Federal Consent Decree Fairness Act
Adopted at the 74th Annual Meeting in 2006
WHEREAS, consent decrees are important tools of federalism that help ensure that no state or local government is above the law; and
WHEREAS, consent decrees can help save enormous court costs and prevent damaging legal battles; and
WHEREAS, in a growing number of cases involving state and local governments across the nation, consent decrees have become a means by which federal judges make policy decisions that are best left in the hands of state and local officials; and
WHEREAS, consent decrees can remain in place for decades and lock-in policies that were agreed to by state and local officials who are no longer in office; and
WHEREAS, existing procedures discourage current state and local officials from trying to modify or terminate a consent decree, even where such a decree no longer represents the best approach for local communities; and
WHEREAS, in one recent example, reforms to Tennessee's Medicaid program - proposed by the governor and approved by the legislature in 2004 - were blocked in federal court because they ran afoul of consent decrees dating back to 1979, and only some of the reforms were permitted to go forward, resulting in increased costs for taxpayers and the loss of coverage for many Medicaid enrollees; and
WHEREAS, in another example, consent decrees have forced the Los Angeles County Metropolitan Transit Authority to spend 47 percent of its budget on buses, leaving just over half the budget to pay for the county's remaining transportation needs; and
WHEREAS, in a further example, special education in New York City has been governed by a consent decree since 1979, thwarting efforts by successive mayors and schools chancellors to implement new reforms and updated policies for implementation of the Individuals with Disabilities Education Act (IDEA); and
WHEREAS, in Frew v. Hawkins, 540 U.S. 431 (2004), the U.S. Supreme Court - while upholding the consent decree in question - expressed its concern that consent decrees may "improperly deprive future officials of their designated legislative and executive powers," which may lead to "federal court oversight of state programs for long periods of time even absent an ongoing violation of federal law."; and
WHEREAS, the Federal Consent Decree Fairness Act, now pending in Congress, is bipartisan legislation that addresses weaknesses in the current system while preserving consent decrees as a valuable mechanism for settling legal disputes; and
WHEREAS, the Federal Consent Decree Fairness Act provides a three-pronged approach to address these weaknesses by: (1) allowing a state or local government to file a motion in federal court to modify or vacate a consent decree after four years or after the end of the term of the state or local official who provided consent, whichever comes sooner; and (2) after a motion to modify or vacate a consent decree has been filed, shifting the burden of proof to the plaintiffs to demonstrate why management of a program should continue to rest with the court rather than be returned to hands of elected officials; and (3) setting out a series of findings to provide guidance to federal courts for future consent decrees, based on the U.S. Supreme Court's decision in Frew; and
WHEREAS, this legislation goes to the very heart of democracy, in that citizens are entitled to elect mayors and other leaders to make policy decisions and do the business of governing, and federal judges are neither public policy experts nor accountable to the electorate for the choices they make,
NOW, THEREFORE, BE IT RESOLVED that The United States Conference of Mayors supports the goals of the Federal Consent Decree Fairness Act, and urges Congress to pass legislation that would ensure that federal consent decrees are narrowly drafted, limited in duration, and respectful of state and local interests and policy judgments.