Gov. Rick Scott intends to take his fight for random drug tests of tens of thousands of state employees all the way to the U.S. Supreme Court, a lawyer for the Republican governor told a federal judge Thursday.
But Charles Trippe, who was previously Scott's general counsel and is now in private practice, could not persuade U.S. District Judge Ursula Ungaro to delay further proceedings in the case while the state appeals. Ungaro said she did not want to become "a political tool" in the controversial issue — and she also said Scott has "probably about zero" chance of winning a Supreme Court case.
"I just don't think it has likelihood of success," said Ungaro, who previously declared Scott's January 2011 drug-testing executive order an unconstitutional violation of the workers' privacy rights.
The case affecting some 85,000 state employees as well as many job applicants is back before Ungaro because the 11th U.S. Circuit Court of Appeals concluded her April 2012 ruling in was too broad. The appeals court said in May of this year that some workers can legitimately be tested — such as those in law enforcement and sensitive safety jobs — and Ungaro planned to appoint a special master to come up with a proposed list of those positions.
Trippe wanted Ungaro to delay that exhaustive process so the governor can pursue the Supreme Court appeal, which would likely push the case well into election-year 2014. But Ungaro would not issue that order Thursday, even though an attorney for the American Federation of County, State and Municipal Employees did not object.
"How are you going to avoid it? Do we hope the governor will be voted out of office?" Ungaro said of the legal case. "Is this the idea, keep the ball up in the air, pray he is not re-elected?"
The judge said she would not delay the case unless Scott agreed to scrap the executive order should the Supreme Court decline to review it.
"I certainly can't say that," Trippe replied.
The executive order has been on hold pending the outcome of the lawsuit, filed by AFCSME and the American Civil Liberties Union. Also on hold is implementation of a similar state law that gives agency department heads authority to devise their own drug-testing programs, said union attorney Shalini Agarwal.
Ungaro set another hearing for Oct. 11 and urged the two sides to come up with a way forward. For example, the judge suggested the two sides work together on narrowing down which job categories might be exempt from drug testing and which could be covered by it.
"I have no desire to see the citizens of the state of Florida exposed to any more expense," she said.
Trippe, however, said the governor's office may return to the October hearing "with the same position we have today" seeking to delay the case.
"That's fine," the judge replied. "And, I may deny it."