NYCivic - Democracy by Decree

Democracy by Decree: what happens when courts run government
A book by Ross Sandler and David Schoenbrod
By Henry J. Stern
January 15, 2003

  For some time, we have complained about judges superseding mayors and commissioners by, in effect, taking over the management of city agencies for prolonged periods of time.

    A number of these situations are described in vivid and painful detail by Ross Sandler and David Schoenbrod, both professors at New York Law School, and formerly attorneys for the Natural Resources Defense Council, an environmental advocacy group. Sandler was New York City’s Commissioner of Transportation for four years under Mayor Edward I. Koch. He now directs the Center for New York City Law.

    The point of their book is that, while there are circumstances where federal intervention in municipal government is desirable, the way it is done today is intolerable. Groups of plaintiffs' lawyers set up rules for city agencies, act as uber-commissioners, and if they are not satisfied, can ask the judge to put the mayorally appointed commissioner in jail (or in a homeless shelter) for contempt.

    Sandler and Schoenbrod, in a serious but interesting way, describe the situation, explain why different levels of government find it acceptable for different reasons, and suggest a variety of remedies, including reasonable limits on the scope of judicial review, its rule making power, and the authority and tenure of interveners.

    The authors put it clearly when they write: "Court enforcement against state and local government would have remained a good thing and not gone wrong if district court judges had stuck to their proper role. That role, according to the Supreme Court, limits district courts to protecting the rights of injured plaintiffs and respecting the policy-making prerogatives of elected officials. These traditional restraints have had little purchase on many of the lower court judges when they are presented with actual cases. There, in the district courthouses, a strikingly different culture has evolved. I t accepts an expansive responsibility for managing social change and is squarely at odds with the norms enunciated by the Supreme Court."   (Democracy by Decree, p. l62)

    The most egregious example of prolonged usurpation of local authority is the Jose P. case, which began with a consent decree twenty-four years ago in 1979 (Jose P. himself long since returned to Puerto Rico), under which the late Federal Judge Eugene H. Nickerson, and three special masters whom he appointed successively, gave direction to a $2,700,000,000 (and rising steadily) generally disappointing public program (special education, covering 168,000 children, believed to have learning disabilities or emotional problems) to a group of nominal plaintiffs represented by a cadre of public interest lawyers, whose ample fees the city has now paid for a generation.

    Judge Nickerson died a year ago at 83, the case survives at 24, and is in the best of health, still consuming time and public money, which supports both sets of lawyers. The case of Jose P. is well on its way to becoming another Jarndyce case, described by Charles Dickens in Bleak House, published in monthly parts from March 1852 to September 1853). That case in chancery took seventy years to resolve. (cf. The Hundred Years War, 1337-1453).

    One problem is that very few people, inside or outside of government, understand this issue, or realize how far this problem has spread in the body politic. This book, published by the Yale University Press, explains what has happened since the 1970’s, and how good intentions were its cause. It suggests how state and local public officials, directly responsible to the people at regular elections, can escape domination by plaintiffs' lawyers, whose values and ideology often do not reflect contemporary social judgments, budgetary realities and conflicting priorities, and equally important, the separation of powers of the three branches of government, which is the basis of our democratic republic.

    Sandler and Schoenbrod have written a valuable book, particularly for beleaguered New Yorkers, concerned with the frustrations of city government. I recommend it to you.

    Democracy by Decree is available at bookstores, on Amazon.com, at New York Law School, 47 Worth St., or from Yale University Press, yalebooks.com. Since its list price is $30, you might give it or lend it to someone after you finish reading it.