JUDGES BACK BAN ON DRUG-TESTING

NEW ORLEANS -- A 1997 Louisiana law that requires random drug testing of
elected officials is unconstitutional, a federal appellate court ruled
Tuesday.

A three-judge panel of the 5th U.S. Circuit Court of Appeals agreed with
U.S. District Judge Eldon Fallon of New Orleans, who struck down the law in
fall 1998. In doing so, Fallon said the law violates the Fourth Amendment
right to be free from unreasonable search and seizure.

"We are satisfied that the district court committed no reversible error ...
and that all rulings of the district court should be affirmed for
essentially the reasons set forth in the complete and well-crafted opinion
of that court," the appeals court panel wrote in a one-paragraph opinion
released Tuesday.

A spokeswoman for Gov. Mike Foster, who helped argue the state's case before
Fallon last year, said the state will appeal the panel's decision.

"The Louisiana Legislature continues to ignore the Constitution of the
United States," New Orleans lawyer William Rittenberg, who represented state
Rep. Arthur Morrell of New Orleans in the case, said after the 5th Circuit
opinion was issued. Morrell voted against the drug testing measure and later
filed suit against the law.

The 5th Circuit panel, which heard oral arguments in the case just three
weeks ago, consisted of Circuit Judges Jacques Wiener Jr. and Carl Stewart
and U.S. District Judge John Shaw of Lafayette, who sat by designation. Shaw
died Friday at the age of 68 after having surgery for a ruptured aortic
aneurysm.

Testing was scheduled to begin last January. The goal of the drug-testing
program was to test about 10 percent of Louisiana's 4,000 elected officials
this year and then gradually increase that number in following years until
about half of the elected officials were tested each year.

Attorneys for the state had argued to the 5th Circuit panel on Dec. 6 that
the drug-testing law is "not a perfect statute" but does help to "ensure the
integrity" of the elected officials. But Rittenberg and others countered
that the Louisiana law is no different from a Georgia law that the U.S.
Supreme Court struck down in 1997. The Georgia law required political
candidates to pass drug tests. The high court said drug testing of political
hopefuls invades their Fourth Amendment privacy rights unless the government
can prove a "special need" to test them.

Attorneys for Foster, Commissioner of Administration Mark Drennan, state
Health Secretary David Hood and the state Board of Ethics, which was given
the responsibility of adopting rules for conducting the tests, had asked the
5th Circuit to reverse Fallon and declare the Louisiana law constitutional.
The law did not include the state's judges because the Ethics Board does not
regulate judges.

Foster has said he doubts many elected officials in Louisiana would test
positive for illegal drugs, but he said it was important to set an example
for the rest of the state. Foster and other members of his staff got an
all-clear on drug tests they took last year.

Under the drug-testing law, once an elected official was randomly selected
for drug testing, a notice of the selection would be delivered by a
commercial service. The official then would have 32 hours after notification
to take a urine test. If an elected official refused to show up for a test,
the Ethics Board could hold a public hearing and impose a fine of up to
$10,000, along with a public censure of the official.

The identity of an elected official who tests positive the first time would
be kept secret, according to the law. A second test would be administered
within six months.