ANCHORAGE POLICE v. Mun. of Anchorage

• Decision Date: 15 June 2001
• Docket Number: No. S-8137, No. S-8138, No. S-8208.
• Citation: 24 P.3d 547
• Parties: ANCHORAGE POLICE DEPARTMENT EMPLOYEES ASSOCIATION, and International Association of Fire Fighters, Local 1264, Appellants and Cross-Appellees, v. MUNICIPALITY OF ANCHORAGE, Appellee and Cross-Appellant.
• Court: Alaska Supreme Court

24 P.3d 547

ANCHORAGE POLICE DEPARTMENT EMPLOYEES ASSOCIATION, and International Association of Fire Fighters, Local 1264, Appellants and Cross-Appellees, v. MUNICIPALITY OF ANCHORAGE, Appellee and Cross-Appellant.

Nos. S-8137, S-8138 and S-8208.

Supreme Court of Alaska.

June 15, 2001.

Rehearing Denied July 20, 2001.

William B. Aitchison, Aitchison & Vick, Portland, Oregon, for Appellant/Cross-Appellee Anchorage Police Department Employees Association.

Charles A. Dunnagan and Mike L. Dishman, Jermain, Dunnagan & Owens, P.C., Anchorage, for Appellant/Cross-Appellee International Association of Fire Fighters, Local 1264.

James D. Gilmore and Amy R. Ménard, Gilmore & Doherty, Anchorage, for Appellee/Cross-Appellant Municipality of Anchorage.

Before MATTHEWS, Chief Justice, EASTAUGH, and BRYNER, Justices.

OPINION

PER CURIAM.

I. INTRODUCTION

The superior court found constitutionally valid a policy adopted by the Municipality of Anchorage (Municipality) that subjects police and fire department employees in safety-sensitive positions to suspicionless substance abuse testing in certain situations—upon job application, promotion, demotion, or transfer, and after a traffic accident—and at random. The Anchorage Police Department Employees Association (Police Employees) and the International Association of Fire Fighters, Local 1264 (Fire Fighters) appeal. We affirm all but one aspect of the superior court's ruling, concluding that the Municipality's at random testing provision violates the Alaska Constitution's prohibition against unreasonable searches and seizures.

II. FACTS AND PROCEEDINGS¹

In September 1994 the Municipality adopted Policy No. 40-24 ("the policy"). The policy provides for substance abuse testing, by urinalysis,² of certain municipal employees (1) upon employment application, promotion, demotion, or transfer; (2) following a vehicular accident; (3) on reasonable suspicion; and (4) at random. All employees are subject to post-accident testing. Only employees in "public safety positions" are subject to random testing and to promotion/demotion/transfer testing. A public safety position is defined as "a position in the Police or Fire Department having a substantially significant degree of responsibility for the safety of the public where the unsafe performance of an incumbent could result in death or injury to self or others."

Police Employees and Fire Fighters notified the Municipality that they believed that suspicionless testing is unconstitutional. In June 1996 they filed actions for declaratory judgment and injunctive relief, arguing that testing without reasonable suspicion (and without a warrant) violates their members' state and federal constitutional rights to privacy and against unreasonable searches and seizures.³

On consolidated motions for summary judgment, the superior court determined that the Municipality's policy is constitutional. The superior court declined to award attorney's fees to the Municipality, finding that Police Employees and Fire Fighters were public interest litigants. Police Employees and Fire Fighters appeal the substance of the superior court's decision; the Municipality cross-appeals the denial of attorney's fees and costs.

III. STANDARDS OF REVIEW

We review a grant of summary judgment de novo,⁴ drawing all reasonable factual inferences in favor of the non-moving party⁵ and affirming the trial court's ruling when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law.⁶ On questions of law, we are not bound by the lower court's decision and will adopt the rule of law that is "most persuasive in light of precedent, reason, and policy."⁷ We review a decision regarding attorney's fees/public-interest-litigant status for abuse of discretion.⁸

IV. DISCUSSION

A. Suspicionless Substance Abuse Testing

Police Employees and Fire Fighters mount their challenge to the Municipality's suspicionless testing policy along four constitutional fronts.⁹ They contend that the policy violates the right to privacy and the prohibition against unreasonable searches and seizures; they press each of these theories under the Alaska and United States Constitutions. The superior court's thorough and thoughtful decision on summary judgment addressed each of these claims but placed primary emphasis on the alleged violations of Alaska's constitutional right to privacy.¹⁰ For the reasons explained below, however, we prefer to resolve the parties' arguments using the analytical framework that governs unlawful searches and seizures; and although we find substantial guidance in cases interpreting the United States Constitution, we limit our decision to the requirements of the Alaska Constitution's search and seizure clause.

Article I, section 14, of the Alaska Constitution prohibits unreasonable searches and seizures: "The right of the people to be secure in their persons, houses and other property, papers, and effects, against unreasonable searches and seizures, shall not be violated." Article I, section 22, defines Alaska's right to privacy: "The right of the people to privacy is recognized and shall not be infringed. The legislature shall implement this section."

We have held that both of these provisions afford broader protection than their federal counterparts. Alaska's guaranty of privacy is broader than the protection found in the federal constitution, which contains no express privacy provision:

Since the citizens of Alaska, with their strong emphasis on individual liberty, enacted an amendment to the Alaska Constitution expressly providing for a right to privacy not found in the United States Constitution, it can only be concluded that the right is broader in scope than that of the Federal Constitution.¹¹

And Alaska's search and seizure clause is stronger than the federal protection because article I, section 14 is textually broader than the Fourth Amendment,¹² and the clause draws added strength from Alaska's express guarantee of privacy.¹³ Because the Alaska Constitution provides broader protection to Police Employees and Fire Fighters under both constitutional theories that they argue in this appeal, we need only determine whether the Municipality's policy violates the Alaska Constitution's requirements. Thus, we base our ultimate ruling exclusively on the Alaska Constitution.

Moreover, while the parties raise legitimate constitutional concerns under both the privacy and search and seizure clauses of the Alaska Constitution, we think it best to focus our decision on article I, section 14—the search and seizure provision. In prior opinions, this court has emphasized that the primary purpose of both Alaska provisions— section 14's search and seizure protection and section 22's privacy guaranty—is to protect "personal privacy and dignity against unwarranted intrusion by the State, or other governmental officials."¹⁴ Accordingly, in cases involving allegedly invalid searches, we have recognized that the standard for determining compliance with Alaska's search and seizure clause is "inexorably entwined" with the standard of privacy established in article I, section 22.¹⁵

The Municipality policy at issue here requires Police Employees and Fire Fighters members to submit to urinalysis for purposes of disclosing potential substance abuse. The United States Supreme Court has held that urine testing conducted under analogous circumstances qualifies as a "search" for constitutional purposes:

Because it is clear that the collection and testing of urine intrudes upon expectations of privacy that society has long recognized as reasonable, the Federal Courts of Appeals have concluded unanimously, and we agree, that these intrusions must be deemed searches under the Fourth Amendment.¹⁶

Because the policy at issue here unquestionably requires employees to submit to "searches," and because Alaska's search and seizure clause incorporates the requirements of Alaska's privacy clause, we can resolve all of the constitutional issues raised in this case by applying the analytical framework governing Alaska's search and seizure provision, article I, section 14. If the disputed policy passes muster under this analysis, it will necessarily also satisfy the requirements of article I, section 22, as well as the corresponding, but more lenient, demands of the United States Constitution.

The United States Supreme Court has decided four cases addressing the validity, under the Fourth Amendment, of suspicionless substance abuse testing requirements analogous to those challenged here.

In Skinner v. Railway Labor Executives' Ass'n,¹⁷ the Court upheld Federal Railroad Administration (FRA) regulations that required railroads to administer breath and urine tests to all employees involved in accidents and that authorized railroads to test employees upon reasonable suspicion and after violations of safety rules.¹⁸ The Court held that the testing regulations were constitutional, noting that the railroad industry is pervasively regulated,¹⁹ that the challenged regulations were designed to deter drug and alcohol use,²⁰ that requiring individualized suspicion would unduly interfere with the railroad's ability to obtain information concerning accident causes,²¹ and that the regulations contained adequate safeguards to prevent abuses of discretion by supervisors.²² Thus, the Court ruled that the compelling governmental interest in protecting public safety outweighed railroad employees' privacy concerns.²³

In National Treasury Employees Union v. Von Raab,²⁴ a case decided the same day as Skinner, the Court considered regulations that subjected United States Customs Service employees to suspicionless testing upon promotion to (or application for) positions directly involving the interdiction of illegal drugs or positions that required carrying a firearm. Unlike the railroad employees in Skinner, the Customs Service employees in Von Raab had no history of drug...