Getting the Courts to Stop Governing D.C. Peter Nickles wants to disrobe the District.

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

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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Our Readers Say

Good column.
Wow Mike, and I see you got Peter to start talking to you again. Lol.
And Barry too!
Peter Nickels has shouldered Fenty's, "Jesus Complex", too bad nobody is drinking that kool aid.
HEY HO, Peter Nickles, Adrian Fenty, Michelle Rhee, Cathie Lanier, Muriel Bowser, Jim Graham, Jack Evans and that Hartstock, HAVE GOT TO GO!!
The city's efforts to get its agencies out from under court supervision actually began under Mayor Williams. A special division was created in the AG's office (called something like the "Equity Section") and agency heads (eg, Odie Washington, director of dept of corrections) were given performance bonuses if successful in terminating receiverships. Most agencies had limited success, but the dept of corrections shed several such ongoing receiverships (some started by Nickles long ago). It's not because the jails improved under Williams, though. Rather it's because Congress passed legislation in 1996 (the PLRA) that made it tougher for prisoners to sue. Sort of analogous to doctors lobbying for damage caps that would give them special protections. Not because malpractice is declining, but because they simply want to limit their liability. In many ways, that's what Nickles is trying to do for DC ... limit its liability more than fix the underlying problems.
TH- I see no reason why there should not be a dual-pronged approach:
1) limit liability on the front end (large, sweeping, gestures)
2) decrease potential for liability on the back end (a million little fixes)
From the point of view of an administrator, wouldn't it be wisest to pursue multiple strategies?
Sure, DR. But the atmospherics would be far better if DC would lead off with an itemized, accurate list of concrete progress made on underlying deficiencies. If it hasn't made demonstrable progress, the courts will be less receptive to eliminating oversight. That's how Judge TH feels, anyway.
Peter Nickles only likes Fenty, because he's a light skinned Negro with a Negro dialect.
No statehood in our future.
Yo Nupe Kappa 1911. Right on brother.
Nickles is another Dick Chaney - a cold and hateful dictator. The only difference from Dick Chaney is that the white establishment had no use for this obvious jerk.
What does anyone expect from such a YES-man!
Dear Mr. Nickles:

Here are some issues that maybe you can work on within your own administration. These actions of your Mayor are as illegal as they come and violate DCHR lets see if you will pursue them with the same vigor that you "protect" the Mayor.

We are writing to you because we are sick and tired of being made to be complicit in Mr. Fenty using and pitting DC residents against one another. Mr. Fenty, in this election year, is about to hire 100 new DC government Term Employees throughout various government agencies from one of his key supporters Mr. Calvin Woodland and Mr. Woodland's unsanctioned non-profit organization. Most of these new hires from the Calvin Woodland Foundation are ex-offenders and should have gone through the Project Empowerment initiative and yet they did not because of the personal relationship with Mayor Fenty.

The group of "new employees" will come from the Calvin Woodland Foundation based in Ward 8. What is interesting and questionable about this group is that the president and founder of this organization is Calvin Woodland, Chief of Staff for Councilmember Jim Graham in Ward 1. This is not the first time that this has been done, in fact it has been done every year since Mr. Fenty has been Mayor. While the premise of this appears to be a very lofty undertaking, we find it to be very underhanded and dishonest.

Under the misrepresentation of budget cuts, Mr. Fenty is laying off DC workers that either he or his staff do not like or who disagree with Mr. Fenty's politics and are now bringing in those loyal to Mr. Fenty, those who he knows he controls through the polls.

Why is no one looking at this as a conflict of interest for both Mr. Woodland and Mr. Fenty? These new hires are set to come on board before the end of January 2010...STOP this MADNESS!!!

These jobs will come from various DC government agencies; DPW, DPR, DDOE, DDOT, etc. The positions will be entry level and some will be commensurate with the candidates experience. They are being "set-aside" for this group; some of these positions were frozen due to budget cuts, and now they are being unfrozen for this particular group. None of these positions are being announced on the DCHR website as mandated, nor will they be competed competitively by the general public as is also a DCHR requirement.

This has been done for three (3) years thus far; it has been done covertly/undercover. Those who know about this are fearful of retribution from Mr. Fenty and his staff if they speak up. It is always done around an election year of either himself or his friends in the Council to garner votes.

Mr. Fenty and Mr. Woodland's actions beg the question, "why is one DC resident more deserving than another." "Why unemploy one DC resident to employ another?" Did we mention that it cannot be proven that they are all DC residents; it is very easy to get a DC ID and utilize someone else's address.

Mr. Woodland is a "strong" (to say the least) Fenty supporter. We are entreating this Council to look into this shady backdoor deal. The Unions will not sit silent and allow these underhanded and shady dealing to continue.

If there are vacancies in DC government and if Mr. Fenty has private sector job support then allow competition or legalized set-asides. First source should come from those currently receiving Unemployment Insurance as President Obama's stimulus package mandate for each jurisdiction/state.

We request immediate action to put a stop to this unseemly action!

Thank You,

"Road-to-Damascus conversion?" "Separation-of-powers" argument? It's all balderdash! Plain and simple, Nickles is the quintessential consigliere. He'll espouse whatever suits the needs of his patron at the time: formerly, his prestige-seeking law firm (and, not incidentally, himself); now, his long-time friends' little baby boy playing at being Mayor (or, more accurately, acting as figurehead so he, Nickles, can play at being Mayor???)

Peter Nickles and Adrian Fenty have simultaneously done more to give DC lawyers - encompassing both the supposed top-shelf and the bottom feeders - a bad name than countless politicos and charlatans before them.

P.S. Kudos to Phil Mendelson. Gotta love his comments!
I think that he should continue to file motion after motion, brief after brief all until he is sick of it.

Then he can actually take a break and things will be right as they are now.

Then we can start to look at just how effective the bureaucracy is at complying with the previous court orders. And then maybe a few people will go to jail or lose their jobs, something will change and the process can start all over again.

Then we finally might get somewhere.

Go to it, Peter! The sooner you're done, the better!
As long as judges are kicking Nickles' ass I'm happy. Happy New Year to all of you judges that see through the BS and don't mind sayng it the way it needs to be heard. Smooches!
DC Rules of Professonal Conduct Rule 1.9—Conflict of Interest: Former Client reads:
A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed consent.

So if Nickles played a key role representing the plaintiffs in a couple of these cases, I just wonder if he has obtained the informed consent of his former clients to be leading the charge on the other side?
Although I am a lifelong District resident, I am soo sick and tired of this mess. This administration is the worse ever, and I am ready to pack my bags...
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.”

You go, Phil! Are you the only male on the Council that has a pair?

Nickles' shameful, lawless gamesmanship reminds me of that old joke about the guy that shot his parents, then begged the judge for mercy because he was now an orphan.

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