Sunday, October 7, 2007

Petition re: constitutionality of Art. 36 of RA 9165 (new dangerous drugs law)



This a pending petition that I filed with the Supreme Court 4 years ago questioning the constitutionality of Art. 36 of R.A. 9165 (new dangerous drugs law) in relation to the
4th Amendment (i.e., random, suspicionless, and mandatory drug tests vs. the constitutional right against unreasonable search and seizure).

The discussions in the Memorandum are useful for legal research purposes.

The Office of the Solicitor General has vigorously opposed my petition.



ATTY. MANUEL J. LASERNA JR. vs. DANGEROUS DRUGS BOARD AND PHILIPPINE DRUG ENFORCEMENT AGENCY, docketed as GR No. 158633, pending with the Supreme Court en banc.




MEMORANDUM FOR THE PETITIONER




THE UNDERSIGNED PETITIONER ATTY. MANUEL J. LASERNA JR., pro se, respectfully states:




I. STATEMENT OF THE CASE


This is a citizen’s and taxpayer’s special civil action/suit for certiorari and prohibition (Rule 65; in relation to Art. VIII, 1987 Constitution [“expanded jurisdiction” of the Supreme Court) questioning the constitutionality of Sec. 36 of R.A. No. 9165 (Comprehensive Dangerous Drugs Act of 2002), which imposes the requirement of mandatory, suspicionless and random drug tests nationwide among all high school and college students, all public and private officers, workers and employees, all local and national candidates for elective and appointive government positions, and all respondents facing preliminary investigations of the criminal complaints filed against them with an imposable penalty exceeding 6 years and 1 day, such legal provision being clearly violative of the Filipino citizens’ constitutional right to privacy, right against unreasonable search and seizure and self-incrimination, and right to due process of law and equal protection of the laws, as will be discussed hereinbelow.

The petitioner is a member of the Bar, the founding/past president of the Las Pinas City Bar Association (LPBA), Inc., the incumbent secretary of the Integrated Bar of the Philippines (IBP) – Pasay Paranaque Las Pinas Muntinlupa (PPLM) Chapter, and a professor of law of Far Eastern University (FEU), Manila.

On June 7, 2002, R.A. No. 9165 was approved by the President. In June, 2003 Philippine national newspapers carried various reports citing press interviews with the Secretary of the Interior and Local Government (DILG) stating that by July 2003 the public respondent DDB would start to implement Sec. 36 of R.A. No. 9165 and would soon issue the implementing rules and regulations thereof. Hence, the petition.



II. ISSUE


The sole issue being raised in the petition is whether or not Sec. 36 of R.A. No. 9165 is unconstitutional and thus null and void for being violative of the

Filipino citizens’ constitutional right to privacy, right against unreasonable search and seizure and self-incrimination, and right to due process of law and equal protection of the laws.



III. DISCUSSION


A. THE QUESTIONED PROVISION: SEC. 36, R.A. NO. 9165


The relevant portions of Sec. 36 of R.A. 9165 read:


SEC. 36. - Authorized Rug Testing. - x x x x x.


(a) x x x x x x

(b) x x x x x x


(c) Students of secondary and tertiary schools. - Students of secondary and tertiary schools shall, pursuant to the related rules and regulations as contained in the school’s student handbook and with notice to parents, undergo a random drug testing; Provided, That all drug testing expenses whether in public or private schools under this Section will be borne by the government;

(d) Officers and employees of public and private offices. - Officers and employees of public and private offices, whether domestic or overseas, shall be subjected to undergo a random drug test as contained in the company’s work rules and regulations, which shall be borne by the employer, for purposes of reducing the risk in the workplace. Any officer or employee found positive for use of dangerous drugs shall be dealt with administratively which shall be a ground for suspension or termination, subject to the provisions of Article 282 of the Labor Code and pertinent provisions of the Civil Service Law;

(e) x x x x x

(f) All persons charged before the prosecutor’s office with a criminal offense having an imposable penalty of imprisonment of not less than six (6) years and one day shall have to undergo a mandatory drug test; and

(g) All candidates for public office whether appointed or elected both in the national or local government shall undergo a mandatory drug test.

In addition to the above stated penalties in this Section, those found to be positive for dangerous drugs use shall be subject to the provisions of Section 15 of this Act.”



Section 15 of R.A. No. 9165 provides:


SEC. 15. – Use of Dangerous Drugs. - A person apprehended or arrested, who is found to be positive for use of any dangerous drug, after a confirmatory test, shall be imposed a penalty of a minimum of six (6) months rehabilitation in a government center for the first offense, subject to the provisions of Article VIII of this Act. If apprehended using any dangerous drug for the second time, he/she shall suffer the penalty of imprisonment ranging from six (6) years and one (1) day to twelve (12) years and a fine ranging from Fifty Thousand Pesos (P50,000.00) to Two Hundred Thousand Pesos (P200,000.00); Provided, That this Section shall not be applicable where the person tested is also found to have in his/her possession such quantity of any dangerous drug provided under Section 11 of this Act, in which case the provisions therein shall apply.”



B. THE QUESTIONED PROVISION IS UNCONSTITUTIONAL


Under Sec. 36 of R.A. No. 9165, the following constitutional infirmities are evident:


1. High school and college students (the great bulk of whom are minors) shall undergo MANDATORY drug tests. It may be “random” (the adjective used in Sec. 36 [c]) but it is mandatory and compulsory. The provision merely requires “notice” to the parents, but not their “consent”, making its mandatory nature more evident. It appears that the implementing rules of Sec. 36 to be issued soon by the respondent DDB must be compulsorily included in the school’s student handbook (requiring mandatory amendments to the student handbook). Although Sec. 36 © is silent about it, it appears that a student found positive of use of dangerous drugs may be administratively expelled by the school authorities. (Sec. 36 [c], R.A. No. 9165). Aside from the said administrative sanction, there is the probability that they would be exposed to potential criminal proceedings under the law (Sec. 15, R.A. No. 1965).

2. Public and private workers, employees, and officers, whether domestic or overseas, shall likewise undergo MANDATORY drug tests. Again, it may be “random” (the adjective used in Sec. 36 [d]) but it is mandatory and compulsory. It appears that the implementing rules of Sec. 36 to be issued soon by the respondent DDB must be compulsorily included in the company’s work rules and regulations (requiring mandatory amendments to the company’s work rules and regulations). Sec. 36 (d) expressly provides that any officer or employee found positive for use of dangerous drugs may be administratively suspended or terminated from work subject to the provisions of Art. 282 of the Labor Code and the pertinent provisions of the Civil Service Law. (Sec. 36 [d], R.A. No. 9165). Aside from the said administrative sanction, there is the probability that they would be exposed to potential criminal proceedings under the law (Sec. 15, R.A. No. 1965).

3. All persons charged before the prosecutor’s office (that is, whose criminal cases are still undergoing preliminary investigation) with a criminal offense having an imposable penalty of not less than 6 years and 1 day shall undergo MANDATORY drug tests. (Sec. 36 [f], R.A. No. 9165). A citizen facing a preliminary investigation for a pending criminal complaint (whatever its nature or type might be) shall now be required to undergo a mandatory drug test, regardless of whether or not his pending case is related to dangerous drugs use and regardless of whether or not the result of such mandatory drug test is relevant or material to the pending criminal complaint against him. (Sec. 36 [g], R.A. No. 9165). Aside from their pending criminal complaints, there is the probability that they would be potentially exposed to additional criminal proceedings under the law (Sec. 15, R.A. No. 1965).

4. All candidates for public office whether appointive or elective both in the national of local government shall undergo a mandatory drug test. (Sec. 36, [g], R.A. No. 9165). The Constitution alone may provide for the qualifications of national elective and appointive officials, the constitutional officials of the land, and the members of the independent constitutional commissions, agencies and bodies. (As to the local elective and appointive officials and employees, Congress may provide for their qualifications, e.g., the Local Government Code, the Civil Service Law, the Revised Administrative Code, and other laws). R.A. No. 9165 in effect adds a new mandatory qualification for national elective officials, like the President, the Vice President, and the Senators, and other constitutional officials, such as the members of the Supreme Court, the Ombudsman, the members of the Judicial and Bar Council, and the members of the independent constitutional bodies, that is, they must all pass the mandatory drug tests under that law. It will be noted that constitutional officials may only be removed from office by IMPEACHMENT, and not by operation of R.A. No. 1965; and the specific procedures for their nomination and appointment are clearly spelled out in the Constitution (which R.A. No. 9165 may not amend). Finally, the public and private officials and employees would be exposed to other potential criminal cases arising from the mandatory drug tests.

5. The high school and college students, the public and private officials and employees, the respondents in criminal complaints undergoing preliminary investigations, and the local and national candidates (elective or appointive positions) would all be exposed to unreasonable search and their right to privacy violated by Sec. 36 of R.A. No. 9165.



Sec. 1 and Sec. 2, Art. III of the 1987 Constitution provide:


“Sec. 1. No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws.”

“Sec. 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, xxxx.” (See also: Art. 32, Civil Code).



The right of privacy is both constitutional and statutory. (Sec. 3, Art. III, 1987 Constitution; Art. 26, Civil Code). Any evidence obtained in violation of a citizen’s right to privacy and right against unreasonable search and seizure shall be inadmissible for any purpose in any proceeding. (Sec. 3 [2], Art. III, id.).

The 1987 Constitution provides that no person may be compelled to be a witness against himself (Sec. 17, Art. III, 1987 Constitution). No person shall be held to answer for a criminal offense without due process of law. (Sec. 14, id.).



C. ANALOGOUS LANDMARK AMERICAN DECISIONS


The provisions of Art. III of the 1987 Constitution have their roots in the Bill of Rights of the US Constitution. The US Supreme Court and US Circuit Courts of Appeals have made various rulings on the constitutionality of mandatory drug tests in the schools and the workplaces. The US courts have been consistent in their rulings that mandatory drug tests violate a citizen’s constitutional right to privacy and right against unreasonable search and seizure. They are quoted extensively hereinbelow.



1. LINDSAY EARLS, et. al. vs. BOARD OF EDUCATION

OF TECUMSEH PUBLIC SCHOOL DISTRICT, et. al.

United States Court of Appeals Tenth Circuit

Case No. 00-6128, MAR 21 2001

See: http://laws.findlaw.com/10th/006128.html (June 10, 2003)


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The Fourth Amendment ordinarily requires "some quantum of individualized suspicion" before a search may constitutionally proceed. United States v. Martinez-Fuerte, 428 U.S. 543, 560 (1976). However, the Supreme Court has recognized that "the Fourth Amendment imposes no irreducible requirement of such suspicion." Id. at 561. Rather, "the ultimate measure of the constitutionality of a governmental search is `reasonableness.'" Vernonia Sch. Dist. v. Acton, 515 U.S. 646, 652 (1995). The Court has further held that the "state-compelled collection and testing of urine" is a search subject to the Fourth Amendment's reasonableness requirement. Id. (citing Skinner v. Ry. Labor Execs. Ass'n, 489 U.S. 602, 617 (1989)).

Because we are presented in this case with a Fourth

Amendment search of school children while at school, we first examine the general nature of the rights and obligations of students and school personnel in the school setting. It is "indisputable . . . that the Fourteenth Amendment protects the rights of students against encroachment by public school officials." New Jersey v. T.L.O., 469 U.S. 325, 334 (1985). As state actors, therefore, school personnel "do not merely exercise authority voluntarily conferred on them by individual parents; rather, they act in furtherance of publicly mandated educational and disciplinary policies." Id. at 336. However, while school authorities do not act merely in loco parentis when interacting with students, the Court has made it clear that their power over students is "custodial and tutelary, permitting a degree of supervision and control that could not be exercised over free adults." Vernonia, 515 U.S. at 655. Thus, while students retain their Fourth Amendment right to be free from unreasonable searches while at school, the nature of that right is different it "is what is appropriate for children in school." Id. at 656. It is in this unique environment that we examine the constitutionality of the Policy. The District justifies the Policy based on the "special needs" doctrine, which the Supreme Court has developed through a series of cases permitting suspicionless drug testing in certain situations. In Skinner v. Ry. Labor Exec. Ass'n, 489 U.S. 602 (1989), the Court upheld the suspicionless drug testing of railroad employees who had been involved in accidents. It explained the "special needs" doctrine as follows:

We have recognized exceptions to . . . [the warrant requirement] when special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable. When faced with such special needs, we have not hesitated to balance the governmental and privacy interests to assess the practicality of the warrant and probable-cause requirements in the particular context. Id. at 619 (quotations omitted).

Accordingly, under the special needs doctrine, the Court identifies a special need which makes impracticable adherence to the warrant and probable cause requirements, then balances the government's interest in conducting the particular search against the individual's privacy interests upon which the search intrudes.

Employing that analysis, in Nat'l Treasury Employees Union v. Von Raab, 489 U.S. 656 (1989), the Court upheld Customs Service regulations requiring suspicionless drug testing for Customs Service employees seeking positions involving the interdiction of illegal drugs or requiring the carrying of firearms. In Vernonia, again invoking the special needs doctrine, the Court upheld the suspicionless drug testing of student athletes at a high school and middle school.

Finally, in Chandler v. Miller, 520 U.S. 305 (1997), finding that Georgia had failed to demonstrate a "special need" justifying the particular search at issue, the Court held unconstitutional a Georgia statute requiring candidates for certain public offices to certify that they had taken a urinalysis test within thirty days prior to qualifying for nomination or election and that the test was negative. Chandler was the first case in which the Court found the government failed to demonstrate a special need. Our court has recently held that in Chandler, "the Court added a step to the analysis it had followed in Skinner, Von Raab, and [Vernonia]." 19 Solid Waste Dept. Mechs., 156 F.2d at 1072. We held that Chandler requires courts to inquire first into whether the government has established the existence of a special need before proceeding to any balancing of government and private interests. We defined that inquiry as two-fold: first, "whether the proffered governmental concerns were `real' by asking whether the testing program was adopted in response to a documented drug abuse problem or whether drug abuse among the target group would pose a serious danger to the public"; and second, "whether the testing scheme met the related goals of detection and deterrence." Id. at 1073. These special needs cases provide the parameters for our analysis.(3)

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I. Nature of Privacy Interest


As in Vernonia, we first consider the "nature of the privacy interest upon which the search here at issue intrudes." Vernonia, 515 U.S. at 654. It is well established that, while students do not "shed their constitutional rights . . . at the schoolhouse gate," Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969), "students within the school environment have a lesser expectation of privacy than members of the population generally." T.L.O., 469 U.S. at 348 (Powell, J., concurring). The Court in Vernonia found student athletes have an even lesser expectation of privacy than other students, both because of a perceived "`communal undress' inherent in athletic participation," Vernonia, 515 U.S. at 657 (quoting Schaill v. Tippecanoe County Sch. Corp., 864 F.2d 1309, 1318 (1988)), and because athletes, simply by participating on the team, voluntarily subject themselves to increased supervision and additional obligations.

The District argues that participants in the extracurricular activities subject to testing under the Policy, like athletes, have a reduced expectation of privacy because: (1) they voluntarily participate; (2) they occasionally travel out of town on trips where they must sleep together in communal settings and use communal bathrooms; and (3) they agree to abide by "the higher degree of academic and out-of-school rules and regulations of both the District and the OSSAA." Appellees' Brief in Chief at 17. While it is probably true that the degree of "communal undress" associated with most of the extracurricular activities in this case is different from the level of "communal undress" among athletes envisioned by the Supreme Court in Vernonia, we decline to give that difference, whatever it may be, much weight in our analysis. We doubt that the Court intends that the level of privacy expectation depends upon the degree to which particular students, or groups of students, dress or shower together or, on occasion, share sleeping or bathroom facilities while on occasional out-of-town trips.(10)

More significant to us is the fact that, like athletes, students participating in other extracurricular activities voluntarily submit themselves to at least some additional requirements and obligations.(11) We examine first whether the voluntariness of the participation in the activity reduces a student's legitimate

expectation of privacy while participating in that activity.

We do not believe that voluntary participation in an activity, without more, should reduce a student's expectation of privacy in his or her body. Members of our society voluntarily engage in a variety of activities every day, and do not thereby suffer a reduction in their constitutional rights. As another court recently stated, "we disagree [with the view] that just by exercising a privilege in any activity that is part of the educational process, a student's privacy interests are lessened and that a school district can, without more, condition participation in that activity on agreeing to testing just because the activities are optional." Theodore v. Del. Valley Sch. Dist., 761 A.2d 652, 660 (Pa. Commw. Ct. 2000).

Moreover, while participation in extracurricular activities is voluntary, such participation has become an integral part of the educational experience for most students. The Supreme Court recently cautioned against "minimiz[ing] the importance to many students of attending and participating in extracurricular activities as part of a complete educational experience." Santa Fe Indep. Sch. Dist. v. Doe, 120 S. Ct. 2266, 2280 (2000); see also Trinidad Sch. Dist. No. 1 v. Lopez, 963 P.2d 1095, 1109 (Colo. 1998) ("the reality for many students who wish to pursue post-secondary educational training and/or professional vocations requiring experience garnered only by participating in extracurricular activities is that they must engage in such activities . . . . [I]nvolvement in a school's extracurricular offerings is a vital adjunct to the educational experience."). Thus, the voluntariness of the participation, without more, does not reduce a student's expectation of privacy.

However, there are other aspects of participating in extracurricular activities which do legitimately lower a student's expectation of privacy. While students participating in non-athletic extracurricular activities need not obtain pre-participation physicals or insurance, as athletes must, they do, like athletes, (10) Moreover, there was evidence in this case that not all athletes "shower and change" together after each event. Vernonia, 515 U.S. at 657. See Appellants' App. Vol. II at 380.

(11) The District Superintendent, Tom Wilsie, submitted an affidavit in which he stated that students wishing to participate in OSSAA sanctioned activities, like the extracurricular activities at issue in this case, "must meet scholastic standards in order to be eligible to participate." Wilsie Aff. at 5, Appellants' App. Vol. I at 78. agree to follow the directives and adhere to the rules set out by the coach or other director of the activity. This inevitably requires that their personal freedom to conduct themselves is, in some small way, constrained at least some of the time.

We therefore conclude that, like athletes, participants in other extracurricular activities have a somewhat lesser privacy expectation than other students.


II. Character of Intrusion


We turn next to "the character of the intrusion that is complained of." Vernonia, 515 U.S. at 658. Because the manner of testing, the information obtained, and the use to which that information is put are, in this case, virtually identical to the testing process in Vernonia, we reach the same conclusion as did

the Supreme Court: "the invasion of privacy was not significant." Id. at 660.


III. Nature and Immediacy of Concern and Efficacy of Solution


The final factor we consider is "the nature and immediacy of the governmental concern at issue here, and the efficacy of this means for meeting it." Id. This factor tips the balancing analysis decidedly in favor of the plaintiffs. As the Court acknowledged in Vernonia, there can be no doubt that the District's interest in deterring drug use among students is very important, "perhaps compelling." Id. at 661. However, in addition to noting the general danger to children of drug abuse, the Court in Vernonia emphasized the particular danger to athletes caused by drug usage: the risk of immediate physical harm to the drug user or those with whom he is playing his sport is particularly high. Apart from psychological effects, which include impairment of judgment, slow reaction time, and a lessening of the perception of pain, the particular drugs screened by the District's Policy have been demonstrated to pose substantial physical risks to athletes. Id. at 662. The District argues that students engaged in extracurricular activities are equally at risk of physical harm, both to themselves and others, because, for example, band members perform routines with heavy instruments and FFA members at times wrestle large animals. Furthermore, the District argues, participants in competitive extracurricular activities, like athletes, often practice or prepare for competitions after school and on weekends, and travel on occasional overnight trips, where they are subject to less supervision than regular students.

This argument proves both too much and too little. While there may indeed be some extracurricular activities that involve a safety issue comparable to that of athletes, there are other students involved in extracurricular activities and therefore subject to the Policy who can hardly be considered a safety risk. It is difficult to imagine how participants in vocal choir, or the academic team, or even the FHA are in physical danger if they compete in those activities while using drugs, any more than any student is at risk simply from using drugs. On the other hand, there are students who are not subject to the testing Policy but who engage in activities in connection with school, such as working with shop equipment or laboratories, which involve a measurable safety risk. Thus, safety cannot be the sole justification for testing all students in competitive extracurricular activities, because the Policy, from a safety perspective, tests both too many students and too few. In essence, it too often simply tests the wrong students.(12)


Perhaps recognizing this dilemma, the District relies more heavily on the fact that all extracurricular students are subject to less supervision than students in classrooms when they are staying after school to meet and/or practice, and when they are traveling off campus to compete. However, if this provides the justification for testing, then again there is an imperfect match between the need to test and the group tested. Students who do not participate in any extracurricular activities are, at times, less supervised than they are in the classroom when they are in the hallways between classes, at lunch, immediately before and after school while they are entering and leaving school premises.

Moreover, Ms. Rogers testified that there are other student organizations and groups which take field trips, meet after school, and otherwise engage in precisely the same kinds of less supervised activities as those in the extracurricular activities subject to drug testing under the Policy. Appellants' App. Vol. II at 480-82, 560-61. The District admitted in a response to an (12) To the extent one could argue that the safety issue here is the health care risk of addiction or physical harm from the use of drugs, then the logical solution is to test all students. The fact that the District only tests a select group of students-those participating in extracurricular activities-indicates that its testing Policy is not motivated simply by health care concerns. interrogatory that other groups, not subject to the Policy, have traveled overnight. Appellants' App. Vol. III at 739. Accordingly, neither a concern for safety nor a concern about the degree of supervision provides a sufficient reason for testing the particular students whom the District chose to test under the Policy.

Additionally, given the paucity of evidence of an actual drug abuse problem among those subject to the Policy, the immediacy of the District's concern is greatly diminished. And, without a demonstrated drug abuse problem among the group being tested, the efficacy of the District's solution to its perceived problem is similarly greatly diminished. While the Court in Vernonia had no trouble identifying the efficacy of a drug testing policy for athletes when the athletes were at the heart of the drug problem, we see little efficacy in a drug testing policy which tests students among whom there is no measurable drug problem. See Trinidad Sch. Dist. No. 1, 963 P.2d at 1110 (holding that the school district failed to demonstrate the efficacy of its testing policy because it "swept within its reach students participating in an extracurricular activity who were not demonstrated to play a role in promoting drugs and for whom there was no demonstrated risk of physical injury").

In sum, applying the factors identified by the Supreme Court in Vernonia, we conclude that the testing Policy is unconstitutional. We do not suggest that a school must wait until it can identify a drug abuse problem of epidemic proportions before it may drug test groups of its students. Nor do we declare any bright line mark concerning the magnitude at which a drug problem becomes severe enough to warrant a suspicionless drug testing policy. We leave that to each school district. However, any district seeking to impose a random suspicionless drug testing policy as a condition to participation in a school activity must demonstrate that there is some identifiable drug abuse problem among a sufficient number of those subject to the testing, such that testing that group of students will actually redress its drug problem.(13) "[S]pecial needs must rest on demonstrated realities." United Teachers of New Orleans v. Orleans Parish Sch. Bd., 142 F.3d 853, 857 (5th Cir. 1998). Unless a district is required to demonstrate such a problem, there is no limit on what students a school may randomly and without suspicion test. Without any limitation, schools could test all of their students simply as a condition of attending school. The District admits it could not test its entire student body and we doubt very much that the Supreme Court would permit such broad testing were the issue presented to it.

In reaching this result, we realize that we are disagreeing with two of our fellow circuits.(14) However, there are other courts with which we are in agreement. This issue is obviously a difficult one with which courts will continue to grapple.


CONCLUSION

For the foregoing reasons, we REVERSE and REMAND this matter to the district court for further proceedings consistent herewith. (13) As the court in Theodore put it:

While the purposes articulated set forth a governmental interest supporting a generalized drug and alcohol testing program, no reason is given for a special need to test only those students who engage in optional activities . . . more than the general student population. To carry out the health care analogy, it would be as if the School District was offering a polio vaccine only to those students engaged in extracurricular activities . . . without expressing a need as to why those students are more likely to contract polio or more likely to cause the spread of disease than any other selective group of students. Theodore, 761 A.2d at 661. (14)

In Todd v. Rush County Schs., 133 F.3d 984 (7th Cir. 1998), the Seventh Circuit upheld the random suspicionless drug testing of high school students participating in extracurricular activities and driving to and from school. The court did so, however, with a scant and conclusory analysis: "we find that the reasoning compelling drug testing of athletes also applies to testing of students involved in extracurricular activities. Certainly successful extracurricular activities require healthy students." Id. at 986. The court also noted that participation in extracurricular activities is a privilege in which students have voluntarily chosen to participate. Rehearing en banc was denied, with written dissents by four judges. Todd v. Rush County Schs., 139 F.3d 571 (7th Cir. 1998).

The Seventh Circuit then held unconstitutional a policy of drug testing any student who was suspended or violated specified rules in Willis v. Anderson Comm. Sch. Corp., 158 F.3d 415 (7th Cir. 1998). Rather than making a conclusory determination, as in Todd, the Willis court carefully surveyed the Supreme Court case law and each factor set forth in Vernonia. Most recently, in Joy v. Penn-Harris Madison Sch. Corp., 212 F.3d 1052 (7th Cir. 2000), the Seventh Circuit again upheld the random suspicionless drug testing of students involved in extracurricular activities and driving to and from school, but it did so clearly only because it was bound under the doctrines of stare decisis and precedent to follow Todd. The court made it clear that, were it not so bound, it would find the policy unconstitutional under a careful and thorough application of the Vernonia factors.

The Eighth Circuit, in a decision subsequently vacated as moot, also upheld a suspicionless drug testing policy applicable to students participating in extracurricular activities. Miller v. Wilkes, 172 F.3d 574 (8th Cir. 1999). In applying the Vernonia factors, the court was untroubled by the fact that the school had presented no evidence of an actual drug problem. The court simply took judicial notice of the seriousness of drug and alcohol abuse in public schools.

By contrast, the Colorado Supreme Court held unconstitutional the suspicionless drug testing of all participants in the marching band. Trinidad Sch. Dist. No. 1 v. Lopez, 963 P.2d 1095 (Colo. 1998). After applying all the Vernonia factors, the court concluded that "the nature of the privacy interest invaded was different from that of the student athletes in Vernonia" and, although the district established it had a drug abuse problem, "the means chosen to deal with that problem were too broad." Id. at 1110; see also Linke v. Northwestern Sch. Corp., 734 N.E. 2d 252 (Ind. Ct. App. 2000) (holding unconstitutional under the Indiana Constitution a suspicionless drug testing policy applicable to athletes and others involved in certain extracurricular activities); Theodore v. Del. Valley Sch. Dist., 761 A.2d 652 (Pa. Commw. Ct. 2000) (holding unconstitutional a suspicionless drug testing policy applicable to those participating in extracurricular activities and driving to school).

Two district court cases within the Fifth Circuit have addressed this issue. In Brooks v. East Chambers Consol. Indep. Sch. Dist., 730 F. Supp. 759 (S.D. Tex. 1989), aff'd, 930 F.2d 915 (5th Cir. 1991), a pre-Vernonia case, the court held unconstitutional suspicionless drug testing of students wishing to participate in extracurricular activities. The court held the testing was intrusive, there was no evidence of a drug problem or greater safety risk among those subject to the test, and the policy was "not likely to accomplish its ostensible goals." Id. at 765. The Fifth Circuit affirmed that decision without an opinion.

The Fifth Circuit will have an opportunity to revisit this issue, because another Texas district court has recently held

unconstitutional the random suspicionless drug testing of all students participating in extracurricular activities. Gardner v. Tulia Indep. Sch. Dist., No. 2:97-CV-020-J (N.D. Tex. filed Dec. 7, 2000). The school district has appealed the case to the Fifth Circuit. The court in Gardner, after noting that there was no evidence of a drug problem among students in general at the Tulia schools or among those participating in extracurricular activities and therefore subject to testing, held that Vernonia "was limited to random drug testing of the student athletes." Slip op. at 8; see also Tannahill v. Lockney Indep. Sch. Dist., No. 5:00-CV-0073-C (N.D. Tex. filed March 1, 2001) (holding unconstitutional a drug testing policy applicable to all students).

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2. CHANDLER et al. v. MILLER, GOVERNOR OF GEORGIA, et al.

No. 96-126.
Argued January 14, 1997
Decided April 15, 1997

Source: http://laws.findlaw.com/us/000/96-126.html



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Syllabus


A Georgia statute requires candidates for designated state offices to certify that they have taken a urinalysis drug test within 30 days prior to qualifying for nomination or election and that the test result was negative. Petitioners, Libertarian Party nominees for state offices subject to the statute's requirements, filed this action in the District Court about one month before the deadline for submission of the certificates. Naming as defendants the Governor and two officials involved in the statute's administration, petitioners asserted, inter alia, that the drug tests violated their rights under the First, Fourth, and Fourteenth Amendments to the United States Constitution. The District Court denied petitioners' motion for a preliminary injunction and later entered final judgment for respondents. Relying on this Court's precedents sustaining drug testing programs for student athletes, Vernonia School Dist. 47J v. Acton, 515 U. S. ___, ___, Customs Service employees, Treasury Employees v. Von Raab, 489 U.S. 656, 659 , and railway employees, Skinner v. Railway Labor Executives' Assn., 489 U.S. 602, 608 -613, the Eleventh Circuit affirmed. The court accepted as settled law that the tests were searches, but reasoned that, as was true of the drug testing programs at issue in Skinner and Von Raab, the statute served "special needs," interests other than the ordinary needs of law enforcement. Balancing the individual's privacy expectations against the State's interest in the drug testing program, the court held the statute, as applied to petitioners, not inconsistent with the Fourth and Fourteenth Amendments.

Held: Georgia's requirement that candidates for state office pass a drug test does not fit within the closely guarded category of constitutionally permissible suspicionless searches. Pp. 6-17.

(a) It is uncontested that Georgia's drug testing requirement, imposed by law and enforced by state officials, effects a search within the meaning of the Fourth and Fourteenth Amendments. The pivotal question here is whether the searches are reasonable. To be reasonable under the Fourth Amendment, a search ordinarily must be based on individualized suspicion of wrongdoing. See Vernonia, 515 U. S., at ___. But particularized exceptions to the main rule are sometimes warranted based on "special needs, beyond the normal need for law enforcement." See Skinner, 489 U.S., at 619 . When such "special needs" are alleged, courts must undertake a context specific inquiry, examining closely the competing private and public interests advanced by the parties. See Von Raab, 489 U.S., at 665 -666. In evaluating Georgia's ballot access, drug testing statute--a measure plainly not tied to individualized suspicion--the Eleventh Circuit sought to balance the competing interests in line with this Court's precedents most immediately in point: Skinner, Von Raab, and Vernonia. Pp. 6-10.

(b) These precedents remain the guides for assessing the validity of the Georgia statute despite respondents' invitation to apply a framework extraordinarily deferential to state measures setting conditions of candidacy for state office. No precedent suggests that a State's sovereign power to establish qualifications for state offices diminishes the constraints on state action imposed by the Fourth Amendment. Pp. 10-11.

(c) Georgia's testing method is relatively noninvasive; therefore, if the "special need" showing had been made, the State could not be faulted for excessive intrusion. However, Georgia has failed to show a special need that is substantial--important enough to override the individual's acknowledged privacy interest, sufficiently vital to suppress the Fourth Amendment's normal requirement of individualized suspicion. Respondents contend that unlawful drug use is incompatible with holding high state office because such drug use draws into question an official's judgment and integrity; jeopardizes the discharge of public functions, including anti drug law enforcement efforts; and undermines public confidence and trust in elected officials. Notably lacking in respondents' presentation is any indication of a concrete danger demanding departure from the Fourth Amendment's main rule. The statute was not enacted, as respondents concede, in response to any fear or suspicion of drug use by state officials. A demonstrated problem of drug abuse, while not in all cases necessary to the validity of a testing regime, see Von Raab, 489 U.S., at 673 -675, would shore up an asser tion of special need for a suspicionless general search program, see Skinner, 489 U.S., at 606 -608, Vernonia, 515 U. S., at___. In contrast to the effective testing regimes upheld in Skinner, Von Raab, and Vernonia, Georgia's certification requirement is not well designed to identify candidates who violate anti drug laws and is not a credible means to deter illicit drug users from seeking state office. The test date is selected by the candidate, and thus all but the prohibitively addicted could abstain for a pretest period sufficient to avoid detection. Respondents' reliance on this Court's decision in Von Raab, which sustained a drug testing program for Customs Service officers prior to promotion or transfer to certain high risk positions, despite the absence of any documented drug abuse problem among Service employees, 489 U.S., at 660 , is misplaced. Hardly a decision opening broad vistas for suspicionless searches, Von Raab must be read in its unique context. Drug interdiction had become the agency's primary enforcement mission. The covered posts directly involved drug interdiction or otherwise required Customs officers to carry firearms, the employees would have access to vast sources of valuable contraband, and officers had been targets of and some had succumbed to bribery by drug smugglers. Moreover, it was not feasible to subject the Customs Service employees to the kind of day to day scrutiny that is the norm in more traditional office environments. In telling contrast, the day-to-day conduct of candidates for public office attracts attention notably beyond the norm in ordinary work environments. What is left, after close review of Georgia's scheme, is that the State seeks to display its commitment to the struggle against drug abuse. But Georgia asserts no evidence of a drug problem among the State's elected officials, those officials typically do not perform high risk, safety sensitive tasks, and the required certification immediately aids no interdiction effort. The need revealed is symbolic, not "special." The Fourth Amendment shields society from state action that diminishes personal privacy for a symbol's sake. Pp. 11-16.

(d) The Court expresses no opinion on medical examinations designed to provide certification of a candidate's general health or on financial disclosure requirements, and it does not speak to drug testing in the private sector, a domain unguarded by Fourth Amendment constraints. Pp. 16-17.

73 F. 3d 1543, reversed.

X x x x.


U.S. Supreme Court

No. 96-126

WALKER L. CHANDLER, et al., PETITIONERS v. ZELL D. MILLER, GOVERNOR OF GEORGIA, et al.

[April 15, 1997]




xxxx


The Fourth Amendment requires government to respect "[t]he right of the people to be secure in their persons . . . against unreasonable searches and seizures." This restraint on government conduct generally bars officials from undertaking a search or seizure absent individualized suspicion. Searches conducted without grounds for suspicion of particular individuals have been upheld, however, in "certain limited circumstances." See Treasury Employees v. Von Raab, 489 U.S. 656, 668 (1989). These circumstances include brief stops for questioning or observation at a fixed Border Patrol checkpoint, United States v. Martinez Fuerte, 428 U.S. 543, 545 -550, 566-567 (1976), or at a sobriety checkpoint, Michigan Dept. of State Police v. Sitz, 496 U.S. 444, 447 , 455 (1990), and administrative inspections in "closely regulated" businesses, New York v. Burger, 482 U.S. 691, 703 -704 (1987).

Georgia requires candidates for designated state offices to certify that they have taken a drug test and that the test result was negative. Ga. Code Ann. §21-2%140 (1993) (hereinafter §21-2%140). We confront in this case the question whether that requirement ranks among the limited circumstances in which suspicionless searches are warranted. Relying on this Court's precedents sustaining drug testing programs for student athletes, customs employees, and railway employees, see Vernonia School Dist. 47J v. Acton, 515 U. S. ___, ___ (1995) (slip op., at 3, 19-20) (random drug testing of students who participate in interscholastic sports); Von Raab, 489 U.S., at 659 (drug tests for United States Customs Service employees who seek transfer or promotion to certain positions); Skinner v. Railway Labor Executives' Assn., 489 U.S. 602, 608 -613 (1989) (drug and alcohol tests for railway employees involved in train accidents and for those who violate particular safety rules), the United States Court of Appeals for the Eleventh Circuit judged Georgia's law constitutional. We reverse that judgment. Georgia's requirement that candidates for state office pass a drug test, we hold, does not fit within the closely guarded category of constitutionally permissible suspicionless searches.


Xxxx

Under the Georgia statute, to qualify for a place on the ballot, a candidate must present a certificate from a state approved laboratory, in a form approved by the Secretary of State, reporting that the candidate submitted to a urinalysis drug test within 30 days prior to qualifying for nomination or election and that the results were negative. §21-2%140(c). The statute lists as "[i]llegal drug[s]": marijuana, cocaine, opiates, amphetamines, and phencyclidines. §21-2%140(a)(3). The designated state offices are: "the Governor, Lieutenant Governor, Secretary of State, Attorney General, State School Superintendent, Commissioner of Insurance, Commissioner of Agriculture, Commissioner of Labor, Justices of the Supreme Court, Judges of the Court of Appeals, judges of the superior courts, district attorneys, members of the General Assembly, and members of the Public Service Commission." §21-2%140(a)(4).


Xxxx

We granted the petition for certiorari, 518 U. S. ___ (1996), and now reverse. 2

We begin our discussion of this case with an uncontested point: Georgia's drug testing requirement, imposed by law and enforced by state officials, effects a search within the meaning of the Fourth and Fourteenth Amendments. See Skinner, 489 U.S., at 617 ; Tr. of Oral Arg. 36; Brief for United States as Amicus Curiae 10 (collection and testing of urine to meet Georgia's certification statute "constitutes a search subject to the demands of the Fourth Amendment" (internal quotation marks omitted)). As explained in Skinner, government ordered "collection and testing of urine intrudes upon expectations of privacy that society has long recognized as reasonable." 489 U.S., at 617 . Because "these intrusions [are] searches under the Fourth Amendment," ibid., we focus on the question: Are the searches reasonable?

To be reasonable under the Fourth Amendment, a search ordinarily must be based on individualized suspicion of wrongdoing. See Vernonia, 515 U. S., at ___--___ (slip op., at 5-6). But particularized exceptions to the main rule are sometimes warranted based on "special needs, beyond the normal need for law enforcement." Skinner, 489 U.S., at 619 (internal quotation marks omitted). When such "special needs"--concerns other than crime detection--are alleged in justification of a Fourth Amendment intrusion, courts must undertake a context specific inquiry, examining closely the competing private and public interests advanced by the parties. See Von Raab, 489 U.S., at 665 -666; see also id., at 668. As Skinner stated: "In limited circumstances, where the privacy interests implicated by the search are minimal, and where an important governmental interest furthered by the intrusion would be placed in jeopardy by a requirement of individualized suspicion, a search may be reasonable despite the absence of such suspicion." 489 U.S., at 624 .

In evaluating Georgia's ballot access, drug testing statute--a measure plainly not tied to individualized suspicion--the Eleventh Circuit sought to " `balance the individual's privacy expectations against the [State's] interests,' " 73 F. 3d, at 1545 (quoting Von Raab, 489 U.S., at 665 ), in line with our precedents most immediately in point: Skinner, Von Raab, and Vernonia. We review those decisions before inspecting Georgia's law.

Skinner concerned Federal Railroad Administration (FRA) regulations that required blood and urine tests of rail employees involved in train accidents; the regulations also authorized railroads to administer breath and urine tests to employees who violated certain safety rules. 489 U.S., at 608 -612. The FRA adopted the drug testing program in response to evidence of drug and alcohol abuse by some railroad employees, the obvious safety hazards posed by such abuse, and the documented link between drug and alcohol impaired employees and the incidence of train accidents. Id., at 607-608. Recognizing that the urinalysis tests, most conspicuously, raised evident privacy concerns, the Court noted two offsetting considerations: First, the regulations reduced the intrusiveness of the collection process, id., at 626; and, more important, railway employees, "by reason of their participation in an industry that is regulated pervasively to ensure safety," had diminished expectations of privacy, id., at 627.

"[S]urpassing safety interests," the Court concluded, warranted the FRA testing program. Id., at 634. The drug tests could deter illegal drug use by railroad employees, workers positioned to "cause great human loss before any signs of impairment become noticeable to supervisors." Id., at 628. The program also helped railroads to obtain invaluable information about the causes of major train accidents. See id., at 630. Testing without a showing of individualized suspicion was essential, the Court explained, if these vital interests were to be served. See id., at 628. Employees could not forecast the timing of an accident or a safety violation, events that would trigger testing. The employee's inability to avoid detection simply by staying drug free at a prescribed test time significantly enhanced the deterrent effect of the program. See ibid. Furthermore, imposing an individualized suspicion requirement for a drug test in the chaotic aftermath of a train accident would seriously impede an employer's ability to discern the cause of the accident; indeed, waiting until suspect individuals could be identified "likely would result in the loss or deterioration of the evidence furnished by the tests." Id., at 631.

In Von Raab, the Court sustained a United States Customs Service program that made drug tests a condition of promotion or transfer to positions directly involving drug interdiction or requiring the employee to carry a firearm. 489 U.S., at 660 -661, 667-677. 3 While the Service's regime was not prompted by a demonstrated drug abuse problem, id., at 660, it was developed for an agency with an "almost unique mission," id., at 674, as the "first line of defense" against the smuggling of illicit drugs into the United States, id. at 668. Work directly involving drug interdiction and posts that require the employee to carry a firearm pose grave safety threats to employees who hold those positions, and also expose them to large amounts of illegal narcotics and to persons engaged in crime; illicit drug users in such high risk positions might be unsympathetic to the Service's mission, tempted by bribes, or even threatened with blackmail. See id., at 668-671. The Court held that the government had a "compelling" interest in assuring that employees placed in these positions would not include drug users. See id., at 670-671. Individualized suspicion would not work in this setting, the Court determined, because it was "not feasible to subject [these] employees and their work product to the kind of day to day scrutiny that is the norm in more traditional office environments." Id., at 674.

Finally, in Vernonia, the Court sustained a random drug testing program for high school students engaged in interscholastic athletic competitions. The program's context was critical, for local governments bear large "responsibilities, under a public school system, as guardian and tutor of children entrusted to its care." 515 U. S., at ___ (slip op., at 19). An "immediate crisis," id., at ___ (slip op., at 17), caused by "a sharp increase in drug use" in the school district, id., at ___ (slip op., at 1), sparked installation of the program. District Court findings established that student athletes were not only "among the drug users," they were "leaders of the drug culture." Id., at ___ (slip op., at 2). Our decision noted that " `students within the school environment have a lesser expectation of privacy than members of the population generally.' " Id., at ___ (slip op., at 10) (quoting New Jersey v. T. L. O., 469 U.S. 325, 348 (1985) (Powell, J., concurring)). We emphasized the importance of deterring drug use by schoolchildren and the risk of injury a drug using student athlete cast on himself and those engaged with him on the playing field. See Vernonia, 515 U. S., at ___ (slip op., at 16).


Xxxx

Our precedents establish that the proffered special need for drug testing must be substantial--important enough to override the individual's acknowledged privacy interest, sufficiently vital to suppress the Fourth Amendment's normal requirement of individualized suspicion. See supra, at 7-11. Georgia has failed to show, in justification of §21-2%140, a special need of that kind.

Respondents' defense of the statute rests primarily on the incompatibility of unlawful drug use with holding high state office.

The statute is justified, respondents contend, because the use of illegal drugs draws into question an official's judgment and integrity; jeopardizes the discharge of public functions, including anti drug law enforcement efforts; and undermines public confidence and trust in elected officials. Brief for Respondents 11-18. The statute, according to respondents, serves to deter unlawful drug users from becoming candidates and thus stops them from attaining high state office. Id., at 17-18. Notably lacking in respondents' presentation is any indication of a concrete danger demanding departure from the Fourth Amendment's main rule.

Nothing in the record hints that the hazards respondents broadly describe are real and not simply hypothetical for Georgia's polity. The statute was not enacted, as counsel for respondents readily acknowledged at oral argument, in response to any fear or suspicion of drug use by state officials:

"QUESTION: Is there any indication anywhere in this record that Georgia has a particular problem here with State officeholders being drug abusers?


[COUNSEL FOR RESPONDENTS]: No, there is no such evidence. . . . and to be frank, there is no such problem as we sit here today." Tr. of Oral Arg. 32.


See also id., at 31 (counsel for respondents affirms absence of evidence that state officeholders in Georgia have drug problems). A demonstrated problem of drug abuse, while not in all cases necessary to the validity of a testing regime, see Von Raab, 489 U.S., at 673 -675, would shore up an assertion of special need for a suspicionless general search program. Proof of unlawful drug use may help to clarify--and to substantiate--the precise hazards posed by such use. Thus, the evidence of drug and alcohol use by railway employees engaged in safety sensitive tasks in Skinner, see 489 U.S., at 606 -608, and the immediate crisis prompted by a sharp rise in students' use of unlawful drugs in Vernonia, see 515 U. S., at ___--___ (slip op., at 16-17), bolstered the government's and school officials' arguments that drug testing programs were warranted and appropriate.

In contrast to the effective testing regimes upheld in Skinner, Von Raab, and Vernonia, Georgia's certification requirement is not well designed to identify candidates who violate anti drug laws. Nor is the scheme a credible means to deter illicit drug users from seeking election to state office. The test date--to be scheduled by the candidate anytime within 30 days prior to qualifying for a place on the ballot--is no secret. As counsel for respondents acknowledged at oral argument, users of illegal drugs, save for those prohibitively addicted, could abstain for a pretest period sufficient to avoid detection. See Tr. of Oral Arg. 44-46. 4 Even if we indulged respondents' argument that one purpose of §21-2%140 might be to detect those unable so to abstain, see Tr. of Oral Arg. 46, respondents have not shown or argued that such persons are likely to be candidates for public office in Georgia. Moreover, respondents have offered no reason why ordinary law enforcement methods would not suffice to apprehend such addicted individuals, should they appear in the limelight of a public stage. Section 21-2%140, in short, is not needed and cannot work to ferret out lawbreakers, and respondents barely attempt to support the statute on that ground.

Respondents and the United States as amicus curiae rely most heavily on our decision in Von Raab, which sustained a drug testing program for Customs Service officers prior to promotion or transfer to certain high risk positions, despite the absence of any documented drug abuse problem among Service employees. 489 U.S., at 660 ; see Brief for Respondents 12-14; Brief for United States as Amicus Curiae 18; see also 73 F. 3d, at 1546. The posts in question in Von Raab directly involved drug interdiction or otherwise required the Service member to carry a firearm. See 489 U.S., at 670 ("Government has a compelling interest in ensuring that front line interdiction personnel are physically fit, and have unimpeachable integrity and judgment."); id., at 670-671 ("[T]he public should not bear the risk that employees who may suffer from impaired perception and judgment will be promoted to positions where they may need to employ deadly force.").

Hardly a decision opening broad vistas for suspicionless searches, Von Raab must be read in its unique context. As the Customs Service reported in announcing the testing program, "[Customs employees], more than any other Federal workers, are routinely exposed to the vast network of organized crime that is inextricably tied to illegal drug use." National Treasury Employees Union v. Von Raab, 816 F. 2d 170, 173 (CA51987) (internal quotation marks omitted), aff'd in part, vacated in part, 489 U.S. 656 (1989). We stressed that "[d]rug interdiction ha[d] become the agency's primary enforcement mission," id., at 660, and that the employees in question would have "access to vast sources of valuable contraband," id., at 669. Furthermore, Customs officers "ha[d] been the targets of bribery by drug smugglers on numerous occasions," and several had succumbed to the temptation. Ibid.


Respondents overlook a telling difference between Von Raab and Georgia's candidate drug testing program. In Von Raab it was "not feasible to subject employees [required to carry firearms or concerned with interdiction of controlled substances] and their work product to the kind of day to day scrutiny that is the norm in more traditional office environments." Id., at 674. Candidates for public office, in contrast, are subject to relentless scrutiny--by their peers, the public, and the press. Their day-to-day conduct attracts attention notably beyond the norm in ordinary work environments.

What is left, after close review of Georgia's scheme, is the image the State seeks to project. By requiring candidates for public office to submit to drug testing, Georgia displays its commitment to the struggle against drug abuse. The suspicionless tests, according to respondents, signify that candidates, if elected, will be fit to serve their constituents free from the influence of illegal drugs. But Georgia asserts no evidence of a drug problem among the State's elected officials, those officials typically do not perform high risk, safety sensitive tasks, and the required certification immediately aids no interdiction effort. The need revealed, in short, is symbolic, not "special," as that term draws meaning from our case law.

In Von Raab, the Customs Service had defended its officer drug test program in part as a way to demonstrate the agency's commitment to enforcement of the law. See Brief for United States in Treasury Employees v. Von Raab, O. T. 1988, No. 86-1879, pp. 35-36. The Von Raab Court, however, did not rely on that justification. Indeed, if a need of the "set a good example" genre were sufficient to overwhelm a Fourth Amendment objection, then the care this Court took to explain why the needs in Skinner, Von Raab, and Vernonia ranked as "special" wasted many words in entirely unnecessary, perhaps even misleading, elaborations.

Xxxx

However well meant, the candidate drug test Georgia has devised diminishes personal privacy for a symbol's sake. The Fourth Amendment shields society against that state action.

We note, finally, matters this opinion does not treat. Georgia's singular drug test for candidates is not part of a medical examination designed to provide certification of a candidate's general health, and we express no opinion on such examinations. Nor do we touch on financial disclosure requirements, which implicate different concerns and procedures. See, e.g., Barry v. City of New York, 712 F. 2d 1554 (CA2 1983) (upholding city's financial disclosure law for elected and appointed officials, candidates for city office, and certain city employees); Plante v. Gonzalez, 575 F. 2d 1119 (CA5 1978) (upholding Florida's financial disclosure requirements for certain public officers, candidates, and employees). And we do not speak to drug testing in the private sector, a domain unguarded by Fourth Amendment constraints. See United States v. Jacobsen, 466 U.S. 109, 113 (1984).

We reiterate, too, that where the risk to public safety is substantial and real, blanket suspicionless searches calibrated to the risk may rank as "reasonable"--for example, searches now

routine at airports and at entrances to courts and other official buildings. See Von Raab, 489 U.S., at 674 -676, and n. 3. But where, as in this case, public safety is not genuinely in jeopardy, the Fourth Amendment precludes the suspicionless search, no matter how conveniently arranged.

X x x x.


For the reasons stated, the judgment of the Court of Appeals for the Eleventh Circuit is


Reversed.


X x x x.




3. US SUPREME COURT

FERGUSON et al. v. CITY OF CHARLESTON et al.

Case No. 99-936. Decided March 21, 2001

Fourth Amendment – Warrantless Drug Testing

See: http://laws.findlaw.com/us/000/99-936.html (June 10, 2003)



Issue: Is a state hospital’s performance of a non-consensual diagnostic drug test, in order to obtain evidence of a patient’s criminal conduct for law enforcement purposes, an unreasonable search?

Facts: In April 1989, the Medical University of South Carolina (“MUSC”), which operated Charleston’s public hospital, began performing drug screens on urine samples taken from maternity patients who were suspected of using cocaine. This policy was instituted after staff members “became concerned about an apparent increase in the use of cocaine by patients who were receiving prenatal treatment.” Patients testing positive were referred to the county substance abuse commission for counseling and treatment. Despite this program, the incidence of cocaine use by maternity pati ents did not decrease. Four months later MUSC’s general counsel contacted Charleston’s Solicitor and offered “MUSC’s cooperation in prosecuting mothers whose children tested positive for drugs at birth.” The Solicitor created a task force comprised of MUSC officials, the police, county substance abuse officials and county social service officials. The task force created Policy M-7, a twelve-page document adopted by MUSC. Policy M-7 “set forth the procedure to be followed by the hospital staff to ‘identify/assist pregnant patients suspected of drug abuse.’” Patients who met one or more of nine criteria were tested for cocaine through use of a urine drug screen. (These nine criteria did not come close to establishing a probable cause standard.) A chain of custody was followed when obtaining and testing urine samples. Although Policy M-7 “provided for education and referral to a substance abuse clinic for patients who tested positive,” it also “added the threat of law enforcement intervention” which was “essential to the program’s success in getting women into treatment and keeping them there.” If drug use was detected after labor, the police were “notified without delay” and the patient was “promptly arrested.” If drug use was detected before labor, the patient was initially referred to a substance abuse counselor. If the pre-labor patient tested positive a second time or failed to show up for counseling, the police were notified and the patient was arrested. Policy M-7 also prescribed in detail the criminal offenses with which patients would be charged and set forth police post-arrest procedures, such as interrogating the patient in order to determine her drug supplier. “Other than the provisions describing the substance abuse treatment to be offered to women who tested positive, the policy made no mention of any change in prenatal care of such patients, nor did it prescribe any special treatment of the newborns.” The police were significantly involved in the practical implementation and operation of the plan. Only 30 of the 253 patients testing positive for cocaine were arrested, two of whom were prosecuted.

Petitioners were ten female patients who tested positive and were arrested under the plan. Respondents were the City of Charleston, law enforcement officials and MUSC officials. Petitioners alleged that Policy M-7 involved warrantless non-consensual drug tests conducted for criminal investigatory purposes and were therefore invalid under the Fourth Amendment. Respondents maintained that the searches were consensual and that, even absent consent, they were justified by “special” non-law enforcement purposes and were thus reasonable under the Fourth Amendment. The United States District Court, noting that the searches “were not done by the medical university for independent purposes” but that “the police came in and there was an agreement reached that the positive screens would be shared with the police,” found the searches unreasonable absent consent. The District Court submitted the factual consent defense to the jury which found for respondents. The United States Court of Appeals for the Fourth Circuit affirmed without reaching the consent issue. Instead, the Fourth Circuit ruled the searches reasonable as a matter of law under the United States Supreme Court’s “line of cases recognizing that ‘special needs’ may, in certain exceptional circumstances, justifying a search policy designed to serve non-law enforcement ends.” The Court granted certiorari to review the Fourth Circuit’s holding on the “special needs” issue.

Holding: “Given the primary purposes of the Charleston program, which was to use the threat of arrest and prosecution in order to force women into treatment, and given the extensive involvement of law enforcement officials at every stage of the policy, this case simply does not fit within the closely guarded category of ‘special needs.’” The Court assumed, for purposes of

the decision, that the searches were conducted without the informed consent of the patients. Accordingly, the Court reversed the Fourth Circuit’s judgment and “remanded for a decision on the consent issue.”

Reasoning: The Court, through Justice Stevens, stressed that MUSC was a state hospital and that its staff members were “government actors, subject to the strictures of the Fourth Amendment.” The urine tests conducted by MUSC staff members “were indisputably searches within the meaning of the Fourth Amendment.” None of the nine criteria for conducting the drug screens provided probable cause or even reasonable suspicion to conduct a search. This matter differed from other “special needs” cases because “the hospital seeks to justify its authority to conduct drug tests and turn the results over to law enforcement agents without the knowledge or consent of the patients.” In four prior “special needs” cases, where the Court had decided whether similar drug tests “fit within the closely guarded category of constitutionally permissible suspicionless searches,” the Court had “employed a balancing test that weighed the intrusion on the individual’s interest in privacy against the ‘special needs’ that supported the program.” [In Skinner v. Railway Labor Executives’ Assn., 489 U.S. 602 (1989), the Court sustained drug tests for railway employees involved in train accidents. In Treasury Employees v. Von Raab, 489 U.S. 656 (1989), the Court sustained drug tests for Customs Service employees seeking promotion to sensitive positions. In Vernonia School District v. Acton, 515 U.S. 646 (1995), the Court sustained drug tests for high school students participating in interscholastic sports. In Chandler v. Miller, 520 U.S. 305 (1997), the Court struck down drug tests for candidates for designated state offices.] The invasion of privacy involved in the Charleston drug screens “is far more substantial” than in the other “special needs” drug cases. “In the previous four cases there was no misunderstanding about the purpose of the test or the potential use of the test results, and there were protections against the dissemination of the results to third parties.” The typical hospital patient has a reasonable expectation that the result of diagnostic tests will not be shared with non-medical personnel absent consent. The “critical difference,” however, between MUSC’s test and the tests involved in prior “special needs” cases involved the nature of the “special need” asserted as a justification for the tests. In all of the earlier cases, the “special need” asserted “was one divorced from the State’s general interest in law enforcement.” In Charleston’s case, however, “the central and indispensable feature of the policy from its inception was the use of law enforcement to coerce the patients into substance abuse treatment.” Though respondents argued that their ultimate purpose was “protecting the health of both mother and child” the real purpose served by Policy M-7 was “ultimately indistinguishable from the general interest in crime control.” Indianapolis v. Edmond, 531 U.S. __, (2000)(slip op., at 15).” Whatever the ultimate goal of the program, “the immediate objective of the searches was to generate evidence for law enforcement purposes in order to reach that goal.” Given the direct and primary purposes of the Charleston program and “the intrusive involvement of law enforcement officials at every stage of the policy,” the program did not “fit within the closely guarded category of ‘special needs.’” (Since law enforcement “always serves some broader social purpose or objective,” respondents’ ultimate purpose argument could immunize any non-consensual suspicionless search by defining the search solely in terms of its ultimate objective.) While state hospital employees may have a duty to report inadvertently acquired evidence of criminal conduct to the police, “when they undertake to obtain such evidence from their patients for the specific purpose of incriminating those patients, they have a special obligation to make sure that the patients are fully informed about their constitutional rights as standards of knowing waiver require.”

Other Opinions: Justice Kennedy concurred in the judgment. He saw the majority’s distinction between the “ultimate goal” and the “immediate purpose” of a drug test as unworkable and lacking “foundation in our special needs cases.” The search could not be sustained, however, because “there was substantial law enforcement involvement in the policy from its inception.” Not one of the Court’s “special needs” precedents had “sanctioned the routine inclusion of law enforcement, both in the design of the policy and in using arrests, either threatened or real, to implement the system designed for the special needs objectives.” Kennedy conceded the legitimacy of the State’s interest in protecting the life and health of the fetus and the child. Nor did the Court’s holding “call into question the validity of mandatory reporting laws such as child abuse laws which require teachers to report evidence of child abuse to the proper authorities, even if arrest and prosecution is the likely result.” If doctors “can adopt acceptable criteria” for testing and counseling expectant mothers for cocaine use and authorities “then adopt legitimate procedures to discover this information and prosecution follows, that ought not to invalidate the testing.” Justice Kennedy also made clear that he had not “considered or resolved” the question of whether the evidence obtained through the drug tests could be used “if in fact it were obtained with the patient’s consent.”

In Part I of his dissent, Justice Scalia first noted that the only search involved in this case was the taking of the urine sample — not the hospital’s reporting of the drug test results to the police. A search that is consented to is not unreasonable. Since the urine samples were not extracted forcibly, they were only taken non-consensually if: (1) the consent was coerced by the pregnant patients’ need for medical treatment; (2) the consent for testing was uninformed because patients did not know that drug testing would be included; or (3) the consent was uninformed because patients did not know that drug test results would be turned over to the police. Scalia pointed out that under the Court’s Fourth Amendment jurisprudence, “the last two contentions would not suffice, even without reference to the special needs doctrine.” In Hoffa v. United States, 385 U.S. 293 (1966), the defendant voluntarily provided evidence of wrongdoing to a government informant who failed to disclose his true identity. The Court found no Fourth Amendment protection for a “wrongdoer’s misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it. Id. at 302.” According to Scalia, “[t]he Hoffa line of cases . . . does not distinguish between operations meant to catch a criminal in the act, and those meant only to gather evidence of prior wrongdoing.” Scalia lamented that “[u]ntil today, we have never held or even suggested that material which a person voluntary entrusts to someone else cannot be given by that person to the police, and used for whatever evidence it may contain.”

With respect to the argument, that any consent to the Charleston program was coerced by the patients’ need for medical treatment, Scalia argued that “[i]f that was coercion, it was not coercion applied by the government — and if such nongovernmental coercion sufficed, the police would never be permitted to use the ballistic evidence obtained from treatment of a patient with a bullet wound. And the Fourth Amendment would invalidate those many state laws that require physicians to report gunshot wounds, evidence of spousal abuse, and (like the South Carolina law relevant here, see S.C. Code Ann. § 20-7-510 (2000)) evidence of child abuse.” Underlying this part of Justice Scalia’s dissent is the notion that the Charleston public hospital, though owned by the state and operated by MUSC, a state agency, was not functioning as a state actor for Fourth Amendment purposes when its employees conducted the drug tests. No other Court member joined Part I of Justice Scalia’s dissent.

In Part II of his dissent, joined by Chief Justice Rehnquist and Justice Thomas, Justice Scalia assumed for purposes of argument that the taking of the urine sample was coerced and non-consensual, but maintained that “the special needs doctrine . . . properly applied, would validate what was done here.” Scalia attacked the majority’s conclusion that the drug tests were conducted not for any medical reason, but for the specific purpose of incriminating patients. “In other words, the purported medical rationale was [according to the majority] merely a pretext; there was no special need.” This conclusion contradicted the District Court’s finding of fact that the goal of Policy M-7 was to protect patients and facilitate the treatment of mother and child. The District Court’s factual finding on this issue was binding unless clearly erroneous. “Not only do I find it supportable; I think any other finding would have to be overturned.” Scalia pointed out that the tests began in 1989 without police suggestion or involvement and that patients testing positive were only referred for substance-abuse treatment, “an obvious health benefit to both mother and child.” Once the police got involved, “the hospital and police in conjunction used the testing program as a means of securing what the Court calls the ‘ultimate’ health benefit of coercing drug-abusing mothers into drug treatment.” Scalia wondered why anybody would think that the original reason for the testing suddenly disappeared or that the testing somehow turned into a pretext for arrest. There was no principled way to distinguish this case from circumstances where physicians have to report information that they come across in the course of ordinary treatment, “unless it is this: That the addition of a law-enforcement related purpose to a legitimate medical purpose destroys applicability of the ‘special needs’ doctrine.” But Scalia pointed out that the “special needs” doctrine “was developed, and is ordinarily employed, precisely have a law enforcement objective.” Scalia relied heavily on Griffin v. Wisconsin, 483 U.S. 868 (1987), a “special needs” case in which a probation officer received a tip from a police detective that the petitioner, a parolee, possessed a firearm. The probation officer, a state official charged with protecting the public interest, searched petitioner’s home without a warrant and found the weapon which was later used at Griffin’s criminal trial for unlawful possession of a firearm. The Court denied a motion to suppress, and “concluded that the ‘special need’ of assuring compliance with terms of release justified a warrantless search of petitioner’s home.” Scalia pointed out that both the law enforcement purpose and the police involvement in the Griffin search were substantial even before the search’s inception and that the probation officer’s position was analogous to that of the doctors and other medical professionals in the instance case. “It would not be unreasonable to conclude that today’s judgment, authorizing the assessment of damages against the county solicitor and individual doctors and nurses who participated in the program, proves once again that no good deed goes unpunished.”

Comment: This is the second case this term, the other being Indianapolis v. Edmond, in which the Court’s invalidation of a search turned on the question of the State’s motive in implementing a program. All of the justices in this matter seemed to assume that statutes forcing doctors to report crimes to the police are invariably proper under the Fourth Amendment. One wonders why this assumption was so readily made. If the State, by statutory enactment, forces a private citizen to become a state actor in certain circumstances, why doesn’t this constitute state action under the Fourteenth Amendment–calling into play the protections of the Constitution?

See: http://sol.lp.findlaw.com/2000/ferguson.html (June 10, 2003)




4. U.S. Supreme Court

WINSTON v. LEE, 470 U.S. 753 (1985)

470 U.S. 753

WINSTON, SHERIFF, ET AL. v. LEE
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 83-1334.
Argued October 31, 1984
Decided March 20, 1985

See: http://laws.findlaw.com/us/470/753.html (June 10, 2003)



A shopkeeper was wounded by gunshot during an attempted robbery but, also being armed with a gun, apparently wounded his assailant in his left side, and the assailant then ran from the scene. Shortly after the victim was taken to a hospital, police officers found respondent, who was suffering from a gunshot wound to his left chest area, eight blocks away from the shooting. He was also taken to the hospital, where the victim identified him as the assailant. After an investigation, the police charged respondent with, inter alia, attempted robbery and malicious wounding. Thereafter the Commonwealth of Virginia moved in state court for an order directing respondent to undergo surgery to remove a bullet lodged under his left collarbone, asserting that the bullet would provide evidence of respondent's guilt or innocence. On the basis of expert testimony that the surgery would require an incision of only about one-half inch, could be performed under local anesthesia, and would result in "no danger on the basis that there's no general anesthesia employed," the court granted the motion, and the Virginia Supreme Court denied respondent's petition for a writ of prohibition and/or a writ of habeas corpus. Respondent then brought an action in Federal District Court to enjoin the pending operation on Fourth Amendment grounds, but the court refused to issue a preliminary injunction. Subsequently, X rays taken just before surgery was scheduled showed that the bullet was lodged substantially deeper than had been thought when the state court granted the motion to compel surgery, and the surgeon concluded that a general anesthetic would be desirable. Respondent unsuccessfully sought a rehearing in the state trial court, and the Virginia Supreme Court affirmed.

However, respondent then returned to the Federal District Court, which, after an evidentiary hearing, enjoined the threatened surgery. The Court of Appeals affirmed.


Held:


The proposed surgery would violate respondent's right to be secure in his person and the search would be "unreasonable" under the Fourth Amendment. Pp. 758-767.


(a) A compelled surgical intrusion into an individual's body for evidence implicates expectations of privacy and security of such magnitude that the intrusion may be "unreasonable" even if likely to [470 U.S. 753, 754] produce evidence of a crime. The reasonableness of surgical intrusions beneath the skin depends on a case-by-case approach, in which the individual's interests in privacy and security are weighed against society's interests in conducting the procedure to obtain evidence for fairly determining guilt or innocence. The appropriate framework of analysis for such cases is provided in Schmerber v. California, 384 U.S. 757 , which held that a State may, over the suspect's protest, have a physician extract blood from a person suspected of drunken driving without violating the suspect' Fourth Amendment rights. Beyond the threshold requirements as to probable cause and warrants, Schmerber's inquiry considered other factors for determining "reasonableness" - including the extent to which the procedure may threaten the individual's safety or health, the extent of intrusion upon the individual's dignitary interests in personal privacy and bodily integrity, and the community's interest in fairly and accurately determining guilt or innocence. Pp. 758-763.


(b) Under the Schmerber balancing test, the lower federal courts reached the correct result here. The threats to respondent's safety posed by the surgery were the subject of sharp dispute, and there was conflict in the testimony concerning the nature and scope of the operation. Thus, the resulting uncertainty about the medical risks was properly taken into account. Moreover, the intrusion on respondent's privacy interests and bodily integrity can only be characterized as severe. Surgery without the patient's consent, performed under a general anesthetic to search for evidence of a crime, involves a virtually total divestment of the patient's ordinary control over surgical probing beneath his skin. On the other hand, the Commonwealth's assertions of compelling need to intrude into respondent's body to retrieve the bullet are not persuasive. The Commonwealth has available substantial additional evidence that respondent was the individual who accosted the victim. Pp. 763-766.


Xxxx


Schmerber v. California, 384 U.S. 757 (1966), held, inter alia, that a State may, over the suspect's protest, have a physician extract blood from a person suspected of drunken driving without violation of the suspect's right secured by the Fourth Amendment not to be subjected to unreasonable searches and seizures. However, Schmerber cautioned: "That we today hold that the Constitution does not forbid the States['] minor intrusions into an individual's body under stringently limited conditions in no way indicates that it permits more substantial intrusions, or intrusions under other conditions." Id., at 772. In this case, the Commonwealth of Virginia seeks to compel the respondent Rudolph Lee, who is suspected of attempting to commit armed robbery, to undergo a surgical procedure under a general anesthetic for removal of a bullet lodged in his chest. Petitioners allege that the bullet will provide evidence of respondent's guilt or innocence. We conclude that the procedure sought here is an example of the "more substantial intrusion" cautioned against in Schmerber, and hold that to permit the procedure would violate respondent's right to be secure in his person guaranteed by the Fourth Amendment.



D. THE LOCUS STANDI OF THE PETITIONER


THE PETITIONER HAS THE LOCUS STANDI AND IS QUALIFIED TO BRING THE INSTANT ACTION. HE HAS SHOWN THAT HIS RIGHT TO PRIVACY AND RIGHT AGAINST UNREASONABLE SEARCH HAS BEEN AND WILL BE VIOLATED.

Petitioner is a private sector Filipino worker and professional, i.e., a private legal practitioner (Laserna Cueva-Mercader and Assoc. Law Offices), a law professor of Far Eastern University (Manila), the founding/past president of the Las Pinas City Bar Association (LPBA),

and the incumbent chapter secretary of the Integrated Bar of the Philippines (IBP) – Pasay Paranaque Las Pinas Muntinlupa (PPLM) Chapter.

As a lawyer and as a member and chapter officer of the Integrated Bar of the Philippines (IBP), he is an “officer of the courts”. (Rule 138 and Rule 139, Rev. Rules of Court; Code of Professional Responsibility). In a limited/qualified sense, he may be deemed as a public sector judicial officer.

As a working partner of the Laserna Cueva-Mercader and Assoc. Law Offices (Las Pinas City), he is a private sector Filipino worker.

As a professor of law of FEU (Manila), he is a private sector Filipino worker.

Section 36 of R.A. 9165 requires him (and, for that matter, all Filipino private and public sector officers and employees, all high school, vocational and college students, all candidates for national and local public offices, respondents in drug-related and non-drug related criminal cases undergoing preliminary investigation stage having an imposable penalty of not less than 6 years, et. al.) to undergo the mandatory, random and suspicionless drug test imposed by the new law.

He has recently submitted to the Court a copy of the recent Department of Labor and Employment (DOLE) Department Order No. 53-03, S. 2003, published in THE PHILIPPINE STAR on September 7, 2003 entitled GUIDELINES FOR THE IMPLEMENTATION OF A DRUG-FREE WORKPLACE POLICIES AND PROGRAMS FOR THE PRIVATE SECTOR, which reiterates the policy of Sec. 36 of R.A. No. 9165 in re: the questioned mandatory, random, and suspicionless nationwide drug testing of all private workers and employees and corporate officers, which is a subject matter of the instant petition. The said Guidelines shall be effective within 6 months from its publication. (The Department of Education, the Commission on Higher Education, and the Civil Service Commission are expected to issue soon more or less the same set of guidelines covering all high schools, colleges, universities, and national and local government agencies and offices, as the case may be, in the Philippines).

Under the aforementioned DOLE Guideline he (and all private Filipino workers and corporate officers, for that matter) are required to undergo the mandatory, random and suspicionless drug test annually. The security of tenure of his current and future employment and profession as a private Filipino lawyer, law professor and worker will depend on the annual results of such mandatory, random and suspicionless drug tests. (If the Supreme Court would enforce Sec. 36 of R.A. No. 9165 among the members of the Bar and adopt the terms and conditions of the aforementioned DOLE Guideline, the security of tenure of his membership in the Bar and as an officer of the courts will likewise be covered).


E. THE PROCEDURAL ISSUES OF RIPENESS AND JUSTICEABILITY.

THE INSTANT ACTION IS RIPE FOR JUDICIAL INQUIRY AND JUDICIAL REVIEW. PETITIONER RESPECTFULLY ASKS THE COURT TO RELAX ITS DISCRETIONARY INTERPRETATION OF THE LOCUS STANDI OF THE PETITIONER, APPLYING THE DOCTRINE PRONOUNCED IN THE RECENT CASE OF LIM VS. EXEC. SEC., G.R. NO. 151445, APRIL 11, 2002, IN VIEW OF THE PARAMOUNT NATIONAL IMPORTANCE OF THE CONTROVERSIAL SUBJECT MATTER OF THIS SUIT, WHICH DIRECTLY AFFECTS THE RIGHTS OF MILLIONS OF FILIPINOS.

The Supreme Court has (and for good reason) relaxed the current doctrine on locus standi of private Filipino citizens filing urgent taxpayer’s or citizen’s suits in respect of controversial constitutional issues of paramount importance and grave national significance and which directly affect (and harm) the basic and universal human rights of millions of Filipinos. The recent case of Lim v. Exec. Sec., et. al., GR 151445, 11 April 2002 (re: the constitutionality of the 2002 RP-US Balikatan Exercises) is extensively quoted hereinbelow, thus:


xxxx. On February 1, 2002, petitioners Arthur D. Lim and Paulino P. Ersando filed this petition for certiorari and prohibition, attacking the constitutionality of the joint exercise. They were joined subsequently by SANLAKAS and PARTIDO NG MANGGAGAWA, both party-list organizations, who filed a petition-in-intervention on February 11, 2002. Lim and Ersando filed suit in their capacities as citizens, lawyers and taxpayers. SANLAKAS and PARTIDO, on the other hand, aver that certain members of their organization are residents of Zamboanga and Sulu, and hence will be directly affected by the operations being conducted in Mindanao. They likewise pray for a relaxation on the rules relative to locus standi citing the unprecedented importance of the issue involved. xxxx.

xxxx. In his Comment, the Solicitor General points to infirmities in the petitions regarding, inter alia, Lim and Ersando’s standing to file suit, the prematurity of the action, as well as the impropriety of availing of certiorari to ascertain a question of fact. Anent their locus standi, the Solicitor General argues that first, they may not file suit in their capacities as taxpayers inasmuch as it has not been shown that ““Balikatan 02-1”” involves the exercise of Congress’’ taxing or spending powers. Second, their being lawyers does not invest them with sufficient personality to initiate the case, citing our ruling in Integrated Bar of the Philippines v. Zamora. Third, Lim and Ersando have failed to demonstrate the requisite showing of direct personal injury. xxxx.

xxxx. Given the primordial importance of the issue involved, it will suffice to reiterate our view on this point in a related case:

Notwithstanding, in view of the paramount importance and the constitutional significance of the issues raised in the petitions, this Court, in the exercise of its sound discretion, brushes aside the procedural barrier and takes cognizance of the petitions, as we have done in the early Emergency Powers Cases, where we had occasion to rule:

‘x x x ordinary citizens and taxpayers were allowed to question the constitutionality of several executive orders issued by President Quirino although they were involving only an indirect and general interest shared in common with the public. The Court dismissed the objection that they were not proper parties and ruled that ‘‘transcendental importance to the public of these cases demands that they be settled promptly and definitely, brushing aside, if we must, technicalities of procedure.’’

We have since then applied the exception in many other cases. [citation omitted] This principle was reiterated in the subsequent cases of Gonzales vs. COMELEC, Daza vs. Singson, and Basco vs. Phil. Amusement and Gaming Corporation, where we emphatically held:

‘‘Considering however the importance to the public of the case at bar, and in keeping with the Court’s duty, under the 1987 Constitution, to determine whether or not the other branches of the government have kept themselves within the limits of the Constitution and the laws that they have not abused the discretion given to them, the Court has brushed aside technicalities of procedure and has taken cognizance of this petition. xxxx’’

Again, in the more recent case of Kilosbayan vs. Guingona, Jr., this Court ruled that in cases of transcendental importance, the court may relax the standing requirements and allow a suit to prosper even where there is no direct injury to the party claiming the right of judicial review. Although courts generally avoid having to decide a constitutional question based on the doctrine of separation of powers, which enjoins upon the departments of the government a becoming respect for each others’’ acts, this Court nevertheless resolves to take cognizance of the instant petitions. Hence, we treat with similar dispatch the general objection to the supposed prematurity of the action. xxxx.



III. PRAYER


WHEREFORE, premises considered, it is respectfully prayed that Sec. 36 of R.A. No. 9165 be NULLIFIED for being unconstitutional and that the respondents and the other concerned government departments and agencies be perpetually ENJOINED from implementing such unconstitutional legal provision.

x x x.




ATTY. MANUEL J. LASERNA JR.

Petitioner




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