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OBURN v. SHAPP

March 5, 1975

ROBERT PAUL OBURN , et al.
v.
MILTON SHAPP , et al. DONALD LUTZ and MICHAEL WARFEL, Plaintiffs, v. MILTON SHAPP , et al.



The opinion of the court was delivered by: GREEN

 GREEN, J.

 Plaintiffs in both of the above captioned actions have moved for a preliminary injunction enjoining defendants "from appointing, seating or training any applicants to the State Police Academy or otherwise hiring any personnel for the State Police as police officers and from promoting any persons within said organization", pending the final hearing and determination of the actions. In C.A. 75-619, hereinafter referred to as the Oburn case, Mr. Oburn and five other individuals filed a complaint alleging that it was filed individually and on behalf of all other persons similarly situated alleging that the procedure followed by defendants in selecting a class of cadets for training to be members of the State Police violated certain rights of plaintiffs, most particularly plaintiffs' rights to equal protection guaranteed by the Fourteenth Amendment to the United States Constitution and alleged rights of plaintiffs under the Civil Rights Law of the United States, 42 U.S.C.A. § 1983. All of the individual plaintiffs alleged that their scores on a written examination were higher than the scores achieved by certain minorities and Spanish-surnamed individuals who have been selected for the class and plaintiffs contend that by virtue of the higher scores plaintiffs should have been selected for further processing which is a necessary step to admission to the class. The Oburn case also has as named plaintiffs the Conference of State Police Lodges of the Fraternal Order of Police which is described as an unincorporated association representing all Pennsylvania State Police throughout the state. The Conference is described as the official bargaining agent in labor negotiations for the Pennsylvania State Police and the complaint alleges that the Conference brings this action on behalf of all members of the State Police and all others who may become similarly situated. The Conference seeks to enjoin the admission of the class of cadets scheduled to start training on March 6, 1975 and also to enjoin the promotion procedures of the State Police as they are now being administered. Promotion examinations are not presently scheduled and the parties have agreed that a determination of plaintiffs' request for injunctive relief in regard to promotion procedures be deferred and that the only matter presently before the Court for determination is plaintiffs' motion to enjoin the admission of the class of cadets scheduled for March 6.

 The defendants named in the suit are Governor Milton Shapp, the Commissioner of the Pennsylvania State Police, James D. Barger, then Attorney General, Israel Packel, the Director of the Office of Administration, Richard Madison, the Lieutenant Governor, Ernest P. Kline, and the Director of the State Civil Service, Richard Rosenberry. All of said defendants are sued both individually and in their official capacities.

 In C.A. 75-631, hereinafter referred to as the Lutz case, there are two plaintiffs who claim to bring the action on their own behalf and of all others similarly situated pursuant to Rules 23(a) and (b) of F. R. Civ. P. Plaintiffs Lutz and Warfel allege that after final processing they placed number 139 and number 122 respectively on the list of those eligible for appointment as cadets, and that in fact they were not accepted, notwithstanding the fact that 153 persons were accepted for entrance into the cadet class. They allege that 40 of the persons accepted were not among the persons receiving the 153 highest scores and that they were passed over in favor of persons classified as minority or Spanish-surnamed. In the Lutz complaint, the same persons are named as defendants as are set forth in the Oburn complaint with the exception that the present Attorney General, Robert T. Kane, is named as a party defendant instead of the former Attorney General, Israel Packel.

 The history of the Oburn case reveals that the action was first filed in the United States District Court for the Middle District of Pennsylvania and that, pursuant to plaintiffs' motion, Judge Herman to whom the case was assigned requested the convening of a three-judge court. On February 18, 1975 a three-judge court was convened, consisting of the Hon. Joseph F. Weis, Jr., United States Circuit Judge, and the Hon. Michael H. Sheridan, Chief Judge, and the Hon. R. Dixon Herman of the United States District Court of the Middle District of Pennsylvania. The order further provided: "The Court so convened is free to determine whether the subject matter of the action creates a proper case for a Three-Judge Court." After hearing on February 27, 1975, the Three-Judge Court deferred ruling on any of the motions pending before the Court except the motion filed on behalf of defendants to transfer the case to the Eastern District of Pennsylvania, and after entering the transfer order the statutory Three-Judge Court was dissolved. The Oburn case was filed on January 3, 1975, and the ruling of the Three-Judge Court concerned only the Oburn case.

 The Lutz case was filed in the United States District Court for the Middle District of Pennsylvania on February 24, 1975. On February 27, Judge Herman, in an action independent of the Three-Judge Court, denied the preliminary injunction requested by plaintiffs Lutz and Warfel; however, on the 28th day of February, 1975, Judge Herman vacated his order of February 27, denying the preliminary injunction, and transferred the Lutz case to the United States District Court for the Eastern District of Pennsylvania, "because the above case is a companion to Bolden v. Pennsylvania State Police, C.A. No. 73-2604 (E.D. Pa.)."

 On Monday, March 3, 1975, I received a request from counsel for plaintiffs to set a time for hearing on their request for a preliminary injunction and the Court advised counsel for plaintiffs that said hearing would be scheduled for later in the afternoon of March 3. Counsel for plaintiffs requested additional time for preparation and the hearing was then scheduled for 9:30 A.M. on Tuesday, March 4. The hearing scheduled for March 4, was held as scheduled and was finally concluded at 10:30 P.M. on March 4, after both plaintiffs and defendants had full opportunity to offer all of the evidence which they desired and to make full legal argument to the Court. Now, March 5, 1975, we enter an order determining the issues presented to the Court and, by said order, deny plaintiffs' request for a preliminary injunction to enjoin the defendants from admitting a class to the State Police Academy as scheduled on March 6, 1975.

 I

 To understand the issues involved in Oburn and Lutz, we must judicially notice and discuss the Consent Decree entered in the matter of Bolden, et al. v. Penna. State Police, et al. filed in the United States District Court under C.A. No. 73-2604. Bolden filed an action, on his own behalf and behalf of all others similarly situated, seeking injunctive and declaratory relief against the Pennsylvania State Police; Col. James D. Barger, the Commissioner of the Pennsylvania State Police; Governor Milton J. Shapp; Lieutenant Governor Ernest P. Kline; Richard Madison and Richard Rosenberry; all of whom are also defendants in the Oburn and Lutz civil actions. In addition, Bolden named as defendants Ronald G. Lynch, the Secretary of the Office of Administration; Grace Hatch, John McCarthy and C. Herschel Jones, Commissioners of the State Civil Service. All of the defendants named in the Bolden civil action were sued both in their official capacity and individually. The jurisdiction of this Court was invoked pursuant to 28 U.S.C. §§ 1331 and 1343(3) and (4), plaintiff alleging that the action arose under the Thirteenth and Fourteenth Amendments to the United States Constitution and 42 U.S.C. §§ 1981, 1983, 1985(3) and 1988. The thrust of the complaint charged that the Pennsylvania State Police discriminated against minorities and Spanish-surnamed in its hiring and promotional practices and said discrimination was alleged to be based on race.

 On February 12, 1974, plaintiffs in the Bolden action moved for a preliminary injunction. Thereafter, on February 26, 1974, plaintiffs sought an order pursuant to Rule 23(b)(2) of the F. R. Civ. P. that the action proceed as a class action on behalf of the following subclasses:

 
(a) All minorities who have unsuccessfully sought or will in the future seek, employment with the Pennsylvania State Police;
 
(b) All minorities currently employed by the Pennsylvania State Police;
 
(c) All minorities who have been employed by the Pennsylvania State Police and who were subsequently discharged therefrom.

 On March 8, after a hearing, an order was entered reinstating plaintiff Bolden as a member of the Pennsylvania State Police and the action thereafter continued in regard to the class action relief. On March 19, 1974, Howard Richard, Esq., entered his appearance for one Leo Pierce who moved to intervene as a defendant in the action. Said motion stated in pertinent part:

 
"Leo Pierce, individually, and as Chairman of the Conference of State Police Lodges, Fraternal Order of Police, and as a member of the Class of all Pennsylvania State Policemen similarly situated, moves for leave to intervene as a defendant in this action upon the following grounds:
 
(1) The Conference of State Police Lodges represents approximately 95% of all Pennsylvania State Policemen;
 
(2) The applicant individually and in his said representative capacity, has an interest relating to the matter which is the subject of this action and is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest. The said interest comprises the interest of the applicant individually, and in his representative capacity, to obtain promotions and other benefits within the Pennsylvania State Police force on the same equal basis that must be accorded to all citizens of the Commonwealth of Pennsylvania and the United States of America; . . ."

 The Court took under advisement the motion to intervene. Prior to a determination of the motion, Benjamin Lerner, Deputy Attorney General, advised the Court that the then Attorney General Israel Packel, desired that the interest of the Conference of State Police Lodges, Fraternal Order of Police, be represented and accordingly Attorney General Packel had appointed Mr. Richard as an Assistant Attorney General to assist Mr. Lerner in the defense of the action. Immediately thereafter the Court authorized Mr. Richard to participate in the proceedings and the first action of Mr. Richard in this regard was to move the Court to recess the hearings in order that the parties could explore an amicable resolution of the controversy. Thereafter, the parties entered into negotiations, with Mr. Richard fully participating, and Mr. Pierce being present at many, if not all, of the negotiating conferences. During these negotiations, Mr. Richard and Mr. Pierce constantly advised the Court the negotiations were being discussed with State Troopers and members of the Fraternal Order of Police and that neither Mr. Richard nor Mr. Pierce could agree to any term of a consent decree until it had been fully discussed with the Fraternal Order of Police and the members of the Pennsylvania State Police. Because of this arrangement, the negotiations lasted for a period of many weeks until finally a proposed consent decree was submitted to the Court. This submitted consent decree was represented to be in final form, acceptable to all of the parties, and to be signed by plaintiffs' counsel, Harold I. Goodman and Robert J. Reinstein, and, also by both Benjamin Lerner and Howard Richard. The Court ordered that the decree be signed in open court and set a date for said proceeding. On the date set, Mr. Lerner, on behalf of all of the government defendants, was willing to sign the consent decree, but Mr. Richard declined to sign the decree at that time stating that he had to consult further with his clients. The Court thereupon ordered that the evidentiary hearings be resumed on June 20, 1974. However, on June 20, 1974, Mr. Lerner and Mr. Richard appeared in Court and advised the Court that they had approval to sign the consent decree and they accordingly executed it. This executed document signed on the 20th of June, 1974 is the matter in question, the Bolden consent decree.

 The above recital of facts concerning the formulation of the consent decree has been set out at length because one of the plaintiffs in the Oburn action is the Conference of State Police Lodges of the Fraternal Order of Police. The Conference also seeks to represent all members of the State Police and all others who may become similarly situated.

 II

 In order to evaluate the claims, of the Oburn and Lutz plaintiffs, that the present procedures for selecting State Troopers subject plaintiffs to "reverse discrimination", we must consider the proceedings in Bolden and the consent decree entered therein, since this consent decree mandates the procedures which are attacked.

 It is essential to know the evidentiary basis for the consent decree in order to determine whether plaintiffs have met their burden of showing a reasonable probability of eventual success in their lawsuits. Prior to the motion to intervene filed by Mr. Richard, on behalf of Mr. Pierce, counsel for Bolden plaintiffs and counsel for defendants entered into a comprehensive stipulation of facts, which was read into the record. The entire stipulation consumes 31 pages of the record and there are exhibits which supplement the stipulation. The entire stipulation is important to an understanding of the racial discrimination practiced by the Pennsylvania State Police; however, we set forth only some of the items contained in the stipulation:

 
For approximately the first 50 years of its existence, not one black individual was employed by the State Police. The first minority employed by the State Police was Spanish-surnamed, Salvador L. Rodriguez, appointed February 3, 1947. The first black was appointed on October 18, 1954. At the time of the stipulation, there were 4173 individuals employed by the Pennsylvania State Police; 60 of whom were black, and two of whom were Spanish-surnamed. The total minority representation was 1.48% of the total trooper personnel; non-whites employed by all Pennsylvania State Agencies constituted 10.8% of the total state personnel.
 
On September 17, 1971, Governor Shapp created the Governor's Equal Rights Task Force to identify those aspects of the government which denied and prevented equal opportunities in employment for minorities and women; this action was taken pursuant to Executive Directive No. 21.

 Other relevant stipulations are set forth below:

 
"18. After a thorough investigation of all Pennsylvania agencies, the Equal Rights Task Force identified, inter alia, the Pennsylvania State Police as an agency of state government which had in the past discriminated in employment against minorities.
 
Furthermore, the Task Force and its successor, the Affirmative Action Counsel has, on three separate occasions, rejected the affirmative action plans that were submitted by the Pennsylvania State Police; the most recent rejection being made on December 27, 1972.
 
The Pennsylvania State Police have not submitted an affirmative action plan since then, although required to do so by Executive Directive No. 21.
 
"19. An additional function of the Equal Rights Task Force was to take steps to end discrimination by state governmental agencies, and to improve the condition and composition of the minority work force in state government.
 
"20. With regard to the Pennsylvania State Police, the Equal Rights Task Force was unable to accomplish the ends in paragraph 19, . . . .
 
The purposes of the Council were and are to ensure that minorities and women in state government are affirmatively employed and promoted; and, in so doing, to correct and finally end the serious racial imbalance that exists in those state agencies identified as discriminatory, by the Equal Rights Task Force.
 
"23. The Affirmative Action Council has not been able, and has, therefore, failed to end the discrimination inflicted by the State Police against blacks and other minorities. (Emphasis added)
 
"24. To be eligible for appointment to the Pennsylvania State Police, an individual must fulfill all of the following requirements:
 
"a. He or she must be between 21 and 30 years of age, and be a resident of the ...

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