Chandler v. Miller

United States Court of Appeals,

Eleventh Circuit.

No. 95-8230.

Walker L. CHANDLER; Sharon T. Harris; James D. Walker,

Plaintiffs-Appellants,

v.

Zell D. MILLER, Governor; Max Cleland, Secretary of State of

Georgia; James G. Ledbetter, Commissioner, Department of Human

Resources, State of Georgia, Defendants-Appellees.

Jan. 22, 1996.

Appeal from the United States District Court for the Northern

District of Georgia. (No. 1:94-cv-1298-ODE), Orinda D. Evans,

Judge.

Before EDMONDSON, DUBINA and BARKETT, Circuit Judges.

EDMONDSON, Circuit Judge:

This case requires us to determine the constitutionality of a

Georgia statute requiring drug testing of political candidates and

nominees for state offices. We hold that Georgia's rule violates

no federal constitutional provision and affirm the district court's

judgment.

I.

In 1990, the Georgia legislature enacted O.C.G.A. § 21-2-140.1

The offices to which the statute applies include, among others,

those of the Governor, Lieutenant Governor, Secretary of State,

1

O.C.G.A. § 21-2-140 provides:

At the time a candidate for state office qualifies for

nomination or election, each such candidate shall file

a certificate ... stating that such candidate has been

tested for illegal drugs ... and that the results of

such test are negative.... No candidate shall be

allowed to qualify for nomination or election to a

state office unless he or she presents such

certificate....

Attorney General, the heads of several agencies, all state judges

in courts of general jurisdiction, and all state legislators. Id.

§ 21-2-140(a)(4). Plaintiff-appellants are members of the

Libertarian Party seeking the offices of Lieutenant Governor,

Commissioner of Agriculture, and member of the House of

Representatives.

As the language quoted in the margin indicates, anyone who

declines to take the test, or who tests positive, is basically

barred from holding office. Additional aspects of the drug-testing

scheme were outlined by the district court: testing may, at the

option of the candidate, be performed either at an approved medical

testing laboratory or at the office of the candidate's physician.

Laboratory procedures concerning privacy follow the Mandatory

Guidelines for Federal Workplace Drug Testing Programs, set out at

53 Fed.Reg. 11,979 (1988). The test is designed to reveal the

presence or absence of the indicia of five illegal drugs. No

information unrelated to drug use is contemplated by the statute;

the test simply indicates that the candidate tested positive or

negative.

The appellants' arguments comprise three identifiable claims.2

First, appellants argue the tests violate the Fourth Amendment

prohibition on unreasonable searches and seizures. Second,

2

Appellants' brief refers to almost every right enumerated

in the Constitution. Many of these textual provisions are

touched on only in passing, with no citations of authority. The

district court focused exclusively on appellants' Fourth

Amendment claim, and Appellants asserted at argument here that

they chiefly advanced their First and Fourteenth Amendment

claims. We regard all federal constitutional arguments except

these (First, Fourth, and Fourteenth Amendments) as either

abandoned or without merit.

appellants categorize the statute as affecting the Fourteenth

Amendment rights of candidates to run and of voters to choose them.

Third, they categorize their refusal to submit to the test as a

protected speech act that cannot, under the First Amendment, be the

basis for barring a candidate from the ballot.

II.

That the tests at issue are searches within the meaning of

the Fourth Amendment seems settled. See Skinner v. Railway Labor

Executives' Ass'n, 489 U.S. 602, 617, 109 S.Ct. 1402, 1413, 103

L.Ed.2d 639 (1989). Like the test at issue in National Treasury

Employees Union v. Von Raab, 489 U.S. 656, 109 S.Ct. 1384, 103

L.Ed.2d 685 (1989), this test "is not designed to serve the

ordinary needs of law enforcement." 489 U.S. at 666, 109 S.Ct. at

1391. That is, the test is not designed to prosecute crime: no

party before us contends otherwise. Special needs are involved.

In this circumstance, the courts must "balance the individual's

privacy expectations against the Government's interests to

determine whether it is impractical to require a warrant or some

level of individualized suspicion in the particular context." 489

U.S. at 665-66, 109 S.Ct. at 1390-91. Another federal appeals

court considering suspicionless drug testing has noted that "Von

Raab 's balancing test is inherently, and doubtless intentionally,

imprecise. The Court did not purport to list all of the factors

that should be weighed or to identify which factors should be

considered more weighty than others." Willner v. Thornburgh, 928

F.2d 1185, 1187 (D.C.Cir.1991).

No federal court seems to have entertained a Fourth Amendment

challenge to a state law requiring testing of candidates for high

state office. Thus we observe at the outset the special concerns

affecting the Von Raab balancing test where the state's interest is

in setting qualifications for its own officers.

American history is especially important in a case like this

one; and the Supreme Court observed nearly a century ago:

It is obviously essential to the independence of the States,

and to their peace and tranquility, that their power to

prescribe the qualifications of their own officers ... should

be exclusive and free from external interference, except so

far as plainly provided by the Constitution of the United

States.

Taylor v. Beckham, 178 U.S. 548, 570-71, 20 S.Ct. 890, 898, 44

L.Ed. 1187 (1900); (cited in Gregory v. Ashcroft, 501 U.S. 452,

460, 111 S.Ct. 2395, 2400, 115 L.Ed.2d 410 (1991)). In the light

of this command, we regard the states as entitled to considerable

deference in the characterization of their own interests.

Under the Skinner-Von Raab framework, the state's interest is

calculated mainly by reference to two factors: the level of

documented evidence of a past problem and the fundamental

inconsistency of drug use with the demands of the position. In

Skinner, the Court approved suspicionless drug testing where there

was a documented showing of widespread substance abuse among

employees in the position to be subjected to testing. 489 U.S. at

607, 109 S.Ct. at 1407-08.

In Von Raab, the Customs office did not demonstrate a past of

drug abuse among the employees to be tested. The Court approved

the search anyway, however, when confronted with evidence that

physical and ethical demands on customs agents were so great as to

render drug use totally incompatible with the nature of the

position. 489 U.S. at 669-70, 109 S.Ct. at 1393. Thus, because

Georgia has not argued that her elected officials have in the past

abused drugs, the issue on Georgia's interest is whether unlawful

drug use is similarly fundamentally incompatible with high state

office.

We think that to ask this question is also to answer it. The

people of Georgia place in the trust of their elected officials

that which people value most highly: their liberty, their safety,

their economic well-being, ultimate responsibility for law

enforcement, and so on. The Supreme Court has recognized that

"drug abuse is one of the most serious problems confronting our

society today," Von Raab, 489 U.S. at 674, 109 S.Ct. at 1395, and

therefore has approved the drug testing of Customs officers in part

because "the national interest [in eradicating drug use] could be

irreparably damaged if those charged with safeguarding it were,

because of their own drug use, unsympathetic to their mission of

interdicting narcotics." 489 U.S. at 670, 109 S.Ct. at 1393. That

said, it follows, even more forcefully, that those vested with the

highest executive authority to make public policy in general and

frequently to supervise Georgia's drug interdiction efforts in

particular must be persons appreciative of the perils of drug use.3

3

The Von Raab situation might be distinguished on the basis

that Congress can define the Customs Department's mission and

demand sympathy to that mission as a condition of employment,

whereas the executive officers here are members of a branch

coequal to the Georgia legislature. We regard this distinction

as involving a pure question of state law.

Appellants asserted in their complaint that the testing

violates the Georgia Constitution, but the district court

decided no issues of state law. 28 U.S.C. § 1367 provides

that the district courts "may decline to exercise

But drug use poses significant dangers beyond rendering

elected officials unsympathetic to drug interdiction efforts. The

nature of high public office in itself demands the highest levels

of honesty, clear-sightedness, and clear-thinking. For example,

the Lieutenant Governor is the President of the Senate and has

other executive duties posed by law; more important, though, the

Lieutenant Governor is to replace the Governor should the top

executive office become vacant. O.C.G.A. § 45-12-7. The Governor

must respond to state emergencies, id. § 45-12-30, and if necessary

call out the state militia. Id. §§ 45-12-27; 45-12-28. He can

direct state law enforcement agencies. See O.C.G.A. §§ 35-3-8.1;

35-2-33(b). The Governor has broad powers of appointment to

important offices, boards, commissions, and so forth. See

generally id. § 45-12-50; see also Ga. Const. Art. I, § 2, par. 1

(Governor appoints members of State Board of Pardons and Paroles).

It goes without saying that clear judgment is imperative to the

position. Likewise, members of the House of Representatives enact

laws of general applicability for the state, while the Commissioner

supplemental jurisdiction over a claim" which they otherwise

have power to hear if "the claim raises a novel or complex

issue of state law...." Id. The decision not to exercise

supplemental jurisdiction is reviewed for abuse of

discretion. Faucher v. Rodziewicz, 891 F.2d 864, 872 (11th

Cir.1990). In view of the complex state constitutional

issues presented here and the interests of comity in this

sensitive area of federal-state relations, we cannot

conclude the district court abused its discretion. See,

e.g., Grant v. Seminole County, Fla., 817 F.2d 731, 732

(11th Cir.1987) (finding no abuse of discretion where

district court failed to explain dismissal of state claim,

because "[e]xercising pendent jurisdiction over the claim

would have required the district court to decide a novel

question of state law ..."). We also decline to decide the

issues of state law raised by appellants.

of Agriculture leads an agency with broad regulatory powers. See

generally id. § 2-2-7 (Commissioner of Agriculture); Ga. Const.

Art. III (House of Representatives). The positions are

particularly susceptible to the "risks of bribery and blackmail

against which the Government is entitled to guard." Von Raab, 489

U.S. at 674, 109 S.Ct. at 1395. Simply put, the state's interest

in filling these positions with drug-free people is great.4

Also, we note that our conclusion is strengthened by our

deferential reading of Georgia's appraisal of its own interests.

Evaluating the governmental interest is necessarily a policy-based

inquiry; and while the importance of electing officials whose

probity and judgment are unclouded by the use of unlawful drugs may

be self-evident to us, we—whatever our own views might be—would be

slow to disregard Georgia's appraisal of that need in the light of

cases like Taylor, supra, reminding us that a state's sovereign

interests are at stake.

Against Georgia's interests must be balanced

plaintiff-appellants' privacy interests. The Supreme Court in

Skinner, 489 U.S. at 626, 109 S.Ct. at 1418, noted that drug tests

4

Appellants contend that because the test is administered

after substantial notice, drug users may simply discontinue their

indulgence for a brief period before testing and, thus, defeat

the purpose of the test. They say the testing is just

ineffective. But, in balancing the Fourth Amendment interests,

there is no requirement that a search be the single most

effective one a legislature could design. Also, as the Supreme

Court noted in Von Raab, "addicts may be unable to abstain for

even a limited period of time, or may be unaware of the

"fade-away effect' of certain drugs." 489 U.S. at 676, 109 S.Ct.

at 1396 (citations omitted). Persons who would be caught by

Georgia's limited testing would seem to be people who are out of

control about drugs; these worst cases might be the most

dangerous in public office. The testing is not so ineffective as

to be unreasonable or irrational in itself.

"require employees to perform an excretory function traditionally

shielded by great privacy," and Justice Scalia wrote in Von Raab

that the drug tests there were "particularly destructive of privacy

and offensive to personal dignity." 489 U.S. at 680, 109 S.Ct. at

1398 (Scalia, J., dissenting).

But, we think that the intrusion here is even less than that

approved in Von Raab. Here, the test can be taken at the office of

the candidate's physician, whereas in Von Raab, the test had to be

taken in the company of an (auditory) observer employed by an

"independent contractor." Other aspects bearing on the

individual's interests are similar to those approved in Von Raab.

The district court noted that federally-approved privacy

guidelines, such as those at 53 Fed.Reg. 11,979 et seq. (1988),

serve as the benchmark for laboratory procedures. The test reveals

only the presence or absence of the indicia of the use of illegal

drugs. The results are not made available to law enforcement

officers in the event a candidate chooses not to file them (if

taken through one's own physician, no state agent need know that

the test was administered). And, much like the Customs agents

whose privacy expectations are diminished because physical

conditioning and ethical behavior are central to job performance,

see Von Raab, 489 U.S. at 679, 109 S.Ct. at 1398, candidates for

high office must expect the voters to demand some disclosures about

their physical, emotional, and mental fitness for the position.

Because the governmental interests of the state of Georgia

outweigh the intrusions on privacy effected by the challenged

testing, we hold that O.C.G.A. § 21-2-140, as applied to the

appellants, does not violate the Fourth Amendment.

III.

Appellants also contend that by barring from the ballot a

class of persons (those who refuse to take drug tests), the Georgia

legislature has violated the rights of the candidates to run for

office and the people to vote for whom they please. In their

briefs and at argument, appellants indicated they would

characterize the Fourteenth Amendment as creating a nearly absolute

barrier to excluding a defined group of persons from the ballot.

The Supreme Court, however, has rejected that argument, most

recently in Gregory v. Ashcroft, 501 U.S. 452, 111 S.Ct. 2395, 115

L.Ed.2d 410 (1991). There, the Court recognized Missouri's

prerogative to exclude from the ballot most candidates for the

state judiciary over a mandatory retirement age of seventy years.

The Court acknowledged that when states bar a class of candidates

from the ballot, "the Equal Protection Clause provides a check on

such state authority," but cited Article IV, section 4 and the

Tenth Amendment for the proposition that

our scrutiny will not be so demanding where we deal with

matters resting firmly within a State's constitutional

prerogatives. This rule is no more than a recognition of a

State's constitutional responsibility for the establishment

and operation of its own government, as well as the

qualifications of an appropriately designated class of public

office holders.

501 U.S. at 462, 111 S.Ct. at 2402 (citations and internal

quotation marks omitted).

Gregory guides us in our disposition of the appellants' equal

protection claim. There, the Court held that rational basis

scrutiny applies to state electoral qualifications not involving a

suspect classification. 501 U.S. at 470, 111 S.Ct. at 2406. Under

rational basis scrutiny, courts "will not overturn such a statute

unless the varying treatment of different groups or persons is so

unrelated to the achievement of any combination of legitimate

purposes that we can only conclude that the legislature's actions

were irrational." Vance v. Bradley, 440 U.S. 93, 97, 99 S.Ct. 939,

943, 59 L.Ed.2d 171 (1979).

Considering the importance of the mental, emotional, and

physical health of high public officials, we cannot conclude that

the Georgia legislature acted irrationally. Also, the Georgia

statute creates less of a barrier than the one upheld in Gregory:

whereas Missouri judicial candidates past the mandatory retirement

age were permanently barred from the ballot, Georgia candidates are

only barred so long as they cannot (or will not) demonstrate that

they are drug-free. Thus we hold that O.C.G.A. § 21-2-140 does not

improperly infringe on the rights of people to run and of voters to

choose the candidate of their choice.

IV.

Appellants' First Amendment claim is based on their assertion

that the "refusal tamely to submit to the government's drug testing

edict is itself a protected free speech act similar in nature to

refusing to salute a flag or the king's hat set upon a post in the

village square." We read this argument as an appeal to the

rationale of cases like Communist Party of Indiana v. Whitcomb, 414

U.S. 441, 94 S.Ct. 656, 38 L.Ed.2d 635 (1974), which invalidated a

state statute conditioning ballot access on the filing of an

affidavit disavowing the overthrow of state and national

governments, and Bond v. Floyd, 385 U.S. 116, 87 S.Ct. 339, 17

L.Ed.2d 235 (1966), which held that exclusion of a member of the

Georgia House of Representatives based on his stated opposition to

the Vietnam war violated the First Amendment. We think these cases

are distinguishable in that they involve pure speech acts, divorced

from unlawful conduct.

In that respect, this case is more like United States v.

O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968), where

the court upheld against a First Amendment challenge the

prosecution of a young man who burned his draft card, ostensibly in

an effort to persuade others to oppose the Vietnam War. There, the

Court stated, "[w]e cannot accept the view that an apparently

limitless variety of conduct can be labeled speech whenever the

person engaging in the conduct intends thereby to express an idea."

391 U.S. at 376, 88 S.Ct. at 1678. The Court went on, however, to

entertain the "assumption that the alleged communicative element in

O'Brien's conduct is sufficient to bring into play the First

Amendment." Id. Against this backdrop, the Court held that

government regulation of conduct containing "speech and nonspeech"

elements is "sufficiently justified if it is within the

constitutional power of the Government; if it furthers an

important or substantial government interest; if the governmental

interest is unrelated to the suppression of free expression; and

if the incidental restriction on alleged First Amendment freedoms

is no greater than is essential to the furtherance of that

interest." 391 U.S. at 377, 88 S.Ct. at 1679.

Georgia's drug-testing statute passes muster under the

framework of O'Brien. First, it is generally within the power of

the state of Georgia to prescribe qualifications for its elected

officials. See Gregory, 501 U.S. at 463, 111 S.Ct. at 2402.

Second, the statute furthers a substantial governmental

interest, as described in the Fourth Amendment analysis above.

Third, the government's purpose is not suppression of free

expression. The purpose, as we concluded above, is ensuring that

high public officials to whom immense responsibilities are

entrusted possess the judgment, probity, and alertness required of

them. Anyway, it is doubtful whether the statute has even the

effect, let alone purpose, of restricting speech rights. We think

an audience would much more clearly perceive the intended message

of one who burns a draft card than the message of one who declines

to take a drug test. See generally Clark v. Community for Creative

Non-Violence, 468 U.S. 288, 294, 104 S.Ct. 3065, 3069, 82 L.Ed.2d

221 (1984) (noting that First Amendment protection of conduct

depends on whether conduct "would reasonably be understood by the

viewer to be communicative").

Fourth, the regulation is no more restrictive of expression

than is necessary. If Georgia's goal is to preclude the nomination

or election of people addicted to drugs then it must require,

rather than simply advise, that prospective candidates submit to

testing. Appellants have not suggested a less restrictive way for

Georgia to accomplish its stated objective of keeping drug users

out of office. Therefore, we conclude that whatever impact the

Georgia statute has on speech does not violate the First Amendment.

V.

No party contends in this appeal that the drug testing in

this case is for normal law enforcement. The controversy is about

Georgia's rights and the special need Georgia believes it has to

take a step to deter illicit drug users from filling important

state offices. Especially in the light of federalism and the Tenth

Amendment, we are cautious in interfering with the states on

matters central to their governance.5 O.C.G.A. § 21-2-140 does not

violate the First, Fourth, or Fourteenth Amendment rights of

candidates for high office in Georgia; we affirm the judgment of

the district court.6

AFFIRMED.

BARKETT, Circuit Judge, dissenting:

As the majority recognizes, there is no question that the

mandatory drug testing in this case is an unreasonable search

5

By the way, Georgia publishes almost no official

legislative history. And, we do not accept an academic law

journal's summary of a post-enactment telephone interview (not

conducted under oath) with a single legislator (even one of the

sponsors of a bill) as competent legislative history. See, e.g.,

Blanchette v. Connecticut General Ins. Corp., 419 U.S. 102, 132,

95 S.Ct. 335, 353, 42 L.Ed.2d 320 (1974) (rejecting use of

"subsequent legislative history" because "[P]ost-passage remarks

of legislators, however explicit, cannot serve to change the

legislative intent.... Such statements represent only the

personal views of these legislators."). Nor do we—on the basis

of such "history"—accept that Georgia's drug testing law is

merely or chiefly symbolic, although that which is symbolic may

still have great significance. In their brief,

plaintiff-appellants cited to no such law review summaries; and

we think they—given the lack of true legislative history

available—were right not to do so.

6

We are aware that qualifying to run for the pertinent

public offices is only a few months away. We also recognize that

plaintiff-appellants will likely seek review of our decision.

For that reason, we have tried to be expeditious in announcing

the decision. Because speed seems important, we have perhaps not

said all that we could—especially about history; but we think we

have said enough to indicate our general point of view.

prohibited by the Fourth Amendment unless it is required by

"special governmental needs beyond the normal need for law

enforcement," and those needs outweigh the candidates' privacy

interests. National Treasury Employees v. Von Raab, 489 U.S. 656,

665-66, 109 S.Ct. 1384, 1390-91, 103 L.Ed.2d 685 (1989) (citing

Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 109 S.Ct.

1402, 1413-14 (1989)). I dissent because I do not believe that the

suspicionless search in these circumstances serves any special

governmental need beyond the normal need for law enforcement, and,

if it did, I believe that the candidates' privacy interests

outweigh the governmental interests when the factors of Von Raab

are properly considered.

Before balancing the candidates' privacy expectations against

the government's interests in conducting suspicionless

drug-screening, the court must first ascertain whether this case

presents a special governmental need beyond the normal need for law

enforcement.1 In simpler terms, before the court can balance the

competing interests in this case, it must first ask what is so

impractical about requiring a warrant or individualized suspicion

in the circumstances presented here. It is in this threshold

inquiry that I believe the majority first errs.

The majority frames its analysis in terms of whether "unlawful

drug use is ... fundamentally incompatible with high state office."

1

Whether "[s]pecial needs are involved" in this case is

determined not by how urine test results will be used against any

particular candidate, but by whether the "need" for such testing

is already served by ordinary law enforcement, and is of such a

"special" nature as to render the Fourth Amendment's warrant

requirement impracticable.

Certainly, the answer to that question is patently obvious, but the

question assumes unlawful drug use.2 This case is not about the

incompatibility of drug use and elected office, but rather about

whether Fourth Amendment protections can be constitutionally

suspended when there is no individualized suspicion, when there is

no immediate or direct threat to public safety, when those being

searched are not directly involved in the frontlines of drug

interdiction, when there is no institutional setting involved such

as a prison or public school requiring swift and informal

discipline, and when there are no dire consequences as a result of

waiting to obtain a warrant if a candidate, or anyone else for that

matter, is suspected of violating the law. The first question for

the court is not whether the state's interest is great enough and

its chosen method effective enough to outweigh the privacy

interests involved. Rather, it is whether, under Von Raab, the

circumstances in this case give rise to a special governmental need

beyond the ordinary needs of law enforcement in the first place.

I think not, and the majority's analysis does not support its

conclusion to the contrary.3

Essentially, the majority's justification for suspending the

2

O.C.G.A. § 21-2-140 bars from public office either

candidates who refuse to take the test because they are

ideologically opposed to the government's intrusion upon their

privacy, or candidates who fail the test and are thereby only

suspected of having committed a crime.

3

The majority's reference to the Tenth Amendment interest in

setting qualifications for public office misses the point.

Georgia's power under the Tenth Amendment to regulate its

electoral process is not absolute. As the majority notes, the

state's power to do so is subject to federal constitutional

limitations, the extent of which are at issue here.

requirements of the Fourth Amendment is the state's interest in

officeholders who are "drug free," "honest[ ], clear-sighted[ ],

and clear-thinking," as well as "appreciative of the perils of drug

use" and "[ ]sympathetic to drug interdiction efforts." Putting

aside First Amendment concerns as to whether these subjective

traits, as desirable as they may be, can be legislated as valid

qualifications for public office, this standard not only fails to

address why ordinary law enforcement methods are insufficient to

protect these interests, but it makes suspicionless searches the

rule and obtaining a warrant almost always irrelevant.4 Moreover,

this rationale seriously erodes the Fourth Amendment's protections

for many people beyond the parties involved here.

The Supreme Court has rejected such an overbroad standard in

assessing the reasonableness of various governmental drug-testing

schemes. In Skinner and Von Raab, the Court suspended Fourth

Amendment protections only when the risks of drug impairment

affected those directly on the frontline of drug interdiction

efforts, or those who, if under the influence of drugs, could pose

an imminent physical threat to the public. The Court found a nexus

between the risks of drug use and imminent hazards to public

safety, for example, where government employees "discharge duties

fraught with such risks of injury to others that even a momentary

lapse of attention can have disastrous consequences." Skinner, 489

4

Under this standard, what Fourth Amendment protections

would candidates retain to prevent suspicionless testing to

research for a physical or mental impairment, AIDS, alcohol or

prescription drug abuse, screening DNA for genetic information,

or to prevent warrantless invasions of homes to search for drugs,

pornography, or other contraband?

U.S. at 628, 109 S.Ct. at 1419. The Court held that railway safety

is a special governmental need beyond the normal need for law

enforcement and justifies the suspicionless urine testing of those

employees whose drug and alcohol abuse can "cause great human

loss," but noted that the regulations "narrowly and specifically"

limited testing to the aftermath of a serious accident when

individualized suspicion is "most impracticable," or when employees

are otherwise directly involved in safety-rules violations. Id. at

622, 631, 109 S.Ct. at 1416, 1420-21. Moreover, the Court upheld

drug testing only after a showing of past history linking drug and

alcohol abuse with serious train accidents. Id. at 606-08, 109

S.Ct. at 1407-08.

In Von Raab, the Court likewise required such a nexus in

upholding suspicionless urine testing of Customs employees who are

involved directly in enforcing drug laws, or are required to carry

firearms. Von Raab, 489 U.S. at 670-71, 109 S.Ct. at 1393. While

the Court found compelling the Customs Service's interest in

"ensuring that front-line interdiction personnel are physically

fit, and have unimpeachable integrity and judgment," it also

specifically explained how that compelling interest would be

undermined by unlawful drug use among such front-line personnel:

"A drug user's indifference to the Service's basic mission, or,

even worse, his active complicity with malefactors, can facilitate

importation of sizable drug shipments or block apprehension of

dangerous criminals." Von Raab, 489 U.S. at 670, 109 S.Ct. at

1393. The Court recognized that "the public should not bear the

risk that employees who may suffer from impaired perception and

judgment will be promoted to positions where they may need to

employ deadly force." Id. at 671, 109 S.Ct. at 1393 (emphasis

added).

The narrow focus of these exceptions was reaffirmed in

Vernonia School District 47J v. Acton, --- U.S. ----, 115 S.Ct.

2386, 132 L.Ed.2d 564 (1995). The Court held that special

governmental needs justify randomly testing the urine of

schoolchildren, who hold a diminished expectation of privacy in the

public school custodial setting, but noted that "it must not be

lost sight of that this program is directed more narrowly to drug

use by school athletes, where the risk of immediate physical harm

to the drug user or those with whom he is playing his sport is

particularly high." Acton, --- U.S. at ----, 115 S.Ct. at 2395

(emphasis added). Thus, it appears that even (unathletic)

schoolchildren enjoy greater Fourth Amendment protections than the

majority accords the candidates in this case.

There is nothing so special or immediate about the generalized

governmental interests involved here as to warrant suspension of

the Fourth Amendment's requirement of individualized suspicion for

searches and seizures. There are no exigent circumstances. There

is no imminent threat of grave physical harm. The prospective

candidates are not on the frontlines of drug interdiction. And, we

cannot ignore that candidates are subjected to the ultimate

screening program—the voice of the electorate. Thus, I believe the

majority errs in concluding that a special governmental need beyond

the normal need of law enforcement is present in this case.

In addition to being troubled by the majority's assumption

that a special governmental need beyond the normal need for law

enforcement exists which makes obtaining a warrant impractical in

this case, I am troubled by the majority's assessment and balancing

of the competing interests involved. This case presents a more

serious constitutional question than that in Von Raab and Skinner

because of the nature and magnitude of the individual rights

involved.

Even if privacy interests are viewed in the narrowest sense,

a candidate's legitimate expectation of privacy in his or her

bodily fluids is greater than the employees in Von Raab or Skinner.

In balancing the privacy interests of the employees in Von Raab,

the Court recognized that Customs officers already agree to undergo

intrusive screening as a condition of employment: " Unlike most

private citizens or government employees in general, employees

involved in drug interdiction reasonably should expect effective

inquiry into their fitness and probity." Von Raab, 489 U.S. at

672, 109 S.Ct. at 1394 (emphasis added). The Court likened the

necessity in those circumstances to the "extraordinary assurances

of trustworthiness and probity" and "intrusive inquiries into ...

physical fitness" required of those who undertake "special

positions" such as in our military or intelligence services. Id.

at 671, 109 S.Ct. at 1394. In Skinner, the Court likewise

recognized that "the expectations of privacy of covered employees

are diminished by reason of their participation in an industry that

is regulated pervasively to ensure safety, a goal dependent, in

substantial part, on the health and fitness of covered employees."

Skinner, 489 U.S. at 627, 109 S.Ct. at 1418.

I recognize that employment choices may indeed diminish

expectations of privacy. An individual need not choose to become

a drug interdiction agent, military intelligence officer, or

railway engineer, thereby avoiding the intensive training and

intrusive screening required by that particular job. But, an

individual does not have a constitutional right to a specific kind

of employment. The Constitution, however, protects participation

in government. While candidates relinquish to the people a great

deal of their privacy in choosing to run for public office, the

price should not include sacrificing one's Fourth Amendment right

to be free from unreasonable searches and seizures.

In conducting the Von Raab balancing test, the majority fails

to adequately consider the totality of the government's

"interference with individual liberty." Von Raab, 489 U.S. at 671,

109 S.Ct. at 1393. Not only is the privacy surrounding an

individual's bodily functions at stake, but all of the rights

associated with participating in a democracy—rights of association,

freedom of speech, ballot access, and the right to cast an

effective ballot. We are not dealing merely with the denial of a

job opportunity, but with the denial of opportunity to participate

in our democratic form of government. In light of the interference

with these liberty interests, giving the governmental interests

here the greater weight seems especially unreasonable.

Finally, I am concerned about the majority's conclusion that

the government's actions in this case do not violate the First

Amendment. The majority maintains that the government's purpose is

not suppression of free expression. Yet, it supports its holding

by citing the importance of ensuring that elected officials are

"persons appreciative of the perils of drug use" and "[

]sympathetic to drug interdiction efforts." Establishing a certain

ideology as a "qualification" for holding public office appears to

be a content-based restriction on free expression.5 Drug policy is

a politically charged issue confronting many government officials

who have disparate points of view regarding the "Drug War" and the

efficacy of the means employed in fighting it. It is the function

of public office holders to write, enforce, and interpret the laws,

including drug laws. By conditioning holding public office upon

submission to drug screening, however, the Georgia legislature

effectively bans from positions of political power not only those

candidates who might disagree with the current policy criminalizing

drug use, but also those who challenge the intrusive governmental

means to detect such use among its citizenry. This statute is

neither neutral nor procedural, but, in the majority's own

characterization, attempts to ensure that only candidates with a

certain point of view qualify for public office.

It is beyond peradventure that a bodily search is

significantly intrusive. It is almost equally obvious that the

means utilized here would not accomplish the goals purportedly

5

The Supreme Court struck down a previous attempt by the

Georgia legislature to disqualify a citizen from public office on

the basis of his ideology, noting that: "Madison and Hamilton

anticipated the oppressive effect on freedom of expression which

would result if the legislature could utilize its power of

judging qualifications to pass judgment on a legislator's

political views." Bond v. Floyd, 385 U.S. 116, 135-37 n. 13, 87

S.Ct. 339, 349-50 n. 13, 17 L.Ed.2d 235 (1966) (holding

legislature's use of oath provisions to exclude from its ranks

one with whom its majority disagreed on federal government's

policy in Vietnam War violated First Amendment).

6

justifying the search. Thus, this search is more a symbolic

gesture than an effective tool to ferret out drug-users or assure

exemplary public officials.7 Surely, symbolic gestures are not

6

The majority recognizes that, considering the notice given,

any drug user could disguise drug use, and that "[p]ersons who

would be caught by Georgia's limited testing would seem to be

people who are out of control about drugs...." It also seems

that these "worst cases" would be ideal candidates for some form

of individualized suspicion.

7

The majority has delineated the government's purported

interest in ensuring that candidates "have what it takes" to hold

public office as justification for the suspicionless urine

testing of candidates. However, the available subsequent

legislative history indicates that in passing O.C.G.A. § 21-2-

140, the Georgia General Assembly did not appear to be motivated

by concerns that state politicians exercise their "best judgment

and skill," but rather by the desire to enact a symbolic measure:

"One of the sponsor's of the original 1990 legislation

... proposed the legislation out of a sense of fairness

rather than any genuine fear that state politicians

were not drug free. The sponsor of the 1990

legislation felt that if city council or state

politicians require drug testing of state employees,

they too should undergo drug testing. Additionally, if

in order to appease public concern about the use of

illegal drugs politicians must infringe upon the rights

of government employees, the politicians themselves

should be treated similarly."

Edith M. Shine, Legislative Review, 9 Ga.St.U.L.Rev. 212,

218 (1992) (citing Telephone Interview with Rep. Bob Holmes,

House District No. 28 (Apr. 10, 1992)) (footnotes omitted).

Representative Holmes stated that the legislation was

proposed in response to similar legislation that required

school teachers to undergo urine testing because it was

unfair to subject teachers to urine tests unless the

politicians enacting such a law also were tested. Id. at

218 n. 61. Nonetheless, the law did not apply to

politicians who were already in office, but only to

prospective candidates for those offices. In any event, the

Applicant Drug Screening Act, which precipitated the mandate

for suspicionless testing of political candidates, was

struck down later as an unconstitutional infringement of

employment applicants' Fourth and Fourteenth Amendment

rights. Georgia Ass'n of Educators v. Harris, 749 F.Supp.

1110, 1114 (N.D.Ga.1990) (holding generalized governmental

interest in maintaining drug-free workplace not sufficiently

compelling so as to outweigh applicants' Fourth Amendment

enough to trump the constitutional imperatives of the Fourth

Amendment or the right to participate in government.

rights).

On a final note, Representative Holmes' comments are

incapable of "chang[ing] the legislative intent ...

expressed before the Act's passage," as in Blanchette v.

Connecticut General Insurance Corp., 419 U.S. 102, 132, 95

S.Ct. 335, 353, 42 L.Ed.2d 320 (1974) because, as the

majority notes, no "official" history of legislative intent

exists. Rather, this case is closer to Galvan v. Press, 347

U.S. 522, 526-27, 74 S.Ct. 737, 740, 98 L.Ed. 911 (1954)

(relying on 1951 memorandum by Senator McCarran in

interpreting ambiguous legislative intent of 1950 statute he

sponsored). We are left, therefore, with the wisdom of Mr.

Chief Justice John Marshall that "[w]here the mind labours

to discover the design of the legislature, it seizes

everything from which aid can be derived." United States v.

Fisher, 6 U.S. (2 Cranch) 358, 386, 2 L.Ed. 304 (1805)

(quoted in Consumer Product Safety Commission v. GTE

Sylvania, Inc., 447 U.S. 102, 100 S.Ct. 2051, 64 L.Ed.2d 766

(1980)).