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Washington-In its first argument of the new term, the Supreme Court will examine the power of federal judges to hold state officials to their promises in federal consent decrees despite claims of sovereign immunity. It’s not the sexiest of three pending federalism cases over 11th Amendment immunity from private suits. But, court scholars say, it has potentially enormous practical importance. Frew v. Hawkins, No. 02-628. Stemming from a Texas class action, it challenges the power of federal courts to enforce their judgments, bringing to the fore many states’ unhappiness with long-running federal court supervision of state institutional reforms. The outcome could affect the ability of civil rights plaintiffs to force state officials to shoulder their responsibilities under federal laws. “At its core, the [Texas officials] are saying they can literally not comply with a court order and one they helped to frame and asked the district court to enter,” said David T. Goldberg of New York, who represents the American Civil Liberties Union (ACLU), the American Association of Retired Persons and other groups in an amicus brief opposing Texas’ position. “I don’t think the Supreme Court is going to be very receptive to that.” Texas Solicitor General Rafael E. Cruz argues to the high court that federal courts cannot enforce provisions of a state-signed consent decree that go beyond the requirements of the federal law involved. Federalism and separation of powers, he said, “ensure that federal courts cannot do what the district court has attempted, to use a consent decree to take over a state program and dictate its daily operation, freed in equity from the constraints of federal law.” The case began in 1993 when Linda Frew and several other poor mothers sued Texas and individual officials for failing to provide their children with health services under a federal-state Medicaid program. The district court certified a class of roughly 1.5 million Texas children. The judge dismissed the state as a defendant, saying states are immune from private suits under the 11th Amendment. The officials were kept as defendants because the Supreme Court announced an exception to 11th Amendment immunity in Ex parte Young, 209 U.S. 123 (1908), which permits suits against state officials to enjoin conduct that violates federal law. After two years of negotiations, the parties proposed a consent decree. The judge approved it in 1996. In 1998, Frew and others filed an action to enforce the decree, which they alleged the state had violated. In response, the state said there had been vast improvement in the services offered to indigent children. It also argued that the 11th Amendment barred enforcement of the decree if the violations involved provisions that went beyond the Medicaid law’s requirements. The court ruled for Frew. Rejecting the 11th Amendment argument, it said it would “detract from the integrity of the court” to allow state officials “to avoid bargained-for obligations while receiving the benefit of escaping litigation and potential liability.” Texas appealed to the 5th U.S. Circuit Court of Appeals, which, in a unanimous decision written by Judge Thomas M. Reavley, agreed with the state. Reavley wrote that the trial judge incorrectly felt he was bound by the consent decree instead of the Medicaid law. He found that state officials had not voluntarily waived their immunity by seeking the entry of the consent decree. In the Supreme Court, the Frew class, represented by its original attorney, Susan Finkelstein Zinn, a solo practitioner from San Antonio, argues that state officials waived their immunity by their litigation conduct-that is, by voluntarily entering into the consent decree. Waiver of immunity by litigation conduct operates as an exception to the high court’s general rule that state immunity must be waived in a clear and explicit way. Zinn relies on, among other precedents, a recent high court decision finding a waiver when Georgia voluntarily removed a case from state to federal court. “The court has for years treated litigation conduct differently from other aspects of immunity,” Zinn said. The U.S. solicitor general, supporting Zinn, argues in an amicus brief that when a state voluntarily asks a court to determine its rights, it waives immunity. Asking a court to enter a consent decree is the same thing, and waiver encompasses not only the entry of the decree but also its enforcement, the government says. Zinn argues that the 5th Circuit was wrong to base enforcement of a decree on whether plaintiffs could prove a violation of the law the original suit sought to enforce. She said a court needs to look only at whether a violation was alleged. If a court can validly enter a consent decree, she and her supporters contend, it can validly enforce it. Texas’ Cruz argues that only the Texas Legislature can waive sovereign immunity. And under Ex parte Young, he said, federal courts have jurisdiction over state officials only to remedy ongoing violations of the law. “If federal law does not require it, a federal court may not order it,” he said. Michael Greve, director of the federalism project at the American Enterprise Institute, said the 5th Circuit’s standard for enforcing consent decrees is necessary to keep plaintiffs and state officials from collusively exceeding the requirements of statutes to protect the flow of federal funds into states. “You can’t permit that end-run,” he said. “It matters because they do this all the time.” “This is not a case of a judge issuing sweeping relief,” said the ACLU’s Goldberg. “It’s literally an order the state helped to frame, negotiate and propose.” He said case law lets states change decrees in light of changed circumstances. But many states have found that consent decrees become frozen, instead of being “dynamic” documents, said Utah Assistant Attorney General Joni Jones, who filed an amicus brief for 19 states supporting Texas. Under the 5th Circuit standard, she said, “There would be more of an inclination for both parties to come to the table to renegotiate provisions of institutional consent decrees.” Coyle’s e-mail address is [email protected].

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