Freeman v. City of Fayetteville

• Decision Date: 16 July 1997
• Docket Number: Civil Action No. 1000.
• Court: U.S. District Court — Eastern District of North Carolina
• Parties: William C. FREEMAN, et al. Plaintiffs, v. The CITY OF FAYETTEVILLE, et al. Defendants.

971 F.Supp. 971

William C. FREEMAN, et al. Plaintiffs, v. The CITY OF FAYETTEVILLE, et al. Defendants.

Civil Action No. 1000.

United States District Court, E.D. North Carolina, Western Division.

July 16, 1997.

COPYRIGHT MATERIAL OMITTED

Geraldine Sumter, Ferguson, Stein, Wallas, Adkins, Gresham & Sumter, Charlotte, NC, for Plaintiffs.

Philip M. Van Hoy, Van Hoy, Reutlinger & Taylor, Charlotte, NC, for Defendants.

BRITT, District Judge.

This matter is before the court on the motion of defendants pursuant to Rules 60(b)(5) and (6) of the Federal Rules of Civil Procedure for relief from the judgment entered in this case and on the motion of plaintiffs for an extension of time to develop the factual record. These motions have been fully briefed and are now ripe for ruling.¹

I. BACKGROUND

On 26 August 1974 a consent judgment ("judgment") was entered in the instant case by the Honorable Franklin T. Dupree, Jr. The judgment was the result of a civil rights law suit filed by nine black plaintiffs in which they alleged that they and other blacks had been denied employment opportunities with the Fayetteville Police Department ("FPD") because of their race.² The judgment imposed specific hiring and recruitment quotas on the FPD as follows:

Paragraph 4: Commencing July 1, 1974 and continuing through December 31, 1974, at least fifty (50%) of the appointments to vacancies in the rank of patrolman shall consist of qualified black applicants.

Thereafter, at least forty (40%) percent of the appointments to vacancies in the rank of patrolman shall consist of qualified black applicants until the percentage of black patrolmen constitutes at least thirty (30%) percent of the total number of patrolmen employed by the Police Department.

Paragraph 6: With regard to promoting (sic) policies and practices, the defendants herein ... shall develop and implement a plan for promoting black officers to the ranks of sergeant, lieutenant and captain within the Fayetteville Police Department. Said plan shall provide for the selection of a "pool" of qualified officers.... After the creation of ... said pool, the percentage of blacks therein shall be numerically determined. Thereafter, promotions to each successive rank shall include black officers at least to the extent of said numerical percentage. Said pool shall continue in existence at least until the number of qualified black officers constitutes at least thirty (30%) percent of the total number of sergeants, lieutenants and captains on the Fayetteville Police Force.

II. STANDARD

Motions pursuant to Federal Rule of Civil Procedure 60(b)(5) and (6) to terminate consent decrees are to be evaluated by "a less stringent more flexible standard" than the "grievous wrong" standard articulated in United States v. Swift & Co., 286 U.S. 106, 119, 52 S.Ct. 460, 464, 76 L.Ed. 999 (1932); Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 112 S.Ct. 748, 116 L.Ed.2d 867 (1992). This flexible standard is two-pronged and places upon the "party seeking modification ... the burden of establishing" the prerequisites to termination of the decree. Rufo, 502 U.S. at 383, 112 S.Ct. at 759-60. The party seeking modification may satisfy the first prong "by showing either a significant change in factual conditions or in law." Id. at 384, 112 S.Ct. at 760. Changes in factual circumstances warrant modification or termination of a consent judgment in any three instances: 1) where the changes make "compliance with the decree substantially more onerous;" 2) where a "decree proves to be unworkable because of unforeseen obstacles;" or 3) where enforcement of the decree "would be detrimental to the public interest." Id. Where subsequently-decided authority indicates that "one or more of the obligations placed upon the parties has become impermissible under federal law" the decree must be modified or terminated. Id. at 388, 112 S.Ct. at 762. "[A] rising constitutional floor-or ... a falling constitutional ceiling may make modifications necessary." N.A.A.C.P. v. Seibels, 20 F.3d 1489, 1504 (11th Cir.1994).

Once this first prong has been satisfied, the party seeking modification must submit evidence as to whether the "proposed modification is suitably tailored to the changed circumstances." Rufo, 502 U.S. at 391, 112 S.Ct. at 763. This requirement mandates that the court determine what changes are appropriate to address "significant factual developments or conflicts between new legal standards and the requirements of the decree." N.A.A.C.P., 20 F.3d at 1504. The proposed change may not "create or perpetuate a constitutional violation." Rufo, 502 U.S. at 391, 112 S.Ct. at 763.

It is settled law that an employment discrimination consent decree entered by a federal judge should be treated as a "voluntary affirmative action plan" for purposes of equal protection analysis. North State Law Enforcement Officers Ass'n v. Charlotte-Mecklenburg Police Dept., 862 F.Supp. 1445 (W.D.N.C.1994) (citing N.A.A.C.P., 20 F.3d at 1489). Voluntary affirmative action plans are subject to strict scrutiny. City of Richmond v. J.A. Croson Co., 488 U.S. 469, 498-505, 109 S.Ct. 706, 724-28, 102 L.Ed.2d 854 (1989); see Maryland Troopers Ass'n v. Evans, 993 F.2d 1072, 1076-79 (4th Cir.1993) (applying strict scrutiny equal protection analysis to consent decree entered by federal district court). Any racial preferences established by such plans "may not take on a life of their own," Maryland Troopers Ass'n, 993 F.2d at 1076, and "are not intended to operate in perpetuity." Board of Educ. of Oklahoma City Pub. Schs. v. Dowell, 498 U.S. 237, 248, 111 S.Ct. 630, 637, 112 L.Ed.2d 715 (1991).

III. DISCUSSION

Defendants assert that there has been a change in the law such that, under Rufo and the cases cited above, the judgment in this case must be terminated. Specifically, defendants assert that the rigid quotas imposed by the 1974 judgment have been rendered unconstitutional by subsequently-decided authority requiring the application of strict scrutiny to such quotas. Plaintiffs do not dispute the application of strict scrutiny to the quotas imposed by the judgment; however, they maintain that defendants have not met the prerequisites for the dissolution of the decree. In order to determine if the state of the law applicable to racial hiring and promotion quotas has changed to such an extent as to require termination of the decree, the court must address changes in applicable constitutional analysis and case law of this circuit. Only then can the determination be made as to whether defendants have met their burden of establishing a change in the law and, if so, the ensuing analysis be performed to determine if defendants are entitled to the relief they seek under Federal Rule of Civil Procedure 60(b).

A. Strict Scrutiny Analysis

As stated above and agreed upon by the parties, the law is clear that race-conscious affirmative action plans such as the judgment at issue are subject to strict scrutiny. Croson, 488 U.S. 469, 109 S.Ct. 706, 102 L.Ed.2d 854 (1989). This was not the case at the time the judgment was entered in 1974. The mandate of strict scrutiny requires that a race-based affirmative action classification be justified by a compelling state interest and narrowly tailored to achieve that interest. Id. There is a two-step analysis for evaluating race-conscious plans under this heightened level of review. First, there must be a strong basis in evidence for the state's conclusion that remedial action is necessary. Maryland Troopers Ass'n, 993 F.2d at 1076 (citing Croson, 488 U.S. at 500, 109 S.Ct. at 725 (quoting Wygant v. Jackson Board of Educ., 476 U.S. 267, 277, 106 S.Ct. 1842, 1848-49, 90 L.Ed.2d 260 (1986))). To demonstrate a compelling state interest, the state must do more than claim a general history of societal discrimination. It must "specify the racial discrimination that its targeting with its plan." Maryland Troopers Ass'n, 993 F.2d at 1076 (citing Croson, 488 U.S. at 498-99, 109 S.Ct. at 724-25).

The second part of the strict scrutiny analysis requires that the specifically identified state interest be achieved by a narrowly tailored remedial measure. Croson, 488 U.S. at 507, 109 S.Ct. at 729; Wygant, 476 U.S. at 274, 106 S.Ct. at 1847. A narrowly tailored remedy cannot be over-inclusive and must be confined to alleviate "the effects of identified discrimination" within the institution subject to the remedy. Croson, 488 U.S. at 508-10, 109 S.Ct. at 729-31. The Fourth Circuit has written that when the remedy is in the form of a numerical race-related goal or quota, it

must be waivable if qualified minority applicants are scarce, and such goals must bear a reasonable relationship to minority percentages in the relevant qualified labor pool, not in the population as a whole. Finally, the preferences may not supplant race-neutral alternatives for remedying the same discrimination.

Maryland Troopers Ass'n, 993 F.2d at 1076-77. (citations omitted).

In Hayes v. North State Law Enforcement Officers Ass'n, 10 F.3d 207 (4th Cir.1993), involving a consent judgment strikingly similar to the one at bar and which will be discussed at length below, the Fourth Circuit noted that a prior record of proven discrimination may justify a continuation of racial preferences as to hiring, promotions and injunctive relief. However, the court held that such reliance on a prior record was not available to the Charlotte-Mecklenburg Police Department, as no evidence of prior discrimination was introduced to support the continuation of the judgment and the judgment itself did not contain specific facts evidencing past discrimination. Hayes, 10 F.3d at 213-15. The judgment at issue here, just like the Charlotte judgment does not contain any references to, or evidence of, unlawful discrimination which could form a basis for the necessary compelling state interest.

Plaintiffs assert that they should be given additional time in order to develop...