D.C. Attorney General Peter Nickles is not known for being shy about his feelings. So when U.S. District Judge Ellen Segal Huvelle – known as a no-nonsense personality herself – issued an order demanding that Nickles appear at a hearing Wednesday, it promised the possibility of a great courtroom throw-down.
They didn’t disappoint.
By the end of the afternoon in Washington’s federal trial court, Huvelle had been pushed nearly past the point of words, thrusting together her hands into a time-out signal to try to interrupt Nickles. For his part, Nickles had already chastised the judge for her “unseemly” comments. He also appeared to make a reading recommendation.
The source of the afternoon’s commotion? A recent filing in the case of Evans v. Fenty, a 34-year-old class action dealing with the quality of support services that the District of Columbia provides to the mentally disabled. It is one of several cases in which the city is attempting to escape settlements known as consent decrees, which require historically troubled agencies to meet ambitious performance targets. Nickles, who spearheaded one of the first such cases while in private practice, has publicly criticized the settlements as unrealistic and burdensome to the city.
On Wednesday morning, Huvelle had issued an 84-page decision rejecting the District’s recent motion to vacate the Evans consent decree. It was the second such rejection from a federal judge this week, following hot on the heels of Senior Judge Thomas Hogan’s similar ruling in a case involving D.C.’s child services agency.
But while Huvelle’s ruling featured heavily in the afternoon’s action – Huvelle noted that the city had already appealed her decision to the U.S. Court of Appeals for the D.C. Circuit – the actual subject was an “exit plan” the city had submitted on March 29, outlining a strategy that would have ended court monitoring in nine months.
Huvelle seemed affronted by the document. She had asked the parties to negotiate a settlement, she said. But the District had unilaterally created a plan on its own. The plan was insufficient, she said. The District clearly wanted control of its agencies “no matter what the costs or the legal principles,” she said.
“You believe, and I assume the mayor believes, that the sooner the courts are out the better,” she told Nickles, before adding later, “The problem is you’ve lost the case, so I don’t know what it is you want.”
Nickles began his remarks by thanking Huvelle for her “invitation” to attend the afternoon’s hearing, which earned a laugh from the courtroom audience. But he had his own barbs ready.
“This castigating of our efforts is unseemly,” he told her. He described the District’s plan as “the best thoughts of the best woman in the city on the issue.”
Eventually Nickles launched into something of a monologue (he objected when Huvelle called it a “speech”) on the evils of consent decrees, recalling his own “30 years suing the District,” and the problems the cases had created for the city.
“You have too many lawyers trying to run the city,” he said. Along the way, he brought up one of his favorite books, “Democracy By Decree,” a critical take on, yes, consent decrees.
As for the issue of settlement, Nickles explained that the city was ready to negotiate. The problem, he said, was that the plaintiffs wanted the services for the mentally disabled placed under the control of an independent receiver, who would run them in lieu of a government official. Huvelle countered that nobody wanted a receiver – the plaintiffs wanted a “special administrator” with more limited powers. Nickles said that amounted to the same thing.
“I take the position, your Honor, that elected officials should be able to run the city’s agencies,” Nickles said.
The hearing continued mostly as a dialogue between Nickles and Huvelle, with occasional appearances by other parties. Plaintiffs’ lawyer Paul Kiernan of Holland & Knight at one point told Huvelle he didn’t want to “gild the lily” before mostly supporting points she had made.
When Nickles questioned what the judge found objectionable in the District’s exit plan, she responded with a sarcastic “I’m glad you asked,” before rolling off a list of issues. Among them, she said, there were no means to measure whether the city had met its goals.
Still, the back and forth continued. At points, Huvelle held her head in her hands in apparent frustration. “Can I ask a question? Can I ask a question?” she broke in once.
By the end of the hearing, however, Nickles had committed to sitting down for negotiations, as long as the appointment of a receiver wasn’t a pre-condition. And Huvelle had a recommendation for the talks.
“I think we need some cooler heads,” Huvelle cautioned. “And I don’t know where that leaves you, Mr. Nickles. You’re not a cool head.”
“I’ll find some cool heads,” Nickles called back.