City and County of Denver v. Casados

• Decision Date: 04 October 1993
• Docket Number: No. 92SC195,92SC195
• Citation: 862 P.2d 908
• Parties: 8 IER Cases 1532 The CITY AND COUNTY OF DENVER and Federico Pena, in his official capacity as Mayor of the City and County of Denver, Petitioners, v. John T. CASADOS, Jerry Draper, Roland Carter, and Augustine Villalobos, and all others similarly situated, Respondents.
• Court: Colorado Supreme Court

Page 908

862 P.2d 908

8 IER Cases 1532

The CITY AND COUNTY OF DENVER and Federico Pena, in his

official capacity as Mayor of the City and County

of Denver, Petitioners, v. John T. CASADOS, Jerry Draper, Roland Carter, and Augustine

Villalobos, and all others similarly situated, Respondents.

No. 92SC195.

Supreme Court of Colorado,

En Banc.

Oct. 4, 1993.

Daniel E. Muse, City Atty., Darlene M. Ebert, Asst. City Atty., Denver, for petitioners.

John Mosby, Denver, Jennifer A. Payne, Longmont, for respondents.

Justice LOHR delivered the Opinion of the Court.

In Casados v. City and County of Denver, 832 P.2d 1048 (Colo.App.1992), the Colorado Court of Appeals held that the plaintiffs ¹ stated a claim under the Fourth Amendment ² that certain provisions of an Executive Order issued by the Mayor of the City and County of Denver are facially unconstitutional. We reverse and remand for further proceedings consistent with this opinion.

I

On October 27, 1988, then Mayor Federico Pena of the City and County of Denver issued Executive Order No. 94 (the Order). Among other things, the Order implemented for non-law-enforcement purposes a mandatory blood- and urinalysis-drug-testing program for Denver employees. In April of 1990, the Denver District Court granted leave to the plaintiffs to file an amended class action complaint raising, among other issues, a facial challenge under the Fourth Amendment to the Order's provisions for alcohol and drug testing based on reasonable suspicion of alcohol or drug use or impairment. ³ The defendants ⁴ responded with a motion to dismiss under C.R.C.P. 12(b)(5), and on June 25, 1990, the district court issued a two-sentence order stating:

IT IS ORDERED, based upon the memorandum briefs submitted, that Defendants' Motion to Dismiss shall be and the same is hereby GRANTED.

IT IS FURTHER ORDERED that a judgment of dismissal, with prejudice, be and the same is hereby entered in favor of the Defendants and against the Plaintiffs.

The plaintiffs appealed, and the court of appeals reversed. See Casados, 832 P.2d 1048. The court of appeals held that the plaintiffs did state a claim that the Order's provisions for drug testing based on reasonable suspicion of alcohol or drug use or impairment are facially invalid under the Fourth Amendment. Id. at 1052-54. ⁵ The court based this holding on the view that even if there is reasonable suspicion that a government employee is under the influence of a drug or alcohol, or is using an illicit drug, it is unconstitutional for the government to require the employee to take a blood or urine test unless that employee works in a safety-sensitive position. Id. at 1053. Because the court construed the Order as covering all employees, id., it remanded the case in order to give the plaintiffs an opportunity to prove the facts that would entitle them to relief, id. at 1053-54, specifically, that they do not hold safety-sensitive positions, ⁶ and that their other material allegations are true.

We granted certiorari to determine whether the court of appeals erred in its analysis of the plaintiffs' Fourth Amendment challenge to the facial constitutionality of the Order's provisions for reasonable suspicion testing. We do not agree that the plaintiffs have stated a claim under the Fourth Amendment that the Order's provisions for testing based on reasonable suspicion of alcohol or drug use or impairment are facially invalid. However, the plaintiffs are entitled to pursue their as-applied constitutional challenges to the Order, as well as any remaining claims made by them in their amended complaint and asserted on appeal that were not addressed by the court of appeals. ⁷ Accordingly, we reverse and remand for further proceedings consistent with this opinion.

II

Our analysis of the plaintiffs' facial challenge to the constitutionality of the Order is guided primarily by two recent decisions by the United States Court of Appeals, specifically, American Federation of Government Employees, Local 2391 v. Martin, 969 F.2d 788 (9th Cir.1992), and National Treasury Employees Union v. Yeutter, 918 F.2d 968 (D.C.Cir.1990). These decisions are in turn guided in significant part by three United States Supreme Court decisions, specifically, Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989) (upholding suspicionless blood and urine testing of railroad employees involved in certain types of train accidents, and breath and urine testing of railroad employees who supervisors have reasonable suspicion to believe are under the influence of a drug or alcohol), National Treasury Employees Union v. Von Raab, 489 U.S. 656, 109 S.Ct. 1384, 103 L.Ed.2d 685 (1989) (upholding suspicionless urine testing of United States Customs Service employees seeking transfer or promotion to positions where they would be directly involved in the interdiction of illegal drugs, or would be required to carry firearms or to handle classified information that is truly sensitive), and O'Connor v. Ortega, 480 U.S. 709, 107 S.Ct. 1492, 94 L.Ed.2d 714 (1987) (plurality opinion) (upholding investigatory search of public employee's office for evidence of work-related misfeasance based on supervisor's reasonable suspicion that such evidence would be found).

The Fourth Amendment protects individuals from unreasonable searches conducted by the government, even when the government acts as an employer. Von Raab, 489 U.S. at 665, 109 S.Ct. at 1390. Furthermore, the taking of a blood or urine sample by the government is deemed a search under the Fourth Amendment. Skinner, 489 U.S. at 616-17, 109 S.Ct. at 1412-13. Although a search must usually be supported by a warrant issued upon probable cause, Von Raab, 489 U.S. at 665, 109 S.Ct. at 1390, neither a warrant nor probable cause is an indispensable component of reasonableness in every circumstance. Id.; Skinner, 489 U.S. at 618-24, 109 S.Ct. at 1413-17. Rather, "[w]hat is reasonable ... 'depends on all of the circumstances surrounding the search or seizure and the nature of the search or seizure itself,' " Skinner, 489 U.S. at 619, 109 S.Ct. at 1414 (quoting United States v. Montoya de Hernandez, 473 U.S. 531, 537, 105 S.Ct. 3304, 3308, 87 L.Ed.2d 381 (1985)), and "the permissibility of a particular practice 'is judged by balancing its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests,' " id. (quoting Delaware v. Prouse, 440 U.S. 648, 654, 99 S.Ct. 1391, 1396, 59 L.Ed.2d 660 (1979)).

Exceptions to the warrant and probable cause requirements may be permitted when "special needs, beyond the normal need for law enforcement," are involved. Id. 489 U.S. at 619, 109 S.Ct. at 1414. Such special needs are presented by the government's interest in "its operation of a government office." Id. at 620, 109 S.Ct. at 1415. See also, Ortega, 480 U.S. at 724-25, 107 S.Ct. at 1501-02 (recognizing "substantial government interests in the efficient and proper operation of the workplace"); Yeutter, 918 F.2d at 974 ("USDA's interest in efficient operations may justify departure from warrant and probable cause requirements" in certain circumstances.) When faced with such special needs, it is appropriate "to balance the governmental and privacy interests to assess the practicality of the warrant and probable-cause requirements in the particular context." Skinner, 489 U.S. at 619, 109 S.Ct. at 1414. After engaging in such a balancing, the court in Yeutter concluded that privacy concerns implicated by mandatory urinalysis did not outweigh the USDA's interest "in testing employees reasonably suspected of using drugs, or of being drug-impaired, while on duty." Yeutter, 918 F.2d at 975.

At issue in Yeutter, 918 F.2d 968, was the United States Department of Agriculture's (USDA's) Drug-Free Workplace Program implemented in response to Executive Order 12,564, which barred drug use by federal employees on and off duty, and which directed each executive agency to develop a plan for achieving a "drug-free workplace." Id. at 970. Under the USDA's program, all USDA employees, including USDA Food and Nutrition Service ^S employees, were subject to reasonable suspicion urinalysis-drug-testing. Id. at 972. If an FNS employee was suspected of on-duty or off-duty drug use, his or her supervisor would inform the FNS's Personnel Director, who would make a final determination of whether reasonable suspicion existed. Id. The court read Skinner, Von Raab, and Ortega, as well as two of its own previous decisions, as "suggest[ing] that, outside of the law enforcement context, the government's legitimate interest in employee drug testing extends no further than its interest in workplace conduct and performance of work responsibilities." Id. at 974. Recognizing also that the government has an interest in detecting and preventing off-duty drug use by those who hold safety- or security-sensitive jobs, id. at 974-75, the court held that the USDA program was unconstitutional only "insofar as it authorizes mandatory drug testing of FNS workers who do not hold safety- or security-sensitive jobs, absent reasonable suspicion of on-duty drug use or drug-impaired work performance," id.; accord American Fed'n of Gov. Employees v. Derwinski, 777 F.Supp. 1493, 1501 (N.D.Cal.1991). In other words, Yeutter holds that it is constitutional to subject all FNS employees to mandatory urine tests based on reasonable suspicion of on-duty drug use or impairment, but that it is not constitutional to subject employees who do not hold safety- or security-sensitive jobs to mandatory urine tests based only on reasonable suspicion of off-duty drug use or impairment.

At issue in Local 2391, 969 F.2d 788, was the United States Department of Labor's (DOL's) Drug-Free Workplace Program, also implemented in response to Executive Order 12,564. Id. at 789-90. The DOL's program distinguished between DOL employment positions determined...