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Opposition to the Federal Consent Decree Fairness ActAdvocacy Letter - 04/12/05 Source: Leadership Conference on Civil Rights and other organizations
On behalf of the undersigned organizations, we write to urge you to oppose the Federal Consent Decree Fairness Act (), If enacted, this bill would eviscerate a crucial means of resolving meritorious claims involving state and local governments without expensive and time-consuming litigation. In addition, the proposed legislation would impose grossly unfair burdens on the federal government, the federal courts, and beneficiaries of a wide array of federal protections in areas such as environmental, consumer, health care, and civil rights laws. On behalf of the undersigned organizations, we write to urge you to oppose the Federal Consent Decree Fairness Act (S. 489/ H.R.1229), recently introduced by Senator Lamar Alexander (R-TN) and Representative Roy Blunt (R-MO). If enacted, this bill would eviscerate a crucial means of resolving meritorious claims involving state and local governments without expensive and time-consuming litigation. In addition, the proposed legislation would impose grossly unfair burdens on the federal government, the federal courts, and beneficiaries of a wide array of federal protections in areas such as environmental, consumer, health care, and civil rights laws. The Proposed Legislation Would Virtually Eliminate Consent Decrees Involving State and Local GovernmentsThe Federal Consent Decree Fairness Act allows a state or local government to file a motion to vacate or modify a consent decree four years after the decree is entered or after the election of a new state or local official. Under the legislation, a consent decree will lapse if the federal court overseeing the decree does not rule on this issue within 90 days. The bill’s language creates an ominous situation for federal and private plaintiffs, who could be required to re-prove their entire case every four years or every time the voters elect a new administration. In addition, the 90-day period for a court to issue a ruling would place undue pressure on an already overburdened federal judicial system. The legislation would also punish plaintiffs unjustly if a federal court is unable to issue a decision within the 90-day period. The proposed bill would eliminate the value and effectiveness of consent decrees by restricting the ability of the litigating parties to enter into settlement agreements. Under the proposed legislation, at the time a defendant moves for dissolution or modification of a consent decree, a plaintiff can keep the decree in place only by showing that his or her federal rights continue to be violated. This burden of proof provision—which reverses decades of existing law that places the burden on the defendants—creates an additional disincentive for plaintiffs to settle because plaintiffs, knowing that they will be effectively forced to prove their case at trial on the merits after either four years or a change in administration, will justifiably question what benefits they will receive through consent decrees. The proposed bill also provides defendants with a new incentive to “run out the clock.” Rather than encouraging litigants to enter into voluntary, enforceable settlements, the bill almost compels plaintiffs to go to trial so that they may obtain litigated judgments that cannot be so easily modified. By creating disincentives to settle and forcing matters to contested litigation, the bill will further clog federal courts. Moreover, with many consent decrees, a four-year time limit is a woefully inadequate period to correct the history of government practices or policies that created the harm. In many cases, the ability to fulfill the terms of a consent decree within the artificial time period imposed by the bill may either be impossible to achieve, or, require drastic steps that would not be desirable to the defendants or the plaintiffs. The Proposed Legislation Purports to Fix a Problem That Does Not ExistExisting 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. A party need only show that a significant unanticipated change in circumstances warrants revision of the decree. Examples of changed circumstances include a change in underlying law, when the goals of the consent decree have been achieved or when a consent decree proves to be detrimental to the public interest. S. 489/H.R. 1229 inappropriately seeks to overturn Frew v. Hawkins, a recent unanimous decision by the U.S. Supreme Court that affirms flexible, common-sense standards for administering consent decrees involving state and local governments.1 In Frew, the U.S. Supreme Court noted, “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.”2 The Supreme Court emphasized in Frew that state and local governments have a court remedy that allows them to modify or terminate a consent decree when a significant change in circumstances has occurred. The Proposed Legislation Would Affect a Wide Range of Litigation and Have a Damaging Effect on Many CommunitiesThe bill would affect most litigation brought by the U.S. Department of Justice (DOJ) against state and local governments, as well as litigation brought by private parties. For example, it would allow local governments to avoid implementation of consent decrees that govern long-standing and productive efforts by the DOJ to bring water, sewage, and air pollution control systems into compliance with federal environmental standards. The bill would complicate current and future efforts to ensure that billions of dollars in federal funds for transportation, economic development, and other programs are spent in conformance with applicable requirements specified by Congress. Enforcement of the Voting Rights Act would be very burdensome. The bill would also impact discrimination cases involving employment, housing, health care, state and local hospitals, universities, or other institutions that receive federal Title VI and Title IX funding and adversely affect agreements that have been protecting children’s health, safety, and education for years. Indeed, the bill would negatively affect a wide spectrum of cases brought to secure federal rights in federal court against state and local governments. The bill, if enacted, would potentially result in the dissolution of the following constructive consent decrees:
Contrary to views of the bill’s supporters, consent decrees are an efficient means for willing parties to enter into a carefully negotiated agreement without litigation. Consent decrees reflect the litigating parties’ reasoned judgment that a consensual resolution is preferable to full-blown litigation. The Federal Consent Decree Act misrepresents the consensual nature of consent decrees and the well-established legal precedent on the practicality and efficiency of this settlement tool. Consistent with this precedent, federal courts currently apply a reasonable and flexible standard when asked to modify or dissolve consent decrees. Congress should not enact legislation simply to correct what some perceive as a few onerous consent decrees. Therefore, we urge you to oppose this bill and any similar amendments. Sincerely, David Certner, Director of Federal Affairs Benjamin Wolf, Associate Legal Director Ramona Ripston, Executive Director Janis Spire, Executive Director Nan Aron, President Helena R. Berger, Chief Operating Officer Laura W. Murphy, Director Scott Barstow, Director of Public Policy and Legislation Barry Lynn, Executive Director Janna Starr, Director of Disability Rights, Family and Technology Policy Lewis Golinker, Esq., Director Robert Bernstein, Ph.D., Executive Director Tom Gerety, Executive Director & Brennan Center Professor Robin G. Steinberg, Executive Director Terri L. Stangl, Executive Director Patricia B. Nemore, Senior Policy Attorney Robert C. Fellmeth, Executive Director Miriam Krinsky, Executive Director Susan L. Gates, General Counsel Marcia Robinson Lowry, Executive Director Shirley Bergert, Public Benefits Task Force Director Philip Warburg, President Philip Fornaci, Executive Director Rodger Schlickeisen, President James Cox, Legislative Counsel Craig B. Futterman, Associate Clinical Professor of Law Alexandra K. Finucane, Esq.,VP of Legal and Government Affairs Robert Sable Greg Bass , Litigation Director Anne Erickson, Executive Director Jamie Fellner, Director U.S. Program Sara Weinstein, Low-income Access Project Coordinator Robert Rubin, Legal Director Barbara Arnwine, Executive Director Wade Henderson, Executive Director Lisalyn R. Jacobs, Vice President for Government Relations Kenneth Schorr, Executive Director Michael Ferrera, Executive Director Barbara Lott-Holland, Co-Chair Eric Mann, Director Cyn Yamashiro, Director Gary Weston, Executive Director Allan Rodgers, Executive Director James Preis, Executive Director Ann Marie Tallman, President & General Counsel Hilary O. Shelton, Director Karen K. Narasaki, President and Executive Director Kathleen H. McGinley, Ph.D., Deputy Executive Director for Public Policy National Association of Protection and Advocacy Systems Elizabeth J Clark, PhD, ACSW, Executive Director Patrick Gardner, Deputy Director John Lancaster, Executive Director Janet Murguia, President and CEO Marissa M. Tirona, Program Director Shanna L. Smith, President and CEO Laurence Lavin, Director Michael Avery, President Don Saunders, Director of Civil Legal Services Debra Ness, President Simon Lazarus, Public Policy Counsel Stephanie J. Jones, Executive Director Dina Lassow, Senior Counsel Karen Wayland, Legislative Director Patricia Kaplan, Executive Director Ralph G. Neas, President Philip Tegeler, Executive Director Don Specter, Director Paul Wright, Editor Karen L. Murtagh-Monks, Litigation Coordinator Joan Claybrook, President Debra Gardner, Legal Director Paul Freese, Jr., Director of Litigation & Advocacy Cesar Perales, Executive Director Rabbi David Saperstein, Director and Counsel Meredith Dodson, Director of Domestic campaigns J. Richard Cohen, President & CEO Javier N. Maldonado, Executive Director Scott Cummings, Acting Professor of Law Jeremy Chwat, Director of Public Policy Belinda Belcher, Executive Director Helen Gonzales, Policy Director Deborah Stein, Director of Federal Policy and Advocacy Timothy Stoltzfus Jost, Robert L. Willett Family Professor Eve Hill, Executive Director Melissa Josephs, Director of Equal Opportunity Policy Kimberly Lewis, Staff Attorney [1]Frew v. Hawkins, 540 U.S. 431 (2004). [2]Id. at 442. [3](C.D. Cal. - no case number given), at http://www.lapdonline.org/pdf_files/boi/final_consent_decree.pdf. [4](D.N.J.) (consent decree at http://www.usdoj.gov/crt/split/documents/split_mercer_settle_2_17_05.pdf). [5]United States and League of Women Voters of New Orleans, et al. v. Sewerage & Water Board of New Orleans, et al., Civil Action No. 93-3212, 63 Fed. Reg. 26825-26826 (May 8, 1998). |
