IN D.C., IT'S OFTEN GOVERNMENT BY DECREE

CITY'S PROBLEMS HONORING AGREEMENTS PROMPT COURTS TO TAKE OVER OPERATIONS

By breaking promises it has made to residents and judges, the District government has forfeited control of major parts of its operations to the courts. In the city's prisons, its housing department and a large portion of its foster care system, there is no home rule; there is judicial rule.

In all, more than 30 major court cases are pending against the District, affecting programs that account for more than a third of the city's $3.4 billion budget.

The lawsuits stem from claims that the city failed to follow its own or federal laws in a variety of ways, from ignoring dangerous school buildings to crowding too many prisoners into its jails. Many have resulted in consent decrees, which are court-approved agreements the District has made to improve services.

City officials, however, repeatedly have failed to honor those agreements. Judges have imposed fines, appointed their own representatives to monitor city programs and ultimately, in exasperation, turned to receivers to completely take over some operations.

In the last three years, judges have appointed special masters or monitors to track the District's compliance in the 23-year-old prison system litigation and a nine-year-old juvenile justice case. In August, D.C. Superior Court Judge Steffen W. Graae told the city to relinquish control of the Department of Public and Assisted Housing. Last month, U.S. District Judge Thomas F. Hogan named a receiver to take over a large part of the city's foster care system.

But the authority of monitors and masters to ensure that agreed-upon improvements are made is limited because the officials are often stymied by the city's bureaucracy.

As a result, little has changed in the lives of some of the District's neediest residents, the subjects of the original class-action lawsuits that led to the decrees. The poor are still poor, and the downtrodden continue to get stepped on.

Often, it is the District's children who suffer the most. Though there have been some improvements in the foster care program, abandoned children still languish in crowded foster homes until they are old enough to go out on their own. Single women with children get sporadic advice on applying for emergency assistance and food stamps, benefits that are crucial to keeping them from becoming homeless and losing custody of their children.

"There is a whole generation of kids who are going through the juvenile justice system, foster care and public education who are not being protected," said Jonathan Smith, executive director of the D.C. Prisoners' Legal Services Project Inc. "In many ways, they are actually being harmed."

Helping or Hindering?

Although city officials acknowledge that some lawsuits served a purpose in pointing out problems, they contend that the consent decrees have gone too far, exacerbating the city's budget woes by tying managers' hands and immersing judges in the minutiae of government.

Hogan, for example, has spent hours in court discussing the lack of a handbook describing policies and procedures for social workers.

Senior U.S. District Judge June L. Green had to specifically order the District to move extra beds out of one of its prisons because officials kept putting prisoners in them, violating a population cap and incurring fines. Yet another case stipulates specific ways the District must provide education and rehabilitation programs for five young, female inmates comparable to those afforded to men their age.

Anna E. Blackburne, spokeswoman for the corporation counsel, said she believes the advocates who file lawsuits on behalf of prisoners, the poor and children have a role to play in protecting people's rights. But, Blackburne said, "I'm not so sure that suing and imposing your vision of how something should work ... is the right thing.

"If you have a vision of nirvana that you want to impose, then run for office and become the mayor, or become the commissioner of social services, and implement that vision," she said. "Then you have the mandate of the voters, and most importantly, you are accountable to the voters."

Lynn E. Cunningham, managing lawyer for Neighborhood Legal Services, disagrees. "If they were obeying the law in the first place, we wouldn't have this litigation," he said.

Smith blamed a "lack of management" for the proliferation of lawsuits and detailed decrees. "You really have to build into these things a step-by-step plan. Otherwise, it won't get done," he said.

Advocates also have begun to try to force the city to collect more federal funding. The city has withdrawn from some federal programs to avoid lawsuits and has failed to apply for others. Advocates said those decisions are costing millions of dollars each year.

Blackburne said city officials often feel that advocates are being self-righteous in pushing their vision of government. She said officials believe they are not given a chance to do jobs they have been trained to do.

Although uneasy about taking on roles as de facto mayors, judges clearly are frustrated by their inability to get the District to honor decrees. They are unwilling to discuss pending cases in interviews, but they have made their feelings clear in court.

Hogan recently said in court that he felt he had no choice but to appoint a receiver in the foster care case. He said he believed that the city's foster care system would be in even worse shape if the lawsuit, known as LaShawn A. v. Barry, had not been filed.

Attitudes Change

Lawyer Peter Nickles, the dean of the public interest lawyers involved in suits against the District, said the increased willingness of judges to intercede in city affairs is significant. "It has gotten worse," he said, referring to the District's problems managing and complying with decrees.

Advocates said city officials repeatedly fail to meet deadlines for improvements and have given judges misleading or false updates to cover their lack of progress. Green and Senior U.S. District Judge William Bryant, who oversee the large prison cases, have taken the unusual step of requiring city officials to make reports under oath.

Nickles, a partner at Covington & Burling who has been involved in lawsuits over prison conditions and mental health, said he remembers when decrees were taken seriously, in Marion Barry's early years as mayor, when Barry personally got involved in negotiating settlements. Many of the lawsuits were filed during the Barry years, and judges such as Hogan have blamed the former mayor for the deterioration of some city agencies, which hindered compliance with decrees.

Mayor Sharon Pratt Kelly's approach was confrontational from the beginning, Nickles said. "Her primary objective has been to avoid {consent decrees} and get out from under them," Nickles said. Blackburne said there has been no policy of obstructing the decrees in Kelly's administration.

Last year, Kelly withdrew the District's participation in the federal emergency assistance program to sidestep a lawsuit brought by the Washington Legal Clinic for the Homeless over the city's failure to meet the federal requirements in its homeless shelter program. Though the District avoided another potential decree, it is losing $1.4 million a year in federal funds for shelters, advocates said.

Kelly also wanted to nullify the sweeping decree in the Dixon v. Bowen case. The decree requires that the city seek the least restrictive setting for treatment of the mentally ill, through changes in city law, but the D.C. Council would not go along.

Republican mayoral nominee Carol Schwartz said that if she is elected, she will ask the judges for a one-year grace period to prove that she can turn around troubled programs. If she fails, she said, "then they can take it back over."

Barry, the Ward 8 council member who is now the Democratic nominee for mayor, did not respond to repeated requests for comment on the issue of his record and his plans for handling the lawsuits.

D.C. Situation Is Typical

It is difficult to tell whether the District is worse than elsewhere in the number of decrees, hostility toward the orders and compliance with them. But Arturo Perez, of the National Conference of State Legislatures, has studied the most common decrees involving prison conditions, mental health and retardation and child welfare and said he sees similarities.

He said the suspicion between advocates and D.C. officials is typical. Lawmakers elsewhere think advocates use lawsuits to usurp their power, and advocates say they represent people no one cares about. "What I found was that there was a lot of polarization," Perez said.

As in the District, officials and advocates in other states fight constantly over compliance with decrees. But Alvin Bronstein, director of the American Civil Liberties Union National Prison Project, said other states make progress when a good administrator is in charge of an agency.

"Where the District is different is that it doesn't matter who is in charge," Bronstein said. "It doesn't matter if it's Marion Barry or Sharon Pratt Kelly. ... Nothing seems to change."

But Ellen M. O'Connor, the city's chief financial officer, attributed the District's inability to comply to unreasonably high expectations set by a local government that has passed some of the nation's most generous laws. The problems occur because "a pretty big gulf" has grown between reality and expectation, she said, placing "tremendous stress" on the budget.

Great Expectations

Unlike other jurisdictions, the District cannot spread around the impact of a decree. States can arrange with counties to house prisoners to comply with court-ordered population caps, O'Connor said. "We don't have that flexibility," she said. "There is no off-load. There is nobody else."

When the District fails, she said, there is a lawyer poised to file a lawsuit. Every major law firm and advocacy group has an office here. Many of those firms subscribe to public advocacy principles of the 1960s and 1970s, when using class-action lawsuits to change government priorities was popular.

City officials often cite Atchison v. Barry and the right to overnight emergency shelter as an example of how those notions can go awry. Before that fight was over, the city was fined more than $4 million.

In 1984, D.C. voters, prodded by advocates, approved an ambitious initiative that guaranteed every homeless person a "safe, sanitary and accessible shelter space, offered in an atmosphere of reasonable dignity."

Despite opposition from city leaders fearful of the costs, the District became the first jurisdiction in the United States to legislate the right to overnight shelter. But the city could not keep the lofty promise, and advocates filed a lawsuit in D.C. Superior Court in December 1988 for enforcement of the law.

On the eve of trial, a consent decree was signed. The city was supposed to open 11 existing overnight shelters, add new shelters as needed under a triggering formula and bring each up to code. Eventually, the city was found in contempt of court for having violated nearly every aspect of the 1989 decree.

The D.C. Council repealed the shelter law in June 1990, arguing that it was a way to reduce city spending.

Fees Add Up

Although fines imposed by judges are funneled into city programs, D.C. officials argue that monitors and masters are becoming very expensive. From 1988 to July, the District paid $1.3 million for a special master's costs in the prison cases. It has spent about $1 million for the monitor's costs in the Jerry M. case dealing with conditions in juvenile detention facilities.

City officials also complain about the mounting costs of lawyers' fees connected with the lawsuits. Since 1988, lawyers involved in four prison cases have been paid more than $2.2 million in fees. The ACLU is seeking $1.8 million for its work on the foster care case.

Sensitive to the charges of greed leveled by D.C. officials, lawyers and advocates argued that the government has lawyers. "Shouldn't poor people have lawyers too?" asked Cunningham, of Neighborhood Legal Services. Congress thought so, he said, when it passed a law in the late 1970s that entitles lawyers who win public interest cases to be rewarded with fees paid by the loser.

Cunningham said most of the money the lawyers receive is pumped back into other similar cases. Some law firms also donate part of the fees to charities, he said. "It's not like they are living off these fees," he said. "For Anna Blackburne to say, 'Look at these greedy lawyers,' I think it's slanderous, vicious stuff. It's killing the messenger."

With all the resources spent on decrees, both sides wonder whether there is a better way, but there is little movement toward conciliation.

Blackburne suggested a public-private partnership to help the District secure more federal funds. But Nickles said the only way to reduce the number of decrees is for the District to prove itself by keeping its promises. "If you are really serious about self-government ... do something," he said.

Perez said lawmakers must understand what a decree can do to government. "It can be worked out," he said. "It can happen if people are willing to listen to each other."

This is a brief synopsis of some of the court cases that have resulted in consent decrees and court orders affecting the operations of the District government. Case names, presiding judges and some court related costs also are listed.

CORRECTIONS

* Campbell v. McGruder;

Inmates v. Jackson

Senior U.S. District Judge William Bryant

Campbell filed in 1971 challenging conditions at the D.C. jail for pretrial detainees. Inmates filed in 1975 over conditions at the jail for sentenced inmates. The cases were consolidated. In March 1975, Bryant found the jail so crowded that prisoners were being subjected to "physical and psychological damage" and held that conditions were unconstitutional. During the next 10 years, Bryant held 13 hearings and entered numerous orders trying to get the District to correct the problems. In September 1983, he found Mayor Marion Barry and two Department of Corrections officials in contempt of court and fined them $50,000 for violating court orders. In 1985, the judge approved a consent decree setting a cap on prison population and outlining ways to improve medical and mental health services at the jail. In 1993, Bryant found the District in substantial noncompliance with the 1985 decree and appointed a special master to monitor compliance. Later, the master's role was expanded to cover all prison cases, including those listed below.

* John Doe v. D.C.

Senior U.S. District Judge June L. Green

Filed in 1979 challenging conditions at the Lorton Maximum Security Facility. Consent decree in 1984, setting a population cap, requiring psychological treatment and other improvements.

* Twelve John Does v. D.C.

Senior U.S. District Judge June L. Green

Filed in 1980 challenging conditions at the Lorton Central Facility. Consent decree in 1982 setting population cap, number of correction officers, schedules for inspections, renovations and medical staffing.

* Green v. D.C.

U.S. District Judge Thomas F. Hogan

Filed in 1990 on behalf of prisoners who had been or would be transferred to out-of-state nonfederal prisons/jails to ease crowding.

In 1991 Hogan ordered the District to provide a law library and materials to prisoners, wherever they were being housed. The District was held in contempt in 1992 for failing to provide the services. A settlement was reached.

* Inmates of Occoquan v. Barry

Senior U.S. District Judge June L. Green

Filed in 1986 over conditions including crowding, health care, fire safety and sanitation. After trial, Green ordered lawyers to track prisoners to ensure they get proper mental health care. They say the District has made progress in many areas.

* Inmates of the Modular Facility v. D.C.

Senior U.S. District Judge June L. Green

Filed in 1990 over the conditions at the facility, which opened in 1986.

Midway through the trial, the District signed a consent decree that provides for a population cap, repairs and more services to inmates.

Less than a year later, plaintiffs filed a motion for contempt over health services. In March 1992, Green fined the District $250 a day per inmate for every day of delayed access to specialty health clinics. A second decree was signed in June 1993.

Court related costs for the corrections cases combined: $5.7 million

EDUCATION

* Parents United v. D.C.

D.C. Superior Court Judge Kaye K. Christian

Filed in 1992 to compel the District to fix fire and building code violations in public schools.

Christian found in May that the District had failed to fix 1,800 life-threatening fire code violations. She gave the District until Aug. 30 to correct the most serious problems, get the schools reinspected and report to the court. In September, the opening of D.C. schools was delayed for the first time ever as she went through the list of corrections at every school, forcing officials to make repairs before allowing schools to open.

HUMAN SERVICES

* LaShawn A. v. Barry

U.S. District Judge Thomas F. Hogan

Filed in 1989 over the foster care/child welfare system. Original intent was to reform the Department of Human Services' emergency care system, which allowed parents to voluntarily place their children with the department during a family crisis. Scope was expanded to entire foster care system when lawyers could not reach an agreement with the District. At trial, Hogan found liability on the District's part, saying children were at risk and the system in a shambles. He leveled criticism at Mayor Marion Barry, concluding that Barry knew but did "virtually nothing to improve a dire situation." Consent decree in 1991, set forth procedures and deadlines and appointed a special monitor, the Center for the Study of Social Policy. Hogan recently appointed a receiver to oversee a significant portion of the system, and the District relinquished control of several other areas to the monitor.

* Franklin v. Barry

U.S. District Judge Stanley Sporkin

Filed in 1990 alleging that District social workers were failing to advise homeless people that they were eligible for food stamps.

A settlement was reached in 1991. In 1992, Sporkin found the District in noncompliance and appointed Benjamin Greenspoon special master. Sporkin has ordered the District to submit periodic reports to Greenspoon on compliance with national standards.

* Little v. Barry

D.C. Superior Court Judge Cheryl Long

Filed in 1991 challenging the way the city was terminating some disabled people from the General Public Assistance Program. In 1992, Long declared unconstitutional the District's denial of hearings for appeals of terminations.

* Feeling v. D.C.

Senior U.S. District Judge John H. Pratt

Filed in 1982 alleging that the Human Services Department had failed to provide emergency assistance payments to families in a timely manner. Alleged there were arbitrary denials as well. City paid $150,000 for a contempt motion in 1983.

Consent decree in 1986. District held in contempt several times.

FIRE DEPARTMENT

* Hammon v. Barry

U.S. District Judge Charles R. Richey

Filed in 1984 by black firefighters challenging the department's affirmative action and hiring and promotion policies. Consolidated with cases brought by white firefighters and the United States on same issues. In August 1990, the cases were settled. A fund of $3.5 million has been used to pay black firefighters for their losses.

JUVENILE JUSTICE

* Jerry M. v. D.C.

D.C. Superior Court Judge Richard A. Levie

Filed in 1985 over conditions in the District's facilities for juveniles.

Consent decree in 1986. District found in contempt in 1988 for failing to comply with virtually every provision of the decree. Monitor Michael K. Lewis appointed.

Court related costs: More than $3.5 million

MENTAL HEALTH

* Dixon v. Bowen

Senior U.S. District Judge Aubrey Robinson

Filed in 1974 on behalf of inpatients of St. Elizabeths Hospital and those at risk of civil commitment there. Case sought alternative, community settings rather than institutionalization.

In 1975, Robinson decided that patients were entitled to the least restrictive care. Consent decree in 1980. In 1987, the hospital was transferred from federal control to the District. Throughout the 1980s and early 1990s, plaintiffs filed motions for contempt, entered negotiations with the District, filed more motions for contempt and threatened to seek appointment of a special master. In 1993, Robinson found the District in violation of a 1992 plan but said it was not contempt. He appointed a special master, Danna Mauch, of Cambridge, Mass.

Court related costs: $1.48 million

MENTAL RETARDATION

* Joy Evans v. Walter Washington

Senior U.S. District Judge John H. Pratt

Filed in 1976 on behalf of the mentally retarded housed at Forest Haven. Consent decree in 1978 provided for the eventual closing of the hospital, which has since occurred.

ENVIRONMENT

* U.S. v. D.C.

CHIEF U.S. District Judge John Garrett Penn

Filed in 1984 by the Environmental Protection Agency over water quality at the Blue Plains Wastewater Treatment Plant. Consent decree in 1984 scheduled improvements. In 1990, EPA filed a second suit and is seeking millions of dollars in fines. Settlement discussions have been ongoing for two years.

PUBLIC HOUSING

* Pearson v. Kelly

D.C. Superior Court Judge SteffEn W. Graae

Filed in 1992 alleging violations of U.S. Housing Act of 1937 over the District's management of its public housing. On Aug. 18, Graae placed the Department of Public and Assisted Housing in receivership for as long as it takes to create "a competent and professional institution."

PENDING CASES

Several major lawsuits still are pending against the District. Here are some cases that could have significant effects for the city:

* Women Prisoners of D.C. Deptartment of Correction v. D.C.

Filed in 1993, seeking improved medical, educational and vocational programs for female inmates. It also alleges sexual harassment of inmates by corrections employees.

* Inmates of Three Lorton Facilities v. D.C.

Filed in 1992 seeking improved health care and psychiatric services at the youth center and the medium and minimum security facilities.

* Robert Franklin v. Kelly

Filed in 1994 seeking improved access to prison programs and medical services for non-English-speaking prisoners.

* Neal v. Moore

Filed in 1993 alleging widespread sexual harassment of female employees in the Corrections Department.

* Quattlebaum v. Kelly

Filed in 1991, challenging D.C. legislation that rolled back Aid for Families with Dependent Children benefits to 1989 levels.The city won the first round, but an appeal is pending.

* Washington Legal Clinic for the Homeless v. Kelly

Filed in 1992 and 1993 over access given to advocates to homeless people to advise them of their rights. The city withdrew from the federal emergency assistance program to avoid the first suit; the second seeks to force the city to renew its participation.

* Wellington v. D.C.

Filed in 1993 seeking to force the District to process Medicaid applications in a timely fashion.

* D.C. Hospital Association v. D.C.

Filed in 1994, the suit challenges the city's decision to shift most of its Medicaid population into Health Maintenance Organizations and other managed-care providers.

* U.S. v. D.C.

Filed in 1991 by the Environmental Protection Agency over air quality violations at the boiler plant at St. Elizabeths Hospital.

SOURCES: Court records, D.C. officials and advocates

Articles appear as they were originally printed in The Washington Post and may not include subsequent corrections.