Government by Decree: The High Cost of Letting Judges Make Policy

City governments have lost control over important policies and large portions of their budgets because state and federal courts are intervening in city policy.

Court orders are increasingly obligating city governments to provide services in areas such as foster care, homeless policy, education, prison management, and the environment, according to an article in City Journal, "Government by Decree," by Ross Sandler and David Schoenbrod.

The cumulative fiscal burden of court decrees can be staggering. A preliminary study by the Giuliani administration, for instance, shows that 26 percent of New York City's tax revenues go to pay for the ten largest decrees and mandates.

Judicial decrees bind city officials to policies that may be flawed and deprive them of the power to set their own priorities about how tax revenues are spent. While decrees are supposed to be lifted when the city complies, local governments rarely are able to achieve the sustained compliance that would wipe the slate clean.

Sandler and Schoenbrod propose six reforms to restore flexibility and democratic accountability to city government:

• All judicial decrees should have a definite ending date.
• The courts should solicit legislative assistance in designing remedies.
• Bar federal and state governments from imposing mandates for which local governments must pay.
• Be cautious in consenting: if there is any real issue about whether a city is in violation of the law, the city should go to trial, and if it loses, it should appeal.
• Open the enforcement of decrees to public scrutiny.
• Seek to modify existing decrees instead of just defending failure to comply.

Peter Salins
Research Director (212) 5997000

HOW THE COURTS GET INVOLVED IN CITY POLICY

The process by which courts become involved in city policy is simple enough: a lawyer or advocacy group brings a case against the city claiming that it has violated someone's rights. If the plaintiffs prove the violation, the court can impose a remedy of its own design. More frequently, city officials choose to negotiate a settlement with the plaintiffs and consent to the court entering a decree requiring the government to take specific actions.

The claim that a city has violated its citizens' rights is usually based on a federal or state statutory or regulatory mandate ordering it to accomplish certain goals. For instance, the federal government has ordered New York City to cease dumping sludge from a sewage treatment plant into the ocean, and the state has ordered the city to place homeless families in housing immediately upon request.

To ensure that their goals are met, the federal and state governments often write their statutory mandates so that plaintiffs, such as environmental groups or homeless people, can sue to enforce them. A city will often fight for years, but the plaintiffs frequently prevail, especially under mandates designed to make liability openandshut. Once it has been established that the city is liable for a violation, officials often choose to bargain for a consent order specifying a remedy that incorporates the best deal it can negotiate with the plaintiffs.

The final product of this process is a binding blueprint that channels a local government's budget and resources, overriding the political process by which such decisions are normally made. For instance, a city council might debate whether to spend limited capital funds to build schools or a sewage sludge treatment plant. But a court cannot engage in such a debate. Its order transforms a sludge plant from an option into a priority, placing it at the top of the budgetary list above what might otherwise be an equal or more urgent priority.

Even when a consent decree has unanticipated harmful consequences, it is very difficult for future administrations to undo the deal. Unless all the parties agree, or the city complies completely—neither of which is likely—the decree can be terminated entirely only by amending the underlying statute or constitutional provision. Even minor modifications must be negotiated with plaintiffs' attorneys first. Such inflexibility is not automatically justified on the basis that the decree protects rights. Consent decrees also frequently decide matters of policy, setting out in intricate detail how rights are to be implemented.

New York City's special education system, for instance, grew out of a 47page federal court order, Jose P. v. Ambach, a case brought under a 1975 federal law guaranteeing educational equality for the handicapped. Most observers agree the system, which has grown to include 13 percent of the city's students and absorb 22 percent of the education budget, is deeply flawed. It mislabels thousands of children, segregates many in deadend classes, and uses legions of psychologists and social workers to administer repetitive evaluations that accomplish little and cost a great deal. But the city and Board of Education can do little to change things because they are bound by the terms of the decree.

Another example of how decrees tie officials to flawed policies is Callahan v. Carey, the consent decree that grew out of a lawsuit brought by the Coalition for the Homeless, which requires New York City to provide free shelter for all homeless men. Since the late 1970s, when Callahan v. Carey was filed, the number of homeless single adults seeking shelter from the city has grown from about 2,000 to 7,000; the city spends between $18,000 and $20,000 sheltering each of them. Despite these expenditures, most observers agree conditions in the shelters are terrible. But the city's ability to make changes is constrained by the decree, which spells out the city's obligations in great detail, leaving officials little flexibility in implementing policy and allocating limited resources.

In sum, judicial decrees restrict choice, distort priorities, and frustrate reform. By binding future administrations, decrees prevent voters from changing policy through the normal means of voting out the incumbent, thus undermining democratic accountability.

Sandler and Schoenbrod propose the following six actions the courts, legislatures, and cities should take to achieve a balance between the rights of plaintiffs and the need for a flexible, politically accountable city government:

SIX STEPS TO REFORM

• Impose term limits on all judicial decrees. All consent decrees against cities should have a definite ending date. When the date is reached, the decree would end. The prior judgment of liability would endure, but the question of how to remedy the wrong would be reopened for further negotiation or litigation. How long a decree should last depends on the circumstances. Sandler and Schoenbrod propose that a decree end with the term (or terms) of the administration that consented to it, so that the policy choices it reflects would be subject to electoral validation. Plaintiffs should have to demonstrate that additional time beyond the electoral cycle is necessary.
• Solicit legislative assistance in designing remedies. Courts should use the authority they have to solicit legislative advice in designing remedies. Giving the state legislature time to legislate a remedy might produce three results. 1) If convinced the right is worth its cost, the legislature might actually fund a remedy. 2) The legislature might clarify, rescind, or reduce the right. 3) It might enact nothing. In the latter case, a judge might conclude that the legislature's unwillingness to help reduces the city's likelihood of successfully complying with an ambitious injunction. The judge could take that factor into account in defining remedies and establishing milestones.
• Bar federal and state governments from imposing mandates for which local governments must pay. Fourteen state constitutions currently have prohibitions against unfunded mandates. New York City should join with other municipalities in the state to encourage voters to approve a state constitutional convention in 1997, then use the convention to enact a prohibition on unfunded mandates.
• Be cautious in consenting. If there is any real issue about whether a city is in violation of the law, the city should go to trial, and if it loses, it should appeal. If a city loses on the issue of liability and the plaintiffs offer a decree that the city finds acceptable, the city should tell the court that it does not object to its entry, rather than affirmatively giving its consent. The difference is important: by not consenting, a city can more easily, under court rules, obtain a later modification to accommodate changing circumstances.
• Open the enforcement of decrees to public scrutiny. Once a judge signs a decree, enforcement becomes, in effect, the property of the plaintiffs' attorneys. But private attorneys and advocacy organizations, whatever their good intentions, should not have the power to control public policy in secret. The formulation and enforcement of decrees should be open for public participation. Courts should require public notice and open meetings, and formal participation by nonlitigants should be made easy.
• Seek to modify existing decrees rather than just defending failure to comply. Cities will have to show that unforeseen circumstances justify the requested modification. The plaintiffs will undoubtedly respond that the new circumstances do not warrant revision, and may argue that the city can simply put more resources into providing the benefits in question. To answer this argument, the city should ask judges to broaden their focus from the decree in the case before them to the cumulative burden of all the decrees against the city. The city should prepare a Consent Decree Cumulative Data Book to accompany its motions to modify existing decrees, detailing the number of decrees and mandates, their age and total cost, the other fiscal burdens that the city cannot avoid, and the administrative burdens and inflexibility imposed by the decrees. The book would demonstrate circumstances unforeseen when the older consent decrees were entered: for instance, that the city's fiscal crisis is no longer viewed as temporary, the decrees have lasted far longer than anticipated, and their cumulative effect undercuts the city's ability to meet future obligations.

Ross Sandler is a professor at New York Law School and director of its Center for New York City Law. He also served as commissioner of the New York City Department of Transportation and as an attorney for the Natural Resources Defense Council.

David Schoenbrod is a professor at New York Law School, a former attorney for the Natural Resources Defense Council, and the author of Power Without Responsibility: How Congress Abuses the Public Through Delegation.