New Laws Challenge Constitution and Coffers

In the one and a half years since taking office, Gov. Rick Scott has aggressively advanced a series of laws and executive orders that have challenged the boundaries of accepted constitutional protections. (Photo by Gage Skidmore.)

By Tristram Korten
Florida Center for Investigative Reporting

When Maria Kayanan answered the door of the ACLU’s Miami headquarters one morning in October 2011, she saw a woman in jeans and a T-shirt standing outside.

Kayanan, the associate legal director of the Florida Chapter’s office, was about to explain that the nonprofit law center did not accept walk-in clients.

“That’s all right,” she remembered the woman saying. “I’m a process server.”

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Then she handed Kayanan a subpoena.

As the document explained, lawyers with Gov. Rick Scott’s office were demanding articles, opinion polls and statements related to the American Civil Liberty Union’s position on mandatory drug-testing laws. Another subpoena wanted to force ACLU lawyers to testify about the documents. The subpoena was related to a lawsuit the ACLU was filing on behalf of state employees challenging the governor’s order on drug testing.

“My reaction was astonishment,” Kayanan said. “We’re not a party to the lawsuit — we’re their lawyers. Lawyers represent clients and don’t generally get subpoenaed to give testimony on their clients.”

The ACLU quickly filed a motion opposing the subpoena, and U.S. Magistrate Judge Edwin Torres ruled in their favor, writing that the documents the governor’s lawyers demanded “have almost nothing to do with the claims or defenses in this case.”

“It was an intimidation tactic,” said Randall Marshall, Florida ACLU’s legal director.

The state ended up losing that case. U.S. District Judge Ursula Ungaro ruled in April that the blanket testing of state workers indeed violated the Fourth Amendment.

In the one and a half years since taking office, Gov. Scott, backed by a state legislature with a Republican super-majority and Republican Atty. Gen. Pam Bondi, has aggressively advanced a series of laws and executive orders that have challenged the boundaries of accepted constitutional protections. When challenged, lawyers for the state have fought back vigorously, in court and in public.

“Florida does seem to be pushing the boundaries of our conventional understanding of the constitution, and really testing what has been accepted,” said Steven Schwinn, an associate professor of law at John Marshall Law School in Chicago and a contributor to the SCOTUS blog, which is dedicated to constitutional issues.

“I would say we’re number one in anti-civil rights legislation,” said Fletcher Baldwin, a constitutional law scholar at the University of Florida who has monitored such legislation nationwide. “At least as interpreted by the federal constitution and the federal courts.”

Florida’s effort to challenge constitutional protections has resulted in a raft of lawsuits that claim the state is violating a variety of rights. The ACLU, which is involved in at least eight suits, was forced to hire two additional lawyers to help, in part, with the workload.

The ACLU has sued past administrations, including taking on Gov. Jeb Bush during his two terms in office over a ban on public university funds being used for travel to Cuba in 2006 and a 2002 challenge to a school voucher program. But the Scott administration stands out. “This is a pretty increased pace of litigation,” said Marshall, who has been with the Florida ACLU for 18 years.

Scott’s press office declined to comment for this story. Conservative think tanks such as the American Enterprise Institute and advocacy groups including the Federalist Society also declined repeated requests for comment.

Among the most prominent of the current cases in Florida:

  • The ACLU, on behalf of an unemployed man receiving state aid known as Temporary Assistance for Needy Families, challenged the governor’s order requiring drug tests for welfare recipients. The ACLU alleges the testing violates the Fourth Amendment’s right to be free from unlawful search and seizure.
  • The previously mentioned case regarding random drug tests for state employees. The ACLU and a union for state employees challenged drug tests being imposed on state workers as a condition of employment. A judge has declared the rule unconstitutional.
  • A group of physicians and medical associations are challenging a new law that prohibits doctors from asking whether a patient has firearms at home if it is not directly related to the patient’s visit. The lawsuit claims this is a violation of the First Amendment’s right to free speech and free exchange of ideas.
  • Civic groups and individuals have sued to challenge at least four new laws that allegedly violate voting rights by, among other things, making it harder for third-party groups to register and limiting early voting opportunities.

(Florida factors prominently in another constitutional challenge; it is the lead plaintiff in a 26-state effort to overturn the federal Affordable Care Act, a lawsuit that was initiated before Scott took office.)

Meanwhile, in state court, Florida Legal Services took up the case of a blind woman in the Miami area living on government assistance who challenged the governor’s efforts to make sweeping rule changes, claiming they interfered with her ability to receive assistance. A judge ruled in her favor, finding that Scott had overstepped his constitutional authority. Another judge ruled against the governor’s and the legislature’s efforts to compel state employees to pay 3 percent of their salary into a pension fund. States across the country are eyeing measures such as this to shore up underfunded pension systems. But the objection in this case was the state’s method — appropriation, not renegotiation. A lawsuit by 11 state employees claimed this rule amounted to taking private property without full compensation and breaching the right to collective bargaining.

Florida’s legislative initiatives appear to be an inspiration for other states. More than 20 are crafting measures to test welfare recipients for drugs, including Wyoming, Illinois and Maryland. A proposal in Colorado was killed in the house earlier this year in a bipartisan split.

“They are all pretty clearly citing Florida as their example,” Florida ACLU spokesman Derek Newton said. “We’ve received a flood of calls for help from ACLU affiliates around the country.”

The case involving a doctor’s right to ask patients about firearms in the house is also being closely watched elsewhere. The law originated in the legislature, but was vocally supported by Scott, who signed it into law.

“Other states have been considering legislative proposals that would impede on the right of doctors to inquire about firearms,” said Bruce Manheim, a Washington D.C., lawyer handling the case pro bono. Those states include Minnesota, Virginia, West Virginia and Oklahoma. Tennessee’s legislature had such a proposal, but it has recently been withdrawn.

The case developed after a pediatrician asked a patient about guns in the house, and the patient complained that the question was intrusive. The doctor explained that he routinely asks parents about firearms in the house so that he can counsel them on the need to properly store weapons so they are not accessible to children.

What makes these legal battles frustrating for plaintiffs such as the ACLU is that there is a body of legal precedent for these issues. Mandatory drug tests for welfare recipients in Michigan was struck down by a federal court in 1999, a decision upheld on appeal, although Gov. Scott inspired Michigan lawmakers this year to resurrect their earlier effort. Drug tests have repeatedly been ruled as unconstitutional when applied to state employees.

“The U.S. Supreme Court is ultimately where he [Scott] has to go to change the law,” Marshall said about testing state employees for drugs. “The courts have repeatedly ruled that the Fourth Amendment applies when the government is the employer.”

After the court ruled against Scott’s ability to test state workers for drug use, he vowed to appeal.

Many observers believe elected officials are passing these laws with the full knowledge they won’t be implemented — and are doing this solely for political purposes.

“All of these efforts amount to a political statement,” Chicago professor Schwinn said. “The legislators can’t have a reasonable expectation that these things would go into effect or be upheld.”

University of Florida professor Baldwin agrees: “I don’t think they have a snowball’s chance in hell of winning any of these federal challenges.” He terms the policies “arrogant legislation” because they “thumbed [their] nose at the constitution, at least as interpreted by the federal courts.”

Defenders of these initiatives obviously have a different perspective.

Marion Hammer, former president of the National Rifle Association and the organization’s Florida lobbyist, asserts that limiting doctors’ inquiries about firearms was not a violation of the constitution. In fact, she argues, it protects the privacy rights of patients who could have insurance coverage denied if gun ownership information was put into a medical file.

“This is absolutely not unconstitutional because it doesn’t interfere with doctors giving information to patients. It protects patients’ privacy from intrusion into areas where doctors have no business exploring,” she said. “Patients go to doctors for medical care, not to have their privacy rights violated.”

Hammer said the NRA helped craft the legislation the governor passed.

The governor’s press office and the attorney general’s office both declined to comment on whether Scott asked for legal opinions before advancing the laws and policies he has initiated. State legal advisors, if used, would have briefed Scott on whether these laws could be implemented and defended in court.

Because Scott’s office won’t comment on the process, it’s unclear whether the governor knew of the legal vulnerabilities before signing these bills into law.

However, the ACLU and Manheim said the governor should have known. Both sent letters announcing their intent to sue if these laws were passed.

Another factor the state would have to consider is the cost of defending controversial laws during high unemployment, steep cuts to education and services, and repeated budget shortfalls. According to contracts the Florida Center for Investigative Reporting obtained, Florida has:

  • Agreed to pay the law firm Alston & Bird $400,000, plus up to $100,000 in expenses, to defend the governor’s order in state court that all state employees must pay 3 percent of their salary into a pension fund. In March, a judge ruled against the governor, and the state allocated another $300,000 to appeal the ruling.
  • Paid the Washington, D.C., law firm Wiley Rein $148,000 to represent it in one of several voting rights lawsuits in which the state is involved.
  • Hired GrayRobinson P.A. for $70,000 annually, plus expenses, to help with discovery in the case involving drug tests for welfare recipients and another $8,500 for an expert witness.

The bills could get much more higher if the state loses any of the federal suits, because federal law allows for the recovery of legal fees in cases alleging government violations of the U.S. Constitution. The statute is designed to deter legislators from writing unconstitutional laws in the first place, and to make sure citizens can challenge the government when they do. If these lawsuits are ruled against Florida at the appellate level, the state could lose millions.

Gov. Scott and his legislature appear unbowed by the controversy and criticism. He recently signed a new law allowing students to give inspirational messages at school assemblies, including prayers.

The law takes effect in July.

Again, civil rights groups vow to sue.