Tired of Costly Federal Rules? Make the Judge Pay for Them

Arizona officials are fighting a ruling requiring prison monitors. They object to the 'intrusion' in state affairs

BUOYED by supporters in Congress, advocates of states' rights are now targeting a powerful new foe in their quest to shift authority away from Washington - the federal judiciary.

They want to curtail the power of federal judges in particular when handing down rulings that affect state pocketbooks.

For now, the revolt is most deeply rooted in Arizona, a center of go-it-alone individualism, whose governor, Fife Symington (R), is leading the attack on those in federal robes.

He calls curbing the power of judges ''one of the most important issues of our time.'' He and others charge that federal-court rulings on such issues as prisons, schools, and the environment are unwarranted and burdensome intrusions into state affairs.

Governor Symington's rhetorical crusade recently escalated into action when he and other state leaders provoked a confrontation with a federal judge over who should pay for court-ordered monitors in Arizona prisons.

The dispute points up the enduring conflict between the right of states to police themselves and the federal government's duty to protect minorities, including prisoners, from abuse.

With more than 40 state prison systems operating under some kind of federal-court order, the Arizona case has potentially broad implications.

Critics say the state's position is reminiscent of 30 years ago, when former Alabama Gov. George Wallace stood in the schoolhouse door and vowed to defy federal-court orders to desegregate.

''The United States Constitution sits above the constitutions of the 50 states,'' said US District Judge David Ezra earlier this month, when he ruled that Arizona must pay for the prison monitors. ''That issue was decided in 1865,'' Judge Ezra added, referring to the Civil War.

But Arizona officials cite another event from American history to support their view.

''This business of no taxation without representation was settled back in 1776,'' says state Senate majority leader Tom Patterson (R).

Arizona leaders object to paying for the prison monitors, known as special masters, because they have no control over the special masters' fees and expenses. Special masters are appointed by federal judges to ensure that rulings regarding prisoners' civil rights, such as access to law books, mental-health care, and Christmas packages, are enforced.

Although some of these civil rights rulings are decades old, special masters are still required because of Arizona's history of noncompliance. State officials say they resent having to provide privileges to inmates that law-abiding poor people don't have. They say laws and public attitudes regarding cruel and unusual punishment and prisoners' rights have changed, and the court orders should be lifted.

In April, the Arizona Legislature took up the challenge when it passed a law that required state approval of the special masters' bills. Ezra struck down that law and ordered the state to pay the $37,000 it owed. All told, special masters have cost the state about $320,000.

Critics of the move argue the state wasted thousands of taxpayer dollars fighting a case it knew it could not win.

''They created the situation [in the prisons] that the court found unconstitutional, and they should have to pay to remedy it,'' says Alice Bendheim, a Phoenix attorney who represented inmates in one of the lawsuits that led to the appointment of monitors.

Arizona officials, who are appealing Ezra's ruling, question the need for special masters at all. They contend that special masters have essentially seized control of prison operations and that there are less costly and less intrusive ways to ensure that court rulings are enforced.

Some analysts say the state's fight with the federal judiciary has a deeper purpose. ''They're hoping to lose the court battle but win the congressional war,'' says Paul Cassell, a law professor at the University of Utah in Salt Lake City.

INDEED, Arizona already has found support for its position in the Republican-dominated Congress. In September, the Senate passed an amendment, offered by Arizona Sen. Jon Kyl (R), that requires federal judges to use their own funds to pay for special masters in prisons. The House also has passed a similar law. The two measures, part of larger prison-reform bills, are now being reconciled by a conference committee.

Supporters say Senator Kyl's amendment will make federal judges more accountable for special masters' fees and costs. They say Congress must do more to rein in the federal judiciary and is partly to blame for the situation because it passed complicated regulatory schemes that encourage judges to legislate from the bench.

Opponents say the Kyl amendment may sound like a good idea, but it is unconstitutional.

''It violates the separation of powers,'' says Nadine Strossen, president of the American Civil Liberties Union and a professor at New York Law School. ''It's tantamount to Congress saying to the federal courts, 'Here's how you interpret the Constitution in prisoners' rights cases.'''

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