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american lawyer media news service San francisco-The San Mateo County, Calif., district attorney will face a jury next month as a defendant for his alleged role in “outing” a woman as a lesbian to her ex-husband. According to a suit filed in San Mateo County Superior Court, James Fox, the San Mateo County DA, released a confidential police report to a man he knew from church. The report revealed that Ramona Gatto was a lesbian, which resulted in her ex-husband seeking custody of their 12-year-old daughter. The lawyer representing Gatto said that Fox’s actions were a violation of Gatto’s right to privacy, as well as her equal protections under the California Constitution. The suit names the county of San Mateo and Assistant District Attorney Morley Pitt as defendants and seeks unspecified compensatory and punitive damages. “The conduct of defendants was mean-spirited, malicious, wanton and oppressive,” says the complaint in Gatto v. County of San Mateo, No. 420839. It contends that the defendants “have not established or implemented proper procedures or protocols for training [employees] in the handling of confidential information and in equal and fair treatment of homosexual county residents.” Leigh Herman, an attorney at the San Mateo County counsel’s office representing the defendants, said her clients did nothing wrong. “This has already been adjudicated in federal court,” Herman said. “It was investigated by the California attorney general, and Mr. Fox was vindicated there.” Nathan Barankin, a spokesman for Attorney General Bill Lockyer, said the AG’s office had received a complaint from Gatto about the incident and responded that it did not find any violations of law. The police report involved a 1999 domestic disturbance at Gatto’s San Carlos, Calif., home in which Gatto’s former girlfriend attacked her current one. When Fox and Pitt happened upon the report and learned that Gatto was a lesbian, they informed her ex-husband, whom Fox knew from religious study classes. While the report was labeled “confidential,” Herman contends that police reports are, in fact, public record. “San Carlos can say anything is confidential, but a public record is a public record,” said Herman. In January 2002, Judge Marilyn Hall Patel dismissed Gatto’s federal claims on the ground that gays and lesbians are not a protected class under the U.S. Constitution. According to Steven Phillips, who is representing Gatto in the state suit, the California Constitution offers broader protections. He cited San Francisco’s high-profile dog-mauling case as a precedent. In a 2001 decision, a San Francisco judge ruled that dog-mauling victim Diane Whipple’s same-sex partner could sue for wrongful death under the state’s equal protections clause. San Mateo County Superior Court Judge Rosemary Pfeiffer recently approved an amended complaint that included Gatto’s equal protections claim. The trial is set to begin on June 2.

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