The David C. v Leavitt Lawsuit
In 1992, David C. v Leavitt was filed shortly after the election capturing attention in the media and positioning child welfare as a key issue. While in litigation, there were a couple of key issues at play. The David C. suit was filed by the National Center for Youth Law (NCYL) which focused on class action litigation in the child welfare and juvenile justice field. Also, the Center for Youth Law, Bill Grimm, and his colleagues, were motivated by the money. If they were able to get a judgment against the State, they could write themselves into it. If the governor and his team were able to fix the problems short of intervention and on-going jurisdiction of the federal court, there was no money in it for NCYL or Grimm. Leavitt states, “I wasn’t persuaded that they could be so nefarious at first, but the more I dealt with them, the more persuaded I became. I now conclude that obtaining a judgment was, in large measure, what motivated them. They had a case, they wanted to bring it, and they milked it for 14 years…we’re not talking about small rates. They were milking it a 250 and 300 dollars per hour back in the 90’s.” A recent report prepared by the Office of Legislative Fiscal Analyst details the amount of public funds expended on NCYL lawyers and monitors throughout the course of the David C. The total cost was $6,841,391.
The National Center for Youth Law is headquartered in San Francisco. At one point Governor Leavitt personally traveled there to show his commitment to improving the status of child welfare in Utah and to attempt to gain a mutual commitment to work things out. Leavitt recalls his experience: “I thought I would go there and tell these people, ‘I want a change; I want to fix the system; I will work with them collaboratively, and we’ll fix this without litigation….’ I went to their office and went into a conference room with Bill Grimm. He brought these case files that were 3 inches thick and laid them down on the table. He began to tell stories of these children and he would call them by their first names and tell these horrible stories. I’d say, ‘Bill, I know the stories. I’m here to try and resolve this.’ …That day galvanized my understanding that this was about kids being used to build a law practice.”
The pressure of the lawsuit was immense and drew resources away from actually fixing the problem. At the same time, the legislature was pushing hard to pass legislation to demonstrate leadership and show they could reform the system. Legislators discussed that reform could potentially stave off court intervention. In hindsight, it was never realistic, however, to believe that anyone could prevent the litigation form moving forward. The administration ultimately concluded that it could not fight the litigation and the legislature simultaneously. The legislature was going to pass legislation whether the administration liked the legislation or not. Governor Leavitt reflected, “I remember one of the quite pivotal experiences, an important experience for me; we were in a meeting in the Governor’s Boardroom, and I was pushing back against the legislators, saying to them, ‘I’m fighting this lawsuit; it isn’t helping that you’re out trying to do this legislatively right now. It’s unclear what reforms will come out of the litigation…In many cases you want different things than they want, and I can’t fight a two front war.’”
From this, Governor Leavitt learned almost immediately that he had to work with the legislature. In a kind way, Bryant Howe, lead legislative research analyst for human services, enlightened the Governor by saying, “The problem here is that the administration is not acknowledging the fact that the legislature is an independent branch of government and they have a constitutional responsibility to do what they can to solve this problem, too.”
So, in the 1994 session, with the department’s support and involvement, the Legislature enacted Representative Brent Haymond’s Child Welfare Reform Bill. This bill was a comprehensive set of policy and budget changes intended to not only improve outcomes for children but to set a foundation for potential settlement of the David C case. This bill carried a $5 million fiscal note—historic in that it was the largest fiscal note of any bill enacted to that point. In addition to policy changes directly related to how child welfare cases were to be handled by DCFS as well as the juvenile court system, the bill incorporated specific oversight mechanisms such as the Child Welfare Legislative Oversight Committee, an annual review of cases by the DHS Executive Director’s Office, and an annual review of that review by the Legislative Auditor General. Governor Leavitt and the Legislature wanted to show the state was capable of monitoring its own performance and that it could “self-correct” when problems existed.
Despite the passage of the Child Welfare Reform Act, the litigation process continued. As time went on, Governor Leavitt received counsel from the Attorney General’s office, which in retrospect was really bad advice. As it turned out, the advice was much more aligned with the perspectives and desires of the advocates than with the interests and realities of the agency and the state.
Governor Leavitt was advised by the Attorney General to settle the case without going to trial. The plaintiff’s and the AG crafted a settlement agreement that was overly complex and did not focus on the right reforms. As Robin explains the situation, “At the time the agency had inexperienced leadership at the department level and division level leadership which really wanted to improve services to children and really thought they could do ‘everything for every child’ and comply with the settlement agreement. They thought they could do it all if they just received the necessary resources. So the Department probably didn’t give the Governor good advice either about whether or not this was realistic to do or the right thing to do.”
In a legacy interview with the Deseret News published on August 31, 2003, Governor Leavitt reflected, “if I were asked, ‘Name the biggest mistake you’ve made looking back over the past 10 years,’ settling that lawsuit would be it.” http://www.deseretnews.com/article/510050709/Leavitt-Social-issues-satisfying.html
The adminstration signed the David C. Settlement Agreement and the Federal Court accepted the terms in August of 1994. The agreement included 93 reform items and over 300 sub-items. The state was required to fund significant increases in caseworkers, treatment services, assistant attorneys general, guardians-ad-litem, and a new management information system along with other technology tools for caseworkers. However, the technology was not effective because the databases were not built and the caseworkers were content to work with hard documents and paper files.
The settlement created a 3-member David C Monitoring Panel to oversee how the state performed and report to the Court. Throughout the years 1994-1998, the state struggled with in complying with the agreement’s numerous provisions, many of which had no direct relationship to safety and well-being outcomes for children and families. Millions of additional federal and state dollars were invested into the child welfare system in the form of staff and services, yet the performance of the department lagged.
In the settlement, Governor Leavitt was uncompromising on one element – the settlement was to contain an absolute end date. The experience of other states clearly showed that absent a firm end date, class action suits like this dragged on for years and years. The original David C. Settlement Agreement included a provision that the agreement would expire four years after its effective date—August 28, 1998. The Plaintiffs could sue again, but the original agreement would expire.
When the four years came to a close, DHS celebrated for a brief two weeks when Judge Winder ended the agreement as provided. Judge Winder retired shortly after his ruling and a new federal judge, Judge Tina Campbell took over case. Based on a petition by the Monitoring Panel, Judge Campbell ruled that she had continuing jurisdiction, and the agreement of the parties to terminate the agreement was not binding on her. So, court oversight continued. The Governor appealed this decision, and to this day, it stuns him that the state lost the appeal. Governor Leavitt speculates that this ruling could be explained by the fact that Judge Campbell worked in the social service area long enough that she had attained personal attitudes and feelings about the case.
Robin explained that the monitoring panel, as designed in the original settlement, was destined for failure. Each side selected a panel member to represent their interests. The Governor appointed Larry Lunt as the state designee. NCYL appointed Sherri Ann Cottrell. The third member was to be agreed to by both parties. Pamela Atkinson was given that distinction. Robin reflected, “That whole set up was uneven, let’s just set aside personalities, that design was doomed to failure. The role of the Panel was to determine what ‘compliance’ with the settlement agreement would mean—what the standards would be—and then determine if the state was in compliance. The agreement itself contained no such definitions. The Panel, much like the state players who advised the Governor to enter into the agreement, believed that the state could and should reach the highest standards.” Governor Leavitt said, “I remember how they kept increasing the level of what was expected, so even when we did meet them or come close, they would modify how they defined compliance.” Documentation was also an issue—compliance was measured by what was or was not in the case record, there was no measure of what was happening to the children, it was all about the file, the process, and not about their outcomes.
The monitoring panel eventually collapsed under its own weight, and by 1999 all parties agreed it should be discontinued. In its place, the court appointed a single court monitor, Paul Vincent, Director of the Child Welfare Policy and Practice Group. Paul was the past head of the Alabama State Child Welfare Agency and had managed that agency while it was also under court jurisdiction. While this movement to a single point of oversight was an improvement, it was still turning over the complex child welfare system to outside control and compliance problems persisted.
In 1999 Richard Anderson was appointed as Child Welfare Director – the fourth director since the inception of the David C. suit and settlement. Richard had spent his entire career in public social services and child welfare and had the highest level of respect from line staff, community stakeholders, and legislators. He was successful in convincing Judge Campbell and Paul Vincent that the best way to actually improve the child welfare system would be to allow the state to re-do the settlement agreement to reflect the policies and direction that the state believed would be most beneficial to children and families. He was willing to invest resources and energy into redrafting the agreement. Richard also established appropriate management structures and processes at all levels within the agency. Once that was done, performance and compliance began to show dramatic improvements and Richard started the state on a path that led to ending court oversight and vast improvements in the system.
In the end, the Governor summed it up by saying, “To go to the bottom line here, we spent tens of millions of dollars to try and improve the situation. We also spent millions of dollars trying to satisfy the courts and pay lawyers and monitor panels and people who had their own interests; that money could have gone to children, and I don’t think we did anything much differently than we would have done on our own given the fact that the state law had been changed and we had appropriated the money for improving the system. There were a lot of misguided incentives in that agreement.” To this day, Governor Leavitt continues to provide other governors advice to stay out of federal court with anything to do with the state. As time passed and Governor Leavitt became Secretary of Health and Human Services, he realized Utah wasn’t alone. By then enough time had passed and enough work had been put into child welfare that Utah’s system looked like a very good system compared to many other states.
Governor Leavitt acknowledges that sometimes people and governments need to be a pushed to change. He would like to think he would have worked hard to improve child welfare regardless of the legislatures’ involvement or the lawsuit. In the end, both pushed the state towards change and improvement despite an enormous cost. This conflict proceeded for fourteen years, well beyond Leavitt’s time as governor. Although fourteen years is a long time, comparatively, many agreements like this go on for 20 or more years. Only a handful of states that were sued in the 80’s and 90’s and entered into settlement agreements or found themselves the subject of consent decrees have been able to get out from under these convoluted agreements. To this day, most of those states remain under court jurisdiction.
As Secretary of Health and Human Services in the Bush administration, Governor Leavitt pressed the Administration for Children and Families to create standards that could become national standards, so courts could use them as a measuring stick to avoid the arbitrary circumstances under which the State of Utah was placed. Federal courts had no standards and could only use standards expressed in the various agreements. If that did not fit or meet the need, courts would simply create new standards to suit their own purposes. The standards that Governor Leavitt pushed for in Washington D.C. were a great accomplishment and allowed states such as Utah to base improvement plans and performance expectations on child outcomes as opposed to processes.
Robin explains that while lawsuits are an expected “fact of life” in the public human services arena, the fact that the National Center for Youth Law was an out of state organization was problematic. NCYL had or has no on-going presence in Utah—did not live and function in the same environment that the agency did. They had no accountability within Utah. They could fly in, state their views and accusations, make their demands, and then fly back out agaain. Robin compares and contrasts this to the Lisa P. v Leavitt lawsuit which was filed and settled during this same timeframe. This suit related to moving individuals with severe disabilities served in the State Developmental Center into community based settings. The Lisa P. suit was filed by the Disability Law Center, a Utah-based organization. On-going negotiations and oversight was very different than those with NCYL based in San Francisco. The Disability Law Center was much more responsive to the state and willing to work with the state in finding local solutions to problems as opposed to being greedy, intractable, and cavalier.
|David C. v Leavitt Lawsuit overview from the National Center for Youth Law:http://www.youthlaw.org/publications/fc_docket/alpha/davidcvhuntsman/David C. v Leavitt Lawsuit:
David C. v Leavitt Deseret News Article: