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Matthew G. Monforton (CA State Bar No. 175518) Monforton Law Offices, PLLC 32 Kelly Court Bozeman, Montana 59718 Telephone: (406) 570-2949 Facsimile: (406) 586-3869 E-mail: matthewmonforton@yahoo.com Attorney for Plaintiffs UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA ONE UNNAMED DEPUTY DISTRICT ATTORNEY; ASSOCIATION OF DEPUTY DISTRICT ATTORNEYS, a Los Angeles County Employee Organization, ) ) ) ) ) ) Plaintiffs, ) v. ) ) COUNTY OF LOS ANGELES; STEVE ) COOLEY, individually and in his official ) capacity; CURTIS HAZELL, ) individually and in his official capacity, ) JOHN SPILLANE, individually and in ) his official capacity; JOHN ZAJEC, ) individually and in his official capacity; ) JACQUELYN LACEY, individually and ) in her official capacity, and DOES 1 - 10 ) ) Defendants. ) Case No. CV 09-7931 ODW (SSx) NOTICE OF MOTION AND MOTION BY PLAINTIFFS FOR PRELIMINARY INJUNCTION; MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT THEREOF; EXHIBITS 1 - 9 Date: February 22, 2010 Time: 1:30 p.m. Place: Courtroom 11 312 N. Spring St. Los Angeles, CA

TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE THAT on February 22, 2010 at 1:30 p.m., Plaintiffs will move this Court for an order granting their Motion for Preliminary Injunction against Defendants. The injunction sought by Plaintiffs would prohibit Defendants
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from discriminating or retaliating against Los Angeles County Deputy District Attorneys due to their membership in the Association of Deputy District Attorneys, the public employees union that has been certified by the Los Angeles County Employee Relations Commission, (ERCOM), as the bargaining representative for deputy district attorneys in Grades I through IV. This Motion is based upon the attached (1) Memorandum of Points & Authorities, (2) transcripts of sworn testimony given by Defendants during ERCOM proceedings and (3) declarations executed by members of the Association of Deputy District Attorneys attesting to Defendants illegal, unconstitutional acts taken against the union and its members. NOTICE TO COUNSEL A motion for preliminary injunction brought pursuant to F.R.C.P. Rule 65 is not one that appears to require a pre-filing conference with opposition counsel under Central District Local Rule 7-3. Nevertheless, counsel for Plaintiffs, Matthew G. Monforton, has discussed this motion with Trevor Grimm, counsel for Defendants. Defendants oppose the Motion but have agreed that, subject to this Courts approval, February 22, 2010 would be a mutually convenient date for a hearing on the Motion. Plaintiffs had intended to have this matter heard on February 8, 2010, in conjunction with the Scheduling Conference but calendared the due dates for briefing the motion based upon the time periods established in Local Rule 7 before discovering that the rule had been amended on January 1, 2010. Plaintiffs regret the error. DATED: January 20, 2010 Respectfully submitted, /s/ Matthew G. Monforton Matthew G. Monforton, Esq. Attorney for Plaintiffs

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TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES... iii. INTRODUCTION... 1 STATEMENT OF FACTS.. 1 I II Formation of ADDA.. 1 Admissions by Cooley Administration re Anti-Union Animus... 2

III Specific Examples of Retaliatory Actions by Defendants Against ADDA Members.. 3 IV Discriminatory Pricing Applied by Defendants to ADDA Prosecutors Health Benefit Plans 8 ARGUMENT... 11 I ADDA is Likely to Succeed on the Merits.... 11 A. ADDAs Associational Claim Will Likely Succeed Because of Defendants Intimidation of, and Retaliation Against, Prosecutors Exercising their Right to Unionize... 11 B. Defendants Discriminatory Health Benefit Policy Violates ADDA Prosecutors Right to Equal Protection 16 Defendants Retaliation and Discrimination Against ADDA Prosecutors is Irreparably Harming ADDA 19

III The Balance of Equities Tips Sharply in ADDAs Favor 22 IV. Enjoining Defendants Retaliatory Acts Against Union Members Serves the Public Interest.. 24 CONCLUSION. 24
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Cases:

TABLE OF AUTHORITIES Allee v. Medrano, 416 U.S. 802 (1974) 11,12,23 Arlook v. S. Lichtenberg & Co, Inc., 952 F.2d 367 (11th Cir. 1992) 22 Brown v. Pac. Tel & Tel. Co., 218 F.2d 542 (9th Cir. 1955).. 20 Coszalter v. City of Salem, 320 F.3d 968 (9th Cir. 2003).. 12 Elrod v. Burns, 427 U.S. 347 (1976) 19 Garcia v. Lawn, 805 F.2d 1400 (9th Cir. 1986).19, 24 Gold v. State Plaza, Inc., 435 F.Supp.2d 110 (D.D.C. 2006).. 22 Green v. City of Tucson, 340 F.3d 891 (9th Cir. 2003). 16 Holt v. Continental Group, Inc., 708 F.2d 87 (2d Cir. 1983). 19 Hooper v. Bernalillo County Assessor, 472 U.S. 612 (1985) 16 Joelner v. Village of Washington Park, 378 F.3d 613 (7th Cir. 2004).. 24 Kahawaiolaa v. Norton, 386 F.3d 1271 (9th Cir. 2004).... 16

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Kaynard v. Palby Lingerie, Inc., 625 F.2d 1047 (2d Cir. 1980). 20 Klein v. City of San Clemente 584 F.3d 1196 (9th Cir. 2009)....11,19,20 Laird v. Tatum, 408 U.S. 1 (1972)... 12 Lineback v. Spurlino Materials, LLC, 546 F.3d 491 (7th Cir. 2008).. 19, 22 Los Angeles County Employees Association v. County of Los Angeles, 168 Cal.App.3d 683, 214 Cal.Rptr. 350 (1985). 18 Mendocino Environmental Center v. Mendocino County, 192 F.3d 1283 (9th Cir. 1999) 12 Miller for and on Behalf of N.L.R.B. v. California Pacific Med. Center, 19 F.3d 449 (9th Cir. 1994) 23 Monterey Mechanical Co v. Wilson, 125 F.3d 702 (9th Cir. 1997).. 19, 20 N.A.A.C.P. v. Alabama ex rel. Patterson, 357 U.S. 449 (1958) 11 N.L.R.B. v. Great Dane Trailers, Inc. 388 U.S. 26 (1967). 13 Professional Assn. of College Educators v. El Paso Comm. College 730 F.2d 258 (5th Cir. 1984).. 12 Reichard v. Foster Poultry Farms, 425 F.Supp.2d 1090 (E.D.Cal. 2006). 20, 22 Roberts v. U.S. Jaycees, 468 U.S. 609 (1984)... 11, 12

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Schaub v. West Michigan Plumbing & Heating, Inc. 250 F.3d 962 (6th Cir. 2001). 23 Scott ex rel. N.L.R.B. v. Stephen Dunn & Associates, 241 F.3d 652 (9th Cir. 2001). 20 Smith v. Arkansas State Highway Employees Local 1315, 441 U.S. 463 (1979).. 11 Stormans, Inc. v. Selecky, 586 F.3d 1109 (9th Cir. 2009) 19 Union of Amer. Physicians & Dentists v. Los Angeles ERCOM 131 Cal.App.4th 386, 32 Cal.Rptr.3d 547 (2005).. 17-18 Winter v. Natural Res. Def. Council, Inc., ___U.S. ___, 129 S.Ct. 365 (2008). 11 Statutes: CALIFORNIA GOVERNMENT CODE 3504.5(c). 17-18

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MEMORANDUM OF POINTS AND AUTHORITIES INTRODUCTION Plaintiffs seek a preliminary injunction from this Court prohibiting Defendants from discriminating, retaliating or otherwise taking adverse employment actions against Los Angeles County deputy district attorneys based upon their union status. As shown below, Defendants essentially admitted to having an anti-union animus and retaliating against union activists in the Los Angeles County District Attorneys Office. Defendants are also making all prosecutors represented by the union pay substantially higher rates for County medical coverage than non-unionized DA personnel have to pay for exactly the same coverage. The cumulative effect of these blatant acts of discrimination and retaliation, along with the constant threat of additional retaliation, is causing Plaintiffs irreparable harm by preventing union leaders from adequately representing their fellow employees, destroying union morale, and diminishing the unions ability to recruit and retain members. Without interim relief from this Court, there may not be a union left by the time a final judgment is entered. Plaintiffs thus seek a preliminary injunction from this Court to preserve the status quo while this matter is pending. STATEMENT OF FACTS I Formation of ADDA Plaintiff Association of Deputy District Attorneys (ADDA) is an employee organization (i.e., public employees union) formed through the procedures established by Los Angeles Countys Employee Relations Ordinance. (Complaint, 8; County Answer, 8.) Part of that process requires employees from the prospective bargaining unit to return union cards indicating their desire to unionize. When ADDA supporters
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were collecting union cards in early 2008, ADDA Board Member Frank Tavelman asked Assistant District Attorney Jacquelyn Lacey, one of the top officials in the DAs Office, to issue a memorandum to all prosecutors stating the DAs office would be neutral regarding union organization and would refrain from retaliating against any prosecutor for exercising his or her right to join ADDA. (Tavelman Declaration, attached as Exhibit 1, p. 2, 3.) Tavelman included a draft memorandum with his request. (A true and correct copy of the draft memorandum is attached at Exhibit 1 at p. 3.) Lacey informed Tavelman about four to six weeks later that Defendants would not comply with this request. (Exhibit 1, p. 2, 4.) Despite the lack of any assurances by the DAs office to refrain from antiunion activities, enough prosecutors in Grades I through IV returned union cards for the Los Angeles County Employee Relations Commission (ERCOM) to certify ADDA as a County employees union on March 24, 2008. (Complaint 8, 16; County Answer, 8, 16; Ipsen Declaration, attached as Exhibit 2, p. 7, 4.) ADDA is now the representative of Bargaining Unit 801, which consists of approximately 1000 deputy district attorneys in Grades I through IV. (Exhibit 2, p. 9, 17.) Neither Grade V prosecutors nor paralegals employed by the DAs Office are unionized. (Exhibit 2, pp. 7-8, 12.) II Admissions by Cooley Administration re Anti-Union Animus On October 17, 2008, District Attorney Steve Cooley met with Robert Dver, a prosecutor with 24 years of experience in the DAs Office, and told Dver that ADDA President Steve Ipsen was a crook and the prosecutors who signed union cards leading to ADDAs certification as a union were contaminated. (Exhibit 3, p. 33 (Exhibit 3 consists of pertinent portions of sworn testimony given by Dver during an ERCOM hearing on May 28, 2009.)) Cooley instructed Dver to undermine ADDA since, according to Cooley, Dver had been responsible for ADDAs certification as a
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union. (Exhibit 3, pp. 32-33.) He also instructed Dver to join two other prosecutors in this effort: Peter Burke, an Assistant Head Deputy in the DAs office, and Thomas Rubinson, who at that time was another deputy prosecutor in the DAs Office. (Exhibit 3, p. 33.)1 Dver was shocked by Cooleys anti-union animus and rejected his demands. (Exhibit 3, p. 33.) After the meeting, Cooley transferred Dver and stripped him of his supervisory tasks. (Exhibit 3, pp. 23-24.) One of Cooleys top officials, Assistant District Attorney Jacquelyn Lacey, corroborated Dvers testimony during a subsequent ERCOM hearing. Lacey candidly admitted to warning Dver (who, at the time, was a close friend of hers) not to join ADDAs contract negotiating team and not to even discuss ADDA matters with Cooley, as it would negatively impact his career. (Exhibit 4, pp. 40-41 (Exhibit 4 consists of pertinent portions of sworn testimony given by Lacey during an ERCOM hearing on July 9, 2009.)) She gave him this warning because Mr. Cooley felt that [Ipsen] w[as] dishonest and felt quite frankly that anybody associated with [Ipsen] would be ratifying or endorsing that dishonesty. (Exhibit 4, p. 42.) She also admitted that being associated with ADDA would definitely hurt Dvers career. (Exhibit 4, p. 41.) III Specific Examples of Retaliatory Actions by Defendants Against ADDA Members Along with Dver, Defendants have subjected several ADDA Board Members to punitive transfers and other forms of retaliation. Steve Ipsen has been a prosecutor in the DAs office for over 20 years and, prior to his efforts to unionize prosecutors, consistently received Outstanding performance evaluations (PEs), including one
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Rubinson now sits on the Los Angeles County Superior Court.

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from Defendant Cooley at a time when Cooley was Ipsens supervisor. (Exhibit 2, p. 5, 3; Complaint 46-53; Countys Answer 46-53.) About a month after ADDA became a certified union in March 2008, Ipsen and ADDA Board Member Guy Shirley began investigating a call from a prosecutor in Lancaster. (Exhibit 2, p. 8, 13-16.) This deputy had been yelled at by her supervisor in Lancaster for seeking to disclose exculpatory evidence to a defense attorney as required under Brady v. Maryland, 373 U.S. 83 (1963). (Exhibit 2, p. 8, 15.) The supervisor had also ordered her not to disclose the evidence. (Exhibit 2, p. 8, 15.) Defendants involuntarily transferred Ipsen in July 2008 to the Inglewood courthouse. (Exhibit 2, p. 9, 17.) While in Inglewood, Ipsen acted as a union steward in December 2008 for a recently-hired deputy who had been unlawfully demoted by Defendants. (Exhibit 2, p. 10, 18-19.) Defendants were later forced to rescind their demotion of this deputy because she had been unfairly evaluated by the Inglewood supervisor. (Exhibit 2, p. 11, 20.) On March 4, 2009, two armed DA Investigators hand-delivered a letter to Ipsen notifying him that Defendants had suspended him for two days without pay for alleged misconduct during an after-hours meeting between Ipsen, who spoke as President of the union, and the Inglewood supervisor in December 2008. (Exhibit 2, p. 12, 23.) Ipsen was also notified at that time that he was being involuntarily transferred to the Compton Courthouse. (Exhibit 2, p. 12, 23.) Less than a week after Ipsen elicited damaging testimony from Lacey during her appearance before ERCOM in July 2009, Defendants issued Ipsen a rating of Needs Improvement on his PE. (Exhibit 2, p. 14, 29.) This rating was based substantially on the Inglewood supervisors allegations relating to Ipsens intervention in December 2008 on behalf of the young prosecutor that the Inglewood supervisor had falsely maligned. (Exhibit 2, p. 14, 29.) None of the other 1000 deputy district attorneys received such a rebuke during 2009. (Exhibit 2, pp. 14-15, 29.)
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Encompassed with Ipsens Needs Improvement rating was a Plan for Individual Improvement. (Exhibit 2, p. 14, 29.) This Plan required Ipsen to report to his supervisor in Compton for bi-weekly interrogations about his work, and also required his demotion or termination by October 30, 2009, the completion date of the Plan, if he did not significantly improve. (Exhibit 2, p. 15, 31; p.17, 33.) One of the tasks of courtroom deputies is to write short comments on a DA file after any court session in which the case is brought up. After one such session, Ipsen wrote a date on the file then, upon reviewing it, used white-out to correct the date. (Exhibit 2, p. 16, 31.) The Compton supervisor chastised Ipsen for not filling out the date perfectly the first time and insisted that deputy prosecutors should not need to use white-out. (Exhibit 2, p. 16, 31.) During these weekly meetings, the Compton supervisor subjected Ipsen to other equally petty criticisms. (Exhibit 2, p. 16, 3132.) Given the threat of possible termination and additional transfers even if he did not get fired, Ipsen and his wife terminated the lease of their condominium and began residing in various hotels in October 2009 with their two year-old daughter, creating a great deal of stress upon them. (Exhibit 2, p. 17, 33). Ipsen and his family continued residing in hotels until January 8, 2010 while awaiting Defendants decision on his request to be transferred out of Compton. (Exhibit 2, p. 17, 33-34.) ADDAs Vice President Marc Debbaudt has been a prosecutor in the DAs office for over 20 years. (Debbaudt Declaration, attached as Exhibit 5, p. 46, 2.) Until ADDAs certification in 2008, all of Debbaudts PEs had been Outstanding. (Exhibit 5, p. 46, 4.) Last year, his supervisor described him in an evaluation as the the best calendar deputy I have ever seen in the office. (Complaint 116; Countys Answer, 116; Exhibit 5, p. 46, 4.) Debbaudts union activism, however, has resulted in repeated and sustained harassment by Defendants. In October 2005, he was interrogated by four DA Investigators and another prosecutor about his personal knowledge of the sexual
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orientation of another male deputy, i.e., Debbaudt was interrogated as to his own sexuality. (Exhibit 5, pp. 46-47, 7-9.) In September 2008 Defendants transferred Debbaudt for his role in drafting an ERCOM complaint as well as for other acts taken in his capacity as an ADDA member. (Exhibit 5, pp. 47-48, 10-13.) As Asst. Dist. Attorney Lacey admitted, Defendants first decided in September 2008 to transfer Debbaudt to an entry-level position in the Eastlake Juvenile Court. (Exhibit 4, p. 43.) Days later, as Lacey later admitted, Defendants revised their plan and transferred Debbaudt to an entry-level assignment in Pomona Juvenile Court. (Exhibit 4, p. 43.) This assignment was a 42 mile-drive, each way, from Debbaudts home in Sunland, (Exhibit 5, p. 48, 14), and required a much longer commute than what would have been required by a transfer to Eastlake. Lacey, through her attorney, then admitted that Defendant Cooley himself ordered Debbaudts transfer and that such orders were infrequent. (Exhibit 4, p. 44.) In fact, Grade IV deputy district attorneys such as Debbaudt are never transferred to entry-level juvenile assignments. (Exhibit 5, p. 48, 13.) In the PE Debbaudt received in January 2009, Defendants evaluated him as Met Expectations, a rating that is two levels below Outstanding. (Exhibit 5, p. 49, 17.) Defendants transferred Debbaudt to another entry-level assignment in Sylmar Juvenile Court in 2009, where he currently remains. (Exhibit 5, p. 50, 20.) Hyatt Seligman is another ADDA Board Member with over 30 years of experience in the DAs office. (Seligman Declaration, attached as Exhibit 6, p. 55, 2.) He has received glowing evaluations throughout his career. (Complaint 122; County Answer, 122; Exhibit 6, p. 55-57, 3-11.) He is one of the states foremost experts on the use of mental defenses in criminal prosecutions. (Exhibit 6, p. 55, 2.) Seligman, along with Robert Dver, served in the Training Division of the DAs Office for over a decade and personally trained hundreds of deputy prosecutors who are currently in the office. (Exhibit 6, p. 55, 3; County Answer, 122.)

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During a bargaining session on March 17, 2009 between ADDA and Defendants, Seligman questioned Defendants punitive transfers of prosecutors. (Exhibit 6, p. 58, 20.) A member of Cooleys bargaining team told Seligman she found his comments to be off-putting. (Exhibit 6, p. 58, 20.) Seligman told her that he apologized if she found his comments to be offensive. (Exhibit 6, p. 58, 20.) Two days later, Defendants transferred Seligman to the Long Beach Courthouse. (Exhibit 6, p. 58, 21.) Seligmans supervisor at the Training Division was upset and did not want to lose Seligman as a trainer for new prosecutors, given that he had performed key components of every training class for most of the past thirteen years. (Exhibit 6, p. 58, 21.) Defendants did not allow Seligman to have any role whatsoever in training new prosecutors. (Exhibit 6, p. 58, 21.) Defendants transfers of Seligman and Dver from the Training Division have ensured that no active ADDA members remain in the Training Division. (Exhibit 6, p. 58, 22.) Upon learning of his transfer, Seligman promptly contacted Michael Tranbarger, the Head Deputy in Long Beach and the person who would soon be Seligmans supervisor. (Exhibit 6, p. 58, 23.) Tranbarger informed Seligman that Long Beach did not need him and did not have any office space for him. (Exhibit 6, p. 58, 23.) He then said that he would find somewhere to put a desk for Seligman, even if it was in a hallway. (Exhibit 6, p. 58, 23.) Seligmans current assignment in Long Beach does not involve any training of deputies or require any special expertise in psychiatric issues. (Exhibit 6, p. 58, 24.) Four months after Defendants transferred him to Long Beach, Seligman received a PE rating of Met Expectations from Tranbarger. (Exhibit 6, p. 58, 25.) This rating was two levels below the Outstanding ratings Seligman had previously received throughout his career. (Exhibit 6, p. 58, 25.) The PE did not describe any of Seligmans work during his prior eight months at the Training Division, despite the fact that PEs are supposed to reflect a prosecutors performance for an entire 12month period. (Exhibit 6, p. 58, 25.) When Seligman asked Tranbarger about the
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PE, Tranbarger explained that a Met Expectations rating was the highest rating he was allowed to give to Seligman and, if he had given a higher rating, Defendants would have kicked it back to Tranbarger and made him revise it. (Exhibit 6, p. 58, 26.) Seligmans new supervisor, Sally Thomas, promised Seligman in August 2009 that she would ask the Cooley Administration to reevaluate his PE. (Exhibit 6, p. 58, 27.) Seligmans PE has not yet been revised. (Exhibit 6, p. 58, 27.) IV Discriminatory Pricing Applied by Defendants to ADDA Prosecutors Health Benefit Plans ADDA commenced contract negotiations with Defendants in December 2008 for its first collective bargaining agreement. (Powers Declaration, attached as Exhibit 7, p. 61, 4.) After months of fruitless negotiations, (Exhibit 7, pp. 61-70, 5-13), Asst. Dist. Atty. Jacquelyn Lacey, one of Defendants chief negotiators, admitted that she had no authority other than to agree to the scheduling of additional meetings. (Exhibit 7, p. 70, 13.) Another of Defendants negotiators, Don Washington, admitted that the proposals he submitted were not binding, even if ADDA accepted them. (Exhibit 7, p. 70, 13.) Because Defendants had strung along ADDA negotiators with months of meaningless bargaining, ADDA filed an unfair labor practices charge with ERCOM on May 13, 2009. (Exhibit 7, p. 70, 14). Contract negotiations are stayed until ERCOM adjudicates this charge. (Exhibit 7, p. 70, 14.) In September 2009, Defendants sent all County employees a document detailing, inter alia, a substantial increase in monthly fees for the Countys health benefit plans for 2010. (A true and correct copy of this document, which Debbaudt has authenticated at Exhibit 5, p. 50, 21, can be found at Exhibit 5, p. 52.) For example, the 2010 monthly fee for the Countys Blue Cross HMO plan for an employee, spouse and children was to increase by $92 per month ($576 to $668) over

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the monthly rates for 2009, a 14 percent increase. (Exhibit 5, p. 50, 21; id., p. 52.) The cost of other health benefit plans were to increase similarly. (Exhibit 5, p. 52.) In October 2009, Defendants notified all County employees that they were reducing the cost of the Countys 2010 health benefit plans. (A true and correct copy of this notice, which Debbaudt has authenticated at Exhibit 5, p. 50, 22, can be found at Exhibit 8, p. 53.) This reduction meant that 2010 rates would be almost the same as they were for 2009. For example, the cost to employees for insuring themselves and their families through Blue Cross HMO dropped back from $668 to $592 per month. (Exhibit 5, p. 50-51, 22; id., p. 53.) Defendants similarly reduced monthly fees for other County health benefit plans. (Exhibit 5, p. 53.) The October 2009 notice also contained a paragraph notifying ADDA members that they were excluded from the Countys reduced rate structure. (Exhibit 5, p. 53.) Instead, they could only obtain County health coverage at the higher rates established in September 2009. The explanation for this exclusion was that ADDA, as well as two other newly-formed, small employees unions, were still negotiating a collective bargaining agreement with the County. (Exhibit 5, p. 53.) Defendants discriminatory rate structure for its health benefit plans has generated considerable anger and anxiety among ADDA prosecutors, so much so that Cooley issued a memorandum to all deputy prosecutors on November 3, 2009. (A true and correct copy of this memorandum is attached to the Declaration of Guy Shirley at Exhibit 8, pp. 75-76, and authenticated by him at Exhibit 8, p. 74, 4.) In that memorandum, Cooley acknowledged ADDA prosecutors concerns about the discriminatory rate structure for health coverage. (Exhibit 8, p. 75.) He then quoted from a letter purportedly sent to him by the Countys Chief Labor Negotiator stating that the ADDAs discontinued bargaining and therefore we have not had an opportunity to complete our negotiations with that group. We are committed to the idea that this matter should and will be resolved at the bargaining table and we are ready to resume at any time the ADDA so requests. (Exhibit 8, p. 76.) Absent from
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Cooleys memorandum was any acknowledgement that (1) the Countys negotiating team never had any authority to negotiate with ADDA and was simply engaged in sham bargaining, (see Exhibit 7, p. 70, 13), and (2) since the spring of 2009, ERCOM has been adjudicating a charge made by ADDA regarding the Countys badfaith bargaining, thereby staying contract negotiations pending resolution of the matter by ERCOM. (see Exhibit 7, p. 70, 14), On November 23, 2009, Peter Burke distributed copies of a flyer to deputy prosecutors throughout the 18th Floor of the Criminal Courts Building in Los Angeles (the same floor in which Cooley and his administrators have offices) stating, inter alia, that ADDA was responsible for deputy prosecutors paying as a whole $57,000 extra per month for health insurance. (Exhibit 7, p. 71, 15; the document authenticated by Ms. Powers is at Exhibit 7, p. 72.) Burke is an Assistant Head Deputy in the DAs Office and is also one of the persons Cooley told Dver to get together with in order to undermine ADDA.2 Defendants threats and discrimination have reduced ADDAs membership and chilled the enthusiasm of many of its remaining members. (Exhibit 7, p. 71, 16.) Several non-ADDA members have told ADDA Board Members that they support ADDAs efforts and would be interested in joining the union but will not do so because of fear of retaliation by Defendants. (Exhibit 2, p. 18, 37.) Conversely, several ADDA members have stopped paying membership dues and severed their ties with the union in an attempt to obtain health insurance at the same lower rates paid by other County employees. (Olivera Declaration, Exhibit 9, p. 77, 6-9; Exhibit 2, p. 14, 36.) More ADDA members left the union in the month after Defendants unveiled their discriminatory price-structure for health benefits in October 2009 than had joined ADDA during the entire year before that announcement. (Exhibit 8, p. 74, 5.)
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See p. 3, supra. 10

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ARGUMENT To obtain a preliminary injunction, a plaintiff must show (1) a likelihood of success on the merits, (2) a likelihood of irreparable harm if injunctive relief is not granted, (3) that the balance of equities tips in his or her favor, and (4) that an injunction is in the public interest. Winter v. Natural Res. Def. Council, Inc., ___U.S. ___, 129 S.Ct. 365, 374 (2008); Klein v. City of San Clemente, 584 F.3d 1196, 1199 (9th Cir. 2009). As shown below, ADDA can satisfy each of these requirements. I ADDA is Likely to Succeed on the Merits Plaintiffs have alleged claims based upon violations of their First Amendment rights as well as their rights to equal protection under the Fourteenth Amendment. A showing of likelihood of success as to either claim is sufficient for Plaintiffs to satisfy their burden under the likelihood-of-success prong. A ADDAs Associational Claim Will Likely Succeed Because Of Defendants Intimidation of, and Retaliation Against, Prosecutors Exercising their Right to Unionize Inherent in the First Amendments right to freedom of speech and assembly is a right to freedom of association. Roberts v. U.S. Jaycees, 468 U.S. 609, 622, 104 S.Ct. 3244 (1984); N.A.A.C.P. v. Alabama ex rel. Patterson, 357 U.S. 449, 460-61, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958). This right encompasses the right of workers, both in the public and private sectors, to form labor unions. Allee v. Medrano, 416 U.S. 802, 819, n.13, 94 S.Ct. 2191, 40 L.Ed.2d 566 (1974); Smith v. Arkansas State Highway Employees Local 1315, 441 U.S. 463, 464-66, 99 S.Ct. 1826, 60 L.Ed.2d 360 (1979). The constitutional right to freedom of association is violated not only by government prohibitions but also by threats of retaliation against persons desiring to exercise that right as well as actual retaliation occurring after the fact. Laird v. Tatum,
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408 U.S. 1, 12-13, 92 S.Ct. 2318, 33 L.Ed.2d 154 (1972) ([G]overnmental action may be subject to constitutional challenge even though it has only an indirect effect on the exercise of First Amendment rights); N.A.A.C.P. v. Button, 371 U.S. 315, 433, 83 S.Ct. 328, 338, 9 L.Ed.2d 405 (1963) (The threat of sanctions may deter [the exercise of First Amendment freedoms] almost as potently as the actual application of sanctions); Coszalter v. City of Salem, 320 F.3d 968, 974-975 (9th Cir. 2003) (courts seek to prevent, or redress, actions by a government employer that chill the exercise of protected First Amendment rights). In the Ninth Circuit, a government officials acts infringe upon First Amendment rights not only if they have an actual chilling effect upon those rights but also if those acts would chill or silence a person of ordinary firmness from future First Amendment activities. Mendocino Environmental Center v. Mendocino County, 192 F.3d 1283, 1300 (9th Cir. 1999). The prohibition against government efforts to chill First Amendment associational rights applies, of course, to union activity. Allee, 416 U.S. at 819 (if [union] members were subject to unlawful arrests and intimidation for engaging in union organizational activity protected by the First Amendment, the unions capacity to communicate is unlawfully impeded). Thus, constitutional violations arise from state action whose purpose is either to intimidate public employees from joining a union or from taking an active part in its affairs or to retaliate against those who do. Professional Assn. of College Educators v. El Paso County Community College Dist., 730 F.2d 258, 262 (5th Cir. 1984). Government can also violate associational rights by giving benefits to persons who refrain from joining disfavored associations while withholding the same benefits from those that do. Roberts, 468 U.S. at 622 (government actions that may unconstitutionally infringe upon [the right to freedom of association] include withhold[ing] benefits from individuals because of their membership in a disfavored group). This principle applies with equal force to unions. N.L.R.B. v. Great Dane Trailers, Inc., 388 U.S. 26, 32 (1967) (providing benefits to one group of employees
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while announcing the extinction of the same benefits for another group of employees who are distinguishable only by their participation in protected concerted activity surely may have a discouraging effect on either present or future concerted activity). Cooley and his top officials have declared that prosecutors associating with ADDA will be treated as second-class citizens. Cooley told Robert Dver that ADDAs President was a crook, and that prosecutors who signed union cards leading to ADDAs certification as a public employees union were contaminated. (Exhibit 3, p. 33.) He also instructed Dver to join with other Cooley allies in order to undermine ADDA. (Exhibit 3, pp. 32-33.) When Dver declined, Cooley punitively transferred him and stripped him of his supervisory tasks. (Exhibit 3, pp. 23-24.) Asst. Dist. Attorney Jacquelyn Lacey candidly admitted that, prior to Dvers meeting with Cooley, she warned Dver not to join ADDAs contract negotiating team and not to even discuss ADDA matters with Defendant Cooley. (Exhibit 4, pp. 40-41.) She also admitted that being associated with ADDA would definitely hurt Dvers career. (Exhibit 4, p. 41.) She gave this warning because Mr. Cooley felt that [Ipsen] w[as] dishonest and felt quite frankly that anybody associated with [Ipsen] would be ratifying or endorsing that dishonesty. (Exhibit 4, p. 42.) These statements from Cooley and his top official are sufficient to deter reasonable prosecutors of ordinary firmness from even considering associating with ADDA, much less becoming active in its affairs or joining its negotiating team. Thus, these statements, standing alone, are sufficient to demonstrate a chilling effect rising to the level of a First Amendment violation and, thus, a likelihood of success on the merits when Plaintiffs present their associational claim to a trier of fact. Defendants have done much more to destroy ADDA, however, than issue threats and their retaliatory actions have extended well beyond Dver. As described in detail in the preceding pages, Defendants have subjected ADDAs Board Members and activists to a number of different punitive measures. They involuntarily transferred Ipsen to Inglewood, then Compton and, along the way, subjected him to a
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humiliating and degrading Plan for Individual Improvement requiring him to report for bi-weekly discussions with his supervisor (a member of Cooleys bargaining team). (Exhibit 2, pp. 14-17.) At these meetings, Ipsen was informed of such important lessons as never making an error when writing dates on a file, as deputy prosecutors should never need to use white-out. (Exhibit 2, p. 16, 31.) Ipsen, his wife, and their 2 year-old daughter have been forced to reside in hotels for the past three months waiting to determine if Defendants would terminate him and, if not, to where they would transfer him. (Exhibit 2, p. 17, 33.) ADDA Vice President Marc Debbaudt has endured similar abuse. Debbaudts supervisor in Pasadena in 2008 regarded him as the the best calendar deputy I have ever seen. (Complaint 116; Countys Answer, 116; Exhibit 5, p. 46, 4.) Unfortunately for Debbaudt, his status as one of the most active members of ADDA, rather than his 24-year record as an outstanding prosecutor, has been the basis for Defendants dealings with him. He endured a humiliating interrogation by DA Investigators about his sexual orientation. (Exhibit 5, pp. 46-47, 7-9.) In late 2008 and early 2009 Defendants transferred him, twice, to entry-level juvenile court assignments, first in Pomona, (Exhibit 5, p. 48, 14), then Sylmar. (Exhibit 5, p. 50, 20.) One of those transfers included what Defendants sneeringly refer to as freeway therapy, i.e., punitive transfers entailing enormous commutes. (Exhibit 5, p. 48, 14.) They also downgraded his PE by two levels despite his supervisor calling him the best calendar deputy I have ever seen in the office. (Exhibit 5, p. 49, 17.) Defendants will not even allow members of ADDAs negotiating team to bargain in good faith without disrupting their personal and professional lives. If there is any forum in which employees should be able to speak freely regarding working conditions, it is during labor negotiations with management. Defendants, however, will not permit this. During a bargaining session in March 2009 in which ADDAs Hyatt Seligman simply raised the issue of ending Defendants practice of punitive transfers, Seligman himself was transferred two days later to an assignment that did
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not involve any of his skill sets. (Exhibit 6, p. 58, 20-21.) Defendants bullying of prosecutors who negotiate in good faith as members of ADDAs negotiating team or, in the case of Dver, simply express an interest in joining that team, is stifling ADDAs representation of its members. Defendants cleansing of active ADDA members from the Training Division ensures that newly hired prosecutors will not become, as Cooley would say, contaminated by exposure to union activists. Defendants are not only penalizing ADDA activists for exercising their right to freedom of association, they are now penalizing all rank and file ADDA prosecutors. Defendants allow non-unionized Grade V prosecutors and non-unionized DA paralegals to enroll in the Countys health benefit plans at a reduced price. (Exhibit 5, p. 53.) ADDA prosecutors, however, must pay substantially higher rates for exactly the same coverage. (Exhibit 5, p. 50-51, 21-22.) Had they not exercised their constitutional right of association, ADDA members would also have received these reduced premiums for health benefits. The burden this places on ADDA prosecutors is substantial. Each of them is now paying on average nearly $100 per month more than their non-unionized colleagues in the DAs Office. ADDA prosecutors will be reminded of this fact each month when they receive their pay stubs and notice the increase in the amount deducted in order to pay for their health benefit plans. Since ADDA became a certified union, Defendants have (1) defamed those prosecutors who contaminate themselves by joining with ADDA and its crook president, (2) retaliated against ADDA activists by downgrading their PEs and applying freeway therapy to them and (3) imposed upon all ADDA prosecutors a discriminatory price structure for County health benefits. Evidence of any one of these three acts, standing alone, would show a likelihood of success on the merits regarding Plaintiffs First Amendment associational claims. Given that Defendants have committed all three forms of unconstitutional activity, Plaintiffs likelihood of success in proving their associational claim is that much greater.
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B Defendants Discriminatory Health Benefit Policy Violates ADDA Prosecutors Right to Equal Protection Along with a strong likelihood of success on its associational claim, Plaintiffs are also likely to succeed in showing that Defendants discriminatory pricing scheme for health benefit plans denies ADDA prosecutors their right to equal protection of the laws. Whenever a state or one of its political subdivisions distributes benefits unequally, the distinctions it makes are subject to scrutiny under the Equal Protection Clause of the Fourteenth Amendment. Hooper v. Bernalillo County Assessor, 472 U.S. 612, 618, 105 S.Ct. 2862, 2866, 86 L.Ed.2d 487 (1985). Strict scrutiny must be applied to governmental classifications that either rely upon suspect grounds, (e.g., race, ethnicity, religion), or impinge upon fundamental rights. Kahawaiolaa v. Norton, 386 F.3d 1271, 1277 (9th Cir. 2004). Government policies cannot survive strict scrutiny unless they are narrowly tailored to serve a compelling state interest. Green v. City of Tucson, 340 F.3d 891, 896 (9th Cir. 2003). Defendants distribute benefits unequally to personnel in the DAs office. Unionized prosecutors are required to pay the higher rates established for the Countys health benefit plans in September 2009. (Exhibit 5, p. 50-51, 21-22.) Nonunionized Grade V prosecutors and DA paralegals, on the other hand, are permitted to purchase exactly the same health benefit plans using the substantially lower rate structure the County established in October 2009. (Exhibit 5, p. 50-51, 21-22.) And it is precisely because they unionized that ADDA prosecutors are subject to this discriminatory pricing. Defendants classification of employees by union status arises directly from Plaintiffs exercise of their fundamental constitutional right to freedom of association. This classification scheme thus cannot survive unless Defendants prove it is narrowly tailored to achieve a compelling state interest. Plaintiffs submit there is no compelling state interest that justifies charging unionized

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prosecutors substantially more for health benefit plans than what similarly situated, non-unionized prosecutors are charged for exactly the same medical coverage. Indeed, Defendants discriminatory policy does not advance any lawful state interest because the policy directly violates state law. The California Legislature recently enacted a statute specifically prohibiting counties from discriminating against, or restricting the ability of, public employees to obtain health benefit coverage simply because theyve unionized. CAL. GOVT CODE 3504.5(c).3 The California Court of Appeal recently applied this statute in a case strikingly similar to the instant matter. In Union of Amer. Physicians & Dentists v. Los Angeles County ERCOM, 131 Cal.App.4th 386, 32 Cal.Rptr.3d 547 (2005), Los Angeles Countys physicians and dentists unionized and began negotiating with the County for their first collective bargaining agreement. During the negotiations, the County prohibited union members from buying its higher-quality health benefit plans. The California Legislature enacted Cal. Govt. Code 3504.5(c) specifically to ban this tactic, one that had caused some union members to circulate a decertification petition in order restore their health benefit plans. Id. at 400. Indeed, for the union, staving off decertification was the main benefit of the statute. Id. at 400. The court sided with the union and held that under 3504.5, represented employees must have available the same health benefits package as unrepresented employees unless Union representatives voluntarily agree to different arrangements. Id. at 401.4
3

Section 3504.5 of the California Government Code states as follows: The governing body of a public agency with a population in excess of 4,000,000, or the boards and commissions designated by the governing body of such a public agency shall not discriminate against employees by removing or disqualifying them from a health benefit plan, or otherwise restricting their ability to participate in a health benefit plan, on the basis that the employees have selected or supported a recognized employee organization. (emphasis added)

Los Angeles County has a lengthy and unseemly history of toying with the health benefits of its employees and their families during labor negotiations. See, e.g., Los Angeles County Employees 17

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The County is now doing to ADDA exactly what it tried to do to the union in Union of American Physicians & Dentists. As in that case, the County is attempting to strangle ADDA, a nascent union, by restricting [ADDA members] ability to participate in a health benefit plan, on the basis that [ADDA members] have selected a recognized employee organization. Cal. Govt. Code 3504.5(c). The County is doing so by refusing to allow ADDA prosecutors to enroll in the more affordable price structure for health benefit plans it established for all non-represented prosecutors and DA paralegals (and virtually all other County employees, for the matter) in October 2009. ADDA prosecutors were instead required to enroll in health benefit plans under the much higher rates established in September 2009. (Exhibit 5, p. 50-51, 21-22.) This restriction is based entirely upon ADDA members exercise of their freedom of association. Had the prosecutors represented by ADDA chosen not to associate as a union, they would be paying the same lower rates as other prosecutors and County employees. Defendants discriminatory scheme therefore directly violates Cal. Govt. Code 3504.5(c), thereby depriving Defendants of any valid argument that their scheme somehow advances a compelling or even legitimate state interest. Defendants discriminatory health benefit policy classifies DA personnel based upon whether or not they have exercised a fundamental constitutional right: the right to unionize. This policy is therefore subject to strict scrutiny. Since Defendants cannot show that this discriminatory policy advances any compelling state interest, or even any lawful interest, Plaintiffs have shown a likelihood of success on the merits regarding their equal protection claim.

Association, Local 660, v. County of Los Angeles, 168 Cal.App.3d 683, 688-690, 214 Cal.Rptr. 350 (1985) (Countys increase of health benefits to employees whose unions signed contracts with County with simultaneous refusal to grant increase to employees whose unions had not yet signed a contract constituted unlawful discrimination). 18

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II Defendants Retaliation and Discrimination Against ADDA Prosecutors is Irreparably Harming ADDA A plaintiff seeking a preliminary injunction can show irreparable harm by presenting evidence of ongoing constitutional violations by a defendant because unlike monetary injuries, constitutional violations cannot be adequately remedied through damages. Stormans, Inc. v. Selecky, 586 F.3d 1109, 1138 (9th Cir. 2009); Monterey Mechanical Co v. Wilson, 125 F.3d 702, 715 (9th Cir. 1997) (an alleged constitutional infringement will often alone constitute irreparable harm). Irreparable harm is particularly likely when there is evidence of First Amendment violations because [t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury. Klein, 584 F.3d at 1208, quoting Elrod v. Burns, 427 U.S. 347, 373-74, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976). Similarly, the chilling effect of retaliatory activity can constitute irreparable harm. Garcia v. Lawn, 805 F.2d 1400, 1405 (9th Cir. 1986), citing Holt v. Continental Group, Inc., 708 F.2d 87, 91 (2d Cir. 1983). Thus, the courts will more readily grant injunctive relief where allegations of retaliation are involved, because such conduct is likely to cause irreparable harm to the public interest in enforcing the law by deterring others from filing charges. Id. at 1405. Courts have also found irreparable harm when employers unlawfully seek to depress union morale or decrease union membership. See, e.g., Lineback v. Spurlino Materials, LLC, 546 F.3d 491, 500 (7th Cir. 2008) (The longer that an employer is able to chill union participation or avoid bargaining with a union, the less likely it is that the union will be able to organize and to represent employees effectively once the NLRB issues its final order); Scott ex rel. N.L.R.B. v. Stephen Dunn & Associates, 241 F.3d 652, 667 (9th Cir. 2001) (injunction requiring employer to bargain with union during pendency of NLRB proceedings was proper because otherwise, when the Board finally does grant relief, the union may find that it represents only a small
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fraction of the employees); Kaynard v. Palby Lingerie, Inc., 625 F.2d 1047, 1053 (2d Cir. 1980) (noting the appropriateness of an interim reinstatement of a discharged union activist because an alternative result risk[s] a serious adverse impact on employee interest in unionization); Brown v. Pac. Tel & Tel. Co., 218 F.2d 542, 544 (9th Cir. 1955) (In view of the irreparable harm which the designated unions may suffer by the drifting away of their members ... we think the law entitles the [NLRB] to the injunctive relief sought); Reichard v. Foster Poultry Farms, 425 F.Supp.2d 1090, 1100 (E.D.Cal. 2006) (irreparable harm shown by evidence that [employer] is using the situation to further depress union support). ADDAs showing of irreparable harm is even stronger than the showing made in the cases cited above, because those cases involved statutory violations of the National Labor Relations Act committed by private-sector employers. The violations in this case, by contrast, have been committed by government officials who have infringed upon Plaintiffs constitutional rights, thereby resulting in irreparable harm as a matter of law. See, e.g., Monterey Mechanical Co., 125 F.3d at 715; Klein, 584 F.3d at 1208. Moreover, these violations are severely hampering ADDAs ability to carry out its mission in a number of ways. First, Defendants violations are directly affecting ADDAs ability to represent its members. ADDAs contract negotiating team lacks the services of Rob Dver, a well-respected and influential prosecutor, due to Cooleys attempt to bully him into undermining ADDA, then destroying Dvers career when that effort failed. (Exhibit 3, pp. 23-24, 32-33.) Those ADDA members that do participate in contract negotiations and give voice to employee grievances, such as Seligman, can quickly find their professional and personal lives turned upside down through a punitive transfer, a downgraded PE or, in many cases, both. As ADDA President Steve Ipsen has learned, being ADDAs president results in punitive transfers, downgraded PEs, suspensions, and months of living in a hotel due to prolonged threats of termination and Freeway Therapy. No reasonable person can be expected to forcefully and
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effectively advance the interests of fellow employees while simultaneously wondering what punitive acts await if they bring up the wrong subjects during bargaining sessions. Second, Defendants are sapping the unions morale both by subjecting rank and file members to discriminatory pricing for health benefits and then rubbing their faces in it. Barely a week after Defendants announced a decrease in the cost of health benefit plans to all County employees except prosecutors represented by ADDA, Cooley issued a memorandum to all prosecutors stating, in so many words, that ADDA prosecutors should not blame Defendants for their comparatively higher premiums but rather their own contract negotiators (the same ones who have been subjected to Cooleys punitive transfers) for allegedly failing to negotiate. (Exhibit 8, pp. 75-76.) Cooley did not mention, of course, that his negotiators had no authority to bargain and, as a result, bargaining had been suspended pending ERCOMs resolution of the matter. (Exhibit 7, p. 70, 13-14.) Meanwhile, Peter Burke, the Assistant Head Deputy that Cooley told Dver to team up with in order to undermine ADDA, continuously showers prosecutors with flyers claiming that ADDA is responsible for the increased health benefit premiums. (Exhibit 7, p. 71, 15.) Third, ADDAs ability to recruit new members, and retain current ones, has been severely strained by the pressures from Defendants harassment and intimidation. When a District Attorney slanders any deputy prosecutor as being contaminated and ratifying dishonesty by joining a union run by a crook president, those prosecutors who are not already members -- and who must be cognizant of both their career prospects as well as their reputations for honesty in the legal community -- would naturally be dissuaded from joining. Not surprisingly, Defendants defamation, along with their retaliatory acts and discrimination, have reduced ADDAs membership and chilled the enthusiasm of many of its remaining members. Several non-ADDA members, including the Unnamed DDA, have told ADDA Board Members that they support ADDAs efforts and would be interested in
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joining the union but will not do so because of fear of retaliation by Defendants. (Exhibit 2, p. 18, 37.) Conversely, several ADDA members have stopped paying membership dues and severed their ties with the union in an attempt to obtain health insurance at the same lower rates paid by other DA employees. (Exhibit 2, p. 14, 36; Exhibit 9, p. 77, 6-9.) More ADDA members left the organization in the month after Defendants unveiled their discriminatory cost-structure in October 2009 than had joined ADDA during the entire year before that announcement. (Exhibit 8, p. 74, 5.) ADDAs status as a nascent union that has yet to negotiate its first collective bargaining agreement magnifies the harm that Defendants actions are inflicting upon it. Lineback, 546 F.3d at 501; Reichard, 425 F.Supp.2d at 1100, citing Arlook v. S. Lichtenberg & Co, Inc., 952 F.2d 367, 373 (11th Cir. 1992); see also Gold v. State Plaza, Inc., 435 F.Supp.2d 110, 120 (D.D.C. 2006) (Respondents history of unfair labor practices coupled with the nascent status of the unions representation of State Plaza employees suggests that State Plazas employees will suffer irreparable injury absent injunctive relief.) ADDA prosecutors have not yet obtained their first collective bargaining agreement. ADDA has therefore not yet had the opportunity to develop a deep well of faith between it and its members to sustain it through a protracted fight such as the one being waged by Defendants. ADDAs diminished ability to represent its members, the damage to the morale of its members, and the actual loss of members, are all attributable to Defendants ongoing constitutional violations. ADDA has therefore shown a likelihood of irreparable harm if injunctive relief is not granted. III The Balance of Equities Tips Sharply in ADDAs Favor In balancing the parties potential hardships, this Court should be guided by the Ninth Circuits principle that, in labor disputes, legal remedies at the conclusion of an action are often meaningless without equitable relief while litigation is pending.
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Miller for and on Behalf of N.L.R.B. v. California Pacific Medical Center, 19 F.3d 449, 460 (9th Cir. 1994) ([I]n considering the balance of hardships, the district court must take into account the probability that declining to issue the injunction will permit the allegedly unfair labor practices to reach fruition and thereby render meaningless the [NLRBs] remedial authority). As stated in the preceding pages, the detriment to ADDA that will result if an injunction pendente lite does not issue is substantial. On the other hand, the detriment to Defendants from an injunction prohibiting discrimination or adverse employment actions based upon an employees union status is non-existent. See, e.g. Allee, 416 U.S. at 814 (upholding injunction prohibiting police harassment of union organizers because on its face the injunction does no more than require the police to abide by constitutional requirements); see also Schaub v. West Michigan Plumbing & Heating, Inc. 250 F.3d 962, 970-971 (6th Cir. 2001) (enjoining employer from discharging, transferring, interrogating, or discriminating against employees who engage in union activities or who express interest in any labor organization made eminent common sense because effects of employers unfair labor practices will linger without such an order.) Plaintiffs are asking this Court to enjoin Defendants from discriminating against ADDA members, as well as those prosecutors, such as the Unnamed DDA, who are not currently dues paying members but are interested in joining the union. Plaintiffs also seek to obtain health benefit coverage for the same price as similarly situated personnel in the DAs office. These are not extravagant requests. In short, Plaintiffs simply seek to maintain the status quo by ensuring that ADDA remains a viable representative for prosecutors in Bargaining Unit 801. The County does not face any undue financial exposure by permitting ADDA prosecutors to have the same health coverage at the same price as other DA personnel, as any benefits obtained by them that are later ruled to be improper can be withheld from subsequent employee paychecks. Should this Court require an undertaking as a condition of issuing a preliminary injunction, ADDA
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prosecutors are prepared to make arrangements with their brothers and sisters in other unions to obtain funding for a reasonable bond. IV Enjoining Defendants Retaliatory Acts Against Union Members Serves the Public Interest Plaintiffs seek an injunction prohibiting Defendants from committing ongoing violations of their constitutional rights by retaliating against prosecutors who have or are considering joining a union. Prohibiting such behavior is clearly in the public interest. Garcia, 805 F.2d at 1405 (the courts will more readily grant injunctive relief where allegations of retaliation are involved, because such conduct is likely to cause irreparable harm to the public interest in enforcing the law by deterring others from filing charges); see also Joelner v. Washington Park, 378 F.3d 613, 620 (7th Cir. 2004) (it is always in the public interest to protect First Amendment liberties). CONCLUSION For all of the foregoing reasons, Plaintiffs respectfully request that this Court grant their Motion for Preliminary Injunction in its entirety. DATED: January 20, 2010 Respectfully submitted, /s/ Matthew G. Monforton Matthew G. Monforton, Esq. MONFORTON LAW OFFICES, PLLC 32 Kelly Court Bozeman, Montana 59718 Telephone: (406) 570-2949 Facsimile: (406) 586-3869 e-mail: matthewmonforton@yahoo.com Attorney for Plaintiffs

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