Reflections on monitoring the implementation of court orders in class action lawsuits.

03Original abstract

Alexis de Tocqueville observed in the 1830s, “Scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question” (cited in Baker, 1945). De Tocqueville would likely have felt further vindicated in his observation had he witnessed the modern explosion of class action litigation that ventures beyond private commercial disputes and into the domains of traditional governmental functions. Such lawsuits have sought judicially imposed equitable remedies rather than money damages in actions challenging governmental policies and practices that are alleged to adversely affect members of a defined class of people. Usually such actions are brought to address serious and intractable long-standing problems that are alleged to cause significant harm to members of the plaintiff class and that have been impervious to other attempts at remedying them. Examples include class actions seeking to end racial segregation of school students; to remedy overcrowding, understaffing, abuse, and neglect in prisons, jails, state mental institutions, and juvenile detention facilities; to ban discrimination in access to public housing or segregation on the basis of disability; and so on. If the plaintiffs prevail in their case, the resulting equitable remedy, whether imposed by the court itself or agreed upon between the parties in a Consent Judgment, may require complex and time-consuming actions by the defendants to address the underlying grievances. Often, either at the inception or subsequently during the remedial phase, the court appoints a court monitor or special master to assist the court in supervising the implementation of the remedy.In this article I discuss my experiences with such class actions while playing a variety of different roles in the legal system. These include working as a law clerk in appellate courts, dealing in part with judicial decisions about public agency compliance with legal obligations; serving in the office of counsel to the governor of New York, helping to defend the state in class action lawsuits against the state mental health and prison systems; running a state agency responsible for monitoring mental health and mental retardation systems in New York as well as administering the Protection and Advocacy system that brought litigation against state agencies for violating the rights of service recipients; serving in various roles in monitoring compliance with court orders in several states in class action cases involving large systems of human services; and consulting with the United States Department of Justice in cases under the Civil Rights of Institutionalized Persons Act (1997). Over the approximately 40-year period covered by this article, acceptable terminology has changed from mental retardation to developmental disability and currently to intellectual disability. In this article I have used the prevailing terminology during the periods of time discussed.In a number of these cases, I served as a member of court monitoring bodies, including the Wyatt v. Stickney litigation in Alabama (a substantial part of the early history of this case in recounted in Wyatt v. Rogers, 1997) originally commenced in 1970; the Willowbrook litigation in New York commenced in 1972 (New York State Association for Retarded Children, Inc., v. Carey, 1975); Gary W. v. State of Louisiana (1976) in the 1980s; Evans v. Williams in Washington, DC (the history of this litigation is summarized in Evans v. Fenty, 2007), which has been going on since the mid-1970s; CAB v. Harvey in Maine (the history of this litigation is summarized in Consumer Advisory Board v. Harvey, 2010), which is about the same age; and in the Blackman v. District of Columbia special-education litigation in the District of Columbia (2006), which has been going on for approximately 10 years.In examining a number of such cases, which have been open for a long time, it seems that they all run through a fairly typical lifecycle. In part due to the structural problems, the difficulty and complexity of the implementation process, and differing expectations of the parties, decrees usually go through several phases:Everyone is delighted that they were able to find a legal solution to seemingly intractable problems of running a mental health system, prison system, or a school special education system. There is a honeymoon period that may last a year or two and a degree of goodwill between the parties as the work of implementation gets underway with high hopes for success. Typically, the lawsuit brings political attention and an infusion of new resources and unusual administrative flexibility, for which the institutional defendants are grateful.Usually, within 18 months to 2 years into the implementation process, and maybe sooner, the defendants realize that the job is much harder than anticipated, that the crisis that created an expectation of flexibility has given way to bureaucratic resistance to reforms agreed upon by attorneys or policymakers or political leaders. Unless the plaintiffs' lawyers have had significant governmental experience, their failure to foresee this development is understandable. For experienced attorneys and policymakers on the defendant's side, however, this failure to anticipate is more perplexing and in some cases borders upon “a willing suspension of disbelief.”In the Willowbrook Consent Decree in New York, for example, there were a number of things the state agreed to do within 6 and 13 months of signing. In hindsight, it seems clear that the parties negotiating the Consent Decree did not fully appreciate the complexity of the tasks they had agreed upon or the time involved in making fundamental changes in public policy, let alone implementing them in a very large, complex, and decentralized service environment. In reality, not much was actually accomplished in this short time because a new administration was going through its formative stages and taking the steps needed to prepare for implementation. Also, as time passes, newer crises draw the attention of political leaders and the favored status of the defendants in the settled case begins to fade and is replaced by newer priorities.Also, as time passes, newer crises draw the attention of political leaders and the favored status of the defendants in the settled case begins to fade. Usually, in this stage the defendants discover that implementation of reform needs the buy-in of a host of actors not covered by the court orders (e.g., legislatures, independently elected officers like the Attorney General or the Comptroller or other officials involved in the timely processing of state contracts, personnel agencies that need to create and classify positions, labor unions, local governments, private providers, local zoning boards, state licensing boards). Defendants also become more aware of the level of opposition to the agreement they have reached by other groups vying for the covered services but who are not members of the protected class and, therefore, disadvantaged. Often, in this period, the first signs emerge that the parties have differing expectations about the implementation of court orders and may view compliance issues very differently.Two or more years into the implementation process, and sometimes sooner, these divergent expectations can lead to resentment of the decree and the relentless pressure from plaintiffs and the court to comply. Defendants discover that the plaintiffs do not have much sympathy or understanding about the struggles they are going through to implement the agreement. Agency heads begin to feel pressure from the governor's office, which in turn may be feeling pressure from the legislature as well to account for all the additional money that has likely been pumped into the system of services. The defendant agencies may also experience a lack of support from other agencies whose help they need but who resent their favored status in the budget and political process.Defendants may also begin to believe that the amount of time devoted by plaintiffs' attorneys to tracking and enforcing compliance with court orders is motivated, at least in part, by the availability of attorney's fees that are awarded to prevailing parties. Particularly in times of budget cuts and economic distress, they may perceive such fee payments as a disincentive for the plaintiffs to acknowledge progress that might lead to an end to the case. Regardless of whether there is any actual basis for such a perception in a particular case, it can lead the defendants to resent the plaintiffs' attorneys, especially if the amounts being paid out in legal fees are substantial while defendants themselves work under stringent limits. (The legal costs incurred by defendants for their own actions tend to be less easily transparent and quantifiable as a part of the Attorney General's budget.)Usually, in this stage some of the key actors on the defendant's side leave their jobs or there is a governmental reorganization and new people come in who do not have the same degree of understanding of the issues or commitment to the goals of the judgment. They were not involved in the negotiations and may not have the same personal relationships with the plaintiffs. Armed with an appreciation of the difficulty of achieving compliance, they often wonder about their predecessors: “What were they thinking when they signed this agreement?”Eventually, this resentment may ripen into opposition to the judgment, to continued judicial oversight of compliance, and a resignation to new litigation. may either because of a by the defendants on the judgment, a to it due to a of or changed or a by the plaintiffs for a of or of there is a for a of substantial compliance that the differing expectations of because of the of time the litigation and the years of it to complex systems of it is likely that the a new administration has come in and they can the problems that have their and do not to the time and money on the litigation. Often, this with a new decree or and the and to in key in the defendant's and the political to agency heads when progress not from this experience is is often with the the of were replaced by the Consent Decree of and a new of litigation has been compliance with this decree Advisory v. Harvey, In Washington, Evans v. has had at least of and agency and has a of litigation commenced by to additional judicial with a new v. Fenty, The Blackman special education Consent Decree in has had agreement that a of that were not in the Consent Decree and is in the of In some cases, like Wyatt v. Stickney in Alabama with Wyatt v. there have been to such the the case had been in from his other and In of these cases, the of and during the long implementation is the court and, the plaintiffs' complexity of these cases and the and public in which implementation them to In the mental health and intellectual disability cases in this has been a because the has changed the In cases that were brought to address problems of overcrowding, abuse, and neglect in institutions, which had remedies on institutional and more were to these goals when and public to services in the rather than continued in significant with the of the with Act of and the of the in v. which that the segregation of people with mental in is a of discrimination on the basis of disability. In the Wyatt case, in an to institutional the state of Alabama a substantial and all of its and had to with the political of them when public and legal goals changed to require services. The and it especially for defendants to the of administrative and political that is usually to compliance with court orders that are at such as from harm or the of services that are least of of the fundamental problems in implementing court orders in institutional reform cases is that the plaintiffs and defendants compliance in very different usually because especially into in the and were not very about compliance was to be and the parties would when the case In the of such the parties to have fundamental of the of this it is to about compliance from two different the there is structural compliance, which to the that are for compliance to these are the into the and policies and and case and other and the Defendants this because these are things which they have orders can also be more about these of these structural are for compliance to they are not by themselves that on may in achieving compliance with while the underlying way of at compliance is actual compliance, or achieving the that were sought by the plaintiffs in the such as of from and mental health least These are more complex not to and to that the defendants do not or do not for their because this is the lawsuits were brought in the first court orders are often much less about the of these be In the Consent Decree in the case in for example, there was case the other of compliance were much more open to between structural and actual compliance not in but it also an be by the on of or for (e.g., structural compliance and be by the Department of Justice in a Civil Rights of Institutionalized Persons Act or by a court to be violating rights of The are at actual service and examining things like cases of and and and of which can the policies and and resources to differing of the parties on compliance is also affect they is of compliance that court to be defendants the to the policies and they have usually with from plaintiffs and other (e.g., in a mental health case, policies and and and their practices and as of on the other the to of to and to the of and administration and to for of implementation of progress being by in the of and and of and neglect and and or actions when of and so in of these class action systems reform cases, judicial of various to assist the court in the remedial in monitoring and the implementation of court these are in the first when the court is or a is In other cases, such later, when a period of time has and the defendants have to the degree of compliance and the case has through of the is from the that such can be in the of differing and expectations of the parties in these of In part, this is because the long time that implementation usually can and new may be that are or more in achieving the goals than the steps that were in the court however, all the structural in is not the same as achieving the and that is of of the is also a the of different of of from the to the can be as be for examining to the that is If monitoring of the problems in particular that into the cause of the it is or other into the system. some of a a special master or monitor would not need to of the decree (e.g., of the fundamental I years of experience with this of is that institutional reform not the defendants and the need for the reforms and the that the court orders to can orders and can the defendants for but they it is themselves lack the institutional to and this is not their in system of in when there is when have the of or the of is and the the of to the which has the for the system. The of is when the parties and the court monitor can a working their different roles in the key to is to about the as early as If the parties have not part of the job of a court master is to help a about expectations early in the process, while the parties are in the honeymoon to to compliance as well as the when compliance is going to be a time-consuming experience, it is clear that the problems in these cases are usually not at the of these cases are settled by of all in the of which is more complex and court monitor or special master can a as a in the parties to the lawsuit to their expectations of compliance, to and for and to a clear to compliance and to judicial from the governmental system. The be with the monitoring and transparent that the system can them for of monitoring itself can become a of between the parties and, rather than the can create an additional of problems for the to and court monitor or special master can a key in implementation of court orders by or a the large job of institutional reform into tasks with and time and to within for achieving these tasks and to the court through the office of a court monitor or special this a of to the way that human rights law with economic and rights that require large governmental to implement In the parties to be able to these but experience the need for a and to and their about to compliance often to to the plaintiffs' access to and these to the master as If such the of the a master from other monitoring bodies, such as institutional of and agencies is that a court have and access to to the monitoring the to to to and and and to any need to be in the of their office and not any on access to to their monitoring and they the of the court to to access to the of access is to the and the monitor the of create because the parties do not the who the bureaucratic of can have a serious on complex There can be political and people may their jobs due to a court may find their litigation by of the master that are to the of and for in and to their The is the of the parties and the court for the and of the court issues of can be when the monitoring is not to a but to a or of several people by the parties and with side or the There are such that or paid a working a with paid and some These can additional complexity of to members of the monitoring and who may have significant of and them. In such cases, it is for the court to clear and with who their from the court are not or they experiences from the of I these to a case in Maine while serving as special master to the state into compliance with a of court orders that the of the mental retardation into the and them to be into the of the in which they did not in when the first decree was to litigation on whether the decree had been v. decree was in but there was on to of my tasks when as special master in was to work with the parties, to the by lawyers and to it into (e.g., case crisis so the defendants with clear goals that they had to into was to the to compliance for but the difficulty of so not be The various of and complex institutional reform court orders are often and clear for is more than of these as special master in with a working of plaintiffs' and of In this process, I to the parties on the of of compliance that would be on the of so the defendants to very their would be of at compliance for all at I a for compliance with of the In the first of two of compliance the first of these by the defendants was due in and the last in the defendants to in some while more time to labor on other that were more complex or more development of these and the of and the in which it would need to be the defendants a clear which they their implementation and them to their system to the and of their compliance was the the defendants would have the being by their in other at compliance more I was able to and their and the that additional in their while them to to the governor and the legislature on the they had as a of the and political support they had created goals and all of which the work of achieving compliance with the court orders more and to the plaintiffs and the special master about the of there is a need for an for the status of this can be by a for a of substantial compliance and to or the orders of the this is to the which may not to be involved in litigation. however, such and judicial of progress are for the for compliance and to and that support implementation a time In this was by an to a for a of compliance with the court The to is a system for of by the defendant in the case. The as special master with the parties to a was accomplished by The a of court orders into that can be independently of For the the that are by the or the court The agency a of on a by the special master in with the parties. it is the of the who have the of of compliance, to of compliance they the this by the of the parties is the and with which the defendants compliance, the compliance has not been and a to compliance, the the resources the responsible for and the by which compliance be The defendant's is by a of the The service of the upon the who have timely access to any upon by the defendants in making the and plaintiffs may through the special access to any other that is to the In plaintiffs were access to they to class including access to by the of the of the the plaintiffs with the special master a any to the defendant's with the basis for the The special master is to the and of the and, within of the a to the court with of and of law the defendant's compliance with the of the court If the special master that there is not compliance with any of the that is the of the he or may a to of and require the defendants to prepare and implement an action as experience with this has that it is an way of the defendants compliance with court The for the of of compliance with of court orders create a of and a for implementation while also making the The of their progress and to and compliance and, as time in the plaintiffs and the special master in the of the that is the work by the and the special it the of the and the flexibility and of the by the special master the case with of the court and with less and than typical way of a between two very cases, in Evans v. Fenty, the plaintiffs a for the of a the legal fees by the plaintiffs for the period of the litigation were settled for v. Fenty, in the v. Harvey litigation in Maine a period from to the amount paid out in plaintiffs' fees was about of that amount at v. Harvey, the in the of compliance and and the of the special master was able to to the court that the defendants were in substantial compliance with the court orders of the The defendants in this case were of the clear they with to their implementation and the that it the The that were with the court were to the oversight and the governor's to them with of the being this in Maine the state to substantial compliance with the court this may not work in environment. The of litigation sometimes relationships between the parties that are so that it may not be to do the of work that plaintiffs and defendants were able to in Maine during of my If that is the case, can become a between the parties that further damages relationships and for litigation. also a high level of and attorneys on of the litigation and key responsible for implementation in have to be of the in to of the state of the service system and that require and Maine by and in the key personnel responsible for implementing court orders during the process, which was an for success. complex systems of human services not usually and the on the of there be a that compliance is within a this to be and if the defendants are not able to progress in achieving compliance with the court also needs the support of the supervising and with the of significant to the special master to the to the of a and to the court for its and If there is a of and between the court and the special and a that the special master to the of the can work as a to the and, the time while also litigation for the

Intellectual and developmental disabilities, 2011 · doi:10.1352/1934-9556-49.5.374