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Taxpayer Tab Mounts In Welfare Drug Testing Legal Fight

Taxpayers are on the hook for at least $307,000 — and perhaps much more — to cover legal expenses in Gov. Rick Scott’s repeated failed efforts to convince courts that a onetime campaign pledge to drug-test welfare recipients is constitutional.

A federal appeals court last week ruled that the state’s mandatory, suspicion-less drug testing of applicants in the Temporary Assistance for Needy Families, or TANF, program is an unconstitutional violation of Fourth Amendment protections against unreasonable searches and seizures by the government.

It was the fourth court decision against the state since the law — something Scott campaigned on during his first bid for office the year before — went into effect in mid-2011. A federal judge put the law on hold less than four months after it passed, siding with the American Civil Liberties Union of Florida and the Florida Justice Institute, which filed the lawsuit on behalf of Luis Lebron, a single father and Navy veteran.

Thus far, the state has racked up $307,883.62 in legal fees and costs in the case, according to Department of Children and Families spokeswoman Michelle Glady. That does not include potentially hefty charges for legal fees from the ACLU.

Scott has not yet said whether he will appeal the unanimous ruling last week by a three-judge panel of the 11th U.S. Circuit Court of Appeals. The governor could seek an “en banc” review by the full appeals court or take the issue directly to the U.S. Supreme Court.

Republican legislative leaders said Monday they support Scott on the drug-testing issue.

“I think it’s appropriate to defend the law that was passed by a bipartisan majority of members of the House,” House Speaker Steve Crisafulli, R-Merritt Island, said. The law was approved 78-38 in the House and 26-11 in the Senate, with support from two House Democrats and no Senate Democrats.

Senate President Andy Gardiner, R-Orlando, “supports the policy and the governor’s defense of the law, which was passed by a democratically elected legislature,” Gardiner spokeswoman Katie Betta said.

But ACLU of Florida Executive Director Howard Simon, who blamed the governor and the Legislature for the cost to taxpayers, blasted Scott for refusing to back down.

“The governor trapped himself into this problem by making a campaign pledge when he was a candidate for governor in 2010, in my view shamelessly exploiting ugly stereotypes about people needing temporary assistance,” Simon said. “It is just a shame that the taxpayers of the state of Florida end up paying that much money and perhaps a lot more for the governor’s ill-conceived, unconstitutional crusade. … Someone needs to send him an e-mail and tell him that the election is over. He’s been re-elected and there’s no reason to waste taxpayers money anymore on clearly unconstitutional crusades.”

In last week’s 54-page opinion authored by appeals-court Judge Stanley Marcus, the Atlanta-based court again rejected Scott’s arguments that the drug tests are needed to ensure that children in poor families grow up in drug-free homes. Also, the state has argued that TANF applicants give up privacy rights by consenting to urine tests to be eligible for benefits.

The law “offends the Fourth Amendment,” Marcus wrote, and relied on the state’s own evidence showing that, during the short time that the law was in effect, fewer than 3 percent of TANF applicants tested positive for drugs.

“Of course, citizens do not abandon all hope of privacy by applying for government assistance. By virtue of poverty, TANF applicants are not stripped of their legitimate expectations of privacy — they are not employees in dangerous vocations or students subject to the (power) of the state,” Marcus wrote.

Scott, meanwhile, has been forced to capitulate on an executive order requiring all state employees to submit to urine tests. The federal appeals court ruled last year that the governor could not constitutionally justify drug testing for all types of state workers without a reason. Scott and lawyers for the ACLU of Florida, which represents the state workers’ union, haggled for months before reaching consensus on the classes of jobs that could be eligible for the tests. The U.S. Supreme Court this summer refused to hear an appeal in the case, which is pending before a federal judge in Miami.

by Dara Kam, The News Service of Florida