State ex rel. v. Bur. of Workers' Comp.

• Decision Date: 18 December 2002
• Docket Number: No. 2001-0642.,2001-0642.
• Citation: 2002 Ohio 6717,97 Ohio St.3d 504,780 N.E.2d 981
• Parties: The STATE ex rel. OHIO AFL-CIO et al. v. OHIO BUREAU OF WORKERS' COMPENSATION et al.
• Court: Ohio Supreme Court

Page 981

780 N.E.2d 981

97 Ohio St.3d 504

2002 Ohio 6717

The STATE ex rel. OHIO AFL-CIO et al. v. OHIO BUREAU OF WORKERS' COMPENSATION et al.

No. 2001-0642.

Supreme Court of Ohio.

Submitted January 30, 2002.

Decided December 18, 2002.

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Stewart Jaffy & Associates, Stewart R. Jaffy and Marc J. Jaffy, Columbus, for relators Ohio AFL-CIO and William Burga.

Steve E. Mindzak, for relators United Auto Aerospace & Agricultural Implement Workers of America, Region 2 and Region 2-B.

Betty D. Montgomery, Attorney General, Cheryl J. Nester, Assistant Attorney General, and Elise W. Porter, Assistant Solicitor, for respondents.

Philip J. Fulton & Associates, Philip J. Fulton, William A. Thorman III and Jonathan H. Goodman, Columbus, in support of relators for amicus curiae Ohio Academy of Trial Lawyers.

Jillian S. Davis, Cleveland, and Raymond Vasvari, in support of relators for amicus curiae American Civil Liberties Union of Ohio Foundation, Inc.

Cloppert, Portman, Sauter, Latanick & Foley, Frederic A. Portman and Christopher A. Flint, Columbus, in support of relators for amicus curiae Ohio Education Association.

Joyce Goldstein & Associates, L.P.A., and Joyce Goldstein, Cleveland, in support of relators for amicus curiae Service Employees, International Union Local 47.

Joseph P. Sulzer, Chillicothe, in support of relators for amicus curiae various Members of the Ohio General Assembly.

Crosby, O'Brien & Associates and Elizabeth A. Crosby, Cleveland, in support of respondents for amicus curiae Greater Cleveland Growth Association Council of Smaller Enterprises.

Garvin & Hickey, L.L.C., Preston J. Garvin and Michael J. Hickey; Vorys, Sater, Seymour & Pease L.L.P., Robin Obetz and Robert A. Minor; Bricker & Eckler, L.L.P., Thomas R. Sant and Kurtis A. Tunnell, Columbus, in support of respondents for amici curiae Ohio Chamber of Commerce, Ohio Self-Insurers' Association, Ohio Chapter of the National Federation of Independent Business, Ohio Farm Bureau Federation, and Ohio Manufacturers' Association.

PFEIFER, J.

{¶ 1} The issue in this case is whether 2000 Am.Sub.H.B. No. 122 ("H.B. 122"), which permits the warrantless drug and alcohol testing of injured workers, is constitutional. We find that H.B. 122 violates the protections against unreasonable searches contained in the Fourth Amendment to the United States Constitution and Section 14, Article I of the Ohio Constitution.

Factual Background

{¶ 2} The relators in this matter are the Ohio AFL-CIO, its president, William A. Burga, and the United Auto Aerospace & Agricultural Implement Workers of America, Regions 2 and 2-B ("UAW"). The respondents are the Ohio Bureau of Workers' Compensation, James Conrad, Administrator ("BWC"), and the Industrial Commission of Ohio ("the commission").

{¶ 3} Relators filed an original action in mandamus in this court on April 3, 2001, seeking to prevent the BWC and the commission from enforcing amendments to R.C. 4123.54 that the General Assembly enacted in H.B. 122. Those provisions were to become effective on April 10, 2001.

{¶ 4} R.C. 4123.54(A)(2) excludes from workers' compensation benefits anyone whose injury was "[doused by the employee being intoxicated or under the influence of a controlled substance * * * where the intoxication or being under the influence of a controlled substance * * * was the proximate cause of the injury." H.B. 122 did not change this section. H.B. 122 did add Section (B), setting forth how an employer may prove that its employee was intoxicated or under the influence of a controlled substance.

{¶ 5} Through H.B. 122, R.C. 4123.54(B) now provides that where chemical testing reveals certain prohibited levels of alcohol or controlled substances in the body of an injured employee, a rebuttable presumption arises that the employee's injury was proximately caused by the influence of alcohol or a controlled substance. By incorporating R.C. 4511.19(A)(2) to (7), R.C. 4123.54(B) allows for blood, breath, or urine testing of employees.

{¶ 6} Moreover, and most significant for relators, under H.B. 122, when an injured employee refuses to submit to an employer-requested chemical test, that employee is rebuttably presumed to have been intoxicated or under the influence of a controlled substance at the time of the workplace injury, and that condition is rebuttably presumed to have been the injury's proximate cause. R.C. 4123.54(B)(5). The statute states that "the employee's refusal to submit" to any chemical test "may affect the employee's eligibility for compensation and benefits."

{¶ 7} Thus, under H.B. 122, every Ohio worker injured on the job must submit to an employer-requested chemical test, regardless of whether the employer has any reason to believe that the injury was caused by the employee's intoxication or use of controlled substances. Failure to submit to a breath, blood, or urine test creates a rebuttable presumption against the employee that use of drugs or alcohol caused the injury.

{¶ 8} Relators allege that the combined 950,000 members of the AFL-CIO and UAW are potential subjects of the testing requirements contained in H.B. 122, requirements that relators allege are unconstitutional. Their complaint does not allege any specific instance of a constitutional violation that has actually occurred.

{¶ 9} Respondents moved to dismiss the mandamus action, and this court denied that motion on July 25, 2001. 92 Ohio St.3d 1447, 751 N.E.2d 484. This court, sua sponte, granted an alternative writ, setting a schedule for briefing and the presentation of evidence. 92 Ohio St.3d 1455, 752 N.E.2d 287.

Law and Analysis

{¶ 10} The first issue before us is whether the relators have standing to bring this mandamus action. Respondents argue that relators merely assert a potential harm to some of their members, which is insufficient to confer standing. But conferring standing in this case would set no precedent in that regard — this court has previously ruled upon the constitutionality of the workers' compensation system in State ex rel. Ohio AFL-CIO v. Voinovich (1994), 69 Ohio St.3d 225, 631 N.E.2d 582, upon actions in mandamus, prohibition, and quo warranto brought by, among other parties, relators AFL-CIO and UAW.

{¶ 11} Moreover, "[t]his court has long taken the position that when the issues sought to be litigated are of great importance and interest to the public, they may be resolved in a form of action that involves no rights or obligations peculiar to named parties." State ex rel. Ohio Academy of Trial Lawyers v. Sheward (1999), 86 Ohio St.3d 451, 471, 715 N.E.2d 1062. In Sheward, this court held that "[w]here the object of an action in mandamus and/or prohibition is to procure the enforcement or protection of a public right, the relator need not show any legal or special individual interest in the result, it being sufficient that the relator is an Ohio citizen and, as such, interested in the execution of the laws of this state." Id. at paragraph one of the syllabus.

{¶ 12} The granting of writs of mandamus and prohibition to determine the constitutionality of statutes will "remain extraordinary" and "limited to exceptional circumstances that demand early resolution." Id., 86 Ohio St.3d at 515, 715 N.E.2d 1062 (Pfeifer, J., concurring). We find this case to be one of those rare cases. As the statutory scheme at issue in Sheward affected every tort claim filed in Ohio, H.B. 122 affects every injured worker who seeks to participate in the workers' compensation system. It affects virtually everyone who works in Ohio. The right at stake, to be free from unreasonable searches, is so fundamental as to be contained in our Bill of Rights. H.B. 122 has sweeping applicability and affects a core right. Since H.B. 122 therefore implicates a public right, we find that relators meet the standing requirements of Sheward.

{¶ 13} The threshold constitutional question is whether the searches allowed by H.B. 122 involve state action. "Although the Fourth Amendment does not apply to a search or seizure, even an arbitrary one, effected by a private party on his own initiative, the Amendment protects against such intrusions if the private party acted as an instrument or agent of the Government." Skinner v. Ry. Labor Executives' Assn. (1989), 489 U.S. 602, 614, 109 S.Ct. 1402, 103 L.Ed.2d 639. While H.B. 122 applies to the state of Ohio itself as an employer, it also affects employees working for private employers. Does the testing conducted by private employers pursuant to H.B. 122 constitute state action? We hold that it does.

{¶ 14} The United States Supreme Court has held that attributing actions by private entities to the state "is a matter of normative judgment, and the criteria lack rigid simplicity." Brentwood Academy v. Tennessee Secondary School Athletic Assn. (2001), 531 U.S. 288, 295, 121 S.Ct. 924, 148 L.Ed.2d 807. However, the court has identified several relevant factors. Id. at 296, 121 S.Ct. 924, 148 L.Ed.2d 807. The situations where the court has found that a challenged activity may be "state action" include those in which the private activity results from the state's exercise of coercive power, when the state provides significant encouragement for the activity, either overt or covert, or when a private actor operates as a willful participant in joint activity with the state or its agents. Id.

{¶ 15} In short, "state action may be found if, though only if, there is such a `close nexus between the State and the challenged action' that seemingly private behavior `may fairly be treated as that of the State itself.'" Id. at 295, 121 S.Ct. 924, 148 L.Ed.2d 807, quoting Jackson v. Metro. Edison Co. (1974), 419 U.S. 345, 351, 95 S.Ct. 449, 42 L.Ed.2d 477.

{¶ 16} The entanglement of private employers and the state in the administration of Ohio's workers' compensation system dates back to the system's creation and is rooted in the Ohio Constitution and statutory law....