HENRY G. SPALLONE, PETITIONER V. UNITED STATES OF AMERICA, ET AL.

   PETER CHEMA, PETITIONER V. UNITED STATES OF AMERICA, ET AL.

   NICHOLAS LONGO AND EDWARD FAGAN, PETITIONERS V. UNITED STATES OF
AMERICA, ET AL.

   In The Supreme Court Of The United States

   October Term, 1988

   No. 88-854, No. 88-856, No. 88-870

   On Writ of Certiorari to the United States Court of Appeals for the
Second Circuit

   Brief For The United States

            TABLE OF CONTENTS
   Question Presented
   Opinions below
   Jurisdiction
   Statement
   Summary of argument
   Argument:
       The district court properly imposed civil contempt sanctions
       against individual members of the Yonkers City Council for
       obstructing the City of Yonkers' compliance with valid
       court orders
       A. The district court has authority to impose civil contempt
          sanctions against individual members of the Yonkers City
          Council for obstructing the City of Yonkers' compliance
          with valid court orders
       B. The doctrine of legislative immunity does not shield
          individual members of the Yonkers City Council from
          sanctions for obstructing the City of Yonkers' compliance
          with valid court orders
       C. The First Amendment does not shield individual members
          of the Yonkers City Council from sanctions for
          obstructing the City of Yonkers' compliance with
          valid court orders
       D. The district court properly exercised its discretion to
          bring about compliance with its orders by holding
          individual members of the Yonkers City Council in
          contempt rather than by ordering legislation into
          effect itself or by appointing a commission to do so
   Conclusion

                            OPINIONS BELOW

   The opinion of the court of appeals (Pet. App. 1a-35a) is reported
at 856 F.2d 444.  /1/ The pertinent orders and opinions of the
district court contained in the joint appendix are unreported:  order
requiring compliance with consent decree, July 26, 1988 (J.A.
397-400);  modification letter, July 28, 1988 (J.A. 401);  oral
opinions finding petitioners in civil contempt, August 2 and 4, 1988
(J.A. 429-431, 443, 475-476);  order adjudicating petitioners in civil
contempt, August 2, 1988 (J.A. 445-447).

                             JURISDICTION

   The judgment of the court of appeals was entered on August 26,
1988.  The petitions for a writ of certiorari were each filed on
November 23, 1988, and were granted on March 6, 1989.  /2/ The
jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

                          QUESTION PRESENTED

   Whether the district court properly imposed civil contempt
sanctions against individual members of the Yonkers City Council, when
those Council members were obstructing the City of Yonkers' compliance
with that courts' valid orders to remedy illegal racial segregation of
the City's public and subsidized housing.

                             STATEMENT /3/

   1. After more than 90 days of trial, the district court issued a
decision on November 20, 1985, holding the City of Yonkers liable for
a pattern and practice of intentional racial discrimination in the
selection of sites for public and subsidized housing.  United States
v. Yonkers Bd. of Educ., 624 F. Supp. 1276, 1289-1376 (S.D.N.Y. 1985).
 /4/ The district court held that the City had violated the Equal
Protection Clause of the Fourteenth Amendment and Title VIII of the
Civil Rights Act of 1968 (Fair Housing Act), 42 U.S.C. 3601 et seq.,
by deliberately concentrating virtually all of its public and
subsidized housing in the southwest quadrant of Yonkers.  The City's
purpose, the court specifically found, was to maintain racial
segregation.  The court based its holding in large part upon the
actions and inactions of the Yonkers City Council and individual
Council members.  See 624 F. Supp. at 1295-1328, 1342-1363, 1369-1372.
 In sum, the court found that "for more than thirty years, the site
selection process for subsidized housing was dominated by the
unwillingness of the City Council to approve or support a site in the
face of community opposition," and that this unwillingness was
motivated in significant part by "the desire to preserve existing
patterns of segregation." Id. at 1371.  /5/

   Following remedial proceedings, on May 28, 1986, the district court
entered its "Housing Remedy Order," requiring the City to take a
number of actions -- including legislative action by the City Council
-- designed to facilitate the development of public and other
subsidized housing outside Southwest Yonkers.  United States v.
Yonkers Bd. of Educ., 635 F. Supp. 1577 (S.D.N.Y. 1986).  Part IV of
the Housing Remedy Order required the City to designate sites for 200
units of public housing in East Yonkers, and to submit both an
acceptable Housing Assistance Plan (HAP) and an executed grant
agreement to HUD.  The Order provided that if the City failed to
comply with these requirements, the plaintiffs were to submit the HAP,
the grant agreement, and the proposed public housing sites to the
court and, upon approval, the court would deem the submissions to have
been made by the City.  See id. at 1580-1581.  /6/

   Part VI of the Housing Remedy Order required the City to develop
and implement a plan, known as the Long Term Plan, for the creation of
assisted housing, other than public housing, outside Southwest
Yonkers.  See 635 F. Supp. at 1582.  The district court declined to
set a goal for the number of housing units to be developed under the
Long Term Plan, to establish a timetable, or to prescribe how the
housing should be provided.  Instead, the court left to the City, and
to the City Council, both the opportunity and the responsibility for
proposing the substantive aspects of the Plan.  The City was to submit
a proposed Long Term Plan by November 1986.  Ibid.

   2. The City appealed the district court's orders.  Although
implementation of the Housing Remedy Order was not stayed (Pet. App.
6a), the City took "no significant action to comply with the 1986
Housing Remedy Order" during the year and a half that its appeal of
the district court's orders was pending in the court of appeals (id.
at 7a).

   a. The City "totally defaulted" in its obligation to designate
public housing sites under Part IV of the Housing Remedy Order (Pet.
App. 6a).  As a result, under the terms of the Order, the court deemed
the City to have submitted three unused school sites to be used for
140 units of the housing.  635 F. Supp. 1580-1581.  /7/ In November
1986, the City also refused to submit a proposed Long Term Plan, as
required by Part VI of the Order (Pet. App. 7a).  In the following
month, the United States moved to have the City held in contempt.
Instead of imposing this sanction, however, the district court
permitted the City to appoint an Outside Housing Advisor (Advisor) to
assist it in carrying out the Housing Remedy Order (Pet. App. 7a;  R.
233).

   The Advisor reported to the court on his activities on April 9,
1987 (J.A. 35-46).  In consultation with members of the City Council,
Yonkers community groups, and local clergy, the Advisor was trying to
identify additional public housing sites in order to reduce the number
of units on two of the three already-designated sites, and to
distribute the remaining units on sites scattered throughout East
Yonkers (J.A. 36-38).  At a hearing later that month, the Advisor
identified eight such sites and explained how each could be made
available for public housing.  Among the sites were three unused
parcels that Westchester County had given to the City for parkland
(the County sites) (J.A. 57-59).  Use of these sites for public
housing required action by the County (J.A. 52).

   b. On May 8, 1987, the City moved for an order modifying the
Housing Remedy Order in accordance with a resolution passed by the
City Council on April 15 (J.A. 69-78;  see also J.A. 84-87).  This
resolution expressed the City Council's support for the Advisor's
scattered site plan, but conditioned that support on a number of
terms, including (1) a stay of all construction until the City had
exhausted its appeals from the district court's orders;  (2)
limitations on the housing to be developed under the Long Term Plan;
and (3) a requirement that committees of area residents screen all
applicants for public housing (J.A. 65-68).  Accordingly, the City's
motion called for designation of scattered public housing sites by the
Advisor in consultation with "site selection committees of local
residents, community leaders and elected officials from each affected
ward of the City" (J.A. 71-72), and included conditions similar to
those in the City Council's resolution (J.A. 73-74).

   At a hearing on May 12, the district court offered to consider the
City's motion and stated that it preferred a remedial plan that would
"embody to the maximum possible extent consistent with the purposes of
the housing remedy order the views of the community itself" (J.A. 87).
 The court asked the City to demonstrate that its motion was not
merely a delaying tactic and suggested that it take the preliminary
steps necessary to obtain control of the sites identified by the
Advisor, namely, having the City Council pass a resolution requesting
Westchester County to permit the City to use the County sites for
housing (J.A. 87-91).

   By June 23, 1987, the City Council had neither passed the suggested
resolution nor taken any action to obtain the sites proposed for
public housing (J.A. 104-108).  At a hearing on that date, the City's
attorney informed the district court that the City Council was trying
to devise a politically acceptable plan, in which sites would be
distributed "throughout the six wards," but the attorney could not
assure the court that such a plan, or indeed any action by the City
Council, would be forthcoming (J.A. 106, 108).  The court reminded the
City that the Advisor had been appointed and that his search for
another plan had been undertaken as an alternative to civil contempt
and other sanctions.  The court stated that if the City Council did
not pass a resolution within a week, the court would then assume that
the Council did not intend to take any action (J.A. 106-108).

   By July 1, 1987, the City had done nothing to advance its proposed
alternative plan or otherwise comply with the Housing Remedy Order.
Accordingly, on that date, on motions by the United States and the
NAACP, the court entered an order requiring the City to take certain
actions or risk contempt penalties.  At the outset, the court found
(J.A. 147):

         The City of Yonkers has failed to take many of the actions
      required by the Housing Remedy Order.  Instead, the City has
      delayed meaningful remedial action and declined repeated
      opportunities accorded to the City to act itself in the first
      instance in taking remedial action.

The July 1 Order, among other things, required the City to seek
Westchester County's waiver of its reverter interest in the County
sites (J.A. 150).  /8/ The Order provided that the City's failure to
comply would result in a finding of contempt;  the City would be fined
at a base rate of $100 for the first day, and the amount would double
for each day of noncompliance thereafter (J.A. 151-152).

   The City Council responded by enacting three resolutions on July 7,
1987.  Two of the resolutions related to the County sites.  /9/
Resolution No. 140-1987 (J.A. 143) complied with the court's July 1
Order by requesting Westchester County to waive its reverter interest
in the County sites.  Resolution No. 141-1987 (J.A. 144-147) sought
action by the County as to two of the three County sites, but
expressly conditioned that request on the granting of a stay of
construction pending appeal, a limitation on the number of units of
housing to be developed under the Long Term Plan, and other terms
(J.A. 146-147).  The resolution concluded (J.A. 147):

         BE IT FURTHER RESOLVED, that in the event that any portion of
      this Resolution is not complied with(,) the entire Resolution be
      deemed null and void and with no effect.

In a telephone conference on July 9, the City's attorney and the City
Manager told the district court that the City Council did not intend
in Resolution No. 141-1987 to supersede its request to the County set
forth in Resolution No. 140-1987 (J.A. 120-122);  they also assured
the court that the City would comply with the court's Order by
furnishing the court and the plaintiffs with copies of the City's
requests before their transmission to the County (J.A. 120-122, 131;
see also J.A. 139, 150).

   Despite these assurances (and without notice to the court or the
plaintiffs), the City, on July 10, transmitted to the County only the
request set forth in Resolution No. 141-1987, with its qualifications
and conditions (J.A. 154-159).  At a hearing on July 15, the court
found that the City's action had sent "a clear message" to the County
that the City wanted the County to grant only the request set forth in
that resolution, and to reject the waiver request required by the
court's order and embodied in Resolution No. 140-1987 (J.A. 160-162).
Although the parties drafted and the City sent to the County a letter
withdrawing the July 10 submission (J.A. 163-167), the County later
refused to waive its reverter interest in any of the County sites.

   c. During the remainder of 1987, with the County sites apparently
then unavailable, the City persisted in its refusal to advance either
the public housing or the Long Term Plan aspects of the Housing Remedy
Order.  /10/ In the meantime, the district court, the plaintiffs, and
the Advisor continued to seek additional available housing sites.  By
November, the court had designated four unused school sites for public
housing.  See United States v. Yonkers Bd. of Educ., 675 F. Supp. 1407
(S.D.N.Y. 1987).  /11/ Use of these four sites alone, however, would
have resulted in a greater density than the parties agreed was optimal
(see, e.g., J.A. 65-67, 72, 97).  And the City still had taken no
steps to identify sites or strategies for the development of housing
under the Long Term Plan.  Accordingly, the district court directed
the Advisor to identify existing development projects in Yonkers, as
well as privately owned vacant sites, that might be used to advance
implementation of the Housing Remedy Order.  United States v. Yonkers
Bd. of Educ., 675 F. Supp. 1413 (S.D.N.Y. 1987).  Once again, the
court gave the City the opportunity to chart the remedial course by
choosing from among all the sites that had been or might be
identified.  Id. at 1415-1416.  /12/

   3. On December 28, 1987, the court of appeals affirmed the district
court's liability and remedy orders "in all respects," concluding that
the district court "properly applied the appropriate legal principles,
that its findings of fact (were) not clearly erroneous, and that its
remedial orders (were) within the proper bounds of discretion." United
States v. Yonkers Bd. of Educ., 837 F.2d 1181, 1184 (2d Cir. 1987),
certs. denied, 108 S. Ct. 2821 (1988).  /13/ The court of appeals held
that the requirements of the Housing Remedy Order were "plainly
reasonable" and "necessary" in light of the City's "prior disregard of
governmental urging that it select housing sites outside of
Southwest," "its historical willingness to forgo federal funding in
order to preserve segregrated housing patterns," "its past history of
footdragging," and "its refusals to approve any site for low-income
housing outside of" minority areas.  837 F.2d at 1236-1237.

   4. For a brief period following the court of appeals' decision, the
City finally seemed prepared to acknowledge and comply with its
obligations under the Housing Remedy Order.  That willingness,
however, soon evaporated.

   a. On January 19, 1988, the district court held a hearing at which
it called upon the City to "advise what affirmative actions if any
Yonkers is taking or planning to take to implement the housing remedy
order" (J.A. 171).  Counsel for the City responded that the parties
had been negotiating an agreement on the actions the City would take
(J.A. 178-181), but also conceded that the City had failed to submit a
current HAP, as required by the original Housing Remedy Order and the
July 1, 1987, Order (J.A. 171-174).  The court stated that the City's
submission of the HAP was a necessary first step to show a good faith
effort to comply with the court's orders (J.A. 171, 175-176);
accordingly, the court ordered the City to adopt the third-year HAP no
later than January 21, 1988, or face contempt and bankrupting fines
(J.A. 176-178).  /14/ After a recess, counsel for the City reported
that a majority of the City Council had agreed to vote to adopt the
HAP (J.A. 183-184).  The court thereupon granted an adjournment until
January 25 to enable the parties to continue settlement discussions on
the other actions the City would take to comply with the Housing
Remedy Order (J.A. 183-185).

   On January 25, the parties informed the court that they had reached
such an agreement in principle, designating seven sites for public
housing and setting a goal of 800 units of housing to be developed
under the Long Term Plan (J.A. 190-200).  /15/ The Yonkers City
Council approved the agreement on January 27, and the district court
entered the agreement, the "First Remedial Consent Decree In Equity"
(Consent Decree) (J.A. 216-223), as a consent judgment on January 28
(Pet. App. 8a).

   b. The Consent Decree set forth the actions the City would take in
order to comply with Part IV (public housing) and Part VI (Long Term
Plan) of the Housing Remedy Order.  Sections 12 through 18 of the
Consent Decree established the framework for the Long Term Plan that
had been left unresolved in the original Housing Remedy Order (J.A.
220-223).  The Decree set a goal of 800 units of assisted housing to
be developed over four years in conjunction with market rate housing
developments (J.A. 220-221);  it also committed the City to specific
actions needed to encourage private developers to build such housing
(J.A. 220-222).  In Section 17 of the Decree, the City expressly
agreed to adopt legislation conditioning the future construction of
multi-family housing in Yonkers on the inclusion of at least 20
percent assisted units, and providing for such private development
incentives as zoning changes, tax abatements, and density bonuses (the
Mandated Incentives) (J.A. 222).  This legislation was to be enacted
within 90 days after entry of the Decree (ibid.).  /16/ In Section 18,
the parties acknowledged that certain "subsidiary issues" relating to
the Long Term Plan were unresolved and agreed to work toward their
resolution in a second consent decree to be entered by February 15,
1988 (J.A. 222-223).

   c. Faced with intense public opposition to the Consent Decree, the
City soon sought to disavow it.  On March 21, the City moved to modify
the Decree, and even promised to return nearly $30 million in federal
funds if it was relieved of its duty to allow the development of
public housing in white neighborhoods (Pet. App. 9a).  /17/ The
district court denied the City's motion on March 31.  The City then
refused either to continue the Long Term Plan negotiations required by
Section 18 of the Consent Decree or to enact the legislation required
by Section 17 (id. at 9a-10a).

   Undaunted by the district court's order, the City, on May 2, moved
to vacate the Decree in its entirety, on the ground that the
Archdiocese of New York (owner of St. Joseph's Seminary, a small part
of which had been designated as a public housing site) had withdrawn
its initial consent to the use of its property and no longer supported
the Consent Decree as a whole (J.A. 225-244).  Although the district
court gave the City the opportunity to designate an alternative site,
the City Council refused to do so.  See J.A. 268-274;  see also
Yonkers Racing Corp. v. City of Yonkers, 858 F.2d 855, 859-861 (2d
Cir. 1988), cert. denied, 109 S. Ct. 1527 (1989).  In denying the
City's motion to vacate, the district court found that in light of
"(t)he decision of the city council not to designate or authorize the
court to designate a substitute site," the City's motion had been "a
transparent ploy * * * to avoid any responsibility for the court
decree or implementation of the housing remedy order" (J.A. 275).  The
City sought no further review of that ruling.

   5. In the meantime, the plaintiffs and the court attempted to
implement the Consent Decree despite the City's refusal to cooperate.
On May 2, the plaintiffs moved the entry of a Long Term Plan Order
based upon a draft that the City's lawyers had prepared before the
City withdrew from negotiations.  On June 13, following comments from
the City (J.A. 245-261), revisions by the plaintiffs, and a hearing
(J.A. 275-303), the district court entered its Long Term Plan Order
resolving the subsidiary issues left open by the Consent Decree and
providing the detail for the legislation that Section 17 required
(J.A. 303-316).  That Order accommodated most of the City's
substantive objections to the plaintiffs' proposal (Pet. App. 9a-10a).
 /18/

   Nonetheless, the City and City Council continued their campaign of
unyielding resistance.  On June 14, the City Council passed a
resolution declaring a moratorium on all public housing construction
in Yonkers -- an unabashed defiance of the district court's Housing
Remedy Order and the Consent Decree (J.A. 317-319).  /19/ On June 21,
nearly two months after the deadline set in the Consent Decree for the
City's enactment of the necessary implementing legislation (and more
than two years after entry of the original Housing Remedy Order), the
district court asked the City for a timetable for enactment of the
legislation (J.A. 323).  The City's attorney stated that a consulting
firm had been retained to draft the legislation, but that its work had
not yet begun, and that no action could be considered by the City
Council until August at the earliest (J.A. 323-324).

   The prospect of waiting until summer's end for the City to comply
disturbed the court, particularly in light of the City Council's
declaration of a public housing moratorium just the week before.  The
Court thus asked the City Council to pass a resolution at its next
meeting adopting the provisions of the Consent Decree and the Long
Term Plan Order, with the enactment of the legislation itself to take
place after the City's consultants completed their work (J.A. 324,
331-340).  The City Council refused.  Indeed, on June 28, the Council
defeated a resolution that would have required the City to honor its
previous commitments to implement the Housing Remedy Order, the
Consent Decree, and the Long Term Plan Order (J.A. 345-346).

   6. At the district court's request (J.A. 347-348), the United
States and the NAACP then submitted a proposed order setting a
timetable for the City's enactment of the legislation, under penalty
of contempt (Pet. App. 10a).  In response, the City informed the court
on July 11 that it would "not voluntarily adopt the legislation
contemplated by" the Long Term Plan Order and the Consent Decree (J.A.
351).  Seeking to shirk all responsibility, the City suggested that
the court simply enact the Long Term Plan legislation itself (ibid.).

   In light of the City's response, the district court, at a
conference on July 12, raised the possibility of creating a Yonkers
Affordable Housing Commission.  The proposed entity would be vested
with "(a)ll of the governmental functions heretofore vested in the
city council insofar as they relate to the housing envisioned by the
housing remedy order, consent decree and long-term plan" (J.A. 358).
The NAACP favored this alternative (J.A. 362-371, 388-392);  /20/ both
the United States (J.A. 360-362, 385-386, 393) and the City (J.A.
377-379, 392-393) opposed it.  /21/ In opposing the Commission, the
City expressly spoke for the City Council (J.A. 378):

         After giving the court's suggestion due consideration, the
      City Council wishes to convey its serious concerns regarding a
      proposal which would, in substance and effect, divest the
      Council of specific state law powers, including core legislative
      as well as executive functions.  * * * The loss of those
      specifically granted powers must be viewed with great caution
      and concern from the perspective of a City Council which is
      popularly elected.  As there is little doubt that the City
      Council would lack the power to delegate those functions to a
      Commission which is not popularly elected, it is therefore not
      in a position to consent to such a proposal.

   On July 26, the United States proposed, and the district court
entered, an order requiring the City, no later than August 1, to enact
the legislation (known as the Affordable Housing Ordinance) that had
been drafted by the City's consultants to implement the Consent Decree
and the Long Term Plan Order (J.A. 397-400).  /22/ The July 26 Order
also scheduled a hearing for August 2, at which time the City and the
individual members of the City Council who voted against the ordinance
would be required to show cause why each should not be held in civil
contempt if the Affordable Housing Ordinance were not enacted (J.A.
398).  The Order established the sanctions for such contempt:  the
City would be fined at a base rate of $100 for the first day and the
fine would double for each day of noncompliance thereafter;  the
Council members would be fined $500 per day and imprisoned after 10
days of continued defiance (J.A. 398-399).  /23/ All sanctions would
end if and when the City enacted the legislation (ibid.).  /24/ By
letter dated July 28, in response to the City's concerns that state
law required notice and public hearing before the City Council could
vote on the Ordinance, the district court made clear that the July 26
Order would be satisfied if the City Council passed a resolution
committing the City to enact the Ordinance after state law
requirements had been met (J.A. 401).  All petitioners had notice of
the court's July 26 Order and its July 28 letter (Pet. App. 12a, 18a).

   On August 1, by a vote of four to three, the City Council defeated
a resolution declaring the City's intent to adopt the Affordable
Housing Ordinance.  All four petitioners voted against the resolution
(J.A. 403, 420;  Pet. App. 12a).  /25/ Consistent with the July 26
Order, the district court held show cause hearings on August 2 and 4
(J.A. 402-444, 452-476).  Each of the petitioners appeared with
counsel.  Longo and Fagan stated that they had voted against the
resolution because there had been no public hearing (J.A. 423-424,
428-429);  Chema did not explain his vote (J.A. 436-437, 443).  /26/
Spallone stated that there were unspecified "serious problems" with
the Affordable Housing Ordinance (J.A. 459), and contended that he was
not obligated to vote as the court had ordered him to do (J.A.
470-473).  Although the court specifically inquired (J.A. 424, 443,
459;  see J.A. 474), none of the petitioners identified any
substantive objections to the Ordinance.  Neither the City (see J.A.
403-411) nor any of the Council members contended that the Affordable
Housing Ordinance was inconsistent with the Consent Decree.

   Finding that their refusal to comply with the Consent Decree was
"but the latest of a series of contempts" (J.A. 416), the district
court adjudged the City and the four Council members in civil contempt
and imposed sanctions in accordance with the July 26 Order (J.A.
416-417, 429-430, 443-444, 445-450, 475-476, 494-496).  /27/

   7. On August 17, the court of appeals stayed the contempt sanctions
pending appeals by the City and the individual Council members (J.A.
510-511).  On August 26, the court of appeals affirmed the
adjudications of contempt against both the City and the Council
members, but limited the fines against the City so that they would not
exceed $1 million per day (Pet. App. 1a-35a).  The court concluded
that neither the City nor the Council members could escape
responsibility for refusing to comply with the Consent Decree that the
Council itself had approved (id. at 28a, 30a-31a).

   8. On September 1, after this Court had stayed imposition of
sanctions against the Council members pending timely filing and
disposition of petitions for a writ of certiorari, but had denied the
City's motion for a stay (J.A. 512), and with the City's contempt
sanction approaching a fine of $1 million per day, the City Council
finally enacted the Affordable Housing Ordinance (J.A. 528-557).  /28/
On the same date, the City Council passed resolutions stating its
intent to amend the Ordinance and to move for a modification of the
district court's orders relating to the 200 units of public housing
(J.A. 558-559).  At a conference on September 14, the district court
offered to consider proposed modifications, but none has ever been
sought (ibid.).  /29/

   On March 6, 1989, this Court granted certiorari with respect to the
Council members' petitions.  109 S. Ct. 1337.  The City's petition for
a writ of certiorari was denied.  109 S. Ct. 1339.

                          SUMMARY OF ARGUMENT

   A. As this Court has squarely held, "(t)here can be no question
that courts have inherent power to enforce compliance with their
lawful orders through civil contempt." Shillitani v. United States,
384 U.S. 364, 370 (1966).  This power extends not only to parties to
the action but to those in privity with them, including their
officers, agents, and employees.  See Fed. R. Civ. P. 65(d), 70, 71;
Regal Knitwear Co. v. NLRB, 324 U.S. 9, 14 (1945).  In this case, the
record shows that petitioners, as officers of the City of Yonkers and
members of the City Council, obstructed the City's compliance with the
district court's orders to remedy illegal racial segregation of the
City's public and subsidized housing -- the initial Housing Remedy
Order, the Consent Decree, the Long Term Plan Order, and finally the
July 26 Order.  This pattern of disobedience is precisely the type of
conduct that traditionally has warranted the considered exercise of a
court's civil contempt power.  Under these circumstances, the district
court acted well within appropriate bounds in exercising its civil
contempt power in order to bring about the long overdue compliance
with federal court orders vindicating federal constitutional and
statutory rights.

   B. Although they challenge the imposition of contempt sanctions on
a number of grounds, petitioners essentially advance one unsettling
proposition:  as members of a local legislative body, they are
entitled deliberately to flout valid federal court orders, including
the Consent Decree that the City Council itself had approved.  That
proposition is unacceptable.  It is wrong as a matter of federal law,
this Court's precedents, and principles of orderly government.

   This Court has never considered the common law doctrine of
legislative immunity as a license to disobey federal court orders.  To
the contrary, the Court has emphasized that all government officials,
including legislators, are bound to comply with federal law and with
the application of that law by the federal courts.  Cooper v. Aaron,
358 U.S. 1, 18 (1958);  Butz v. Economou, 438 U.S. 478, 506 (1978).
Nothing is more fundamental to our system of ordered liberty and the
rule of law than the solemn obligation of all citizens, and especially
public officials, to obey the law.

   Consistent with this overarching principle, the Court "has
generally been quite sparing in its recognition of claims to absolute
official immunity." Forrester v. White, 108 S. Ct. 538, 542 (1988).
Even with respect to federal legislative immunity created by the
Speech or Debate Clause (U.S. Const. Art. I, Section 6, Cl. 1), the
Court "has been careful not to extend the scope of the protection
further than its purposes require." Forrester, 108 S. Ct. at 542.  The
context of petitioners' actions here -- local legislators'
interference with and obstruction of federal court orders designed to
remedy federal constitutional and statutory violations -- precludes
application of immunity doctrine to insulate petitioners from contempt
sanctions.

   In applying the doctrine of immunity to local legislators, this
Court has looked to federal common law as a source of authority.  The
common law tradition offers no support for extending immunity to local
legislators from actions to enforce compliance with federal court
orders entered against their governments.  To the contrary, federal
courts have not hesitated to hold local legislators in contempt for
refusing to comply with federal court mandates.

   Extending absolute immunity to local legislators in this setting
would not be "justified by overriding considerations of public
policy." Forrester, 108 S. Ct. at 542.  Far from it.  When a federal
court issues a decree requiring action by a local government,
individual legislators, as officers of that government, have a duty to
abide by that order.  They may not, at their discretion, choose to
obstruct compliance with the decree.  Holding a legislator liable for
breaching that duty does not interfere with his legislative
independence because the underlying order itself has already
circumscribed the legislator's discretion to act.  Similarly,
withholding absolute immunity from local legislators in those
circumstances will not unduly interfere with the independence of the
local legislator itself.  Once a federal court enters an order
establishing a local government's liability for certain activities,
the court necessarily limits the local government's discretion in
connection with those activities.  In that situation, local officials,
as officers of that government, have a firm duty to remedy the
violations of federal law.  Cf. Columbus Bd. of Educ. v. Penick, 443
U.S. 449, 458-461 (1979).

   Thus, while federal courts must be "sensitiv(e) to interference
with the functioning of state (or local) legislators," United States
v. Gillock, 445 U.S. 360, 372 (1980), principles of comity cannot
empower local legislators to defy valid federal court orders.  That
sort of power "would upset the constitutional balance of a 'workable
government' and gravely impair the role of the courts under Art. III."
United States v. Nixon, 418 U.S. 683, 707 (1974).  Indeed, it would
effectively authorize obstruction of a court's enforcement of federal
law by the individuals with the greatest power to do so -- those
holding the police, the spending, and (of particular importance here)
the zoning and condemnation powers of the State or locality.

   Supreme Court of Virginia v. Consumers Union, 446 U.S. 719, 730-734
(1980), upholding a claim of legislative immunity in a Section 1983
action for injunctive relief against state officials acting in their
legislative capacity, does not support such a claim in the
circumstances of this case.  Where, as here, action against the
Council members was taken at the remedial state of litigation after
repeated frustration of the court's orders;  where action by the City
Council was necessary to remedy the City's statutory and
constitutional violations;  and where the City Council itself had
voluntarily assumed obligations under the Consent Decree, the immunity
recognized in Consumers Union should not apply.

   C. Nor does the First Amendment shield petitioners from sanctions
for obstructing the City's compliance with the court's orders, and
particularly for their refusal to vote for the implementing
legislation required by the Consent Decree.  To the extent the First
Amendment applies at all to a legislator's act of voting in his
official capacity, petitioners cannot claim such protection here.
Petitioners were free to express their views on the merits of the
Affordable Housing Ordinance both on and off the Council floor.
Compliance with the court's orders, however, required them to perform
an official act:  adopting the Affordable Housing Ordinance.  That
their official duty to perform this act necessitated use of a word, or
words, no more infringes the First Amendment than would a requirement
that a public officer issue an order to a subordinate or execute a
deed of conveyance.  The burden placed on the public official is a
result of his official duty and is "unquestionably" justified by "the
public interest in obtaining compliance with federal court judgments
that remedy constitutional violations" (Pet. App. 28a).

   D. Finally, petitioners are misguided in suggesting that the court
should have assumed the City Council's legislative duties or
transferred those duties to an independent court-appointed commission.
 Either alternative would have represented a more intrusive use of
federal judicial power -- the direct exercise of local legislative
authority by a federal court -- than did invocation of a traditional,
well-established judicial remedy.  Given the availability of the
time-honored remedy of civil contempt, such a step would have done
unnecessary violence to democratic values.  What is more, neither of
petitioners' suggestions would have achieved the important goal of
obtaining both present and future compliance with valid court orders,
including the Consent Decree approved by the Council itself.  Although
such alternatives presumably would have brought about the adoption of
the Affordable Housing Ordinance, enactment of the Ordinance was
essentially the beginning, not the end, of compliance.  Moreover, when
the confrontation between federal and local authority was of the
City's and the City Council's making, the district court properly
exercised its discretion by refusing to surrender to the Council's
attack on its authority and by requiring the City and City Council to
live up to their commitments.

                               ARGUMENT

   THE DISTRICT COURT PROPERLY IMPOSED CIVIL CONTEMPT SANCTIONS
AGAINST INDIVIDUAL MEMBERS OF THE YONKERS CITY COUNCIL FOR OBSTRUCTING
THE CITY OF YONKERS' COMPLIANCE WITH VALID COURT ORDERS

   A. The District Court Has Authority To Impose Civil Contempt
Sanctions Against Individual Members Of The Yonkers City Council For
Obstructing The City of Yonkers' Compliance With Valid Court Orders

   1. It is a fundamental aspect of judicial authority that "courts
have inherent power to enforce compliance with their lawful orders
through civil contempt." Shillitani v. United States, 384 U.S. 364,
370 (1966).  /30/ As the Court has recognized, "(t)he interests of
orderly government demand that respect and compliance be given to
orders issued by courts * * *." United States v. United Mine Workers,
330 U.S. 258, 303 (1947).  The contempt power, therefore, "has been
uniformly held to be necessary * * * to enable (federal courts) to
enforce (their) judgments and orders necessary to the due
administration of law and the protection of the rights of suitors."
Bessette v. W.B. Conkey Co., 194 U.S. 324, 333 (1904).  /31/ The reach
of this essential power extends not only to the parties themselves but
to those in privity with them, including their officers, employees,
and agents.  See Fed. R. Civ. P. 65(d), 70, 71.  /32/

   2. In this case, the record plainly shows (and petitioners do not
seriously dispute) that petitioners, over a period of time as officers
of the City of Yonkers and members of the City Council, obstructed the
City's compliance with four district court orders to remedy
longstanding and continuing federal constitutional and statutory
violations flowing from racial segregation of the City's public and
subsidized housing.  /33/ The Housing Remedy Order, specifically
directed to "(t)he City of Yonkers, its officers, agents, employees,
successors and all persons in active concert or participation with any
of them" (J.A. 20), established the City's obligation to propose and
implement the Long Term Plan.  The City and City Council, however,
steadfastly refused to comply with that Order.  See pp. 4-9, supra.

   The Consent Decree, adopted more than a year and a half after entry
of the Housing Remedy Order, further defined the terms of the Long
Term Plan and required the City and the City Council to enact the
necessary legislation to implement the Plan (J.A. 222).  Again, the
City and the City Council had the legal duty to enact legislation in
accordance with the Decree and to negotiate in good faith on its
details.  Yet again, the City and the City Council continued their
program of steadfast resistance, highlighted by the City Council's
resolution of June 14, 1988, declaring a moratorium on all public
housing construction in Yonkers.  See pp. 11-13, supra.  The district
court's entry of the Long Term Plan Order, as a result of the
recalcitrance of the City and the City Council, defined precisely the
steps to be taken by responsible City officials to remedy segregated
public and subsidized housing.  Yet, the City Council refused to
budge;  it responded on June 28 by defeating a resolution that would
have required the City to honor its previous commitments to implement
the Housing Remedy Order, the Consent Decree, and the Long Term Plan
Order (J.A. 345-346).

   It was only at this juncture that the district court entered its
July 26 Order, incorporating the Affordable Housing Ordinance (drafted
by the City's consultants in accordance with the Long Term Plan
Order), requiring enactment of the Ordinance by a certain date, and
establishing sanctions for non-compliance.  Consistent with its
previous stance, the City Council, with petitioners leading the
charge, acted in defiance of the court's order, thereby preventing the
City once again from achieving compliance.  See pp. 15-17, supra.
/34/

   3. In this situation of deliberate noncompliance with remedial
orders, the district court possesses authority to exercise its
contempt power to secure compliance.  First, the record belies the
suggestion that petitioners "were in a very real sense strangers" to
the litigation and the court's orders (Longo and Fagan Br. 28).
Petitioners, as members of the City Council, actively participated in
the remedial process;  indeed, they thwarted that process by
deliberate steps aimed at obstructing the City's compliance with the
court's valid orders.  That is precisely the type of conduct that
traditionally has warranted exercise of a court's civil contempt
power.  See, e.g., In re Lennon, 166 U.S. at 548;  United States v.
Hall, 472 F.2d 261, 264-267 (5th Cir. 1972) (Wisdom, J.);  Griffin v.
County School Bd., 363 F.2d 206, 207 (4th Cir. 1966) (en banc).

   Second, the district court is not disabled from exercising its
power because petitioners were not named parties in the underlying
litigation.  Federal Rule of Civil Procedure 65(d) reflects the
well-settled rule that "(t)o render a person amenable to an injunction
it is neither necessary that he should have been a party to the suit
in which the injunction was issued, nor to have been actually served
with a copy of it, so long as he appears to have had actual notice."
In re Lennon, 166 U.S. at 554.  In addition, the initial Housing
Remedy Order specifically enjoined petitioners, as "officers" of the
City, /35/ to take steps to remedy the City's constitutional and
statutory violations;  the district court's subsequent orders
implicitly mirrored that directive.  Petitioners are therefore in no
position to evade the district court's contempt process.  See Fed. R.
Civ. P. 71;  Regal Knitwear Co. v. NLRB, 324 U.S. 9, 14 (1945).

   Third, the Consent Decree, which the City Council itself approved,
reconfirmed the district court's authority to proceed against
petitioners for obstructing the City's compliance.  Contrary to
petitioners' sweeping contentions (Spallone Br. 36-40;  Chema Br.
38-40, 43-44;  Fagan and Longo Br. 26-28), the Decree bound all
members of the City Council to comply with specific court-ordered
obligations, whether petitioners personally agreed to it or not.  Fed.
R. Civ. P. 65(d);  see Regal Knitwear Co., 324 U.S. at 14-15.  The
City Council's approval of the Decree was "not the action of any
separate member or number of members, but the action of the body as a
whole." United States v. Ballin, 144 U.S. 1, 7 (1892).  "When one
accepts an office of joint responsibility, whether on a board of
directors of a corporation, the governing board of a municipality, or
any other position in which compliance with lawful orders requires
joint action by a responsible body of which he is a member, he
necessarily assumes an individual responsibility to act, within the
limits of his power to do so, to bring about compliance with the
order(s)." United States v. Fleischman, 339 U.S. 349, 356-357 (1950).

   As members of the Yonkers City Council, petitioners were subject to
the district court's orders directing the City of Yonkers to remedy
its illegal racial segregation of public and subsidized housing.  When
petitioners embarked on a continuous course of conduct to block the
City's efforts to comply with those orders, the district court acted
well within the traditional bounds of judicial authority.

   B. The Doctrine Of Legislative Immunity Does Not Shield Individual
Members Of The Yonkers City Council From Sanctions For Obstructing The
City Of Yonkers' Compliance With Valid Court Orders

   In the face of this justifiable exercise of the federal court's
contempt power, petitioners each contend (Spallone Br. 19-35;  Chema
Br. 24-32;  Longo and Fagan Br. 11-20) that the doctrine of
legislative immunity absolves them from any obligation to comply with
the district court's orders and shields them from sanctions for their
decision to obstruct the City's compliance with those orders.  This
cannot be.  This Court has never considered the common law doctrine of
legislative immunity as a license to disobey federal court orders,
especially orders aimed at remedying basic violations of federal
constitutional and statutory law.  On the contrary, the Court has
emphasized that all government officials, including legislators, are
bound to comply with federal law, and with federal courts' application
of that law.  As the Court stated in Cooper v. Aaron, 358 U.S. 1, 18
(1958), "(n)o state legislator * * * can war against the Constitution
without violating his undertaking to support it." See Butz v.
Economou, 438 U.S. 478, 506 (1978) ("all individuals," whatever their
position in government, are subject to federal law").

   Consistent with this overarching principle, the Court "has
generally been quite sparing in its recognition of claims to absolute
official immunity." Forrester v. White, 108 S. Ct. 538, 542 (1988).
The Court specifically "has been careful not to extend the scope of
the protection (of immunity) further than its purposes require." Ibid.
 Thus, contrary to petitioners' broad assertions, neither this Court's
precedents, the federal common law of immunity, nor considerations of
public policy serve to insulate petitioners' conduct from a federal
court's authority to enforce its own orders.

   1. This Court's leading decisions recognizing immunity for state or
regional legislators arose out of actions in which private plaintiffs
sought to hold legislators liable under the Civil Rights Act of 1871,
42 U.S.C. 1983.  In Tenney v. Brandhove, 341 U.S. 367, 376, 379
(1951), the Court concluded that Congress, in enacting that statute,
had not intended to abrogate the common law immunity enjoyed by state
legislators.  It thus held that state legislators are immune from
Section 1983 damages liability for their legislative acts.  The Court
extended this common law immunity from damages actions to members of a
two-state regional planning commission in Lake Country Estates, Inc.
v. Tahoe Regional Planning Agency, 440 U.S. 391, 402-406 (1979).  And
in Supreme Court of Virginia v. Consumers Union, 446 U.S. 719, 730-734
(1980), the Court upheld a claim of legislative immunity in a Section
1983 action for injunctive relief brought against members of a state
Supreme Court for their refusal to amend the state bar code to permit
attorney advertising.  /36/

   The recognition of legislative immunity under Section 1983, which
is explicitly grounded on common law practices, serves two principal
purposes.  First, the immunity protects individual state legislators
from the hazards and distractions of litigation resulting from
decisions they must make in carrying out their legislative duties, a
purpose shared by all common law official immunities.  E.g., Tenney,
341 U.S. at 377;  Lake Country Estates, 440 U.S. at 405;  see
Forrester, 108 S. Ct. at 543.  Second, the immunity, based on
traditional principles of comity, guards against undue federal
interference with state legislative functions.  See Consumers Union,
446 U.S. at 731-733;  United States v. Gillock, 445 U.S. 360, 370-373
(1980).

   The Court has made clear (445 U.S. at 370), however, that "federal
interference in the state legislative process is not on the same
constitutional footing" as federal judicial interference with the
affairs of Congress.  The latter raises a question of separation of
powers between coequal branches, a question explicitly addressed by
the Speech or Debate Clause of Art. I, Section 6, Cl. 1 of the
Constitution.  Thus, "where important federal interests are at stake
(in the actions of state legislative officials), as in the enforcement
of federal criminal statutes (against those officials), comity
yields." 445 U.S. at 373.  /37/

   2. The civil contempt proceedings against the individual members of
the City Council in this case were designed to stop those members from
obstructing the City's compliance with valid federal court orders --
orders entered in a civil rights action brought by the United States
against the City to redress the City's longstanding violations of the
Constitution and federal civil rights laws.  The context of this case
is therefore far removed from the circumstances in which this Court
has upheld claims of legislative immunity -- private actions brought
directly against state legislators in the first instance seeking
monetary or injunctive relief as a result of particular legislative
decisions.  /38/ It is precisely this difference in context that
argues powerfully against application of legislative immunity to
shield petitioners' actions from legal process.

   a. Federal common law traditionally has not extended to local
legislators an immunity from actions to enforce compliance with
federal court orders entered against municipal or county governments.
In reliance on the "widely followed common-law rule that only
discretionary functions are immune from liability," Westfall v. Erwin,
108 S. Ct. 580, 584 n.4 (1988), federal courts have recognized that
local legislators have no license to defy valid court judgments.  See,
e.g., Amy v. The Supervisors, 78 U.S. (11 Wall.) 136, 138 (1870)
(county legislators held liable in damages for refusing to comply with
federal court judgment against the county).  /39/ When confronted with
disobedience to federal court judgments entered after local
governments had defaulted in their obligations to bondholders, this
Court has held that federal courts may issue writs of mandamus to
compel local legislatures to satisfy those judgments.  See, e.g., Yost
v. Dallas County, 236 U.S. 50 (1915);  East St. Louis v. Amy, 120 U.S.
600 (1887);  Mobile v. Watson, 116 U.S. 289 (1886);  Labette County
Commissioners v. Moulton, 112 U.S. 217 (1884);  County Commissioners
v. Wilson, 109 U.S. 621 (1883);  Commissioners v. Sellew, 99 U.S. 624
(1878).  /40/ As the Seventh Circuit noted a generation ago, "(c)ourts
have for years compelled city councils to do their legal duty, though
the performance of that duty may require the exercise of discretion
and be in the performance of legislative functions * * *." Connett v.
City of Jerseyville, 125 F.2d 121, 124 (7th Cir. 1942).

   Under this established common law tradition, individual legislators
may not only be held liable in damages for refusing to comply with
federal court orders, they may also face contempt sanctions for their
disobedience, see, e.g., Commissioners v. Sellew, 99 U.S. at 627.
/41/ In Sellew, the Court stated (ibid.):

         When a copy of the writ which has been ordered is served upon
      the clerk of the (County Board of Commissioners), it will be
      served on the (County), and be equivalent to a command that the
      persons who may be members of the board shall do what is
      required.  If the members fail to obey, those guilty of
      disobedience may, if necessary, be punished for contempt.

The common law tradition thus offers no support for extending immunity
to local legislators from actions to enforce compliance with federal
court orders entered against their governments.

   b. In the context of this case, extending such immunity to local
legislators is not "justified by overriding considerations of public
policy." Forrester, 108 S. Ct. at 542.  To the contrary, when a
federal court issues a decree requiring local governmental action,
individual legislators incur a duty to abide by that order.  They are
not at liberty to obstruct compliance.  E.g., Sellew, 99 U.S. at 627.
Holding a legislator liable for breaching that duty (by obstructing
the court's order) does not interfere with his legislative
independence;  his discretion to act has already been circumscribed by
the underlying order itself.  For the same reason, the absence of
immunity will not subject individual legislators to the risk of
liability "for mere mistakes in judgment." Butz, 438 U.S. at 507;  see
Westfall, 108 S. Ct. at 584.  /42/

   Similarly, holding legislators liable to contempt sanctions for
obstructing compliance with federal court orders will not subject them
to proceedings based "upon a conclusion of the pleader, or to the
hazard of a judgment against them based upon a jury's speculation as
to motives." Tenney, 341 U.S. at 377.  Legislators can avoid such
proceedings by carrying out their fundamental duty to obey court
orders.  Should they thwart those orders and persist in such
disobedience, legislators can (and should) anticipate the resulting
contempt proceedings, in which their liability would be objectively
determined, without regard to their motive or intent.  See McComb v.
Jacksonville Paper Co., 336 U.S. 187, 191 (1949).

   To be sure, in fashioning the remedy, a court should be mindful of
legislative prerogatives and give due respect to the views of local
authorities.  Brown v. Board of Educ., 349 U.S. 294, 300 (1955) (Brown
II);  Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 16
(1971).  But where, as here, local authorities default in their legal
obligations and then actively obstruct compliance with the court's
orders, the court must prescribe the remedy (id. at 15-16).  In those
circumstances, the court "has not merely the power but the duty to
render a decree which will so far as possible" remedy the violation.
Louisiana v. United States, 380 U.S. 145, 154 (1965).

   This by no means suggests that legislators are left, as petitioners
would have it, to the whim of a single judge clothed with Article III
power.  Once the court enters its decree, the appellate process
provides a safeguard against unlawful or unnecessary remedial
requirements.  But if the order is neither stayed nor overturned, then
the local government has the clear duty to implement the decree, see
United Mine Workers, 330 U.S. at 293, a duty shared by the
municipality's officers, including members of its governing
legislative body.  See Fleischman, 339 U.S. at 356-357 (quoted at p.
26, supra);  Regal Knitwear Co., 324 U.S. at 13-14;  Commissioners v.
Sellew, 99 U.S. at 627;  Fed. R. Civ. P. 65(d).  /43/

   Thus, while the courts must be "sensitiv(e) to interference with
the functioning of state (or local) legislators," Gillock, 445 U.S. at
372, principles of comity do not, and should not, license local
legislators to defy valid federal court orders.  Such an immunity
"would upset the constitutional balance of a 'workable government' and
gravely impair the role of the courts under Art. III." United States
v. Nixon, 418 U.S. at 707.  Moreover, it would effectively authorize
obstruction of a court's enforcement of federal law by the individuals
with the greatest power to do so -- those holding the police, the
spending, and (of particular importance here) the zoning and
condemnation powers of the state or locality.  See Griffin v. County
School Bd., 377 U.S. 218 (1964).  /44/ Indeed, as the City
acknowledges (City of Yonkers Br. 9), an extension of immunity to City
Council members in this context would "in a very real sense (place) a
Sword of Damocles over (the City's) head." The City thus realizes that
if legislative immunity were granted, it could be faced with heavy
fines, and even bankruptcy, as a result of actions by those who knew
in advance that they ran no individual risk of contempt.

   3. The record establishes (see pp. 4-17, supra) that petitioners,
as individual members of the Yonkers City Council, obstructed the
City's compliance with the district court's orders to remedy racial
segregation of the City's public and subsidized housing.  Each of
those orders (see note 33, supra) -- the initial Housing Remedy Order,
the Consent Decree, the Long Term Plan Order, and the July 26 Order --
progressively narrowed the options available to the City and City
Council to conform to constitutional and statutory requirements.  With
the court's entry of the July 26 Order, the City Council's mandate was
defined precisely -- the Council was either to enact by August 1 the
ordinance drafted by the City's consultants in accordance with the
Long Term Plan, or face specific contempt sanctions.  In sum,
petitioners brought contempt sanctions on their own heads by
preventing the City, acting through the City Council, from adopting
the ordinance in accordance with the district court's orders and the
City's own commitments.

   This case is thus quite different from Consumers Union, 446 U.S. at
730-734, where the Court held that the doctrine of legislative
immunity barred a Section 1983 action for injunctive relief.  Contrary
to petitioners' passing suggestions (Spallone Br. 32;  Chema Br. 30),
Consumers Union does not, for reasons discussed below, support
extending to local legislators an immunity from actions to enforce
compliance with federal court orders entered against their
governments.

   a. In Consumers Union, plaintiffs filed an action against the
members of the Supreme Court of Virginia, in their legislative
capacities, for failing to amend the state bar code in light of Bates
v. State Bar of Arizona, 433 U.S. 350 (1977).  The Bates decision,
however, was not a court decree that enjoined the Supreme Court of
Virginia or the State for which it was acting.  Nor did the ruling in
Bates impose a precisely defined duty on state bar authorities to
amend their respective ethical codes.  See Bates, 433 U.S. at 383-384.

   Here, in contrast, petitioners were personally subjected to legal
proceedings only after judgment had been entered against the City;
the City had defaulted in its remedial obligations largely as a result
of petitioners' efforts;  the Council itself had agreed to enact the
necessary legislation;  and the terms of that legislation had been
precisely defined.  Where the "duty sought to be enforced (was) clear
and indisputable" (Board of Commissioners v. Aspinwall, 65 U.S. (24
How.) 376, 383 (1860)), petitioners had neither the authority nor an
occasion to "exercise judgment and discretion" (Kendall v. Stokes, 44
U.S. (3 How.) 86, 98 (1845)) in refusing to obey court orders and in
obstructing the City's compliance.

   b. In Consumers Union, the plaintiffs' rights could be vindicated
through an injunction barring enforcement of the offensive provisions
of the state bar code.  /45/ See 446 U.S. at 734-737.  Here,
implementation of the Long Term Plan depended upon enactment of
legislation;  under the Yonkers City Charter, the City Council enjoys
exclusive authority to carry out that task.  See note 44, supra.
Where action by the City Council was necessary to remedy the City's
statutory and constitutional violations, the court plainly had
authority to compel that action.  Griffin v. County School Bd., 377
U.S. 218, 233 (1964);  Alexander v. Holmes County, 396 U.S. 19, 21
(1969);  /46/ see Bond v. Floyd, 385 U.S. 116, 131 (1966) (in action
for injunction against state legislature and individual legislators,
Court has jurisdiction to review legislature's power to exclude a
prospective member).  /47/

   c. Finally, the City Council, by approving the Consent Decree,
voluntarily assumed the obligation to abide by the general terms of
the Long Term Plan and to enact the legislation necessary to implement
the Plan.  /48/ Thus, the City's own governing body removed the
question whether to enact the implementing legislation from the arena
of discretionary legislative functions.  The City Council did not
cause the City to move to amend the Decree in order to delete or
modify both the City's and the City Council's obligations under the
Long Term Plan.  Nor did it cause the City to appeal the denial of the
City's motion to vacate the Decree.  /49/ Instead, the Council, with
petitioners at the helm, simply refused to honor the commitment it had
made just six months earlier.

   This defiance may not be excused on the pretextual ground that the
Consent Decree failed to spell out the terms of the legislation in
detail.  The terms of the Long Term Plan Order were substantially in
accordance with the Consent Decree and were those proposed by the City
during negotiations.  When the City refused to negotiate the final
details, the court was justified in entering the Long Term Plan Order
and ordering the City to enact legislation in accordance with it.  See
Pet. App. 21a-22a.  In any event, the Council never enacted any
legislation at all, as it had promised to do in the Consent Decree,
and none of the petitioners suggested any substantive changes in the
Long Term Plan Order or the Affordable Housing Ordinance to the
district court.

   As summarized by the court of appeals (Pet. App. 27a), "(n)o
litigant, least of all public officials sworn to uphold the
Constitution of the United States, may be permitted to avoid
compliance with solemn commitments they have made in a consent
judgment entered by a federal district court to remedy constitutional
violations." Petitioners thus should not be afforded a safe harbor in
the immunity recognized by Consumers Union in very different
circumstances.

   C. The First Amendment Does Not Shield Individual Members Of The
Yonkers City Council From Sanctions For Obstructing The City Of
Yonkers' Compliance With Valid Court Orders

   Petitioner Chema alone contends (Br. 33-38) that the district court
violated his First Amendment right to free speech by subjecting him to
contempt sanctions for his obstruction of the City's compliance with
the court's orders, and particularly for his refusal to vote for the
implementing legislation required by the Consent Decree.  This novel
argument is without merit.  No decision of this Court examining the
individual rights of federal or state legislators has considered as
protected speech a legislator's act of voting in his official
capacity.  Rather, the Court has looked to other common law and
constitutional principles in resolving individual legislators'
challenges to constraints on their activities.  See, e.g., Lake
Country Estates, 440 U.S. at 402-405 (doctrine of legislative
immunity);  Gravel v. United States, 408 U.S. 606 (1972) (Speech or
Debate Clause);  Tenney v. Brandhove, 341 U.S. 367 (Speech or Debate
Clause and doctrine of legislative immunity);  Kilbourn v. Thompson,
103 U.S. 168 (1880) (separation of powers principle).

   As the Court's analysis in these cases reflects, common law
legislative immunity, together with applicable constitutional
provisions and principles, such as the Speech or Debate Clause and
separation of powers, offer legislators the necessary and appropriate
protections from undue interference with their legitimate legislative
activities.  See, e.g., Tenney, 341 U.S. at 372;  Lake Country
Estates, 440 U.S. at 403.  Accordingly, whatever protections
petitioners would have under the First Amendment for actions or
failure to act in their official capacity should be no broader than
those derived from the doctrine of legislative immunity.  To contend
that the act of legislative voting enjoys greater First Amendment
protection than this would suggest that the resulting legislative
enactments would similarly be protected by the First Amendment from
statutory and constitutional constraint -- an obviously untenable
proposition.

   To the extent that the First Amendment applies at all to a
legislator's act of voting in his official capacity, /50/ petitioner
Chema cannot claim such protection here.  /51/ The Council members,
including Chema, were free to express their views on the merits of the
Affordable Housing Ordinance both on and off the Council floor.
Compliance with the court's orders, however, required them to act by
adopting that Ordinance.  That their official duty to perform this act
necessitated the use of a word, or words, no more infringed the First
Amendment than would a requirement that a public officer issue an
order to a subordinate or execute a deed of conveyance.  Council
members, like other government employees required in their official
capacities to express and implement policies they might not personally
endorse, have no First Amendment right to refuse to carry out those
duties:

         Perhaps the simplest example of a statement by a public
      employee that would not be protected by the First Amendment
      would be answering "No" to a request that the employee perform a
      lawful task within the scope of his duties.  Although such a
      refusal is "speech," which implicates First Amendment interests,
      it is also insubordination, and as such it may serve as the
      basis for a lawful dismissal.

Connick v. Myers, 461 U.S. 138, 163 n.3 (1983) (Brennan, J.,
dissenting).

   Here, the district court's orders required petitioners to perform a
lawful task within the scope of their official duties.  If they could
not reconcile their obligations as city officials with their
individual views and were unwilling to carry out that task, their
recourse was to resign their offices.  In a system of law, they were
emphatically not at liberty to defy the law.  As the court of appeals
correctly concluded, "the public interest in obtaining compliance with
federal court judgments that remedy constitutional violations
unquestionably justifies whatever burden on expression has occurred"
(Pet. App. 28a).  Accordingly, the freedom of individual Council
members under the First Amendment to express their views "does not
permit them to take action in violation of law" (ibid.).

   D. The District Court Properly Exercised Its Discretion To Bring
About Compliance With Its Orders By Holding Individual Members Of The
Yonkers City Council In Contempt Rather Than By Ordering Legislation
In Effect Itself Or By Appointing A Commission To Do So

   Petitioners (Spallone Br. 42-47;  Chema Br. 20-24;  Longo and Fagan
Br. 20-21), joined by the City of Yonkers (City of Yonkers Br. 11-15),
contend that the district court erred in imposing civil contempt
sanctions against the Council members in order to require them to
comply with its orders.  In their view, the district court should have
either enacted the legislation itself or appointed a commission to do
so.  Accordingly, petitioners and the City assert that either
alternative would have been "less intrusive" than ordering the City to
comply with the court's orders and subjecting the members of the
Council to contempt.  We disagree.  Indeed, in our view, either
alternative would have been a greater exercise of federal judicial
power than the course actually taken.

   1. The requirement that, in enforcing compliance with a lawful
order, a court exercise "'(t)he least possible power adequate to the
end proposed'" (Shillitani v. United States, 384 U.S. at 371 (quoting
Anderson v. Dunn, 19 U.S. (6 Wheat.) 204, 230-231 (1821)), applies not
to the choice between contempt and another remedy for the contemnor's
disobedience, but rather to the choice between civil or criminal
contempt, together with the choice of particular sanctions.  See
Shillitani, 384 U.S. at 371 & n.9.  /52/ Thus, while alternatives to
contempt may be available (see Fed. R. Civ. P. 70), /53/ there is no
authority for the proposition that the use of such alternatives is
mandatory.  /54/

   In any event, either the court's own enactment of the legislation,
or its appointment of a Commission to carry out the City Council's
responsibilities under the Decree, would have been a greater, not a
lesser, exercise of judicial power.  See J.A. 519 (Marshall, J.
dissenting from grant of stay) ("Surely it is both less disruptive and
more effective to order compliance * * * than to usurp completely the
Council's legislative authority and enact the legislation directly.").
 Indeed, as the district court itself said:  "(T)his court is not
eager to assume any greater role than the circumstances require, not
out of lack of interest, concern or power but rather a concept of what
the proper role of a federal court is in a circumstance such as this"
(J.A. 357).  A federal court's direct assumption of local legislative
power, free from the inevitable constraints involved in acting through
existing legislative bodies, raises more serious questions of
federalism and comity than the course adopted here.

   2. In an action for contempt, a district court exercises discretion
in determining which sanctions will best "bring() about the result
desired." United States v. United Mine Workers, 330 U.S. at 304;  cf.
Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. at 15.  The
court must "assess the effectiveness" of the proposed remedy "in light
of the circumstances present and the options available in each
instance." Green v. County School Bd., 391 U.S. 430, 439 (1968).  The
district court, "having had the parties before it over a period of
time, was in the best position to judge whether an alternative remedy
* * * would have been effective." Local 28, Sheet Metal Workers v.
EEOC, 478 U.S. 421, 486 (1986) (Powell, J., concurring).  Here, the
district court concluded, and the court of appeals agreed, that the
imposition of contempt sanctions on both the City and petitioners was
the best means of enforcing the court's orders and the "least possible
power adequate to the end proposed" (Pet. App. 21a).  On this record,
that conclusion is unimpeachable.

   a. The immediate end proposed was the City Council's enactment of
the Affordable Housing Ordinance, an action essential to the
implementation of the Long Term Plan and a step the City Council had
expressly agreed to in the Consent Decree.  Petitioners suggest (e.g.,
Spallone Br. 46-47;  Longo and Fagan Br. 27-28) that the court should
have enforced this obligation by holding only the City in contempt.
The district court, however, exercised its sound discretion in
concluding that under all the circumstances in July and August 1988,
such an order would not have been an effective remedy.  Although the
prospect of the imposition of contempt sanctions against the City
alone had induced compliance in the past, by the summer of 1988, both
the City and the City Council had made clear in advance that they
would not "voluntarily adopt the legislation contemplated by the
(court's orders)" (J.A. 351;  see J.A. 345-346).  Indeed, the City had
stated that it was willing to return as much as $30 million in federal
funds to avoid compliance.  See pp. 11-12, supra.  Since the Council
was the only entity within the City that could bring about compliance,
and since the City faced bankruptcy if the Council did not enact the
Ordinance, coercive sanctions against the individuals personally and
officially responsible for obstructing the City's compliance with the
court's orders were justified.  /55/

   b. Moreover, enactment of the legislation by the court (or by a
court-appointed Commission) would not have advanced the ultimate goal
of implementing the Housing Remedy Order to alleviate the City's
racially segregated public and subsidized housing.  The district court
recognized as much in January 1988, when it ordered the City to pass
the long overdue HAP (J.A. 175):

         There are limits and disadvantages to the practice of deeming
      things to have been done.  One cannot deem housing to have been
      built.  The building of housing is a complex matter which
      requires a multitude of proceedings and actions.

Simply ordering the legislation into effect would only have postponed
the Council's next effort to obstruct the remedy, an eventuality that,
in light of the Council's past conduct, the court recognized was
likely (J.A. 357):  "Obviously, if the city council were to say, well,
Judge Sand, those are your orders, you do with them what you will but
at some point we will reassert our authority, then we are engaged in
an exercise which doesn't get housing built."

   To avoid such future confrontations, the court proposed the
creation of a Commission to take over the City Council's
responsibilities entirely (J.A. 357-359).  But the City, speaking
expressly for the City Council, strenuously opposed creation of a
Commission (J.A. 377-379), and none of the petitioners advocated that
proposal until it appeared in their interest to do so -- after the
district court had imposed contempt sanctions and this matter reached
the court of appeals.  The Commission alternative thus promised only
to create a new opportunity for City and Council defiance (see J.A.
407).  The district court wisely chose not to follow that course.
/56/

   3. As the district court has recognized throughout this protracted
and often bitter litigation, the prospects for the Housing Remedy
Order successfully to desegregate public and subsidized housing in
Yonkers will improve greatly only if and when the Yonkers community
finally accepts the legitimacy of that Order.  But such acceptance
will not come as long as the City and its officials continue to deny
and defy the federal court's authority to enforce its remedial orders.
 Even with the Affordable Housing Ordinance now enacted, the
implementation of the Long Term Plan will require many actions by City
officials over the course of years.  The cooperation of those
officials will be essential to its success.  As the United States
stressed in support of its motion for contempt, the City and the City
Council were deliberately avoiding responsibility for implementation
of the housing remedy.  Indeed, they were seeking to put the entire
onus of implementation on the court (J.A. 360-362, 385-386, 393;  see
J.A. 349-353).

   The United States argued in the district court that, in these
circumstances, it was essential for the City to "take responsibility
for its actions" (J.A. 361), and for the court "to take action to make
sure that (its) orders (were) obeyed" (J.A. 393).  The district court,
upheld by a unanimous court of appeals, properly agreed with this
assessment.  Displaying the restraint that Article III courts must
evince, the district court emphasized that federal courts should act
only when there is "no responsible state or local authority that will
act," and that the City must "recognize its obligation to conform to
the laws of the land" by complying with the court's orders (J.A. 407).
 Thus, the district court's action is fully consistent with the solemn
obligation of the federal judiciary to safeguard and vindicate the
rule of law, including the higher law of the Constitution.

                              CONCLUSION

   The judgment of the court of appeals should be affirmed.

   Respectfully submitted.

   KENNETH W. STARR

      Solicitor General

   JAMES P. TURNER

      Acting Assistant Attorney General

   DAVID L. SHAPIRO

      Deputy Solicitor General

   MICHAEL R. LAZERWITZ

      Assistant to the Solicitor General

   DAVID K. FLYNN

   LINDA F. THOME

      Attorneys

   JUNE 1989

   /1/ "Pet. App." refers to the appendix to the petition in No.
88-854.

   /2/ The Court limited its grant of certiorari in No. 88-856 to the
first five questions presented in the petition.  J.A. 624.

   /3/ The contempt adjudications at issue arose during the remedial
phase of the civil rights action initiated in 1980 by the United
States against the City of Yonkers, the Yonkers Community Development
Agency, and the Yonkers Board of Education.  Because the orders before
this Court must be reviewed within the context of the efforts by the
City of Yonkers and the Yonkers City Council to block compliance with
the district court's remedial orders, we set forth in some detail the
procedural history of this case.

   /4/ The district court also held the City of Yonkers and the
Yonkers Board of Education liable for systemwide racial segregation in
the Yonkers public schools.  United States v. Yonkers Bd. of Educ.,
624 F. Supp. 1276, 1376-1545 (S.D.N.Y. 1985).

   The Yonkers Branch of the National Association for the Advancement
of Colored People (NAACP) and an individual minority student, by her
next friend, moved to intervene in the action as plaintiffs.  In June
1981, the district court granted leave to intervene and later
certified the action as a class action on behalf of all black
residents of Yonkers who were residents of, or eligible to reside in,
public or subsidized housing in Yonkers, or who were parents of
students attending public school in Yonkers.  See 624 F. Supp. at 1288
n.1.

   /5/ Evidence of segregative intent included City Council members'
acquiescence in the community's racially influenced opposition to
public and subsidized housing outside areas of minority concentration
(624 F. Supp. at 1369-1372), the City Council's reluctance to seek
federal Section 8 housing certificates, and, when the certificates
were obtained, the confining of their use to minority families only in
Southwest Yonkers (id. at 1342-1363).

   The district court also issued supplemental findings of fact
following the remedial hearings, concluding that the City had
continued its pattern of discriminatory practices through the date of
the Housing Remedy Order.  United States v. Yonkers Bd. of Educ., No.
80 CIV 6761 (S.D.N.Y. May 28, 1986), slip op. 1-3.

   /6/ A grantee's submission of an acceptable HAP and execution of a
grant agreement are prerequisites to the receipt of Community
Development Block Grant (CDBG) funds.  See 24 C.F.R. 570.301(a)(4),
570.304(b).  The HAP, among other requirements, must set forth annual
and three-year goals for the number, type, and general location of
assisted housing units to be developed in the municipality, as well as
the actions the grantee will take to achieve these goals.  See 24
C.F.R. 570.306.  The City had previously committed itself to provide
sites for 200 units of assisted housing in East Yonkers as a condition
to its receipt of CDBG funds, but had never honored that commitment.
See 635 F. Supp. at 1580.  The Housing Remedy Order's requirement that
the City submit an HAP and execute a grant agreement thus required the
City to reaffirm its commitment to the development of 200 units of
public housing in East Yonkers.  Submission of these documents was
also needed to establish the Affordable Housing Trust Fund, which,
with CDBG funds, will facilitate development of housing under the Long
Term Plan.  See id. at 1581-1582.

   /7/ The City also refused to submit an HAP or to execute a grant
agreement with HUD.  Under the Housing Remedy Order, counsel for the
United States prepared these documents, which the court deemed to have
been submitted by the City.

   /8/ The July 1 Order directed the Advisor to submit a proposed plan
for the placement of all 200 units of public housing on the identified
unused school sites, and specified that the Advisor would no longer
function as the City's representative but would act solely as an
advisor to the court.  The Order also required the City to adopt and
submit to HUD an acceptable HAP for its current CDBG funding
application.  J.A. 147-150.

   /9/ In the third resolution, the City Council adopted the City's
HAP for the fiscal year 1986 (J.A. 141).

   /10/ Although the Advisor and the City had identified potential
housing sites (see, e.g., J.A. 53-56, 115-117, 145), the City took no
action to make them available for public housing.

   /11/ In its order requiring the Yonkers Board of Education to
return to the City title to the unused school sites that had been
designated for public housing, the court stated (675 F. Supp. at
1410):

         It will come as no surprise to anyone familiar with the
      history of this litigation that the City has acted in a negative
      or at best neutral fashion with respect to all efforts to
      implement the Court's Housing Remedy Order, and that any
      initiatives to further such implementation have come from the
      Plaintiffs, Plaintiff-Intervenors, or the Court itself.

   /12/ To prod the City to act, the court also imposed a freeze on
all discretionary City actions in connection with four existing
development projects in Yonkers until it was shown that these projects
could not be used to advance the housing remedy goals, or until the
City designated and obtained control of sites for all 200 units of
public housing.  In this order, the court recognized (675 F. Supp. at
1414):

         The progress to date in identifying available sites have been
      extremely disheartening and the attitude of the representatives
      of Yonkers has been to do nothing affirmative, to place the
      entire onus of implementation on the Court, and to engage in
      obstructive and dilatory tactics.  To date, there have been
      untoward delays in implementing the Housing Remedy Order some 18
      months after its promulgation.  Only the threat of bankrupting
      fines has produced any action by the City.

   /13/ The court of appeals pointedly rejected as "frivolous" the
City's contentions that its actions had not been racially motivated
(837 F.2d at 1222).

   /14/ The court stated that it would notify the New York State
Emergency Financial Control Board and the Governor of New York of any
contempt adjudication (J.A. 176-178).  Contrary to petitioner Chema's
misleading suggestion (Chema Br. 5), the court's statement about
replacing the City's elected officials with appointed officials (J.A.
182-183) referred not to action by the court itself but rather to
possible action by those responsible state officers who have authority
under state law to remove City officials from office.  See Charter of
the City of Yonkers art. II, Section C2-5 (1966);  Pet. App. 13a.

   /15/ At that proceeding, the court stated that if no agreement had
been reached, it would have entered an order designating six public
housing sites, but did not suggest that it would have taken any action
at that time with respect to the Long Term Plan (J.A. 204).

   /16/ The Consent Decree specifically provided (J.A. 220):

         There shall be a presumption in favor of allowing two years
      for the Mandated Incentives to demonstrate their effectiveness
      in fostering the development of a sufficient number of Units
      timely to achieve the Goal without the adoption of additional
      remedial measures.

Additional measures that the parties agreed to forgo for a time
included the use of City-owned land (J.A. 221).

   /17/ This amount represented the CDBG funds that the City had
received from HUD following its promise to provide sites for 200 units
of such public housing.  See pp. 3-4 and note 6, supra.

   /18/ The City opposed entry of the Long Term Plan Order principally
on the ground that it was urging the court to vacate the Consent
Decree entirely (J.A. 246;  see also J.A. 256-258, 298-300).  In the
court of appeals, the City challenged only one substantive aspect of
the Long Term Plan Order that concerned its state law authority to
grant tax abatements (Pet. App. 31a).  The court of appeals affirmed
the entry of the Order (id. at 31a-32a).  None of the petitioners
challenges that aspect of the court of appeals' decision here.

   /19/ The City Council passed this resolution the day after this
Court denied the City's petition for a writ of certiorari to review
the court of appeals' affirmance of the district court's liability and
remedy orders (108 S. Ct. 2821 (1988)).

   /20/ The NAACP urged the court to avoid taking the preliminary
steps of imposing contempt sanctions.  Instead, it advocated the
court's taking control away from the recalcitrant City Council.  See
J.A. 363 ("In other words, no fines no jail and simply the most
drastic action taken, which would be the stripping of the City of
Yonkers' governmental officials directly of their responsibilities.").

   /21/ Contrary to its representation to this Court (City of Yonkers
Br. 15), the City never altered its opposition in the district court
to the creation of a Housing Commission, even when the imposition of
contempt sanctions was imminent (J.A. 392-393, 403-404).

   At the July 12 hearing, the City did favor direct action by the
district court, simply ordering the legislation into effect without a
vote by the City Council, but the court resisted, saying "this court
is not eager to assume any greater role than the circumstances
require, not out of a lack of interest, concern or power but rather a
concept of what the proper role of a federal court is in a
circumstance such as this" (J.A. 357).

   /22/ At a hearing on July 26, the City stated that except for its
previously expressed objections to the Long Term Plan (see pp. 12-13
and note 18, supra), it had no objections to the substance of the
Affordable Housing Ordinance (J.A. 383-384).

   /23/ All fines would be paid into the Treasury of the United States
and would not be refundable (J.A. 399).

   /24/ Since the City Council has enacted the ordinance (see p. 17,
infra), petitioner Spallone is wrong in asserting, indeed boasting
(Spallone Br. 3 & n.4, 7 n.11, 9 n.16), that he remains in contempt of
court.

   /25/ At its August 1 meeting, the City Council scheduled for August
15 a public hearing on the Affordable Housing Ordinance, as required
by state law.  Following the August 15 hearing, the City Council again
rejected the Ordinance by a vote of 4 to 3.  Pet. App. 13a, 16a-17a.

   /26/ Chema's counsel argued that the court should have first held
the City in contempt, and should have considered contempt against his
client only if the City did not then comply (J.A. 436-438).  In an
affidavit submitted to the court of appeals (J.A. 506-508), Chema
stated that the Long Term Plan did "nothing to address those people
left behind in substandard housing on the West Side," and that the
public had expressed its opposition to the adoption of the Long Term
Plan legislation at the August 1 City Council meeting (J.A. 506-507).

   /27/ In response to the Council members' contentions that they had
been given inadequate time to prepare, the court allowed each of them
until August 5 to request an evidentiary hearing that, if requested,
would be held on August 8.  The court ordered that all fines paid by
the Council members would be held by the Clerk of the District Court
until August 12, pending such a hearing.  None of the Council members
requested a hearing.  J.A. 441-442, 475-476.

   /28/ The City paid a total of approximately $820,000 in contempt
fines.  The Council member petitioners each paid $3,500 in such fines.
 Pet. App. 190n-200n.

   /29/ Within days, the City's and the City Council's willingness to
implement the Housing Remedy Order (or to acknowledge the district
court's authority to do so if the City refused) was again tested.  On
September 22, the court of appeals issued its decision in Yonkers
Racing Corp. v. City of Yonkers, supra, directing the district court
and the parties to seek an alternative to the Seminary site as a
location for public housing.  858 F.2d at 872;  see p. 12, supra.  The
City flatly refused to cooperate in this process, because "there (was)
not majority council support for any site to replace the seminary"
(Oct. 4, 1988, Tr. 8).  The City made clear that it would not propose
or support any alternate site, would not propose that the court
designate a site from a list furnished by the parties, would not
support the appointment of a commission to designate a site, and would
not acknowledge the court's authority to designate a site (id. at
5-15).

   /30/ See, e.g., United States v. United Mine Workers, 330 U.S. 258,
304-307 (1947);  Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 450
(1911);  United States v. Hudson & Goodwin, 11 U.S. (7 Cranch) 32, 34
(1812).  See also Young v. United States ex rel. Vuitton, 481 U.S.
787, 793 (1987) ("it is long settled that courts possess inherent
authority to initiate contempt proceedings for disobedience to their
orders");  18 U.S.C. 401.

   /31/ In Gompers v. Bucks Stove & Range Co., 221 U.S. at 450 (1911),
the Court observed:

         If a party can make himself a judge of the validity of orders
      which have been issued, and by his own act of disobedience set
      them aside, then are the courts impotent, and what the
      Constitution now fittingly calls "the judicial power of the
      United States" would be a mere mockery.

   /32/ See, e.g., Gunn v. University Committee, 399 U.S. 383, 389
(1970);  Regal Knitwear Co. v. NLRB, 324 U.S. 9, 14 (1945);  In re
Lennon, 166 U.S. 548, 554 (1897);  Alemite Mfg. Corp. v. Staff, 42
F.2d 832, 832 (2d Cir. 1930) (L. Hand, J.).

   /33/ Indeed, the City itself concedes that "there was contumacious
conduct" (City of Yonkers Br. 12).

   Each of these four orders was final and binding on the City.  The
court of appeals affirmed the Housing Remedy Order and this Court
denied review.  United States v. Yonkers Bd. of Educ., 837 F.2d 1181,
1184 (2d Cir. 1987), certs. denied, 108 S. Ct. 2821 (1988).  The
district court denied the City's motion to vacate the Consent Decree
and the City sought no further review of that ruling.  See pp. 11-12,
supra.  The court of appeals upheld the district court's entry of the
Long Term Plan Order (Pet. App. 31a-32a), and neither the City nor
petitioners sought review of that ruling in this Court.  Finally, the
court of appeals upheld the July 26 Order and the adjudication of
contempt against the City (id. at 28a-31a), and this Court denied the
City's petition for review.  109 S. Ct. 1339 (1989).

   /34/ Certain petitioners contend (Chema Br. 45-47;  Longo and Fagan
Br. 22-26) that the Affordable Housing Ordinance and the Long Term
Plan from which it was drawn are inconsistent with the Consent Decree.
 Petitioners did not raise this issue in the district court or in the
court of appeals, and they have therefore not preserved it for review.
 E.g., United States v. Lovasco, 431 U.S. 783, 788 n.7 (1977);
Adickes v. S.H. Kress & Co., 398 U.S. 144, 147 n.2 (1970).

   In any event, this belated point is without merit since the Long
Term Plan Order and Affordable Housing Ordinance are fully consistent
with the Consent Decree.  Nothing in the Ordinance contradicts the
Consent Decree's proviso requiring only zoning changes that "are not
substantially inconsistent with the character of the area" (J.A. 222).
 In fact, Article V of the Ordinance expressly requires that "the
provisions of the underlying zoning * * * (and) the impact of
development on surrounding land uses and neighorhoods" be taken into
account before allowing "(d)epartures from (existing) zoning
regulations" (J.A. 548).  And all such zoning changes must be
submitted to the Yonkers Planning Board for its approval (J.A.
550-554).  Nothing in the Consent Decree suggested that the City
Council was to have the power to vote on each proposed zoning change.
Indeed, before the district court, the City objected to the creation
of a separate "Implementation Office" to assist developers, arguing
that this function should be carried out not by the City Council but
by the City's planning department.  The district court ordered the
creation of a separate office, and neither the City nor the
petitioners sought further review of that ruling.

   /35/ Under state law, petitioners, as members of the Yonkers City
Council, are "officers" of the City of Yonkers.  See N.Y. Pub. Off.
Law Section 2 (McKinney 1952).

   /36/ The Court allowed suit against the same defendants in their
enforcement capacities.  See note 45, infra.

   /37/ In United States v. Gillock, 445 U.S. 360, 373 (1980), the
Court therefore held that state legislators may not invoke the
doctrine of legislative immunity to claim an evidentiary privilege in
a criminal prosecution.  See also O'Shea v. Littleton, 414 U.S. 488,
503 (1974) ("the judicially fashioned doctrine of official immunity
does not reach 'so far as to immunize criminal conduct proscribed by
an Act of Congress * * *'" (quoting Gravel v. United States, 408 U.S.
606, 627 (1972)).

   /38/ Although this Court has not resolved the question, see Lake
Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391,
404 n.26 (1979), the courts of appeals have agreed that local
legislators -- like their state counterparts -- are immune from
private actions brought under Section 1983 that challenge their
legislative decisions.  See Aitchison v. Raffiani, 708 F.2d 96, 98-100
(3d Cir. 1983);  Reed v. Village of Shorewood, 704 F.2d 943, 9520953
(7th Cir. 1983);  Espanola Way Corp. v. Meyerson, 690 F.2d 827, 829
(11th Cir. 1982), cert. denied, 460 U.S. 1039 (1983);  Kuzinich v.
County of Santa Clara, 689 F.2d 1345, 1349-1350 (9th Cir. 1982);
Hernandez v. City of Lafayette, 643 F.2d 1188, 1193-1194 (5th Cir.
1981), cert. denied, 455 U.S. 907 (1982);  Bruce v. Riddle, 631 F.2d
272, 274-279 (4th Cir. 1980);  Gorman Towers v. Bogoslavsky, 626 F.2d
607, 611-614 *8th Cir. 1980).  The Second Circuit assumed correctness
of those decisions (Pet. App. 25a), but recognized that such immunity
could not relieve petitioners of their obligation to comply with
federal court orders remedying violations of federal law, at least
where the City Council itself had approved the Consent Decree that
required them to enact the remedial legislation (id. at 25a-28a).

   This case does not present the question whether local legislators
are immune from liability under 42 U.S.C. 1983 or the Fair Housing
Act.  For that reason, and because the Second Circuit assumed that
petitioners were entitled to the same immunity available to state
legislators, this case does not present an occasion for the Court to
decide the issue left unresolved in Lake Country Estates.

   Significantly, all of the decisions cited above involved local
legislators' immunity from actions for damages under Section 1983, and
did not address the question of their immunity from actions for
injunctive relief.  As discussed at pp. 30-32, infra, in light of this
Court's decisions approving the issuance of court orders to compel
legislative action where necessary to execute federal court judgments,
it is apparent that local legislators are not immune from injunctive
relief in all circumstances.  Correspondingly, we submit, they must
also be subject to the courts' inherent contempt powers to enforce
that relief.

   /39/ In Amy v. The Supervisors, 78 U.S. (11 Wall.) at 138, the
Court observed:

         The rule is well settled, that where the law requires
      absolutely a ministerial act to be done by a public officer, and
      he neglects or refuses to do such act, he may be compelled to
      respond in damages to the extent of the injury arising from his
      conduct.  There is an unbroken current of authorities to this
      effect.

   /40/ Accord Rees v. City of Watertown, 86 U.S. (19 Wall.) 107
(1873);  Riggs v. Johnson County, 73 U.S. (6 Wall.) 166 (1867);  City
of Galena v. Amy, 72 U.S. (5 Wall.) 705 (1866);  Von Hoffman v. City
of Quincy, 71 U.S. (4 Wall.) 535 (1866);  Supervisors v. United
States, 71 U.S. (4 Wall.) 435 (1866);  Board of Commissioners v.
Aspinwall, 65 U.S. (24 How.) 376 (1860).

   /41/ For lower court adjudications of contempt, see, e.g., In re
Copenhaver, 54 F. 660, 668 (C.C.W.D. Mo. 1893) (justices of county
court acting as legislative body);  United States v. Green, 53 F. 769,
772 (C.C.W.D. Mo. 1892) (city aldermen);  The President ex rel. Moran
v. Mayor, 40 F. 799, 805 (C.C.D.N.J. 1889) (city council members);
United States ex rel. Thompson v. Lee County, 26 F. Cas. 911, 914
(C.C.N.D. Ill. 1869) (No. 15,589) (county board of supervisors).  See
also United States ex rel. Jones v. City of West Palm Beach, 94 F.2d
320, 321-322 (5th Cir. 1938);  United States ex rel. Watts v. Justices
of Lauderdale County, 10 F. 460, 461-462 (C.C.W.D. Tenn. 1882);
United States ex rel. Huidekoper v. Buchanan County, 24 F. Cas. 1288,
1289 (C.C.W.D. Mo. 1878) (No. 14,679).

   State courts have also followed the common law practice of not
extending to local legislators an immunity from actions to enforce
compliance with court orders.  See, e.g., State ex rel. Baumann v.
Judge, 38 La. Ann. 43, 44-45 (1886) (members of city council held in
contempt);  State ex rel. Edwards v. District Court, 41 Mont. 369,
373-377, 109 P. 434, 436-437 (1910) (city aldermen held in contempt);
People ex rel. Pierce v. Guggenheimer, 44 App. Div. 399, 400, 60
N.Y.S. 703, 705 (1899) (members of city council held in contempt).

   /42/ In Westfall, 108 S. Ct. at 584, this Court recognized:

         When an official's conduct is not the product of independent
      judgment, the threat of liability cannot detrimentally inhibit
      that conduct.  * * * Because it would not further effective
      governance, absolute immunity for nondiscretionary functions
      finds no support in the traditional justification for official
      immunity.

   /43/ Cf. Bush v. Orleans Parish School Bd., 191 F. Supp. 871 (E.D.
La.), aff'd sub nom. Denny v. Bush, 367 U.S. 908 (1961) (state
legislature enjoined from obstructing local school desegregation
orders).

   In an earlier decision, the three-judge court in Bush had
disclaimed an intention to enjoin the state legislature in its
performance of any legislative function.  See Bush v. Orleans Parish
School Bd., 188 F. Supp. 916, 922 (E.D. La. 1960).  In the later
decision cited above, however, the court determined that the
legislature's enactment of statutes designed to interfere with the
desegregation of the Orleans Parish Schools was a plain violation of
the court's orders.  191 F. Supp. at 873.  Accordingly, the court
ultimately enjoined the legislature from seeking to enforce those
statutes "and from otherwise interfering in any way with the
operations of the public schools * * * pursuant to the orders of this
court." Id. at 879.

   /44/ Indeed, the Yonkers City Council not only exercises all
legislative authority on behalf of the City (see Charter of the City
of Yonkers art. III, Section C3-1.A (1966) (Pet. App. 209a));  it also
exercises considerable executive authority, including the power to
appoint the City Manager, "the chief executive and administrative
officer of the city." Id. art. IV, Section C4-1.  The City Manager
remains in office at the pleasure of the City Council and "may be
removed, in the absolute discretion of the Council, by (an
appropriate) resolution." Id. art. IV, Section C4-2;  see also J.A.
521-522.  This concentration of governmental authority in the City
Council highlights the dangers to government under law of extending to
local legislators an immunity from complying with federal court
decrees.

   /45/ Indeed, rather than seeking an injunction requiring the
Supreme Court of Virginia to amend the state bar code, the plaintiffs
sought a declaratory judgment and an injunction barring enforcement of
the code's advertising provisions.  See 446 U.S. at 726.  And this
Court upheld that relief against the Supreme Court of Virginia in its
enforcement capacity.  Id. at 736.  In analyzing applications of
legislative immunity, this Court has paid careful attention to the
availability of other means of correcting or deterring illegal
official conduct.  See, e.g., United States v. Gillock, 445 U.S. at
372-373 (criminal sanctions available);  O'Shea v. Littleton, 414 U.S.
at 503 (criminal sanctions available);  Powell v. McCormack, 395 U.S.
486, 503-506 (1969) (relief available against congressional
employees).

   /46/ As this Court recognized in Brown II, 349 U.S. at 301,
dismantling entrenched systems of segregation and discrimination may
require "revision of local laws and regulations." Thus, legislative
actions by boards of education, city councils, and other local
legislative bodies are often essential aspects of the remedy in civil
rights cases.  In school desegregation cases, courts have required
school boards to formulate, adopt, and implement desegregation plans.
See, e.g., Columbus Bd. of Educ. v. Penick, 443 U.S. 449, 453-455
(1979);  Green v. County School Bd., 391 U.S. 430, 442 (1968).  In
actions brought under the Fair Housing Act, courts have ordered local
legislatures to take a variety of legislative actions.  See, e.g.,
United States v. City of Parma, 661 F.2d 562, 577 (6th Cir. 1981)
(upholding order requiring city to enact welcoming ordinance), cert.
denied, 456 U.S. 926 (1982);  Lac Vieux Desert Band of Lake Superior
Indians v. Waterssmeet Township, No. M82-161 CA (W.D. Mich. Sept. 2,
1987), slip op. 4 (remedial order enjoins township from levying taxes
on Indian housing project);  see United States v. Town of Cicero,
Illinois, No. 83 C 413 (N.D. Ill. May 15, 1986), slip op. 6 & App. A
(consent decree requires town to enact specific Fair Housing
Resolution).  And in actions brought under the Voting Rights Act of
1965, 42 U.S.C. 1973 et seq., courts have directed legislative bodies
to formulate and adopt election plans in accordance with the
requirements of the Constitution and the statute.  See, e.g., United
States v. Onslow County, 683 F. Supp. 1021 (E.D.N.C. 1988)
(three-judge court);  Clark v. Marengo County, 623 F. Supp. 33 (S.D.
Ala. 1985), aff'd, 811 F.2d 609 (11th Cir. 1987);  Jordan v. City of
Greenwood, 599 F. Supp. 397 (N.D. Miss. 1984).

   /47/ Indeed, in holding that the common law immunity available to
state legislators does not extend as far as the immunity enjoyed by
federal legislators under the Speech or Debate Clause, this Court
contrasted Bond v. Floyd with Powell v. McCormack, supra, which held
that the Speech or Debate Clause barred a similar action against
members of Congress.  Gillock, 445 U.S. at 370 n.9.

   /48/ Petitioners' substantive challenges to the Consent Decree were
not raised in the court of appeals and are therefore not preserved.
E.g., United States v. Lovasco, 431 U.S. 783, 788 n.7 (1977);  Adickes
v. S.H. Kress & Co., 398 U.S. 144, 147 n.2 (1970).  In any event,
those claims are meritless.

   Petitioner Chema contends (Chema Br. 40-42) that the Consent Decree
was not consensual.  That assertion is wrong.  See pp. 10-11, supra.
The City was under threat of contempt in January 1988, not for its
failure to enter into a consent decree but rather for its refusal to
comply with the Housing Remedy Order, specifically its failure to
submit a current HAP to HUD.  Rather than undermining the validity of
the Consent Decree, as petitioner Chema would suppose, the need for
that threat of contempt simply highlights the longevity and extent of
the City's contumacious behavior and the ultimate necessity for the
sanctions at issue here.  Moreover, the only action possibly spurred
by the threat of contempt was the passage of the HAP.  Before the
parties agreed to the terms of the Consent Decree, a majority of the
City Council had already agreed to vote to approve the HAP, thus
removing potential contempt sanctions.  And on January 25, 1988, when
the parties informed the court that they had reached an agreement, the
court stated that if there had been no agreement, it would have
entered an order designating six public housing sites.  The court did
not state that it would have held the City in contempt if agreement
had not been reached, or that it would have taken any action at that
time with respect to the Long Term Plan.  Two days later, the City
Council approved the Consent Decree.

   Petitioner Spallone contends (Spallone Br. 40) that "the integrity
of the consent decree and the propriety of the proposed legislation"
should be questioned.  That claim is groundless.  Spallone apparently
bases his argument on the court of appeals' decision requiring the
parties to seek an alternative to the Seminary property as a site for
public housing.  See Yonkers Racing Corp. v. City of Yonkers, 858 F.2d
855, 872-873 (2d Cir. 1988), cert. denied, 109 S. Ct. 1527 (1989).  In
that decision, however, the court of appeals upheld the removal of
state court proceedings to federal court "to adequately protect the
integrity of the Consent Decree" (858 F.2d at 865), and approved the
City's condemnation of another site under that Decree (id. at 865-868,
873).  The court of appeals did not question the integrity of the
Consent Decree and did not even address the propriety of the proposed
legislation at issue here.  Far from undermining the validity of the
Consent Decree, the court of appeals commended "(t)he patience
exhibited by the district court under enormously trying circumstances"
and urged the implementation of the Housing Remedy Order "as quickly,
and hopefully as smoothly, as possible" (id. at 872, 873).  In fact,
on remand from Yonkers Racing Corp., the district court designated a
substitute site for the Seminary property.  See J.A. 615-619.  The
court of appeals recently has affirmed that ruling.  See United States
v. Yonkers Bd. of Educ., No. 89-6050 (2d Cir. Apr. 17, 1989).

   /49/ Petitioners here represent a voting majority of the Yonkers
City Council.  For discussion of the Council's powers, see note 44,
supra.

   /50/ Only two federal court decisions have been found suggesting
that the First Amendment has any application to a legislator's act of
voting.  In Wrzeski v. City of Madison, 558 F. Supp. 664 (W.D. Wis.
1983), the district court granted a preliminary injunction against
enforcement of a city council ordinance requiring each member to vote
"aye" or "no" on every resolution (or face censure or fines).  In
concluding that the plaintiff council member had "a reasonable
likelihood of success on the merits of her free speech claim," the
court emphasized that under the council's procedures, a vote of "no"
was functionally indistinguishable from an abstention, and thus no
discernible purpose was served by requiring a "no" vote instead of an
abstention (id. at 668-669).  We do not agree with the Wrzeski
rationale, but in any event the present case is clearly different:
here, a "no" vote by a Council member constitutes official defiance of
a federal court order based on the Council's own consent to the entry
of a decree.  Thus the purpose of subjecting a "no" vote to the
sanction of contempt in this case is manifest.

   In Clarke v. United States, 705 F. Supp. 605 (D.D.C. 1988), appeal
pending, No. 88-5439 (D.C. Cir.) (argued Apr. 20, 1989), the district
court held that the "Armstrong Amendment" (Tit. I, Section 145 of the
District of Columbia Appropriations Act, 1989, Pub. L. No. 100-462,
102 Stat. 2269), which conditioned the appropriation of funds to the
District of Columbia on the District of Columbia City Council's
modification of one of its laws, placed "an unjustified burden on the
first amendment rights" of the City Council members (705 F. Supp. at
613).  We disagree strongly with this opinion, and have challenged
that judgment on appeal on a number of grounds.  But the case, once
again, is very different;  indeed, the district court in Clarke itself
distinguished the present case on the basis of the "compelling and
public interest in obtaining compliance with federal court orders"
(705 F. Supp. at 610), as well as the existence of "the Council's own
prior agreement to a consent decree" (id. at 610 n.6).

   /51/ The inapplicability of the First Amendment to the situation at
issue here -- the imposition of civil contempt sanctions for Council
members' obstructing the City's compliance with federal court orders
-- is perhaps best suggested by petitioner Chema's internally
contradictory contentions that the district court's orders amount to
both "compelled speech" (Chema Br. 35) and a "prior restraint" (Chema
Br. 36), and by his syllogistic statement that "(h)is vote in the
legislature was speech protected by the First Amendment because it was
a voice vote" (Chema Br. 18).

   /52/ Indeed, the complete statement in Anderson v. Dunn, a case
involving the imposition of sanctions for contempt of Congress, makes
clear that the principle enunciated in Shillitani does not limit a
court's power to choose contempt as a method of enforcement, but only
governs the severity and duration of sanctions imposed for contempt:

         The present question is, what is the extent of the punishing
      power which the deliberative assemblies of the Union may assume
      and exercise on the principle of self-preservation?

         Analogy, and the nature of the case, furnish the answer --
      "the least possible power adequate to the end proposed;" which
      is the power of imprisonment.  It may, at first view, and from
      the history of the practice of our legislative bodies, be
      thought to extend to other inflictions.  But every other will be
      found to be mere commutation for confinement;  since commitment
      alone is the alternative where the individual proves
      contumacious.  And even to the duration of imprisonment a period
      is imposed by the nature of things, since the existence of the
      power that imprisons is indispensable to its continuance;  and
      although the legislative power continues perpetual, the
      legislative body ceases to exist on the moment of its
      adjournment or periodical dissolution.  It follows, that
      imprisonment must terminate with that adjournment.

Anderson v. Dunn, 19 U.S. (6 Wheat.) at 230-231.

   /53/ Compare Supervisors v. Rogers, 74 U.S. (7 Wall.) 175 (1868)
(approving appointment of a federal marshal to levy and collect taxes
to satisfy a judgment, where state law specifically authorized such
appointment as an alternative to contempt), with Yost v. Dallas
County, 236 U.S. 50, 57 (1915) (disapproving lower court's effort to
levy tax, where state law did not so authorize).

   /54/ In United States v. Paradise, 480 U.S. 149, 174-177 (1987),
the plurality opinion concluded that the lower court's determination
to impose race conscious relief was "plainly justified," and rejected
a suggestion, which had not been made to the district court, that
fines should have been imposed instead.  The plurality opinion did not
rule that the imposition of fines would have been improper, but rather
that it would not have been sufficient under the circumstances of that
case.  Ibid.

   Similarly, this Court has authorized federal courts to impose
remedial electoral reapportionment plans on state and local
jurisdictions "pending later legislative action" where local officials
have failed to act or an election is imminent.  Wise v. Lipscomb, 437
U.S. 535 (1978);  see also Reynolds v. Sims, 377 U.S. 533, 585-587
(1964).  Such judicial action is deemed "provisional * * * so as not
to usurp the primary responsibility for reapportionment which rests
with the legislature." Id. at 586.  However appropriate such
enforcement mechanisms may be in the circumstances of those cases,
they would not have been the best remedies for the City's defiance
here.  See pp. 44-47, infra.

   /55/ In retrospect, it appears that the sanction against the City
was the principal factor in securing compliance.  But it was far from
clear that this would be so at the time the district court entered the
July 26 Order and imposed contempt sanctions on petitioners.
Moreover, the imposition of sanctions against petitioners -- even
though subject to a stay on the date the Ordinance was finally adopted
-- may also have played a significant part in achieving compliance.

   /56/ Indeed, when it later became necessary to designate a
substitute public housing site, the City even refused to acknowledge
the court's authority to appoint a commission or to designate a site
itself.  See note 29, supra.  Accordingly, despite the City's
strenuous efforts to explain before this Court its "seemingly
inconsistent positions with respect to the Affordable Housing
Commission" (City of Yonkers Br. 14), the City apparently remains
unwilling or perhaps unable to acknowledge its obligation to implement
the district court's remedial orders.  Indeed, the City is still
incapable of taking a definitive position.  See, e.g., City of Yonkers
Br. 15 ("The City's position now is that the Commission remains a
possible solution to future problems.").