Reflections on Monitoring the Implementation of Court Orders in Class Action Lawsuits

Alexis de Tocqueville observed in the 1830s, ‘‘Scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question’’ (cited in Baker, 1945). De Tocqueville would likely have felt further vindicated in his observation had he witnessed the modern explosion of class action litigation that ventures beyond private commercial disputes and into the domains of traditional governmental functions. Such lawsuits have sought judicially imposed equitable remedies rather than money damages in actions challenging governmental policies and practices that are alleged to adversely affect members of a defined class of people. Usually such actions are brought to address serious and intractable long-standing problems that are alleged to cause significant harm to members of the plaintiff class and that have been impervious to other attempts at remedying them. Examples include class actions seeking to end racial segregation of school students; to remedy overcrowding, understaffing, abuse, and neglect in prisons, jails, state mental institutions, and juvenile detention facilities; to ban discrimination in access to public housing or segregation on the basis of disability; and so on. If the plaintiffs prevail in their case, the resulting equitable remedy, whether imposed by the court itself or agreed upon between the parties in a Consent Judgment, may require complex and timeconsuming actions by the defendants to address the underlying grievances. Often, either at the inception or subsequently during the remedial phase, the court appoints a court monitor or special master to assist the court in supervising the implementation of the remedy. In this article I discuss my experiences with such class actions while playing a variety of different roles in the legal system. These include working as a law clerk in appellate courts, dealing in part with judicial decisions about public agency compliance with legal obligations; serving in the office of counsel to the governor of New York, helping to defend the state in class action lawsuits against the state mental health and prison systems; running a state agency responsible for monitoring mental health and mental retardation systems in New York as well as administering the Protection and Advocacy system that brought litigation against state agencies for violating the rights of service recipients; serving in various roles in monitoring compliance with court orders in several states in class action cases involving large systems of human services; and consulting with the United States Department of Justice in cases under the Civil Rights of Institutionalized Persons Act (1997). Over the approximately 40-year period covered by this article, acceptable terminology has changed from mental retardation to developmental disability and currently to intellectual disability. In this article I have used the prevailing terminology during the periods of time discussed. In a number of these cases, I served as a member of court monitoring bodies, including the Wyatt v. Stickney litigation in Alabama (a substantial part of the early history of this case in recounted in Wyatt v. Rogers, 1997) originally commenced in 1970; the Willowbrook litigation in New York commenced in 1972 (New York State Association for Retarded Children, Inc., v. Carey, 1975); Gary W. v. State of Louisiana (1976) in the 1980s; Evans v. Williams in Washington, DC (the history of this litigation is summarized in Evans v. Fenty, 2007), which has been going on since the mid-1970s; CAB v. Harvey in Maine (the history of this litigation is summarized in Consumer Advisory Board v. Harvey, 2010), which is about the same age; and in the Blackman v. District of Columbia special-education litigation in the District of Columbia (2006), which has been going on for approximately 10 years. INTELLECTUAL AND DEVELOPMENTAL DISABILITIES VOLUME 49, NUMBER 5: 374–382 | OCTOBER 2011