FL laws challenge U.S. Constitution, state coffers

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

click to enlarge PREACHING TO THE CONVERTED: Gov. Rick Scott speaks at the Conservative Political Action Conference in September 2011 in Orlando. - Gage Skidmore/FCIR
Gage Skidmore/FCIR
PREACHING TO THE CONVERTED: Gov. Rick Scott speaks at the Conservative Political Action Conference in September 2011 in Orlando.

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.”

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.