[Senate Hearing 109-181]
[From the U.S. Government Publishing Office]
S. Hrg. 109-181
A REVIEW OF FEDERAL CONSENT DECREES
=======================================================================
HEARING
before the
SUBCOMMITTEE ON ADMINISTRATIVE OVERSIGHT AND THE COURTS
of the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED NINTH CONGRESS
FIRST SESSION
__________
JULY 19, 2005
__________
Serial No. J-109-32
__________
Printed for the use of the Committee on the Judiciary
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COMMITTEE ON THE JUDICIARY
ARLEN SPECTER, Pennsylvania, Chairman
ORRIN G. HATCH, Utah PATRICK J. LEAHY, Vermont
CHARLES E. GRASSLEY, Iowa EDWARD M. KENNEDY, Massachusetts
JON KYL, Arizona JOSEPH R. BIDEN, Jr., Delaware
MIKE DeWINE, Ohio HERBERT KOHL, Wisconsin
JEFF SESSIONS, Alabama DIANNE FEINSTEIN, California
LINDSEY O. GRAHAM, South Carolina RUSSELL D. FEINGOLD, Wisconsin
JOHN CORNYN, Texas CHARLES E. SCHUMER, New York
SAM BROWNBACK, Kansas RICHARD J. DURBIN, Illinois
TOM COBURN, Oklahoma
David Brog, Staff Director
Michael O'Neill, Chief Counsel
Bruce A. Cohen, Democratic Chief Counsel and Staff Director
------
Subcommittee on Administrative Oversight and the Courts
JEFF SESSIONS, Alabama, Chairman
ARLEN SPECTER, Pennsylvania CHARLES E. SCHUMER, New York
CHARLES E. GRASSLEY, Iowa DIANNE FEINSTEIN, California
JON KYL, Arizona RUSSELL D. FEINGOLD, Wisconsin
William Smith, Majority Chief Counsel
Preet Bharara, Democratic Chief Counsel
C O N T E N T S
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STATEMENTS OF COMMITTEE MEMBERS
Page
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont,
prepared statement............................................. 75
Schumer, Hon. Charles E., a U.S. Senator from the State of New
York........................................................... 16
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama.... 1
WITNESSES
Alexander, Hon. Lamar, a U.S. Senator from the State of Tennessee 2
Berman, Hon. Howard, a U.S. Representative in Congress from the
State of California............................................ 6
Greve, Michael S., John G. Searle Resident Scholar, Director, AEI
Federalism Project, and Co-Director, AEI Liability Project,
American Enterprise Institute, Washington, D.C................. 19
Jones, Nathaniel R., Judge (Ret.) and Partner, Blank Rome LLP,
Cincinnati, Ohio............................................... 12
Jost, Timothy Stoltzfus, Robert L. Willett Family Professor of
Law, Washington and Lee University School of Law, Lexington,
Virginia....................................................... 17
King, Troy, Attorney General, State of Alabama, Montgomery,
Alabama........................................................ 10
Sandler, Ross, Professor of Law, and Director, Center for New
York City Law, New York Law School, New York, New York......... 13
Schiffer, Lois J., former Assistant Attorney General, Environment
and Natural Resources Division, Department of Justice,
Washington, D.C................................................ 21
SUBMISSIONS FOR THE RECORD
Greve, Michael S., John G. Searle Resident Scholar, Director, AEI
Federalism Project, and Co-Director, AEI Liability Project,
American Enterprise Institute, Washington, D.C., prepared
statement...................................................... 36
Jones, Nathaniel R., Judge (Ret.) and Partner, Blank Rome LLP,
Cincinnati, Ohio, prepared statement........................... 47
Jost, Timothy Stoltzfus, Robert L. Willett Family Professor of
Law, Washington and Lee University School of Law, Lexington,
Virginia, prepared statement................................... 60
King, Troy, Attorney General, State of Alabama, Montgomery,
Alabama, prepared statement.................................... 67
Lazarus, Simon, Public Policy Counsel, National Senior Citizens
Law Center, Washington, D.C., prepared statement............... 72
Legal Times, April 25, 2005, article............................. 78
National Center for Youth Law, Sara Woodward for Curtis L. Child,
Senior Attorney, Sacramento, California, letter................ 80
Sandler, Ross, Professor of Law, and Director, Center for New
York City Law, New York Law School, and David Schoenbrod,
Professor of Law, New York Law School, New York, New York,
statement and attachment....................................... 85
Schiffer, Lois J., former Assistant Attorney General, Environment
and Natural Resources Division, Department of Justice,
Washington, D.C., prepared statement........................... 97
Snoble, Roger, Chief Executive Officer, Los Angeles County,
Metropolitan Transportation Authority, Los Angeles, California,
statement...................................................... 109
A REVIEW OF FEDERAL CONSENT DECREES
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TUESDAY, JULY 19, 2005
United States Senate,
Subcommittee on Administrative Oversight and the Courts,
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice, at 2:32 p.m., in
room SD-226, Dirksen Senate Office Building, Hon. Jeff
Sessions, Chairman of the Subcommittee, presiding.
Present: Senators Sessions and Schumer.
OPENING STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM
THE STATE OF ALABAMA
Chairman Sessions. The hearing will come to order.
Today's hearing is an important hearing that deals with a
matter that people who have been a Governor, like Governor
Alexander, or Attorney General, as I have, know something about
and understand the importance of. It is the question of a
consent decree that may have been entered into at one point in
time between an attorney for a governmental institution--
sometimes it is the Attorney General; sometimes it may be the
attorney for the school board or the county or the city--and to
what extent for all time does that consent decree bind that
Government entity. It is a matter of legitimate concern.
Private companies settle lawsuits, and they enter into
agreements. Governmental entities can settle lawsuits also. But
sometimes it implicates constitutional questions to an
important degree.
We have an excellent panel today, a group of people who
have thought about these issues and who have given serious
consideration to them. It is a question of How do we best
preserve the proper balance between executive, legislative, and
judicial branches? How do we preserve the power of the American
people to control the policies of their Government? And to what
extent should an Attorney General or Governor or school board
superintendent who 15 years ago, perhaps now in the grave, to
what extent can they control the school board policy of today
and how do you deal with that?
So those are questions that are relevant. We will hear some
good testimony. We will have panelists on both sides, and I
look forward to hearing the discussion today.
I will not worry about particularly doing our
introductions. There is all the information I got, but I do not
need it. Senator Alexander, we are pleased that you are here
today. This is an issue that I know you care about and have
gathered quite a few cosponsors on legislation that would deal
with some of what you perceive as the excesses here. You have
served as the Governor of Tennessee. You are a lawyer. I know
you clerked for Judge John Minor Wisdom of the Fifth Circuit
Court of Appeals. And you understand the issues and have
written and read deeply about it.
Congressman Berman, we are delighted to have you with us.
You serve on the Judiciary Subcommittee on Courts, as this
Subcommittee is the Court Subcommittee for the Senate, and we
are delighted to have you with us and to hear your thoughts on
the subject.
Senator Alexander, would you set forth your thoughts on
this subject? Then we will go to Representative Berman, who has
a different view.
STATEMENT OF HON. LAMAR ALEXANDER, A U.S. SENATOR FROM THE
STATE OF TENNESSEE
Senator Alexander. Thank you very much, Mr. Chairman, and,
Representative Berman, it is good to see you again. I thank you
for being here and contributing to this.
I want to thank you, Senator Sessions, for chairing a
hearing on this important subject, the Federal Consent Decree
Fairness Act. If I could sum up what we are about today, it is
this: It is passing legislation, this legislation, which I
believe would help leave policy decisions where they ought to
be--in the hands of officials elected through the democratic
process--and leave the protection of individual rights where
that ought to be--in the hands of the courts. I think that is
what the discussion is about today, and I believe this bill
helps do that.
I might also say that this is not the first hearing on this
legislation. The House has had a hearing on the legislation and
I am sure gathered useful information. And I participated, and
others did, in a hearing at the American Enterprise Institute
earlier this year where a number of people of various points of
view from around town came, offered their suggestions, and the
bill has gradually been improved as we tried to take into
account those suggestions. So the hearings have a very useful
role.
This legislation was introduced in March of this year. I
was cosponsor, along with Senator Mark Pryor of Arkansas. The
legislation now has 24 cosponsors, both Democrats and
Republicans, in the United States Senate. A companion bill has
been introduced by Democratic Congressman Jim Cooper and
Republican Whip Roy Blunt in the House of Representatives, and
it has also received significant bipartisan support.
The House bill has received a hearing, as I mentioned,
before the Subcommittee on Courts, the Internet, and
Intellectual Property of the House Judiciary Committee.
The bill addresses a problem that can best be summed up by
the phrase ``Democracy by Federal court decree.'' This is a
phrase that was coined by Professor Ross Sandler and David
Schoenbrod in their book ``Democracy by Decree: What Happens
When Courts Run Government.'' I guess lots of times people
wonder where does the idea for a piece of legislation come
from. Does it come from a lobbyist? Does it come from the brain
of a House Member or a Senator? In this case, it came from the
brains of these two professors and from their background and
experience. Both of them began as lawyers with the Natural
Resources Defense Fund. In fact, they were the lawyers who were
bringing the kinds of cases that often negotiate Federal court
consent decrees. And they produced a remarkably balanced book,
and the contents of the book were endorsed by a variety of
individuals, including former Senator Bill Bradley; Ed Koch,
the former Mayor of New York City; John Sexton, the president
of New York University; Chris DeMuth, president of the American
Enterprise Institute.
They have contributed substantially to the development of
this bill in this book. They refer to what I would call an
alarming trend of taking public policy decisions out of the
control of elected officials--the Governor, the legislature,
the mayor, the city council--and putting them indefinitely in
the hands of a small group of plaintiffs' attorneys and an
unelected Federal judiciary.
The Federal Consent Decree Fairness Act addresses these
problems by establishing new principles and procedures for
creating, managing, and eventually ending Federal court
supervision of State and local policy decisions. The bill
levels the playing field for State and local governments
without undermining the role of the Federal courts. And as I
mentioned at the outset, passing this bill would leave policy
decisions where they ought to be: in the hands of officials
elected through the democratic process. It would also leave the
protection of individual rights where it ought to be: in the
hands of the courts.
The bill takes a three-pronged approach.
One, it sets out a series of findings based on dicta in the
2004 Supreme Court decision Frew v. Hawkins that suggests that
consent decrees should be narrow in scope and return policy
decision to State and local governments as soon as possible.
Two, the legislation places term limits on consent decrees.
The bill does not automatically end consent decrees, but it
does allow State and local governments, after 4 years or the
end of the term of the official who authorized the consent
order, to go back into court and ask that a decree be reviewed.
Three, when the decree is reviewed by the court, the burden
of proof is now shifted to the plaintiffs to demonstrate that
there is an ongoing violation of Federal law that requires
continued court supervision to correct.
So, you see, Mr. Chairman, from beginning to end the court
still has supervision over the matter. This just makes it
easier for the newly elected Governor or newly elected mayor to
get into the court, and then it is up to the person who feels
aggrieved to persuade the court in the first place or to carry
the burden of proof that this order still needs to be in
effect.
I believe this takes a balanced approach to the problem of
outdated consent decrees. It is based on scholarship, as I
mentioned. It reflects the thinking of the Supreme Court. And
it creates a fair approach that puts the plaintiffs and the
State and local governments on a level playing field.
Mr. Chairman, consent decrees are a useful tool. However,
some consent decrees have lingered far too long and have become
outdated. Yet they remain in force because the burden on State
and local governments to modify or vacate them is too great.
For example--and these are examples that Mr. Sandler may in
his testimony refer to, so I will be brief about it. But, for
example, in New York there is a 1974 consent decree that
mandated the provision of any form of bilingual education for
more than three decades. The result is a program that forces
children into certain types of bilingual classes--
Chairman Sessions. Senator Alexander, would you repeat
that? Bilingual education for how long?
Senator Alexander. The consent decree was entered into in
1974 in New York City, and it established a form of bilingual
education for children in New York City at that time for more
than three decades. I believe what it said is that there needed
to be a teacher in a particular language for any group of
children of more than 10 who speak a particular language.
Now, today, parents in New York City would like to have
their children in a different kind of class called English as a
Second Language where they learn English more rapidly. But the
fact is that because of the outdated consent decree, today's
parents and today's school officials cannot move to that kind
of education.
In Los Angeles, a 1996 consent decree has forced the
Metropolitan Transit Authority to spend 47 percent of its
budget on city buses only, leaving just over half the budget to
cover all the other transportation needs of the Nation's second
largest city. Now, maybe that was the right thing to do in
1996, but the consent decree mandated the purchase of 582 buses
in the first 6 years it was in effect, the net result of which
was only a 3-percent increase in ridership. In 2004, in spite
of this track record, the court ordered the MTA to purchase 145
more buses, even though elected officials would like to spend
their transportation money in a different, more effective way.
And, finally, in Tennessee, my home State, the Democratic
Governor, Governor Bredesen, found his attempts to reform our
State's Medicaid program, called TennCare, blocked by three
outdated Federal court consent decrees. They went back so far
that they included consent decrees that were entered into when
I was the Governor of Tennessee. The limits imposed by these
decrees forced the Governor to scale back benefits for 300,000
beneficiaries in order to afford both TennCare and the public
education program. And he was able to accomplish this only
after a lengthy and expensive Federal court battle. In other
words, the Governor was elected to try to reform Medicaid in
Tennessee. He could persuade his administration. He could
persuade the legislature. He persuaded the Federal Government.
But, still, he then had three Federal courts to persuade of
what he expected to do. And every month that went by, while he
was waiting for the court to make a decision, it cost millions
and millions of dollars, enough money to give Tennessee
teachers a pretty big pay increase.
Now, this latest example emphasizes why I believe it is
important for Congress to move this legislation quickly
alongside the medication legislation that we will consider this
fall. If I may, I will finish up with about a couple more
pages, if I have time for that.
Chairman Sessions. Please. We have a goal of 10 minutes,
but you are free to go over.
Senator Alexander. I am a member of the Budget Committee,
and I have listened very carefully to this year about how
States are unable to control the growth of Medicaid spending.
As we know, the Federal Government spends about 60 percent of
Medicaid costs, and the States come up with the other 40
percent under Federal rules.
For example, the State of Tennessee, when I left the
Governor's office in 1987, we were spending 51 cents out of
every State tax dollar on education and 15 cents on health
care. Today, Tennessee spends 40 cents on education and 31
cents on health care, with Tennessee's Medicaid program
accounting for most of that increase. Meanwhile, State college
tuitions go up, teachers' salaries stay flat, art and music
programs are shut down, and pre-K and after-school programs are
never started. It is the same story in State after State.
In other words, who is going to decide whether to increase
Medicaid spending or increase teachers' salaries or start a
pre-K program? In our State, we believe we elect Governors and
legislators to do that, not Federal judges.
The budget resolution we are considering in Congress calls
for the Federal Government to slow the growth of Medicaid
spending by $10 billion over the next 5 years out of
approximately $1.12 trillion total. I support that. But I
argued on the floor that to reduce the Federal deficit, we must
curb Medicaid spending, but we cannot simply cut back on
Federal Medicaid spending without giving States the tools they
need to also reduce the growth of State Medicaid spending.
States are caught in the middle when Congress tells them to
curb spending and then the Federal court, because of some
outdated consent decree, tells the State find your savings
somewhere else.
So it is my belief that the Federal Consent Decree Fairness
Act is an essential piece of the Medicaid reform package that
we will consider this fall. And if we are going to ask States
to help bring health care costs under some control, then we
must allow them the tools they need to make these decisions. We
should put those decisions and other decisions on issues that
have traditionally rested with elected officials in the hands
of elected officials who are held accountable for those
choices.
I appreciate the opportunity to testify here today. I look
forward to working with members of the Judiciary Committee to
advance this legislation. I ask to include in the record with
these remarks a copy of a Legal Times article that I wrote in
April of this year describing the legislation.
Thank you, Mr. Chairman.
Chairman Sessions. Thank you, Senator Alexander, for your
thoughtfulness and your hard work on this project.
Congressman Berman, we are delighted to have you on this
side, and we would be delighted to hear from you at this time.
STATEMENT OF HON. HOWARD BERMAN, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF CALIFORNIA
Representative Berman. Well, thank you very much, Mr.
Chairman. I thank you very much for inviting me and allowing me
to testify. I have tremendous respect and affection for Senator
Alexander, whom I have gotten to know in other circumstances,
and so I am sorry to be here opposing a bill that he obviously
is both deeply committed to and has thought a great deal about.
I understand the motivations behind the bill. There are a
number of consent decrees which govern various bodies in and
around my own district, at least one of which I find in certain
respects problematic. But the overarching problem with this
bill essentially is that it allows the city or State to move to
vacate or modify, and by the city or State making that motion
to go forward, the burden then is with the plaintiff in that
original consent decree to reprove his case simply because the
defendant has asked for a review of the consent decree.
You are going to hear from other witnesses a lot of the
specifics, but I want to just touch on a few of them, if I
might, and what I think the implications are.
Under the proposed law, consent decrees may be reviewed
every 4 years or after any change of Government. So, for
example, if after years of negotiation a decree was signed in
the midst of a mayor's term or, more likely, near the end of
his term, a new mayor could immediately review and dismantle
the decree. And I mean here dismantle the decree whether the
problem has been addressed or not.
To further complicate matters, it is unclear what
constitutes change of Government. How many of the five-member
Board of Supervisors would have to change before it constitutes
a change of Government? Would one supervisor suffice? Would two
or three be required? Would they have to be replaced or would
their simple re-election trigger this provision?
With the ability to subject a consent decree to review at
almost any point, given this formulation, I cannot imagine--and
this I think is one of the biggest consequences should this
bill become law--why any plaintiff, whether the Federal
Government or a private party, will ever settle a case? Why
settle a long-term problem by consent decree if the settlement
is essentially void in 4 years or, more likely, much sooner
than that? The whole consideration to produce that kind of
consent decree is gone in the minds of the plaintiff and his or
her attorney because of the fact that he does not have really a
final order for a long period of time.
Consider the impact of this bill where one State sues
another under original Supreme Court jurisdiction. These cases
can take many years to litigate, and when they settle, the
consent decrees can last many years. California and Arizona, a
big fight about Colorado River water. The consent decrees, they
operate under a water rights agreement stemming from a 1952
lawsuit, a 1964 consent decree, several supplemental decrees, a
1989 motion to reopen the decrees to allot additional water
rights for Indian reservations, and a 2000 Supreme Court ruling
on whether that motion was precluded.
Under this regime, that whole case would have to be
relitigated every 4 years or whenever a new Governor wanted to.
In the context of either California or Arizona, depending on
who is moving, these are serious issues that we thought had
been settled that are now opened up for relitigation. There are
several procedural issues, each having profound impact on the
viability of consent decrees.
Consider the requirement that the judge has to rule within
90 days or the decree is automatically terminated. This time
frame is unrealistic. Many decrees will be dissolved simply as
a result of the passage of that time. Because the bill shifts
the burden to the plaintiff to re-establish the burden of
proof, there will always be need for a full retrial on the
decree's merits. Courts are often simply unable to work that
fast given their existing caseload. The court can still decide
the motion if it fails to rule within 90 days, but the decree
is vacated during that time. As discovery for many of these
cases is time-consuming, it could be years before the consent
decree is reinstated.
The bill proposes a compensation cap of no more than $75 an
hour. That is about one-fifth or one-eighth of what Special
Masters normally get in their law practice. It is unlikely we
are going to be able to get a truly skilled, in-demand person
to give up the time necessary to supervise a consent decree
with that kind of limitation.
Finally, the proposed legislation recognizes that there are
certain things that are so sensitive that they should not be
subject to the bill--in this case, consent decrees involving
school desegregation on the basis of race, color, or national
origin. But I think as the Committee thinks about it, they are
going to find some other areas where it is also very sensitive,
employment discrimination cases, public accommodations cases,
under the Civil Rights Act of 1964, discrimination in terms of
grant monies going, Voting Rights Act cases. There are critical
decisions in these areas that will be vacated by virtue of this
bill as it is presently drafted.
I do not want you to get me wrong. I am very sympathetic to
the pressures faced by local governments when dealing with
consent decrees. I mentioned this case involving the
Metropolitan Transit Authority in Los Angeles that Senator
Alexander spoke to. Take, for example, the New York City--not
the case about bilingual. I am not familiar with that, but on
special education. There a consent decree requires a huge
amount of money be spent on special education, pulling money
from other priorities, and substantial amounts of money. Why?
Because in 1975 Congress created a Federal right to special
education in the Education for All Handicapped Children Act.
What we did not do was appropriate the funds to local districts
to meet the obligation we imposed on them through law.
The issue here is not the consent decree. It is that we
should either fund the mandate or change the nature of the
Federal law. These lawsuits that result in these consent
decrees do not come out of the good ideas and utopian ideas of
a plaintiff's attorney or a plaintiff or the judge's sense of
what is right to do. They come based on the obligations of
Federal law. And if there are consent decrees that are imposing
too heavy a burden, we are the people who can revisit that
issue through taking a look at the Federal law or our failure
to appropriate and meet mandates we have imposed on State and
local governments. I do not think we should avoid
accountability for those decisions by instead providing this
method for the consent decrees.
And coming to a conclusion here, this is all done in the
context of a 2004 decision in Frew v. Hawkins, and the authors
and proponents of the bill say it is consistent with that
decision. But I read that decision totally different. All nine
Justices were on the same side--Scalia, Thomas, Rehnquist--all
nine of them. They all upheld the concept of consent decrees,
and they set standards that district courts should use when
reviewing them. They did not say to get rid of consent decrees.
They did not say to require the plaintiffs to reprove their
case. What they suggested was a prescription to fix the
problem. They wrote, ``If the State establishes reason to
modify the decree, the court should make necessary changes.
Where it has not done so, however''--that is, where the State
has not established a reason to modify--``the decree should be
enforced according to its terms.'' And in the context of that
decision, all nine Justices talked about giving a great deal of
deference to the local governments and the State governments in
making their decisions.
So I disagree in the first instance that State and local
officials' hands are truly tied at the present time. They can
go in to modify. Even if they were, the answer would not be the
effective elimination of all consent decrees. Congress should
either fund the mandate or change the underlying Federal law.
Consent decrees I think have tended to become a bit of a
scapegoat, and I think the underlying problems will continue to
exist and that this bill may create more problems than it
solves.
Thank you.
Chairman Sessions. Well, thank you. Those were very, very
interesting and important comments both of you have made.
I think about a situation that was most stark to me when I
was Attorney General--actually, before I became Attorney
General. The Alabama Supreme Court had one African-American out
of nine on it. Statistically speaking, maybe two would have
been appropriate with the population. But two African-Americans
had run for the Supreme Court and won, and the only two that
had ever run in recent years, and both had won. And a lawsuit
was filed to challenge that. Normally they make the challenges
that run from districts. But that would not have helped
apparently the plaintiffs, who were also working with the trial
lawyers, who had a majority on the Supreme Court.
And so a proposal was entered into with the Attorney
General, my predecessor, and the proposal was, an offer as a
consent decree, that the plaintiffs would nominate two
additional judges, the court would go from nine to eleven
judges. We would add two new judges. They would not be elected
by the people but would be appointed by the committee, and
presumably the State legislature would fund them, and nobody
was particularly concerned that it was in total violation of
Alabama's constitutional creation of the judicial branch of
government. Shortly before he left office, my predecessor
signed that agreement, and it was approved by the Federal
judge.
When I got elected Attorney General, I appealed and the
court rejected it and threw it out, said there was not a
sufficient foundation for that.
Senator Alexander, I am sympathetic with the idea that a
departing office holder, for whatever reasons--good intentions
or maybe not--can enter into a decree that could impact very
important governmental relations in a way that may be
unforeseeable even 5, 10 years down the road. So I appreciate
that.
Let me ask both of you, if you would--this is an important
issue--would you join me at the panel and stay and participate
in the questioning? Congressman Berman, we are delighted to
have you, if you have got the time. And, Senator Alexander, we
would be delighted to have you join me as we discuss this issue
more in depth.
Representative Berman. I just have to leave about 3:45.
Chairman Sessions. That will be fine. You can stay as long
as you like. You are interested in this issue, and I think it
would help us as we discuss it.
Chairman Sessions. We have a panel now, our second panel.
We have both governmental officials who have firsthand
knowledge of how consent decrees can bind future Government
officials and expert witnesses.
Our first witness is Alabama Attorney General Troy King,
who is doing a terrific job in the State. He served as
Alabama's Attorney General since 2004. It was a position I held
for 2 years before being elected to the Senate, and he replaced
former Attorney General William Pryor, who is now a U.S.
circuit judge.
Our second witness is Judge Nathaniel R. Jones. Judge Jones
served on the Sixth Circuit Court of Appeals and is currently a
partner with the law firm of Blank Rome LLP in Cincinnati,
Ohio. Judge Jones has dealt with consent decrees throughout his
career as a Federal appellate judge, as a litigator on behalf
of the NAACP, and as assistant general counsel to the National
Advisory Commission on Civil Disorders.
Our third witness is Professor Ross Sandler. I believe you
have been referred to by Senator Alexander. Professor Sandler
is a professor at New York University School of Law and the
director of its Center for New York City Law. He was one of the
authors of ``Democracy by Decree: What Happens When Courts Run
Government,'' the book upon which the Federal Consent Decree
Fairness Act is based.
The fourth witness is Tim Jost. Professor Jost is the
Robert L. Willett Family Professor of Law at Washington and Lee
University. Professor Jost has published numerous scholarly
books, articles, and book chapters on health law and policy and
comparative health law and policy. He also published a Law
Review article on Federal consent decrees. We are glad you are
with us.
Our fifth witness is Dr. Michael Greve. Dr. Greve is the
John G. Searle Scholar at the American Enterprise Institute for
Public Policy Research and the director of AEI's Federalism
Project. He has written extensively on the problems underlying
Federal consent decrees. Dr. Greve also served as the director
of a public interest law firm.
Our final witness is Ms. Lois Schiffer. Ms. Schiffer is
currently an attorney in private practice with Baach, Robinson
& Lewis. She is also a former Assistant Attorney General with
the U.S. Department of Justice's Environment and Natural
Resources Division. During her time as an Assistant Attorney
General, Ms. Schiffer personally approved hundreds of
environmental consent decrees.
So I will ask the panel to limit your opening remarks to 5
minutes so that we can have time for a full round of questions.
Without objection, your full testimony will be placed in the
record.
All right. Attorney General King, we are delighted that you
are here. I know the State of Alabama has a number of decrees
in place. I do remember thinking when I was elected Attorney
General in 1994 that we needed to end the Reynolds case. And I
got our team together, and I said, ``This thing needs to be
ended. The lawyer fees are killing us. Why can't we get it
settled?'' I understand it is not settled yet. It was already
old when I started to try to fix it.
But, at any rate, we would be delighted to hear your
remarks in general on this entire situation and how you view
it. Attorney General Troy King.
STATEMENT OF TROY KING, ATTORNEY GENERAL, STATE OF ALABAMA,
MONTGOMERY, ALABAMA
Mr. King. Thank you, Mr. Chairman. My name is Troy King. I
am the State Attorney General for Alabama. Thank you for
inviting me to address this Subcommittee today and to share my
State's experiences with consent decrees and my support of S.
489 as a vehicle to address some of the abuses that accompany
many consent decrees.
The Federal Consent Decree Fairness Act will provide a much
needed change in the law regarding consent decrees. The Act
will make it easier for State governments to end oppressive
consent decrees by taking the policymaking discretion away from
Federal judges and returning it to those who have been elected
or appointed to make those decisions.
I will share with you today three of the most egregious
examples that have the greatest impact on our home State of
Alabama.
First I will talk about Reynolds v. McInnes, which is the
case you just mentioned. It is a case where the costs continue
to soar as the plaintiffs' lawyers continue to frustrate their
own client's objectives in this case, and it is due to the
entry by the State of Alabama into a consent decree.
Second is the case of RC v. Walley with impacts Alabama's
delivery of child welfare systems and extra consent decree
activities, the activities the State is being required to
engage in that are not required by the terms of the consent
decree and, in fact, are counter to them.
And third, Wyatt v. Stickney, which involves the State's
Department of Mental Health and Mental Retardation and the
changing standards that continue to frustrate the State's
ability to comply with consent decrees.
An example of the first oppressive, out-of-control consent
decree in my State stems from Reynolds v. McInnes. In Reynolds,
African-American employees and former employees of the Alabama
Department of Transportation commenced a racial discrimination
class action lawsuit against the Department of Transportation.
Governor Jim Folsom, Jr., entered into a consent decree in
March of 1994 that was originally set to expire in December of
2000. To date, over four dozen appeals and petitions have been
filed and the consent decree remains in effect. The Eleventh
Circuit Court of Appeals recently addressed the obscene amount
of public funds that have been spent on the Reynolds consent
decree, saying: ``[T]his unwieldy litigation has been
afflicting the judicial system and draining huge amounts of
public funds from the State of Alabama for much too long. The
amounts are staggering. Fifty million dollars in public funds
has been spent on attorney's fees alone in this case..bringing
the total litigation costs to the State of Alabama to more than
$112 million, and that cost is growing at a rate of around
$500,000 each and every month.''
With these funds, every mile of interstate in Alabama could
have been resurfaced--
Chairman Sessions. Just as a point, since the plaintiffs
are prevailing presumably by obtaining orders, the State has to
pay both their own lawyers and the plaintiff lawyers also?
Mr. King. I was coming to that, Mr. Chairman.
Chairman Sessions. All right.
Mr. King. In fact, under this consent decree we pay whether
they prevail or not. We pay for every minute they spend on this
case, whether it is a worthwhile endeavor, whether they
ultimately prevail or not. It is an example of the
oppressiveness of consent decrees where people do things they
would not ordinarily have a Federal right to obtain, but they
agree to do it by striking a bargain that is to the detriment
of the people of my State.
The lead plaintiff in this case, you may be interested to
know, Johnny Reynolds, died shortly after receiving long-
awaited settlement proceeds. His attorneys, on the other hand,
have long ago grown rich, and the people of Alabama continue to
grow more and more disillusioned with the system that could
allow this to occur. The court addressed the long-term effect
of this agreement saying: ``The promise of fees for time spent
without regard to the outcome of a motion or appeal in a case
that apparently has endless potential for dispute may be the
kerosene that has fueled the litigation fires, which have raged
out of control in this case.''
You see, when you award attorney fees for every minute
spent by the plaintiffs in a case, regardless of whether their
claims are frivolous, regardless of whether they have an
entitlement to them, it is an example of a contract provision
that successive administrations have been helpless to alter,
even as its unsoundness becomes more and more evident even to
the most objective and detached observer. The Federal Consent
Decree Fairness Act will provide a vehicle for modifying such
provisions, provisions that are later found to be unworkable or
unsound after they have been approved.
Another example of the difficulties that exist in modifying
consent decree provisions can be found in the Reynolds case
again. The Reynolds consent decree contained a no-overlap
provision that governed the measurement of candidates' job
qualifications.
Despite a good-faith effort by both parties to comply with
the provisions of this part of the consent decree, the
defendant were forced to pay millions in finds as the
plaintiffs blocked, litigated, and otherwise frustrated the
achievement of compliance. After the defendants had paid over
$4.5 million in sanctions for noncompliance, the court agreed
that these provisions were unworkable and removed them from the
consent decree, yet there has been no refund of these monies to
the State for the monies they were required to pay to achieve a
result that was completely unworkable in the beginning.
I will stop there. I see the red lights are on, but,
unfortunately, I could go on and on and on.
[The prepared statement of Mr. King appears as a submission
for the record.]
Chairman Sessions. Thank you.
Judge Jones, it is a delight to have you, and we would be
pleased to hear your comments at this time.
STATEMENT OF NATHANIEL R. JONES, JUDGE (RET.), AND PARTNER,
BLANK ROME LLP, CINCINNATI, OHIO
Judge Jones. Thank you, Mr. Chairman, and members of the
Committee. It is my pleasure to offer this testimony on this
important legislation.
My name is Nathaniel R. Jones, and I, as has been
indicated, served for 22 years as a member of the Sixth Circuit
Court of Appeals, and prior to that time, I served as general
counsel of the NAACP for some 10 years, and for the preceding
years I served in various positions, including assistant
general counsel to the National Advisory Commission on Civil
Disorders. That was a commission appointed by President Johnson
to study the cause of civil disorders, and in that report,
which I commend to your reading, along with the other reading
that has been proposed to you, you would have an appreciation,
Mr. Chairman, of the reasons why remedies that were formulated
by Congress came into being and remedies that were formulated
by State legislature came into being to correct the causes of
frustration and the anger and the disruption that was costing
our taxpayers millions and millions of dollars in the period of
the 1960's and prior to that.
The legislation that has been proposed, in my judgment, is
overdrawn, and it will have the effect of applying a wrecking
ball to a judicial process that has been invaluable in
resolving very knotty and contentious legal problems and social
problems that we have in this country.
There is no problem that needs fixing in the way that is
formulated by this legislation. The unanimous 2004 Supreme
Court decision in Frew v. Hawkins directed district courts to
do, in effect, what they have been doing, and that is, pay
close attention and give deference to the local officials who
were bringing claims of repressive conduct and the effects that
they were feeling from these consent decrees. The various
claims that were being filed were already being carefully
monitored and scrutinized by Federal district courts. Rule 23
requires a procedure for dealing with claims that were resolved
by agreement, and before a Federal court can agree--before it
will enfold and adopt into a consent decree an agreement, the
court has to hold in the first instance a preliminary hearing.
It must determine before it issues a preliminary approval
whether or not the agreement is fair, whether it is adequate,
and whether it is reasonable. And then following in that
process, all members of the class are notified, and they are
invited to attend and participate in a fairness hearing. And at
that time, they may set forth their views with regard to the
adequacy of the agreement.
Upon the approval of that agreement, the court then will
include into a court decree and it will be then thereafter
enforced. Now, if there are differences with regard to it over
time, if there are problems in connection with it, any party,
including Governors, mayors, or any other State officials, may
apply to the court for modification. And this happens all the
time. I can cite cases. I sat on 25 cases alone in the Sixth
Circuit in which there were challenges to consent decrees. And
what we looked at very carefully was whether or not those
agreements were fair, were they adequate, and were they in need
of any kind of reform or modification. And we took a very
careful look to see whether the district courts had accorded
due process to the officials who were protesting and claiming
that they were not being treated fairly.
I must say very candidly that there were cases in which I
wrote the opinion to reverse and remand the case to the
district court with direction to hold a hearing and ensure that
all of the T's were crossed and all the I's were dotted. So
there is a process in place, and we do not need to have a
cannon to go after a gnat.
There has been a lot of testimony here about the Reynolds
case. I am not familiar with the case to the extent that the
Attorney General is, but I noticed that a reference was made to
the Eleventh Circuit. Well, why didn't the Eleventh Circuit
reverse it? There must be something wrong. The fact of the
matter is that the parties agreed to the consent decree. They
agreed to the penalties that were set forth that the district
court applied when there were breaches. The State acknowledged
that it was in violation of the consent decree.
So given that situation, the court of appeals' hands were
fairly tied given that we had an agreement and that the parties
had agreed to the sanctions that were contained in the order.
I see the light is on, but I would suggest and I trust that
you will read my full testimony because I discuss in greater
detail the reasons why this legislation is most inappropriate.
[The prepared statement of Judge Jones appears as a
submission for the record.]
Chairman Sessions. Thank you, Judge Jones.
Professor Sandler?
STATEMENT OF ROSS SANDLER, PROFESSOR OF LAW, AND DIRECTOR,
CENTER FOR NEW YORK CITY LAW, NEW YORK LAW SCHOOL, NEW YORK,
NEW YORK
Mr. Sandler. Thank you very much. I am very pleased to be
here, Senator Sessions, and to speak on this panel.
I come at this in a rather unique way. I was an attorney
for 10 years at the Natural Resources Defense Council and
litigated these cases. I then became a Commissioner in the City
of New York, where I became a defendant in the cases. So I have
been on both sides.
Chairman Sessions. The Natural Resources Defense Council,
that would be a pro-aggressive environmentalist group. Is that
correct?
Mr. Sandler. Yes, sir, and an effective one, and still a
very effective one.
I then became a law professor, and one of the areas I was
interested in was the rules that governed the remedies of these
institutional reform cases.
The Federal Consent Decree Fairness Act allows courts to
protect rights but, otherwise, let's elected officials run
State and local government. Bargains written into consent
decrees, the Act makes clear, are not contracts but are
judicial remedies to be measured against Federal law. This
prevents a hobbling of State and local officials by prior
bargains, a situation that has been described here several
times, such as that in Tennessee described by Senator
Alexander.
The major criticism of the Act is that it would lessen the
capacity of Federal judges to protect rights. Plaintiffs would
not enter into consent decrees. Defendant officials would avoid
complying with Federal law. Both of these criticisms are easily
refuted. Consent decrees will still be used for several
powerful, compelling reasons.
First, when parties do not consent--and none of the people
have spoken to this--the rules that govern remedies tightly
limit what a judge can order. Judge-made remedies are limited
to correcting proven violations. Judges may not stray from that
standard.
For example, plaintiffs might prove that special education
students have been deprived of adequate transportation. The
judge under the rules could only order a remedy to correct the
transportation violation. In a consent decree, however, the
parties might expand the decree. They might include such items
as school accessibility and classroom activities. This is a
powerful incentive for both plaintiffs and defendants. It
allows more give and take, expands the potential for
compromise, and offers greater opportunities to achieve long-
term goals.
But there are other compelling reasons as well. Consent
avoids delay. It accelerates the time when defendants become
subject to contempt proceedings. It avoids the expenses and
uncertainties of trial. It allows plaintiffs to begin getting
fees. It prevents appeals.
But having said that, would officials use this Act to avoid
complying with the decrees that are entered? Officials today
fail to comply with consent decrees, and officials will no
doubt fail in the future? The relevant question is this: Will
the Act make it more difficult for judges to compel compliance?
I believe that the Act will make it easier to compel
compliance.
First, the Act does not affect any of the existing
enforcement tools. Judges will still be able to hold officials
in contempt, fine officials and their agencies, incarcerate
recalcitrant officials, compel explanations and reports,
appoint monitors, and hold officials up to public scorn as
lawbreakers.
Building on these powers, which are untouched by the Act,
the Act actually improves the potential for enforcing
compliance since it is tied so closely to Federal law and not
to the bargains.
First, State and local officials will still have to have a
program to comply with Federal law. It is, with all due
respect, demagoguery to say that this will blast apart the
ability of courts to enforce. It will not be enough for
officials to say the old plan failed. They must still satisfy
the judge that they will remedy existing violations of Federal
law. And this is a helpful change since it allows officials to
quickly adjust remedial programs to meet contemporary
challenges and new circumstances.
Second, in order to terminate court supervision, the State
or local officials must be able to overcome plaintiffs' proof
that the court is still needed to prevent future violations.
Officials not in compliance will be faced with the certainty of
judicial hearings and a finding that they are violators.
Third, the Act requires the judge to keep in sharp focus
the Federal rights that the plaintiffs may enforce in court.
This gives judges a firmer basis to compel defendants to meet
their obligations.
Now, there are areas that might be improved in this
statute, and I would like to mention a couple. I think that the
Committee may consider the 90-day limitations. It may be too
short. The provisions about Special Masters might be looked at
and whether they are as important as others. The application of
the Act to decrees where the Department of Justice is the
primary plaintiff might be looked at, as well as the items that
Representative Berman brought out, State versus State with
original jurisdiction of the Supreme Court. They might not be
appropriate for this legislation. And there are definitions in
it which might also be looked at. But the important point is
that the consent decrees can be enforced and the rights will be
sustained.
Now, lastly, some say the consent decree problems
disappeared with the Supreme Court's opinion in Frew v.
Hawkins. I wish that were so. David Schoenbrod, my colleague,
and I have written about that, and the opinion is dictum. It
does not change the law, and the rules on modification remain
as arduous and rigid as, in some cases, Judge Jones has even
mentioned in some of his cases.
There is still need for Congress to make clear that judges
are to continue to enforce Federal rights while also making
clear that State and local officials should be able to rid
themselves of decrees that are broader than necessary to
vindicate Federal law and protect rights.
Thank you.
[The prepared statement of Mr. Sandler appears as a
submission for the record.]
Chairman Sessions. Thank you, Professor Sandler.
Professor Jost, if you would yield for a moment, Senator
Schumer has been over consulting with the President on who will
be our Supreme Court nominee, and he has just arrived.
[Laughter.]
Senator Schumer. I would like to let everybody know who it
is going to be--after 9 o'clock.
Chairman Sessions. Senator Schumer is a very active member
of our Court Subcommittee and Judiciary Committee, and I would
be pleased to recognize you at this time for an opening
statement.
STATEMENT OF HON. CHARLES E. SCHUMER, A U.S. SENATOR FROM THE
STATE OF NEW YORK
Senator Schumer. Well, thank you, Mr. Chairman, and I want
to thank all the witnesses.
First, I do want to thank you, Mr. Chairman, for your
fairness here. We have an equal number of witnesses on both
sides in a very complicated and difficult issue, and I
appreciate it.
Let me say first at the outset, you know, somebody like
myself who believes that the courts are an important tool to
enforce people's rights, but at the same time I am a pro-
government guy. I am pro-government. I think governments
represent people, and we kick them around a lot, but they are
very important. So you have two sort of worthy groups colliding
with each other, and I have seen consent decrees do both. I
have seen consent decrees do miraculous things for people who
need help. I have also seen consent decrees that have been in
effect for a very, very long time and sometimes outlive their
usefulness, and yet it is very hard to get out of them,
particularly when they are signed in perpetuity.
So I am very interested in this subject and in this
hearing, and I do not approach it in a doctrinaire way. I want
to put my entire statement in the record, and I do not think I
am going to--although if Jeff is outside, he may want me to
read it, or we can go on to the next witness. But I would say
this, a couple of points here, as somebody who understands the
impetus for the legislation and at the same time understands
the need for consent decrees to have effectiveness. I would
make a couple of points that sort of stand out.
Four years seems awfully short, or 4 years or when the
highest official who was the party to the agreement, you know,
when his term or her term expires, that seems even shorter
still. These consent decrees should not be tied to who is in
office. They should be tied to the Government, which has long-
term and effective interests here. So that part of it I think--
those two parts I think should be re-examined.
The 90 days, the court has to rule on the motion within 90
days or the consent decree is automatically nullified. That
seems if the pendulum may be too far in one direction, that
swings the pendulum already too far in another direction.
So I would say those are two parts of the bill that I think
go too far, but that does not mean that some kind of compromise
could not come about. I don't know who the sponsors are in the
House. As I look at the list of sponsors here, they tend--I saw
Ben Nelson is the only Democrat--and Mark Pryor, okay. I think
you could probably, I would say to my friend from Tennessee,
you might get broader support by some modifications. I am not
committing to that, but it is something that I would be open
to.
I think I will leave it at that. I have a statement, but I
will leave it at that. Since I was late, I do not want to bore
people with it. This is a real problem, and yet there are lots
of other real problems out there consent decrees tend to help
with. And I think, at least in my experience in New York City,
Professor Sandler, it is the ones that have been on the books
for 15 or 20 or 25 years that seem to be--you know, they sort
of outlive their usefulness. I have done a lot to help the
homeless, and yet I have seen the homeless consent decrees in
New York used for purposes that went way beyond the intention,
I think, of what they were supposed to do after a period of
time.
So this is very interesting. First I want to salute our
Chairman in bringing the issue up. I want to salute Mr.
Alexander for putting this together. As I said, I think it goes
a little too far in one direction, but maybe there is some kind
of compromise that after a certain longer period of time, maybe
10 years, an ability to re-examine the consent decree in a way
makes it a little easier to do that than now. If the judge is
immutably on one side or if the plaintiffs obviously say that
is our only interest, you may need some pushback a little bit.
With that, Mr. Chairman, I thank you.
Chairman Sessions. And we will put your full statement in
the record.
Chairman Sessions. Professor Jost, we would be glad to hear
your observations at this time.
STATEMENT OF TIMOTHY STOLTZFUS JOST, ROBERT L. WILLETT FAMILY
PROFESSOR OF LAW, WASHINGTON AND LEE UNIVERSITY SCHOOL OF LAW,
LEXINGTON, VIRGINIA
Mr. Jost. Thank you very much, Mr. Chairman and Senators.
In addition to qualifications that Mr. Sessions presented,
I also have served as an employee of local government, as an
appointed State official, and have also done a great deal of
work on the legal systems of other countries, particularly the
very activist roles the German courts play in health insurance
in that country. So if anyone wants to engage in a comparative
discussion, I would be happy to talk about what other countries
do.
If enacted, S. 489 would vitiate the enforcement of four
decades of Federal legislation, including the Voting Rights
Act, the Americans with Disabilities Act, the Nursing Home
Reform Act of 1986, and would not only block private parties
from enforcing these laws, but would also tie the hands of the
Department of Justice by largely eliminating consent decrees as
a means of settling disputes.
As Senator Alexander has just told us, this bill has two
primary impetuses. The first is Professors Sandler and
Schoenbrod's book, ``Democracy by Decree.'' I have read this
book, and it seems to me it has two fundamental objections to
consent decrees. First, they can be messy, they can be
expensive, they can take a long time to wrap up, and they do
not always achieve their goals. This is true, of course, with
every effort to implement a complex government program, with or
without consent decrees.
As Congressman Blunt, one of the House sponsors of this
legislation, admitted at the recent AEI seminar, ``I really
think this is more about inactive public officials than about
overly active judges.'' But the problem of irresponsible
government officials will not be solved by getting rid of
consent decrees. In all likelihood, it will, rather, get worse.
Second, if you read Professors Schoenbrod and Sander's
book, they argue that consent decrees are used to implement
``soft rights,'' by which they mean the rights created by all
of the landmark statutes passed by this body over the past 40
years to assure all Americans clean air, safe drinking water,
basic medical care, and freedom from invidious discrimination.
Their fundamental problem, that is, is not with the courts. It
is with Congress. They first begin by talking about Congress
and then move on to talk about the courts.
If you agree with them that Americans should no longer
enjoy these rights, take away the rights, but don't do it sub
silentio by limiting the remedies.
The second factor driving this legislation, I believe, is
the situation of the Medicaid program in Tennessee. Last year,
the Federal Government spent over $5 billion Federal taxpayer
dollars in Tennessee on Medicaid. For every dollar Tennessee
spends on its TennCare program, the Federal Government spends
two. It is not unreasonable to expect Tennessee to comply with
Federal law in spending these Federal taxpayer dollars.
The TennCare program is bound by four consent decrees to
which it agreed to correct violations of the Federal Medicaid
law. In 2003, current Governor Bredesen personally renegotiated
all these decrees. He stated at that point that the negotiated
changes ``put the State back in the driver's seat.'' The former
director of TennCare testified in court 2 weeks ago that
Governor Bredesen was heavily involved in renegotiating these
consent decrees in 2003, that the State got most of what it
wanted in those negotiations, and that the consent decree is
not to blame for TennCare's mushrooming costs. Now he has
decided that it is no longer convenient to comply with these
decrees, and this legislation would free him from those
constraints.
I come from Virginia, and in the Old Dominion we still
believe in honor. If you sign an agreement in court, you live
by that agreement. You do not try to walk away from it. And I
believe that is what Tennessee is trying to do here.
It is vital to understand that the proposed legislation
only limits the effectiveness of consent decrees, not of
litigated decrees. Consent decrees save our country vast sums
of money in legal costs. They cut dramatically the need for
discover, pretrial preparation, and trial time. And perhaps
even more importantly, as Professor Sandler acknowledged, they
allow both parties, including the State, to shape the decision
of the court.
Two years ago, Tennessee stated to the court that the
modifications Governor Bredesen agreed to were designed to
``enable the State to achieve significant savings'' and were
``materially advancing the State's ability to stabilize and
preserve the TennCare program.''
The State represented to the court that that consent decree
was not just good for the plaintiffs, it was good for the State
as well. A fully litigated decree could have had a very
different effect.
I disagree with Professor Sandler, my colleague, that
consent decrees will still be entered into if this legislation
is adopted. I believe that no responsible plaintiff's attorney
will enter into a consent decree again with State or local
government. Most cases now that are settled by the consent
decrees would have to be litigated to judgment or else the
plaintiff would risk the possibility of the decree simply
disappearing as soon as a new public official was elected or 4
years elapsed.
The Supreme Court unanimously last year in Frew v. Hawkins
recognized a flexible standard for modification of consent
decrees. If Tennessee wants yet more modifications in this
consent decree, it can ask the courts to modify them. It is, in
fact, doing that right now as we speak. The Court is
reconsidering that consent decree. Recently, the circuit court
of appeals reversed a decision of the district court rejecting
a modification. There is not a problem here that needs to be
fixed.
If this bill is enacted, however, it will cause untold new
problems and impose significant litigation expenses on the
Department of Justice, the beneficiaries of Federal programs,
and the States. Please vote against letting this legislation
out of Committee.
I would also like to ask to submit to the record my
response to Senator Alexander's article that appeared a week
later in the Legal Times. I recognize that I do not have his
standing, but I would like for you to read my humble response.
Thank you.
Chairman Sessions. We will make it a part of the record.
[The prepared statement of Mr. Jost appears as a submission
for the record.]
Chairman Sessions. Dr. Greve?
STATEMENT OF MICHAEL S. GREVE, JOHN G. SEARLE RESIDENT SCHOLAR,
DIRECTOR, AEI FEDERALISM PROJECT, AND CO-DIRECTOR, AEI
LIABILITY PROJECT, AMERICAN ENTERPRISE INSTITUTE, WASHINGTON,
D.C.
Mr. Greve. Thank you, Mr. Chairman. I too, for obvious
reasons of professional self-interest, want to start with the
AEI event that has been mentioned repeatedly several weeks ago
where Senator Alexander and Congressman Blunt were kind enough
to appear, and both of them made what I think is the crucial
point. This is not about restraining activist courts. This is
about restoring political responsibility, and I think that is
exactly the right analysis.
What is the crucial problem here? Whence this flight from
political responsibility? And I think the answer is the
proliferation of entitlement statutes over the past three
decades. The way it works is Congress gives States or local
governments some money, and in exchange imposes some
conditions, and it then makes the conditions privately
enforceable. And as it turns out, that structure dilutes
political responsibility up and down the chain.
The local governments or the recipients, the State
governments that receive these funds, usually have their own
incentives to expose themselves to consent decrees, and tons of
these so-called consent decrees are, in fact, collusive. There
is decision after decision after decision where Federal judges
and justices have complained about that tendency, and the
reason and the incentive is perfectly obvious. If you have to
run these programs, you want to shield your particular program
and your budget from State legislative oversight. And the most
convenient way to do that is to say, hey, we are under a court
order, we have to spend this money.
Congress is off the hook under these conditions because if
something goes wrong at the local level in consequence of a
consent decree, Congress can always complain about activist
courts or ``We're shocked,'' shocked to learn that these local
governments don't comply with our conditions.
The court is off the hook because it can always say, ``What
do you mean I am being activist? I am just doing the will of
the Congress here.''
And the plaintiff groups are off the hook because they can
always say, look, we won these entitlements in Congress, we won
them fair and square; it is only a matter of simple justice
that we now get to enforce them.
And so at the end of the day, nobody is responsible. Nobody
has an incentive to cut through all of this.
I entirely agree with Congressman Berman that at the end of
the day, what is desirable is a change in the underlying law,
but I disagree respectfully with the contention that this is
not a very, very good first step that deals very, very
effectively with a particularly extreme example of outlier of
entitlement statutes. And the reason why I am saying that is
that what consent decrees do is that they allow these far-
reaching remedies that intrude very, very deeply into the
political management of a State or local government without any
finding of any violation of any law. And what this bill
blissfully and mercifully does is it gives a chance not to
relitigate the original question because it has never been
litigated before, but finally focus the court's attention and
the parties' attention on the crucial question, which is: Is
there an underlying right or was there an underlying right that
was violated in the first place, yes or no?
I would finally add that it is either Congress that fixes
this program or nobody can. The Supreme Court has over the past
two decades, two and a half decades now almost, tried to
address some of the problems of, loosely worded, entitlement
statutes. To summarize the jurisprudence very, very briefly, it
is Congress may expose State and local governments to suit, but
only if it makes its intention to do so absolutely clear in
this language of the statute itself. The purpose of that
jurisprudence is precisely the purpose of this bill. It is to
focus responsibility. The court wants to make Congress say,
``Do you really mean to do this, yes or no?'' It wants to give
State and local governments a chance to know and realize in
advance what they are in for when they subscribe to these kinds
of programs so that at the tail end they do not have an excuse
anymore.
The effort to end or terminate consent decrees or to allow
State and local governments to move for termination is fully
consistent with that jurisprudence, and it acts at a front
where the Supreme Court itself has been incapable of acting.
Everybody in the literature agrees, it is very, very hard to
terminate these consent decrees, very, very hard for appellate
courts and the Supreme Court to do anything about it.
Thank you.
[The prepared statement of Mr. Greve appears as a
submission for the record.]
Chairman Sessions. Thank you.
Ms. Schiffer?
STATEMENT OF LOIS J. SCHIFFER, FORMER ASSISTANT ATTORNEY
GENERAL, ENVIRONMENT AND NATURAL RESOURCES DIVISION, DEPARTMENT
OF JUSTICE, WASHINGTON, D.C.
Ms. Schiffer. Thank you, Mr. Chairman, for the opportunity
to testify today about the grave problem that S. 489 poses for
effective environmental protection in our country. I am Lois
Schiffer, currently an attorney in private practice at Baach,
Robinson & Lewis in Washington, D.C., and from 1994 to 2001,
Assistant Attorney General in charge of the Environment and
Natural Resources Division in the U.S. Department of Justice.
That division is responsible for working with U.S. Attorney's
Offices on virtually all Federal civil and criminal
environmental enforcement actions under the laws Congress has
passed to protect against and clean up pollution.
I have approved and signed literally hundreds of consent
decrees and have negotiated many. A number have been in cases
against State and local governments and would be directly
affected by S. 489. That bill, if enacted, has fatal flaws that
would undercut environmental protection in this country.
First, despite what Mr. Sandler says, the bill will
virtually eliminate use of consent decrees and environmental
enforcement actions against State and local governments because
no responsible Government attorney or citizens group would
enter an agreement where the other party, a defendant State or
local government, could decide not to keep its word and then
could tie the agreement up in litigation over termination in 4
years or less.
Second, S. 489 would thus eliminate one of the essential
tools for implementing and enforcing our Nation's environmental
laws. Since Congress has through law committed to the American
public clean water, clean air, safe drinking water, and other
protections, Congress itself should be dismayed. Once it
appears that a State or local government has failed to comply
with an environmental law, everyone benefits if attention is
turned to how to fix the problem rather than litigating over
whether and how the problem occurred. That is why so many
environmental enforcement actions, whether brought by the
United States, by States, or by citizens groups as specifically
recognized in the environmental laws, turn to settlement
discussions and consent decrees. The remedies that the
enforcers seek and that the State or local governments agreed
to may take long periods of time to implement, often because
extensive work is involved. I will outline a few useful
examples, then make four quick points about the problems of S.
489 that the examples illustrate.
First, sewage treatment cases. In New Orleans, the 50-year-
old system for collecting sewage worked so poorly that when it
rained, raw human sewage ran in the streets. Not very pleasant.
The United States and the New Orleans Sewerage and Water Board
entered into a consent decree--I negotiated part of it myself--
that committed New Orleans to take specific steps over 11 years
to build a new sewage collection system. The massive nature of
the project dictated the length of the decree.
We negotiated a similar consent decree, I am sure you will
be interested to know, for wastewater collection and treatment
in Jefferson County, Alabama, which is still in place, and I am
sure, Senator, that your constituents are happy not to have
sewage improperly treated.
In Wayne County, Michigan, which covers Detroit, the United
States and the county just returned to court to ask for
termination of a consent decree after 11 years because the
county had essentially fixed the problem, and that is an
example of how the system works. People know how to get decrees
terminated when they have lived their useful life.
Finally, this past February, the Federal court in
Tennessee--Senator Alexander, you will be particularly
interested in this--signed a consent decree entered into as
plaintiffs United States, the State of Tennessee, and the City
of Knoxville--they were the plaintiffs--and the Knoxville
Utilities Board, an independent agency of the city, was the
defendant, requiring the board to take specific steps to
analyze and fix sewage overflows. The work will cover 12 years,
and the press release states it is estimated to cost $530
million. Of necessity, that work is going to take a long time.
It is important to note that it was Senator Alexander's State
as the plaintiff.
A second type of example, the consent decree to restore the
Everglades, which was entered into after a lawsuit was brought
in 1992, and there, there is great commitment by the United
States, the State of Florida, and the South Florida Water
Management District, as well as this Congress and the present
Governor of the State, to really clean up and restore the
Everglades. It is a very long-term project and of necessity
that consent decree has to run a while.
All of these would be stabbed in the heart by S. 489, and I
will conclude with four quick reasons.
First, this bill would mean that the Justice Department and
citizens groups would stop entering into consent decrees to
resolve environmental cases brought against State and local
governments since complying with the laws passed by Congress
can take time, as I have indicated. A law that means consent
decrees may be terminated after a short time eliminates them as
a useful tool.
Second--and I will be quick--this bill would increase, not
reduce, the amount and scope of litigation in our courts with
greatly added expense and grave burden on resources of the
Justice Department and U.S. Attorneys, State governments that
both bring enforcement cases and defend them, local governments
that would face trials, not settlements, and Federal courts.
This is also completely contrary to efforts in every Federal
court to encourage cases to settle and is encouraged by a law
of this Congress, 28 U.S. Code 651, the Alternative Dispute
Resolution Act.
Third, the bill will seriously set back the enforcement of
environmental laws passed by this Congress and give us all
dirtier air, water, and land.
And, finally, the bill is completely unnecessary because
particularly under the recent Supreme Court decision in Frew v.
Hawkins that you have heard about, State and local governments
and courts already have good tools to address the concerns it
seeks to remedy.
Thank you.
[The prepared statement of Ms. Schiffer appears as a
submission for the record.]
Chairman Sessions. Thank you very much. Those are excellent
discussions that we have had today, and we thank you for it.
Each one of you brings an important perspective to the matter.
It just strikes me that prior to the common nature of
consent decrees, if a community polluted the water and were
sued, they had to pay. And if they did it again, they would get
whacked again, and then get whacked again, and pretty soon a
jury or the judge would really whack them if they failed to fix
it.
But I as a United States Attorney for 12 years did enter
into and enforce decrees that probably were helpful in the
sense that it established a time period to accomplish a goal,
Ms. Schiffer, that you mentioned it might take more than 4
years to accomplish. But the problem is, what if after 4 years
somebody has solemnly agreed to a plan and it is plainly
obvious that the plan would be better if it were modified? What
is the current standard of review by a court to establish that?
Ms. Schiffer. May I respond, Senator?
Chairman Sessions. Yes.
Ms. Schiffer. Well, first, of course, if it is clear that
it needs to be changed--and the Everglades is a perfectly good
example of something where everyone agreed after a while they
had learned more and it needed to be changed--the first thing
is to go back to the parties on the other side and say, ``We
think this should be changed.'' And often those agreements can
be worked out in that fashion.
Chairman Sessions. Sometimes, but a great power rests in
the plaintiff's hands. Correct?
Ms. Schiffer. Well, that is if you can have agreement, and
if not, it has certainly been the standard before the Frew case
and reiterated in Frew that if there is a change in
circumstances, a party can go back to court and say there is a
change of circumstances, the consent decree should be modified.
And I would add that Frew specifically urges that deference
should be given to elected officials, to State and local
governments, in looking at whether there should be
modifications to consent decrees.
But I would also note that even apart from the consent
decree issue, what we are really talking about here is a set of
pollution control obligations that are imposed on State and
local governments by the laws of this Congress. So that even
without the consent decree, the obligation on the local
government to, as you say, fix the pollution problem does not
go away.
But the courts have shown themselves perfectly capable, if
there is a change of circumstances, if people find new
technologies, if there is a better, more efficient way to do
it, to modify the consent decree.
Chairman Sessions. Well, in certain circumstances--and I
think the U.S. Department of Justice probably has a better
reputation as a plaintiff than most. Maybe others--or,
Professor Sandler, would you like to comment on what it takes
to amend some of these decrees?
Mr. Sandler. Yes, I would very much like to answer that.
Thank you.
The leading case is called Rufo, R-u-f-o, and it requires
that the parties seeking the modification--usually the
defendant--has to show unforeseen circumstances, not just
change of circumstances, as Ms. Schiffer said, but unforeseen
circumstances; and, secondly, that the modification presented
to the court must be suitably tailored, that is to say, a
minimum change necessary to essentially preserve the bargain.
And that is why it is so difficult to get modifications. So let
me give you an example.
In the 1970's, the New York City Housing Authority was
evicting tenants in a way that was unconstitutional, so there
was a lawsuit brought, and a consent decree was entered which
supplied a very elaborate year-long process to evict, far
greater than what the local statutes required. Twenty years
later, crack cocaine is devastating parts of the Housing
Authority. Some tenants were using their apartments to sell
cocaine, so the tenants and the Housing Authority said, ``We
have got to get rid of these people if they are convicted of
using their apartments for selling cocaine. Let's use the quick
eviction proceeding to sustain the safety of the Housing
Authority.''
Plaintiffs' attorneys said, ``Oh, no, we have this 22-year-
old consent decree. You have to take a year to evict people.''
And so they had to have a trial before Judge Prescott. And what
were the issues? Was crack cocaine unforeseen when they had
heroin 22 years later? So they had experts testify as to how
unforeseen crack cocaine was or whether it was not or whether
it was the same; and, secondly, they had experts come and
testify as to whether or not there were other suitably tailored
things to do other than evict, such as hire more police. And so
you had a battle of experts. Three days of hearing, 55 pages of
opinion, 18 months, the court finally says it is okay to evict
cocaine sellers who would use their apartments to sell.
During that time, the tenants were so beside themselves
with what their lawyers were doing, they hired another lawyer
to attack the old lawyer. And this is a typical--this is what
can happen under the current rule, which is why this
legislation is so important, because it says, wait a second
here, the measure of Federal court jurisdiction is the laws
that Congress passes and the Constitution. It is not the
private bargains that get written into these consent decrees.
I wish Representative Berman was here. He talked about the
Jose P. case, with which I am enormously familiar. He says it
cost a lot of money. One of the reasons it cost a lot of money
is that Federal law says every child is entitled to an
evaluation by one person. New York in 1979 said, well, let's do
three people; in other words, three times what Federal law
requires. That is still the requirement. And when the city
tried to get out from under that, the social worker union,
which is one of the three groups, intervened in the case and
said, ``You have to keep hiring social workers, whether you
want to or not, because the consent decree says you have to.''
And then went back to Federal law and said only one, but the
court said, ``I am sorry, a bargain is a bargain.'' And in the
words of my colleague here, honor it. But consent decrees
should not be about honor. You honor them when you sign them
for sure, but the measure of Federal court jurisdiction is what
the Federal laws require, what Congress passes, and what the
Constitution--and those other bargains hobble elected officials
and subsequent officials who are trying to manage these very
complicated programs, social programs and other programs on a
day-to-day basis within real budgets and with real choices, and
the consent decrees close in on the elected official and
prevent them from doing their job.
And, lastly, I would like to just object, if I could, to
the discussion about treatment plants, with which I am also
very familiar. Of course, it takes a long time to build a
treatment plant, and consent decrees under this statute would
not be terminated. You would still have to comply with the
Water Act. And if you could do it without a treatment plant,
God bless you. But if you cannot, you are going to have to
build a treatment plant. And no statute of this kind of going
to stop the impact of the Clean Water Act.
Chairman Sessions. That is something you are familiar with,
I am sure. I recall, as you talk about the settlements and how
they are entered into, I know Ms. Schiffer would have a high
opinion of the Department of Justice and how they do these
things, but the Attorney General of Alabama, my predecessor,
met in a secret room with plaintiffs' attorneys and agreed, in
violation of the Alabama Constitution, to add two new judges to
the Alabama Supreme Court. And the judge approved this
agreement without any public hearings.
Now, there was a hearing to decide whether or not to accept
the consent decree, but judges tend to accept the decrees
entered into by the parties on the presumption that they are
honest, good-faith litigators and they are defending the
issues. But sometimes things go awry and they are not really
sound judgments.
Everybody is willing to talk, and who should I recognize?
All right. My time has not turned to yellow yet, so I would go
in this order: Ms. Schiffer, Mr. Greve, and Mr. Jones. And if
you all would keep your comments sort of brief so I can
recognize Senator Alexander, because my time will soon be out.
Ms. Schiffer. I will be very quick. Two points.
One, Rufo was decided 2 years before Frew. Frew clearly
said if the State establishes a reason to modify the decree,
the court should make the necessary changes, and it also said
deference should be given to elected officials. So he really
does not have the current standard right.
Secondly, as to whether it takes place in closed doors,
under the pollution statutes there are either specific
requirements in the statutes or in regulations that the court
have a notice and comment process and an opportunity for the
public. So under these laws, closed doors does not work.
Chairman Sessions. Well, it really is a closed door in the
sense that there is no public Congressional hearings by the
people who are going to pay the money. It is the lawyers. Ms.
Schiffer, the Department of Justice is not empowered to run the
Prichard, Alabama, sewer system. Yet they go into a private
meeting with a lawyer for the city, and they agree how the
system should be fixed. That is the way it works, and the city
and the taxpayers are basically told that this is what the
court said and you are stuck with it.
Now, sometimes it is justified. Dr. Greve?
Mr. Greve. Very briefly. Thank you, Mr. Chairman. Just two
brief points.
First, what everybody agrees on in this very contentious
debate is that we have very little empirical evidence as to how
these agreements actually work, how many are there, how many
are terminated. So we do not know very much about the
termination, but we know about one context in which the Supreme
Court has laid down much more specific, much more precise
guidelines with respect to the termination of the decrees, and
that is school desegregation, which is not covered by this bill
but I am mentioning it because it is the only systematic
empirical study that I am aware of in this context. And there
those standards have done absolutely nothing--nothing--to help
district courts terminate these desegregation decrees.
With all due respect, the notion that some abstruse Supreme
Court standard, whether it is that of Frew v. Hawkins or that
of Rufo v. Inmates, might conceivably help district courts,
might have some administrable rule that it actually applicable
is just erroneous.
I just want to say one more thing about the modification of
consent decrees. It is true, yes, you can modify consent
decrees somewhere along the way, and even that is, in my
judgment, harder than it ought to be. But what is crucial, the
crucial difference between the current modification procedures
and this bill is this: In current modification procedures, the
only reference point is the working of the remedy itself.
Nobody ever gets to the question: Do these people, do these
plaintiffs, are they entitled to be in this court? And are they
entitled to this remedy? You never get to that because
everybody is obsessing over, well, we agreed to the remedy 11
years ago, or whatever, and now it doesn't really work anymore.
It is completely self-referential over time. This bill would
change that. That is a good thing.
Chairman Sessions. Professor Jost and Judge Jones, briefly.
Mr. Jost. Just very briefly, I would like to reiterate one
point that Dr. Greve made. Professor Sandler caught himself
when he said this is a typical situation; then he said this is
one example. I do not think we know what the typical situations
are, and I think we could sit here all day with him coming up
with examples of consent decrees that do not work and some of
us on the other side coming up with examples of consent decrees
that did their job and were terminated.
I guess what I am really worried about is the drop-dead
solution that is proposed here. A number of people have put a
lot of pressure on the President to say, okay, one more year
and we are out of Iraq or two more years and we are out of
Iraq. And I think he has sensibly said, ``As soon as you say
one more year or two more years, then it tells people how much
longer they are going to have us around and then we are gone.''
One of the consent decree that Professor Sandler refers to
in his book was a child-care consent decree in Utah that did
have a 4-year limit. And what happened was that the State
simply did not do anything for 4 years, and at the end of the 4
years they said, ``We are out of here.'' And the plaintiffs
went back in and said, ``No, they have not complied yet. We
need to have a modification of this consent decree.'' And the
court did modify it to extend the consent decree, and it was
upheld by the circuit court of appeals, which said, ``The State
has refused to comply. They have to comply before we can end
this.''
And I think that that is the situation we see here. I mean,
there may be a problem here that needs to be fixed, but I think
this is a solution that is going to cause far more problems
than it will fix.
One final thing, and that is with respect to the 90 days.
The Judicial Conference has sent this Committee a letter saying
that the 90-day period is completely unrealistic. Nobody can
retry a case in 90 days. And so if you are going to have the
90-day period, you might as well just say it ends at the end of
4 years because it is not going to be--no one can completely
retry a case in 90 days. Nobody believes that that is possible.
Chairman Sessions. Judge Jones?
Judge Jones. First of all, I have to respond to Dr. Greve's
comment about school desegregation. I do not know what he has
been reading, but the landscape is full of cases being
terminated on the finding of courts that the district has
reached unitary status--The Columbus case, the Detroit case,
Bradley v. Millican, the Dayton case, the St. Louis case, in
which the parties themselves reached an agreement. After many,
many years of functioning under a consent decree, they
concluded that they had achieved the objectives of the
settlement. So in school desegregation cases, we are barking up
the wrong tree.
We can sit here and throw out all kinds of horribles about
consent decrees that may not have been the best or there may
have been flaws in them. But why don't we talk about the causes
that led to the litigation that resulted in the consent
decrees, the conditions that resulted from the default by State
governments and by municipal governments in meeting their
obligations to citizens. Why don't we talk about the remedies
that were provided by Congress that the citizens were availing
themselves of, and in order to avoid the divisiveness that is
associated with litigation, they agreed to conclude the matter
by consent decree.
Now, if communities wanted to have their dirty linen aired,
if they want these protracted trials, if they wanted to undergo
the expense of demonstrating from A to Z what is happening to
citizens by virtue of the cities and States violating
Congressional statutes or constitutional requirements, then we
are going to jam up the courts, and we are going to have a
horrible bottleneck.
The courts are now understaffed. The budgets are being
reduced. All the judges will tell you that they are functioning
at less than optimum strength. They do not have the personnel.
The clerk's offices are working part-time. All the requirements
of conducting full-scale litigation are not being fully funded.
So we are going to have a situation in which lawyers are
going to tell their clients there is no point in entering into
a consent decree. Their clients are going to say, listen, after
4 years if we have to fight this battle all over again, let's
just fight the battle now. And the costs of attorneys' fees
that you have referred to will be nothing compared to what they
will be if these cases are litigated to the nth degree.
And what we have tried to avoid--if I may just have a
second.
Chairman Sessions. Just one second.
Judge Jones. When I was litigating the NAACP and during my
period on the court in which I was supportive of the direction
the courts were taking to settle and solve cases and to
initiate alternative dispute resolution strategies, it was to
avoid the scorched-earth policy, the scorched-earth strategy of
tearing communities apart by having all this litigation, having
all these issues aired, getting people together, agreeing on a
problem, agreeing on a solution, and then asking the court to
endorse it by a consent decree following its fairness hearing
in which all parties agree and the public agrees.
And so I think we are--we may focus on the horribles, but
let's look at what led people to resort to the courts. And if
we want people to lose faith in the court system, then I think
we will go down this road of choking off remedies that are
clearly made available.
Chairman Sessions. Senator Alexander?
Senator Alexander. Thank you, Senator Sessions, and this is
very, very helpful. I want to make a comment, and then I have
got a couple of questions that would help me.
As I listen to this, the 90 days requirements, it depends
on what side you are on. If you are a Government official, if
you are a Federal judge, if you are a plaintiff's lawyer, you
do not like 90 days. But what if you are the Governor of
Tennessee and every month that goes by that the Attorney
General has to run from the Federal district judge in
Nashville, who is trying to run the Medicaid system, up to see
Judge Jones in Cincinnati to get overruled, every month costs
$43 million, and $43 million is an $800 pay raise for every
single Tennessee teacher.
And Professor Sandler, as was pointed out, said typical and
then said maybe not typical. I am not sure these are not so
typical. I think the people of my State, if presented with a
question of should we want to be the number one State in
America in the number of prescription drugs that we use, or
would it better to spend a little less on prescription drugs
and more on pre-school education, we elect our legislators and
our Governor to make that decision. And we do not expect the
Federal judge and a master and a plaintiff's lawyer and someone
in Washington to make it. That is not what we want out of a
democracy.
And if we are in Los Angeles and if in 1994 we want to ride
more buses and in 2004 we want to ride more mass transit, we
want our elected officials to make that decision for us. And if
between 1974 and 2004 we move from preferring bilingual
education to English as a second language, we would like to
have that be responsive to us.
And I think Judge Jones' point that the courts are busy
just underscores the fact that when these policy decisions get
lost in the Federal court today, the judges are really too busy
to manage them. And they are turned over to faceless
plaintiffs' lawyers and to well-paid masters who run these
programs instead of the elected officials.
So I think fundamentally we are trying to restore some
balance here and said rights are in the courts and policy is
for elected officials. And, Mr. Jost, I think you are
overspeaking a little bit when you say retry the case. This
case has never been tried. This is a consent decree. This is
where two people walk into the court and say, ``Judge, this is
our agreement. Will you approve it?'' There is no retrying
here.
And as far as 90 days go, I would be real impatient with
anything more than 90 days if I knew that I could give my
teachers an $800 pay raise while we are waiting for the
Attorney General to yo-yo back and forth between the Federal
judge in Nashville and the circuit judge in Cincinnati to do
what I thought I was elected to do.
Now, let me ask this: Does anyone have any idea how many
existing Federal court consent decrees there are today or what
record there is of them? So if, say, I were elected Governor of
California or mayor of Los Angeles, if I were elected mayor of
the city of New York, how many consent decrees are there
governing things that I thought I might be elected to do? And
how would I find out a list of those Federal court consent
decrees?
Mr. Sandler. That is a wonderful question. When we were
writing the book, we tried very hard to get that answer. It
turns out that no one knows.
Most of the cases are private cases brought against State
and local government where the Federal Government is not named
as a defendant, so the Department of Justice does not track the
cases.
The agencies responsible, say the Department of Education
for special education or the Department of Transportation or
EPA, they do not track the cases either because they are not
involved with them. So the agencies do not know.
What I found, in order to find out where the cases were,
the best sources were the organizations of attorneys who bring
the cases. For instance, if you want to find out where the
foster care--somebody mentioned a foster care case. There is an
organization that tracks all the foster care cases across the
country. It is pretty easy to do because there is only a
handful of lawyers who bring them. And the organization not
only tracks them where they are but the status of the case. And
they print that on the website. So I was able to find out and
it turns out that virtually every State has foster care
litigation, and you can track it. But the Department of Justice
does not know; the court judicial system does not know.
Senator Alexander. Do you have any guess how many there
are, in New York City, for example?
Mr. Sandler. In New York City, hundreds. Hundreds. And
probably thousands across the country because every State has
them.
Chairman Sessions. You mean hundreds in New York City that
affect some agency--
Mr. Sandler. Oh, yes.
Chairman Sessions.--of New York City government.
Mr. Sandler. Like there is a consent decree on vending
machines in the schools under Federal law. You know, there is a
consent decree, as we mentioned, on bilingual education. There
are multiple consent decrees on bilingual education. Every
aspect of social programs that Congress enacts, either under
the Spending Clause or the Commerce Clause, will ultimately
result in consent decrees.
Senator Alexander. Could I ask Judge Jones--I see he has
his hand up. Judge Jones, would there be any objection to
trying to keep some record of Federal court consent decrees?
And if there were a way to do it, what would be the appropriate
way to do it?
Judge Jones. There are records and they are available.
Senator Alexander. Where are they available?
Judge Jones. They are available in the executive office of
every circuit.
Senator Alexander. In what?
Judge Jones. The circuit executive office of every circuit.
Every year the district judges file reports with the Office of
the Circuit Executive of the--in my case, the Sixth Circuit.
And there is an annual report prepared which breaks down the
dockets of the district judges, the status of the cases,
whether they are in litigation, in what stage, are they in
discovery, are they in trial, have they been resolved by
consent decree, and if the court is overseeing the decree.
So those are available. They exist. And I am sure every
circuit by order of--and I think at the Administrative Office
of U.S. Courts, Mr. Mecham's office, would have those records.
Senator Alexander. So if I am elected Governor of
Tennessee, I could go to the Sixth Circuit and say, Please tell
me every Federal court consent decree which is currently in
effect which might affect the job I was elected to do?
Judge Jones. Yes. You could get a report on the consent
decrees that are under supervision in the district courts, in
your case the Middle District of Tennessee, or within the Sixth
Circuit; or you could go to the Administrative Office of U.S.
Courts and get their annual report, which has the reports,
compiles the reports of all of the circuits in the Federal
system. So those numbers are available.
Mr. Sandler. They just do not tell you what you want to
know. A decree has been entered. They do not tell you about
modifications, and they do not tell you anything else about it.
You know, I think it is important to understand how consent
decrees get done. A complaint is filed. The first motion is
either a motion for certification or a motion for preliminary
injunction or summary judgment. There may never be a written
decision in the case because those motions generate the
discussions that lead to the decrees. So a case such as the
Jose P. case, which Representative Berman mentioned, there has
not been a written decision in that case in 15 years. Yet the
parties are meeting every other week adjusting the consent
decree. It just lives a life of its own.
So the answer to your question is, Governor, if you really
want to know, there is no source that will give you the
information you really want to know.
Judge Jones. May I just respond to that? This is tit for
tat. A court speaks through its orders, and I do not know
whether Professor Sandler has tried any class action cases or
whether he has been a litigator in this arena or whether he has
adjudicated these cases. But I can tell you, as a litigator for
10 years, plus I was Assistant United States Attorney in the
Northern District of Ohio, I was a Federal court of appeals
judge for 22 years, and I am now a litigating partner with a
major law firm in which I am involved in many mediations and
arbitrations and settlement of class action cases, a judge does
not enter an order on his own whim. When a case is filed, the
parties engage in discovery. There is a requirement under the
Federal rules now that parties must first explore settlement
possibilities.
If in the process of discovery it appears that there can be
settlement, the parties can come to terms, then they will
submit an agreement to the court for preliminary approval. The
court will examine very meticulously the settlement against the
claims that were contained in the complaint. Then if the court
is satisfied that there has been--that this settlement is arm's
length and that it is fair and adequate and reasonable, the
court will then give preliminary approval. Notice will be given
to all members of the class, and they will be then notified to
attend a hearing after they comment, either enter an objection
or agree to opt out of the settlement.
Then the court schedules this settlement agreement, and it
is like a town meeting. Anybody can come--the Governor of the
State, the Attorney General, the cabinet officers, the public
at large, members of the class--and they can come and the court
gives them full sway. They can address the issues. They can
enter their objections. And if the court feels that there is
merit to their objections, the court will deny the approval. If
the court feels that the settlement is fair and adequate and
reasonable, the court will approve the settlement and,
therefore, enter a consent decree.
Now, if in a year or two or three or four or 5 years there
is some aspect about the settlement which is open to question,
the party can repair to the court and ask the court for a
hearing to modify and correct or even terminate the settlement
agreement. And the court will then conduct a hearing and enter
an order. So it is not the lawyers who run the courts. The
courts run the courts. And the courts make a decision as to
whether they are going to grant the relief that is being
sought.
So it is not accurate to say that private lawyers are
calling the shots here. They have to petition the courts, and
the courts make the decision, and they enter the orders, and
courts speak through their orders.
Chairman Sessions. Thank you, Judge.
Do you want to follow up?
Senator Alexander. My red light is on.
Chairman Sessions. Attorney General King, as a practical
matter, have you found it difficult to alter or end the consent
decrees that have continued for a long time? I do not think you
got in your opening statement to refer to maybe other cases
that you do in your written statement. What is the practical
reality for Attorneys General? And have you an impression of
how Attorneys General and Governors feel about protracted
consent decrees?
Mr. King. I have an opinion about how the Attorney General
of Alabama and the Governor Alabama feel about them, and they
feel that they are oppressive. They feel that too often they
evolve into an exercise where the lawyers frustrate their own
client's purposes, where you attempt to come into compliance to
correct past discrimination practices, for example, and the
lawyers object because in Alabama's case they are being paid
whether they win or lose, whether what they do is frivolous or
whether it is helpful. And that creates a scenario by which
plaintiffs' lawyers are getting rich while the State of Alabama
continues to suffer, continues to be unable to correct abusive
practices.
We have instances in Alabama, for example, in a case
involving the delivery of child welfare services, where we
agreed to come into compliance with certain standards. There is
a court monitor in place whose job it is to make sure that the
State of Alabama does that. We have now brought all 67 counties
into compliance. We have asked the judge on the recommendation
of the monitor he selected to release the State of Alabama from
that consent decree. And, in fact, our experience is that now
they are revisiting the counties again. They are doing
something that falls completely outside the scope of the
consent decree that the State of Alabama is a party to. And in
many regards, the State of Alabama is helpless to do anything
about it.
Chairman Sessions. Are they paid for the time they spent
doing that by the State?
Mr. King. Of course they are. Everybody is being paid.
Chairman Sessions. By the State of Alabama.
Mr. King. By the State of Alabama.
Chairman Sessions. The taxpayers.
Mr. King. Our lawyers, their lawyers, the court monitor--
everybody is being paid. And in Alabama's experiences, these
also develop into an opportunity for the bureaucrats to use the
courts as a mechanism to do what they cannot persuade the
legislature to do.
Chairman Sessions. That is an important subject. I hope we
will listen to that. I have seen that.
Mr. King. I hope you will, too, because what we find in
this case of which I speak right now, what we find is a judge
who holds court, he listens to the legal arguments, then he
opens it up to everybody in the room, and he says, ``Tell me,
do you have enough money to run your department? Do I need to
order more money to be spent?'' That is not the role of the
Federal judiciary. That is the role of the Governor and the
legislature of the State of Alabama.
Chairman Sessions. Attorney General King, let me interrupt
and get to this point precisely. In other words, sometimes the
governmental entity being sued is happy to be in the fix to be
thrown into this pot because he or she may hope that the
plaintiffs will win and somehow the Federal court will order
more money to go to their agency. Is that correct?
Mr. King. No, it is more serious than that, Mr. Chairman.
This is an instance where they do not even have to win, where
the bureaucrats come in and they say, ``We need more money in
order to come into compliance, in order for this to ever be
completed,'' and it becomes a funding mechanism.
It is difficult for me to explain to Alabamians why
bureaucrats are allowed to go to the Federal courts and make
their budget requests, but that is what is happening.
Now, there are a lot of people here who have a lot of
expertise and they are talking about a lot of academic
exercises. I am telling you, as the Attorney General of a State
who is charged with complying with unwieldy and difficult
consent decrees, our ability to comply, our ability to do what
has been required of us is being hampered by the very consent
decrees under which we operate.
We have a consent decree to operate the Department of
Mental Health in my State. We agreed to meet certain clinical
standards--clinical standards that continue to evolve, that
continue to change, and the Federal courts continue to require
the State of Alabama to alter its ability--its attempts to come
into compliance with new and higher standards.
We are not being asked to comply with the bargain that we
struck. We are being asked to comply with a bargain that
continues to be changed by the plaintiffs and by Federal judges
and by court monitors and that the State is a helpless victim
of.
I am not here to say that consent decrees are not
important. I am not here to say that governments do not have
important duties to those who depend upon them. I am not here
to say that when the States fail to act responsibly those who
are injured should not have a recourse. Of course they should.
But I am here to say that the State of Alabama is requesting
your assistance and your relief in giving us the ability to run
our own State, to act responsibly, and to take the Federal
judiciary and to take a limited group of plaintiffs' attorneys
out of the process, to give us the ability to get relief that
the citizens of Alabama expect when they elect a Governor he is
going to be able to deliver to them. And right now he simply
cannot do that. Right now, as Attorney General, I cannot do
that. And that is wrong.
Chairman Sessions. Thank you very much. I think you spoke
eloquently of the reality that I hear. I was with a Governor
just an hour--actually, 20 minutes before this hearing began
from a State far distant from Alabama, and I asked her about
it. I said I had to go to this consent decree hearing. She
said, ``That is great. They are driving us crazy. It is
interrupting my ability to do my job.'' So I think it is a
reality.
Senator Alexander?
Senator Alexander. I do not have any more questions,
Senator Sessions. This is a well-informed and distinguished
panel of a variety of views. It would be hard to imagine how we
can get a broader perspective than we have had today on this
subject. And so I would invite any of them--and I imagine you
will do this before the hearing ends--if there are things that
you wanted to say that you did not get to say or if there are
points that you would like for us to consider or if there are
specific changes in the bill that you think would make a
difference, if you could submit those to Chairman Sessions, I
am sure Senator Schumer and other members of the Subcommittee
and then those of us like Representative Berman and I, Senator
Pryor and others--I will certainly be glad to read them and
consider them, and that will be an important part of the
process.
Chairman Sessions. Well, thank you so much. This was a
spirited panel. It raises some important issues. Consent
decrees are going to be and will remain an important part of
the settlement of litigation in America. The idea that after 4
years that the plaintiff would have to justify the continuation
of that decree does not strike me as eviscerating the power of
a decree. Some decrees, in my view, will automatically need to
be continued. Everybody would know that the time had not
sufficiently run to complete the remedy. Some decrees may be
clearly entitled to be terminated, in which case that would be
done. Some decrees will require the judge to give some thought,
well he or she should if they are now managing an agency of a
State or a county or a city.
We do not need to treat too lightly the concept that a
consent decree is virtually the equivalent of a legislative
enactment. It binds everybody under that decree--a school
system, the entire mental health system, the entire Department
of Transportation. These are bound by these decrees, and it is
virtually the equivalent of a legislative act, except if we
pass a legislative act this year, the next Congress can change
it. If they get the same number of votes we had this year to
change, they can change it. But these decrees are powerful. And
it is dangerous. I fundamentally believe it is not a healthy
thing when an unelected, lifetime-appointed judge who is not
accountable for the operation of the Department of
Transportation or the Department of Education is now
substantially managing that, is approving a decree that
mandates it for indefinite periods of time in the future. So
the decrees are valid. The decrees can be good and healthy. But
as the Supreme Court is telling us, we ought to be respectful
and understanding that it does impact in a significant way our
separation of powers, the entire nature of our democracy,
because it is removing the power from the people and putting it
into the hands of an unelected judge who is not accountable.
So I think it is a worthy thing, Senator Alexander, that
you have raised, you and Senator Mark Pryor. He was an Attorney
General, of course, a Democratic Senator. He shares your
concerns about it. Mr. King has expressed his as another
Attorney General.
I think we ought to listen to the good suggestions that
have been made here, listen to the concerns that have been made
here, and I hope that you will continue to pursue your view
that perhaps this Congress can do something that would make
this system work better.
Do you have any final comments you would like to make?
Senator Alexander. No. The only thing that went through my
mind a few times, everyone was talking about the short period
of time that Governors and mayors serve. Most of us hope to
serve longer than 4 years. Most of us do. The last mayor of
Knoxville served 16 years. So the idea that suddenly--just to
boil it all the way down, if I am running for Governor of
Tennessee and I am elected and I want to improve the schools or
fix the roads, and I persuade people to do that and they vote
for me, then I think I ought to be accountable for that and
have the authority to do that. To the extent I interfere with
the constitutional or federally guaranteed rights of any
citizen of Tennessee, then I ought to be hauled into court.
Otherwise, I ought to be kicked out of office and accountable
if I do not do my job.
And so really we are talking about what set of decisions
should be made and changed in the election process democracy
and what set of decisions should be reserved for the
independent third branch of Government, the judiciary. And it
has always been a balance, and this has been a good discussion.
Thank you.
Chairman Sessions. Thank you very much. It has been a very
interesting hearing.
We will keep the record open one week to allow for any
comments to be submitted to the record, and Senator Leahy has a
statement for the record, and we will stand adjourned.
[Whereupon, at 4:25 p.m., the Subcommittee was adjourned.]
[Submissions for the record follow.]