Appendix — Spallone v. United States

Supreme Court brief1989

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UNITED STATES OF AMERICA and YONKERS BRANCH-

NATIONAL ASSOCIATION FOR THE ADVANCEMENT

OF COLORED PEOPLE, et ai.,

Respondents.

Appendix to Petition for a Writ of Certiorari to the United

States Court of Appeals for the Second Circuit

James D. Harmon, Jr.

Counsel of Record

Bower & GARDNER

110 East 59th Street

Mew York, NY 10022

(212) 751-2900

Attorneys for Petitioner

Table of Contents.

Page

EXHIBIT A—Order of United States District Court

for the Southern District of New York, Dated

PE ab dk cb ode ddedsoceccceedese

EXHIBIT B—Letter From Hon. Leonard B. Sand,

U.S. District Judge, to All Counsel, Dated

PPE aLoboccdecdcdébtoedoceccoéce

EXHIBIT D—Long Term Plan Order of United

States District Court for the Southern District

of New York, Dated June 13, 1988 .........

EXHIBIT E—Opinion of United States Court of Ap-

peals for the Second Circuit, Dated August

EXHIBIT F—Order of Hon. Leonard B. Sand,

U.S.D.J., Dated August 3, 1988............

EXHIBIT G—Order of Hon. Leonard B. Sand,

U.S.D.J., Dated August 2, 1988, Adjudicating

City of Yorkers in Civil Contempt..........

EXHIBIT H—Decision of United States Supreme

Court Dated September 1, 1988, on Applica-

EE ee

EXHIBIT |—Order of Hon. Leonard B. Sand,

U.S.D.J., Dated May 28, 1986 .............

Page

EXHIBIT J—Opinion of Hon. Leonard B. Sand,

U.S.D.J., Dated July 10, 1987 ....... 2.2...

uity, Dated January 28, 1988 ..............

EXHIBIT M—Transcript of Hearing Dated January

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SUED oc ccececcoecconcsedsinneieiies

EXHIBIT O—Transcript Dated September 2, 1988

EXHIBIT P—The Affordable Housing Ordinance . .

EXHIBIT Q—Transcript of Hearing Dated Septem-

A ee eee

EXHIBIT R—Affidavit of Peter Chema Dated Au-

Gals US, GED cccccccecedcscomeas

Uo)

EXHIBIT A—Order of United States District Court for the

Southern District of New York, Dated July 26, 1988.

(31)

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN District OF NEw YORK

UNITED STATES OF AMERICA,

Plaintiff,

and

YONKERS BRANCH—NAACP, ef ai.,

Plaintiffs-Intervenors,

Vv.

YONKERS BOARD OF EDUCATION, ef al.,

Defendants.

80 CIV 6761 (LBS)

ORDER

Part VI of this Court’s May 26, 1986 Housing Remedy Order

required the City of Yonkers to submit, by November 15, 1986,

Ee a ee

a Long Term Plan for affordable housing units. It is beyond

dispute that the City has defaulted on this obligation. Specifi-

cally, the City of Yonkers refused to submit such a plan on No-

vember 15, 1986. Furthermore, despite its agreement in the

January 28, 1988 First Remedial Consent Decree in Equity to

adopt no “later than 90 days after entry of [the January 28,

1988 decree]”’ a legislative package of incentives for developers

to encourage development of 800 units of affordable housing,

and this Court's entry of the Long Term Plan Order on June

13, 1988, the City has failed and refused to enact such legisla-

tion. On June 28, 1988, the City Council defeated a Resolution

stating that the City would enact such legislation. In its Mem-

orandum (32) filed on July 11, 1988, the City further stated

that “the City has indicated by the defeat of the Resolution

. . . that it will not voluntarily adopt the legislation contem-

plated by [the Long Term Plan] Order.” City of Yonkers Mem-

orandum of Law in Opposition to Plaintiffs, Proposed Order,

p. 4. This Court will tolerate no further violation of its lawful

orders and accordingly enters this Order.

1. The City of Yonkers is hereby ORDERED to enact, on or

before August 1, 1988, the legislative package relating to the

long-term plan as described in Section 17 of the First Remedial

Consent Decree in Equity dated January 28, 1988 and the

Long-Term Plan Order dated June 13, 1988.

2. It is further ORDERED that, in the event the City of

Yonkers fails to enact the legislative package on or before Au-

gust 1, 1988, the City of Yonkers shall be required to show

Cause at a hearing before this Court at 10:00 a.m. on August 2,

1988, why it should not be held in contempt, and each individ-

ual City Council member shall be required to show cause at a

hearing before this Court at 10:00 a.m. on August 2, 1988, why

he should not be held in contempt.

3. It is further ORDERED that, if the necessary legislation

is not passed on or before August 1, 1988, and the City cannot

demonstrate why it should not be held in contempt, beginning

on August 2, 1988, the City shall be subject to daily fines until

such time as the City has purged itself from contempt by enact-

ing the legislation. The City’s fine shall be $100 for (33) the

first day and the daily rate shall be doubled for each consecu-

tive day of non-compliance. Said fine shall be payable by a

check drawn to the “Clerk, Southern District of New York”’

and the City Manager shall cause said check to be delivered to

the Clerk of the Court no later than 4:30 p.m. on each day that

the Clerk’s Office is open and shall be drawn for the amount of

the fine incurred for the previous day. The check to be deliv-

ered on a Monday or day after a holiday shall include all fines

incurred with respect to the days on which the Clerk’s Office

was not open. The proceeds of said checks shall be paid into

the Treasury of the United States for general purposes and

shall not be ear-marked, escrowed, or otherwise allowed for

any special purpose or fund. Fines paid Pursuant to this Order

shall not be refunded even in the event that the City eventually

ceases its contumacious conduct.

4. It is further ORDERED that, if the necessary legislation

is not passed on or before August |, each of the Council mem-

bers who fails to vote in favor of enactment of such legislation,

and has not demonstrated why he should not be held in con-

tempt, shall be personally fined $500 per day every day (but

not doubling) until such time as such individual has purged

himself from contempt as described below or the City has en-

acted the legislation. Said fine shall be payable by a check

drawn to the “Clerk, Southern District of New York” and shall

be delivered to the Clerk of the Court no later than 4:30 p.m.

on each day that the Clerk’s Office is open and shall be drawn

for the amount (34) of the fine incurred for the previous day.

The check to be delivered on a Monday or day after a holiday

shall include all fines incurred with respect to the days on

which the Clerk’s Office was not open. The proceeds of said

checks shall be paid into the Treasury of the United States for

general purposes and shall not be ear-marked, escrowed, or

otherwise allowed for any special purpose or fund. Fines paid

pursuant to this Order shall not be refunded even in the event

that an individual ceases its contumacious conduct. Fines im-

posed by this paragraph shall be paid personally by cach indi-

vidual Council member and under no circumstances shall any

City funds be used or appropriated for such purpose. An indi-

vidual may purge himself by voting to enact the necessary legis-

lation. However, if the legislation is not passed and on any sub-

sequent vote such individual again fails to vote in favor of the

legislation, he or she shall once again be personally fined $500

per day until such time as such individual has once again voted

in favor of the legislation or the City has enacted the legisla-

tion.

5. It is further ORDERED that, if the necessary legislation

is not enacted by on or before August 10, 1988, any Council

member who then remains in contempt shall be committed on

August 11, 1988 to the custody of the United Stated Marshall

for imprisonment until such time as the City has enacted the

legislation or such member has purged himself from contempt

as provided in paragraph 4. The fines described in paragraph 4

shall continue during any time of imprisonment.

(35) 6. It is further ORDERED that the Mayor of Yonkers

shall convene a special session of the City Council for the pur-

pose of voting on the legislative package at least once a week

beginning on August 1, 1988, or more frequently if so re-

quested by any Council member. Any Council member who is

imprisoned pursuant to paragraph 5 above shall be released for

the purpose of attending such meetings and for no other pur-

pose.

7. It is further ORDERED that the City shall forthwith de-

liver a copy of this Order to the New York State Emergency

Finacial Control Board for the City of Yonkers.

8. It is further ORDERED that the Mayor of the City of

Yonkers shall by August |, 1988 post in a conspicuous place in

all public buildings a copy of this Order together with the fol-

lowing notice:

All employees of the City of Yonkers are hereby put

on notice that failure to comply with, or interference

with implementation of, the court order attached here-

with may subject any employee of the City of Yonkers

to personal contempt sanctions imposed by the court.

It is so ORDERED, this 26 day of July, 1988.

LEONARD B. SAND

United States District Judge

EXHIBIT B—Letter From Hon. Leonard B. Sand, U. S.

District Judge, to All Counsel, Dated July 28, 1988.

UNITED STATES DISTRICT COURT

SOUTHERN District oF New York

New York, New York 10007

July 28, 1988

Re: U.S.A. v. Yonkers, et al.,

TO ALL COUNSEL:

With respect to this Court's Order of July 26th, 1988, that

specific Order of the Court will be satisfied if the City Council,

on or before August Ist, adopts a resolution committing itself

to enact the Affordable Housing Ordinance within the mini-

mum time prescribed for notice pursuant to state law.

Regardiess of what action the City Council does or does not

take on or before August Ist, counsel for all parties are to ap-

pear before the Court on Tuesday, August 2nd, at 10:00 A.M.

At such time, if called upon, they are to be prepared to state

their views with respect to the enclosed proposed Order.

Very truly yours,

LEONARD B. SAND,

United States District Judge

EXHIBIT C—Transcript of Hearing Held August 2, 1988.

(143)

UNITED States District Court

SOUTHERN District oF New York

UNITED STATES OF AMERICA

and

YONKERS BRANCH NAACP, e? ai,

Plaintiff Intervenor

against

YONKERS BOARD OF EDUCATION, CITY OF YONKERS,

AND YONKERS COMMUNITY DEVELOPMENT AGENCY

80 Civ 6761 LBS

Defendants

August 2, 1988

10:00 a.m.

The Court: I have attempted unsuccessfully to obtain a

larger courtroom for these proceedings and | understand there

are people outside who cannot be allowed in because we are

filled to capacity. | regret that. There are many other matters

that are taking place in this courthouse today.

This court entered an order on July 26th which among other

things ordered the City of Yonkers to take certain action on or

before August Ist and provided that if that action were not

taken, this hearing would be held to show cause why the City

of Yonkers should not be held in (144) contempt and each indi-

vidual city council member shall be required to show cause at a

hearing before this court at 10 a.m. on August 2nd why he

should not be held in contempt.

For the record, Mr. Sculnick, did the city council on or be-

fore August Ist take the ordered action?

Mr. Sculnick: They took two actions last night.

First a public hearing has been set for August | Sth on appro-

priate notice under state law to have a public hearing, after

which the city council would be entitled to vote on the zoning

ordinance that has been required under the court's long-term

plan order. And with respeci to a resolution of intent, to adopt

that ordinance, the city council defeated that resolution of in-

tent by a vote of 4 to 3 last night.

The Court: Are there present in the courtroom this morning

the four members of the city council who voted against the res-

olution of intent?

Mr. Sculnick: Yes, there arc. In fact all members of the city

council are present in the courtroom today.

The Court: Very well.

Mr. Sculnick, | will hear you with respect to why the City of

Yonkers should not be held in contempt. You may proceed.

Mr. Sculnick: Your Honor, | am here today (145) represent-

ing the municipal corporation of the City of Yonkers not the

individual council members. With respect to the City of

Yonkers and in that regard, your Honor, when | refer to the

City of Yonkers, | an to refer to the municipal corporation.

When | refer to the city council, | will do so specifically.

The city opposes the imposition of fines or other contempt

sanctions for three reasons: First the city has urged for at least

the last three or four weeks that this is unnecessary and regreta-

ble confrontation between the federal court and the city coun-

cil. The city urged back in July, at the hearing date on July

12th I believe, the return date for the joint motion by the

NAACP and the government for the proposed order that was

by .

The Court: The city’s sole proposal was that the city do

nothing, but that the court and the court alone act. Is that ac-

(146) Mr. Sculnick: With respect to the adoption of the zoning

ordinance, that is correct. After the city council had failed to

As a result of the court's decision to enter the July 26th order

which is the basis for the hearing today, that order sets forth

should the city council fail to adopt the zoning ordinance, fines

would commence against the City of Yonkers in the amount of

$100 per day for the first day doubling each day thereafter.

The city submits that fines of that magnitude are devastating

and will bankrupt the city within a matter of approximately

three weeks probably effectively sooner than that. In addition,

we have been notified by Moody's Investor Service, one of the

bond rating agencies, they issued a credit report on July 29h

which indicates that depenving on the outcome of last might's

vote and the outcome of any proceedings today, that they

would take “appropriate action” with respect to the city’ bond

rating.

We believe that in reference to appropriate action means

either the suspension of the city’s bond rating or actually low-

ering the city’s bond rating, which is B-AA, which is the lowest

investment grade under the Moody's rating system. Any lower:

ing of that bond rating or (147) the suspension thereof would

completely preclude the city from access to the capital markets.

That would have extraordinarily negative consequences for

at least two reasons: First of all, it would prevent the city from

carrying forward any existing capital projects. It would in-

ty ee may 1 respond to (148) those

Het .

of all, | just want to make it clear that no

ure

than the city council can vote to bring the

directed to take is to amend the zoning

. In other words, the nature of the act

city council would pass

any action at this point

The Court: What | am trying to say—

Mr. Sculnick: That the city manager in this administration

has taken good faith steps within their (149) power to achieve

compliance with the court order.

The Court: The city manager is not the person who is subject

to this order. His good faith is not an issue.

Mr. Sculnick: He is the chief administrative officer of the

city, and I put on the record and before this court's considera-

tion that he has taken efforts to comply with the order; and,

therefore, given the efforts by the city's administration to com-

ply, | urge that imposing fines against the city would be unfair

and to

oe its obli-

now

onder by order, but in the way in which any reapemamit an’

munity concerned about the (151) welfare of its citizens func-

tions. That is not to be -

> gong accomplished by thes court adopt

against the other half of the city council people Those days arc

gone

ordinance The text of that ordinance

was drafted by experts for the City of Yonkers, the provisions

wn that ordinance for the most part embodying matters which

were agreed upon during that brici euphoric period of con-

for accomplishing the remedial purpose of this order which

causes this to be the issue which the city council puts itself in

the position in which it finds itself this morning.

Mr. Sculnick: Your Honor, may | respond to some of your

comments?

The Court: Please do.

Mr. Sculnick: The first issue that you raised is that the fed-

eral court should act only when there is no responsible state or

local authority that will act. In this case only the City of

Yonkers is a defendant. So | think it is taking a comity a bit too

far to say if other responsible state authorities fail to act. !

think that is putting an unfair burden on the state’s respon-

sibilities.

The Court: Unfair burden on the state to have a respon-

sibility when a city of almost 200,000 people totters on the

brink of bankruptcy, makes itself a symbol of defiance to a

federal court, acts in a manner which is so devastatingly ad-

verse to the interests of its citizens?

(153) It is too much to ask of state officials that they respond

to that type of an emergency?

Mr. Skulnick: | think it is one thing to say that they should

be invited to participate. It is another thing to say that the

court should refrain from taking action which it is empowered

to take awaiting the state taking their steps.

My only point is that | don’t think that the principal you

have enunciated should prevent this court from taking the steps

that the city urges, that is, the promulgation or the zoning ordi-

nance.

The Court: We get into a Alfonse Gaston—if | can use that

inappropriate reference between—this court and the Emer-

gercy Financial Control Board which | know is carefully mon-

itoring this case and has its representative present at all times.

The Emergency Financial Control Board awaits this court's ac-

tion. This court awaits the Emergency Financial Control

Board’s action and nothing happens.

When the City of Yonkers made an application to this court

and said, “‘we will consent to the entry of a judgment against

us for $29 million not to build 200 units of public housing we

had agreed to build in 1980 and which would be built with

“federal funds”, when the City of Yonkers took that Position,

it is clear that it crossed the (154) line of any form of fiscal or

other governmental responsibility.

So what we are confronted with, and | don’t fault the city

manager, what we are confronted here with really is a total

breakdown in any sense of responsibility.

What we have here is competition to see who can attract the

greatest notoriety, who will be the political martyr and without

regard to what is in the best interests of the City of Yonkers.

Mr. Sculnick: And that is exactly why, your Honor, we urge

the court not to take the steps which would give the counsel

members who chose to vote no that notoriety.

The Court: Has the City of Yonkers made an application to

the Emergency Financial Control Board? Has any representa-

tive of the City of Yonkers said, “We cannot govern the City of

Yonkers in a fiscally responsible fashion, step in. We welcome

The Court: Harry Truman said, “If you can’t take the heat,

get out of the kitchen.” If the city council can’t function, then

it should acknowledge the fact that it can’t function. If it can’t

follow federal law, lawful federal court decrees, and if it can’t

function in that (155) fashion, then it is a nonfunctioning en-

tity. And at least it should have the responsibility to acknow!l-

edge its own inability.

Mr. Sculnick: Your Honor, | guess we have debated Civic is-

sues before, but | think that would quite frankly be the last

thing in my opinion that the city council would do: To vote to

gO Out of existence on this kind of issue. | think that is unre-

alistic.

The Court: You think it is unrealistic for the city council to

Say, “We are at an impass. We are at a point where unless

some other action is taken, Yonkers will be bankrupt. It will

lack the ability to borrow money essential to the functioning of

any community. It will involve a massive curtailment of all

forms of public service. This we cannot permit to happen;

therefore, let us recognize that we can’t function. Let us estab-

lish a commission. Let us delegate to the commission. Us, the

city council, by our act, not an act imposed upon us by a fed-

eral court. We, by our own act, create the commission and we

bind ourselves to adopt and comply with its determination’’?

Mr. Sculnick: Perhaps that question is best asked of the

council members.

The Court: Yes. Is there anytning further you wish to tell me

why the of Yonkers should not be held (156) in contempt

and why ‘the court should not impose upon it the fines and

sanctions contained in the July 26th Order?

Mr. Sculnick: I think in summation, your Honor, the impo-

sition of the fines proposed in the court's order would have the

effect of severely damaging the city’s financial posture, but it

would be to the detriment of every Yonkers citizen. And in that

respect and in that respect in particular, we urge that in effect

it punishes the innocent, that it doesn’t necessarily coerce com-

pliance by the council members, but it would injure all citizens

of Yonkers.

And as a result, we respectfully request the court refrain

from imposing fines against the city and not follow through on

that proposal. Thank you.

The Court: Mr. Heffernan.

Mr. Heffernan: Good morning, your Honor. Your Honor,

we find ourselves in a very unfortunate situation once again.

And the United States believes this court has no choice. It has

to act. The City of Yonkers and four members of the City of

Yonkers’s council have acted clearly to defy this court and defy

this court's order just as they have in the past.

The court's order is clear. The court's order is unambiguous

and there has been clear defiance. Your Honor, the sanctions

here are clearly not punitive. As the (157) court said before, it

is a classic contempt situation. The court and plaintiffs here are

not here to punish anybody. It is not the obligation of the

United States here to fine somebody, to imprison s. mebody. It

is our Obligation to see that the orders of this court are obeyed.

That is why we have proposed the order which the court en-

tered last week. And that is why the court has to today take the

strong action necessary to comply compliance with its orders.

the orders of this court, and the contempt sanctions must be

imposed as the court has ordered. Your Honor, it is our strong

belief that if those sanctions are imposed, compliance will be

sue. It is the court's intent and belief which is clear that they

will be. Therefore, that combined with the fact that the con-

demnor, the City of Yonkers, holds the key to its own libera.

tion so to speak from the fines and potential jail sentences

lle

circuit imposed 15 day jail sentence upon a party, but there was

no act that party could take to free itself from the jail sentence.

The Court of Appeals was looking at that and wondering how

that could be deemed remedial. This is clearly not that case.

This is remedially intended sanctions.

I just want to make a couple of other comments. | think

what Mr. Sculnick enumerated in terms of the harms to the city

are like the city's willingness to spend $29 million to get out of

building 200 units of housing. What those statements do in my

opinion is not provide a reason or rationale for why sanctions

are inappropriate, they show the actual measure and extent of

the contemptuous conduct.

If the city here, four members of the the council, are willing

to bankrupt Yonkers rather than to let 4000 units, 3200 of

which are intended for market rate users, be built, that only is

a measure of the enormity of the hatred which exists. It is not

an argument against contempt.

Let me speak to the distinction which is in the papers the city

today tries to draw. Yonkers city council and the state law,

your Honor, is the governing body or the City of Yonkers. The

city administrator or city manager (160) and comptroller and

other officials are merely employees of the city council. That

they have here been somewhat independent and somewhat

more progressive is irrelevant legally because the legal entity in

Yonkers which can act is not the city administration. It is the

city council.

Mr. Heffernan | believe is accurate in saying that that dis-

tinction has no legal merit.

Finally, | believe, your Honor, and | just want to reiterate

the point made in the last court session that while the sanctions

here must be imposed, the court cannot be seen as having made

these threats and backing away from them. They are clearly le-

gally justified. In our judgment they are insufficient, and |!

think that is perhaps the central issue that we may talk about

later today.

What we had last night in the acting out and the attempt to

not let others into the city council meeting who have a different

point of view, and all of those tactics which frankly in a demo-

tion. But from their point of view, they are at the pinnacle of

winners.

I think the contempt is clearly justified against the city. This

court would be fully within its legal responsibilities and rights

and authority to impose contempt and the prudentias consid-

distinction between the city council and the city, those kinds of

distinctions are made all of the time in the law, and | think that

they are especially forceful in this case where the city council

members while clected and have the authority to take specific

actions under state law, there are greater manifestations of the

city at large. There are the citizens, the employees of the city,

and the people in the city who depend upon the city services.

The city administration takes responsibility to implement its

objectives in providing city services. So that | think that ‘e

many respects those distinctions are valid ones. It is a distinc-

tion we have long recognized Detween a corporation and its

board of directors, and | think that that analogy is somewhat

applicable here.

So although it is true that only the city council under state

law is authorized to take the actions that this court has or-

dered, for that very reason, it is unfair to fine the city since but

for the action of its council members, the city is powerless to

comply with the court's order. Therefore, in that sense, the

fines will have a disastrous impact on innocent people who are

unable to actually effectuate—

(163) The Court: A long time ago | used the analogy of a

factory that was spewing out polluting fumes to a communiy

and was ordered by a court to cease contaminating the commu-

nity. The response was, “well, we presented this to our board

of directors and we couldn't get a majority” or | think the

analogy was, “we are split 4 to 4.”

Mr. Sculnick: In that case the plant manager could have

turned the plant off. There were actions that could have been

taken to comply with the court order.

The Court: Turn off the City of Yonkers? Some people are

bent on just that course

Mr. Sculnick: That is indeed an unfortunate result that may

obtain and that is exactly why we are urging that the city not be

fined itself. Thank you.

The Court: The following constitutes the findings of fact

and opinion and conclusions of law of the court with respect to

the City of Yonkers and whether pursuant to this court's order

of July 26, 1988, it should be held in contempt. It is important

to recognize at the outset the true significance of this proceed:

ing. It would be difficult to imagine a clearer challenge to the

constitution of the United States and to a government of law

than that presented this morning.

If a federal court order designed to remedy racial discrumina-

tion can be flouted by a municipality (164) because that is what

l4c

appears to be the course of political expediency, then we no

longer live under a constitutional form of government. Then

one has to put an asterisk to the constitution and say, ‘“Pro-

vided, however, that if the community is sufficiently hostile to

remedial action designed to insure and protect these rights,

then all bets are off.”

The magnitude of the issuc before this court is no less than

that. The tragedy of this is that the victims of all that has hap-

pened are the citizens of Yonkers including, of course, the

members of the class on whose behalf this action was brought.

The extent of the resistance by the City of Yonkers and its elec-

ted officials and segments of its population to the enforcement

of remedial order of this court is unprecedented, and yet this is

the same community which in other contexts has shown that

with responsible leadership and a well motivated staff, much

can be accomplished.

I refer to the experience with respect to the school orders

which we will address later this week where there is every rea-

son to believe that in good faith the responsible Officials have

been carrying out the court's orders and with results which ex-

ceed expectations, and it is the same city.

The city council of Yonkers has chosen (165) deliberately to

defy the court with respect to an aspect of the remedy proceed-

ings which have in fact been the subject of very little contro-

versy. The City of Yonkers through its council has represented

to this court that there are no substantive objections to the af.-

fordable housing ordinance.

It is separate and apart from the public housing issues and

all the controversy which surrounded the designation for the

sites for that housing. It is very clear Yonkers has said, ““‘We

alone among the communities in this country will not Obey fed-

eral court orders because we perceive—we, the elected officials

perceive that it is Politically to our advantage to do so.” We

will address later this morning the question of individual re-

sponsibility of individual city council members.

The court finds that the City of Yonkers has been given ade-

quate notice of these Proceedings and an Opportunity to be

heard. The court finds that the City of Yonkers is in contempt

and indeed this is but the latest of a series of contcmpts, but

1Sc

this is the most immediate and most clearly defined. The court

rejects the contention that a dichotomy can be drawn between

the city and the city council. We addressed at some length in

our liability opinion this question of the spreading of authority

among different entities with a hope that responsibility will be

escaped by all.

(166) The City of Yonkers is in contempt because it intends

to be in contempt. No claim is being made of any procedural

defect. No claim is being made of a failure to understand or

perceive the consequences of the contempt. Yonkers chooses to

place itself in contempt and the consequences of that are the

responsibility of Yonkers and those who speak on its behalf.

Accordingly the court finds that the City of Yonkers is in con-

tempt and the court then, therefore, imposes upon Yonkers the

fines beginning on August 2, 1988, set forth in paragraph j of

the order of July 26th.

Therefore, there is to be delivered no later than 4:30 p.m.

today to the clerk’s office the check payable to the clerk, South-

ern District of New York. That is the responsibility under this

order of the city manager and | am sure there will be compii-

ance with that. Those fines will continue doubling each day.

Mr. Sculnick: Point of clarification on just that last sen-

tence. My reading of the order indicates that today is the first

day that the city be held in contempt, that that check is to be

delivered no later than 4:30 tomorrow reflecting the fine im-

posed today. Is that correct?

The Court: Yes. That is correct.

Now, the question raised then is how long does (167) this

continue? It will continue? It will continue as long as the city

council continues to defy the order of the court and the fines

will mount. This court is open at all times to any application

that may be made based on a change in circumstances which

would warrant a change.

I repeat—I say it over and over—that this court is not the

only institution which has the responsibility for protecting and

enforcing the constitution and the laws of this land. As so of-

ten happens, it is the very people who do not come forth when

they have the responsibility to act who are often heard to talk

about federal judicial activism. | believe no court has strained

l6c

harder or with greater patience to defer to state and local gov-

ernmei ihan this court has done.

The other officials of the State who have taken oaths-to pro-

tect and defend the constitution, the members of the Emer-

gency Financial Control Board and all others are on notice:

The course on which Yonkers is headed is clear.

Let me make one other point with respect to the fines that

perhaps | had not made clearer at an earlier date. | think Mr.

Sussman on behalf of the NAACP at one point expressed a

concern that there would be a period of contempt and then a

Period of compliance and then a further period of contempi. |

want to make it clear that it is this court’s intent that it occurs,

then, of course, (168) the level of subsequently daily fines Picks

up at the point at which it ended as a result of any previous

finding of contempt.

Anything further with respect to the City of Yonkers?

Mr. Sculnick: Yes, the city would apply for a Stay of the

court’s finding on contempt and imposition of fines and the

city would make the following specific Suggestion in that re-

gard: As I indicated earlier today, the city council took two ac-

tions last night. One of those actions was the setting down for

public hearing of the zoning ordinance and a Public hearing to

be held on August 15th. The city would Suggest that the fines

against the city be stayed until August 15th, and that if at that

time the council fails to adopt the ordinance, that at that point

the fines would resume as compounded for the intervening time

Period.

The Court: Mr. Sculnick, seated behind you are all of the

members of the city council of Yonkers. Are you making a

good faith representation to the court that if such a Stay were

granted, you have reason to believe that on August 15th, the

ordinance would be Passed? Are you making such a representa-

Mr. Sculnick: No, your Honor, | don’t have the factual basis

for making that statement.

(169) The Court: I know that you don’t and I did not mean

to create any personal embarassment. Let me deal with the

matter of August 15th. The question was raised | belicve by

your office after the July 26th order was signed in open court

17¢

concerning state law provisions with respect to the time for a

city council proceeding to amend the zoning law. Rather than

deal with the question of the extent, if any, to which those time

tables were superseded by the federal court order, just to obvi-

ate that question, the court indicated that it would suffice if

there were a declaration of intent, to adopt the resolution after

the requisite time period had elapsed. And that resolution was

defeated.

I have to repeat two points. One is there has been no sub-

stantive objection made to a single provision of the affordable

housing ordinance and the second is as | said in my earlier re-

marks the City of Yonkers is in contempt because it chooses to

be in contempt. It does not find itself inadvertently in this pos-

ture. This is not an instance of a miscalculation or a misap-

prehension or a mistake of law or of fact. The application for a

stay is denied. You have until tomorrow before you present

your first check.

The elevator leads to the Court of Appeals and the clerk’s of-

fice. Should you wish to make an application (170) to that

body, the Court of Appeals is now being alerted that such an

application may be made.

It is not in the interests of Yonkers to prolong this. How

many weekends should Yonkers spend similar to the last one?

There are instances in which delay or the opportunity for cool

dispassionate reasoning will alter the circumstances. This is not

such an instance. The application is denied.

Mr. Sculnick: Your Honor, may | briefly respond to the

court’s statements that there is no substantive dispute as to the

zoning ordinance?

The Court: Yes.

Mr. Sculnick: At our prior court hearing, | made the city’s

position clear that we had opposed the entry of the long-term

plan order and presented various specific objections to the

court and, of course, we stand by those objections. Otherwise

the statement is accurate.

The Court: By using the phrase substantive | meant to incor-

porate that by reference. We will take a bricf recess. After

which, we will deal with the matter of the individual city coun-

18¢

cilmen. May | have the names of the four city councilmen who

are subject to these contempt proceedings?

Mr. Sculnick: Vice-mayor Henry Spallone, Minority Leader

Longo, Edward Fagan, and Peter Chema.

(171) The Court: We will take a five-minute recess.

Mr. Sculnick: are the councilmen who voted in favor of the

ordinance excused from further Proceedings? It was our read-

ing of the July 26th order that all council members were re-

quired to attend today’s session. Are they excused from further

proceedings?

The Court: | would think that the magnitude of these pro-

ceedings is such— ;

Mr. Sculnick: They are welcome to attend, but | want to

clarify whether or not they are required to attend.

The Court: | won’t require them to attend. | would urge that

they do so. I can’t think of anything more important to the

City of Yonkers. If they can personally do so, | think they

should. If at some moment, if some matter may arise such as

arose a few moments ago in which it might become appropriate

to confer with the members of the city council, it would be

helpful to have them Present. Perhaps a quorum would be

needed.

(Recess)

The Court: Mr. Spallone, is he in the courtroom?

(Pause)

The Court: Do you have an attorney?

Mr. Spallone: No, | do not.

The Court: Do you wish to have an attorney?

Mr. Spallone: | would like to have time to get (172) one, but

| am prepared to make a Statement if | may.

The Court: How much time do you need to get an attorney?

Mr. Spallone: | think | would need at least 24 hours.

The Court: Well, Mr. Spallone, you know you have been on

notice for quite some time of the pendency of this.

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Mr. Spallone: | am still willing to make a statement. That

would be up to you.

The Court: Mr. Spallone, | think that—

Mr. Spallone: Your Honor, | know the consequences and |

recognize the position that | am in. And | have been—

The Court: I will adjourn the matter of your contempt until

10 a.m. tomorrow with the understanding and condition that

your fines will be, if imposed, will be retroactive to today.

Thank you. You may be seated.

Mr. Longo, you are here with counsel | believe.

Mr. Longo: Yes.

The Court: Who represents you?

Mr. Longo: Mr. Sykes.

The Court: Please step forward. You represent whom?

Mr. Sykes: Councilman Longo and Councilman Fagan (173)

as well.

The Court: Longo and Fagan. | will hear you with respect to

the question why they should not be held in contempt of this

court’s order of July 26th.

Mr. Sykes: First | would point out to the court that | was

retained in this matter early this morning; Consequently |

would like to have a reasonable adjournment in order to adc-

quately prepare myself and familiarize myself with this case.

_ The Court: You see there is or there has to be a realization

that we are dealing with an emergency situation here. Now, this

order was July 26th. Your clients had ample notice that this

motion would come and what the issues would be.

One of the things that we are fighting—and | use that term

advisedly—that the court is fighting are the efforts that are

made to achieve delay. | will hear you. We will rule on the mat-

ter this morning. If thereafter you should belicve that there is

some legal argument or theory or circumstance which you wish

to assert on behalf of your clients which was not available to

you this morning, you may make another application and | will

hear it.

Mr. Sykes: That is the purpose of this application. | don’t

think there was any certainty as to (174) which the council

would vote particularly with respect to-my client Mr. Fagan as

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to which the vote was taken las! night. | was not aware of the

contents of the order.

The Court: | am not faulting you, sir, if you were retained

this morning. | am Saying that your clients had full oppor-

tunity to know this and indeed I believe Mr. Pickelle made it a

part of the public record that his office would not represent the

individual city councilmen. Do you wish to be heard on the

merits on the order to show cause?

Mr. Sykes: Yes, I do. | would reiterate the need to have a

reasonable adjournment so that 1 could adequately represent

my clients in this matter.

The Court: | repeat that | will proceed this morning because

order; (175) therefore, they should not be found in contempt.

The Court: When you say they did not act in bad faith, they

court’s order? They were on knowledge that that was the conse-

quence of what they did. And good faith or bad faith is really

not the issue. The issue is: Did they consciously, deliberately

spect to the action taken by Councilmen Longo and Fagan in-

why Councilmen Longo and Fagan among other things voted

against the resolution of intent was because of this procedural

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defect and that but for this alleged procedural defect, they

would have voted in favor of the ordinance? Are you making

that representation to the court?

Mr. Sykes: Would the court instruct me with respect to the

resolution of the intent, passage of which (176) if I understand

it clearly, would have made the affordable housing ordinance a

fait accompli? \f that is the case and there is a procedural de-

fect with respect to the affordable housing ordinance, a /forti-

ori, | believe the councilmen are not acting in bad faith if they

believe there was a procedural defect with respect to the afford-

able housing ordinance.

The Court: And the question is: Is that the reason? Do they

now want it to be a matter of public record that but for the

so-called procedural defect they would vote for the housing or-

dinance? Is that what they are saying?

Mr. Sykes: Your Honor, I am saying that was a concern they

had among others. I think there were several substantive objec-

tions that they had to the affordable housing ordinance as well.

But in terms of their potential—

The Court: What are they? And did they move to amend it,

or did they put forth any suggested changes or modifications?

Mr. Sykes: I am speaking on information and belief. I be-

lieve these issues were addressed by Mr. Longo and Mr. Fagan.

I am sure the Court is aware of it.

The Court: The court is not aware of a single substantive

ojection as the term has been defined in the colloquy with Mr.

Sculnick to the affordable housing.

(177) Mr. Sykes: The primary concern is the procedural de-

fect we perceive with respect to the zoning amendment. On

that basis my clients acted the way they did. I don’t believe the

court could find that they were contemptuous in their actions.

The Court: Prior to August Ist, the city council of Yonkers

adopted a moratorium with respect to all housing and adopted

a resolution to rescind the seminary condemnation proceed-

ings, both of which resolutions I am told counsel for the city

council, counsel for the city, advised were unlawful, contrary

to the orders of this court and advised that they would take no

steps to implement them.

22c

There were no so-called procedural defects with respect to

those resolutions, were there?

Mr. Sykes: I am not familiar with that, your Honor.

The Court: Is there anything else you want to tell me?

Mr. Sykes: I just reiterate my request for a reasonable ad-

journment, your Honor.

The Court: Thank you, Mr. Sykes. Mr. Heffernan.

Mr. Heffernan: Your Honor, on the issue of counsel, it was

clear last week as represented to me by Michael Sculnick that

the city council persons had been amply informed that the city

representatives, namely Mr. (178) Sculnick and Mr. Pickelle,

were not going to represent him at this hearing.

They had more than ample notice since frankly this has been

going on for two or three weeks that we have been discussing

the order and content and what needed to be done for a long

time. They knew exactly what needed to be done. They had to

pass a resolution last night and they didn’t do it.

Quite frankly bad taith, good faith doesn’t make much dif-

ference. The issue here is: Are they in contempt of the court’s

order? They are plain and simple. They didn’t do it. I don’t

know if it can be more clear. They are covered under Rule 65

of the Federal Rules. As city council members they are bound

by this court’s order. In our view there is no question here that

they are in contempt.

The Court: Mr. Sussman.

Mr. Sussman: I belief that the motivation for the actions of

the council members who are now being discussed was best

made clear by their own words frankly rather than having some

other representation of what is being said as to their motives.

This morning in the Herald Statesman, Mr. Longo did ex-

plain publicly his vote and he said, “It is a typical case of the

hypocrisy of the rich and elitist looking down 4179) on those

who must work for everything they have.”

He is quoted as being attributed to him the fact that ‘‘The

judge’s order attacked the quality of life in Yonkers.’’ Mr.

Longo made other public statement comparing this court to a

dictator. We won’i gu into all of those. | know the court has

seen them.

23c

On the front page of the New York Times Mr. Fagar was

asked to explain his vote and | saw him on television last night

saying much the same thing. He said his vote ‘“‘was an act of

defiance. The people clearly wanted me to say no to the

judge.” !

Now, with all due respect to Mr. Sykes, | don’t really believe

for one moment that there is any procedure issue or any other

issue here. None was raised at the meeting last night. One of

the reasons we sought entry to the meeting is so we could hear

the debate and know the position, what was said in the situa-

tion.

I believe the court should require the city to produce a tape

of the meeting so it can be part of the record so no claim can be

advanced without a record that certain things were said and

meant and other matters.

The Court: Is there a tape which is in the possession of the

control of the city?

Mr. Sculnick: No, your Honor. An outside entity called Ca-

ble Vision prepares and produces the tape. (180) The city does

not have it.

Mr. Sussman: We are at a very great disadvantage. We can’t

go to the meeting and can’t hear the meeting.

The Court: Can’t go to the meeting. Will you explain it?

Mr. Sussman: | think it ‘s important because it—this kind of

situation is precisely the difficulty.

Mr. Sculnick: I want to correct my prior statement. I have

been advised there is a tape recording of the city council meet-

ing last night that the city has that the city clerk maintains. |

was thinking videotape.

The Court: i will deem that to be Court’s Exhibit A of today

and direct that a copy of it be furnished to the court by the

close today, at 4:30, and kept as a court document.

Mr. Sussman: Briefly Mr. Wallace, the branch president

called the city mayor’s office yesterday in the afternoon and in-

formed him it was the desire of Mr. Wallace and several other

branch members to attend the mecting and would like that ar-

rangements could be made so we could attend the meeting. The

court is well aware of the atmosphere and the problems with

the meeting.

24c

Mr. Wallace called me and indicated that the mayor felt that

I shouldn’t come to the meeting, etc., and (181) I indicated that

I felt given that we were going to be here on contempt, I didn’t

know if these people were going to take the stand. It was im-

portant that I attend the meeting and hear what occurred.

We were directed to report to a certain door between 7 and

7:30 and told we would then be escorted into the meeting. Mr.

Wallace, myself, and an associate of my law firm went to that

door about 7:25. We were placed literally in physical jeopardy,

in significant physical jeopardy.

What occurr.u was that we waited by this door. A crowd

amassed of about 125 or 150 people. Several police cars be-

tween us and this jeering crowd. We waited for literally 25 min-

utes before anyone even came although we were telling the po-

lice that we had this arrangement and we assumed they were

aware of it. Finally Mr. Sculnick came down and indicated

there was no room for us at the meeting. And we waited—

The Court: Mr. Sculnick personally advised you?

Mr. Sussman: Yes.

The Court: That you could not be admitted to the meeting

because there was no room?

Mr. Sussman: For us. The TV cameras were going and |

said, “I wish this were not a matter of public record.” | found

it embarrassing for him. It was so ridiculous. 1 (182) indicated

to him having conferred with Mr. Wallace that we had been

advised to report to that ¢oor at a certain time and that we had

been there then for about 20 or 25 minutes, we were subject to

all sorts of verbal attacks.

The Court: You were not—

Mr. Sussman: He came back again and told me again after

further conference the city felt that we couldn’t come to the

meeting. There was no room. Now, the point—

The Court: You will have the tape by 4:30 and anybody who

wishes will make arrangements. Any counsel in the case may

have access to the tape.

Mr. Sussman: | think the point is that the reasons these gen-

tlemen voted the way they did is clear from the public state-

ments. They have no privilege with respect to the statement.

They should be held in contempt and fined $500 a day. | dis-

25c¢

agree and | want to make it part of the record with any ad-

journment for Mr. Spallone who has been saying for a number

of months he wants to defy the judgment. I don’t see any basis

for any adjournment.

The Court: Mr. Longo, Mr. Fagan, would you step forward,

please?

Mr. Longo, you have heard what has been said this morn-

ing? Is there anything you wish to say to the court before |

make a determination with respect to contempt?

(183) Mr. Longo: Yes, your Honor. | think this is in re-

sponse to some of the comnient made by the counsel, and that

is that certainly the citizens of Yonkers ought to be afforded

the opportunity of a public hearing. For me to have voted in

favor of that ordinance before availing myself of the oppor-

tunity of the experts that are employed by the city and by the

public would have been wrong. It disenfranchises that public.

The Court: And that the reason for the vote—

Mr. Longo: And that is the reason for voting against the res-

olution. And it would seem in voting for the resolution it

would preclude that input, and I was not favorably disposed to

vote in favor of that. There was a public hearing for that ordi-

nance. It was set with no objection by any of the council mem-

bers. And in my remarks last evening I alluded to the fact that

the public was being disenfranchised.

The Court: You are representing to the court that was the

reason for your vote?

Mr. Longo: Yes

The Court: Mr. Fagan.

Mr. Fagan: The resolution that was put before us yesterday

would have in fact cut out all meaningful public input. And af-

ter the resolution passed, it wou!d (184) preclude input and any

subsequent changes to what may happen to that resolution.

That was the reason for my vote.

The Court: That was the reason for your vote? Are there any

other applications on behalf of Councilmen Longo and Fagan

other than those that have been stated? Are there any other re-

quests of any nature whatsoever?

Mr. Sykes: Not at this time.

—

26¢

The Court: The court finds that Councilman Longo and

Councilman Fagan are in contempt of this court’s order of July

26th. The court rejects as a frivolous pretext the claim that a

procedural defect under state law is the explanation for their

vote.

How much hypocrisy must be occasioned by this litigation?

One cannot say one thing to the world at large and make an-

other representation to the court. The court finds there has

been ample notice and that the commission of the contempt is

beyond dispute. Accordingly, the court finds you, Councilman

Longo and you, Councilman Fagan, in contempt and imposes

upon you personally a fine of $500 per day every day until such

time as you shall have purged yourself from contempt as set

forth in the terms of the July 26th order.

The fine shall be payable by a check drawn to the clerk, de-

livered to the clerk no later than 4:30 on each day that the

clerk’s office is open to the amount of (185) the fine incurred

for the previous day. The provisions pursuant to which you

may purge yourself of the contempt are set forth in the order.

You are further personally notified by the court pursuant to

the provisions of paragraph 5 of the order that if the necessary

legislation is not enacted by on or before August 10, 1988, and

I include in that just again to obviate this question of state law

and the dates contained in the state law provisions, a resolution

of the intent of the city council will be adequate for these pur-

poses. But if it is not enacted, and if such a resolution is not

enacted on or about August 10th, then you are subject to com-

mitment on August 11th to the custody of the United States

Marshals until such time as you have purged yourself of

contempt.

Do you understand?

Mr. Longo: Yes.

Mr. Fagan: Yes.

Mr. Longo: Yes.

Mr. Fagan: Yes, your Honor.

Mr. Sykes: May I be heard? | would make an application for

a stay of the court’s finding of contempt and imposition of

fines. ~

27¢

The Court: Fine is not payable until 4:30 tomorrow. I say to

you as I said to Mr. Sculnick, you are (186) certainly free to

_take the elevator, go up to the Court of Appeals and make

your application to that tribunal. The staff of the Court of Ap-

peals has been alerted to the fact such an emergency applica-

tion will be made; otherwise this court denies the stay.

I may say that, Mr. Sculnick and Mr. Sykes, if the Court of

Appeals requires a written order from you denying the stay,

prepare such an order and I will sign it forthwith.

Mr. Heffernan: Your Honor, for the record, | would like to

note the objection of the United States to any granting of the

Stay.

Mr. Sussman: NAACP shares that view.

The Court: There remains Mr. Chema.

Mr. Chema: I am represented by my attorney. May I come

forward?

The Court: Yes.

Mr. Harmon: I am James Harmon. Good mor.ing, your

Honor. My name is James Harmon. | am here, your Honor,

for one narrow purpose. | represent one man and as | under-

stand it having also been retained at 8 a.m. this morning, the

sole issue is whether there was a willful violation of a lawful

order of this court and whether any such violation was commit-

ted without justification.

To some degree I feel like | am the man who (187) landed

from Mars here this morning after a long history of litigation

in this case, being asked to come in and present to your Honor

the position of this one man who does not seck notoriety, who

is an ordinary person, who fulfills his position as a member of

the city council, a part-time position, who otherwise supports

his wife and family and who really, your Honor sees no future

in martyrdom.

So I come before your Honor asking you to understand that

it was not clear until this vote last night that Peter Chema was

going to need an attorney this morning.

The Court: I can’t accept that. I mean I accept that it was

not clear to you. I understand you have just been retained this

morning. I didn’t mean to be facetious, but the course on

28c

which Yonkers has been headed and has been headed for

months has been a very clear course.

This is not the first occasion on which this court has indi-

cated an intent to use its contempt powers should the need

arise. You know the nature of the fines, nor should it have

been any surprise to any responsible public official that he

would have a personal responsibility for his acts. It was very

simple.

The issues before the city council yesterday were clear issues.

There was a very explicit court order and the alternatives were

comply with the court order or not comply and be in contempt.

The consequences of being (188) in contempt were spelled out

chapter and verse in the court’s order of July 26th. So when

you say it wasn’t clear until this morning, I have to say it was

not clear to anyone who is not familiar with these proceedings. ~~

But it was crystal clear to anyone who was familiar with these

proceedings.

Mr. Harmon: What I mean by my statement, your Honor, is

that in theory the order was violated only after a vote was

taken. And it was not clear until after the vote was taken that

under any set of circumstances there, in fact, your Honor’s

court order would have been violated.

The Court: As I stated to Mr. Sykes, although this is the pre-

ciptating event, the straw that breaks the camel’s back so to

speak, there is a history here. The Department of Justice was

seeking contempt a few weeks ago when the city council

adopted two resolutions which it knew, which it had to know

were unlawful and in violation of orders of this court.

I don’t think they will be heard to say that they are so obtuse

as not to have fully appreciated the consequences of their ac-

tions.

Mr. Harmon: Yes, your Honor. | think although | must say

that | am not deeply familiar with the facts of this case, your

Honor, | do have some familiarity with the law of contempt.

And I would suggest that it is important (189) here, your

Honor, that this clash of constitutional obligation, not in any

way works to deprive the rights of this individual, Peter

Chema.

29c

I would suggest to your Honor—and | hope your Honor

would agree—that it is as important as to how your Honor

would reach a conclusion as to Peter Chema as well as to your

ultimate decision.

The Court: I think it is an extraordinary circumstance. |

know of no parellel for a court to say to elected official, ‘‘You

are in contempt of court and subject to personal fines and may

eventually be subject to personal imprisonment because of a

manner in which you cast a vote.” I find that extraordinary.

I find it so extraordinary that at great cost in terms of time

and in terms of money and energy and implementation of

court’s orders, I have sought alternatives to that. But they have

been unsuccessful. So it came down then to a very simple ques-

tion last night. And that is regardless of his personal views or

personal sentiments, whether he was going to obey a federal

court order or defy it. And that is the choice he made as crystal

clear as it could be.

Mr. Harmon: We would suggest to your Honor that sum-

mary disposition of this contempt, alleged contempt, is not ap-

propriate in this case.

' (190) The Court: Now, you have used a procedural ierm. You

_ dre talking about summary disposition. Is there any hearing or

other procedure that you seek?

Mr. Harmon: Yes, your Honor.

The Court: What is that? Tell me that.

Mr. Harmon: First of all, we believe and | would cite for the

general proposition Ketchen 706 Fed 2d 1266. The constitution

provides certain procedural safegurads for the person alleged

be be in civil contempt. Among those are right to counsel,

counsel adequately prepared to protect his interests, the clear

issue of intent and willfulness on his part which can in fact be

resolved by his credibility on the witness stand.

In addition, he has a right, we submit, to present witnesses

on his behalf.

The Court: Do you wish to hold an evidentiary hearing?

Fine. We will hold it forthwith. Does Mr. Chema wish to take

the stand?

Mr. Harmon: What I say is my retention by Mr. Chema was

at 8 a.m. We are not prepared to make the kinds of judgment

that we think that the constitution permits Mr. Chema to have

access to before proceeding before this court.

We respectfully request an adjournment to address and think

about it.

The Court: How long do you wish?

(191) Mr. Harmon: Two weeks.

The Court: Denied. You don’t wait for two weeks while the

house is burning. You don’t wait for two weeks when you are

told that the bond rating company is going to act within the

next day or so or perhaps it has already acted in a fashion

which is going to have extremely adverse consequences to

Yonkers.

Mr. Harmon: Your Honor, if the court is not inclined to

grant a two-week adjournment, we leave it to your Honor to

suggest a reasonable adjournment given the entire history of

this case.

The Court: Tell me the purpose. Now, Mr. Spallone did not

have counsel. I think that very basic right is to have counsel

and his request was for an adjournment until tomorrow, and |

granted that.

Now, you have made two requests. And you made a request

for an evidentiary hearing and | grant that request.

Mr. Harmon: | did not make that request. | requested the

opportunity to evaluate as a lawyer should whether or not an

evidentiary hearing is required in this case. | certainly can’t do

that without knowing the facts of the case. So we would like

the opportunity to evaluate his position, your Honor.

The Court: But Mr. Chema clected in the face of the July

26th order, in the face of the explicit advice he (192) received

from the corporation counsel of the City of Yonkers that he

would not be representing him today, to wait until this morning.

Now, | will make the same ruling as | made with respect to

Mr. Sykes’ application. | am going to proceed this morning in

whatever fashion you wish. If you wish an evidentiary hearing,

the witness stand is there. Mr. Chema is free to take it and

without prejudice to any application you wish to make to re-

open the matter based on whatever it is that your further dis-

cussions with Mr. Chema or your research indicates.

3lc

I think the elements of contempt are very clear. There is no

question that there has been notice. There is. no question but

that there has been a specific order of the court, and there is no

question that there has been a failure to comply with that or-

der. There is the opportunity now to be heard. The time and

place of this hearing was scheduled on the 26th of July.

Mr. Harmon: I appreciate the opportunity that the court has

given us this morning, your Honor, but | must say also in good

conscience that we would not be able to adequately represent

Mr. Chema’s interests given the short notice to his counsel.

The Court: I just want to say again that the shortness of that

notice is the result of Mr. Chema’s (193) decision not to seek

counsel until this morning. It is not a failure on the part of the

court or of the parties to give Mr. Chema ample notice of what

the issues would be this morning.

Mr. Harmon: If the court, therefore, is inclined to go ahead,

fine. It sounds to me the court is inclined to go ahead.

The Court: You got that message.

Mr. Harmon: Even if you just landed from Mars at 8 a.m.

this morning, it doesn’t take long to get that message.

The Court: Because the people of Yonkers are entitled to

have these matters end, not to have this drain, this emotional,

fiscal drain. You have got to create a community in which peo-

ple can live together. And this is creating a community in

which you have a different circumstance.

The complaint was filed in 1980. It is always the case that

when counsel comes in late in the case and the reaction is,

“‘What is the great rush?” The great rush. It may appear to be

a great rush to somebody who is retained at 8 a.m. on August

_ 2nd, but to the people whose constitutional rights have been vi-

_Olajed and who have been waiting for years for a vindication of

those rights for redress and remedy, there hasn't been a great

rush in this (194) case.

Mr. Harmon: I understand that | am bearing the burden here

of a lengthy history of this case, your Honor. We would also

again argue that the contempt such as it may have been did not

occur until sometime last night.

The Court: | want to make it clear again because | don’t

want in any other procedural context there to be any ambiguity

32¢

about that. To the extent that you request an evidentiary hear-

ing, that request is granted. What is denied is the request for a

two-week adjournment.

Mr. Harmon: To the extent you are inclined to go ahead,

when the court does deal in civil contempt and sanctions under

contempt, you are dealing with human dynamics and the effect

of the coercive power of the court and what response that

course of power may engender.

You have talked here | think very directly and eloquently

here this morning about the other remedies open, options to

other public officials to take action which apparently they have

not done as of this point in time. You have also gone ahead and ,

imposed a serious civil contempt sanction on the City of

Yonkers.

It seems to me that although that civil contempt sanction is

directed at the city itself, there is nothing that says that this

contempt sanction can’t have a really personal result on public

officials themselves. So that—

(195) The Court: Personal result?

Mr. Harmon: Yes.

The Court: Personal responsibility. It is a human being that

casts a vote. It is a human being who has taken an oath to pro-

tect and defend the consitution. Of course, it is personal. We

deal with human beings fortunately.

Mr. Harmon: What | would suggest here, your Honor, is

that this court allow the impact of the civil contempt fine im-

posed upon the City of Yonkers to have its impact and to run

its course—

The Court: You see the little pas de deaux? The city is saying,

“It is not our responsibility. It is the city council.’’ And the city

councilmen are saying, “‘Let the impact on the city run its

course’’, and in the meantime, the housing isn’t being built.

Mr. Harmon: We suggest what is the purpose of civil con-

tempt? To have the coercive effect of the court’s sanction and

order produce the result that the court wants.

The Court: Mr. Chema as you know has the opportunity to

purge himself of contempt as sert forth very explicitly in the

order, so that it is not the circumstance that he has no alterna-

33¢

tive. He has a very clear alternative. Indeed the purpose of civil

contempt is for there to be the alternative of compliance.

(196) Mr. Harmon: We would ask that the court withhold

any action with regard to judging Mr. Chema in contempt or

imposing sanctions under a contempt order until the imposition

of the fine against the City of Yonkers has had some oppor-

tunity to be tested. Other than that, your Honor, other than

what I have already stated, we simply are not in a position to

make a judgment as to whether or not Mr. Chema’s interests

both factually and legally are best served here by an evidentiary

hearing.

We certainly know that it is not possible for us to address the

legal issues that are raised here in such a short period of time.

That concludes my statements.

The Court: Mr. Heffernan.

Mr. Heffernan: Your Honor, with regard to Mr. Chema, |

don’t think there is any difference between him anc his vote

last night and any of the other city council persons who voted

against the resolution. From our perspective, they are ciearly in

contempt of an unambiguous court order. Your Honor, |

didn’t land from Mars this morning. | have bee. on this case

for going on a year now—

The Court: You are a novice.

Mr. Heffernan: And I recognize that compared to the eight

or more years of experience that some of the people in this

courtroom have had in this case, that is not much. It has been

long enough to learn a few things. It (197) has been long

enough to ask the question before practically every hearing we

have here, what is going to come up that is going to delay the

thing further?

I hadn’t thought of this one, your Honor. Now they come in

this morning, the city council people, and make this claim that

they haven’t had a chance to consult with counsel. It is a ridic-

ulous claim. They have been well aware of what is going on

here. They knew they may need counsel as little as a week ago

and provably a lot longer than that. So from our point of view,

your Honor, the claim is simply pretext.

Mr. Hamon may have landed from Mars this morning at 8

o’clock, but it didn’t take him long to come up with an argu-

34¢

ment that we heard on many occasions. Put the blame on the

other guys. We shouldn't be accountable. We heard it a lot in

the last several weeks.

The claim is basically let the city take the blame. Let the city

pay the price for it. But why should city council members pay a

price for it? After all they are only human? They are human.

They are answerable to this court. They are answerable to the

city. They are bound by this court’s order.

There should be contempt sanctions. There is no doubt there

is contempt. It should lie against Mr. Chema just as it should

lie against any city councilperson (198) who voted against the

The Court: Mr. Sussman.

Mr. Sussman: Judge, | have two sets of comments. First of

all, | just think for the purpose of the record it should be made

clear that Mr. Chema was one of the two council members—

and there are only two counsel members who voted on January

27, 1988, against the entry of the consent decree, against the

long-term plan. And since that day, Mr. Chema to my knowl-

edge, and | think the record would bear this out, has voted

against every measure or voted in favor of many measures

which have been intended to frustrate this court.

He has been quoted publicly on numerous occasions includ-

ing in the last two wecks as saying that he would vote against

this resolution at the point then in time that it was in fact an

ordinance and not simply a resolution.

The Court: You are making this argument with respect to ad-

equacy of time to obtain counscl?

Mr. Sussman: That is corrrect. And put it in some context of

his frame of mind which can be derived from those votes. He is

not a late convert to opposition here nor a late convert to

knowledge of his acts which are contemptous of the court.

That to one side, | think we should have more (199) clarity

frankly on the record as to precisely what the procedural status

of Mr. Chema and perhaps the others, Mr. Spallone and gen-

tlemen represented by Mr. Sykes, what their status should be.

It seems to me that the way it ought to be left is very simple.

The court having given those who are represented by counsel

an opportunity to be heard should be explicit and state that

35c

should they demand an evidentiary hearing within a time pe-

riod that is set after consultation, the court is prepared upon

hearing the evidence that is presented to revisit the question

and contrary to the procedure which was made clear, in fact

refund any fines paid if in fact these people can show that they

should not have been held in contempt. So that there is no

questiou chat procedurally their rights are protected.

They are not ready for evidentiary hearings today although

they ought to be. I don’t believe any such hearings will be held.

I don’t believe they will shed light on the contempt, maybe they

would. The court should not be open to any procedural ambi-

guity. We know these things are going to be taken up and ques-

tions as to what the court was prepared to do.

In a prior case frankly where no evidentiary hearing was re-

quested, we got to the Court of Appeals and there was a ques-

tion why there was no evidemiary hearing. (200) That put me

in a position of opposing the position and supporting the mov-

ant for a hearing in order to protect ourselves.

If these people want a hearing | believe by end of this week,

it should be set. They should come in and the court should be

on record as stating that their contempt if it is shown not to

have been actual, any fines paid will be refunded.

The Court: Let me first of all say I am going to ask that the

Department of Justice and NAACP prepare this morning—it

can be in handwriting—a written order so that there will be a

written, signed order for appellate purposes.

I will direct that the checks given by the individual council-

men be held by the clerk of the court for ten days, that is, until

August 12th so that should there be reasons between now and

August 12th to set aside the contempt, that power will exist.

Let me make clear my intent with respect to that. If after an

evidentiary hearing, I conclude that the city councilmen in fact

were never in contempt, then the checks will be returned; but if

I conclude that he was in contempt this morning, but was not

in contempt or took remedial action, purged himself subse-

quently, then the checks will indeed be deposited.

Mr. Sussman: I think that is entirely (201) defensible. | think

counsel should be advised it is within that period that they have

36c

to that they must come in, rather than coming in on the 11th

day and raising a question that it wasn’t clear.

The Court: I would think we should set a more specific time-

table. Mr. Spallone has until 10 a.m. tomorrow. Mr. Sykes.

And Mr. Harmon, the only request that you made was for two

weeks and that is unacceptable. Do you want to pinpoint a spe-

cific date?

Mr. Harmon: Yes, | think considering the lengthy history to

this case, I think one week would give us our best opportunity

under the circumstances.

Mr. Sykes: If I understand the court correctly are we to be

afforded an evidentiary hearing?

The Court: You haven’t requested an evidentiary hearing.

Are you now requesting an evidentiary hearing?

Mr. Sykes: I am trying to understand what the court’s state-

ment indicated or is granting.

The Court: The law of contempt gives to your clients various

procedural rights, notice, opportunity to be heard and the no-

tice for a hearing. If you are making a request for a hearing,

then we will set a timetable for it. If you want an opportunity

to consider whether you are making a request for a hearing, we

will give you that. Suppose we say 4:30 this Friday this court is

to be advised (202) in writing by counsel for Chema, Longo,

and Fagan whether they wish an evidentiary hearing.

if there is to be an evidentiary hearing, we will hold it on

August 8th at 10 a.m. That is the following Monday. As | have

already indicated, the clerk’s office will hold the checks until

August 12th.

Let’s understand so that we don’t expend needless time and

energy what the nature of that hearing will be. I heard refer-

ences to calling witnesses and so on. And if there are witnesses

to the state of mind of Mr. Chema, then perhaps they can tes-

tify. | am not quite sure how that happens.

We are not retrying United States against Yonkers. We spent

over 80 trial days doing that, nor are we trying the pros and

cons of various means of creating housing. What we would be

hearing at the evidentiary hearing relates to whether there is

contempt, that is, whether in fact the councilmen voted in the

way this court has been told they voted. That is the first ques-

37¢

tion. The second question is whether that constitutes a viola-

tion of the July 26th order of the court and the third would be

any mitigating circumstance.

Let’s define mitigating circumstance. Political pressure, con-

stituent pressure, fear of unpopularity, fear of physical threats

or safety, none of those are mitigating (203) circumstances. |

am hard put and I will leave it to the ingenuity of counsel to

think of what a mitigating circumstance might be, but we are

available and we will hold such a hearing if requested in writing

prior to 4:30 this Friday. Please respond in any event. That is,

if there is no request for a hearing, let me have that in writing.

If there is a request for a hearing, let me have that in writing.

Mr. Sussman: I agree with Mr. Heffernan and I think that

the time for Mr. Chema to be held in contempt pending any

such request is now. I don’t see any possible defense. | think

the history of his actions has been contemptuous and it didn’t

just start last night.

The Court: Mr. Chema, would you come forward please?

Mr. Harmon: May I make this representation to the court, if

we make a judgment in advance of Friday at 4:30 there is no

need from our point of view for an evidentiary hearing. | will

let your Honor’s chambers know as we!l as counsel.

The Court: That would be helpful.

Mr. Harmon: And if we decide to proceed on a legal anal-

ysis, we will advise your chambers and counsel for the govern-

ment and the NAACP.

The Court: Thank you. | am told that for (204) portions of

these proceedings one city council member was not present in

the courtroom. I will assume that his colleagues will apprise

him of all that has transpired in his absence.

Mr. Chema, you have heard what has happened this morn-

ing. The fact is, is it not, that you received notice of these pro-

ceedings and of the court’s order and that you voted yesterday

in the manner which has been represented?

Mr. Chema: Yes.

The Court: Is there anything you wish to say?

Mr. Chema: No, your Honor.

The Court: The court finds that you are in contempt. The

court finds that there was adequate notice, that there was an

38c¢

opportunity to be heard, and that there is no question but that

there has been contempt.

As I have indicated | will direct the clerk to hold until Au-

gust 12th the checks which you are to furnish on a daily basis

beginning tomorrow and I will afford to you and your counsel

if you request an evidentiary hearing.

| act now rather than wait until some !uter date because |

perceive this to be a situation which requires immediate action

and | cannot tolerate anything with smacks of dilatory pro-

ceedings.

Is Mr. Spallone in the courtroom? Mr. Marshal, (205) would

you see if Mr. Spallone is in the ha!lway?

(Pause) !

The Court: | don’t think | will await Mr. Spallone’s pleasure,

but | would appreciate it if counsel would advise him of the

scheduling that has been made with respect to the other city

council members. | ask that he advise chambers, that his coun-

sel advise chambers whether he wishes to proceed tomorrow

morning as originally scheduled or to proceed next Monday.

Is there anything else? | would appreciate the preparation of

a formal order embodying these rulings. Long hand will be suf-

ficient.

Mr. Sculnick: Your Honor, | would like to request a meeting

with the court in the jury room with all counsel at the conclu-

sion of this. | have an application to make and then we can go

back on the record.

The Court: Yes. We will adjourn and I will see counsel in the

jury room.

(Recess)

The Clerk: Ladies and gentlemen, that concludes the pro-

ceedings for today.

EXHIBIT D—Long Term Plan Order of United States District

Court for the Southern District of New York, Dated June

13, 1988.

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN District OF NEW York.

UNITED STATES OF AMERICA,

Plaintiff,

and

YONKERS BRANCH—NAACP, ef ai.,

Plaintiffs-Intervenors,

Vv.

YONKERS BOARD oF EpucaTion,

Defendants.

80 Civ 6761 (LBS)

LONG TERM PLAN ORDER

Section 17 of the First Remedial Consent Decree in Equity

(the “First Decree’’) requires the City of Yonkers to take cer-

tain actions with respect to the long term housing plan (the

“‘Long Term Plan”’) required by Section VI of this Court’s

May 26, 1986 Housing Remedy Order. Section 18 of the First

Decree further contemplates that the parties may reach an un-

derstanding with respect to certain issues relating to the imple-

mentation of the long-term Goal! and shall set forth such un-

derstanding in a Second Remedial Consent Decree to be

presented to the Court.

The City has failed to take those actions which are the sub-

ject of Section 17 of the First Decree. The City has further in-

formed the Court and the parties that it will not negotiate to-

ward reaching an understanding on certain other Long Term

Plan issues, as required by Section 18 of the First Decree. In

light of these actions of the City of Yonkers, plaintiff and

plaintiff-intervenors have jointly submitted a Long Term Plan

proposal for the Court’s consideration, accompanied by their

joint amended Long Term Plan comments and a joint motion

for this Court to enter their proposal. Having reviewed these

submissions, and the response of the City thereto, the Court

hereby enters the following Order with respect to the Long

Term Plan:

It is hereby ORDERED, ADJUDGED and DECREED:

SECTION 1. Number and Distribution of Assisted Units.

(a) Consistent with Section 17 (a) of the First Decree, the

City shall condition the construction of any multifamily hous-

ing development (as defined in Section 17(a) of the First Decree

and Section 2 below) on the inclusion of a number of assisted

units in such development equal to 20 percent of the maximum

aggregate number of units authorized for construction in such

development. In instances where the existing zoning already

permits a density of sixty (60) units per acre or more, the num-

ber of assisted units can be limited to 10 percent or more of the

total number of units in the development, if the maximum den-

sity bonus that will then be given to the developer is not in ex-

cess of 50 percent over the permitted zoning. If the bonus

'All capitalized terms not hercin defined are used as defined in

the First Decree. Housing- and zoning-related capitalized terms (not

defined herein or in the First Decrec) used in Sections 2 and 8 hereof

= used as defined in Chapter XVII of the Code of the City of

onkers.

sought is in excess of 50 percent over the permitted zoning, the

20 percent ratio shall apply.

(b) The total number of assisted housing units (calculated as

provided in paragraph (a)) in each such multifamily housing

development shall be allocated to the income groups specified

in Section 15 of the First Decree so that the number of assisted

units respectively allocated (i) to households described in clause

(b) of such Section does not exceed three times the number of

assisted units allocated to households described in clause (a) of

such Section; (ii) to households described in clause (c) of such

section does not exceed the number of assisted units allocated

to households described in clause (b) of such section; and (iii)

to households described in clause (d) of such Section does not

exceed one-third (rounded to the nearest whole number) of the

number of assisted units allocated to households described in

clause (c) of such Section. Notwithstanding th previous sen-

tence, if the aggregate minimum number of assisted units to be

allocated to any of the four income groups specified in Section

15 of the First Decree is attained before the minimum is

reached for remaining groups, assisted units constructed there-

after shall be allocated (in the same proportion) only to income

groups whose minimum has not theretofore been attained.

provided in each such housing development shall equal at least

60 percent of the total number of assisted housing units. At

least 30 percent of the assisted units in each such housing devel-

opment shall be three-bedroom units (or larger). Up to 10 per-

cent of assisted units may be one-bedroom.

SECTION 2. Target Areas.

(a) The assisted housing requir-ment described in Section |

above shall apply, until tue Goa! \s reached, to multifamily

housing (including apartment buildings, rowhouses or town-

houses) located in zoning districts of East and Northwest

Yonkers currently zoned MG, M, A, B and BA. In reviewing

and approving development proposals, the Office of Imple-

mentation (see below) and the City shall seek, to the extent

possible consistent with the timetable and goals of this Order,

to assure the provision of assisted housing in a dispersed man-

ner and so to avoid the undue concentration of both public and

assisted units in any neighborhood of Yonkers. Priority shall

be given to Long Term Plan proposals which avoid such con-

centration.

(b) Such requirement shall also apply, until the Goal is

reached, to multifamily housing (including apartments build-

ings, rowhouses or townhouses) built in any zoning district of

East and Northwest Yonkers (not currently zoned MG, M, A,

B or BA) where multifamily housing may hereinafter be built

pursuant to rezoning, special exceptions or otherwise.

thing set forth in the First Decree, the City may exempt from

such requirement any mui‘ifamily housing development of

fewer than ten units: provided, however, that such exemption

shall not be applied to circumvent (by, for example, artificially

subdividing one housing development into several de) ‘lop-

ments of fewer than ten units) this Plan’s purpose of requiring

that multifamily housing in East and Northwest Yonkers other-

wise contain at least 20 percent of assisted units.

SECTION 3. Affordability Criteria.

The term “affordable’’, as used in Section 15 of the First

Decree, means, with respect to each income category described

in such Section, assisted housing units (i) sold at a price entail-

ing a monthly carrying cost (assuming a 10 percent downpay-

ment, a 30-year self-liquidating mortgage, and including prin-

cipal and interest payments, property taxes, homeowners

association fees, but excluding utilities) not exceeding at any

time 28 percent of the annual gross income of the household

occupying the assisted unit or (ii) rented at a rent (including an

allowance for utilities) not exceeding at any time 30 percent of

the annual gross income of the household occupying the as-

sisted unit.

SECTION 4. Term; Transfer Restrictions and Occupancy

Criteria.

(a) Assisted housing units shall be rented or sold only to

households meeting (at the time of rental or sale) the income

qualifications contemplated in Section 15 the First Decree, as

from time to time adjusted for the New York Metropolitan

Area. Such units shall be the primary residence of the occu-

pants.

(b) All assisted housing units subject to purchase shall have

resale-price limitations (enforced by covenants running with

the land, restrictions on registration of title, or any other ap-

propriate legal mechanism approved by the City) which will en-

sure that for a period of thirty years from the time of their first

sale such housing units are sold or resold only to, and at a price

affordable to, a household which is, at the time of purchase, in

the same income group (referred to in Section !5 of the First

Decree and as at that time adjusted) as was the seller at the

time such previous owner first occupied the unit. Such

resale-price limitation may be amended by consent of the par-

ties or motion to the Court if future experience with financing

sources and/or income-qualified owners of assisted units

should demonstrate the practical advisability of reformulating

the applicable resale-price limitation.

quired to assure that, for a period of thirty years from the time

of first rental, such units are affordable to, and are rerented

only to, a household which is, at the time of re-rental, in the

same income group (referred to in Section 15 of the First De-

cree and as at that time adjusted) as was the previous tenant at

the time such previous tenant first occupied the unit. Assisted

units for rental may be converted to units for sale subject,

however, to the same ownership eligibility standards as appli-

cable to units for sale for the remainder of the thirty-year pe-

riod from original occupancy referred to in the previous sen-

tence.

(d) The affordability and other restrictions on resale and/or

occupancy shall not apply to (i) the transfer of ownership of an

assisted unit between spouses or former spouses ordered as a

result of a judicial decree of divorce or separation agreement

(not including transfers to third parties), (ii) the transfer of

ownership of a unit between family members as a result of in-

heritance, and (iii) formerly HUD-insured multifamily projects

which, following default on the mortgage, HUD acquires or is

mortgagee in possession (““MIP”’), to the extent that the provi-

sions are inconsistent with applicable HUD statutes and regula-

tions regarding management or disposition of HUD-owned

projects or projects for which HUD is MIP; provided, how-

ever, that transfers referred to in clauses (i) and (ii) do not ex-

tinguish such restrictions (whatever be the legal mechanism

through which the restrictions are enforced) which shall be

fully complied with in the event of any subsequent sale or

rental of a unit not specifically exempted hereby. An exempted

transfer as heretofore provided in paragraph (d) shall not toll

the running of the thirty-year period referred to in paragraph

(b) hereof.

(e) This Section shall not be interpreted as in any way affect-

ing or diminishing, and shall apply together with, occupancy

criteria (to be applied in good faith by the City or cach devel-

oper) substantially of the type set forth in 24 C.F.R. §960.205

to ensure that the personal and financial background of cach

potential tenant or owner of assisted units will not be detrimen-

tal to the viability of the housing development.

(f) To the extent not inconsistent with other applicable occu-

pancy and financial criteria, the City shall endeavor to give oc-

cupancy priority to:

1) persons who, between January |, 1971 and the date as-

sisted housing pursuant to this Decree is made available, have

been residents of public or subsidized housing in the City or

Yonkers. Such persons shall be given the first opportunity to

apply for such housing, which opportunity shall be afforded up

until thirty (30) days following the datc the final assisted hous-

ing units pursuant to this Decree are made available. Occu-

pancy choice from among such persons applying shall be on a

‘first-come, first-served basis;

2) residents of the City of Yonkers; and

3) persons employed in the City of Yonkers.

(g) The Implementation Office (as defined in Section 11 be-

low) shall be responsible for pre-screening applicants who wish

to occupy (as tenants or purchasers) assisted units and for

maintaining a list of such pre-screened applicants. Owners or

developers of housing projects containing assisted units may be

allowed to select tenants or purchasers of assisted units from

among the applicants pre-screened by such Office. The Imple-

mentation Office shall be responsible for monitoring the good

faith application of any discretion vested in such owners or de-

velopers with respect to the choice of tenants or purchasers of

assisted units.

(h) Within thirty (30) days of the date the Implementation

Office assumes its responsibilities, it shall prepare occupant

pre-screening procedures and criteria and submit the same to

the Court and parties for review. The parties shall then meet,

within 15 days thereafter, with a representative of the Imple-

mentation Office to attempt to reach agreement on a final set

of procedures and criteria. If such an agreement cannot be

reached, the parties shall submit the matter to the Court for

resolution.

Section 5. Home Ownership to be Fostered.

The Court finds that it is desirable to foster home ownership

among the occupants of assisted housing units. Accordingly,

the City shall endeavor to establish such Mandated Incentives

as will tend to foster the production of assisted housing for sale

and shall establish a program to apply available local, state and

federal subsidies to the write-down of purchase costs by eligible

purchasers of assisted housing units. Notwithstanding the fore-

going, no proposed housing development containing assisted

units shall in any way. be disfavored in negotiation with the

City for a particular mix of Mandated Incentives, or be delayed

or hampered in its applicable approval process. solely because

it proposes to offer assisted housing units for rental rather than

for sale.

Section 6. Architectural Integration.

Developers shall make no locational distinctions between as-

sisted and other units, provided that for any building eight or

more stories in height, the top two floors may be reserved for

market rate units. Assisted units, whether for sale or rental,

shall meet HUD minimum property standards with respect to

square footage. Assisted units need not be furnished with each

and every amenity as a developer may choose to include in a

market rate unit.2 The City shall foster (to the extent feasible)

the use of such architectural and design devices as will mini-

mize the visual impact of such housing developments on the

surrounding community and any distinction between assisted

and market units.

Section 7. Staging. Assisted units in any housing develop-

ment shall obtain certificates of occupancy no later than ac-

cording to the following schedule:

Percentage of Market Percentage of Assisted

Rate Units Receiving Units Receiving

Certificates of Occupancy Certificates of Occupancy

Up to 25% 0% (none required)

25% + 1 unit At least 10%

50% At least 50%

75% At least 75%

100% 100%

2Without limitation, the term “amenities” is intended to encom-

pass items such as: custom-finished basements, fireplaces; custom-

ized kitchens; specialized finished, flooring, or fixtures, etc.

Section 8. Mandated Incentives. Consistent with Section 17

of the First Decree, the City shall provide appropriate Manda-

ted Incentives to attract private development of assisted hous-

ing units. The type, extent and combination of necessary Man-

dated Incentives to be utilized with and given to a particular

developer of multifamily housing may depend, among other

things, on the allocation to specific income groups of assisted

units which the developer (subject to the terms hereof) elects to

make, the degree to which assisted financing may be available,

prevailing economic and housing-market conditions, and the

developer’s business expectations. Accordingly, the City should

be allowed discretion to establish with each developer of multi-

family housing a mix of Mandated incentives which would en-

courage construction, notwithstanding the financial burden as-

sociated with the inclusion of the required share of assisted

units. However, the City shall exercise such discretion in good

faith to encourage the timely attainment of the Goal. The ex-

amples set forth below illustrate the types of Mandatory Incen-

tives which the City shall be prepared to implement:

Example |. Increase the maximum permitted Height of a

Building.

Example 2. Increase the maximum permitted Floor Area Ra-

tio of a Building.

Example 3. Change the formulas set forth in Section 107-55

(B) of the Yonkers Code for the calculation of floor-area ra-

tios for mixed-use buildings so as to lower the contribution

of stories devoted exclusively to non-residential uses.

Example 4. Reduce the minimum permitted Lot Width or

Lot Area for apartment houses.

Example 5. Reduce the minimum permitted Lot Area per

family.

Example 6. Reduce the minimum permitted Rear Yard or

minimum permitted Front Yard.

10d

Example 7. Grant the owner of multifamily rental housing a

full tax abatement on City real-estate taxes for the percent of

units which are assisted but not to exceed 50 percent of the to-

tal number of units in the development including both assisted

and non-assisted units. The benefits of the tax abatement to

the non-assisted units are to be provided to the developer for

use in further reducing the rental payments required of the as-

sisted units so as to make them affordable within the defined

rental limits.

Example 8. Vary the extent and/or duration of the incentive

referred in Example 7 depending on the extent to which the

owner elects to carry a larger than required share of assisted

units allocated to households in an income group described in

clauses (a) and/or (b) of Section 15 of the First Decree.

Example 9. Grant a tax abatement on City real-estate taxes

to households buying assisted units. An additional tax abate-

ment may be granted to up to 50 percent of the total number of

units being constructed to be used to skew the monthly pay-

ments of the non-assisted units so as to further reduce the

monthly payments required of the assisted units.

Example 10. Vary the extent and/or duration of the incen-

tive referred to in Example 9 depending on the household's in-

come level.

Example |/1. Waive a portion of all application or processing

fees which would otherwise be payable by developers seeking

building-related approvals from the City.

Example 12. Grant a zoning overlay in (subject to the pro-

viso in clause (d) of Section 17 in the First Decree) any district

not zoned MG, M, A or BA.

Example 13. Cause funds in the AHTF to be applied (subject

to applicable orders of this Court and HUD regulations) to site

preparation or improvement at a site to be used for the con-

struction of assisted units.

lid

Example 14. Provide that, notwithstanding anything to the

contrary contained in Chapter 107 of the Yonkers Code, a par-

ticular housing development may contain a certain number (or

percentage) of units in excess of the number which would oth-

erwise have been allowed by such Chapter.

Example 15. Cause the Industrial Development authority (to

the extent it is within the power of the City to cause such re-

sult) to provide assisted financing for the construction or per-

manent financing of the portion of a housing project repre-

sented by assisted units.

Example 16. Vary the extent of the assisted financing re-

ferred to in Example 15 depending on the extent to which the

owner or developer elects to carry or sell a larger than required

share of assisted units allocated to households in an income

group described in clauses (a) and/or (b) of Section 15 of the

First Decree.

The foregoing examples embody the types of steps which

(consistent with Section 17 of the First Decree) the City shall be

prepared to take, as warranted, to realize the objective of at-

taining the Goal, as set forth herein and in the First Decree.

The illustrations above do not require the City to offer a par-

ticular incentive (either as to type or extent) to any particular

developer, housing development or owner. Nothing herein

shall be interpreted to create in favor of a third party any right

to obtain a particular incentive herein mentioned. However, in

considering development proposals, the City shall act in a uni-

form, objective and non-arbitrary manner designed to afford

all such proposals a fair opportunity to contribute appro-

priately to achievement of the Goal.

SECTION 9. The Affordable Housing Trust Fund.

The funds now and hereinafter placed in the AHTF as previ-

ously directed by this Court shall be expended (to the extent

consistent with HUD statutes and regulations governing the ap-

plication of CDBG funds) on (i) site-improvement projects (i.e.

12d

site preparation, sewage works, roads, etc.) for sites on which

multifamily housing projects containing assisted units are to be

constyucted and (ii) to directly assist in the acquisition of prop-

erty through a Local Development Corporation’s activities. In

no event shall such funds be made available to private devel-

opers to defray construction or carrying costs for assisted

units. Affordable Housing Trust funds may also be expended

in manners otherwise consistent with HUD statutes and regula-

tions if, in response to specific developer proposals, such other

incentives will sufficiently obtain the overall objectives of the

Long Term Plan. The City, therefore, shall have the right,

upon obtaining Court approval, to use Affordable Housing

Trust funds in other permissible manners.

SECTION 10. Credit Against Goal.

The City may provide (on a project-by-project basis, on an

area-wide basis or otherwise) Mandated Incentives for the con-

struction of assisted units in areas other than East and North-

west Yonkers. The City shall be given a credit of one unit of

assisted housing towards the satisfaction of the assisted hous-

ing goals set forth in either clause (b) or (c) of Section 15 of the

First Decree for every two units of assisted housing (allocated

to households in the income group for which credit is claimed)

constructed in such areas, up to a maximum credit of 100 units

against each such goal. Such assisted units shall be subjected to

the same occupancy, resale, architectural and other restrictions

and requirements as assisted units constructed in East and

Northwest Yonkers.

SECTION 11. Expedited Review: Organizational Structure.

(a) In addition to such other procedures as may be estab-

lished to render the Mandated Incentives most effective, the

City shall establish an expedited review process for housing

projects containing assisted units to include priority scheduling

and expedited review and negotiation of applicable Mandated

Incentives.

13d

(b) The City shall centralize in one administrative depart-

ment, agency or office (the “Implementation Office”) the ad-

ministration of this long-term housing plan. The Implementa-

tion Office shall be a part of the Fair Housing Office created

pursuant to this Court’s May 26, 1986 Housing Remedy Order

and shall be under the direction of the Executive Director of

that Office. The responsibilities of such Office shall include

acting as an ombudsman before all City agencies which may be

involved in the process of approving multifamily housing de-

velopments and facilitating the expeditious completion (by

such other agency, department or office as may be responsible

therefor) of: all reviews and approvals, negotiations with spe-

cific developers and grants (if appropriate) of specific Man-

dated Incentives. Such Office shall also have the power to

pre-approve or screen particular proposals, to assist developers

in the application process, to implement a marketing program

to make widely known the availability of Mandated Incentives

and of assisted units among developers and potential pur-

chasers and tenants of assisted units, and to implement such

other administrative steps as may be required or convenient for

the more effective realization of the objective of achieving the

Goal (e.g. the creation of an advisory board of responsible citi-

zens to assist in the foregoing task); provided that, the Imple-

mentation Office shall not exercise the power of other City

agencies. Moreover, the administrative and coordinating func-

tions described above shall not require that the City vest in the

Implementation Office the final discretionary authority to ap-

prove specific projects or to grant specific Mandated Incen-

tives.

the duration of this Decree. The Executive Director of the Fair

Housing Office shall be responsible for formulating and pre-

senting for approval and funding a budget for such Office, as

well as for the hiring and firing of the employees of such Of-

fice.

SECTION 12. ‘‘Section 8’’ Certificates. The City shall con-

sider in good faith any plans for assisting eligible families in

14d

utilizing their “‘Section 8” certificates or vouchers which plain-

tiff or plaintiff-intervenors may at any time hereafter present

to the City.

SECTION 13. As specific plans are formulated for the con-

struction of affordable housing, projections for the additional

number of school age children who would occupy Long Term

Plan housing developments snail be furnished to the School

Board. The School Board shall advise the Court and the parties

as to the capacity of the existing school system to accommo-

date such additional children, whether expansion is required

and the impact, if any, of such changes on the School Board’s

ability to comply with the Educational Improvement Plan.

SECTION 14. If at any time any party to this litigation be-

lieves that a proposal for the construction of housing is consis-

tent with and furthers the objectives of the Housing Remedy

Order and the Long Term Plan, but requires an exemption

from some of the specific provisions contained herein, applica-

tion may be made to the Court for a waiver or modification of

such provisions with respect to that specific proposal.

SO ORDERED:

LEONARD B. SAND,

U.S. D. J.

DATE: 6/13/88

EXHIBIT E—Opinion of United States Court of Appeals for

the Second Circuit, Dated August 26, 1988.

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

-———-- <)>

Nos. 1679-1682—August Term 1987

Argued: August 17, 1988 Decided: August 26, 1988

Docket Nos. 88-6178, -6184, -6188, -6190

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

—and—

YONKERS BRANCH-NATIONAL ASSOCIATION FOR THE

ADVANCEMENT OF COLORED PEOPLE, ET AL.,

Plaintiffs-Intervenors-Appellees,

-_—Vi—

CITY OF YONKERS, —

Defendant-Contemnor-Appellant,

YONKERS BOARD OF EDUCATION and

YONKERS COMMUNITY DEVELOPMENT AGENCY,

Defendants.

—

In the Matter of HENRY SPALLONE, PETER CHEMA,

NICHOLAS LONGO, and EDWARD FAGAN,

Contemnors-Appellants.

————

$753

Before:

NEWMAN, MINER, and MAHONEY,

Circuit Judges.

>—

Appeals from orders of the District Court for the South-

ern District of New York (Leonard B. Sand, Judge) adju-

dicating the City of Yonkers and four council members in

civil contempt and imposing coercive monetary sanctions

for failure to comply with a court order implementing a

consent judgment.

Affirmed as to the council members; affirmed, as modi-

fied, as to the City.

—>

MICHAEL W. SCULNICK, New York, N.Y.

(Stanley R. Strauss, Vedder, Price, Kauf-

man, Kammholz & Day, New York,

N.Y.; Rex E. Lee, Carter G. Phillips, Sid-

ley & Austin, Wash., D.C.; Paul W. Pick-

elle, Corp. Counsel, Yonkers, N.Y., on

the brief), for defendant-contemnor-

appellant.

ANTHONY J. MERCORELLA, New York, N.Y.

(Vincent R. Fontana, James L. Fischer,

Vincent R. Cappucci, Wilson, Elser,

Moskowitz, Edelman & Dicker, New

York, N.Y., on the brief), for contemnor-

appellant Spallone.

$754

JAMES D. HARMON, Jr., New York, N.Y.

(Barry G. Saretsky, Martin S. Kaufman,

Michael J. Eng, Aaron F. Fishbein,

Bower & Gardner, New York, N.Y., on

the brief), for contemnor-appellant

Chema.

LAWRENCE R. SYKES, Yonkers, N.Y., for

contemnors-appellants Longo and Fagan.

LINDA F. THOME, Dept. of Justice, Wash.,

D.C. (Wm. Bradford Reynolds, Asst.

Atty. Gen., Mark R. Disler, Deputy Asst.

Atty. Gen., David K. Flynn, Dept. of Jus-

tice, Wash., D.C., on the brief), for

plaintiff-appellee.

MICHAEL H. SUSSMAN, Yonkers, N.Y. (Suss-

man & Sussman, Yonkers, N.Y., on

the brief), for plaintiffs-intervenors-

appellees.

_———____.

JON O. NEWMAN, Circuit Judge:

This appeal presents important issues concerning the

enforcement of orders of a United States District Court

requiring action by a municipality to remedy violations of

the Constitution and statutes of the United States. The

principal issues are whether members of the Yonkers City

Council may be required to vote to implement remedies

contained in a consent judgment agreed to by the City and

approved by the City Council, and whether the City, in

addition to the council members, may be subjected to the

coercive sanctions of civil contempt when the agreed upon

legislative action has not been taken. The issues arise on

$755

appeals by the City of Yonkers and four members of the

Yonkers City Council from orders of the District Court

for the Southern District of New York (Leonard B. Sand,

Judge) adjudicating the City and the council members in

civil contempt and imposing coercive sanctions. We con-

clude that under the circumstances of this case the recalci-

trant council members may be required to vote to

implement the consent judgment and that the City, in

addition to the council members, may be adjudicated in

contempt and subjected to coercive sanctions for failure to

abide by the consent judgment and subsequent implement-

ing orders of the District Court. We also conclude that the

amount of the monetary sanctions imposed on the City,

though properly substantial, should be somewhat reduced.

We therefore affirm the order adjudicating the council

members in contempt and affirm, as modified, the order

adjudicating the City in contempt.

Background

1. The Underlying Lawsuit

The United States filed the underlying lawsuit on

December 1, 1980, against the City of Yonkers, the

Yonkers Community Development Agency, and the

Yonkers Board of Education. The complaint made two

basic allegationc: (a) that the City and the Community

Development Agency had “‘intentionally . . . perpetuated

and seriously aggravated residential racial segregation’’ in

violation of the Constitution and Title VIII of the Civil

Rights Act of 1968, 42 U.S.C. §§ 3601-3619 (1982), and

(b) that the racial segregation in the City’s public schools

had been “‘caused in substantial part by intentional,

racially discriminatory acts and omissions’’ of the City

and the Board of Education in violation of the Constitu-

$756

tion. The National Association for the Advancement of

Colored People (NAACP) was granted leave to intervene,

and the suit was subsequently certified as a class action on

behalf of all Black residents of Yonkers who currently

reside in or are eligible to reside in publicly assisted hous-

ing or who are parents of children attending Yonkers pub-

lic schools.

After a bench trial lasting ninety days over the course of

fourteen months in 1983 and 1984, the District Court

found the City and the Community Development Agency

liable for intentional housing segregation and found the

City and the Board of Education liable for intentional

school segregation. United States v. Yonkers Board of

Education, 624 F. Supp. 1276-1553 (S.D.N.Y. 1985). With

respect to the housing violations, with which we are con-

cerned on this appeal, the District Court found that the

City had deliberately concentrated virtually all of its pub-

lic and other subsidized housing in the southwest quadrant

of Yonkers and had done so to maintain residential segre-

gation. Jd. at 1372-76. After conducting a six-day hearing

as to appropriate remedies, the District Court issued a

Housing Remedy Order on May 28, 1986. United States v.

Yonkers Board of Education, 635 F. Supp. 1577

(S.D.N.Y. 1986).

The Housing Remedy Order included provisions for the

construction of 200 units of public housing and for the

planning of additional units of subsidized housing. The

City had previously agreed to provide acceptable sites for

the 200 units of public housing as a condition of receiving

its 1983 Community Development Block Grant from the

1 An order providing a remedy for the school segregation violation

was issued May 13, 1986. United States v. Yonkers Board of Educe-

tion, 635 F. Supp. 1538 (S.D.N.Y. 1986)

$757

United States Department of Housing and Urban Devel-

opment (HUD). Part IV of the Housing Remedy Order

establ’.ned a precise timetable within which the City was

required to furnish HUD with necessary documents to

secure HUD’s approval of funds for the 200 units. /d. at

1580-81. The City was required to propose sites for 140

units within thirty days and sites for the remaining 60 units

within ninety days.

Part VI of the Housing Remedy Order accorded the

City broad discretion to make its own determinations con-

cerning additional units of subsidized housing. The Dis-

trict Court did not specify the number of units to be built,

the time by which they must be built, or the degree of sub-

sidization. Part VI contained essentially two requirements.

First, the additional units must be located in existing resi-

dential areas in east or northwest Yonkers. Second, the

City must prepare a plan specifying, among other things,

the number of subsidized units to be constructed or

acquired, their location, and the rent levels or degree of

subsidization. Jd. at 1582. The City was given until

November 15, 1986, nearly six months, to present its plan.

This Court affirmed the liability and remedy rulings of

the District Court on December 28, 1987. United States v.

Yonkers Board of Education, 837 F.2d 118) (2d Cir.

1987), and the Supreme Court denied the City’s petition

for a writ of certiorari. 108 S. Ct. 2821 (1988). None of the

requirements of the Housing Remedy Order was stayed

during the course of appellate review.

2. Attempts to Implement the Housing Remedy Order

With respect to the requirement to propose sites for the

200 units of public housing within thirty and ninety days,

the City totally defaulted. No site was proposed. With

$758

respect to the requirement to submit a plan within six

months for additional subsidized housing, the City again

totally defaulted. On the appointed day, November 15,

1986, the City informed the District Court that it would

not comply. The United States and the NAACP then

moved for an adjudication of civil contempt and the impo-

sition of coercive sanctions. Rather than proceed immedi-

ately to consideration of contempt sanctions, the District

Court patiently endeavored to secure voluntary compli-

ance. In February 1987 the City Council agreed to the

appointment of an Outside Housing Advisor to identify

sites for the 200 units of public housing and to draft a

long-term plan for the additional units of subsidized hous-

ing. Throughout the rest of 1987 attention was focused

primarily on the requirement for proceeding with the 200

units of public housing. The Advisor recommended plac-

ing the 200 units in small clusters on scattered sites. In

April 1987 the City Council proposed to place the 200

units on twelve sites but rendered the proposal illusory by

conditioning it on the patently unacceptable right of local

civic associations to select the tenants. By the end of 1987

the City had taken no significant action to comply with the

1986 Housing Remedy Order.

In January 1988, following this Court’s affirmance of

the liability and remedy decisions and with the District

Court contemplating designation of sites for the 200 units,

the parties began negotiations to settle the compliance

issues. On January 19, when prospects for agreement

appeared bleak, the District Court pointed out to the City

that the Court could proceed either by ‘‘deeming things to

have been done which it was the obligation of Yonkers to

do, or it can order Yonkers to do those things.”” On Janu-

ary 25, counsel for the City informed the Court that the

City was contemplating a consent judgment and that the

$759

City was prepared to designate seven sites for the 200 units

of public housing and to implement a long-term plan to

achieve the goal of 800 units of subsidized housing that

had been recommended by the plaintiffs. A consent decree

was agreed to by the parties that same day, approved by

the City Council on January 27, and entered as a consent

judgment of the District Court on January 28 (‘‘the Con-

sent Judgment’’).

With respect to the 200 units of public housing, the

Consent Judgment renewed the City’s commitment to

build the units and identified seven specific sites. The

judgment also committed the City to take specific steps

within a prescribed timetable to have the 200 units built.

Finally, the City pledged that it would not seek further

review of the District Court’s 1986 decision or any subse-

quently entered decree to the extent that such decrees

relate to the 200 units.

With respect to the 800 units of subsidized housing, the

Consent Judgment included several provisions, which are

at the core of the pending appeal. First, the City acknow!-

edged that the goal of 800 units was ‘‘an appropriate tar-

get in fulfilling its obligations pursuant to Part VI’’ of the

Housing Remedy Order. Consent Judgment § 12. Next,

the City pledged to make good-faith efforts to achieve 600

of the units in annual installments of 200 units within each

of the next three years. /d. Next, and of special signifi-

cance, the City agreed to adopt “‘legissation’’ on a number

of topics to facilitate meeting the goal of 800 units of sub-

sidized housing. Jd. § 17. Among other things, the City

agreed to adopt legislation granting necessary tax abate-

ments, providing for zoning changes, and establishing,

within ninety days, a package of incentives for local devel-

opment. Jd. § 17(b), (d), (e). Finally, the C ‘y agreed with

$760

the other parties to work diligently to agree on various

unresolved matters primarily concerning financial aspects

of the 800 units and to submit a second consent decree to

the Court by February 15, 1988. Jd. § 18.

Rather than abide by the terms of the Consent Judg-

ment, the City promptly attempted to disavow it. Citing

intense community opposition to the Consent Judgment,

especially the public housing provisions, the City moved

on March 21, 1988, to delete the provision in which it had

agreed not to seek further appellate review concerning the

obligation to build the 200 units. To demonstrate the

lengths to which it was prepared to go to be relieved of its

public housing commitment, the City offered to return

approximately $30 million of federal funds in the event the

Supreme Court should set aside the public housing provi-

sions of the Housing Remedy Order. The City’s motion to

amend the Consent Judgment was denied on March 31,

and that ruling has not been appealed.

On April 12, at a chambers conference with the District

Court, the City announced that it was “‘not interested’’ in

completing negotiations on the terms of a long-term plan

for the 800 units of subsidized housing, as required by sec-

tion 18 of the Consent Judgment. In light of this develop-

ment, the United States and the NAACP submitted to the

Court on May 2 a proposed Long Term Plan Order based

largely on a draft that had been prepared by the City’s

lawyers during the negotiations that had ensued prior to

April 12. The City opposed the proposed order and noted

specific objections. The District Court directed the plain-

tiffs to revise their proposed Long Term Plan Order in

light of the City’s objections. On June 13, following a

hearing and further changes, the District Court entered the

Long Term Plan Order. As revised by the parties and by

$761

10e

the Court, the Long Term Plan Order accommodated

most of the City’s objections. The Order provided consid-

erable detail for the legislation that the City had commit-

ted itself to adopt in section 17 of the Consent Judgment.

By the time the Long Term Plan Order was entered, the

City was one month in default on the obligation, agreed to

in the Consent Judgment, to adopt implementing legisla-

tion. The United States therefore asked the Court to set a

timetable for enactment of the legislation. On June 21

counsel for the City informed the Court that a consulting

firm had been retained to draft the legislation and that

City Council action could be anticipated at the next coun-

cil meeting, perhaps in August. Concerned about the pros-

pect of delay, a concern heightened by the City Council’s

adoption on June 14 of a resolution declaring a morato-

rium on all public housing in Yonkers, the District Court

requested that the City Council pass a resolution adopting

the provisions of the Long Term Plan Order. On June 28

the City Council voted against a resolution ‘‘indicating

[the Council’s] commitment to the implementation of”’

the Housing Rem. jy Order, the Consent Judgment, and

the Long Term Plan Order.

The following day the District Court directed the plain-

tiffs to submit an order requiring the City to take “‘specific

implementing action’’ under a prescribed timetable, viola-

tion of which would subject the City to contempt sanc-

tions. In response to the plaintiffs’ proposed order setting

forth such a timetable, the City argued that the defeat of

the resolution on June 28 indicated that the City would not

voluntarily adopt legislation contemplated by the Long

Term Plan Order and suggested that the Court itself

should enter an order adopting the necessary legislation.

At a hearing on the proposed timetable on July 12, the

$762

lle

District Court invited the parties’ comments on the possi-

ble creation by the Court of an Affordable Housing

Commission to exercise the City Council’s functions con-

cerning implementation of the housing remedy orders.

The City opposed creation of the Commission because it

would divest the Council of its ‘‘core legislative as well as

executive functions.’’

3. The Prospect of Contempt

Prior to this point in the litigation, the District Court

had on at least two occasions warned the City that it would

face a contempt adjudication and coercive sanctions if it

failed to abide by the Consent Judgment. On July 26 the

District Court issued an order that gave the City one final

opportunity to comply and detailed the precise conse-

quences of continued noncompliance. The July 26 order

required the City to enact by August | ‘“‘the legislative

package relating to the long-term plan as described in Sec-

tion 17 of the [Consent Judgment] and the Long Term

Plan Order.’’ The “‘legislative package’’ was set forth in a

detailed Affordable Housing Ordinance, which had been

drafted by the City’s consultants and marked as an exhibit

at the July 26 hearing.

The July 26 order also established the schedule and con-

sequences of civil contempt proceedings to occur in the

event that the legislation was not adopted by August |. If

that occurred, the City and the council members were to

show cause at 10:00 a.m., August 2, why they should not

be adjudged in contempt. If such cause was not shown,

each council member failing to vote for such legislation

would be fined $500 per day, and, if the legislation was not

passed by August 10, such council member would be

imprisoned on August 11. The contempt sanction against

the City would be daily fines starting at $100 on August 2

$763

12e

and doubling in amount each day of continued noncom-

pliance. The cumulative total of the fines against the City

would exceed $10,000 by day 7, exceed $1 million by day

14, exceed $200 million by day 21, and exceed $26 billion

by day 28. The order provided that a council member

could be purged of contempt by voting in favor of the leg-

islation or by enactment of the legislation. The City could

be purged of contempt by enactment of the legislation.

The order further provided that all fines would be paid

into the Treasury of the United States and would not be

refundable, that the Council would meet at least once a

week to vote on the legislative package, and that any incar-

cerated council member would be released to attend such

meetings.

On July 28, the District Court informed all counsel by

letter that the July 26 order ‘‘will be satisfied if the City

Council, on or before August Ist, adopts a resolution

committing itself to enact the Affordable Housing Ordi-

nance within the minimum time prescribed for notice pur-

suant to state law.”’ This letter responded to the City’s

expressed concern that state law specified notice and pub-

lic hearing requirements in connection with enactment of

zoning ordinances.

On August 1, the City Council met to consider a resolu-

tion expressing the Council’s intent to adopt the Afforda-

ble Housing Ordinance within the minimum time

prescribed by state law. The Council defeated the resolu-

tion by a vote of four to three.

4. The Contempt Adjudications

As contemplated by the July 26 order, the District Court

held a hearing on August 2 to afford the City and the

council members an opportunity to show cause why they

$764

13e

should not be adjudicated in civil contempt. Counsel for

the City reported that the City Council had taken two

actions the previous night. First, the Council had sched-

uled a public hearing for August 15, thereby giving the

required state law notice of a hearing on a proposed zon-

ing ordinance. Second, the Council had defeated the reso-

lution of intent to adopt the Affordable Housing

Ordinance. With respect to contempt, the City made

essentially three points. First, counsel argued that the City

was powerless to compel the dissenting council members

to vote in favor of the Affordable Housing Ordinance.

Second, he urged the Court to order the legislation into

effect, rather than hold the City in contempt. Third, he

pointed out that the fines were punitive since the escalating

amount of the fines would place the City in bankruptcy in

three weeks.

The District Court rejected these contentions. The

Court noted that the City had failed to discharge its

responsibilities to comply with the orders of the Court.

The City had not applied to the Emergency Financial Con-

trol Board to take action or requested action by the Gover-

nor of New York. The Control Board was created to

oversee Yonkers’ financial condition and has an array of

powers with respect to the City’s financial affairs. 1984

N.Y. Laws ch. 103. Under the Yonkers City Charter, any

elected officer may be removed from office by the Gover-

nor for ‘‘misconduct.’’ Yonkers City Charter § C(2)-S.

The Court was informed that the City had requested the

Governor to use his ‘‘good offices’ but had not requested

him to ‘‘exercise powers and responsibilities he has as the

governor of the state under the circumstances that now

obtain.’’ The Court also pointed out that by offering to

have judgment of approximately $30 million entered

against it as a means of avoiding its long-standing commit-

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ment to build the 200 units of public housing, the City had

“crossed the line of any form of fiscal or other govern-

mental responsibility.’’

Concerning the suggestion that the Court, rather than

the City, adopt the Affordable Housing Ordinance, the

Court observed:

[Thjere does have to come a moment of truth, a

moment of reckoning, a moment when the City of

Yonkers seeks not to become the national symbol of

defiance to civil rights and to heap shame upon shame

upon itself, but to recognize its obligation to conform

to the laws of the land and not step by step, order by

order, but in the way in which any responsible com-

munity concerned about the welfare of its citizens

functions. That is not going to be accomplished by

this court adopting the ordinance.

Finally, the Court rejected the claim that the contempt

sanctions were punitive:

What could be more remedial and less punitive than a

fine schedule that begins at $100 a day? $100 for the

first day is not going to bankrupt Yonkers. $200 for

the second day is not going to bankrupt Yonkers. The

dire picture that you paint supposes: A that the con-

tempt continues; and B that no other agency inter-

venes. As I have said on a number of occasions, this

court is not the only entity which is bound by oath to

protect and defend the constitution.

The Court held the City in contempt, imposed the coer-

cive sanctions set forth in the July 26 order, and entered

written findings of fact.

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The District Court then considered the four council

members who had voted against the resolution of intent to

adopt the Affordable Housing Ordinance, Nicholas

Longo, Edward Fagan, Peter Chema, and Henry Spal-

lone. Counsel for Longo and Fagan requested an adjourn-

ment to familiarize himself with the case. The District

Court denied th: request, expressing the view that the

council members had been on notice since July 26 of the

prospect they faced and the need to have counsel. The

Court stated that it would proceed with the contempt

adjudication but would afford counsel the opportunity at

a later time to be heard with respect to any theory or cir-

cumstance not available at this time. Counsel then asserted

that his clients had not acted in bad faith and contended

that they had opposed the resolution of intent because

adoption of the Affordable Housing Ordinance would

have violated state law requirements for notice and hear-

ing of zoning changes. When the Court inquired whether

counsel was representing that but for the claimed proce-

dural defect, the council members would have voted for

the resolution, no such assurance was given. Nor was such

assurance given when Longo and Fagan each addressed

the Court directly.

Counsel for Chema requestéd a two-week adjournment,

which was denied. The District Court again stated its

determination to proceed that day but afforded counsel

the opportunity to reopen the matter thereafter. The

Court also offered the opportunity for an immediate evi-

dentiary hearing, which was declined. The Court then

ascertained from Chema that he had received notice of the

July 26 order and had voted against the resolution of

intent the previous evening.

The District Court found Longo, Fagan, and Chema in

contempt and imposed a set forth in the July

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2%6 order. The Court also stated that, if any contemnor

wished an evidentiary hearing, such request should be

made by August $ and that a hearing, if requested, would

be held August 8. The Court again stated that ‘‘to obviate

this question of state law and the dates contained in the

state law provision” a vote in favor of a resolution of

intent would constitute a purging of the contempt.

The fourth council member, Spallone, appeared with-

out counsel and requested and was granted 24 hours to

retain counsel. Spallone appeared with counsel at a hear-

ing on August 4. At that time his counsel acknowledged

that there was no factual issue in dispute. Counsel con-

tended that his client could not be found in contempt

because a legislator had an “‘unfettered’’ right to vote as

he wishes. Counsel also urged that if the Court’s order was

violated, ‘‘it was done by the coun{ci}l corporate body per

se.’ Finally, reversing the contention of the City, he urged

the Court to “[pJunish the City of Yonkers, but don’t

punish my client.”’

The District Court found Spallone in contempt and

made the finding retroactive to August 2.” By August 5 all

four council members had informed the District Court

that no evidentiary hearing was sought.

The District Court denied requests for stays by the City

and the four council members. On August 9, after fines

for seven days had become due, this Court stayed the con-

tempt sanctions and ordered an expedited appeal. At the

hearing of that appeal on August 17, the Court was

informed that the public hearing noticed by the City

Council on August | had been held on August 15. We were

2 Spallone has not challenged on appeal the retroactive aspects of the

civil contempt sanction imposed upon him, and we decline to consider

the issue sua sponte. ,

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also informed that at the August 15 meeting the Council

voted against the Affordable Housing Ordinance by a vote

of four to three.

Discussion

A. The Council Me:nbers

1. Procedural Objections

The four council members contend that their contempt

adjudications occurred without observance of the proce-

dural protections of the Due Process Clause and those

normally required for civil contempt proceedings. They

contend that the proceedings were not initiated by orders

to show cause, that they received inadequate notice of the

charges, that their counsel were denied a reasonable time

to prepare their defense, that issues concerning intent were

not sufficiently explored, that the United States was not

odliged to sustain its burden of proof, and that the judg-

ments of contempt fail to identify the precise order vio-

lated.

A person charged with civil contempt is entitled to

notice of the allegations, the right to counsel, and a hear-

ing at which the plaintiff bears the burden of proof and

the defendaat has an opportunity to present a defense. See

In re Kitchen, 706 F.2d 1266 (2d Cir. 1983); In re Rosahn,

671 F.2d 690 (2d Cir. 1982); Jn re Di Bella, $18 F.2d 955

(2d Cir. 1975); see also Rule 43(a) of the Rules of the

Southern and Eastern Districts of New York.

With one exception, procedural requirements were fully

observed. The order of July 26 served as a show cause

order, giving the council members notice that in the event

of a failure to comply with the requirements of that order,

they would be obliged to show cause why they should not

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be adjudicated in contempt for such failure. The order

went even further than required by alerting the council

members beforehand as to the precise sanctions that

would be imposed in the event of noncompliance. Though

the council members were not then defendants in the liti-

gation, as officers of the defendant City, see N.Y. Pub.

Off. Law § 2 (McKinney 1988), they were bound by that

order and all of the injunction orders issued against the

City, see Fed. R. Civ. P. 65(d), even without notice of

them, Dole Fresh Fruit Co. v. United Banana Co., 821

F.2d 106, 109 (2d Cir. 1987). In any event, the District

Court required the City to post the July 26 order conspicu-

ously, and none of the council members contends that he

was not aware of its requirements.

Each council member appeared with counsel, and each

was accorded an opportunity to present evidence and legal

argument. The need for the plaintiffs to present evidence

to sustain their burden of proof was obviated by the City’s

representation, undisputed by any of the four council

members, that each had voted against the resolution of

intention at the August | meeting of the City Council. As

to the alleged lack of precision as to the precise order vio-

lated, the District Court’s oral and written rulings specify

that the council members are adjudged in contempt for

violation of the July 26 order. Defendants contend that

they are uncertain whether they have been cited for failing

to vote in favor of the Affordable Housing Ordinance or

for voting against the resolution of intention to adopt that

ordinance. The action required of them by the July 26

order was to vote in favor of the Affordable Housing

Ordinance. They failed to do so on August | and were

found to be in contempt for that failure. The resolution of

intention was a device offered by the District Court as a

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means of satisfying the July 26 order while still observing

the notice and hearing time requirements of state law. The

vote against that resolution was clear evidence that the

four council members were unwilling to obey the require-

ments of the July 26 order.

Of more substantial concern is the complaint that coun-

sel were given inadequate time to present a defense. We

are not persuaded by the District Court’s point that the

order of July 26 provided the council members tim: to

retain counsel and time for counsel to become prepared in

the event that noncompliance occurred on August 1. A

council member is not obliged to retain counsel in advance

of the occasion when his action may subject him to con-

tempt, especially in the circumstances of this case, where

the affirmative vote of any one of the four council mem-

bers would have meant that none faced contempt.

We think it would have been preferable, even in the face

of the protracted defiance demonstrated on this record,

for the District Court to have accorded counsel at least a

few days to prepare their defenses. Nevertheless, we see no

basis for concluding that the promptness of the adjudica-

tions warrants setting them aside. None of the four con-

temnors sought the opportunity that was afforded them of

pursuing an evidentiary hearing. There were no factual

disputes to be resolved. Counsel were impaired, at most,

in their ability to develop their contentions of law. Since,

as will appear, we agree that all such contentions, now

fully briefed and argued, are without merit, it would be

idle to return the matter to the District Court to renew rul-

ings that we are today holding were entirely correct.

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2. Abuse of Discretion

In different ways the council members contend that the

District Court exceeded its discretion in adjudicating them

in contempt. One argument is that the Court on July 26

should not have directed the council members to vote for

the Affordable Housing Ordinance once the Council had

defeated an earlier resolution of intention on June 28.

Another argument is that once the vote of August |

occurred, the Court should not have adjudicated the coun-

cil members in contempt. Underlying both arguments is

the contention that a less confrontational resolution of the

matter could have been achieved had the District Court

selected the alternatives of either appointing a commission

to exercise the Council’s housing and related powers or

ordering the Affordable Housing Ordinance into effect.

These arguments blend two somewhat different propo-

sitions of law, but in the end, both are unavailing. In chal-

lenging the District Court’s decision to require the Council

to enact the Affordable Housing Ordinance, the contem-

nors are alleging an abuse of discretion in the Court's

choice of remedies for the constitutional violations adjudi-

cated in 1986. As the contemnors point out, a District

Court, though endowed with broad discretion in fashion-

ing remedies for constitutional violations, see Swann v.

Charlotte-Mecklenburg Board of Education, 402 U.S. |

(1971), must exercise restraint in determining what actions

ought to be required of state and local governmental offi-

cials. See Rizzo v. Goode, 423 U.S. 362, 380 (1976); Tous-

saint v. McCarthy, 801 F.2d 1080 (9th Cir. 1986), cert.

denied, 107 S. Ct. 2462 (1987); Ruiz v. Estelle, 679 F.2d

1115 (Sth Cir. 1982), cert. denied, 460 U.S. 1042 (1983). In

challenging the District Court's decision to impose coer-

cive contempt sanctions, the contemnors are alleging an

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abuse of discretion in the Court’s method of enforcing the

remedy that had been selected. Though there is no ques-

tion that courts have authority to enforce their lawful

orders through civil contempt, Shillitani v. United States,

384 U.S. 364, 370 (1966), the contemnors properly point

Out that in selecting contempt sanctions, a court is obliged

to use the ** ‘least possible power adequate to the end pro-

posed.’ ” Jd. at 371 (quoting Anderson v. Dunn, 19 U.S.

(6 Wheat.) 61, 69 (1821)).

In this case, however, there is a fundamental reason why

the choice of implementing legislation as a remedy and the

choice of coercive contempt sanctions to enforce compli-

ance with that remedy cannot possibly be an abuse of the

District Court's discretion. That reason is the blunt fact

that the City agreed in the Consent Judgment to comply

with the Housing Remedy Order by the adoption of neces-

sary implementing legislation, specifically including tax

abatements and zoning changes. By its approval of the

Consent Judgment the City Council itself selected the rem-

edy of implementing legislation and cannot complain that

the District Court approved the agreement. Moreover,

once committed by its own agreement to adopting imple-

menting legislation, the Council cannot complain that its

obligation is enforced by the coercive sanctions of civil

contemp Consent judgments are important devices for

resolving difficult controversies. Their effectiveness

depends on the ability of all concerned to rely on the

enforcement of their terms. In the context of a consent

judgment, use of civil contempt sanctions is the “‘least

possible power adequate to the end proposed’’ because

faithful performance of the agreement is precisely the end

proposed.

To the extent that the council members are contending

that the District Court exceeded its discretion in ordering

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them to adopt the precise terms of the Affordable Housing

Ordinance, this argument also is unavailing. The Consent

Judgment had obliged the City not only to enact imple-

menting legislation but to furnish within three weeks a

long-term plan spelling out the details on matters left unre-

solved in the consent judgment. Upon the City’s default of

that obligation, the District Court was fully entitled to

proceed with efforts to formulate a long-term plaz. The

Court proceeded cautiously, according the City a full

opportunity to draft the plan and ultimately accep‘ing

nearly everything that the City proposed. Similarly, wivh

the specifics of the Affordable Housing Ordinance, the

District Court afforded the City the opportunity to have

its consultants draft the ordinance and accepted the draft

they produced. By ordering passage of the Affordable

Housing Ordinance, the District Court was carrying out

the terms of the Consent Judgment under which the City

agreed to adopt implementing legislation on tax abate-

ments and zoning changes and doing so with details sup-

plied by the City itself. The order of July 26 was well

within the discretion of the District Court, as was its deci-

sion to enforce that order by civil contempt sanctions.

3. State Law Objection

Council member Chema contends that the order of July

26 cannot be enforced by contempt sanctions because it

violates state law requiring notice and hearing of proposed

changes in zoning ordinances. N.Y. Gen. City Law § 83

(McKinney 1968). The argument is unavailing. In the first

place, the supremacy of federal law, including federal

court orders to implement remedies for federal constitu-

tional and statutory violations, prevails over conflicting

state laws. See Cooper v. Aaron, 358 U.S. 1 (1958). More-

over, the District Court made clear in its letter to counsel

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of July 28 that the order of July 26 would be satisfied if

the Council “adopts a resolution committing itself to

enact the Affordable Housing Ordinance within the mini-

mum time prescribed for notice pursuant to state law.”’

This alternative means of compliance with the July 26

order was reiterated in the August 2 hearing at which the

council members were adjudicated in contempt.

It may be contended that by requiring a resolution of

intention by August |, prior to the August 15 hearing on

the Ordinance, the District court was observing the notice

requirement of state law but overriding the substance of

the hearing requirement by ordering the Council to com-

mit itself to an Ordinance before it had the benefit of input

from the public. We do not understand the District Court

to have simultaneously permitted time for the public hear-

ing and also precluded consideration of its results. Obvi-

ously, the basic issue of adopting an ordinance that

implemented the Housing Remedy Order, the Consent

Judgment, and the Long Term Plan Order had been deter-

mined and would not be open for reconsideration as a

result of the public hearing. To that extent, the state law

hearing requirement was properly overridden by para-

mount federal law. But there is no reason to believe that

the District Court intended to bar consideration by the

Council of useful suggestions tendered at the public hear-

ing that might improve specific provisions of the Afforda-

ble Housing Ordinance. The hearing would still be useful

to the extent that it generated suggestions not inconsistent

with achieving the basic objectives of the remedial orders

that had been entered. The Council has at all times been

free to seek modification of the terms of the proposed

ordinance, which the City’s consultants drafted, but no

such reouest has been made. Finally, we note that after the

public hearing was held on August 15, the four individual

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contemnors again voted against the Affordable Housing

Ordinance.

4. Legislative Immunity

The major defense asserted by the council members is

that they are entitled to legislative immunity and that such

immunity prohibits a district court from compelling them

to vote in favor of a particular ordinance. There is no

‘in the sphere of legitimate legislative activity. .

Brandhove, 341 U.S. 367, 376 (1951); see Supreme

of Virginia v. Consumers Union of the United States, Inc.,

446 U.S. 719, 731-23 (1980). The Supreme Court has

extended such immunity to “‘regional legislators,” Lake

Country Estates, Inc. v. Tahoe Regional Planning

Agency, 440 U.S. 391 (1979), but has expressly left open

the question whether such immunity extends to “‘individ-

aals performing legislative functions at the purely local

level,”” id. at 404 0.26. Prior to Lake Country Estates, a

number of circuits had denied immunity to local legislative

officials, see Williams v. Anderson, S62 F.2d 1081, 1101

(8th Cir. 1977) (school board members); Jones v. Dia-

mond, $19 F.2d 1090, 1101 (Sth Cir. 1975) (county super-

visors); Curry v. Gillette, 461 F.2d 1003, 1005 (6th Cir.)

(aldermen), cert. denied, 409 U.S. 1042 (1972); Progress

Development Corp. v. Mitchell, 286 F.2d 222, 231 (th

Cir. 1961) (village board of trustees); Cobb v. City of

Malden, 202 F.2d 701, 706-07 (ist Cir. 1953) (Magruder,

C.J., concurring) (city councilmen), but after the Supreme

Court extended immunity to regional legislators, seven cir-

cuits ruled that similar immunity is available to local legis-

lators, see Aitchison v. Raffiani, 708 F.2d 96, 98-100 (3d

Cir. 1983); Reed v. Village of Shorewood, 704 F.2d 943,

952-53 (7th Cir. 1983); Espenola Way Corp. v. Meyerson,

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690 F.2d 827 (llth Cir. 1982), cert. denied, 460 U.S. 1039

(1983); Kuzinich v. County of Santa Clara, 689 F.2d 1345,

1349-50 (9th Cir. 1982); Hernandez v. City of Lafayette,

643 F.2d 1188, 1193-94 (Sth Cir. Unit A 1981), cert.

denied, 445 U.S. 907 (1982); Bruce v. Riddle, 631 F.2d 272

(4th Cir. 1980); Gorman Towers v. Bogoslavsky, 626 F.2d

607, 611-14 (8th Cir. 1980).

Even if we assume for purposes of this appeal that city

council members enjoy the same immunity available to

state legislators, we would seriously doubt that such

immunity insulates them from district court orders requir-

ing them to comply with remedial decrees redressing con-

stitutional violations. The Supreme Court has instructed a

district court that, if necessary to secure compliance with a

prior federal court remedial decree, it could order county

legislators “‘to exercise the power that is theirs to levy

taxes’’ to reopen the public schools of Prince Edward

County, Virginia. Griffin v. County Schodl Board, 377

U.S. 218, 233 (1964). Though appellants minimize the

force of this instruction by calling it dictum, since the need

to issue such an order had not then arisen, it is especially

forceful dictum when the Supreme Court specifically

informs a district court what action it may take in the

course of significant litigation. If it had become necessary

to order the county legislators to levy taxes, there can be

no doubt that the Supreme Court expected the district

court to make sure that its order was enforced.

The Supreme Court has also upheld a district court's

remedial order that required state and local officials to

provide necessary public funds to implement a school

desegregation plan. Milliken v. Bradley, 433 U.S. 267

(1977). In Milliken the Court expressly rejected an immu-

nity defense based on Eleventh Amendment sovereign

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immunity—a claim at least as substantial as the immunity

defense now asserted by the four council members. The

Court pointed out that though a state enjoyed immunity

from damage actions, its immunity did not insulate it from

a district court judgment requiring prospective action to

comply with constitutional requirements, even when com-

pliance would have ‘‘a direct and substantial impact on the

state treasury.”’ Jd. at 289. See also Edelman v. Jordan,

415 U.S. 651 (1974). This Court has also approved an

order of a district court compelling a city’s legislative body

to vote in favor of funds required to secure compliance

with court-ordered remedies for constitutional violations.

Arthur v. Nyquist, 712 F.2d 809 (2d Cir. 1983), cert.

denied, 466 U.S. 936 (1984). See also United States v. City

of Parma, Ohio, 661 F.2d 562 (6th Cir. 1981) (requiring

enactment of city ordinance), cert. denied, 456 U.S. 926

(1982).

Indeed, in one of the cases cited to us in support of legis-

lative immunity, Star Distributors, Ltd. v. Marino, 613

F.2d 4 (2d Cir. 1980), we expressly distinguished litigation

in which a state legislature had been enjoined ‘from con-

tinuing its defiance of federal court desegregation

orders.” Id. at 10 (citing Bush v. Orleans Parish School

Board, 191 F. Supp. 871 (E.D. La.) (three-judge court),

aff’d sub nom. Denny v. Bush, 367 U.S. 908 (1961)). The

three-judge court in Bush had rejected the defense of legis-

lative immunity on the ground that the Louisiana legisla-

ture was acting in an administrative capacity, see Bush v.

Orleans Parish School Board, 188 F. Supp. 916, 922 (E.D.

La. 1960) (three-judge court), aff'd, 365 U.S. 569 (1961),

but our discussion of the Bush litigation in Star Distribu-

tors makes it clear that we did not consider legislative

immunity to be a defense to orders issued ‘‘to vindicate the

authority of a federal court.’’ 613 F.2d at 10.

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On this appeal, however, we need not definitively decide

whether as a general matter a district court may order city

council members to vote in favor of a particular ordi-

nance, even to implement remedies for constitutional vio-

lations. This appeal presents the more narrow issue

whether such an order may be entered and enforced by

contempt sanctions after a city has agreed to entry of a

consent judgment committing itself to enact implementing

ordinances and a city’s legislative body has voted in favor

of such a consent decree. On that narrow issue, we have no

doubt that federal court authority must prevail. No liti-

gant, least of all public officials sworn to uphold the Con-

stitution of the United States, may be permitted to avoid

compliance with solemn commitments they have made in a

consent judgment entered by a federal district court to

remedy constitutional violations. Without intending to

cast doubt on a district court’s authority to order legisla-

tive action in contested litigation concerning the appropri-

ate choice of remedies for constitutional violations, we

note that the Supreme Court has recently observed that

consent judgments may contain enforceable obligations

that might have been beyond the authority of a district

court to enter in contested litigation. See Local No. 93,

Int’l Ass'n of Firefighters v. City of Cleveland, 478 U.S.

501 (1986).

Nor is there any merit in appellant Spallone’s Suggestion

that he may not be required to implement the Consent

Judgment because he voted against its approval as a mem-

ber of the City Council. A federal court must be able to

rely upon the assurances given by municipalities and their

legislative bodies, without regard to the dissenting votes of

individual local officials. Once the Yonkers City Council

approved the terms of the Consent Judgment, the Council

became obligated to carrying out its commitments. If a

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member of the Council is unwilling to abide by such com-

mitments, his option is to decline to serve on the body that

is bound, not to act in defiant disregard of the commit-

ments and the federal court judgment that memorializes

them.

Whatever the scope of local legislators’ immunity, it

does not insulate them from compliance with a consent

judgment to which their city has agreed and which has

been approved by their legislative body.

5. First Amendment

The council members’ assertion of a First Amendment

defense to the July 26 order and its enforcement requires

no extended discussion. Even if we acknowledge that the

act of voting has sufficient expressive content to be

accorded some First Amendment protection as symbolic

speech, the public interest in obtaining compliance with

federal court judgments that remedy constitutional viola-

tions unquestionably justifies whatever burden on expres-

sion has occurred. See United States v. O’Brien, 391 U.S.

367 (1968). The council members remain free to express

their views on all aspects of housing in Yonkers. But just

as the First Amendment would not permit them to incite

violation of federal law, see Brandenburg v. Ohio, 395

U.S. 444, 447 (1969) (per curiam); Dennis v. United

States, 341 U.S. 494 (1951), it does not permit them to

take action in violation of such law.

B. The City

To the extent that the City advances the same objections

as the council members, particularly the contention that

the District Court should have chosen to adopt the Affor-

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dable Housing Ordinance itself or to appoint a commis-

sion to exercise the City’s housing functions, we need not

repeat our reasons for rejecting those objections. Three

contentions, however, require further discussion.

1. Defense of Impossibility

The claim most vigorously pressed by the City is the

defense of impossibility. The City contends that enact-

ment of the Affordable Housing Ordinance requires an

affirmative vote of a majority of the City Council and that

the City, as a corporate entity, is powerless to compel the

council members to act. We recognize that civil contempt

sanctions may not be imposed upon a person or entity

unable to comply with a court’s orders. See Shillitani v.

United States, supra, 384 U.S. at 371; Maggio v. Zeitz,

333 U.S. 56, 76 (1948). Nevertheless, we conclude that the

City’s defense of impossibility is unavailing.

Preliminarily, we have some doubt whether the City has

done everything it can, apart from securing the favorable

votes of a Council majority, to obtain compliance with the

orders of the District Court. The City has not requested

the Governor of New York to use whatev<« authority he

may have to remove local officials for misconduct, nor has

the City requested the New York Emergency Financial

Control Board for the City of Yonkers to take whatever

action its broad authorizing statute permits it to take

under the current circumstances, 1984 N.Y. Laws ch. 103.

More fundamentally, we agree with the position urged

by the United States that the City cannot view itsei as an

entity separate from the City Council for purposes of com-

plying with the Consent Judgment. The City bound itself

to take necessary legislative action when it agreed to the

Consent Judgment, which explicitly calls for implement-

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ing legislation. Having made that commitment, the City

may properly be subjected to the coercive force of civil

contempt sanctions until compliance with its commitment

occurs. The suggestion that the administrative officials of

the City are willing to comply but cannot take legislative

action conjures up a scheme of separated powers that does

not obtain in Yonkers. For purposes of taking official

governmental action, the City of Yonkers is the City

Council and vice versa. The Council sets municipal policy,

see Pembaur v. City of Cincinnati, 475 U.S. 469, 481

(1986) (‘‘where action is directed by those who establish

governmental policy, the municipality is equally responsi-

ble’’ with city’s authorized decisionmakers), it appoints

and can replace the city manager, and it is the principal

agency of governance for the City. There is not even a sep-

arately elected executive authority. The mayor is a council

member elected to the Council in a citywide election; the

other council members are elected from districts. Under

the circumstances of this case, the Council’s defiance of

the Consent Judgment and the implementing orders of the

District Court is the defiance of the City, and the City,

along with the defiant council members, may be subject to

civil contempt sanctions. As the Supreme Court has

observed, “If a state agency refuses to adhere to a court

order, a financial penalty may be the most effective means

of insuring compliance.’’ Hutto v. Finney, 437 U.S. 678,

691 (1978). The same may be said of a city.

The City further contends that even if it can legally be

held in civil contempt because of the violation of the July

26 order, it was an abuse of discretion to do so under the

circumstances here presented, especially since the District

Court had available the alternative of ordering the Affor-

dable Housing Ordinance into effect. We conclude, how-

ever, that the District Court neither erred as a matter of

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law nor exceeded its permissible discretion by using con-

tempt sanctions to coerce the City to fulfill commitments

that it had undertaken in the Consent Judgment or by

determining that such sanctions were necessary to achieve

enactment of the Ordinance.

2. State Law Objection

The City asserts a state law objection different from the

council members’ claim concerning notice and hearing

requirements for zoning changes. The City contends that it

lacks the authority under state law to grant the tax abate-

ments required by the Long Term Plan Order. It acknow!l-

edges some authority to grant tax abatements, see N.Y.

Real Prop. Tax Law § 421-c (McKinney 1984), but con-

tends that the Long Term Plan Order requires tax abate-

ments per.=issible only for cities of more than one million

population, id. § 421-a(2)(a).

We cannot be certain whether the District Court, in issu-

ing the Long Term Plan Order, intended to override state

law in the belief that the specified tax abatements were

necessary to remedy the violations that have occurred or

intended to require only those tax abatements consistent

with state law. The Court clearly had the power to over-

ride state law to implement its judgment, but we are not

certain that it intended to use such power. We need not

resolve the uncertainty at this time, however, because the

City’s challenge is to the provisions of the Long Term Plan

Order, not the Affordable Housing Ordinance, which is

the subject of the pending contempt adjudication. The

Ordinance refers to tax abatements but does not imple-

ment them. See proposed Affordable Housing Ordinance

§ 2(a) n.*. Under the circumstances, we will not disturb

the contempt adjudication but will grant leave to the City

to seek clarification from the District Court whether it

$783

32e

intends to order tax abatements that override state law or

only such abatements as are consistent with stat

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