ACLU Discovers State Spent Nearly $400,000 on Attorneys Pushing Gov. Scott’s Mandatory Urinalysis Cases

Affiliate: ACLU of Florida
May 27, 2014 12:00 am

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Majority of costs resulted from Gov. Scott’s relentless push for drug testing policies after initial court decisions ruled them unconstitutional; ACLU filed motion for summary judgment to end costly state employee drug testing case

May 27, 2014

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MIAMI – A public records investigation by the American Civil Liberties Union (ACLU) of Florida has found that the state of Florida has spent hundreds of thousands of dollars on attorneys’ fees and legal expenses pushing for mandatory suspicionless urinalysis policies championed by Florida Gov. Rick Scott, even after federal courts found the policies unconstitutional.

The majority of the costs were incurred after initial court decisions ruling the two policies unconstitutional: a 2011 law requiring applicants for the state’s Temporary Assistance for Needy Families (TANF) program to submit to drug testing as a condition of receiving benefits, and a 2011 executive order issued by Gov. Scott mandating state employees under the governor’s purview do the same as a condition of employment. In all, the ACLU discovered that as of May 7, 2014, the state has spent $381,654.45 on the cases, not including staff attorneys’ salaries or court-ordered attorneys’ fees–not to mention the costs of administering the drug testing programs in the first place.

“Every court that has heard Gov. Scott’s argument that the state has the power to compel people to submit their bodily fluids for government inspection without suspicion of wrongdoing has rejected it as a violation of the constitution’s protections against unreasonable searches,” stated ACLU of Florida staff attorney Shalini Goel Agarwal, lead attorney in the state employee drug testing case. “Nevertheless, the governor is spending hundreds of thousands of taxpayer dollars paying private lawyers to push the extreme idea that government can treat anyone like a suspected criminal and compel them to give up their constitutional rights. It’s become a costly and embarrassing boondoggle for Floridians.”

The urinalysis law for TANF applicants was enjoined by a federal judge in 2011 after the ACLU of Florida challenged it. The governor had promoted the law as a cost-saving measure, stating that applicants for TANF use drugs at a higher rate than others. However during the few months the law was in place, so few tested positive that the state spent more reimbursing applicants for the tests than it saved on those who tested positive, and then, after the preliminary injunction was issued, the state spent thousands more on back benefits that were wrongfully denied. The governor nevertheless appealed the preliminary injunction, which was upheld by the 11th Circuit Court of Appeals. The district court issued a final ruling declaring the law unconstitutional on New Year’s Eve 2013. But Gov. Scott, still not convinced, filed a second appeal in the TANF case, which is again pending in the 11th Circuit Court of Appeals.

Gov. Scott’s executive order mandating state employee urinalysis was challenged by the ACLU of Florida on behalf of the members of the state’s largest public employee union, the American Federation of State, County and Municipal Employees (AFSCME) Council 79. In April 2012, a district court enjoined the executive order, declaring it violated the Fourth Amendment’s ban on unreasonable searches. The state appealed that decision, and in May of 2013, the 11th Circuit Court of Appeals rejected the state’s argument that the government has the authority to require all employees be drug tested as a condition of employment. Gov. Scott appealed that decision to the U.S. Supreme Court, which in April 2014 refused to hear the case, leaving the 11th Circuit decision in place.

Between the two cases, Gov. Scott has spent hundreds of thousands of dollars hiring outside attorneys and paying lawyers at the state attorney general’s office to try to overturn the lower courts’ decisions declaring the policies unconstitutional. The costs are expected to grow, as Gov. Scott has continued the legal fight for both policies despite the uninterrupted string of court losses.

In the state employee urinalysis case, because Gov. Scott continues to argue before the court that most of his work force should be subject to testing, the state must pay 2/3 of the costs of a court-appointed “special master” to sort through the tens of thousands of jobs which the governor insists are high security jobs that require mandatory urinalysis as a public safety matter. These allegedly “high security” jobs include typists, store clerks, and workers with long commutes. The first status conference with the special master is scheduled for Wednesday, May 28th, and the costs to the state are already accumulating.

In order to expedite the end of the state employee urinalysis case, the ACLU has filed a motion for summary judgment, asking the court to issue a final ruling definitively striking down the overly-broad executive order as to those employees for whom the governor has come up with no reason for testing, even after the 11th Circuit made clear he needed to show a “special need” for each job category he sought to test.

“Gov. Scott’s unconstitutional ideological crusade has cost the people of Florida too much for too long,” added Agarwal. “The government can’t treat people like suspected criminals and force them to submit to invasive and humiliating searches without a public safety reason or reasonable suspicion of wrongdoing. No amount of costly legal tap dancing is likely to change that. Gov. Scott needs to read the writing on the wall, cut his losses, and end this expensive campaign against Floridians’ Fourth Amendment rights.”

The ACLU of Florida’s public records requests and the documents obtained in the state’s response are available here:

The ACLU of Florida’s motion for summary judgment in the AFSCME case is available here:

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