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

   CITY OF YONKERS, 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.

   No. 88-854

   No. 88-855

   No. 88-856

   No. 88-870

   In the Supreme Court of the United States

   October Term, 1988

   On Petitions For A Writ Of Certiorari To The United States Court Of
Appeals For The Second Circuit

   Brief For The United States In Opposition

            TABLE OF CONTENTS
   QUESTIONS PRESENTED
   Opinions below
   Jurisdiction
   Statement
   Argument
   Conclusion

                            OPINIONS BELOW

   The opinion of the court of appeals (Pet. App. 1a-35a) is reported
at 856 F.2d 445.  /1/ The pertinent orders and opinions of the
district court contained in petitioners' appendices are unreported:
order requiring compliance with consent decree, July 26, 1988 (Pet.
App. 160j-163j);  modification letter, July 28, 1988 (Pet. App. 159i);
 oral opinions finding petitioners City of Yonkers and members of the
Yonkers City Council in civil contempt, August 2 and 4, 1988 (Pet.
App. 98g-99g, 129h-132h, 143h-144h, 157h);  orders adjudicating
petitioners City of Yonkers and members of the Yonkers City Council in
civil contempt, August 2 and 5, 1988 (Pet. App. 72f-74f;  88-855 Pet.
App. 65a-67a;  88-870 Pet. App. 15a-18a).

                             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.  The jurisdiction of this Court is invoked under 28
U.S.C. 1254(1).

                          QUESTIONS PRESENTED

   1. Whether the doctrine of legislative immunity barred the
imposition of civil contempt sanctions against members of the Yonkers
City Council for refusing to enact legislation to remedy the City of
Yonkers' practice of racial discrimination in public and subsidized
housing, where the specific obligation to enact such legislation arose
from the consent decree earlier approved by the Yonkers City Council
and entered by the district court at the remedial stage of litigation
against the City of Yonkers.

   2. Whether the district court abused its discretion in imposing
civil contempt sanctions against members of the Yonkers City Council
as a proper remedy for the refusal of the City of Yonkers, acting
through the Yonkers City Council, to comply with the consent decree.

   3. Whether the First Amendment prohibited the district court from
imposing civil contempt sanctions against members of the Yonkers City
Council for refusing to enact legislation to remedy the City of
Yonkers' practice of racial discrimination in public and subsidized
housing, where the specific obligation to enact such legislation arose
from the consent decree earlier approved by the Yonkers City Council
and entered by the district court at the remedial stage of litigation
against the City of Yonkers.

   4. Whether the district court violated the Due Process Clause in
holding petitioner Peter Chema in contempt.

   5. Whether the City of Yonkers may be held in civil contempt when,
acting through the Yonkers City Council, the City refuses to comply
with the consent decree.

   6. Whether the district court's imposition of escalating fines for
the City of Yonkers' civil contempt violates the Excessive Fines
Clause.

                               STATEMENT

   1. After more than 90 days of trial in 1983 and 1984, the district
court issued an opinion on November 20, 1985, holding petitioner City
of Yonkers liable for a pattern and practice of intentional racial
discrimination in the selection of sites for public and subsidized
housing, in violation of the Equal Protection Clause of the Fourteenth
Amendment and Title VIII of the Civil Right Act of 1968 (Fair Housing
Act), 42 U.S.C. 3601 et seq. United States v. Yonkers Bd. of Educ.,
624 F. Supp. 1276, 1289-1376 (S.D.N.Y. 1985).  The court found that
the City of Yonkers had deliberately concentrated virtually all of its
public and subsidized housing in the southwest quadrant of Yonkers in
order 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.  /2/

   Following remedial proceedings, on May 28, 1986, the district court
entered its "Housing Remedy Order" that required the City of Yonkers
and the Yonkers City Council to take a number of actions designed to
facilitate the development of public and subsidized housing outside of
Southwest Yonkers.  United States v. Yonkers Bd. of Educ., 635 F.
Supp. 1577 (S.D.N.Y. 1986).  /3/ Part VI of the Order required the
City, by November 1986, 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 id. at 1582.  /4/ 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 for
the development of such housing, or to prescribe how such housing
should be provided.  Instead, the court left to the City both the
opportunity and the responsibility for proposing the substantive
aspects of the Plan.  Ibid.  The City, however, refused to submit any
proposal for the Long Term Plan (Pet. App. 6a-7a).  Indeed, the City
took "no significant action to comply with the 1986 Housing Remedy
Order" for the first year and a half after its entry (id. at 7a).  /5/

   The City appealed the district court's orders, although
implementation of the Housing Remedy Order was not stayed (Pet. App.
6a).  In a lengthy opinion, the court of appeals affirmed the district
court's 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, Nos. 87-1632 and 87-1686 (June 13, 1988).

   2. In January 1988, following the court of appeals' affirmance of
the district court's orders, the parties negotiated the "First
Remedial Consent Decree In Equity" (Consent Decree), which 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 (Pet. App. 178l-185l).  The Yonkers City Council approved the
Consent Decree on January 27, 1988.  The district court entered the
decree as a consent judgment on January 28, 1988.  Id. at 8a.

   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 (Pet. App. 182l-185l).  The Decree set a
goal of 800 units of assisted housing to be developed over four years
in conjunction with market rate housing developments (id. at
182l-183l), and committed the City to specific actions needed to
encourage private developers to build such housing (id. at 182l-184l).
 In Section 17, the City expressly agreed to adopt legislation
providing for development incentives such as zoning changes, tax
abatements, and density bonuses, within 90 days after entry of the
Decree (id. at 184l).  /6/ In Section 18, the parties acknowledged
that certain "subsidiary issues" relating to the Long Term Plan
remained unresolved and agreed to work toward their resolution in a
second consent decree by February 15, 1988 (id. at 184l-185l).

   Faced with intense public opposition to the Consent Decree, the
City sought to avoid compliance with it.  On March 21, 1988, the City
moved to modify the Decree.  The City even promised to return nearly
$30 million in federal funds if it were relieved of its duty to allow
the development of public housing in white neighborhoods, a request
that ignored the fact that the City had been found liable for
intentionally segregating public and subsidized housing (Pet. App.
9a).  The district court denied the City's motion on March 31, 1988.
As a result, the City 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.  /7/

   On June 13, 1988, the district court entered its Long Term Plan
Order that resolved the issues left open by the Consent Decree and
provided the detail for the legislation that Section 17 required.
That Order was based upon a draft prepared by the City's attorneys
before the City withdrew from negotiations.  The court entered the
order after the plaintiffs had submitted a joint motion and proposed
order, the City had submitted comments, and the court had held a
hearing.  The Order accommodated most of the City's objections to the
proposal (Pet. App. 9a-10a, 164k-177k).  /8/

   Yet the City continued its program of resistance.  On June 21,
nearly two months after the deadline set in the Consent Decree for the
City's enactment of legislation necessary to implement the Long Term
Plan (and more than two years after entry of the original Housing
Remedy Order), the district court asked the Yonkers City Council to
pass a resolution adopting the provisions of the Long Term Plan Order
(Pet. App. 10a).  /9/ The Council refused and on June 28 actually
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.  On July 11, the City
told the district court that it would not voluntarily comply with the
Consent Decree (although it had earlier approved that Decree) and, in
trying to shirk all of its responsibilities, suggested that the court
simply enact the Long Term Plan legislation itself (ibid.).

   3. On July 26, 1988, the district court entered an order, proposed
by the United States, that required the City, no later than August 1,
1988, to enact the legislation (known as the Affordable Housing
Ordinance) required by Section 17 of the Consent Decree, and as set
forth in the Long Term Plan Order (Pet. App. 160j-163j).  /10/ The
July 26 Order also scheduled a hearing for August 2, at which time the
City and individual members of the City Council who had 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.  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.  All contempt sanctions would end if and
when the City enacted the legislation.  Id. at 161j-162j.  /11/ By
letter dated July 28, in response to the City's concerns that state
law required notice and public hearing before the City Council voted
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 (id. at 12a, 159i).  All petitioners had notice of the court's
July 26 Order and its July 28 letter (id. at 18a).  /12/

   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.  Petitioners, City Council members Spallone, Longo,
Fagan, and Chema, voted against the resolution (Pet. App. 12a, 134h).
/13/ The district court therefore held show cause hearings on August 2
and 4 (id. at 115h-158h, 75g-99g).  Finding that their refusal to
comply with the Consent Decree was "but the latest of a series of
contempts" (id. at 130h), the district court adjudged the City and the
four Council members in civil contempt and imposed sanctions in
accordance with the July 26 Order.  /14/

   4. On August 9, the court of appeals stayed the contempt sanctions
pending appeals by the City and the individual Council members (Pet.
App. 68d-71e).  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 of appeals
made clear that "(f)or purposes of taking official governmental
action, the City of Yonkers is the City Council and vice versa" (id.
at 30a), and concluded that neither the City nor the Council members
could escape responsibility for their refusal to comply with the
Consent Decree that the City Council itself had approved (id. at 28a,
30a-31a).

   5. On September 1, this Court stayed the sanctions against the
Council members pending timely filing and disposition of petitions for
writs of certiorari, but denied the City's motion for a stay.
Spallone v. United States, Nos. A-172, A-173, A-174, and A-175 (Sept.
1, 1988) (Pet. App. 57c).  /15/ On September 9, with the City's
contempt sanctions approaching a fine of $1 million per day, the City
Council finally enacted the Affordable Housing Ordinance (Pet. App.
36b, 203o-205o).  /16/

                               ARGUMENT

   The City of Yonkers, having been held liable for intentionally
maintaining racially segregated public and subsidized housing,
voluntarily agreed to undertake steps to remedy those substantial
violations of the Equal Protection Clause and the Fair Housing Act.
That commitment, specifically approved by the Yonkers City Council,
was embodied in the Consent Decree entered by the district court after
all parties, including the City of Yonkers, agreed to the terms.
Reminiscent of the "fingerpointing" the Court saw earlier in this
litigation between the City of Yonkers and the Yonkers Board of
Education over the City's segregated schools, /17/ the City of Yonkers
here blames the Council for the protracted and wilful defiance of the
federal court's lawful orders, while the individual Council members
claim the privilege to renege on the commitment that the City of
Yonkers and the Yonkers City Council previously gave to the court.

   Both the district court and the court of appeals refused to
recognize such a vacuum of governmental responsibility in the face of
authoritative federal court orders designed to remedy racial
discrimination in housing.  The district court therefore imposed, and
the court of appeals upheld, civil contempt sanctions to coerce the
compliance that had long been overdue.  That compliance is finally
underway, the civil contempt sanctions have ended, and this litigation
should not be unduly prolonged.  The decisions below are correct.
They do not conflict with any decision of this Court or of any other
court of appeals.  Accordingly, review by this Court is not warranted.

   1. Contrary to petitioners' sweeping suggestions (e.g., 88-854 Pet.
14;  88-856 Pet. 7;  88-870 Pet. 10), this case does not present the
question whether the district court could have issued or enforced an
order requiring the City Council to enact legislation absent the
Council's consent.  The court imposed the contempt sanctions here only
to compel compliance with the Consent Decree that the City Council had
approved.  The district court's order of July 26 simply required the
City Council to honor a commitment it had already voluntarily
undertaken;  the narrow question presented is thus whether the
district court properly exercised its power to enforce compliance with
that order.  /18/

   Despite the City Council's express endorsement of the Consent
Decree, the Council member petitioners contend (88-854 Pet. 15-21;
88-856 Pet. 11-17;  88-870 Pet. 10-16) 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 flout the Council's commitment to the court.  In support
of this broad proposition, petitioners rely principally on this
Court's decisions holding state and regional legislators immune from
liability in private actions brought under 42 U.S.C. 1983 for acts
taken in their legislative capacities.  E.g., Supreme Court of
Virginia v. Consumers Union, 446 U.S. 719 (1980);  Lake Country
Estates, Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391 (1979);
Tenney v. Brandhove, 341 U.S. 367 (1951).  As the court of appeals
properly concluded, however, those decisions do not relieve the
Council members of their duty to comply "with a consent judgment to
which their city has agreed and which had been approved by their
legislative body" (Pet. App. 28a).  Since the context of the contempt
proceedings here is thus far removed from the circumstances in which
this Court has upheld claims of legislative immunity, application of
that doctrine to insulate petitioners' actions is unwarranted.  /19/

   This Court has made clear that "(t)he purpose of (legislative)
immunity is to insure that the legislative function may be performed
independently without fear of outside interference." Supreme Court of
Virginia v. Consumers Union, 446 U.S. at 731;  see United States v.
Gillock, 445 U.S. 360, 369-373 (1980).  That purpose is not implicated
where, as here, the City Council had already voluntarily approved the
Consent Decree.  In that Decree, the City Council had agreed to enact
legislation needed to implement the Long Term Plan.  The district
court's July 26 Order and the contempt sanctions that followed sought
only to require the recalcitrant City and the Council members to honor
that commitment.  As this Court has emphasized, "all individuals,
whatever their position in government, are subject to federal law."
Butz v. Economou, 438 U.S. 478, 506 (1978);  see Cooper v. Aaron, 358
U.S. 1, 17 (1958).  The City Council independently exercised its
legislative function on January 27, 1988, when it specifically
approved the Consent Decree.  The district court did not interfere
with that legislative decision by subsequently ordering the Council to
comply with the Decree when it failed to do so voluntarily.

   Moreover, the Court "has generally been quite sparing in its
recognition of claims to absolute official immunity * * * (and)
careful not to extend the scope of the protection further than its
purposes require." Forrester v. White, No. 86-761 (Jan. 12, 1988),
slip op. 5.  The Court has thus hesitated to apply the doctrine of
absolute immunity beyond the confines of Tenney, namely, "a civil
action brought by a private plaintiff to vindicate private rights."
United States v. Gillock, 445 U.S. at 372.  /20/ Here, in an action by
the United States to vindicate the public interest in eradicating
discrimination, the district court imposed contempt sanctions only to
coerce compliance with its orders, not to preserve private rights.
Any intrusion on the City Council's legislative process surely is
minimal when the Council has already agreed to take the action
required by the court.  Moreover, the compelling public interest in
the enforcement of federal court orders to remedy racial
discrimination certainly outweighs any slight interference with the
routine workings of the Council.  See United States v. Nixon, 418 U.S.
683, 707, 708 (1974) (claims of absolute immunity and privilege must
be balanced against "the role of the courts under Art. III" and "must
be considered in light of our historic commitment to the rule of
law");  United States v. United Mine Workers, 330 U.S. 258, 303 (1947)
("The interests of orderly government demand that respect and
compliance be given to orders issued by courts * * *.").

   At bottom, the Council member petitioners claim a privilege, under
the guise of legislative immunity, to choose whether to comply with a
federal court order that the City Council itself had earlier approved.
 This claim far exceeds the bounds of the doctrine of legislative
immunity recognized by this Court, a doctrine that seeks to promote
independent and effective decisionmaking by legislators.  That
rationale for immunity cannot properly be extended to allow open
defiance of a federal court decree, where the legislature has already
consented to the entry of that decree as an appropriate remedy for
discrimination.  /21/

   2. Petitioners Spallone and Chema contend (88-854 Pet. 21;  88-856
Pet. 9-11) that the district court erred in imposing civil contempt
sanctions to require them to comply with the Consent Decree.  In their
view, the district court should have either enacted the legislation
itself or appointed a commission to do so.  /22/ A federal court has
"inherent power to force compliance with (its) lawful orders through
civil contempt." Shillitani v. United States, 384 U.S. 364, 370
(1966);  see Hutto v. Finney, 437 U.S. 678, 691 (1978) ("a financial
penalty may be the most effective means of insuring compliance").
While having alternative means of enforcement (see e.g., Fed. R. Civ.
p. 70), a district court may exercise 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. 1, 15 (1971) (courts have
broad discretion in designing remedies for constitutional violations).

   Moreover, as the court of appeals acknowledged (Pet. App. 20a-21a),
in imposing contempt sanctions a court must use "'(t)he least possible
power adequate to the end proposed.'" Shillitani v. United States, 384
U.S. at 371 (citations omitted).  /23/ Here, the "end proposed" was
the City Council's enactment of legislation, a step the City had
expressly agreed to in the Consent Decree.  Under the circumstances,
either the court's enactment of the legislation itself, 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 Pet. App. 64c (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.").
 And enactment by the court or by an independent commission would not
have achieved the essential goal of forcing the City to "recognize its
obligation to conform to the laws of the land" by complying with the
court's order (Pet. App. 121h).  Accordingly, the district court did
not abuse its discretion in imposing civil contempt sanctions.

   3. Petitioner Chema contends (88-856 Pet. 17-20) that the district
court violated his First Amendment right to free speech in ordering
him to vote for the legislation, which the Council had earlier
approved, and sanctioning him for his refusal to do so.  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 constitutional principles in resolving individual legislators'
challenges to constraints on their activities.  See, e.g., Lake
Country Estates, Inc. v. Tahoe Regional Planning Agency, 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 (1951) (Speech or Debate Clause and doctrine of
legislative immunity);  Kilbourn v. Thompson, 103 U.S. 168 (1880)
(separation of powers principle).  To the extent that the First
Amendment could even apply to a legislator's act of voting in his
official capacity, petitioner Chema could not claim such protection
here, where the legislative body to which he belongs, the City
Council, had already committed itself to enact the legislation under
the terms of the Consent Decree.  /24/ As the court of appeals
recognized, whatever freedom individual Council members may have to
express their views, that freedom "does not permit them to take action
in violation of (the) law" (Pet. App. 28a).  If petitioner Chema could
not reconcile his obligation as a city official with his individual
views, his recourse was to resign, not to defy the law.

   4. Petitioner Chema also asserts (88-856 Pet. 25-26) that the
district court violated the Due Process Clause in holding him in
contempt.  The district court's July 26 Order, as modified by the July
28 letter, clearly explained Chema's duty to honor the commitment to
enact legislation as required by the Consent Decree, notified Chema
that the court would require him to show cause why he should not be
held in contempt should he refuse to honor that commitment, and set
forth the contempt sanctions to be imposed.  See Pet. App. 160j-163j,
159i.  At the August 2 hearing, Chema admitted to the district court
that he had received notice of the July 26 Order and that he had voted
against the legislation (id. at 157h).  Thus, there was no need for
the government to prove those stipulated facts, and the district court
needed no additional facts in order to find Chema in contempt.  See
McComb v. Jacksonville Paper Co., 336 U.S. 187, 191 (1949).  Chema
also appeared with his attorney at the August 2 show cause hearing and
the district court gave him the opportunity to request an additional
evidentiary hearing (Pet. App. 156h-157h);  Chema made no such request
(id. at 19a).  /25/ Accordingly, the court of appeals correctly
concluded (id. at 17a-19a) that the district court's procedures in
holding Chema in contempt were consistent with the Due Process Clause.

   5. Petitioner City of Yonkers contends (88-855 Pet. 9-13) that the
district court erred in imposing civil contempt sanctions against the
City to coerce its compliance with the court's orders since only the
City Council had the power to enact the legislation.  The district
court and the court of appeals correctly rejected this argument, which
neither law nor common sense supports.  Like all municipal
corporations, the City of Yonkers functions through its governing
bodies, and the official actions of the governing bodies constitute
actions of the City.  See Pembaur v. City of Cincinnati, 475 U.S. 469,
481 (1986).  /26/ Indeed, the responsibility of any corporation for
the actions of its governing body is a fundamental tenet of our
jurisprudence.  Such entities are not exempt from legal accountability
because they can act only through their representatives.

   Moreover, the record belies the City's contention (88-855 Pet. 11)
that it was unable to comply with the court's orders.  The City
Council did enact the legislation when the coercive effect of the
fines against the City alone (that is, while the imposition of fines
against the Council members had been stayed by this Court) became too
strong to withstand.  In short, the contempt adjudication against the
City accomplished the limited goal the district court intended, by
making continued refusals to comply with the court's orders an
unacceptably costly course of action for the City to follow.

   6. Finally, the City contends (88-855 Pet. 13-22) that the district
court's imposition of escalating fines for the City's civil contempt
violates the Excessive Fines Clause of the Eighth Amendment.  This
Court has stated that the Eighth Amendment was designed to apply to
the "criminal-law function of government," Ingraham v. Wright, 430
U.S. 651, 664 (1977), and has ruled that the Amendment does not
prohibit "the exercise of the traditional remedy of contempt to secure
compliance (with court orders)," Uphaus v. Wyman, 360 U.S. 72, 82
(1959) (coercive imprisonment did not violate the Cruel and Unusual
Punishment Clause).  Although the Court has granted certiorari to
consider whether the Excessive Fines Clause applies to awards of
punitive damages in civil cases, Browning-Ferris Indus. v. Kelco
Disposal, Inc., No. 88-556 (Dec. 5, 1988), such an extension of the
Eighth Amendment would not reach civil contempt sanctions.  Unlike
punitive damage awards, the City's contempt fines were imposed not to
punish, but, as in Uphaus, to coerce compliance with the court's
orders (Pet. App. 32a-34a).  The City thus could avoid its burden at
any time simply by complying.  Indeed, the City did comply without
having the fines reach the outer limit of $1 million per day.  /27/

   In any event, even were the Excessive Fines Clause applied here,
the City's payment of roughly $820,000 in contempt fines would fall
within constitutional bounds.  The Eighth Amendment requires that
criminal penalties be proportionate to the crime committed;  and in
determining proportionality, the sentencing court considers the
gravity of the offense and the harshness of the penalty, and compares
sentences imposed in cases in the same and other jurisdictions.  Solem
v. Helm, 463 U.S. 277, 284-292 (1983).  /28/ And in reviewing
sentences, the appellate court must give deference to the discretion
of the trial court.  Id. at 290.  Such standards are similar to those
governing the propriety of civil contempt sanctions.  See United
States v. United Mine Workers, 330 U.S. at 304 (in exercising its
discretion, district court "must * * * consider the character and
magnitude of the harm threatened by continued contumacy, and the
probable effectiveness of any suggested sanction in bringing about the
result desired" (footnote omitted)).

   The court of appeals here measured the fines the City potentially
faced against the standards outlined above, taking into account the
level of fines imposed in other cases, /29/ the City's annual budget
of $337 million, and the City's willingness to refund nearly $30
million in federal funds in order to avoid its obligations under
another part of the Consent Decree.  The court of appeals concluded
that the fines imposed by the district court were necessary to compel
compliance and excessive only to the extent that they would continue
to double beyond $1 million per day.  Pet. App. 33a-34a.  Accordingly,
the court of appeals correctly held that the imposition of escalating
fines for the City's civil contempt (which actually reached $820,000)
was not excessive.  That holding does not warrant further review by
this Court and the petition should not be held pending the resolution
of Browning-Ferris Indus.

                              CONCLUSION

   The petitions for a writ of certiorari should be denied.

   Respectfully submitted.

   WILLIAM C. BRYSON

      Acting Solicitor General

   JAMES P. TURNER

      Acting Assistant Attorney General

   DAVID K. FLYNN

   LINDA F. THOME

      Attorneys

   FEBRUARY 1989

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

   /2/ 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).

   /3/ As petitioner City of Yonkers acknowledges, the Yonkers City
Council is the City's governing authority (88-855 Pet. 5 n.3).  Unless
the context otherwise requires, we will therefore refer collectively
to the City of Yonkers and the Yonkers City Council as the City.

   /4/ Part IV of the Housing Remedy Order required the City to
designate sites for 200 units of public housing in East Yonkers.  635
F. Supp. at 1580-1581.

   /5/ The City's recalcitrance was not limited to the Long Term Plan.
 The City also refused to designate public housing sites, as required
by Part IV of the Housing Remedy Order (Pet. App. 5a-6a).  In December
1986, after the City had refused to submit a Long Term Plan proposal,
the United States moved to have the City held in contempt.  The
Yonkers Branch of the National Association for the Advancement of
Colored People, representing the class plaintiffs, meanwhile moved for
the appointment of a special master to carry out the City's
responsibilities under the Housing Remedy Order.  The district court
permitted the City to avoid contempt sanctions only after the City
agreed to hire an Outside Housing Advisor to assist it in carrying out
the Housing Remedy Order.  Nonetheless, throughout 1987, the City
continued to frustrate the court's and the plaintiffs' efforts to
implement that Order.  Id. at 7a.  In fact, as the history of this
litigation shows, the City acted constructively only when threatened
with contempt.  See, e.g., United States v. Yonkers Bd. of Educ., 662
F. Supp. 1575 (S.D.N.Y. 1987) (88-856 Pet. App. 1j-23j) (City Council
took steps to advance its own remedy plan only after court threatened
contempt and fines);  United States v. Yonkers Bd. of Educ., 675 F.
Supp. 1407, 1410 (S.D.N.Y. 1987) ("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.");  United
States v. Yonkers Bd. of Educ., 675 F. Supp. 1413, 1414 (S.D.N.Y.
1987) ("(T)he 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.").

   /6/ The Consent Decree specifically provided (Pet. App. 182l) that

         (t)here 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 (id. at 183l).

   /7/ Undaunted by the district court's order, the City, on May 2,
1988, moved to vacate the Consent 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.  The district court denied the motion.
The City sought no further review of that ruling.  See Yonkers Racing
Corp. v. City of Yonkers, 858 F.2d 855, 859-861 (2d Cir. 1988) (88-856
Pet. App. 7k-9k, 12k n. 1), petition for cert. pending No. 88-1029.

   /8/ The City challenged in the court of appeals 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.

   /9/ The court's request was not merely the result of the City's
default in its Long Term Plan obligations under the Consent Decree.
On June 14, 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 (No. 87-1686 (June 13,
1988)), 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.
Pet. App. 10a.

   /10/ Consultants retained by the City had drafted the Affordable
Housing Ordinance, based upon the terms of the Consent Decree and the
Long Term Plan Order (Pet. App. 11a).

   /11/ All fines would be paid into the Treasury of the United States
and would not be refundable (Pet. App. 162j).

   /12/ Before entering the July 26 Order, the district court had
considered but rejected a proposal to create an "Affordable Housing
Commission" to take over the City Council's powers and
responsibilities under the court's various remedial orders.  The City,
speaking as usual on behalf of the City Council, opposed creation of
the Commission on the ground that it would have divested the Council
of its "core legislative as well as executive functions" (Pet. App.
11a;  City of Yonkers Comments With Regard To The Proposed Yonkers
Affordable Commission 2 (July 25, 1988)).  The United States also
opposed the proposal, arguing that the City itself should be required
to comply with its obligations and be held accountable for its failure
to do so.  See Comments of the United States 4-6 (July 22, 1988).

   /13/ 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 vote of four to three.  Pet. App. 13a,
16a-17a.

   /14/ In response to the Council members' contentions that they had
an inadequate time to prepare for the hearing, the court allowed each
of them until August 5 to request an evidentiary hearing, a hearing
that 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.  Pet. App. 155h-156h.

   /15/ Justice Marshall, joined by Justice Brennan, dissented from
the Court's stay of the sanctions against the Council members (Pet.
App. 57c-67c).

   /16/ 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.

   /17/ See U.S. Br. in Opp. 7-8, Yonkers Bd. of Educ. v. United
States, Nos. 87-1632 and 87-1686.

   /18/ Indeed, throughout the remedial process, the district court
gave the City and City Council every opportunity to design the Long
Term Plan itself.  Under the Housing Remedy Order, the City was to
submit a proposed plan;  the City refused to do so.  Under the Consent
Decree, the City was to continue negotiations to resolve certain
subsidiary issues relating to the Long Term Plan;  the City refused to
do so.  Finally, the Long Term Plan Order entered by the district
court was based upon a draft prepared by the City and was revised
after the City's comments in order to accommodate most of its
objections.  Under such circumstances, petitioners' suggestions (e.g.,
88-854 Pet. 9-12) that the district court's orders were an excessive
use of judicial power are groundless.

   /19/ In Tenney v. Brandhove, 341 U.S. 367, 379 (1951), for example,
the Court held "only that (where) the individual defendants and the
legislative committee were acting in a field where legislators
traditionally have power to act, * * * (42 U.S.C. 1983) does not
create civil liability for such conduct."

   Petitioners Spallone and Chema (88-854 Pet. 15;  88-856 Pet. 8)
mistakenly suggest that the court of appeals' decision conflicts with
those decisions holding that the doctrine of legislative immunity
applies to local legislators.  Although this Court has not resolved
the question, 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 are immune from private actions brought
under 42 U.S.C. 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, 952-953 (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, Inc. v. Bogoslavsky, 626 F.2d 607, 611-614 (8th Cir.
1980).  The court of appeals here assumed the correctness of those
decisions (Pet. App. 25a), but recognized that this case presented a
different question, namely, "whether * * * an order (requiring the
enactment of legislation) may be entered and enforced by contempt
sanctions after a city has agreed to entry of a consent judgment
committing itself to enact implementing ordinances and a city's
legislative body has voted in favor of such a consent decree" (id. at
27a);  see also id. at 66c (Marshall, J., dissenting from grant of
stay).  Accordingly, this case is not the proper vehicle for
addressing the issue left unresolved in Lake Country Estates -- an
issue that has not divided the courts of appeals -- or broader issues
of the proper scope of legislative immunity from actions for
injunctive relief.  See Supreme Court of Virginia v. Consumers Union,
446 U.S. 719, 731-734 (1980);  Griffin v. County School Bd., 377 U.S.
218, 233 (1964) ("(T)he District Court may, if necessary to prevent
further racial discrimination, require (county legislators) to
exercise the power that is theirs to levy taxes to raise funds
adequate to reopen, operate, and maintain without racial
discrimination a public school system * * *.").

   /20/ For example, "the judicially fashioned doctrine of official
immunity does not reach 'so far as to immunize criminal conduct
proscribed by an Act of Congress * * *'." O'Shea v. Littleton, 414
U.S. 488, 503 (1974) (quoting Gravel v. United States, 408 U.S. 606,
627 (1972)).

   /21/ Petitioners Spallone and Chema also contend (88-854 Pet.
18-21;  88-856 Pet. 20-23) that they are not bound by the Consent
Decree because they voted against it.  As officers of the City of
Yonkers (see N.Y. Pub. Off. Law Section 2 (McKinney 1952)), individual
Council members are bound by the Consent Decree, whether they
personally agreed to it or not.  Fed. R. Civ. P. 65(d);  see Regal
Knitwear Co. v. NLRB, 324 U.S. 9, 13-14 (1945).  As the court of
appeals stated, if a Council member is unwilling to abide by the
decree, "his option is to decline to serve on the body that is bound,
not to act in defiant disregard of the commitments and the federal
court judgment that memorializes them" (Pet. App. 28a).

   The Council member petitioners, not joined by the City, attack the
Consent Decree itself as the source of their obligation to adhere to
the district court's orders.  Petitioners did not raise those
arguments before the court of appeals, and they have therefore not
preserved those issues 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, each of these belately raised
points is without merit and calls for no further review.

   Contrary to the contentions of petitioners Chema, Longo, and Fagan
(88-856 Pet. 4, 23-25;  88-870 Pet. 13), nothing in the Affordable
Housing Ordinance contradicts the Consent Decree's proviso requiring
only zoning changes that "are not substantially inconsistent with the
character of the area" (Pet. App. 184l).  Indeed, Article V of the
Ordinance expressly requires that "the provisions of the underlying
zoning * * * (and) the impact of development on surrounding land uses
and neighborhoods" be taken into account before allowing "(d)epartures
from (existing) zoning regulations" (Pet. App. 229r).

   Citing Yonkers Racing Corp. v. City of Yonkers, 858 F.2d 855 (2d
Cir. 1988) (88-856 Pet. App. 1k-43k), petition for cert. pending, No.
88-1029, petitioner Spallone contends that "changed circumstances
questioning the integrity of the Consent Decree and the propriety of
the proposed legislation" justified his refusal to comply with the
Decree (88-854 Pet. 21-22).  Yonkers Racing Corp. involved challenges
by two property owners (Yonkers Racing Corp. and St. Joseph's Seminary
and College) to the City's condemnation of their land for use as
public housing sites under the Consent Decree.  After examining the
circumstances surrounding the adoption of the Decree, the court of
appeals upheld the condemnation of the site owned by Yonkers Racing
(88-856 Pet. App. 20k-26k, 36k).  Turning to the Seminary's site,
however, the court of appeals remanded for further factfinding on the
Seminary's First Amendment claims (id. at 26k-36k).  The court of
appeals neither questioned the integrity of the Consent Decree nor
addressed the propriety of the proposed legislation at issue here.  On
the contrary, 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 36k).  Petitioner
Spallone's contention is therefore baseless.

   Finally, petitioner Chema (88-856 Pet. 20-22) argues that the
Consent Decree may not bind the City and the City Council because the
City agreed to it only after the court threatened to impose sanctions.
 That claim is simply wrong.  In January 1988, when the City Council
approved the Consent Decree, the City had been in default of its
obligations under the Housing Remedy Order for more than a year and a
half.  The district court did indeed threaten to impose contempt
sanctions on the City, not for its failure to enter into a consent
decree, but only for its continued refusal to comly with the Housing
Remedy Order.  See 88-856 Pet. App. 6k, 8m-17m.  The district court's
threat to impose sanctions for the City's continued defiance could
only be expected.  Rather than undermining the validity of the Consent
Decree ultimately approved, as petitioner Chema would suppose, the
need for such threats simply highlights the longevity and extent of
the City's contumacious behavior and the ultimate necessity for the
sactions at issue here.

   /22/ This argument contradicts the position the City Council had
taken before the district court.  In opposing the proposed commission,
the City, speaking on behalf of the City Council, stated:

         (T)he 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.  * * * 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.

   City of Yonkers Comments With Regard To The Proposed Yonkers
Affordable Commission 2 (July 25, 1988).  Of course, enactment of the
legislation by the court, as urged by the City in the district court
and by the Council members here, would also have "divest(ed) the
Council of specific state law powers."

   /23/ In Shillitani, for example, this limitation required the
district court to consider civil contempt before criminal contempt
(384 U.S. at 371 n.9), and allowed the court to imprison the
contemnors, who had refused to testify before the grand jury, only for
the life of that grand jury (id. at 371-372).  That caveat did not
limit the court's authority in the first instance to select civil
contempt as the proper remedy to coerce compliance with its orders
(id. at 370).

   /24/ 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:  a
"no" vote (and similarly, an abstention) 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 is manifest.

   In Clarke v. United States, No. 88-3190 (D.D.C. Dec. 13, 1988),
appeal pending, No. 88-5439 (D.C. Cir.), 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
its law, placed "an unjustified burden on the first amendment rights"
of the City Council members (slip op. 18).  We disagree strongly with
this opinion, and are in the process of appealing from the judgment.
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" (slip op. 9-10), as well as the existence of
"the Council's own prior agreement to a consent decree" (id. at 10.
n.6).

   /25/ Despite Chema's blanket assertion, such a hearing would not
have been "a mockery of justice" (88-856 Pet. 26).  The Council
members' checks in payment of their fines were to be held by the Clerk
of the District Court until August 12 (Pet. App. 157h).  Thus, had
Chema been able to show cause at any later hearing why he should not
have been held in contempt, the adjudication of contempt could have
been vacated and his money returned.

   /26/ Furthermore, the court of appeals found that, as of the time
of oral argument before that court, the City had not done all it could
to obtain compliance with the district court's orders (Pet. App. 29a).

   /27/ Nor is there any objective indication that the imposition of
allegedly burdensome civil contempt sanctions is an important public
issue that merits this Court's attention.  None of the public policy
issues surrounding the controversy over punitive damages applies in
the context of civil contempt sanctions.  See Bankers Life & Casualty
Co. v. Crenshaw, No. 85-1765 (May 16, 1988), slip op. 7-8;  Aetna Life
Ins. Co. v. Lavoie, 475 U.S. 813, 828-829 (1986).

   /28/ Solem applied the Cruel and Unusual Punishment Clause, but
held that the "Eighth Amendment imposes 'parallel limitations' on
bail, fines, and other punishments * * *." 463 U.S. at 289 (citation
and internal quotations omitted).  Thus, the standards set forth in
Solem would appear to apply to the Excessive Fines Clause.

   /29/ The court of appeals observed that this Court, in United
States v. United Mine Workers, 330 U.S. 258, 305 (1947), "selected as
an appropriate sanction a coercive fine of $2,800,000 (in 1947
dollars) to be imposed upon a union if it should fail to comply with a
district court order within five days" (Pet. App. 33a).