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More than 90 civil rights and environmental groups have lined up to fight legislation that would require federal judges to reconsider consent decrees every four years if asked by state or local governments to vacate the deal. For the first time, the bill in Congress would impose a deadline on federal judges to act on a request to vacate a consent decree. If a judge fails to rule within 90 days of the request, the pact would be nullified. A hearing on the House version of the bill is expected this week. After decrees are written, “it is virtually impossible for government to get out from under them,” said Ross Sandler, a New York Law School professor and advisor to former New York Mayor Edward I. Koch. San Francisco civil rights attorney Robert Rubin countered, “That’s the appropriate price of violating the law; you may be subject to oversight of a federal court. “We view the role [of federal courts] as wholly constructive and it has made vast differences in the lives of people,” said Rubin, legal director of the Lawyers Committee for Civil Rights. Sandler’s assertions that consent decrees inhibit democracy and “allow a small clique of lawyers to begin running huge social programs in a covert way” helped inspire the Federal Consent Decree Fairness Act, S. 489, by Senator Lamar Alexander, a Tennessee Republican and a friend of Sandler. The bill was introduced in March. An April 12 letter to members of Congress opposing the law drew signatures from 90 groups, including nationally known civil liberties organizations representing seniors, children, the disabled, prisoners, environmental groups and a host of minority and women’s rights groups. Alexander, in a prepared statement, pointed to a Tennessee consent decree that barred the governor from scaling back benefits for 300,000 optional beneficiaries of the state Medicaid program-TennCare-to redirect the money to child health care, and a 30-year-old New York consent decree that mandated bilingual education for Hispanic children despite objections from some parents. Sandler, an environmental law specialist, said a 1990s New York consent decree negotiated with then Mayor David Dinkins changed the method of providing hot food to prisoners. Subsequent Mayor Rudolph Giuliani nullified the deal that was seen as an expensive process, but only after lengthy, costly litigation. The Pacific Research Institute, a conservative, San Francisco-based think tank, has reported that what it called the “misguided” efforts to integrate San Francisco city schools resulted in a 20-year consent decree that is still in force and has cost $500 million. It claims that the targeted student populations are no better off today. However, public interest lawyers cite their own success stories to counter the perception of consent decrees hamstringing elected officials. Peter Cohn, an attorney for the National Association for the Advancement of Colored People in the San Francisco schools case, said that the consent decree “dramatically transformed the poorest section of the city, increased opportunities to attend better schools and added an infusion of dollars for school improvements.” San Francisco agreed to a court-monitored consent decree in 1988 requiring it to diversify its all-male and nearly all-white fire department. The rocky road to adding women and minorities resulted in one of the most diverse fire departments in the country with 230 women and a third of the 1,800-member force minority. The original African-American plaintiff in that case went on to become the fire chief. Eva Paterson, president of The Equal Justice Society, represented plaintiffs in the fire department case. She called the proposed legislation “a disastrous move.” Benjamin Wolf, associate legal director of the American Civil Liberties Union of Illinois, said his state’s foster child program was one of the worst in the nation in the 1980s, but, with a consent decree and court monitoring in place, by the mid-1990s it led the United States in foster care and adoptions. “It is the gold standard,” Wolf said. “The consent decree actually works to protect powerless people. Without these consent decrees, we would not have institutions change their ways.” Shifting burden State or local governments enter into consent decrees with plaintiffs to settle claims of ongoing violations of the law. Both sides negotiate a specific remedial plan for the future and avoid the public expense of a trial. There are hundreds of consent decrees around the country ranging from remedying poor conditions in prisons, psychiatric hospitals and foster care, to ensuring school desegregation and environmental cleanup to enforcing voter initiatives. A sample of 84 consent decrees negotiated by the Justice Department in 31 states shows that 16 relate to civil rights, 33 protect children’s rights or health benefits, 22 address environmental or housing problems and five involve the rights of seniors or the disabled, according to the Leadership Conference on Civil Rights, which is coordinating opposition to the proposed legislation. The Consent Decree Fairness Act would allow state or local officials to seek court permission to vacate or modify a consent decree every four years or after an election brings a new politician into office who did not sign off on the decree. It places the burden of proof on the plaintiffs to demonstrate the continued need for enforcement and nullifies the agreement if the judge fails to act within 90 days on the request to vacate the decree. “I think the notion of arbitrary time limits terminating consent decrees really undercuts the independence of the judiciary,” said Rubin of the Lawyers Committee for Civil Rights. “Before a consent decree can be entered, the court holds a fairness hearing. The purpose is to ensure public input and that the consent decree reflects not just the respective interests of the parties but is in furtherance of the public interest.” The bill would have the effect of overturning the 2004 Supreme Court decision, Frew v. Hawkins, 540 U.S. 431, which held that enforcing a decree vindicates the agreement that state officials reached to comply with federal law. Federal courts are not reduced to approving consent decrees and hoping for compliance-they may be enforced, the court reasoned. Sandler of New York Law School said his focus in attacking consent decrees was the “rigidity and locking-in of democracy. They make government unable to govern and elections have less meaning.” In his 2003 book, Democracy by Decree, Sandler wrote: “The judiciary has failed to adopt a set of rules effective in limiting the availability, scope and duration of decrees against the government. Judges as a result become embroiled in problems they cannot solve and so become part of the problem.” Sandler proposed limits on the courts. “The aim is not to stop the courts from enforcing rights but to draw a line between the work of courts-to enforce rights-and the work of elected officials-to make policy and manage operations,” he wrote. He said that judges should include an “end game” in every decree to prevent the cases from dragging on for decades. They should be terminated promptly when the threat to the plaintiffs’ rights ends, he said. The National Conference of State Legislatures has not taken an official position on the legislation yet, but will take it up at its annual meeting on Aug. 15 in Seattle, according to Susan Frederick, senior committee director for the association’s law and criminal justice committee. She said the group has been assured that Alexander does not expect a vote before August. Frederick speculated that if the conference sees this as a states’ rights issue it is a “slam dunk” for its support. She said she has been getting favorable calls from members while others question the 90-day rule and don’t think that’s necessary. Hearing this week The House set a hearing on its version of the bill, H.R. 1229, for this week in a judiciary subcommittee. The conservative American Enterprise Institute held the first public debate on the Alexander bill last week in Washington. The Judicial Conference of the United States, the policy-making arm of the federal judiciary, has not yet taken a position on the proposal, according to spokeswoman Karen Redmond. “It’s too early,” she said. James Cox, legislative counsel to Earth Justice, an environmental group, said there are hundreds of consent decrees with state and local governments around the country that could be affected by the law. “Consent decrees are very useful tools for courts to have available,” Cox said. “The ability exists now to end a consent decree that has served its purpose.” The environmental cases frequently involve municipal sewage treatment or storm water overflows that must be upgraded to comply with the Clean Water Act. “The groups are extremely concerned about this,” Cox said. “They are going to fight it with all their might because of the implications.” The proposed law “subjects consent decrees, unlike any other legal agreement, to the vagaries of the election process,” said the ACLU’s Wolf. “A new governor would not be bound by the consent decree,” he said. Wolf characterized the law as “part of a broader assault on the courts in general.”

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