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For IMMEDIATE RELEASE September 27, 1994

WASHINGTON -- Justice Brennan once wrote that: "We yet like to believe that wherever the federal court sits, human rights under the Federal Constitution are always a proper subject for consideration."

While many of us would still like to believe that, few would claim that those words any longer reflect the reality of federal jurisprudence. One of the continuing conflicts between the so-called judicial activists and the so-called advocates of judicial restraint relates to the scope of federal courts' jurisdiction and authority to entertain complains of violations of constitutional principles. Invoking doctrines of standing, justiciability, comity, abstention, exhaustion, immunity and equitable jurisdiction, in addition to narrow readings of statutory and constitutional language, the Justices have greatly restricted access to the federal courts in recent years.

Because of these access-denying doctrines, numerous litigants no longer even bother to bring their constitutional claims to federal forums, but either forego judicial remedies altogether or seek redress in state courts. But, of course, cases continue to arise on the edges of where current doctrine has left us; and decisions in those cases tend to reflect the current division in the Court between those Justices who believe the federal courts should be more receptive to claims of constitutional deprivation and those who would restrict even further the power and authority of federal judges to provide redress for wrongs.

In the past Term, this division was represented by the case of Albright v. Oliver, in which a majority ruled that a person who had been arrested without reasonable cause on the fanciful accusation of a known liar could not seek redress under federal law. This was one more application of a unfortunate line of cases that have narrowed the scope of the Fourteenth Amendment and the Federal Civil Rights Act.

In the coming Term, there are several cases that fall into this category, and that test the judicial commitment to providing access to justice in the federal courts.

One of these is Swint v. Chambers County, Ala, Commission, which concerns a county's official liability for the allegedly unconstitutional acts of its sheriff. It is an illustration of how a civil rights plaintiff can get whip-sawed between technical doctrines that restrict remedies against governmental entities. The problem in Swint is that on the one hand the 11th Circuit held that under Alabama law, the sheriff is a state, not a county, official thereby excluding the county from liability for his official conduct; while, on the other hand, prior Supreme Court rulings have precluded suits against state agencies for their official misconduct on the basis of the 11th Amendment immunity. The obvious danger from such a precedent is that it allows states to take over more local governmental functions and thus shield agencies from liability for their employees' wrongdoing.

While Swint is certainly not of earth-shaking significance, it is another illustration of the recent proliferation of doctrines that restrict federal court redress for civil rights violations. And I might add in that regard that a task force that includes representatives of the ACLU has recently submitted to the Department of Justice a 23-point legislative agenda to overrule a number of recent Supreme Court decisions that restrict access to justice in the federal courts and to expand generally the authority of federal courts to entertain claims for violation of constitutional rights and provide effective remedies.

There is another case before the court this Term that illustrates, in a somewhat different way, recent trends to restrict access to federal constitutional remedies. That is the Amtrak case, Lebron v. National Railroad Passenger Corp. What this case reflects is the trend that dates back to the shopping mall decision in 1972 to restrict the definition of public forums for purposes of free speech under the federal Constitution. The case involves the duty of Amtrak to accept political advertising on its message boards at Penn Station in New York City. Despite the fact that Amtrak is a creation of the United States government, which owns all of its stock and appoints all members of its board of directors, the 2d Circuit ruled that Amtrak is not a government entity for purposes of the First Amendment.

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