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Grothman: Sue and Settle Process Undermines Our Form of Government

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Washington, July 25, 2017 | Bernadette Green (202-225-2476) | comments

Congressman Glenn Grothman (R-Glenbeulah) today examined how agencies and advocacy groups use court-ordered consent decrees, or the “sue and settle” process to develop regulations and reforms for state and local governments during a House Oversight and Government Reform Subcommittee on Intergovernmental Affairs hearing.

Witnesses at the hearing included Dr. David Sanders, executive vice president of systems improvement at Casey Family Programs, and The Honorable John Engler, former governor of Michigan, among others.

Excerpts of Grothman’s questioning

Congressman Grothman: “You cite in your testimony that child welfare consent decrees work against the people who are trying to help. Can you give us examples, or elaborate on that a little?”

Dr. Sanders: “Over the last 15 years, there have been numerous developments in brain science in research around predictive analytics and other efforts that have resulted in improvement in the ability of government agencies to protect children. The consent decrees often lock states into agreements that were made in a point in time and don’t allow the kind of flexibility that can be implemented and increase the likelihood that children will be protected. Those examples would include some of the states like Tennessee that were sued more than 15 years ago, and aren’t able to implement some of the research changes that have occurred more recently to improve lives of children.”

“Let’s take an example of a kid – let’s call him Joshua. Joshua – how would we deal with him without the consent decree, and, because of the consent decree, how are we hurting him?”

“I may take the liberty and suggest that part of the solution would be, if there was an ability to modify the consent decrees more regularly based on changes in federal regulation, changes in state performance, etc. – that doesn’t happen as much as we think it should. In Joshua’s case, it’s quite possible that Joshua, as a result of the consent decree, would be seen more frequently by a social worker. What might not happen is that Joshua’s social worker would be better-trained in trauma-informed practice, which is emerging as a way to keep children safe. And so, the visits might occur, but the actual improvements in Joshua’s performance and by the social worker may not occur.”

“Can you give me an example, say in Joshua’s case, this is what happens under the consent decree and what we would be able to do differently?”

“We can assure that a state will send a social worker out to see Joshua. Under a consent decree, that would occur. What would not occur is that social worker may not be trained in new techniques that result in Joshua actually being safer.”

“In New Jersey in 2004, because of a consent decree, the state invested billions of dollars in its child welfare program, but they still haven’t been able to exit their consent decree. In March of this year, the federal judge overseeing the case called New Jersey’s program a national model. If the program is really so successful according to the federal judge, why has the state been unable to exit from the consent decree?”

“What I speculate, knowing something about New Jersey, is that there are measures that have not yet been achieved that were part of the initial settlement agreement. And there is a continuing need to improve on specific measures that were agreed to at the time, and that there was not 100 percent compliance.”

“Governor Engler, I think the whole problem here with consent decrees is it kind of gets at our whole form of government. Like it or not, every election people show up and vote for people who they want to have vote on our laws. The idea behind consent decrees is that this system of elections doesn’t work very well, and we would be better off determining our laws when some bureaucrats and judges and lawyers get together and decide what they will be. The whole idea is opposed to our whole form of government. Can you give us some examples of consent decrees that you think were damaging to Michigan during your term as governor.”

Governor Engler: “We had a judge who was in charge of the women’s prisons in Michigan and he referred to those as his women, and he was very solicitous about what needed to be done in those prisons. We had a monitor that he had appointed, and basically, he was in charge of the prisons. He was setting policy and instructing us to follow that. We had another judge who was dealing with prisoners who were dealing with mental illness, and in that case, when I became governor, they were being fined $25,000, I believe, because the previous administration was failing to comply with the consent decree. In both of those cases, what I found from our corrections experts, the people running department, is that they thought having to take the temperature of the oatmeal being served or to be monitoring the temperature of the showers, or another number of reporting requirements that were imposed had gone far beyond the pale. They were arguing that you had differences in opinion, respecting different philosophies of how we ought to run the system. We even had a requirement that we could only put one person in a cell, which we thought was pretty limiting in terms of our prison capacity. I made the decision as governor to not adhere to consent decrees. I said, look, we’ll litigate these. My legal services are free – I’ve got the attorney general to do that, so we’ll fight these. So, we did not do that. After I left, my successor entered into a consent decree, which now has run for several years, and is costing $50 million per year is what they’re saying [… ]This one was brought by a New York group called Children’s Rights, Inc., a perfect example of activists showing up and saying this is how you ought to run it. We’ve already paid $6 million in attorney’s fees for them, they’re involved with the monitoring and they’re involved with the day-to-day departmental operations. The state has been trying to modify that […] Your premise of the question is very important: who decides? And I think it ought to be the men and women who get elected. If there’s a deprivation of a constitutional right; there’s not been a finding in this. This is just a difference in opinion over how you ought to run the system […] Sometimes you’re mandated to spend a lot of money because that’s what the masters in Washington or the agencies want.”

Click here to view Grothman’s full remarks.

Background

Consent decrees are legally-binding, court-ordered settlement agreements.

These decrees are oftentimes used by outside groups to “sue and settle” with federal agencies or state or local governments for alleged violations of federal laws or constitutional rights.

The consent decrees can last for years, and are used to skirt elected officials in the policymaking process.

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