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THE WRONG SIDE OF THE TRACKS by Charles M. & Daniel W. Fessler Haar



Pub Date: March 1st, 1986
Publisher: Simon & Schuster

Can the judiciary guarantee that all US citizens, even those on the ""wrong side of the tracks,"" receive equal treatment from their elected officials? Two activist legal scholars say that American and English common law (as opposed to US Constitutional law) may provide recourse to poor and/or minority groups who feel they are being shortchanged on municipal or state services. Haar and Fessler go back to the reign of Edward I to trace the development of a common law principle that requires monopolies providing essential services to give ""equal, adequate and nondiscriminatory"" treatment to all members of the public. They then argue that municipal and state governments could be considered monopolies when they are the sole providers of such services as police protection, firefighting, water supply, sewage disposal, public education, medical and recreational facilities, etc. They thus suggest that those seeking more equitable services from local governments bring their grievances before civil or state courts rather than before the federal judiciary. They recommend this new, and relatively untried, approach because, they say, an increasingly tradition-oriented federal judiciary has been loath to interfere in municipal or state affairs unless actual intent to discriminate on the basis of race is proved. They give evidence to show that most federal judges today no longer accept statistical evidence (for example, demonstrably fewer services in a minority and/or poor area than in white and/or wealthier sections) as proof of intentional and invidious discrimination. These judges are applying the Constitutional test of ""equal protection under the law"" as set forth in the 14th Amendment--which guaranteed full fights of citizenship to former slaves. Without evidence of actual intent to deny these services on the basis of race, they find against the petitioner, and sometimes recommend the ballot box as the proper channel for redress. In their meticulous examination of the application of the equal access principle throughout 600 years of judicial findings, Haar and Fessler have found only one in which a government body was successfully sued under this common-law precept. In 1967, the Arizona State Supreme Court found the City of Phoenix liable when firefighters could not prevent a store from burning down because there was no nearby fireplug. (The court held that ""in operating a water system, a city is a public service corporation [and thus] is under a legal obligation to render adequate service to all members of the general public to whom its scope of operation extends."") As dense and legalistic as a Supreme Court brief, even though Haar and Fessler have tried assidiously to make it scrutable. Apart from armchair legal buffs, its audience lies in the fraternity of lawyers, judges and public officials whose various reactions will probably produce considerable fallout.