Amicus Curiae Brief — Michael Faust, Director, Arizona Department of Child Safety, Petitioner v. B. K., By Her Next Friend Margaret Tinsley, et al.

No. 19-765

In the

Supreme Court of the United States

__________________

MICHAEL FAUST, DIRECTOR,

ARIZONA DEPARTMENT OF CHILD SAFETY,

Petitioner,

v.

B. K., BY HER NEXT FRIEND

MARGARET TINSLEY, ET AL.,

Respondents.

__________________

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

__________________

BRIEF OF AMICUS CURIAE CHILDHELP, INC.

IN SUPPORT OF PETITIONER

__________________

Peter A. Gentala

Dominic E. Draye

General Counsel

Counsel of Record

CHILDHELP, INC.

GREENBERG TRAURIG LLP

6730 N. Scottsdale Rd.

2101 L Street, N.W.

Suite 150

Washington, DC 20037

Scottsdale, AZ 85253

(202) 331-3168

(480) 922-8212

drayed@gtlaw.com

pgentala@childhelp.org

Counsel for Amicus Curiae

January 15, 2020

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . ii

INTERESTS OF AMICUS CURIAE . . . . . . . . . . . . . 1

SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . 3

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

I. This Case Shows the Error in the Ninth Circuit’s

Now-Entrenched Parsons Rule for Class

Certification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

II. The Reform of Arizona’s Child Welfare System

Illustrates the Importance of this Issue . . . . . . 10

A. The Decision Below Threatens Child

Welfare. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

B. The Decision Below Threatens

Federalism . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

ii

TABLE OF AUTHORITIES

CASES

Ashcroft v. al-Kidd,

563 U.S. 731 (2011). . . . . . . . . . . . . . . . . . . . . . . . 5

City of Escondito v. Emmons,

139 S. Ct. 500 (2019). . . . . . . . . . . . . . . . . . . . . . . 5

DL v. Dist. of Columbia,

713 F.3d 120 (D.C. Cir. 2013) . . . . . . . . . . . . . . . . 7

Horne v. Flores,

557 U.S. 433 (2009). . . . . . . . . . . . . . . . . . . . . . . 14

Kisela v. Hughes,

138 S. Ct. 1148 (2018). . . . . . . . . . . . . . . . . . . . . . 5

Kress v. CCA of Tenn., LLC,

694 F.3d 890 (7th Cir. 2012). . . . . . . . . . . . . . . . . 7

M.D. v. Perry,

675 F.3d 832 (5th Cir. 2012). . . . . . . . . . . . . . . . . 7

Parsons v. Ryan,

754 F.3d 657 (9th Cir. 2014). . . . . . . . . . . . passim

Shook v. Board of County Commissioners,

543 F.3d 597 (10th Cir. 2008). . . . . . . . . . . . . . . . 7

Wal-Mart v. Dukes,

564 U.S. 338 (2011). . . . . . . . . . . . . . . . . . . . 7, 8, 9

STATUTES

S.B. 1246, 54th Leg., 1st Sess. (Ariz. 2019) . . . . . . 17

iii

RULES

Fed. R. Civ. P. 23(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . 6

Fed. R. Civ. P. 23(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . 6

Fed. R. Civ. P. 23(b)(2) . . . . . . . . . . . . . . . . . . . passim

OTHER AUTHORITIES

Ariz. Dept. of Child Safety, “Semi-Annual Child

Welfare Report” (Sept. 2018, Rev. Oct. 29, 2018)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Amy Bennett, 2018 CIO Winners: Recognizing IT

Excellence, CIO (May 1, 2018), https://www.itwor

ld.com/article/3269275/cio-com-honors-the-2018cio-100-winners-and-hall-of-fame-inductees.html

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 13

Dave Boucher and Anita Wadhwani, No More

Federal Oversight for Tennessee Children

Services, The Tennessean (July 18, 2017) . . . . . . 2

John Bursch & Maura Corrigan, Rethinking

Consent Decrees, Am. Enter. Inst. (June 2016) . 16

Casey Family Programs, Information Packet:

Supportive Communities (July 2019), available

at https://caseyfamilypro-wpengine.netdnassl.

com/media/SComm_Consent-decree-summary_

fnl.pdf . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

iv

Examining “Sue and Settle” Agreements: Part II: J.

Hearing Before the Subcomm. on

Intergovernmental Affairs and the Subcomm. on

the Interior, Energy, and Environment of the

Comm. of Oversight and Government Reform,

H.R., 115 Cong. 1 (July 25, 2017). . . . . . 15, 16, 17

Soumya Karlamangla, Arizona to Investigate Why

6,000 Child Abuse Reports Were Ignored, Los

Angeles Times (Nov. 6, 2013) . . . . . . . . . . . . . . . 11

Richard A. Posner, The Federal Courts: Challenge

and Reform (1996). . . . . . . . . . . . . . . . . . . . . 14, 15

Press Release, Office of the Governor, Arizona

Department of Child Safety Clears Inactive Case

Backlog (Mar. 16, 2019) https://azgovernor.gov/

governor/news/2017/03/arizona-departmentchild-safety-clears-inactive-case-backlog. . . . . . 12

J.B. Wogan, How Arizona Fixed Its Broken Child

Welfare System in 2 Years, GOVERNING (Apr. 27,

2017), https://www.governing.com/topics/healthhuman-services/gov-arizona-child-welfare-gregmckay.html . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 13

1

INTERESTS OF AMICUS CURIAE1

Amicus curiae Childhelp, Inc. (“Childhelp”) is one of

the oldest and largest nonprofit organizations focused

on helping children who are victims of child abuse and

neglect or are otherwise at risk. Over the last six

decades Childhelp has served millions of children.

Childhelp’s programs include foster care and adoption

services, behavioral health services, residential

treatment, an abuse prevention curriculum for grades

pre-K through 12, and a nationwide hotline with text

and live-chat capability. Childhelp provides services

nationwide but has its headquarters in Arizona.

In Arizona, Childhelp works closely with the

Department of Child Safety (“DCS”) at the Childhelp

Children’s Advocacy Center. The Center is a one-stop

location that offers multiple co-located services,

including medical care, counseling, and victim advocacy

services. Through close collaboration with DCS,

Childhelp has been able to serve thousands of children

in Arizona. Childhelp also has experience in States

where federal courts have assumed control of children’s

services. In Tennessee, for example, Childhelp serves

children through foster care and adoption services and

operates a child advocacy center. Tennessee’s childwelfare system has just emerged from 18 years of

1

No party or counsel for a party has authored any portion of this

brief, and no one other than Amicus has funded the preparation or

submission of this brief. See Sup. Ct. R. 37.6. Counsel for

petitioners and respondents have provided written consent to the

filing of this brief. Greg McKay, the former director of the Arizona

Department of Child Safety, joined Childhelp in September 2019.

He took no part in the preparation of this brief.

2

federal judicial management. See generally Dave

Boucher and Anita Wadhwani, No More Federal

Oversight for Tennessee Children Services, The

Tennessean (July 18, 2017). For Childhelp and other

providers of children’s services, the federal judiciary’s

management of this traditional state function impacts

the delivery of care. It stifles innovation and calibrates

the machinery of change to the lumbering pace of

litigation.

As a provider of services to children in Tennessee,

which has endured federal court supervision for many

years, and in Arizona, which now risks the same fate,

Childhelp writes to ask the Court to consider its

perspective on federal court supervision and what it

means for children.

3

SUMMARY OF THE ARGUMENT

Child-welfare systems have become targets for

institutional-reform litigation. For plaintiffs seeking to

control the delivery of services, class litigation has

become a tool for diminishing state sovereignty,

bypassing the democratic appropriations process, and

squashing innovation around the country. Injunctions

and consent decrees place federal courts in command of

state agencies with little input from—and no

accountability to—the individuals whom their decisions

affect. The method for accomplishing this transfer of

power is class certification under Federal Rule of Civil

Procedure 23(b)(2). This case is worthy of this Court’s

review because it represents a new low in certification

standards.

The seemingly sterile topic of class certification

becomes an issue of national importance in light of its

impact on state agencies and the vulnerable children

they serve. States assume an enormous challenge when

they intervene on behalf of children who are not safe.

Successful intervention saves lives, but failure strands

children in the desolation from which States have long

worked to extricate them. Transferring this traditional

state role to a federal court handicaps innovation and

accountability. The States themselves as well as the

service providers with whom they work are better able

to craft solutions to the problems they face, as

Arizona’s own experience demonstrates.

The Court should review the decision below and

close the procedural avenue that plaintiffs have used to

displace local, democratic decision-making.

4

ARGUMENT

The courts below lumped together a menagerie of

claims under nine so-called “practices” in order to

create a way for Petitioners to have “acted or refused to

act on grounds that apply generally to the class.” Fed.

R. Civ. P. 23(b)(2). The result is easy certification for

any class seeking to install a federal court as overseer

of state services. It is also a perversion of the Federal

Rules.

Institutional-reform litigation is strong

medicine that should require a genuine

policy—typically codified in statute or rule—before a

class can be certified. The Ninth Circuit’s alternative

approach, which allows a district court to zoom out

from each plaintiff’s claims until it sees broad

categories that it can label a “policy” or “practice”

lowers the bar for judicial intervention and harms

States and the people they serve. This Court should

take the instant case to address an affront to

federalism that has now become entrenched in the

Ninth Circuit.

I. This Case Shows the Error in the Ninth

Circuit’s Now-Entrenched Parsons Rule for

Class Certification.

At a sufficient level of abstraction, divergent claims

fit under a single descriptive umbrella and could be

branded as a general “practice.” But abstractions and

generalizations are no way to serve children. They also

offend the premise of Rule 23(b)(2), which provides an

easier path to class certification when a defendant has

injured many plaintiffs with a single unlawful stroke.

Here, Respondents’ claims cover a multiplicity of

alleged shortcomings. The Ninth Circuit could only

5

certify them under Rule 23(b)(2) by creating broad

umbrella terms to impersonate the kind of actual

policies for which the Rule is designed.

In other contexts, this Court has “repeatedly told

courts—and the Ninth Circuit in particular—. . . not to

define clearly established law at a high level of

generality.” Ashcroft v. al-Kidd, 563 U.S. 731, 742

(2011) (emphasis added); see also City of Escondito v.

Emmons, 139 S. Ct. 500, 503 (2019) (summarily

reversing the Ninth Circuit for excessive generality);

Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018) (same).

The current case represents a similar exercise in

abstraction. Once again, the Ninth Circuit has looked

at disparate cases and unearthed a “policy or practice”

defined in general terms that encompasses divergent

circumstances. In the field of child welfare, however,

decisions like the ones challenged in this case are

individualized. Only by judicial aggregation do they

appear to reflect some (unwritten) policy of providing

inadequate care. This Court should curtail the Ninth

Circuit’s pattern of generalizing claims of government

misconduct in order to impose crushing liability on

state and local governments.

Amicus begins its work every day from the starting

point that each child presents unique facts and

circumstances. Before Parsons v. Ryan, 754 F.3d 657

(9th Cir. 2014), this insight was built into Rule

23(b)(2)’s insistence that the defendant in an

institutional-reform class action took steps “that apply

generally to the class.” Fed. R. Civ. P. 23(b)(2). Judge

Reinhardt’s opinion in Parsons and the panel’s holding

6

here upset decades of precedent as well as the basic

intuition that every child is unique.

In Parsons, the Ninth Circuit permitted a diverse

group of inmates to pursue a class action on the theory

that they were all subject to “policies and practices” in

areas ranging from dental care to the conditions of

solitary confinement. 754 F.3d at 662. Parsons

concluded that the policies-and-practices theory was

sufficient to satisfy the requirements of Rule 23. In

particular, the court held that plaintiffs alleging each

type of injury raised “questions of law or fact common

to the class.” Fed. R. Civ. P. 23(a)(2); Parsons, 754 F.3d

at 678 (framing the common question as “whether the

specified statewide policies and practices to which they

are all subjected by [defendant] expose them to a

substantial risk of harm”). The other requirements for

class certification followed as a matter of course. If the

policies-and-practices theory was correct, then the class

representatives were necessarily typical of other class

members because policies and practices necessarily

extend across an organization. Fed. R. Civ. P. 23(a)(3);

Parsons, 754 F.3d at 686. Likewise, Rule 23(b)(2)

presented no obstacle to the Parsons court, which

concluded that a single injunction ordering the State to

follow the law at all times was sufficient: “develop and

implement . . . a plan to eliminate the substantial risk

of serious harm that prisoner Plaintiffs . . . suffer due

to Defendants’ inadequate medical, mental health, and

dental care, and due to Defendants’ isolation policies.”

Id. at 687.

When the Ninth Circuit decided Parsons, it set itself

apart from four other circuits that had considered

7

similar claims. DL v. Dist. of Columbia, 713 F.3d 120

(D.C. Cir. 2013); Kress v. CCA of Tenn., LLC, 694 F.3d

890 (7th Cir. 2012); M.D. v. Perry, 675 F.3d 832 (5th

Cir. 2012); Shook v. Board of County Commissioners,

543 F.3d 597 (10th Cir. 2008). It also disregarded this

Court’s precedent addressing class certification based

on an alleged “policy” in Wal-Mart v. Dukes, 564 U.S.

338 (2011).

That departure has now become

entrenched and cries out for review by this Court.

Parsons was wrongly decided, and the current case

illustrates why. Both the district court and panel

decisions rely on Parsons at every turn. App. 18 (“In

Parsons, we concluded that the district court did not

abuse its discretion in similar circumstances”); App. 19

(“the same reasoning [from Parsons] applies here”);

App. 21 (“Once more, the same reasoning [from

Parsons] applies here”). But the variety of alleged

wrongdoing in the present case is even greater than in

Parsons. Where the earlier plaintiffs alleged four

categories of misconduct by the defendants, the district

court here listed nine distinct types of alleged wrongs.

App. 17. That litany—ranging from children’s dental

care to employment conditions for case

workers—appeared to the panel to fall within the broad

boundaries (if any) created by Parsons. Tellingly, the

panel noted that it had no choice but to follow the

earlier opinion. Id. As a result, Parsons has become an

umbrella under which courts can amass seemingly any

variety of claims.

This Court should now weigh in to correct the Ninth

Circuit’s costly departure from precedent. The current

case is the ideal vehicle for doing so because child

8

welfare is inherently child-specific. This Court has

already held in Wal-Mart that it is insufficient to allege

a violation of the same law (there, “that they have

suffered a Title VII injury”) or even a violation of the

same type (“or even a disparate-impact Title VII

injury”). 564 U.S. at 350. Here, the alleged injuries

are not the result of a policy at all.

In fact, Wal-Mart rejected the same kind of

manufactured “policy” embraced by the Ninth Circuit

below. There, as here, the plaintiffs alleged that the

defendant’s “culture” amounted to a “policy” that

harmed members of the class. Wal-Mart, 564 U.S. at

353–54. Indeed, the only true policy at issue in WalMart was one that allowed managers discretion in their

personnel decisions. Id. at 355. The same features

appear in the present case. Plaintiffs do not identify

any actual policy that violates the Constitution.

Instead, they rely on “statewide practices,” App. 17,

which are nothing more than linguistic headings to

aggregate individual claims. A judge following the

decision below could certainly have aggregated the

Wal-Mart plaintiffs’ claims under “practices” akin to

the categories presented here. That outcome creates a

different law for class certification in the Ninth Circuit

than in the circuits that faithfully apply Wal-Mart.

In the context of child welfare, the policies-andpractices bypass for class certification is especially

misguided. For example, Plaintiffs complain that DCS

separates too many siblings.

Plaintiff/Appellee’s

Opposition to Appeal of Class Certification, B.K. v.

McKay, No. 17-1750, 2018 WL 3218584, at *9, *24 (9th

Cir. June 29, 2018). Considering this allegation apart

9

from the facts of individual cases obscures details like

the need to accommodate a child with special needs,

whose brother or sister can thrive in a more

conventional setting. Likewise, half-siblings might be

separated from each other when moving in with

relatives that they do not share in common. Or

perhaps a child facing severe behavioral health

challenges may need individualized, specialized care

for a period of time before becoming stable enough to

join siblings in a traditional placement. Like the

promotion decisions in Wal-Mart, such nuances are lost

when considering only aggregate data and inferring a

nefarious practice. For that very reason, the Rules

require a common fact to be decided in one stroke,

which is impossible in child welfare cases, absent an

actual policy that offends the Constitution.

For the same reason, the proposed class cannot

satisfy the requirement of Rule 23(b)(2) that “final

injunctive relief or corresponding declaratory relief is

appropriate respecting the class as a whole.” Fed. R.

Civ. P. 23(b)(2). To the contrary, not only is there no

silver bullet injunction that a court could issue, but

many of the areas where respondents seek judicial

intervention invite misallocation of resources. Hiring

personnel with specialized skills, for example, is not as

easy as declaring that DCS should employ more highly

trained therapists. The process of recruiting specialists

is time consuming and often yields no qualified

candidates. In the absence of a glut of professionals

looking to work with at-risk children, the better path is

to allow DCS to innovate and learn from creative

solutions in other jurisdictions. Of course, the relief

that respondents seek is more than just one hiring

10

binge. They ask for either a generic order that DCS

obey the Constitution or a much more sweeping judicial

takeover of the Department.

Neither of those

measures will solve the class members’ problems in one

stroke, meaning that they preclude certification under

Rule 23(b)(2).

This case marks a particularly misguided abuse of

institutional-reform litigation.

State and local

governments face an array of challenges in addressing

the diverse needs of the endangered and hurting

children in our nation’s child-safety systems. The class

certification theory embraced by the Ninth Circuit

amalgamates the unique circumstances of children in

Arizona’s child-welfare system under generalized

“practices.” That generalization is foreclosed by

precedent from this Court and has been rejected by

other circuits since before the Ninth Circuit took a

different path in Parsons. The Court should grant the

current Petition to confirm that Rule 23(b)(2) requires

a challenge to a genuine policy or other common action

impacting every member of the class in the same way.

II. The Reform of Arizona’s Child Welfare System

Illustrates the Importance of this Issue.

The importance of limiting federal judicial oversight

to its appropriate and very rare circumstances is hard

to overstate. Institutional-reform litigation enlists a

federal court to administer programs ordinarily

managed by local authorities. Whether by injunction

or consent decree, this governance by the federal

judiciary is offensive to federalism, immune to

accountability, and ultimately harmful to the

11

innovation that Arizona and other States have made a

hallmark of their child-welfare reforms.

A. The Decision

Welfare.

Below

Threatens

Child

The Arizona Department of Child Safety is a

success story for child-welfare reform. After a tragic

revelation that over 6,000 cases of suspected abuse had

gone uninvestigated, Arizona’s elected officials took

action. Soumya Karlamangla, Arizona to Investigate

Why 6,000 Child Abuse Reports Were Ignored, Los

Angeles Times (Nov. 6, 2013). In early 2014, thenGovernor Jan Brewer launched a new, cabinet-level

child-welfare agency. Governor Brewer’s plan received

bipartisan support in the legislature and similarly

broad support in the community. Since the creation of

DCS, transparency, innovation, and accountability

have improved significantly.

Improvement, of course, does not mean that the

Department is completely without problems, or that

problems are easily remedied. But it means that the

State’s leaders are acknowledging and addressing

challenges in a deliberate, publicly accountable

manner. And outcomes are improving. DCS has

developed a national reputation for consistent progress

that Amicus wishes were replicated in other States.

Among the Department’s accomplishments:

• A backlog of cases that had climbed as high

as 16,000 has been slashed—decreasing to

just 1,000.

• The total number of children in state care,

which had swelled to a high of over 19,000,

has declined to 13,000.

12

• The average wait time for callers to the DCS

child-safety hotline has plummeted from over

twelve minutes to just 31 seconds.

• The hotline call abandonment rate has

improved from 32 percent to 2.4 percent.

• The average time for placement in foster care

has fallen from 40 hours to 7 hours.

• Average caseload has dropped by

approximately 85 percent.

See generally Press Release, Office of the Governor,

Arizona Department of Child Safety Clears Inactive

Case Backlog (Mar. 16, 2019) https://azgovernor.gov/go

vernor/news/2017/03/arizona-department-child-safetyclears-inactive-case-backlog.

These improvements have attracted national

attention. For example, Governing Magazine described

the “eye-popping improvements in performance” that

occurred between 2015 and 2017. J.B. Wogan, How

Arizona Fixed Its Broken Child Welfare System in 2

Years, GOVERNING (Apr. 27, 2017), https://www.governi

ng.com/topics/health-human-services/gov-arizona-childwelfare-greg-mckay.html. The magazine attributed

this progress to the selection of Greg McKay—himself

a former foster parent—to run the organization. Id.

The Seattle-based Casey Family Programs concurred,

awarding McKay its Excellence for Children Award in

2018.

Similarly, in 2018, the Department’s adoption of

mobile technology under Chief Information Officer

Linda Jewell earned it a spot on the CIO 100 List

alongside companies like Adobe, Verizon, and Siemens.

Amy Bennett, 2018 CIO Winners: Recognizing IT

13

Excellence, CIO (May 1, 2018), https://www.itworld.com

/article/3269275/cio-com-honors-the-2018-cio-100winners-and-hall-of-fame-inductees.html.

In fact,

Arizona DCS was one of just two state agencies on the

list. Id. (the other was the Pennsylvania Treasury

Department).

Notably, McKay’s tenure and the “eye-popping”

reform of child services began just one month after the

filing of this lawsuit in 2015. Indeed, this lawsuit

began just over a year after DCS came into existence as

its own agency. The night-and-day contrast between

what the Department has accomplished and the

drudgery of this litigation—still laboring to decide class

certification—illustrates the core flaw in seeking

judicial remedies for every government failure.

Further highlighting the superiority of political

solutions and the variety of claims aggregated below,

some of DCS’s reforms respond directly to the “policies

and practices” identified in the lower courts. One of

the trial court’s nine “statewide practices,” for example,

was “excessive caseworker caseloads.” App. 17. That

fact is a relic of the time when the complaint was filed.

In 2014, the average caseload was 145, more than

seven times the recommended national standard of 20.

Wogan, supra. In June 2018, the last report for which

data is available, that figure had plunged to 19.85.

Ariz. Dept. of Child Safety, “Semi-Annual Child

Welfare Report” (Sept. 2018, Rev. Oct. 29, 2018) (data

from website; calculation original). One problem with

relying on litigation is that it cannot adapt to changing

circumstances nearly as quickly as the political

branches. And modifying injunctions and consent

14

decrees is virtually impossible. A previous effort to

alter a consent decree in Arizona required 17 years of

litigation before eventual resolution by this Court.

Horne v. Flores, 557 U.S. 433, 441 (2009).

B. The Decision Below Threatens Federalism.

As a provider of services to children throughout the

nation, Amicus collaborates with state and local childwelfare agencies on a daily basis. These agencies face

serious and evolving challenges.

Child-welfare

outcomes depend, among other things, on factors like

economic prosperity, education, and the pervasiveness

of substance abuse within a community. In Childhelp’s

experience, local leaders are better able to address

these shifting challenges than are federal judges. That

insight is consistent with the federalism at the heart of

American government. By supplanting local leadership

with judicial management, the Ninth Circuit has dealt

a blow to both federalism and children in need. What

has become possible through the efforts of DCS

reformers in Arizona could now be smothered by

judicial control.

A growing consensus both within the judiciary and

outside of it recognizes the downsides of courts

administering non-judicial departments. The primary

flaw is that the interests of children are essentially

unrepresented in the process. Judge Richard Posner

has recognized that judicial decrees give “federal

district court judges managerial responsibilities remote

from the judicial function in an adversary system.”

Richard A. Posner, The Federal Courts: Challenge and

Reform 341 (1996). Judge Posner traces the many

unintended consequences that have followed

15

institutional-reform litigation.

Across different

contexts, those consequences include “sapping the

authority of wardens and guards,” “‘white flight’ to

suburbs and to parochial and other private schools,”

and the closure of state-run mental institutions with a

resulting increase in homelessness. Id.

Other observers have pointed to the decline in

accountability and innovation that follows judicial

oversight, a trend that Amicus has observed first-hand.

In testimony before Congress, Dr. David Sanders, the

Executive Vice President for Systems Improvement at

Casey Family Programs explained that “the reality” of

consent decrees is that they last longer than anyone

anticipates (an average of 16.8 years) and, despite

efforts toward tailoring, inevitably tend toward “cookie

cutter” solutions that cannot accommodate new

information. Examining “Sue and Settle” Agreements:

Part II: J. Hearing Before the Subcomm. on

Intergovernmental Affairs and the Subcomm. on the

Interior, Energy, and Environment of the Comm. of

Oversight and Government Reform, H.R., 115 Cong. 1

(July 25, 2017) (Statement of Dr. David Sanders, Exec.

Vice President for Systems Improvement at Casey

Family Programs) (“Sanders Testimony”) at 16.

Of particular concern in the area of child welfare

are developments in areas like “brain science, the

impact of trauma, and the growing number of evidencebased and promising practices that achieve positive

and lasting outcomes.” Id. There is no reason to think

that these developments will stop anytime soon, yet an

injunction or consent decree entered today will lock in

current thinking for decades to come.

16

Illustrating this point, the American Enterprise

Institute recently studied Michigan’s experience

operating under a consent decree intended to improve

that State’s child-welfare system. John Bursch &

Maura Corrigan, Rethinking Consent Decrees, Am.

Enter. Inst. (June 2016). That report notes the nearly

ubiquitous feature of judicial decrees setting caseload

limits for each caseworker, which “preclude[s]

experimenting with different arrangements that might

provide better services to children.” Id. at 8 (citing

team-based approaches as an example). It also

identifies millions of dollars diverted from children’s

services to “plaintiffs’ attorneys and court-appointed

monitors.” Id. at 10. Michigan’s experience is

consistent with what Amicus has observed in other

jurisdictions. It also matches Dr. Sanders’s conclusion

that, under a judicial decree, “the objective becomes

checking off the frequency of activities or services

rather than having a focus on the quality or

effectiveness of programs.” Sanders Testimony at 17.

Unsurprisingly, only six of the 31 States to have faced

litigation over their child-welfare programs have

emerged from judicial oversight.

Casey Family

Programs, Information Packet: Supportive

Communities (July 2019), available at https://caseyfami

lypro-wpengine.netdnassl.com/media/SComm_Consentdecree-summary_fnl.pdf.

A better path is to leave authority over child welfare

with the political branches of government and the

voters who have the opportunity to change course with

every election. Arizona’s experience is a good example.

Beginning in 2015, the governor responded to

deficiencies at DCS with the appointment of a new

17

director and additional resources. Innovations over the

past four years track best practices in the field,

including regular data collection to identify weakness

and respond before it becomes a crisis. The best childwelfare programs “use data to create robust continuous

quality improvement (CQI) programs to self-correct in

real time and into the future.” Sanders Testimony at

18. These self-policing methods, like Arizona’s monthly

and semi-annual data reports, “render aspects of the

justification for consent decrees obsolete.” Id.

And the process of structural improvement in

Arizona continues.

Just this year, the Arizona

Legislature passed a bill DCS had requested that will

give the Department authority over behavioral health,

an area that currently falls within the purview of the

Arizona Health Care Cost Containment System. S.B.

1246, 54th Leg., 1st Sess. (Ariz. 2019) (enacted with

only one vote against). Adding responsibility for

behavioral health will improve DCS’s ability to care for

children, but it will also cause a temporary spike in

workload that would look like backsliding to someone

unfamiliar with the Department’s plans. Large-scale

innovation is essential for continued progress, but

injunctions necessarily deal in benchmarks and

quantifiable criteria. The story of DCS’s improvement

could never have occurred under such a regime. Nor

can it continue in that setting.

Courts serve an essential function, but in Amicus’s

experience, federal judicial decrees quell the

nimbleness and accountability that has made DCS a

turnaround success story. Child-welfare services

succeed when they can accommodate each child’s

18

circumstances and develop new approaches in response

to new evidence. The law incorporates this insight in

the class-certification process. At this stage—not

later—courts must recognize the limits of their ability

to administer a system as complicated and dynamic as

the Department of Child Safety.

Rule 23(b)(2)’s insistence on a clean, single issue

impacting all plaintiffs is a tool in service of the

separation of powers. It recognizes that federal courts

can accomplish much but they are ill-suited to the

administration of a large and diverse social program.

That work belongs to the executive and legislative

branches. Because this case presents a new frontier in

aggregating diverse claims within a 23(b)(2) class,

Amicus urges the Court to review the Ninth Circuit’s

decision and the Parsons precedent on which it relies

with an eye toward preserving ingenuity and

accountability in child-welfare reform.

CONCLUSION

The Court should grant the Petition for Writ of

Certiorari.

Respectfully submitted,

Peter A. Gentala

Dominic E. Draye

General Counsel

Counsel of Record

CHILDHELP, INC.

GREENBERG TRAURIG LLP

6730 N. Scottsdale Rd.

2101 L Street, N.W.

Suite 150

Washington, DC 20037

Scottsdale, AZ 85253

(202) 331-3168

(480) 922-8212

drayed@gtlaw.com

pgentala@childhelp.org

Counsel for Amicus Curiae