Dowdell v. City of Apopka, Florida

• Citation: 698 F.2d 1181
• Decision Date: 28 February 1983
• Docket Number: No. 81-5690,81-5690
• Parties: Faithy DOWDELL, Johnnie Mae Subbs, et al., on behalf of themselves and all others similarly situated, Plaintiffs-Appellees, Cross-Appellants, v. The CITY OF APOPKA, FLORIDA, John H. Land, Mayor of Apopka, et al., their successors and agents, in their individual and official capacity, Defendants-Appellants, Cross-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 1181

698 F.2d 1181

Faithy DOWDELL, Johnnie Mae Subbs, et al., on behalf of themselves and all others similarly situated Plaintiffs-Appellees, Cross-Appellants, v. The CITY OF APOPKA, FLORIDA, John H. Land, Mayor of Apopka et al., their successors and agents, in their individual and official capacity Defendants-Appellants, Cross-Appellees.

No. 81-5690.

United States Court of Appeals Eleventh Circuit.

Feb. 28, 1983.

Johnie A. McLeod, Apopka, Fla., for defendants-appellants, cross-appellees.

Rosalind Gray, Lawyers' Committee for Civil Rights Under Law, Washington, D.C., David Lipman and Robert E. Weisberg, Appeals from the United States District Court for the Middle District of Florida.

Miami, Fla., for plaintiffs-appellees, cross-appellants.

Before VANCE and ANDERSON, Circuit Judges, and JONES, Senior Circuit Judge.

VANCE, Circuit Judge:

The situs of this case is the small city of Apopka, Florida located in the fern and foliage growing region north of Orlando. More specifically, it is the poor, geographically separate, black community of that city. The plaintiffs (appellees and cross-appellants here) are a Fed.R.Civ.P. 23(b)(2) class comprising the black residents of Apopka "who are, or have been, subjected to the discriminatory provision of municipal services." The main issues on appeal are whether the ongoing relative deprivation of the black community in the provision of municipal services can lead to a finding of discriminatory intent sufficient to find a constitutional violation under the equal protection clause of the fourteenth amendment; whether the district court abused its discretion in impounding the federal revenue sharing funds of the City of Apopka; and whether the district court abused its discretion in the award of attorneys' fees. On cross-appeal, it is claimed that the district court's denial of certain expenses as part of the costs of litigation resulted from error as to the applicable law.

The case in the trial court was deliberately modeled on Hawkins v. Town of Shaw, 437 F.2d 1286 (5th Cir.1971), aff'd en banc, 461 F.2d 1171 (5th Cir.1972), and Johnson v. City of Arcadia, 450 F.Supp. 1363 (M.D.Fla.1978). Plaintiffs charged the City of Apopka, its mayor, and four council members with discrimination in the provision of seven municipal services: street paving and maintenance, storm water drainage, street lighting, fire protection, water distribution, sewerage facilities, and park and recreation facilities. After a preliminary finding by the Office of Revenue Sharing that the City was discriminatory in the provision of several of these services, an agreement was reached on improvements in street lighting and fire protection, and the district court filed an order settling these claims. The case went to trial on the remaining five issues.

The district court found intentional discrimination in the provision of street paving, the water distribution system, and storm drainage facilities in violation of the fourteenth amendment; Title VI of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000d and the State and Local Fiscal Assistance Act of 1972, 31 U.S.C. Sec. 1242 (Revenue Sharing Act). Dowdell v. City of Apopka, 511 F.Supp. 1375 (M.D.Fla.1981). ¹ The court issued an order enjoining Apopka from initiating or constructing any new municipal services or improvements in the white community until such time as the disparities in the black community facilities were eliminated and impounding all of the city's federal revenue sharing funds with the stipulation that they be used only to pay for capital improvements in the municipal services provided to the residents of the black community. By separate opinion, plaintiffs were awarded reasonable attorneys' fees. Dowdell v. City of Apopka, 521 F.Supp. 297 (M.D.Fla.1981).

THE DIRECT APPEAL

To trigger strict scrutiny analysis under the fourteenth amendment, preliminary findings of both disparate impact and discriminatory intent are required. ² Washington We can reach no such conclusion. Substantial evidence, including video tapes, photographs, charts, and the testimony of community residents and of qualified experts who made on-site surveys revealed a disparity in the provision of street paving, water distribution, and storm water drainage. ³ Appellants do not question the accuracy of these statistical findings. Rather, they assert an absence of responsibility for them, claiming them, variously, to be beyond municipal jurisdiction or the result of historical and environmental forces. Their arguments are insubstantial and were properly rejected by the trial court. ⁴

v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976). Appellants contend that the facts adduced in evidence do not support a finding of discriminatory intent. Under the recent Supreme Court holding in Pullman-Standard v. Swint, --- U.S. ----, ----, 102 S.Ct. 1781, 1791, 72 L.Ed.2d 66 (1982), we "may only reverse a district court's finding on discriminatory intent if [we conclude] that the finding is clearly erroneous ...."

Refutation of Apopka's attempt to deny municipal responsibility for these services one by one does not conclude our inquiry into discriminatory intent. The gravamen of plaintiffs' claim is that Apopka has intentionally maintained a racially and geographically segregated system of municipal services as a result of which the disparities in the provision of street paving, water distribution, and storm drainage facilities have reached constitutional proportions. Discriminatory intent is not synonymous with a racially discriminatory motive, Palmer v. Thompson, 403 U.S. 217, 224, 91 S.Ct. 1940, 1944, 29 L.Ed.2d 438 (1971). Neither does it require proof that racial discrimination is the sole purpose, McGinnis v. Royster, 410 U.S. 263, 276-77, 93 S.Ct. 1055, 1062, 35 L.Ed.2d 282 (1973), behind each failure to equalize these services. It is, rather, the cumulative evidence of action and inaction which objectively manifests discriminatory intent. United States v. Texas Education Agency, 564 F.2d 162, passim (5th Cir.1977). See also United States v. Texas Education Agency, 579 F.2d 910, 919 (5th Cir.1978) (remarks on denial of rehearing).

Although the fluid concept of discriminatory intent is sometimes subtle and difficult to apply, there is ample evidence in this case of the correlation between municipal First, the magnitude of the disparity, evidencing a systematic pattern of municipal expenditures in all areas of town except the black community, is explicable only on racial grounds. Arlington Heights v. Metropolitan Housing Corp., 429 U.S. 252, 266, 97 S.Ct. 555, 564, 50 L.Ed.2d 450 (1976); see Washington v. Davis, 426 U.S. at 242, 96 S.Ct. at 2048 (1976). Second, the legislative and administrative pattern of decision-making, extending from nearly half a century in the past to Apopka's plans for future development, indicates a deliberate deprivation of services to the black community. A municipal ordinance restricting blacks to living only on the south side of the railroad tracks remained in force in Apopka until 1968. ⁵ The ordinance contributed to the ghetto-like qualities of the black residential area. Blacks continue to be significantly under-represented in administrative and elective positions, and their requests for improved municipal services continue to be ignored while substantial funds are expended to annex and develop the new predominantly white sections of town. Third, the continued and systematic relative deprivation of the black community was the obviously foreseeable outcome of spending nearly all revenue sharing monies received on the white community in preference to the visibly underserviced black community. While voluntary acts and "awareness of consequences" alone do not necessitate a finding of discriminatory intent, Personnel Administrator v. Feeney, 442 U.S. 256, 279, 99 S.Ct. 2282, 2296, 60 L.Ed.2d 870 (1979), "actions having foreseeable and anticipated disparate impact are relevant evidence to prove the ultimate fact, forbidden purpose," Columbus Board of Education v. Penick, 443 U.S. 449, 464, 99 S.Ct. 2941, 2945, 61 L.Ed.2d 666 (1979).

service disparities and racially tainted purposiveness to mandate a finding of discriminatory intent. Nearly every factor which has been held to be highly probative of discriminatory intent is present.

Although none of these factors is necessarily independently conclusive, "the totality of the relevant facts," Washington v. Davis, 426 U.S. at 242, 96 S.Ct. at 2048, amply supports the finding that the City of Apopka has engaged in a systematic pattern of cognitive acts and omissions, selecting and reaffirming a particular course of municipal services expenditures that inescapably evidences discriminatory intent. See Columbus Board of Education v. Penick, 443 U.S. at 456, 99 S.Ct. at 2946; Personnel Administrator v. Feeney, 442 U.S. at 279, 99 S.Ct. at 2296. The finding of discriminatory intent by the district court is not clearly erroneous and therefore is affirmed.

Appellants also claim that the district court abused its discretion in impounding federal revenue sharing funds received by the City of Apopka. This contention is meritless. Finding that the disparities in municipal services between the black and white communities constitute a condition offensive to the Constitution, the court judiciously exercised its inherent equitable power to fashion a remedy appropriate to the wrongs committed, Milliken v. Bradley, 433 U.S. 267, 281-82, 97 S.Ct. 2749, 2757, 53 L.Ed.2d 745 (1977) (Milliken II); Milliken v. Bradley, 418 U.S. 717, 738, 94 S.Ct. 3112, 3124, 41 L.Ed.2d 1069 (1974) (Milliken I); Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 15-16, 91 S.Ct. 1267, 1275, 28 L.Ed.2d 554 (1971). By escrowing the funds for the purpose of improving municipal services in the black community, the court took the first step towards ensuring that the unconstitutional disparities would be...