suffered injury of betrayal as direct result of city’s past racial discrimination and its failure at time of massive layoffs of black police officers to continue to remedy discrimination, where black police officers’ standing in community was put in jeopardy by their joining police force, and officers had to face inference that city was playing games with them and was not serious about its efforts to remedy past discrimination. 10. Civil Rights—9.10 Layoffs of approximately 1,100 police officers below rank of sergeant, of which approximately 75% were black, violated not only black officers’ constitutional rights, but constitutional rights of black citizens of city. Race-conscious remedies are permitted to redress constitu- tional violations. 12. Civil Rights—13.16 Classwide relief to remedy past constitutional violations is permissible without individual members of class having to prove that they were actual victims of past discrimination. A-26 Opinion 13. Civil Rights— 13.16 Race-conscious remedial relief must be both necessary and tailored to cure constitutional violations. 14. Civil Rights— 13.16 Appropriate remedy for discriminatory layoff of black police officers by city was reinstatement of all black officers who remained on layoff status and who wished to return, with call back subject to normal procedures of police department pertain- ing to returning laid-off police officers, with all returned officers to be awarded seniority he or she would have had, if there had been no layoffs. 15. Civil Rights—13.2(1) In addition to requiring call back of all black police officers laid off by city in massive reduction of police force, court also permanently enjoined city from laying off, suspending, or dis- charging, except for disciplinary reasons, any black or white police officer without prior approval of court. 16. Labor Relations—219 As exclusive bargaining representative for its members, police union had duty of fair representation under Michigan law. 17. Courts—97(1) Under Michigan law, court must look to federal law for guidance in deciding whether union breached its duty of fair representation. 18. Labor Relations—219 Duty of fair representation by union is judicially created remedy. A-27 Opinion 19. Labor Relations—218 By allowing unions to be exclusive representatives of their members, and thus subsuming rights of minorities in collective bargaining, unions have not been granted licenses to practice racial discrimination in violation of either Fourteenth Amend- ment or equal protection clause of Michigan Constitution. U.S.C.A. Const.Amend. 14; M.C.L.A. Const.Art. 1, § 2. 20. Labor Relations—219 Exclusivity principle of National Labor Relations Act and Michigan labor relations statute is constitutional only if there is duty of fair representation, and that means representation of all members of union; this duty of fair representation is fundamental limitation upon union activity. M.C.L.A. § 423.211; National Labor Relations Act, § 1 et seq., as amended, 29 U.S.C.A. § 151 et seq. 21. Labor Relations—219 Union’s obligation under duty of fair representation is anal- ogous to that of fiduciary to principal. 22. Labor Relations—218 Union has higher standard to its members than standard owed by employer to employee. 23. Labor Relations—219 Labor union has no per se obligation to make concessions or give up demands won at bargaining table and in court in order to fairly represent minority members. 24. Labor Relations—219 Police officers union was guilty of breach of its duty of fair representation through its failure to adequately represent inter- ests of black members in layoffs from department, where history of racial hostility and indifference to rights and needs of black A-28 Opinion officers existed, blacks were totally unrepresented in leadership levels of union, one-quarter of union membership, one-half of black membership, and loss of approximately $500,000 a year in dues resulted from layoffs, union failed to make any serious efforts to assist black officers, and union had in past acted to avert layoffs of white officers. 25. Labor Relations—769 Where union had breached its duty of fair representation in regard to minority members, and no union governing committee had any black or minority members, appropriate relief consisted of requiring that within 12 months all committees of union, especially grievance and finance committees, board of directors and executive boards, reasonably reflect racial composition of union. Thomas I. Atkins, Brooklyn, N.Y., Barnhart & Mirer by Jeanne Mirer, Gary Benjamin, James W. McGinnis, Detroit, Mich., for plaintiffs. Walter S. Nussbaum, Mara Kalnins-Ghafari, Detroit, Mich., for defendants Detroit Police Officers Association, David Watroba, President of DPOA. Frank W. Jackson, Asst. Corp. Counsel, Detroit, Mich., Daniel B. Edelman, Washington, D.C., Terri L. Hayles, Asst. Corp. Counsel, Detroit, Mich., for defendants City of Detroit, Mayor Coleman A. Young, Detroit Police Department Board of Police Commissioners, Chief Wiliiam Hart. OPINION GILMORE. Judge. Can the City of Detroit, knowing full well that by laying off a large number of black police officers it breached its affirmative obligations in violation of the Fourteenth Amendment, fail to return these officers to work? This is one issue presented in this case, and the answer is clearly no. n———m—mm—————v, A-29 Opinion Did the Detroit Police Officers Association fail to take reasonable efforts to protect these black members in connection with the layoffs and thus breach its duty of fair representation to them? This is the second major issue presented here, and the answer is Clearly yes. The action was brought by the Detroit Branch of the NAACP, The Guardians, Inc., and ten named individual black police officers against the City of Detroit, its Mayor, its Police Department, its Police Commissioners, its Police Chief, the Detroit Police Officers Association (DPOA), and David Watroba, President of the DPOA. Early in the proceedings, the Court certified a class of all black police officers laid off in 1979 and 1980.' Plaintiffs contend that the City violated affirmative duties imposed by prior findings of constitutional violations in Baker v. Detroit, 483 F.Supp. 930 (E.D.Mich.1979), affd sub nom Bratton v. Detroit, 704 F.2d 878 (6th Cir.), modified 712 F.2d 222 (6th Cir.1983), cert. denied — U.S. —, 104 S.Ct. 703, 79 L.Ed.2d 168 (1984). Plaintiffs also contend the City defendant violated 42 U.S.C. §§ 1981, 1983, and 1985(3), and that their Thirteenth Amendment rights were denied by the City. Plaintiffs further claim the DPOA has breached its duty of fair representation under Michigan law, and has violated 42 U.S.C. §§ 1981, 1983 and 1985(3), and the Thirteenth Amendment. Full trial of the matter began on May 23, 1984, and contin- ued through 21 days and 2,612 pages of transcript. ‘The Governor of Michigan and the Michigan Employment Relations Commission were original defendants, but were dismissed on motion early in the case. me | A-30 Opinion At issue is the layoff of approximately 1,100 Detroit police officers below the rank of sergeant, approximately 75 percent of whom were black. As a result of a budgetary crisis, the City, in 1979, implemented large-scale layoffs of City employees, includ- ing police officers. On October 13, 1979, the City laid off 400 police officers, of whom 71 percent were black, and in 1980 an additional 690 police officers were laid off, 75 percent of whom were black. All officers were laid off pursuant to Article 10(e) of the collective bargaining agreement between the City and the DPOA that required seniority be strictly applied in the event of layoffs, with the result that those last hired were first to be laid off. In Baker, supra, Judge Keith found that the City of Detroit had engaged in intentional racial discrimination in its police department, at least until 1968. Baker found, and testimony at trial also revealed, that the City of Detroit did not seriously begin its efforts to eliminate the effects of its past racial discrimination until the 1970’s. On July 31, 1974 the City adopted an affirma- tive action program for its police department, involving hiring and promotions in the Detroit Police Department. This affirma- tive action program has been upheld by the Sixth Circuit in Bratton, supra, and DPOA v. Young, 608 F.2d 671 (6th Cir.1979), cert. denied 452 U.S. 938, 101 S.Ct. 3079, 69 L.Ed.2d 951 (1981). The affirmative action program resulted in an accelerated hiring rate for blacks in the Detroit Police Department. In 1975, out of 393 appointments to the Detroit Police Department, 250, or 63 percent, were black. In 1976 there were no appointments. In 1977, out of 1,245 appointments, 949, or 76 percent, were black, and in 1978, the last year in which hiring has taken place in the Detroit Police Department, out of 227 appointments, 179, or 78 percent was black. i On December 31, 1978 blacks held 1,719 of 4,393 positions in the rank of police officer, or 39.1 percent, and 1,946 of the total of 5,630 positions in the department, or a total of 34.6 A-31 Opinion percent. This figure represents the highest percentage of blacks ever in the Detroit Police Department.?’ On February 23, 1984, when this Court issued its partial summary judgment ruling, the Detroit Police Department had a total sworn personnel of 3,762, of which 1,007, or 26 percent, were black. It had a total of 2,668 police officers, of whom 756, or 28 percent, were black. Thus, it is clear that the net effect of the layoffs in 1979 and 1980 was to wipe out most of the affirmative action recruiting that had brought large numbers of blacks onto the police force in 1977 and 1978.° At trial, Dr. Mark Bendick, Jr.,* an economist, updated the Statistical figures established by Allen Fechter in Baker.’ These Statistics, which show the disparity between the number of blacks in the Detroit Police Department and the numbers of blacks in the relevant labor market, can only be explained, according to > At least since 1966, when the DPOA was made exclusive bargaining representative, all sworn Detroit officers below the rank of sergeant have been members of the DPOA. Thus, statistics for officers below the rank of sergeant kept by the City of Detroit should also be applicable to the DPOA. : ‘On August 12, 1981, the Detroit Police Department recalled 100 officers, and during the period from April 12, 1982 through June 8, 1982 recalled an additional! 171 officers. However, further layoffs took place on Septem- ber 10, 1983, when 224 police officers were laid off. This effectively wiped out most of the recalls of 1981 and 1982. On June 18, 1984, the Detroit Police Department recalled 135 police officers, of whom 111, or 82.2 percent, were black. Further recalls are anticipated by the Detroit Police Department once the present contract, which is in arbitration under Act 312, is determined. * The Court will adopt Dr. Bendick’s method of calculating the shortfall of blacks in the police officer ranks, and in all sworn positions at designated points in time, because his analysis is identical to the method used by Mr. Fechter in Baker, supra. It will disregard the testimony of Dr. Joe Darden, who was hired as an expert for the plaintiff, because his method of calculation was not identical to the method used by Fechter. ‘The figures established by Mr. Fechter can be found at the chart in Bratton, supra, p. 894. i a A-32 Opinion both Fechter and Bendick, by racial discrimination in hiring. Bendick, in updating Fechter’s work, testified at trial that, if the Detroit Police Department had hired police officers in proportion to the black representation in the relevant labor pool from 1945 to 1978, the black representation at the police officer rank as of December 31, 1978 would have been approximately 47.7 percent, rather than 39.1 percent. His analysis also revealed that, as of April 30, 1980, the black representation at the police officer level would have been approximately 43.8 percent rather than the 28.3 percent. Dr. Bendick made a projection for 1988, and indicated that, if the Detroit Police Department had hired blacks in pro- portion to their labor market representation in all of the years from 1945 to 1978, the presence of black officers in 1988 would be 50.5 percent. As of 1984, blacks comprised 65 percent of the relevant labor market, and the City of Detroit is 67 percent black. This description of the effects of racial discrimination on the Detroit Police Department, and the efforts of the City of Detroit to correct its past racial discrimination, cannot be traced without mentioning the police officers’ unions. It is a matter of public record that both the Lieutenants and Sergeants Association in Baker, supra, and the DPOA in DPOA v. Young, supra, brought court challenges to the City’s affirmative action plan. The public record, as well as testimony at this trial, indicates that, at least where affirmative action for blacks was concerned, the police unions, including the DPOA, were bitter opponents, of the City. Testimony at trial indicated that the DPOA opposed efforts by the City to hire increased numbers of blacks and opposed the City’s residency requirement—that all personnel in the Detroit Police Department have their residency in the City of Detroit, a requirement which, although not directly racial, has clear racial implications given the racial composition of the City of Detroit. The first collective bargaining agreement between the DPOA and the City of Detroit was entered into in 1967. A seniority clause was bargained in at that time, and this clause has remained in effect in all agrecments since. Several contracts A-33 Opinion have been entered into since then, but the parties were unable to agree to a contract in 1977, and in 1978 the impasse was referred to arbitration under Public Act 312 of 1969, M.C.L.A § 423.231 et seq. On December 30, 1978, the Act 312 Arbitration Board made its award on economic proposals. This award was chal- lenged by the City in the courts, and was finally affirmed by the Michigan Supreme Court on June 6, 1980. City of Detroit v. DPOA, 408 Mich. 410, 294 N.W.2d 68 (1980). The 1978 Act 312 award plays an important role in the underlying factual scenario of this case. The City of Detroit contended that this award was excessive and was the direct cause of the layoffs. The number of officers laid off was also linked monetarily to the amount of the increased award. The testimony at trial also revealed that the City took a gamble with its court challenges to the award. It did not set aside any monies in its budgets to pay for the award. Thus, when the Michigan Supreme Court, affirmed the award, the City owed a very size- able lump sum. ; From the DPOA’s point of view, its attitude during this period was understandably colored by the fact that as of June 1980, when the Michigan Supreme Court rendered its decision, it had still not received the monies due on a 1977 contract, based on a December 1978 award. By 1980, DPOA members were due a considerable sum of retroactive backpay and retroactive COLA. *Act 312 provides that upon certification that the parties are unable to agree upon all issues in a contract in the public sector, those issues upon which they cannot agree will be submitted to arbitration by an impartial arbitration board, which renders a binding decision. The obvious purpose of this legislation is to avoid strikes in the public sector. The most controversial porticn of the Act 312 procedure is its imposition of a mandatory “last-best offer” decision upon the arbitrators. M.C.L.A. § 423.238. The arbitrators have no discretion in this regard and must accept one of the parties “last-best offers.” The parties present contract, which expired in 1983, is presently in Act 312 arbitration. The threat of this impending award colors the parties’ position to this very day. A-34 Opinion II On February 22, 1984, this Court held that the City of Detroit violated the equal protection clause of the Fourteenth Amendment when it laid off the plaintiff class of black pelice officers. The court entered a partial summary judgment for plaintiffs, holding: 1. That, based on the findings of intentional discrimination in Baker v. City of Detroit, 483 F.Supp. 980 (E.D.Mich.1979), aff'd sub nom Bratton v. City of Detroit, 704 F.2d 878 (6th Cir.), modified at 712 F.2d 222 (6th Cir.1983), cert. denied—U.S.—, 104 S.Ct. 703, 79 L.Ed.2d 168 (1984), the City had a constitu- tionally imposed continuing affirmative obligation not only to stop the discrimination but to remedy all of the effects of the discrimination. ___2. That the City had not yet remedied the effects of this prior discrimination when, in 1979 and 1980, it reduced black representation on the police force. 3. That by these layoffs, which the City knew full well would reduce black representation on the police force, the City breached its affirmative obligation to the plaintiffs in violation of their rights under the Fourteenth Amendment. This ruling was predicated upon the findings of intentional past discrimination against blacks in the Detroit Police Depart- ment made by Judge Keith in Baker, supra. In NAACP v. Detroit Police Officers Association, 525 F.Supp. 1215 (E.D.Mich. 1981), this Court previously held in this case that the doctrine of collateral estoppel precluded relitigation of the issue of the City’s past intentional discrimination, as found in Baker. Bratton and Baker found that, at least until 1968, the City of Detroit “employed a consistent overt policy of intentional discrimination against blacks in all phases of its operations.” Bratton, supra, at 888. Since the Baker—Bratton decisions were in the context of suits by white officers challenging the City’s A-35 Opinion voluntary affirmative action plan, neither Judge Keith nor the Sixth Circuit had to reach the obvious corollary of these find- ings—that this consistent policy of intentional discrimination was in violation of the Fourteenth Amendment, which prohibits all invidious racial discrimination, See Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed2d 1010 (1967). The record in Baker is “replete with evidence”, Bratton, supra, at 888, of invidious racial discrimination against blacks in the Detroit Police Department prior to 1968. In 1967, at a time when the City of Detroit was 40 percent black, the Detroit Police Department was only 6 percent black. Prior to that time, the Detroit Police Department had been a segregated department where blacks were assigned to patrol exclusively biack areas, scout cars were segregated, and nearly every phase of the operation of the Police Department, from patrols to investigations to supervisory functions, was segregated. Perhaps even worse than the discrimination against blacks in the Detroit Police Department itself was the effect of this discrimina- tion upon relations between the police and the black community. This relationship has been characterized by all observers as one of deep hostility, and the race riots that occurred in this City in 1943 and 1967 have been directly tied to the hostility between the police and the community, a direct result of invidious racial discrimination in the Letroit Police Department. Testimony introduced at trial in this case also confirmed the history of intentional race discrimination against blacks. Chief William Hart, who is black and who joined the Department in 1952 and eventually rose through the ranks to become Chief in 1976, testified about this past discrimination, as did Executive Deputy Chief James Bannon, who is white and who joined the Department in 1949. Furthermore, Dr. Mark Bendick, Jr., the economist who updated the Fechter analysis from Baker, also testified that the Statistical shortfalls of blacks in the Detroit Police Department A-36 Opinion - over the years, up to the early ’70s, could only be explained as the result of racial discrimination. In DPOA v. Young, supra, a case in which white patrolmen and the DPOA challenged the City of Detroit’s voluntary affirm- ative action plan mandating a 50/50 black-white ratio in promo- tions of patrolmen to sergeants the court delineated the constitu- tional obligation here. “‘{[T]he Constitution imposes on states a duty to take affirmative steps to eliminate the continuing effects of past unconstitutional discrimination.” /d. at 691. In addition to the foregoing holding, the court held that “(I]t was error to require proof that the persons receiving the preferential treat- ment had been individually subjected to discrimination, for ‘it is enough that each recipient is within a general class of persons likely to have been victims of discrimination.” ” Jd. at 694. Based on these judicial findings of past discrimination it is clear the City had an affirmative obligation to eliminate the continuing effects of past racial discrimination, and to eliminate all racial discrimination “root and branch.” Green v. County School Board, 391 U.S. 430, 438, 88 S.Ct. 1689, 1694, 20 L.Ed.2d 716 (1967). See also Swann v. Charlotte-Mecklenburg, 402 US. 1, 15, 91 S.Ct. 1267, 1275, 28 L.Ed.2d 554 (1971); Keyes v. School District No. 1, 413 U.S. 189, 200 n. 11, 93 S.Ct. 2686, 2693 n. 11, 37 L.Ed.2d 548 (1973). The City had notice of all of these judicial findings as of October 1, 1979 when Judge Keith’s opinion in Baker was issued. [1] Thus, in 1979, when the first of the massive layoffs of black officers involved in this case took place, the constitutional obligation of the City to eliminate continuing effects of past racial discrimination continued to exist. Although the City, through its voluntary affirmative action plan, had made great strides towards satisfying its constitutional remedial obligation prior to 1979, the obligation nonetheless remained in force in 1979. Although in 1978, the year before the layoffs involved in this case took place, 39 percent of Detroit police officers were black, the highest percentage ever, blacks still were 62.2 percent A-37 Opinion of the relevant labor market. The 1978 figure of 39 percent blacks still represented a 6.6 percent shortfall of what the per- centage of blacks would have been absent racial discrimination, according to testimony of Dr. Bendick. Given the percentage of blacks in the Detroit labor market in 1978, this figure is a conservative one in terms of what percentage would have been constitutionally mandated. See Bratton, as modified on rehear- ing, 712 F.2d 222, 223 (6th Cir.1983). It is clear that the layoffs in 1979 and 1980 had a devastat- ing effect upon the City’s affirmative action plan. The present percentage of black representation in the ranks of police officers is 28.3 percent, and in all ranks 27.9 percent. The relevant labor market in the City of Detroit today is well over 65 percent. The City thus breached its affirmative constitutionally man- dated duty to remedy past intentional racial discrimination in the Police Department when it began its massive layoffs of black officers in 1979 and 1980, and this breach was knowing and intentional. “If the actions of school authorities were to any degree motivated by segregative intent and the segregation resulting from those actions continues to exist, the fact of remote- ness in time certainly does not make these actions any less ‘intentional.’ ”’ Keyes, supra 413 US. at p. 210-211, 93 S.Ci. at p. 2698-2699. [2] The September 3 letter of Mayor Young to David Watroba, plaintiffs Exhibit 1, shows that the City knew that it was under a legal mandate to continue its affirmative obligation to plaintiffs, and knew that the layoffs would have a drastic effect upon this obligation. Mayor Young wrote: In closing, let me remind you that affirmative action as a concept is not negotiable. It is mandated not only by the City Charter, but also by state and federal law and the Courts as well. It is also my opinion that the duty to implement affirm- ative action does not stop just because we have found more A-38 Opinion equitable ways to hire new police ofhcers. Rather, we have a double duty—and we are now challenged to find equitable ways to implement the September 5 layoffs. The fact that we have found ways to remove hiring barriers at the front door does not relieve us to of our obligation to find ways to remove comparable barriers at the back door, now that the circumstances require it. [3-6] The City argues that the law at the time was unclear on this subject, especially in relationship to the City’s contractual obligation to the DPOA with reference to seniority rights. It is well established that good faith is nut a defense by a municipality to a constitutional violation. Owen v. City of Independence, 445 U.S. 622, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980). Further, the Fourteenth Amendment provides no mention of bona fide senior- ity clauses nor contractual obligations as a defense. Nor can state laws stand in the way of full and complete remedies for constitutional violations. Milliken v. Bradley, 418 U.S. 717, 744, 94 S.Ct. 3112, 3127, 41 L.Ed.2d 1069 (1974). See also Bakke, 438 U.S. 265, at 307, 98 S.Ct. 2733 at 2757, 57 L.Ed.2d 750, (race-conscious action to remedy past discrimination is permissi- ble, if based upon prior judicial, legislative or administrative findings of constitutional statutory violations.) (Powell, J.). Nor can parties by contract limit their liability for pre-existing consti- tutional violations.’ This law was clearly established at the time the City began its unconstitutional course of action in laying off massive numbers of black police officers. "The City argues that in 1979 it was subject to conflicting legal obliga- tions—its constitutional ones towards black officers and contractual obli- gations towards white officers. The City never sought declaratory relief from this or any other court. It cites no authority, nor could it, for the proposition that constitutional remedies can be frustrated by contractual obligations. Its citation of W.R. Grace v. Local 759, 461 U.S. 757, 103 S.Ct. 2177, 76 L.Ed.2d 298 (1983), for the proposition that it would have been subject to double liability to white officers had it taken steps to protect black officers is inapposite. W.R. Grace involved a conciliation agreement under Title VII, with no constitutional issues involved, nor previous judicial findings of past racial discrimination. l A-39 Opinion [7] In its motion for reconsideration of this Court’s order of partial summary judgement, the City objects to the finding of intentional discrimination at the time the City began its layoffs in 1979, and attempts to attach particular significance to general definitions of intent in the racial discrimination field, which hold that foreseeable results and discriminatory impact, without more, do not establish discriminatory purpose. See e.g. Colum- bus Board of Education v. Penick, 443 U.S. 449, 464, 99 S.Ct. 2941, 2950, 61 L.Ed.2d 666 (1975), Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, 272, 99 S.Ct. 2282, 2292, 60 L.Ed.2d 870 (1979). This is not the situation here. Here we have the “more”—the judicial findings of past inten- tional discrimination made by Judge Keith in Baker, and affirmed by the Sixth Circuit in Bratton. Given this past finding of intentional discrimination, the City becomes liable every time it knowingly and foreseeably breaches its affirmative obligations to remedy this discrimina- tion. The remoteness in time from the original act of intentional discrimination does not make later acts any less intentional. Keyes, supra. “Each instance of a failure or refusal to fulfill this affirmative duty continues the violation of the Fourteenth Amendment.” Columbus Board of Education v. Penick, supra 443 US. at 459, 99 S.Ct. at 2947. Thus, the City’s discussion of the particular intent of the City in 1979-890 is largely irrelevant. “(T]he measure of the post Brown I conduct of the school board under an unsatisfied duty to liquidate a dual system is the effectiveness, not the purpose, of the actions in decreasing or increasing the segregation caused by the dual system.” (Cita- tions omitted). Dayton Board of Education v. Brinkman, 443 U.S. 526, 538, 99 S.Ct. 2971, 2979, 61 L.Ed.2d 720 (1979). This court does not ascribe racially discriminatory animus to Mayor Young and his administration. It is obvious that he has led the attempts of the City to remedy past discrimination against blacks in the Police Department, attempts which have placed the City of Detroit in the forefront of major metropolitan areas in this regard. A-40 Opinion However, it is equally obvious from the testimony and exhibits that in 1979, and more particularly in 1980, the City made a politically expedient decision that it would rather face a lawsuit by black police officers than face a lawsuit by white police officers.* It also decided it would threaten layoffs of black officers as a club against the DPOA in an attempt to roll back the 1978 Act 312 arbitration award, especially the retroactive pay and COLA increases ordered in that award. It is not the function of this Court to inquire into the political wisdom of these decisions. However, the Constitution, and particularly the Fourteenth Amendment, exists precisely to insure that the individual and group rights of all citizens, espe- cially minorities who have been historically shut out of the political process, are protected in the political process. [8] The rights of the black police officers and black citizens of Detroit to a fully integrated police force werc sacrificed in the 1979 and 1980 layoffs. A city does not fulfill its obligations under the Fourteenth Amendment, nor does a union fulfill its obligations to fairly represent its members, by simply giving the difficult problem of redressing racial injustice in our society to the federal courts. During the trial of this case, the United States Supreme Court issued its opinion in Firefighters Local Union No. 1784 v. Stotts, — U.S. — , 104S.Ct. 2576, 81 L.Ed.2d 483 (1984). This case has initiated a far-reaching debate over its implications for affirmative action and civil rights in general, but this Court need not address this debate since Stotts is not controlling here. * This, the City concedes: “... they (the city defendants) clearly would have preferred to depart from seniority based layoffs, yet chose not to because they believed that a court would be more likely to award back pay to prevailing white plaintiffs than it would to prevailing black plaintiffs.” Brief of City of Detroit on City’s motion for Partial Summary Judgment, page 2. iii... A-41 Opinion Stotts involved Title VII.’ This case involves liability under the Fourteenth Amendment. Title VII contains a clause specifi- cally exempting bona fide seniority systems from attack.'© The Fourteenth Amendment contains no such restrictions. Stotts and the Title VII cases relied upon by the Supreme Court there rest on interpretations of Congressional intent in enacting Title VII, and contain no interpretation of the Fourteenth Amendment. In addition, Stotts involved a consent decree that specifi- cally disclaimed liability for past discrimination. This case involves prior judicial determinations of past intentional discrimination. The major-ty opinion in Stotts itself indicates it is distin- guishable from a case where there has been a finding of past intentional discrimination: “Neither does it suffice to rely on the District Court’s remedial authority under Sections 1981 and 1983. Under these sections, relief is authorized only when there is proof or admission of intentional discrimination .... Neither precondition was satisfied here.” Jd. —U‘S. at n. 16, 104 S.Ct. at 2590 n. 16." This view of Stotts is confirmed by the recent denial of certiorari in Buffalo Teachers Federation v. Arthur, cert. denied — US. —, 104 S.Ct. 3555, 82 L.Ed.2d 856 (1984). The Second Circuit’s opinion below in Arthur v. Nyquist, 712 F.2d 816 (2d *42 U.S.C. § 2000e et seq. " Sec. 703(h) of Title VII, 42 U.S.C. § 2000e-2(h). '' The Court does not accept the City’s position advanced in post-trial argument that Title VII law regarding bona fide seniority systems is controlling in constitutional litigation. The cases cited by the City, Chance v. Board of Education, 534 F.2d 993 (2d Cir.1976); Schaefer v. Tannian, 538 F.2d 1234 (6th Cir.1976); Stokes v. New York St. Dept. of Correctional Servs. 369 F.Supp. 918 (S.D.N.Y.1982); and General Building Contractors Assoc., Inc. v. Pennsylvania, 458 U.S. 375, 102 S.Ct. 3141, 73 L.Ed.2d 835 (1982) simply do not stand for this proposi- tion, and until the U.S. Supreme Court declares otherwise, this Court will not write “bona fide seniority system” into the U.S. Constitution, as the City invites it to do. A-42 Opinion Cir.!983), involved the affirmance of a district court order that overrode the seniority system involving teachers in the Buffalo Public School System. This order was based on prior findings of intentional discrimination by the Buffalo school system, includ- ing the hiring of teachers. The Second Circuit specifically held that the Title VII cases, which were the basis for the holding in Stotts, particularly International Brotherhood of Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977), which protect bona fide seniority systems, are not applicable in cases seeking remedies for constitutional violations based on judicial findings of intentional racial discrimination: Nor was the District Court’s authority impaired, as the Federation contends, by the Supreme Court’s decisions in American Tobacco Co. v. Patterson, 456 U.S. 63 [102 S.Ct. 1534, 71 L.Ed.2d 748] (1982), and International Brother- hood of Teamsters v. United States, 431 U.S. 324 [97 S.Ct. 1843, 52 L.Ed.2d 396] (1977). In those Title VII cases, the Supreme Court ruled that bona fide seniority systems must be honored, unless there has been a finding of actual intent to discriminate... Here, however, the suit was brought to remedy violations of the Constitution rather than Title VII, and the District Court made a finding of intentional discrim- ination in the Board’s maintenance of a segregated school system. We therefore agree with the District Court that it had the authority to curtail the seniority rights of the Feder- ation’s membership in order to vindicate the constitutional rights of the minority children in the Buffalo school sys- tem .... Once a local board of education has been found to have employed staff hiring practices that contribute to 2 racially segregated school system, the District Court has the power to remedy those practices and to override seniority systems that perpetuate those practices. SPA Se ab pli) in WS Te le we age A-43 Opinion Id. at 822." See also Oliver v. Kalamazoo Board of Education, 706 F.2d 757 (6th Cir.1983), which reaffirmed this general principle, but held that the court-ordered remedy in the particu- lar case was improper. In general, no precedential effect should be given to a denial of certiorari. However, this Court can only conclude that, in light of footnote 16 in Stotts, supra, and the denial of certiorari in Arthur only two weeks after Stotts, Stotts presents no author- ity for changing this Court’s determination of liability against the City of Detroit. Therefore, this court reaffirms its determination that the City breached its affirmative obligations to the plaintiffs in viola- tion of their Fourteenth Amendment rights." “(T]he nature of the violation determines the scope of the remedy.” Milliken v. Bradley, 418 U.S. 717, 738, 94 S.Ct. 3112, 3124, 41 L.Ed.2d 1069 (1974), (Milliken I); Hills v. Gautreaux, 425 U.S. 284, 293-94, 96 S.Ct. 1538, 1544-45, 47 L.Ed.2d 792 (1974). Having established the liability of the City under the Fourteenth Amendment, it now becomes necessary to delineate " The City’s attempt to distinguish this case, as well as a similar case, Morgan v. O'’Bryant, 671 F.2d 23 (Ist Cir.1982), cert. denied, 459 U.S. 827, 103 S.Ct. 62, 74 L.Ed.2d 64, on the grounds they involved the vindication of the rights of students, not teachers, is not persuasive. Both cases involved findings of past intentional! discrimination in hiring, as does this case. It is hard to fathom how the City can read these cases to stand for the proposition that it owes no constitutional duty to its biack police officers. They stand for precisely the contrary. In addition to its Fourteenth Amendment claim, plaintiffs assert claims under the Thirteenth Amendment, 42 U.S.C. §§ 1981 and 1985(3). Given this Court's holding regarding the Fourteenth Amendment liability of the City, it is unnecessary to reach the Thirteenth Amendment and § 1981 claims. There has been no showing sufficient to sustain a finding of conspiracy liability under 42 U.S.C. § 1985(3). The evidence shows that the City and the DPOA have agreed upon virtually nothing since 1966. A-44 Opinion the nature of the wrong, and the relief to be ordered against the City. For the class of laid-off black officers there is cbviously the loss of their jobs, which resulted from these unconstitutional acts, as well as the loss of back pay and other fringe benefits. William Bracey, former Chief of Patrol of the New York City Police Department, a very informative and credible witness, who, in 36 years, rose from the ranks of patrolman to become the highest ranking black officer in the New York Police Department, testi- fied dramatically to this point. He described the traumatic effect of layoffs on newly-hired black officers, stressing that when black officers are laid off after only serving briefly they have an added burden that white officers do not have. Because of the past racial animosity to the police, they often are alienated from friends and families, and are likely to have less support from them when they are laid off after just recently being hired. Often all of the distrust engendered by years of segregation surfaces again, and the officer, his friends and family think, “They're playing games with you. They really didn’t want you in the first place.” Chief Bracey testified that this trauma is even more acute for rookie officers, and that the normal adjustment to becoming a police officer is difficult enough without the newly-hired black officer having the additional trauma of getting a message from the City that it is not serious about remedying the past discrimi- nation in the Department. [9] Thus, based on this testimony, the Court finds that in addition to the usual losses sustained with the loss of employ- ment, the class of black officers suffered injury as a direct result of the City’s past racial discrimination, and its failure in 1979 and 1980 to continue to remedy this discrimination. To put it bluntly—they suffered the trauma of betrayal. After placing their standing in the community in jeopardy by joining the police force, they had to now face the inference that the City was “playing games” with them, and was not serious about its efforts A-45 Opinion to remedy this past discrimination. This trauma was directly tied to the City’s constitutional violation. [10] Without minimizing the losses suffered by the black officers, testimony at trial revealed a constitutional violation of even greater magnitude—the harm to the black citizens of the City of Detroit. Perhaps even more than the individual officers, they are the victims in this case. When we deal with the police in an employment situation, we are not dealing with a private employer. The police function “fulfills a most fundamental obligation of government to its constituency,” Foley v. Connelie, 435 U.S. 291, 297, 98 S.Ct. 1067, 1071, 5S L.Ed.2d 287 (1978). Baker, Bratton, and DPOA v. Young have affirmatively recognized what is known as the “operational needs” defense for affirmative action in the Detroit Police Department—that the presence of black officers on the police force is vital in enabling the police to effectively fulfill its police function. See also Van Aken v. Young, 541 F.Supp. 448 (E.D. Mich.1982). In DPOA v. Young, supra, the Court held: The argument that police need more minority officers is not simply that blacks communicate better with blacks or that a police department should cater to the public’s desires. Rather, it is that effective crime prevention and solution depend heavily on the public support and cooperation which result only from public respect and confidence in the police. In short, the focus is not on the superior performance of minority officers, but on the public’s perception on law enforcement officials and institutions. 608 F.2d at 696. Baker and DPOA v. Young developed the operational needs theory in terms of legal justification for affirmative action. The testimony in this trial persuasively developed the converse—the harm to the black citizens in Detroit when the City retreated A-46 Opinion from its commitment to affirmative action and a police force that met the needs of its community. The testimony of Chief Bracey, Patrick Murphy, former Detroit and New York City Police Commissioner and currently president of the Police Foundation, Chief Hart, Deputy Chief Bannon, and Mayor Young developed the operational needs con- cept. Former Commissioner Murphy testified that the presence of black officers is vital to the whole concept of democratic policing, and that police should come from the people they serve. He emphasized the way black officers can educate white officers on the mores, folkways and language of the black community. He stated that it is absolutely necessary that the community be involved in policing, and to accomplish that, police officers must be representative of the community. He testified that there has been great improvement in police-community relations over the last 15 years, and that this has been largely due to the existence of more minorities on police forces. This evidence is overwhelm- ing, and largely unrebutted. No one today could seriously hold the DPOA’s position that a white police force living in the suburbs could effectively police the City of Detroit. Mayor Coleman Young pointed out that formerly there was great alienation between the black community and the police department which resulted in ineffective law enforcement and poor community relations. This was changed in recent years. The Mayor also pointed out that the DPOA has exerted great influence in past administrations, and has regularly resisted efforts to hire more blacks. He testified that no officer of the DPOA has ever protested racial discrimination in the Detroit Police Department, or complained to him on behalf of any of its black members. Chief Hart and Deputy Chief Bannon also testified force- fully on this subject. They said that, prior to 1974 when the City first seriously began to eliminate racial segregation in the Detroit Police Department, the Department was viewed as an occupation army by the black citizens of Detroit. This, they said, reduced A-47 Opinion the effectiveness of the police in that they could not get witnesses to testify or cooperate in solving crimes, controlling crowds, or in crime prevention. Both testified concerning changes that have taken place since citizens began to see that the City was serious about making the police more representative of the citizenry. There is a greater degree of police-citizen cooperation, crowd control is more easily handled, and crime prevention projects have increased dramatically. Furthermore, police fatalities have been drastically reduced. All of this is tied to the presence of sufficient numbers of blacks on the Detroit Police Department. Chief William Hart has been chief since 1976. He has a doctorate from Wayne State University, and is a career police officer, having entered the Detroit Police Force in 1952. Chief Hart outlined the history and background of the relationship between the police and the community in the 1950s and the 1960s, pointing out that at that time relations were very bad, and that the police, predominately white, was considered an army of occupation. He testified that when he first went on the force only three precincts had black officers, and that the depart- ment was totally segregated. Poignantly, he testified that he could not be assigned to a clean-up squad (a local vice squad in the precinct) until he could find a sergeant who would have a black on his team. Chief Hart testified that the lack of trust in the police department prior to the "70s made it very difficult to properly police the City. He testified that after 1974 police-community relations changed dramatically, and he says now the people in the neighborhoods are part of the solution rather than part of the problem. Violence has been greatly reduced against police officers because of integration, and the rate of police killings has been greatly reduced. Police brutality against citizens has been greatly reduced and is almost nil at the present time. A-48 Opinion Finally, Chief Hart pointed out that, with the layoff of the large numbers of black officers, the forward strides have been put on hold. The layoff of blacks has hampered the ability to fight narcotics, to do undercover work, to do surveillance work, and to work with organized crime and vice. Although there is a residue of good will in the community resulting from the increased black representation on the force, such good will cannot last forever. He wants all of the officers, black and white, called back. Executive Deputy Chief James Bannon, of the Detroit Police Department, is a white, career police officer, who has been on the force since 1949. He holds a Ph.D. degree. He also testified that there is presently mutual support between the community and the Police Department, and reiterated Chief Hart's testimony that formerly the Police Department was an occupation force in the black community. The changes in atti- tude that have come about as the result of the number of blacks coming opto the force has been dramatic. Several factors brought about this change in the community and in the force, according to Chief Bannon: 1. A black Mayor and a black Police Chief have given people a feeling of accessibility; 2. Blacks are in policy positions in the Department for the first time; 3. The high visibdility of black officers in the community has been significant in changing the community's attitudes. The testimony of all police officials was that, as the result of the increase in black representation on the police force, the community relations with the police force had dramatically improved since 1974, and there has been a complete reversal in community attitude towards the force. They all testified, how- ever, that the good will developed by the Detroit Police Depart- ment since 1974 is not inexhaustable, and can be used up if the community begins to see the return to the past days of racial segregation in the Detroit Police Department. Although the presence of many black command officers, who were unaffected «th aN + oA Sala A Ae sat iy aw ava a. re ee at ee ae ee ee A-a9 Opinion by the layoffs, somewhat ameliorates this problem, it is undis- puted that black patrol officers are the most visible, have the most daily contacts with the community, aad are most important in crime prevention and community relations. Therefore, mac- sive reductions in the numbers of black police officers below the rank of sergeant on the street will have dramatic effects. Just as significant as the testimony were the exhibits show- ing the effect of these layoffs on the actual operations of the Detroit Police Department. A particularly significant exhibit was Exhibit 645, which shows the racial composition of the Detroit Police Department by sections and precincts. The Spe- cial Events Unit, a highly visible unit charged with crowd control during major events, has been reduced from 28 percent black prior to the 1979 layoffs to presently six percent black. Precinct No. 5, which in September 1977 had a population that was 63.1 percent black, today has 18 percent blacks on patrol. Precinct No. 15, a predominently white precinct, which, prior to the layolfs, had 33 percent blacks on patrol, today has four percent blacks. Only six black officers, divide’ among three shifts, are now assigned to this precinct. This statistic parallels the worst days of segregation in the police department. Finally, Exhibit 645 shows that the Youth Bureau, in a city where 80 percent of the youth is black, is only 13 percent black. Given the importance of black officers as role models for the youth and the importance of preventing youth crime, this statis- tic is a striking demonstration of the effect of this constitutional violation. Thus, the City is in real danger of seeing the gains of the 1970's in terms of police-community cooperation reversed, if the City’s unconstitutional layoffs are not remedied. It is clear from the testimony of Mayor Young and the police experts, Bracey, Hart, Bannon, Murphy, and the exhibits, that the return of black officers to the streets of the City of Detroit is hot only necessary to vindicate the constitutional rights of the black police officers, but is also an absolute necessity to restore A-50 Opinion balance to the community, and the confidence of the community in the Detroit Police Department. Their testimony was intelli- gent, credible and convincing, and clearly established the need for the return to the force of the black police officers. Thus, there are two constitutional violations which must be remedied—the harm resulting from the City’s abandonment of its black officers, and the harm to the black community if the police force is returned to the days of racial segregation. [11,12] It is well established by now that race-conscious remedies are permitted to redress constitutional violations, Bakke, supra, 438 U.S. at 307, 98 S.Ct at 2757; Bratton, supra, at 882; DPOA v. Young, supra, and Oliver v. Kalamazoo, supra. Class-wide relief to remedy past constitutional violations is equally permissible without the individual members of the class having to prove that they were actual victims of past discrimina- tion. “[I]t was error to require proof that the persons receiving the preferential treatment had been individually subjected to discrimination, for ‘it is enough that each recipient is within a general class of persons likely to have been victims of discrimina- tion.’ ” DPOA v. Young, supra, at 694, citing Bakke." [13] Although race-conscious remedial relief is permissible, the remedy must be “necessary” and “tailored” to cure the constitutional violations. Oliver, supra, at 764. A similar stan- dard was established by Justice Powell in Bakke: “When they [classifications] touch upon an individual’s race or ethnic back- ground, he is entitled to a judicial determination that the burden he is asked to bear on that basis is precisely tailored to serve a compelling governmental interest.” Bakke, supra, 438 US. at 299, 98 S.Ct. at 2753. And it is clear that this Court is mandated to “balance individual and collective interests.” Swann v. Charlotte-Mecklenburg, supra 402 U.S. at 16, 91 S.Ct. at 1276. '* For the reasons set forth, supra, pp. 1202-1204, Srorts does not affect this holding of the Sixth Circuit. A-51 Opinion Based upon the findings of liability and the findings of the nature of the constitutional violation, this Court will order the following relief to cure the constitutional violation: [14] The first relief to be ordered is the reinstatement of all black officers laid off in 1979 and 1980 who currently remain on layoff status, and who wish to return.’ This should be done in an orderly manner and over a period of time, so that the City will have an opportunity to make the budget adjustments necessary to effectuate the return of these officers. Therefore, the Court will order that all these officers be called back within 180 days of this opinion. Seniority will control in determining the order of callback. Within 30 days of the date of this opinion, the City shall present to the Court a plan to accomplish this. All callbacks will be subject to the normal procedures of the Police Department—that is, the Department must determine if each officer desiring to return to duty is still qualified to be a Detroit police officer. If he or she is not, but can become qualified through additional training, such training shall be pro- vided. In short, the Department may be subject officers desiring to return to duty to the normal procedures employed by them for all returning laid-off police officers. ‘As discussed earlier, this Court rejects the City’s argument that the distinctions made in Arthur v. Nyquist, supra, and Morgan v. O’Bryant, supra, between harm to the public and harm to individual employees, prevent this Court from ordering the recall of the plaintiff officers. The constitutional mandate of this Court is that the remedy must be related to the “condition alleged to offend the Constitution ....”° Milliken v. Brad- ley, 433 U.S. 267 at 280, 97 S.Ct. 2749 at 2757, 53 L.Ed.2d 745. This is what the recall of these officers is designed to do. The City argues against the recall of the officers, and yet asks this Court to order affirmative action recalls and layoffs at will of the City, intervention in the City- DPOA Act 312 proceedings, and a wage freeze (City Triai Brief, p. 49). This argument is self-serving and based on Byzantine legal distinctions which this Court rejects. A-52 Opinion Moreover, all officers returned under this order shall be awarded the seniority he or she would have had, if there had been no layoffs. [15] In addition, the Court permanently enjoins the City from laying off, suspending, or discharging, except for discipli- nary reasons, any black police officer without the prior approval of this Court. This remedy is necessary to vindicate the needs of the individual black officers and the compelling state interest in a police force reflective of this community. Similarly, the Court permanently enjoins the City from laying off, suspending or discharging, except for disciplinary reasons, any white police officer, without the prior approval of this Court. It is possible that one of the solutions the City will seek to the remedy in this case will be to attempt to layoff white officers with higher seniority than blacks. This the Court, at the present time, will not allow. The case law—Bakke, Oliver, Arthur—demands that the Court take into consideration the interests of white officers with higher seniority than blacks. The financial information furnished to the Court, which perhaps could be relevant to this issue, was less than satisfactory. Although it was represented that the Budget Director of the City of Detroit would be produced as a witness, the City failed to produce him, and in his stead produced a budget analyst, Edward Rego, whose testimony was vague and imprecise upon budget figures. Mr. Rego, while admitting that the budget of the City is merely a financial manifestation of a series of political choices, was unable to explain items amounting to some $300,000,000, nearly 20 percent of the 1.5 billion budget for 1984-1985. He made much of the claim that certain budget items are restricted by state or federal law, but the record, insofar as it was made, established that only 39 percent of City employees are on jobs which are funded from either revenue sharing or other grant monies from the federa) or state governments. A-53 Opinion While the Police Department budget was less than 26 per- cent of the City’s non-restricted budget, the Police Department’s share of budget reduction effort in 1979, 1980, and 1983 was more than 50 percent of the total. This is so even though the cost of a police officer (salary plus fringes) proved to be ony $44,560, rather than the $50,000 per year earlier used by the City. Next, the Court must concern itself with the rights of laid- off white officers who may be senior to black officers being called back under this order. Their interests must be taken into account in fashioning any final remedy. This is mandated by Bakke, DPOA v. Young, Oliver v. Kalamazoo, and Arthur v. Nyquist. But in every one of those cases, the white officers or teachers were actively present in the lawsuit and presented their interests. This did not happen here. Although the DPOA protested that it did represent the white officers, this Court has found that they did not, and that the white officers had not adequate representation in this case."* There is not showing on this record of the numbers or the interest of these officers, and the Court has nothing other than speculation upon which to make a determination of their interests. This Court will therefore allow 30 days for any laid-off white officer, with greater seniority than any laid-off black officer called back, to intervene in this lawsuit for a determination of his or her interest. The Court expresses no opinion as to these interests, if any, nor does the Court express any opinion as to whether doctrines of estoppel, latches, etc. would bar the Court from considering their claims. The Court simply believes that, given the record introduced by the DPOA in this case, and contrary to their representations that they represented the laid- off white officers, equity requires that any white officer who desires be heard. It will be the responsibility of the City of Detroit to notify ail laid-off white officers of this determination. ‘See colloquy between the Court and counsel, Transcript of Testimony, Volume 14, June 13, 1984, pp. 1649-53. A-54 Opinion The next request for relief is the ordering of back pay. This Court will not order back pay relief against either the City or the DPOA. Even in Title VII cases, where back pay is generally presumed, the Court stili retains equitable discretion and can deny it for equitable reasons. See City of Los Angeles Depart- ment of Water and Power v. Manhart, 435 U.S. 702, 722-23, 98 S.Ct. 1370, 1382-83, 55 L.Ed.2d 657 (1978). But this is not a Title VII case. Here the Court has even greater equitable discretion under a constitutional analysis, especially in light of judicial mandates that constitutional remedies be tailored to the scope of the constitutional violation. Milliken, supra, Oliver v. Kalamazoo, supra. The Court must necessarily balance the individual and collective interests involved. Although this Court has already held that class-wide reme- dial relief is not limited to individual victims of prior discrimina- tion, and has ordered such remedial relief, and although this Court does not believe that any legal authority bars back pay ina situation such as is presented here, the Court must take into account the fact that no evidence has been presented that any individual member of the plaintiff class was an actual victim of racial discrimination in hiring. This is an equitable factor that must be weighed in balancing individual and collective interests and tailoring the scope of the remedy. The wrong in this case was not only that of individual discrimination. It was also a collective wrong, a wrong to the expectations of the citizenry and the black police of the City of Detroit, who expected the City to be serious about its commit- ment to affirmative action, which would result in a police force reflective of the community. The collective interests outweigh the admittedly important private interest in back pay in this case, and merit denial of back pay. Regardless of the amount of any back pay award," it would certainly be substantial. These costs would be borne primarily by " If back pay were ordered, Chief Hart said it would ruin the City. Dr. Sidney Mitre, Professor of Economics at Oakland University, testified that the total wage loss suffered by all officers as a result of the layoffs was $50,734,700, the total pension loss was $32,321,667, and the fringe benefit loss $5,386,940, for a total of more than $86,000,000. A-55 Opinion the black citizenry of Detroit. While financial inability to pay is no defense to a constitutional remedy, financial factors certainly must enter into the equitable balancing this Court must under- take. The relief the Court has ordered will sufficiently make the plaintiffs whole, and is tailored to the constitutional violation. In view of the fact that the violation here was to the collective interests of the laid-off officers and the citizens of Detroit, this Court believes justice will not be served by a massive back pay award, and therefore back pay will be denied. IV The DPOA, which was established in 1943, was formally certified to serve as the collective bargaining agent for all Detroit police officers below the rank of sergeant in 1966. It was granted its authority by the Public Employee Relations Act of 1965, M.C.L.A. § 423.211, which provides in pertinent part; Representatives designated or selected for purposes of collective bargaining by the majority of the public employ- ees in a unit appropriate for such purposes, shall be the exclusive representatives of all the public employees in such unit for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment or other conditions of employment... [16,17] As the exclusive bargaining representative for its members, the DPOA has a duty of fair representation under Michigan law. Lowe v. Hotel & Restaurant Employees Union, Local 705, 389 Mich. 123, 205 N.W.2d 167 (1973). Plaintiffs claim that the DPOA breached this duty, which is a pendent one brought under Michigan law. According to Michigan law, the Court must look to federal law for guidance in deciding the fair representation issue, since the full development of this doctrine has taken place through judicial interpretation of the National Labor Relations Act (“NLRA”), 29 U.S.C. § 151 et seq. See Bebensee v. Ross Pierce, 400 Mich. 233, 253 N.W.2d 633 (1977). A-56 Opinion [18,19] The duty of fair representation is a judicially cre- ated remedy. There is no specific reference to it in either the NLRA or in Michigan statutory law. Instead, the doctrine has been developed by the judiciary as a necessary, and, in the case of racial discrimination, a constitutionally imposed duty arising from the grant of authority by legislatures to unions to be the exclusive representatives of their members. By allowing unions to be exclusive representatives of their members, and thus sub- suming rights of minorities in collective bargaining, unions have not been granted licenses to practice racial discrimination in violation of either the Fourteenth Amendment or the equal protection clause of the Michigan Constitution. Mich. Const. Art. 1, § 2. Since this case involves claims of racial discrimination by an exclusive bargaining representative (the DPOA), the Court must be especially sensitive to the fact that the duty of fair representa- tion arose as a doctrine to protect minorities, and blacks in particular, from racial discrimination by unions. When the NLRB was originally established, leaders of black organizations expressed fears that by granting exclusive representative status to certain unions, racially discriminatory policies by unions would have the authority of a law. Congress attempted to allay these fears in the debate sur- rounding the NLRA, and the United States Supreme Court firmly outlawed racial discrimination by unions by establishing the duty of fair representation in Steele v. Louisville & Nashville Railroad Co., 823 U.S. 192, 65 S.Ct. 226, 89 L.Ed. 178 (1944). The Court held there that the duty of fair representation required the union to represent minority union members without hostile discrimination, fairly, impartially, and in good faith: So long as a labor union assumes to act as the statutory representative of a craft, it cannot rightly refuse to perform the duty, which is inseparable from the power of representa- tion conferred upon it, to represent the entire membership of ies FS See Parklané, 439 U.S. at 326 #. 5,99 S.€t. at 649 A. 5: Smith, 730 F.24 at 1057; Spilman, 656 F.24 at 228. ' See Blonder-Tongue, 402 US. at 323.91 S.Ct. at 1439; Smith, 730 F.24 at 1057. er A-133 Opinion (4) the party agaifist whom estoppel is sought must havé had a full and fait opportunity to litigate the issué in the priof proceeding.‘ Applying théesé principles to the facets of this easé, it was proper for the District Court to invoke doctrines of estoppel and judicial admission to préclude the City from denying the facts of prio discrimination that it had earlier demonstfated and con- ceded. Seé Baker, 483 F.Supp. 930 (E.D. Mieh.1979). How- évét, it was incorrect for thé District Court to then Fély on these findings as the solé basis for making a very significant modifica- tion to the voluntary plan by disallowing any further layoffs until the goals of the plan are met. (2] In Bration, we meérély fecognized as a sufficient justifi- cation for its voluntary plan the City’s own determination that it had discriminated in the past. We therefore held that the City’s institution of a voluntary affirmative action plan was constitu: tionally permissible. See Bratton 1, 704 F.2d at 886-90. This is a different issue from whether a constitutional violation has occurféd which mandates a court-ordered remedy. See Brat- ton If, 712 F.24 at 223; Bration 1, 704 F.2a at 902 (Merritt, J., dissenting). ' was theréforé improper for the District Court to rely solely on the Brat/on findings and conclusions to set aside the féversé seniority provision of thé collective bargaining agree- ment. The constitutional and social policies that permit affirtnia- tive action do not mandate it. Such a rulé would only lead employers to rejéet voluntary affifmative action at thé outset so as not to compromise their flexibility in the future when redue- tions if foreé become nécessaty. The court in Bratton did not impose a legal duty on the City to hire of rétain the particular employees being laid off here. Judicial approval of a voluntary affirmative action plan doés not créaté a contfact of permanent employment of ifivalidaté or ‘See Haring » Prosise. 462 US. 306, 313, 103 S.Ct. 2368, 2373, 76 L.Fd.24 595 (1983); Allen v McCurry, 449 U.S. at 95, 101, 101 SEF. at 415, 418: see generally Restatement (Second) of Judgments § 29 (1982). ene ll A-134 Opinion modify a collective bargaining agreement providing for layoffs on the basis of seniority. The District Court erred in reading the doctrine of collateral estoppel to modify a previously voluntary affirmative plan and thereby foreclose application of the bona fide seniority layoff provisions of the collective bargaining agreement. On the second issue presented on appeal, the District Court, in deciding a pendent state claim, held that the Detroit Police Officers Association breached the duty of fair representation it owed to its minority members under Michigan law. This finding was predicated upon the union’s “perfunctory and passive” behavior in response to the layoffs at issue in this case. See NAACP v. DPOA, 591 F.Supp. at 1219. The Court found that the breach occurred because the union did not fight the layoffs forcefully or effectively. At the outset we should note what the finding was not predicated upon: There was no finding of inten- tional discrimination by the union against its members. The District Court stated that the union had not been found guilty of intentional discrimination, and that its defense of the bona fide seniority provision was not improper. Jd. The District Court’s finding of liability instead stemmed from the union’s action “as a whole” in response to the threatened layoffs, not its “defense of any particular position.” Jd. To remedy this alleged breach of the duty of fair representation, the District Court ordered the union to integrate black officers into its leadership structure within one year. Courts are reluctant to allow the electoral processes of a union to be abridged. In Donovan v. Illinois Education Ass'n, the Seventh Circuit struck down a union’s voluntary plan to allocate a certain percentage of its elected offices to minorities where there had been no finding of prior intentional discrimina- tion by the union. See 667 F.2d 638, 640-42 (1982) (applying federal labor laws). [3] The union is concededly the exclusive bargaining agent under state law for all Detroit police officers below the rank of A-135 Opinion sergeant.’ Public employees of the political subdivisions of a state are not governed by the federal labor laws. See 29 U.S.C. § 152(2) (1982). Therefore, the laws of Michigan define the permissible contours of the relationship between the union and its members. See Mich.Comp.Laws § 423.201 et seg. (1978). In Goolsby v. City of Detroit, 419 Mich. 651, 660-61 n. 5, 358 N.W.2d 856, 861 n. 5 (1984), the Michigan Supreme Court expressly recognized the union’s duty of fair representation under the state’s labor law. The Goolsby Court generally adopted the fair representation standard enunciated by the United States Supreme Court in Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967). Under this analysis, the duty of fair repre- sentation is comprised of three distinct responsibilities: “(1) ‘to serve the interests of all members without hostility or discrimina- tion toward any’, (2) ‘to exercise its discretion with complete good faith and honesty’, and (3) ‘to avoid arbitrary conduct’.” See Goolsby, 419 Mich. at 664, 358 N.W.2d at 863 (quoting Vaca, 386 US. at 177, 87 S.Ct. at 909). A union’s failure to comply with any one of the three responsibilities constitutes a breach of its duty of fair representation. /d. The general question facing the Court in Goolsby has a superficial similarity to the issue facing our Court—absent improper motive, when does a union’s unexplained failure to act constitute a breach of its duty of fair representation? In Goolsby, the union failed to follow through on grievance proceedings brought on behalf of a group of its members. This failure to further process the grievance was without explanation but there * The union was granted this authority by the Public Employment Relations Act, Mich.Comp. Laws § 423.211 (1978), which provides in pertinent part: Representatives designated or selected for purposes of collective bar- gaining by the majority of the public employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the public employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment or other conditions of employment... . A-136 Opinion was no evidence of bad faith on the part of the union. The question facing the Court was whether this unexplained failure to act met the third prong of the Vaca standard which prohibits arbitrary conduct. The Goolsby Court held that a union’s unexplained failure to process the grievances of its members could constitute arbi- trary conduct sufficient to meet the third prong of the test. See 419 Mich. at 679, 358 N.W.2d at 870. The Court further held that no bad faith on the part of the union was necessary to meet the third prong of the test. [4] The question presented ia this case differs in one signifi- cant respect from that presented in Goolsby. In our case, the District Court held that the union’s failure to act forcefully on behalf of its members in response to threatened layoffs consti- tuted a breach of the duty of fair representation. The union’s duty to process grievances on behalf of its members, which was at issue in Goolsby, is an essential linchpin of the collective bargain- ing process. In our case, under Michigan law, a public employer’s initial decision to lay off is a permissive subject of bargaining. Local 1277, AFSCME v. City of Center Line, 414 Mich. 642, 665, 327 N.W.2d 822, 831-32 (1982). Therefore, the union had no mandatory duty to act on behalf of its members in response to the threatened layoffs.* Absent a duty to act, failure to act forcefuily does not breach the union’s duty of fair representation. See e.g. B. Gorman, Basic Text on Labor Law 706 (1976). This does not mean that other circumstances may not arise which would create a duty on the part of the union to bargain against threatened laYoffs. For example, if federal or state law prohibited the layoffs, or if the voluntary affirmative action plan or the collective bargaining agreement did not permit the layoffs, then the union may have had a duty to bargain against them. In the context of this case, however, we have held that the District * The union remains under a duty to bargain over the impact of the layoff decision on workload and safety. See Center Line, 414 Mich. at 661-66, 327 N.W.2d at 830-32. None the less, this is not an issue in this case. A at el ng OE A Mat iE A-137 Opinion Court erred in applying principles of collateral estoppel to create a constitutional obligation on the part of the City to avoid these layoffs. Moreover, the voluntary affirmative action plan did not address layoffs, and the collective bargaining contract between the parties expressly provided for layoffs to be made strictly on the basis of reverse seniority. The District Court specifically found the seniority provision to be bona fide. NAACP v. DPOA, 591 F.Supp. at 1219. For these reasons, based upon the facts set forth in the District Court’s opinion, the union was under no special obligation to bargain against these layoffs. The failure to bargain against layoffs could also have been found to be evidence of bad faith or discrimination on the part of the union. However, the District Court did not find that the union was improperly motivated in its reaction to the threatened lay- offs. Rather, the District Court held that the union’s failure to act alone constituted a breach of the duty of fair representation. Absent a finding of intentional discrimination or other improper motivation, the union’s mere failure to bargain forcefully enough in a permissible context does noi by itself constitute bad faith or discrimination. The plaintiffs also allege that the union violated 42 U.S.C. § 1981. The District Court did not address this issue. Accord- ingly, we reverse the District Court’s injunctive orders against the City and the union and remand for further proceedings consistent with this opinion. A-138 Opinion NAACP, DETROIT BRANCH; The Guardians, Inc.; Brady Bruenton; Cynthia Martin; Hilton Napoleon; Sharron Randolph; Betty T. Roland; Grant Battle; Cynthia Cheatom; Evin Fobbs; John Hawkins; Helen Poelinitz, on behalf of them- selves and all others similarly situated, Plaintiffs, Vv. DETROIT POLICE OFFICERS ASSOCIATION (DPOA); Thomas Schneider; President of the DPOA; City of Detroit, a Michigan Municipal Corporation; Mayor Coleman A. Young; Detroit Police Department; Board of Police Commission- ers; Chief William Hait, Governor William Milliken; and the Michigan Employment Relations Commission, Defendants. No. 80-73693-DT. United States District Court, E.D. Michigan, S.D. Jan. 13, 1988. Black police officers brought action against city and union in which it was alleged that city violated affirmative duties imposed by previous approval of city’s voluntary affirmative action plan and that union breached duty of fair representation. The United States District Court for the Eastern District of Michigan, 591 F.Supp. 1194, enjoined city from laying off police officers and found that union had breached duty of fair representation to black members, and appeal was taken. The Court of Appeals, Merritt, Circuit Judge, 821 F.2d 328, reversed and remanded. On remand, the District Court, Gilmore, J., held that: (1) officers could not maintain § 1983 action against union; (2) officers could maintain § 1983 action against city; and (3) union’s motion for summary judgment on § 1981 claim was without merit. Ordered accordingly. A-139 Opinion 1. Civil Rights— 13.5(4) Dismissal of black police officers’ § 1983 action against police officers association was required; actions of association did not constitute state action. 42 U.S.C.A. § 1983. 2. Courts—9%1) Under doctrine of “‘law of the case,” decision on issue of law made at one stage of case becomes binding precedent to be followed in successive stages of same litigation; like stare decisis, it protects against relitigation of settled issues and assures obedi- ence of inferior courts to decision of superior courts. See publication Words and Phrases for other judicial constructions and definitions. 3. Courts—9%1) After law of the case is determined by superior court, inferior court lacks authority to depart from it. 4. Limitation of Actions—58(1) Black police officers’ § 1983 action against city was not barred under state’s three-year statute of limitations period which governed claims of general injuries to person; findings of fact from prior opinion, concerning events within statute of limitations, provided evidence that race was motivating factor in city’s recent actions to lay off black police officers. 42 U.S.C.A. § 1983; M.C.L.A. § 600.5805(8). 5. Courts—9%1) Black police officers were entitled to maintain § 1981 claim against union despite fact that in original opinion, district court noted that no one had previously brought action against union in which union was found guilty of intentional racial discrimination; court had previously found that union had history of racial hostility and indifference to rights and needs of black officers, A-140 Opinion that there was absence of black representation at leadership levels of union, and that union did not respond aggressively to layoffs of black officers. 42 U.S.C.A. § 1981. 6. Civil Rights— 13.10 Evidentiary hearing, was necessary to determine whether employment discrimination action against city and police union was moot as city allegedly recalled discharged black police officers and majority of membership of union was now made up of minorities. Thomas Atkins, Brooklyn, N.Y., Barnhart and Mirer by Jeanne Mirer, Gary Benjamin, James W. McGinnis, Detroit, Mich., for plaintiffs. Walter S. Nussbaum, Farmington Hills, Mich., for defend- ants Detroit Police Officers Ass’n, David Schneider, President of DPOA. Frank W. Jackson, Asst. Corp. Counsel, Detroit, Mich., Daniel B. Edelman, Washington, D.C., Terri L. Hayles, Asst. Corp. Counsel, Detroit, Mich., for defendants City of Detroit, Mayor Coleman A. Young, Detroit Police Dept., Bd. of Police Com’rs, Chief William Hart. OPINION GILMORE, District Judge. This matter is before the Court upon remand from the Court of Appeals.' Before the Court are two motions; defendant City of Detroit’s (City) motion for entry of judgment, and DPOA’s motion for summary judgment concerning the 42 U.S.C. §§ 1981 and 1983 claims. ' This Court's original opinion is found at 591 F.Supp. 1194 (E.D.Mich. 1984), and the Court of Appeals* opinion is found at 821 F.2d 328 (6th Cir.1987). A-141 Opinion For the reasons set forth below, the Court will deny both motions, except for the section 1983 claim against the DPOA. This leaves the Court with the much more difficult question of whether the entire matter is moot. A discussion of that issue is found in pari IV of this opinion. The issue for determination in the City’s motion for entry of judgment is whether the Sixth Circuit’s mandate forbids any retrial of liability issues and requires the entry of judgment for the City. [1] With reference to the DPOA, the Sixth Circuit reversed the judgment of this Court finding a breach of the duty of fair representation and remanded it to this Court to address the 42 U.S.C. § 1981 claim. The issue here is whether this Court is foreclosed from considering the section 1981 claim in light of its findings on the breach of the duty of fair represeniation. The DPOA also seeks summary judgment on the 42 U.S.C. § 1983 claim not addressed by this Court or the Sixth Circuit. The Court grants this summary judgment because the actions of the DPOA do not constitute state action. {2,3] The Court must first consider what authority it has to act under the opinion and mandate of the Sixth Circuit. This requires a consideration of the doctrine of the “law of the case.” Under that doctrine, a decision on an issue of law made at one Stage of a case becomes a binding precedent to be followed in successive stages of the same litigation. Like stare decisis, it serves the dual purpose of: (1) protection against the re-litiga- tion of settled issues; and (2) assuring the obedience of inferior courts to the decision of superior courts. After the law of the case is determined by a superior court, the inferior court lacks author- ity to depart from it. See 1B J. Moore, J. Lucas & T. Currier, Moore's Federal Practice 4 0.404(1), at 118 (2d ed. 1984) (hereinafter Moor [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_1503%3A2. Public record. Not legal advice.