Robinson v. City of Seattle

10 P.3d 452

102 Wash.App. 795

Kirk ROBINSON; Jean Robinson; Patricia Carlisle; Oscar Eason, Jr.; Karen Jensen; John Junker; Don Moreland; Charles Royer; and The American Civil Liberties Union Of Washington, Taxpayers, Appellants, v. The CITY OF SEATTLE, a municipal corporation, Respondent.

No. 45511-7-I.

Court of Appeals of Washington, Division 1.

October 2, 2000.

Michael E. Kipling, Stokes Eitelbach & Lawrence, P.S.; Laura J. Buckland, Seattle, for appellants.

Frederick E. Wollett, Seattle, for Respondent.

ELLINGTON, J.

The City of Seattle requires a preemployment urinalysis drug test for about half the vacancies filled by the City. Appellants here ("the Taxpayers") challenge the constitutionality of this program. Because the testing constitutes a warrantless search without particularized grounds for suspicion, the City must show the program is narrowly drawn to achieve a compelling governmental interest. The program meets this standard only in part, and therefore violates article I, section 7 of the Washington State Constitution. We reverse the trial court's dismissal of the challenge and remand for a determination as to what City positions directly and genuinely implicate the safety of the public, and for entry of an order enjoining the program as applied to other positions.

FACTS

Seattle's Drug Testing Program

The present version of Seattle's program is not the first. In 1995, in response to federal transportation regulations, the City began requiring drug tests of applicants and employees in all positions requiring commercial driver's licenses (the "CDL program").

In 1996, the City implemented a mandatory, city-wide preemployment drug testing program requiring successful external applicants for all positions to undergo urinalysis drug testing.

On November 24, 1997, the City Council narrowed the preemployment testing requirement to applicants for positions in seven categories. On December 7, 1998, the City further narrowed the program to limit testing to "positions for which the job duties include: 1) public safety responsibilities; 2) handling dangerous substances; 3) hazardous physical activities; 4) routine operation of motor vehicles, heavy equipment, or power tools; and 5) routine performance of other safety-sensitive activities."¹ This is the program that was litigated here.

The City Council adopted findings and a 600-page legislative record. The findings make several points, which we briefly summarize. First, most illicit drug users are employed, and drug use occurs in all work places, including the City. Second, drug abuse results in substantial loss to the national and local economies by way of lost productivity, absenteeism, turnover costs, health care costs, increased workplace accidents and injuries, more workers' compensation claims, and losses from impaired judgment and creativity. Third, preemployment drug testing is widely used in the private and public sectors, and if the City does not test applicants it may become a "last resort employer" for persons with substance abuse problems. Fourth, means for identifying drug abuse problems among incumbent employees (such as on-the-job observation) are not available for the population of non-incumbent applicants. Finally, statistics demonstrate the success of preemployment testing programs (including previous versions of the City's program) in reducing the number of incumbent employees with drug problems.

The findings state, "the City of Seattle has an overriding interest in selecting employees who are both healthy and free of substance abuse behaviors that could affect their ability to work safely and efficiently.... The City is committed to hiring efficient, productive, and safe employees to serve the citizens of Seattle, and pre-employment drug testing is a reasonable and effective tool for the City to use in pursuit of this goal."

Procedure for Determining Which Positions Require Urinalysis

The five categories set forth in the ordinance are obviously broad. They are not further defined in the ordinance. Insofar as we can discern from the briefing and record, the mechanics of the program are as follows. The program is implemented by the City's Executive Services Department (ESD), which is required by the ordinance to develop guidelines² for use by department heads, who decide whether to require a test.

The determination to require a drug test is based on the workers' compensation code assigned to the position, because according to the ESD, the codes "correlate closely with the risks of job related accidents and injuries." Six codes are used: (1) Public assistance employees-summer youth; (2) field; (3) electrical; (4) fire; (5) office; and (6) police. Applicants for electrical, fire, and police positions are automatically tested. The category "public assistance employees-summer youth" includes Conservation Corp members and work training enrollees, who are to be tested.³ For field and office positions, each department head determines whether to test by comparing the duties of the position with the five categories and the guidelines. If the duties of the employee will include any of those in the five categories (e.g., handling dangerous substances or lifting 25 pounds), a drug test is required. There is no procedure for review of these determinations.

Applicants are informed of the possibility of a test requirement by means of job announcements. The urine sample must be provided at a designated medical facility within 12 hours of a conditional job offer. The record is unclear as to whether and how the giving of the sample is monitored. Applicants whose test is positive are asked to disclose any medical condition or treatment that may have affected the test results. Unexplained positive results cause disqualification from city employment for 12 months. The City maintains a database of such applicants for a period of five years.

Several thousand applicants have been tested since inception of the program. Approximately five to six percent tested positive. Between December 1, 1997 and June 30, 1998, positions for which testing was required under the current program included, among others: accountant, administrative support assistant, attorney, carpenter, cashier, civil engineering specialist, computer operator, counselor, golf course technician, librarian, life guard, metal fabricator, meter reader, personnel specialist, plumber, public relations specialist, recreation attendant, seasonal laborer (parks), security officer, tennis instructor, usher, and water laboratory assistant.

Procedural History

Appellants are eight residents of the City of Seattle and a non-profit corporation, the American Civil Liberties Union of Washington (ACLU), who pay local sales and use taxes ("the Taxpayers"). None of the Taxpayers claims to have applied to the City for employment.

In superior court, both parties moved for summary judgment. The trial court granted the City's motion. The Supreme Court denied direct review.

DISCUSSION

This court reviews an order granting summary judgment de novo.⁴ Summary judgment is appropriate if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.⁵ The facts and all reasonable inferences therefrom are considered in the light most favorable to the nonmoving party.⁶

We presume that regularly enacted ordinances are constitutional, unless the ordinance involves a fundamental right or suspect class, in which case the presumption is reversed.⁷

Standing

Washington recognizes "litigant standing to challenge governmental acts on the basis of status as a taxpayer."⁸ Under the doctrine of taxpayer standing, "a taxpayer need not allege a personal stake in the matter, but may bring a claim on behalf of all taxpayers[.]"⁹ Taxpayers need not allege a direct, special, or pecuniary interest in the outcome of the suit, but must demonstrate that their demand to the Attorney General to institute the action was refused, unless such a request would have been useless.¹⁰ The Taxpayers assert their standing under this doctrine, and the City makes no argument to the contrary.¹¹ We agree that the Taxpayers have standing.¹²

Test for Constitutionality under Taxpayer Challenge

The first question presented is what test applies when a taxpayer challenges the constitutionality of an enactment. The City argues that because a taxpayer challenge is a facial challenge, the Taxpayers here must satisfy the standard set forth in United States v. Salerno¹³ for facial attacks in First Amendment cases—that is, the Taxpayers must prove "that no set of circumstances exists under which the Act would be valid." According to the City, the Taxpayers' concession¹⁴ that the ordinance is constitutional when applied to police officers or firefighters is fatal to their challenge to the remainder of the ordinance.

It is true that the Taxpayers' challenge is inherently "facial," because the inquiry is not whether application of the challenged enactment violates a particular individual's rights, but whether the government has acted unlawfully. It is also true, as the Taxpayers point out, that no Washington court has applied the Salerno test to a taxpayer suit.¹⁵ More importantly, Washington courts have not employed the Salerno test for any facial challenges, and it has little vitality elsewhere. Our review persuades us that Salerno is not the appropriate test for taxpayer challenges in Washington.

First, the test has not been followed by the United States Supreme Court,¹⁶ which recently referred to the Salerno test as "dictum," and observed: "To the extent we have consistently articulated a clear standard for facial challenges, it is not the Salerno formulation, which has never been the decisive factor in any decision of this Court[.]"¹⁷ Justice Stevens has characterized the Salerno test as a "rhetorical flourish ... unsupported by citation or precedent."¹⁸

Several state courts have rejected...