Chandler v. Miller

• Decision Date: 22 January 1996
• Docket Number: No. 95-8230,95-8230
• Parties: Walker L. CHANDLER; Sharon T. Harris; James D. Walker, Plaintiffs-Appellants, v. Zell D. MILLER, Governor; Lewis A. Massey, Secretary of State of Georgia; James G. Ledbetter, Commissioner, Department of Human Resources, State of Georgia, Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1543

73 F.3d 1543

64 USLW 2467

Walker L. CHANDLER; Sharon T. Harris; James D. Walker, Plaintiffs-Appellants, v. Zell D. MILLER, Governor; Lewis A. Massey, Secretary of

State of Georgia; James G. Ledbetter,

Commissioner, Department of Human

Resources, State of Georgia,

Defendants-Appellees.

No. 95-8230.

United States Court of Appeals, Eleventh Circuit.

Jan. 22, 1996.

Walker Lawrence Chandler, Office of Walker Lawrence Chandler, Zebulon, GA, for appellants.

Patricia Guilday, Office of State Attorney General, Atlanta, GA, for appellees.

Appeal from the United States District Court for the Northern District of Georgia.

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. Sec. 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. Sec. 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, 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

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. Sec. 45-12-7. The Governor must respond to state emergencies, id. Sec. 45-12-30, and if necessary call out the state militia. Id. Secs. 45-12-27; 45-12-28. He can direct state law enforcement agencies. See O.C.G.A. Secs. 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. Sec. 45-12-50; see also Ga. Const. Art. I, Sec. 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. Sec. 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 "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...