John O'Leary is a former GOVERNING contributor. He is co-author of "If We Can Put a Man on the Moon: Getting Big Things Done in Government."E-mail: email@example.com
When a well-intentioned public official makes a decision, they create winners and losers. Sometimes, the losers sue.
The cost of these judicial adventures -- in terms of money, time and organizational uncertainty -- can be high.
In California, officials decided to use a public-private-partnership model for the billion dollar project to upgrade the 1.6 mile Doyle Drive that leads to the Golden Gate Bridge. In response, the Professional Engineers in California Government, a union of state engineers, has taken the project to court, claiming the state is "illegally proceeding with a public-private partnership." According to the Wall Street Journal, "The suit is asking the court to force the state to put the project up for bid and stop work in the meantime."
In New York City, city officials were planning to trim 150 plumbers, carpenters and electricians from city hospitals. Following a lawsuit by the unions -- joined by three city councilmembers -- a judge blocked the layoffs. "The precedent is very troublesome," Deputy Mayor Stephen Goldsmith told the New York Daily News, stating that the city plans to appeal. "We've got a multibillion-dollar deficit. ... How do we protect patients or families in need of services or shelter for the homeless if we have every special-interest group appealing to a judge for special protection?"
Any public decision can find its way to court. When the high school in Yarmouth, Maine, suspended a lacrosse player for off-hours behavior, parents challengedthe constitutionality of the school's code of conduct.
The courts are often the site of final appeal for those who feel wronged by authorities, whether they are public employees or those who receive services. Court-ordered improvements to ensure compliance with the law can serve an important role in our democracy -- and they can also go too far.
Consider prison reform. It took a number of lawsuits and tragedies such as the Attica uprising to improve the condition of prison. But in the 1980s and 1990s prisoners were filing frivolous suits over soggy sandwiches and missing TV shows. The Prison Litigation Reform Act of 1996 placed limitations on inmates' right to file suit against correctional facilities. These limitations include exhausting all available administrative remedies and the loss of "good time" for multiple filings that end in dismissal. This reform has helped slow the steady flow of trivial legal challenges by prisoners.
More serious legal challenges are a different matter. California is currently fighting judicial orders to reduce overcrowding, which could lead to the federally-mandated release of prisoners. The debate here is more weighty. On the one hand, prisoners have a right to reasonable treatment, while California calls the court order a "sweeping intrusion" into the state's management of its prison. Eighteen states have joined with California in the case that could have huge fiscal consequences for prison systems throughout the country.
Courts exist for a reason, but over-reliance on the bench for operational oversight can produce more due process than is due. Particularly for public employees, the phalanx of legal protections (and thus potential landmines for officials) include the Americans with Disabilities Act, various state statutes and collective bargaining agreements. These protections are nice to have, but they aren't cheap, either.
Lawsuits can be costly for winners and losers alike. Even if your decision is upheld in court, the time, effort and cost doesn't make you feel like you've won. Organizationally, a lawsuit can become paralyzing, and its pending outcome can produce inefficient uncertainty.
Even if a lawsuit fails, it produces a chilling effect on public officials who must consider the cost of being sued when making their next decision. The tendency will be to stick with the status quo, to play it safe rather than risk a legal rebuke.
Americans cherish their democratic protections, and no doubt courts can rectify legitimate shortcomings of fair play. But have the costs gotten out of hand? Can we maintain standards of fair play without putting the courts in the position of second-guesser? Is there some broader reform, similar to the Prison Litigation Reform Act, that can preserve needed protections while limiting the "sore loser" suits?
This thorny challenge doesn't lend itself to any easy answer or bullet point of advice. But in a period of extraordinary fiscal challenges, we are likely to see a number of difficult choices, be they furloughs, downsizings, outsourcings or service reductions -- challenged in court. Will the results be efficient? You be the judge.