Horsemen's Benev. and Protective Ass'n, Inc. v. State Racing Com'n

• Decision Date: 09 January 1989
• Parties: , 57 USLW 2536, 4 IER Cases 147 HORSEMEN'S BENEVOLENT AND PROTECTIVE ASSOCIATION, INC. v. STATE RACING COMMISSION.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 644

532 N.E.2d 644

403 Mass. 692, 57 USLW 2536, 4 IER Cases 147

HORSEMEN'S BENEVOLENT AND PROTECTIVE ASSOCIATION, INC. v. STATE RACING COMMISSION.

Supreme Judicial Court of Massachusetts.

Jan. 9, 1989.

Jamin Ben Raskin, Asst. Atty. Gen., for State Racing Com'n.

Charles R. Dougherty (Marjorie Heins & William B. Forbush, Boston, with him) for plaintiff.

Americo A. Salini, Jr., Medford, for Massachusetts Teachers Ass'n, amicus curiae, submitted a brief.

Carol Calliotte & Joseph G. Sandulli, Boston, for Massachusetts Coalition of Police, amicus curiae, submitted a brief.

Before HENNESSEY, C.J., and WILKINS, LIACOS, ABRAMS, NOLAN, LYNCH and O'CONNOR, JJ.

HENNESSEY, Chief Justice.

The plaintiff filed suit in the Supreme Judicial Court for Suffolk County seeking a declaration that the "human drug testing" regulation adopted by the State Racing Commission (commission), 205 Code Mass.Regs. § 4.57 (1986), violates the Fourth and Fourteenth Amendments to the United States Constitution, arts. 1, 10, 12, and 14 of the Massachusetts Declaration of Rights, the Massachusetts Civil Rights Act, G.L. c. 12, § 11 (1986 ed.), and the right of privacy statute, G.L. c. 214, § 1B (1986 ed.), and that the regulation's provision permitting immediate suspension of licensees who test positive or who refuse to provide a urine sample, violates the procedural due process guarantees of the Fourteenth Amendment and art. 12. The regulation institutes a broad program of testing at random of persons within the class, and also of persons who are under "reasonable suspicion" of drug use. The plaintiff sought preliminary and permanent injunctions against the commission to enjoin any drug testing. A single justice of this court transferred the case to the Superior Court in Suffolk County. G.L. c. 211, § 4A (1986 ed.).

The Superior Court judge denied the plaintiff's motion for a preliminary injunction. The plaintiff appealed to a single justice of the Appeals Court. The single justice issued an injunction, enjoining the defendant from implementing the drug testing program pending submission to the Superior Court of a statement of agreed facts and entry of judgment by the Superior Court. The parties subsequently filed a statement of facts which left open one factual issue for trial--what percentage of initially negative test results were false. The Superior Court judge, after hearing the expert testimony presented by the parties, ruled that "there was not enough evidence presented for making the requested finding of fact" and that "the whole subject of 'false-negatives' ... is speculative." The judge decided the case strictly on the basis of the statement of agreed facts.

The Superior Court judge ruled that the drug testing program violates the Fourth Amendment and permanently enjoined the commission from coercing its licensees to submit to the urine testing. Only the defendant appeals. We granted its application for direct appellate review. We agree with the result reached by the Superior Court judge. However, we need not consider this case in the context of the Fourth Amendment, because we now conclude that the drug testing program, in both the testing at random and on "reasonable suspicion," is unconstitutional under art. 14 of the Massachusetts Declaration of Rights. ¹ We cite and make reference to Fourth Amendment cases only by way of analogy.

The summary of relevant facts is taken from the statement of agreed facts and its supplement. The plaintiff, the Horsemen's Benevolent and Protective Association, Inc. (association), is a national nonprofit organization which strives to protect the interests of trainers and owners of thoroughbred horses, and their employees, with respect to the establishment of proper rules and conditions in the horse racing industry. The Massachusetts-New Hampshire division of the association has approximately 4,000 members who are owners or trainers of thoroughbred horses which compete in races the commission licenses and regulates.

The commission has the authority, pursuant to G.L. c. 128A (1986 ed.), to regulate horse and dog racing in Massachusetts. The commission's powers include the prescription of "rules, regulations and conditions under which all horse ... races at horse ... racing meetings shall be conducted...." G.L. c. 128A, § 9. See G.L. c. 128A, § 9A.

In 1986, the commission promulgated the "human drug testing" regulation, 205 Code Mass.Regs. § 4.57 (see Appendix), and issued a "human drug testing policy and procedure" to be followed in enforcing the drug testing regulation. The commission instituted its drug testing program based on its determination that it serves the best interest of racing to deter the use of illegal drugs at Massachusetts race tracks, and that the use and abuse of illegal drugs by licensees, whether on or off licensed premises, jeopardizes and compromises the safety of the participants, as well as the integrity of the industry. The commission had received information from Suffolk Downs's security and commission personnel regarding drug abuse at the Suffolk Downs racetrack. The efforts of the commission and the State police to investigate drug abuse through conventional means had proved unsuccessful. The parties agree that lay personnel could detect and recognize behavioral changes--tardiness, decrease in workload, and absences--as evidence of possible drug or alcohol abuse.

The regulation prohibits any licensee, while on racing grounds, from having present within his or her system, any controlled substance, as listed in 21 U.S.C. § 812, Schedules I-V (1982), or any wrongfully obtained prescription legend drug. The regulation provides that any licensee--owner, trainer, veterinarian, blacksmith, stable employee, jockey, jockey's apprentice or agent--may be subject to urinalysis based either on reasonable suspicion, or on random, without cause, selection. The parties define "reasonable suspicion" as "the existence of reasonable circumstances, reports, information or reasonable direct observation ... lead[ing to the belief] ... that a licensee is using illegal drugs." Although the regulation provides that any licensee is subject to random testing or testing based on reasonable suspicion, the policy allows, and, in practice, the commission has conducted, testing only on days that a licensee is "actively participating" in a race. Refusal to provide a sample results in immediate suspension of the licensee for thirty days; readmittance is conditioned on proof of a negative test result.

For the random testing, the stewards place the names of all licensees involved in that day's racing program into a bag. Representatives of the Jockey's Guild and the association are present for the random selection of licensees and are allowed to inspect the names of the pool of licensees. The stewards then notify the persons chosen, by telephone or the public address system at the track, to report to the security office.

The testing procedure is similar for random testing and for testing based on "reasonable suspicion." When each licensee arrives at the security office, a steward gives him or her a bottle with a number and a tag affixed to it and directs the licensee to the bathroom to produce a urine sample. The regulation states that all samples "shall be collected in the presence of a Commission Steward or ... designee." 205 Code Mass.Regs. § 4.57(6). The policy provides, with respect to random testing, that a State trooper, inspector, or designee accompany the licensee while the sample is given and "take every precaution to avoid tampering or counterfeit samples." It states further that a licensee should be afforded maximum privacy, with the designated person remaining outside the bathroom, unless there is reason to believe that the licensee may tamper with the sample. If, however, the testing is based on "reasonable suspicion," the policy requires that the sample be given "in the presence of" a State trooper or a commission inspector, or both. Under the drug testing program as administered by the commission, a plainclothes State trooper and a racing inspector stand outside the bathroom for both random and "reasonable suspicion" testing.

The commission sends the sample in a sealed envelope, with the signatures of the licensee and the commission official on the attached evidence tag, to the commission's laboratory. The laboratory screens each urine sample using thin layer chromatography for the presence of numerous controlled substances, including cocaine, marihuana, amphetamines, and morphine; the laboratory does not screen for the presence of barbiturates or other "hypnotics" unless specifically instructed to do so.

After an initial positive indication of the presence of a controlled substance, the laboratory then conducts thin layer chromatography and gas chromatography/mass spectrometry (gc/ms) to confirm the initial positive test result. Only a confirmed positive test result is treated as positive. The laboratory does not confirm initial negative test results. The parties disagree, and the Superior Court judge was unable to determine, what percentage of initial negative results are false, inaccurately indicating an absence of controlled substances in urine samples which, in fact, do contain one or more controlled substances.

The gc/ms screening is approximately 99% accurate, absent human or mechanical error. The gc/ms test does not, however, eliminate the possibility of false positives due to inaccurate adjustment of the mass spectrometer, contaminated instruments, temperature changes, insufficient skill or training of the laboratory technicians, or problems with the validity or chain of custody of the sample. The laboratory, however, tunes the mass spectrometer daily and verifies that the instruments are not contaminated.

A positive test result for the presence of a controlled substance does not establish that a licensee was intoxicated or otherwise physically or...