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HomeMy WebLinkAbout39-81 RESOLUTIONRESOLUTION NO. ca9.e/ • A RESOLUTION SUPPORTING THE CREATION OF A NATIONAL MUNICIPAL DEFENSE FUND BY THE NATIONAL INSTITUTE OF MUNICIPAL LAW OFFICERS. BE IT RESOLVED BY THE BOARD OF DIRECTORS OF THE CITY OF FAYETTEVILLE, ARKANSAS:. That the Board of Directors hereby supports the establishment and operation of a national municipal defense fund by the National Institute of Municipal Law Officers as outlined in Part C of the report by the NIMLO Committee appointed to study the need for, and creation of, such a fund, a copy of which is attached hereto marked Exhibit "A" and made a part hereof.' PASSED AND APPROVED this Id2 day of ,-uft) 1981. `_ %. CITY5;CL•'ERK A47."...):+` c ATTEST:,. �; 41 pit u Waste -a) APPROVED: MAYO CERTIFICATE OF RECORD State of Arkansas ( SS City of Fayetteville I, Vivian Koettel, City Clerk and Ex -Officio recorder for the City of Fayetteville, do here - certify that the annexed or foregoing is of record in my office by and the same ap- pears in Ordinance & Resolution book Witness nay day of 19�---• page—L-211 hand and seal this /7Lh • : Irk City Clerk and Ex -Officio Recorder UWEaiklEa • -y...._L. nationally experienced counsel.70/ Both kinds of expertise are needed to offset the expertise plaintiffs are given by civil rights advocacy organizations. That goal of aiding at the trial level to create a record that will win is the goal of the National Municipal Defense Fund. C. Operation of a National Municipal Defense Fund This novel proposal for banding together the manpower, brainpower and money of local governments to better cope jointly and cooperatively with the ever-expanding liability problem is in our view the most essential step in the light of the above-mentioned developments in the government liability field. We also must band together to develop such subjects as new methods of handling strikes of municipal employees. The major questions in setting up a National Municipal Defense Fund concern the selection of cases, and the management of attorneys hired to litigate the cases. At the outset we must be clear. .The National Municipal Defense Fund cannot fund litigation of every case brought against every local government member. In general, we recommend that the Fund limit its direct litigation activities to cases of obvious nationwide importance. But, we are the first to concede that we must learn from experience 70/ The need for development of a record is not limited to civil rights cases. See, e.g., John Donnelly & Sons v. Campbell, No. 79-1575, slip. op., at 10 (1st Cir. Dec. 22, 1980)(lack of empirical evidence to justify legislative conclusion that billboards cause traffic accidents). -27- A 27- s • as we go along as to what we can and what we cannot do. We can, of course, aid all Fund members with information, but the number of cases the Fund can handle and pay for at the trial level will be on a selective basis. At the same time, we must be ready to develop this program beyond mere litigation to help on municipal legal problems that often seem so controversial many would shy from involvement. For example, we of our era have been faced more and more with strikes and work stoppages requiring expertise which most municipal law departments do not have. These strikes are usually under national direction and with almost unlimited national monetary support. They are cleverly designed to bring maximum pressure upon local political officials who have not experienced such pressures before. These inexperienced local officials are not always equipped with the knowledge or the techniques to solve or withstand such pressures directed by those whose lifetime work has been to handle such friction matters. Experience teaches that outside experts with more impartial objectivity and without the personal animosity growing out of personal difference of constant contacts over the years, are better equipped than local officials can possibly be to aid a municipality with a strike on its hands to develop reasonable settlement proposals fair to both the people of municipalities and those who, as employees, serve those people. One solution to both the unique nature of strike management and the financial limitations on funding litigation has been proposed. That solution is to assist participants. in the Fund in strike management, not by hiring attorneys, but by borrowing attorneys (and other technical experts) from other Fund partcipants. These borrowed -28- Il • • • mim 'experts, selected from a list of volunteers, would travel to.a stricken city and stay as long as a strike was threatened. The lending local government would be reimbursed by the Fund for these circuit -riders' expenses only. No outside counsel would need to be hired. The remaining Fund cases will involve the management of outside trial counsel. Civil rights cases are complex and protracted. Local government attorneys, even the ablest, often lack the time necessary to match the lawyer power of plaintiffs' organizations. Beyond this, we should frankly recognize that advocates for state and local governments are often unable to litigate properly a case which will result in precedential law to be applied to all local governments nationwide. Mr. Justice Powell has remarked on the im- balance between counsel provided by national organizations and their opposing counsel from state attorneys general's (and city attorneys') staffs.71/ The practice of sending an assistant to try or argue the "big" case as a reward for years of faithful pedestrian service would bother no one outside the jurisdiction involved, were it not for the fact that all local governments suffer from the result of inadequately presented cases. The goal of the National Municipal Defense Fund is to help all local governments by assisting in the litigation of the "big" cases. 71/ The Level of Supreme Court Pdvocacy, address to the Fifth Circuit Judicial Conference, New orteans, Louisiana, May 27, 1974, at 3, 5. Professor Howard has offered the same observation, pointing out that the states' regulatory attitude of fairness and compromise some- times weakens the force of their advocacy, and showing that the quality of advocacy does affect the courts' decision of cases. I'll See You in Court: The States in the Supreme Court 47-50 (Nat'l Governors' Ass'n Center for Policy Research 1980). -29- • We want to develop a program to select and fund such litigation so that the greatest experts and the greatest lawyers for these cases will be assembled by the local government. attorney Trustees of the Fund and offered for use in selected cases affecting municipalities nationwide. Local counsel will of course control as to whether they want our Fund experts and lawyers to participate in their cases. Local outside counsel will be employed by the Fund in all cases where the municipality's attorney does not want to serve in that capacity. When selecting experts and counsel the Trustees will follow the recommendations of the attorney for the municipality to the greatest extent possible. We will cooperate with counsel for the state leagues of municipalities of which the municipalities are members. We will not overlook any source of aid. With that in mind, we re- commend the creation of an Advisory Committee of officials of other national organizations of states and municipalities, and counsel for state municipal leagues, to identify cases and issues of nationwide importance. In appointing the Advisory Committee, coverage thereon of all functions of municipalities such as mayors, city managers, county managers, personnel, financial and other involved officers will be recommended. All cases funded by the Fund will be selected by the Trustees and the selections will be sent to NIMLO's Executive Committee for approval. We recommend that technical experts and expert counsel as well as local counsel and all who are to be paid by the Fund be selected by the Trustees based upon Advisory Committee and other recommendations and their compensation fixed by the Trustees according to the usual standards. -30- -•••••• 30- • Selection of cases to be funded will not be easy. We will try our best to insure that they are cases of vital impact nationwide and as we develop experience will write more precise guidelines. Desire for and approval of the Fund's help must come from the municipalities we aid. But the Trustees must be given as complete control over the litigation as is essential to our task.72/ One defect of the cooperative litigation programs of other organizations of state and local governments — beyond the obvious one that they participate only at the appellate level — is the dilution of their litigation effort by the addition to their litigation responsibilities of study and reporting duties, embodied in news- letters and seminars, and lobbying. 72/ Thirty years ago, Mr. Justice Jackson argued against acceding to the desire to use litigation as a political forum, advising against the schizophrenic case management that encouraged such presentations: "Either you will be in control of the litigation or someone else will be in control of your professional reputation." Advocacy Before the Supreme Court: Suggestions for Effective Case Presentations, 37 Amer. Bar Ass'n J. 801, 802(1951). Although directed at the preservation of lawyers' professional integrity — which is one tool with which to serve those they represent — this remark applies fully to the "legal reputation" of local governments. The mayor seeking solely personal vindication, or the council which has decided to placate a politically powerful plaintiff by making concessions in a §1983 case, should not be allowed to dictate the Fund's litigation strategy to the detriment of their, and all, local governments. -31- While the National Municipal Defense Fund should avoid this., dilution of effort, some consideration must be given to assisting municipal attorneys whose cases are not selected for litigation by the Fund. These attorneys should be able to benefit from the experience developed by the Fund and its participating local govern- ments. The Fund should distribute to members formbooks of pleadings, checklists of proof, and well -organized digests of the caselaw in the civil rights and strike areas. These materials would not be the pro- duct of interns employed in make-work satisfaction of some federal grant, as has been the case with other programs. These materials will be • prepared by experienced litigators to assist other litigators. "Cook- book litigation" is properly pejorative. But, checklists and materials, used properly, can be of enormous benefit to the nonspecialist public litigator in these areas. Moreover, similar materials are already being provided to the civil rights plaintiffs' bar, to be applied locally.73/ The local defense of local governments should be no less adequately armed. The Fund should also keep references of expert witnesses, whose testimony is so important in both §1983 and strike cases. This, too, 73/ E.g., "A Community Guide to the Equalization of Municipal Services," distributed by the Government Services Equalization Center, a project of the Lawyers' Committee for Civil Rights Under Law. The Foreword to the "Guide" describes its purpose as "detailing techniques for preparing a [service discrimination] suit...." -32- if • 'is ,being done by plaintiffs' groups.74/ We have given much consideration to what exactly should be the legal structure of the Fund. Should it be a municipal public interest law firm similar to the many public interest law firms that sue municipalities constantly? Should it be a branch, or section, of NIMLO? There are now public interest sections of large law firms which have developed into huge parts of some of those firms as they seek the plaintiffs' attorneys' fees required by recent statutes and court decisions to be paid by federal, state and local governments. This Fund needs a home and staff assistance such as NIMLO can furnish. We recommend that the Fund should be a separate section of NIMLO with its own separate Fund membership and be governed by the Trustees under the NIMLO Executive Governors control over Sections of will insure full responsibility by Executive Committee control. No Fund can operate without Committee similar to Board of the American Bar Association. the Trustees, subject to NIMLO This funds. We want to see the Fund start small and grow if it proves a successful weapon to meet this litigation flood problem. And we are not prepared to suggest amounts at this time. Our finance advisory subcommittee will come up with recommendations on this difficult matter. • 74/ For example, plaintiffs' groups gathered after their defeat in City of Mobile v. Bolden "to discuss the use of expert testimony and development of the historical and political science method- ologies for proving the unconstitutionality of at -large elections...." Lawyers' Committee for Civil Rights Under Law, Monthly Report, November 1980, at 4. -33- • 4 No money would be paid out of the Fund except upon written approval of the Fund Trustees. The Trustees will hire staff, counsel and certified public accountants to insure that the entire Fund operation is carried out under the highest of standards. Adequate bonding of all who handle funds will be required. IV. Conclusion It is difficult to state the impact of this recommended new Section of NIMLO and its functions upon NIMLO and its usual other largely information functions. We do not envision that operating at the trial level the Fund should interefere with the NIMLO Legal Advocacy Committee. We believe the Fund will enhance the value of that Committee by alerting it to more decisions of great pre- cedential importance to municipalities after the trial is over and the national importance of the case is clear. The Legal Advocacy Committee could then concentrate on these decisions whose importance only became apparent after trial court decision. We thus recommend a dramatic new venture whereby municipalities band together to meet a major problem head on. The old saying that in organization there is strength is very true. We believe that when fully organized and funded this Fund will be of immense value to its participants and that we will all be proud of this new venture as it grows in experience and usefulness. We believe that the time for the idea of municipalities banding our resources together to handle complex litigation in which cities are usually faced with national expertise and funding has indeed arrived if we are to have the capacity to meet the,problem which we first recognized in our Legal Advocacy Committee then under ACIR4s prodding have now moved -34- • • ori to the step herein recommended. Respectfully submitted, • Aaron A. Wilson City Attorney of Kansas City, Missouri Chairman Samuel Gorlick City Attorney of Burbank, California George F. Knox, Jr. City Attorney of Miami, Florida • -35-