Capeletti Bros. v. Metropolitan Dade County, 90-0678-CIV.
| Citation | 735 F. Supp. 1040 |
| Decision Date | 13 April 1990 |
| Docket Number | No. 90-0678-CIV.,90-0678-CIV. |
| Parties | CAPELETTI BROTHERS, INC., Weekley Asphalt Paving Inc., Westwind Contracting, Inc., and Hardrives Company, Plaintiffs, v. METROPOLITAN DADE COUNTY, Joaquin Avino, Defendants. |
| Court | U.S. District Court — Southern District of Florida |
Herbert P. Schlanger and Deborah Gibson, Atlanta, Ga., for plaintiffs.
R.A. Cuevas, Jr., Asst. Dade County Atty., Miami, Fla., for defendant, Dade County.
Philip E. Beck, Smith, Currie & Hancock, Atlanta, Ga., for defendant, Lowell Dunn.
AMENDED MEMORANDUM OPINION AND ORDER
Once again, an action has been brought challenging the constitutionality of a Metropolitan Dade County ordinance and resolution granting preferential treatment to blacks in its contract bidding process.1 The ordinance has a provision that allows the county to set aside certain designated county contracts exclusively among Black contractors. It also contains a goals provision by which the county can require that a certain percentage of a contract's value be subcontracted to Black contractors.
Plaintiffs are White construction contractors and subcontractors who allege that they have been adversely affected by Metropolitan Dade County's race-conscious ordinance.2 The defendants are Metropolitan Dade County ("Dade County" or "county"), the county manager, and The Lowell Dunn Company. Plaintiffs request (1) a permanent injunction against enforcement of the ordinance, and (2) a declaration that the ordinance is unconstitutional.
Upon the filing of the complaint, the Court held a Status Conference. During the Status Conference, the Court established certain schedules and accelerated the date upon which the final hearing on this cause was to commence. The hearing was held on April 3, 1990 at which evidence was adduced and legal argument heard from all parties. At the conclusion of the hearing, the Court took the matter under advisement and now issues its memorandum opinion.
The threshold issue in this case is whether Plaintiffs are precluded by res judicata principles from challenging Dade County's race-conscious affirmative action plan. Defendants maintain that the final judgment rendered in South Florida Chapter of Associated General Contractors of America, Inc. v. Metropolitan Dade County, Florida, 552 F.Supp. 909 (S.D.Fla.1982); aff'd in part, rev'd in part, 723 F.2d 846 (11th Cir.1984), cert. denied, 469 U.S. 871, 105 S.Ct. 220, 83 L.Ed.2d 150 (1984) bars Plaintiffs from relitigating their claims attacking the county's ordinance. Plaintiffs argue that res judicata does not apply because the applicable law has changed since the Associated General Contractors litigation. They contend that if the present constitutional standards had been employed by the district court in the 1982 action, the district court would have declared the county's race-conscious ordinance unconstitutional and enjoined its enforcement. Defendants counter this argument by asserting that a postjudgment change of law does not alter the res judicata effect of a final judgment and point to Federated Department Stores v. Moitie, 452 U.S. 394, 101 S.Ct. 2424, 69 L.Ed.2d 103 (1981) for support.
In general, "changes in the law after a final judgment do not prevent the application of res judicata and collateral estoppel, even though the grounds on which the decision was based are subsequently overruled." Precision Air Parts, Inc. v. Avco Corp., 736 F.2d 1499, 1503 (11th Cir.1984), cert. denied, 469 U.S. 1191, 105 S.Ct. 966, 83 L.Ed.2d 970 (1985). This circuit, however, recognizes an exception to the general rule in cases involving constitutional law. Parnell v. Rapides Parish School Bd., 563 F.2d 180, 185 (5th Cir.1977), cert. denied, 438 U.S. 915, 98 S.Ct. 3144, 57 L.Ed.2d 1160 (1978). See also Jackson v. De Soto Parish School Bd., 585 F.2d 726, 729 (5th Cir.1978); Moch v. East Baton Rouge Parish School Bd., 548 F.2d 594, 598 (5th Cir.), cert. denied, 434 U.S. 859, 98 S.Ct. 183, 54 L.Ed.2d 132 (1977); Christian v. Jemison, 303 F.2d 52, 54 (5th Cir.1962).
Nothing in Moitie defeats this exception. See Precision Air Parts, 736 F.2d at 1504 (). Therefore, if the relevant law has undergone significant changes since the Associated General Contractors litigation, Plaintiffs will be able to escape the application of res judicata.
Parenthetically, the Court is constrained to observe that neither party disclosed to the Court the controlling authority on this issue. We are at a loss to understand this failure. Any counsel involved in this litigation and researching this issue could have, and indeed, should have, recognized the importance, if not the obligation, of disclosing these pertinent legal authorities. The failure to present the legal authorities properly applicable to this case is inexcusable. The Court trusts that the parties will not place the Court in such a position again.
In support of their argument that the applicable law has changed since the Associated General Contractors litigation, Plaintiffs principally rely on the United States Supreme Court opinion in City of Richmond v. J.A. Croson Company, 488 U.S. 469, 109 S.Ct. 706, 102 L.Ed.2d 854 (1989). In Croson, the Supreme Court found that the City of Richmond had violated the equal protection clause by requiring prime contractors for the city to subcontract at least 30% of the dollar amount of their construction contracts to one or more minority business enterprises. In Part IIIA of Justice O'Connor's opinion, a plurality of the Court ruled that all racial classifications, including those adopted for remedial purposes, are subject to strict scrutiny review. Croson, 109 S.Ct. at 721; id., 109 S.Ct. at 734-35 (Scalia, J., concurring).
In Part IIIB, a majority of the Court undertook a searching review of the predicate facts relied on by the district court. Croson, 109 S.Ct. at 723-28. The five findings relied upon by the district court were as follows: "(1) the ordinance declares itself to be remedial; (2) several proponents of the measure stated their views that there had been past discrimination in the construction industry; (3) minority businesses received .67% of prime contracts from the city while minorities constituted 50% of the city's population; (4) there were very few minority contractors in local and state contractors' associations; and (5) in 1977 Congress made a determination that the effects of past discrimination had stifled minority participation in the construction industry generally." Croson, 109 S.Ct. at 723. The majority rejected each of these factual findings and found that they did not provide a valid basis for a race-based plan.
In particular, the Court ruled that mere assertions of a "benign" or legitimate purpose is entitled to little or no weight. With respect to the statements regarding the views of proponents of the measure, the Court found them to be of "little probative value in establishing identified discrimination in the Richmond construction industry." Croson, 109 S.Ct. at 724. The Court also ruled that a comparison between the number of prime contracts awarded to minority firms and the minority population of the city (as opposed to the number of qualified minority firms) is inappropriate. Croson, 109 S.Ct. at 725-26. As for the finding that there were few minority contractors in local and state contractors' associations, the Court stated that for this factor to be relevant it would have to be linked to the number of local minority business enterprises eligible for membership. Croson, 109 S.Ct. at 726. With respect to the final factor, the majority stated that it was of extremely limited probative value. Id.
In Part IV, a majority of the Court concluded that the city was required to show that its plan was "narrowly tailored to remedy prior discrimination" and found that it had not made that showing. Croson, 109 S.Ct. at 728. The Richmond plan failed the test of narrowing tailoring because there had been no "consideration of the use of race-neutral means to increase minority business participation in city contracting," Croson, 109 S.Ct. at 727, nor did the plan provide for an "inquiry into whether or not the particular MBE seeking a racial preference had suffered from the effects of past discrimination...." Croson, 109 S.Ct. at 729-30. In Part V, Justice O'Connor, joined by Chief Justice Rehnquist and Justices White, Kennedy, and Scalia, suggested what types of state remedial action might be found to be constitutional.
Upon its review of Croson, the Court finds merit in Plaintiffs' contention that the relevant constitutional law has undergone significant changes since the adjudication of the first suit. Croson clearly modifies the analysis lower courts must apply when reviewing the constitutionality of affirmative action plans. The Court notes that Defendants impliedly concede this point for they never claimed that the law was not changed by Croson. Indeed, it would be sheer sophistry to make such a claim. Accordingly, the Court concludes that res judicata does not preclude the present action.
Now that the Court has determined that the principles of res judicata do not bar Plaintiffs' claims, the Court must analyze Dade County's race-conscious affirmative action plan under the constitutional framework set forth in Croson. However, it is the Court's considered opinion that a supplemental hearing is warranted before a final decision is rendered on the validity of Dade County's affirmative action plan.
Croson raises...
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