Timm v. Reitz

• Decision Date: 06 December 2001
• Docket Number: No. 00CA1698.,00CA1698.
• Parties: Gregory W. TIMM and Cynthia J. Timm, Plaintiffs-Appellants, v. David REITZ, in his official capacity as Director of the Colorado Department of Revenue Division of Racing; and Irving S. Hook, W. Gale Davey, Michael B. Johnson, Gene Naugle, and Arnold L. Mackley, in their official capacities as members of the Colorado Racing Commission, Defendants-Appellees.
• Court: Colorado Court of Appeals

39 P.3d 1252

Gregory W. TIMM and Cynthia J. Timm, Plaintiffs-Appellants, v. David REITZ, in his official capacity as Director of the Colorado Department of Revenue Division of Racing; and Irving S. Hook, W. Gale Davey, Michael B. Johnson, Gene Naugle, and Arnold L. Mackley, in their official capacities as members of the Colorado Racing Commission, Defendants-Appellees.

No. 00CA1698.

Colorado Court of Appeals, Div. V.

December 6, 2001.

Jacobs Chase Frick Kleinkopf & Kelly, LLC, John R. Webb; Holme Roberts & Owen, LLP, Sherri Keckel Kulmann, John C. Lowrie; American Civil Liberties Union, Mark Silverstein, Simon Mole, Denver, CO, for Plaintiffs-Appellants.

Ken Salazar, Attorney General, Robert H. Dodd, Jr., Assistant Attorney General, Denver, CO, for Defendants-Appellees. Opinion by Judge CASEBOLT.

In this action challenging the constitutionality of a state regulation mandating random, suspicionless drug testing of licensed dog trainers in the greyhound racing industry, plaintiffs, Gary W. Timm and Cynthia J. Timm, appeal the summary judgment in favor of defendants, David Reitz, the Director of the Colorado Department of Revenue Division of Racing Events (division), and Irving S. Hook, W. Gale Davey, Michael B. Johnson, Gene Naugle, and Arnold L. Mackley, the members of the Colorado Racing Commission. We reverse and remand.

The following facts are undisputed. The division oversees pari-mutuel wagering and all activities concerning greyhound dog races at licensed racing tracks. Plaintiffs are dog trainers licensed by the division to own, lease, train, and care for greyhounds at racetrack kennels.

When a racing event is scheduled at the track, race officials notify the trainers of the particular dogs they want for a given race. The trainers then take the designated dogs to the weigh-in areas near the track. During the transit to this area, the dogs are kept on leashes and muzzled.

Once the dogs are delivered to the weighin, other licensees weigh the dogs. The dog's muzzle is replaced. A veterinarian is present at the weigh-in and observes the health of all dogs. A urine sample is taken from each dog and is later tested for illegal doping and contaminants. The officials check the ear tattoo of each dog to verify identity and place a numbered blanket on each dog. The trainers have no interaction with the dogs after they are tendered to the race officials.

A mechanical lure, operated by another licensee, leads the dogs around the track during the race. Trainers have no access to the track itself. They and the general public are separated from the track by a chain link fence and concrete wall. After the race, other licensees remove the dog's muzzles, and "lead-outs" return the dogs to the trainers, who then return the dogs to the kennels. Trainers have no involvement in handling wagers on the races, actually running races, or judging race results, all of which are handled by other licensees.

In 1999, the division instituted a policy that requires all licensed participants in the greyhound racing industry randomly to provide samples of their urine, which the division tests for the presence of illicit drugs. Submission to the urine tests is required without reasonable cause or suspicion of drug use.

Ms. Timm refused to submit to testing when requested, and the division suspended her license. Mr. Timm submitted to testing under protest and continues to work as a licensed dog trainer.

Plaintiffs' complaint asserted that the random drug testing program as applied to them constituted an unreasonable search in violation of their rights under the Fourth and Fourteenth Amendments of the United States Constitution and under article II, § 7, of the Colorado Constitution. In lieu of an answer, defendants filed a motion to dismiss and shortly thereafter submitted an amended motion requesting summary judgment. The parties presented affidavits, and no discovery was undertaken.

Concluding that the testing program was constitutional, the trial court granted summary judgment for defendants, and this appeal followed.

Plaintiffs contend that the trial court erred in granting summary judgment on their claims. They argue that, drawing all inferences in their favor, there are disputed factual issues that preclude summary judgment or, alternatively, that defendants are not entitled to judgment as a matter of law because they have failed sufficiently to establish on this record a "special need" justifying suspicionless drug testing of randomly selected licensees. We agree with both arguments.

We review the grant of summary judgment de novo. Aspen Wilderness Workshop, Inc. v. Colorado Water Conservation Board, 901 P.2d 1251 (Colo.1995); Mohr v. Kelley, 8 P.3d 543 (Colo.App.2000).

Summary judgment is appropriate only if the pleadings and supporting documents demonstrate that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The burden is on the moving party to establish that no genuine issue of fact exists, and any doubts in this regard must be resolved against that party. Aspen Wilderness Workshop, Inc. v. Colorado Water Conservation Board, supra.

The nonmoving party is also entitled to the benefit of all favorable inferences that may reasonably be drawn from the undisputed facts. City of Aspen v. Marshall, 912 P.2d 56 (Colo.1996); Mohr v. Kelley, supra.

A reviewing court applies the same standards as the trial court in determining whether summary judgment is warranted. Smith v. Boyett, 908 P.2d 508 (Colo.1995). In that regard, arguments and evidence not presented to the trial court in connection with a motion for summary judgment will not be considered on appeal. Mohr v. Kelley, supra; see also Lambert v. Haskins,

128 Colo. 433, 263 P.2d 433 (1953).

Initially, we note that plaintiffs' complaint states claims based on violations of both the United States and Colorado Constitutions' proscriptions on unreasonable searches and seizures. In prior cases that have challenged the constitutionality of random, suspicionless drug testing programs, the Colorado Supreme Court has analyzed the question solely with reference to the Fourth Amendment. See Trinidad School District No. 1 v. Lopez, 963 P.2d 1095 (Colo.1998)

; University of Colorado v. Derdeyn, 863 P.2d 929 (Colo.1993); see also People v. Rodriguez, 945 P.2d 1351 (Colo.1997)(state and federal constitutions co-extensive with respect to warrantless searches and seizures). Accordingly, our analysis proceeds under the Fourth Amendment.

The Fourth Amendment protects individuals against unreasonable searches and seizures and specifies that a search warrant may issue only upon a showing of probable cause. State compelled collection and testing of urine constitutes a search. A search of the person conducted without a warrant is presumed to be unreasonable and therefore unconstitutional. Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989).

In the context of drug testing that is not based on individualized suspicion, the state bears the burden of overcoming the presumption of unreasonableness. This presumption may be overcome, and a departure from the warrant and probable cause requirement may be authorized, "in those exceptional circumstances in which special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable." Ferguson v. City of Charleston, 532 U.S. 67, 74 n. 7, 121 S.Ct. 1281, 1286 n. 7, 149 L.Ed.2d 205, 214 (2001)(quoting New Jersey v. T.L.O., 469 U.S. 325, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985)(Blackmun, J., concurring)); Skinner v. Railway Labor Executives' Ass'n, supra; University of Colorado v. Derdeyn, supra.

The special needs exception is a "closely guarded category." Ferguson v. City of Charleston, supra, 532 U.S. at 77, 121 S.Ct. at 1288, 149 L.Ed.2d at 216. In determining whether there is a special need that could justify dispensing with the warrant requirement, an important factor is the articulated primary purpose behind the questioned program. And, the special need must be something other than the general interest in crime control. See City of Indianapolis v. Edmond, 531 U.S. 32, 121 S.Ct. 447, 148 L.Ed.2d 333 (2000)

; Chandler v. Miller, 520 U.S. 305, 117 S.Ct. 1295, 137 L.Ed.2d 513 (1997).

If a special need is found, the court then conducts a balancing test, considering the nature of the privacy interest upon which the search intrudes, the character of the intrusion that is complained of, the nature and immediacy of the governmental concern at issue, and the efficacy of the means for meeting it. Vernonia School District 47J v. Acton, 515 U.S. 646, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995); Trinidad School District No. 1 v. Lopez, supra.

In conducting the special needs evaluation, courts do not merely look for any governmental interest that could be classified as a special need, but undertake a close review of the record to determine if the actual, programmatic purpose addresses an area of legitimate governmental concern. Ferguson v. City of Charleston, supra; Chandler v. Miller, supra.

In cases in which the rationale was found to have met this standard, the articulated interest has been described variously as "important," Vernonia School District 47J v. Acton, supra, 515 U.S. at 661, 115 S.Ct. at 2394, 132 L.Ed.2d at 579, "substantial," Chandler v. Miller, supra, 520 U.S. at 318, 117 S.Ct. at 1303, 137 L.Ed.2d at 526, or "compelling," National Treasury Employees Union v. Von Raab, 489 U.S. 656, 668, 109 S.Ct. 1384, 1392, 103 L.Ed.2d 685, 704 (1989); Skinner v. Railway Labor Executives' Ass'n, supra, 489 U.S. at 628, 109 S.Ct. at 1419, 103 L.Ed.2d at 667. Although neither the United States Supreme Court nor the Colorado Supreme Court has defined the degree of need required, we note that the Colorado Supreme Court has concluded that a showing of a threat to public safety or national...