685 F. Supp. 1004 | E.D. Mich. | 1988
OPINION
In its most recent opinion in this case
I
The remand hearing ordered by the Court in its opinion of January 13, 1988
It was also stipulated by all parties that, as of February 17,1988, 51.3 percent of the membership of the DPOA was black, and that, in addition, there were 64 other members of the DPOA who were in a protected class. The parties further stipulated that 70 per cent of all new officers hired after all of those ordered returned to the police force by this Court’s previous order were black. In addition, it was agreed that the City had hired 1,290 officers hired subse
II
In making a determination as to whether or not the case is presently moot, this Court must consider whether there has been full compliance with this Court’s order contained in its earlier opinion.
III
The concept of mootness goes to the fundamental idea that Article III courts may decide only actual “cases or controversies.” As the Supreme Court stated in Aetna Life Insurance Co. v. Haworth, 300 U.S. 227, 57 S.Ct. 461, 81 L.Ed. 617 (1937):
A justiciable controversy is thus distinguished from a difference or dispute of a hypothetical or abstract character; from one that is academic or moot. The controversy must be definite and concrete, touching the legal relations of parties having adverse legal interests. It must be a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts.
Id. at 240-41, 57 S.Ct. at 464 (citations omitted).
A case can become moot because the law has changed,
The Supreme Court has created various exceptions to the rule to prevent either party from creating a technical mootness as a sham to deprive the Court of jurisdiction. For example, if a party voluntarily stops allegedly illegal conduct, that change does not necessarily make the case moot, for the defendant would then be free to return to his old ways. Defendant must show that “there is no reasonable expectation that the wrong will be repeated.” U.S. v. W. T. Grant Co., 345 U.S. 629, 633, 73 S.Ct. 894, 897, 97 L.Ed. 1303 (1953) (quoting United States v. Aluminum Co. of America, 148 F.2d 416, 448 (2d Cir. 1945)).
Another exception is the “capable of repetition yet evading review” doctrine. A mere “physical or theoretical possibility” is not enough to meet this test, otherwise “virtually any matter of short duration would be reviewable.” There must be a “reasonable expectation” or a “demonstrable possibility” that “the same controversy will reoccur involving the same complaining party.” Murphy v. Hunt, 455 U.S.
The Sixth Circuit recently dealt with mootness in Berry v. School District of the City of Benton Harbor, 801 F.2d 872 (6th Cir.1986). In Berry, the court held moot a claim for injunctive relief governing layoffs where no actual layoff was contemplated. The court pointed out that “[wjithout knowing the facts of the particular layoff situation, it did not have a case of controversy with the immediacy necessary for an informed decision.” 801 F.2d at 875.
IV
Applying the law set forth above to the facts of the instant case, the Court concludes that the controversy truly is moot, and the Court must therefore dismiss the case.
With reference to the City of Detroit, plaintiff concedes that all officers ordered to be recalled have been recalled, and have been given their full seniority rights under the contract between the DPOA and the City. The seniority rights of recalled officers are fully protected under the collective bargaining agreement, and there is no showing that the seniority rights of any recalled officer has ever actually been threatened. If such rights were threatened, the recalled officers would have a clear remedy under the contract grievance procedure.
Nonetheless, plaintiffs sought an agreement from defendants with reference to the rights of recalled officers, and the entry of a consent decree. The proposed agreement is as follows:
As represented to the Court at the May 4,1988 hearing herein, the parties consider the unchallenged seniority list published by the City of Detroit, on which seniority is based on the date of initial hire as contractually binding as to the status of the recalled officers, notwithstanding any legal rights the parties might otherwise have.
As shown by the signature of their counsel below, the Court may consider this agreement to be the intent of the parties, and may enter same as a consent decree herein.
The City refused to agree to the entry of any proposed consent decree, but argues that the case should be dismissed as moot.
The Court agrees with the City. Everything the Court sought to accomplish in its original judgment in the within matter has been accomplished. All officers laid off in 1979 and 1980 have been recalled. All of these officers have been given full seniority rights, which are protected under the collective bargaining agreement. Therefore, it appears there is no case or controversy remaining with the City, and the matter is moot as to the City.
With reference to the DPOA, the Court also finds the case to be moot. The Court’s principal concern at the time of its original opinions was that black members of the DPOA be given their proper representation in the leadership structure so they can protect their rights. At that time, the black members were a minority, and there was a clear indication that the rights of many of the black officers were not being protected by the white majority.
Since the time of this Court’s opinion in 1984, however, the racial composition of the Detroit Police Department has changed. Presently, blacks constitute 51.3 percent of the Department and 70 percent of new hires. In view of the fact that the majority of the membership of the DPOA is now made up of blacks and other minorities, they are able to protect themselves through intra-union political action against actions of white officers that would deprive them of fair representation or rights under 42 U.S.C. § 1981. This being so, there remains no controversy between the NAACP and the DPOA, and the matter is moot.
. See NAACP v. DPOA, 676 F.Supp. 790 (E.D. Mich.1988).
. There is no claim for damages against either the City or the DPOA under §§ 1981 or 1983. The only relief sought in this case on remand from the Court of Appeals is injunctive relief.
. See 676 F.Supp. at 799.
. The Court's earlier opinion on this matter is found at 591 F.Supp. 1194 (E.D.Mich.1984).
. 591 F.Supp. at 1220-21.
. NAACP v. DPOA, 821 F.2d 328 (6th Cir.1987).
. See, e.g., United States v. Alaska S.S. Co., 253 U.S. 113, 40 S.Ct. 448, 64 L.Ed. 808 (1920).
. See, e.g., California v. San Pablo & Tulare R.R., 149 U.S. 308, 313-14, 13 S.Ct. 876, 878, 37 L.Ed. 747 (1893).
. See, e.g., SEC v. Medical Committee for Human Rights, 404 U.S. 403, 406, 92 S.Ct. 577, 579, 30 L.Ed.2d 560 (1972).
. For other cases discussing mootness, see Los Angeles v. Lyons, 461 U.S. 95, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983); Weinstein v. Bradford, 423 U.S. 147, 96 S.Ct. 347, 46 L.Ed.2d 350 (1975); and Speer v. City of Oregon, 847 F.2d 310 (6th Cir.1988).
