U.S. v. City of Yonkers, s. 1679-1682

Citation856 F.2d 444
Decision Date26 August 1988
Docket NumberD,Nos. 1679-1682,s. 1679-1682
PartiesUNITED STATES of America, Plaintiff-Appellee, and Yonkers Branch-National Association For the Advancement of Colored People et al., Plaintiffs-Intervenors-Appellees, v. CITY OF YONKERS, Defendant-Contemnor-Appellant, Yonkers Board of Education and Yonkers Community Development Agency, Defendants. In the Matter of Henry SPALLONE, Peter Chema, Nicholas Longo, and Edward Fagan, Contemnors-Appellants. ockets 88-6178, 88-6184, 88-6188 and 88-6190.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Michael W. Sculnick, New York City (Stanley R. Strauss, Vedder, Price, Kaufman, Kammholz & Day, New York City, Rex E. Lee, Carter G. Phillips, Sidley & Austin, Washington, D.C.; Paul W. Pickelle, Corp. Counsel, Yonkers, N.Y., on the brief), for defendant-contemnor-appellant.

Anthony J. Mercorella, New York City (Vincent R. Fontana, James L. Fischer, Vincent R. Cappucci, Wilson, Elser, Moskowitz, Edelman & Dicker, New York City, on the brief), for contemnor-appellant Spallone.

James D. Harmon, Jr., New York City (Barry G. Saretsky, Martin S. Kaufman, Michael J. Eng, Aaron F. Fishbein, Bower & Gardner, New York City, on the brief), for contemnor-appellant Chema.

Lawrence R. Sykes, Yonkers, N.Y., for contemnors-appellants Longo and Fagan.

Linda F. Thome, Dept. of Justice, Washington, D.C. (Wm. Bradford Reynolds, Asst. Atty. Gen., Mark R. Disler, Deputy Asst. Atty. Gen., David K. Flynn, Dept. of Justice, Washington, D.C., on the brief), for plaintiff-appellee.

Michael H. Sussman, Yonkers, N.Y. (Sussman & Sussman, Yonkers, N.Y., on the brief), for plaintiffs-intervenors-appellees.

Before NEWMAN, MINER and MAHONEY, Circuit Judges.

JON O. NEWMAN, Circuit Judge:

This appeal presents important issues concerning the enforcement of orders of a United States District Court requiring action by a municipality to remedy violations of the Constitution and statutes of the United States. The principal issues are whether members of the Yonkers City Council may be required to vote to implement remedies contained in a consent judgment agreed to by the City and approved by the City Council, and whether the City, in addition to the council members, may be subjected to the coercive sanctions of civil contempt when the agreed upon legislative action has not been taken. The issues arise on appeals by the City of Yonkers and four members of the Yonkers City Council from orders of the District Court for the Southern District of New York (Leonard B. Sand, Judge) adjudicating the City and the council members in civil contempt and imposing coercive sanctions. We conclude that under the circumstances of this case the recalcitrant council members may be required to vote to implement the consent judgment and that the City, in addition to the council members, may be adjudicated in contempt and subjected to coercive sanctions for failure to abide by the consent judgment and subsequent implementing orders of the District Court. We also conclude that the amount of the monetary sanctions imposed on the City, though properly substantial, should be somewhat reduced. We therefore affirm the order adjudicating the council members in contempt and affirm, as modified, the order adjudicating the City in contempt.

Background
1. The Underlying Lawsuit

The United States filed the underlying lawsuit on December 1, 1980, against the City of Yonkers, the Yonkers Community Development Agency, and the Yonkers Board of Education. The complaint made two basic allegations: (a) that the City and the Community Development Agency had "intentionally ... perpetuated and seriously aggravated residential racial segregation" in violation of the Constitution and Title VIII of the Civil Rights Act of 1968, 42 U.S.C. Secs. 3601-3619 (1982), and (b) that the racial segregation in the City's public schools had been "caused in substantial part by intentional, racially discriminatory acts and omissions" of the City and the Board of Education in violation of the Constitution. The National Association for the Advancement of Colored People (NAACP) was granted leave to intervene, and the suit was subsequently certified as a class action on behalf of all Black residents of Yonkers who currently reside in or are eligible to reside in publicly assisted housing or who are parents of children attending Yonkers public schools.

After a bench trial lasting ninety days over the course of fourteen months in 1983 and 1984, the District Court found the City and the Community Development Agency liable for intentional housing segregation and found the City and the Board of Education liable for intentional school segregation. United States v. Yonkers Board of Education, 624 F.Supp. 1276-1553 (S.D.N.Y.1985). With respect to the housing violations, with which we are concerned on this appeal, the District Court found that the City had deliberately concentrated virtually all of its public and other subsidized housing in the southwest quadrant of Yonkers and had done so to maintain residential segregation. Id. at 1372-76. After conducting a six-day hearing as to appropriate remedies, the District Court issued a Housing Remedy Order on May 28, 1986. United States v. Yonkers Board of Education, 635 F.Supp. 1577 (S.D.N.Y.1986). 1

The Housing Remedy Order included provisions for the construction of 200 units of public housing and for the planning of additional units of subsidized housing. The City had previously agreed to provide acceptable sites for the 200 units of public housing as a condition of receiving its 1983 Community Development Block Grant from the United States Department of Housing and Urban Development (HUD). Part IV of the Housing Remedy Order established a precise timetable within which the City was required to furnish HUD with necessary documents to secure HUD's approval of funds for the 200 units. Id. at 1580-81. The City was required to propose sites for 140 units within thirty days and sites for the remaining 60 units within ninety days.

Part VI of the Housing Remedy Order accorded the City broad discretion to make its own determinations concerning additional units of subsidized housing. The District Court did not specify the number of units to be built, the time by which they must be built, or the degree of subsidization. Part VI contained essentially two requirements. First, the additional units must be located in existing residential areas in east or northwest Yonkers. Second, the City must prepare a plan specifying, among other things, the number of subsidized units to be constructed or acquired, their location, and the rent levels or degree of subsidization. Id. at 1582. The City was given until November 15, 1986, nearly six months, to present its plan.

This Court affirmed the liability and remedy rulings of the District Court on December 28, 1987. United States v. Yonkers Board of Education, 837 F.2d 1181 (2d Cir.1987), and the Supreme Court denied the City's petition for a writ of certiorari. --- U.S. ----, 108 S.Ct. 2821, 100 L.Ed.2d 922 (1988). None of the requirements of the Housing Remedy Order was stayed during the course of appellate review.

2. Attempts to Implement the Housing Remedy Order

With respect to the requirement to propose sites for the 200 units of public housing within thirty and ninety days, the City totally defaulted. No site was proposed. With respect to the requirement to submit a plan within six months for additional subsidized housing, the City again totally defaulted. On the appointed day, November 15, 1986, the City informed the District Court that it would not comply. The United States and the NAACP then moved for an adjudication of civil contempt and the imposition of coercive sanctions. Rather than proceed immediately to consideration of contempt sanctions, the District Court patiently endeavored to secure voluntary compliance. In February 1987, the City Council agreed to the appointment of an Outside Housing Advisor to identify sites for the 200 units of public housing and to draft a long-term plan for the additional units of subsidized housing. Throughout the rest of 1987 attention was focused primarily on the requirement for proceeding with the 200 units of public housing. The Advisor recommended placing the 200 units in small clusters on scattered sites. In April 1987, the City Council proposed to place the 200 units on twelve sites but rendered the proposal illusory by conditioning it on the patently unacceptable right of local civic associations to select the tenants. By the end of 1987 the City had taken no significant action to comply with the 1986 Housing Remedy Order.

In January 1988, following this Court's affirmance of the liability and remedy decisions and with the District Court contemplating designation of sites for the 200 units, the parties began negotiations to settle the compliance issues. On January 19, when prospects for agreement appeared bleak, the District Court pointed out to the City that the Court could proceed either by "deeming things to have been done which it was the obligation of Yonkers to do, or it can order Yonkers to do those things." On January 25, counsel for the City informed the Court that the City was contemplating a consent judgment and that the City was prepared to designate seven sites for the 200 units of public housing and to implement a long-term plan to achieve the goal of 800 units of subsidized housing that had been recommended by the plaintiffs. A consent decree was agreed to by the parties that same day, approved by the City Council on January 27, and entered as a consent judgment of the District Court on January 28 ("the Consent Judgment").

With respect to the 200 units of public housing, the Consent Judgment renewed the City's commitment to build the units and identified seven specific sites. The judgment also committed the City to take specific steps within a prescribed timetable to have the...

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