Chandler v. Miller ( 1996 )

PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
_____________________________________
No. 95-8230
_____________________________________
D. C. Docket No. 1:94-CV-1298-ODE
WALKER L. CHANDLER; SHARON T. HARRIS; JAMES
D. WALKER,
Plaintiffs-Appellants,
versus
ZELL D. MILLER, Governor; MAX CLELAND,
Secretary of State of Georgia; JAMES G.
LEDBETTER, Commissioner Department of Human
Resources State of Georgia,
Defendants-Appellees.
______________________________________
Appeal from the United States District Court
for the Northern District of Georgia
_______________________________________
(January 22, 1996)
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,
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.
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 . . . .
2
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,
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
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.
3
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
4
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. 2d 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
5
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 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,
6
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
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
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.
7
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 "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
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.
8
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.
9
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
10
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
11
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
12
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
13
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
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. Corps., 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.
14
candidates for high office in Georgia; we affirm the judgment of
the district court.6
AFFIRMED.
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.
15