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

AuthorBertelli, Anthony M.

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.


    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 substantial state concern." (15) The court rejected this motion, reasoning that Burford abstention was not appropriate. According to the court, the plaintiffs did not ask the court to interfere with or change the underlying policies of the agency. Instead, the court reasoned, the plaintiffs had asked the court to ensure agency compliance with an existing administrative and statutory scheme. (16)

    The court recognized that the Burford doctrine was intended to keep federal courts from interfering with state efforts to develop, effect, and enforce state policy. (17) Although the court agreed that child welfare is an area of substantial state concern, the court refused to abstain since the plaintiffs asked the court to ensure agency compliance with an existing administrative and statutory scheme. (18) We disagree. What exactly had the plaintiffs' requested?

    The Marisol plaintiffs claimed New York's child welfare agency had mishandled its cases in violation of the Federal and State Constitutions, federal and state statutes, and state administrative regulations. The plaintiffs requested injunctive and declaratory relief. (19) Furthermore, plaintiffs' requested that the court appoint a receiver to oversee the injunctive relief, restructure the child welfare system, and ensure the agency's compliance with all applicable law. (20) This drastic relief was sought against an agency that Mayor Guiliani had only recently restructured. (21) There is no plausible way the court could "ensure agency compliance with an existing administrative and statutory scheme" (22) without interfering with the scheme, embodied by the new ACS itself, that Mayor Guiliani had created -- a scheme that had not been given the opportunity to show its potential for effective child welfare administration. One of the defendants' experts described the easily-misunderstood context in which ACS functions:

    From a child advocate's perspective, from the perspective of Children's Rights, Inc., for example, the relevant "unit of analysis" and focus of concern for an agency such as ACS is the individual child, the individual case. The goal of advocates is the treatment of each and every case in accordance with an uncompromised moral imperative: every child must be protected with skill, good judgment, and utter humanity so that no mistakes are made, no child is lost, no harm is done, ever.... An idealistic world view of mistake-free administration may be held up as a goal to strive for, but cannot be taken as a realistic standard for assessing the competence of management. (23) The Marisol court could not, in granting the injunctive relief requested by plaintiffs, avoid interfering with state efforts to develop state policy. (24) To accept such a responsibility is to embrace the "idealistic world view of mistake-free administration," (25) which ACS, as an executive agency, could not practically achieve under any circumstance.


    The U.S. Supreme Court has carved out three doctrines permitting federal courts to abstain from adjudicating claims over which they have proper jurisdiction. (26) The Pullman doctrine, named for the Supreme Court's decision in Railroad Commission of Texas v. Pullman Co., (27) suggests a federal court must avoid deciding a federal constitutional question when the case can be disposed of on state law grounds. (28) Pullman abstention is not proper when a case involves a nonconstitutional federal issue that can be resolved by deciding an underlying state law issue. In such cases, federal courts should decide both the federal and state law issues. (29) Such situations invoke the Supremacy Clause, and transform the case into an interpretation of federal law alone. (30) Thus, Pullman abstention is not proper in a case like Marisol, where the plaintiffs relied on federal statutory claims.

    A second abstention doctrine arose in Younger v. Harris, where the Supreme Court held that federal courts are not permitted, except in extreme instances, to interfere with state criminal prosecutions. (31) The Court later extended the reach of Younger abstention to situations where federal claims were or could have been presented in an ongoing state judicial proceeding dealing with an important state interest. (32) In Marisol, the child welfare agency unsuccessfully argued that issues regarding its compliance with state and federal statutes could have been heard by the family courts of New York State. (33) The court rejected this argument, reasoning that none of the plaintiffs were improperly challenging a state court proceeding through the federal courts. (34) Apparently, the fact that the plaintiff did not have an ongoing case against the agency in a New York state court was dispositive. We will not challenge the court's loosely reasoned holding on the Younger issue, (35) since a third abstention doctrine, also rejected by the court, fits the Marisol case more appropriately.

    That doctrine originated in the Supreme...

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