[House Hearing, 109 Congress]
[From the U.S. Government Publishing Office]
FEDERAL CONSENT DECREE FAIRNESS ACT
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON COURTS, THE INTERNET,
AND INTELLECTUAL PROPERTY
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED NINTH CONGRESS
FIRST SESSION
ON
H.R. 1229
__________
JUNE 21, 2005
__________
Serial No. 109-43
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://www.house.gov/judiciary
______
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COMMITTEE ON THE JUDICIARY
F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois JOHN CONYERS, Jr., Michigan
HOWARD COBLE, North Carolina HOWARD L. BERMAN, California
LAMAR SMITH, Texas RICK BOUCHER, Virginia
ELTON GALLEGLY, California JERROLD NADLER, New York
BOB GOODLATTE, Virginia ROBERT C. SCOTT, Virginia
STEVE CHABOT, Ohio MELVIN L. WATT, North Carolina
DANIEL E. LUNGREN, California ZOE LOFGREN, California
WILLIAM L. JENKINS, Tennessee SHEILA JACKSON LEE, Texas
CHRIS CANNON, Utah MAXINE WATERS, California
SPENCER BACHUS, Alabama MARTIN T. MEEHAN, Massachusetts
BOB INGLIS, South Carolina WILLIAM D. DELAHUNT, Massachusetts
JOHN N. HOSTETTLER, Indiana ROBERT WEXLER, Florida
MARK GREEN, Wisconsin ANTHONY D. WEINER, New York
RIC KELLER, Florida ADAM B. SCHIFF, California
DARRELL ISSA, California LINDA T. SANCHEZ, California
JEFF FLAKE, Arizona CHRIS VAN HOLLEN, Maryland
MIKE PENCE, Indiana DEBBIE WASSERMAN SCHULTZ, Florida
J. RANDY FORBES, Virginia
STEVE KING, Iowa
TOM FEENEY, Florida
TRENT FRANKS, Arizona
LOUIE GOHMERT, Texas
Philip G. Kiko, Chief of Staff-General Counsel
Perry H. Apelbaum, Minority Chief Counsel
------
Subcommittee on Courts, the Internet, and Intellectual Property
LAMAR SMITH, Texas, Chairman
HENRY J. HYDE, Illinois HOWARD L. BERMAN, California
ELTON GALLEGLY, California JOHN CONYERS, Jr., Michigan
BOB GOODLATTE, Virginia RICK BOUCHER, Virginia
WILLIAM L. JENKINS, Tennessee ZOE LOFGREN, California
SPENCER BACHUS, Alabama MAXINE WATERS, California
BOB INGLIS, South Carolina MARTIN T. MEEHAN, Massachusetts
RIC KELLER, Florida ROBERT WEXLER, Florida
DARRELL ISSA, California ANTHONY D. WEINER, New York
CHRIS CANNON, Utah ADAM B. SCHIFF, California
MIKE PENCE, Indiana LINDA T. SANCHEZ, California
J. RANDY FORBES, Virginia
Blaine Merritt, Chief Counsel
David Whitney, Counsel
Joe Keeley, Counsel
Ryan Visco, Counsel
Alec French, Minority Counsel
C O N T E N T S
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JUNE 21, 2005
OPENING STATEMENT
Page
The Honorable Lamar Smith, a Representative in Congress from the
State of Texas, and Chairman, Subcommittee on Courts, the
Internet, and Intellectual Property............................ 1
The Honorable Howard L. Berman, a Representative in Congress from
the State of California, and Ranking Member, Subcommittee on
Courts, the Internet, and Intellectual Property................ 3
The Honorable John Conyers, Jr., a Representative in Congress
from the State of Michigan, and Ranking Member, Committee on
the Judiciary.................................................. 5
WITNESSES
The Honorable Roy Blunt, a Representative in Congress from the
State of Missouri
Oral Testimony................................................. 6
Prepared Statement............................................. 9
The Honorable Nathaniel R. Jones, Blank Rome LLP
Oral Testimony................................................. 10
Prepared Statement............................................. 12
Mr. David Goetz, Commissioner, Department of Finance and
Administration, State of Tennessee
Oral Testimony................................................. 16
Prepared Statement............................................. 19
Mr. David Schoenbrod, Professor, New York Law School
Oral Testimony................................................. 28
Prepared Statement............................................. 29
APPENDIX
Material Submitted for the Hearing Record
Prepared Statement of the Honorable Howard L. Berman, a
Representative in Congress from the State of California, and
Ranking Member, Subcommittee on Courts, the Internet, and
Intellectual Property.......................................... 41
Prepared Statement of the Honorable John Conyers, Jr., a
Representative in Congress from the State of Michigan, and
Ranking Member, Committee on the Judiciary..................... 42
Prepared Statement of the Honorable Maxine Waters, a
Representative in Congress from the State of California........ 42
Letter from Curtis L. Child, Senior Attorney, National Center for
Youth Law, to the Honorable Lamar Smith, a Representative in
Congress from the State of Texas, and Chairman, Subcommittee on
Courts, the Internet, and Intellectual Property................ 44
Letter from Gene Kimmelman, Senior Director, Public Policy and
Advocacy, to the Honorable John Conyers, Jr., a Representative
in Congress from the State of Michigan, and Ranking Member,
Committee on the Judiciary..................................... 49
Letter from Eric Mann, Director, Labor/Community Strategy Center
(LCSC), and Barbara Lott-Holland, Co-Chair, Bus Riders Union
(BRU), to the Honorable Howard L. Berman, a Representative in
Congress from the State of California, and Ranking Member,
Subcommittee on Courts, the Internet, and Intellectual Property 50
Prepared Statement of Mark L. Shurtleff, Utah Attorney General... 54
Prepared Statement on the negative impact of the proposed
legislation (S. 489, H.R. 1229) on the transit dependent of Los
Angeles from the Los Angeles-based Labor/Community Strategy
Center and Bus Rider Union (LCSC/BRU).......................... 65
Article entitled ``Breaking the Deal,'' by Timothy Stoltzfus
Jost, Legal Times.............................................. 66
Letter from William Taylor, Chairman, Citizens Commission on
Civil Rights, and Vice Chair, Leadership Conference on Civil
Rights (LCCR), to the United States Senate..................... 68
Article entitled ``Sunset for Consent Decrees,'' The Washington
Post, written by Simon Lazarus, Public Policy Counsel, National
Senior Citizens Law Center..................................... 70
Letter from Barbara B. Kennelly, Chair, Leadership Council of
Aging Organizations (LCAO), et al., to the Honorable John
Conyers, Jr., a Representative in Congress from the State of
Michigan, and Ranking Member, Committee on the Judiciary....... 71
Letter from the Leadership Conference on Civil Rights (LCCR)..... 73
Legal Case submitted by the Honorable Lamar Smith, a
Representative in Congress from the State of Texas, and
Chairman, Subcommittee on Courts, the Internet, and
Intellectual Property.......................................... 79
Letter from Marcia Robinson Lowry, Founder and Executive
Director, Children's Rights.................................... 85
Letter to the Senate and House in opposition to the Alexander-
Blunt legislation.............................................. 88
Prepared Statement of the Conservation Law Foundation (CLF)...... 91
Prepared Statement of Barbara Lott-Holland, a transit-dependent
bus rider in Los Angeles, and member and co-chair, Bus Riders
Union (BRU).................................................... 91
FEDERAL CONSENT DECREE FAIRNESS ACT
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TUESDAY, JUNE 21, 2005
House of Representatives,
Subcommittee on Courts, the Internet,
and Intellectual Property,
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice, at 5:40 p.m., in
Room 2141, Rayburn House Office Building, the Honorable Lamar
Smith (Chair of the Subcommittee) presiding.
Mr. Smith. The Subcommittee on the Courts, the Internet,
and Intellectual Property will come to order. As I mentioned a
while ago, we are waiting for one witness, but we understand
that he will be here momentarily and we will proceed.
A couple of announcements at the outset. One, thank you for
the interest. This is late in the day and I appreciate the
interest of those who are in the audience today as well as the
Members who are here, too. We have finished with votes for the
day, and unfortunately, that means a lot of Members are no
longer here and have found other things to do. Nevertheless,
it's a very, very important subject.
I'm going to recognize myself for an opening statement and
then the Ranking Member and perhaps the Ranking Member of the
full Judiciary Committee for their opening statements, as well.
I also want to recognize Ryan Visco, who is sitting to my
right. She is an attorney with the Subcommittee and this is the
first hearing that she has been in charge of, and so we are
going to guarantee her a very smooth and informative and
successful hearing at this point.
There's another reason for us to begin now and that is that
Mr. Conyers, who is from Detroit, and I, who am from San
Antonio, are eager to get home to watch a certain basketball
game tonight. [Laughter.]
Let me recognize myself. For 40 years, Federal courts have
issued a significant number of consent decrees that require
State and local governments to comply with certain legal
requirements affecting social, environmental, health, and
educational issues. These consent decrees, often known as
public law litigation, or institutional reform decrees, place
the trial courts in the business of public administration.
State-run services, such as school busing, Medicaid, mental
health facilities, prisons, and special education, all have
been the subject of Federal lawsuits. It is not unusual for
these Federal consent decrees to span 20 to 30 years and tie up
significant portions of State and local budgets. Due to the
contractual nature of a consent decree, future Administrations
are also bound by the original terms.
Under many consent decrees, traditional roles of State or
local government officials are shifted to the judge and the
lawyers involved in negotiating the consent decree. The end
result is that State and local governments lose their ability
to function democratically. Bound by Federal consent decrees,
elected officials are less able to balance political and
budgetary interests when legislating, nor can these officials
react and adjust to unforseen constituent or budgetary needs as
they arise.
In Frew v. Hawkins, a case that dealt with the Texas
medical system, the Supreme Court commented extensively on the
effects of unnecessarily rigid consent decrees. The Court
cautioned judges that consent decrees may undermine democracy
and flexibility in Government and admonished judges to be more
flexible when State officials seek to modify the terms of
existing consent decrees.
In light of Frew, the hearing today represents a timely
forum to discuss the burdens placed on State and local
officials who must comply with detailed consent decrees. While
the Supreme Court reiterated that judges are not free to ignore
right, they also urged judges to defer to State and local
officials when they act as agents for the Government. The Frew
court also warned judges against tying State and local
officials to the contractual obligations developed by
predecessor groups of plaintiffs and defendants.
H.R. 1229, the Federal Consent Decree Fairness Act of 2005,
introduced by Congressman Blunt and Congressman Cooper, allows
governments to revisit consent decrees in Federal court. The
bill allows a State or local official to seek a motion to
modify or vacate an already existing consent decree. This bill,
in the spirit of the Frew case, enables State and local
governments to seek redress in Federal court when existing
consent decrees become too burdensome or obsolete.
As Justice Kennedy stated in Frew, the basic obligations of
Federal law may remain the same, but the precise manner of
their discharge may not. If the State establishes reason to
modify the decree, the court should make the necessary changes.
Congressmen Blunt and Cooper's bill is a positive step in
giving democratic responsibility to those who are the most
responsive to the needs and wishes of the people, their elected
representatives.
The authors of the book Democracy by Decree, both former
public interest lawyers, write that, ``Democracy by decree is a
good thing gone wrong. It goes beyond the proper business of
courts. It often renders government less capable of responding
to the legitimate needs of the public and it makes politicians
less accountable to the public. Democracy by decree works fine
in pointing out what went wrong, but it works badly in putting
things right.''
Consent decrees can serve a valuable purpose by allowing
those whose rights have been violated their day in Federal
court. But the current rigid system does not preserve the
flexibility necessary for elected representatives to discharge
their responsibilities.
I want to thank the Majority Whip again for his work in
this area, and before recognizing the Ranking Member for his
opening statement, I just want to say that I feel certain that
had the Ranking Member, Mr. Berman, read the book Democracy by
Decree, he would have given a far different opening statement
today. But since he hasn't read it, he is at a distinct
disadvantage, but nevertheless, we welcome his opening
statement and the gentleman from CAlifornia is recognized.
Mr. Berman. This is just the hearing, not the markup, so
there is time and I do appreciate you giving me the book--
lending me the book, I should say, and I am going to take a
look at it. But we do have an author of the book here, I
believe, and so we can get the Reader's Digest summary right
here.
The Chairman asked, when I told him I had some concerns
about this bill, whether I was--that he hoped I'd be open
minded. For a guy who's made a decision, I'm still pretty open
minded. But I thought what I'd do is I'd shift the burden, or
leave the burden with the people pushing the bill to deal with
some of my concerns in the context of testimony. The Chairman
has done a fine job of summarizing the bill and laying the
framework for it and I will just, as quickly as I can, mention
some concerns I have with the bill. Even though there are some
consent decrees, including ones that govern bodies in my own
area, there is one in particular that I have real concern about
the wisdom of and the thinking behind it.
So, first of all, this issue of requiring the sort of
review by motion of the defendants, the State or local
governments or local entities, every 4 years, and in reality,
much sooner allowing them to make motions, because most consent
decrees aren't entered into the first day that the governor or
the mayor takes office. They are entered somewhere in the midst
of his term and frequently near the end of his or her term. So
allowing that kind of review of a consent decree that the
parties agreed to and shifting the burden so that the defendant
State or city gets to go in, but the other party has to reprove
the case, it seems to me will have one clear impact.
I can't think of why any plaintiff, whether it's the
Federal Government or a private party, will ever settle a case.
Why won't they want to litigate everything to a final judgment,
which isn't, obviously, subject to that kind of automatic
review and requirement that you reprove your case. So I think
it eliminates settlements.
If this was just a bill that applied only retroactively and
not prospectively, well, then that's a different story, but
obviously, that would be an absurd way to approach it and the
bill doesn't approach it that way and its effect on existing
cases and prospective cases is to eliminate, to me, any
motivation of the plaintiff to settle.
There are other questions about what constitutes a change
of government. When you have a board of supervisors, is it two,
is it three members have to change before you can be eligible?
But those are narrower kinds of questions.
Then the requirement that the judge has to rule within 90
days or the consent decree is automatically dissolved, I think
is a very unrealistic time frame. The judge might be in the
middle of a long-term trial. There is going to have to be a
retrial on the consent decree because the plaintiff has to
reestablish the burden of proof. It isn't like this is
something just submitted on papers. And the notion that the
automaticity, that the consent decree is over and all
obligations are dissolved the moment 90 days passes from the
time the city, county, or State makes the motion seems very
unrealistic.
There's a carve-out here for school desegregation cases. In
other words, consent decrees on that issue are not affected by
this bill. There's also a carve-out for title VI and title VII
of the Civil Rights Act in the House bill. But the carve-outs
are only based on race, so that employment discrimination cases
under title VII or the requirement not to discriminate based on
Federal grants that are part of title VI does not apply to
gender discrimination, it doesn't apply to age discrimination,
and it doesn't apply to discrimination based on national
origin, because as I understand it, for instance,
discrimination against Latinos, which is a premise for at least
several consent decrees that I know, are not exempted from this
even though discrimination based on race is.
And then the definition of consent decree is much broader
than the traditional definition--a court order based in whole
or in part upon the consent or acquiesence of the parties. A
plaintiff sues a State or local government, gets a final
judgment. The judge says, ``I rule with the plaintiffs, but I
would like both sides of you to present a prospective order
based on my rulings and the parameters of my decision.'' Both
sides present proposed orders and he takes a little big from
each. Is the fact that part of what the plaintiff submitted was
accepted make this now a consent decree under the definition of
this bill, so that even cases that are fully litigated and come
to a final judgment can be reversed in as quickly as one or two
or 4 years?
The compensation cap of, I think, $70 an hour is about one-
fifth or one-eighth of what masters normally get, and my guess
is you're not going to get truly skilled and people who are in
demand to give up the time to supervise a consent decree with
that kind of a limitation.
And finally, the Frew case. The Chairman said this is a
bill that's consistent with the recent Supreme Court decision
in Frew. I look at it totally differently. A Supreme Court
nine-to-zero--nine-to-zero, that means Thomas, Scalia,
Rehnquist--upheld the concept of consent decrees and set out
some standards which give States and cities a basis in the
context of asking consent decrees to be revisited, that even
though they have to go forward to vacate or modify can point to
that court decision and the construction in that court decision
and the guidelines of that court decision to get more
flexibility when conditions have changed where the decree is
already--all the obligations have been met. So it seems to me
that decision should be given a chance to work and let's see
what happens in some of these cases where the Court has now
issued some new standards for the lower courts to look at in
deciding the case.
So other than that, I'm open to this, but if I could use
one last example, and that is, ultimately, I look at a case
like that New York City special education case, consent decree,
huge amount of money that New York is required to spend on
special education. Why? Federal law imposed an obligation that
every kid is entitled, as I understand it, to be treated and we
have failed to appropriate the funds to local school districts
to meet the obligation we imposed on them through law.
The issue here isn't the consent decree, it's either give
them the money or change the nature of the Federal law. Don't
avoid our own accountability for the mistakes we have made that
have put Tennessee into a bind or somebody else by creating a
situation where consent decrees are thrown out all the time
rather than look at the underlying issue and whether or not
that meets a public interest and thereby avoiding our own
accountability.
Thank you, Mr. Chairman, for your indulgence.
Mr. Smith. Thank you, Mr. Berman.
The gentleman from Michigan, the Ranking Member of the full
Judiciary Committee, is recognized for an opening statement.
Mr. Conyers. Thank you, Chairman Smith. I join you in
welcoming our distinguished panel, particularly our old friend
Nathaniel Jones, now a former member of the Federal judiciary,
and, of course, the Majority Whip of the Congress and our other
two witnesses.
This is a surprise to me that we would now have hearings on
a measure that would be a blow to victims of police brutality,
the disabled, and victims of State-sponsored pollution. It is
unseemly to me that States would promise to comply with Federal
civil rights and environmental laws and then come to Congress
in order to get out of such obligations.
First, by requiring virtually every Federal consent decree
with State and local governments to be relitigated every 4
years would set back decades of progress in civil rights
enforcement. It would also gut the Americans With Disabilities
Act and permit any locality to violate the Clean Water and Air
Acts. I'm anxious to hear why supporters of this legislation
believe that police departments that abuse citizens or State
agencies that fail to have wheelchair ramps at front entrances
should receive a ``get out of jail free'' card in 4 years.
In my opinion, the best way for a State to get out of a
consent decree is for it to comply with the law. Federal
consent decrees aren't permanent. The parties and courts are
free to revise the terms of the decree as circumstances change
and as the defendants improve their conduct or behavior.
Creating a set timetable for review, as this bill does, would
give greater bargaining power to the lawbreakers, in my view.
And I'm also concerned with the unequal treatment of
citizens who believe that the Justice Department actually
brings too few, not too many, civil rights and environmental
lawsuits. When it does bring cases, the Department uses consent
decrees to ensure compliance with basic civil rights
protections. Weakening these decrees would make it virtually
impossible for the Department to ensure compliance with the
State and invite States to break the law.
I am particularly interested in a case mentioned about the
Wayne County Environmental Protection Agency case, which have
asked the district court to terminate an 11-year-old consent
decree which required the county to upgrade sewer systems and
untreated sewage that was being dumped into drains and into the
Detroit River. It involved a sewer tunnel costing $295 million
plus $99 million more from communities and a $20 million bond
from the county. The parties told the court that the objectives
of the decree had been met. If they had to come up every 4
years while this was going on, havoc could be a result.
And so for all those reasons plus the, I think, very fine
reasoning employed by my colleague, Mr. Berman from California,
lead me to approach this matter with some anxiety, since I
think many on the courts themselves are reluctant to embrace a
proposal this drastic.
I thank you, Chairman Smith, for allowing me to make these
introductory remarks.
Mr. Smith. Thank you, Mr. Conyers.
Without objection, all Members may submit their opening
statements as a matter of the record.
Before I introduce the witnesses, I would like for them to
stand and be sworn in, if they would, please. Would you please
raise your right hand.
Do you solemnly swear that the testimony you are about to
give is the truth, the whole truth, and nothing but the truth,
so help you, God?
Mr. Blunt. I do.
Judge Jones. I do.
Mr. Goetz. I do.
Mr. Schoenbrod. I do.
Mr. Smith. Please be seated.
Our first witness is House Majority Whip Roy Blunt, the
sponsor of the Federal Consent Decree Fairness Act of 2005.
Representative Blunt has represented the Seventh Congressional
District of Missouri since 1997. He received an undergraduate
degree from Southwest Baptist University, where he later served
as President, and a Master's degree from Southwest Missouri
State University.
Let me say also that the Majority Whip has a half-a-dozen
conflicts this afternoon and we're just grateful he can be here
for a few minutes to testify.
Our next witness is Nathaniel R. Jones, Senior Counsel to
the law firm of Blank Rome. Previously, he served as a Federal
judge for the Sixth Circuit Court of Appeals. Judge Jones--you
keep that title for life, I think--received his undergraduate
and law degrees from Youngstown State University.
Our next witness is David Goetz, Commissioner of Finance
and Administration for the State of Tennessee. Mr. Goetz
received his Bachelor's degree from the University of Virginia.
Our final witness is David Schoenbrod, the co-author of
Democracy by Decree: What Happens When Courts Run Government.
He is a professor at New York Law School, where he teaches
constitutional and environmental law. Professor Schoenbrod
received Bachelor's and law degrees from Yale University. He
was also a Marshall Scholar at Oxford University.
Welcome to you all. We have written statements from all the
witnesses which, without objection, will be made a part of the
record, and Mr. Blunt, we will begin with you.
TESTIMONY OF THE HONORABLE ROY BLUNT, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF MISSOURI
Mr. Blunt. Mr. Chairman, thank you for letting me be here
today and thank all of you for understanding my schedule,
which, like yours, often seems to be out of my control, but I
am glad I could be here for a few minutes really to represent
all of the sponsors of this legislation.
As you will know before the remarks here are over, I think
this legislation was driven largely by a real challenge that
the State of Tennessee faced. Mr. Goetz is here to talk about
that. And because of that, not only is Lamar Alexander, Senator
Alexander, the principal sponsor in the other body, but the
entire Tennessee delegation has joined Mr. Cooper and I as
cosponsors and we have a number of bipartisan cosponsors on
this legislation.
Let me quickly summarize my testimony by making a couple of
points. As we look at this whole problem of consent decrees and
consent decrees that are not easily ended and just as easily
become an excuse for a public official not to deal with the
responsibility of a challenging problem, I really think that
this legislation is more about inactivist public officials than
it is judges that are too active.
More often than not, the consent decree becomes the excuse
for a public official to say, you know, I would like to do
something about this specific problem, but it is really under
the control of the courts now and I can't do anything about it,
or on an equal number of occasions with a different problem,
saying I would really like to do something about that problem,
but you know, we are so hampered by all of the money or all of
the restrictions that the court is requiring in some other area
that I just can't do anything.
Our system is designed to be run by publicly elected
officials. It runs best when those officials take the
responsibility that they have been elected to take. And so this
really does put the responsibility on the elected official, and
as has been pointed out by all of you, really, on the newly-
elected official more often than not to come in and look at a
problem and not be able just to say, that's a problem that I
don't have a reasonable way to deal with so I'm not going to
deal with it, but to have to look at a problem and decide to
accept responsibility, go to the courts and ask that that
responsibility be returned to them.
There are a number of examples, again, some of which you'll
hear in detail, many of which are in the book that's already
been mentioned. Let me just mention two or three examples that
I think show some of the extent of this problem.
In the State of Utah in 1994, the governor was persuaded to
enter into a consent decree only after being assured that this
would be a consent decree that would have an outside time limit
of 4 years, a 4-year deadline. The governor's view at that
point that entered into this decree was that at the end of that
4 years, they were back to where they started. The public
officials had responsibility again. If people still felt that
something needed to be done here, they could start the process
over again.
But as it turned out, in 1998, the judge who was in control
of this case ruled that Utah hadn't done all that the judge
thought they needed to do and so the consent decree that was a
4-year decree was extended, at least apparently at this point,
indefinitely, and by 2003, the State of Utah had already spent
$52 million to improve the foster care services under the
decree plus about $4 million in attorneys' fees to deal with
this case.
In Connecticut, there was a decree entered into in January
1991. Again, this dealt with the Department of Children and
Families. Because of budget shortfalls, in 2003, Connecticut
was forced to lay off employees throughout their entire State
governmental system. Of all the employees that were laid off,
only the employees that were laid off at the Department of
Children and Families had to be restored to their jobs, and
those cuts then had to be taken disproportionately in other
places in State government.
In a case that may be the case that my friend, Mr. Berman,
was talking about, Los Angeles County Metropolitan
Transportation Authority, they entered into a decree in 1996
regarding the bus system. Today, 47 percent of their entire
budget goes to the bus system. The remaining--and this is only
9 years later--the remaining 53 percent is divided between 19
percent for street and freeway improvements--now get this
right--47 percent for the bus system, 19 percent for street and
freeway improvements, 16 percent for Metrorail, 1 percent for
Metrolink, 12 percent on debt reduction, and essentially that
is the budget.
In August 1974, New York City, in a case that again was
mentioned in the book and could be mentioned later, entered
into a consent decree requiring bilingual education. In 2001,
the board attempted to overhaul bilingual education, but was
constrained in the steps it could take by the terms of the
consent decree. July 14, 2004, the New York Times published an
article in which Latino parents were quoted complaining about
the fact that their children were forced into bilingual
education classes even when they would prefer that the children
have English at school. Now, these are not children who were
struggling with English at school, but because they were
Latino, they were required to take Spanish and English at
school, and that is just one of many examples.
Just to make a couple of comments really on the two or
three points that Mr. Berman made, my sense of this is that
while you do normally have elected officials' terms that last
for 4 years--of course, some elected officials' terms last for
longer than that--this is for newly-elected public officials.
My belief would be that in a very recent consent decree, having
been an elected official for some time, that the more recent
the consent decree, the less likely that the new public
official is to jump in and say, ``I want to handle that
problem, as well.''
I really think the problem in the past has not been public
officials clamoring to accept responsibility, but public
officials, in some cases now for more than three decades,
throwing up their hands and saying, ``Well, you know, that is
really something that even though technically that should be
part of my job, there's no way I can deal with that.'' I think
that you'd see the period of time normally being more than 4
years rather than less than, and if you're in the middle of a
process that is easily demonstrated has not been completed and
would not be completed by the public officials who should be
responsible for it, the judges clearly don't have to do
anything to move away from the consent decree.
I'm grateful that the Committee has moved forward with this
hearing. I know that everyone approaches this issue in good
faith and I look forward to seeing this bill progress as I'm
sure all of my cosponsors, including, Mr. Goetz, the entire
Tennessee delegation, Republicans and Democrats alike, will
look forward to seeing this bill move forward in the Committee
and I thank you for letting me come by today, Mr. Chairman.
Mr. Smith. Thank you, Mr. Blunt. We appreciate your being
here.
[The prepared statement of Mr. Blunt follows:]
Prepared Statement of the Honorable Roy Blunt, a Representative in
Congress from the State of Missouri
I'd like to thank the committee for inviting me to testify about
this important legislation.
The other witnesses are well qualified to talk about some of the
legal and technical aspects of this bill. Allow me to address the
committee from my perspective as an elected official.
The Consent Decree Fairness Act is not about reining in an activist
judiciary or about ending consent decrees. This legislation is about
increasing the responsibility and accountability of elected officials.
Consent decrees are too often used by elected officials as an
excuse not to solve problems that they have been elected to solve.
The principal goal of this legislation is to return the
responsibility for public policy-making and the governing of public
institutions to elected officials.
When a consent decree lasts for multiple decades, as many of them
do, many elected officials never have the opportunity to take
responsibility for important public services.
A politician can say, 'I would really like to do something about
the transportation system in Los Angeles County, but I can't because of
that consent decree.'
Or: 'I'd like to spend more on education in this state, but I
really can't because our budget is determined by these consent decrees
on other issues.' And their successors in that office can say the same
thing.
Consent decrees, in my view, have become a hiding place for public
officials, relieving them of responsibility in the area that the
consent decree specifically affects.
So again, let me repeat. The Consent Decree Fairness Act is more
about inactive public officials than it is about overly active judges.
This bill would create an obligation on the part of newly elected
officials. They will have to look at every consent decree that their
predecessors were part of and defend why the decree should continue, or
go to the courts and explain why the consent decree no longer applies.
If the plaintiff can explain to the judge why it's important that that
consent decree continue, then the decree stays in place.
Let me give you a couple of examples from Missouri, where there are
several major consent decrees governing how public policy is
implemented:
The federal courts in 1983 began to oversee the foster care system
in Jackson County, Missouri. As a result, in order to comply with the
now 20-year-old consent decree, a disproportionate share of all the
foster funding for the state goes to Jackson County. In addition, our
state's Department of Mental Health operates now under five consent
decrees, two of which date to the 1970s.
Our goal here is to return public-policy responsibility to elected
officials as soon as it is defensible. That's really how our system is
supposed to work. Voters don't have any real control over what a
federal judge does. They have much more control in our system over what
public officials do. So when we increase the responsibility of elected
officials for public services, we increase voter control over the
government. We increase public officials' accountability to the voters.
There may be times when judicial oversight is needed and public
officials can not or will not take responsibility. But the burden of
proof that these changes are necessary must be with those who want to
deviate from existing public policy.
Finally, let me reiterate that this bill does not automatically end
any consent decree. It puts the responsibility on elected officials to
decide whether to accept continued government by decree or to seek a
modification or elimination of the decree. Then a judge has to decide
the issue.
The only consent decrees that could be dissolved are those in which
the plaintiff is incapable of proving a continued need for court
supervision. If there is no longer a need for court supervision,
wouldn't it be undemocratic NOT to return the policy decisions to
elected officials and, in turn, the voters?
Again, I would like to thank the committee, and especially Chairman
Smith, for inviting me to testify and for taking the time to consider
this important matter.
Mr. Smith. Judge Jones?
TESTIMONY OF THE HONORABLE NATHANIEL R. JONES, BLANK ROME LLP
Judge Jones. Thank you, Mr. Chairman. My name is Nathaniel
R. Jones and I appreciate this opportunity to discuss my views
on this legislation.
While the sponsors of the legislation are no doubt sincere
in their belief that it will address deficiencies in consent
decrees, I believe the bill will, in fact, take a wrecking ball
to efforts to redress the rights of citizens and to a judicial
process that has been invaluable to the administration of
justice, and I would like to just set forth some of my
concerns.
First of all, there is no problem that needs fixing. The
unanimous 2004 Supreme Court decision in Frew v. Hawkins
reaffirmed what courts are already doing, namely they are
listening with deference to local officials and any other
parties who petition for a consideration of the fairness of the
particular consent decree.
One-size-fits-all legislation like this proposed bill will
get it all wrong. This, in my judgment, is a case of an answer
in search of a problem. The fundamental goal of the required
fairness hearing that is required under the Federal Rules of
Civil Procedure, which must precede the approval of a
settlement and the entering of a consent decree, is to
ascertain facts with respect to the fairness of the agreement,
and that goes to the duration and other aspects of fairness. It
makes no sense to deprive courts of the option, and I emphasize
option, of using consent decrees which in many areas are an
enormously valuable tool for courts, parties, and for helping
Congress provide for the efficient implementation of laws that
it itself has passed.
This bill will significantly raise the costs and reduce the
effectiveness of all law implementation affecting State and
local governments, thereby depriving citizens nationwide of
benefit conferred by Federal laws protecting such things as the
environment, access to health care, guarantees against
discrimination based on age, gender, and disabilities, to name
just a few, as well as the many important instances of racial
discrimination.
Also, while the claim is that this bill will simply fix
deficiencies in the process of renewing and modifying their
terms, in practice, it will end, not simply mend, the use of
consent decrees by Federal courts in all matters affecting
State and local governments. No attorney representing a
plaintiff against a State or local government would advise his
or her client to enter into a consent decree that would have
virtually no lasting effect or value.
Long-term consent decrees are sometimes necessary to carry
out the complex changes contemplated by laws that Congress has
enacted in areas covered by the bill. The changes are often
necessary to rebuild institutions that are shown to be
depriving citizens of fundamental rights.
This legislation ignores the valuable lessons taught to
this nation following the civil disturbances of the '60's,
which were documented by the Kerner Commission in its 1968
report. That report pointed out that festering problems in
areas of health and environment, housing, education, law
enforcement, all resulting from a default by government at all
levels, exact a tremendous price. Consent decrees prove to be
an effective tool for redressing the resulting grievances.
The Frew decision really reinforces what courts have been
doing in instances in which consent decrees have been
challenged. During my 22 years as a Federal Court of Appeals
Judge, I have sat on over 25 such cases which considered
challenges to consent decrees. In addition to the Wayne County
case that Congressman Conyers just referred to, there are cases
in Ohio that dealt with the issue of injustice and unfairness
that resulted in consent decrees and they were carefully
supervised by the judicial bodies that had that responsibility.
The consent decree, when circumstances warrant, is an effective
means of dealing with serious social and economic and health
problems.
Tampering with the power of courts to oversee consent
decrees, as this legislation would do, with its shifting of the
burden of proof onto the shoulders of the aggrieved and onto
the victims, stands the whole traditional notion of the
responsibility of remedy on its head.
One of the concerns that I have listed is the impact of the
bill on the sensible functioning of the courts and the
administration of justice. My concern here may not be
surprising, given that I have spent more than 20 years as a
Federal appellate judge. During that time, I have participated
and I have observed colleagues who carefully and methodically
and with great conscientiousness scrutinize claims of
discrimination and attempts to resolve them short of full
circuit litigation by using the consent decree process.
By providing the opportunity, and indeed an invitation to
governors and officials of local government to relitigate
matters that were previously regarded as settled by consent
decrees, this bill would lead to many new proceedings which
would come inevitably 4 years after a new decree and might come
as soon as one or two if new officials were elected to replace
the signatories of the previous decree. Indeed, I suspect that
in any jurisdiction caught in a financial bind, the temptation
would be there to reduce costs by reducing the obligations
under a consent decree.
But reopened proceedings would be the least of the burdens
placed on the courts. No one I have discussed this matter with
believes that plaintiffs' lawyers in the great majority of
cases would be willing to enter into consent decrees that can
be revisited every 3 years with the burden left to the
plaintiffs to defend the decree. Most will feel that allegiance
to their clients' interests will require them to go to trial.
This will mean not only a burden on the courts, but financial
burdens on the parties.
The major costs of class action litigation, including
attorneys' fees, in most cases, State and local governments, if
they lose, will wind up paying the plaintiffs' lawyers' fees
plus the fees of the very firms, mostly large firms, that the
government retains to defend them in these actions. For Members
of Congress who have been distressed by rising legal costs,
this should be a matter of grave concern.
It should be added that the workload will further limit
access to a court system that has already been forced to cut
its services drastically. I can say with some authority that
the Federal courts are now facing tremendous workloads that
must be addressed by reduced staffs. Just a few weeks ago,
representatives of the Federal judiciary testified before a
House Appropriations Subcommittee that the workload of the
courts has increased by 18 percent between 2001 and 2005, while
the funding for that period of time was decreased.
Moreover, in 2004, the judiciary lost more than 6 percent
of its workforce due to funding constraints. Even though the
workload is expected to increase even further as a result of
the recently enacted Class Action Fairness Act, the judiciary
will be operating approximately at only its 2001 staffing
levels if it even receives the 2006 staff funding it has
requested.
Before I was appointed to the bench, I was General Counsel
for the NAACP, where I often represented children in court in
civil rights cases. For many years, civil rights cases were
fought to the bitter end, but about three decades ago, in the
wake of the Kerner Commission recommendations, sensible public
officials and private advocates decided to work these matters
out through consensus and through consent decrees. As a result,
we have had some noteworthy consent decrees that have broadly--
greatly broadened opportunities for children.
Mr. Smith. Judge Jones, I notice that you are about halfway
through your written statement. Is there a way for you to
summarize the rest of it?
Judge Jones. Yes. Thank you, Mr. Chairman, and I will
submit, as you indicated, the statement as prepared.
But I would like to note that what strikes me is that this
legislation is an attempt at circumventing the traditional
standards for obtaining reform or modification of a consent
decree. There is presently under rule 23 a means by which
persons who have questions about a consent decree can challenge
it. They can challenge it. They can seek reform, modification.
And if that doesn't work, they can appeal. And I can say with
complete authority that I have sat on appeals in which we have
reversed the decisions of lower courts with regard to consent
decrees.
There are, in every jurisdiction, in every circuit, you
will find courts who have very meticulously scrutinized the way
in which challenges were registered to consent decrees and
these decrees have been monitored, and where they appeared to
be not adhering to the rigorous standards set forth under the
rules, they have been properly adjusted.
So it's my judgment that this is a case of using a cannon
to swat a gnat. The problems that are raised by the persons who
challenge the consent decrees are problems that can be
addressed individually in case-specific manners. They do not
need Congress to impose this type of broad-gauge legislation,
which will do violence to the very terms and the various
process that we have used in this country to resolve some
serious problems that impact upon society.
Thank you very much, Mr. Chairman and Members of the
Committee.
Mr. Smith. Thank you, Judge Jones.
[The prepared statement of Judge Jones follows:]
Prepared Statement of the Honorable Nathaniel R. Jones
My name is Nathaniel R. Jones and I appreciate the opportunity
extended to me by members of this Subcommittee to offer my views on
H.R. 1229, described as the Federal Consent Decree Fairness Act.
While the sponsors of H.R. 1229 no doubt sincerely believe that it
will address deficiencies in consent decrees, I believe the bill will
take a wrecking ball to efforts to redress the rights of citizens and
to a judicial process that has been invaluable to the administration of
justice. Here, in summary, are my major concerns:
1. There is no problem that needs fixing--the unanimous 2004
Supreme Court decision in Frew v. Hawkins, which directed
district courts to listen with deference to local and state
officials' recommendations for terminating or modifying
decrees, but commanded them to enforce these decrees where the
case for change is not made, got it right. One-size-fits-all
legislation like H.R. 1229 gets it wrong. This is a case of an
answer searching for a problem.
2. The fundamental goal of the required fairness hearing,
which must precede the approval of a settlement and the
entering of a consent decree, is to ascertain facts with
respect to the fairness of the agreement.
3. It makes no sense to deprive courts of the option of using
consent decrees, which in many areas are an enormously valuable
tool for courts, parties, and for helping Congress provide for
efficient implementation of laws it passes.
4. This bill will significantly raise the costs and reduce the
effectiveness of all law implementation affecting state and
local governments--thereby depriving citizens nationwide of
benefits conferred by federal laws protecting the environment,
access to health care, guarantees against discrimination based
on age, gender, and disabilities, to name a few, as well as
many important instances of race discrimination.
5. While the claim is that the bill will simply fix some
deficiencies in the process of renewing and modifying their
terms, in practice it will end, not simply mend, the use of
consent decrees by federal courts in all matters affecting
state and local governments. No attorney representing a
plaintiff in litigation against a state or local government
will advise his client to enter into a consent decree that will
have virtually no lasting effect or value.
6. Long-term consent decrees are sometimes necessary to carry
out the complex changes contemplated by laws Congress has
enacted in areas covered by the bill. The changes are often
necessary to rebuild institutions that are depriving citizens
of fundamental rights.
7. H.R. 1229 ignores the valuable lessons taught the nation
following the civil disturbances of the Sixties which were
documented by the Kerner Commission in its 1968 Report. That
report pointed out that festering problems in areas of health,
the environment, housing, education and law enforcement
resulting from a default by government at all levels, exact a
tremendous price. Consent decrees proved to be an effective
tool for redressing the resulting grievances.
8. The Frew decision reinforces what courts have been doing in
instances in which consent decrees have been challenged. During
my 22 years as a federal appellate judge, I sat on over 25 such
cases which considered challenges to consent decrees. In
addition to the Wayne County, Michigan example I cite in my
testimony, I refer you to the case of Waste Management of Ohio,
Inc. vs. City of Dayton in which the Sixth Circuit panel on
which I sat reversed a District Court. The takeaway from that
case is that there are standards already in place for modifying
a consent decree when circumstances so warrant. Another
significant case that demonstrates the need for flexibility by
courts in dealing with consent decrees is State of Ohio v. U.S.
Department of Energy pending since 1985 in the Southern
District of Ohio. It involves a cleanup of the notorious
Fernald nuclear waste site.
9. Tampering with the power of courts to oversee consent
decrees, as this legislation would do, with its shifting of the
burden of proof onto the shoulders of the aggrieved, stands the
whole traditional notion of the responsibility for remedy on
its head.
IMPACT ON COURTS AND THE ADMINISTRATION OF JUSTICE
One of the concerns I have listed is the impact of the bill on the
sensible functioning of courts and the administration of justice. My
concern here may not be surprising, given the fact that I spent more
than 20 years on the federal Bench having been nominated by President
Carter to a seat on the Court of Appeals for the 6th Circuit and
confirmed by the Senate in 1979 and having served until 1995 when I
took senior status and 2002 when I retired. It is not clear to me that
enactment of H.R. 1229 will place new burdens on the courts without
yielding any productive results for the parties.
By providing the opportunity, indeed an invitation, to governors
and officials of local government to relitigate matters that were
previously regarded as settled by consent decrees, the bill would lead
to many new proceedings which would come inevitably four years after a
new decree and might come as soon as one year or two, if new officials
were elected to replace the signatories of the previous decree. Indeed
I suspect that in any jurisdiction caught in a financial bind, the
temptation would be there to reduce costs by reducing obligations under
a consent decree.
But reopened proceedings would be the least of the burdens placed
on the courts. No one I have discussed this matter with believes that
plaintiffs' lawyers in the great majority of cases will be willing to
enter into consent decrees that can be revisited every few years with
the burden left to plaintiffs to defend the decree. Most will feel that
allegiance to their clients' interests will require them to go to
trial. This will mean not only a burden on the courts but financial
burdens on the parties--the major costs of class action litigation
including attorneys' fees. In most cases, state and local governments,
if they lose will wind up paying the plaintiffs' lawyers fees plus the
fees of the large firms that government defendants retain to represent
them in court. For members of Congress who have been distressed by
rising legal costs, this is a matter worth pondering long and hard.
It should be added that the workload will further limit access to a
court system that has already been forced to cut its services
drastically. Just a few weeks ago, representatives of the federal
judiciary testified before a House Appropriations subcommittee that the
workload of the courts had increased by 18% between FY 2001 and FY
2005, while funded staffing levels over the same period of time
decreased by 1%. Moreover, in FY 2004, the judiciary lost more than 6%
of its workforce due to funding constraints, resulting in fewer clerks'
office hours in many courthouses for the public to file papers and seek
information. Even though the workload is expected to increase even
further as a result of the recently enacted Class Action Fairness Act,
the judiciary will be operating approximately at only its FY 2001
staffing levels if it receives the FY 2006 staff funding it has
requested.
Under such circumstances, defendants who have had their day in
court, and who voluntarily settled their case, ought not be permitted
to routinely tie up the courts at the expense of other litigants
seeking justice. To permit such repetitive reexamination of consent
decrees--especially when the violations persist or the remedies agreed
upon have not been carried out--is a far more costly version of a
playground ``do-over'' that fails to serve the public interest in the
efficient administration of justice and protection of legal and
constitutional rights.
IMPACT ON SUBSTANTIVE RIGHTS
Before I was appointed to the bench I served as General Counsel of
the NAACP where I often represented children in court in civil rights
cases. For many years, civil rights cases were fought to the bitter end
in federal court rooms, but about three decades ago partially in
response to the recommendations of the Kerner Commission, sensible
public officials and private advocates decided that often it would be
better to settle than fight. As a result we have had some noteworthy
consent decrees that have greatly broadened opportunities for children.
One prime example is a suit filed late in 1980 by the NAACP and a
class of plaintiffs against the state of Missouri and 22 suburban
school districts. Just before trials was scheduled to begin in 1983 the
parties entered into a settlement agreement calling for desegregation
of the suburban districts, support for magnet schools in St. Louis and
a program of educational improvements in St. Louis. The agreement was
approved as a consent decree by the District Court and with minor
modifications by the Court of Appeals. Certiorari was denied. In 1996,
the State which paid the bulk of the expenses under the decree, filed a
motion to terminate the decree on grounds that it had achieved
``unitary status'' (i.e., satisfied all its desegregation obligations.
After a trial, a conciliator was appointed--Dr. William Danforth, then
Chancellor of Washington University of St. Louis. The parties
negotiated a revised consent decree that was contingent on replacing
the court-ordered funds with funds approved by the state legislature.
The legislature, working on bipartisan basis, approved the funding in
1999 and a new consent decree was negotiated the following year. Under
the new decree plaintiffs may go back to court if there is a violation.
That decree is still in effect.
The result has been the largest voluntary interdistrict
desegregation program in the nation. Approximately 10,000 African
American students from St. Louis attend schools each year in the
suburban districts and that has been the case (with some variation in
the numbers since 1984). About 3 in every 4 students are eligible for
free and reduced price lunch. Yet they graduate high school and go on
to college at about 2 to 3 times the rate of students in inner city
schools. Additional opportunities have been made available in the
city's magnets and as a result of the school improvement program.
None of this would have been possible without giving the consent
decree process time to work. Ultimately the process brought public
approval and financial and other types of support from public officials
that required time to develop.
One major illustration of the importance of consent decrees in
these areas is:
A case reported on Friday, June 3, in which the Department of
Justice and the Environmental Protection Agency, along with Wayne
County and nearby jurisdiction have asked the district court to
terminate and 11 year old consent decree. The decree required the
County to upgrade sewer systems that caused untreated sewage to be
dumped into drains and eventually the Detroit River to prevent it from
backing up into basements. The centerpiece of the improvements is a
massive new sewer tunnel costing $295 million. Communities say they
will spend $99 million more and the county is seeking approval to issue
$20 million in bonds as part of the plan. The parties told the court
that ``the objectives of the decree have been met.''
This case shows the scope of laws that would be damaged and how
badly; why consent decrees sometimes must last much more than one to
four years; why the consent decree option makes more sense than making
litigated court orders the exclusive option; and that courts and
parties to consent decrees know how to end them when it is time.
A second major example is the Gautreaux public housing litigation.
This was a case begun in the late 60s by residents of public housing
who had been subjected to rigid racial segregation. In 1981 the parties
including the United States entered into a consent decree that was
dismissed 1988. The results, documented in a book by Leonard Rubinowitz
and James Rosenbaum, entitled Crossing the Class and Color Lines, have
been hard won but impressive.
More than 7,500 public housing families found decent subsidized
housing in desegregated areas, the great majority of them in the
suburbs. The big winners were children. As experts Margery Turner
Austin and Dolores Acevedo-Garcia write in the January/February issue
of Poverty and Race, ``the Gautreaux research showed that children
whose families moved from predominantly black neighborhoods of Chicago
to integrated neighborhoods in the suburbs were substantially more
likely to succeed in school and go on to college or jobs.'' They also
note that the success of Gautreaux helped launch efforts beginning in
the mid-90s in 33 metropolitan areas to help low income families move
from poor and predominantly minority neighborhoods to more affluent and
racially integrated communities.
In both the St. Louis and Chicago cases, the costs of providing
decent schools and decent housing, covered by the consent decrees have
been more that repaid by the taxes paid by these youngsters as
productive citizens and by avoiding the costs of incarceration and
other manifestations of dysfunctional communities if nothing had been
done to provide opportunity.
Now I recognize that under H.R. 1229, some types of racial
discrimination cases would be exempted from the possibility of frequent
relitigation. But if you look at a list of notable consent decrees over
recent years, you will find that several involve the rights of abused
or neglected children, or homeless children, or foster children to
decent shelter or other opportunities. These would not be exempted from
the proposed law. Since I see no material difference between these
cases and the rights of children in racial discrimination cases, you
will forgive me if I do not feel secure that the exemption would be a
lasting one.
Beyond that, many of the important protections that have been
achieved of environment rights or of access to health care or of fair
treatment in state institutions have been gained through the vehicle of
consent decrees.
Finally, I must note the civil rights exemption in H.R. 1229 is far
from complete. In the race area it has no application to voting rights
cases or to the great majority of housing cases. Nor would the bill
protect people who are discriminated against because of their age, or
gender, or condition of disability or because of their national origin.
And, as I have noted, there is no principled reason for allowing some
victims of rights denials the ability to negotiate consent decrees
while denying it to others. These are not problems that can be fixed. I
believe the bill is hopelessly flawed.
CONCLUSION
Over the years I served on the bench, I have observed an increasing
desire among participants in the judicial system as well as among
citizens, to find ways to resolve controversies without the need for
the hand-to-hand combat of litigation which often inflicts pain and
bitterness.
Among the tools of alternative dispute resolution, none has served
better than consent decrees, particularly where major laws and public
policies and large numbers of people are involved.
The courts have built a great deal of flexibility into the process.
The fairness hearings prescribed under the Federal Rules of Civil
Procedure allow the public to have its say and the judge to weigh
competing interests before approving a settlement. The recent Frew
decision provides the necessary flexibility to change a decree where
circumstances have changed.
This is case where there is no evidence of a disease and where the
cure is much worse than any of the problems it purports to address. I
urge Congress to reject this legislation.
Mr. Smith. Mr. Goetz?
TESTIMONY OF DAVID GOETZ, COMMISSIONER, DEPARTMENT OF FINANCE
AND ADMINISTRATION, STATE OF TENNESSEE
Mr. Goetz. Thank you, Mr. Chairman and Members of the
Committee, for the honor of being allowed to testify to you
today. My name is Dave Goetz. I am Commissioner of Finance and
Administration for the State of Tennessee.
In my role as Commissioner, I act as the Tennessee official
charged with overseeing and formulating policy for our State's
Medicaid program, known as TennCare. I am here today to testify
about Tennessee's experience with negotiated consent decrees,
specifically in the context of our State's Medicaid program,
and how my ability and our governor's ability to perform our
duties have been severely handicapped by the existence of
several consent decrees signed and negotiated by the previous
Administrations.
First, I'd like to explain the reality of the world we face
in Tennessee. Our Medicaid program was one of the first State
Medicaid programs to move entirely to managed care and we
provide greater coverage than any other State. The generosity
of this program has come with some overwhelming costs.
Tennessee's Medicaid program consumes 33.9 percent of State
expenditures and 33.3 percent, respectively, over the last 2
years, the highest of any State in the country and well in
excess of national averages.
In September of 2004, the State submitted a reform package
to the Center for Medicare and Medicaid Services described by
our governor as the silver rather than the platinum coverage.
Our express goal was to maintain full coverage of everyone that
was in the program. This reform initiative secured the
necessary cost savings through innovations on drug coverage and
benefit limits rather than disenrollments.
In the fall of 2004, however, skyrocketing utilization
levels and costs of TennCare became a crisis. Projections
revealed that, absent further reform, TennCare's expenses
during the fiscal year 2006, which begins on July 1, 2005,
would increase by some $650 million in State funds, well in
excess of the total growth in revenue that we were projecting
for the next year. The State would have been forced to impose
drastic cuts on the remainder of the State's budget, including
education, transportation, and public safety programs.
Unfortunately, however in large part because of this fiscal
crisis and the restrictions imposed by one consent decree in
the Grier litigation, disenrollments did become necessary. The
Grier suit was first filed in 1979 and a succession of consent
decrees, the most recent of which was entered in 1999, have
governed the State's Medicaid program ever since. The Grier
consent decree, which extends significantly beyond the
requirements imposed by Federal law, precludes implementation
of such standard cost saving measures as an effective prior
authorization pharmacy program and effective managed care.
The financial impact of this decree has been devastating.
For example, just to focus on pharmacy, in fiscal year 2001
alone, TennCare's pharmacy costs increased 44.7 percent. And
since 2000, Tennessee's pharmacy costs have more than tripled,
rising from $716.3 million in fiscal 2000 to a projected $2.5
billion in fiscal 2005. In contrast to Tennessee's exploding
pharmacy cost, the average annual percentage increase in
Medicaid pharmacy spending per enrollee nationwide between 2000
and 2003 was only 12.6 percent. Tennessee now spends more per
person on drugs than any other State. While the national
average for prescriptions per person, per year is 10.5,
Tennessee's average is 17.9.
This Administration came into office promising to reform
TennCare. We had hoped that we could work with the counsel for
the plaintiffs to negotiate changes to save this program.
Negotiations were difficult, however, and only produced limited
changes to the decree under discussion here. Our ability to
implement a functional and effective preferred drug list was
still precluded by the provisions of the Grier consent decree
and the plaintiffs would not agree to the needed modifications.
Without the policy-making freedom to contain costs through
these standard prior authorization measures, the State found
that its options for containing costs and for sustaining the
program were extremely limited, and thus, Governor Bredesen was
finally forced on January 10 of this year to propose a
comprehensive reform package that entailed both disenrollments
of beneficiaries in optional Medicaid categories and benefit
reductions for the remaining beneficiaries in mandatory
coverage categories.
Now, in an attempt to ameliorate the extent of these
disenrollments, the State has proposed a new spend-down
program, which is designed to serve up to 100,000 of the
neediest Tennesseeans who will otherwise be disenrolled. But
once again, the implementation of this new program depends on
the State's ability to generate the necessary cost savings, and
that, in turn, depends upon the State's ability to implement
reforms that are currently blocked by the restrictive terms of
the Grier consent decree.
Once again, the plaintiffs in this case refused to agree to
such modification, and therefore, the State now finds itself
once again before a Federal judge where the State must seek a
court order to modify a decree that originally was signed in
1986. In the process, the State must expend significant
resources that could otherwise be spent on enrollees and to do
so in hopes of being free to implement health care programs and
procedures that are standard for other States throughout the
country.
As these examples demonstrate, the present practice of
permitting elected government officials to immunize their
policy decisions from political change by entering into
perpetual consent decrees has proven unworkable in our State.
Rather than protecting constitutional rights, these consent
decrees have hamstrung our State officials, making it difficult
for us to manage effective operations and even more difficult
for us to respond to new conditions by designing and
implementing reform measures that are necessary for the good of
the entire State.
Indeed, particularly in the health care realm, officials
need flexibility to respond to complex social and financial
dynamics, allowing them to make important policy choices
regarding the proper allocation of available resources to best
serve those in the health care program while continuing to
serve the interests of the whole community. Rather than
protecting the TennCare beneficiaries, these consent decrees
have become the principal roadblocks to preserving effective
managed care for the greatest number of Tennesseeans. Thank
you.
Mr. Smith. Thank you, Mr. Goetz.
[The prepared statement of Mr. Goetz follows:]
Prepared Statement of the Honorable David Goetz
Mr. Smith. Professor Schoenbrod?
TESTIMONY OF DAVID SCHOENBROD, PROFESSOR,
NEW YORK LAW SCHOOL
Mr. Schoenbrod. My name is David Schoenbrod. Thank you very
much for the opportunity to allow me to testify today.
I have worked for Senator Hubert Humphrey and Vice
President Hubert Humphrey, for Judge Spottswood Robinson, for
the Bedford-Stuyvesant Restoration Corporation, and the Natural
Resources Defense Council. It was a case that I litigated at
the Natural Resources Defense Council that began to let me open
my eyes to the problem this Committee is addressing today.
My litigation partner, Ross Sandler, and I won a judgment
that New York City had violated a Federal law in regard to air
pollution. The judge told the parties to come up with a consent
decree, and so we found ourselves negotiating with city and
State officials in charges of roads and mass transit and police
and so on and we hammered out a detailed plan to improve mass
transit and ease traffic jams. The plan was signed by the judge
and so became a decree binding all the State and local
defendants in the case and their successors in office.
One of those successors turned out to be Ross Sandler, my
litigation partner, because years later, he was appointed by
Mayor Ed Koch, a successor mayor himself, to be the
Transportation Commissioner. Ross found that some of the
requirements in the decree that we were so proud to put there
and seemed like such great ideas back in the day turned out not
to work in practice.
But meanwhile, I was a law professor teaching remedies and
came to understand that officials in Ross's position could not,
as a practical matter, deviate from these requirements without
the consent of plaintiffs' attorneys, and to gain such consent,
it turns out, defendants also must agree to add additional
requirements to the decree. So the decrees become longer and
longer and public officials lose power to private attorneys.
Having gone through this experience, we ended up writing a
book, the book you've referred to, called Democracy by Decree.
Our book shows that decrees against State and local government
are thick on the ground, that they often last for decades, and
they are generally broader and more intrusive than necessary to
protect rights. Commissioner Goetz has pointed out some
examples of that. The special education case in New York City
that Congressman Berman referred to is another example of a
decree that's much broader than the Federal right it's supposed
to enforce.
Our book also shows why decrees are broader than necessary
to protect rights. Those who negotiate the decrees include
plaintiffs' attorneys, lower-level government officials in
charge of the program, and government attorneys. We call these
negotiators the controlling group. The controlling group's
members each have ideas about how to improve the program, and
through a process of horse trading, they agree on a plan. Now,
the government officials who are part of the controlling group
welcome a plan that is broader than needed to protect rights
because a court order gives them a way to grow their powers and
to increase their budget without having to go through the
normal process of convincing people like mayors and governors
and legislators to go along with what they want.
The governors and mayors themselves have their own reason
to go along, too. Contested litigation makes them a target of
criticism, while announcing a consent decree lets them take
credit for finding a solution. And often, these decrees can be
constructed so the really tough requirements fall after the
election, after the next election.
The judges also go along with signing an over-broad decree
because no one is objecting, and otherwise, the judge would
personally have to write the decree, which means a long hearing
and taking responsibility for policy choices.
A year after our book was published, the Supreme Court
issued its unanimous opinion in Frew v. Hawkins. The Justices
forcefully recognized the problem of over-broad consent
decrees. They also made clear that the proper measure of a
decree should be plaintiffs' rights rather than the deal struck
in the consent decree.
But the Supreme Court did not fully fix the problem,
because the instructions it gave to lower courts are ambiguous.
They are framed as a restatement of the rule in a prior case.
But Frew actually changed that rule rather than restated it.
The ambiguity in Frew has already led one court, the court in
Jeff D. v. Kempthorne, which is cited in a law review article,
copies of which are over there and the Committee has, to act as
if Frew changed nothing.
Now, the ambiguity in Frew grows out of the Supreme Court's
understandable reluctance to be seen as too readily overruling
precedent. Congress, however, is free to write on a clean slate
and the Supreme Court has made clear that Congress could make
new litigation ground rules applicable to old as well as new
decrees. That was in the case of French v. Miller, and as to
that point, no Justice disagreed.
The Federal Consent Decree Fairness Act clarifies the
ambiguity in Frew by stating a clear rule that reflects Frew's
intention that defendants should be able to get rid of decree
terms that are broader than necessary to protect rights, and
that is how it should be in a democracy.
Mr. Smith. Thank you, Professor Schoenbrod, and it is
``Schoenbrod,'' not ``broad,'' is that correct?
Mr. Schoenbrod. Exactly.
Mr. Smith. Schoenbrod. Thank you.
[The prepared statement of Mr. Schoenbrod follows:]
Prepared Statement of David Schoenbrod
My name is David Schoenbrod. I am testifying on behalf of Ross
Sandler and myself. We are professors at New York Law School. He
teaches state and local government law and is Director of the Center
for New York City Law. I teach the law of remedies and am a co-author
of a casebook that deals extensively with decrees against state and
local government, David Schoenbrod, Angus Macbeth, David I. Levine &
David J. Jung, Remedies: Public and Private (West Publishing, 3d ed.
2002). In the 1970s, Professor Sandler and I were a litigation team at
the Natural Resources Defense Council. Our cases included many matters
of special concern to the poor and racial minorities. At other times,
Professor Sandler was later Commissioner of Transportation of the City
of New York under Mayor Edward I. Koch and in private law practice. I
have worked for Senator and Vice President Hubert Humphrey, Judge
Spottswood W. Robinson III of the Court of Appeals for the District of
Columbia Circuit, and John Doar and Franklin Thomas at the Senator
Robert Kennedy's Bedford-Stuyvesant community development organization.
The sponsors of the Federal Consent Decree Fairness Act state that
it based upon a proposal made in a book written by Professor Sandler
and myself, Democracy by Decree: What Happens When Courts Run
Government (Yale University Press, 2003). The book grew out of our
experience at the Natural Resources Defense Council. In representing
advocacy organizations in litigation against the mayor of New York City
and the governor of New York State, our court room victories resulted
in the judge asking the parties to negotiate a consent decree against
the mayor, governor, and other officials of the state and city. The
decree controlled in detail important aspects of how the city and state
operated their roads, ran their transit system, deployed their police,
regulated pollution, and much more. In time, we came to be surprised by
the scope and duration of the power that we had over city and state
official who, unlike us, were politically accountable. When Professor
Sandler later became commissioner of transportation, he became a
defendant in the case and, as such, was subject to the decree we had
negotiated.
Professor Sandler and I have not lost our firm conviction that the
doors of federal court house should be open to those whose rights are
violated. But, we have gained the understanding that, as federal courts
now operate, consent decrees are more intrusive and last longer than
needed to protect rights.
Our is not the usual complaint about ``judicial activism.'' That
complaint is that judges are too active in finding rights in the
constitution or statutes. Our complaint is that the decrees go beyond
enforcing whatever rights the judges do find.
The obvious question is, why are the decrees broader than necessary
to protect the rights when judges know that decrees are supposed to
enforce rights? The cases begin with plaintiffs' attorneys seeking to
change how some government program operates--be it foster care, the
construction of sidewalk, or any of the dozens of types of state and
local programs subject to institutional reform litigation. It is
usually easy for the plaintiffs attorney to find some ``legal hook''
that they can use to draft a complaint because Congress and federal
agencies have created so many standards applicable to state and local
programs that most programs are in violation of some federal standard.
With the plaintiffs attorneys having an open and shut case, the
judge tells the parties to negotiate a decree. Those sitting around the
negotiating table include the plaintiffs' attorneys, defendant
officials, and government attorneys. We call these negotiators the
``controlling group.'' All of the members of the controlling group have
ideas about how to improve the program, and that includes the non
elected government officials who work for the program that is the
target of the case. Through a process of horse trading, they construct
a plan to change it. The plans are usually quite detailed. Many go on
for dozens of pages. These plans are not tethered to the rights that
gave rise to the suit but rather reflect the controlling group's
collective idea about how to make program fun better. The signature of
a judge turns this plan into a federal court order that must be obeyed
by the defendants and their successors in office. Many decrees last for
decades.
Typically, no one objects to the entry of a decree broader than
needed to protect rights. For the officials who run the program under
reform, the decree gives them a way to broaden their power and grow
their budget by court order rather than through the usual processes for
securing the approval of governors, mayors, or legislatures. Governors
and mayors have own reasons to go along. Contested litigation makes
them a target of criticism, while the consent decree lets them take
credit for a solution. It can often be constructed so that the most
onerous requirements fall due are after next election.
Judges sign the overbroad decree because no one objects and
otherwise they will have to write the decree themselves, which would
mean conducting a long hearing and taking responsibility for the policy
choices. This is not judicial activism. It is judicial passivity.
Once the decree is signed, it must of course be obeyed unless and
until the decree is modified or vacated. But, obeying the decree
sometimes make no sense. New initiatives often don't work as hoped.
Budget priorities or circumstances often change. Take, for example,
Escalera v. New York City Housing Authority, 924 F.Supp. 1323 (S.D.N.Y.
1996). The litigation began in 1967 with a complaint that the New York
City Housing Authority failed to give adequate procedural due process
to tenants who were delinquent. The problem was real, but the federal
judge was not content to declare a violation of due process of law.
That probably would have been enough to solve the problem because the
tenants and the authority agreed on a new set of procedures prior to
eviction that gave the tenants extra notice and assistance beyond
constitutional minima. Instead of terminating the case, the lawyers for
the tenants and the authority in 1971 submitted a consent decree to the
federal judge that mandated the elaborate new procedures and ceded to
the judge perpetual supervisory power over the procedures.
In 1993, twenty-two years later, crack cocaine had emerged as a
serious issue. The New York City Housing Authority received urgent
requests from tenants to evict those tenants who dealt drugs from their
apartments. The authority wanted to invoke the Bawdy House Law, a
special procedure available under state law that would allow rapid
eviction of proven drug dealers who used their apartments for sales,
yet still accorded them due process. Legal Aid attorneys, citing the
twenty-two year old consent decree, objected. They were still attorneys
of record and, on behalf of all tenants, argued that the special
procedure was illegal because it varied from the more protracted
procedure specified in the old decree. It took two years of intensive
litigation before the Housing Authority was allowed to use the special
procedures.
The courtroom scenes would have been comic if they were not so
tragic. Experts called by both sides battled over whether the advent of
crack cocaine was sufficiently new and unexpected to warrant revising
the old decree, whether living next door to a drug dealer actually
increased risk of criminal violence, and whether hiring more housing
police might be a better solution, i.e., <``more suitable'' than
evicting drug dealers. After three days of testimony Judge Loretta A.
Preska issued a fifty-five-page opinion deciding that on balance it was
permissible for the New York City Housing Authority to use the lawful,
speedy procedures. While this litigation continued, the tenants, the
purported beneficiaries of the old decree, lived with the danger and
intimidation of drug dealers next door. The snarl of litigation so
incensed the organization of elected representatives of all the tenants
of the New York City Housing Authority that it hired other lawyers to
fight on the side of the Housing Authority and against their old
lawyers.
As the Escalera case illustrates, under the leading Supreme Court
case, Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367 (1992), it
is difficult for states and localities to get out from under decretal
requirements that make no sense and are unnecessary to protect rights.
The Rufo test is demanding and time consuming. And, to have any chance
at success, the leaders of the defendant agency must divert their
attention from other managerial problems to litigation. So, the leaders
typically decide not to litigate and instead beseech plaintiffs
attorneys to consent to a modification. The plaintiffs may give the
state or city some leeway, but in return demand that new obligations be
added to the decree. In this way, the decree grows from dozens of pages
to hundreds or even thousands of pages. With all the modifications on
consent, side deals, and letters of understanding, it is often only the
controlling group that understands what the consent decree requires.
In its unanimous opinion in Frew v. Hawkins, 124 S.Ct. 899 (2004),
the Supreme Court has forcefully recognized the problem of consent
decrees that unnecessarily constrain the policy making discretion of
state and local officials. The Court made clear that the proper measure
of injunctive relief should be plaintiffs' rights rather than a bargain
struck in a consent decree. For an analysis of Frew, see Sandler &
Schoenbrod, ``The Supreme Court, Democracy and Institutional Reform
Litigation,'' 49 New York Law School Law Review 915 (2005), available
online at http://www.nyls.edu/pdfs/Vol49no3p915-942.pdf.
While the Supreme Court has recognized the problem, it has not
fully fixed it. In institutional reform litigation, there has been a
persistent gap between the Supreme Court's calls for lower courts to
respect the policy making prerogatives of state and local officials and
actual practice in the lower courts, as we have shown. See Democracy by
Decree at ch. 6. One reason is that it is difficult for successor
officials to complain effectively about overbroad decrees entered into
by their predecessors. Frew itself does not fix the problem because the
Supreme Court is, after all, a court rather than a legislature and so
typically works incrementally rather than by comprehensively reversing
and revising previously announced litigation ground rules. But, the
Court has recognized that Congress can change these ground rules and
make new ground rules applicable to old as well as new decrees. French
v. Miller, 530 U.S. 327 (2000). In French, none of the justices
expressed a contrary view on this point.
The Federal Consent Decree Fairness Act articulates ground rules
for modifying and vacating consent decrees entered against states and
localities. These ground rules are in accord with the view expressed by
the Supreme Court's opinion in Frew that the proper measure of
injunctive relief should be plaintiffs' rights rather than a bargain
struck in a consent decree. Section 2 of the Act articulates principles
that the Supreme Court recognizes, but that controlling groups often
get away with ignoring. Section 3 begins by defining the consent
decrees to which this section applies. It then goes on to allow state
and local officials to move to modify or terminate the decree, but
instructs the court to deny the motion if plaintiffs show the decree is
needed to protect their rights.
The Act allows courts to protect rights, but otherwise lets state
and local officials run state and local government. That is how it
should be.
Mr. Smith. Let me direct my first question to you, and what
I want to point out is that you are a public interest lawyer,
as is the co-author of the book. You mentioned some of your
background experiences. And in the book, early on, you refer to
who was then the President of the American Civil Liberties
Union informing you that leading public advocacy organizations
have shifted resources from litigation to lobbying, public
education, political organizing, and other avenues of reform.
The point I want to make is that it's not a situation here
where those who are opposed to modifying consent decrees are
all civil liberty lawyers and those who want to reform consent
decrees are all non-civil liberties lawyers. There are a lot of
people like you who have real credibility and are, for that
reason, able to, I think, be very persuasive about the case
that we need to modify the consent decrees.
Let me give you a chance to respond to a couple of the
assertions made by Judge Jones. You can kind of take your pick
here. He said that the bill will significantly raise the cost
and reduce the effectiveness of all law implementation
affecting State and local governments. He said it would deprive
courts of the option of using consent decrees, and there is no
problem that needs fixing. I think you've addressed that. But
if you'd like to respond to the first two points for the
record, that would be good.
Mr. Schoenbrod. I believe that this act would not
significantly reduce the extent to which plaintiffs would want
to use consent decrees. There are powerful reasons, both
doctrinal and practical, for plaintiffs to want to use--
continue to want to use consent decrees.
First of all, as a doctrinal matter, when the decree is
entered not by the consent but over the opposition of the
defendant, the court is not allowed to go beyond what's needed
to protect rights. And if a court does do so, it's very apt to
be struck down on appeal. And so what plaintiffs can get
through a litigated decree is much more limited than is
possible through a consent decree.
Beyond that, there are great practical reasons to prefer a
consent decree. With a consent decree, the plaintiffs could get
immediate relief, quick relief, whereas with litigation, the
litigation takes a long time. Litigation is resource-intensive.
It's very expensive. Judges prefer to have the cases settled by
consent rather than by litigation, and the judges are going to
be pushing in that direction with or without this bill.
There are uncertainties with litigation, and beyond that,
there are questions with attorneys' fees, practical issues of
attorneys' fees that would tend to push plaintiffs' attorneys
toward accepting consent decrees, not the least of which is if
a group of plaintiffs passes up a consent decree and litigates
and doesn't get any more, that is not going to help their fee
application.
Beyond that, it seems to me that when I hear people say
that this bill means that the decrees will be thrown out in 2
years or 4 years, forgets the fact that plaintiffs have open to
them the possibility of showing that the decree is still
needed. So it's not as if the case or the decree just simply
ends after 4 years.
The example Representative Conyers brought up about the
Detroit water pollution project, if it's going to take 11 years
to build the thing and it's not certain it's going to get
built, then it seems to me it's a pretty simple case to show
that a Federal right to meet water pollution standards is
subject to--is in jeopardy and that's the kind of thing that
under this act would allow the decree to continue.
Mr. Smith. Okay. Thank you.
Mr. Goetz, tell me if you agree with me. It seems to me
that those who are concerned about changing consent decrees are
worried about or concerned about the problems it might create
in a theoretical context, whereas people like you who have had
problems with consent decrees are coming at it from a more
practical perspective, and here you dealt with Medicaid in
Tennessee. You have Professor Schoenbrod's statement that
consent decrees are more intrusive and last longer than needed
to protect rights. I suspect that fits the situation in
Tennessee. Do you agree with my point about the difference
between the theoretical and the practical?
Mr. Goetz. Obviously, I have to, just having to be the
person who has to put together the budget for the State of
Tennessee every year and do this. But I respect the experience
of Judge Jones and of others who have come up through this, and
as a non-attorney, I'll have to give that disclaimer, also. I
won't profess to have an opinion on all the legal issues.
But it is a practical reality in the State of Tennessee
that we are not going to have significant new revenues. We
spent 4 years and the previous Administration in a very long
and protracted and ugly tax debate that was ultimately just
produced an increase in sales taxes and no one seems to--and no
one in the State has the stomach for anything else.
So this leaves us, as a practical reality, of having to
choose whether or not we're going to fund a new K-12, or a new
pre-kindergarten program, for example, that we believe is
deeply needed by the children in the State, whether we can
continue to have the safe and effective prison system that we
have. All of those kinds of choices lead us to at least be able
to balance, but unfortunately, the consent decrees make us
unable to balance the interests that we have across the State.
Mr. Smith. Thank you, Mr. Goetz.
I am going to, without objection, recognize myself for an
additional minute so I can ask Judge Jones a question.
Judge Jones, you've had the wonderful experience of being a
Federal judge. What is the harm in allowing, as this bill does,
an elected official to petition a Federal judge and have a
consent decree modified? In other words, you still have the
Federal judge deciding whether or not that request for
modification is legitimate or well-grounded, so what is the
harm of at least having that option out there just in case it
is necessary, in case a consent decree has sort of expired in
its usefulness or been enforced in a lackadaisical fashion or
whatever the reason? Why not give a Federal judge that power?
Judge Jones. There is no prohibition against a public
official or anyone else petitioning a court for a
reconsideration or a modification of a consent decree. That is
inherent in the whole process. In fact, it begins at the time
that the consent decree is being presented to the court. The
court must first--what a party must do is obtain a preliminary
approval of a court of an agreed order that the parties
themselves have negotiated at arm's length. They submit that to
a court for preliminary approval. The court examines that and
decides whether he or she is going to grant preliminary
approval.
At that time, a notice is sent to all potential parties,
members of the class, any person that may be affected, inviting
them to comment at a subsequent hearing, which is called a
fairness hearing. A fairness hearing is very much like a town
hall meeting. Persons can come in, whether they are named
defendants in the case or not. They can come in and comment on
the consent decree.
And what the court considers are three basic things. The
court considers whether the agreement is fair, whether it is
reasonable, and it looks to the whole question of possible
duration. And if it's satisfied itself that it is fair, that it
is reasonable, and that, in all other respects, the public
interest is being served, it can approve the order.
So--and then once it's operating, after whatever period of
time, if any person has an issue with regard to the way it's
being operated and implemented, they can petition the judge to
have this matter revisited. And if the judge grants the
application, there can be--for a hearing, there will be a
hearing. If the judge denies it, there can be an appeal taken.
And I pointed out in my direct testimony that I have sat on
numerous cases in which the appeals dealt with the action taken
by the district judge in either approving or rejecting the
application of a party to modify or act upon a consent decree.
One of my most--one of the last opinions I wrote as a member of
the Sixth Circuit Court of Appeals was in one of these
Tennessee cases in which I reversed the district judge and
remanded the case for a fairness hearing, because in my
judgment, the record shows that some interveners, some parties
who wanted to be heard, were not given that opportunity by the
district judge. And under the Rules of Appellate Procedure and
the Rules of Civil Procedure, those parties have a right to be
heard under the law. And I wrote the opinion for our panel that
reversed and remanded for a hearing.
So that's why I said a moment ago that there's no problem
here. There's a process already in case. And what we're doing,
if there's some particular problems with a particular case,
there's a--all one has to do is petition, if unsatisfied with
the result, appeal. And with the way the courts are now viewing
these matters, I think those who are concerned can be most
reassured that they're going to get a very fair shot at the
appellate level in virtually every circuit.
Mr. Smith. Thank you, Judge Jones.
I don't think we have time for the Professor to respond,
but maybe during the course of the questions and answers yet to
come, he could. But thank you for your comments.
The gentlewoman from California, Ms. Waters, is recognized
for her questions.
Ms. Waters. Thank you very much, Mr. Chairman and Members.
I was tied up, but I'm glad that I was able to get here because
this legislation is extraordinary legislation that seeks to
overturn a very, very important process by which we can settle
big disputes.
I'm from Los Angeles. We are accustomed to having consent
decrees dealing with some very serious problems there.
Mentioned in some of what I have here today is a consent decree
with Metropolitan Transit Authority where poor people and
minorities were not receiving bus service and that consent
decree works out ways by which there would be more bus
purchases and better service would be provided.
I also had an opportunity to quickly review one of these
Tennessee cases and it looks as if they just don't know how to
use technology to get prior approval for medication. It seems
to me in this day and age that that would be very easy to do
and 3 days is a hell of a lot of time to do it.
However, having said that, I focused in, Judge Jones, on
part of your testimony that deals with the civil rights
exemption, or the so-called civil rights exemption, and it
looks as if you say it is far from complete, and I'll just
quote you, ``in the race area, it has no application to voting
rights cases or to the great majority of housing cases, nor
would the bill protect people who are discriminated against
because of their age or gender or condition of disability or
because of their national origin.'' That's very serious. This
is the 40th anniversary of the Voting Rights Act and we don't
know what we're going to have to do just to keep some of those
jurisdictions that are under the watchful eye of the Justice
Department in section 5 in line, and I think there's some
attempt to strip all of that out of the Voting Rights Act. So
this really does catch my attention.
Would you, and maybe you've said it already, again tell
this Committee why you believe that these so-called exemptions
will not, in fact, protect very important law that we have,
particularly Voting Rights Act?
Judge Jones. Thank you, Congresswoman Waters. I think
you're absolutely right in your summary, your analysis. The act
specifically exempts school desegregation, title VI and title
VII. Title VI deals with agencies that receive Federal funding,
and title VII deals with employment discrimination. But that
does not include the issues of housing discrimination,
discrimination faced by--and I should also point out that it
deals with race. It does not exclude and does not exempt
persons who are aged, who are handicapped or disabled, or
persons who are victims of housing discrimination or other
forms of discrimination, ethnic and otherwise.
Ms. Waters. Gender?
Judge Jones. Gender, very definitely, gender is not
included in that exemption. So it does not cover that
situation, and one of the dangers is, that I see--and I must
put on my old civil rights hat here for a moment because I did
serve as General Counsel of the NAACP--I am concerned about
opening the door, the unraveling effect that this legislation
can prompt.
Those who sponsor it may now say, well, we've exempted
school desegregation and we've exempted title VI and title VII,
but who is to say that 5 years from now, somebody will come
along and say, well, okay. Why should we continue to exempt
victims of discrimination who claim discrimination under title
VI or title VII? Why don't we just sweep them in under this
prohibition and limitation?
The problem here is tampering with the courts, the historic
jurisdiction and power that the courts have to be flexible to
deal with claims of racial and other kinds of discrimination,
and to open the door for carving out this type of condition, I
think is very dangerous. Also, it does not create the kind of
protection--or, in fact, it strips the protection from persons
who have traditionally come to rely upon the courts for
protection against claims of racial discrimination and other
kinds of discrimination.
Mr. Watt. Thank you very much, Mr. Chairman and Members. I
think this is extremely serious. And again, like I said, I
mentioned the MTA in Los Angeles, but the Police Department, I
think even the Fire Department all have been operating for a
number of years under consent decrees and it has served us
well.
I would yield back the balance of my time----
Mr. Smith. Thank----
Judge Jones. May I note that national origin is also a
group that is not exempted.
Ms. Waters. That's what I understand from reading this.
Thank you.
Mr. Smith. Thank you, Ms. Waters.
The gentleman from Michigan, the Ranking Member of the
Judiciary Committee, Mr. Conyers, is recognized for his
questions.
Mr. Conyers. Thank you, Mr. Chairman.
I'm trying to figure out benefits that might accrue from a
4-year exploration of consent decrees, and before I do it,
could I ask our witness from Tennessee, did he agree with the
consent decrees that were entered in previously that I think
you inherited, more or less?
Mr. Goetz. We did inherit them, Mr. Conyers. We had an
agreement to change one piece in order to be able to implement
a preferred drug list program, et al., but we advised the
plaintiffs at that time that we did not consider this
sufficient and that we needed to explore other ways to change
the program, and it was in coming up with those other ways to
change the program that the restrictions of the consent decree
became more apparent.
Mr. Conyers. In other words, you're sorry that you entered
the consent decree?
Mr. Goetz. Well, we don't consider ourselves to have
entered into the consent decree, Mr. Conyers. It was--the
language was inherited----
Mr. Conyers. You see, what we're doing here is that we're
bringing judicial decisions, cases that were tried--I mean, in
this one hearing, I think we've had 20, at least, different
cases that have been summarized for us to prove the consent
decrees don't work. I haven't read one of those cases, and I'll
have a lot of work to do at the rate that we're going to use
the strategies here.
But consent decrees suggest voluntariness. I mean, if you
don't like a consent decree, you can go to trial. It's what
both parties enter into. And so I don't want to say I'm hearing
a little bit of sour grapes from a couple of the witnesses, but
consent decrees, if you get what you want in it, are good, and
consent decrees that don't satisfy you or have hidden
significances, well, they are bad.
And so now we are going to fix it by allowing all of them
to expire in the end of 4 years when, as Judge Jones keeps
repeating, you don't have to wait 4 years now to terminate a
consent decree. You can go in the next year. Let's have a 3-
year. Let's have 2 years. Let's have 1 year. Let's not have
any, and you can try to terminate it whenever you get good and
ready.
So I see with the voter rights extensions coming up that
expire, we could end up--I mean, they're complicated enough and
we've needed them for 40 years. To now put a 4-year term limit
on the right to vote, which is far from unsettled that it's
available on an equal basis to everyone in the several States,
would be a very, very difficult thing for us to support.
I would imagine that in many quarters of this country, and
even among lawyers and judges, not to mention the Department of
Justice itself, it would have a humongously unsettling effect.
To say that this isn't going to bother anybody too much,
Professor, doesn't leave me feeling better because you've
written a book about it, which I haven't read, doesn't leave me
feeling any better at all.
I think it's going to have a completely unsettling effect
were this to go forward. I'm hoping that as we study this and
as we get--I know we'll need more than one witness, one set of
hearings, that we really think about this for a minute.
Why is it that anybody that doesn't like a consent decree
can't go forward and have a trial? If you really are against
consent decrees, the lesson I would write an essay about is
don't enter into consent decrees. Don't consent if you don't
mean it.
Mr. Smith. Mr. Conyers, I'd like to recognize you without
objection for an additional minute, but I'd like to recognize
you for that purpose to allow Professor Schoenbrod to respond
slightly or briefly to your point about there would be a 4-
year, in effect, limitation on all the consent decrees. Would
that be all right?
Mr. Conyers. No. Thanks. I'd rather take my 1 minute and
give it to Judge Jones. He may want to improve upon my
commentary.
Mr. Smith. Okay. The gentleman continues to be recognized.
Mr. Conyers. You could enter into a consent decree with me,
Professor, and we could arrange somehow for you to get your
side of this into the testimony. [Laughter.]
But I'm sure that you'll be able to anyway.
Is there anything that I am missing, Judge Jones, here?
Judge Jones. I think you very accurately captured the
crisis that will be generated by the enactment of this type of
legislation, and you've pointed out most appropriately that
consent decrees are just that. They're consent. They're not
unilaterally entered into. The parties must agree. And what
they agree with, when they agree, they have a contract which
the court scrutinizes for fairness and for reasonableness. And
once that's been approved, it's a deal, and if there's a
challenge to it, they can petition the court for a modification
or an adjustment.
There has been a reference made to a book which I have not
read. I've read summaries of the book, and I'm not here
promoting a book, but I would like to commend to the Committee
another book, and that is the Kerner Commission report of 1968.
It is still very relevant, and with Congressman Conyers coming
from Detroit, and Detroit was a major point of upset that led
to the appointment of the Kerner Commission, and Congresswoman
Waters from Los Angeles coming from a city that had Watts, both
cities are among those mentioned in this report.
I think we have forgotten the lessons that are set forth in
this report and I would urge that along with reading the good
Professor's book, that you might want to revisit the Kerner
Commission report.
Mr. Conyers. Mr. Chairman, could we get time so that the
Professor could make a response to myself and Judge Jones?
Mr. Smith. Mr. Conyers, you took the hopes out of my
thinking. I thank you for suggesting that, and without
objection, the gentleman from Michigan is recognized for
another minute so that Professor Schoenbrod can respond.
Mr. Schoenbrod. Thank you very much, Representative Conyers
and Mr. Chairman. I didn't say that nobody would be upset about
this legislation. What I did say was that I thought that
plaintiffs would continue to want to use consent decrees.
The issue here is not whether we're going to outlaw consent
decrees or not. Nobody is saying we're going to outlaw consent
decrees. The issue was whether the lodestar after which decrees
should be used is the protection of rights or the defense of
old contracts, old contracts entered into through consent
decrees.
And it seems to me the reasons why we should be limiting
these decrees to protecting rights and not defending old
contracts are very well expressed in a quote I want to read
from Justice Brennan. ``One of the fundamental premises of our
popular democracy is that each generation of representatives
can and will remain responsive to the needs and desires of
those whom they represent. Crucial to this end is the assurance
that new legislators will not automatically be bound by the
policies and undertakings of earlier days. Nothing would so
jeopardize the legitimacy of our system of government that
relies upon the ebbs and flows of politics to clean out the
rascals than the possibility that those same rascals might
perpetuate their policies simply by locking them into binding
contracts, and one kind of those binding contracts is the
consent decree, many of which last for decades.''
Mr. Smith. Thank you, Professor. Thank you, Mr. Conyers.
The gentleman from California, Mr. Berman, is recognized
for his questions.
Mr. Berman. My guess is that the next President, be it
Democrat or Republican, is going to come into office on January
20 of 2009 and say, ``Geez, I wish we weren't mired down in
Iraq. Can I start all over again?'' It doesn't always work like
that. This notion that I'm new, I shouldn't be stuck with the
obligations of the--I mean, that's the institutional process in
this country. We become, we inherit a lot when new
Administrations come in, whether it's city, State, or Federal.
I'm wondering, I'm curious how the Congressmen and the
Senators from Arizona would feel once this became law, that
voracious water-sucking California will now be able to take a
case which was filed in 1952 for which there was a consent
decree between the two States, approved by a judge with a
special master, who I don't believe was working at the
equivalent in 1950's and '60's dollars of $70 an hour, a
consent decree in 1964, several supplemental decrees, a 1989
motion to open the decrees to allot additional water rights for
Indian reservations, and a 2000 Supreme Court ruling on whether
that motion was precluded.
I'm not sure the people of Arizona want California, every
single time we have a new governor's election, to be able to
reopen that consent decree so Arizona can reestablish within 90
days their rights to water from the Colorado River against what
California is taking. So what about that exemption for water
cases, and the next case, and then the next case? There are
some consent decrees--and by the way, however that court
decides, it will be appealed and the Supreme Court will be
seeing that case every single time because the interests are so
vast and California is so thirsty.
I am troubled. I understand your point, Professor, and I'll
think about it more, about this notion of why it won't affect
the interest in settling. But my guess is what mostly happens
when these lawsuits are filed is the governor, the director of
finance of the State, the mayor of a city goes to the Attorney
General's office or to the county counsel or the city attorney
and the guy says, ``We've got exposure here.'' That L.A. Police
Department consent decree didn't come into effect because L.A.
had been doing everything right and they just wanted to find a
nice way to change the way they were reviewing brutality cases
and all that. It came because they had some serious legal
problems.
And the plaintiffs--I mean, I hear--I don't know what the
Federal judge can do to force a public interest attorney--and
by the way, notwithstanding your support for this bill, a lot
of public interest attorneys I talked to strongly disagree
about whether it's good or not--but I can't think what a
Federal judge can do to leverage a plaintiff's lawyer to settle
a case for a client who presumably knows what's going on when
he has to tell him that in 6 months or 1 year or 1 year and a
half, this thing will open up again and you will have to retry
this case to have anything of this consent decree that they're
now agreeing to enter into with you.
I mean, I really--it seems to me like on that issue alone,
there is a massive new dynamic that enters into this, and yes,
the decrees may be broader than the Federal rights, but there's
a reason why the governmental entity is settling, an it isn't
just because they're a nice guy or they feel guilty of what
they've been doing or--it's because they think they could lose
in court. And once they can only lose for a short time, isn't
that dynamic changed so massively that the incentive to settle
is so diluted and diminished that--so go back over that again,
if you would, Professor.
Mr. Schoenbrod. Thank you. I think you're right that often
these cases are settled because the defendant has done
something very wrong and is in trouble. But then there's what
you mentioned that the decrees get broader.
But the point is that in many of these situations, it's
going to take a while for the defendant city or State to fix
the problem, and that's the very reason why the city or State
is not going to go back into court as soon as possible because
it's just going to put egg on the mayor or the governor's face
because they're going to still have a deficient problem, or a
deficient situation, and they're going to have to pay fees to
the plaintiffs for having to prove what they didn't have to
prove before.
So I know of cases in New York where I think New York City
could actually get out from under the decrees and they're not
doing it, even where they've, in fact, fixed the problem, just
because of the bureaucratic momentum.
Mr. Berman. There are some politicians who want----
Mr. Smith. Without objection, the gentleman from California
is recognized for an additional minute.
Mr. Berman. There are some politicians who--I'm going to--
vote for me and I'm going to show you, I'm going back into
court and I'm going to go after this thing, and let me tell
you, they're going to have to prove their case. A judge is
going to have to order me to do that. And he'll run his
election campaign and presumably, because he'll want a second
term, if he has the popular side of an issue where rights are
being violated, and once in a while those are not the same
sides, he's going to have all the political motivations to do
it, apart from a judgment, a legal analysis of the merits.
Mr. Schoenbrod. Well, I trust the judge, that the judge is
going to be capable of figuring out where the rights are
violated, and where the rights are violated, the defendants
still are going to be bound.
Mr. Smith. Thank you. Thank you, Mr. Berman.
I'd like to thank all the Members for their attendance, the
witnesses for their testimony, and the audience for their
interest. This has been a very good hearing. It's not often
that the Ranking Member and I disagree on issues before the IP
Subcommittee. This happens to be one of the rare instances.
Nevertheless, we've learned a lot. We appreciate what you all
had to say, and Professor Schoenbrod, you bore the brunt here
today, but I think that if individuals will read your book,
they'll realize that you're trying to achieve the same results
that they are, and I think that's what's important.
Without objection, we stand adjourned.
[Whereupon, at 7:05 p.m., the Subcommittee was adjourned.]
A P P E N D I X
----------
Material Submitted for the Hearing Record
Prepared Statement of the Honorable Howard L. Berman, a Representative
in Congress from the State of California, and Ranking Member,
Subcommittee on Courts, the Internet, and Intellectual Property
Mr. Chairman, I would like to thank you for scheduling a hearing on
H.R. 1229. While I understand the motivations behind the bill, the
legislation raises more issues than it solves.
H.R. 1229 purports to be a ``balanced system that protects the
rights of individuals to hold state and local governments accountable
in court, while preserving our democratic process through narrowly
drawn agreements that respect elected officials' public policy
choices.'' But in fact, it creates far from a balanced system.
This bill would virtually eliminate all consent decrees involving
state and local governments. The bill shifts the burden of proof from
the defendant to the plaintiffs and require them to re-prove their case
every few years. Counsels for plaintiffs will simply refuse to enter
into any such decrees, for fear that they would have to re-litigate in
four years or sooner, if there is a new administration. They will
insist on going to trial in every case in order to protect their
clients. In fact, I find it ironic that the proponents of class action
reform would support legislation that actually increases opportunities
for trial lawyers. Perhaps H.R. 1229 should more properly be entitled
``The Trial Lawyers' Full Employment Act of 2005,'' as it is almost
certainly guaranteed to result in an increase in litigation.
Furthermore, the requirement that the court rule in 90 days
requires that plaintiffs re-prove their entire case in a completely
unrealistic timeframe. And of course, defendants will have every
incentive to delay and drag out discovery, so the 90-day requirement
alone is a death knell for consent decrees.
The bill also provides that to continue the decree, the plaintiff
must prove that continuation is necessary to ``uphold a federal
right.'' But many of the laws covered by this bill impose important
requirements, but don't necessarily confer ``rights'' on individuals
within the meaning of recent Supreme Court cases.
Furthermore, the bill also suffers from an overly narrow carve-out
for civil rights which does not ensure that civil rights are protected.
(Explicitly exempted are those consent decrees involving school
desegregation on the basis of race, color, or national origin, as well
as actions to remedy racial discrimination under Title VI and VII of
the Civil Rights Act of 1964.) The Title VI and VII exemptions only
apply to discrimination on the basis of race. Consent decrees to remedy
discrimination on the basis of national origin, gender, age, or
disability remain covered by the bill.
Because the bill's definition of ``consent decree'' is much broader
than the traditional definition, any court order ``based in whole or
part upon the consent or acquiescence of the parties'' may be covered.
But courts always ask both parties for input into final orders. So if a
court takes a suggestion from the losing party, or the losing party
declines to object, or appeal, that might leave a final court order
just as unenforceable as a true consent decree.
Then there is a special master compensation provision which sets an
unreasonably low cap on pay. The bill's proponents seem to want to
discourage competent professionals from serving as monitors.
This is a solution in search of a problem. HR 1229 purports to fix
a problem that does not exist. Existing federal law already permits the
modification and dissolution of consent decrees. The courts currently
apply a generous and flexible standard for allowing state and local
governments to modify or terminate existing consent decrees. If the
parties, or politicians for that matter, want to change aspects of the
consent decree, they are free to petition the court to do so now.
All this is done in the wake of a unanimous 2004 Supreme Court Frew
decision which instructed local district courts to afford significant
deference to state officials' preferences in fulfilling the state's
obligations. All nine Justices--that includes Scalia, Thomas, and
Rehnquist--proffered some guidelines that district courts should use
when reviewing consent decrees to determine whether or not they should
continue to remain in place. They didn't say to get rid of consent
decrees. Instead, they suggested the prescription to fix the problem.
They wrote: ``As public servants, the officials of the State must be
presumed to have a high degree of competence in deciding how best to
discharge their governmental responsibilities. . . . If the State
establishes reason to modify the decree, the court should make the
necessary changes; where it has not done so, however, the decree should
be enforced according to its terms.''
Therefore, I disagree in the first instance that state and local
officials' hands are truly tied, but if they are, the answer is not to
alter the standards for consent decrees. Congress should either fund
the mandate or change the underlying federal law. Consent decrees are
just a convenient scapegoat.
This bill will not fix any of the problems that the proponents
cite. In fact, it will actually create more problems than it will
solve.
I yield back the balance of my time.
__________
Prepared Statement of the Honorable John Conyers, Jr., a Representative
in Congress from the State of Michigan, and Ranking Member, Committee
on the Judiciary
This bill is a blow to victims of police brutality, the disabled,
and victims of state-sponsored pollution. It is unseemly that states
would promise to comply with federal civil rights and environmental
laws and then come to Congress in order to get out of such obligations.
First, by requiring virtually every federal consent decree with
state and local governments to be relitigated every four years, it
would set back decades of progress in civil rights enforcement, gut the
Americans with Disabilities Act, and permit any locality to violate the
Clean Water and Clean Air Acts. I am curious to hear why supporters of
this legislation believe that police departments that abuse citizens or
state agencies that fail to have wheelchair ramps at front entrances
should receive a ``Get out of Jail Free'' card in four years.
Second, in my opinion, the best way for a state to get out of a
consent decree is for it to comply with the law. Federal consent
decrees are not permanent; the parties and courts are free to revise
the terms of decrees as circumstances change and as the defendants
improve their behavior. Creating a set timetable for review, as this
bill does, would give greater bargaining power to lawbreakers.
Finally, those of us who are concerned with the unequal treatment
of citizens believe the Justice Department brings too few, not too
many, civil rights and environmental lawsuits. When it does bring
cases, the Department uses consent decrees to ensure compliance with
basic civil rights protections. Weakening consent decrees would make it
impossible for the Department to ensure compliance with the law and
invite states to break the law.
Creating a way out of the system is the same as suggesting that
some people deserve lesser treatment than others, and I thought we had
crossed that rubicon in the 1960's. At a time when we still see unarmed
citizens being beaten by police officers and the mentally ill are being
abused at state-run care centers, we should be strengthening federal
law enforcement, not weakening it.
__________
Prepared Statement of the Honorable Maxine Waters, a Representative in
Congress from the State of California
Mr. Chairman, H.R. 1229, the Federal Consent Decree Fairness Act,
has aspects that could prove detrimental to consent decrees as they
stand now. Consent decrees have been a valuable tool in the
administration of justice by providing an alternate way to resolve
claims involving state and local governments without protracted and
costly litigation. Also, consent decrees offer the opportunity for
parties to work together to resolve their dispute and do not impose
requirements that have not been mutually agreed to by both parties.
However, H.R. 1229 proposes reforms that could seriously impede the
usefulness and power of consent decrees.
Mr. Chairman, H.R. 1229 specifically undermines the purpose of
consent decrees, making it a less attractive option to plaintiff's
lawyers. To illustrate, H.R. 1229 allows the defendants, the party
responsible for the initial violation that brought about the need for a
consent decree, to file a motion to modify or vacate a consent decree
after four years or any time a new administration is elected. This is
allowed regardless of the timelines instituted in the original consent
decree, and regardless of whether the defendant has complied with the
consent decree. This provision will lead to the plaintiff's having to
reprove their cases, even in situations where the defendant has failed
to redress the violations that brought about the need for a consent
decree.
Existing law already provides for the modification and termination
of consent decrees. For, the law allows revision or dissolution of a
consent decree if a party shows that a significant unanticipated change
in circumstances warrants such revision or termination. Therefore, H.R.
1229 is not creating needed reform for the challenge of consent
decrees. Current law already provides a strong basis to question the
validity to all or some aspects of existing consent decrees.
Mr. Chairman, H.R. 1229 also undermines consent decrees by
automatically nullifying such decree if a court does not respond to a
defendant's motion within ninety days. This time period is way too
short. With courts having so many cases on their dockets, usually
motions are not responded to so fast. In addition, plaintiffs should
not be forced to re-litigate their cases in such a small time frame.
Mr. Chairman, these are just a few examples of how H.R. 1229 seeks
to undermine the usefulness of the consent decree. If such a bill were
to pass, plaintiff's attorneys would no longer see consent decrees as a
sensible, viable option for their clients, leaving would-be plaintiffs
with few legal means to seek protection of their civil rights. We need
solid and dependable protection for civil rights and consent decrees
have proven to be a valuable instrument in this area of the law and I
yield back the balance of my time.
Letter from Curtis L. Child, Senior Attorney, National Center for Youth
Law, to the Honorable Lamar Smith, a Representative in Congress from
the State of Texas, and Chairman, Subcommittee on Courts, the Internet,
and Intellectual Property
Letter from Gene Kimmelman, Senior Director, Public Policy and
Advocacy, to the Honorable John Conyers, Jr., a Representative in
Congress from the State of Michigan, and Ranking Member, Committee on
the Judiciary
Letter from Eric Mann, Director, Labor/Community Strategy Center
(LCSC), and Barbara Lott-Holland, Co-Chair, Bus Riders Union (BRU), to
the Honorable Howard L. Berman, a Representative in Congress from the
State of California, and Ranking Member, Subcommittee on Courts, the
Internet, and Intellectual Property
Prepared Statement of Mark L. Shurtleff, Utah Attorney General
INTRODUCTION
Mr. Chairman and members of the committee, my name is Mark
Shurtleff and I am the Attorney General of the State of Utah. I
appreciate the opportunity to address you today and share my concerns
about how federal consent decrees have impacted the judicial,
legislative and political processes of the State of Utah. I have served
four years on the Federalism Working Group of the National Association
of Attorneys General, and led nineteen other state AGs on an Amicus
Brief in support of Texas in it's case challenging a federal consent
decree before the United States Supreme Court in Frew v. Hawkins, et
al., 540 U.S. 431 (2004) (attached as Exhibit 1.) I can assure you that
many of my colleagues share my concerns. I can also report that many of
us are encouraged that Congress, this committee, and in particular
Representative Blunt and his co-sponsors, have seen fit to try and
address those concerns in H.R. 1229.
SEPARATION OF POWERS
It goes without saying that one of the greatest protections to our
liberty as Americans crafted by the Founding Fathers was the
constitutional separation of powers. The horizontal separation among
three branches of government was a legal barrier to tyranny. As stated
by James Madison in The Federalist Papers, No. 47, too much power in
one branch of government ``is the very definition of tyranny.'' Citing
Montesquieu, he went on to explain that, ``were the power of judging
joined with the legislative, the life and liberty of the subjects would
be exposed to arbitrary control, for the judge would then be the
legislator. Were it joined to the executive power, the judge might
behave with all the violence of an oppressor.''
As important to strength of democracy in America today is the
constitutional guarantee of a ``vertical'' separation of powers between
the federal government and the states. This principle of federalism,
often tested as in the present case, has nevertheless been the taproot
of a democratic tree made of fifty sovereign states joined together in
one powerful sovereign nation. It is the sworn duty of state attorneys
general to uphold, protect, defend and execute the laws of this nation
and of the State of Utah. I am here today to sound a warning cry that
unfettered and unchecked manipulation of consent decrees by federal
judges attacks both the horizontal and vertical foundations of freedom
as guaranteed by the separation of powers doctrine.
In fairness to the federal judicial branch, I must inform you that
the United States Supreme Court recently expressed it's concerns
regarding the current state of consent decrees and unanimously
recognized and validated the concerns of state attorneys general as set
forth in our Amicus Brief in Frew v. Hawkins. Although the court in
that case denied Texas' effort to get out from under what had become an
abusive decree and overreaching federal judicial control of state
executive functions, it recognized as ``legitimate'' the state
officials' concerns that ``enforcement of consent decrees can undermine
the sovereign interests and accountability of state governments.''
Writing for the court, Justice Kennedy concluded that ``if not limited
to reasonable and necessary implementations of federal law, remedies
outlined in consent decrees involving state officeholders may
improperly deprive future officials of their designated legislative and
executive powers. They may also lead to federal court oversight of
state programs for long periods of time even absent an ongoing
violation of federal law.'' Frew, Id. 441. (Attached as Exhibit 2.) The
court reminded judges who are enforcing federal consent decrees that,
principles of federalism require that state officials with
front-line responsibility for administering the program be
given latitude and substantial discretion. The federal court
must exercise its equitable powers to ensure that when the
objects of the decree have been attained, responsibility for
discharging the State's obligations is returned promptly to the
State and its officials. As public servants, the officials of
the State must be presumed to have a high degree of competence
in deciding how best to discharge their governmental
responsibilities. Id. at 442
We are encouraged at this direction given to federal judges. If
they follow that direction, principles of federalism and separation of
powers will be preserved. Unfortunately, those directions were stated
in dictum and do not carry the weight of the law on the matter. I
therefore urge the Congress of the United States to codify into law the
intent of the Court's dictum by enacting the very reasonable
protections set forth in H.R. 1229. By establishing reasonable time
limits on decrees, focusing the burden of proof for extending decrees
to the plaintiff, and limiting the compensation and term of special
masters, Congress would do much to ensure the healthy balance of power
between branches and layers of governments.
Please understand that while every consent decree arises out of
litigation over state implementation of federal programs, I am not here
to challenge or pass judgment on your authority to enact laws that have
launched hundreds of federal agency regulations imposing thousands of
court enforceable mandates on state and local government. Many of those
laws were enacted with the support and encouragement of state and local
elected officials. I do remind you, however, that, as stated by
Professors Ross Sandler and David Schoenbrod in their New York Law
School Law Review article entitled The Supreme Court, Democracy and
Institutional Reform Litigation,
``given the number and specificity of these mandates and their
tendency to set aspirational standards for state and local
government, it is no great trick for private advocates to
discover some aspect of a large state or local program that
falls short, be it Medicaid, special education, environmental
protection, or foster care.'' 49 N.Y.L. Sch. L. Rev. 915,
926.(Attached as Exhibit 3.)
State and local officials, in responding to many of those legal
challenges, have found it advantageous to settle rather that litigate,
and to agree to federal judicial oversight of the settlement agreement.
The problem we are asking you to take a role in remedying is in the
increasing propensity of federal judges to extend the agreements beyond
the requirements and terms agreed by the parties, and to impose duties
and expenditures upon the states that go well beyond requirements not
only of the settlement agreement but also beyond those imposed by the
federal law that created the program. As stated by Professors Sandler
and Schoenbrod,
Plaintiffs' lawyers can use the threat to litigate to exact new
obligations. Decrees that begin at fifty or eighty pages grow
in length to hundreds and even thousands of pages, and thus
become increasingly difficult to escape . . . Prison cases, it
is not too much of an exaggeration to say, may start by
challenging brutality and end with decrees specifying the
square footage of cells, the temperature of food in the dining
room, and the availability of television and movies. Id. at
928.
DAVID C.--A UTAH CASE STUDY
Allow me to share with you a case we have been dealing with in Utah
for over a decade that clearly illustrates my point. In 1993, the
National Center for Youth Law in Oakland, California brought a class
action lawsuit on behalf of children against the Governor and other
officials of the State of Utah, alleging federal constitutional and
statutory violations in the operation of Utah's child welfare system.
In recognition of the need for improvements, the Utah Legislature
passed the Child Welfare Reform Act effective July 1, 1994. The Act
codified many federal statutory requirements and provisions and
established stringent new time limits and standards. The parties
thereafter entered into a settlement agreement that included many of
the provisions of the new law, and imposed 93 substantive requirements
on Utah, including the duty to investigate reports of child abuse or
neglect within specific deadlines; provide placement support services
for foster parents; and ensure that foster children attend school and
receive medical and dental treatment. The agreement was incorporated
into a final Consent Decree order signed by the district court on
August 29, 1994. By agreement, the decree was to terminate on August
29, 1998. Termination was expressly not made subject to Utah achieving
any set degree of compliance by the end of the four-year period. There
was nothing in the agreement that would allow the parties, or the
court, to modify or extend the end date for any reason.
The State of Utah undertook extraordinary efforts to improve our
childcare system and to meet our part of the agreement. Nevertheless
(as is sadly too often the case,) the plaintiffs weren't satisfied with
their interpretation of progress, and brought an action two years into
the decree asking the federal judge to order that Utah had acted in bad
faith and to appoint a receiver to take over the entire Division of
Child and Family Services. In denying those requests, U.S. District
Court Judge David Winder praised the State's efforts and noted the
State's infusion of large amounts of human and financial resources into
the Utah child protection system; its training of staff and foster
parents; and its reorganization of relevant State agencies. In fact,
the Utah Legislature increased funding to DCFS by 108% ($49 million to
$102 million) from 1994 to 1997 that resulted in a 49% increase in
supervisors, a 60% increase in caseworkers, a 49% increase in support
staff and the hiring of 42 new contract case workers! Still, in
recognition of the difficult task at hand, Judge Winder cautioned,
``The problems of child welfare are very complex. Defendant's task is
large, and the recognition that to effectuate change requires time
reflects no more than a healthy sense of realism.'' Unfortunately, the
wall of separation between branches of government and between federal
and state sovereignty began to crumble from that point on.
During the next fourteen months of the decree, the appointed
``monitoring panel'' did not issue any new compliance reports and
plaintiffs did not seek any more enforcement assistance from the
federal court. But just four months prior to the agreed upon mandatory
termination date, the panel, for the first time, morphed the 93 agreed
provisions into 316 items and arbitrarily found that the State had only
met 20% of these new requirements. A week later the plaintiffs filed a
motion to extend the term of the decree. A new federal judge had since
been appointed, and in reviewing the facts, stated that she found it
``hard to imagine that [the increases have] actually led to a 5%
decline in child welfare as the panel report suggests.'' She denied the
motion to extend, but stated her opinion that the agreement had
``failed.''
Just two weeks before the termination of the decree, plaintiffs
asked the court to modify the agreement and order and approve and brand
new Comprehensive Plan. In October of 1999, more than a year after the
consent decree terminated by its own provisions, the judge stated: ``It
appears to me that I will be keeping jurisdiction until I am told by
the monitor that it is fine for me to get out.'' Four days later she
granted plaintiff's motion and ordered Utah to comply with the new plan
indefinitely. We appealed to the Tenth Circuit which affirmed the
decision finding the federal court had the ``inherent equitable power
to modify'' an unlitigated consent decree and, therefore, in effect
held that a federal court could substitute its judgment for that of the
parties to an agreement and change any provision of that agreement even
over the State's objection.
In 2001 the U.S. Supreme Court denied our Petition for Cert. In
2003 the federal judge, who now appears to be acting not only a state
executive but also a state legislator, ordered Utah to comply with the
new plan requiring additional funding, training, and sufficient
appropriation to hire fifty new employees by DCFS. And so it goes.
During the 2004 and 2005 legislative sessions, dozens of bill were
filed to amend the laws relating to child protection issues in response
from public outcry that the pendulum had swung the other direction and
children were being removed too soon and parental rights were being
violated. Most of the bills did not pass, partly out of concern by the
legislature that the federal judge would find those changes to further
violate the court's plan and keep Utah's child welfare system under the
federal ``thumb'' for more years. There is a strong sentiment in Utah
that it is not state elected officials, but an unelected, lifetime
appointed federal judge who controls Utah's child welfare system.
CONCLUSION
The federal judge in the David C. case has not yet taken the
opportunity to follow the advice of the Supreme Court stated in dictum
in Frew, that,
A State, in the ordinary course, depends upon successor
officials, both appointed and elected, to bring new insights
and solutions to problems of allocating revenues and resources.
The basic obligations of federal law may remain the same, but
the precise manner of their discharge may not. If the State
establishes reason to modify the decree, the court should make
the necessary changes; where it has not done so, however, the
decree should be enforced according to its terms.
We must now look to Congress to give life and the force of law to
the ``hopes'' of the Supreme Court as to how judges will recognize the
fundamental requirements of separation and federalism. As stated by
Professors Sandler and Schoenbrod,
Still it will be hard for judges to follow the guidance of
Frew. The way in which modification motions usually present
themselves appear to call for a toughness by the judge not
demanded at the time of the initial consent. In the initial
negotiations, every effort is made to reach agreement to avoid
litigation. Later, judicial flexibility disappears and in its
place appears a hardness and desire to hold the defendants'
feet to the fire. As former federal judge Marvin Frankel said
concerning his role as a special master at the beginning of an
institutional reform case involving special education, `My job
was to get an agreement,' because in complex cases, `you rely
on the parties to work it out.' But Special Master Frankel was
much less flexible three years into the case when the consent
decree's complex plan for evaluating, placing, and teaching
100,000 children with special needs proved difficult, costly,
and largely unworkable, and produced many unwanted side
effects. He then wrote that `[t]he time has come, it is now
believed, for defendants either to comply with the judgments or
to confront the familiar consequences of noncompliance . . .
Demanding respect for their expertise, defendants ought to get
it. Promising compliance, they ought to achieve it or face
contempt charges.' The Frew dictum, made in a context of a
motion for contempt, speaks to this reality by instructing
judges and litigants that they are not to forget the values
associated with local democracy and flexibility, nor the
difficult reality or costs of social change. Judges walk a fine
line when affirmatively dictating how government will deliver
its services. The Frew dictum, if followed, shifts the judicial
balance toward democratic values and away from contractual
rigidity. The Supreme Court, Democracy, and Institutional
Reform Litigation, supra, at page 929.
Once again, let me thank you for considering a law that would put
reasonable limitations on the ability of federal judges to supplant the
authority of state and local executive and legislative officials and
thereby, in the words of Sandler and Schoenbrod, ``create rights rather
than enforce them.''
ATTACHMENT
Prepared Statement on the negative impact of the proposed legislation
(S. 489, H.R. 1229) on the transit dependent of Los Angeles from the
Los Angeles-based Labor/Community Strategy Center and Bus Rider Union
(LCSC/BRU)
The Los Angeles based Labor/Community Strategy Center and Bus
Riders Union (LCSC/BRU) is the lead plaintiff in a class action
lawsuit, which resulted in a consent decree to massively improve the
Los Angeles bus system, brought by the NAACP Legal Defense and
Educational Fund (LDF) against the Metropolitan Transportation
Authority under Title VI of the 1964 Civil Rights Act. After more than
a decade of work preparing litigation, negotiating a settlement, and
enforcing its terms, we understand the critical importance of consent
decrees as one of the few legal tools we have to try to protect and
enforce hard won civil rights in those cases where a government agency
does not voluntarily do so itself.
The consent decree we signed with the Los Angeles MTA has resulted
in significant improvements for the transit dependent--designed to
remedy years of inequities in the allocation of resources within L.A.'s
transit system--since it was signed in 1996. In our original suit, the
LCSC/BRU charged the MTA with establishing a separate and unequal mass
transportation system. MTA was allocating the lion's share of public
money to high cost-overrun rail construction projects designed to serve
more affluent, and more often white, riders. This came at the expense
of more than 90% of MTA riders who depend on the bus system, and who
are more than 80% Black, Latino, Asian/Pacific Islander and profoundly
poor.
To remedy this inequity, the LCSC/BRU-MTA consent decree makes the
L.A. bus system the priority. Specifically, the decree mandates low
fares, massively reduced bus overcrowding and new service to improve
access to health care, education and job centers for bus riders through
the reallocation of funds from other programs outside the bus system.
Over the past 8 years, our work to enforce the terms of the decree has
already achieved:
1) the replacement of 2,000 old, mostly diesel, buses with
new, clean fuel, compressed natural gas buses--resulting in a
cleaner, more reliable bus fleet;
2) the expansion of the bus fleet by approximately 350 buses
to reduce massive overcrowding--resulting in markedly improved
conditions for bus riders, including less overcrowding and
shorter wait and transfer times;
3) no fare increase for a 7 year period.
Though MTA is frequently frustrated with having to fulfill the
contract they signed, and in fact has stalled, fought our claims, and
appealed every step of the way, even the agency ultimately admitted
that the buses ``are worth every penny'' and have plastered Los Angeles
with an advertising campaign proclaiming ``Things Are Getting Better on
the Bus.''
Senator Alexander says that the consent decree has ``forced the
Metropolitan Transit Authority [sic] to spend 47 percent of its budget
on city buses--leaving just over half the budget to pay for all the
rest of the transportation needs of the city of Los Angeles.'' Yet, a
47% allocation for 90% of the agency's ridership is hardly overspending
on bus riders--imagine the administration of a 90% Black school
district spending only 47% of its funds on Black children!
If the proposed legislation passes, consent decrees will rarely if
ever be signed, thereby effectively cutting off this important legal
tool designed to protect the rights of historically disenfranchised
groups. Before signing our consent decree in 1996, the Los Angeles MTA
was raiding funds from the inner city bus sysetm to feed their costly
train and suburban rail projects. If this had been allowed to continue,
the overwhelmingly working class and poor Black, Latino, and Asian
Pacific Islander bus riding class would have seen their mobility and
access to jobs, hospitals, and other crucial services go from already-
bad to even-worse. The MTA was violating the civil rights of bus
riders, and it took the signing of a consent decree to hold the MTA, a
$3 billion agency, accountable.
Article entitled ``Breaking the Deal,'' by Timothy Stoltzfus Jost,
Legal Times
Letter from William Taylor, Chairman, Citizens' Commission on Civil
Rights, and Vice Chair, Leadership Conference on Civil Rights (LCCR),
to the United States Senate
Article entitled ``Sunset for Consent Decrees,'' The Washington Post,
written by Simon Lazarus, Public Policy Counsel, National Senior
Citizens Law Center
Letter from Barbara B. Kennelly, Chair, Leadership Council of Aging
Organizations (LCAO), et al., to the Honorable John Conyers, Jr., a
Representative in Congress from the State of Michigan, and Ranking
Member, Committee on the Judiciary
Letter from the Leadership Conference on Civil Rights (LCCR)
Legal Case submitted by the Honorable Lamar Smith, a Representative in
Congress from the State of Texas, and Chairman, Subcommittee on Courts,
the Internet, and Intellectual Property
Letter from Marcia Robinson Lowry, Founder and Executive Director,
Children's Rights
Letter to the Senate and House in opposition to
the Alexander-Blunt legislation
Prepared Statement of the Conservation Law Foundation (CLF)
The Conservation Law Foundation (CLF), New England's foremost
regional environmental advocacy group, strongly opposes the proposed
Federal Consent Decree Fairness Act. CLF has a long history of
protecting New England's communities and environment by using law,
economics, and science to create innovative strategies to conserve
natural resources and protect public health. Long term consent decrees
have been a critical tool in ensuring environmental progress in New
England.
CLF has entered into several long term consent decrees that have
resulted in major environmental gains. One notable example is the
cleanup of the Boston Harbor. In U.S. v. Metropolitan District
Commission and its companion case Conservation Law Foundation v.
Metropolitan District Commission, the United States and the
Conservation Law Foundation sued the State of Massachusetts under the
Clean Water Act to stop sewage discharges to the Boston Harbor. The
parties to that case signed a consent decree that initiated a large-
scale infrastructure improvement project that is scheduled for
completion in 2015, which is 29 years after the initial project
schedule was ordered. Without a predictable, long term enforceable
schedule, the cleanup of the Boston Harbor would not have been
successful.
Likewise, in Conservation Law Foundation v. Fall River, the court
found that the City of Fall River, Massachusetts was in violation of
the Clean Water Act due to unauthorized combined sewer overflow (CSO)
discharges. In 1992, the court ordered the City to design and implement
a CSO facilities plan, which is scheduled to be complete in 2018. This
project has drastically reduced CSO discharges and immeasurably
improved water quality for the citizens of Fall River.
In complex environmental litigation, a consent decree is very often
the only way to ensure consistent progress on a complex project subject
to pressure from various political interests. Premature curtailment of
such consent decrees would result in significant public expenditures
with little or no environmental benefit. The uncertainty inherent in
the consent decrees envisioned by the Federal Consent Decree Fairness
Act would compromise future innovative solutions to clean up our air,
land, and waterways. In sum, this Act would undermine CLF's ability to
ensure compliance with federal and state laws and protect New England's
environment as well as the health and well-being of its residents.
__________
Prepared Statement of Barbara Lott-Holland, a transit-dependent bus
rider in Los Angeles, and member and co-chair, Bus Riders Union (BRU)
My name is Barbara Lott-Holland and I am a transit-dependent bus
rider in Los Angeles. I am also a member and co-chair of the Bus Riders
Union, which in 1996 signed a Consent Decree with the MTA. This Consent
Decree was signed after we sued the MTA for transit racism under Title
VI of the 1964 Civil Rights Act. There are several components of the
Consent Decree but the overall objective of it is to require the MTA to
improve the bus system and therefore increase the county-wide mobility
for LA's transit dependent.
Before we signed the Consent Decree, conditions of the bus system
were terrible and only getting worse. Lines were so overcrowded, that
we would be packed in like sardines--sometimes as many as 50 people
standing. Buses would frequently pass you by because they were so
overcrowded. Buses would break down all the time because they were so
old. You would wait forever at a bus stop--sometimes more than an
hour--trying to get to work, to school, to pick up your kids.
Riding on an overcrowded bus is really dangerous. Being a women
especially we are more likely to be robbed and pressed up against
someone and sexually violated. If there is an accident or the bus stops
short, and there are so many people standing, there is nothing to hold
to so people can fall and get really hurt. When it's really crowded,
you can't always get to the exit in time. Mental anguish is high when
buses are overcrowded and continuously late. You always worry about
being late to work and possibly fired. If there are more buses, it
means less overcrowding and also that they will come with greater
frequency, which means less stress and most importantly, more
opportunities for jobs, housing education, health as well as
recreational because you know you can there more easily.
Because of the poor condition of the transportation system, I have
to choose jobs and housing based on transportation access. This means I
have had to limit which jobs I can even apply for, even if it means
taking a job for less pay. The poor transportation system also means
you have to spend a lot of your day getting to and from work, time that
is not compensated for and time that could be spent with your family.
Many domestic workers, for example, travel 2-3 hours one-way. My aunt
was a domestic and she had to wake up much earlier in order to catch
the bus to her job, because the next bus, which comes an hour later,
will get her there too late.
As the MTA announces, ``things are getting better on the bus.''
Some of the lines I ride, like the 204, are noticeably less crowded
than they were before. The frequency of some lines is also a lot
greater. By having the Rapid buses, you are able to get from places
faster. Also, for seven years, the fares did not increase, which for us
bus riders, who are mostly poor and working class, was very important.
Don't get me wrong, there is still A LOT of improvements that need
to happen--overcrowding persists, many lines stop running after 9 pm,
there are still very long headways on many lines, and so on. If the MTA
would simply uphold the Consent Decree to its fullest, we would have
the first class bus system we deserve.
Buses are what move people in Los Angeles. The MTA put billions of
dollars into the rail system, but these rail lines barely take you
anywhere! LA is so big, that you have to go miles and miles. Whenever I
do take the rail, I have to get off and get on a bus! We need more
buses, not fewer, and the MTA has a moral and legal obligation to
provide bus service for the transit dependent.
This consent decree has been really important. It has given us a
very important legal tool to hold the MTA accountable to its
responsibility to provide good bus service for the transit dependent.
It has given us bus riders a tool to make the MTA honor its legal and
moral responsibilities to provide transportation for the transit
dependent.
Since the MTA signed the Consent Decree, they have never wanted to
honor it. For the first four years of it, they didn't buy one single
bus to reduce overcrowding. We've had to work in making the Consent
Decree actually result in material changes for people. What's been
really important is the length of the Consent Decree. The purpose of a
Consent Decree is to ensure long-lasting changes. You want to make sure
that whatever improvements are made are institutionalized, not just
short-term. If S. 489/H.R. 1229 passes, and the Consent Decree had
expired after four years, we wouldn't have gotten anything. We would
have had to go to file for an extension of the Consent Decree, which
would have meant an exhaustion of our time since the burden of proof
would have been on us.
Before the Consent Decree, the average person didn't feel they
could get anything from the MTA. It is a multi-billion dollar agency
with a lot of power. People felt they had no power to fight for their
right to bus service. For the working and poor, majority Black, Latino,
and Asian bus riders, the improvements in bus service that have come
out of the Consent Decree have been very important in providing
increased access to school, jobs, health care, and ensuring our civil
right to public transportation.