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Congress seeks to limit legislating federal courts.

Legislation has been introduced in the House of Representatives to reform the process of modifying and terminating consent decrees entered against states and local governments, as long called for by NLC.

The bill would give states and local entities the ability to petition to modify or terminate the decree after four years or a change in government.

Civil lawsuits filed against state and local governments often result in consent decrees--judicial orders resulting from agreements brokered between plaintiffs and the public officials being sued. These decrees are binding, legal agreements specifying how a particular problem will be remedied.

Consent decrees, however, can remain in place for decades, locking in policies that were agreed to by officials who are no longer in office.

Newly elected officials often inherit overbroad or outdated consent decrees that limit their ability to govern and respond to the priorities and concerns of their constituents.

Existing procedures discourage current state and local governments from trying to modify or terminate those decrees.

Introduced by Rep. Jim Cooper (D-Tenn.), the Federal Consent Decree Fairness Act (H.R. 3041), applies to all but school desegregation federal court consent decrees involving a state or local government.

The bill provides a three-pronged approach:

* Creates "term limits" for consent decrees. After four years or after the local or state government official who provided consent leaves office (whichever comes sooner), a state or local government could ask the federal court to modify or vacate the decree.

* Shifts the burden of proof. After a motion to modify or vacate a consent decree has been filed, the burden would shift to the plaintiff who filed the original lawsuit to demonstrate why continuation of the consent decree in its existing form is necessary to protect a federal right.

* Provides guidance for future consent decrees. The bill sets out a series of findings to guide federal courts suggesting that consent decrees be narrowly drafted, limited in duration and respectful of state/local policy interests and concerns.

"In Kentucky, we have seen firsthand how unfunded mandates and the resulting federal consent decrees can increase utility rates, making it harder for small businesses to hire and for families to make ends meet," said Rep. Geoff Davis (R-Ky.), an original co-sponsor of the bill. "This bill is a step in the right direction because it would allow government entities, like Sanitation District 1 in Northern Kentucky, to petition to end their consent decrees once they are fully compliant with the law. I look forward to working with Congressman Cooper to pass this needed bipartisan legislation."

House Judiciary Chairman Lamar Smith (R-Texas) and Rep. Ron Paul (R-Texas) are the other original co-sponsors of the bill, which is supported by NLC.

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Title Annotation:Federal Consent Decree Fairness Act
Author:Etzkorn, Lars
Publication:Nation's Cities Weekly
Geographic Code:1USA
Date:Oct 3, 2011
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