On applications for stay. [ Spallone v. U.S.
487
U.S. 1251 (1988) ][1251-Continued.]
The applications for stay of Henry G. Spallone, Nicholas Longo,
Edward Fagan, and Peter Chema presented to Justice MARSHALL and by
him referred to the Court are granted pending the timely filing and
disposition by this Court of petitions for writs of certiorari.
The application for stay of the City of Yonkers presented to
Justice MARSHALL and by him referred to the Court is denied.
On
856 F.2d
444. The Court of Appeals stayed issuance of its mandate until
September 2, to permit application for a stay of the contempt
sanctions pending filing and consideration of petitions for writs
of certiorari. The city of Yonkers and the four councilmembers have
sought such a stay. Today the Court denies a stay as to the city
but grants it as to the four councilmembers. I believe that the
Court should deny the stay as to the councilmembers as well.
Justice MARSHALL, joined by Justice BRENNAN, concurring in the
denial of stay in No. A-175, and dissenting from the grant of stay
in Nos. A-172, A-173, and A-174.
I
In 1980, the United States filed suit against the city of
Yonkers, claiming it had intentionally perpetuated and aggravated
residential racial segregation in violation of the Constitution and
Title
Page 487 U.S.
1251 , 1252
VIII of the Civil Rights Act of 1968, 82 Stat. 81, 42 U.S.C.
3601-3619, and had intentionally segregated its schools in
violation of the Constitution. The National Association for the
Advancement of Colored People (NAACP) was accorded
plaintiff-intervenor status. In 1985, the District Court held the
city liable for intentional housing and school segregation, United
States v. Yonkers Board of Education,
624 F.
Supp. 1276 ( SDNY1985), finding, inter alia, that the city had
deliberately concentrated virtually all of its public and
subsidized housing in southwest Yonkers in order to maintain
residential segregation. The District Court issued a Housing Remedy
Order which directed the city to establish a fair housing policy,
to construct 200 units of public housing, and to plan additional
units of subsidized housing. The Court of Appeals for the Second
Circuit affirmed both the liability and remedy rulings, United
States v. Yonkers Board of Education,
837 F.2d
1181 (1987), and the Court denied the city's petition for a
writ of certiorari. 486 U.S. 1055 (1988).
On November 15, 1986, the city informed the District Court that
it would not comply with the Housing Remedy Order. The United
States and the NAACP moved for an adjudication of civil contempt
and the imposition of coercive sanctions, but the District Court
instead sought voluntary compliance with its earlier order. After
negotiations, the city council- the city's sole governing
authority-agreed to appoint an outside housing adviser to identify
sites for the 200 units of public housing and to draft a long-term
plan for subsidized housing. Over a year passed. On January 28,
1988, the parties entered into a consent decree, approved by the
District Court, which set a new timetable for the construction of
the 200 public housing units. The city pledged that it would not
seek further review of the Housing Remedy Order or any subsequently
entered decree relating to these 200 units. In addition, the city
agreed that the construction of 800 units of subsidized housing was
an appropriate remedy and pledged to make good-faith efforts to
build the additional 600 units within the next three years. Section
17 of the consent decree obligated the city "to adopt . . .
legislation" necessary to meet the goal of 800 units, including tax
abatements, zoning changes, and, within 90 days, a package of
incentives for local development. Section 18 provided for further
negotiations and the submission of a draft of a second consent
decree setting forth long-range plans for subsidized hous-
Page 487 U.S.
1251 , 1253
ing by February 15, 1988. The council approved the consent
decree by a vote of 5 to 2.
Within two months, the city demonstrated its unwillingness to
comply with the consent decree by moving unsuccessfully to delete
the provision in which it promised not to seek further review of
its obligation to build the 200 units, and by offering to return
approximately $30 million in federal funds in the event this Court
set aside the public housing provisions of the Housing Remedy
Order. On April 12, 1988, the city announced that it was "not
interested" in completing negotiations on the long-term plan for
subsidized housing as required by 18 of the consent decree.
Following a hearing on June 13, the District Court entered a Long
Term Plan Order outlining the legislation that the city had
committed itself to adopt in 17 of the consent decree. The order
was based on a draft prepared by the city's lawyers during earlier
negotiations and accommodated most of the city's objections.
The next day, June 14, 1988, the council adopted a resolution
declaring a moratorium on all public housing construction in
Yonkers. A week later, on June 21, the city announced that it had
retained a consulting firm to draft housing legislation, and that
the next council meeting was tentatively scheduled for August. The
District Court, expressing concern about delay, asked the council
to pass a resolution adopting the provisions of the Long Term Plan
Order. On June 28, the council voted down a resolution indicating
its commitment to implementing the Housing Remedy Order, the
consent decree, and the Long Term Plan Order . The following day,
the District Court directed the plaintiffs to submit an order
requiring the city to take "specific implementing action" under a
prescribed timetable on penalty of a contempt adjudication and
imposition of fines. At a hearing held to consider the proposed
order, the city stated that it would not voluntarily comply with
the Long Term Plan Order and urged the court to enter an order
adopting the necessary legislation. The city also objected to the
creation of an Affordable Housing Commission to exercise the
council's responsibilities for implementing the District Court's
orders and the consent decree. The city argued that such a
commission would impermissibly interfere with the council's "core
legislative as well as executive functions."
On July 26, 1988, the District Court ordered the city to enact
by August 1 "the legislative package relating to the long-term plan
as described in Section 17 of the [consent decree] and the Long
Term
Page 487 U.S.
1251 , 1254
Plan Order." This "legislative package" was set forth in a
detailed Affordable Housing Ordinance drafted by the city's
consultants. The July 26 order warned that if the legislation were
not adopted by August 1, the city and the councilmembers would face
contempt adjudication and the following fines: on the city, a fine
starting at $100 on August 1 and doubling every day until the
legislation was passed, so that the cumulative total of the fines
would exceed $10,000 by day 7, $1 million by day 14, $200 million
by day 21, and $26 billion by day 28; on the councilmembers, a fine
of $500 per day on each member who voted against the legislative
package, with the additional threat of incarceration on August 10
if the package were not adopted by the council by that time. To
accommodate the city's expressed concern that it could not adopt
legislation by August 1 without running afoul of state notice and
hearing requirements, the District Court specified that its July 26
order would be " satisfied if the City Council, on or before August
1st, adopts a resolution committing itself to enact the Affordable
Housing Ordinance within the minimum time prescribed for notice
pursuant to state law." On August 1, the council rejected such a
resolution by a vote of 4 to 3.
As contemplated by the July 26 order, the District Court held a
hearing on August 2 to afford the city and councilmembers an
opportunity to show cause why they should not be adjudicated in
civil contempt. As for the city, the District Court "reject[ed]
[its] contention that a dichotomy can be drawn between the city and
the city council." Further, the District Court declined to adopt
the Affordable Housing Ordinance for the city, as requested by the
city, noting that the city should directly meet its
responsibilities under the Constitution and the consent decree. As
for the four councilmembers who had voted against the resolution of
intent to adopt the Affordable Housing Ordinance, the District
Court rejected their request for a continuance, observing that they
had been on notice since July 26 of the prospect of contempt and
the need for counsel, and that they had rejected the court's offer
of an immediate evidentiary hearing. The District Court agreed
nonetheless that it would permit argument at a later date on any
theory or circumstance not then available to counsel. The District
Court held the city and the councilmembers in contempt and imposed
the sanctions set forth in the July 26 order.
On August 9, the Court of Appeals stayed the District Court's
contempt sanctions against the city and the four councilmembers
Page 487 U.S.
1251 , 1255
pending appeal. On August 26, the Court of Appeals, in a
unanimous opinion by Judge Newman, affirmed the District Court's
contempt orders and the imposition of coercive monetary sanctions,
with one modification in the city's sanctions.
856 F.2d
444. First addressing the claims of the councilmembers, the
Court of Appeals found that the procedural due process requirements
attendant to the contempt adjudications were, with one exception,
fully observed. The July 26 order provided sufficient notice to
councilmembers of the consequences of noncompliance. Each member
appeared with counsel and had an opportunity to present evidence
and legal argument. Although the Court of Appeals found that it
would have been preferable to have accorded counsel a few days to
prepare, it declined to remand the matter given the absence of
factual disputes and its decision on the merits. The Court of
Appeals also rejected the councilmembers' First Amendment argument,
stating that the public interest in obtaining compliance with
federal-court judgments that remedy constitutional violations
justifies whatever burden there may have been on the
councilmembers' free expression rights.
As for the argument that the councilmembers were entitled to
some form of legislative immunity, the Court of Appeals noted that,
even if such immunity extends to individuals performing legislative
functions at the purely local level, it would not bar district
court orders requiring compliance with decrees redressing
constitutional violations. The Court of Appeals stressed, however,
that it was not necessary to answer the broad question whether a
district court could order local legislators to vote in favor of a
particular ordinance to redress a constitutional violation, because
the council had approved, and the city had signed, a consent decree
requiring the enactment of legislation necessary to implement the
District Court's earlier order. The Court of Appeals found that all
councilmembers, including those who had voted against the consent
decree, were obligated to enforce it, and that their failure to do
so made appropriate contempt adjudications and the imposition of
sanctions.
Along these same lines, the Court of Appeals also decided that
the District Court did not abuse its discretion in directing the
council to adopt the Affordable Housing Ordinance, and in imposing
coercive contempt sanctions to compel compliance, given that the
city had agreed in the consent decree to adopt necessary
implementing legislation. As for the claim that the July 26
order
Page 487 U.S.
1251 , 1256
compelled the council to violate state notice and hearing
requirements, the Court of Appeals stressed the supremacy of
federal court orders in implementing remedies for constitutional
violations. The Court of Appeals added that, in any event, the
council could have satisfied the July 26 order by passing a
resolution committing itself to enact the legislation in accordance
with state-law procedures. As for the city's claims, the Court of
Appeals rejected the defense of impossibility, noting that the city
had not done everything it could under city law to obtain
compliance with the orders of the District Court. In particular,
the city had not tried to coerce councilmembers into compliance by
applying to the Emergency Financial Control Board to take action
with respect to the city's financial affairs, or by requesting the
Governor of New York to remove the recalcitrant councilmembers for
misconduct. In any event, the Court of Appeals concluded, "[f]or
purposes of taking official governmental action, the City of
Yonkers is the City Council and vice versa." 856 F.2d, at 458. The
Court of Appeals noted in this regard that the city has no separate
executive authority in that its mayor merely serves on the council,
and that the city manager serves at the pleasure of the
council.
Finally, as to the amount of the coercive fines, the Court of
Appeals found that the Excessive Fines Clause of the Eighth
Amendment does not apply to civil contempt sanctions imposed to
obtain compliance with court orders. Although the court noted that
the Due Process Clause of the Fifth Amendment arguably provides a
limit, it relied on an abuse-of-discretion standard to review the
amount of the fines. The Court of Appeals held that the District
Court acted within its discretion in imposing cumulative fines and
in starting the fine schedule at $100 a day, but it modified the
schedule so that the fine would be $1 million on day 15 and $1
million for every subsequent day of noncompliance. Given the city's
annual budget of $ 337 million, the Court of Appeals found that a
$1 million a day fine was within "reasonable limits." 856 F.2d, at
460.
II
The city argues that the fines imposed by the District Court
violate the Excessive Fines Clause of the Eighth Amendment and the
Due Process Clause of the Fifth Amendment; that the Court of
Appeals erred in affirming the contempt adjudication because the
District Court did not adopt less restrictive alternatives; that
the city had a valid impossibility defense; and that the order
Page 487 U.S.
1251 , 1257
violated state law. Councilmembers Spallone and Chema claim
legislative immunity. Chema also argues that the contempt sanction
violates the First Amendment and his procedural due process rights.
Councilmembers Longo and Fagan claim generally that the sanction
was an abuse of discretion and unconstitutional.
A. The City
The city's first contention is that the Excessive Fines Clause
of the Eighth Amendment is applicable to contempt sanctions and
that the particular sanctions imposed here were constitutionally
excessive. The city accurately observes in this regard that the
Court has indicated that the applicability of this Clause to
punitive damages in civil cases is "a question of some moment and
difficulty." Bankers Life & Casualty Co. v. Crenshaw,
486 U.S.
71, 79, 1651 (1988). But, even if the Clause applies to
punitive damages, the city offers no compelling reason why we
should extend its reach to civil contempt sanctions. Indeed, it
appears settled that the Cruel and Unusual Punishments Clause does
not apply to civil contempt sanctions. See Ingraham v. Wright,
430 U.S.
651, 668, 1410 ( 1977). This is not surprising since the Cruel
and Unusual Punishments Clause, like the Excessive Fines Clause,
applies to punishments for past conduct, while civil contempt
sanctions are designed to secure future compliance with judicial
decrees. See ibid.; Uphaus v. Wyman,
360 U.S.
72, 81, 1046 (1959). In any event, even assuming that the size
of monetary contempt sanctions is limited by the Excessive Fines
Clause or even the Due Process Clause, I do not think that the
fines against the city, as modified by the Court of Appeals, are
unreasonable. The city of Yonkers has an annual budget of $337
million. At one point, it offered to forfeit $30 million in federal
funds to avoid compliance with the consent decree. Under these
circumstances, a fine schedule which imposes $1 million a day only
after noncompliance for 15 consecutive days can hardly be deemed
unreasonable.
The city's second contention is that the contempt adjudication
itself was improper because the District Court should have adopted
less restrictive alternatives such as direct enactment of the
legislation or appointment of an Affordable Housing Commission, and
because the city had a valid impossibility defense. Neither
contention has merit. First, the District Court had no need to
resort to its equitable authority, codified in Federal Rule of
Civil Procedure 70, to deem the legislation enacted, as the city
had committed
Page 487 U.S.
1251 , 1258
itself to adopting that legislation in a court-approved consent
order. Surely it is both less disruptive and more effective to
order compliance with that order than to usurp completely the
council's legislative authority and enact the legislation directly.
Second, having previously objected to the creation of an Affordable
Housing Commission, the city cannot now claim that the District
Court should have created such an entity. The city also contends
the District Court erred by rejecting its impossibility defense. It
claims that it does not have the ability to compel the
councilmembers to enact the legislation or to remove recalcitrant
members. The city's attempt to divorce itself from the actions of
its councilmembers is disingenuous. As the city repeatedly points
out in its application, "Yonkers is relatively unique in that most
of the governmental power in the city is centralized in the
legislative branch." For this reason, the city is the council.
Indeed, because the council sets municipal policy, see Pembaur v.
Cincinnati,
475 U.S.
469, 481, 1299 (1986), it is reasonable to attribute to the
city the acts of its elected policymakers.
B. The Councilmembers
The councilmembers' primary argument is that a federal court
lacks authority to order an individual local legislator, as opposed
to the body in which he serves, to enact specific legislation. In
the councilmembers' view, a federal court, by entering such an
order, runs roughshod over what they see as the local legislator's
right to be absolutely free from such restraints. While this issue
arguably is of substantial interest, this case is not a proper
vehicle for addressing it. In the first place, the broad question
raised by the councilmembers is not presented by these facts. As
the Court of Appeals stressed below, this is not a case where a
federal court enjoined local legislators to vote in favor of a
particular bill in order to remedy a constitutional violation. Far
from that, this case presents the much more narrow question whether
a federal court may order local officials to abide by an explicit
obligation-here, a promise to enact legislation-contained in a
consent decree that the officials voted to adopt and that the
District Court agreed to accept. In short, this case is about a
District Court's ability to enforce its consent decrees. In no way
did the Court of Appeals even hint that federal courts possess the
broad powers over local legislators that the councilmembers claim
that the Court of Appeals arrogated to itself and the District
Court.
Page 487 U.S.
1251 , 1259
In any event, it is not at all clear that federal courts lack
authority in all circumstances to enter orders affecting a local
legislator's performance of his legislative duties. In Milliken v.
Bradley,
433 U.S.
267 (1977), the Court held that a District Court could order
local school authorities to implement certain programs designed to
ameliorate the effects of prior segregation policies. As a
practical matter, the import of the Court's decision was that the
individual members of the local school authority were required to
vote a certain way for specific remedial programs. This necessary
effect of a remedial order is highlighted by the Court's earlier
decision in Griffin v. Prince Edward County School Board,
377 U.S. 218 (1964).
There, the Court noted that a District Court possessed authority to
order county supervisors "to exercise the power that is theirs to
levy taxes" in order to reopen public schools that had been closed
in an attempt to avoid a prior desegregation order. Id., at 233. As
in this case, the individual local officials in Griffin openly
flouted clear commands of a District Court.
Although cases like Milliken and Griffin may stand for the
proposition that the district courts may enjoin local legislators
to take certain affirmative steps in order to remedy constitutional
violations, the Court has never squarely addressed the question
whether these local legislators are entitled to some form of
legislative immunity. In Lake Country Estates, Inc. v. Tahoe
Regional Planning Agency,
440 U.S. 391, 404, n. 26,
1178, n. 26 (1979), the Court specifically left open the question
whether local legislators are entitled to any immunity. (Earlier,
in Tenney v. Brandhove,
341 U.S.
367, 376, 788 (1951), state legislators were afforded absolute
immunity for activities within "the sphere of legislative
activity"; Lake Country extended such immunity to "regional
legislators," 440 U.S., at 405.) Since Lake Country issued, seven
Courts of Appeals have held that local legislators are entitled to
absolute legislative immunity. None of these cases, however,
involved situations where the District Court sought to compel
certain behavior to redress constitutional violations, let alone
situations where the District Court merely sought to enforce a
consent decree. Instead, the cases typically involved private-party
damages actions against individual members of local governing
boards. It would seem sensible to allow the lower courts to be the
first to resolve the question whether legislative immunity protects
local officials against the imposition of contempt sanctions for
noncompliance with a consent decree imposing legislative
obligations.
Page 487 U.S.
1251 , 1260
Even assuming that this question warrants the Court's immediate
attention, the instant case contains a factual peculiarity that
makes it unsuitable for review. The city stresses its
"extraordinary" system of governance, in which the council
exercises both legislative and executive powers. This necessarily
complicates any legislative immunity analysis, particularly if one
believes that the council exercised its executive prerogatives by
not complying with the consent decree, and by not abiding by the
July 26, 1988, order. Before the Court takes up the issue of local
legislative immunity, it should wait for a case in which the
legislative body is exercising only legislative powers.
Finally, the First Amendment and procedural due process claims
strike me as totally meritless for the reasons articulated in the
Court of Appeals' opinion. In any event, they involve the
application of settled law to a particular set of facts.
III
In my view, the claims presented by the city and the four
councilmembers do not merit review by the Court. I therefore vote
to deny the applications for stay.
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