N.Y. Unbound
March 15, 2003

by Ross Sandler & David Schoembrod

LAWYERS representing New York City and the homeless were rightfully proud on Jan. 17, when they announced a deal that could end the 18-year-old lawsuit over the rights of homeless families: The deal could produce better conditions for the families.

Better still, if it succeeds, it may well signal a city strategy for ending the dozens of other court decrees that dictate how the city runs a broad array of programs.

Homeless-family litigation began in 1984. There was a consensus that New York City should do more for the homeless, but no consensus on how the city should do it. That was the crux of the years-long legal battle between the city and homeless advocates. Under the court order, the city has tried and abandoned: housing families in hotels, letting homeless families jump the line for public housing and converting inappropriate facilities like a former jail into a temporary shelter.

ALONG the way, the judge came within a whisker of throwing Mayor David N. Dinkins' first deputy mayor and homeless commissioner into jail. But party and personality is not the issue: The judge has threatened similar, if less draconian, punishments against Mayors Ed Koch, Rudy Giuliani and Mike Bloomberg.

The homeless settlement is patterned on the successful termination of New York City's foster-care litigation, which finally ended in 2000 after 27 years in the courts.

Problems with foster care became public with the murder in 1995 of 5-year-old Elisa Izquierdo by her mother. Plaintiffs' attorneys demanded a direct court takeover over of the foster-care system. The city countered with its own plan for an overhaul of foster care. Commissioner Nicholas Scoppetta, whom Mayor Rudolph Giuliani appointed to head the department, put it simply: "Court supervision is no way to reform an agency."

SCOPPETTA developed a comprehensive plan, refused to give in to the plaintiffs' attorneys and, with greatly enhanced resources, convinced the court to let the city manage its own program without side-saddle control from judges, lawyers and advocates.

The result? Two years later the city had a substantially improved program that was praised after independent evaluation. The evaluation recognized that problems still existed, but there was also judicial willingness to recognize the city's good faith efforts and terminate court supervision.

The Bloomberg administration, following a similar strategy for the 18-year-old homeless-families court order, used its first year to develop a long-term plan for homeless families and along the way resisted plaintiffs' attorneys demands. Meanwhile, the judge in the case, Helen Freedman, had also come under public attack for second-guessing city officials, while the monitor whom she had appointed to help resolve issues was forced to resign. These events gave the city enough leeway to press for a settlement.

The settlement restores control of homeless-family policy to the city. Plaintiffs' attorneys will, for two years, be prohibited from rushing into court to challenge the city's efforts. That's vital: The city has a good new plan, but managing even a good plan calls for continued innovation, experimentation and even improvisation - all of which typically spark court challenges by advocates.

At the end of the two years, the parties will evaluate what has been accomplished with an eye toward ending litigation altogether. This is almost, but not as good, as the foster-care settlement, which flatly guaranteed an end to judicial supervision if the city worked in good faith.

THE city needs to use its experience in ending these two court orders as a template for modifying and eventually ending other decrees that hamstring managerial and budgetary discretion.

Consider water and sewer projects: Advocates and regulators have unleashed a torrent of court and administrative orders that require the city to divert its limited financial and engineering resources away from essential projects to fund others - ones that are useful, but far less urgent.

For example, the city's being compelled to spend $1.4 billion to build huge tanks to hold rainwater as a way to prevent unwanted street runoff from getting into the harbor during rainstorms. This spending will only marginally improve the quality of waters that surround the city - a desirable goal, but not nearly as important as completing the third water tunnel, insuring dam safety, protecting the Catskill watershed, upgrading the Newtown Creek treatment facility and replacing ancient water pipes before they burst.

THEN, too, the city's entire water system is now at risk: There's a leak in the Delaware Aqueduct tunnel, 650 feet below ground near Newberg. The aqueduct carries 80 percent of the city's water - but for several years has been leaking up to 30 million gallons of water a day. In a worst case, the repairs could cost several billion dollars.

These projects total in excess of $6 billion to $10 billion. They simply can't all go forward at the same time - yet court orders prevent city managers from weighing the trade-offs between marginally useful programs and vital ones. Instead, every mandated project trumps every non-mandated project, even those crucial to the city's long-term survival.

The unelected judges, advocates and regulators who devise and enforce these orders only focus on a single project at a time. City officials - who must evaluate the health of the entire system - are powerless.

In other words, democratic accountability has been undermined: No one, not the advocates, not the regulators, not the courts, can be held responsible for having forced the city into expensive projects that deserve less priority than those needed to keep the water flowing and the dams standing.

One immediate result of all this: steadily increasing water and sewer fees for city residents. Over the last six years, the fee for the average apartment dweller has increased from $332 to $424, with another increase to $465 expected in July.

THE list of ongoing programs micromanaged by court orders is staggering. Prisons, schools, welfare and more are all affected. Rigid court orders produce sacred cows at budget time, including mental-health care for released prisoners, school time at Rikers Island, bilingual education, high school discipline, distribution of food stamps, etc.

The goals are worthy, but the ability of courts to achieve them is weak. The only way to achieve success in such complex issues is for elected officials to work freely in tandem with the support of the public. Indeed, even when officials and the public support the goals mandated by court orders, as is usually the case, the court's intrusion can frustrate progress by making even harder the always difficult job of managing public programs.

Successful management requires that city officials adapt programs to changing circumstances and the lessons of experience, but court orders dictate that programs be managed according to the minutiae of long-outdated plans.

Successful management also requires that city officials be able to lead their personnel to produce better results, but court orders take effective control away from city officials and divide it among plaintiffs' attorneys and court-appointed functionaries.

IT is time for the public and political leaders to realize that wishing for the courts to achieve worthy social goals is wishing for failure. Our best chance of achieving our highest public aspirations is through the messy give and take of politics - because success at achieving positive goals comes only with public support and the good management that courts cannot supply.

Ross Sandler and David Schoenbrod are professors at New York Law School and authors of "Democracy by Decree: What Happens When Courts Run Government" (Yale U. Press).

©2003 New York Post