Post-election Review of Ballot Titles

In August 2012, my blog post  “Challenges to Initiative Petitions Limited”  noted the Missouri Supreme Court  in Brown v.  Carnahan stated that  the  courts will not intervene in the initiative process  “in order to avoid encroachment on the people’s authority” but when they do  “…they  must act with restraint,  trepidation  and a healthy suspicion of the partisan who would use the judiciary to prevent the initiative process from taking its course.”

Less than three years later the Missouri Supreme Court  surprised everyone  when it  expanded   post-election election review of ballot titles in  Dotson v.  Kander, by allowing a post-election review of an  amendment to the Missouri Constitution pertaining to the right to keep and bear arms. For a discussion of Dotson v.  Kander,  you may want to look at my post Adoption of Constitutional Amendment did not Change Existing Law.

Since the Missouri Supreme Court utilized a state statute  (seemingly applicable only to the state) as the basis for its post-election review in Dotson v. Kander,   the decision may not be applicable to local government ballot issues.   One of the difficulties with  pre-election challenges to ballot titles  is that there may be insufficient time to get a decision from  a  trial court and appeal that decision in order to get a final decision before the election, making it almost a  due process necessity that there is post- review of ballot titles.  It would seem that  suggested procedures outlined by the Missouri Supreme Court  could apply in situations where there is insufficient time to get a final decision    concerning a challenge to a ballot title prior to the election.

Howard Wright © 2016

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Right of free speech and association trump do not overrule “fair share” obligation to pay union dues

Update – 2016

The United States Supreme Court in Friedrichs v. California Teachers Association, affirmed the lower court’s decision to not overrule Abood v. Board of Education, which held that the First Amendment did not prevent “agency shop” agreements where public employees who do not join the union are required to pay their “fair share” of union dues. Since the March 2016 decision was a 4 to 4 split it had the effect of affirming the Court of Appeals opinion upholding the right to require employees to pay their “fair share” of union dues. It would appear that resolution of this issue, with some sort of finality, will depend upon an appointment of a ninth member to the Court by the next president of the United States.

See Original Post – 2014

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Determination by the Army Corps of Engineers that Property Contains Waters of the United States Is Subject to Immediate Judicial Review

A jurisdictional determination, that property contains “waters of the United States,” by the Army Corp of Engineers is final agency action, which is subject to immediate review in court. If a local governmental agency receives such a determination it should immediately consider the impact on the project and determine whether or not to seek judicial review of this decision. A first stop in understanding the issues is review of the excellent analysis provided by Lisa Soronen of the Hawks case for IMLA members set forth below.

From: Lisa Soronen
Executive Director
State & Local Legal Center
444 North Capitol Street, N.W., Suite 515
Washington, D.C. 20001

To: MML Staff

Date: May 31, 2016

“HI league staff:  This win wasn’t surprising but it is still just as good.  Long and short summaries are below.  Lisa

Supreme Court Rules Against the Corp In WOTUS Case

In United States Army Corp of Engineers v. Hawkes the Supreme Court ruled unanimously that an approved jurisdictional determination that property contains “waters of the United States” may be immediately reviewed  in court. The State and Local Legal Center (SLLC) filed an amicus brief in this case arguing in favor of this result.

Per the Clean Water Act, “waters of the United States” (WOTUS) are federally regulated. Property owners may seek an approved jurisdictional determination (JD) from the US Army Corp of Engineers definitively stating whether such waters are present or absent on a particular parcel of land.
Three companies wanted to mine peat from wetland property in Minnesota. The Corp issued an approved JD that the property contained WOTUS because its wetlands had a “significant nexus” to a river located about 120 miles away.

Per the Administrative Procedures Act judicial review may be sought only from final agency actions. Per Bennett v. Spear (1997), agency action is final when it marks the consummation of the agency’s decision making process and when legal consequences flow from the action.

The Court, in an opinion written by Justice Chief Roberts, concluded that an approved JD is a final agency action subject to court review because it meets both conditions laid out in Bennett. The Corp didn’t argue that an approved JD is tentative; its regulations describe approved JDs as “final agency action” valid for five years. Approved JDs give rise to “direct and appreciable legal consequences,” the Court reasoned, because the Corp is bound by them for five years. And a “longstanding memorandum of agreement” between the Corp and the Environmental Protection Agency (EPA) binds the EPA. So per an approved JD the two agencies authorized to bring civil enforcement proceedings under the Clean Water Act, practically speaking, grant or deny a property owner a five-year safe harbor from such proceedings. 
 
The SLLC amicus brief pointed out states and local governments would be negatively affected as landowners and partners with the business community responsible for economic development and capital infrastructure planning if judicial review of JDs is not possible. The Court agreed that neither alternative to judicial review is adequate. Proceeding without a permit could lead to civil penalties of up to $37,500 a day; seeking a permit can be “arduous, expensive, and long.”

Interestingly in three separate concurrences (each about a page long) Justices Kennedy, Thomas, Alito, Kagan, and Ginsburg debate whether an approved JD really is binding on EPA and whether it matters. Justice Kennedy warns that if it isn’t, “the Act’s ominous reach would again be unchecked by the limited relief the Court allows today.” In light of this discussion the Corp and EPA are likely to clarify the nature of their agreement.”

Note: Short version is omitted.

 

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City Can Establish Rules For Decertification of Police Union

A recent Missouri Court Appeals decision held that the Missouri “Meet and Confer Law” does not cover Police Department employees; therefore, the City of St. Louis could provide for its own procedures relating to collective bargaining,  including decertification of a union.  This Opinion reaffirms earlier Missouri Supreme Court decisions allowing local government to establish procedures relating to collective bargaining for its employees who are not covered by the Missouri Meet and Confer Law.  This Opinion is very useful in that it collects legal authority to establish  city procedures to implement the duty to bargain collectively under the Missouri Constitution when the employees are not covered by  the Meet and Confer Law.

Court of Appeals - Eastern District

Court of Appeals – Eastern District

Following the passage of state legislation in 2013, establishing local control over the City of St. Louis’s Police Department, the City created its own police force, making it an internal department of the City.  The Police Department had previously operated under the control of the state appointed Police Board.  When the City assumed control of its own local police department the police chief assumed the position of Police Chief for the newly created City department.

In 2014, an employee of the Police Department submitted a petition requesting decertification of the St. Louis Police Leadership Organization (SLPLO) as the exclusive bargaining agent for the City police sergeants under Rule 13 of the City.  The Police Chief, pursuant to Rule 13, appointed a committee to review the petition, which determined and reported to the Police Chief that the petition was authentic and contained the signatures of the majority of the employees in the designated bargaining unit as required by Rule 13. The Police Chief then decertified the SLPLO as the exclusive bargaining agent.

The SLPLO then filed suit in circuit court contending that the action taken to decertify was constitutionally deficient under Article 1, Section 29 of the Missouri Constitution because it did not provide the SLPLO with an opportunity to challenge the decertification petition nor did it require a vote to be held by its members to determine whether or not to decertify the SLPLO as exclusive bargaining unit; thereby, violating the right to bargain collectively under the Missouri Constitution.

The circuit court rendered judgment for the City and the SLPLO appealed to the Eastern District, which held that the City Missouri Constitution does not “…require any specific procedures within which to conduct collective bargaining activities by either employees or employers.”  In the absence of wording in the Missouri Constitution a public employer may establish standards for bargaining units, election processes and the appropriate subjects for bargaining, which are not covered by Missouri “Meet and Confer” law.

The rules of the City did not provide a right to challenge the decertification petition; therefore it had  no affect on the police officer’s right to bargain collectively.  Rule 13 allows decertification to occur by petition rather than a vote renders an election unnecessary. Rule 13 is the City’s only rule or regulation providing a procedural framework for the decertification of a recognized labor organization.

Based upon the   opinion of the court in the City of St. Louis  decertification case and earlier Missouri Supreme Court decisions, local government may proceed with confidence when it establishes procedures governing collective bargaining for Police Department employees.I would add the caveat that in order to avoid a challenge that local government did not engage in collective bargaining when it established the procedures it would be advisable (even though not required) to discuss changes with employee groups in order to avoid unnecessary litigation.

It has to fit together to work

“Good Faith” Bargaining is Required

Howard Wright© 2016

For related topics see:

Right-of-free-speech-and-association-trump-fair-share-obligation-to-pay-union-dues.

Trilogy-of-cases-change-missouri-public-sector-labor-law

Discussion of Ledbetter and Chesterfield and University City cases dealing with “good faith” bargaining.

Courts will not read terms into collective bargaining agreement. 

Right of public employees to bargain collectively in Missouri. 

 

 

 

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Gun rights advocates react with anger to the recent Missouri Supreme Court decision holding that nonviolent felons are prohibited from possession of firearms

Astonishment and anger was the reaction of gun rights advocates to the recent Missouri Supreme Court decision in the Clay case, which upheld a Missouri statute that prohibited nonviolent felons from possessing firearms. Within hours of this decision, the Freedom Center (principal proponents of the Amendment) put out a news release  lambasting  the Missouri Supreme Court claiming that:   “…the majority opinion openly defies the people’s authority to protect this right or any other constitutional right.”

 

Missouri Supreme Court Weight in on Collective Bargaining

Missouri Supreme Court  Decides Meaning

The attack on the Missouri Supreme Court by the Freedom Center was contrived, since the  news release was out the door  within hours of the Courts decision. The Freedom Center should not have been surprised because the Court held in an earlier decision that the Amendment did not change the law in any respect because it failed to notify the voters of any substantive change.  It simply declared existing law. (See my earlier Post explaining why the Amendment failed to change the law.) In addition, the Court had already ruled in Dotson v. Kander,  some eight months earlier, that the state statute prohibiting felons from possessing firearms was constitutional.

Gun rights advocates thought they had shot the moon with the Amendment, only to learn to their complete dismay that they did not even get off the ground. The reason for the Freedom Center to blame the Missouri Supreme Court, was                                                                                  to shift voter angst  to someone else for their own massive failure and to lay the groundwork for a larger political agenda to elect our judges directly by the voters.  The Freedom Center   called for the people to, “…start planning to make constitutional changes to the court itself.”   Finding fault  is easy.  All  the Freedom Center needed to do is  look in the mirror where they would see their image along with an embedded but shattered picture of State Senator Schaefer.

It would seem that the Freedom Center, as one of the principal advocates for the Amendment would have been deeply involved with the drafting of the Gun Rights Amendment by State Senator Schaefer, who was the sponsor of the Amendment and its leading advocate. The Freedom Center and State Senator Schaefer stomped the state, hand-in-hand with Senator Schaefer  explaining to prospective voters that with the passage of the Amendment, Missouri would have “the strongest right to keep and bear arms in any state in the United States.”

After the voters approved the Amendment, Senator Schaefer stunned everyone when he did a complete about-face in his amicus brief by advocating a position  before the Missouri Supreme Court that was completely opposite to the position that he took months earlier with the voters. In his amicus brief, Senator Schaefer claimed he was “uniquely qualified” to inform the court of the intent of the legislature and then went on to state that the Amendment, “… was not an attempt to create a right to bear arms in a completely unfettered manner; rather, it was designed to bring Missouri’s Constitution in line with the landmark U.S. Supreme Court decisions.” If Senator Schaefer was “uniquely qualified” to know the intent of the legislature  why did he  not tell  the voters  and the Freedom Center prior to the election that the Amendment did not change the law?

In the Clay case, the Freedom Center   struck  back, calling out the hypocrisy of Senator Schaefer’s change of position:

“Although this Court has cited State Senator Kurt Schaefer’s briefs for the proposition that the amendment to Article I, § 23, did not make any substantive changes to the Missouri Constitution’s protections for citizens’ rights to keep and bear arms, Sen. Schaefer told the media and voters all over the state the exact opposite, that the amendment would 
provide these rights the highest possible level of constitutional protection.” 
 (My emphasis).

To be sure, the blame for this boondoggle was the failure of Senator Schaefer and the Freedom Center, to recognize that the Missouri Constitution requires ballot titles to be fair and to explain to the voters substantive changes. Senator Schaefer and gun rights advocates conned the voters, with an apple pie and ice cream ballot title, only to find out that it ,.

In order to prevent  from  striking the Amendment in its entirety  the Missouri Supreme Court forged an opinion that limited the impact of the Amendment by holding that it did not change the Constitution. In short, the Amendment simply declared existing law prior to August 5, 2014. Of course, this is not what Senator Schaefer told the voters prior to the election.

How did this happen? Gun rights advocates suggested that Senator Schaefer had gone soft. Not so. He went into survival mode. After all, how would it look, as a candidate for Attorney General, if the  ballot title Senator Schaefer drafted  and sponsored was  found  to be null and void? Well, the ballot title was defective; it’s just that   the opinion by the Court softened the blow by not striking the Amendment in its entirety, while  limiting the impact   of the Amendment  to a simple declaration of  existing law.

In addition,  when drafting an amendment, as an advocate for an initiative petition,                                       there is an enormous temptation, as well as political pressure from interest groups, to draft the ballot title in the most favorable light possible to encourage the voters to approve the proposal at the expense of meeting the constitutional mandate that the ballot be fair and explain substantive changes. Senator Schaefer  drafted, sponsored and campaigned for a constitutional amendment that he claimed was going to significantly change gun rights laws in Missouri. Faced with the reality that the court might strike the Amendment in its entirety, due to the defective ballot title,  Senator Schaefer  authored  an amicus brief that was completely contrary to what he told the voters and the Freedom Center, prior to the election.  Senator Schaefer was desperate   to salvage something from his failure in writing  a ballot title that was defective.

The Freedom Center   blames the Court  for ignoring the will of the voters  by evoking statements by Thomas Jefferson  that the  government derives its power “from the consent of the governed.”

What  the Freedom Center conveniently  overlooks  is   the need for well-informed  citizens as a predicate for  a constitutional amendment. Think ballot title. As  Thomas Jefferson  stated: “An enlightened citizenry is indispensable for the proper functioning of a republic.” “Self-government is not possible unless the citizens are educated sufficiently to enable them to exercise oversight.”

Howard Wright© 2016

 Other  Related Posts –

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Felon-In-Possession Of Firearms Is Constitutional – Survives Strict Scrutiny Test

 

Background 

Missouri has preempted all local laws that regulate the use of firearms, leaving no room for local government to adopt ordinances. Does that mean local government officials are just observers? No.

The battle over the right to possess and bear arms and the right to regulate the possession or the use of arms is of profound interest to local government officials since police officers, clerks, bailiffs and other local government officials are charged, at the ground level, with protecting the public, particularly at public meetings, buildings and other public places. Local government officials are no strangers to violence. Consider the tragedy of the Kirkwood City Council meeting where a disgruntled gun-toting citizen killed six persons including the mayor, two council members and several police officers. Other more recent examples abound.

9mm Ruger

Can felons possess arms?

Some citizens claim that the new constitutional amendment to possess and bear arms, adopted by the voters on August 5, 2014 (Amendment), gave citizens an unfettered constitutional right to possess and bear arms, in all circumstances. The centerpiece of the Amendment was the statement, in the body of the Amendment (not the ballot title), that laws that restrict the right to own or possess firearms, are to be reviewed by applying the “strict scrutiny”  to the law  that limited the right to possess and bear arms. When the phrase “strict scrutiny” is used most municipal lawyers hearts skip a couple of beats because its application is usually a sure death sentence,  particulary if the law involves  First Amendment, free speech cases.

This question soon arrived at the Missouri Supreme Court’s steps, after a trial court dismissed a case against a felon who was charged with violating the felon-in-possession statute in State of Missouri v. Merritt. The State appealed the trial court’s decision to the Missouri Supreme Court. The principal issue in State of Missouri v. Merritt, was whether or not the felon-in-possession statute violated Merritt’s right to possess or bear arms if the strict scrutiny standard was applied to the statute to determine if it was constitutional

History

But first before reviewing how the court applied strict scrutiny in State of Missouri v. Merritt, a little bit of history is useful. This story, in my mind, is one of the most interesting judicial juggling acts ever performed by the Missouri Supreme Court.

The Missouri legislature started the ball rolling by bungling the job of writing a ballot title that was not fair, as required by the Missouri Constitution. The legislature clearly intended to entice voters to vote for the Amendment without communicating to the voters any substantive change by writing an apple pie and ice cream ballot title. The ballot title for the Amendment stated that the right to keep and bear arms is an “inalienable right” and “shall not be questioned.” What does this mean? Apparently nothing, as we shall find out.

Initially the Missouri Supreme Court ducked the fairness of the ballot title issue by holding in Dotson I, that the pre-election challenge to the ballot title was moot because the voters had already approved the Amendment. This decision was pretty much a standard response, since the courts have forever used mootness as a way to end litigation. Seemingly Dotson I, should have ended all challenges to the constitutionality of the Amendment.

Still doubts lingered. What made Dotson I, particularly disconcerting was a question of basic judicial fairness because a challenge to a ballot title is no small matter, potentially leaving citizens with a bitter taste about the objectivity of our judicial system. The apple pie and ice cream ballot title written by the legislature was unfair and meaningless to a trained observer, since it completely failed to communicate any substantive change to the Constitution. Compounding this perception, was a statute limiting the time to challenge a ballot title making it impossible to obtain a timely decision about the fairness of the ballot title, prior to the election in August of 2014. So where was the justice?

Despite the holding in Dotson I, that the appeal was moot, the opponents of the Amendment were not deterred. They filed a postelection challenge in Kander v. Dotson, (Dotson II), which was decided in June of 2015. To the complete surprise of everyone, the Court held in Dotson II, for the first time, that postelection challenges to ballot titles were permitted.

The decision in Dotson II was totally unexpected because challenges to ballot titles after voters have already approved a constitutional amendment is fraught with difficulties. After all it is it is potentially the first step to invalidation of an election. Disapproval of a ballot title after the voters have approved the amendment    has enormous political consequences, particularly when 60% of the voters approved the Amendment. Think “Hell has no fury greater than scorned voters.” Remember the citizen outrage when the legislature   repealed   the “puppy mill”  prohibition that was  approved by the referendum.

Faced with this dilemma, the Court came up with an ingenious solution in Dotson II. The Missouri Supreme Court held, the Amendment did not change the law.

“If the constitutional amendment had changed the level of scrutiny under Article I, Section 23 to strict scrutiny, the Court might have considered the ballot summary at issue in Dotson unfair or insufficient.  But this Court held that strict scrutiny would have applied under the prior version of Article I, Section 23 in the time frame after McDonald was decided, irrespective of the amendment.”

The Felon-In-Possession Law Survives Strict Scrutiny 

Now to the Court’s application of strict scrutiny, to the felon in possession law in State of Missouri v. Merritt.

The Court made it absolutely clear that what constituted strict scrutiny was a matter for the courts not the legislature.  Strict scrutiny is applied on a case-by-case basis based on the facts and the public policy that is involved. There: “…is no settled analysis as to how strict scrutiny applies affecting the right to bear arms, which has historically been interpreted to have accepted limitations.” “Application of strict scrutiny depends on context including the controlling facts, the reasons advanced by the government, relevant differences and the fundamental right involved.”

In addition laws regulating the right to bear arms are not “presumptively invalid.” The United States Supreme Court decisions in Heller and McDonald did not cast doubt on “‘longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”

The Court stated that it would interpret the Missouri Constitutional right to bear arms the same as the United States Supreme Court.

The test applied by the Court to determine if the law was whether or not it was “narrowly tailored to achieve a compelling interest.” The felon-in-possession law met that test because it was narrowly tailored to achieve a compelling governmental interest.  The State had a compelling interest in ensuring public safety and reducing firearm-related crime and “protecting the public from crime.”  Therefore, the Court concluded that the felon-in-possession law was “…sufficiently narrowly tailored to achieve the compelling interest of protecting the public from firearm related crime.” 

In order to  make it clear  that the Court controled  this issue,  it issued an admonition, stating that the decision to not hold the election invalid because of the defective ballot title was part of the “holding” of the Court.  Surely this was intended to make sure my later courts would not engage in revisionism.

Conclusions

There was something for everyone, particularly the court. The proponents of the Amendment got an opinion that embedded  the strict scrutiny standard into the right to bear arms provision in the Missouri Constitution. The opponents got a watered-down version of what constitutes strict scrutiny. The Court ended up with control over what constitutes “strict scrutiny” freezing out the legislature from passing legislation to define this term,  thereby leaving  the court lots of room to decide these issues on a case-by-case basis. Plus, interpretations of the Missouri Constitution will simply follow the lead taken by the United States Supreme Court making it easier  to predict the outcome.

This amazing feat  of legal jujitsu was well accepted as everyone breathed a collective sigh of relief.

Howard Wright© 2016

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UNPRECEDENT SUSPICIONLESS DRUG TESTING PROGAM IS CONSTITUTIONAL FOR ALL STUDENTS AT LINN STATE

Linn State, a two-year technical college in Linn, Missouri, adopted a mandatory drug screening policy:

“Linn State Technical College will begin a drug screening program in the fall semester of 2011 for students who are newly classified as degree or certificate seeking and degree or certificate seeking students returning after one or more semesters of non-enrollment at the Linn State Technical College campus or any Linn Technical College location.”

Linn State College

The drug screening policy was challenged in federal district court as a violation of the Fourth Amendment, which protects the “right of the people” to be free from “unreasonable searches and seizures” by the government.   What is reasonable? Reasonableness under the Fourth Amendment generally requires individualized suspicion that frequently takes the form of a warrant that is based on probable cause. A suspicionlesss search is valid if it falls within the “special needs” exception.

Linn State1

In 2013, a three-judge panel of the 8th Circuit reversed a preliminary injunction granted by the district court because the 8th Circuit could not determine if the above drug policy was invalid as to all of the programs offered by Linn State (Linn State1). The   8th Circuit in Linn State1 suggested that the more appropriate legal theory was to review each program based upon the specifics of its application in the context of the Linn State drug policy and Supreme Court exceptions to suspicionless searches under the “special needs” exception.

District Court Decision 

The district court, based upon the opinion in Linn State1 and Supreme Court precedent, concluded that in order to meet the “special needs” exception Linn State was required to show: (1) a safety risk where the activities performed pose a threat that “even a momentary lapse of attention can have disastrous consequences”; (2) the safety risks at issue must be of a unique or unusual degree; and (3) the safety risk must be to others, as opposed to the person performing the task.

After examining all of the programs offered by Linn State the district court held that Linn State could conduct drug testing in programs for Aviation Maintenance, Industrial Electricity, Electrical Distribution Systems, Power Sports, and CAT Dealer Service Technician because these programs are unique, and a momentary lapse of attention could have disastrous consequences to others. For a more detailed discussion of the district courts’ decision see earlier Post by clicking here.

 

Linn State Collegeairplane

The contrast drawn by the district court between programs that met the three-part test compared to programs that did not meet the test could not be starker. Imagine a student working around airplanes with rotating propellers, large trucks with chair lifts operating around power lines and extremely large pieces of construction equipment working on campus or at a construction site versus a person sitting at a desk learning computer programming, design drafting, network systems technology or other similar programs. The district court noted that not all activities that present safety threats meet the special needs test because the activity must be unique. For example, driving a car is obviously a safety threat to others and yourself, where a momentary lapse of attention can have disastrous consequences; however, the Supreme Court has made it clear that you can not conduct suspicionless searches for all persons who have driver’s licenses.

Linn State2

Linn State again appealed the district court’s decision to the 8th Circuit, which upended legal, thinking (at least mine) by holding in a 2 to 1 decision that suspicionless drug testing for all 1200 students attending Linn State, was constitutional (Linn State2). The  8th Circuit concluded that:

“These purposes–safety concerns juxtaposed with educational concerns–are not analytically distinct and establish a special need sufficient to support the balancing of interests necessary in these circumstances.” (Emphasis Added)

Really! Is working with airplanes, high power lines and large construction equipment the same as computer programming, design drafting, network systems technology when safety concerns are juxtaposed with educational concerns? The comparison of programs that are very  dangerous to programs that are extremely safe defies common sense.

To justify this, the 8th Circuit noted that Linn State was unique in its vocational focus: “The very nature of these programs and the unique vocational focus of the college itself involves dangerous aspects and creates safety risks for students under the influence of drugs or alcohol, as well as others.” Seems like the Court was spreading educational angel dust over all of the program, no matter how minimal,  to reach a result.

The dissent in Linn State2 reasoned that the majority Opinion treats all students “as one homogeneous mass to assess overall constitutionality.” This “all or nothing analysis” by the majority Opinion forces students to give up their constitutional right to be free from suspicionless searches when they are engaged in programs that clearly do not individually meet the special needs test. The dissent in the Linn State2 also argued that the court should be guided by the earlier opinion in Linn State1.

What happens next?

The Plaintiff’s may file for a rehearing or they may file a request that the full 8th Circuit  hear Linn State2 en banc, which usually involves 12 judges on the panel. Six judges on the 8th Circuit have already rendered opinions. Two judges voted in Linn State2 to uphold the entire drug testing program and one judge would have affirmed the district court decision distinguishing between programs based on application of the three part test.   Three judges in Linn State1 offered no opinion concerning the validity of the entire program although they clearly indicated that some parts might qualify as a special exception to suspicionless searches.

Plaintiff’s can be expected to file a motion to rehear the case before the panel that heard Linn State2 or before the full  Circuit en banc (usually 12 judges). If these motions fail  it would seem that Plaintiff would file a  petition for a writ of certiorari before the United States Supreme Court. Stay tuned!

Public Policy

Governmental agencies  should consider delaying adoption  of a drug testing policy similar to Linn State,  until there is a final decision. A campus wide drug testing program for all students,  a laudable goal, plows new legal grounds making it difficult to predict with any certainty the final outcome.  In addition, the  opinion of the 8th  Circuit in Linn State2 was very limited based upon the uniqueness of Linn State making it very difficult to determine if its application in slightly different circumstances is valid.    It is also important to distinguish between worthy policy  goals and the legal realities embedded in the Fourth Amendment to the United States Constitution, which protect the privacy of citizens from  unwarranted suspicionless searches.

Howard Wright© 2015

You may find the following Posts pertaining to  search and seizure of interest.

 Police search of cell phone;

How long  can a dog  wait before it gets to sniff;

Does a dog get a free  sniff?;  and

Search and seizure in world without  walls.

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