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WASHINGTON — The Supreme Court appeared sharply divided Tuesday over whether the Americans With Disabilities Act should expose states to private lawsuits over lack of access to state services. The justices heard arguments in Tennessee v. Lane, No. 02-1667, which asks whether Congress, in enacting the 1990 law, overstepped its power to interfere with state sovereignty. The suit was brought by George Lane, an amputee who uses a wheelchair and was unable to reach a second-floor courtroom in Polk County, Tenn., to defend himself against misdemeanor charges. He was joined by other Tennesseans who have experienced similar problems and claim that their fundamental rights of access to the courts had been violated. The high court has limited the scope of other sections of the ADA as they relate to state sovereignty, and several justices –notably Antonin Scalia and Chief Justice William Rehnquist — appeared just as skeptical of the law in the Title II context, which covers all state services, not just courthouses. Scalia posited a hypothetical of a state-owned hockey rink and wondered with sarcasm whether lack of access to such a facility would violate a fundamental right. Scalia also suggested that while it may be “less dignified” for a person in a wheelchair to be carried up the stairs by constables to a second-floor courtroom, states should not be subject to suit simply because they do not provide elevators. William Brown, a solo practitioner from Cleveland, Tenn., sharply disagreed, arguing that an elevator for a handicapped person is the same as stairs for someone without mobility problems: “It’s the way we get there.” But some justices appeared ready to approve Title II, at least as it applies to fundamental, constitutionally related state services such as courthouses, schools and voting booths, and leave the question of hockey rinks and other less core functions for another day. Justice Sandra Day O’Connor may have been headed in that direction with her question to Deputy Solicitor General Paul Clement, who supported the cause of the handicapped in the case on behalf of the Bush administration. She asked if the court could address the courthouse case and “forget about the rest” of Title II and whether it violates states’ rights in less critical contexts. Justice Anthony Kennedy, another swing vote in the case, asked a similar question earlier in the hour-long argument. Clement said he was before the court defending the constitutionality of the “whole statute,” but he seemed to invite the justices to rule narrowly on state liability for providing access to courthouses. He said ample evidence indicated that states have denied access to courthouses. “Clearly Congress was reacting to a real problem here,” said Clement. Tennessee Solicitor General Michael Moore told the court he did not dispute “our obligation to follow Title II” through enforcement by the federal government. But under the court’s state sovereignty cases including the 2001 ruling in Board of Trustees of the University of Alabama v. Garrett, Moore said, Congress was not entitled to allow private lawsuits “applied indiscriminately to every state program and service.” Congress had made no effort to tailor Title II narrowly, he said. “There is no indication Congress thought courtroom access was a matter of particular concern,” said Moore. Also on Tuesday, the justices handed down rulings in several cases argued earlier in the term, among them Illinois v. Lidsterand Verizon Communications Inc. v. Law Offices of Curtis V. Trinko. In Illinois v. Lidster, No. 02-1060, the court ruled 6-3 that police roadblocks aimed at soliciting information about unsolved crimes do not violate the Fourth Amendment rights of motorists who are stopped. The Illinois Supreme Court had ruled against such a roadblock. Robert Lidster was stopped at a 1997 roadblock set up in Lombard, Ill., to seek information about a hit-and-run accident the week before. Lidster almost hit an officer with his car and was arrested for driving under the influence of alcohol. Justice Stephen Breyer, writing for the majority, said that because the prior accident caused a death, the state had a substantial interest in seeking information about it. “The stop advanced this grave public concern to a significant degree,” he wrote, adding that the stop “interfered only minimally with liberty of the sort the Fourth Amendment seeks to protect.” Justice John Paul Stevens, joined by Justices David Souter and Ruth Bader Ginsburg, dissented, agreeing that they would have sent the case back to Illinois courts for further factual determinations — such as whether the same information could have been solicited in a less intrusive way. In Verizon Communications Inc. v. Law Offices of Curtis V. Trinko, No. 02-682, the court unanimously overturned a ruling by the Second Circuit U.S. Court of Appeals that expanded antitrust liability for telecommunications companies. The case was brought by a New York lawyer and AT&T customer who claimed that Verizon had tried to stifle competition by failing to provide necessary connections to its local phone network to AT&T. In an opinion written by Justice Scalia, the court found that Trinko’s claim was not valid under the Sherman Act. Tony Mauro is Supreme Court correspondent for American Lawyer Media andThe Recorder’s Washington, D.C., affiliateLegal Times. His e-mail address is [email protected].

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