Former Woodlake Police Department officer’s lawsuit will return to Tulare county courts
By Reggie Ellis
woodlake – A former Woodlake Police officer’s civil suit against the City of Woodlake will return to Tulare County after being rejected by the country’s highest court.
On June 19, the U.S. Supreme Court denied the petition filed in April by the City of Woodlake appealing a Tulare County Superior Court ruling that former officer Daniel Garibay’s right to privacy under the First Amendment was violated when the Woodlake Police Department investigated him for having an affair with the wife of the police chief’s close friend.
Garibay’s attorney Maggie Melo, with the Law Offices of Melo and Sarsfield in Visalia, said the Supreme Court does not provide the reason why a case is rejected for review
“You need a consensus from five judges on whether or not to hear the issue,” Melo said. “And even if five agree to hear the case they must agree on the reason for reviewing the case.”
The City of Woodlake’s appeal of the decision was previously rejected by the Court of Appeals and the California Supreme Court. Garibay, a three-year veteran of the police department, filed a lawsuit against the City on Oct. 29, 2015 for violations of the Fair Employment and Housing Act (FEHA) claiming the police chief, lieutenant, city manager and a fellow officer acted together “in an effort to wrongfully and illegally drive Garibay from his employment in the City of Woodlake.” Garibay claims he was fired on Feb. 13, 2015 for having an affair with the wife of a Woodlake man, only identified as John Doe #1, who is a close friend of City Manager Ramon Lara and Police Chief Mike Marquez.
The lawsuit claimed Woodlake Police Chief Mike Marquez “pressured” Garibay to end his relationship with the unnamed woman, referred to as Jane Doe #1 in court documents, stating “you better fix this,” or something to that effect. “Chief Marquez, on information and belief, acting on the orders of City Manager Lara and John Doe #1, attempted to dissuade and discourage Garibay’s relationship with Jane Doe #1,” the lawsuit stated.
When Garibay refused to cease contact with the woman, he claims Marquez initiated an internal affairs investigation for allegations of insubordination. Furthermore, Marquez assigned Lt. Jose Aguayo to conduct an internal affairs investigation which invaded Garibay’s privacy and infringed on his freedom. “As a result of the pre-allegations of misconduct, Garibay was wrongfully fired from his employment on or about Feb. 13, 2015 at the orders and direction of Marquez,” stated the lawsuit.
The lawsuit also names Officer Jesus Mendez, who allegedly made false statements that Garibay had confided in him about lying about his relationship with the woman. Mendez also allegedly failed to disclose that he himself had tried to have a social/sexual relationship with the same woman.
“[Mendez] had gone so far as to kiss or attempt to kiss her while she was participating on a ‘ride-a-long’ with the Woodlake Police Department,” according to the lawsuit. Melo said if Garibay was disciplined and the other officer was not, that would constitute “selective enforcement” which is also against the law which requires you “discipline everyone equally.”
Melo said the decision to terminate Garibay’s employment also circumvented progressive discipline usually associated with public safety positions. She said Garibay had an unblemished career with Woodlake Police Department without any prior disciplinary action.
“Their discipline went from nothing to the death penalty in terms of his career,” Melo said.
In his April 20 decision, Judge Hillman overruled seven causes of action in Garibay’s lawsuit but did rule that an investigation of Garibay ordered by Chief Mike Marquez and carried out by Lt. Jose Aguayo “was conducted in a manner intended to invade, and did in fact invade, Plaintiff’s right to privacy guaranteed to him under the First Amendment of the United States Constitution.”
The Judge ruled that there was sufficient evidence to show that Marquez and Aguayo’s actions “violated a clearly established constitutional right” to privacy, freedom of association, due process and equal protection. Hillman said arguments in the final complaint will come down a discussion as to whether adulterous conduct falls within the core of individual liberty stated in the First Amendment.
“The Court also recognizes defendants’ [City of Woodlake] admission in their reply papers that ‘there has existed since 2002, a clear conflict among the courts on the issue of whether adulterous sexual relationships were constitutionally protected in a way that would forbid public employees from disciplining and investigating their employees for such actions, and the U.S. Supreme Court has not ruled one way or the other.”
Melo, who is representing Garibay, said the City is attempting to make two arguments, that the officer was fired for violating the police department’s morality clause and that they were unaware that the morality clause did not include adultery.
“A Government entity is not allowed to intrude in a dating relationship between two consenting adults,” Melo said. “It’s a violation of our fundamental right of who we can and can’t have a relationship with.”
Melo went on to say that her client didn’t even commit adultery because he is not married. She said under the law, only someone who is married can commit adultery. If anything, her client would only be guilty of an arcane set of rules regarding “fornication,” which is sex out of wedlock.
The case will return to Judge Hillman’s courtroom on Sept. 14, 2017 for a mandatory settlement conference as the City is refusing to go to mediation, which is normal at this stage of civil cases following a ruling, according to Melo. “That is very unusual in civil cases,” Melo said. “It is quite arrogant of a municipality to refuse mediation.” A second settlement conference has been scheduled for Nov. 8, 2017 with a tentative trial date of Dec. 11, 2017.