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SEGRETT MIDDLEBROOKS, Plaintiff-Appellee
vs.
WAYNE COUNTY MAYBURY MEDICAL CLINICS INC. BIOANALYTICAL PROCEDURES INC. PERRY HEALTH NET LABORATORY SERVICES INC. and BCP ENTERPRISES INC., Defendants-Appellants.
 
Case:
Nos. 96078 96086 96090
 
Location:
SUPREME COURT OF MICHIGAN
 
Date:
August 23, 1994, Decided
 
Attorneys:
James Schuster [4000 Town Center Suite 1730 Southfield MI 48075] for the plaintiff. Saul A. Green Corporation Counsel and Ellen E. Mason Assistant Corporation Counsel [600 Randolph 2nd Floor Detroit MI 48226] for defendant Wayne County Law Offices of Schwartz & Jalkanen (by Melvin Schwartz and Anne Loridas Randall) [24400 Northwestern Highway Suite 200 Southfield MI 48075] for defendant Maybury Medical Clinics Inc. Zamplas Nystrom Johnson & Cavanagh P.C. (by Christine Marakas Battle) [2550 Telegraph Road Ste. 250 Bloomfield Hills MI 48302] for defendants Bioanalytical Procedures Inc. and Perry Health Net Laboratory Services. Amici Curiae: Bodman Longley & Dahling (by Jerold Lax and Karen L. Piper) [110 Miller Ave. Suite 300 Ann Arbor MI 48104-1339] for Michigan Municipal League Michigan Townships Association Michigan Association of Counties and County Road Association of Michigan.
 
Court:
Chief Justice Michael F. Cavanagh Associate Justices Charles L. Levin James H. Brickley Patricia J. Boyle Dorothy Comstock Riley Robert P. Griffin Conrad L. Mallett Jr.
 
Author:
The Hon. Justice Charles L. Levin
 

The question presented is whether a person who applies to Wayne County for a permanent position that involves driving heavy equipment near and on public highways *fn1 may consistent with the Search and Seizure Clauses of the state and federal constitutions be required to submit to urinalysis testing.

The permanent position involves operation of heavy equipment that might result in serious injury from even a "momentary lapse of attention" characteristic of illegal drug use. *fn2

We find that as a result of his application for such a position with a governmental agency Middle brooks had a reduced expectation of privacy in not being subjected to urinalysis drug screening by the government.

We conclude that urinalysis testing in connection with an application for this permanent position with a governmental agency is not violative of the Search and Seizure Clause and reverse the decision of Court of Appeals.

I

Segrett Middle brooks was a seasonal service worker with Wayne County from May 1984 until November 1984. *fn3 Middle brooks applied in October 1984 for a permanent position as a general service worker or laborer. The tasks he would perform as a permanent employee would be the same as those he performed as a seasonal employee including:

* operation of saws wood chippers (used to grind brush into wood chips) and a front-end loader on Wayne County Road Commission premises; * operation of a riding lawn mower on highway medians and embankments;* driving trucks including dump trucks carrying equipment and stake trucks and other equipment from work sites to repair facilities used by the road commission.

Middle brooks submitted to a pre employment physical on November 1 1984 conducted by May bury Medical which included urinalysis testing for controlled substances. *fn4 The urinalysis test was "positive for opiates and cocaine and it was determined that he was not qualified for the position sought."

Middle brooks had completed and signed a "Consent Form and Questionnaire" that indicated he had not taken any prescription medication within the past month or any nonprescription medication within the last ninety-six hours and which provided that he "understands that the results of this examination will be reported to the agency that referred me for the tests."

Middle brooks had also signed a "Medical Examination" form that indicated he was not "taking any medication at the present time." He acknowledged a "habit" of tobacco *fn5 and did "certify that the above information is true and agree and understand any misstatement of material facts contained in this form may cause forfeiture of all my rights to employment with the County of Wayne."

Middle brooks began performing the tasks of a permanent general service worker on November 9 1984 as a "provisional employee[] subject to passing the physical including the drug screen and subject to later passing a civil service examination." He was discharged on November 20 1984 for failure to pass a physical examination. *fn6

II

Middle brooks commenced this action *fn7 against Wayne County May bury Medical and Bioanalytical Procedures alleging violations of his rights under the Fourth Amendment and 42 U.S.C.S. 1983 to be free from unreasonable search and seizure and of due process of law both substantive and procedural and privacy along with violations of analogous rights under the Michigan Constitution. Middle brooks also claimed violations of the Vocational Rehabilitation Act *fn8 the Handicappers' Civil Rights Act *fn9 the Civil Rights Act *fn10 and breach of an implied contract negligence and violation of common-law privacy.

The circuit court granted summary disposition for Wayne County May bury Medical and Bioanalytical Procedures on all counts on the ground that urinalysis testing is permitted under the Fourth Amendment where the position involves the operation of heavy machinery. *fn11

Court of Appeals reversed on Middle brooks sec. 1983 and Fourth Amendment claims against Wayne County and remanded the case to determine whether Middle brooks' stated a sec. 1983 claim against May bury Medical and Bioanalytical Procedures and to determine Middle brooks' damages. Court of Appeals ruled that "Wayne County failed to establish that its interest was sufficient to overcome plaintiff's privacy expectations and concluded that the urinalysis test was unreasonable as a matter of law. *fn12 The permanent position did not involve any unusual degree of danger" or a risk that was "significant or . . . special." Middle brooks would not have been required to carry passengers or security-sensitive materials *fn13 or to operate heavy equipment involving great risk of harm to others. *fn14 General laborers are not

"traditionally highly regulated." *fn15

This Court granted leave to appeal "limited to whether Court of Appeals correctly determined that the urinalysis drug testing was unconstitutional as a matter of law." *fn16

III

The United States Supreme Court ruled in Skinner v RLEA *fn17 that mandatory urinalysis testing is a search under the Fourth Amendment *fn18 but that such a search will survive constitutional scrutiny in the absence of a warrant or individualized suspicion if the "important governmental interest furthered by the intrusion" outweighs the "privacy interests implicated by the search . . . ." *fn19

Court upheld Federal Railroad Administration regulations providing for mandatory urinalysis testing of railroad employees without warrants or individualized suspicion when the employee was involved in a train accident or violation of certain safety rules. Court said that the governmental interest was "compelling":

Employees subject to the tests discharge duties fraught with such risks of injury to others that even a momentary lapse of attention can have disastrous consequences. Much like persons who have routine access to dangerous nuclear power facilities employees who are subject to testing under the FRA regulations can cause great human loss before any signs of impairment become noticeable to supervisors or others. *fn20 [Citations omitted.]

Court also said that the privacy expectations of employees were diminished through "their participation in an industry that is regulated pervasively to ensure safety a goal dependent in substantial part on the health and fitness of covered employees." *fn21 The reason for the pervasive regulation is "obvious": "An idle locomotive sitting in the roundhouse is harmless. It becomes lethal when operated negligently by persons who are under the influence of alcohol or drugs." *fn22

In MTEV v Von Raab *fn23 decided the same day as Skinner Court employed the balancing analysis announced in Skinner to affirm the validity under the Fourth Amendment of United States Customs Service regulations requiring urinalysis testing of employees seeking transfer or promotion to positions involving drug interdiction or the carrying of firearms. Court said that it agreed with the Government that the public should not bear the risk that employees who may suffer from impaired perception and judgment will be promoted to positions where they may need to employ deadly force. *fn24

United States district and circuit courts of appeals interpreting Skinner and Von Raab have generally held that positions that require operation of heavy machinery or motor vehicles involve "duties fraught with such risks of injury to others that even a momentary lapse of attention can have disastrous consequences." *fn25 Other federal courts have suggested that positions that require operation of motor vehicles would not be "fraught with such risks of injury to others" under the rationale of Skinner and Von Raab where the risk is no greater than the risk of "even a momentary lapse of attention" by a citizen operating a motor vehicle. *fn26

Skinner and Von Raab have also been interpreted to permit urinalysis testing of applicants for positions that involve "duties fraught with such risks of injury to others that even a momentary lapse of attention can have disastrous consequences." *fn27

IV

Pursuant to the analysis of the federal cases interpreting Skinner and Von Raab we conclude that dismissal of Middle brooks' claims under the Search and Seizure Clause of the Fourth Amendment and sec. 1983 was appropriate. Operation of a riding lawn mower especially on highway medians and embankments and driving front-end loaders trucks and other equipment between a work site and repair facility might result in serious injury from "momentary lapses of attention" characteristic of illegal drug use. *fn28 Middle brooks had a reduced expectation of privacy in not being subjected to urinalysis drug screening by the government as a result of his application for a position with a governmental agency as a laborer *fn29 in which potentially serious accidents might result from collisions between a mower being operated on a median or embankment and vehicles on the highway often traveling at high rates of speed. *fn30 A riding lawn mower front-end loader or truck might become "lethal" when "operated negligently." *fn31 Thus we conclude that the balance mandated by the Fourth Amendment tips in favor of permitting the state to require urinalysis testing of Middle brooks although the general service-worker position that he sought is not "regulated pervasively" like that of a railroad employee *fn32 or commercial driver. *fn33

This case is distinguishable from American Federation of Government Employees v Sullivan *fn34 and National Treasury Employees v Watkins. *fn35 Unlike the employees in those cases who drove cars and vans to transport documents and in Watkins passengers as well similar to the way ordinary citizens would use the roads Middle brooks would have been required to operate a riding lawn mower on highway medians and embankments and front-end loaders trucks and other heavy equipment from a work site to different facilities of the Road Commission. The specialized duties that Middle brooks would have performed cannot be analogized to "vehicle use by the general public." The operation of lawn mowers and other mechanical equipment on and near roads designed primarily for cars vans and trucks poses a greater threat to traffic safety than the operation of ordinary automobiles vans and trucks. *fn36

V

There is no evidence that Wayne County failed to provide notice to applicants that urinalysis testing would be included in the physical examination that applicants for positions were arbitrarily selected for urinalysis testing or that information from urinalysis testing was used for purposes other than determining the suitability of applicants for Wayne County general service-worker positions. Nor is there evidence that May bury Medical unduly intruded on the privacy of applicants in collecting urine samples that Bioanalytical Procedures employed unreliable or biased methods in analyzing urine samples or that candidates were not given the opportunity to contest the results or submit their urine to physicians of their own choosing.

In the absence of evidence suggesting such procedural inadequacies which might suggest due process concerns with Wayne County's urinalysis testing policy that were flagged in Von Raab *fn37 and Skinner *fn38 we interpret Skinner and Von Raab in light of the federal cases and hold that the urinalysis testing administered to Middle brooks in connection with his application for a permanent position with a governmental agency was not violative of

VI

We turn to a consideration of whether dismissal was properly entered of Middle brooks' claims under the Michigan Constitution. While "we have on occasion construed the Michigan Constitution in a manner which results in greater rights than those given by the federal constitution and where there is compelling reason we will undoubtedly do so again *fn39 we are not convinced, in light of Middle brooks' diminished expectation of privacy in not being subjected to urinalysis drug screening by the government as a result of his application for a position with a governmental agency, that urinalysis testing of Middle brooks constituted a major contraction of citizen protections under our constitution . . . ." *fn40 On the facts of the present case we decline the invitation to construe art 1 sec. 11 and other provisions of the Michigan Constitution relating to personal privacy and due process of law to provide broader protection against urinalysis testing of operators of vehicles than the Fourth Amendment. *fn41

Reversed.

Charles L. Levin

James H. Brickley Robert P. Griffin Dorothy Comstock Riley

Concuring: The Hon. Justice Patricia J. Boyle

I agree with the result reached by the majority. I write separately however to clarify my view of the application of Skinner v Railway Labor Executives' Ass'n 489 U.S. 602; 109 S. Ct. 1402; 103 L. Ed. 2d 639 (1989) and Nat'l Treasury Employees Union v Von Raab 489 U.S. 656; 109 S. Ct. 1384; 103 L. Ed. 2d 685 (1989).

I

A

The recent United States Supreme Court opinions concerning Fourth Amendment restrictions on government drug screening Skinner and Von Raab employ balancing tests. But a balancing test is not a theory of how cases ought to be decided. It is only a method of applying such a theory. For that reason it is helpful to review the theories behind or goals of the balancing tests that are employed.

In both opinions Court first "balances the governmental and privacy interests to assess the practicality of the warrant and probable-cause requirements . . . ."Skinner 489 U.S. 602 at 619 103 L. Ed. 2d 639 109 S. Ct. 1402; Von Raab 489 U.S. 656 at 666 103 L. Ed. 2d 685 109 S. Ct.1384. Court held that "a warrant is [not] essential to render the intrusions here at issue reasonable under the Fourth Amendment." Skinner 489 U.S. 624; see also Von Raab 489 U.S. 656 at 666 103 L. Ed. 2d 685 109 S. Ct.1384.

The question thus becomes whether a drug test could be reasonable under the Fourth Amendment in the absence of probable cause or some quantum of suspicion. Court held that it could.

In limited circumstances where the privacy interests implicated by the search are minimal and where an important governmental interest furthered by the intrusion would be placed in jeopardy by a requirement of individualized suspicion a search may be reasonable despite the absence of such suspicion. [Skinner 489 U.S. 602.] *fn1 103 L. Ed. 2d 639 109 S. Ct. 1402

In Von Raab Court phrased the same rule in the form of a second balancing test: "the Government's need to conduct suspicionless searches . . . outweighs the privacy interests of employees . . . ." 489 U.S. 668.

The goal of this balancing test on which the outcome of the case before us hinges bears repeating: when the government does not have any reason whatsoever to suspect drug use by the individual it is testing it may only impose drug tests when a requirement of individual suspicion would jeopardize an important governmental interest. In this case a requirement of individual suspicion would jeopardize an important governmental interest because the plaintiff has not previously held the position for which he applied and thus the county has not been able to scrutinize his performance of those duties for signs that he could not perform them safely.

B

The majority states that the defendant has an interest in testing the plaintiff for illegal drug use because "[a] riding lawn mower front-end loader or truck might become 'lethal' when 'operated negligently.'" Slip op at 13. The majority cannot be saying that the Fourth Amendment permits testing the plaintiff without probable cause or individualized suspicion simply because his job would involve driving a lawn mower. The cases cited in the majority opinion demonstrate that this fact alone would be insufficient to justify suspicion less drug testing.

The majority frames the question of reasonableness around whether a worker's job would involve "'duties fraught with such risks of injury to others that even a momentary lapse of attention can have disastrous consequences.'" Slip op at 10. Then it claims that federal courts are divided on the question. Id. at 10-11. Authority appears divided however only because of the misleading way this question is framed.

Under the great weight of federal authority there is a clear line between suspicion less testing of motor vehicle operators who carry passengers and suspicion less testing of those who do not. In American Federation of Gov't Employees v Skinner 280 U.S. App. D.C.262; 885 F.2d 884 (1989) Court agreed that "strong safety interests support the testing of most Department motor vehicle operators who are responsible for inter alia the transportation of visiting foreign dignitaries and key Department officials and the operation of passenger-laden shuttle buses." Id. at 270. It acknowledged however that safety considerations alone could not justify testing a "driver whose exclusive duties entail driving a mail van . . . ." Id.

The importance of this distinction was reiterated in Nat'l Treasury Employees Union v Yeutter 287 U.S. App. D.C.28; 918 F.2d 968 (1990) (opinion of Mikva J. joined by Edwards and Silberman JJ.). Among the plaintiffs in that case were employees of the Department of Agriculture who primarily chauffeured officials and who drove shuttles only during the lunch hours and sick days of private drivers. Court rejected their attempt to distinguish themselves from the plaintiffs in AFGE v Skinner supra on the ground that the latter carried many more passengers. Addressing the argument that this result would "open the door to" testing all government employees who drive to work Court noted a bright line between workers who carry passengers and those who do not: "It is not obvious to us that the government could show a special need unrelated to law enforcement to test drivers who do not carry passengers; nor do most drivers have diminished privacy expectations with respect to drug testing." Id. at 32.

The principle is stated more directly in American Federation of Government Employees AFL-CIO v Sullivan 787 F. Supp.255 257 (D DC 1992):

The government's interest here is the safety risk that an impaired government driver might pose to other drivers on the road. While not insubstantial this is obviously no different than the interest the public and the government have in keeping any potential by impaired driver off the road. If this is a sufficient "special government need[]" to permit warrant less searches under Von Raab [489 U.S. 665] then the federal government could proceed to test any and all drivers on the road. See also Nat'l Treasury Employees Union v Watkins 722 F. Supp.766 769 (D DC 1989) (issuing a preliminary injunction against random drug testing of motor vehicle operators in the Department of Energy because "the safety risks involved with the motor vehicle operators carrying out their duties are no greater than the normal risks associated with vehicle use by the general public").In evaluating whether the plaintiff's drug test violated the Fourth Amendment the relevant question is not whether riding a lawn mower "can[] be analogized to" motor vehicle use by the general public but whether the government has a more compelling interest in suspicionless drug testing of lawn mower operators. Lacking clear directive from the United States Supreme Court the answer would seem to hinge upon a comparison of the potential danger. However Court is spared from having to decide this case solely on the basis of the questionable empirical assumption that lawn mowers on embankments next to the road pose a greater threat to traffic safety than vehicles on the road because the plaintiff in this case is an applicant for this position.

C

The majority adds that "Middle brooks had a reduced expectation of privacy in not being subjected to urinalysis drug screening by the government as a result of his application for a position with a governmental agency as a laborer in which potentially serious accidents might result . . . ." See slip op at 12. I agree that this factor is critical but feel that further elaboration is necessary. In Willner v Thorn burgh 289 U.S. App. D.C.93 98; 928 F.2d 1185 (1991) Court elaborated on the difference between testing applicants for employment and testing current employees:

If individuals view drug testing as an indignity to be avoided they need only refrain from applying. This too is an important distinction between applicants and incumbents. The choice presented to current employees-undergo random drug testing or lose your job-is not comparable to that facing applicants. In Court Friendly's words there is a human difference between losing what one has and not getting what one wants.

The precise situation at issue here was discussed in Nat'l Treasury Employees Union v Watkins supra in which Court enjoined random drug testing of motor vehicle operators despite the fact that they also carried guns. Court opined that "the government would be on surer footing in the factual setting of . . . a one-time scheduled testing as a prerequisite for promotion as [was] at issue in . . . Von Raab." 722 F. Supp.770.

Commentators who oppose drug testing employees in other circumstances have argued that the government should be permitted to test applicants. According to Professor LaFave the Supreme Court's decisions support the proposition that suspicionless drug testing is permissible under the Fourth Amendment only when close on the job supervision plus reasonable suspicion testing do not provide a sufficient alternative. Consequently it may be reasonable to test an employee at the time of application when it would not be reasonable to test the same employee once he held the position:

The point was made earlier that on-the-job random or blanket drug testing is unnecessary because proper supervision of employees plus the reasonable suspicion test should ordinarily suffice to turn up those who ought to be tested. But for beginning employees there has been no prior opportunity for such ongoing scrutiny and thus it is certainly arguable that testing as a matter of course is appropriate in such circumstances. [3 LaFave Search and Seizure (2d ed.) (1994 Supp) sec. 10.3 p 234.] See also Miller Mandatory urinalysis testing and the privacy rights of subject employees: Toward a general rule of legality under the Fourth Amendment 48 U. Pitt. L. Rev. 201 236-237 (1986).

II

In addition I feel compelled to point out that statements in the majority opinion that do not relate to whether defendant violated plaintiff's rights under the Fourth Amendment to the United States Constitution are dicta. The only issue before this Court is whether the circuit court properly granted summary disposition in favor of Wayne County on plaintiff's claim for damages under 42 U.S.C.S. 1983 for violation of his Fourth Amendment rights.

The plaintiff's complaint is described very specifically by Court of Appeals:

In count II of his ten-count amended complaint plaintiff sought damages under 42 U.S.C.S. 1983 claiming that defendants acting in concert violated his Fourth Amendment right to be free from unreasonable searches and seizures by searching him without individualized suspicion and with no compelling state interest. In other counts he alleged that defendants violated his right to due process of law both substantive and procedural and invaded his constitutionally protected right to privacy. In a separate count plaintiff claimed that defendants violated his right to due process under the Michigan Constitution. He also claimed violations of the Vocational Rehabilitation Act 29 U.S.C.S. 701 et seq. and the Handicappers' Civil Rights Act MCL 37.1101 et seq.; MSA 3.550(101) et seq. alleging discrimination on the basis of false perception of a handicap (drug addiction) and on improper use of a physical examination to refuse employment. [Unpublished opinion per curiam issued November 9 1992 (Docket No. 128482) pp.1-2.]

The circuit court granted defendant's motion for summary disposition on all counts. The plaintiff appealed and Court of Appeals in a two to one decision reversed in part:

In summary with respect to defendant Wayne County we reverse the order of the trial court dismissing count II of the amended complaint and affirm Court's dismissal of all other counts. With respect to defendants May bury Medical Clinics Inc. Bioanalytical Procedures Inc. and Perry Health Net Laboratory Services Inc. we remand for further proceedings with respect to their liability for deprivation of plaintiff's Fourth Amendment rights. We affirm Court's order in all other respects. [Id. at 3.]

This Court granted defendants' applications for leave to appeal. See 444 Mich. 858 (1993). The plaintiff did not cross appeal.

Nevertheless the majority finds occasion to address the Michigan

Constitution:

On the facts of the present case we decline the invitation to construe art 1 sec. 11 and other provisions of the Michigan Constitution relating to personal privacy and due process of law to provide broader protection against urinalysis testing of operators of vehicles than the Fourth Amendment. [Slip op at 16.] It should be perfectly clear that no member of this Court is suggesting that the plaintiff may obtain 'relief under sec. 1983 for violation of his state constitutional rights. Section 1983 provides a remedy for violation of federal constitutional and statutory rights. See e.g. City of Greenwood v Peacock 384 U.S. 808 829-830; 86 S. Ct. 1800; 16 L. Ed. 2d 944 (1966). It does not provide a federal remedy for violation of state rights. See Smith v Dep't of

Public Health 428 Mich. 540 612-637; 410 N.W.2d 749 (1987). Court of Appeals ruled that on the facts alleged by the plaintiff he could obtain relief under sec. 1983. We could not affirm this ruling on the basis of state constitutional rights because it is not possible to obtain sec. 1983 relief for violation of state-created rights.

Instead the majority considers discussion of state constitutional law appropriate on the ground that an appellee who has taken no cross appeal may still urge in support of the judgment in its favor reasons that were rejected by a lower court. Slip op at 16 n 41. Although I agree with this proposition *fn2 I do not think such a situation is presented here. The Michigan Constitution cannot provide an alternative reason why the plaintiff should be allowed to proceed to trial with his sec. 1983 claim for violation of his Fourth Amendment rights. It forms the basis only for an argument that he should be able to proceed to trial on a (non sec. 1983) claim that Wayne County violated the Michigan Constitution. In other words the plaintiff is not advancing grounds for affirmance but for reversal.

In any event a mere reference in the plaintiff's brief to the search and seizure provision of the Michigan Constitution does not require us to embark on a discussion of whether damage remedies are available under our constitution an issue as yet unresolved in our jurisprudence. *fn3

On the other hand the plaintiff does assert an alternate ground for affirmance to the extent he is claiming that his federal due process rights were violated. Cf. slip op at 14-15. However I decline the invitation to advance alternate factual scenarios that "might suggest due process concerns" not articulated by the plaintiff. It seems particularly inappropriate to opine on the future course of federal law when such speculation is unsupported by our own reference to any authority.

III

For the foregoing reasons I agree with the majority that the decision of Court of Appeals should be reversed.

Patricia J. Boyle

Michael F. Cavanagh

Conrad L. Mallett Jr.

 
Notes:

*fn1 The circuit court granted summary disposition for Wayne County May bury Medical Clinics Inc. and Bioanalytical Procedures Inc. on the ground that urinalysis testing was permitted under the Search and Seizure Clause of the United States Constitution where as here the position involves the operation of heavy machinery. Court of Appeals reversed and remanded on the grounds that the permanent position did not involve an unusual degree of danger or a risk that was significant or special and that the interest in urinalysis testing was not sufficient to overcome Middle brooks' privacy expectations.

*fn2 Skinner v Railway Labor Executives' Ass'n 489 U.S. 602 628; 109 S. Ct. 1402; 103 L. Ed. 2d 639 (1989).

*fn3 A "seasonal position according to Wayne County regulations, includes duties and responsibilities of such nature that their performance is discontinued and the position left vacant during a part of the year with the vacancy typically occurring during the same period of each year."

*fn4 May bury Medical conducted employment physicals for Wayne County. May bury Medical contracted with Bioanalytical Procedures for analysis of urine samples. The name of Bioanalytical Procedures was changed in 1986 to Perry Health Net Laboratory.

*fn5 Middle brooks left blank lines inquiring whether he had "habits" of "alcoholic beverages" or "drugs."

*fn6 Middle brooks submitted a letter on December 12 1984 from a physician to certify that [Middle brooks'] research lab findings are non drug content in blood, except for quinine. The next day Middle brooks requested permission t undergo another urinalysis test.

A physician at May bury Medical sent a letter dated January 8 1985 to the Deputy Director of Personnel and Human Resources for Wayne County stating that he was "unable to recommend this applicant for reconsideration for employment in the Wayne County Road Commission on the basis of positive results for opiates and cocaine and Middle brooks' answers to the consent form and questionnaire." The physician found the presence of quinine in Middle brooks' blood to be "highly suspicious of substance abuse":

Quinine is used medicinally in the treatment of malaria and in the treatment of intermittent claudication and muscle cramps. When it is detected in the bloodstream some time after a urine analysis has detected opiates and cocaine it is highly suspicious of substance abuse yet we are not qualified to make that a definite assumption. However there is no medical history evident here to substantiate even the finding of quinine.

In the opinion of this office the positive finding of cocaine is not acceptable. It is possibly used as anesthetic in some eye surgery but that kind of history is absent in this regard.

Middle brooks testified on deposition that he recalled taking quinine during the period between the physical examination at May bury Medical and the physical examination at the office of the physician who wrote the December 12 letter. He said that he obtained the quinine from his grandmother to relieve leg cramps.

Middle brooks was informed by letter on January 24 1985 that on the basis of the recommendation from May bury Medical the previous determination that you were disqualified for employment is affirmed.

*fn7 Middle brooks filed a complaint against Wayne County with the Equal Employment Opportunity Commission and the Michigan Department of Civil Rights alleging race discrimination in its refusal to retest Middle brooks and termination of his employment. The EEOC found that "examination of the evidence indicates that there is no reasonable cause to believe that this allegation is true."

Four other persons who had been discharged from employment with Wayne County "due to failure of medical examinations" were subsequently deemed 'qualified for position sought' without re testing after "legitimate reasons for the presence of certain substances in the urinalysis tests were given by competent physicians at May bury Medical Clinic." Of these four persons two were black and one was a black seasonal employee.

*fn8 29 U.S.C.S. 701 et seq.

*fn9 MCL 37.1101 et seq. MSA 3.550(101) et seq.

*fn10 MCL 37.2101 et seq. MSA 3.548(101) et seq.

*fn11 Skinner n 2 supra; Nat'l Treasury Employees Union v Von Raab 489 U.S. 656; 109 S. Ct. 1384; 103 L. Ed. 2d 685 (1989).

The circuit court rejected the due process claim under the Michigan Constitution because Middle brooks was given notice that a drug test was part of the physical examination signed a consent form for the drug test was given the opportunity to challenge the positive results before Wayne County's Personnel Department received a hearing before the EEOC where it was suggested that he could reapply for the position at the following examination and was given the opportunity to provide a report from his own physician.

The circuit court rejected the right to privacy claim based on Middle brooks' consent to the urinalysis test the Civil Rights Act claim because two of the four persons who had successfully challenged the urinalysis test had been black and the Michigan Handicappers' Civil Rights Act claim because drug addiction is not unrelated to a job involving operation of heavy machinery.

*fn12 Unpublished opinion per curiam decided November 9 1992 (Docket No. 128482). See Von Raab n 11 supra.

*fn13 American Federation of Government Employees v Sullivan 787 F. Supp.255 257 (D DC 1992).

*fn14 Plane v United States 750 F. Supp.1358 (WD Mich. 1990). Court of appeals found that the permanent position resembled the job of transit authority "maintenance custodian" involved in Bolden v Southeastern Pennsylvania Transportation Authority 953 F.2d 807 823 (CA 3 1991) in which the United States Court of Appeals for the Third Circuit ruled did not warrant urinalysis testing.

*fn15 Court of Appeals affirmed the circuit court's dismissal of Middle brooks' claims of due process violations under the Michigan Constitution ("He had a right to be considered for such employment in a fair reasonable and nondiscriminatory manner. That right was met. Having failed to show a protectible liberty or property interest plaintiff cannot sustain a substantive due process claim"); violations of the Handicappers' Civil Rights Act ("drug addiction is related to an employee's ability to perform the job of general laborer for the Wayne County Road Commission. Drug addiction was not therefore a handicap within the meaning of the statute as it then was written"); and common-law invasion of privacy ("Plaintiff has not alleged any injury or claimed any relief on his claim for common-law invasion of privacy that differs from his claims for violation of his Fourth Amendment rights").

Court of Appeals did not address Middle brooks' claims under the Civil Rights Act or his claims for breach of implied contract or negligence because Middle brooks did not on appeal contest dismissal of those counts.

*fn16 444 Mich. 858 (1993).

*fn17 489 U.S. 602; 109 S. Ct. 1402; 103 L. Ed. 2d 639 (1989).

*fn18 The United States Supreme Court said:

Nor can it be disputed that the process of collecting the sample to be tested which may in some cases involve visual or aural monitoring of the act of urination itself implicates privacy interests. As Court of Appeals for the Fifth Circuit has stated:

"There are few activities in our society more personal or private than the passing of urine. Most people describe it by euphemisms if they talk about it at all. It is a function traditionally performed without public observation; indeed its performance in public is generally prohibited by law as well as social custom" National Treasury Employees Union v Von Raab 816 F.2d 170 175 (1987).

Because it is clear that the collection and testing or urine intrudes upon expectations of privacy that society has long recognized as reasonable the Federal Courts of Appeals have concluded unanimously and we agree that the intrusions must be deemed searches under the Fourth Amendment. [Skinner supra p 617.

*fn19 Skinner supra p 624.

*fn20 Id. p 628.

*fn21 Id. p 627

*fn22 Id. p 628 quoting Railway Labor Executives' Ass'n v Burnley 839 F.2d 575 593 (CA 9 1988) (Alarcon J. dissenting).

*fn23 489 U.S. 656; 109 S. Ct. 1384; 103 L. Ed. 2d 685 (1989).

*fn24 Note 11 supra pp.670-671.

*fn25 Skinner supra p 628. Plane v US n 14 supra p 1370 later proceeding 796 F. Supp.1070 1075-1078 (WD Mich. 1992) upholding random testing of heavy machinery operators and motor vehicle operators because "a single lapse may cause serious injury or death. Clearly alertness and diligence are required of all drivers. And I am convinced that an employee who accepts a job 'fraught with such dangers' has a lessened expectation of privacy as to his or her ability to perform his or her job requirements free from the influence of illegal drugs." Nat'l. Treasury Employees Union v Hallett 776 F. Supp.680 692 (ED NY 1991) permitting random testing of forklift operators on grounds that "the threat posed by a lapse of control or judgment by a drug-impaired forklift operator is so obvious as to require no elaboration. Suffice to say the threat is both immediate and severe." See also American Fed of Gov Employees v Cavazos AFL-CIO 721 F. Supp.1361 1373 (D DC 1989) aff'd in part and vac'd in part (without opinion) American Federation of Government Employees AFL-CIO v Sanders 288 U.S. App. D.C 342 926 F.2d 1215 (CA DC 1991) citing Harmon v Thorn burgh 278 U.S. App. D.C 382 878 F.2d 484 491 (CA DC 1989) ("All of the motor vehicle operators will come into direct contact with other drivers and pedestrians and are therefore in a position where 'even a momentary lapse of attention' could result in harm." [citations omitted]); Nat'l Treasury Employees Union v Yeutter 733 F. Supp.403 414 (D DC 1990) aff'd 287 U.S. App. D.C.28 918 F.2d 968 971-972 (CA DC 1990) citing American Federation of Government Employees AFL-CIO v Skinner 280 U.S. App. D.C.262 885 F.2d 884 892 (CA DC 1989) ("'Employees who must travel in USDA shuttle buses or automobiles in order to perform their essential duties should not bear the risk that employees who may suffer from impaired perception and judgment . . . will be behind the wheel in a position to cause catastrophic and irremediable harm'")

*fn26 American Federation of Government Employees v Sullivan n 13 supra p

301 later proceeding 787 F. Supp.255 257 (D DC 1992) citing National Treasury Employees Union v Yeutter 287 U.S. App. D.C.28 918 F.2d 968 (CA DC; 1990) enjoining random testing of motor vehicle operators who do not carry passengers where "the government's interest here is the safety risk that an impaired government driver might pose to other drivers on the road. While not insubstantial this is obviously no different than the interest the public and the government have in keeping any potentially impaired driver off the road. If this is a sufficient 'special government need[]' to permit warrant less searches under Von Raab then the federal government could proceed to test any and all drivers on the road." (Citations omitted). National Treasury Employees Union v Watkins 722 F. Supp.766 769-770 (D DC 1989) also enjoining proposed random testing of motor vehicle operators assigned to transport documents and passengers because "the safety risks involved with the motor vehicle operators carrying out their duties are no greater than the normal risks associated with vehicle use by the general public. . . . Defendant has not demonstrated that these employees pose the imminent risk of 'disastrous consequences' that supported the government's interest in Skinner and Von Raab."

*fn27 Willner v Thorn burgh 289 U.S. App. D.C.93 928 F.2d 1185 1190 (CA DC 1991) ("It is significant that the individual has a large measure of control over whether he or she will be subject to urine testing. No one is compelled to seek a job [as an Counsel] at the Department of Justice. . . . If individuals view drug testing as an indignity to be avoided they need only refrain from applying"); Int'l Brotherhood of Teamsters v Dep't of Transportation 932 F.2d 1292 1307 (CA 9 1991) ("The level of intrusion furthermore is less than that encountered in random testing. No element of surprise is involved. The test is triggered by the [commercial driver] job applicant's own voluntary conduct [in entering the profession that already requires periodic extensive physical examinations and urinalysis] and will occur only once in the applicant's career").

*fn28 Plane n 14 supra p 1370; Hallett n 25 supra p 692.

*fn29 Plane n 14 supra p 1078 ("While the heavy equipment operators are not required to undergo physicals they are expected to be physically fit enough to handle the job requirements including lifting up to seventy to one hundred pound items. Certainly employees subject to such physical strength requirements could expect that their health may become the subject of inquiry. If that is the case then they have a reduced expectation of privacy regarding information about their health and plaintiffs argument has no basis in fact").

*fn30 Willner n 27 supra p 1190; Int'l Brotherhood of Teamsters n 27 supra p 1307.

*fn31 Skinner supra p 628 quoting Railway Labor Executives' Ass'n n 22 supra p 593.

*fn32 Skinner supra p 627.

*fn33 Int'l Brotherhood of Teamsters n 27 supra p 1307.

*fn34 787 F. Supp.255 257 (D DC 1992).

*fn35 722 F. Supp.766 769-770 (D DC 1989).

*fn36 Even if this Court were to follow the "interest" of Court expressed in the first Sullivan opinion n 13 supra p 301 to remove employees whose tasks involve "little driving" from the scope of random urinalysis testing the record here suggests that the driving of mechanical equipment represents a significant component of the position that Middle brooks sought and the operation of saws and wood chippers may itself be so potentially dangerous as to warrant urinalysis testing under the rationale of Skinner and Von Raab.

*fn37 Von Raab n 11 supra p 672 n 2.

*fn38 Skinner supra pp.620-626.

*fn39 People v Nash 418 Mich. 196 214-215; 341 N.W.2d 439 (1983) (citations omitted).

*fn40 People v Sitz 443 Mich. 744 763; 506 N.W.2d 209 (1993).

*fn41 Wayne County has not claimed that this Court should decline to reach the Michigan constitutional issue because Middle brooks did not cross appeal. A cross appeal was not necessary to urge an "alternative ground for affirmance."

It is well established that an appellee who has taken no cross appeal may still urge in support of the judgment in its favor reasons that were rejected by a lower court. Bruns v Rodman 342 Mich. 410 414; 70 N.W.2d 793 (1955) and authorities cited therein. It is true that an appellee that has not sought to cross appeal cannot obtain a decision more favorable than was rendered by the lower tribunal. McCardel v Smolen 404 Mich. 89 94-95; 273 N.W.2d 3 (1978). Michigan Consolidated Gas Company does not seek to enlarge the scope of the relief granted by the PSC but merely argues an alternate ground for affirmance that was rejected by the PSC. [ABATE v PSC 192 Mich. App. 19 24; 480 N.W.2d 585 (1991).]

Plaintiff appellant claims that defendant appellee having taken no cross appeal may not urge in support of the judgment in his favor reasons rejected by the trial court. However in favor of the contrary proposition see [ten citations of decisions of this Court omitted]. [Bruns v Rodman 342 Mich. 410 414; 70 N.W.2d 793 (1955).]

Plaintiffs urge that because the trial Court after holding plaintiffs were not proper parties plaintiff nonetheless considered the case on the merits and defendants have taken no cross appeal they may not now on appeal question plaintiffs' capacity to sue. [Three citations of decisions of this Court omitted.] These cases hold directly to the contrary that an appellee need not take a cross appeal in order to urge in support of relief afforded him below reasons other than those adopted by or those rejected by the lower court. [Menendez v Detroit 337 Mich. 476 483; 60 N.W.2d 319 (1953).]

-------------------------------CONCURRING NOTES, BOYLE--------------------------------

*fn1 This is the test the majority cites with the following description:

The United States Supreme Court ruled in Skinner v RLEA that mandatory urinalysis testing is a search under the Fourth Amendment but that such a search will survive constitutional scrutiny in the absence of a warrant or individualized suspicion if the "important governmental interest furthered by the intrusion" outweighs the "privacy interests implicated by the search . . .." [Slip op at 8-9.]

*fn2 See e.g. Fass v Highland Park (On Rehearing) 321 Mich. 156; 32 N.W.2d 375 (1948) (considering an argument that a zoning ordinance was unconstitutional as an alternate ground for affirming a trial court order that the defendant city shall not refuse to issue or renew licenses to the plaintiffs).

*fn3 In Smith four justices agreed to remand to Court of Claims to determine whether a damage remedy was proper under the Michigan Constitution. 428 Mich. 637 (opinion of Boyle J.).