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Dissenting Opinion

This action is the most recent episode of a lengthy lawsuit in which the city of Yonkers was held liable for intentionally enhancing racial segregation in housing in Yonkers. The issue here is whether it was a proper exercise of judicial power for the District Court to hold petitioners, four Yonkers city councilmembers, in contempt for refusing to vote in favor of legislation implementing a consent decree earlier approved by the city. We hold that in the circumstances of this action the District Court abused its discretion.

* In 1980, the United States filed a complaint alleging, inter alia, that the two named defendants-the city of Yonkers and the Yonkers Community Development Agency-had intentionally engaged in a pattern and practice of housing discrimination, in violation of Title VIII of the Civil Rights Act of 1968, 82 Stat. 81, as amended, 42 U.S.C. § 3601 et seq. (1982 ed.), and the Equal Protection Clause of the Fourteenth Amendment. The Government and plaintiff-intervenor National Association for the Advancement of Colored People (NAACP) asserted that the city had, over a period of three decades, selected sites for subsidized housing in order to perpetuate residential racial segregation. The plaintiffs' theory was that the city had equated subsidized housing for families with minority housing, and thus disproportionately restricted new family housing projects to areas of the city particularly southwest Yonkers-already predominately populated by minorities.

The District Court found the two named defendants liable, concluding that the segregative effect of the city's actions had been "consistent and extreme," and that "the desire to preserve existing patterns of segregation ha[d] been a significant factor in the sustained community opposition to subsidized housing in East Yonkers and other overwhelmingly white areas of the City." United States v. Yonkers Bd. of Ed., 624 F.Supp. 1276, 1369-1371 (SDNY 1985). The District Court in its remedial decree enjoined "the City of Yonkers, its officers, agents, employees, successors and all persons in active concert or participation with any of them" from, inter alia, intentionally promoting racial residential segregation in Yonkers, taking any action intended to deny or make unavailable housing to any person on account of race or national origin, and from blocking or limiting the availability of public or subsidized housing in east or northwest Yonkers on the basis of race or national origin. United States v. Yonkers Bd. of Ed., 635 F.Supp. 1577 (SDNY 1986). Other parts of the remedial order were directed only to the city. They required affirmative steps to disperse public housing throughout Yonkers. Part IV of the order noted that the city previously had committed itself to provide acceptable sites for 200 units of public housing as a condition for receiving 1983 Community Development Block Grant funds from the Federal Government, but had failed to do so. Consequently, it required the city to designate sites for 200 units of public housing in east Yonkers, and to submit to the Department of Housing and Urban Development an acceptable Housing Assistance Plan for 1984-1985 and other documentation. Id., at 1580-1581. Part VI directed the city to develop by November 1986 a long-term plan "for the creation of additional subsidized family housing units . . . in existing residential areas in east or northwest Yonkers." Id., at 1582. The court did not mandate specific details of the plan such as how many subsidized units must be developed, where they should be constructed, or how the city should provide for the units.

Under the Charter of the city of Yonkers all legislative powers are vested in the city council, which consists of an elected mayor and six councilmembers, including petitioners. The city, for all practical purposes, therefore, acts through the city council when it comes to the enactment of legislation. Pending appeal of the District Court's liability and remedial orders, however, the city did not comply with Parts IV and VI of the remedial order. The city failed to propose sites for the public housing, and in November 1986, informed the District Court that it would not present a long-term plan in compliance with Part VI. The United States and the NAACP then moved for an adjudication of civil contempt and the imposition of coercive sanctions, but the District Court declined to take that action. Instead, it secured an agreement from the city to appoint an outside housing adviser to identify sites for the 200 units of public housing and to draft a long-term plan.

In December 1987, the Court of Appeals for the Second Circuit affirmed the District Court's judgment in all respects, United States v. Yonkers Bd. of Ed., 837 F.2d 1181, and we subsequently denied certiorari, Yonkers Bd. of Ed. v. United States, 486 U.S. 1055, 108 S.Ct. 2821, 100 L.Ed.2d 922 (1988). Shortly after the Court of Appeals' decision, in January 1988, the parties agreed to a consent decree that set forth "certain actions which the City of Yonkers [would] take in connection with a consensual implementation of Parts IV and VI" of the housing remedy order. App. 216. The decree was approved by the city council in a 5-to-2 vote (petitioners Spallone and Chema voting no), and entered by the District Court as a consent judgment on January 28, 1988. Sections 12 through 18 of the decree established the framework for the long-term plan and are the underlying bases for the contempt orders at issue in this action. [1] Perhaps most significant was § 17, in which the city agreed to adopt, within 90 days, legislation conditioning the construction of all multifamily housing on the inclusion of at least 20 percent assisted units, granting tax abatements and density bonuses to developers, and providing for zoning changes to allow the placement of housing developments. [2]

For several more months, however, the city continued to delay action toward implementing the long-term plan. The city was loath to enact the plan because it wished to exhaust its remedies on appeal, but it had not obtained any stay of the District Court's order. As a result of the city's intransigence, the United States and the NAACP moved the court for the entry of a Long Term Plan Order based on a draft that had been prepared by the city's lawyers during negotiations between January and April 1988. On June 13, following a hearing and changes in the draft, the District Court entered the Long Term Plan Order, which provided greater detail for the legislation prescribed by § 17 of the decree. After several weeks of further delay the court held a hearing on July 26, 1988, and entered an order requiring the city of Yonkers to enact, on or before August 1, 1988, the "legislative package" described in a section of the earlier consent decree; the second paragraph provided:

"It is further ORDERED that, in the event the City of Yonkers fails to enact the legislative package on or before August 1, 1988, the City of Yonkers shall be required to show cause at a hearing before this Court at 10:00 a.m. on August 2, 1988, why it should not be held in contempt, and each individual City Council member shall be required to show cause at a hearing before this court at 10:00 a.m. on August 2, 1988, why he should not be held in contempt." App. 398.

Further provisions of the order specified escalating daily amounts of fines in the event of contempt, and provided that if the legislation were not enacted before August 10, 1988, any councilmember who remained in contempt should be committed to the custody of the United States Marshal for imprisonment. The specified daily fines for the city were $100 for the first day, to be doubled for each consecutive day of noncompliance; the specified daily fine for members of the city council was $500 per day.

Notwithstanding the threat of substantial sanctions, on August 1 the city council defeated a resolution of intent to adopt the legislative package, known as the Affordable Housing Ordinance, by a vote of 4 to 3 (petitioners constituting the majority). On August 2, the District Court held a hearing to afford the city and the councilmembers an opportunity to show cause why they should not be adjudicated in contempt. It rejected the city's arguments, held the city in contempt, and imposed the coercive sanctions set forth in the July 26 order. After questioning the individual councilmembers as to the reasons for their negative votes, the court also held each of the petitioners in contempt and imposed sanctions. It refused to accept the contention that the proper subject of the contempt sanctions was the city of Yonkers alone, see id., at 461, and overruled the objection that the court lacked the power to direct councilmembers how to vote, because in light of the consent judgment, it thought the city council's adoption of the Affordable Housing Ordinance would be "in the nature of a ministerial act." Id., at 460.

On August 9, the Court of Appeals stayed the contempt sanctions pending appeal. Shortly thereafter, the court affirmed the adjudications of contempt against both the city and the councilmembers, but limited the fines against the city so that they would not exceed $1 million per day. United States v. Yonkers, 856 F.2d 444 (CA2 1988). The Court of Appeals refused to accept the councilmembers' argument that the District Court abused its discretion in selecting its method of enforcing the consent judgment. While recognizing that "a court is obliged to use the 'least possible power adequate to the end proposed,' " id. at 454 (quoting Anderson v. Dunn, 6 Wheat. 204, 231, 5 L.Ed. 242 (1821)), it concluded that the District Court's choice of coercive contempt sanctions against the councilmembers could not be an abuse of discretion, because the city council had approved the consent judgment and thereby agreed to implement the legislation described in § 17 of the decree. The Court of Appeals also rejected petitioners' invocation of the federal common law of legislative immunity, see Tenney v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019 (1951), concluding that "[w]hatever the scope of local legislators' immunity, it does not insulate them from compliance with a consent judgment to which their city has agreed and which has been approved by their legislative body." 856 F.2d, at 457. Finally, the court held that even if "the act of voting has sufficient expressive content to be accorded some First Amendment protection as symbolic speech, the public interest in obtaining compliance with federal court judgments that remedy constitutional violations unquestionably justifies whatever burden on expression has occurred." Ibid.

Both the city and the councilmembers requested this Court to stay imposition of sanctions pending filing and disposition of petitions for certiorari. We granted a stay as to petitioners, but denied the city's request. 487 U.S. 1251, 109 S.Ct. 14, 101 L.Ed.2d 964 (1988). With the city's contempt sanction approaching $1 million per day, the city council finally enacted the Affordable Housing Ordinance on September 9, 1988, by a vote of 5 to 2, petitioners Spallone and Fagan voting no. Because the contempt orders raise important issues about the appropriate exercise of the federal judicial power against individual legislators, we granted certiorari, 489 U.S. 1064, 109 S.Ct. 1337, 103 L.Ed.2d 808 (1989), and now reverse.

The issue before us is relatively narrow. There can be no question about the liability of the city of Yonkers for racial discrimination: the District Court imposed such liability on the city, its decision was affirmed in all respects by the Court of Appeals, and we denied certiorari. Nor do we have before us any question as to the District Court's remedial order; the Court of Appeals found that it was within the bounds of proper discretion, United States v. Yonkers Bd. of Ed., 837 F.2d, at 1236, and we denied certiorari. Our focus, then, is only on the District Court's order of July 26 imposing contempt sanctions on the individual petitioners if they failed to vote in favor of the ordinance in question.

Petitioners contend that the District Court's order violates their rights to freedom of speech under the First Amendment, and they also contend that they are entitled as legislators to absolute immunity for actions taken in discharge of their legislative responsibilities. We find it unnecessary to reach either of these questions, because we conclude that the portion of the District Court's order of July 26 imposing contempt sanctions against petitioners if they failed to vote in favor of the court-proposed ordinance was an abuse of discretion under traditional equitable principles.

Before discussing the principles informing our conclusion, it is important to note the posture of the case before the District Court at the time it entered the order in question. Petitioners were members of the city council of the city of Yonkers, and if the city were to enact legislation it would have to be by their doing. But petitioners had never been made parties to the action, and the District Court's order imposed liability only on the named defendants in the action-the city of Yonkers and the Yonkers Community Development Agency. The remedial order had enjoined the two named defendants, and-in the traditional language of a prohibitory decree-officers, agents, and others acting in concert with them from discriminating on the basis of race in connection with the furnishing of housing and from intentionally promoting racial residential segregation in Yonkers. The order had gone on to require extensive affirmative steps to disperse public housing throughout Yonkers, but those portions of the order were directed only against the city. There was no evidence taken at the hearing of July 26, 1988, and the court's order of that date did not make petitioners parties to the action.

From the time of the entry of the remedial order in early 1986 until this Court denied certiorari in the case involving the merits of the litigation in June 1988, the city backed and filled in response to the court's efforts to obtain compliance with the housing portions of the decree. It agreed to a consent decree and then sought unsuccessfully to have the decree vacated. During this period of time the city had a certain amount of bargaining power simply by virtue of the length of time it took the appellate process to run its course. Although the judgment against the city was not stayed, the District Court was sensibly interested in moving as rapidly as possible toward the construction of housing which would satisfy the remedial order, rather than simply forcing the city to enact legislation. The District Court realized that for such construction to begin pursuant to the remedial decree, not only must the city comply, but potential builders and developers must be willing to put up money for the construction. To the extent that the city took action voluntarily, without threatening to rescind the action if the District Court's decision were reversed, construction could proceed before the appellate process had run its course.

All of this changed, however, in June 1988, when this Court denied certiorari and the District Court's orders on the merits of the case became final. On July 26, the court heard the comments of counsel for the parties and entered the order upon which the contempt sanctions against the individual councilmembers were based.

At this stage of the case, the court contemplated various methods by which to ensure compliance with its remedial orders. It considered proceeding under Federal Rule of Civil Procedure 70, whereby a party who is ordered to perform an act but fails to do so is nonetheless "deemed" to have performed it. It also suggested the possible transference of functions relating to housing from the city council to a court-appointed affordable housing commission; the city opposed this method. Finally, it considered proceeding by way of sanctions for contempt to procure the enactment of the ordinance.

In selecting a means to enforce the consent judgment, the District Court was entitled to rely on the axiom that "courts have inherent power to enforce compliance with their lawful orders through civil contempt." Shillitani v. United States, 384 U.S. 364, 370, 86 S.Ct. 1531, 1535, 16 L.Ed.2d 622 (1966). When a district court's order is necessary to remedy past discrimination, the court has an additional basis for the exercise of broad equitable powers. See Swann v. Charlotte-Mecklenburg Bd. of Ed., 402 U.S. 1, 15, 91 S.Ct. 1267, 1275, 28 L.Ed.2d 554 (1971). But while "remedial powers of an equity court must be adequate to the task, . . . they are not unlimited." Whitcomb v. Chavis, 403 U.S. 124, 161, 91 S.Ct. 1858, 1878, 29 L.Ed.2d 363 (1971). "[T]he federal courts in devising a remedy must take into account the interests of state and local authorities in managing their own affairs, consistent with the Constitution." Milliken v. Bradley, 433 U.S. 267, 280-281, 97 S.Ct. 2749, 2757, 53 L.Ed.2d 745 (1977). And the use of the contempt power places an additional limitation on a district court's discretion, for as the Court of Appeals recognized, "in selecting contempt sanctions, a court is obliged to use the 'least possible power adequate to the end proposed.' " 856 F.2d, at 454 (quoting Anderson v. Dunn, 6 Wheat., at 231).

Given that the city had entered a consent judgment committing itself to enact legislation implementing the long-term plan, we certainly cannot say it was an abuse of discretion for the District Court to have chosen contempt sanctions against the city, as opposed to petitioners, as a means of ensuring compliance. The city, as we have noted, was a party to the action from the beginning, had been found liable for numerous statutory and constitutional violations, and had been subjected to various elaborate remedial decrees which had been upheld on appeal. Petitioners, the individual city councilmembers, on the other hand, were not parties to the action, and they had not been found individually liable for any of the violations upon which the remedial decree was based. Although the injunctive portion of that decree was directed not only to the city but to "its officers, agents, employees, successors and all persons in active concert or participation with any of them," App. 20, the remaining parts of the decree ordering affirmative steps were directed only to the city. [3]

It was the city, in fact, which capitulated. After the Court of Appeals had briefly stayed the imposition of sanctions in August, and we granted a stay as to petitioners but denied it to the city in September, the city council on September 9, 1988, finally enacted the Affordable Housing Ordinance by a vote of 5 to 2. While the District Court could not have been sure in late July that this would be the result, the city's arguments against imposing sanctions on it pointed out the sort of pressure that such sanctions would place on the city. After just two weeks of fines, the city's emergency financial plan required it to curtail sanitation services (resulting in uncollected garbage), eliminate part-time school crossing guards, close all public libraries and parks, and lay off approximately 447 employees. In the ensuing four weeks, the city would have been forced to lay off another 1,100 city employees. See N.Y. Times, Sept. 8, 1988, p. A1, col. 4; N.Y. Times, Sept. 9, 1988, p. A1, col. 4.

Only eight months earlier, the District Court had secured compliance with an important remedial order through the threat of bankrupting fines against the city alone. After the city had delayed for several months the adoption of a 1987-1988 Housing Assistance Plan (HAP) vital to the public housing required by Part IV of the remedial order, the court ordered the city to carry out its obligation within two days. App. 176. The court set a schedule of contempt fines equal to that assessed for violation of the orders in this litigation and recognized that the consequence would be imminent bankruptcy for the city. Id., at 177-179. Later the same day, the city council agreed to support a resolution putting in place an effective HAP and reaffirming the commitment of Yonkers to accept funds to build the 200 units of public housing mandated by Part IV of the remedial order. Id., at 183. [4]

The nub of the matter, then, is whether in the light of the reasonable probability that sanctions against the city would accomplish the desired result, it was within the court's discretion to impose sanctions on petitioners as well under the circumstances of this case.

In Tenney v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019 (1951), we held that state legislators were absolutely privileged in their legislative acts in an action against them for damages. We applied this same doctrine of legislative immunity to regional legislatures in Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391, 404-405, 99 S.Ct. 1171, 1178-1179, 59 L.Ed.2d 401 (1979), and to actions for both damages and injunctive relief in Supreme Court of Virginia v. Consumers Union of United States, Inc., 446 U.S. 719, 731-734, 100 S.Ct. 1967, 1974-1976, 64 L.Ed.2d 641 (1980). The holdings in these cases do not control the question whether local legislators such as petitioners should be immune from contempt sanctions imposed for failure to vote in favor of a particular legislative bill. But some of the same considerations on which the immunity doctrine is based must inform the District Court's exercise of its discretion in a case such as this. "Freedom of speech and action in the legislature," we observed, "was taken as a matter of course by those who severed the Colonies from the Crown and founded our Nation." Tenney, supra, 341 U.S., at 372, 71 S.Ct., at 786.

In perhaps the earliest American case to consider the import of the legislative privilege, the Supreme Judicial Court of Massachusetts, interpreting a provision of the Massachusetts Constitution granting the rights of freedom of speech and debate to state legislators, recognized that "the privilege secured by it is not so much the privilege of the house as an organized body, as of each individual member composing it, who is entitled to this privilege, even against the declared will of the house. For he does not hold this privilege at the pleasure of the house; but derives it from the will of the people. . . ." Coffin v. Coffin, 4 Mass. 1, 27 (1808). This theme underlies our cases interpreting the Speech or Debate Clause and the federal common law of legislative immunity, where we have emphasized that any restriction on a legislator's freedom undermines the "public good" by interfering with the rights of the people to representation in the democratic process. Lake Country Estates, supra, 440 U.S., at 404-405, 99 S.Ct., at 1178-1179; Tenney, supra, 341 U.S., at 377, 71 S.Ct., at 788. The District Court was quite sensitive to this fact; it observed:

"I know of no parallel for a court to say to an elected official, 'You are in contempt of court and subject to personal fines and may eventually be subject to personal imprisonment because of a manner in which you cast a vote.' I find that extraordinary." App. 433.

Sanctions directed against the city for failure to take actions such as those required by the consent decree coerce the city legislators and, of course, restrict the freedom of those legislators to act in accordance with their current view of the city's best interests. But we believe there are significant differences between the two types of fines. The imposition of sanctions on individual legislators is designed to cause them to vote, not with a view to the interest of their constituents or of the city, but with a view solely to their own personal interests. Even though an individual legislator took the extreme position-or felt that his constituents took the extreme position-that even a huge fine against the city was preferable to enacting the Affordable Housing Ordinance, monetary sanctions against him individually would motivate him to vote to enact the ordinance simply because he did not want to be out of pocket financially. Such fines thus encourage legislators, in effect, to declare that they favor an ordinance not in order to avoid bankrupting the city for which they legislate, but in order to avoid bankrupting themselves.

This sort of individual sanction effects a much greater perversion of the normal legislative process than does the imposition of sanctions on the city for the failure of these same legislators to enact an ordinance. In that case, the legislator is only encouraged to vote in favor of an ordinance that he would not otherwise favor by reason of the adverse sanctions imposed on the city. A councilman who felt that his constituents would rather have the city enact the Affordable Housing Ordinance than pay a "bankrupting fine" would be motivated to vote in favor of such an ordinance because the sanctions were a threat to the fiscal solvency of the city for whose welfare he was in part responsible. This is the sort of calculus in which legislators engage regularly.

We hold that the District Court, in view of the "extraordinary" nature of the imposition of sanctions against the individual councilmembers, should have proceeded with such contempt sanctions first against the city alone in order to secure compliance with the remedial order. Only if that approach failed to produce compliance within a reasonable time should the question of imposing contempt sanctions against petitioners even have been considered. "This limitation accords with the doctrine that a court must exercise '[t]he least possible power adequate to the end proposed.' Anderson v. Dunn, 6 Wheat. 204, 231, 5 L.Ed. 242 (1821); In re Michael, 326 U.S. 224, 227, 66 S.Ct. 78, 79, 90 L.Ed. 30 (1945)." Shillitani v. United States, 384 U.S., at 371, 86 S.Ct., at 1536.


Justice BRENNAN, with whom Justice MARSHALL, Justice BLACKMUN, and Justice STEVENS join, dissenting.


^1  Sections 1 through 11 of the consent decree set forth actions that the city agreed to take in connection with the public housing obligations imposed by Part IV of the housing remedy order. As the Solicitor General emphasized at oral argument, neither those sections of the decree nor Part IV of the remedy order is at issue in this action.

^2  The full text of § 17 provides that "[t]he City agrees to adopt, among other things, legislation (a) conditioning the construction of all multifamily housing (inclusive of projects for future construction currently in the planning stage but which will require zoning changes, variances, special exceptions, or other discretionary approvals from the City to begin construction) on the inclusion of at least 20 percent assisted units; (b) granting necessary tax abatements to housing developments constructed under the terms of the legislation referred to in clause (a); (c) granting density bonuses to such developers; (d) providing for zoning changes to allow the placement of such developments, provided, however, that such changes are not substantially inconsistent with the character of the area; and (e) other provisions upon which the parties may subsequently agree (including the use of the Industrial Development Authority as a development vehicle and the creation of a municipally-designated, independent not-for-profit Local Development Corporation) (collectively, the 'Mandated Incentives'). The City agrees to implement a package of Mandated Incentives as promptly as practicable but, in no event, later than 90 days after the entry of this decree."

^3  The Government's statement to the contrary in its brief, Brief for United States 23-24, is in error.

^4  The Government distinguishes the instant sanctions from those threatened in January 1988, because in this litigation the city and the city council had indicated by the defeat of a resolution proposed by the court that it "would not 'voluntarily adopt the legislation contemplated by the [court's orders].' " Id., at 45 (quoting City of Yonkers Memorandum of Law in Opposition to Plaintiffs' Proposed Contempt Order; see App. 351). Before the court threatened sanctions for refusal to adopt the 1987-1988 HAP, however, the city council had twice tabled an initiative to enact the HAP, id., at 173, and the court previously had been forced to "deem" HAP's to have been submitted for two previous years. Id., at 174; Brief for United States 5, n. 7. Suffice it to say that the council's conduct with regard to the HAP hardly suggested a willingness to comply "voluntarily."

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).