Washington Constitution Article 1, Section 7: The Argument for Broader Protection Against Employer Drug Testing

COMMENTS Washington Constitution Article 1, Section 7: The Argument for Broader Protection Against Employer Drug Testing Ken Davis * I. INTRODUCTION As the United States Supreme Court further restricts the civil liberties of individuals through its denial of protection under the United States Constitution, the supreme courts of various states, including Washington, have increasingly been called on to re-extend these liberties through their own constitutions.1 One example of this restriction of individual rights is reflected in the recent United States Supreme Court Fourth Amendment decisions regarding employer drug testing of employees without a basis of individualized suspicion of drug use.2 In these decisions, the Court continues to erode the privacy rights of employees against drug testing by adopting a restrictive interpretation of the Fourth Amendment. State courts, in response, should attempt to protect these rights through an independent interpretation of their analogous search and seizure provisions. To date, the Washington Supreme Court has yet to decide whether random drug testing in the absence of individualized * B.A. 1989, Whitman College; J.D. 1992 cum laude, University of Puget Sound School of Law; Associate, Preston Thorgrimson Shidler Gates & Ellis, Seattle, Washington. 1. See, e.g., Batchelder v. Allied Stores Int'l, 445 N.E.2d 590 (Mass. 1983) (finding state constitutional right to solicit signatures in shopping mall); State v. Schmid, 423 A.2d 615 (N.J. 1980), appeal dismissed, 455 U.S. 100 (1982) (finding state constitutional right to distribute political literature on private university); State v. Boland, 115 Wash. 2d 571, 800 P.2d 1112 (1990) (finding state constitutional privacy right in garbage placed outside home for collection); Seattle v. Mesiani, 110 Wash. 2d 454, 755 P.2d 775 (1988) (holding sobriety checkpoints violative of state constitutional privacy right). 2. See Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602 (1989); National Treasury Employees Union v. Von Raab, 489 U.S. 656 (1989). 1335 1336 University of Puget Sound Law Review [Vol. 16:1335 suspicion is constitutionally sound.3 The issue is ripe for review. The historical basis of the Washington constitutional provision and recently established precedent provide a sound foundation for the Washington court to rule that the Washington Constitution grants greater protection from employer drug testing than its federal counterpart. This Comment will analyze Article 1, Section 7 of the Washington Constitution, the search and seizure provision, and conclude that this provision should be construed to provide greater protection to employees against employer drug testing absent individualized suspicion than the Fourth Amendment does. The scope of this Comment, however, is limited to the rights of state employees with respect to suspicionless drug testing. The rights of federal employees are not included in this analysis because they are protected against suspicionless drug testing only by the Fourth Amendment, not by the analogous Washington provision. Moreover, Article 1, Section 7, like the Fourth Amendment, only protects individuals against state action, not private action.4 Thus, the drug testing programs that are germane to the topic of this Comment are those mandated by state government. The scope of this Comment is also limited to employer drug testing of employees after the creation of the employer-employee relationship. That is, this Comment does not specifically address the issue of the constitutionality of pre-employment drug testing as a part of the employee screening process. Section II briefly summarizes current Fourth Amendment doctrine as to bodily searches not based on individualized suspicion and then presents the most recent decisions of the United States Supreme Court on employer drug testing. Section III discusses the Washington Supreme Court's evolving interpretation of Article 1, Section 7, the Washington Constitution's analogous provision to the Fourth Amendment. From this discussion, Section III concludes that the constitutional 3. The question of the extent of protection offered by WASH. CoNsT. art. 1, § 7 against mandatory drug testing was presented to the court in Alverado v. Washington Public Power Supply System, 111 Wash. 2d 424, 759 P.2d 427 (1988), cert. denied, 490 U.S. 1004 (1989). The court ruled, however, that state law (and thus the Washington Constitution) was preempted by federal law because the drug testing regulations in question were promulgated by a federally regulated nuclear power plant. Id. at 436-37, 759 P.2d at 433-34. 4. See Southcenter Joint Venture v. National Democratic Policy Comm., 113 Wash. 2d 413, 427-29, 780 P.2d 1282, 1289-90 (1989) (closing the door on the possibility that non-state action would be covered under the Washington Constitution). 1993] Employer Drug Testing 1337 history, contemporary Washington precedent, and particular privacy issues implicated by drug testing support increased protection under the Washington Constitution. Finally, Section IV explores how other states have interpreted their state constitutions with respect to drug testing issues, but concludes that this precedent provides little guidance for the Washington Supreme Court. II. CURRENT FOURTH AMENDMENT ANALYSIS: SKINNER, VON RAAB, AND THE DEMISE OF THE INDIVIDUALIZED SUSPICION REQUIREMENT The Fourth Amendment provides: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but on probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.5 Fourth Amendment jurisprudence as to bodily searches not based on individualized suspicion has undergone a thorough transformation under the reign of the Rehnquist court. Until recently, probable cause has been a prerequisite for a full-scale search, whether the search was conducted under the authority of a warrant or under one of the recognized exceptions to the warrant requirement. 6 Thus, under the Fourth Amendment, individualized suspicion was a fundamental prerequisite to a bodily search by the government.7 This requirement had been lifted only with respect to prison inmates.8 5. U.S. CONST. amend. IV. 6. See, e.g., Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 637-38 (1989) (Marshall, J., dissenting). 7. See, e.g., New Jersey v. T.L.O., 469 U.S. 325, 358 (1985) (Brennan, J., dissenting). 8. Id. (citing Bell v. Wolfish, 441 U.S. 520, 558-60, (1979)). Furthermore, the established exception for administrative searches did not entirely dispense with the requirement of individualized suspicion. Although it has been stated that the requirements for an administrative search may be less onerous, see CHARLES H. WHITEBREAD & CHRISTOPHER SLOBAG, CRIMINAL PROCEDURE ch. 13 (2d ed. (...truncated)