Separation Anxiety: Nickles wants the courts to stop governing.
Separation Anxiety: Nickles wants the courts to stop governing. Credit: Darrow Montgomery

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From the look of things, Attorney General Peter J. Nickles has been engaged in a rather self-defeating quest recently: He wants to piss off every federal judge in town.

And, no, LL isn’t just talking about Judge Emmet G. Sullivan, the guy who told Nickles that he’s “playing games with the wrong judge” in the Pershing Park mass arrests case.

LL’s talking about the judges presiding over the big, long-running class actions involving key District agencies. Take what Judge Ellen Segal Huvelle said in her courtroom in December, according to the Washington Post: “I say this to the attorney general: You have responsibilities to the public, to the vulnerable people involved here and to the taxpayers.…If you think court intervention is evil, come up with a way to resolve this case through a remedy.”

And then there’s this chestnut: “I don’t understand your approach today, coming in and throwing down the gauntlet,” Judge Thomas F. Hogan, a veteran of numerous institutional reform cases in this town, told Nickles back in February, after he moved to end court oversight of child welfare.

If Hogan were interested in gleaning Nickles’ approach, he might start by reading a polemical tome published in 2003 by a pair of New York Law School professors. In Democracy by Decree: What Happens When Courts Run Government, authors Ross Sandler and David Schoenbrod argue why federal class action lawsuits and the “consent decrees” they usually produce have been bad for local governments.

These cases make judges, lawyers, politicians, and reporters feel good, the book argues, but it doesn’t lead to better services. Rather, it shifts power from duly elected officials, accountable to voters, to judges and plaintiffs’ lawyers. The result, the authors write, is that institutional reform litigation “has proved much less successful than its proponents admit,” with the most durable changes coming through “politics as usual” rather than through court intervention.

It’s easy to see why such an argument might appeal to Nickles, who has been on a one-man campaign to free Mayor Adrian M. Fenty from all manners of legislative oversight. Why not the judiciary, too?

Currently, the District of Columbia is subject to six consent decrees, imposing various funding and performance mandates on the city. They are named for their lead plaintiffs: Dixon—the oldest of them all, dating to 1974—concerns the treatment of the mentally ill. Evans (born 1976) deals with services for the developmentally disabled. Jerry M. (born 1985) concerns the handling of youth offenders. LaShawn A. (born 1989) governs the child welfare system. Blackman/Jones (born 1997) covers the District’s delivery of special education, and Petties (born 1995) deals with the buses that get the kids to those services.

Asked if there’s another jurisdiction in the country that’s currently subject to such widespread federal court involvement, Nickles says, “Not that I’m aware of.”

Nickles is now engaged in a crusade to slough off that court oversight. The undertaking is weighed with no small dose of irony: As is oft noted, Peter Nickles the AG is the former Peter Nickles the powerhouse pro bono litigator who placed several of the city agencies under court oversight in the first place. He played key roles in Dixon and Jerry M., not to mention now-closed cases involving city prisoners.

What accounts for Nickles’ road-to-Damascus conversion?

He hesitates to call it a conversion. Rather, Nickles says, he’s had qualms about the separation-of-powers implications of his litigation dating back to his public advocacy days: “Why did I do it? How do I reconcile my view today? First of all, I didn’t believe that when Marion Barry was the mayor that he could meet federal or constitutional standards,” he says.

Ah, the blame-it-on-Barry defense! That’s a well-worn tactic of Lauch Faircloth, Bob Barr, among many longtime enemies of the District. (Says Barry, breaking his LL ban, “He’s probably pissed at me because I voted against him.”)

On more substantive terrain, Nickles points out that, in some cases, the courts haven’t found violations of the constitution or federal law in many years. But because city officials essentially gave up the store in negotiating the consent decrees—in part, he says, because agency heads found the agreements useful in protecting their budgets—it’s been difficult if not impossible to comply with their demands. Here’s Nickles’ supposed trump card: Those arguments, along with others advanced in Democracy by Decree, have convinced a few other legal minds as well—including five members of the Supreme Court.

In June, the high court decided by a 5-4 vote in Horne v. Flores, a case involving the Arizona education system, to place new rails on institutional reform cases. The court’s conservative bloc, in an opinion penned by Justice Samuel Alito, suggested that all those consent decrees, with their budgetary and procedural minutiae, can overstep the proper role of the judiciary.

Now there is a robust legal debate over the scope of Horne, but the SCOTUS decision emboldened Nickles, prompting him to file a flurry of motions in the class actions.

Ira Burnim, legal director of the Judge David L. Bazelon Center for Mental Health Law, has met Nickles on both sides of these cases. He and Nickles were co-counsel for a time on Dixon; Burnim’s now on the opposite side of the table, representing plaintiffs suing the District in Blackman.

“It seems Peter wants to buy a consent decree holiday for a while,” he says. Burnim distills the essence of the Nickles argument to this: “We, the Fenty administration, are better than the last guys, and you should be happy that we’re here, and leave us alone to do our good work.”

Nickles says he expects some skepticism from the class-action plaintiffs, who have been in the driver’s seat all these years. “They thought I was a hero for all those years and they would bring me into cases like [Jerry M.]…to bring some balance to that system.” The doubts, he says, come from the judges, too: “Look at Huvelle, when she apparently said in the middle of a hearing [on Evans], ‘Tell Mr. Nickles he needs to come up with a remedy otherwise I’m going to impose a receiver.’ My response was read the Supreme Court case. People get insulted when I tell that to a judge.…You have to stand back, and that’s why [Democracy by Decree] is helpful.”

When LL strolled in to Nickles’ office to ask him about the book, the AG made a beeline to a shelf and pulled out a thick folder containing a copy of the tome, a 2007 law review article by its authors, and several copies of a George Will column on the topic from a 2005 issue of Newsweek. (Also in the folder: a note recommending the book to Nickles from Paul Tagliabue, the ex-NFL commissioner and Nickles’ erstwhile law partner at Covington & Burling; Sandler was a law school roommate of Tagliabue’s, Nickles says.)

The AG’s been in the habit of handing out copies of the book and the op-ed, including to people in the city government who might be wondering what he’s up to as he stacks up another scolding from a federal judge.

That includes, he says, D.C. Council Chairman Vincent C. Gray, who might harbor some sympathies for the book’s position given that he actually ran an agency under a consent decree—the Sharon Pratt-era Department of Human Services, when it provided the developmental-disability services covered by Evans. “I gave him the book, he read the book and he understands it. He supports it,” Nickles says. (LL couldn’t reach Gray by press time to verify those claims.)

Elsewhere on the council there’s more skepticism. Take the views of at-larger Phil Mendelson, judiciary committee chair and noted Nickles foe. His view on escaping court intervention is simple: “Let’s just meet the conditions we agreed to and get out of them the right way.”

Burnim also sees Nickles’ efforts as misdirected. When Fenty first entered office, he says, things kicked off on a positive, collaborative note. Then something changed. Nickles became a “traditional recalcitrant defendant,” he says, and started filing his Horne motions.

“What I would like is to see Peter put some of his considerable talent toward actually fixing what’s wrong with the agencies,” Burnim says.

That sentiment is backed by another plaintiffs’ lawyer, Marcia Robinson Lowry, a veteran reform litigator whose group Children’s Rights has long pressed the LaShawn case. “All of the energy has been focused recently on getting rid of the court supervisor,” she says. “It is delaying the changes getting made.”

Mendelson, for his part, hasn’t read Democracy by Decree (“I’m too busy reading all the crap I get from Peter Nickles”) but he sees another trend reflected in the AG’s legal power moves. “I’ve never seen a requirement or a condition that he hasn’t chafed at,” he says. “And I think that’s the real issue here—that he wants to rule government unfettered by any requirements.”

And without such fetters, Mendelson fears the mayor’s priorities may not lie where they should: “Based on what I’ve seen, this government’s putting all its marbles into DCPS and services in the other agencies is not improved.”

Perhaps that doesn’t matter. Courts across the country are starting to take notice of Horne, Nickles says. In a recent LaShawn filing, the city pointed to four courts that recognized the Supreme Court’s holdings in deciding to scale back their involvement. The filing also approvingly quotes Hogan—the “gauntlet” judge—saying that “the Horne litigation has moved in a new direction.”

Burnim is quite a bit more skeptical about Horne’s effect on the reform cases. “I think legally, he’s just dead wrong,” he says, arguing that Nickles is relying on an unduly broad interpretation of the ruling. “He hasn’t had any success so far, and I don’t think that he will,” Burnim says. Lowry, whose group is suing 10 child-welfare systems across the country, notes that D.C.’s is the only government among them trying to escape court oversight using Horne. “In all of our other cases, the defendants are trying to do what they were supposed to do,” she says.

“New direction” comment aside, Hogan has yet to sign on to Nickles’ view of Horne. The city has made a breakthrough in one case, Petties, simply because court administrator David Gilmore has been running the school buses with an unlimited budget for so long that the city’s not violating the law anymore. The city could be back to running its buses by July, no thanks to SCOTUS.

In any case, Nickles seems most pleased that his fellow public executives are coming around to his point of view. “I’ve had calls from all over the country,” he says. “I had a call from a jurisdiction I won’t mention, but it’s close by. He said, ‘We were just about to enter into a consent decree on behalf of our government with some plaintiffs when we read your paper and the governor has told us not to do it.’”

Starting in March, Nickles will be spreading his gospel on institutional reform legislation to the Georgetown University law students who enroll in his seminar titled “Consent Decrees Running City Government.” The only required readings are the District’s six active consent decrees, plus Democracy by Decree.

LL asked Nickles if he’s trying to forestall a new generation of lawyers from attempting to take over city and state agencies. “Absolutely,” he said, before indulging in a little evangelical rhetoric.

“I think I’m preaching a message here,” Nickles says, “I believe not only in separation of powers when it comes to the power of the executive versus the power of the legislature…but also vis-à-vis the judiciary. No one touches the judiciary and when you touch them, I get blamed. But I have big shoulders. I can take it.”

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