Appeals panel vets Fla. law requiring drug tests for welfare

Alyson M. Palmer

Daily Report

11-02-2012


A Florida case heard by a federal appeals court panel on Thursday could determine the fate of a new Georgia law that would require welfare applicants to pass a drug test.

At issue before the U.S. Court of Appeals for the Eleventh Circuit is Florida's similar law. A Florida district court judge enjoined enforcement of that law last year, accepting the argument of challengers that the rule violated the Fourth Amendment's ban on unreasonable searches.

Georgia's law was approved by the Legislature and governor this year, but the state has yet to promulgate the regulations that would put it into effect.

Gerald Weber of the Atlanta-based Southern Center for Human Rights was on hand in the Atlanta courtroom to observe the arguments. Depending on what happens in the Florida case, he said later, his group plans to file a legal challenge to Georgia's drug-testing law if and when those regulations are enacted.

Attorney General Sam Olens would be tasked with defending such a challenge. Two of his top deputies, Solicitor General Nels Peterson and Counsel for Legal Policy Britt Grant, were in the courtroom.

It wasn't clear after the 30 minutes of arguments who would come out the winner on Florida's law. One member of the panel, Judge Rosemary Barkett, gave the lawyer defending the law a hard time, while Judge Adalberto Jordan had tough questions for both sides. A visiting district court judge, J. Randal Hall of Augusta, didn't speak up.

Under the Temporary Assistance for Needy Families (TANF) program, the federal government provides money to states to distribute to welfare recipients.

The states enjoy some flexibility on how to administer their programs, a right Florida is banking on as it defends its drug-testing law, approved by its Legislature last year. The law says each TANF applicant must pass a urinalysis drug test before being approved for benefits. If an applicant fails a drug test, his or her child still can obtain benefits via a designated payee who passes the test.

Florida's policy initially was that positive drug test results were reported to a state child abuse and neglect hotline and made available to law enforcement, but the state rescinded that policy this year, according to a brief filed by the challengers to the law.

U.S. District Judge Mary Scriven of Tampa enjoined enforcement of the Florida law, leading to Thursday's arguments.

Jesse Panuccio, a lawyer in the office of Florida Governor Rick Scott, told the judges the drug-testing requirement was legal under two exceptions to the Fourth Amendment's usual prohibition on suspicionless searches: the consent of the person being searched and the state's "special needs." He cited a U.S. Supreme Court decision, Wyman v. James, 400 U.S. 309 (1971), in which, he said, consent was the basis for the court's rejection of a Fourth Amendment challenge to a home-visit requirement of a welfare program.

Barkett sounded doubtful about the consent argument: "You're required to take this test, are you not?"

Jordan asked Panuccio how he dealt with Chandler v. Miller, 520 U.S. 305, the 1997 Supreme Court decision that struck down a Georgia law requiring candidates for certain state offices to pass a drug test. (The high court agreed with Barkett, who had dissented from an Eleventh Circuit panel decision upholding the law.) Panuccio replied that Georgia hadn't raised consent as a justification for the testing in that case.

But, asked Jordan, isn't there a line of cases that says the government can't force people to give up their constitutional rights in exchange for a benefit?

That argument was made by the dissenters in the Wyman case upholding home visits, Panuccio replied. He added that a welfare applicant still can refuse drug testing outside the context of the TANF program.

Jordan asked Panuccio whether the state could test TANF applicants if a hypothetical five-year study had shown zero drug use by recipients of benefits. Panuccio replied that the state's special need was not evidence welfare recipients were using drugs, although such evidence could be used to shore up the state's position.

But if there were no evidence of drug use, asked Barkett, "what in heaven's name would be the risk?" Panuccio responded that drug use makes it harder to move out of the TANF program into a job.

Jordan later pointed out that the benefits had a time limit on them. "If they don't move themselves to work in the program," Jordan said, "the benefits run out."

Maria Kayanan of the American Civil Liberties Union Foundation of Florida appeared for the challengers to the law. She tried to discount the Wyman home-visit decision, saying there the Supreme Court had characterized the situation not as a search but as a friendly, therapeutic visit.

But, asked Jordan, "couldn't it have led to punitive measures?"

Kayanan allowed that benefits could have been terminated as a result of the visit. But, she said, "a home visit is not the compelled search of your bodily fluids."

Jordan questioned the assumption that urinalysis was more invasive than a home visit. If polled, he speculated, people probably would split evenly on which is a greater intrusion.

He asked Kayanan the flip side of his question for the state's lawyer: Would the drug testing program be constitutional if a study showed that 100 percent of TANF recipients used drugs? Kayanan initially replied that she didn't think so, but, when Jordan suggested her position was too extreme, she allowed that in that case the state might be able to do the testing because it now would have a basis to suspect every applicant of using drugs.

Pressed by Jordan on whether the state might test foster parents for drugs in light of the state's parental role in that context, Kayanan suggested that might be permissible. But she sought to distinguish the case of TANF applicants, whom she characterized as "ordinary people."

"Here we have suspicionless drug testing being mandated against an entire class of citizens," said Kayanan.

Jordan noted that no court had addressed the issue before his panel except the Sixth Circuit. In that case, a district judge enjoined Michigan's pilot program for testing TANF applicants for drugs. A panel of the Sixth Circuit reversed, but, as Kayanan pointed out, the full Sixth Circuit took the matter up and was evenly split, meaning the panel ruling remained vacated.

"This case is a case of first impression," Kayanan concluded.

The case is Lebron v. Wilkins, No. 11-15258.


-- Modified on 11/2/2012 7:02:44 PM

Drug testing of welfare recipients is a clear violation of the 4th  Amendment of the Constitution so I assume salonpas' stance is fuck the constitution who needs it.

Percent  of welfare recipients who have tested positive for drugs in past years is far below the percent of alcoholic superior court judges and incredibly below the drug dealing drug using federal court jusdges in the Northern Diostrict of Georgia but salonpas is blissfully unaware of this fact.  Here's an article on the frequency of drug use in welfare recipients tested which is considerably below the Georgia bench, Georgia legislature and federal bench in the Northern District of Georgia.

So why the fuck isn't there a law drug testing state court and federal judges and members of the  Ga. legislature?

http://www.ajc.com/news/news/state-regional-govt-politics/drug-test-bill-draws-legal-heat/nQSs2/

"Florida was the first to pass a TANF drug-testing bill in 2011, prompting the ACLU to sue on behalf of a military veteran and single father who believed the state was forcing him to pay for and undergo an unconstitutional search without probable cause to believe he used drugs.

A federal judge suspended Florida’s program until the suit is resolved. She noted in her opinion that Florida operated a pilot program before implementing statewide testing that showed 5 percent of TANF applicants tested positive for drug use. That was lower than the estimated 8 percent of the general population that used illegal drugs.

The pilot program “undermined the underlying assumption regarding the prevalence of substance abuse among TANF applicants,” wrote U.S. District Judge Mary S. Scriven.

The case is before the 11th U.S. Circuit Court of Appeals in Atlanta."

Several members of the Georgia legislature have undergone treatment for alcoholism and drug use in the past five years.  One tried to commit suicide while on drugs.

Several superior and state court judges in Georgia have been forced to resign for drug use.

There have been 5 federal district court judges forced to resign in the history of the U.S.  The latest was Judge Jack Camp who used to sit before his ass was kicked off the bench in the Northern District of Georgia in Atlanta where salonpas hangs.

Camp was taken down trying to buy cocaine for himself and his girlfriend who he met at the Goldrush showbar on Stewart avenue. It is not known how long Camp a Raegan appointee in 1988 sat on the bench stoned on coke.  The gun to a drug deal  federal statute 18USC § 924 (c) gets thousands of defendants a year sentenced to 5 years in prison.  Camp was caught with two guns brought to his drug deal but because justice in the banana republic of the US is class specific, DOJ failed to charge Camp (the only time in the history of the Northern District of Georgia or the US) with gun to drug deal.

Camp ended up getting a slap on the wrist--30 days in the BOP at the Atlanta Prison Camp, and he keeps his $12,500 a month (enough to buy a fuckload of providers) a month salary complements of your pocket.  Salonpas contributes to Camp's life long salary if he pays taxes.

Everyone who was convicted of 924(c) in Camp's court got the full 5 years.  Camp was a prosecutor's judge who fucked with the defense bar every chance he got.

Given the small number of district court judges Camp's contribution to the percentage of them  using drugs is much higher than welfare recipients.

But shhhh don't tell Salonpas.  He has no clue.









-- Modified on 11/2/2012 9:41:06 PM

...then we could start with Rick Scott. All the corporations and their corporate executives who come looking for a hand out should piss in a cup too.  

But it's nothing new for the GOP to shit on the poor. And people wonder why I laugh when a CEO gets killed on his Segway.

I am no fan of government bailing out companies. All it does is prolong the inevitable and the tax payer loses in the end.