FL laws challenge U.S. Constitution, state coffers

Gov. Scott and state legislators are testing the boundaries of constitutional protections.

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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 Tennessee’s legislature had such a proposal, but it has recently been withdrawn.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 testing 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.

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