Respondents Brief — Spallone v. United States

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UNITED STATES OF AMERICA, ET AL.

PETER CHEMA, PETITIONER

v.

UNITED STATES OF AMERICA, ET AL.

NICHOLAS LONGO AND EDWARD FAGAN, PETITIONERS

¥

UNITED STATES OF AMERICA, ET AL.

ON WRIT OF CERTIORARI TO y

THE UNITED STATES COURT OF APPEALS oa!

FOR THE SECOND CIRCUIT +

BRIEF FOR THE UNITED STATES

KENNETH W. STARR

Solicitor General

JAMES P. TURNER

Acting Assisiant Attorney General

DAVID L. SHAPIRO

Deputy Solicitor General

MICHAEL R. LAZ “RWITZ

Assistant to the Solicitor General

(1)

TABLE OF CONTENTS

Page

aL dete uebasdbccsecvetesevsseess !

eo. ce adeewecaceccccecedcees 2

EE a re 2

a Da. wk nab cleewhoccoes 18

Argument:

The district court properly imposed civil contempt sanc-

tions against individual members of the Yonkers City

Council for obstructing the City of Yonkers’ compliance

EE SS Cn Se 22

A. The district court has authority to impose civil con-

_tempt sanctions against individual members of the

Yonkers City Council for obstructing the City of

Yonkers’ compliance with valid court orders ....... 22

B. The doctrine of legislative immunity does not shield

individual members of the Yonkers City Council

from sanctions for obstructing the City of Yonkers’

compliance with valid court orders ............... 27

C. The First Amendment does not shield individual

members of the Yonkers City Council from sanctions

for obstructing the City of Yonkers’ compliance with

Ce lic ket eese en sce. 39

D. The district court properly exercised its discretion to

bring about compliance with its orders by holding in-

dividual members of the Yonkers City Council in

contempt rather than by ordering legislation into ef-

fect itself or by appointing a commission to do so ... 42

Neen eee et cececccees 48

TABLE OF AUTHORITIES

Cases:

Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970) ....... 25, 37

Aitchison v. Raffiani, 708 F.2d 96 (3d Cir. 1983) ........ 29

Alemite Mfg. Corp. v. Staff, 42 F.2d 832 (2d Cir. 1930) .. 23

Alexander v. Holmes County, 396 U.S. 19 (1969) ....... 36

Amy v. The Supervisors, 78 U.S. (11 Wall.) 136 (1870) ... 30

Anderson v. Dunn, 19 U.S. (6 Wheat.) 204 (1821) ....... 42, 43

(11)

IV

Cases — Continued: Page

’ Bates v. State Bar of Arizona, 433 U.S. 350 (1977) ...... 35

Bessette v. W.B. Conkey Co., 194 U.S. 324 (1904) ...... 23

Board of Commissioners v. Aspinwall, 65 U.S. (24 How.)

376 (1860)........ gre weceescccevncenscerecceveces 31, 35

Bond v. Floyd, 385 U.S. 116 (1966) ....... 2... ....-45. 37

Brown v. Board of Educ., 349 U.S. 294 (1955) .......... 33, 36

Bruce v. Riddle, 631 F.2d 272 (4th Cir. 1980) ........... 29

Bush v. Orleans Parish School Bd., 188 F. Supp. 916

OS BO BR bid cdncsnes cddevedecesewecsseses: 33

Bush v. Orleans Parish School Bd., 191 F. Supp. 871

(E.D. La.), aff'd sub nom. Denny v. Bush, 367 U.S.

GPE wn ckcdenacabadetamaneetesscecednescse 33

Butz v. Economou, 438 U.S. 478 (1978) ............ 19, 27, 32

City of Galena v. Amy, 72 U.S. (5 Wall.) 705 (1866) ..... 31

Clark v. Marengo County, 623 F. Supp. 33 (S.D. Ala.

1985), aff'd, 811 F.2d 609 (lith Cir. 1987) ........... 37

Clarke v. United States, 705 F. Supp. 605 (D.D.C. 1988°,

appeal pending, No. 88-5439 (D.C. Cir.) ............. 40, 41

Columbus Bd. of Educ. v. Penick, 443 U.S. 449 (1979) ... 20, 36

Commissioners v. Sellew, 99 U.S. 624 (1878) ........ 31, 32, 33

Connett v. City of Jerseyville, 125 F.2d 121 (7th Cir.

ahh uid eeO dia abn ds bb dbsdc ccs pg eccees 31

Connick v. Myers, 461 U.S. 138 (1983) .... 2... 6.6.66. 41

Cooper v. Aaron, 358 U.S. 1 (1958) ....... 2... ee eee 19, 27

Copenhaver, In re, 54 F. 660 (C.C.W.D. Mo. 1893) ..... = 3)

County Commissioners v. Wilson, 109 U.S. 621 (1883) ... 31

East St. Louis v. Amy, 120 U.S. 600 (1887) ............. 30

Espanola Way Corp. v. Meyerson, 690 F.2d 827 (11th

Cir. 1982), cert. denied, 460 U.S. 1039 (1983) ......... 29

Forrester v. White, 108 S. Ct. 538 (1988) ...... 19, 20, 27, 28, 32

Gompers v. Bucks Stove & Range Co., 221 U.S. 418

Sink wcsseRb needs CEE AMA phdus epecerencesse 22, 23

Gorman Towers v. Bogoslavsky, 626 F.2d 607 (8th Cir.

ER TIES SESS POE ER See ee 29

Gravel v. United States, 408 U.S. 606 (1972) ............ 29, 39

Green v. County School Bd., 391 U.S. 430 (1968) ....... 36, 44

Griffin v. County School Bd.:

ie ed ok gaggisenecoeesonges 34, 36

a eS GE oo weet ccnscsecccssces 25

Gunn v. University Committee, 399 U.S. 383 (1970) ..... 23

V

Cases — Continued: Page

Hernandez v. City of Lafayette, 643 F.2d 1188 (Sth Cir.

1981), cert. denied, 455 U.S. 907 (1982) .............. 29

Jordan v. City of Greenwood, 599 F. Supp. 397 (N.D.

Es one cic Ledgh oben ct'ddeeecde oes 37

Kendall v. Stokes, 44 U.S. (3 How.) 86 (1845) .......... 35

Kilbourn v. Thompson, 103 U.S. 168 (1880) ............ 39

Kuzinich v. County of Santa Clara, 689 F.2d 1345 (9th

eee 6 Co Che's Cae dcbd nedeead beetbes 29

Labette County Commissioners v. Moulton, 112 U.S. 217

RRR, VE ay tape aay eer re) 31

Lac Vieux Desert Band of Lake Superior Indians v.

Waterssmeet Township, No. M82-161 CA (W.D. Mich.

SG PC ar i adedwiic cckécdes cccccubecdacve 36

Lake Country Estates, Inc. v. Tahoe Regional Planning

Agency, 440 U.S. 391 (1979) ................. 28, 29, 39, 40

Lennon, In re, 166 U.S. 548 (1897) ....... 2.2.0.2... 23, 25, 26

Local 28, Sheet Metal Workers v. EEOC, 478 U.S. 421

ES RE SE a EOE Ca a 44

Louisiana v. United States, 380 U.S. 145 (1965) ......... 33

McComb v. Jacksonville Paper Co., 336 U.S. 187

EE Sieh PRE E ED SERS SS MAES od 660 ses cdccens 33

Mobile v. Watson, 116 U.S. 289 (1886) ................ 30-31

O'Shea v. Littleton, 414 U.S. 488 (1974) ............... 29, 36

People ex rel. Pierce v. Guggenheimer, 44 App. Div. 399,

ET 31

Powell v. McCormack, 395 U.S. 486 (1969) ............ 36, 37

Reed v. Village of Shorewood, 704 F.2d 943 (7th Cir.

nites ees nha en dt ng bckeesecee seek 66's 29

Rees v. City of Watertown, 86 U.S. (19 Wall.) 107

a RRR ISS ge eg ne UE > a 31

Regal Knitwear Co. v. NLRB, 324 U.S. 9 (1945) .. 18, 23, 26, 33

Reynolds v. Sims, 377 U.S. 533 (1964) .... 2.226 6 6 43-44

Riggs v. Johnson County, 73 U.S. (6 Wall.) 166 (1867) . .. 31

Shillitani v. United States, 384 U.S. 364 (1966) .... 18, 22, 42, 43

State ex rel. Baumann v. Judge, 38 La. Ann. 43 (1886)... 31

State ex rel. Edwards v. District Court, 41 Mont. 369,

PIN TAES. bc ocudwdcdbesobeavetwedds << 31

Supervisors v. Rogers, 74 U.S. (7 Wall.) 175 (1869) ...... 43

VI

Cases — Continued: Page

Supervisors v. United States, 71 U.S. (4 Wall.) 435

Ct As ts spaskadbkestveusd deckbévanseasKees 31

Supreme Court of Virginia v. Consumers Union, 446

ED eee eel ccucnnncendacdages 20, 28, 35, 36, 39

Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S.

DBE Ba ad So dulba 6nbcdsidcbabbod 66466064 cckdee's 33, 44

Tenney v. Brandhove, 341 U.S. 367 (1951) ....... 28, 32, 39, 40

The President ex rel. Moran v. Mayor, 40 F. 799

ois hn whe badeebihtere sccevecces 31

United States v. Ballin, 144 U.S. 1 (1892) .............. 26

United States v. City of Parma, 661 F.2d 562 (6th Cir.

1981), cert. denied, 456 U.S. 926 (1982) .............. 36

United States v. Fleischman, 339 U.S. 349 (1950) ........ 26, 33

United States v. Gillock , 445 U.S. 360 (1980) ........ 20, 28-29,

34, 36, 37

United States v. Green, 53 F. 769 (C.C.W.D. Mo. 1892) .. 31

United States v. Hall, 472 F.2d 261 (Sth Cir. 1972) ...... 25

United States v. Hudson & Goodwin, \1 U.S. (7 Cranch)

SD .24 55 de bed Obi eben bdbindebse¥00e dss cee 22

United States v. Lovasco, 431 U.S. 783 (1977) ........ 24-25, 37

United States v. Nixon, 418 U.S. 683 (1974) ............ 20, 34

United States v. Onslow County, 683 F. Supp. 1021

I I sh Oe Ok Br cee eeee 37

United States v. Paradise, 480 U.S. 149 (1987) .......... 43

United States v. Town of Cicero, Illinois, No. 83 C 413

i es IE. 6 coh ctdiccegavecdisocces 36

United States v. United Mine Workers, 330 U.S. 258

SE cunietaicidteeeseidebesds sveecesce 22, 33, 44

United States v. Yonkers Bd. of Educ.:

624 F. Supp. 1276 (S.D.N.Y. 1985) ............... 2,3

635 F. Supp. 1577 (S.D.N.Y. 1986) ............... 3,4, 5

No. 80 CIV 6761 (S.D.N.Y. May 28, 1986) ......... 3

675 F. Supp. 1407 (S.D.N.Y. 1987) ............... 8

675 F. Supp. 1413 (S.D.N.Y. 1987) ............... 4

837 F.2d 1181 (2d Cir. 1987), certs. denied, 108

BG ced re nevedinedds vocce cs 9, 13, 23

No. 89-6050 (2d Cir. Apr. 17, 1989) ............... 38

United States ex rel. Huidekoper vy. Buchanan County,

24 F. Cas. 1288 (C.C.W.D. Mo. 1878) (No. 14,679) ... 31

United States ex rel. Jones v. City of West Palm Beach,

Be eed Ss MED oc dp ecccoccepegevecseces 31

Vil

Cases — Continued: . Page

United States ex rel. Thompson v. Lee County, 26 F.

Cas. 911 (C.C.N.D. Ill. 1869) (No. 15,589) ........... 31

United States ex rel. Watis v. Justices of Lauderdale

County, 10 F. 460(C.C.W.D. Tenn. 1882) ........... 31

Von Hoffman v. City of Quincy, 71 U.S. (4 Wall.) 535

EEN ESS IO SEE Eee Pee 31

Westfall v. Erwin, 108 S. Ct. 580 (1988) ............... 30, 32

Wise v. Lipscomb, 437 U.S. 535 (1978) ................ 43

Wrzeski v. City of Madison, 558 F. Supp. 664 (W.D.

SER he kan. wudusestéonssoctassece 40

Yonkers Racing Corp. v. City of Yonkers, 858 F.2d 855

(2d Cir. 1988), cert. denied, 109 S. Ct. 1527 (1989) .. 12, 18, 38

Yost v. Dallas County, 236 U.S. 50 (1915) ............. 30, 43

Young v. United States ex rel. Vuitton, 481 U.S. 787

tt Aone esti iedelseldéentees dveocunese 22

Constitution, statutes, regulations, and rules:

U.S. Const:

Art. 1, § 6, Cl. 1 (Speech or Debate Clause) .. 19, 28, 37, 39

i 33, 47

icine renee) coccates'oes> t 21, 39, 40, 41, 42

Amend. XIV (Equal Protection Clause) ........... 3

Civil Rights Act of 1871, 42 U.S.C. 1983 ......... 28, 29, 30, 35

Civil Rights Act of 1968, Tit. VIII (Fair Housing Act),

ED eee bc kb dec cecedécedcedes 3, 29, 36

District of Columbia Appropriations Act, 1989, Pub. L.

No. 100-462, Tit. 1, § 145, 102 Stat. 2269 ............ 40

Voting Rights Act ot 1965, 42 U.S.C. 1973 ef seg. ....... 36

owes eceue 22

N.Y. Pub. Off. Law § 2 (McKinney 1952) ............ 26

City of Yonkers Charter (1966):

De ns cesiwesese ; 10

ade rhe 34

Art. IV:

Ee dee ude. . cab cans abate bale 34

EY en ey SL ae arg S 34

ln i hi i, eee eee

In the Supreme Court of the United States

OCTOBER TERM, 1988

No. 88-854

HENRY G. SPALLONE, PETITIONER

Vv.

UNITED STATES OF AMERICA, ET AL.

No. 88-856

PETER CHEMA, PETITIONER

v.

UNITED STATES OF AMERICA, ET Al.

No. 88-870

NiCHOLas LONGO AND EDWARD FAGAN, PETITIONERS

Vv.

UNITED STATES OF AMERICA, ET AL.

ON WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES

The opinion of the court of appeals (Pet. App. la-35Sa) is

reported at 856 F.2d 444.' The pertinent orders and opinions of

the district court contained in the joint appendix are un-

reported: order requiring compliance with consent decree, July

' “Pet. App.” refers to the appendix to the petmion in No. 88-854.

(1)

- es * — = Ke SCC COC OCT

2

26, 1988 (J.A. 397-400); modification letter, July 28, 1988 (J.A.

401); oral opinions finding petitioners in civil contempt, August

2 and 4, 1988 (J.A. 429-431, 443, 475-476); order adjudicating

petitioners ir civil contempt, August 2, 1988 (J.A. 445-447).

JURISDICTION

The judgment of the court of appeals was entered on August

26, 1988. The petitions for a writ of certiorari were each filed on

November 23, 1988, and were granted on March 6, 1989.? The

jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT’

1. After morc than 90 days of trial, the district court issued

a decision on November 20, 1985, holding the City of Yonkers

liable for a pattern and practice of intentional racial discrim-

ination in the selection of sites for public and subsidized hous-

ing. United States v. Yonkers Bd. of Educ., 624 F. Supp. 1276,

1289-1376 {(S.D.N.Y. 1985).* Vhe district court held that the

The Court limited its grant of certiorari in No. 88-856 to the first five

Questions presented in the petition. J.A. 624.

> The contempt adjudications at issue arose during the remedial phase of

the-civil rights action initiated in 1980 by the United States against the City of

Yonkers, the Yonkers Community Development Agency, and the Yonkers /

Board of Education. Because the orders before this Court must be reviewed

within the context of the efforts by the City of Yonkers and the Yonkers City

Council to block compliance with the district court's remedial orders, we set

forth in some detail the procedural history of this case.

* The district court also held the City of Yonkers and the Yonkers Board of

Education liable for systemwide racial segregation in the Yonkers public

schools. United States v. Yonkers Bd. of Educ., 624 F. Supp. 1276, 1376-1545

(S D.N.Y. 1985).

The Yonkers Branch of the National Association for the Advancement of

Colored People (NAACP) and an individual minority student, by her next

friend, moved to intervene in the action as plaintiffs. In June 1981, the district

court granted leave to intervene and later certified the action as a class action

on behalf of all vilack residents of Yonkers who were residents of , or eligible to

reside in, public or subsidized housing in Yonkers, or who were parents of

students attending public school in Yonkers. See 624 F. Supp. at 1288 n.1.

——— a

3

City had violated the Equal Protection Clause of the Fourteenth

Amendment and Title VIII of the Civil Rights Act of 1968 (Fair

Housing Act), 42 U.S.C. 3601 ef seqg., by deliberately concen-

trating virtually all of its public and subsidized housing in the

southwest quadrant of Yonkers. The City’s purpose, the court

specifically found, was to maintain racial segregation. The court

based its holding in large part upon the actions and inactions of

the Yonkers City Council and individual Council members. See

624 F. Supp. at 1295-1328, 1342-1363, 1369-1372. In sum, the

court found that “for more than thirty years, the site selection

process for subsidized housing was dominated by the unwill-

ingness of the City Council to approve or support a site in the

face of community opposition,” and that this unwillingness was

motivated in significant part by “the desire to preserve existing

patterns of segregation.” Jd. at 1371.°

Following remedial proceedings, on May 28, 1986, the district

sourt entered its “Housing Remedy Order,” requiring the City

to take a number of actions — including legislative action by the

City Council — designed to facilitate the development of public

and other subsidized housing outside Southwest Yonkers.

United States v. Yonkers Bd. of Educ., 635 F. Supp. 1577

(S.D.N.Y. 1986). Part IV of the Housing Remedy Order re-

quired the City to designate sites for 200 units of public housing

in East Yonkers, and to submit both an acceptable Housing

Assistance Plan (HAP) and an executed grant agreement to

HUD. The Order provided that if the City failed to comply with

these requirements, the plainti/fs were to submit the HAP, the

* Evidence of segregative intent included City Council members’ ac-

quiescence in the community's racially influenced opposition to public and

subsidized housing outside areas of minority concemration (624 F. Supp. at

1369-1372), the City Council's reluctance to seck federal Section 8 housing cer-

tificates, and, when the certificates were obtained, the confining of their use to

minority families only in Southwest Yonkers (id. at 1342-1363).

The district court also issued supplemental findings of fact followmg the

remedial hearings, concluding that the City had continued its patiern of

discriminatory practices through the date of the Housing Remedy Order.

United States v. Yonkers Bd. of Educ., No. 8 CIV 6761 (5.D_.N.Y. May 28,

1986), slip op. 1-3.

4

grant agreement, and the proposed public housing sites to the

court and, upon approval, the court would deem the submis-

sions to have been made by the City. See id. at 1580-1581.*

Part VI of the Housing Remedy Order required the City to

develop and implement a plan, known as the Long Term Plan,

for the creation of assisted housing, other than public housing,

outside Southwest Yonkers. See 635 F. Supp. at 1582. The

district court declined to set a goal for the number of housing

units to be developed under the Long Term Plan, to establish a

timetable, or to prescribe how the housing should be provided.

Instead, the court left to the City, and to the City Council, both

the opportunity and the responsibility for proposing the

substantive aspects of the Plan. The City was to submit a pro-

posed Long Term Plan by November 1986. /bid.

2. The City appealed the district court's orders. Although

implementation of the Housing Remedy Order was not stayed

(Pet. App. 6a), the City took “no significant action to comply

with the 1986 Housing Remedy Order” during the year and a

half that its appeal of the district court’s orders was pending in

the court of appeals (id. at 7a).

a. The City “totally defaulted” in its obligation to designate

public housing sites under Part IV of the Housing Remedy

Order (Pet. App. 6a). As a result, under the terms of the Order,

the court deemed the City to have submitted three unused

* A grantee’s submission of an acceptable HAP and execution of a grant

agreement are prerequisites to the receipt of Community Development Block

Gram (CDBG) funds. See 24 C.F.R. 570.301(a)(4), 570.304(b). The HAP,

among other requirements, must set forth annual and three-year goals for the

number, type, and general location of assisted housing units to be developed

in the municipality, as well as the actions the grantee will take to achieve these

goals. See 24 C_F.R. 570.306. The City had previously committed itself to pro-

vide sites for 200 uns of assisted housing in East Yonkers as a condition to its

receipt of CDBG funds, but had never honored that commitment. See 635 F.

Supp. at 1580. The Housing Remedy Order's requirement that the Cit’ submit

an HAP and execute a grant agreement thus required the City to reaffirm its

commitment to the development of 200 units of public housing in East

Yonkers. Submission of these documents was also needed to establish the Af-

fordable Housing Trust Fund, which, with CDBG funds, will facilitate

development of housing under the Long Term Plan. See id. at 1581-1582. |

_ ee

5

school sites to be used for 140 units of the housing. 635 F. Supp.

1580-1581.’ In November 1986, the City also refused to submit

a proposed Long Term Plan, as required by Part VI of the

Order (Pet. App. 7a). In the following month, the United States

moved to have the City held in contempt. Instead of imposing

this sanction, however, the district court permitted the City to

appoint an Outside Housing Advisor (Advisor) to assist it in

carrying out the Housing Remedy Order (Pet. App. 7a; R. 233).

The Advisor reported to the court on his activities on April 9,

1987 (J.A. 35-46). In consultation with members of the City

Council, Yonkers community groups, and local clergy, the Ad-

visor was trying to identify additional public housing sites in

order to reduce the number of units on two of the three already-

designated sites, and to distribute the remaining units on sites

scattered throughout East Yonkers (J.A. 36-38). At a hearing

later that month, the Advisor identified eight such sites and ex-

plained how each could be made available for public housing.

Among the sites were three unused parcels that Westchester

County had given to the City for parkland (the County sites)

(J.A. 57-59). Use of these sites for public housing required ac-

tion by the County (J.A. 52).

b. On May 8, 1987, the City moved for an order modifying

the Housing Remedy Order in accordance with a resolution

passed by the City Council on April 15 (J.A. 69-78; see also J.A.

84-87). This resolution expressed the City Council’s support for

the Advisor’s scattered site plan. “ut conditioned that support

on a number of terms, incluwwag (1) a stay of all construction

until the City had exhausted its appeais from the district court's

orders; (2) limitations on the housing to be developed inder the

Long Term Plan; and (3) a requirement that committees of area

residents screen all applicants for public housing (J.A. 65-68).

Accordingly, the City’s motion:called for designation of scat-

tered public housing sites by the Advisor in consultation with

“site selection committees of local residents, community

’ The City also refused to submit an HAP or to execute a grant agreement

with HUD. Under the Housing Remedy Order, counsel for the United States

prepared these documents, which the court deemed to have been submutted by

the City.

leaders and elected officials from each affected ward of the

City” (J.A. 71-72), and included conditions similar to those in

the City Council's resolution (J.A. 73-74).

At a hearing on May 12, the district court offered to consider

the City’s motion and stated that it preferred a remedial plan

that would “embody to the maximum possible extent consistent

with the purposes of the housing remedy order the views of the

community itself” (J.A. 87). The court asked the City to

demonstrate that its motion was not merely a delaying tactic and

suggested that it take the preliminary steps necessary to obtain

control of the sites identified by the Advisor, namely, having the

City Council pass a resolution r*questing Westchester County to

permit the City to use the County sites for housing (J.A. 87-91).

By June 23, 1987, the City Council had neither passed the

suggested resolution nor taken any action to obtain the sites

proposed for public housing (J.A. 104-108). At a hearing on

that date, the City’s attorney informed the district court that the

City, Council was trying to devise a politically acceptable plan,

in which sites would be distributed “throughout the six wards,”

but the attorney could not assure the court that such a plan, or

indeed any action by the City Council, would be forthcoming

(J.A. 106, 108). The court reminded the City that the Advisor

had been appointed and that his search for anoiher plan had

been undertaken as an alternative to civil contempt and other

sanctions. The court stated that if the City Council did not pass

a resolution within a week, the court would then assume that the

Council did not intend to take any action (J.A. 106-108).

By July 1, 1987, the City had done nothing to advance its pro-

posed alternative plan or otherwise comply with the Housing

Remedy Order. Accordingly, on that date, on motions by the

United States and the NAACP, the court entered an order re-

quiring the City to take certain actions or risk contempt

penalties. At the outset, the court found (J.A. 147):

The City of Yonkers has failed to take many of the actions

required by the Housing Remedy Order. Instead, the City

has delayed meaningful remedial action and declined re-

—— 2

peated opportunities accorded to the City to act itself in

the first instance in taking remedial action.

The July | Order, among other things, required the City to seek

Westchester County’s waiver of its reverter interest in the Coun-

ty sites (J.A. 150).* The Order provided that the City’s failure to

comply would result in a finding of contempt; the City would be

fined at a base rate of $100 for the first day, and the amount

would double for each day of noncompliance thereafter (J.A.

151-152).

The City Council responded by enacting three resolutions on

July 7, 1987. Two of the resolutions related to the County sites.”

Resolution No. 140-1987 (J.A. 143) complied with the court's

July | Order by requesting Westchester County to waive its

reverter interest in the County sites. Resolution No. 141-1987

(J.A. 144-147) sought action by the County as to two of the

three County sites, but expressly conditioned that request on the

granting of a stay of constructon pending appeal, a limitation

on the number of units of housing to be developed under the

Long Term Plan, and other terms (J.A. 146-147). The resolu-

tion concluded (J.A. 147):

BE IT FURTHER RESOLVED, that in the event that any

portion of this Resolution is not comphed with{,] the entire

Resolution be deemed null and void and with no effect.

In a telephone conference on July 9, the City’s attorney and the

City Manager told the district court that the City Council did

not intend in Resolution No. 141-1987 to supersede its request

to the County set forth in Resolution No. 140-1987 (J.A.

120-122); they also assured the court that the City would comply

with the court’s Order by furnishing the court and the plaintiffs

* The July | Order directed the Advisor to submut a proposed plan for the

placement of all 200 units of public housing on (he wWeatified unused school

sites, and specified that the Advisor would no longer function as the City’s

representative but would act solely as an advisor to the court The Order also

required the City to adopt and submu to HUD an acceptable HAP for its

current CDBG funding application. }.A. 147-150

* in the third resolution, the City Council adopred the Cuy's HAP for the

fiscal year 1986 ().A. 141)

with copies of the City’s requests before their transmission to

the County (J.A. 120-122, 131; see also J.A. 139, 150).

Despite these assurances (and without notice to the court or

the plaintiffs), the City, on July 10, transmitted to the County

only the request set forth in Resolution No. 141-1987, with its

qualifications and conditions (J.A. 154-159). At a hearing on

July 15, the court found that the City’s action had sent “a clear

message” to the County that the City wanted the County to

grant only the request set forth in that resolution, and to reject

the waiver request required by the court's order and embodied

c. During the remainder of 1987, with the County sites ap-

(S.D.N.Y. 1987)."' Use of these sites alone, however,

would have resulted in a greater density than the parties agreed

was optimal (see, e.g. }.A. 65-67, 72, 97). And the City still had

taken no steps to identify sites or strategies for the development

of housing under the Long Term Plan. Accordingly, the district

‘* Although the Advisor and the Cay had wentified porennal howsung sites

(see, e.g. 1. A. 53-56, 115-117, 145), the City took go action to make them

avatladte for publn housing

‘' in @s order requermg the Yonkers Board of Educaton to return to the

City ttle to the enused school sites that had been designated for public

housing, the court stated (675 F. Supp. at 1410)

It will Lome as no surprise to anyone famishas euh the hastory of thes

btwgation that the Cay has acted m a aegative of at best neutral fashion

wuh respect to all efforts to umplement the Court's Housung Remedy

Onder and that amy metatives to further such umplementatwa pave come

trom the Plasntefts, Plasmeff-ineervenors, of the ( owrt asetf

et Mt a

9

court directed the Advisor to identify existing development

projects in Yonkers, as well as privately owned vacant sites, that

might be used to advance implementation of the Housing

Remedy Order. United States v. Yonkers Bd. of Educ., 675 F.

Supp. 1413 (S.D.N.Y. 1987). Once again, the court gave the

City the opportunity to chart the remedial course by choosing

from among all the sites that had been or might be identified.

Id. at 1415-1416.'?

3. On December 28, 1987, the court of appeals affirmed the

district court’s liability and remedy orders “in all respects,” con-

cluding that the district court “properly applied the appropriate

legal principles, that its findings of fact [were] not clearly er-

roneous, and that its semedial orders [were] within the proper

bounds of discretion.” United States v. Yonkers Bd. of Educ.,

837 F.2d 1181, 1184 (2d Cir. 1987), certs. denied, 108 S. Ct.

2821 (1988).'? The court of appeals held that the requirements

of the Housing Remedy Order were “plainly reasonable” and

“necessary” in light of the City’s “prior disregard of governmen-

tal urging that it select housing sites outside of Southwest,” “its

historical willingness to forgo federal funding in order to

preserve segregrated housing patterns,” “its past history of foot-

dragging,” and “its refusals to approve any site for low-income

housing outside of” minority areas. 837 F.2d at 1236-1237.

'2 To prod the City to act, the court also imposed a freeze on all discre-

tionary City actions in connection with four existing development projects in

Yonkers until it was shown that these projects could not be used to advance

the housing remedy goals, or until the City designated and obtained control of

sites for all 200 units of public housing. In this order, the court recognized (675

F. Supp. at 1414):

The progress to date in identifying available sites has been extremely

disheartening and the attitude of the representatives of Yonkers has been

to do nothing affirmative, to place the entire onus of implementation on

the Court, and to engage in obstructive and dilatory tactics. To date,

there have been untoward delays in implementing the Housing Reinedy

Order some 18 months after its promulgation. Only the threat ot

bankrupting fines has produced any action by the City.

') The court of appeals pointedly rejected as “frivolous” the City’s con-

tentions that its actions had not been racially motivated (837 F.2d at 1222).

ee eS Se, See

_ 2 ee el de” ee, See A i “i, ee —a

10

4. For a brief period following the court of appeals’ deci-

sion, the City finally seemed prepared to acknowledge and com-

ply with its obligations under the Housing Remedy Order. That

willingness, however, soon evaporated.

a. On January 19, 1988, the district court held a hearing at

which it called upon the City to “advise what affirmative actions

if any Yonkers is taking or planning to take to implement the

housing remedy order” (J.A. 171). Counsel for the City re-

sponded that the parties had been negotiating an agreement on

the actions the City would take (J.A. 178-181), but also con-

ceded that the City had failed to submit a current HAP, as re-

quired by the original Housing Remedy Order and the July 1,

1987, Order (J.A. 171-174). The court stated that the City’s sub-

mission of the HAP was a necessary first step to show a good

faith effort to comply with the court’s orders (J.A. 171,

175-176); accordingly, the court ordered the City to adopt the

third-year HAP no later than January 21, 1988, or face con-

tempt and bankrupting fines (J.A. 176-178).'* After a recess,

counsel for the City reported that a majority of the City Council

had agreed to vote to adopt the HAP (J.A. 183-184). The court

thereupon granted an adjournment until January 25 to enable

the parties to continue settlement discussions on the other ac-

tions the City would take to comply with the Housing Remedy

Order (J.A. 183-185).

On January 25, the parties informed the court that they had

reached such an agreement in principle, designating seven sites

for public housing and setting a goal of 800 units of housing to

be developed under the Long Term Plan (J.A. 190-200).'* The

'* The court stated that it would notify the New York State Emergency

Financial Control Board and the Governor of New York of any contempt ad-

judication (J.A. 176-178). Contrary to petitioner Chema’s misleading sug-

gestion (Chema Br. 5), the court's statement about replacing the City’s elected

officials with appointed officials (J.A. 182-183) referred not to action by the

court itself but rather to possible action by those responsible state officers who

have authority under state law to remove City officials from office. See

Charter of the City of Yonkers art. Il, § C2-5 (1966); Pet. App. 13a.

'? At that proceeding, the court stated that if no agreement had been

reached, it would have entered an order designating six public hous‘np sites,

Yonkers City Council approved the agreement on January 27,

and the district court entered the agreement, the “First Remedial

Consent Decree In Equity” (Consent Decree) (J.A. 216-223), as

a consent judgment on January 28 (Pet. App. 8a).

b. The Consent Decree set forth the actions the City would

take in order to comply with Part IV (public housing) and Part

VI (Long Term Plan) of the Housing Remedy Order. Sections

12 through 18 of the Consent Decree established the framework

for the Long Term Plan that had been left unresolved in the

original Housing Remedy Order (J.A. 220-223). The Decree set

a goal of 800 units of assisted housing to be developed over four

years in conjunction with market rate housing developments

(J.A. 220-221); it also committed the City to specific actions

needed to encourage private developers to build such housing

(J.A. 220-222). In Section 17 of the Decree, the City expressly

agreed to adopt legislation conditioning the future construction

of multi-family housing in Yonkers on the inclusion of at least

20 percent assisted units, and providing for such private

development incentives as zoning changes, tax abatements, and

density bonuses (the Mandated Incentives) (J.A. 222). This

legislation was to be enacted within 90 days after entry of the

Decree (ibid.).'* In Section 18, the parties acknowledged that

certain “subsidiary issues” relating to the Long Term Plan were

unresolved and agreed to work toward their resolution in a sec-

ond consent decree to be entered by February 15, 1988 (J.A.

222-223).

c. Faced with intense public opposition to the Consent

Decree, the City soon sought to disavow it. On March 21, the

but did not suggest that it would have taken any action at that time with

respect to the Long Term Plan (J.A. 204).

'®© The Consent Decree specifically provided (J.A. 220):

There shall be a presumption in favor of allowing two years for the Man-

dated Incentives to demonstrate their effectiveness in fostering the

development of a sufficient number of Units timely to achieve the Goal

without the adoption of additional remedial measures.

Additional measures that the parties agreed to forgo for a time included the

use of City-owned land (J.A. 221).

12

City moved to modify the Decree, and even promised to return

nearly $30 million in federal funds if it was relieved of its duty to

allow the development of public housing in white

neighborhoods (Pet. App. 9a).'’ The district court denied the

City’s motion on March 31. The City then refused either to con-

tinue the Long Term Plan negotiations required by Section 18

of the Consent Decree or to enact the legislation required by

Section 17 (id. at 9a-10a).

Undaunted by the district court’s order, the City, on May 2,

moved to vacate the Decree in its entirety, on the ground that

the Archdiocese of New York (owner of St. Joseph’s Seminary,

a small part of which had been designated as a public housing

site) had withdrawn its initial consent to the use of its property

and no longer supported the Consent Decree as a whole (J.A.

225-244). Although the district court gave the City the oppor-

tunity to designate an alternative site, the City Council refused

to do so. See J.A. 268-274; see also Yonkers Racing Corp. v.

City of Yonkers, 858 F.2d 855, 859-861 (2d Cir. 1988), cert.

denied, 109 S. Ct. 1527 (1989). In denying the City’s motion to

vacate, the district court found that in light of “[t}he decision of

the city council not to designate or authorize the court to

designate a substitute site,” the City’s motion had been “a

transparent ploy * * * to avoid any responsibility for the court

decree or implementation of the housing remedy order” (J.A.

275). The City sought no further review of that ruling.

5. In the meantime, the plaintiffs and the court attempted

to implement the Consent Decree despite the City’s refusal to

cooperate. On May 2, the plaintiffs moved the entry of a Long

Term Plan Order based upon a draft that the City’s lawyers had

prepared before the City withdrew from negotiations. On June

13, following comments from the City (J.A. 245-261), revisions

by the plaintiffs, and a hearing (J.A. 275-303), the district court

entered its Long Term Plan Order resolving the subsidiary issues

left open by the Consent Decree and providing the detail for the

' This amount represented the CDBG funds that the City had received

from HUD following its promise to provide sites for 200 units of such public

housing. See pp. 3-4 and note 6, supra.

— ——

13

legisiation that Section 17 required (J.A. 303-316). That Order

accommodated most of the City’s substantive objections to the

plaintiffs’ proposal (Pet. App. 9a-10a).'*

Nonetheless, the City and City Council continued their cam-

paign of unyielding resistance. On June 14, the City Council

passed a resolution declaring a moratorium on all public hous-

ing construction in Yonkers—an unabashed defiance of the

district court’s Housing Remedy Order and the Consent Decree

(J.A. 317-319).'* On June 21, nearly two months after the

deadline set in the Consent Decree for the City’s enactment of

the necessary implementing legislation (and more than two years

after entry of the original Housing Remedy Order), the district

court asked the City for a timetable for enactment of the legisla-

tion (J.A. 323). The City’s attorney stated that a consulting firm

had been retained to draft the legislation, but that its work had

not yet begun, and that no action could be considered by the

City Council until August at the earliest (J.A. 323-324).

The prospect of waiting until summer's end for the City to

comply disturbed the court, particularly in light of the City

Council’s deciaration of a public housing moratorium just the

week before. The Court thus asked the City Council to pass a

resolution at its next meeting adopting the provisions of the

Consent Decree and the Long Term Plan Order, with the enact-

ment of the legislation itself to take place after the City’s con-

sultants completed their work (J.A. 324, 331-340). The City

Council refused. Indeed, on June 28, the Council defeated a

resolution that would have required the City to honor its

'* The City opposed entry of the Long Term Plan Order principally on the

ground that it was urging the court to vacate the Consent Decree entirely

(J.A. 246; see also J.A. 256-258, 298-300). In the court of appeals, the City

challenged only one substantive aspect of the Long Term Plan Order that con-

cerned its state law authority to grant tax abatements (Pet. App. 3la). The

court of appeals affirmed the entry of the Order (id. at 31a-32a). None of the

petitioners challenges that aspect of the court of appeals’ decision here.

'* The City Council passed this resolution the day after this Court denied

the City’s petition for a writ of certiorari to review the court of appeals’ af-

firmance of the district court's liability and remedy orders (108 S. Ct. 2821

(1988)).

oN

14

previous commitments to implement the Housing Remedy

Order, the Consent Decree, and the Long Term Plan Order

(J.A. 345-346).

6. At the district court’s request (J.A. 347-348), the United

States and the NAACP then submitted a proposed order setting

a timetable for the City’s enactment of the legislation, under

penalty of contempt (Pet. App. 10a). In response, the City in-

formed the court on July 11 that it would “not voluntarily adopt

the legislation contemplated by” the Long Term Plan Order and

the Consent Decree (J.A. 351). Seeking to shirk all responsibili-

ty, the City suggested that the court simply enact the Long Term

Plan legislation itself (ibid.).

In light of the City’s response, the district court, at a con-

ference on July 12, raised the possibility of creating a Yonkers

be vested with “{ajll of the governmental functions heretofore

vested in the city council insofar as they relate to the housing en-

visioned by the housing remedy order, consent decree and long-

term plan” (J.A. 358). The NAACP favored this alternative

(J.A. 362-371, 388-392);?* both the United States (J.A. 360-362,

385-386, 393) and the City (J.A. 377-379, 392-393) opposed it.?'

In opposing the Commission, the City expressly spoke for the

City Council (J.A. 378):

After giving the court’s suggestion due consideration,

the City Council wishes to convey its serious concerns

regarding a proposal which would, in substance and effect,

** The NAACP urged the court to avoid taking the preliminary steps of im-

posing contempt sanctions. Instead, u advocated the court's taking control

away from the recalcitrant City Council. See J.A. 363 (“In other words, no

fines no jail and simply the most drastic action taken, which would be the

stripping of the City of Yonkers’ governmental officials directly of their

responsibilities ”).

** Contrary to its representation to this Court (City of Yonkers Br. 15), the

City never altered its opposition in the district court to the creation of a

Housing Commission, even when the imposition of contempt sanctions was

imminent (J.A. 392-393, 403-404).

At the July 12 hearing, the City did favor direct action by the district court,

simply ordering the legislation into effect without a vote by the City Council,

but the court resisted, saying, “this court is not eager to assume any greater

role than the circumstances require, not out of a lack of interest, concern or

15

divest the Council of specific state law powers, including

core legislative as well as executive functions. * * * The

loss of those specifically granted powers must be viewed

with great caution and concern from the perspective of a

City Council which is popularly elected. As there is little

doubt that the City Council would lack the power to

delegate those functions to a Commission which is not

popularly elected, it is therefore not in a position to con-

sent to such a proposal.

On July 26, the United States proposed, and the district court

entered, an order requiring the City, no later than August I, to

enact the legislation (known as the Affordable Housing Or-

dinance) that had been drafted by the City’s consultants to im-

plement the Consent Decree and the Long Term Plan Order

(J.A. 397-400).2? The July 26 Order also scheduled a hearing for

August 2, at which time the City and the individual members of

the City Council who voted against the ordinance would be re-

quired to show cause why each should not be held in civil con-

tempt if the Affordable Housing Ordinance were not enacted

(J.A. 398). The Order established the sanctions for such con-

tempt: the City would be fined at a base rate of $100 for the first

day and the fine would double for each day of noncompliance

thereafter; the Council members would be fined $500 per day

and imprisoned after 10 days of continued defiance (J.A.

398-399).2? All sanctions would end if and when the City

enacted the legislation (ibid.).** By letter dated July 28, in re-

power but rather a concept of what the proper role of a federal court is m a cir-

cumstance such as this” (J.A. 357).

22 At a hearing on July 26, the City stated tha. except for its previously ex-

pressed objections to the Long Term Plan (see pp. | 2-13 and note 18, supra), u

had no objections to the substance of the Affordable Housing Ordinance

(.A. 383-384).

2) All fines would be paid into the Treasury of the Laned States and would

not be refundable (J.A. 399).

* Since the City Council has enacted the ordinance (see p. 17, m/fra), petr-

toner Spalione is wrong in asserting, indeed boasting (Spallone Br 3 & a4, 7

nit, 9 a. 16), that he remams m contempt of court

sponse to the City’s -oncerns that state law required notice and

public hearing before the City Council could vote on the Or-

dinance, the district court made clear that the July 26 Order

would be satisfied if the City Council passed a resolution commnit-

ting the City to enact the Ordinance after state law requirements

had been met (J.A. 401). All petitioners had notice of the court's

July 26 Order and its July 28 letter (Pet. App. 12a, 18a).

On August |, by a vote of four to three, the City Council

defeated a resolution declaring the City’s intent to adopt the Af-

fordable Housing Ordinance. All four petitioners voted against

the resolution (J.A. 403, 420; Pet. App. 12a).?* Consistent with

the July 26 Order, the district court held show cause hearings on

August 2 and 4 (J.A. 402-444, 452-476). Each of the petitioners

appeared with counsel. Longo and Fagan stated that they had

voted against the resolution because there had been no public

hearing (J.A. 423-424, 428-429); Chema did not explain his

vote (J.A. 436-437, 443).** Spallone stated that there were un-

specified “serious problems” with the Affordable Housing Or-

dinance (J.A. 459), and contended that he was not obligated to

vote as the court had ordered him to do (J.A. 470-473).

Although the court specifically inquired (J.A. 424, 443, 459; see

J.A. 474), none of the petitioners identified any substantive ob-

jections to the Ordinance. Neither the City (see J.A. 403-411)

nor any of the Council members contended that the Affordable

Housing Ordinance was inconsistent with the Consent Decree.

** At its August | meeting, the City Council scheduled for August 15 a

public hearing on the Affordable Housing Ordinance, as required by state law

Following the August 15 hearing, the City Council again rejected the

Ordinance by a vote of 4 to 3. Pet. App. 13a, I6a-i7a.

** Chema’, counsel argued that the court should have first held the City in

contempt, and should have considered contempt against his client only if the

City did not then comply (J.A. 436-438). In an affidavit submitted to the court

of appeals ().A. 506-508), Chema stated that the Long Term Plan did

“nothing to address those people left behind in substandard housing on the

West Side,” and that the public had expressed us opposition to the adoption of

the Long Term Plan legislation at the August | City Council meeting (JA

$06- 507).

17

Finding that their refusal to comply with the Consent Decree

was “but the latest of a series of contempts” (J.A. 416), the

district court adjudged the City and the four Council members

in civil contempt and imposed sanctions in accordance with the

July 26 Order (J.A. 416-417, 429-430, 443-444, 445-450,

475-476, 494-496).?”

7. On August 17, the court of appeals stayed the contempt

sanctions pending appeals by the City and the individual Coun-

cil members (J.A. 510-511). On August 26, the court of appeals

affirmed the adjudications of contempt against both the City

and the Council members, but limited the fines against the City

so that they would not exceed $1 million per day (Pet. App.

la-35a). The court concluded that neither the City nor the

Council members could escape responsibility for refusing to

comply with the Consent Decree that the Council itself had ap-

proved (id. at 28a, Wa-3ia).

8. On September |, after this Court had stayed imposition

of sanctions against the Council members pending timely filing

and disposition of petitions for a writ of certiorari, but had

denied the City’s motion for a stay (J.A. 512), and with the

City’s contempt sanction approaching a fine of $1 million per

day, the City Council finally enacted the Affordable Housing

Ordinance (J.A. 528-557).** On the same date, the City Council

passed resolutions stating its intent to amend the Ordinance and

to move for a modification of the district court's orders relating

to the 260 units of public housing (J.A. 558-559). At a con-

2’ In response to the Council members’ contentions that they had been given

inadequate time to prepare, the court allowed cac! i them until August 5 to

request an evidentiary hearing that, if requested, would be held on August 8.

The court ordered that all fines paid by the Council members would be held by

the Clerk of the District Court until August 12, pending such a hearing. None

of the Council members requested a hearing. | A. 441-442, 475-476.

* The City paid a total of approximately $620,000 in contempt fines. The

Council member petitioners cach paid $3,500 in cach fines Pet. App

190n- 208n.

:

ference on September 14, the district court offered to consider

proposed modifications, but none has ever been sought

(ibid.).**

On March 6, 1989, this Court granted certiorari with respect

to the Council members’ petitions. 109 S. Ct. 1337. The City’s

petition for a writ of certiorari was denied. 109 S. Ct. 1339.

A. As this Court has squarely held, “{t}here can be no ques-

tion that courts have inherent power to enforce compliance with

their lawful orders through civil contempt.” Shillitani v. United

States, 384 U.S. 364, 370 (1966). This power extends not only to

parties to the action but to those in privity with them, including

their officers, agents, and employees. See Fed. R. Civ. P. 65(d),

70, 71; Regal Knitwear Co. v. NLRB, 324 U.S. 9, 14 (1945). In

this case, the record shows that petitioners, as officers of the

City of Yonkers and members of the City Council, obstructed

the City’s compliance with the district court's orders to remedy

illegal racial segregation of the City’s public and subsidized

housing—the initial Housing Remedy Order, the Consent

Decree, the Long Term Plan Order, and finally the July 26

Order. This pattern of disobedience is precisely the type of con-

duct that traditionally has warranted the considered exercise of

a court's civil contempt power. Under these circumstances, the

district court acted well within approgpriate bounds in exercis-

** Within days, the City’s and the City Cowncil’s willingness to implement

the Housing Reswedy Order (or to acknowledge the district court's authority to

do so if the Cit¥aefused) was again tested. On September 22, the court of ap-

peals issued its decision in Yonkers Racing Corp. v. City of Yonkers, supra,

directing the district court and the parties to seek an alternative to the

Seminary site as a location for public housing. 858 F 2d at 872; see p. 12,

supra. The City flatly refused to cooperate in this process, because “there

[was] not majority council support for any site to replace the seminary” (Oct

4, 1988, Tr. 8). The City made ‘ear that it would not propose or support any

alternate site, would not prop. « that the court designate a site from a list fur

nished by the parties, would not support the appomtment of a gommission to

designate a sic, and would not acknowledge the court's authority to designate

a site (id. at 5-15)

law and with the application of that law by the federal courts.

Cooper v. Aaron, 358 U.S. 1, 18 (1958); Burz v. Economou, 438

U.S. 478, 506 (1978). Nothing is more fundamental to our

system of ordered liberty and the rule of law than the solemn

obligation of all citizens, and especially public officials, to obey

Consistent with this overarching principle, the Court “has

generally been quite sparing in its recognition of claims to ab-

solute official immunity.” Forrester v. White, 108 S. Ct. 538,

$42 (1988). Even with respect to federal legislative immunity

created by the Speech or Debate Clause (U.S. Const. Art. 1, § 6,

Cl. 1), the Court “has been careful not to extend the scope of the

protection further shan its purposes require.” Forrester, 108 S.

Ct. at $42. The context of petitioners’ actions here —local

legislators’ interference with and obstruction of federal court

orders designed to remedy federal constitutional and statutory

violations — precludes application of immunity doctrine to in-

sulate petitioners from contempt sanctions.

In applying the doctrine of immunity to local legislators, this

Court has looked to federal common law as a source of authori-

ty. The common law tradition offers no support for extending

immunity to local legislators from actions to enforce com-

pliance with federal court orders entered against their govern-

Extending absolute immunity to local legislators in this set-

ting would not be “justified by overriding considerations of

public policy.” Forrester, 108 S. Ct. at $42. Far from it. When a

ment, individual legislators, as officers of that government,

have a duty to abide by that order. They may not, at their

discretion, choose to obstruct compliance with the decree.

Holding a legislator liable for breaching that duty does not in-

terfere with his legislative independence because the underlying

order itself has already circumscribed the legislator’s discretion

to act. Similarly, withholding absolute immunity from local

legislators in those circumstances will not unduly interfere with

the independence of the local legislature itself. Once a federal

court enters an order establishing a local government's liability

for certam activities, the court necessarily limits the local

government's discretion in connection with those activities In

have a firm duty to remedy the violations of federal law. Cf.

Columbus Bd. of Educ. v. Penick, 443 U.S. 449, 458-461 (1979).

Thus, while federal courts must be “sensitivie] to interference

with the functioning of state jor local] legislators,” United

with the greatest power to do so — those holding the police, the

spending, and (of particular importance here) the zoning and

condemnation powers of the State or locality.

Supreme Court of Virginia v. Consumers Union, 446 U.S.

719, 730-734 (1980), upholding a claim of legislative immunity

in a Section 1983 action for injunctive relief against state of-

ficials acting in their legislative capacity, does not support such

merits of the Affordable Housing Ordinance both on and off

First Amendment than would a requirement that a public of-

ficer issue an order to a subordinate or execute a deed of con-

veyance. The burden placed on the public official is a result of

his official duty and is “unquestionably” justified hy “te public

interest in obtaining compliance with federal court judgments

that remedy constitutional violations” (Pet. App. 28a).

D_ Finally, petitioners are misguided in suggesting that the

court should have assumed the City Council's legislative duties

or transferred those duties to an independent court-appointed

comaussion. Enher alternative would have represented a more

imtrusive use of federal judicial power —the direct exercise of

local legislative authority by a federal court — than did invoca-

tion of a traditional, well-established judicial remedy. Given the

availability of the time-honored remedy of civil contempt, such

a step would have done unnecessary violence to democratic

values. What is more, neither of petitioners’ suggestions would

have achieved the umportant goal of obt aiming both present and

i

future comphance wih valid court orders, including the Con-

sent Decree approved by the Council uself. ARhough such alter -

phance Moreover, when the confrontation bet ween federal and

local authority was of the City's and the City Council's making,

the district court properly exercised its discretion by refusing to

surrender to the Council's attack on its authority and by requir-

ing the City and City Council to live up to their commitments.

bad

lawful orders through civil contempt.” SAdiveni

States, 384 US. 364, 370 (1966)."* As the Court has recognized,

“[t}he unterests of orderly government demand that respect and

compliance be given to orders issued by courts * * *.” United

States v. United Mine Workers, 330 U.S. 258, 303 (1947). The

contempt power, therefore, “has been uniformly held to be

necessary * * * to enable [federal courts] to enforce [their]

* See. eg. Unied Stores + United Mine Worders, 10 US. 258, 16-07

(1847), Gomwers « Becks Stowe & Range Co. 121 US. 408, 450 (191T)

Unwed Saves « Mucton 4 Goodem, 11 U.S (7 Cranch) 1. M (1812). See

aio Young » Umed Shaves ox rel Vettes. 461 US. 787, 199 (19ST) Ce

hong settled that .ourts possess mherent author» to mate contempt

proceedings for dmobedhenve to thew orders) 15 U SC a0

23

judgments and orders necessary to the due administration of

law and the protection of the rights of suitors.” Bessette v. W.B.

Conkey Co., 194 U.S. 324, 333 (1904).*' The reach of this essen-

tial power extends not only to the parties themselves but to

those in privity with them, including their officers, employees,

and agents. See Fed. R. Civ. P. 65(d), 70, 71.°?

2. In this case, the record plainly shows (and petitioners do

not seriously dispute) that petitioners, over a period of time as

officers of the City of Yonkers and members of the City Coun-

cil, obstructed the City’s compliance with four district court

orders to remedy longsianding and continuing federal constitu-

tional and statutory violations flowing from racial segregation

of the City’s public and subsidized housing.*? The Housing

Remedy Order, specifically directed to “{t}he City of Yonkers,

its officers, agents, employees, successors and all persons in ac-

tive concert or participation with any of them” (J.A. 20),

*' In Gompers v. Bucks Stove & Range Co., 221 U.S. at 450 (1911), the

Court observed:

If a party can make himself a judge of the validity of orders which have

been issued, and by his own act of disobedience set them aside, then are

the courts impotent, and what the Constitution now fittingly calls “the

judicial power of the United States” would be a mere mockery.

*? See, e.g., Gunn v. University Committee, 399 U.S. 383, 389 (1970); Regal

Knitwear Co. v. NLRB, 324 U.S. 9, 14(1945); In re Lennon, 166 U.S. 548, 554

(1897); Alemite Mfg. Corp. v. Staff, 42 F.2d 832, 832 (2d Cir. 1930) (L. Hand,

J.).

*? Indeed, the City itself concedes that “there was contumacious conduct”

(City of Yonkers Br. 12).

Each of these four orders was final and binding on the City. The court of

appeals affirmed the Housing Remedy Order and this Court denied review.

United States v. Yonkers Bd. Of Educ., 837 F.2d 1181, 1184 (2d Cir. 1987),

certs. denied, 108 S. Ct. 2821 (1988). The district court denied the City’s

motion to vacate the Consent Decree and the City sought no further review of

that ruling. See pp. 11-12, supra. The court of appeals upheld the district

court's entry of the Long Term Plan Order (Pet. App. 31a-32a), and neither

the City nor petitioners sought review of that ruling in this Court. Finally, the

court of appeals upheld the July 26 Order and the adjudication of contempt

against the City (id. at 28a-31a), and this Court denied the City’s petition for

review. 109 S. Ct. 1339 (1989).

ee — «= Ts = ies r _ SS SS eC SC e:Ct~t~™CS

24

established the City’s obligation to propose and implement the

Long Term Plan. The City and City Council, however, stead-

fastly refused to comply with that Order. See pp. 4-9, supra.

The Consent Decree, adopted more than a year and a half

after entry of the Housing Remedy Order, further defined the

terms of the Long Term Plan and required the City and the City

Council to enact the necessary legislation to implement the Plan

(J.A. 222). Again, the City and the City Council had the legal

duty to enact legislation in accordance with the Decree and to

negotiate in good faith on its details. Yet again, the City and the

City Council continued their program of steadfast resistance,

highlighted by the City Council’s resolution of June 14, 1988,

declaring a moratorium on all public housing construction in

Yonkers. See pp. 11-13, supra. The district court’s entry of the

Long Term Plan Order, as a result of the recalcitrance of the

City and the City Council, defined precisely the steps to be

taken by responsible City officials to remedy segregated public

and subsidized housing. Yet, the City Council refused to budge;

it responded on June 28 by defeating a resolution that would

have required the City to honor its previous commitments to im-

plement the Housing Remedy Order, the Consent Decree, and

the Long Term Plan Order (J.A. 345-346).

It was only at this juncture that the district court entered its

July 26 Order, incorporating the Affordable Housing Or-

dinance (drafted by the City’s consultants in accordance with

the Long Term Plan Order), requiring enactment of the Or-

dinance by a certain date, and establishing sanctions for non-

compliance. Consistent with its previous stance, the City Coun-

cil, with petitioners leading the charge, acted in defiance of the

court’s order, thereby preventing the City once again from

achieving compliance. See pp. 15-17, supra.**

Certain petitioners contend (Chema Br. 45-47; Longo and Fagan Br.

22-26) that the Affordable Housing Ordinance and the Long Term Plan from

which it was drawn are inconsistent with the Consent Decree. Petitioners did

not raise this issue in the district court or in the court of appeals, and they have

therefore not preserved it for review. E.g., United States v. Lovasco, 431 U.S.

25

3. In this situation of deliberate noncompliance with

remedial orders, the district court possesses authority to exercise

its contempt power to secure compliance. First, the record belies

the suggestion that petitioners “were in a very real sense

strangers” to the litigation and the court’s orders (Longo and

Fagan Br. 28). Petitioners, as members of the City Council, ac-

tively participated in the remedial process; indeed, they

thwarted that process by deliberate steps aimed at obstructing

the City’s compliance with the court’s valid orders. That is

precisely the type of conduct that traditionally has warranted

exercise of a court’s civil contempt power. See, e.g., Jn re Len-

non, 166 U.S. at 548; United States v. Hall, 472 F.2d 261,

264-267 (Sth Cir. 1972) (Wisdom, J.); Griffin v. County School

Bd., 363 F.2d 206, 207 (4th Cir. 1966) (en banc).

Second, the district court is not disabled from exercising its

power because petitioners were not named parties in the under-

lying litigation. Federal Rule of Civil Procedure 65(d) reflects

the well-settled rule that “[t}o render a person amenable to an

injunction it is neither necessary that he should have been a

party to the suit in which the injunction was issued, nor to have

783, 788 n.7 (1977); Adickes v. S.H. Kress & Co., 998 U.S. 144, 147 n.2

(1970).

In any event, this belated point is without merit since the Long Term Plan

Order and Affordable Housing Ordinance are fully consistent with the Con-

semt Decree. Nothing in the Ordinance contradicts the Consent Decree’s pro-

viso requiring Only zoning changes that “are not substantially inconsistent with

the character of the area” (J.A. 222). In fact, Article V of the Ordinance ex-

pressly requires that “the provisions of the underlying zoning * * * [and] the

impact of development on surrounding land uses and neighborhoods” be

taken into account before allowing “[djepartures from [existing] zoning

regulations” (J.A. $48). And all such zoning changes must be submitted to the

Yonkers Planning Board for its approval (J.A. 550-554). Nothing in the Con-

sent Decree suggested that the City Council was to have the power to vete on

each proposed zoning change. Indeed, before the district court, the City ob-

jected to the creation of a separate “Implementation Office” to assist

developers, arguing that this function should be carried out not by the City

Council but by the City’s planning department. The district court ordered the

creation of a separate office, and neither the City nor the petitioners sought

further review of that ruling.

a aseeaias ees ial a a i 8 ee, ie

26

been actually served with a copy of it, so long as he appears to

have had actual notice.” Jn re Lennon, 166 U.S. at 554. In addi-

tion, the initial Housing Remedy Order specifically enjoined

petitioners, as “officers” of the City,** to take steps to remedy

the City’s constitutional and statutory violations; the district

court’s subsequent orders implicitly mirrored that directive.

Petitioners are therefore in no position to evade the district

court’s contempt process. See Fed. R. Civ. P. 71; Regal

Knitwear Co. v. NLRB, 324 U.S. 9, 14 (1945).

Third, the Consent Decree, which the City Council itself ap-

proved, reconfirmed the district court’s authority to proceed

against petitioners for obstructing the City’s compliance. Con-

trary to petitioners’ sweeping contentions (Spallone Br. 36-40;

Chema Br. 38-40, 43-44; Fagan and Longo Br. 26-28), the

Decree bound a// members of the City Council to comply with

specific court-ordered obligations, whether petitioners personal-

ly agreed to it or not. Fed. R. Civ. P. 65(d); see Regal Knitwear

Co., 324 U.S. at 14-15. The City Council’s approval of the

Decree was “not the action of any separate member or number

of members, but the action of the body as a whole.” United

States v. Ballin, 144 U.S. 1, 7 (1892). “When one accepts an of-

fice of joint responsibility, whether on a board of directors of a

corporation, the governing board of a municipality, or any

other position in which compliance with lawful orders requires

joint action by a responsible body of which he is a member, he

necessarily assumes an individual responsibility to act, within

the limits of his power to do so, to bring about compliance with

, the order{s}.” United States v. Fleischman, 339 U.S. 349,

? '§56-357 (1950).

As members of the Yonkers City Council, petitioners were

subject to the district court's orders directing the City of

Yonkers to remedy its illegal racial segregation of public and

subsidized housing. When petitioners embarked on a con-

tinuous course of conduct to block the City’s efforts to comply

> Under state law, petitioners, as members of the Yonkers City Council,

are “officers” of the City of Yonkers. See N.Y. Pub. Off. Law § 2 (McKinney

1952).

27

with those orders, the district court acted well within the tradi-

tional bounds of judicial authority.

B. The Doctrine Of Legislative Immunity Does Not Shield In-

dividual Members Of The Yonkers City Council From Sanc-

tions For Obstructing The City Of Yonkers’ Compliance

With Valid Court Orders

In the face of this justifiable exercise of the federal court's

contempt power, petitioners each contend (Spallone Br. 19-35;

Chema Br. 24-32; Longo and Fagan Br. 11-20) that the doctrine

of legislative immunity absolves them from any obligation to

comply with the district court's orders and shields them from

sanctions for their decision to obstruct the City’s compliance

with those orders. This cannot be. This Court has never con-

sidered the common law doctrine of legislative immunity as a

license to disobey federal court orders, especially orders aimed

at remedying basic violations of federal constitutional and

statutory law. On the contrary, the Court has emphasized that

all government officials, including legislators, are bound to

comply with federal law, and with federal courts’ application of

that law. As the Court stated in Cooper v. Aaron, 358 U.S. 1,

18 (1958), “[njo state legislator * * * can war against the Consti-

tution without violating his undertaking to support it.” See Butz

v. Economou, 438 U.S. 478, 506 (1978) (“all individuals,”

whatever their position in government, are subject to federal

law”).

Consistent with this overarching principle, the Court “has

generally been quite sparing in its recognition of claims to ab-

solute official immunity.” Forrester v. White, 108 S. Ct. 538,

542 (1988). The Court specifically “has been careful not to ex-

tend the scope of the protection [of immunity] further than its

purposes require.” /bid. Thus, contrary to petitioners’ broad

assertions, neither this Court's precedents, the federal common

law of immunity, nor considerations of public policy serve to in-

sulate petitioners’ conduct from a federal court's authority to

enforce its own orders.

1. This Court's leading decisions recognizing immunity for

state Or regional legislators arose out of actions in which private

Ee

plaintiffs sought to hold legislators liable under the Civil Rights

Act of 1871, 42 U.S.C. 1983. In Tenney v. Brandhove, 341 U.S.

367, 376, 379 (1951), the Court concluded that Congress, in

enacting that gatute, had not intended to abrogate the common

law immunity enjoyed by state legislators. It thus held that state

legislators are immune from Section 1983 damages liability for

their legislative acts. The Court extended this common law im-

munity from damages actions to members of a two-state

regional planning commission in Lake Country Estates, Inc. v.

Tahoe Regional Planning Agency, 440 U.S. 391, 402-406

(1979). And in Supreme Court of Virginia vy. Consumers Union,

446 U.S. 719, 730-734 (1980), the Court upheld a claim of

legislative immunity in a Section 1983 action for injunctive relief

brought against members of a state Supreme Court for their

refusal to amend the state bar code to permit attorney advertis-

ing.**

The recognition of legislative immunity under Section 1983,

which is explicitly grounded on common law practices, serves

two principal purposes. First, the immunity protects individual

state legislators from the hazards and distractions of litigation

resulting from decisions they must make in carrying out their

legislative duties, a purpose shared by all common law official

immunities. E.g., Tenney, 341 U.S. at 377; Lake Country

Estates, 440 U.S. at 405; see Forrester, 108 S. Ct. at 543. Sec-

ond, the immunity, based on traditional principles of comity,

guards against undue federal interference with state legislative

functions. See Consumers Union, 446 U.S. at 731-733; United

States v. Gillock, 445 U.S. 364, 370-373 (1980).

The Court has made clear (445 U.S, ,370), however, that

“federal interference in the state legislative process is not on the

same constitutional footing” as federal judicial interference with

the affairs of Congress. The latter raises a question of separa-

tion of powers between coequal branches, a question explicitly

addressed by the Speech or Debate Clause of Art. 1, § 6, Cl. 1 of

the Constitution. Thus, “where important federal interests are

* The Court allowed suit against the same defendants in thew enforcement

capacities. See note 45, w/ra.

ba

at stake [in the actions of state legislative officials}, as in the en-

forcement of federai criminal statutes [against those officials},

comity yields.” 445 U.S. at 373.""

2. The civil contempt proceedings against the individual

members of the City Council in this case were designed to stop

those members from obstructing the City’s compliance with

valid federai court orders — orders entered in a civil rights action

brought by the United States against the City to redress the

City’s longstanding violations of the Constitution and federal

civil rights laws. The context of this case is therefore far re-

moved from the circumstances in which this Court has upheld

claims of legislative immunity — private actions brought directly

against state legislators in the first instance seeking monetary or

injunctive relief as a resul’ of particular legislative decisions. ** It

*” In United States v. Gillock, 445 US. 360, 373 (1980), the Court therefore

held that state legislators may not invoke the doctrine of legisiatiwe ummuniiy

to claum an evidentiary privilege im a cruminal prosecution See also O'Shea v

Lutieton, $14 U.S. 488, S03 (1974) (“the judicially fashioned doctrine of

offical ummunity does not reach ‘so far as to ummunize Crummal conduct pro-

scribed by an Act of Congress * * *’ " (quoting Greve! v. United States, 408

U.S. 606, 627 (1972).

“ Although this Court has not resolved the question, see Late Country

Estates, Inc. v. Tahoe Regional Planning Agency, 440 US. 391, 404 0.26

(1979), the courts of appeats have agreed that local legislators — like their state

counterparts — are mmmune from private actions brought under Section 1983

that challenge thew legislative decisions. See Auchison vy Raffieni, 708 F ld

96, 98-100 (3d Cir. 1983): Reed v. Village of Shorewood, 704 F.2d 943,

952-953 (7th Cir. 1983); Espanola Way Corp. v. Meyerson, 690 F 2d 827, 829

(tith Cir. 1982), cert. denied, 460 U.S. 1039 (1983), Auzimich v. County of

Santa Clara, 689 F.2d 1345, 1349-1350 (9th Cir. 1982), Hernandez v. City of

Lafayette, 643 F.2d 1188, 1193-1194 (Sth Cir. 1981), cert. denied. 455 U.S. 907

(1982), Bruce v. Riddle, 631 F.2d 272, 274-279 (4th Cir. 1980): Gorman

Towers v. Bogoslavsky, 626 F 2d G07, 611-614 (8th Cir. 1980). The Second

Cirout assumed the correctness of those decisions (Pet. App. 25 ), but

recognized that such ummunity could not rehese petitioners of the ¢ Lagaton

to comply with federal court orders remedying \iolations of federal law. at

least where the City Council uself had approved the Consent Decree that re-

quired them to enact the remedial legislation (ad at )Sa-28a)

This case does not present the question whether lov al legislators are immune

trom hability wader 42 U.S.C. 1963 of the Faw Housing Act. For that reason,

30

is precisely this difference in context that argues powerfully

against application of legislative immunity to shield petitioners’

actions from legal process.

a. Federal common law traditionally has not extended to

local legislators an immunity from actions to enforce com-

pliance with federal court orders entered against municipal or

county governments. In reliance on the “widely followed

common-law rule that only discretionary functions are immune

from liability,” Westfall v. Erwin, 108 S. Ct. 580, 584 n.4

(1988), federal courts have recognized that local legislators have

no license to defy valid court judgments. See, e.g., Amy Vv. The

Supervisors, 78 U.S. (Il Wall.) 136, 138 (1870) (county

legislators held liable in damages for refusing to,comply with

federal court judgment against the county).*? When confronted

with disobedience to federal court judgments entered after local

governments had defaulted in their obligations to bondholaers,

this Court has held that federal courts may issue writs of man-

damus to compel local legislatures to satisfy those judgments.

See, e.g., Yost v. Dallas County, 236 U.S. 50 (1915); East St.

Louis v. Amy, 120 U.S. 600 (1887); Mobile v. Watson, | 16 U.S.

and because the Second Circuit assumed that petitioners were entitled to the

same immunity available to state legislators, this case does not present an oc-

casion for the Court to decide the issue left unresolved in Lake Country

Estates.

Significantly, all of the decisions cited above involved local legislators’ im-

munity from actions for damages under Section 1983, and did not address the

question of their immunity from actions for injunctive relief. As discussed at

pp. 30-32, infra, in light of this Court’s decisions approving the issuance of

court orders to compel legislative action where necessary to execute federal

court judgments, it is apparent that local legislators are not immune from in-

junctive relief in all circumstances. Correspondingly, we submit, they must

also be subject to the courts’ inherent contempt powers to enforce that relief.

9 In Amy v. The Supervisors, 78 U.S. (il Wall.) at 138, the Court ob-

served:

The rule is well settled, that where the law requires absolutely a

ministerial act to be done by a public officer, and he neglects or refuses to

do such act, he may be compelled to respond in damages to the extent of

the injury arising from his conduct. There is an unbroken current of

authorities to this effect.

5

3]

289 (1886); Labette County Commissioners v. Moulton, 112

U.S. 217 (1884); County Commissioners v. Wilson, 109 U.S.

621 (1883); Commissioners v. Sellew, 99 U.S. 624 (1878).4° As

the Seventh Circuit noted a generation ago, “[cjourts have for

years compelled city councils to do their legal duty, though the

performance of that duty may require the exercise of discretion

and be in the performance of legislative functions * * *.” Con-

nett v. City of Jerseyville, 125 F.2d 121, 124 (7th Cir. 1942).

Under this established common law tradition, individual

legislators may not only be held liable in damages for refusing to

comply with federal court orders, they may also face contempt

sanctions for their disobedience, see, é.g., Commissioners v.

Sellew, 99 U.S. at 627.*' In Sellew, the Court stated (ibid.):

When a copy-of the writ which has been ordered is served

upon the clerk of the [County Board of Commissioners], it

will be served on the [County], and be equivalent to a com-

mand that the persons who may be members of the board

*° Accord Rees v. City of Watertown, 86 U.S. (19 Wall.) 107 (1873); Riggs

v. Johnson County, 73 U.S. (6 Wall.) 166 (1867); City of Galena v. Amy, 72

U.S. (S Wall.) 705 (1866); Von Hoffman vy. City of Quincy, 71 U.S. (4 Wall.)

535 (1866); Supervisors v. United States, 71 U.S. (4 Wall.) 435 (1866); Board

of Commissioners v. Aspinwall, 65 U.S. (24 How.) 376 (1860).

*' For lower court adjudications of contempt, see, e.g., Jn re Copenhaver,

54 F. 660, 668 (C.C.W.D. Mo. 1893) (justices of county court acting as

legislative body); United States v. Green, 53 F. 769, 772 (C.C.W.D. Mo. 1892)

(city aldermen); The President ex rel. Moran vy. Mayor, 40 F. 799, 805

(C.C.D.N.J. 1889) (city council members); United States ex rel. Thompson v.

Lee County, 26 F. Cas. 911, 914 (C.C.N.D. Ill. 1869) (No. 15,589) (county

board of supervisors). See also United States ex rel. Jones v. City of West

Palm Beach, 94 F.2d 320, 321-322 (Sth Cir. 1938); United States ex rel. Watts

v. Justices of Lauderdale County, 10 F. 460, 461-462 (C.C.W.D. Tenn. 1882);

United States ex rel. Huidekoper vy. Buchanan County, 24 F. Cas. 1288, 1289

(C.C.W.D. Mo. 1878) (No. 14,679).

State courts have also followed the common law practice of not extending to

local legislators an immunity from actions to enforce compliance with court

orders. See, e.g., State ex rel. Baumann v. Judge, 38 La. Ann. 43, 44-45 (1886)

(members of city council held in contempt); State ex rel. Edwards v. District

Court, 41 Mont. 369, 373-377, 109 P. 434, 436-437 (1910) (city aldermen held

im contempt); People ex rel. Pierce v. Guggenheimer, 44 App. Div. 399, 400,

60 N.Y.S. 703, 705 (1899) (members of city council held in contempt).

32

shall do what is required. If the members fail to obey,

those guilty of disobedience may, if necessary, be punished

for contempt.

The common law tradition thus offers no support for extending

immunity to local legislators from actions to enforce com-

pliance with federal court orders entered against their govern-

ments.

b. In the context of this case, extending such immunity to

local legislators is not “justified by overriding considerations of

public policy.” Forrester, 108 S. Ct. at 542. To the contrary,

when a federal court issues a decree requiring local governmen-

tal action, individual legislators incur a duty to abide by that

order. They are not at liberty to obstruct compliance. E.g.,

Sellew, 99 U.S. at 627. Holding a legislator liable for breaching

that duty (by obstructing the court’s order) does not interfere

with his legislative independence; his discretion to act has

already been circumscribed by the underlying order itself. For

the same reason, the absence of immunity will not subject in-

dividual legislators to the risk of liability “for mere mistakes in

judgment.” Butz, 438 U.S. at 507; see Westfall, 108 S. Ct. at

584.*?

Similarly, holding legislators liable to contempt sanctions for

obstructing compliance with federal court orders will not sub-

ject them to proceedings based “upon a conclusion of the

pleader, or to the hazard of a judgment against them based

upon a jury’s speculation as to motives.” Tenney, 341 U.S. at

377. Legislators can avoid such proceedings by carrying out

their fundamental duty to obey court orders. Should they

thwart those orders and persist in such disobedience, legislators

can (and should) anticipate the resulting contempt proceedings,

in which their liability would be objectively determined, without

#2 In Westfall, 108 S. Ct. at 584, this Court recognized:

When an official’s conduct is not the product of independent judgment,

the threat of liability cannot detrimentally inhibit that conduct. * * *

Because it would not further effective governance, absolute immunity for

nondiscretionary functions finds no support in the traditional justifica-

tion for official immunity.

33

regard to their motive or intent. See McComb v. Jacksonville

Paper Co., 336 U.S. 187, 191 (1949).

To be sure, in fashioning the remedy, a court should be mind-

ful of legislative prerogatives and give due respect to the views

of local authorities. Brown v. Board of Educ., 349 U.S. 294,

300 (1955) (Brown I]; Swann v. Charlotte-Mecklenburg Bd. of

Educ., 402 U.S. 1, 16 (1971). But where, as here, local

authorities default in their legal obligations and then actively

obstruct compliance with the court’s orders, the court must

prescribe the remedy (id. at 15-16). In those circumstances, the

court “has not merely the power but the duty to render a decree

which will so far as possible” remedy the violation. Louisiana v.

United States, 380 U.S. 145, 154 (1965).

This by no means suggests that legislators are left, as peti-

tioners would have it, to the whim of a single judge clothed with

Article II] power. Once the court enters its decree, the appellate

process provides a safeguard against unlawful or unnecessary

remedial requirements. But if the order is neither stayed nor

overturned, then the local government has the clear duty to im-

plement the decree, see United Mine Workers, 330 U.S. at 293,

a duty shared by the municipality’s officers, including members

of its governing legislative body. See Fleischman, 339 U.S. at

356-357 (quoted at p. 26, supra); Regal Knitwear Co., 324 U.S.

at 13-14; Commissioners y. Sellew, 99 U.S. at 627; Fed. R. Civ.

P. 65(d).*3

** Cf. Bush v. Orleans Parish School Bd., 19\ F. Supp. 871 (E.D. La.),

aff'd sub nom. Denny v. Bush, 367 U.S. 908 (1961) (state legislature enjoined

from obstructing local school desegregation orders).

In an earlier decision, the three-judge court in Bush had disclaimed an inten-

tion to enjoin the state legislature in its performance of any legislative func-

tion. See Bush v. Orleans Parish School Bd., 188 F. Supp. 916, 922 (E.D. La.

1960). In the later decision cited above, however, the court determined that the

legislature’s enactment of statutes designed to interfere with the desegregation

of the Orleans Parish Schools was a plain violation of the court’s orders. 191

F. Supp. at 873. Accordingly, the court ultimately enjoined the legislature

from seeking to enforce those statutes “and from otherwise interfering in any

way with the operations of the public schools * * * pursuant to the orders of

this court.” Jd. at 879.

34

Thus, while the courts must be “sensitiv[e] to interference

with the functioning of state [or local] legislators,” Gillock, 445

U.S. at 372, principles of comity do not, and should not, license

local legislators to defy valid federal court orders. Such an im-

munity “would upset the constitutional balance of a ‘workable

government’ and gravely impair the role of the courts under Art.

111.” United States v. Nixon, 418 U.S. at 707. Moreover, it

would effectively authorize obstruction of a court’s enforce-

ment of federal law by the individuals with the greatest power to

do so—those holding the police, the spending, and (of par-

ticular importance here) the zoning and condemnation powers

of the state or locality. See Griffin v. County School Bd., 377

U.S. 218 (1964).44 Indeed, as the City acknowledges (City of

Yonkers Br. 9), an extension of immunity to City Council

members in this context would “in a very real sense [place] a

Sword of Damocles over [the City’s] head.” The City thus

realizes that if legislative immunity were granted, it could be

faced with heavy fines, and even bankruptcy, as a result of ac-

tions by those who knew in advance that they ran no individual

risk of contempt.

3. The record establishes (see pp. 4-17, supra) that peti-

tioners, as individual members of the Yonkers City Council,

obstructed the City’s compliance with the district court’s orders

to remedy racial segregation of the City’s public and subsidized

housing. Each of those orders (see note 33, supra) —the initial

Housing Remedy Order, the Consent Decree, the Long Term

Plan Order, and the July 26 Order — progressively narrowed the

options available to the City and City Council to conform to

44 Indeed, the Yonkers City Council not only exercises all legislative

authority on behalf of the City (see Charter of the City of Yonkers art. Ill,

§ C3-1.A (1966) (Pet. App. 209a)); it also exercises considerable executive

authority, including the power to appoint the City Manager, “the chief ex-

ecutive and administrative officer of the city.” Jd. art. IV, § C4-1. The City

Manager remains in office at the pleasure of the City Council and “may be

removed, in the absolute discretion of the Council, by {an appropriate] resolu-

tion.” Id. art. IV, § C4-2; see also J.A. 521-522. This concentration of govern-

mental authority in the City Council highlights the dangers to government

under law of extending to local legislators an immunity from complying with

federal court decrees.

|

35

constitutional and statutory requirements. With the court’s en-

try of the July 26 Order, the City Council’s mandate was defined

precisely —the Council was either to enact by August | the or-

dinance drafted by the City’s consultants in accordance with the

Long Term Plan, or face specific contempt sanctions. In sum,

petitioners brought contempt sanctions on their own heads by

preventing the City, acting through the City Council, from

adopting the ordinance in accordance with the district court’s

orders and the City’s own commitments.

This case is thus quite different from Consumers Union, 446

U.S. at 730-734, where the Court held that the doctrine of

legislative immunity barred a Section 1983 action for injunctive

relief. Contrary to petitioners’ passing suggestions (Spallone Br.

32; Chema Br. 30), Consumers Union does not, for reasons

discussed below, support extending to local legislators an im-

munity from actions to enforce compliance with federal court

orders entered against their governments.

a. In Consumers Union, plaintiffs filed an action against

the members of the Supreme Court of Virginia, in their

legislative capacities, for failing to amend the state bar code in

light of Bates v. State Bar of Arizona, 433 U.S. 350 (1977). The

Bates decision, however, was not a court decree that enjoined

the Supreme Court of Virginia or the State for which it was ac-

ting. Nor did the ruling in Bates inipose a precisely defined duty

on state bar authorities to amend their respective ethical codes.

See Bates, 433 U.S. at 383-384.

Here, in contrast, petitioners were personally subjected to

legal proceedings only after judgment had been entered against

the City; the City had defauked in its remedial obligations large-

ly as a result of petitioners’ efforts; the Council itself had agreed

to enact the necessary legislation; and the terms of that legisla-

tion had been precisely defined. Where the “duty sought to be

enforced [was] clear and indisputable” (Board of Commis-

sioners v. Aspinwall, 65 U.S. (24 How.) 376, 382 (1860)), peti-

tioners had neither the authority nor an occasion to “exercise

judgment and discretion” (Kendall v. Stokes, 44 U.S. (3 How.)

86, 98 (1845)) in refusing to obey court orders and in obstructing

the City’s compliance.

36

b. In Consumers Union, the plaintiffs’ rights could be vin-

dicated through an injunction barring enforcement of the offen-

sive provisions of the state bar code.** See 446 U.S. at 734-737.

Here, implementation of the Long Term Plan depended upon

enactment of legislation; under the Yonkers City Charter, the

City Council enjoys exclusive authority to carry out that task.

See note 44, supra. Where action by the City Council was

necessary to remedy the City’s statutory and constitutional

violations, the court plainly had authority to compel that ac-

tion. Griffin v. County School Bd., 377 U.S. 218, 233 (1964);

Alexander v. Holmes County, 396 U.S. 19, 21 (1969);** see

+5 Indeed, rather than seeking an injuction requiring the Supreme Court of

Virginia to amend the state bar code, the plaintiffs sought a declaratory judg-

ment and an injunction barring enforcement of the code’s advertising provi-

sions. See 446 U.S. at 726. And this Court upheld that relief against the

Supreme Court of Virginia in its enforcement capacity. Id. at 736. In analyz-

ing applications of legislative immunity, this Court has paid careful attention

to the availability of other means of correcting or deterring illegal official con-

duct. See, e.g., United States v. Gillock, 445 U.S. at 372-373 (criminal sanc-

tions available); O’Shea v. Littleton, 414 U.S. at 503 (criminal sanctions

available); Powell v. McCormack, 395 U.S. 486, 503-506 (1969) (relief

available against congressional employees).

#6 As this Court recognized in Brown II, 349 U.S at 301, dismantling en-

trenched systems of segregation and discrimination may require “revision of

local laws and regulations.” Thus, legislative actions by boards of education,

city councils, and other local legislative bodies are often essential aspects of

the remedy in civil rights cases. In school desegregation cases, courts have re-

quired school boards to formulate, adopt, and implement desegregation plans.

See, e.g., Columbus Bd. of Educ. v. Penick, 443 U.S. 449, 453-455 (1979);

Green v. County School Bd., 991 U.S. 430, 442 (1968). In actions brought

under the Fair Housing Act, courts have ordered local legislatures to take a

variety of legislative actions. See, e.g., United States v. City of Parma, 661

F.2d 562, 577 (6th Cir. 1981) (upholding order requiring city to enact wel-

coming ordinance), cert. denied, 456 U.S. 926 (1982), Lac Vieux Desert Band

of Lake Superior Indians v. Waterssmeet Township, No. M82-161 CA (W.D.

Mich. Sept. 2, 1987), slip op. 4 (remedial order enjoins township from levying

taxes on Indian housing project); see United States v. Town of Cicero, Illinois,

No. 83 C 413 (N_D. Ill. May 15, 1986), slip op. 6 & App. A (consent decree re-

quires town to enact specific Fair Housing Resolution). And in actions

brought under the Voting Rights Act of 1965, 42 U.S.C. 1973 ef seq., courts

have directed legislative bodies to formulate and adopt election plans in

4 cent erieina aaa aurea

A

37

Bond v. Floyd, 385 U.S. 116, 131 (1966) (in action for injunc-

tion against state legislature and individual legislators, Court

has jurisdiction to review legislature’s power to exclude a pro-

spective member).*’

c. Finally, the City Council, by approving the Consent

Decree, voluntarily assumed the obligation to abide by the

general terms of the Long Term Plan and to enact the legislation

necessary to implement the Plan.** Thus, the City’s own govern-

accordance with the requirements of the Constitution and the statute. See,

e.g., United States v. Onslow County, 683 F. Supp. 1021 (E.D.N.C. 1988)

(three-judge court); Clark v. Marengo County, 623 F. Supp. 33 (S.D. Ala.

1985), aff'd, 811 F.2d 609 (11th Cir 1987); Jordan v. City of Greenwood, 599

F. Supp. 397 (N.D. Miss. 1984).

“7 Indeed, in holding that the common law immunity available to state

legislators does not extend as far as the immunity enjoyed by federal legislators

under the Speech or Debate Clause, this Court contrasted Bond v. Floyd with

Powell v. McCormack, supra, which held that the Speech or Debate Clause

barred a similar action against members of Congress. Gillock, 445 U.S. at 370

n.9.

48 Petitioners’ substantive challenges to the Consent Decree were not raised

in the court of appeals and are therefore not preserved. E.g., United States v.

Lovasco, 431 U.S. 783, 788 n.7 (1977); Adickes v. S.H. Kress & Co., 398 U.S.

144, 147 n.2 (1970). In any event, those claims are meritless.

Petitioner Chema contends (Chema Br. 40-42) that the Consent Decree was

not consensual. That assertion is wrong. See pp. 10-11, supra. The City was

under threat of contempt in January 1988, nov for its failure to enter into a

consent decree but rather for its refusal 10 comply with the Housing Remedy

Order, specifically its failure to submit a current HAP to HUD. Rather than

undermining the validity of the Consent Decree, as petitioner Chema would

suppose, the need for that threat of contempt simply highlights the longevity

and extent of the City’s contumacious behavior and the ultimate necessity for

the sanctions at issue here. Moreover, the only action possibly spurred by the

threat of contempt was the passage of the HAP. Before the parties agreed to

the terms of the Consent Decree, a majority of the City Council had already

agreed to vote to approve the HAP, thus removing potential contempt sanc-

tions. And on January 25, 1988, when the parties informed the court that they

had reached an agreement, the court stated that if there had been no agree-

ment, it would have entered an order designating six public housing sites. The

court did not state that it would have held the City in contempt if agreement

had not been reached, or that it would have taken any action at that time with

38

ing body removed the question whether to enact the implement-

ing legislation from the arena of discretionary legislative func-

tions. The City Council did not cause the City to move to amend

the Decrée in order to delete or modify both the City’s and the

City Council’s obligations under the Long Term Plan. Nor did it

cause the City to appeal the denial of the City’s motion to vacate

the Decree.*? Instead, the Council, with petitioners at the helm,

simply refused to honor the commitment it had made just six

months earlier.

This defiance may not be excused on the pretextual ground

that the Consent Decree failed to spell out the terms of the

legislation in detail. The terms of the Long Term Plan Order

were substantially in accordance with the Consent Decree and

were those proposed by the City during negotiations. When the

City refused to negotiate the final details, the court was justified

in entering the Long Term Plan Order and ordering the City to

respect to the Long Term Plan. Two days later, the City Council approved the

Consent Decree.

Petitioner Spallone contends (Spallone Br. 40) that “the integrity of the con-

sent decree and the propriety of the proposed legislation” should be ques-

tioned. That claim is groundless. Spallone apparently bases his argument on

the court of appeals’ decision requiring the parties to seek an alternative to the

Seminary property as a site for public housing. See Yonkers Racing Corp. v.

City of Yonkers, 858 F.2d 855, 872-873 (2d Cir. 1988), cert. denied, 109 S. Ct.

1527 (1989). In that decizion, however, the court of appeals upheld the

removal of state court proceedings to federal court “to adequately protect the

integrity of the Consent Decree” (858 F.2d at 865), and approved the City’s

condemnation of another site under that Decree (id. at 865-868, 873). The

court of appeals did not question the integrity of the Consent Decree and did

not even address the propriety of the proposed legislation at issue here. Far

from undermining the validity of the Consent Decree, the court of appeals

commended “[tjhe patience exhibited by the district court under enormously

trying circumstances” and urged the implementation of the Housing Remedy

Order “as quickly, and hopefully as smoothly, as possible” (id. at 872, 873). In

fact, on remand from Yonkers Racing Corp., the district court designated a

substitute site for the Seminary property. See J.A. 615-619. The court of ap-

peals recently has affirmed that ruling. See United States v. Yonkers Bd. of

Educ., No. 89-6050 (2d Cir. Apr. 17, 1989).

49 Petitioners here represent a voting majority of the Yonkers Ciry Council.

For discussion of the Council’s powers, see note 44, supra.

és tie

39

enact legislation in accordance with it. See Pet. App. 21a-22a.

In any event, the Council never enacted any legislation at all, as

it had promised to do in the Consent Decree, and none of the

petitioners suggested any substantive changes in the Long Term

Plan Order or the Affordable Housing Ordinance to the district

court.

As summarized by the court of appeals (Pet. App. 27a), “[nJo

litigant, least of all public officials sworn to uphold the Con-

stitution of the United States, may be permitted to avoid com-

pliance with solemn commitments they have made in a consent

judgment entered by a federal district court to remedy constitu-

tional violations.” Petitioners thus should not be afforded a safe

harbor in the immunity recognized by Consumers Union in very

different circumstances.

C. The First Amendment Does Not Shield Individual Members

Of The Yonkers City Council From Sanctions For Obstruct-

ing The City Of Yonkers’ Compliance With Valid Court

Orders

Petitioner Chema alone contends (Br. 33-38) that the district

court vidlated his First Amendment right to free speech by sub-

jecting him to contempt sanctions for his obstruction of the

City’s compliance with the court’s orders, and particularly for

his refusal to vote for the implementing legislation required by

the Consent Decree. This novel argument is without merit. No

decision of this Court examining the individual rights of federal

or state legislators has considered as protected speech a legisla-

tor’s act of voting in his official capacity. Rather, the Court has

looked to other common law and constitutional principles in

resolving individual legislators’ challenges to constraints on

their activities. See, e.g., Lake Country Estates, 440 U.S. at

402-405 (doctrine of legislative immunity); Gravel v. United

States, 408 U.S. 606 (1972) (Speech or Debate Clause); Tenney

v. Brandhove, 341 U.S. 367 (Speech or Debate Clause and doc-

trine of legislative immunity); Kilbourn v. Thompson, 103 U.S.

168 (1880) (separation of powers principle).

As the Court’s analysis in these cases reflects, common law

legislative immunity, together with applicable constitutional

40

provisions and principles, such as the Seech or Debate Clause

and separation of powers, offer legislators the necessary and ap-

propriate protections from undue interference with their legiti-

mate legislative activities. See, e.g., Tenney, 341 U.S. at 372;

Lake Country Estates, 440 U.S. at 403. Accordingly, whatever

protections petitioners would have under the First Amendment

for actions or failure to act in their official capacity should be

no broader than those derived from the doctrine of legislative

immunity. To contend that the act of legislative voting enjoys

greater First Amendment protection than this would suggest

that the resulting legislative enactments would similarly be pro-

tected by the First Amendment from statutory an~ constitu-

tional constraint —an obviously untenable proposition.

To the extent that the First Amendment applies at all to a

legislator’s act of voting in his official capacity,*® petitioner

© Only two federal court decisions have been found suggesting that the

First Amendment has any application to a legislator’s act of voting. In Wrzeski

v. City of Madison, 558 F. Supp. 664 (W.D. Wis. 1983), the district court

granted a preliminary injunction against enforcement of a city council

ordinance requiring each member to vote “aye” or “no” on every resolution (or

face censure or fines). In concluding that the plaintiff council member had “a

reasonable likelihood of success on the merits of her free speech claim,” the

court emphasized that under the council’s procedures, a vote of “no” was func-

tionally indistinguishable from an abstention, and thus no discernible purpose

was served by requiring a “no” vote instead of an abstention (id. at 668-669).

We do not agree with the Wrzeski rationale, but in any event the present case

is clearly different: here, a “no” vote by a Council member constitutes official

defiance of a federal court order based on the Council’s own consent tc the

entry of a decree. Thus the purpose of subjecting a “no” vote to the sanction of

contempt in this case is manifest.

in Clarke v. United States, 705 F. Supp. 605 (D.D.C. 1988), appeal pending,

No. 88-5439 (D.C. Cir.) (agued Apr. 20, 1989), the district court held that

the “Armstrong Amendment” (Tit. I, § 145 of the District of Columbia Appro-

priations Act, 1989, Pub. L. No. 100-462, 102 Stat. 2269), which conditioned

the appropriation of funds to the District of Columbia on the District of

Columbia City Council’s modification of one of its laws, placed “an unjustified

burden on the first amendment rights” of the City Council members (705 F.

Supp. at 613). We disagree strongly with this opinion, and have challenged

that judgment on appeal on a number of grounds. But the case, Once again, is

very different; indeed, the district court in Clarke itself distinguished the

roa

a EE

41

Chema cannot claim such protection here.*' The Council

members, including Chema, were free to express their views on

the merits of the Affordable Housing Ordinance both on and

off the Council floor. Compliance with the court’s orders, how-

ever, required them to act by adopting that Ordinance. That

their official duty to perform this act necessitated the use of a

word, or words, no more infringed the First Amendment than

would a requirement that a public officer issue an order to a

subordinate or execute a deed of conveyance. Council members,

like other government employees required in their official

capacities to express and implement policies they might not per-

sonally endorse, have no First Amendment right to refuse to

carry out those duties:

Perhaps the simplest example of a statement by a public

employee that would not be protected by the First Amend-

ment would be answering “No” to a request that the em-

ployee perform a lawful task within the scope of his duties.

Although such a refusal is “speech,” which implicates First

Amendment interests, it is also insubordination, and as

such it may serve as the basis for a lawful dismissal.

Connick v. Myers, 461 U.S. 138, 163 n.3 (1983) (Brennan, J.,

dissenting).

Here, the district court’s orders required peiitioners to per-

form a lawful task within the scope of their official duties. If

they could not reconcile their obligations as city officials with

present case on the basis of the “compelling and public interest in obtaining

compliance with federal court orders” (705 F. Supp. at 610), as well as the ex-

istence of “the Council’s own prior agreement to a consent decree” (id. at 610

n.6).

$1 The inapplicability of the First Amendment to the situation at issue

here—the imposition of civil contempt sanctions for Council members’

obstructing the City’s compliance with federal court orders—is perhaps best

suggested by petitioner Chena’s internally contradictory contentions that the

district court’s orders amount to both “compelled speech” (Chema Br. 35) and

a “prior restraint” (Chema Br. 36), and by his syllogistic statement that “[h}is

vote in the legislature was speech protected by the First Amendment because it

was a voice vote” (Chema Br. 18).

42

their individual views and were unwilling to carry out that task,

their recourse was to resign their offices. In a system of law,

they were emphatically not at liberty to defy the law. As the

court of appeals correctly concluded, “the public interest in ob-

taining compliance with federal court judgments that remedy

constitutional violations unquestionably justifies whatever

burden on expression has occurred” (Pet. App. 28a). Accord-

ingly, the freedom of individual Council members under the

First Amendment to express their views “does not permit them

to take action in violation of law” (ibid.).

D. The District Court Properly Exercised Its Discretion To

Bring About Compliance With Its Orders By Holding In-

dividual Members Of The Yonkers City Council In Con-

tempt Rather Than By Ordering Legislation In Effect Itself

Or By Appointing A Commission To Do So

Petitioners ¢<Spallone Br. 42-47; Chema Br. 20-24; Longo and

Fagan Br. 20-21), joined by the City of Yonkers (City of

Yonkers Br. 11-15), contend that the district court erred in im-

posing civil contempt sanctions against the Council members in

order to require them to comply with its orders. In their view,

the district court should have either enacted the legislation itself

or appointed a commission to do so. Accordingly, petitioners

and the City assert that either alternative would have been “less

intrusive” than ordering the City to comply with the court’s

orders and subjecting the members of the Council to contempt.

We disagree. Indeed, in our view, either alternative wou'd nave

been a greater exercise of federal judicial power than tue course

actually taken.

1. The requirement that, in enforcing compliance with a

lawful order, a court exercise “.*{t}he least possible power ade-

quate to the end proposed’ ” (Shillitani v. United States, 384

U.S. at 371 (quoting Anderson v. Dunn, 19 U.S. (6 Wheat.) 204,

230-231 (1821)), applies nor to the choice between contempt and

another remedy for the contemnor’s disobedience, but rather to

the choice between civil or criminal contempt, together with the

ee ee ned

in ee ae

43

choice of particular sanctions. See Shillitani, 384 U.S. at 371 &

n.9.52 Thus, while alternatives to contempt may be available

(see Fed. R. Civ. P. 70),°? there is no authority for the proposi-

tion that the use of such alternatives is mandatory.**

52 Indeed, the complete statement in Anderson v. Dunn, a case involving

the imposition of sanctions for contempt of Congress, makes clear that the

principle enunciated in Shillitani does not limit a court’s power to choose con-

tempt as a method of enforcement, but only governs the severity and duration

of sanctions imposed for contempt:

The present question is, what is the extent of the punishing power

which the deliberative assemblies of the Union may assume and exercise

on the principle of self-preservation?

Analogy, and the nature of the case, furnish the answer —“the least

possible power adequate to the end proposed,” which is the power of im-

prisonment. It may, at first view, and from the history of the practice of

our legislative bodies, be thought to extend to other inflictions. But every

other will be found to be mere commutation for confinement; since com-

mitment alone is the alternative where the individual proves con-

tumacious. And even to the duration of imprisonment a period is im-

posed by the nature of things, since the existence of the power that im-

prisons is indispensable to its continuance; and although the legislative

power continues perpetual, the legislative body ceases to exist on the mo-

ment of its adjournment or periodical dissolution. It follows, that im-

prisonment must terminate with that adjournment.

Anderson v. Dunn, 19 U.S. (6 Wheat.) at 270-231.

+3 Compare Supervisors v. Rogers, 74 U.S. (7 Wall.) 175 (1868) (approving

appointment of a federal marshal to levy and collect taxes to satisfy a judg-

ment, where state law specifically authorized such appointment as an alter-

native to contempt), with Yost v. Dallas County, 236 U.S. 50, 57 (1915)

(disapproving lower court's effort to levy tax, where state law did not so

authorize).

$4 In United States v. Paradise, 480 U.S. 149, 174-177 (1987), the plurality

opinion concluded that the lower court’s determination to impose race con-

scious relief was “plainly justified,” and rejected a suggestion, which had not

been made to the district court, that fines should have been imposed instead.

The plurality opinion did not rule that the imposition of fines would have been

improper, but rather that it would not have been sufficient under the cir-

cumstances of that case. /bid.

Similarly, this Court has authorized federal courts to impose remedial elec-

toral reapportionment plans on state and local jurisdictions “pending later

legislative action” where local officials have failed to act or an election is immi-

nent. Wise v. Lipscomb, 437 U.S. 535 (1978); see also Reynolds v. Sims, 377

44

In any event, either the court’s own enactment of the legisla-

tion, or its appointment of a Commission to carry out the City

Council’s responsibilities under the Decree, would have been a

greater, not a lesser, exercise of judicial power. See J.A. 519

(Marshall, J. dissenting from grant of stay) (“Surely it is both

less disruptive and more effective to order compliance * * *

than to usurp completely the Council’s legislative authority and

enact the legislation directly.”). Indeed, as the district court it-

self said: “[T]his court is not eager to assume any greater role

than the circumstances require, not out of a lack of interest,

concern or power but rather a concept of what the proper role

of a federal court is in a circumstance such as this” (J.A. 357). A

federal court’s direct assumption of local legislative power, free

from the inevitable constraints involved in acting through exist-

ing legislative bodies, raises more serious questions of

federalism and comity than the course adopted here.

2. In an action for contempt, a district court exercises

discretion in determining which sanctions will best “bring[ ]

about the result desired.” United States v. United Mine

Workers, 330 U.S. at 304; cf. Swann v. Charlotte-Mecklenburg

Bd. of Educ., 402 U.S. at 15. The court must “assess the effec-

tiveness” of the proposed remedy “in light of the circumstances

present and the options available in each instance.” Green v.

County School Bd., 391 U.S. 430, 439 (1968). The district

court, “having had the parties before it over a period of time,

was in the best position to judge whether an alternative remedy

*** would have been effective.” Local 28, Sheet Metal

Workers v. EEOC, 478 U.S. 421, 486 (1986) (Powell, J., con-

curring). Here, the district court concluded, and the court of ap-

peals agreed, that the imposition of contempt sanctions on both

the City and petitioners was the best means of enforcing the

U.S. 533, 585-587 (1964). Such judicial action is deemed “provisional * * * so

as not to usurp the primary responsibility for reapportionment which rests

with the legislature.” Jd. at 586. However appropriate such enforcement

mechanisms may be in the circumstances of those cases, they would not have

been the best remedies for the City’s defiance here. See pp. 44-47, in/ra.

.

|

)

|

45

court’s orders and the “least possible power adequate to the end

proposed” (Pet. App. 21a). On this record, that conclusion is

unimpeachable.

a. The immediate end proposed was the City Council’s en-

actment of the Affordable Housing Ordinance, an action essen-

tial to the implementation of the Long Term Plan and a step the

City Council had expressly agreed to in the Consent Decree.

Petitioners suggest (e.g., Spallone Br. 46-47; Longo and Fagan

Br. 27-28) that the court should have enforced this obligation by

holding only the City in contempt. The district court, however,

exercised its sound discretion in concluding that under all the

circumstances in July and August 1988, such an order would not

have been an effective remedy. Although the prospect of the im-

position of contempt sanctions against the City alone had in-

duced compliance in the past, by the summer of 1988, both the

City and the City Council had made clear in advance that they

would not “voluntarily adopt the legislation contemplated by

the [court’s orders]” (J.A. 351; see J.A. 345-346). Indeed, the

City had stated that it was willing to return as much as $30

million in federal funds to avoid compliance. See pp. 11-12,

supra. Since the Council was the only entity within the City that

could bring about compliance, and since the City faced bank-

ruptcy if the Council did not enact the Ordinance, coercive

sanctions against the individuals personally and officially re-

sponsible for obstructing the City’s compliance with the court’s

orders were justified.**

b. Moreover, enactment of the legislation by the court (or

by a court-appointed Commission) would not have advanced

the ultimate goal of implementing the Housing Remedy Order

to alleviate the City’s racially segregated public and subsidized

housing. The district court recognized as much in January 1988,

*> In retrospect, it appears that the sanction against the City was the prin-

cipal factor in securing compliance. But it was far from clear that this would

be so at the time the district court entered the July 26 Order and imposed con-

tempt sanctions on petitioners. Moreover, the imposition of sanctions against

petitioners —even though subject to a stay on the date the Ordinance was

finally adopted — may also have played a significant part in achieving com-

pliance.

46

when it ordered the we to pass the long overdue HAP (J.A.

175):

There are limits and disadvantages to the practice of

deeming things to have been done. One cannot deem hous-

ing to have been built. The building of housing is a com-

plex matter which requires a multitude of proceedings and

actions.

Simply ordering the legislation into effect would only have post-

poned the Council’s next effort to obstruct the remedy, an even-

tuality that, in light of the Council’s past conduct, the court

recognized was likely (J.A. 357): “Obviously, if the city council

were to say, well, Judge Sand, those are your orders, you do

with them what you will but at some point we will reassert our

authority, then we are engaged in an exercise which doesn’t get

housing built.”

To avoid such future confrontations, the court seupened the

creation of a Commission to take over the City Council’s re-

sponsibilities entirely (J.A. 357-359). But the City, speaking ex-

pressly for the City Council, strenuously opposed creation of a

Commission (J.A. 377-379), and none of the petitioners ad-

vocated that proposal until it appeared in their interest to do

so —after the district court had imposed contempt sanctions and

this matter reached the court of appeals. The Commission alter-

native thus promised only to create a new opportunity for City

and Council defiance (see J.A. 407). The district court wisely

chose not to follow that course.*®

3. As the district court has recognized throughout this pro-

tracted and often bitter litigation, the prospects for the Housing

*® Indeed, when it later became necessary to designate a substitute public

housing site, the City even refused to acknowledge the court’s authority to ap-

point a commission or to designate a site itself. See note 29, supra. Ac-

cordingly, despite the City’s strenuous efforts to explain before this Court its

“seemingly inconsistent positions with respect to the Affordable Housing

Commission” (City of Yonkers Br. 14), the City apparently remains unwilling

or perhaps unable to acknowledge its obligation to implement the district

court’s remedial orders. Indeed, the City is still incapable of taking a definitive

position. See, e.g., City of Yonkers Br. 15 (“The City’s position now is that the

Commission remains a possible solution to future problems.”).

47

Remedy Order successfully to desegregate public and subsidized

housing in Yonkers will improve greatly only if and when the

Yonkers community finally accepts the legitimacy of that

Order. But such acceptance will not come as long as the City

and its officials continue to deny and defy the federal court’s

authority to enforce its remedial orders. Even with the Afford-

able Housing Ordinance now enacted, the implementation of

the Long Term Plan will require many actions by City officials

over the course of years. The cooperation of those officials will

be essential to its success. As the United States stressed in sup-

port of its mation for contempt, the City and the City Council

were deliberately avoiding responsibility for imp!ementation of

the housing remedy. Indeed, they were seeking to put the entire

onus Of implementation on the court (J.A. 360-362, 385-386,

393; see J.A. 349-353).

The United States argued in the district court that, in these

circumstances, it was essential for the City to “take responsi-

bility for its actions” (J.A. 361), and for the court “to take ac-

tion to make sure that [its] orders [were] obeyed” (J.A. 393).

The district court, upheld by a unanimous court of appeals,

properly agreed with this assessment. Displaying the restraint

that Article II] courts must evince, the district court emphasized

that federal courts should act only when there is “no responsible

state or local authority that will act,” and that the City must

“recognize its obligation to conform to the laws of the land” by

complying with the court’s orders (J.A. 407). Thus, the district

court’s action is fully consistent with the solemn obligation of

the federal judiciary to safeguard and vindicate the rule of law,

including the higher law of the Constitution.

48

CONCLUSION

The judgment of the court of appeals should be affirmed.

Respectfully submitted.

KENNETH W. STARR

Solicitor General

JAMES P. TURNER

Acting Assistant Attorney General

DAVID L. SHAPIRO

Deputy Solicitor General

MICHAEL R. LAZERWITZ

Assistant to the Solicitor General

DAVID K. FLYNN

LiNDA F. THOME

Altorneys

JUNE 1989

wy US GOVERNMENT PRINTING OFFICE 1989—241.699/00302

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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