Court Decrees and State Government

This is another in a periodic series of columns on “politics and policy in Illinois.”

            I tell my students that policy advocates appeal to any level or branch of government that might be responsive, including the courts.

The Illinois state judiciary has not, however, generally inserted itself into state government policy and management.

            As John Marshall Law School professor Ann Lousin observes, “The Illinois Supreme Court has a good sensitivity about the separation of powers.”

            “The Illinois Supreme Court is not, for example, going to touch school funding because the legislature won’t touch it,” Lousin notes, to illustrate. “The court avoids making decisions where the branch cannot enforce relief.”

On the other hand, policy advocates in Illinois have been highly successful in the federal district courts, which have approved 80 “consent decrees” since the 1970s, according to a recent count by the governor’s office.

            These decrees are agreements between advocates such as the Illinois affiliate of the American Civil Liberties Union (ACLU) and our state government. The state promises to the court that it will improve its services to a vulnerable population such as children or prison inmates.

            This forestalls going to trial, where the State of Illinois apparently believes it would be unsuccessful, or that the public airing of matters might be embarrassing.

Disputes in federal court over how Illinois has served, or failed to serve, a vulnerable population rarely go to trial.

            The best known of the decrees is referred to simply as “B. H.,” for a child plaintiff in a 1988 dispute between Illinois and the ACLU.  

ACLU advocacy in this matter ended in a decree under which—to this day, almost three decades later—the federal court oversees the management of much of the Illinois Department of Children and Family Services (DCFS).

            John Grady, a Republican court appointee, rebuffed most of the arguments by the state’s high-powered outside lawyers, from the gilt-edged Skadden Arps firm, who opposed the ACLU’s efforts to insert the court into the state agency.

            Instead, Grady conducted an outside expert evaluation process, which concluded the state’s child care system was horrific, cruel to children.

The judge established an affirmative position that so long as children were in the care of the State of Illinois, the state could not violate basic constitutional rights of children to humane care.

            As Illinois ACLU’s legal director Ben Wolf puts it: “The state can’t starve foster kids.”

            Reformer Jess McDonald was chief of the state’s child care system at the time. Gov. Jim Edgar later signed off on the consent decree, and ever since DCFS and the ACLU have been in and out of court, sometimes weekly, overseeing the agency’s management.

            Consent decrees also have the benefit for agency heads and bureaucrats of ensuring that appropriations adequate to meet court requirements are made by the legislature and governor.

            [Much of Illinois spending this past year, in the absence of a state budget, occurred because federal judges forced the state to provide spending for services to those covered by the decrees.]

            In addition to DCFS, all of the state’s five other major social service agencies, who serve three million plus state residents, are also covered by one or more consent decrees.

            [It’s a terrible way to run a railroad, as Dad used to say.]

Gov. Bruce Rauner’s top staff think they can operate the state more efficiently (read: save money) and provide better services, if only they were free of the cumbersome management by the courts.

            “We want to be compliant with the objectives of the decrees,” said one top staffer, who asked not to be named. In effect, he was saying, “We can do better than the courts.”

            For example, he cited a 2011 decree called “Ligas v. Norwood,” which covers persons with developmental disabilities (DD).  

As interpreted recently by the court, the decree requires the state to fund, quite expensively, two separate systems of care for the DD population. So we have both the traditional state institutions for the DD as well as increased community-based care for our DD citizens, the latter being preferred by most but not all DD advocates.

            I am highly doubtful the governor can get out from under the decrees and also save much money. After all, the advocates are parties to the decrees, and they want more not less money spent on their charges.

            Illinois could manage better without the decrees; Gov. Rauner has attracted many highly capable professionals to run his state agencies.

Yet I imagine a lack of trust among the advocates toward the state, built up over the years, will make it difficult for the state to wriggle free from most decrees in the coming years.