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City and County of Denver and Federico Pena v. Casados10/4/1993
In Casados v. City and County of Denver, 832 P.2d 1048 (Colo. App. 1992), the Colorado Court of Appeals held that the plaintiffs stated a claim under the Fourth Amendment that certain provisions of an Executive Order issued by the Mayor of the City and County of Denver are facially unconstitutional. We reverse and remand for further proceedings consistent with this opinion.
I
On October 27, 1988, then Mayor Federico Pena of the City and County of Denver issued Executive Order No. 94 (the Order). Among other things, the Order implemented for non-law-enforcement purposes a mandatory blood- and urinalysis-drug-testing program for Denver employees. In April of 1990, the Denver District Court granted leave to the plaintiffs to file an amended class action complaint raising, among other issues, a facial challenge under the Fourth Amendment to the Order's provisions for alcohol and drug testing based on reasonable suspicion of alcohol or drug use or impairment. The defendants responded with a motion to dismiss under C.R.C.P. 12(b)(5), and on June 25, 1990, the district court issued a two-sentence order stating:
IT IS ORDERED, based upon the memorandum briefs submitted, that Defendants' Motion to Dismiss shall be and the same is hereby GRANTED.
IT IS FURTHER ORDERED that a judgment of dismissal, with prejudice, be and the same is hereby entered in favor of the Defendants and against the Plaintiffs.
The plaintiffs appealed, and the court of appeals reversed. See Casados, 832 P.2d 1048. The court of appeals held that the plaintiffs did state a claim that the Order's provisions for drug testing based on reasonable suspicion of alcohol or drug use or impairment are facially invalid under the Fourth Amendment. Id. at 1052-54. The court based this holding on the view that even if there is reasonable suspicion that a government employee is under the influence of a drug or alcohol, or is using an illicit drug, it is unconstitutional for the government to require the employee to take a blood or urine test unless that employee works in a safety-sensitive position. Id. at 1053. Because the court construed the Order as covering all employees, id., it remanded the case in order to give the plaintiffs an opportunity to prove the facts that would entitle them to relief, id. at 1053-54, specifically, that they do not hold safety-sensitive positions, and that their other material allegations are true.
We granted certiorari to determine whether the court of appeals erred in its analysis of the plaintiffs' Fourth Amendment challenge to the facial constitutionality of the Order's provisions for reasonable suspicion testing. We do not agree that the plaintiffs have stated a claim under the Fourth Amendment that the Order's provisions for testing based on reasonable suspicion of alcohol or drug use or impairment are facially invalid. However, the plaintiffs are entitled to pursue their as-applied constitutional challenges to the Order, as well as any remaining claims made by them in their amended complaint and asserted on appeal that were not addressed by the court of appeals. Accordingly, we reverse and remand for further proceedings consistent with this opinion.
II
Our analysis of the plaintiffs' facial challenge to the constitutionality of the Order is guided primarily by two recent decisions by the United States Court of Appeals, specifically, American Federation of Government Employees, Local 2391 v. Martin, 969 F.2d 788 (9th Cir. 1992), and National Treasury Employees Union v. Yeutter, 918 F.2d 968 (D.C. Cir. 1990). These decisions are in turn guided in significant part
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