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SABRINA PIKE Plaintiff
vs.
RAY GALLAGHER ROBERT ROHLFS TED DRENNAN MICHAEL HARPSTER WILLIAM REHM JOHN W. HIGGINS IN THEIR INDIVIDUAL AND OFFICIAL CAPACITIES BERNALILLO COUNTY SHERIFF'S DEPARTMENT Defendants.
 
Case:
NO. CIV 91-0891 JB
 
Location:
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO
 
Date:
July 28 1993 Decided
 
Attorneys:
For Plaintiff: Stephen T. LeCuyer Esq. Mettler & LeCuyer Post Office Box M Albuquerque NM 87103.
For Defendants: Robert C. Gutierrez Esq. Virginia Anderman Esq. Miller Stratvert Torgerson & Schlenker Post Office Box 25687 Albuquerque NM 87125.
 
Court:
BURCIAGA
 
Author:
The Hon. Justice Juan G. Burciaga
 

THIS MATTER is before Court on the motion of Defendants Ray Gallagher Robert Rohlfs Michael Harpster William Rehm Ted Drennan and Bernalillo County Sheriff Department for summary judgment as to all counts of Plaintiff Sabrina Pike's amended complaint. Plaintiff brought her claims under 42 U.S.C. SEC. 1983 and state law wrongful discharge for damages she claims she suffered when Defendants allegedly terminated her employment in violation of her rights under the First Fourth and Fourteenth Amendments to the United States Constitution. Having reviewed the pleadings the evidence of record the relevant law and having heard the arguments of Counsel Court finds Defendants' motion is well taken in part and will be granted in part.

I. FACTS

On August 15 1988 Defendant Bernalillo County Sheriff's Department (Department) hired Plaintiff as a deputy sheriff. On October 13 1989 she was assigned to the Department's Field Services Division as a vice detective. Sometime after October 13 1989 Plaintiff alleges she began investigating a lead that officers within the Department including supervisory officers were receiving illegal payments. These payments were allegedly coming from illegal "lotion" or "massage" parlor businesses in the Albuquerque area. The payments were made to officers who "tipped" the establishments of possible raids by the Department.

Plaintiff claims she informed Sergeant William Rehm in a private conversation before October 1 1990 of the possible corruption within the

Department. Plaintiff further alleges that after she turned over the investigation to the FBI she had a meeting with Undersheriff Joe Bowdich Chief Deputy Robert Rohlfs and Captain Dan Houston. At this meeting Plaintiff claims she divulged the individuals' names their descriptions and the dollar amounts involved in the investigation. Part of the investigation involved deputies Michael Disney and Darryl Burt who were allegedly picked out of a photo array by a confidential informant in the presence of Plaintiff. The informant also stated that the "boss of Disney" was receiving illegal payments. Plaintiff claims she narrowed the "boss of Disney" down to four individuals: Lieutenant Richard Saw in Lieutenant Larry Stapleton Sergeant Richard Scott and Rohlfs.

Plaintiff claims that after she made these statements she was involuntarily transferred to the Narcotics Unit on October 1 1990. After her transfer she was required to sign a form consenting to random drug testing. The Department further ordered Plaintiff to cease all her ongoing investigations in the Vice Unit.

On Friday May 10 1991 Plaintiff had an argument with an informant with whom she worked. On the same day plaintiff informed her immediate supervisor Lieutenant Michael Harpster that she no longer wished to work with this informant. Several hours later Harpster claims he received a phone call from the informant who accused Plaintiff of smoking marijuana with her.

On May 13 1991 Plaintiff reported to work and was informed that she and the rest of the Narcotics Unit n1 must submit to a urinalysis test. Sheriff Ray Gallagher ordered the urinalysis testing on the advice of Harpster and Rehm. On May 17 1991 Plaintiff's test came back positive for marijuana and cocaine use. After being informed of the positive result Plaintiff notified Captain Ted Drennan and requested a retest as called for under the Department guidelines. The Department performed the retest on the same urine sample which once again came back positive for marijuana and cocaine use.

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n1 The Narcotics Unit consisted of Plaintiff defendants Rehm and Harpster and five other deputies.

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On her own volition Plaintiff submitted a urine sample to Lovelace Medical Center an independent health care center on May 14 1991. She submitted another sample to the same facility on May 21 1991. On May 24 1991 she submitted a third sample to a medical facility in Freona New Mexico. All three samples came back negative for both cocaine and marijuana use.

On May 31 1991 Rehm prepared a notice of pending disciplinary action alleging that an Internal Affairs investigation had been authorized and commenced into Plaintiff's use of marijuana with a confidential informant on May 3 1991. In the notice Rehm recommended that Plaintiff be fired. Drennan Gallagher Harpster and Rohlfs agreed with the recommendation.

On June 6 1991 at approximately 3 p.m. Harpster notified Plaintiff to be present at 9 a.m. on June 7 1991 for her "predetermination" hearing. She had not yet received the written notice of the disciplinary action against her. Plaintiff's former Counsel called Gallagher to complain about the short notice of the hearing. He claims Gallagher rejected his objection to the short notice stating that the hearing was a "mere formality." On June 7 1991 a pre termination hearing was held in Gallagher's office. On June 11 1991.Gallagher terminated Plaintiff on behalf of the Department.

Gallagher personally delivered the May 31 1991 notice of pending disciplinary action to Plaintiff on June 11 1991. Plaintiff filed a grievance with the Department on June 14 1991 seeking review of the decision. The post-termination hearing was held between June 24 and June 27 1991. The hearing board (Board) of Sergeant Richard Scott Sergeant Bruce Ford and Deputies Derrly Smith Jennifer Iskow and Jack Jones rejected Plaintiff's request that the confidential informant be present to testify and that the Board's decision be by secret ballot. The Board upheld the termination decision of Gallagher on June 27 1991.

A motion for summary judgment may be granted only when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Adickes v. S. H. Kress & Co. 398 U.S.144 157-59 26 L. Ed. 2d 142 90 S. Ct.1598 (1970). The movant bears the initial burden of demonstrating the absence of a genuine issue of material fact Celotex Corp. v. Catrett 477 U.S.317 322-23 91 L. Ed. 2d 265 106 S. Ct.2548 (1986) and as a matter of law must show entitlement to summary disposition beyond a reasonable doubt. Norton v. Liddel 620 F.2d 1375 1381 (10th Cir.1980); Madison v. Deseret Livestock Co. 574 F.2d 1027 1037 (10th Cir1978). Court must view the record in a light most favorable to the existence of triable issues. Exnicious v. United States 563 F.2d 418 (10th Cir.1977).

It may appear prosaic but Court finds it necessary to address Defendants' claims of qualified immunity separately since they have properly raised issues involving qualified immunity under each of Plaintiff's constitutional claims. Therefore Court will first address whether Plaintiff has raised material issues of fact as to her constitutional claims and then will separately address Defendants' claims of entitlement to qualified immunity.

II. FOURTH AMENDMENT CLAIM

Defendants claim the May 13 1991 urinalysis test was a random urinalysis test that was consistent with the Supreme Court's decisions in Skinner v. Railway Labor Exec. Ass'n 489 U.S.602 103 L. Ed. 2d 639 109 S. Ct.1402 (1989) and National Treasury Employees Union v. Von Raab 489 U.S.656 103 L. Ed. 2d 685 109 S. Ct.1384 (1989). Plaintiff contends the urinalysis of the Narcotics Unit was ordered because of the allegations of drug use against Plaintiff and therefore was not random.

Skinner and Von Raab upheld random urinalysis testing of railroad and United States Customs Service employees under the Fourth Amendment. Court stated that "special needs beyond the normal need for law enforcement make the warrant and probable cause requirement impracticable." Skinner 489.U.S. at 619;Von Raab 489.U.S. at 665. Court held that the strong public interest in safety outweighed the limited intrusions on the employees in both instances. Skinner 489.U.S. at 621-22;Von Raab 489.U.S. at 671-72. In finding that the tests were "reasonable" in light of the public interest versus the private intrusion Court strongly emphasized that the tests were defined "narrowly" and "specifically " Skinner 489.U.S. at 622 and that the "covered employee is simply not subject 'to the discretion of the official in the field.'" Von Raab 489.U.S. at 667 (quoting Camara v. Municipal Court 387.U.S. 523 532 18 L. Ed. 2d 930 87 S. Ct.1727 (1967)).

Court need not determine if Skinner and Von Raab applies to sheriff deputies such as Plaintiff n2 see Ford v. Dowd .931 F.2d 1286 1289 (8th Cir.1991); Fraternal Order of Police v. Tucker 868 F.2d 74 (3d.Cir. 1989); but see Jackson v. Gates 975 F.2d 648 (9th Cir.1992) since the urinalysis test fails in the manner in which it was carried out. Skinner 489.U.S. at 622; Penny v. Kennedy 915 F.2d 1065 1067 (6th Cir.1990) (en banc).

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n2 However the rationale of Von Raab would appear to apply to all public employees who carry firearms or who work in drug interdiction.

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Rehm along with Harpster recommended the testing of the Narcotics Unit to Gallagher. Rehm stated in his deposition that he believed Plaintiff was the "catalyst" for the May 13 1991 testing. Gallagher in his deposition stated he understood the urinalysis recommendation was due to the allegations against Plaintiff.

Even if Plaintiff was not the reason for the May 13 1991 analysis the Defendants would not be entitled to summary judgment because the Department's own regulations do not "specifically" and "narrowly" define the situations and manner in which employees are to be tested. Skinner 489.U.S. at 622. The Defendants have submitted no guidelines which would suggest that Gallagher's urinalysis order complied with the demands of Skinner. n3 Therefore the Department's procedures fail to guarantee that its urinalysis testing will be done on a random basis. See Skinner 489.U.S. at 622; Jackson 975 F.2d at 653; Dowd .931 F.2d at 1289;.McDonell v. Hunter 809 F.2d 1302 (8th.Cir.1987); Shoemaker v. Handel .795 F.2d 1136 (3d Cir.1986).

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n3 Defendants have submitted Plaintiff's consent form to random drug testing which states that any testing will be "a random unannounced test at the discretion of Command Personnel." They have also submitted section 330.02 of the Department's Standard Operating Procedures which refers to a deputy's requirement to undergo "random urinalysis". However that section does not define any guidelines limiting the discretion of the official who orders the search. Under Section 330.01 it states "only the sheriff may order such analysis" but does not define when or how the sheriff can so order.

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Defendants' next claim is that even if the test was not random it was constitutional since they had a "reasonable suspicion" to test Plaintiff. See Dowd 931 F.2d at 1289; Tucker 868 F.2d at 77. Defendants claim the informant was "extremely reliable" and that the informant wished no monetary compensation for the information. Harpster and Rehm corroborated the informant's story. They determined the informant and Plaintiff were in a sheriff's vehicle late in the evening of May 3 1991 and this was when Plaintiff allegedly smoked marijuana with the informant.

Plaintiff claims the only fact in possession of the Defendants at the time of the urinalysis was that an informant who worked with the Plaintiff had claimed to have smoked marijuana with Plaintiff in a Department vehicle. Plaintiff claims that at the time of the urinalysis the reliability of the informant was unknown and none of the informant's factual allegations had been corroborated.

"Reasonable suspicion like probable cause is dependent upon both the content of information possessed by police and its degree of reliability." Alabama v. White 496 U.S.325 330 110 L. Ed. 2d 301 110 S. Ct.2412 (1990). "This demand for specificity in the information upon which police action is predicated is the central teaching of this Court's Fourth Amendment jurisprudence." United States v. Cortez 449 U.S.411 418 66 L. Ed. 2d 621 101 S. Ct.690 (1981) (quoting Terry v. Ohio 392 U.S.1 21 20 L. Ed. 2d 889 88 S. Ct.1868 (1969) (emphasis in original)); see also White 496.U.S. at 331-32; Jackson 975 F.2d at 650-53.

Harpster and Rehm stated in their depositions they had no reason to "believe or disbelieve" the informant's accusation. Harpster stated in his deposition that when he talked with the informant on May 10 1991 the informant "never brought up" the fact of the dispute between Plaintiff and the informant earlier in the day. Harpster stated he talked to the informant for "about five minutes" on May 10 1991. Further after talking with the informant Harpster stated he had no information which would credit or discredit the informant's allegations. Rehm was also aware of the fact Plaintiff no longer wished to work with the informant at the time the informant made the accusation. Further Rehm stated that when he first heard of the allegations from Harpster he did not believe them. Neither Rehm or Harpster had ever witnessed any conduct on the part of Plaintiff which would lead them to suspect drug usage. Finally it is unclear if the Defendants were aware of the reliability of the informant before the May 13 1991 testing.

Court finds there are genuine issues of material fact as to what information the Defendants possessed at the time of the May 13 1991 testing and whether this information rises to a level of reasonable suspicion.

Defendants' final contention is that Plaintiff consented to the May 13 1991 urinalysis. Defendants rely on Plaintiff's signing of a consent form which they claim is consistent with the test given. They also rely on her voluntarily taking the urinalysis of May 13 1991 as validating her consent. Plaintiff claims that she went through with the urinalysis test on May 13 1991 because she thought she "had to do it." Further Plaintiff contends she signed the consent form under the belief that any testing was to be conducted at "random."

"[A] search conducted pursuant to a valid consent is constitutionally permissible." Schneckloth v. Bustamonte 412 U.S.218 222 36 L. Ed. 2d 854 93 S. Ct.2041 (1973). Defendants have the burden of proving that Plaintiff "freely and voluntarily" gave her consent to the May 13 1991 test. Id. Mere "acquiescence to a claim of lawful authority" Bumper v. North Carolina 391.U.S. 543 548-49 20 L. Ed. 2d 797 88 S. Ct.1788 (1968) is not sufficient to prove consent. Schneckloth .412.U.S. at 233.

Upon transferring to the Narcotics Unit Plaintiff was required to sign a consent form to random drug urinalysis. The form stated in part that:

I hereby understand that upon being accepted into the Narcotics Investigative Unit . . . I can at any time be ordered to submit myself for analysis of bodily fluids i.e. blood urine etc. for the purpose of detecting the possible usage of illegal drugs. I further understand that this will not necessarily be the result of any suspicious illegal use but will be a random unannounced test at the discretion of Command Personnel.

Defendants first argue that since Plaintiff consented on October 15 1990 to a drug test given at the "discretion of Command Personnel " Skinner and Von Raab do not apply. This is a novel and altogether frivolous argument in light of Supreme Court precedent to the contrary. Employment cannot be conditioned upon the waiver of a constitutional right. See Pickering v. Bd. Of Educ.391 U.S.563 568 20 L. Ed. 2d 811 88 S. Ct.1731 (1968); Frost Trucking Co. v. Railroad Comm. 271 U.S.583 593-94 70 L. Ed. 1101 46 S. Ct.605 (1926). A transfer within employment whether voluntary or involuntary should not be treated any differently than the initial hiring phase. See Von Raab.489.U.S. at 679. In Von Raab Court found that the testing "triggered" by applications for promotion within the United States Customs Service to certain positions was reasonable under the Fourth Amendment. Id. If promotions or transfers within employment did not fall under the Pickering and Frost prohibitions there would have been no need to decide Von Raab.

Defendants' second argument is that Plaintiff consented to the test on May 13 1991 when she voluntarily submitted to the urinalysis. Defendants have not met their strict burden in proving Plaintiff waived her Fourth Amendment rights when she submitted to the May 13 1991 analysis. Schneckloth 412.U.S. at 222; United States v. Guglielmo 834 F.2d 866 868 (10th Cir.1987). Defendants have shown "no more than acquiescence [by Plaintiff] to a claim of lawful authority." Bumper 391.U.S. at 548-49. This is not sufficient to prove consent. Id. at 548-49; Schneckloth 412.U.S. at 233. Therefore Court must address the individual Defendants' claim based on qualified immunity.

Defendants' qualified immunity claim is premised on their belief that reliance on the consent form to test was "objectively reasonable " that Harpster and Rehm could have objectively believed they had reasonable suspicion to recommend the search and that Gallagher acted reasonably in relying on the recommendation of Harpster and Rehm. Anderson v. Creighton 483 U.S.635 97 L. Ed. 2d 523 107 S. Ct.3034 (1987); Harlow v. Fitzgerald 457 U.S.800 73 L. Ed. 2d 396 102 S. Ct.2727 (1982).

The individual defendants are not entitled to qualified immunity if the "facts or allegations [are sufficient] to show both that the defendant's alleged conduct violated the law and that law was clearly established when the alleged violation occurred." Pueblo Neighborhood Health Centers Inc. v. Losavio 847 F.2d 642 646 (10th Cir.1988).

Plaintiff's Fourth Amendment right was "clearly established" in May 1991. See supra. In light of the Supreme Court's precedent in Schneckloth Bumper Pickering and Frost (consent); Skinner and Von Raab (random drug testing); and White Cortez and Terry (reasonable suspicion) and viewing the facts in the light most favorable to Plaintiff Celotex no reasonable officer could have believed the recommended search of Plaintiff was lawful. Anderson 483.U.S. at 641. Therefore Court denies Defendants' motion for summary judgment.

III. THE EXCLUSIONARY RULE

Although the parties did not brief the issue Court finds that Plaintiff's claims compel Court to rule on the applicability of the exclusionary rule in the public employment context. Defendants contend the sole reason for Plaintiff's termination was the positive drug result. Since the drug test may have been unconstitutional the issue that remains is to what extent can Plaintiff seek compensation for damages attributable to a Fourth Amendment violation. If the exclusionary rule does not apply in the employment termination context then Plaintiff is not entitled to any damages which are a result of the Defendants' use of the unconstitutional evidence. n4 This of course would also limit Plaintiff's substantive due process challenge. She would not be able to claim that the use of the alleged unconstitutional drug test to uphold Plaintiff's termination violated her substantive due process rights. See infra part VII substantive due process.

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n4 Of course Plaintiff would still be entitled to recover damages for the unconstitutional search itself.

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The exclusion of relevant evidence unconstitutionally acquired in a non criminal proceeding is not novel to our constitutional jurisprudence. n5 The Supreme Court has recognized that the leading case on search and seizure Boyd v. United States 116 U.S.616 29 L. Ed. 746 6 S. Ct.524 (1886) was itself not a criminal case. One 1958 Plymouth Sedan v. Pennsylvania 380 U.S.693 14 L. Ed. 2d 170 85 S. Ct.1246 (1965). In Plymouth Sedan 380.U.S. at 698 Court made it clear that evidence obtained in violation of the Fourth Amendment cannot be used to sustain a forfeiture proceeding. Court noted that the forfeiture of the vehicle was an action taken to punish for the criminal violation involved. Id. at 700.

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n5 In United States v. Janis 428U.S. 433 49 L. Ed. 2d 1046 96 S. Ct.3021 (1976) Court stated that "in the complex and turbulent history of the rule Court never has applied it to exclude evidence from a civil proceeding federal or state." However buried in a footnote at the end of this statement the Court did concede that the exclusionary rule has been applied "in a proceeding for forfeiture of an article used in violation of the criminal law." Id. at 447 n.17.

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In United States v. Janis 428 U.S.433 49 L. Ed. 2d 1046 96 S. Ct.3021 (1976) Court held the exclusionary rule did not prohibit the Internal Revenue Service from using evidence illegally seized by the Los Angeles Police Department in a civil tax assessment. In Janis Court held the societal costs of excluding unlawfully seized evidence from federal civil proceedings outweighs the sufficient likelihood of deterring the conduct of state police officers. Janis 428.U.S. at 454 (citing United States v. Calandra .414 U.S.338 38 L. Ed. 2d 561 94 S. Ct.613 (1974)). Therefore the exclusionary rule does not prohibit the use of illegal evidence in a civil proceeding by a sovereign which was not involved in violating the Constitution in obtaining the evidence. Court left open the question which is currently before this Court of whether the exclusionary rule would apply in a civil proceeding against an "intrasovereign" violation of the Fourth Amendment. Janis 428.U.S. at 455 n.31.

In INS v. Lopez-Mendoza .468.U.S. 1032 82 L. Ed. 2d 778 104 S. Ct.3479 (1984) Court applied the balancing test in Janis in holding that the exclusionary rule does not apply to "intrasovereign" violations of the Immigration and Naturalization Service. The Court recognized the deterrent effect of the exclusionary rule is greater in cases of "intrasovereign" violations. Lopez-Mendoza 468.U.S. at 1043. However Court stated there were many factors on the cost side of the balance which were not before Court in Janis. Id. at 1043.

The most important factor in Lopez-Mendoza was that the INS had developed its own rules to guard against violating the Fourth Amendment rights of individuals legally in this country. Id. Another factor which was not before Court in Janis was the fact that "applying the exclusionary rule in proceedings that are intended not to punish past transgressions but to prevent their continuance or renewal would require Court to close their eyes to ongoing violations of the law." Id. at 1046. Court also noted that immigration Court and Counsels who practice before them are not well-versed in Fourth Amendment law. Id. at 1048. Further civil deportation proceedings are streamlined hearings to resolve primarily factual and not legal issues. Court also recognized the factual problems which would arise if a border patrol agent had to testify as to whether an individual's Fourth Amendment rights were violated in a mass arrest situation. Id. at 1049-50.

In Savina Home Indus. v. Secretary of Labor 594 F.2d 1358 1363 (10th Cir.1979) Court stated that the exclusionary rule would be applicable to an administrative hearing under the Occupational Safety and Health Act (OSHA). Court found that the exclusionary rule was applicable in civil cases which could be characterized as "quasi-criminal." Id. at 1362. Court distinguished Janis finding the deterrent purpose of the exclusionary rule is furthered by suppressing unconstitutionally seized evidence by an OSHA inspector in an OSHA administrative proceeding. Id. at 1362-63.

Under current Supreme Court and Tenth Circuit precedent Court believes it is bound to apply the exclusionary rule in an employment termination proceeding if the proceeding can be characterized as "quasi-criminal" n6 and if the invocation of the rule will outweigh the costs to society under Janis 428.U.S. at 454.

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n6 It is unclear if the Supreme Court requires a threshold finding that the nature of the civil proceeding is "quasi-criminal" see Janis 428.U.S. at 447 n.17 or if the nature of the proceeding is merely one factor in applying the Janis balancing test. Lopez-Mendoza 468.U.S. at 1038 ("A deportation proceeding is a purely civil action. . . .").

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"Quasi-criminal" proceedings have been defined generally as actions which provide for punishment but are civil rather than criminal in form. See Savina Home 594 F.2d at 1362 n.6. In Powell v. Zuckert 125U.S. App. D.C.55 366 F.2d 634 640 (D.C. Cir.1966) Court found that Government discharge proceedings are "quasi-criminal" in nature in holding that the exclusionary rule applies in civil employment termination proceedings. Powell is the only Court which has addressed the applicability of the exclusionary rule in employment termination proceedings. Further there can be no doubt that Plaintiff's termination for testing positive for drugs was to penalize her for violating the law. Plymouth Sedan 380.U.S. at 700. An on duty sheriff's deputy would be a danger to society if she was under the influence of drugs. See Von Raab 489.U.S. at 670. However there would appear to be no logical distinction between a deputy who was intoxicated by drugs and a deputy who was intoxicated by alcohol. Indeed there appears to be no Department regulations to systematically test deputies for alcohol use. It appears clear to this Court therefore that a distinction is being made not upon any increase in harm by using drugs instead of alcohol while on duty but rather by the fact that drug use in and of itself is against the law. Accordingly Court finds Plaintiff's termination hearing was "quasi-criminal" in nature.

Court having found the employment termination proceeding in question was "quasi-criminal" in nature Court must balance the likely deterrent effect versus the societal costs in applying the exclusionary rule under the facts before Court.

The need to deter unconstitutional random drug testing should be self evident. A random urinalysis by its very nature will subject "innocent" employees to a highly intrusive search. See Lopez-Mendoza 468.U.S. at 1045 (recognizing the important concerns of the constitutional rights of innocent Hispanic-Americans). Moreover unlike probable cause and reasonable suspicion there are no subjective factors a government official must consider before requiring employees to undergo random urinalysis. Consequently in most random urinalysis constitutional challenges much like Plaintiff's allegations here the constitutional violation will not be a mere "constable's blunder" but an egregious violation of the Fourth Amendment. See Lopez-Mendoza 468.U.S. at 1050 (plurality opinion). Finally unlike Janis and Lopez-Mendoza the random urinalysis may only be used in the civil context. See Skinner 489.U.S. at 619 (quoting Griffin v. Wisconsin 483 U.S.868 873 97 L. Ed. 2d 709 107 S. Ct.3164 (1987) (recognizing that Court has carved out exceptions to the warrant and probable cause requirement when "special needs beyond the normal need for law enforcement make the warrant and probable cause requirement impracticable.")). Department officials are not deterred by the potential fear that administering an unconstitutional random urinalysis test would jeopardize a criminal investigation since a random urinalysis test even when constitutionally administered would still be impermissible in a criminal prosecution. See Skinner 489.U.S. at 619;.Von Raab .489.U.S. at 665. Thus the sole purpose the Department administered the urinalysis test was to detect drug use by one of its deputies and to use that evidence in a termination proceeding. See Lopez-Mendoza 468.U.S. at 1053 (White J. dissenting) (quoting Janis 428.U.S. at 458) ("Thus unlike the situation in Janis the conduct challenged here falls within 'the offending officer's zone of primary interest.'").

On the societal cost side of the balance this case is more analogous to Janis than Lopez-Mendoza. There is no evidence before Court that the Department has a comprehensive regulatory scheme to protect their employees' Fourth Amendment rights. Lopez-Mendoza 468.U.S. at 1044. There also is no comparable "streamlined" hearing system to handle the numerous but simple burden of proof and factual issues. Id. at 1048. Even without factual questions of whether the drug test should have been suppressed the termination proceeding lasted three days. Unlike Court's concern in Lopez-Mendoza the determination of whether a random drug urinalysis is constitutional is fairly straight forward. Id. at 1048-49. There also can be no contention that police officers who serve on the Board are not well-versed in Fourth Amendment law. Id. Accordingly the application of the exclusionary rule in employment termination proceedings will not undermine the primary purpose of those hearings. Id.

The costs to society would appear to be limited to the exclusion of otherwise relevant evidence that an employee is using drugs and is therefore subject to termination. However an employee who tests positive for drugs yet successfully proves the test was unconstitutional is not free from all potential discipline. In fact any discipline based on the unconstitutional test which is not characterized as "quasi-criminal" would not invoke the exclusionary rule. This would include suspension with pay a change in position or job duties enrollment and completion of a drug treatment program etc.

Court holds that the Janis balancing test tips in favor of applying the exclusionary rule to an unconstitutional random drug analysis in employment termination proceedings and therefore Court must discuss the individual Defendants' entitlement to qualified immunity.

The issue before Court is whether a reasonable police officer or official should have known that using unconstitutional but relevant evidence in an employee post-termination proceeding was in violation of the exclusionary rule. See Pueblo Neighborhood 847 F.2d at 646. Court finds that a reasonable police official would not have known that using the results of Plaintiff's drug test to justify Plaintiff's termination would violate the exclusionary rule.

Court in Janis specifically stated that it was not addressing the issue which is now before Court. Janis 428.U.S. at 455-56 n. 31. However in Garcia v. Miera 817 F.2d 650 656 (10th Cir.1987) cert. denied 485 U.S.959 108 S. Ct.1220 99 L. Ed. 2d 421 (1988) Court held that Tenth Circuit precedent is dispositive on the issue of whether a law is "clearly established." The issue then is whether Savina Home clearly established that the exclusionary rule applies to employment termination proceedings.

The Tenth Circuit in Savina Home stated "we believe the exclusionary rule would be applicable to OSHA proceedings involving inspections violative of the warrant requirements. . . ." Savina Home 594 F.2d at 1363.Savina Home based its holding on finding that Court's decision in Marshall v. Barlow's Inc. 436 U.S.307 56 L. Ed. 2d 305 98 S. Ct.1816 (1978) (holding that nonconsensual OSHA inspections undertaken without warrants violate the Fourth Amendment) was not to be applied retroactively. Id. at 1363. Court held that retroactive application of the exclusionary rule would not serve its deterrent function. Id. at 1364. Although Court stated that applying Barlow's retroactively would have no practical significance without finding that the exclusionary rule applies to administrative hearings Court did not hold that the exclusionary rule applied. Id. at 1361-63. Further Savina Home was decided before Court's decision in Lopez-Mendoza 468.U.S. at 1042 which held that the exclusionary rule did not apply to "intrasovereign" violations in civil deportation proceedings.

Court holds that the applicability of the exclusionary rule was not "clearly established" under Tenth Circuit precedent in civil proceedings. Therefore a reasonable police official would not have known that the use of illegally obtained evidence could not be used in employment termination proceedings.

IV. FIRST AMENDMENT CLAIM

Defendants claim that there are no genuine issues of material fact as to whether Plaintiff was terminated for exercising her First Amendment rights. They also claim that independent of any First Amendment retaliation claims Defendants' termination decision was reasonable based on the positive drug test. Mt. Healthy City School Dist. Bd. of Educ. v. Doyle 429 U.S.274 287 50 L. Ed. 2d 471 97 S. Ct.568 (1977); Setliff v. Memorial Hospital 850 F.2d 1384 (10th Cir.1988). Plaintiff claims the urinalysis test and her termination allegedly based on a positive drug result was pretextual. She claims she was tested and terminated in retaliation for comments she made which are protected by the First Amendment. Rankin v. McPherson 483 U.S.378 97 L. Ed. 2d 315 107 S. Ct.2891 (1987); Connick v. Myers 461 U.S.138 75 L. Ed. 2d 708 103 S. Ct.1684 (1983).

"It is clearly established that a state may not discharge an employee on a basis that infringes that employee's constitutionally protected interest in freedom of speech." Rankin .483.U.S. at 383 (citing Perry v. Sindermann .408.U.S. 593 597 33 L. Ed. 2d 570 92 S. Ct.2694 (1972)). The determination of whether an employee's speech is protected in the employment context requires "a balance between the interests of the employee as a citizen in commenting upon matters of public concern and the interests of the state as an employer in promoting the efficiency of the public services it performs through its employees." Rankin .483.U.S. at 384 (quoting Pickering v. Board of Educ. 391 U.S.563 568 20 L. Ed. 2d 811 88 S. Ct.1731 (1968)). The first part of the balance requires Plaintiff to show that her speech was a "matter of legitimate public concern. . . ." Connick 461.U.S. at 145 (quoting Pickering 391.U.S. at 571-72).

In Patrick v. Miller 953 F.2d 1240 (10th Cir.1992) Court held that "speech which discloses any evidence of corruption impropriety or other malfeasance on the part of city officials in terms of content clearly concerns matter of public import." Id. at 1247-48 (quoting Conaway v. Smith 853 F.2d 789 796 (10th.Cir. 1988)). Once Plaintiff has established her speech was a matter of public concern the burden shifts to the Defendants to establish an important interest as an employer which outweighs Plaintiff's interest as a citizen in commenting on a matter of public concern. Rankin 483.U.S. at 388; Connick 461.U.S. at 150; Mt. Healthy 429.U.S. at 287.

Important considerations Court has weighed in the past involve whether the speech impairs discipline; its detrimental impact on working relationships; its impediments on the speaker's performance of her duties; and its interference with the regular operation of the enterprise. Rankin 483.U.S. at 388 (citing Pickering 391.U.S. at 570-73). If Plaintiff's interest in commenting on matters of public concern is not outweighed by the interest of Defendants as an employer Plaintiff's speech is protected by the First Amendment.

Plaintiff then has the burden of proving that her protected speech was the "motivating" or "substantial" factor behind the reason to terminate her. Mt. Healthy 429.U.S. at 287. If Plaintiff meets her burden Defendants can still avoid liability if they can prove by a preponderance of the evidence that the termination decision would have been made in any event. Connick .461.U.S. at 150.

Defendants have not disputed that Plaintiff had at least two separate conversations with Department officials discussing the alleged corruption within the Department. Patrick 953 F.2d at 1247-48 (evidence of corruption are matters of public concern); Rankin .483.U.S. at 388 (private conversations are protected by the First Amendment). Consequently Court finds that Plaintiff's speech was on a matter of public concern. The burden now shifts to Defendants to prove a legitimate interest as an employer which outweighs Plaintiff's interest in commenting on alleged corruption within the Department.

On the record before Court there is no evidence that the statements were made outside of the two private conversations with her superiors. Her speech did not interfere with her duties since her very duties as a police officer (and as a vice officer) were to investigate criminal activity. While Court recognizes that allegations of corruption within a police department would tarnish its image and would be disruptive to some extent (especially to the officers involved) this could not justify the retaliation Plaintiff alleges here. See e.g. Conaway 853 F.2d at 798. Therefore Defendants have not met their burden that Plaintiff's right to speak out on matters of public concern was outweighed by any interest Defendants have as an employer and thus Plaintiff's speech is protected by the First Amendment.

Plaintiff has also raised genuine issues of material fact that her termination was substantially motivated by her protected speech. Plaintiff's evidence consists of her sudden transfer out of the Vice Unit and the circumstances surrounding the May 13 1991 drug testing. Plaintiff has claimed that other deputies had been accused of drug use and other serious crimes and the Department never took any affirmative action. In fact the testimony before Court is that no one could remember if the Department had ever before conducted a urinalysis test of its deputies. Defendants admit that the May 13 1991 drug urinalysis was ordered at least in part if not solely because of the accusations against Plaintiff. Further Plaintiff's three negative test results one taken the day after the May 13 1991 urinalysis and the fact that Defendants cannot provide a "chain of custody" of her urine sample raise material issues of fact that there may have been tampering.

Finally Defendants have mischaracterize the affirmative defense burden under Mt. Healthy 429.U.S. at 285-86. It is not enough to state that the positive drug test gave the Department "sufficient" reason to terminate Plaintiff regardless of any unconstitutional motivation. Once Plaintiff proves her termination was substantially motivated by her protected speech it will be Defendants burden to prove that Plaintiff would have been terminated not merely that she could have been terminated for testing positive for drugs. Rankin .483.U.S. at 380 (Plaintiff was probationary employee who could have been fired for any reason); Mt. Healthy 429.U.S. at 285 (non-tenured teacher who could have been fired); Perry 408.U.S. at 597-98 (non-tenured professor with no contractual rights to being rehired). Plaintiff has raised genuine issues of material fact that other deputies under similar circumstances would not have been terminated by Defendants.

Court finds Plaintiff has raised genuine issues of material fact the Defendants violated her First Amendment rights and now Court must address the individual Defendants' claim of qualified immunity.

The individual Defendants argue that qualified immunity is appropriate because a reasonable police official could have believed that the positive drug test was a sufficient reason to terminate Plaintiff regardless of any unconstitutional motivation by the Defendants. Connick 461.U.S. at 150; Mt. Healthy 429.U.S. at 287. Defendants argue that Court should apply a qualified immunity analysis to Defendants' affirmative defense under Mt. Healthy. Qualified immunity however is only appropriate to "determine whether [plaintiff's] speech addressed matters of public concern and if so whether the protected nature of [her] speech was sufficiently clear that defendants should have known the [Department's] interests would not survive a balancing inquiry." Patrick 953 F.2d at 1246.

As discussed supra Plaintiff's speech on corruption within the Department is on a matter of public concern. Patrick 953 F.2d at 1247-48; Conaway 853 F.2d at 798. Defendants have not submitted any legitimate reasons as an employer which would outweigh Plaintiff's interest to speak out on alleged corruption within the Department.

Court finds that no reasonable police official could have believed that the Department's interests as an employer would outweigh Plaintiff's interest as a citizen. Melton v. City of Oklahoma City 879 F.2d 706 722 (10th Cir.1989) rev'd on other grounds 928 F.2d 920 (10th.Cir.) cert. Denied.U.S 116 L. Ed. 2d 241 116 L. Ed. 2d 241 112 S. Ct.296 112 S. Ct.297 (1991). Therefore Court denies Defendants' motion for summary judgment.

V. PROCEDURAL DUE PROCESS (LIBERTY)

Defendants claim Plaintiff has not met her burden in establishing a liberty violation and even if Plaintiff has met her burden in making a liberty claim she was provided with all the procedures a liberty interest guarantees. n7 Plaintiff argues she has stated a liberty claim which was violated by Defendants' denial of her request to cross-examine the informant and the pre textual nature of the pre-termination hearing.

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n7 There is no dispute between the parties that Plaintiff has a property interest in her job. Therefore Plaintiff was entitled to procedural due process whether she can prove a liberty violation or not. However Plaintiff's ability to prove a liberty violation could substantially affect the amount of damages she may be able to recover for a due process violation. Carey v. Piphus 435.U.S. 247 262 55 L. Ed. 2d 252 98 S. Ct.1042 (1978) (no presumed compensatory damages for a procedural due process violation).

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"The liberty interest concept recognizes two particular interests of a public employee: (1)protection of [her] good name reputation honor and integrity and (2)freedom to take advantage of other employment opportunities." Walker v. United States 744 F.2d 67 69 (10th Cir.1984) (citing Miller v. City of Mission 705 F.2d 368 373 (10th Cir.1983)). To make a sufficient claim of a liberty interest an employee must establish the following elements: (1) that the charges of dishonesty or immorality were made during the termination decision or proceedings; (2) they must have been made public; and (3) they must be false. Melton 928 F.2d at 926. Further public statements are not stigmatizing as a matter of law Southeast Kansas Community Action Program v. Secretary of Agriculture 967 F.2d 1452 1458 (10th Cir.1992) unless the statements have the potential to damage Plaintiff's standing or associations in the community and her freedom to take advantage of future employment opportunities. Melton 928 F.2d at 927.

The charges of lying and drug use especially by a sheriff deputy are the type of "stigmatizing" statement which gives rise to a liberty interest in procedural due process. See Board of Regents v. Roth 408 U.S.564 573 33 L. Ed. 2d 548 92 S. Ct.2701 (1972) (dishonesty or immorality); Walker 744 F.2d at 69 (falsifying an employment form); McGhee v. Draper 564 F.2d 902 911 (10th Cir.1978) (statements questioning fitness to be a teacher). The charges of drug use lying and smoking marijuana in a Department vehicle were raised during the termination proceedings. Plaintiff has disputed her use of drugs and the charge that she smoked marijuana with a police informant in a Department vehicle. Melton .928 at 926 (quoting Codd v. Velger .429.U.S. 624 627 51 L. Ed. 2d 92 97 S. Ct.882 (1977) ("There must be some factual dispute between an employer and a discharged employee which has some significant bearing on the employee's reputation.")). Therefore if the charges were made public Plaintiff has raised a liberty interest claim. Melton 928 F.2d at 927.

Plaintiff claims that the newspaper article printed in the Albuquerque Journal on Friday May 24 1991 meets the requirement that the stigmatizing statements be made public. The newspaper article states that Gallagher confirmed Plaintiff had been placed on administrative leave. The story also states Gallagher refused to give any reasons for the Department's actions. The article claims "other sources" said that Plaintiff was tested for drug use after a complaint by a police informant. These facts are not in dispute between the parties and therefore cannot be the basis for a liberty claim. Codd 429.U.S. at 627; Melton 928 F.2d at 926. However based on the article the logical inference regarding Plaintiff's suspension after a drug test would be that Plaintiff tested positive for drugs. Consequently Plaintiff has raised genuine issues of material fact the false charges were made public. n8 Further the "other sources" mentioned in the article must have come from within the Department since it would appear that only Department officials would have been aware of the urinalysis testing and the suspension of Plaintiff.

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n8 Plaintiff does not have to establish that the Defendants' statements were reported in the news media to prove they were made public. Any public recording is sufficient to give rise to a liberty claim. See Goss v. Lopez 419 U.S.565 575 42 L. Ed. 2d 725 95 S. Ct.729 (1975); Walker 744 F.2d at 69.

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Court finds there are genuine issues of material fact as to Plaintiff's liberty claim and therefore Court denies Defendants' motion for summary judgment. n9

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n9 The Tenth Circuit has not distinguished between the procedures required under liberty and property due process claims. Melton 879 F.2d at 721. Therefore Court's discussion of Plaintiff's property due process claims regarding her pre termination hearing and her right to cross-examine the informant would also apply to Plaintiff's liberty claim. However as Court has already stated see supra footnote 7 Plaintiff's ability to prove a liberty violation is only relevant as to the amount of damages Plaintiff may have suffered.

As an example if Plaintiff proves her due process right to cross-examination was violated then Plaintiff is entitled to recover one judgment for both her liberty and property due process claims. However if Plaintiff proves she was entitled to liberty due process protection she will be able to seek damages unique to her liberty interest claim.

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VI. PROCEDURAL DUE PROCESS (PROPERTY)

The parties do not dispute that Plaintiff could have only been discharged for "just cause" and therefore she had a property right in her continued employment which procedural due process recognizes. Cleveland Bd. of Educ. v. Loudermill 470 U.S.532 84 L. Ed. 2d 494 105 S. Ct.1487 (1985). Thus the issue before Court is what process was Plaintiff due.

Defendants claim they are entitled to summary judgment on Plaintiff's claim that she was denied due process during her pre termination and post-termination hearings. Defendants argue Plaintiff had notice of the charges and evidence against her before the pre termination hearing; that she received all the process she was due; and therefore Defendants are entitled to summary judgment as a matter of law. Loudermill .470.U.S. at 532. As to her post-termination proceedings Defendants claim there are no genuine issues of material fact to establish that the Board was biased against Plaintiff. Further Defendants claim Plaintiff had no right to request the board vote by secret ballot or to cross-examine the informant during the post-termination proceedings. Plaintiff claims she was denied an adequate pre termination hearing. She specifically objects to the short notice she was given of the pre termination hearing and to the fact the hearing was pre textual. As to the post-termination hearing she claims she was denied her due process rights to an impartial tribunal her right to request the board's decision be made by secret ballot and her right to cross-examine her accuser.

It has been settled for some time now that the "root requirement" of the Due Process Clause requires "some kind of a hearing" prior to the termination of an employee who has a property interest in her job. Loudermill 470U.S. at 542. So long as there is a full post-termination evidentiary hearing the pre termination hearing "need not be elaborate." Id. at 545-46. Basically an employer has to provide an employee notice of the charges against her an explanation of the employer's evidence and a hearing to give the employee an opportunity to tell her side of the story before being deprived of her property interest in continued employment. Id. at 546.

The first requirement is met if the employee receives written or oral notice of the charges against her sometime before the hearing begins. Loudermill .470.U.S. at 546 (oral notice sufficient); Goss v. Lopez .419 U.S.565 582 42 L. Ed. 2d 725 95 S. Ct.729 (1975) ("There need be no delay between the time 'notice' is given and the time of the hearing."); Panozzo v. Rhoads 905 F.2d 135 139 (7th Cir.1990) (notice of a pre termination hearing the night before is sufficient). The second requirement is met if the employee is aware of the employer's evidence against her at the time of the hearing. Loudermill 470.U.S. at 546. The third requirement is met if the employee is given an opportunity to present her side of the story. Id. Implicit in this final requirement is that the hearing officer must not have already made up his mind to terminate the employee before hearing the employee's view of the events in question. Loudermill 470.U.S. at 543 ("Some opportunity for the employee to present [her] side of the case is recurringly of obvious value in reaching an accurate decision."); Goss 419.U.S. at 584 (requiring "at least an informal give-and-take" to hedge against erroneous action).

While Plaintiff states she did not receive any formal written notice of the charges against her until June 11 1991 Plaintiff did have notice that she was being put on administrative leave pending disciplinary action as early as May 17 the day her positive drug result was known. She was also aware of the accusations of the informant as of May 17 1991. Therefore at the time of the pre termination hearing of June 7 1991 Plaintiff had oral notice of the charges against her and she was aware of her employer's evidence. She does not contend that she was not given an opportunity to explain her side of the story at the June 7 1991 hearing. Loudermill 470.U.S. at 546; Miller v. City of Mission 705 F.2d 368 (10th Cir.1983).

However there are genuine issues of material fact of whether the pre termination hearing was pre textual. Plaintiff claims the night before the June 7 1991 pre termination hearing Plaintiff's former Counsel contacted Gallagher to complain about the short notice. Gallagher allegedly rejected Plaintiff's request for more time stating that the "hearing was a mere formality." Gallagher remembers the conversation but does not remember making the above statement.

If this statement was made it could merely reflect the fact that Gallagher (correctly) believed that a pre termination hearing can be an informal session. However it might also be interpreted as meaning that the decision to terminate was already made and the hearing was just a legal formality. If the latter then the hearing was not the sort of "informal give-and-take" due process requires. Goss .419.U.S. at 584.

There is evidence that Gallagher had already made his decision to terminate Plaintiff before the June 7 1991 hearing. In a "Notice of Pending Disciplinary Action" memorandum written by Rehm to Plaintiff on May 31 1991 (May 31 letter) Rehm recommended that Plaintiff be fired and stated that "this Notice of Pending Disciplinary Action is to be reviewed through my chain of command and you will be notified of a pre-determination hearing should this recommended action receive the concurrence of the Sheriff." Gallagher signed but did not date the May 31 letter. n10 One reading of this letter is that Gallagher concurred in Rehm's decision to terminate Plaintiff prior to the June 7 1991 pre termination hearing. Moreover the crux of Plaintiff's complaint is that Gallagher and the other Defendants terminated Plaintiff in retaliation for her statements regarding impropriety within the Department. Since Court has found that Plaintiff has raised genuine issues of material fact as to her retaliation claim it would be inconsistent to find that the pre termination hearing was not pre textual in light of other evidence Plaintiff has presented on this issue. Therefore Court finds there are material issues of genuine fact as to whether the June 7 1991 pre termination hearing violated Plaintiff's procedural due process rights.

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n10 However Rohlfs and Harpster both signed and dated the letter prior to June 7 1991.

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Although Plaintiff's complaint presents only one count for a violation of her property right to procedural due process encompassing both claims of pre termination and post-termination violations Court must still address Defendants' summary judgment motion as it applies to the alleged post-termination violations. See Loudermill 470.U.S. at 547 n.12.

Court first rejects Plaintiff's contention that the June 24-27 hearing was only a pre termination hearing. Plaintiff claims since she was paid up through the June 24-27 proceedings she had not yet been deprived of any constitutionally protected interest and therefore the hearing was a pre-termination hearing. Schaper v. City of Huntsville 813 F.2d 709 714 n.5 (5th Cir.1987). However since termination became effective on June 11 1991 if not before see supra the teachings of this circuit require this Court to treat the June 24-27 hearing as a post-termination proceeding. Seibert v. Univ. of Oklahoma 867 F.2d 591 597 (10th Cir.1989) (quoting Loudermill .470.U.S. at 542) ("It is settled that 'the root requirement' of the Due Process Clause is 'that an individual be given an opportunity for a hearing before she is deprived of any significant property interest.'"); Miller 705 F.2d at 372 ("Moreover except in emergency situations due process requires that the hearing be held before termination becomes effective."). n11

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n11 In Schafer Court cited language in Loudermill 470.U.S. at 544-45 to suggest that no significant deprivation occurs until pay stops. Court believes the opinion in Schafer misinterpreted Loudermill.

Loudermill does not stand for the proposition that pay and not termination is the significant deprivation starting point. The language the Schafer court relies on only suggests that an employer in narrow circumstances could suspend an employee with pay if it would create a "significant hazard in keeping the employee on the job. . . ." Loudermill 470.U.S. at 545 and n. 10. If this language was not narrowly interpreted it would be inconsistent with other language in Loudermill.470.U.S. at 542 ("This principle requires 'some kind of a hearing' prior to the discharge of an employee who has a constitutionally protected property interest in [her] employment.").

Further the only significance of treating the June 24-27 proceeding as a pre-termination hearing would be to take the events of June 7 1991 outside the scope of constitutional scrutiny. Therefore Court will not permit Plaintiff to shoot herself in the foot on this occasion.

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Plaintiff's argument that she was denied her right to an impartial tribunal has two components. First she claims Board Chairman Scott was biased against her. Second she claims John Higgins not only presented the Department's case against Plaintiff but also gave legal advice to the Board concerning this matter in violation of the prohibition against mixing the adjudication and prosecutorial functions. Withrow v. Larkin 421 U.S.35 43 L. Ed. 2d 712 95 S. Ct.1456 (1975).

The right to an impartial tribunal is a fundamental component of procedural due process. Schweiker v. McClure 456 U.S.188 195 72 L. Ed. 2d 1 102 S. Ct.1665 (1982); Patrick 953 F.2d at 1245. It is "absolute in the sense that it does not depend upon the merits of a claimant's substantive assertions. . . ." Carey v. Piphus 435 U.S.247 266 55 L. Ed. 2d 252 98 S. Ct.1042 (1978). However Court must start by "presuming the hearing officer is not biased." Schweiker 456U.S. at 195 (citing Withrow v. Larkin 421 U.S.35 47 43 L. Ed. 2d 712 95 S. Ct.1456 (1975)). Plaintiff has the burden to establish a "conflict of interest or some other specific reason for disqualification." Schweiker 456.U.S. at 195. Plaintiff can meet her burden by establishing that the Board members have a "direct and substantial interest " which due process prohibits. Ward v. Village of Monroeville 409 U.S.57 60 34 L. Ed. 2d 267 93 S. Ct.80 (1972); see also Aetna Life Ins. v. Lavoie 475.U.S. 813 825-26 n.3 89 L. Ed. 2d 823 106 S. Ct.1580 (1986) (requiring the interest to be more than slight); In re Murchison 349 U.S.133 136 99 L. Ed. 942 75 S. Ct.623 (1955) (not requiring that the interest be pecuniary).

Plaintiff claims the evidence raises issues of material fact of whether Scott and the Board were impartial. First Board Chairman Scott exhibited his bias towards Gallagher in a public meeting held the day before the Board upheld Gallagher's termination decision. Scott stated before the Department's labor union that "we do back Sheriff Gallagher in the decisions he makes." Plaintiff claims this statement establishes issues of fact of whether Scott could make impartial rulings involving decisions made by Gallagher.

Defendants argue that this statement was made to show the Department's support for the new Sheriff. However in light of the fact this statement was made the day before the Board's decision upholding Gallagher's termination of Plaintiff it could also be interpreted to mean that Scott had an unyielding alliance to the Sheriff. While there is no allegation that Scott received compensation for ruling in favor of Gallagher it is not unreasonable to assume that a subordinate official might gain some pecuniary or other type of reward for exhibiting a bias toward his superior. Combined with the fact that Scott may have been relying on Higgins' legal judgments see infra in making his rulings as Chairman in this matter Court finds that there are genuine issues of material fact as to Scott's impartiality.

Next Plaintiff claims the proceedings improperly mixed the prosecutorial and adjudicative functions. It is undisputed by the parties that Higgins presented Gallagher's case before the Board. It is also undisputed that Higgins acts as legal advisor not only to Gallagher but to the entire Department. Plaintiff claims that Higgins not only presented the case before the Board but also advised the Board through Chairman Scott.

If the Board considered Higgins as its advisor in this case he was in effect an adjudicator and prosecutor in the same case. Higgins could not represent Gallagher's termination decision to the Board and at the same time impartially advise the Board. Cf. Withrow 421.U.S. at 47. ("Under a realistic appraisal of psychological tendencies and human weaknesses conferring investigative and adjudicative powers on the same individual poses such a risk of actual bias or pre judgment that the practice must be forbidden if the guarantee of due process is to be adequately implemented.").

The facts before Court raise genuine issues of material fact of the potential improper dual role Higgins played in this matter. Scott testified in Plaintiff's unemployment compensation hearing that Higgins was the Board's advisor in Plaintiff's case. n12 While Defendants dispute the context in which this statement was taken this is a matter for the trier of fact. Further Court finds the portions of the post-termination transcript before the Court lend support to Plaintiff's claim that the Board was relying on Higgins' legal expertise in making its evidentiary rulings. n13

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n12 The portion of the unemployment compensation hearing testimony of Scott which Plaintiff suggests raises material issues of fact that Higgins was seen as the Board's advisor is as follows:

Q: Now you testified that your role in the grievance hearing was as the chairman of the grievance Board correct?

A: Yes sir.

Q: And Counsel to the grievance Board was Mr. Higgins who is here present today correct?

A: Yes sir.

n13 Turpen: "I object to the hearsay this is now third hand hearsay. . . ."

Higgins: "If I could respond to that."

Turpen: "We could bring these people in they're right here in town. . . ."

Higgins: "That is for the Board to determine hearsay is admissible at an administrative hearing. The strict rules of evidence are relaxed for purposes of administrative hearing and it is for the Board to determine what credibility tends to give each witness and make its own determination what it will accept and what it will not accept. . . ."

Scott: "I think ah. . . ."

[The Board permitted the witness to continue.]

Turpen: "I object to having this witness characterized to what she admitted or denied. . . ."

Higgins: "The Board will draw its own conclusions when (inaudible) states what Sabrina told him."

Scott: "I believe that I will allow the testimony. . . ."

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Court also rejects Defendants' argument that since there is no evidence before Court the other four Board members were biased against Plaintiff the Board's decision was not altered by any perceived bias. n14 Although Court agrees that there is no evidence that any individual Board member other than Scott might have been biased this does not foreclose Plaintiff's opportunity to establish at trial that the bias of Scott and Higgins may have influenced the decisions of at least two of the other four Board members. Aetna .47 .U.S. at 831 (Brennan J. concurring) ("Experience teaches us that each member's involvement plays a part in shaping Court's ultimate disposition."). Court believes Supreme Court precedent would suggest a procedural due process violation has occurred regardless of the actual harm Plaintiff may have suffered. Marshall v. Jerrico 446 U.S.238 242 64 L. Ed. 2d 182 100 S. Ct.1610 (1980) (recognizing that the Due Process Clause protects both the appearance and the reality of fairness); Carey 435.U.S. at 262 ("Petitioners do not deny that a purpose of procedural due process is to convey to the individual a feeling that the government has dealt with him fairly as well as to minimize the risk of mistaken deprivations of protected interests."). The fact that Scott may not have altered the outcome would only be relevant to the issue of damages.Id. at 266 (holding that without proof of actual damages plaintiff is only entitled to nominal non-punitive damages for the procedural violation).

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n14 Under the Department's procedures the Chairman only votes in the case of a tie. In this case the Board voted unanimously (4-0) to uphold the termination decision.

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Court recognizes language in Aetna .475.U.S. at 828 and n.5 suggests that a procedural due process violation has not occurred if the perceived bias did not alter the outcome. But see id. at 829 (Brennan J. concurring) (stating that the influence on the actual outcome is irrelevant to finding the tribunal was not impartial); id. at 830 (Blackmun J. joined by Marshall J. concurring) (same). In Aetna Court found that an Alabama Supreme Court Justice improperly sat on a case in violation of the Due Process Clause. In finding a due process violation and in vacating the opinion of Court Court relied on the fact that the biased Court n15 might have cast the deciding vote. Id. at 826-27. The fact the biased Court cast the deciding vote appeared to be important to the majority in determining an appropriate remedy not in finding a due process violation. Id. at 827. This would be consistent with Court's opinion in Carey.

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n15 Court did not decide whether the justice was actually biased but only whether the monetary temptation involved '"would offer a possible temptation to the average. Court to . . . lead him not to hold the balance nice clear and true.'" Aetna .475.U.S. at 825 (quoting Ward 409.U.S. at 60) (quoting Tumey v. Ohio 273 U.S.510 523 71 L. Ed. 749 47 S. Ct.437 (1927)).

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Court also finds that Defendants are not entitled to summary judgment on Plaintiff's claim that she was denied her right to due process when Defendants [**60] rejected her request that the Board's decision be made by secret ballot. The Supreme Court has consistently stated that "due process is flexible and calls for such procedural protections as the particular situation demands. Morrissey v. Brewer 408 U.S.471 481 33 L. Ed. 2d 484 92 S. Ct.2593 (1972). While "procedural due process rules are shaped by the risk of error inherent in the truth finding process as applied to the generality of cases " Mathews v. Eldridge 424 U.S.319 344 47 L. Ed. 2d 18 96 S. Ct.893 (1976) Court has also recognized that the boundaries can only be set "according to specific factual contexts." Hannah v. Larche 363 U.S.420 442 4 L. Ed. 2d 1307 80 S. Ct.1502 (1960).

In Mathews 424.U.S. at 335 Court created a balancing test to be applied to determine what procedures are due. Court balanced the private interest at stake the risk of an erroneous deprivation of that interest under the current procedures and the probable value of additional or substitute safeguards against the Government's interest in avoiding the fiscal and administrative burdens the additional or substitute procedures would require. Id.

Plaintiff's interest in her continued employment was significant. See id.; Loudermill 470.U.S. at 543 ("We have frequently recognized the severity of depriving a person of the means of livelihood."). If Gallagher retaliated against Plaintiff then the risk was potentially great that the Board members might also fear retaliation if they voted against upholding Gallagher's decision. While the ability of a secret ballot to lower the risk of an erroneous deprivation is questionable if the retaliation was real if nothing else it would have "intrinsic value" n16 as to Plaintiff's perception that the Board could impartially review Gallagher's decision. Although the utility of the secret ballot would not be as effective as requesting a review board composed of members independent of the Department it does not entail the cost or burdens involved in such a request. Finally Court must balance the Plaintiff's strong interest in avoiding an erroneous deprivation against the Department's interest in avoiding the added administrative burdens and financial costs of the secret ballot. Id. Defendants did not raise any administrative burdens or costs associated with implementing a Board decision by secret ballot and Court is unaware of any added burdens or costs associated with a secret ballot request. Accordingly Defendants have not met their burden under Mathews.

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n16 Court in Marshall v. Jerrico Inc. 446.U.S. 238 242 64 L. Ed. 2d 182 100 S. Ct.1610 (1980) (citing Carey 435.U.S. at 259-62 266-67) stated that the "requirement of neutrality in adjudicative proceedings safeguards the two central concerns of procedural due process the prevention of unjustified or mistaken deprivations and the promotion of participation and dialogue by affected individuals in the decision making process." The promotion of participation by affected individuals is what Professor Lawrence Tribe calls the "intrinsic value" of procedural due process. LAWRENCE H. TRIBE American Constitutional Law p. 666 (2d ed. 1988).

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Plaintiff's final argument is that her procedural due process rights were violated when she was denied the ability to cross-examine the informant. Goldberg v. Kelly 397 U.S.254 269 25 L. Ed. 2d 287 90 S. Ct.1011 (1970). Defendants argue that Plaintiff's due process rights were not violated by the Defendants' refusal to allow her to cross-examine the informant. Meder v. Oklahoma City 869 F.2d 553 555 (10th Cir.1989). They further argue that even if Plaintiff had a due process right to cross-examine the informant Defendants did not prohibit Plaintiff from cross-examining the informant. Rather it was Plaintiff who failed to produce the informant at her post-termination hearing.

The right to cross-examination in this context is not absolute. Meder 869 F.2d at 555;Rosewitz v. Latting .689 F.2d 175 178 (10th Cir.1982). However "in almost every setting where important decisions turn on questions of fact due process requires an opportunity to confront and cross-examine adverse witnesses." Goldberg 397.U.S. at 269. This circuit has consistently held the right to cross-examination exists when the termination decision is based upon accusations of lying. Melton v. City of Oklahoma City 879 F.2d 706 722 (10th Cir.1989) rev'd in part 928 F.2d 920 (10th Cir.1991); Walker v. United States 744 F.2d 67 70 (10th Cir.1984). To establish she had a right to cross-examination Plaintiff must show how her termination might have been different had she been able to cross-examine her accuser. Meder 869 F.2d at 555. Further if Plaintiff was somehow derelict in protecting her right to cross-examine adverse witnesses she cannot now complain that her right to cross-examination has been violated. West v. Grand County 967 F.2d 362 369 (10th Cir.1992).

Plaintiff raises the fact that two of the five alleged violations of the Department's Operating Procedures Manual (Manual) which led to her termination could have been proved only if the informant's accusations were believed. n17 In fact all of the sections cited may have relied on the informant's accusations. Since Court does not have the Board's findings of facts in this matter the Court can only assume that the Board upheld Gallagher's decision in total. n18

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n17 The May 31 letter discussed supra claimed Plaintiff violated the following sections of the Manual:

Section 121.01

"Will not commit or omit any acts which constitute a violation of any of the rules regulations duties and responsibilities directives or orders of this department including those orders given via radio or a person of the same or lower rank. . . ."

Section 121.02

"Will conduct themselves on or off duty in such a manner as to reflect most favorably on the department. Conduct unbecoming a member or employee shall include that which brings the department and/or individual member or employee into disrepute or impairs the operation or efficiency of the department."

Section 121.03

"Will obey all laws of the United States of America and of any state and local jurisdiction in which they are present. . . ."

Section 121.05

"Will constantly direct their best efforts to accomplish the functions of the department intelligently efficiently competently. They be truthful in all matters relating to their official duties and employment. They will not engage in any activity or personal business which may cause them to neglect or be inattentive to duty."

Section 121.10

"Will not possess store or bring into any department facility or vehicle alcoholic beverages controlled substances narcotics or hallucinogens except in the performance of their official duties or which has legally been prescribed. . . ."

n18 In fact the only document which evidences the Board's findings in this matter was dated on June 27 1991 and it states:

"The Grievance Board by majority decision has upheld the action of sheriff Ray Gallagher to terminate Deputy 1/C Sabrina Pike."

It was signed by all four of the voting Board members.

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Defendants contend that the positive drug test alone is enough evidence to uphold the termination decision. However the relevant issue before Court concerns the evidence the Board did rely on not what evidence it could have relied on in coming to its decision. On the record before Court it is impossible to determine whether the Board weighed the informant's accusations in upholding Gallagher's termination decision.

Court finds that Plaintiff has raised genuine issues of material fact that her due process rights were violated and thus the Court must address the individual Defendants' claim of qualified immunity.

Defendants argue the rights Plaintiff claims were violated were not clearly established at the time of Defendants' actions; that Defendants' actions were reasonable and hence Defendants are entitled to qualified immunity.

The right to a pre termination hearing before any significant action is taken against an employee was clearly established before May 1991. Therefore Defendants' actions were not objectively reasonable if the termination decision was in essence made before June 7 1991. Loudermill 470.U.S. at 546; Meder 869 F.2d at 554. As this involves a question of fact Court cannot grant Defendants' motion for qualified immunity on this issue. The right to an impartial hearing was also clearly established before May 1991. Again factual issues regarding the Board's impartiality and the improper mixing of prosecutorial and adjudicative functions precludes the Court from granting Defendants' motion for qualified immunity.

A more difficult problem is presented on Plaintiff's claims of procedural due process violations based on the denial of Plaintiff's request to a secret ballot and cross-examination. Since both issues require a case-by-case evaluation an argument can be made that the law cannot be clearly established unless the facts line up with prior Tenth Circuit precedent. However in Melton Court rejected the notion that the Harlow analysis under qualified immunity cannot be reconciled with constitutional violations which require a balancing approach. See Melton 879 F.2d at 729 (applying qualified immunity analysis to First Amendment balancing test). Court believes the rationale underlying Court's opinion in Melton also should be applied to the balancing test under procedural due process.

As to the denial of cross-examination if the termination decision was partly based on the credibility of the informant's accusations prior Tenth Circuit and Supreme Court precedent fairly put the individuals on notice under a Harlow inquiry. Goldberg 397.U.S. at 269; Walker 744 F.2d at 70.

The secret ballot request is more troublesome. Court has found no opinions analyzing this issue. However as Court stated in Melton this is not dispositive. Melton 879 F.2d at 729. The question Court must answer is "at the time these events took place was the protected nature of Plaintiff's [right to a decision by secrecy] sufficiently clear that defendants should have been reasonably on notice that the City's interest [in denying the request] would not survive a [Mathews] balancing inquiry?" Cf. Melton 879 F.2d at 729-30 (applying Harlow inquiry to First Amendment balancing test).

The first step in this inquiry is to determine if Plaintiff's interest in continued employment under the first part of Mathews was clearly established. Cf. Patrick 953 F.2d at 1246-47 (applying Melton test to First Amendment inquiry). The Supreme Court decision in Loudermill sufficiently put the Defendants on notice of the important interest Plaintiff has in her job. Loudermill 470.U.S. at 546. Defendants were also on notice that Plaintiff feared the Board could not be impartial because of the potential for retaliation. This is the type of risk of error which would require added procedures under the second step of Mathews. While the Defendants need not be held to a correct balance of Mathews they should be held to a reasonably objective application of this "clearly established" law. Since Defendants have not even attempted to advance an interest to justify its refusal of the secret ballot request Court finds that the Defendants were reasonably on notice that its actions would not have survived a Mathews balancing test. Cf. Melton 879 F.2d at 729. Therefore Court denies Defendants' motion for summary judgment.

VII. SUMMARY SUBSTANTIVE DUE PROCESS

Defendants make two arguments in support of their motion for summary judgment on Plaintiff's substantive due process claim. First Defendants argue thatPlaintiff has not raised any genuine issues of material fact that her

termination was arbitrary capricious or pre textual. Second even if Plaintiff

has established that her termination was arbitrary capricious or pretextual

her right to continued employment is not protected by substantive due process.

See Regents of the University of Michigan v. Ewing 474 U.S. 214 88 L. Ed. 2d

523 106 S. Ct. 507 (1985); Mangels v. Pena 789 F.2d 836 (10th.Cir. 1986).

Plaintiff argues she has raised genuine issues of material fact that her termination was arbitrary capricious or pre textual. Further she claims her property interest in her job is protected by substantive due process. Martin v. Harrah Indep. School Dist. 579 F.2d at 1192 (10th Cir.1978) aff'd 440 U.S.194 59 L. Ed. 2d 248 99 S. Ct.1062 (1979) (per curiam); Brenna v. Southern Colorado State College 589 F.2d 475 (10th Cir.1978).

As to Defendants' first claim Court finds Plaintiff has raised genuine issues of material fact that her termination was pre textual. n19 As discussed supra part IV First Amendment claim Court found Plaintiff has raised material issues of fact of whether the May 13 1991 urinalysis and her subsequent termination for a positive drug result was pre textual. Further as discussed supra part III Exclusionary Rule Plaintiff's termination decision cannot be based on an unconstitutional urinalysis test. Court will next address Defendants' second argument.

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n19 Defendants claim that without any constitutional violations Plaintiff has not raised genuine issues of fact that her termination based solely on the positive drug test was arbitrary and capricious. If there was no dispute as to the reliability of Plaintiff's urine sample Court would agree. Plaintiff has not raised any genuine issues of material fact that termination was not the proper punishment for a positive drug test. However Plaintiff has raised genuine issues of material fact as to the reliability of her positive drug test.

She has challenged the Department's interpretation of retest and the lack of a chain of custody regarding her urine sample of May 13 1991. She has also submitted three negative drug tests one taken on May 14 1991 to raise material issues of fact of whether the May 13 1991 result was reliable. Further no one within the Department ever witnessed any conduct which would suggest Plaintiff was using drugs. Therefore a reasonable jury could find that the May 13 1991 drug result was not reliable. Thus a reasonable jury could further find that Plaintiff's termination based solely on the May 13 1991 drug test was arbitrary and capricious.

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The Supreme Court and the Tenth Circuit have applied substantive due process review to public employees who have a property interest in their jobs. Martin 440.U.S. at 194 (applying substantive due process review to tenured school teacher); Brenna 589 F.2d at 475 (applying substantive due process review to tenured college professor).

In Ewing Court accepted the parties stipulation that the petitioner's interest in continued academic enrollment was protected by both procedural and substantive due process. Ewing474.U.S. at 222. However in dicta the majority did question whether all state created property rights protected by procedural due process were also protected by substantive due process. Id. at 222-23. The decision in Ewing reopened the question as to whether all property interests protected by procedural due process are also protected by substantive due process. n20.Jacobs Visconsi & Jacobs v. City of Lawrence 927 F.2d 1111 1119 (10th Cir.1991); Archuleta v. Colorado Dep't of Inst. 936 F.2d 483 489 n.6 (10th Cir.1991);Mangels 789 F.2d at 839; but see Harris v. Blake 798 F.2d 419 424 (10th Cir.1986) cert. denied 479 U.S.1033 93 L. Ed. 2d 836 107 S. Ct.882 (1987) (applying substantive due process review to academic decision citing Ewing for support). This is also a question on which the circuits are split. n21

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n20 Perry 408.U.S. at 601 (Court stated that property has a "broad" meaning for procedural due process purposes).

n21 In Schaper v. City of Huntsville 813 F.2d 709 719 (5th Cir.1987); Moore v. Warwick Public School Dist. 794 F.2d 322 328-29 (8th Cir.1986); Barnett v. Housing Auth. 707 F.2d 1571 1577 (11th Cir.1983) Court applied substantive due process review to state created contractual rights. In McKnight v. Southeastern Penn. Transp 583 F.2d 1229 1233 n.4 (3d Cir.1978); Parham v. Hardaway 555 F.2d 139 142 (6th Cir.1977); Kowtoniuk v. Quarles 528 F.2d 1161 1166 (4th Cir1975) Court without having to specifically address the issue did not question the applicability of substantive due process review of property rights. In Perkins v. Board of Educ. 686 F.2d 49 51 n.5 (1st Cir.1982) Court questioned without deciding if substantive due process review was appropriate when an institution failed to follow its own procedures.

Only one circuit has ruled that state created contract rights should not be reviewed under a substantive due process analysis. Brown v. Brienen 722 F.2d 360 367 (7th Cir.1983).

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In his concurring opinion in Ewing Justice Powell pronounced that the right to continued academic enrollment is not the type of property right which would "'require particularly careful scrutiny of the state needs asserted to justify their abridgment'" under substantive due process. Id. at 229 (quoting Moore v. East Cleveland 431 U.S.494 502 52 L. Ed. 2d 531 97 S. Ct.1932 (1977) (plurality opinion) (quoting Poe v. Ullman 367 U.S.497 543 6 L. Ed. 2d 989 81 S. Ct.1752 (1961) (Harlan J. dissenting)).

However this case is distinguishable from both Ewing and Mangels. In Ewing the issue was whether an academic decision could be the basis of substantive due process review. It is worth noting that Court did not cite its opinion in Martin 440.U.S. at 194 which applied substantive due process review to an employer termination decision. Id. at 198. Further Martin was decided a year after the supreme Court decision in Board of Curators v. Horowitz 435 U.S.78 55 L. Ed. 2d 124 98 S. Ct.948 (1978) which like Ewing did question the applicability of substantive due process review to academic decisions. Id. at 91-92. The majority and the concurring opinions in Ewing contain no language to suggest that substantive due process does not protect property rights. n22 Court only questioned without deciding if all state created property rights protected by procedural due process are protected by substantive due process. Id. at 222; id. at 229 (Powell J. concurring) ("Even if one assumes the existence of a property right however not every such right is entitled to the protection of substantive due process."). Court appeared to only question the applicability of substantive due process review of an academic decision when the "arbitrary and capricious" acts complained of are themselves not independent violations of the Constitution. Ewing 474.U.S. at 225 ("Nor can the Regents be accused of concealing nonacademic or constitutionally impermissible reasons for expelling Ewing. . . .").

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n22 Certain property must be protected by substantive aspects of the Fourteenth Amendment's Due Process Clause since Court has incorporated the Just Compensation Clause of the Fifth Amendment to the states through the Fourteenth Amendment. Webb's Fabulous Pharmacies Inc. v. Beckwith 449 U.S.155 160 66 L. Ed. 2d 358 101 S. Ct.446 (1980) (citing Chicago B & O. R. Co. v. Chicago 166 U.S.226 239 41 L. Ed. 979 17 S. Ct.581 (1897)); Penn Central Transportation Co. v. New York City 438 U.S.104 122 57 L. Ed. 2d 631 98 S. Ct.2646 (1978).

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In Mangels Court found no privacy violation in the state's disclosure of drug usage by plaintiffs. Mangels 789 F.2d at 840. Court reasoned that plaintiffs have no fundamental interest in privacy protected by the Fourteenth Amendment when the state discloses facts of illegal drug use. Further the opinion stated that a state's promise of confidentiality does not create a right protected by substantive due process. Id. at 839 (citing Ewing 474.U.S. at 229 (Powell J. concurring) ("Rights of substantive due process are founded not upon state provisions but upon deeply rooted notions of fundamental personal interests derived from the Constitution.").

Defendants believe Ewing and Mangels stand for the proposition that substantive due process protects only property rights created by the Constitution. This cannot be so since the Constitution does not create property rights. Martin 579 F.2d at 1198 (quoting Board of Regents v. Roth 408.U.S. 564 577 33 L. Ed. 2d 548 92 S. Ct.2701 (1972) ("Property interests of course are not created by the constitution. Rather they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.")). Therefore the question before Court is not whether state created property rights are protected under substantive due process but whether Plaintiff's interest in continued employment is the type of interest the "ancient institution of property" n23 is to protect from being "arbitrarily undermined." See Roth 408.U.S. at 577. This circuit has held that an employee's interest in continued employment is the kind of claim which substantive due process protects. Martin 579 F.2d at 1198. Court finds that Plaintiff has raised genuine issues of material facts which are protected by substantive due process and therefore Court must address the individual Defendants' claim of qualified immunity.

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n23 Roth 408.U.S. at 577 ("It is a purpose of the ancient institution of property to protect those claims upon which people rely in their daily lives reliance that must not be arbitrarily undermined.").

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Defendants claim that the right to substantive due process review was not clearly established for a deprivation of an employment interest and therefore they are entitled to qualified immunity.

Only two cases which immediately concern our analysis have specifically addressed the issue of substantive due process review of property rights in public employment. Both of those decisions held that substantive due process review applies. Martin 440.U.S. at 198;.Brenna 589 F.2d at 477. There is further support in this circuit that substantive due process applies to all state created property rights. Harris 798 F.2d at 424;McGhee v. Draper 564 F.2d 902 912 (10th Cir.1977); Weathers v. West Yuma County School Dist. 530

F.2d 1335 1342 (10th Cir.1976). All of the above decisions were decided well

before the complained of acts of the Defendants.

In Ewing the majority only questioned whether the right to continued academic enrollment is the type of property interest protected by substantive due process review. Since neither the majority or Justice Powell questioned Court's decision in Martin Ewing must be limited to its facts. Further the majority appeared to only question the appropriateness of reviewing academic decisions under substantive due process when the alleged deprivation is not the result of an independent violation of a constitutional right. Id. at 225. See Archuleta 936 F.2d at 490 (questioning if substantive due process review applies to state created property rights where there is no independent constitutional violation); Jacobs 927 F.2d at 1115-20 (same); Kauth v. Hartford Insurance Co. 852 F.2d 951 958 (holding that substantive due process does not apply to state created property rights without an independent violation of a substantive constitutional right). Since Court has already found that Plaintiff's termination may have been in retaliation for her protected speech and based on an unconstitutional search Plaintiff has raised issues of material fact that her property interest was terminated based on independent violations of the Constitution. Court finds that Plaintiff's substantive due process claim was clearly established under Tenth Circuit precedent and therefore Court denies Defendants' motion for summary judgment.

VIII. WRONGFUL TERMINATION

Defendants claim they are entitled to summary judgment as to Plaintiff's state wrongful termination claim because Plaintiff was under contract with the Department at the time of her termination. Silva v. Albuquerque Assembly & Distrib. Freeport Warehouse Corp. 106 N.M.19 738 P.2d 513 (1987). Plaintiff claims her wrongful discharge claim may be brought under N.M. Stat. Ann. SEC. 41-4-12 (Michie1978) (Torts Claim Act) since the state has waived immunity for constitutional violations committed by police officers acting within the scope of their duties.

Court agrees that Plaintiff could have brought a state claim under the Torts Claim Act. However the only state claim before Court is one for wrongful discharge. "The express reason for recognizing this tort and thus modifying the terminable at-will rule was the 'need to encourage job security' for those employees not protected from wrongful discharge by an employment contract." Silva 738 P.2d at 515 (quoting Vigil v. Arzola 102 N.M 682 688 699 P.2d 613 619 (Ct. App. 1983) rev'd in part on other grounds 101 N.M.687 687 P.2d 1038 (1984)).

Thus the ability to bring a claim of wrongful discharge is not whether it has been "waived" by the state but whether Plaintiff has a contract right in continued employment. Silva 738 P.2d at 515. Since plaintiff's job as a police officer was protected by an employment contract she cannot bring a wrongful discharge claim. Therefore Court grants Defendants' motion for summary judgment as to plaintiff's wrongful termination claim.

Wherefore

IT IS ORDERED ADCourtD AND DECREED that Defendants' motion for summary judgment as to Count VI of plaintiff's first amended complaint (Wrongful Discharge claim) be and hereby is granted.

IT IS FURTHER ORDERED that Defendants' motion for summary judgment as to Count I of plaintiff's first amended complaint (First Amendment claim) be and hereby is denied.

IT IS FURTHER ORDERED that Defendants' motion for summary judgment as to Count II of plaintiff's first amended complaint (Property Due Process claim) be and hereby is denied.

IT IS FURTHER ORDERED that Defendants' motion for summary judgment as to Count III of plaintiff's first amended complaint (Liberty Due Process claim) be and hereby is denied.

IT IS FURTHER ORDERED that Defendants' motion for summary judgment as to Count IV of plaintiff's first amended complaint (Substantive Due Process claim) be and hereby is denied.

IT IS FURTHER ORDERED that Defendants' motion for summary judgment as to Count V of plaintiff's first amended complaint (Fourth Amendment claim) and hereby is denied.

Juan G. Burciaga CHIEF Court