SPEAKERS CONTENTS INSERTS
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FEDERAL CONSENT DECREE FAIRNESS ACT
SUBCOMMITTEE ON COURTS, THE INTERNET,
AND INTELLECTUAL PROPERTY
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED NINTH CONGRESS
JUNE 21, 2005
Page 2 PREV PAGE TOP OF DOCSerial No. 10943
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://www.house.gov/judiciary
COMMITTEE ON THE JUDICIARY
F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois
HOWARD COBLE, North Carolina
LAMAR SMITH, Texas
ELTON GALLEGLY, California
BOB GOODLATTE, Virginia
STEVE CHABOT, Ohio
DANIEL E. LUNGREN, California
WILLIAM L. JENKINS, Tennessee
CHRIS CANNON, Utah
SPENCER BACHUS, Alabama
BOB INGLIS, South Carolina
JOHN N. HOSTETTLER, Indiana
MARK GREEN, Wisconsin
RIC KELLER, Florida
DARRELL ISSA, California
JEFF FLAKE, Arizona
Page 3 PREV PAGE TOP OF DOCMIKE PENCE, Indiana
J. RANDY FORBES, Virginia
STEVE KING, Iowa
TOM FEENEY, Florida
TRENT FRANKS, Arizona
LOUIE GOHMERT, Texas
JOHN CONYERS, Jr., Michigan
HOWARD L. BERMAN, California
RICK BOUCHER, Virginia
JERROLD NADLER, New York
ROBERT C. SCOTT, Virginia
MELVIN L. WATT, North Carolina
ZOE LOFGREN, California
SHEILA JACKSON LEE, Texas
MAXINE WATERS, California
MARTIN T. MEEHAN, Massachusetts
WILLIAM D. DELAHUNT, Massachusetts
ROBERT WEXLER, Florida
ANTHONY D. WEINER, New York
ADAM B. SCHIFF, California
LINDA T. SÁNCHEZ, California
CHRIS VAN HOLLEN, Maryland
DEBBIE WASSERMAN SCHULTZ, Florida
Page 4 PREV PAGE TOP OF DOCPHILIP G. KIKO, Chief of Staff-General Counsel
PERRY H. APELBAUM, Minority Chief Counsel
Subcommittee on Courts, the Internet, and Intellectual Property
LAMAR SMITH, Texas, Chairman
HENRY J. HYDE, Illinois
ELTON GALLEGLY, California
BOB GOODLATTE, Virginia
WILLIAM L. JENKINS, Tennessee
SPENCER BACHUS, Alabama
BOB INGLIS, South Carolina
RIC KELLER, Florida
DARRELL ISSA, California
CHRIS CANNON, Utah
MIKE PENCE, Indiana
J. RANDY FORBES, Virginia
HOWARD L. BERMAN, California
JOHN CONYERS, Jr., Michigan
RICK BOUCHER, Virginia
ZOE LOFGREN, California
MAXINE WATERS, California
MARTIN T. MEEHAN, Massachusetts
ROBERT WEXLER, Florida
Page 5 PREV PAGE TOP OF DOCANTHONY D. WEINER, New York
ADAM B. SCHIFF, California
LINDA T. SÁNCHEZ, California
BLAINE MERRITT, Chief Counsel
DAVID WHITNEY, Counsel
JOE KEELEY, Counsel
RYAN VISCO, Counsel
ALEC FRENCH, Minority Counsel
C O N T E N T S
JUNE 21, 2005
The Honorable Lamar Smith, a Representative in Congress from the State of Texas, and Chairman, Subcommittee on Courts, the Internet, and Intellectual Property
The Honorable Howard L. Berman, a Representative in Congress from the State of California, and Ranking Member, Subcommittee on Courts, the Internet, and Intellectual Property
The Honorable John Conyers, Jr., a Representative in Congress from the State of Michigan, and Ranking Member, Committee on the Judiciary
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The Honorable Roy Blunt, a Representative in Congress from the State of Missouri
The Honorable Nathaniel R. Jones, Blank Rome LLP
Mr. David Goetz, Commissioner, Department of Finance and Administration, State of Tennessee
Mr. David Schoenbrod, Professor, New York Law School
Material Submitted for the Hearing Record
Prepared Statement of the Honorable Howard L. Berman, a Representative in Congress from the State of California, and Ranking Member, Subcommittee on Courts, the Internet, and Intellectual Property
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Prepared Statement of the Honorable John Conyers, Jr., a Representative in Congress from the State of Michigan, and Ranking Member, Committee on the Judiciary
Prepared Statement of the Honorable Maxine Waters, a Representative in Congress from the State of California
Letter from Curtis L. Child, Senior Attorney, National Center for Youth Law, to the Honorable Lamar Smith, a Representative in Congress from the State of Texas, and Chairman, Subcommittee on Courts, the Internet, and Intellectual Property
Letter from Gene Kimmelman, Senior Director, Public Policy and Advocacy, to the Honorable John Conyers, Jr., a Representative in Congress from the State of Michigan, and Ranking Member, Committee on the Judiciary
Letter from Eric Mann, Director, Labor/Community Strategy Center (LCSC), and Barbara Lott-Holland, Co-Chair, Bus Riders Union (BRU), to the Honorable Howard L. Berman, a Representative in Congress from the State of California, and Ranking Member, Subcommittee on Courts, the Internet, and Intellectual Property
Prepared Statement of Mark L. Shurtleff, Utah Attorney General
Prepared Statement on the negative impact of the proposed legislation (S. 489, H.R. 1229) on the transit dependent of Los Angeles from the Los Angeles-based Labor/Community Strategy Center and Bus Rider Union (LCSC/BRU)
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Article entitled ''Breaking the Deal,'' by Timothy Stoltzfus Jost, Legal Times
Letter from William Taylor, Chairman, Citizens Commission on Civil Rights, and Vice Chair, Leadership Conference on Civil Rights (LCCR), to the United States Senate
Article entitled ''Sunset for Consent Decrees,'' The Washington Post, written by Simon Lazarus, Public Policy Counsel, National Senior Citizens Law Center
Letter from Barbara B. Kennelly, Chair, Leadership Council of Aging Organizations (LCAO), et al., to the Honorable John Conyers, Jr., a Representative in Congress from the State of Michigan, and Ranking Member, Committee on the Judiciary
Letter from the Leadership Conference on Civil Rights (LCCR)
Legal Case submitted by the Honorable Lamar Smith, a Representative in Congress from the State of Texas, and Chairman, Subcommittee on Courts, the Internet, and Intellectual Property
Letter from Marcia Robinson Lowry, Founder and Executive Director, Children's Rights
Letter to the Senate and House in opposition to the Alexander-Blunt legislation
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Prepared Statement of the Conservation Law Foundation (CLF)
Prepared Statement of Barbara Lott-Holland, a transit-dependent bus rider in Los Angeles, and member and co-chair, Bus Riders Union (BRU)
FEDERAL CONSENT DECREE FAIRNESS ACT
TUESDAY, JUNE 21, 2005
House of Representatives,
Subcommittee on Courts, the Internet,
and Intellectual Property,
Committee on the Judiciary,
The Subcommittee met, pursuant to notice, at 5:40 p.m., in Room 2141, Rayburn House Office Building, the Honorable Lamar Smith (Chair of the Subcommittee) presiding.
Mr. SMITH. The Subcommittee on the Courts, the Internet, and Intellectual Property will come to order. As I mentioned a while ago, we are waiting for one witness, but we understand that he will be here momentarily and we will proceed.
A couple of announcements at the outset. One, thank you for the interest. This is late in the day and I appreciate the interest of those who are in the audience today as well as the Members who are here, too. We have finished with votes for the day, and unfortunately, that means a lot of Members are no longer here and have found other things to do. Nevertheless, it's a very, very important subject.
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I'm going to recognize myself for an opening statement and then the Ranking Member and perhaps the Ranking Member of the full Judiciary Committee for their opening statements, as well.
I also want to recognize Ryan Visco, who is sitting to my right. She is an attorney with the Subcommittee and this is the first hearing that she has been in charge of, and so we are going to guarantee her a very smooth and informative and successful hearing at this point.
There's another reason for us to begin now and that is that Mr. Conyers, who is from Detroit, and I, who am from San Antonio, are eager to get home to watch a certain basketball game tonight. [Laughter.]
Let me recognize myself. For 40 years, Federal courts have issued a significant number of consent decrees that require State and local governments to comply with certain legal requirements affecting social, environmental, health, and educational issues. These consent decrees, often known as public law litigation, or institutional reform decrees, place the trial courts in the business of public administration.
State-run services, such as school busing, Medicaid, mental health facilities, prisons, and special education, all have been the subject of Federal lawsuits. It is not unusual for these Federal consent decrees to span 20 to 30 years and tie up significant portions of State and local budgets. Due to the contractual nature of a consent decree, future Administrations are also bound by the original terms.
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Under many consent decrees, traditional roles of State or local government officials are shifted to the judge and the lawyers involved in negotiating the consent decree. The end result is that State and local governments lose their ability to function democratically. Bound by Federal consent decrees, elected officials are less able to balance political and budgetary interests when legislating, nor can these officials react and adjust to unforseen constituent or budgetary needs as they arise.
In Frew v. Hawkins, a case that dealt with the Texas medical system, the Supreme Court commented extensively on the effects of unnecessarily rigid consent decrees. The Court cautioned judges that consent decrees may undermine democracy and flexibility in Government and admonished judges to be more flexible when State officials seek to modify the terms of existing consent decrees.
In light of Frew, the hearing today represents a timely forum to discuss the burdens placed on State and local officials who must comply with detailed consent decrees. While the Supreme Court reiterated that judges are not free to ignore right, they also urged judges to defer to State and local officials when they act as agents for the Government. The Frew court also warned judges against tying State and local officials to the contractual obligations developed by predecessor groups of plaintiffs and defendants.
H.R. 1229, the Federal Consent Decree Fairness Act of 2005, introduced by Congressman Blunt and Congressman Cooper, allows governments to revisit consent decrees in Federal court. The bill allows a State or local official to seek a motion to modify or vacate an already existing consent decree. This bill, in the spirit of the Frew case, enables State and local governments to seek redress in Federal court when existing consent decrees become too burdensome or obsolete.
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As Justice Kennedy stated in Frew, the basic obligations of Federal law may remain the same, but the precise manner of their discharge may not. If the State establishes reason to modify the decree, the court should make the necessary changes.
Congressmen Blunt and Cooper's bill is a positive step in giving democratic responsibility to those who are the most responsive to the needs and wishes of the people, their elected representatives.
The authors of the book Democracy by Decree, both former public interest lawyers, write that, ''Democracy by decree is a good thing gone wrong. It goes beyond the proper business of courts. It often renders government less capable of responding to the legitimate needs of the public and it makes politicians less accountable to the public. Democracy by decree works fine in pointing out what went wrong, but it works badly in putting things right.''
Consent decrees can serve a valuable purpose by allowing those whose rights have been violated their day in Federal court. But the current rigid system does not preserve the flexibility necessary for elected representatives to discharge their responsibilities.
I want to thank the Majority Whip again for his work in this area, and before recognizing the Ranking Member for his opening statement, I just want to say that I feel certain that had the Ranking Member, Mr. Berman, read the book Democracy by Decree, he would have given a far different opening statement today. But since he hasn't read it, he is at a distinct disadvantage, but nevertheless, we welcome his opening statement and the gentleman from CAlifornia is recognized.
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Mr. BERMAN. This is just the hearing, not the markup, so there is time and I do appreciate you giving me the booklending me the book, I should say, and I am going to take a look at it. But we do have an author of the book here, I believe, and so we can get the Reader's Digest summary right here.
The Chairman asked, when I told him I had some concerns about this bill, whether I wasthat he hoped I'd be open minded. For a guy who's made a decision, I'm still pretty open minded. But I thought what I'd do is I'd shift the burden, or leave the burden with the people pushing the bill to deal with some of my concerns in the context of testimony. The Chairman has done a fine job of summarizing the bill and laying the framework for it and I will just, as quickly as I can, mention some concerns I have with the bill. Even though there are some consent decrees, including ones that govern bodies in my own area, there is one in particular that I have real concern about the wisdom of and the thinking behind it.
So, first of all, this issue of requiring the sort of review by motion of the defendants, the State or local governments or local entities, every 4 years, and in reality, much sooner allowing them to make motions, because most consent decrees aren't entered into the first day that the governor or the mayor takes office. They are entered somewhere in the midst of his term and frequently near the end of his or her term. So allowing that kind of review of a consent decree that the parties agreed to and shifting the burden so that the defendant State or city gets to go in, but the other party has to reprove the case, it seems to me will have one clear impact.
I can't think of why any plaintiff, whether it's the Federal Government or a private party, will ever settle a case. Why won't they want to litigate everything to a final judgment, which isn't, obviously, subject to that kind of automatic review and requirement that you reprove your case. So I think it eliminates settlements.
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If this was just a bill that applied only retroactively and not prospectively, well, then that's a different story, but obviously, that would be an absurd way to approach it and the bill doesn't approach it that way and its effect on existing cases and prospective cases is to eliminate, to me, any motivation of the plaintiff to settle.
There are other questions about what constitutes a change of government. When you have a board of supervisors, is it two, is it three members have to change before you can be eligible? But those are narrower kinds of questions.
Then the requirement that the judge has to rule within 90 days or the consent decree is automatically dissolved, I think is a very unrealistic time frame. The judge might be in the middle of a long-term trial. There is going to have to be a retrial on the consent decree because the plaintiff has to reestablish the burden of proof. It isn't like this is something just submitted on papers. And the notion that the automaticity, that the consent decree is over and all obligations are dissolved the moment 90 days passes from the time the city, county, or State makes the motion seems very unrealistic.
There's a carve-out here for school desegregation cases. In other words, consent decrees on that issue are not affected by this bill. There's also a carve-out for title VI and title VII of the Civil Rights Act in the House bill. But the carve-outs are only based on race, so that employment discrimination cases under title VII or the requirement not to discriminate based on Federal grants that are part of title VI does not apply to gender discrimination, it doesn't apply to age discrimination, and it doesn't apply to discrimination based on national origin, because as I understand it, for instance, discrimination against Latinos, which is a premise for at least several consent decrees that I know, are not exempted from this even though discrimination based on race is.
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And then the definition of consent decree is much broader than the traditional definitiona court order based in whole or in part upon the consent or acquiesence of the parties. A plaintiff sues a State or local government, gets a final judgment. The judge says, ''I rule with the plaintiffs, but I would like both sides of you to present a prospective order based on my rulings and the parameters of my decision.'' Both sides present proposed orders and he takes a little big from each. Is the fact that part of what the plaintiff submitted was accepted make this now a consent decree under the definition of this bill, so that even cases that are fully litigated and come to a final judgment can be reversed in as quickly as one or two or 4 years?
The compensation cap of, I think, $70 an hour is about one-fifth or one-eighth of what masters normally get, and my guess is you're not going to get truly skilled and people who are in demand to give up the time to supervise a consent decree with that kind of a limitation.
And finally, the Frew case. The Chairman said this is a bill that's consistent with the recent Supreme Court decision in Frew. I look at it totally differently. A Supreme Court nine-to-zeronine-to-zero, that means Thomas, Scalia, Rehnquistupheld the concept of consent decrees and set out some standards which give States and cities a basis in the context of asking consent decrees to be revisited, that even though they have to go forward to vacate or modify can point to that court decision and the construction in that court decision and the guidelines of that court decision to get more flexibility when conditions have changed where the decree is alreadyall the obligations have been met. So it seems to me that decision should be given a chance to work and let's see what happens in some of these cases where the Court has now issued some new standards for the lower courts to look at in deciding the case.
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So other than that, I'm open to this, but if I could use one last example, and that is, ultimately, I look at a case like that New York City special education case, consent decree, huge amount of money that New York is required to spend on special education. Why? Federal law imposed an obligation that every kid is entitled, as I understand it, to be treated and we have failed to appropriate the funds to local school districts to meet the obligation we imposed on them through law.
The issue here isn't the consent decree, it's either give them the money or change the nature of the Federal law. Don't avoid our own accountability for the mistakes we have made that have put Tennessee into a bind or somebody else by creating a situation where consent decrees are thrown out all the time rather than look at the underlying issue and whether or not that meets a public interest and thereby avoiding our own accountability.
Thank you, Mr. Chairman, for your indulgence.
Mr. SMITH. Thank you, Mr. Berman.
The gentleman from Michigan, the Ranking Member of the full Judiciary Committee, is recognized for an opening statement.
Mr. CONYERS. Thank you, Chairman Smith. I join you in welcoming our distinguished panel, particularly our old friend Nathaniel Jones, now a former member of the Federal judiciary, and, of course, the Majority Whip of the Congress and our other two witnesses.
Page 17 PREV PAGE TOP OF DOC This is a surprise to me that we would now have hearings on a measure that would be a blow to victims of police brutality, the disabled, and victims of State-sponsored pollution. It is unseemly to me that States would promise to comply with Federal civil rights and environmental laws and then come to Congress in order to get out of such obligations.
First, by requiring virtually every Federal consent decree with State and local governments to be relitigated every 4 years would set back decades of progress in civil rights enforcement. It would also gut the Americans With Disabilities Act and permit any locality to violate the Clean Water and Air Acts. I'm anxious to hear why supporters of this legislation believe that police departments that abuse citizens or State agencies that fail to have wheelchair ramps at front entrances should receive a ''get out of jail free'' card in 4 years.
In my opinion, the best way for a State to get out of a consent decree is for it to comply with the law. Federal consent decrees aren't permanent. The parties and courts are free to revise the terms of the decree as circumstances change and as the defendants improve their conduct or behavior. Creating a set timetable for review, as this bill does, would give greater bargaining power to the lawbreakers, in my view.
And I'm also concerned with the unequal treatment of citizens who believe that the Justice Department actually brings too few, not too many, civil rights and environmental lawsuits. When it does bring cases, the Department uses consent decrees to ensure compliance with basic civil rights protections. Weakening these decrees would make it virtually impossible for the Department to ensure compliance with the State and invite States to break the law.
I am particularly interested in a case mentioned about the Wayne County Environmental Protection Agency case, which have asked the district court to terminate an 11-year-old consent decree which required the county to upgrade sewer systems and untreated sewage that was being dumped into drains and into the Detroit River. It involved a sewer tunnel costing $295 million plus $99 million more from communities and a $20 million bond from the county. The parties told the court that the objectives of the decree had been met. If they had to come up every 4 years while this was going on, havoc could be a result.
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And so for all those reasons plus the, I think, very fine reasoning employed by my colleague, Mr. Berman from California, lead me to approach this matter with some anxiety, since I think many on the courts themselves are reluctant to embrace a proposal this drastic.
I thank you, Chairman Smith, for allowing me to make these introductory remarks.
Mr. SMITH. Thank you, Mr. Conyers.
Without objection, all Members may submit their opening statements as a matter of the record.
Before I introduce the witnesses, I would like for them to stand and be sworn in, if they would, please. Would you please raise your right hand.
Do you solemnly swear that the testimony you are about to give is the truth, the whole truth, and nothing but the truth, so help you, God?
Mr. BLUNT. I do.
Judge JONES. I do.
Mr. GOETZ. I do.
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Mr. SCHOENBROD. I do.
Mr. SMITH. Please be seated.
Our first witness is House Majority Whip Roy Blunt, the sponsor of the Federal Consent Decree Fairness Act of 2005. Representative Blunt has represented the Seventh Congressional District of Missouri since 1997. He received an undergraduate degree from Southwest Baptist University, where he later served as President, and a Master's degree from Southwest Missouri State University.
Let me say also that the Majority Whip has a half-a-dozen conflicts this afternoon and we're just grateful he can be here for a few minutes to testify.
Our next witness is Nathaniel R. Jones, Senior Counsel to the law firm of Blank Rome. Previously, he served as a Federal judge for the Sixth Circuit Court of Appeals. Judge Jonesyou keep that title for life, I thinkreceived his undergraduate and law degrees from Youngstown State University.
Our next witness is David Goetz, Commissioner of Finance and Administration for the State of Tennessee. Mr. Goetz received his Bachelor's degree from the University of Virginia.
Our final witness is David Schoenbrod, the co-author of Democracy by Decree: What Happens When Courts Run Government. He is a professor at New York Law School, where he teaches constitutional and environmental law. Professor Schoenbrod received Bachelor's and law degrees from Yale University. He was also a Marshall Scholar at Oxford University.
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Welcome to you all. We have written statements from all the witnesses which, without objection, will be made a part of the record, and Mr. Blunt, we will begin with you.
TESTIMONY OF THE HONORABLE ROY BLUNT, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF MISSOURI
Mr. BLUNT. Mr. Chairman, thank you for letting me be here today and thank all of you for understanding my schedule, which, like yours, often seems to be out of my control, but I am glad I could be here for a few minutes really to represent all of the sponsors of this legislation.
As you will know before the remarks here are over, I think this legislation was driven largely by a real challenge that the State of Tennessee faced. Mr. Goetz is here to talk about that. And because of that, not only is Lamar Alexander, Senator Alexander, the principal sponsor in the other body, but the entire Tennessee delegation has joined Mr. Cooper and I as cosponsors and we have a number of bipartisan cosponsors on this legislation.
Let me quickly summarize my testimony by making a couple of points. As we look at this whole problem of consent decrees and consent decrees that are not easily ended and just as easily become an excuse for a public official not to deal with the responsibility of a challenging problem, I really think that this legislation is more about inactivist public officials than it is judges that are too active.
Page 21 PREV PAGE TOP OF DOC More often than not, the consent decree becomes the excuse for a public official to say, you know, I would like to do something about this specific problem, but it is really under the control of the courts now and I can't do anything about it, or on an equal number of occasions with a different problem, saying I would really like to do something about that problem, but you know, we are so hampered by all of the money or all of the restrictions that the court is requiring in some other area that I just can't do anything.
Our system is designed to be run by publicly elected officials. It runs best when those officials take the responsibility that they have been elected to take. And so this really does put the responsibility on the elected official, and as has been pointed out by all of you, really, on the newly-elected official more often than not to come in and look at a problem and not be able just to say, that's a problem that I don't have a reasonable way to deal with so I'm not going to deal with it, but to have to look at a problem and decide to accept responsibility, go to the courts and ask that that responsibility be returned to them.
There are a number of examples, again, some of which you'll hear in detail, many of which are in the book that's already been mentioned. Let me just mention two or three examples that I think show some of the extent of this problem.
In the State of Utah in 1994, the governor was persuaded to enter into a consent decree only after being assured that this would be a consent decree that would have an outside time limit of 4 years, a 4-year deadline. The governor's view at that point that entered into this decree was that at the end of that 4 years, they were back to where they started. The public officials had responsibility again. If people still felt that something needed to be done here, they could start the process over again.
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But as it turned out, in 1998, the judge who was in control of this case ruled that Utah hadn't done all that the judge thought they needed to do and so the consent decree that was a 4-year decree was extended, at least apparently at this point, indefinitely, and by 2003, the State of Utah had already spent $52 million to improve the foster care services under the decree plus about $4 million in attorneys' fees to deal with this case.
In Connecticut, there was a decree entered into in January 1991. Again, this dealt with the Department of Children and Families. Because of budget shortfalls, in 2003, Connecticut was forced to lay off employees throughout their entire State governmental system. Of all the employees that were laid off, only the employees that were laid off at the Department of Children and Families had to be restored to their jobs, and those cuts then had to be taken disproportionately in other places in State government.
In a case that may be the case that my friend, Mr. Berman, was talking about, Los Angeles County Metropolitan Transportation Authority, they entered into a decree in 1996 regarding the bus system. Today, 47 percent of their entire budget goes to the bus system. The remainingand this is only 9 years laterthe remaining 53 percent is divided between 19 percent for street and freeway improvementsnow get this right47 percent for the bus system, 19 percent for street and freeway improvements, 16 percent for Metrorail, 1 percent for Metrolink, 12 percent on debt reduction, and essentially that is the budget.
In August 1974, New York City, in a case that again was mentioned in the book and could be mentioned later, entered into a consent decree requiring bilingual education. In 2001, the board attempted to overhaul bilingual education, but was constrained in the steps it could take by the terms of the consent decree. July 14, 2004, the New York Times published an article in which Latino parents were quoted complaining about the fact that their children were forced into bilingual education classes even when they would prefer that the children have English at school. Now, these are not children who were struggling with English at school, but because they were Latino, they were required to take Spanish and English at school, and that is just one of many examples.
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Just to make a couple of comments really on the two or three points that Mr. Berman made, my sense of this is that while you do normally have elected officials' terms that last for 4 yearsof course, some elected officials' terms last for longer than thatthis is for newly-elected public officials. My belief would be that in a very recent consent decree, having been an elected official for some time, that the more recent the consent decree, the less likely that the new public official is to jump in and say, ''I want to handle that problem, as well.''
I really think the problem in the past has not been public officials clamoring to accept responsibility, but public officials, in some cases now for more than three decades, throwing up their hands and saying, ''Well, you know, that is really something that even though technically that should be part of my job, there's no way I can deal with that.'' I think that you'd see the period of time normally being more than 4 years rather than less than, and if you're in the middle of a process that is easily demonstrated has not been completed and would not be completed by the public officials who should be responsible for it, the judges clearly don't have to do anything to move away from the consent decree.
I'm grateful that the Committee has moved forward with this hearing. I know that everyone approaches this issue in good faith and I look forward to seeing this bill progress as I'm sure all of my cosponsors, including, Mr. Goetz, the entire Tennessee delegation, Republicans and Democrats alike, will look forward to seeing this bill move forward in the Committee and I thank you for letting me come by today, Mr. Chairman.
Mr. SMITH. Thank you, Mr. Blunt. We appreciate your being here.
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[The prepared statement of Mr. Blunt follows:]
PREPARED STATEMENT OF THE HONORABLE ROY BLUNT, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF MISSOURI
I'd like to thank the committee for inviting me to testify about this important legislation.
The other witnesses are well qualified to talk about some of the legal and technical aspects of this bill. Allow me to address the committee from my perspective as an elected official.
The Consent Decree Fairness Act is not about reining in an activist judiciary or about ending consent decrees. This legislation is about increasing the responsibility and accountability of elected officials.
Consent decrees are too often used by elected officials as an excuse not to solve problems that they have been elected to solve.
The principal goal of this legislation is to return the responsibility for public policy-making and the governing of public institutions to elected officials.
When a consent decree lasts for multiple decades, as many of them do, many elected officials never have the opportunity to take responsibility for important public services.
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A politician can say, 'I would really like to do something about the transportation system in Los Angeles County, but I can't because of that consent decree.'
Or: 'I'd like to spend more on education in this state, but I really can't because our budget is determined by these consent decrees on other issues.' And their successors in that office can say the same thing.
Consent decrees, in my view, have become a hiding place for public officials, relieving them of responsibility in the area that the consent decree specifically affects.
So again, let me repeat. The Consent Decree Fairness Act is more about inactive public officials than it is about overly active judges.
This bill would create an obligation on the part of newly elected officials. They will have to look at every consent decree that their predecessors were part of and defend why the decree should continue, or go to the courts and explain why the consent decree no longer applies. If the plaintiff can explain to the judge why it's important that that consent decree continue, then the decree stays in place.
Let me give you a couple of examples from Missouri, where there are several major consent decrees governing how public policy is implemented:
The federal courts in 1983 began to oversee the foster care system in Jackson County, Missouri. As a result, in order to comply with the now 20-year-old consent decree, a disproportionate share of all the foster funding for the state goes to Jackson County. In addition, our state's Department of Mental Health operates now under five consent decrees, two of which date to the 1970s.
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Our goal here is to return public-policy responsibility to elected officials as soon as it is defensible. That's really how our system is supposed to work. Voters don't have any real control over what a federal judge does. They have much more control in our system over what public officials do. So when we increase the responsibility of elected officials for public services, we increase voter control over the government. We increase public officials' accountability to the voters.
There may be times when judicial oversight is needed and public officials can not or will not take responsibility. But the burden of proof that these changes are necessary must be with those who want to deviate from existing public policy.
Finally, let me reiterate that this bill does not automatically end any consent decree. It puts the responsibility on elected officials to decide whether to accept continued government by decree or to seek a modification or elimination of the decree. Then a judge has to decide the issue.
The only consent decrees that could be dissolved are those in which the plaintiff is incapable of proving a continued need for court supervision. If there is no longer a need for court supervision, wouldn't it be undemocratic NOT to return the policy decisions to elected officials and, in turn, the voters?
Again, I would like to thank the committee, and especially Chairman Smith, for inviting me to testify and for taking the time to consider this important matter.
Page 27 PREV PAGE TOP OF DOC Mr. SMITH. Judge Jones?
TESTIMONY OF THE HONORABLE NATHANIEL R. JONES, BLANK ROME LLP
Judge JONES. Thank you, Mr. Chairman. My name is Nathaniel R. Jones and I appreciate this opportunity to discuss my views on this legislation.
While the sponsors of the legislation are no doubt sincere in their belief that it will address deficiencies in consent decrees, I believe the bill will, in fact, take a wrecking ball to efforts to redress the rights of citizens and to a judicial process that has been invaluable to the administration of justice, and I would like to just set forth some of my concerns.
First of all, there is no problem that needs fixing. The unanimous 2004 Supreme Court decision in Frew v. Hawkins reaffirmed what courts are already doing, namely they are listening with deference to local officials and any other parties who petition for a consideration of the fairness of the particular consent decree.
One-size-fits-all legislation like this proposed bill will get it all wrong. This, in my judgment, is a case of an answer in search of a problem. The fundamental goal of the required fairness hearing that is required under the Federal Rules of Civil Procedure, which must precede the approval of a settlement and the entering of a consent decree, is to ascertain facts with respect to the fairness of the agreement, and that goes to the duration and other aspects of fairness. It makes no sense to deprive courts of the option, and I emphasize option, of using consent decrees which in many areas are an enormously valuable tool for courts, parties, and for helping Congress provide for the efficient implementation of laws that it itself has passed.
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This bill will significantly raise the costs and reduce the effectiveness of all law implementation affecting State and local governments, thereby depriving citizens nationwide of benefit conferred by Federal laws protecting such things as the environment, access to health care, guarantees against discrimination based on age, gender, and disabilities, to name just a few, as well as the many important instances of racial discrimination.
Also, while the claim is that this bill will simply fix deficiencies in the process of renewing and modifying their terms, in practice, it will end, not simply mend, the use of consent decrees by Federal courts in all matters affecting State and local governments. No attorney representing a plaintiff against a State or local government would advise his or her client to enter into a consent decree that would have virtually no lasting effect or value.
Long-term consent decrees are sometimes necessary to carry out the complex changes contemplated by laws that Congress has enacted in areas covered by the bill. The changes are often necessary to rebuild institutions that are shown to be depriving citizens of fundamental rights.
This legislation ignores the valuable lessons taught to this nation following the civil disturbances of the '60's, which were documented by the Kerner Commission in its 1968 report. That report pointed out that festering problems in areas of health and environment, housing, education, law enforcement, all resulting from a default by government at all levels, exact a tremendous price. Consent decrees prove to be an effective tool for redressing the resulting grievances.
Page 29 PREV PAGE TOP OF DOC The Frew decision really reinforces what courts have been doing in instances in which consent decrees have been challenged. During my 22 years as a Federal Court of Appeals Judge, I have sat on over 25 such cases which considered challenges to consent decrees. In addition to the Wayne County case that Congressman Conyers just referred to, there are cases in Ohio that dealt with the issue of injustice and unfairness that resulted in consent decrees and they were carefully supervised by the judicial bodies that had that responsibility. The consent decree, when circumstances warrant, is an effective means of dealing with serious social and economic and health problems.
Tampering with the power of courts to oversee consent decrees, as this legislation would do, with its shifting of the burden of proof onto the shoulders of the aggrieved and onto the victims, stands the whole traditional notion of the responsibility of remedy on its head.
One of the concerns that I have listed is the impact of the bill on the sensible functioning of the courts and the administration of justice. My concern here may not be surprising, given that I have spent more than 20 years as a Federal appellate judge. During that time, I have participated and I have observed colleagues who carefully and methodically and with great conscientiousness scrutinize claims of discrimination and attempts to resolve them short of full circuit litigation by using the consent decree process.
By providing the opportunity, and indeed an invitation to governors and officials of local government to relitigate matters that were previously regarded as settled by consent decrees, this bill would lead to many new proceedings which would come inevitably 4 years after a new decree and might come as soon as one or two if new officials were elected to replace the signatories of the previous decree. Indeed, I suspect that in any jurisdiction caught in a financial bind, the temptation would be there to reduce costs by reducing the obligations under a consent decree.
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But reopened proceedings would be the least of the burdens placed on the courts. No one I have discussed this matter with believes that plaintiffs' lawyers in the great majority of cases would be willing to enter into consent decrees that can be revisited every 3 years with the burden left to the plaintiffs to defend the decree. Most will feel that allegiance to their clients' interests will require them to go to trial. This will mean not only a burden on the courts, but financial burdens on the parties.
The major costs of class action litigation, including attorneys' fees, in most cases, State and local governments, if they lose, will wind up paying the plaintiffs' lawyers' fees plus the fees of the very firms, mostly large firms, that the government retains to defend them in these actions. For Members of Congress who have been distressed by rising legal costs, this should be a matter of grave concern.
It should be added that the workload will further limit access to a court system that has already been forced to cut its services drastically. I can say with some authority that the Federal courts are now facing tremendous workloads that must be addressed by reduced staffs. Just a few weeks ago, representatives of the Federal judiciary testified before a House Appropriations Subcommittee that the workload of the courts has increased by 18 percent between 2001 and 2005, while the funding for that period of time was decreased.
Moreover, in 2004, the judiciary lost more than 6 percent of its workforce due to funding constraints. Even though the workload is expected to increase even further as a result of the recently enacted Class Action Fairness Act, the judiciary will be operating approximately at only its 2001 staffing levels if it even receives the 2006 staff funding it has requested.
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Before I was appointed to the bench, I was General Counsel for the NAACP, where I often represented children in court in civil rights cases. For many years, civil rights cases were fought to the bitter end, but about three decades ago, in the wake of the Kerner Commission recommendations, sensible public officials and private advocates decided to work these matters out through consensus and through consent decrees. As a result, we have had some noteworthy consent decrees that have broadlygreatly broadened opportunities for children.
Mr. SMITH. Judge Jones, I notice that you are about halfway through your written statement. Is there a way for you to summarize the rest of it?
Judge JONES. Yes. Thank you, Mr. Chairman, and I will submit, as you indicated, the statement as prepared.
But I would like to note that what strikes me is that this legislation is an attempt at circumventing the traditional standards for obtaining reform or modification of a consent decree. There is presently under rule 23 a means by which persons who have questions about a consent decree can challenge it. They can challenge it. They can seek reform, modification. And if that doesn't work, they can appeal. And I can say with complete authority that I have sat on appeals in which we have reversed the decisions of lower courts with regard to consent decrees.
There are, in every jurisdiction, in every circuit, you will find courts who have very meticulously scrutinized the way in which challenges were registered to consent decrees and these decrees have been monitored, and where they appeared to be not adhering to the rigorous standards set forth under the rules, they have been properly adjusted.
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So it's my judgment that this is a case of using a cannon to swat a gnat. The problems that are raised by the persons who challenge the consent decrees are problems that can be addressed individually in case-specific manners. They do not need Congress to impose this type of broad-gauge legislation, which will do violence to the very terms and the various process that we have used in this country to resolve some serious problems that impact upon society.
Thank you very much, Mr. Chairman and Members of the Committee.
Mr. SMITH. Thank you, Judge Jones.
[The prepared statement of Judge Jones follows:]
PREPARED STATEMENT OF THE HONORABLE NATHANIEL R. JONES
My name is Nathaniel R. Jones and I appreciate the opportunity extended to me by members of this Subcommittee to offer my views on H.R. 1229, described as the Federal Consent Decree Fairness Act.
While the sponsors of H.R. 1229 no doubt sincerely believe that it will address deficiencies in consent decrees, I believe the bill will take a wrecking ball to efforts to redress the rights of citizens and to a judicial process that has been invaluable to the administration of justice. Here, in summary, are my major concerns:
1. There is no problem that needs fixingthe unanimous 2004 Supreme Court decision in Frew v. Hawkins, which directed district courts to listen with deference to local and state officials' recommendations for terminating or modifying decrees, but commanded them to enforce these decrees where the case for change is not made, got it right. One-size-fits-all legislation like H.R. 1229 gets it wrong. This is a case of an answer searching for a problem.
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2. The fundamental goal of the required fairness hearing, which must precede the approval of a settlement and the entering of a consent decree, is to ascertain facts with respect to the fairness of the agreement.
3. It makes no sense to deprive courts of the option of using consent decrees, which in many areas are an enormously valuable tool for courts, parties, and for helping Congress provide for efficient implementation of laws it passes.
4. This bill will significantly raise the costs and reduce the effectiveness of all law implementation affecting state and local governmentsthereby depriving citizens nationwide of benefits conferred by federal laws protecting the environment, access to health care, guarantees against discrimination based on age, gender, and disabilities, to name a few, as well as many important instances of race discrimination.
5. While the claim is that the bill will simply fix some deficiencies in the process of renewing and modifying their terms, in practice it will end, not simply mend, the use of consent decrees by federal courts in all matters affecting state and local governments. No attorney representing a plaintiff in litigation against a state or local government will advise his client to enter into a consent decree that will have virtually no lasting effect or value.
6. Long-term consent decrees are sometimes necessary to carry out the complex changes contemplated by laws Congress has enacted in areas covered by the bill. The changes are often necessary to rebuild institutions that are depriving citizens of fundamental rights.
Page 34 PREV PAGE TOP OF DOC7. H.R. 1229 ignores the valuable lessons taught the nation following the civil disturbances of the Sixties which were documented by the Kerner Commission in its 1968 Report. That report pointed out that festering problems in areas of health, the environment, housing, education and law enforcement resulting from a default by government at all levels, exact a tremendous price. Consent decrees proved to be an effective tool for redressing the resulting grievances.
8. The Frew decision reinforces what courts have been doing in instances in which consent decrees have been challenged. During my 22 years as a federal appellate judge, I sat on over 25 such cases which considered challenges to consent decrees. In addition to the Wayne County, Michigan example I cite in my testimony, I refer you to the case of Waste Management of Ohio, Inc. vs. City of Dayton in which the Sixth Circuit panel on which I sat reversed a District Court. The takeaway from that case is that there are standards already in place for modifying a consent decree when circumstances so warrant. Another significant case that demonstrates the need for flexibility by courts in dealing with consent decrees is State of Ohio v. U.S. Department of Energy pending since 1985 in the Southern District of Ohio. It involves a cleanup of the notorious Fernald nuclear waste site.
9. Tampering with the power of courts to oversee consent decrees, as this legislation would do, with its shifting of the burden of proof onto the shoulders of the aggrieved, stands the whole traditional notion of the responsibility for remedy on its head.
IMPACT ON COURTS AND THE ADMINISTRATION OF JUSTICE
One of the concerns I have listed is the impact of the bill on the sensible functioning of courts and the administration of justice. My concern here may not be surprising, given the fact that I spent more than 20 years on the federal Bench having been nominated by President Carter to a seat on the Court of Appeals for the 6th Circuit and confirmed by the Senate in 1979 and having served until 1995 when I took senior status and 2002 when I retired. It is not clear to me that enactment of H.R. 1229 will place new burdens on the courts without yielding any productive results for the parties.
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By providing the opportunity, indeed an invitation, to governors and officials of local government to relitigate matters that were previously regarded as settled by consent decrees, the bill would lead to many new proceedings which would come inevitably four years after a new decree and might come as soon as one year or two, if new officials were elected to replace the signatories of the previous decree. Indeed I suspect that in any jurisdiction caught in a financial bind, the temptation would be there to reduce costs by reducing obligations under a consent decree.
But reopened proceedings would be the least of the burdens placed on the courts. No one I have discussed this matter with believes that plaintiffs' lawyers in the great majority of cases will be willing to enter into consent decrees that can be revisited every few years with the burden left to plaintiffs to defend the decree. Most will feel that allegiance to their clients' interests will require them to go to trial. This will mean not only a burden on the courts but financial burdens on the partiesthe major costs of class action litigation including attorneys' fees. In most cases, state and local governments, if they lose will wind up paying the plaintiffs' lawyers fees plus the fees of the large firms that government defendants retain to represent them in court. For members of Congress who have been distressed by rising legal costs, this is a matter worth pondering long and hard.
It should be added that the workload will further limit access to a court system that has already been forced to cut its services drastically. Just a few weeks ago, representatives of the federal judiciary testified before a House Appropriations subcommittee that the workload of the courts had increased by 18% between FY 2001 and FY 2005, while funded staffing levels over the same period of time decreased by 1%. Moreover, in FY 2004, the judiciary lost more than 6% of its workforce due to funding constraints, resulting in fewer clerks' office hours in many courthouses for the public to file papers and seek information. Even though the workload is expected to increase even further as a result of the recently enacted Class Action Fairness Act, the judiciary will be operating approximately at only its FY 2001 staffing levels if it receives the FY 2006 staff funding it has requested.
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Under such circumstances, defendants who have had their day in court, and who voluntarily settled their case, ought not be permitted to routinely tie up the courts at the expense of other litigants seeking justice. To permit such repetitive reexamination of consent decreesespecially when the violations persist or the remedies agreed upon have not been carried outis a far more costly version of a playground ''do-over'' that fails to serve the public interest in the efficient administration of justice and protection of legal and constitutional rights.
IMPACT ON SUBSTANTIVE RIGHTS
Before I was appointed to the bench I served as General Counsel of the NAACP where I often represented children in court in civil rights cases. For many years, civil rights cases were fought to the bitter end in federal court rooms, but about three decades ago partially in response to the recommendations of the Kerner Commission, sensible public officials and private advocates decided that often it would be better to settle than fight. As a result we have had some noteworthy consent decrees that have greatly broadened opportunities for children.
One prime example is a suit filed late in 1980 by the NAACP and a class of plaintiffs against the state of Missouri and 22 suburban school districts. Just before trials was scheduled to begin in 1983 the parties entered into a settlement agreement calling for desegregation of the suburban districts, support for magnet schools in St. Louis and a program of educational improvements in St. Louis. The agreement was approved as a consent decree by the District Court and with minor modifications by the Court of Appeals. Certiorari was denied. In 1996, the State which paid the bulk of the expenses under the decree, filed a motion to terminate the decree on grounds that it had achieved ''unitary status'' (i.e., satisfied all its desegregation obligations. After a trial, a conciliator was appointedDr. William Danforth, then Chancellor of Washington University of St. Louis. The parties negotiated a revised consent decree that was contingent on replacing the court-ordered funds with funds approved by the state legislature. The legislature, working on bipartisan basis, approved the funding in 1999 and a new consent decree was negotiated the following year. Under the new decree plaintiffs may go back to court if there is a violation. That decree is still in effect.
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The result has been the largest voluntary interdistrict desegregation program in the nation. Approximately 10,000 African American students from St. Louis attend schools each year in the suburban districts and that has been the case (with some variation in the numbers since 1984). About 3 in every 4 students are eligible for free and reduced price lunch. Yet they graduate high school and go on to college at about 2 to 3 times the rate of students in inner city schools. Additional opportunities have been made available in the city's magnets and as a result of the school improvement program.
None of this would have been possible without giving the consent decree process time to work. Ultimately the process brought public approval and financial and other types of support from public officials that required time to develop.
One major illustration of the importance of consent decrees in these areas is:
A case reported on Friday, June 3, in which the Department of Justice and the Environmental Protection Agency, along with Wayne County and nearby jurisdiction have asked the district court to terminate and 11 year old consent decree. The decree required the County to upgrade sewer systems that caused untreated sewage to be dumped into drains and eventually the Detroit River to prevent it from backing up into basements. The centerpiece of the improvements is a massive new sewer tunnel costing $295 million. Communities say they will spend $99 million more and the county is seeking approval to issue $20 million in bonds as part of the plan. The parties told the court that ''the objectives of the decree have been met.''
Page 38 PREV PAGE TOP OF DOC This case shows the scope of laws that would be damaged and how badly; why consent decrees sometimes must last much more than one to four years; why the consent decree option makes more sense than making litigated court orders the exclusive option; and that courts and parties to consent decrees know how to end them when it is time.
A second major example is the Gautreaux public housing litigation. This was a case begun in the late 60s by residents of public housing who had been subjected to rigid racial segregation. In 1981 the parties including the United States entered into a consent decree that was dismissed 1988. The results, documented in a book by Leonard Rubinowitz and James Rosenbaum, entitled Crossing the Class and Color Lines, have been hard won but impressive.
More than 7,500 public housing families found decent subsidized housing in desegregated areas, the great majority of them in the suburbs. The big winners were children. As experts Margery Turner Austin and Dolores Acevedo-Garcia write in the January/February issue of Poverty and Race, ''the Gautreaux research showed that children whose families moved from predominantly black neighborhoods of Chicago to integrated neighborhoods in the suburbs were substantially more likely to succeed in school and go on to college or jobs.'' They also note that the success of Gautreaux helped launch efforts beginning in the mid-90s in 33 metropolitan areas to help low income families move from poor and predominantly minority neighborhoods to more affluent and racially integrated communities.
In both the St. Louis and Chicago cases, the costs of providing decent schools and decent housing, covered by the consent decrees have been more that repaid by the taxes paid by these youngsters as productive citizens and by avoiding the costs of incarceration and other manifestations of dysfunctional communities if nothing had been done to provide opportunity.
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Now I recognize that under H.R. 1229, some types of racial discrimination cases would be exempted from the possibility of frequent relitigation. But if you look at a list of notable consent decrees over recent years, you will find that several involve the rights of abused or neglected children, or homeless children, or foster children to decent shelter or other opportunities. These would not be exempted from the proposed law. Since I see no material difference between these cases and the rights of children in racial discrimination cases, you will forgive me if I do not feel secure that the exemption would be a lasting one.
Beyond that, many of the important protections that have been achieved of environment rights or of access to health care or of fair treatment in state institutions have been gained through the vehicle of consent decrees.
Finally, I must note the civil rights exemption in H.R. 1229 is far from complete. In the race area it has no application to voting rights cases or to the great majority of housing cases. Nor would the bill protect people who are discriminated against because of their age, or gender, or condition of disability or because of their national origin. And, as I have noted, there is no principled reason for allowing some victims of rights denials the ability to negotiate consent decrees while denying it to others. These are not problems that can be fixed. I believe the bill is hopelessly flawed.
Over the years I served on the bench, I have observed an increasing desire among participants in the judicial system as well as among citizens, to find ways to resolve controversies without the need for the hand-to-hand combat of litigation which often inflicts pain and bitterness.
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Among the tools of alternative dispute resolution, none has served better than consent decrees, particularly where major laws and public policies and large numbers of people are involved.
The courts have built a great deal of flexibility into the process. The fairness hearings prescribed under the Federal Rules of Civil Procedure allow the public to have its say and the judge to weigh competing interests before approving a settlement. The recent Frew decision provides the necessary flexibility to change a decree where circumstances have changed.
This is case where there is no evidence of a disease and where the cure is much worse than any of the problems it purports to address. I urge Congress to reject this legislation.
Mr. SMITH. Mr. Goetz?
TESTIMONY OF DAVID GOETZ, COMMISSIONER, DEPARTMENT OF FINANCE AND ADMINISTRATION, STATE OF TENNESSEE
Mr. GOETZ. Thank you, Mr. Chairman and Members of the Committee, for the honor of being allowed to testify to you today. My name is Dave Goetz. I am Commissioner of Finance and Administration for the State of Tennessee.
Page 41 PREV PAGE TOP OF DOC In my role as Commissioner, I act as the Tennessee official charged with overseeing and formulating policy for our State's Medicaid program, known as TennCare. I am here today to testify about Tennessee's experience with negotiated consent decrees, specifically in the context of our State's Medicaid program, and how my ability and our governor's ability to perform our duties have been severely handicapped by the existence of several consent decrees signed and negotiated by the previous Administrations.
First, I'd like to explain the reality of the world we face in Tennessee. Our Medicaid program was one of the first State Medicaid programs to move entirely to managed care and we provide greater coverage than any other State. The generosity of this program has come with some overwhelming costs. Tennessee's Medicaid program consumes 33.9 percent of State expenditures and 33.3 percent, respectively, over the last 2 years, the highest of any State in the country and well in excess of national averages.
In September of 2004, the State submitted a reform package to the Center for Medicare and Medicaid Services described by our governor as the silver rather than the platinum coverage. Our express goal was to maintain full coverage of everyone that was in the program. This reform initiative secured the necessary cost savings through innovations on drug coverage and benefit limits rather than disenrollments.
In the fall of 2004, however, skyrocketing utilization levels and costs of TennCare became a crisis. Projections revealed that, absent further reform, TennCare's expenses during the fiscal year 2006, which begins on July 1, 2005, would increase by some $650 million in State funds, well in excess of the total growth in revenue that we were projecting for the next year. The State would have been forced to impose drastic cuts on the remainder of the State's budget, including education, transportation, and public safety programs.
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Unfortunately, however in large part because of this fiscal crisis and the restrictions imposed by one consent decree in the Grier litigation, disenrollments did become necessary. The Grier suit was first filed in 1979 and a succession of consent decrees, the most recent of which was entered in 1999, have governed the State's Medicaid program ever since. The Grier consent decree, which extends significantly beyond the requirements imposed by Federal law, precludes implementation of such standard cost saving measures as an effective prior authorization pharmacy program and effective managed care.
The financial impact of this decree has been devastating. For example, just to focus on pharmacy, in fiscal year 2001 alone, TennCare's pharmacy costs increased 44.7 percent. And since 2000, Tennessee's pharmacy costs have more than tripled, rising from $716.3 million in fiscal 2000 to a projected $2.5 billion in fiscal 2005. In contrast to Tennessee's exploding pharmacy cost, the average annual percentage increase in Medicaid pharmacy spending per enrollee nationwide between 2000 and 2003 was only 12.6 percent. Tennessee now spends more per person on drugs than any other State. While the national average for prescriptions per person, per year is 10.5, Tennessee's average is 17.9.
This Administration came into office promising to reform TennCare. We had hoped that we could work with the counsel for the plaintiffs to negotiate changes to save this program. Negotiations were difficult, however, and only produced limited changes to the decree under discussion here. Our ability to implement a functional and effective preferred drug list was still precluded by the provisions of the Grier consent decree and the plaintiffs would not agree to the needed modifications.
Page 43 PREV PAGE TOP OF DOC Without the policy-making freedom to contain costs through these standard prior authorization measures, the State found that its options for containing costs and for sustaining the program were extremely limited, and thus, Governor Bredesen was finally forced on January 10 of this year to propose a comprehensive reform package that entailed both disenrollments of beneficiaries in optional Medicaid categories and benefit reductions for the remaining beneficiaries in mandatory coverage categories.
Now, in an attempt to ameliorate the extent of these disenrollments, the State has proposed a new spend-down program, which is designed to serve up to 100,000 of the neediest Tennesseeans who will otherwise be disenrolled. But once again, the implementation of this new program depends on the State's ability to generate the necessary cost savings, and that, in turn, depends upon the State's ability to implement reforms that are currently blocked by the restrictive terms of the Grier consent decree.
Once again, the plaintiffs in this case refused to agree to such modification, and therefore, the State now finds itself once again before a Federal judge where the State must seek a court order to modify a decree that originally was signed in 1986. In the process, the State must expend significant resources that could otherwise be spent on enrollees and to do so in hopes of being free to implement health care programs and procedures that are standard for other States throughout the country.
As these examples demonstrate, the present practice of permitting elected government officials to immunize their policy decisions from political change by entering into perpetual consent decrees has proven unworkable in our State. Rather than protecting constitutional rights, these consent decrees have hamstrung our State officials, making it difficult for us to manage effective operations and even more difficult for us to respond to new conditions by designing and implementing reform measures that are necessary for the good of the entire State.
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Indeed, particularly in the health care realm, officials need flexibility to respond to complex social and financial dynamics, allowing them to make important policy choices regarding the proper allocation of available resources to best serve those in the health care program while continuing to serve the interests of the whole community. Rather than protecting the TennCare beneficiaries, these consent decrees have become the principal roadblocks to preserving effective managed care for the greatest number of Tennesseeans. Thank you.
Mr. SMITH. Thank you, Mr. Goetz.
[The prepared statement of Mr. Goetz follows:]
PREPARED STATEMENT OF THE HONORABLE DAVID GOETZ
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Mr. SMITH. Professor Schoenbrod?
TESTIMONY OF DAVID SCHOENBROD, PROFESSOR, NEW YORK LAW SCHOOL
Mr. SCHOENBROD. My name is David Schoenbrod. Thank you very much for the opportunity to allow me to testify today.
I have worked for Senator Hubert Humphrey and Vice President Hubert Humphrey, for Judge Spottswood Robinson, for the Bedford-Stuyvesant Restoration Corporation, and the Natural Resources Defense Council. It was a case that I litigated at the Natural Resources Defense Council that began to let me open my eyes to the problem this Committee is addressing today.
My litigation partner, Ross Sandler, and I won a judgment that New York City had violated a Federal law in regard to air pollution. The judge told the parties to come up with a consent decree, and so we found ourselves negotiating with city and State officials in charges of roads and mass transit and police and so on and we hammered out a detailed plan to improve mass transit and ease traffic jams. The plan was signed by the judge and so became a decree binding all the State and local defendants in the case and their successors in office.
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One of those successors turned out to be Ross Sandler, my litigation partner, because years later, he was appointed by Mayor Ed Koch, a successor mayor himself, to be the Transportation Commissioner. Ross found that some of the requirements in the decree that we were so proud to put there and seemed like such great ideas back in the day turned out not to work in practice.
But meanwhile, I was a law professor teaching remedies and came to understand that officials in Ross's position could not, as a practical matter, deviate from these requirements without the consent of plaintiffs' attorneys, and to gain such consent, it turns out, defendants also must agree to add additional requirements to the decree. So the decrees become longer and longer and public officials lose power to private attorneys.
Having gone through this experience, we ended up writing a book, the book you've referred to, called Democracy by Decree. Our book shows that decrees against State and local government are thick on the ground, that they often last for decades, and they are generally broader and more intrusive than necessary to protect rights. Commissioner Goetz has pointed out some examples of that. The special education case in New York City that Congressman Berman referred to is another example of a decree that's much broader than the Federal right it's supposed to enforce.
Our book also shows why decrees are broader than necessary to protect rights. Those who negotiate the decrees include plaintiffs' attorneys, lower-level government officials in charge of the program, and government attorneys. We call these negotiators the controlling group. The controlling group's members each have ideas about how to improve the program, and through a process of horse trading, they agree on a plan. Now, the government officials who are part of the controlling group welcome a plan that is broader than needed to protect rights because a court order gives them a way to grow their powers and to increase their budget without having to go through the normal process of convincing people like mayors and governors and legislators to go along with what they want.
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The governors and mayors themselves have their own reason to go along, too. Contested litigation makes them a target of criticism, while announcing a consent decree lets them take credit for finding a solution. And often, these decrees can be constructed so the really tough requirements fall after the election, after the next election.
The judges also go along with signing an over-broad decree because no one is objecting, and otherwise, the judge would personally have to write the decree, which means a long hearing and taking responsibility for policy choices.
A year after our book was published, the Supreme Court issued its unanimous opinion in Frew v. Hawkins. The Justices forcefully recognized the problem of over-broad consent decrees. They also made clear that the proper measure of a decree should be plaintiffs' rights rather than the deal struck in the consent decree.
But the Supreme Court did not fully fix the problem, because the instructions it gave to lower courts are ambiguous. They are framed as a restatement of the rule in a prior case. But Frew actually changed that rule rather than restated it. The ambiguity in Frew has already led one court, the court in Jeff D. v. Kempthorne, which is cited in a law review article, copies of which are over there and the Committee has, to act as if Frew changed nothing.
Now, the ambiguity in Frew grows out of the Supreme Court's understandable reluctance to be seen as too readily overruling precedent. Congress, however, is free to write on a clean slate and the Supreme Court has made clear that Congress could make new litigation ground rules applicable to old as well as new decrees. That was in the case of French v. Miller, and as to that point, no Justice disagreed.
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The Federal Consent Decree Fairness Act clarifies the ambiguity in Frew by stating a clear rule that reflects Frew's intention that defendants should be able to get rid of decree terms that are broader than necessary to protect rights, and that is how it should be in a democracy.
Mr. SMITH. Thank you, Professor Schoenbrod, and it is ''Schoenbrod,'' not ''broad,'' is that correct?
Mr. SCHOENBROD. Exactly.
Mr. SMITH. Schoenbrod. Thank you.
[The prepared statement of Mr. Schoenbrod follows:]
PREPARED STATEMENT OF DAVID SCHOENBROD
My name is David Schoenbrod. I am testifying on behalf of Ross Sandler and myself. We are professors at New York Law School. He teaches state and local government law and is Director of the Center for New York City Law. I teach the law of remedies and am a co-author of a casebook that deals extensively with decrees against state and local government, David Schoenbrod, Angus Macbeth, David I. Levine & David J. Jung, Remedies: Public and Private (West Publishing, 3d ed. 2002). In the 1970s, Professor Sandler and I were a litigation team at the Natural Resources Defense Council. Our cases included many matters of special concern to the poor and racial minorities. At other times, Professor Sandler was later Commissioner of Transportation of the City of New York under Mayor Edward I. Koch and in private law practice. I have worked for Senator and Vice President Hubert Humphrey, Judge Spottswood W. Robinson III of the Court of Appeals for the District of Columbia Circuit, and John Doar and Franklin Thomas at the Senator Robert Kennedy's Bedford-Stuyvesant community development organization.
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The sponsors of the Federal Consent Decree Fairness Act state that it based upon a proposal made in a book written by Professor Sandler and myself, Democracy by Decree: What Happens When Courts Run Government (Yale University Press, 2003). The book grew out of our experience at the Natural Resources Defense Council. In representing advocacy organizations in litigation against the mayor of New York City and the governor of New York State, our court room victories resulted in the judge asking the parties to negotiate a consent decree against the mayor, governor, and other officials of the state and city. The decree controlled in detail important aspects of how the city and state operated their roads, ran their transit system, deployed their police, regulated pollution, and much more. In time, we came to be surprised by the scope and duration of the power that we had over city and state official who, unlike us, were politically accountable. When Professor Sandler later became commissioner of transportation, he became a defendant in the case and, as such, was subject to the decree we had negotiated.
Professor Sandler and I have not lost our firm conviction that the doors of federal court house should be open to those whose rights are violated. But, we have gained the understanding that, as federal courts now operate, consent decrees are more intrusive and last longer than needed to protect rights.
Our is not the usual complaint about ''judicial activism.'' That complaint is that judges are too active in finding rights in the constitution or statutes. Our complaint is that the decrees go beyond enforcing whatever rights the judges do find.
The obvious question is, why are the decrees broader than necessary to protect the rights when judges know that decrees are supposed to enforce rights? The cases begin with plaintiffs' attorneys seeking to change how some government program operatesbe it foster care, the construction of sidewalk, or any of the dozens of types of state and local programs subject to institutional reform litigation. It is usually easy for the plaintiffs attorney to find some ''legal hook'' that they can use to draft a complaint because Congress and federal agencies have created so many standards applicable to state and local programs that most programs are in violation of some federal standard.
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With the plaintiffs attorneys having an open and shut case, the judge tells the parties to negotiate a decree. Those sitting around the negotiating table include the plaintiffs' attorneys, defendant officials, and government attorneys. We call these negotiators the ''controlling group.'' All of the members of the controlling group have ideas about how to improve the program, and that includes the non elected government officials who work for the program that is the target of the case. Through a process of horse trading, they construct a plan to change it. The plans are usually quite detailed. Many go on for dozens of pages. These plans are not tethered to the rights that gave rise to the suit but rather reflect the controlling group's collective idea about how to make program fun better. The signature of a judge turns this plan into a federal court order that must be obeyed by the defendants and their successors in office. Many decrees last for decades.
Typically, no one objects to the entry of a decree broader than needed to protect rights. For the officials who run the program under reform, the decree gives them a way to broaden their power and grow their budget by court order rather than through the usual processes for securing the approval of governors, mayors, or legislatures. Governors and mayors have own reasons to go along. Contested litigation makes them a target of criticism, while the consent decree lets them take credit for a solution. It can often be constructed so that the most onerous requirements fall due are after next election.
Judges sign the overbroad decree because no one objects and otherwise they will have to write the decree themselves, which would mean conducting a long hearing and taking responsibility for the policy choices. This is not judicial activism. It is judicial passivity.
Page 51 PREV PAGE TOP OF DOC Once the decree is signed, it must of course be obeyed unless and until the decree is modified or vacated. But, obeying the decree sometimes make no sense. New initiatives often don't work as hoped. Budget priorities or circumstances often change. Take, for example, Escalera v. New York City Housing Authority, 924 F.Supp. 1323 (S.D.N.Y. 1996). The litigation began in 1967 with a complaint that the New York City Housing Authority failed to give adequate procedural due process to tenants who were delinquent. The problem was real, but the federal judge was not content to declare a violation of due process of law. That probably would have been enough to solve the problem because the tenants and the authority agreed on a new set of procedures prior to eviction that gave the tenants extra notice and assistance beyond constitutional minima. Instead of terminating the case, the lawyers for the tenants and the authority in 1971 submitted a consent decree to the federal judge that mandated the elaborate new procedures and ceded to the judge perpetual supervisory power over the procedures.
In 1993, twenty-two years later, crack cocaine had emerged as a serious issue. The New York City Housing Authority received urgent requests from tenants to evict those tenants who dealt drugs from their apartments. The authority wanted to invoke the Bawdy House Law, a special procedure available under state law that would allow rapid eviction of proven drug dealers who used their apartments for sales, yet still accorded them due process. Legal Aid attorneys, citing the twenty-two year old consent decree, objected. They were still attorneys of record and, on behalf of all tenants, argued that the special procedure was illegal because it varied from the more protracted procedure specified in the old decree. It took two years of intensive litigation before the Housing Authority was allowed to use the special procedures.
The courtroom scenes would have been comic if they were not so tragic. Experts called by both sides battled over whether the advent of crack cocaine was sufficiently new and unexpected to warrant revising the old decree, whether living next door to a drug dealer actually increased risk of criminal violence, and whether hiring more housing police might be a better solution, i.e., <''more suitable'' than evicting drug dealers. After three days of testimony Judge Loretta A. Preska issued a fifty-five-page opinion deciding that on balance it was permissible for the New York City Housing Authority to use the lawful, speedy procedures. While this litigation continued, the tenants, the purported beneficiaries of the old decree, lived with the danger and intimidation of drug dealers next door. The snarl of litigation so incensed the organization of elected representatives of all the tenants of the New York City Housing Authority that it hired other lawyers to fight on the side of the Housing Authority and against their old lawyers.
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As the Escalera case illustrates, under the leading Supreme Court case, Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367 (1992), it is difficult for states and localities to get out from under decretal requirements that make no sense and are unnecessary to protect rights. The Rufo test is demanding and time consuming. And, to have any chance at success, the leaders of the defendant agency must divert their attention from other managerial problems to litigation. So, the leaders typically decide not to litigate and instead beseech plaintiffs attorneys to consent to a modification. The plaintiffs may give the state or city some leeway, but in return demand that new obligations be added to the decree. In this way, the decree grows from dozens of pages to hundreds or even thousands of pages. With all the modifications on consent, side deals, and letters of understanding, it is often only the controlling group that understands what the consent decree requires.
In its unanimous opinion in Frew v. Hawkins, 124 S.Ct. 899 (2004), the Supreme Court has forcefully recognized the problem of consent decrees that unnecessarily constrain the policy making discretion of state and local officials. The Court made clear that the proper measure of injunctive relief should be plaintiffs' rights rather than a bargain struck in a consent decree. For an analysis of Frew, see Sandler & Schoenbrod, ''The Supreme Court, Democracy and Institutional Reform Litigation,'' 49 New York Law School Law Review 915 (2005), available online at http://www.nyls.edu/pdfs/Vol49no3p915942.pdf.
While the Supreme Court has recognized the problem, it has not fully fixed it. In institutional reform litigation, there has been a persistent gap between the Supreme Court's calls for lower courts to respect the policy making prerogatives of state and local officials and actual practice in the lower courts, as we have shown. See Democracy by Decree at ch. 6. One reason is that it is difficult for successor officials to complain effectively about overbroad decrees entered into by their predecessors. Frew itself does not fix the problem because the Supreme Court is, after all, a court rather than a legislature and so typically works incrementally rather than by comprehensively reversing and revising previously announced litigation ground rules. But, the Court has recognized that Congress can change these ground rules and make new ground rules applicable to old as well as new decrees. French v. Miller, 530 U.S. 327 (2000). In French, none of the justices expressed a contrary view on this point.
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The Federal Consent Decree Fairness Act articulates ground rules for modifying and vacating consent decrees entered against states and localities. These ground rules are in accord with the view expressed by the Supreme Court's opinion in Frew that the proper measure of injunctive relief should be plaintiffs' rights rather than a bargain struck in a consent decree. Section 2 of the Act articulates principles that the Supreme Court recognizes, but that controlling groups often get away with ignoring. Section 3 begins by defining the consent decrees to which this section applies. It then goes on to allow state and local officials to move to modify or terminate the decree, but instructs the court to deny the motion if plaintiffs show the decree is needed to protect their rights.
The Act allows courts to protect rights, but otherwise lets state and local officials run state and local government. That is how it should be.
Mr. SMITH. Let me direct my first question to you, and what I want to point out is that you are a public interest lawyer, as is the co-author of the book. You mentioned some of your background experiences. And in the book, early on, you refer to who was then the President of the American Civil Liberties Union informing you that leading public advocacy organizations have shifted resources from litigation to lobbying, public education, political organizing, and other avenues of reform.
The point I want to make is that it's not a situation here where those who are opposed to modifying consent decrees are all civil liberty lawyers and those who want to reform consent decrees are all non-civil liberties lawyers. There are a lot of people like you who have real credibility and are, for that reason, able to, I think, be very persuasive about the case that we need to modify the consent decrees.
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Let me give you a chance to respond to a couple of the assertions made by Judge Jones. You can kind of take your pick here. He said that the bill will significantly raise the cost and reduce the effectiveness of all law implementation affecting State and local governments. He said it would deprive courts of the option of using consent decrees, and there is no problem that needs fixing. I think you've addressed that. But if you'd like to respond to the first two points for the record, that would be good.
Mr. SCHOENBROD. I believe that this act would not significantly reduce the extent to which plaintiffs would want to use consent decrees. There are powerful reasons, both doctrinal and practical, for plaintiffs to want to usecontinue to want to use consent decrees.
First of all, as a doctrinal matter, when the decree is entered not by the consent but over the opposition of the defendant, the court is not allowed to go beyond what's needed to protect rights. And if a court does do so, it's very apt to be struck down on appeal. And so what plaintiffs can get through a litigated decree is much more limited than is possible through a consent decree.
Beyond that, there are great practical reasons to prefer a consent decree. With a consent decree, the plaintiffs could get immediate relief, quick relief, whereas with litigation, the litigation takes a long time. Litigation is resource-intensive. It's very expensive. Judges prefer to have the cases settled by consent rather than by litigation, and the judges are going to be pushing in that direction with or without this bill.
Page 55 PREV PAGE TOP OF DOC There are uncertainties with litigation, and beyond that, there are questions with attorneys' fees, practical issues of attorneys' fees that would tend to push plaintiffs' attorneys toward accepting consent decrees, not the least of which is if a group of plaintiffs passes up a consent decree and litigates and doesn't get any more, that is not going to help their fee application.
Beyond that, it seems to me that when I hear people say that this bill means that the decrees will be thrown out in 2 years or 4 years, forgets the fact that plaintiffs have open to them the possibility of showing that the decree is still needed. So it's not as if the case or the decree just simply ends after 4 years.
The example Representative Conyers brought up about the Detroit water pollution project, if it's going to take 11 years to build the thing and it's not certain it's going to get built, then it seems to me it's a pretty simple case to show that a Federal right to meet water pollution standards is subject tois in jeopardy and that's the kind of thing that under this act would allow the decree to continue.
Mr. SMITH. Okay. Thank you.
Mr. Goetz, tell me if you agree with me. It seems to me that those who are concerned about changing consent decrees are worried about or concerned about the problems it might create in a theoretical context, whereas people like you who have had problems with consent decrees are coming at it from a more practical perspective, and here you dealt with Medicaid in Tennessee. You have Professor Schoenbrod's statement that consent decrees are more intrusive and last longer than needed to protect rights. I suspect that fits the situation in Tennessee. Do you agree with my point about the difference between the theoretical and the practical?
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Mr. GOETZ. Obviously, I have to, just having to be the person who has to put together the budget for the State of Tennessee every year and do this. But I respect the experience of Judge Jones and of others who have come up through this, and as a non-attorney, I'll have to give that disclaimer, also. I won't profess to have an opinion on all the legal issues.
But it is a practical reality in the State of Tennessee that we are not going to have significant new revenues. We spent 4 years and the previous Administration in a very long and protracted and ugly tax debate that was ultimately just produced an increase in sales taxes and no one seems toand no one in the State has the stomach for anything else.
So this leaves us, as a practical reality, of having to choose whether or not we're going to fund a new K-12, or a new pre-kindergarten program, for example, that we believe is deeply needed by the children in the State, whether we can continue to have the safe and effective prison system that we have. All of those kinds of choices lead us to at least be able to balance, but unfortunately, the consent decrees make us unable to balance the interests that we have across the State.
Mr. SMITH. Thank you, Mr. Goetz.
I am going to, without objection, recognize myself for an additional minute so I can ask Judge Jones a question.
Judge Jones, you've had the wonderful experience of being a Federal judge. What is the harm in allowing, as this bill does, an elected official to petition a Federal judge and have a consent decree modified? In other words, you still have the Federal judge deciding whether or not that request for modification is legitimate or well-grounded, so what is the harm of at least having that option out there just in case it is necessary, in case a consent decree has sort of expired in its usefulness or been enforced in a lackadaisical fashion or whatever the reason? Why not give a Federal judge that power?
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Judge JONES. There is no prohibition against a public official or anyone else petitioning a court for a reconsideration or a modification of a consent decree. That is inherent in the whole process. In fact, it begins at the time that the consent decree is being presented to the court. The court must firstwhat a party must do is obtain a preliminary approval of a court of an agreed order that the parties themselves have negotiated at arm's length. They submit that to a court for preliminary approval. The court examines that and decides whether he or she is going to grant preliminary approval.
At that time, a notice is sent to all potential parties, members of the class, any person that may be affected, inviting them to comment at a subsequent hearing, which is called a fairness hearing. A fairness hearing is very much like a town hall meeting. Persons can come in, whether they are named defendants in the case or not. They can come in and comment on the consent decree.
And what the court considers are three basic things. The court considers whether the agreement is fair, whether it is reasonable, and it looks to the whole question of possible duration. And if it's satisfied itself that it is fair, that it is reasonable, and that, in all other respects, the public interest is being served, it can approve the order.
Soand then once it's operating, after whatever period of time, if any person has an issue with regard to the way it's being operated and implemented, they can petition the judge to have this matter revisited. And if the judge grants the application, there can befor a hearing, there will be a hearing. If the judge denies it, there can be an appeal taken.
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And I pointed out in my direct testimony that I have sat on numerous cases in which the appeals dealt with the action taken by the district judge in either approving or rejecting the application of a party to modify or act upon a consent decree. One of my mostone of the last opinions I wrote as a member of the Sixth Circuit Court of Appeals was in one of these Tennessee cases in which I reversed the district judge and remanded the case for a fairness hearing, because in my judgment, the record shows that some interveners, some parties who wanted to be heard, were not given that opportunity by the district judge. And under the Rules of Appellate Procedure and the Rules of Civil Procedure, those parties have a right to be heard under the law. And I wrote the opinion for our panel that reversed and remanded for a hearing.
So that's why I said a moment ago that there's no problem here. There's a process already in case. And what we're doing, if there's some particular problems with a particular case, there's aall one has to do is petition, if unsatisfied with the result, appeal. And with the way the courts are now viewing these matters, I think those who are concerned can be most reassured that they're going to get a very fair shot at the appellate level in virtually every circuit.
Mr. SMITH. Thank you, Judge Jones.
I don't think we have time for the Professor to respond, but maybe during the course of the questions and answers yet to come, he could. But thank you for your comments.
The gentlewoman from California, Ms. Waters, is recognized for her questions.
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Ms. WATERS. Thank you very much, Mr. Chairman and Members. I was tied up, but I'm glad that I was able to get here because this legislation is extraordinary legislation that seeks to overturn a very, very important process by which we can settle big disputes.
I'm from Los Angeles. We are accustomed to having consent decrees dealing with some very serious problems there. Mentioned in some of what I have here today is a consent decree with Metropolitan Transit Authority where poor people and minorities were not receiving bus service and that consent decree works out ways by which there would be more bus purchases and better service would be provided.
I also had an opportunity to quickly review one of these Tennessee cases and it looks as if they just don't know how to use technology to get prior approval for medication. It seems to me in this day and age that that would be very easy to do and 3 days is a hell of a lot of time to do it.
However, having said that, I focused in, Judge Jones, on part of your testimony that deals with the civil rights exemption, or the so-called civil rights exemption, and it looks as if you say it is far from complete, and I'll just quote you, ''in the race area, it has no application to voting rights cases or to the great majority of housing cases, nor would the bill protect people who are discriminated against because of their age or gender or condition of disability or because of their national origin.'' That's very serious. This is the 40th anniversary of the Voting Rights Act and we don't know what we're going to have to do just to keep some of those jurisdictions that are under the watchful eye of the Justice Department in section 5 in line, and I think there's some attempt to strip all of that out of the Voting Rights Act. So this really does catch my attention.
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Would you, and maybe you've said it already, again tell this Committee why you believe that these so-called exemptions will not, in fact, protect very important law that we have, particularly Voting Rights Act?
Judge JONES. Thank you, Congresswoman Waters. I think you're absolutely right in your summary, your analysis. The act specifically exempts school desegregation, title VI and title VII. Title VI deals with agencies that receive Federal funding, and title VII deals with employment discrimination. But that does not include the issues of housing discrimination, discrimination faced byand I should also point out that it deals with race. It does not exclude and does not exempt persons who are aged, who are handicapped or disabled, or persons who are victims of housing discrimination or other forms of discrimination, ethnic and otherwise.
Ms. WATERS. Gender?
Judge JONES. Gender, very definitely, gender is not included in that exemption. So it does not cover that situation, and one of the dangers is, that I seeand I must put on my old civil rights hat here for a moment because I did serve as General Counsel of the NAACPI am concerned about opening the door, the unraveling effect that this legislation can prompt.
Those who sponsor it may now say, well, we've exempted school desegregation and we've exempted title VI and title VII, but who is to say that 5 years from now, somebody will come along and say, well, okay. Why should we continue to exempt victims of discrimination who claim discrimination under title VI or title VII? Why don't we just sweep them in under this prohibition and limitation?
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The problem here is tampering with the courts, the historic jurisdiction and power that the courts have to be flexible to deal with claims of racial and other kinds of discrimination, and to open the door for carving out this type of condition, I think is very dangerous. Also, it does not create the kind of protectionor, in fact, it strips the protection from persons who have traditionally come to rely upon the courts for protection against claims of racial discrimination and other kinds of discrimination.
Mr. WATT. Thank you very much, Mr. Chairman and Members. I think this is extremely serious. And again, like I said, I mentioned the MTA in Los Angeles, but the Police Department, I think even the Fire Department all have been operating for a number of years under consent decrees and it has served us well.
I would yield back the balance of my time
Mr. SMITH. Thank
Judge JONES. May I note that national origin is also a group that is not exempted.
Ms. WATERS. That's what I understand from reading this. Thank you.
Mr. SMITH. Thank you, Ms. Waters.
Page 62 PREV PAGE TOP OF DOC The gentleman from Michigan, the Ranking Member of the Judiciary Committee, Mr. Conyers, is recognized for his questions.
Mr. CONYERS. Thank you, Mr. Chairman.
I'm trying to figure out benefits that might accrue from a 4-year exploration of consent decrees, and before I do it, could I ask our witness from Tennessee, did he agree with the consent decrees that were entered in previously that I think you inherited, more or less?
Mr. GOETZ. We did inherit them, Mr. Conyers. We had an agreement to change one piece in order to be able to implement a preferred drug list program, et al., but we advised the plaintiffs at that time that we did not consider this sufficient and that we needed to explore other ways to change the program, and it was in coming up with those other ways to change the program that the restrictions of the consent decree became more apparent.
Mr. CONYERS. In other words, you're sorry that you entered the consent decree?
Mr. GOETZ. Well, we don't consider ourselves to have entered into the consent decree, Mr. Conyers. It wasthe language was inherited
Mr. CONYERS. You see, what we're doing here is that we're bringing judicial decisions, cases that were triedI mean, in this one hearing, I think we've had 20, at least, different cases that have been summarized for us to prove the consent decrees don't work. I haven't read one of those cases, and I'll have a lot of work to do at the rate that we're going to use the strategies here.
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But consent decrees suggest voluntariness. I mean, if you don't like a consent decree, you can go to trial. It's what both parties enter into. And so I don't want to say I'm hearing a little bit of sour grapes from a couple of the witnesses, but consent decrees, if you get what you want in it, are good, and consent decrees that don't satisfy you or have hidden significances, well, they are bad.
And so now we are going to fix it by allowing all of them to expire in the end of 4 years when, as Judge Jones keeps repeating, you don't have to wait 4 years now to terminate a consent decree. You can go in the next year. Let's have a 3-year. Let's have 2 years. Let's have 1 year. Let's not have any, and you can try to terminate it whenever you get good and ready.
So I see with the voter rights extensions coming up that expire, we could end upI mean, they're complicated enough and we've needed them for 40 years. To now put a 4-year term limit on the right to vote, which is far from unsettled that it's available on an equal basis to everyone in the several States, would be a very, very difficult thing for us to support.
I would imagine that in many quarters of this country, and even among lawyers and judges, not to mention the Department of Justice itself, it would have a humongously unsettling effect. To say that this isn't going to bother anybody too much, Professor, doesn't leave me feeling better because you've written a book about it, which I haven't read, doesn't leave me feeling any better at all.
Page 64 PREV PAGE TOP OF DOC I think it's going to have a completely unsettling effect were this to go forward. I'm hoping that as we study this and as we getI know we'll need more than one witness, one set of hearings, that we really think about this for a minute.
Why is it that anybody that doesn't like a consent decree can't go forward and have a trial? If you really are against consent decrees, the lesson I would write an essay about is don't enter into consent decrees. Don't consent if you don't mean it.
Mr. SMITH. Mr. Conyers, I'd like to recognize you without objection for an additional minute, but I'd like to recognize you for that purpose to allow Professor Schoenbrod to respond slightly or briefly to your point about there would be a 4-year, in effect, limitation on all the consent decrees. Would that be all right?
Mr. CONYERS. No. Thanks. I'd rather take my 1 minute and give it to Judge Jones. He may want to improve upon my commentary.
Mr. SMITH. Okay. The gentleman continues to be recognized.
Mr. CONYERS. You could enter into a consent decree with me, Professor, and we could arrange somehow for you to get your side of this into the testimony. [Laughter.]
But I'm sure that you'll be able to anyway.
Is there anything that I am missing, Judge Jones, here?
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Judge JONES. I think you very accurately captured the crisis that will be generated by the enactment of this type of legislation, and you've pointed out most appropriately that consent decrees are just that. They're consent. They're not unilaterally entered into. The parties must agree. And what they agree with, when they agree, they have a contract which the court scrutinizes for fairness and for reasonableness. And once that's been approved, it's a deal, and if there's a challenge to it, they can petition the court for a modification or an adjustment.
There has been a reference made to a book which I have not read. I've read summaries of the book, and I'm not here promoting a book, but I would like to commend to the Committee another book, and that is the Kerner Commission report of 1968. It is still very relevant, and with Congressman Conyers coming from Detroit, and Detroit was a major point of upset that led to the appointment of the Kerner Commission, and Congresswoman Waters from Los Angeles coming from a city that had Watts, both cities are among those mentioned in this report.
I think we have forgotten the lessons that are set forth in this report and I would urge that along with reading the good Professor's book, that you might want to revisit the Kerner Commission report.
Mr. CONYERS. Mr. Chairman, could we get time so that the Professor could make a response to myself and Judge Jones?
Mr. SMITH. Mr. Conyers, you took the hopes out of my thinking. I thank you for suggesting that, and without objection, the gentleman from Michigan is recognized for another minute so that Professor Schoenbrod can respond.
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Mr. SCHOENBROD. Thank you very much, Representative Conyers and Mr. Chairman. I didn't say that nobody would be upset about this legislation. What I did say was that I thought that plaintiffs would continue to want to use consent decrees.
The issue here is not whether we're going to outlaw consent decrees or not. Nobody is saying we're going to outlaw consent decrees. The issue was whether the lodestar after which decrees should be used is the protection of rights or the defense of old contracts, old contracts entered into through consent decrees.
And it seems to me the reasons why we should be limiting these decrees to protecting rights and not defending old contracts are very well expressed in a quote I want to read from Justice Brennan. ''One of the fundamental premises of our popular democracy is that each generation of representatives can and will remain responsive to the needs and desires of those whom they represent. Crucial to this end is the assurance that new legislators will not automatically be bound by the policies and undertakings of earlier days. Nothing would so jeopardize the legitimacy of our system of government that relies upon the ebbs and flows of politics to clean out the rascals than the possibility that those same rascals might perpetuate their policies simply by locking them into binding contracts, and one kind of those binding contracts is the consent decree, many of which last for decades.''
Mr. SMITH. Thank you, Professor. Thank you, Mr. Conyers.
The gentleman from California, Mr. Berman, is recognized for his questions.
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Mr. BERMAN. My guess is that the next President, be it Democrat or Republican, is going to come into office on January 20 of 2009 and say, ''Geez, I wish we weren't mired down in Iraq. Can I start all over again?'' It doesn't always work like that. This notion that I'm new, I shouldn't be stuck with the obligations of theI mean, that's the institutional process in this country. We become, we inherit a lot when new Administrations come in, whether it's city, State, or Federal.
I'm wondering, I'm curious how the Congressmen and the Senators from Arizona would feel once this became law, that voracious water-sucking California will now be able to take a case which was filed in 1952 for which there was a consent decree between the two States, approved by a judge with a special master, who I don't believe was working at the equivalent in 1950's and '60's dollars of $70 an hour, a consent decree in 1964, several supplemental decrees, a 1989 motion to open the decrees to allot additional water rights for Indian reservations, and a 2000 Supreme Court ruling on whether that motion was precluded.
I'm not sure the people of Arizona want California, every single time we have a new governor's election, to be able to reopen that consent decree so Arizona can reestablish within 90 days their rights to water from the Colorado River against what California is taking. So what about that exemption for water cases, and the next case, and then the next case? There are some consent decreesand by the way, however that court decides, it will be appealed and the Supreme Court will be seeing that case every single time because the interests are so vast and California is so thirsty.
I am troubled. I understand your point, Professor, and I'll think about it more, about this notion of why it won't affect the interest in settling. But my guess is what mostly happens when these lawsuits are filed is the governor, the director of finance of the State, the mayor of a city goes to the Attorney General's office or to the county counsel or the city attorney and the guy says, ''We've got exposure here.'' That L.A. Police Department consent decree didn't come into effect because L.A. had been doing everything right and they just wanted to find a nice way to change the way they were reviewing brutality cases and all that. It came because they had some serious legal problems.
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And the plaintiffsI mean, I hearI don't know what the Federal judge can do to force a public interest attorneyand by the way, notwithstanding your support for this bill, a lot of public interest attorneys I talked to strongly disagree about whether it's good or notbut I can't think what a Federal judge can do to leverage a plaintiff's lawyer to settle a case for a client who presumably knows what's going on when he has to tell him that in 6 months or 1 year or 1 year and a half, this thing will open up again and you will have to retry this case to have anything of this consent decree that they're now agreeing to enter into with you.
I mean, I reallyit seems to me like on that issue alone, there is a massive new dynamic that enters into this, and yes, the decrees may be broader than the Federal rights, but there's a reason why the governmental entity is settling, an it isn't just because they're a nice guy or they feel guilty of what they've been doing orit's because they think they could lose in court. And once they can only lose for a short time, isn't that dynamic changed so massively that the incentive to settle is so diluted and diminished thatso go back over that again, if you would, Professor.
Mr. SCHOENBROD. Thank you. I think you're right that often these cases are settled because the defendant has done something very wrong and is in trouble. But then there's what you mentioned that the decrees get broader.
But the point is that in many of these situations, it's going to take a while for the defendant city or State to fix the problem, and that's the very reason why the city or State is not going to go back into court as soon as possible because it's just going to put egg on the mayor or the governor's face because they're going to still have a deficient problem, or a deficient situation, and they're going to have to pay fees to the plaintiffs for having to prove what they didn't have to prove before.
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So I know of cases in New York where I think New York City could actually get out from under the decrees and they're not doing it, even where they've, in fact, fixed the problem, just because of the bureaucratic momentum.
Mr. BERMAN. There are some politicians who want
Mr. SMITH. Without objection, the gentleman from California is recognized for an additional minute.
Mr. BERMAN. There are some politicians whoI'm going tovote for me and I'm going to show you, I'm going back into court and I'm going to go after this thing, and let me tell you, they're going to have to prove their case. A judge is going to have to order me to do that. And he'll run his election campaign and presumably, because he'll want a second term, if he has the popular side of an issue where rights are being violated, and once in a while those are not the same sides, he's going to have all the political motivations to do it, apart from a judgment, a legal analysis of the merits.
Mr. SCHOENBROD. Well, I trust the judge, that the judge is going to be capable of figuring out where the rights are violated, and where the rights are violated, the defendants still are going to be bound.
Mr. SMITH. Thank you. Thank you, Mr. Berman.
I'd like to thank all the Members for their attendance, the witnesses for their testimony, and the audience for their interest. This has been a very good hearing. It's not often that the Ranking Member and I disagree on issues before the IP Subcommittee. This happens to be one of the rare instances. Nevertheless, we've learned a lot. We appreciate what you all had to say, and Professor Schoenbrod, you bore the brunt here today, but I think that if individuals will read your book, they'll realize that you're trying to achieve the same results that they are, and I think that's what's important.
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Without objection, we stand adjourned.
[Whereupon, at 7:05 p.m., the Subcommittee was adjourned.]
A P P E N D I X
Material Submitted for the Hearing Record
PREPARED STATEMENT OF THE HONORABLE HOWARD L. BERMAN, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA, AND RANKING MEMBER, SUBCOMMITTEE ON COURTS, THE INTERNET, AND INTELLECTUAL PROPERTY
Mr. Chairman, I would like to thank you for scheduling a hearing on H.R. 1229. While I understand the motivations behind the bill, the legislation raises more issues than it solves.
H.R. 1229 purports to be a ''balanced system that protects the rights of individuals to hold state and local governments accountable in court, while preserving our democratic process through narrowly drawn agreements that respect elected officials' public policy choices.'' But in fact, it creates far from a balanced system.
This bill would virtually eliminate all consent decrees involving state and local governments. The bill shifts the burden of proof from the defendant to the plaintiffs and require them to re-prove their case every few years. Counsels for plaintiffs will simply refuse to enter into any such decrees, for fear that they would have to re-litigate in four years or sooner, if there is a new administration. They will insist on going to trial in every case in order to protect their clients. In fact, I find it ironic that the proponents of class action reform would support legislation that actually increases opportunities for trial lawyers. Perhaps H.R. 1229 should more properly be entitled ''The Trial Lawyers' Full Employment Act of 2005,'' as it is almost certainly guaranteed to result in an increase in litigation.
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Furthermore, the requirement that the court rule in 90 days requires that plaintiffs re-prove their entire case in a completely unrealistic timeframe. And of course, defendants will have every incentive to delay and drag out discovery, so the 90-day requirement alone is a death knell for consent decrees.
The bill also provides that to continue the decree, the plaintiff must prove that continuation is necessary to ''uphold a federal right.'' But many of the laws covered by this bill impose important requirements, but don't necessarily confer ''rights'' on individuals within the meaning of recent Supreme Court cases.
Furthermore, the bill also suffers from an overly narrow carve-out for civil rights which does not ensure that civil rights are protected. (Explicitly exempted are those consent decrees involving school desegregation on the basis of race, color, or national origin, as well as actions to remedy racial discrimination under Title VI and VII of the Civil Rights Act of 1964.) The Title VI and VII exemptions only apply to discrimination on the basis of race. Consent decrees to remedy discrimination on the basis of national origin, gender, age, or disability remain covered by the bill.
Because the bill's definition of ''consent decree'' is much broader than the traditional definition, any court order ''based in whole or part upon the consent or acquiescence of the parties'' may be covered. But courts always ask both parties for input into final orders. So if a court takes a suggestion from the losing party, or the losing party declines to object, or appeal, that might leave a final court order just as unenforceable as a true consent decree.
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Then there is a special master compensation provision which sets an unreasonably low cap on pay. The bill's proponents seem to want to discourage competent professionals from serving as monitors.
This is a solution in search of a problem. HR 1229 purports to fix a problem that does not exist. Existing federal law already permits the modification and dissolution of consent decrees. The courts currently apply a generous and flexible standard for allowing state and local governments to modify or terminate existing consent decrees. If the parties, or politicians for that matter, want to change aspects of the consent decree, they are free to petition the court to do so now.
All this is done in the wake of a unanimous 2004 Supreme Court Frew decision which instructed local district courts to afford significant deference to state officials' preferences in fulfilling the state's obligations. All nine Justicesthat includes Scalia, Thomas, and Rehnquistproffered some guidelines that district courts should use when reviewing consent decrees to determine whether or not they should continue to remain in place. They didn't say to get rid of consent decrees. Instead, they suggested the prescription to fix the problem. They wrote: ''As public servants, the officials of the State must be presumed to have a high degree of competence in deciding how best to discharge their governmental responsibilities. . . . If the State establishes reason to modify the decree, the court should make the necessary changes; where it has not done so, however, the decree should be enforced according to its terms.''
Therefore, I disagree in the first instance that state and local officials' hands are truly tied, but if they are, the answer is not to alter the standards for consent decrees. Congress should either fund the mandate or change the underlying federal law. Consent decrees are just a convenient scapegoat.
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This bill will not fix any of the problems that the proponents cite. In fact, it will actually create more problems than it will solve.
I yield back the balance of my time.
PREPARED STATEMENT OF THE HONORABLE JOHN CONYERS, JR., A REPRESENTATIVE IN CONGRESS FROM THE STATE OF MICHIGAN, AND RANKING MEMBER, COMMITTEE ON THE JUDICIARY
This bill is a blow to victims of police brutality, the disabled, and victims of state-sponsored pollution. It is unseemly that states would promise to comply with federal civil rights and environmental laws and then come to Congress in order to get out of such obligations.
First, by requiring virtually every federal consent decree with state and local governments to be relitigated every four years, it would set back decades of progress in civil rights enforcement, gut the Americans with Disabilities Act, and permit any locality to violate the Clean Water and Clean Air Acts. I am curious to hear why supporters of this legislation believe that police departments that abuse citizens or state agencies that fail to have wheelchair ramps at front entrances should receive a ''Get out of Jail Free'' card in four years.
Second, in my opinion, the best way for a state to get out of a consent decree is for it to comply with the law. Federal consent decrees are not permanent; the parties and courts are free to revise the terms of decrees as circumstances change and as the defendants improve their behavior. Creating a set timetable for review, as this bill does, would give greater bargaining power to lawbreakers.
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Finally, those of us who are concerned with the unequal treatment of citizens believe the Justice Department brings too few, not too many, civil rights and environmental lawsuits. When it does bring cases, the Department uses consent decrees to ensure compliance with basic civil rights protections. Weakening consent decrees would make it impossible for the Department to ensure compliance with the law and invite states to break the law.
Creating a way out of the system is the same as suggesting that some people deserve lesser treatment than others, and I thought we had crossed that rubicon in the 1960's. At a time when we still see unarmed citizens being beaten by police officers and the mentally ill are being abused at state-run care centers, we should be strengthening federal law enforcement, not weakening it.
PREPARED STATEMENT OF THE HONORABLE MAXINE WATERS, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA
Mr. Chairman, H.R. 1229, the Federal Consent Decree Fairness Act, has aspects that could prove detrimental to consent decrees as they stand now. Consent decrees have been a valuable tool in the administration of justice by providing an alternate way to resolve claims involving state and local governments without protracted and costly litigation. Also, consent decrees offer the opportunity for parties to work together to resolve their dispute and do not impose requirements that have not been mutually agreed to by both parties. However, H.R. 1229 proposes reforms that could seriously impede the usefulness and power of consent decrees.
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Mr. Chairman, H.R. 1229 specifically undermines the purpose of consent decrees, making it a less attractive option to plaintiff's lawyers. To illustrate, H.R. 1229 allows the defendants, the party responsible for the initial violation that brought about the need for a consent decree, to file a motion to modify or vacate a consent decree after four years or any time a new administration is elected. This is allowed regardless of the timelines instituted in the original consent decree, and regardless of whether the defendant has complied with the consent decree. This provision will lead to the plaintiff's having to reprove their cases, even in situations where the defendant has failed to redress the violations that brought about the need for a consent decree.
Existing law already provides for the modification and termination of consent decrees. For, the law allows revision or dissolution of a consent decree if a party shows that a significant unanticipated change in circumstances warrants such revision or termination. Therefore, H.R. 1229 is not creating needed reform for the challenge of consent decrees. Current law already provides a strong basis to question the validity to all or some aspects of existing consent decrees.
Mr. Chairman, H.R. 1229 also undermines consent decrees by automatically nullifying such decree if a court does not respond to a defendant's motion within ninety days. This time period is way too short. With courts having so many cases on their dockets, usually motions are not responded to so fast. In addition, plaintiffs should not be forced to re-litigate their cases in such a small time frame.
Mr. Chairman, these are just a few examples of how H.R. 1229 seeks to undermine the usefulness of the consent decree. If such a bill were to pass, plaintiff's attorneys would no longer see consent decrees as a sensible, viable option for their clients, leaving would-be plaintiffs with few legal means to seek protection of their civil rights. We need solid and dependable protection for civil rights and consent decrees have proven to be a valuable instrument in this area of the law and I yield back the balance of my time.
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LETTER FROM CURTIS L. CHILD, SENIOR ATTORNEY, NATIONAL CENTER FOR YOUTH LAW, TO THE HONORABLE LAMAR SMITH, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF TEXAS, AND CHAIRMAN, SUBCOMMITTEE ON COURTS, THE INTERNET, AND INTELLECTUAL PROPERTY
LETTER FROM GENE KIMMELMAN, SENIOR DIRECTOR, PUBLIC POLICY AND ADVOCACY, TO THE HONORABLE JOHN CONYERS, JR., A REPRESENTATIVE IN CONGRESS FROM THE STATE OF MICHIGAN, AND RANKING MEMBER, COMMITTEE ON THE JUDICIARY
LETTER FROM ERIC MANN, DIRECTOR, LABOR/COMMUNITY STRATEGY CENTER (LCSC), AND BARBARA LOTT-HOLLAND, CO-CHAIR, BUS RIDERS UNION (BRU), TO THE HONORABLE HOWARD L. BERMAN, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA, AND RANKING MEMBER, SUBCOMMITTEE ON COURTS, THE INTERNET, AND INTELLECTUAL PROPERTY
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PREPARED STATEMENT OF MARK L. SHURTLEFF, UTAH ATTORNEY GENERAL
Mr. Chairman and members of the committee, my name is Mark Shurtleff and I am the Attorney General of the State of Utah. I appreciate the opportunity to address you today and share my concerns about how federal consent decrees have impacted the judicial, legislative and political processes of the State of Utah. I have served four years on the Federalism Working Group of the National Association of Attorneys General, and led nineteen other state AGs on an Amicus Brief in support of Texas in it's case challenging a federal consent decree before the United States Supreme Court in Frew v. Hawkins, et al., 540 U.S. 431 (2004) (attached as Exhibit 1.) I can assure you that many of my colleagues share my concerns. I can also report that many of us are encouraged that Congress, this committee, and in particular Representative Blunt and his co-sponsors, have seen fit to try and address those concerns in H.R. 1229.
SEPARATION OF POWERS
It goes without saying that one of the greatest protections to our liberty as Americans crafted by the Founding Fathers was the constitutional separation of powers. The horizontal separation among three branches of government was a legal barrier to tyranny. As stated by James Madison in The Federalist Papers, No. 47, too much power in one branch of government ''is the very definition of tyranny.'' Citing Montesquieu, he went on to explain that, ''were the power of judging joined with the legislative, the life and liberty of the subjects would be exposed to arbitrary control, for the judge would then be the legislator. Were it joined to the executive power, the judge might behave with all the violence of an oppressor.''
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As important to strength of democracy in America today is the constitutional guarantee of a ''vertical'' separation of powers between the federal government and the states. This principle of federalism, often tested as in the present case, has nevertheless been the taproot of a democratic tree made of fifty sovereign states joined together in one powerful sovereign nation. It is the sworn duty of state attorneys general to uphold, protect, defend and execute the laws of this nation and of the State of Utah. I am here today to sound a warning cry that unfettered and unchecked manipulation of consent decrees by federal judges attacks both the horizontal and vertical foundations of freedom as guaranteed by the separation of powers doctrine.
In fairness to the federal judicial branch, I must inform you that the United States Supreme Court recently expressed it's concerns regarding the current state of consent decrees and unanimously recognized and validated the concerns of state attorneys general as set forth in our Amicus Brief in Frew v. Hawkins. Although the court in that case denied Texas' effort to get out from under what had become an abusive decree and overreaching federal judicial control of state executive functions, it recognized as ''legitimate'' the state officials' concerns that ''enforcement of consent decrees can undermine the sovereign interests and accountability of state governments.'' Writing for the court, Justice Kennedy concluded that ''if not limited to reasonable and necessary implementations of federal law, remedies outlined in consent decrees involving state officeholders may improperly deprive future officials of their designated legislative and executive powers. They may also lead to federal court oversight of state programs for long periods of time even absent an ongoing violation of federal law.'' Frew, Id. 441. (Attached as Exhibit 2.) The court reminded judges who are enforcing federal consent decrees that,
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principles of federalism require that state officials with front-line responsibility for administering the program be given latitude and substantial discretion. The federal court must exercise its equitable powers to ensure that when the objects of the decree have been attained, responsibility for discharging the State's obligations is returned promptly to the State and its officials. As public servants, the officials of the State must be presumed to have a high degree of competence in deciding how best to discharge their governmental responsibilities. Id. at 442
We are encouraged at this direction given to federal judges. If they follow that direction, principles of federalism and separation of powers will be preserved. Unfortunately, those directions were stated in dictum and do not carry the weight of the law on the matter. I therefore urge the Congress of the United States to codify into law the intent of the Court's dictum by enacting the very reasonable protections set forth in H.R. 1229. By establishing reasonable time limits on decrees, focusing the burden of proof for extending decrees to the plaintiff, and limiting the compensation and term of special masters, Congress would do much to ensure the healthy balance of power between branches and layers of governments.
Please understand that while every consent decree arises out of litigation over state implementation of federal programs, I am not here to challenge or pass judgment on your authority to enact laws that have launched hundreds of federal agency regulations imposing thousands of court enforceable mandates on state and local government. Many of those laws were enacted with the support and encouragement of state and local elected officials. I do remind you, however, that, as stated by Professors Ross Sandler and David Schoenbrod in their New York Law School Law Review article entitled The Supreme Court, Democracy and Institutional Reform Litigation,
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''given the number and specificity of these mandates and their tendency to set aspirational standards for state and local government, it is no great trick for private advocates to discover some aspect of a large state or local program that falls short, be it Medicaid, special education, environmental protection, or foster care.'' 49 N.Y.L. Sch. L. Rev. 915, 926.(Attached as Exhibit 3.)
State and local officials, in responding to many of those legal challenges, have found it advantageous to settle rather that litigate, and to agree to federal judicial oversight of the settlement agreement. The problem we are asking you to take a role in remedying is in the increasing propensity of federal judges to extend the agreements beyond the requirements and terms agreed by the parties, and to impose duties and expenditures upon the states that go well beyond requirements not only of the settlement agreement but also beyond those imposed by the federal law that created the program. As stated by Professors Sandler and Schoenbrod,
Plaintiffs' lawyers can use the threat to litigate to exact new obligations. Decrees that begin at fifty or eighty pages grow in length to hundreds and even thousands of pages, and thus become increasingly difficult to escape . . . Prison cases, it is not too much of an exaggeration to say, may start by challenging brutality and end with decrees specifying the square footage of cells, the temperature of food in the dining room, and the availability of television and movies. Id. at 928.
DAVID C.A Utah Case Study
Page 81 PREV PAGE TOP OF DOC Allow me to share with you a case we have been dealing with in Utah for over a decade that clearly illustrates my point. In 1993, the National Center for Youth Law in Oakland, California brought a class action lawsuit on behalf of children against the Governor and other officials of the State of Utah, alleging federal constitutional and statutory violations in the operation of Utah's child welfare system. In recognition of the need for improvements, the Utah Legislature passed the Child Welfare Reform Act effective July 1, 1994. The Act codified many federal statutory requirements and provisions and established stringent new time limits and standards. The parties thereafter entered into a settlement agreement that included many of the provisions of the new law, and imposed 93 substantive requirements on Utah, including the duty to investigate reports of child abuse or neglect within specific deadlines; provide placement support services for foster parents; and ensure that foster children attend school and receive medical and dental treatment. The agreement was incorporated into a final Consent Decree order signed by the district court on August 29, 1994. By agreement, the decree was to terminate on August 29, 1998. Termination was expressly not made subject to Utah achieving any set degree of compliance by the end of the four-year period. There was nothing in the agreement that would allow the parties, or the court, to modify or extend the end date for any reason.
The State of Utah undertook extraordinary efforts to improve our childcare system and to meet our part of the agreement. Nevertheless (as is sadly too often the case,) the plaintiffs weren't satisfied with their interpretation of progress, and brought an action two years into the decree asking the federal judge to order that Utah had acted in bad faith and to appoint a receiver to take over the entire Division of Child and Family Services. In denying those requests, U.S. District Court Judge David Winder praised the State's efforts and noted the State's infusion of large amounts of human and financial resources into the Utah child protection system; its training of staff and foster parents; and its reorganization of relevant State agencies. In fact, the Utah Legislature increased funding to DCFS by 108% ($49 million to $102 million) from 1994 to 1997 that resulted in a 49% increase in supervisors, a 60% increase in caseworkers, a 49% increase in support staff and the hiring of 42 new contract case workers! Still, in recognition of the difficult task at hand, Judge Winder cautioned, ''The problems of child welfare are very complex. Defendant's task is large, and the recognition that to effectuate change requires time reflects no more than a healthy sense of realism.'' Unfortunately, the wall of separation between branches of government and between federal and state sovereignty began to crumble from that point on.
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During the next fourteen months of the decree, the appointed ''monitoring panel'' did not issue any new compliance reports and plaintiffs did not seek any more enforcement assistance from the federal court. But just four months prior to the agreed upon mandatory termination date, the panel, for the first time, morphed the 93 agreed provisions into 316 items and arbitrarily found that the State had only met 20% of these new requirements. A week later the plaintiffs filed a motion to extend the term of the decree. A new federal judge had since been appointed, and in reviewing the facts, stated that she found it ''hard to imagine that [the increases have] actually led to a 5% decline in child welfare as the panel report suggests.'' She denied the motion to extend, but stated her opinion that the agreement had ''failed.''
Just two weeks before the termination of the decree, plaintiffs asked the court to modify the agreement and order and approve and brand new Comprehensive Plan. In October of 1999, more than a year after the consent decree terminated by its own provisions, the judge stated: ''It appears to me that I will be keeping jurisdiction until I am told by the monitor that it is fine for me to get out.'' Four days later she granted plaintiff's motion and ordered Utah to comply with the new plan indefinitely. We appealed to the Tenth Circuit which affirmed the decision finding the federal court had the ''inherent equitable power to modify'' an unlitigated consent decree and, therefore, in effect held that a federal court could substitute its judgment for that of the parties to an agreement and change any provision of that agreement even over the State's objection.
In 2001 the U.S. Supreme Court denied our Petition for Cert. In 2003 the federal judge, who now appears to be acting not only a state executive but also a state legislator, ordered Utah to comply with the new plan requiring additional funding, training, and sufficient appropriation to hire fifty new employees by DCFS. And so it goes.
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During the 2004 and 2005 legislative sessions, dozens of bill were filed to amend the laws relating to child protection issues in response from public outcry that the pendulum had swung the other direction and children were being removed too soon and parental rights were being violated. Most of the bills did not pass, partly out of concern by the legislature that the federal judge would find those changes to further violate the court's plan and keep Utah's child welfare system under the federal ''thumb'' for more years. There is a strong sentiment in Utah that it is not state elected officials, but an unelected, lifetime appointed federal judge who controls Utah's child welfare system.
The federal judge in the David C. case has not yet taken the opportunity to follow the advice of the Supreme Court stated in dictum in Frew, that,
A State, in the ordinary course, depends upon successor officials, both appointed and elected, to bring new insights and solutions to problems of allocating revenues and resources. The basic obligations of federal law may remain the same, but the precise manner of their discharge may not. If the State establishes reason to modify the decree, the court should make the necessary changes; where it has not done so, however, the decree should be enforced according to its terms.
We must now look to Congress to give life and the force of law to the ''hopes'' of the Supreme Court as to how judges will recognize the fundamental requirements of separation and federalism. As stated by Professors Sandler and Schoenbrod,
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Still it will be hard for judges to follow the guidance of Frew. The way in which modification motions usually present themselves appear to call for a toughness by the judge not demanded at the time of the initial consent. In the initial negotiations, every effort is made to reach agreement to avoid litigation. Later, judicial flexibility disappears and in its place appears a hardness and desire to hold the defendants' feet to the fire. As former federal judge Marvin Frankel said concerning his role as a special master at the beginning of an institutional reform case involving special education, 'My job was to get an agreement,' because in complex cases, 'you rely on the parties to work it out.' But Special Master Frankel was much less flexible three years into the case when the consent decree's complex plan for evaluating, placing, and teaching 100,000 children with special needs proved difficult, costly, and largely unworkable, and produced many unwanted side effects. He then wrote that '[t]he time has come, it is now believed, for defendants either to comply with the judgments or to confront the familiar consequences of noncompliance . . . Demanding respect for their expertise, defendants ought to get it. Promising compliance, they ought to achieve it or face contempt charges.' The Frew dictum, made in a context of a motion for contempt, speaks to this reality by instructing judges and litigants that they are not to forget the values associated with local democracy and flexibility, nor the difficult reality or costs of social change. Judges walk a fine line when affirmatively dictating how government will deliver its services. The Frew dictum, if followed, shifts the judicial balance toward democratic values and away from contractual rigidity. The Supreme Court, Democracy, and Institutional Reform Litigation, supra, at page 929.
Once again, let me thank you for considering a law that would put reasonable limitations on the ability of federal judges to supplant the authority of state and local executive and legislative officials and thereby, in the words of Sandler and Schoenbrod, ''create rights rather than enforce them.''
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PREPARED STATEMENT ON THE NEGATIVE IMPACT OF THE PROPOSED LEGISLATION (S. 489, H.R. 1229) ON THE TRANSIT DEPENDENT OF LOS ANGELES FROM THE LOS ANGELES-BASED LABOR/COMMUNITY STRATEGY CENTER AND BUS RIDER UNION (LCSC/BRU)
The Los Angeles based Labor/Community Strategy Center and Bus Riders Union (LCSC/BRU) is the lead plaintiff in a class action lawsuit, which resulted in a consent decree to massively improve the Los Angeles bus system, brought by the NAACP Legal Defense and Educational Fund (LDF) against the Metropolitan Transportation Authority under Title VI of the 1964 Civil Rights Act. After more than a decade of work preparing litigation, negotiating a settlement, and enforcing its terms, we understand the critical importance of consent decrees as one of the few legal tools we have to try to protect and enforce hard won civil rights in those cases where a government agency does not voluntarily do so itself.
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The consent decree we signed with the Los Angeles MTA has resulted in significant improvements for the transit dependentdesigned to remedy years of inequities in the allocation of resources within L.A.'s transit systemsince it was signed in 1996. In our original suit, the LCSC/BRU charged the MTA with establishing a separate and unequal mass transportation system. MTA was allocating the lion's share of public money to high cost-overrun rail construction projects designed to serve more affluent, and more often white, riders. This came at the expense of more than 90% of MTA riders who depend on the bus system, and who are more than 80% Black, Latino, Asian/Pacific Islander and profoundly poor.
To remedy this inequity, the LCSC/BRU-MTA consent decree makes the L.A. bus system the priority. Specifically, the decree mandates low fares, massively reduced bus overcrowding and new service to improve access to health care, education and job centers for bus riders through the reallocation of funds from other programs outside the bus system. Over the past 8 years, our work to enforce the terms of the decree has already achieved:
1) the replacement of 2,000 old, mostly diesel, buses with new, clean fuel, compressed natural gas busesresulting in a cleaner, more reliable bus fleet;
2) the expansion of the bus fleet by approximately 350 buses to reduce massive overcrowdingresulting in markedly improved conditions for bus riders, including less overcrowding and shorter wait and transfer times;
3) no fare increase for a 7 year period.
Page 87 PREV PAGE TOP OF DOC Though MTA is frequently frustrated with having to fulfill the contract they signed, and in fact has stalled, fought our claims, and appealed every step of the way, even the agency ultimately admitted that the buses ''are worth every penny'' and have plastered Los Angeles with an advertising campaign proclaiming ''Things Are Getting Better on the Bus.''
Senator Alexander says that the consent decree has ''forced the Metropolitan Transit Authority [sic] to spend 47 percent of its budget on city busesleaving just over half the budget to pay for all the rest of the transportation needs of the city of Los Angeles.'' Yet, a 47% allocation for 90% of the agency's ridership is hardly overspending on bus ridersimagine the administration of a 90% Black school district spending only 47% of its funds on Black children!
If the proposed legislation passes, consent decrees will rarely if ever be signed, thereby effectively cutting off this important legal tool designed to protect the rights of historically disenfranchised groups. Before signing our consent decree in 1996, the Los Angeles MTA was raiding funds from the inner city bus sysetm to feed their costly train and suburban rail projects. If this had been allowed to continue, the overwhelmingly working class and poor Black, Latino, and Asian Pacific Islander bus riding class would have seen their mobility and access to jobs, hospitals, and other crucial services go from already-bad to even-worse. The MTA was violating the civil rights of bus riders, and it took the signing of a consent decree to hold the MTA, a $3 billion agency, accountable.
ARTICLE ENTITLED ''BREAKING THE DEAL,'' BY TIMOTHY STOLTZFUS JOST, LEGAL TIMES
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LETTER FROM WILLIAM TAYLOR, CHAIRMAN, CITIZENS' COMMISSION ON CIVIL RIGHTS, AND VICE CHAIR, LEADERSHIP CONFERENCE ON CIVIL RIGHTS (LCCR), TO THE UNITED STATES SENATE
ARTICLE ENTITLED ''SUNSET FOR CONSENT DECREES,'' THE WASHINGTON POST, WRITTEN BY SIMON LAZARUS, PUBLIC POLICY COUNSEL, NATIONAL SENIOR CITIZENS LAW CENTER
LETTER FROM BARBARA B. KENNELLY, CHAIR, LEADERSHIP COUNCIL OF AGING ORGANIZATIONS (LCAO), et al., to the Honorable John Conyers, Jr., a Representative in Congress from the State of Michigan, and Ranking Member, Committee on the Judiciary
LETTER FROM THE LEADERSHIP CONFERENCE ON CIVIL RIGHTS (LCCR)
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LEGAL CASE SUBMITTED BY THE HONORABLE LAMAR SMITH, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF TEXAS, AND CHAIRMAN, SUBCOMMITTEE ON COURTS, THE INTERNET, AND INTELLECTUAL PROPERTY
LETTER FROM MARCIA ROBINSON LOWRY, FOUNDER AND EXECUTIVE DIRECTOR, CHILDREN'S RIGHTS
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LETTER TO THE SENATE AND HOUSE IN OPPOSITION TO THE ALEXANDER-BLUNT LEGISLATION
PREPARED STATEMENT OF THE CONSERVATION LAW FOUNDATION (CLF)
The Conservation Law Foundation (CLF), New England's foremost regional environmental advocacy group, strongly opposes the proposed Federal Consent Decree Fairness Act. CLF has a long history of protecting New England's communities and environment by using law, economics, and science to create innovative strategies to conserve natural resources and protect public health. Long term consent decrees have been a critical tool in ensuring environmental progress in New England.
CLF has entered into several long term consent decrees that have resulted in major environmental gains. One notable example is the cleanup of the Boston Harbor. In U.S. v. Metropolitan District Commission and its companion case Conservation Law Foundation v. Metropolitan District Commission, the United States and the Conservation Law Foundation sued the State of Massachusetts under the Clean Water Act to stop sewage discharges to the Boston Harbor. The parties to that case signed a consent decree that initiated a large-scale infrastructure improvement project that is scheduled for completion in 2015, which is 29 years after the initial project schedule was ordered. Without a predictable, long term enforceable schedule, the cleanup of the Boston Harbor would not have been successful.
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Likewise, in Conservation Law Foundation v. Fall River, the court found that the City of Fall River, Massachusetts was in violation of the Clean Water Act due to unauthorized combined sewer overflow (CSO) discharges. In 1992, the court ordered the City to design and implement a CSO facilities plan, which is scheduled to be complete in 2018. This project has drastically reduced CSO discharges and immeasurably improved water quality for the citizens of Fall River.
In complex environmental litigation, a consent decree is very often the only way to ensure consistent progress on a complex project subject to pressure from various political interests. Premature curtailment of such consent decrees would result in significant public expenditures with little or no environmental benefit. The uncertainty inherent in the consent decrees envisioned by the Federal Consent Decree Fairness Act would compromise future innovative solutions to clean up our air, land, and waterways. In sum, this Act would undermine CLF's ability to ensure compliance with federal and state laws and protect New England's environment as well as the health and well-being of its residents.
PREPARED STATEMENT OF BARBARA LOTT-HOLLAND, A TRANSIT-DEPENDENT BUS RIDER IN LOS ANGELES, AND MEMBER AND CO-CHAIR, BUS RIDERS UNION (BRU)
My name is Barbara Lott-Holland and I am a transit-dependent bus rider in Los Angeles. I am also a member and co-chair of the Bus Riders Union, which in 1996 signed a Consent Decree with the MTA. This Consent Decree was signed after we sued the MTA for transit racism under Title VI of the 1964 Civil Rights Act. There are several components of the Consent Decree but the overall objective of it is to require the MTA to improve the bus system and therefore increase the county-wide mobility for LA's transit dependent.
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Before we signed the Consent Decree, conditions of the bus system were terrible and only getting worse. Lines were so overcrowded, that we would be packed in like sardinessometimes as many as 50 people standing. Buses would frequently pass you by because they were so overcrowded. Buses would break down all the time because they were so old. You would wait forever at a bus stopsometimes more than an hourtrying to get to work, to school, to pick up your kids.
Riding on an overcrowded bus is really dangerous. Being a women especially we are more likely to be robbed and pressed up against someone and sexually violated. If there is an accident or the bus stops short, and there are so many people standing, there is nothing to hold to so people can fall and get really hurt. When it's really crowded, you can't always get to the exit in time. Mental anguish is high when buses are overcrowded and continuously late. You always worry about being late to work and possibly fired. If there are more buses, it means less overcrowding and also that they will come with greater frequency, which means less stress and most importantly, more opportunities for jobs, housing education, health as well as recreational because you know you can there more easily.
Because of the poor condition of the transportation system, I have to choose jobs and housing based on transportation access. This means I have had to limit which jobs I can even apply for, even if it means taking a job for less pay. The poor transportation system also means you have to spend a lot of your day getting to and from work, time that is not compensated for and time that could be spent with your family. Many domestic workers, for example, travel 23 hours one-way. My aunt was a domestic and she had to wake up much earlier in order to catch the bus to her job, because the next bus, which comes an hour later, will get her there too late.
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As the MTA announces, ''things are getting better on the bus.'' Some of the lines I ride, like the 204, are noticeably less crowded than they were before. The frequency of some lines is also a lot greater. By having the Rapid buses, you are able to get from places faster. Also, for seven years, the fares did not increase, which for us bus riders, who are mostly poor and working class, was very important.
Don't get me wrong, there is still A LOT of improvements that need to happenovercrowding persists, many lines stop running after 9 pm, there are still very long headways on many lines, and so on. If the MTA would simply uphold the Consent Decree to its fullest, we would have the first class bus system we deserve.
Buses are what move people in Los Angeles. The MTA put billions of dollars into the rail system, but these rail lines barely take you anywhere! LA is so big, that you have to go miles and miles. Whenever I do take the rail, I have to get off and get on a bus! We need more buses, not fewer, and the MTA has a moral and legal obligation to provide bus service for the transit dependent.
This consent decree has been really important. It has given us a very important legal tool to hold the MTA accountable to its responsibility to provide good bus service for the transit dependent. It has given us bus riders a tool to make the MTA honor its legal and moral responsibilities to provide transportation for the transit dependent.
Since the MTA signed the Consent Decree, they have never wanted to honor it. For the first four years of it, they didn't buy one single bus to reduce overcrowding. We've had to work in making the Consent Decree actually result in material changes for people. What's been really important is the length of the Consent Decree. The purpose of a Consent Decree is to ensure long-lasting changes. You want to make sure that whatever improvements are made are institutionalized, not just short-term. If S. 489/H.R. 1229 passes, and the Consent Decree had expired after four years, we wouldn't have gotten anything. We would have had to go to file for an extension of the Consent Decree, which would have meant an exhaustion of our time since the burden of proof would have been on us.
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Before the Consent Decree, the average person didn't feel they could get anything from the MTA. It is a multi-billion dollar agency with a lot of power. People felt they had no power to fight for their right to bus service. For the working and poor, majority Black, Latino, and Asian bus riders, the improvements in bus service that have come out of the Consent Decree have been very important in providing increased access to school, jobs, health care, and ensuring our civil right to public transportation.