Amicus Curiae Brief — Devereaux v. Geary

Supreme Court, U.S.

PILED

JAN 25 1366

No. 85-492

—etoetee. SPANIOL, JR,

CLERK

IN THE

Supreme Court of the United States

October Term, 1985

ROBERT T. DEVERAUX, WILLIAM E. KELLEY, JOHN

BAKEY, "NALD J. DENTREMOT and DANIEL J.

GATELY,

Petitioners,

against

WILLIAM J. GEARY and THOMAS E. KEOGH,

Respondents,

and

PLAINTIFF-CLASS in CULBREATH v. DUKAKIS,

Intervenors-Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE FIRST CIRCUIT

Brief for Phil Caruso as Amicus Curiae

Interest of Phil Caruso

RICHARD HARTMAN

Attorn. for Phil Caruso

252-00 Horace Harding Expressway

Little Neck, NY 11362

(718) 423-1800

i.

Question Presented.

1. Whether the use of racial quotas in awarding promo-

tions is a permissible remedy under Section 706(g) of Title

VII, as interpreted by this Court in Firefighters Local

Union No. 1784 v. Stotts, No. 82-206 (June 12, 1984).

os

li.

Table of Contents.

Page

Question Presented ......0ss+ss555as ee i

Statement ...... 060000008080 5 ee enn 5

Discussion ......0+++2sss sss Sennen ee 8

Conclusion... ... os» =» 0a sn 1]

TABLE OF AUTHORITIES.

CASES:

Culbreath v. Dukakis, 630 F.2d 15 (Ist Cir. 1980)... 6, 8

Deveraux v. Geary, 765 F.2d at 275 .............. 3, 11

Firefighters Local Union No. 1784 v. Stotts, 104

S.Ct. 2576 (19G4). ...0 bccn cae eee 7,9, 10

Stallworth v. Monsanto Co., 558 F.2d 257, 264 (Sth

Cir. 1977) .. . << 0ss50 55 8

OTHER AUTHORITIES:

Title VII of Civil Rights Act of 1964.............. >

42 U.S.C. 1961 .....4..453 ee Pree ees 7

U.S. Constitution, Fourteenth Amendment ....... 7

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1985.

0

No. 85-492

ROBERT T. DEVERAUX, WILLIAM E. KELLEY, JOHN

BAKEY, DONALD J. DENTREMOT and DANIEL J.

GATELY,

Petitioners,

against

WILLIAM J. GEARY and THOMAS E. KEOGH,

Respondents,

and

PLAINTIFF-CLASS in CULBREATH v. DUKAKIS,

Intervenors-Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE FIRST

CIRCUIT.

BRIEF FOR PHIL CARUSO AS AMICUS CURIAE.

Interest of Phil Caruso.

Phil Caruso, requests that the Court reopen the submis-

sion process in the matter of the Petitioners’ Writ of Cer-

tiorari for the above-encaptioned case and accept for con-

sideration the present Brief submitted in support of the ap-

plication for the Writ.

Movant is a citizen of the United States of America and

the State of New York, residing in the County of Suffolk.

He is also a Police Officer in the Police Department of the

City of New York for more than 28 years. He is also Presi-

dent of the Patrolmen’s Benevolent Association of the Ci-

ty of New York, the duly recognized bargaining agent for

members of the New York City Police Department with

the rank of Police Officer. As such, the Patrolmen’s

Benevolent Association of the City of New York is a

public sector labor union representing Police Officers in

their relations with their municipal employer. However,

this brief is filed on movant’s behalf in his personal

capacity, and not as President of the Patrolmen’s Benev-

olent Association.

As a Police Officer of more than 28 years standing, Phil

Caruso has a great sense of pride in his chosen profession.

The major portion of his career has been devoted to the

representation of police officers in matters relating to pay,

working conditions and basic rights. Consequently, there

is a more than ample basis set forth for his qualifications

to speak to the issues raised in Deveraux v. Geary and,

specifically, how quota systems impact on police morale.

Given the multitude of socio-economic problems that

currently afflict our society, particularly in the great urban

centers of the nation, and, given the undeniable fact that

police officers must necessarily become embroiled in the

many and varied confrontational situations coaxed forth

by societal ills, the need for a well-trained highly

motivated and efficient police force has never been

greater.

In this connection, society has placed extraordinary

demands upon the police in terms of an awesome burden

of responsibility and accountability evoked by legal issues

that sometimes even strain the profound omniscience of

the esteemed justices of this high court. Accordingly, a

police service that must function in such a complex social

milieu must recruit the best qualified individuais available,

and must thereafter promote only those who manifest a

driving initiative to advance in rank. Invariably, those

who possess a superior intellect and qualities of leadership

rise to the top, a natural process that should not be stifled.

In this connection, it is submitted that for a police depart-

ment to dilute established standards of excellence is ir-

responsible.

The issues raised in Deveraux v. Geary are of no mere

academic significance to the New York City Police Of-

ficers. In New York City, a recent invocation of a minority

quota system for promotion to the Civil Service rank of

Sergeant has sparked an intra-departmental conflict that

has taken on crisis proportions. A Court-imposed quota

system has created widespread dissension within the ranks

of New York City Police Officers by arousing deep racial

antagonisms. It cannot be an exaggeration to state that

these antagonisms have pitted police officer against police

officer and brother against brother.

Moreover, even those minority members who have been

promoted to the rank of sergeant and who did so while

4

achieving passing marks, have been unduly branded as

failures and have been derisively referred to as ‘‘quota

sergeants.’’ This is so because approximately 200 minority

officers were promoted to the rank of sergeant, in spite of

the fact that they failed the last Civil Service promotional

exam. To that extent, instead of achieving a desired racial

balance, the quota system, which has indelibly attached a

condemnational stigma to a// minority promotees, has ac-

tually produced a counterproductive result.

Any police department is a quasi-military organization.

As with the military, incentive and morale are vital, in-

dispensible elements that serve to promote the accomplish-

ment of the police mission in our society. At the present

time, under the upheaval wrought by court-imposed quota

systems, incentive and morale on a collective basis have

been shattered. On an individual basis, personal initiative,

as well as the basic human aspiration to achieve, have also

been destroyed. This uncharacteristic atrophy that now

hampers the police service cannot by any means be said to

serve the public interest.

A decision by this Court in favor of the Petitioners in

the instant matter would serve to greatly restore the in-

tegrity of the Civil Service merit system, which, despite oc-

casional minor flaws, has served us well. In both theory

and practice, the merit system does not obviate the con-

stitutional rights of any individual. The merit system justly

rewards the exertion of a dedicated effort to achieve up-

ward mobility. Conversely, quota systems find vivid ex-

pression in a form of convoluted logic that rewards failure

in the name of affirmative action.

If the rights of all citizens are to be restored, and it is

submitted that the Court-imposed quota systems have, in

A)

the past, violated the rights of many citizens, and if

fairness and objectivity are to be resurrected within the in-

strumentalities of government, and if government is to

provide efficient professional services, as is its legal and

moral obligation to the people which it serves, then this

Court must strike Jo the irresponsible imposition of

quota systems by grantiiig the instant application by Peti-

tioners for a Writ of Certiorari.

Statement.

1. In 1974, certain minority employees brought a suit

against their employer, the Metropolitan District Commis-

sion, a state agency of Massachusetts, seeking to remedy

what they believe to be radically discriminatory hiring and

promotion practices occurring within several governmen-

tal agencies within that state. In due course, the ap-

propriate representatives of the Commonwealth entered

into a stipulation of facts and submitted to the United

States District Court for the District of Massachusetts a

joint proposal for a Court Order to remedy the claimed

transgressions against Plaintiffs and others similarly

situated.

According to the stipulation, the facts contained there

were considered to be sufficient to state a cause of action

by Plaintiffs within the parameters of Title VII of the Civil

Rights Act of 1964. The proposed order was to require the

state agencies concerned to establish a special minority

eligibility list for each job category covered and to select

applicants from the list when necessary to meet or main-

tain the ‘‘annual minority hiring objective’? for each

agency and job category. In short, a quota system to hire

and promote minority members was establishea.

6

A hearing was held in District Court as to whether the

Court should adopt the proposed order. Several unions of

civil servants in the Boston area moved to intervene in Oop-

position to the Court adopting the proposed order. In

1979, the District Court of Massachusetts denied the Mo-

tions to Intervene by the unions, on the grounds of being

untimely. At the same time, the Court adopted the stipula-

tion of facts and the order. The entered order was styled a

consent decree. The unions duly appealed. The Court of

Appeals affirmed the denial of the Motions to Intervene in

Culbreath v. Dukakis, 630 F.2d 15 (ist Cir. 1980).

In its decision, the Court of Appeals stated that the

reason for their affirmance of the District Court was

despite the circumstance that the original parties could

point to scant prejudice by the supposedly late interven-

tion of the unions. The Court of Appeal stated, however,

that the motivating factor for its decision was a concern

that allowing the unions to intervene might cause ‘‘real

prejudice,’’ in that intervention might overturn the con-

sent decree and cause a trial to be had on the issue.

2. In April, 1983, an eligibility list was established for

the position of captain of police in the police force of the

Metropolitan District Commission. After the two persons

with the highest marks were promoted to captain, a black

police officer, Donald E. Callender, was appointed cap-

tain on July 6, 1984, despite the fact that his examination

score was lower than that of the five petitioners in the

present case. The stated reason for the appointment was

an effort to comply with the quota system for minorities

established in Cu/breath.

Ten days later. on July 16, 1984, the five petitioners

filed the present case against their governmental

employers. In their suit, Petitioners alleged that they were

the victims of reverse discrimination and that the promo-

tion of Donald Callender deprived them of rights

guaranteed by the Fourteenth Amendment and 42 U.S.C.

1981. Petitioners relied upon a case of this Court,

Firefighters Local Union No. 1784 v. Stotts, 104 S.Ct.

2576 (1984).

The plaintiff-class in Cu/breath made an application to

intervene as a defendant, which was granted. Both the

governmental defendant and the Cu/breath plaintiff-class

moved to dismiss the complaint.

3. The District Court granted the Motions to Dismiss.

The Court held that the petitioners’ suit was an inap-

propriate attack on the consent decree in Cu/dbreath, and

the petitioners’ suit was construed te be a Motion to In-

tervene in Culbreath. As such, the District Court stated

that the matter was governed by the decision of Culbreath

and that petitioners’ suit was out of order on the ground

that intervention was untimely. The Court also stated that

Firefighters v. Stotts was not applicable to the present

case.

4. Petitioners duly appealed to the Court of Appeals,

First Circuit. There, the District Court’s order and reason

ing was affirmed. Specifically, the First Circuit agreed that

the District Court was correct in treating Petitioners as In-

tervenors in Cu/hreath.

The Court also agreed with the reasoning of the District

Court that Firefighters v. Stotts was distinguishable. In

general, the Court of Appeals cited with approval the

District Court’s extremely narrow interpretation of Sfo/ts.

However, towards the end of its decision, the Court did

8

acknowledge that the area of law was ‘“‘difficult and sen-

sitive,’’ and that there was a possibility that the Court was

mistaken in its interpretation of existing precedent.

Discussion.

The opinion submitted by the Court of Appeals, Firsi

Circuit, it is submitted, contains a virtual invitation for the

Court to grant the petition for certiorari. The acknowl-

edgement by the Court that ‘‘this is a difficult and sen-

sitive area in which we and other Circuit Courts could be

mistaken in our reading of current precedent”’ (765 F.2d at

275) reflects the concern of the Court of Appeals that the

present issue be correctly decided. It is suggested that the

Court of Appeals was nervous about affirming the District

Court. It might not be too much to state that the Circuit

Court would welcome guidance from this Court; so would

Petitioners.

The basis for the District Court’s decision was the Cir-

cuit Court’s decision in Cu/breath v. Dukakis, 630 F.2d 15

(Ist Cir. 1980). Culbreath, it is submitted, was a flawed

decision. Indeed, the decision in Cu/breath stated that ‘‘we

see little prejudice to the parties caused by the failure of

the unions to intervene more promptly.’’ /d. at 22.

Moreover, the Circuit Court was more concerned with

putting into effect the current consent decree, instead of

resolving its defects. See /d. The Court readily

acknowledged the existence of the defects but refused to

take any corrective measures.

This approach was later incorporated into the present

case. In order to reach a decision, the District Court

followed the four-factor test that was established in

Stallworth v. Monsanto Co., 558 F.2d 257, 264 (Sth Cir.

1977), and which was used in the Cu/breath case.

9

It is submitted that the Petitioners met the first factor of

the test; ‘‘the length of time the potential intervenors knew

or reasonably should have known of their interest before

they petitioned to intervene.’’ Petitioners, in the present

case, although members of the Metropolitan District

Commission, were not aware of their interest until ten

days prior tc the commencement of this action. While the

consent decree was entered into in December, 1978, Peti-

tioners, at that time, were not interested members with a

right to intervene. Therefore, Petitioners’ interest did not

accrue unti! they were passed over for the promotion.

This Court must remember, as was pointed out in

Firefighters Local Union No. 1784 v. Stotts, 104 S.Ct.

2576, 2586 (1984), that the non-minority employees,

themselves, were not parties to the consent decree when it

was entered into. Therefore, the terms of the decree can-

not be said to indicate any agreement that they entered

into. Without the opportunity for them to agree or

disagree with the terms of the consent decree, the Peti-

tioners have been unable to take any corrective measures

that might prevent the decree from impeding upon their

rights. Therefore, Petitioners have commenced their ac-

tion within a timely fashion and therefore certiorari

should be granted.

The second factor, ‘‘the prejudice to existing parties due

to the potential intervenor’s failure to petition for in-

tervention promptly,’’ it is submitted, will not cause un-

due prejudice to the existing parties if the Petitioners are

allowed to intervene. The First Circuit, itself, stated that

‘‘we see little prejudice to the parties caused by the failure

of the unions to intervene more promptly.’’ See 630 F.2d

at 22. In Culbreath, the unions attempted to intervene ap-

proximately four years after they received notice of the

10

suit. By contrast, in the present case, Petitioners com-

menced the suit only ten days after they were notified that

one of their colleagues was tc pass over them in promo-

tion, solely on the basis of race. Moreover, by no means

were Petitioners parties to the consent decree, nor were

they in agreement with that document. Accordingly, the

reversal of the Courts below would not unduly prejudice

any party.

The third factor, ‘‘the prejudice the petitioners would

suffer if they were not allowed to intervene,’’ would be an

undue burden that would be entirely borne by the Peti-

tioners themselves. Petitioners’ rights to intervene did not

accrue until they were denied their right to a promotion.

While the Metropolitan District Commission stipulated to

allegations that in the past it was guilty of discriminatory

practices, this stipulation causes no harm to the Metro-

politan District Commission, but tremendous prejudice to

Petitioners.

The fourth factor, ‘‘the existence of some unusual cir-

cumstances militating either for or against intervention,”’

is dictated by this Court’s decision in Firefighters v. Stotts,

supra. It is submitted that this Court’s decision in the case

created an unusual circumstance with respect to the pres-

ent controversy. Therefore, it is for this Court to grant

Petitioners that which the C~*ts below have declined to

do. It is submitted that the Srotts decision has created a

change under Title VII and therefore dictates that the con-

sent decree at issue here should be modified or extin-

guished entirely.

The First Circuit, while affirming the District Court’s

decision, appears to have acknowledged that such a sweep-

ing action might be called for. However, it is suggested

11

that the Court of Appeals was reluctant to take such a

drastic step, when it stated that, ‘‘we recognize, of course,

that this is a difficult and sensitive area in which we and

the other Circuit Courts could be mistaken in our reading

of current precedent.’’ Deveraux, 765 F.2d at 275.

For this reason, as was pointed out at the outset of this

discussion, the Court below appeared to call upon this

Court to closely review its decision in this case.

Conclusion.

For the foregoing reasons, the Petition for Writ of Cer-

tiorari should be granted.

Respectfully submitted,

RICHARD HARTMAN

Attorney for Phil Caruso

October 1985