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Judge dismisses lawsuit asking to overturn drug test requirement

Scott Csernyik

9/19/2005 12:00:00 AM

A Saginaw Chippewa Community Court judge ruled recently against an emergency request that would have stopped drug testing of potential Tribal Council candidates.

Judge Bruce E. Plackowski's Sept. 8 ruling came in response to a lawsuit filed by Delores Jackson which sought to overturn the requirement. Jackson has previously served on Tribal Council and has been a candidate for several other elections.

"Plaintiff has not shown she would suffer any harm by taking a drug test," according to Plackowski's ruling. "In fact, plaintiff admits to taking at least three urine tests in the past. The only difference now is the type of test and the specificity of the requirements. Defense has appropriately argued this is a less intrusive and more exact procedure thus reducing the chances of �irrepairability.'"

Since 1994, the Saginaw Chippewa Indian Tribe of Michigan has required a negative drug test prior to being a candidate for a Tribal Council election. On July 27, Tribal Council specified the test would be a hair follicle drug test. Prior to that time, the test was unspecified, but all testing was done by urine sample.

Nominating petitions were made available for the general election on Aug. 15 and due by Sept. 15 at 5 p.m. All final drug test results must be returned to the Tribal Clerk's Office no later than one day prior to the approved date for the posting of the candidate list for the general election.

According to the election schedule, the candidate's list will be posted by 5 p.m. on Sept. 22.

In her lawsuit, filed Aug. 17, Jackson alleged violations of the 1986 amended Tribal Constitution and the Indian Civil Rights Act. She also maintained that amending Ordinance No. 4 within weeks of the election schedule "is procedurally unfair and places a chilling effect on plaintiff and other candidates interested in running for Tribal Council in the 2005 general election because candidates are being forced to choose between submitting to an unlawful search of their persons or forgoing the right to run for Tribal Council."

Jackson also claimed she and other candidates were being singled out.

"Plaintiff is suffering and will continue to suffer irreparable harm where she is prevented from running as a candidate for Tribal Council as a result of defendants unlawful actions," according to her lawsuit.

But Plackowski stated in his ruling that Jackson had not proved to the court she would suffer irreparable harm by taking a drug test. In establishing the grounds for a temporary restraining order, the plaintiff has the burden of establishing the following four factors:

-Plaintiff will likely ultimately succeed;

-Plaintiff will suffer irreparable harm without the order;

-Defendant would not be substantially harmed; and

-The order would serve the public interest.

"The plaintiff has failed on at least three of the four factors," wrote Plackowski. "The weight of the plaintiff's argument do not outweigh the magnitude of the relief sought."

Jackson's lawyer, William Antrobius, said the matter may be appealed to the Saginaw Chippewa Appellate Court for review.