Monday, January 24, 2011
Wright Delays Class Action Ruling in ADDA Suit Against Cooley
By SHERRI M. OKAMOTO, Staff Writer
U.S. District Court Judge Otis D. Wright II of the Central District of California on Friday backtracked from his tentative decision to grant class action status to a suit alleging Los Angeles District Attorney Steve Cooley and his senior managers of discriminating against prosecutors who voted in favor of unionizing.
Wright began the hearing by telling the attorneys representing the defendants— Brian Hershman of Jones Day, and Calvin House of Gutierrez Preciado & House—that unless they had “something earth-shattering” to say, his tentative decision to certify the class would stand. But he concluded by saying he wanted to take another look at the matter, giving no indication of when he would rule.
The Association of Deputy District Attorneys—which bills itself as the largest prosecutors union in the country—had moved in April 2010 to certify a class of plaintiffs who allegedly suffered various constitutional violations when Assistant Head Deputy Peter Burke disclosed to management a list of prosecutors who had signed union cards demonstrating their desire to become unionized employees during the period from December 2007 to February 2008.
At the hearing Friday, Hershman contended this putative class description was “not an accurate characterization” because the names of the persons Burke allegedly “outed” were those who had voted in favor of certifying the ADDA as its bargaining unit after the vote in favor of unionizing had already taken place.
Disclosure of who had voted in the uncontested election for who should serve as the bargaining representative for the prosecutors’ union is “a very different outing than if you wanted to unionize,” Hershman said.
The attorney also argued that individual issues predominated over common issues for the putative class members since some would-be plaintiffs may not have acted in private manner in voting or have been concerned with the Cooley administration learning how he or she had voted. Other individuals, such as the ADDA board members who were “public, vocal, active” and “outed themselves” before the “Burke list” disclosure. Hershman added, insisting for those individuals who “do[ ] not care or keep this information private,” there could be no liability.
He further claimed that “this is not a vast group clamoring for relief,” and there was not “300 people clamoring for this court to address what is alleged,” but only a “very discrete group” of individuals—namely ADDA President Hyatt Seligman, immediate past President Steven Ipsen, Vice President Marc Debbaudt, and former President James Bozajian—who took issue with assignment transfers they claim were punitive and retaliatory.
Counsel for the ADDA Matthew Monforton, a former Los Angeles deputy district attorney, responded that Hershman’s arguments were addressing issues involving the merits underlying the claim, and that the hearing on certification was not the appropriate time to argue the merits.
‘No Long Line’
Monforton emphasized that the list of names given to Cooley’s administration let them know “exactly the 540 people who supported the ADDA,” and there was “no long line of deputy district attorneys” willingly identifying themselves as pro-union at any time.
“At best, a handful” of individuals were publicly endorsing unionization Monforton said, “but even as to them, they have a right of privacy to their union cards.”
The attorney analogized the situation to the hypothetical disclosure of former vice presidential candidate Sarah Palin’s voting record, contending that a revelation she voted Republican would “not be a shock” and would still violate her privacy.
Wright said that he was “troubled” by the arguments raised and “struggling with this now.”
When dealing with “publishing someone’s association within a group,” the jurist remarked that “you can’t say they are all the same,” and factors such as the “scope,” “timing,” “context” and “political climate” are relevant.
“Tentative means tentative,” Wright observed, and told counsel “let me take another look at this” before leaving the bench.
After the hearing, Monforton predicted the judge’s final ruling was “not going to be any different” and the “540 deputy district attorneys who defend the rights of the citizens of Los Angeles will have their right to privacy defended by the court.”
Hershman said he “appreciated the judge taking a fresh look” at the issue and “we continue to believe class certification is not appropriate.”
The original complaint in the lawsuit was filed in October 2008 by the ADDA and an unnamed member against Cooley, Chief Deputy District Attorney John Spillane, Bureau Director John Zajec, and Assistant District Attorneys Curtis Hazell and Jacquelyn Lacey, asserting seven causes of action based on the defendants’ alleged attempts to quash the fledging union.
In April 2010, the complaint was amended to add class-based claims arising from the “unlawful disclosure” to Cooley and management officials of a list identifying the class members and from Cooley’s subsequent use of that list to “intimidate, harass and slander union supporters.” The amended complaint also added Burke and other members of Cooley’s management team as defendants.
The case is One Unnamed Deputy District Attorney v. County of Los Angeles, 09-7931.
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