According to the National Conference of State Legislatures, 36 states in 2011 entertained proposals for drug testing applicants for welfare and food stamps. Arizona, Florida, and Missouri enacted such proposals, and at least one Presidential candidate has entertained the idea.
The last time the issue came up in the mid to late 1990s, several attempts were made to impose the same conditions on not only the legislators enacting such laws, but on judges as well.
In 1997, the same year Louisiana mandated drug testing for certain adult recipients of public assistance (HB 2435), the state enacted a process for random drug testing of all “elected officials” (HB 646). The elected officials plan was struck down in 1998 by the Federal courts when Justice of the Peace Phillip O’Neill and other elected officials challenged the law. (O’Neill v. Louisiana., E.D. La. 1998, 61 F.Supp.2d 485, affirmed 197 F.3d 1169, cert. denied 120 S.Ct. 2740, 530 U.S. 1274, 147 L.Ed.2d 2005).
Undaunted, in 2006 an amendment to the Louisiana constitution (SB 274 of 2006) and bill (SB 361) were introduced that specifically targeted state judges for drug testing and that repeated almost verbatim the text of the law struck down by the federal courts, most particularly in the legislative declaration portion of the bills.
The legislature declares the interest of the state in ensuring that those who are elected to serve in public office as judges in any trial or appellate court within this state are persons who have a respect for the laws they are sworn to uphold and are persons of integrity, sound judgment, reliability, and seriousness of purpose. The legislature finds that judges are in a critical position to protect the citizens of the state of Louisiana from the numerous illegal activities associated with illegal drugs, and to ensure access to courts and other constitutional rights. The legislature finds that the use of illegal drugs by judges will put the citizens of the state of Louisiana in danger because judges who use illegal drugs cannot provide the state and its citizens with fair and impartial trials. The legislature finds that the use of illegal drugs which may impair the physical or mental ability of a judge to function effectively in all aspects of his duties cannot be condoned, and therefore the state has a compelling interest in establishing a requirement that all judges demonstrate that they do not use illegal drugs, without the necessity of showing any measure of individualized suspicion.
Interestingly, when Louisiana tried again in 2010 for a voluntary drug testing (and psychological evaluation) program for elected officials (HB 1352) it was focused only on statewide elected officials in the executive branch listed in Art. IV, Sec. 3 of the state constitution and legislators.
Several similar bills, either targeting judges in particular or sweeping them in as “elected officials”, have been introduced in state legislatures. Many seek to avoid the Fourth Amendment problems found by the O’Neill court by making the programs voluntary. Most recently South Carolina’s Senate in 2008 approved a voluntary plan for testing that state’s judges, however the bill died in the House Judiciary Committee and was apparently never reintroduced.
Ohio HB 343 Mandatory drug testing for Supreme Court Justices, members of the General Assembly, the board of directors of JobsOhio, and recipients of Troubled Asset Relief Program money. Carried over into 2012 session.
Oklahoma SB 538 Mandatory drug testing for Temporary Assistance for Needy Families recipients and all “state elected officials”. Those declining must submit to substance abuse program. Carried over into 2012 session.
Oregon HB 2635 Mandatory drug testing for Supreme Court and Court of Appeals Judges and other elected officials specified by title. Died in committee.
South Carolina SB 1070 Voluntary for any “popularly elected office or an office elected by the General Assembly”. (In South Carolina, judges are elected by the General Assembly). Approved by full Senate. Died in House.
New Mexico SB 36 Voluntary drug testing for all “elected officials”. Died in committee.
Oregon HB 2306 Mandatory drug testing for Supreme Court and Court of Appeals Judges and other elected officials specified by title. Died in committee.
Missouri HB 1646 Mandatory drug testing for “all state elected officials”. Died in committee.
Louisiana SB 274 (Constitutional Amendment) Requires judiciary commission develop and implement a program of random drug testing for elected judges. Died in committee.
Louisiana SB 361 Requires judiciary commission develop and implement a program of random drug testing for elected judges. Died in committee.
New Mexico SB 20 Voluntary drug testing for all “elected officials”. Died in committee.