A precept of managerial responsibility: securing collective justice in institutional reform litigation.

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A precept of managerial responsibility: securing collective justice in institutional reform litigation.

Institutional reform litigation confronts public administrators with troubling dilemmas. Plaintiffs routinely accuse public officials of violating their constitutional rights. (1) Federal judges order officials to make sweeping changes to their agencies. (2) Of course, sometimes, as with the school desegregation cases, (3) federal courts have had no choice but to be heavy-handed (4) with public officials. Yet court directives often contradict the duties and responsibilities of public managers. The argument for judicial intervention is rarely straightforward.

Consider the case of Marisol A. v. Guiliani. (5) The case was filed in the Southern District of New York in 1995, shortly after the widely publicized death of Eliza Izquierdo. New York City Child Welfare Administration ("CWA") officials had placed Izquierdo, a six-year old child, in foster care. The CWA later returned Izquierdo to her mother. Despite receiving numerous reports of the mother's subsequent abuse, CWA took no further action on Izquierdo's file. Izquierdo was subsequently beaten to death by her mother. Catalyzed by Izquierdo's death, children's rights advocates sued CWA, claiming the agency failed to protect children at risk of being placed in foster homes. The lawsuit was based on various New York and federal statutes (6) and the New York and federal constitutions. (7)

Four weeks after the Marisol complaint was filed, Mayor Rudolph W. Guiliani announced his own program to reform the City's child welfare program:

Following the shocking death of Elisa Izquierdo, a child under the protection of the City's Child Welfare Administration, New York City Mayor Rudolph Guiliani initiated a sharp departure from the status quo. He separated the child welfare administration from the Human Resources Administration and created, by Executive Order No. 26 in January 1996, a new agency, [Administration for Children's Services ("ACS)"], that would report directly to him rather than through a deputy mayor, as is the case with other cabinet departments. To head the new agency, the Mayor appointed Nicholas Scoppetta as Commissioner and promised him the full financial and operational support of his administration. These moves were intended to insure that "business as usual" in child welfare services could not continue in New York City. (8) Marisol v. Guiliani was ultimately settled without a provision for federal court oversight. The judge only required that a panel of national experts review the agency's reform efforts for two years. (9) If within that time, ACS made good faith efforts towards reforming its operation, the lawsuit would not be reinstated. (10)

The case raises a larger question. Should a state's interest in the exercise of managerial discretion on behalf of legislated goals weigh in a court's determination if a human services agency has violated constitutional rights? (11) Under what circumstances should federal courts allow public administrators to manage their own agencies? How should state and local public administrators answer for their performance so as to justify this judicial restraint?

We argue that federal courts should refuse to hear institutional reform cases not only when federal court intervention would upset a state administrative scheme (the traditional Burford abstention doctrine), (12) but also when the institutional defendant is governed by a precept of managerial responsibility. (13) When the agency's challenged actions have comported with this precept, we urge federal courts to let their state counterparts determine the agency's managerial responsibility in a common law process.

The analysis begins, in Part I, by addressing the Burford abstention arguments in the Marisol case itself. In Part II, we turn to the application of abstention doctrines to institutional reform litigation generally, and Marisol in particular. In Parts III and IV, we justify these abstention doctrines on grounds of federalism and the professionalism of public administrators. In Part V, we propose a test federal judges may use to decide whether to abstain from an institutional reform litigation case. In Part II, we derive the basis for this test w our precept of managerial responsibility -- from the intellectual history of the concept of responsibility in public administration.

I. ABSTENTION IN MARISOL A. v. GUILIANI

In Marisol A. v. Guiliani, the federal district court dismissed the child welfare agency's motion urging the court to abstain under the Burford abstention doctrine. The Burford doctrine permits a federal court to relinquish jurisdiction in order to avoid unnecessary conflict with a state's internal administration. The agency argued that the district court should have avoided interfering with the child welfare policy of New York City. (14) The agency claimed that Burford abstention was proper because "a federal ruling could conflict with [New York's] administrative scheme, and the area of child welfare services is an area of...

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