Horne v. Flores: The Roberts Court Takes Aim at Institutional Reform Litigation

In the rush of significant decisions handed down by the Supreme Court in the last week of June, little attention has been paid to Horne v. Flores (No. 08-829).  It may be because the 36 page majority opinion by Justice Alito, and the 48 page (with appendices) dissenting opinion by Justice Breyer are a heavy schlog through a 17 year old litigaiton raising claims under the Equal Education Opportunity Act of 1974 and most recently involving application of Federal Rules of Civil Procedure 60(b)(5). In a 5-4 straight right-left split, the Court reversed the 9th Circuit and sent the case back to the District Court in Arizona for reconsideration of the appellants Rule 60(b)(5) motion under the Court's new clarified understanding of how that rule applies to "institutional reform injuctions."  In addition to its interest to civil rights lawyers and public lawyers generally, the case should interest political scientists and other socio-legal scholars for what it hints about a growing willingess by the Court's right flank to invite the unravelling of institutional reform injunctions (especially consent decrees). 

The complex party structure of the appeal provides its own testament the political dynamics that now face such injunctions (especially during times of fiscal stress). In 2006 the Arizona legislature passed a law (HB 2064) aimed at resolving the funding dispute at the core of the case which involved funding for the English language instruction of non-English speaking students in Arizona public schools (the case arose in Nogales and there is a separate and very complex strand involving its application to the whole state that I will ignore here).  The Governor and the State Board of Education opposed HB2064, but the Governor allowed it to pass into law without her signature and requested the AG to move for accelerated consideration by the District Court of a motion to revise the six year old injunction in the case in favor of a new funding formula embodied in HB2064.  Citing the fact that the the principal defendants in the case were now siding with the plaintiffs, the Speaker of the House and the President of the Senate sought and were granted leave to intervene.  It was their arguments that seem to have persuaded the 5-4 majority.

Justice Alito's opinion bristles with interesting and provocative dicta about the role of federal courts in institutional reform and the need for appellate courts to operate very flexibly in an area so fraught for public interest and democratic accountability.  While liberals, like myself, will probably not like the clear invitation to states to try and break-out of institutional reform injuctions (especially consent decrees), the opinion is bracing stuff about judicial politics coming after the warm milk concoction we were forced to drink during the Sotomayor hearings about judges being umpires floating above the field of policy.  Here are a few interesting highlights:

Second, institutional reform injunctions often raise
sensitive federalism concerns. Such litigation commonly
involves areas of core state responsibility, such as public
education.  (Slip Op. 11)

Federalism concerns are heightened when, as in these
cases, a federal court decree has the effect of dictating
state or local budget priorities. States and local govern-
ments have limited funds.  When a federal court orders
that money be appropriated for one program, the effect is
often to take funds away from other important programs. (Slip Op. 11)

Finally, the dynamics of institutional reform litigation
differ from those of other cases. Scholars have noted that
public officials sometimes consent to, or refrain from
vigorously opposing, decrees that go well beyond what is
required by federal law. (Slip Op. 11)

Injunctions of this sort bind state and local officials to
the policy preferences of their predecessors and may
thereby “improperly deprive future officials of their desig-
nated legislative and executive powers.”  Frew v. Hawkins,
540 U. S. 431, 441 (2004).  (Slip Op. 12)

Where “state and local
officials. . . inherit overbroad or outdated consent decrees
that limit their ability to respond to the priorities and
concerns of their constituents,” they are constrained in
their ability to fulfill their duties as democratically-elected
officials. (Slip Op. 13)

It goes without saying that federal courts must vigi-
lantly enforce federal law and must not hesitate in award-
ing necessary relief.  But in recognition of the features of
institutional reform decrees, we have held that courts
must take a “flexible approach” to Rule 60(b)(5) motions
addressing such decrees. (Slip Op. 13)

What goes without saying is that there will be a great deal of new litigation testing the meaning of institutional reform injunction under these new defendant (and intervenor) friendly standards.  (Justice Breyer, citing the classic Judicial Policy Making the Modern State by my Colleague Malcolm Feeley and Dean Edward Rubin of Vanderbilt, argues that this case wasn't an institutional reform case at all).  Such challenges will be particularly likely given the intense budgetary battles produced by the Depression here in California and in other states.

I will be spending some of my last free days of summer writing an amicus brief on the application of Flores to an important consent decree involving parole revocations here in California.  Last November the California voters passed a constitutional amendment involving victims rights that included a portion intended to largely erase this consent decree.  At the sametime the state has made big promises to reduce parole revocations (a reduction process facilitated by the consent decree). The state has already sought a modification of the decree (amounting to a whole sale erasure of it) under Rule 60(b)(5) even before Horne v. Flores came down.  It will be interesting to see how the 9th Circuit responds after its severe spanking at the hands of Justice Alito.