Proprosed Amendment to Sec. 1983
robertmw at MINDSPRING.COM
Wed Apr 1 16:08:12 PST 1998
Boy! I'm glad I'm in the Alabama Attorney General's Office, not in the
Justice Dept. Hate to have to defend that one if it passed. (This wouldn't
happen to be an April Fool's joke, would it?)
On its face the synopsis alone looks like it's gonna' run into the
establishment clause (looks like a backdoor congressional "endorsement" of
state sponsored religion, don't it?). Singling out establishment clause
claims as exempt from sec. 1983 fees also looks like it might run afoul of
the "petition the government for redress of grievances" clause, although I
suppose Congress can pick and choose as to the scope of relief any statue
is designed to afford.
I watch these cases in Alabama pretty closely. Offhand I can't think of
even one where an establishment clause claim even *sought* damages against
state officials, despite Chicken Little histrionics to the contrary from
the defendants being sued. That's probably a tactical call, since a
damages claims means the defendant gets to demand a jury trial, and I can't
imagine a plaintiff that would risk that if they thought about it long enough.
Attorneys fees is another matter, but absent a damages claim and recovery
of more than nominal damages, fees are not recoverable against defendants
in their individual capacity. So what's the "chilling effect"?
I'm paying taxes for this?
At 02:50 PM 4/1/98 -0500, Dan Conkle wrote:
>Legislation has been introduced to preclude damages claims under Sec.
>1983 when the claim is based upon a violation of the Establishment
>Clause. The language of the bill is reproduced below my signature
>information. Does anybody know more about this? Have there been
>recent and/or controversial damages awards under 1983 based on
>Establishment Clause violations? The bill also proposes to eliminate
>attorney fees for Sec. 1983, Establishment Clause claims, apparently
>even in injunction cases.
> Public Expression of Religion Act of 1998 (Introduced in the
> HR 3288 IH
> 105th CONGRESS
> 2d Session
> H. R. 3288
> To amend the Revised Statutes of the United States to eliminate
>the chilling effect on the constitutionally protected expression of
>religion by State and local officials that results from the threat
>that potential litigants may seek damages and attorney's fees.
Rob Weinberg, Montgomery, AL USA
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