Evans v. Jeff D. Brief for Amici Curiae

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CONSTANCE L. RICE (Bar #153372) 
BILL LANN LEE (Bar #108452) 
DARCI E. BURRELL (Bar #180467) 
NAACP LEGAL DEFENSE AND 

EDUCATIONAL FUND, INC.
315 West Ninth Street, Suite 208 
Los Angeles, California 90015 
(213) 624-2405

CAROL A. SOBEL (Bar #84483) 
MARK D. ROSENBAUM (Bar #59940) 
JON W. DAVIDSON (Bar #89301) 
SILVIA R. ARGUETA (Bar #144400) 
ACLU FOUNDATION OF 

SOUTHERN CALIFORNIA 
1616 Beverly Boulevard 
Los Angeles, California 90026 
(213) 977-9500, Ext. 223

BARRETT S. LITT (Bar #45527) 
ANNA Y. PARK (Bar #164242)
LAW OFFICE OF LITT & MARQUEZ 

A LAW CORPORATION 
3550 Wilshire Boulevard, Suite 1200 
Los Angeles, California 90010 
(213) 386-3114

Attorneys for Plaintiffs

UNITED STATES DISTRICT COURT 

CENTRAL DISTRICT OF CALIFORNIA

CASE NO. CV 94-3240-WDK

PLAINTIFFS' OPPOSITION TO POLICE 
PROTECTIVE LEAGUE’S MOTION 
FOR INTERVENTION AND 
DECLARATION OF BILL LANN LEE

DATE: December 12, 1996 
TIME: 8:00 AM 
COURTROOM: Chambers of 

Hon. William D. Keller

III

III

III

TERRY TIPTON-WHITTINGHAM, et al,

Plaintiffs,

vs.

CITY OF LOS ANGELES, et al,

Defendants.

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TABLE OF CONTENTS

I.

II.

III.

V.

INTRODUCTION.........................................

PROPOSED CONSENT DECREE ............

STATEMENT OF THE C A S E ...................

A. Hunter/LaLey.....................................

B. Prior Proceedings...............................

C. The League’s Proposed Intervention.

REASONS TO DENY INTERVENTION.............................................................

A. Intervention as of Right by the League Is Inappropriate..........................

1. The Intervention Is Untimely............................................. ' ..........

a. Stage of the Proceeding......................................................

b. Prejudice to the Parties.......................................................

c. The Reason for and Length of the Delay.........................

2. The League Has No Proper Protectable Interest...........................

3. No Impairment of Any Legitimate League Interest Will Result.

4. The League’s Interest Has Been Adequately Represented By 
the Parties and the Leagues Own Efforts in the City Council. . .

B. Permissive Intervention Is Inappropriate....................................................

C. The League May Participate as Amicus Curiae.........................................

CONCLUSION.........................................................................................................

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t

site 206

TABLE OF AUTHORITIES

Cases:

Alaniz v. Tillie Lewis Foods, 572 F.2d 657 (9th Cir. 1978) 
cert, denied sub nom Beaver v. Alaniz, 439 U.S. 837, 58 L. Ed. 2d 134,
99 S. Ct. 123 (1978)......................................................................................................................  8, 10

Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S. Ct. 1011,
39 L. Ed. 2d 147 (1974)...................................................................................................................  6

Bucket v. IT T  Consumer Financial Corp., 845 F. Supp. 684 (D. Minn. 1994) ......................  9

Doe by Doe v. Perales, 782 F. Supp. 201 (S.D.N.Y. 1991) ........................................................  6

Edwards v. City o f Houston, 78 F.3d 983 (5th Cir. 1 9 9 6 )........................................................... 9

Howard v. McLucas 782 F.2d 956 (11th Cir. 1 9 8 6 ) ..................................................................... 9

Kirkland v. New York State Department o f Correc. Services,
711 F.2d 1117 (2d Cir. 1983), cert, denied sub nom  
Altheiser v. New York State Dept, o f Correc. Services,
465 U.S. 1005, 104 S. Ct. 997, 79 L. Ed. 2d 230 (1 9 8 4 )........................................................  11

Legal A id Society o f Alameda Cty. v. Dunlop, 618 F.2d 48 (9th Cir. 1980) ...........................  8

NAACP v. New York, 413 U.S. 345, 37 L. Ed. 2d 648, 93 S. Ct. 2591 (1 9 7 3 ) .................  7, 8

Officers for Justice v. Civil Service Com ’n, 934 F.2d 1092 (9th Cir. 1991) ......................... 8, 9

Petrol Stops Northwest v. Continental Oil Co., 647 F.2d 1005 (9th C ir.1981)........................  7

Ragsdale v. Tumock, 941 F.2d 501 (7th Cir. 1991),
cert, denied sub nom Murphy v. Ragsdale, 502 U.S. 1035, 116 L. Ed. 2d 784,
112 S. Ct. 879 (1 9 9 2 )...................................................................................................................  7, 10

Smith v. Pangilinan, 651 F.2d 1320 (9th Cir. 1 9 8 1 ) ..................................................................  10

Stallworth v. Monsanto Co., 558 F.2d 257 (5th Cir. 1977) ........................................................  9

Stringfellow v. Concerned Neighbors, 480 U.S. 370, 107 S. Ct. 1177,
94 L. Ed. 2d 389 (1987) .................................................................................................. ...........  13

United States v. Killingsworth, 25 F.3d 715 (9th Cir. 1 9 9 4 )........................................................  8

United States v. Oregon, 745 F.2d 550 (9th Cir. 1 9 8 4 ) ........................................................... 8, 10

Statutes:

Fed. R. Civ. P. Rule 24 .........................................................................................................  2

Fed. R. Civ. P. Rule 24(a) ....................................................................................................  7

Fed. R. Civ. P. Rule 24(a)(2) ............................................................................................  12

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fc
oitc 206

Fed. R. Civ. P. Rule 24(b) ....................................................................................................... 13, 14

Other Authorities:

Schwarzer, Tashima & Wagstaffe, Cal. Practice Guide:
Fed. Civ. Prac. Before Trial 11 7:182 (1996) ....................................................- ...........................  7

“Class-Action Suit Alleges Gender Bias in LAPD. ”
Los Angeles Times, May 19, 1994, Metro p. B - l .......................................................................... 5

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INTRODUCTION

Plaintiffs Terry Tipton-Whittingham, et al., oppose the motion for intervention filed by the 

Los Angeles Police Protective League ("League"). Plaintiffs do not oppose the League participating 

in the litigation as amicus curiae through briefing.

The League seeks intervention in order to challenge the partial settlement proposed by the 

parties on November 5, 1996 in the form of the proposed Consent Decree Providing Injunctive 

Relief because the League was not included in the negotiations leading to the proposed settlement. 

The League, however, makes no claim nor does it assert any defense under the civil rights laws that 

are at issue in this action. It alleges only collective bargaining interests. In the League's view, the 

proposed Consent Decree "threatens to impair or impede the hard won fruits of collective bargaining 

embodied in the Memorandum of Understanding entered into between the City of Los Angeles and 

the League on behalf of its more than 9,000 officers." League Memorandum 4. According to the 

League, "the proposed consent decree seeks to affect promotions, advancements, pay-grades and 

assignments to coveted positions of officers represented by the League." In addition, the League 

asserts that the proposed decree "will affect the interests of the League and its member police 

officers" with respect to employee surveys, training requirements, transfers, discipline, performance 

standards, consultants, employee complaints and performance evaluation. League Memorandum 6.

Initially, we point out that the League’s Memorandum of Understanding expressly states that 

the areas in which the League asserts its interests will be affected are all within the exclusive 

management responsibility and prerogative of defendant City. The Memorandum of Understanding 

("MOU") declares:

Responsibility for management of the City and direction of its work force is 

vested in City officials and department heads whose powers and duties are specified 

by law. In order to fulfill this responsibility, it is the exclusive right of City 

management to determine the mission of its constituent departments, offices, and 

boards, set standards of services to be offered to the public, and exercise control and 

discretion over the City's organization and operations. It is also the exclusive right

I.

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of City management to take disciplinary action for proper cause, relieve City 

employees from duty because of lack of work or other legitimate reasons and 

determine the methods, means and personnel by which the City's operations are to 

be conducted and to take all necessary actions to maintain uninterrupted service to 

the community and carry out its mission in emergencies; provided however, that the 

exercise of these rights does not preclude employees or their representatives from 

consulting, or from grieving or filing a general appeal, about the practical 

consequences that decisions on these matters may have on wages, hours, and other 

terms and conditions of employment . . .

MOU, Act. 1.8A; Hernandez Declaration, Exh. B 9-10. The MOU expressly states that the 

following personnel matters are "matters not grievable or arbitrable: transfers, promotions,

promotional examinations, probationary employee terminations, and any matter involving discipline. 

MOU Acts. 1.8B & 8.2, Hernandez Declaration, Exh. BIO & B69.

The League’s claim that its collective bargaining interests are adversely affected in hiring, 

promotions and other management prerogatives at best is misleading. The Leagues attempted 

intervention to scuttle or re-negotiate the Consent Decree is a transparent ploy to expand its power 

beyond what is specified in MOU and invade defendant City's exclusive management responsibility 

and prerogatives over personnel policies, enmeshing the Court in labor-management issues unrelated 

to this civil rights proceeding. The Court should not permit itself to become a party to such 

overreaching.

As we show below, the proper course is for the Court to deny intervention at this time 

because the requirements of Fed. R. Civ. P. Rule 24 are not met.

The Proposed Decree does not spell out specific programs, but articulates broad personnel 

policies for the City to develop in a non-discriminatory manner under the Court’s supervision. If 

in implementing the Consent Decree, specific City's personnel decisions actually adversely affect 

concrete terms and conditions of employment of League members, the League may then file an 

amicus curiae brief on a more focused basis. This approach is consistent both with the Consent 

Decree and the restricted role defined for the League in the MOU with respect to promotions,

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discipline and other management prerogatives.

n.
PROPOSED CONSENT DECREE

The Proposed Consent Decree provides for two forms of substantive relie'f. First, the Decree 

applies to female LAPD employees the promotional, pay grade advancement and assignment to 

coveted position relief in sergeant, detective and lieutenant positions provided African-American, 

Latino and Asian-American employees by a Consent Decree entered August 27, 1992 by Judge 

Tashima in Hunter & LaLey v. City o f Los Angeles, C.D. Cal. Nos. CV-92-1877-AWT and CV-92- 

1898-AWT. Consent Decree III.2. Women had previously been included by City Council 

resolution. Id. Second, the proposed Decree provides that the City and LAPD will prepare an 

annual recruitment and outreach plan for women and minority applicants. Consent Decree V. 6. & 

7. The remainder of the proposal sets forth the Decree's class definition (Consent Decree II.), 

goals and objectives (Consent Decree III.), definitions (Consent Decree IV.), surveys of employee 

attitudes (Consent Decree V.l. & 2.), reporting data (Consent Decree V.3.,4.,9.), evaluation of special 

requirements for selections (Consent Decree V.8.), efforts to provide gender and ethnic balance 

among recruitment, hiring and training personnel (Consent Decree V.10.), good faith use of outside, 

minority and women raters on promotion boards (Consent Decree II.) and establishment of 

Discrimination Office under Police Commission. (Consent Decree VI.).

On its face, the proposed Consent Decree, which seeks to advance the rights of women 

and minority individuals under the federal civil rights laws, addresses only matters that in the 

collective bargaining context are matters of exclusive management responsibility and prerogative. 

The League as a union of incumbent employees has no authority over hiring; the MOU, as 

discussed above, expressly provides that promotional and other personnel policies are exclusive 

management prerogatives and responsibilities.

A. Hunter/LaLey

The Hunter/LaLey Consent Decree, which is incorporated as Exhibit 1 to the proposed 

Consent Decree, was approved by the City Council in December 1991 as a result of pre-suit

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m.
STATEMENT OF THE CASE



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negotiations in which the League did not participate. Lee Declaration U 2. The Hunter/Laley case 

was not filed until March 27, 1992. After the City Council vote, the League published and 

distributed to its members a special bulletin on December 24, 1991 entitled, "Proposed Consent 

Decree and Agreement Resolving Litigation Re: Police Department Promotions, Pay Grade 

Advancements, and Assignments to Coveted Positions," Lee Declaration Exhibit A, that explains the 

provisions of the Hunter/LaLey Decree and "the League's position in this matter" Lee Declaration, 

Exhibit A. The League stated:

From the outset, it is important for all League members to understand that the 

League was not, and will not be, a party to the litigation which to this proposed 

settlement agreement. Because the League must fairly represent all of its members 

without regard for their sex, race, religions or national origin, the League cannot 

concur, oppose or participate in the proposed Consent Decree and Agreement.

Lee Declaration, Exhibit A 17.

Notwithstanding its professed position of neutrality the League surreptiously funded an 

attempt to intervene as of right in Hunter/LaLey by a group of white officers who claimed their civil 

rights were adversely affected by the Hunter/LaLey settlement. See Lee Declaration 1[ 3. Judge 

Tashima denied intervention. Hunter/LaLey Order on Motion For Intervention, dated November 18, 

1992, is attached as Lee Declaration Exhibit B. The Court ruled in Hunter/LaLey that:

Defendant-intervenors' motion to intervene as of right is denied, the Court 

finding that their motion is (1) untimely (2) will unduly delay or prejudice the 

adjudication of the rights of the original parties (3) no adverse impact will result to 

would-be intervenors' interest and (4) would-be intervenors' interest has been 

adequately represented by their own participation as amicus curiae or future 

intervention or if the implementation of the Decree results in a live controversy.

Lee Declaration Exhibit B. The League paid the attorneys fees of plaintiffs' counsel levied by the 

Ninth Circuit against the white officers for prosecuting an appeal from the denial. Declaration of 

Lee H 4 & Exh. C.

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1 B. Prior Proceedings.

2 This instant lawsuit was filed two-and-a-half years ago on May 18, 1994 as a class action

3 I challenge under the civil rights laws to the LAPD policies and practices involving hiring, promotion,

4 pay grade advancement assignment, harassment and retaliation. The League acknowledges that the

5 Complaint challenged "systematic discrimination and harassment based on sex, ethnicity and race

6 against sworn and civilian women employees and applicants for employment.' League Complaint

7 in Intervention 4. The filing at the lawsuit engendered substantial press and broadcast media

8 coverage. “Class-Action Suit Alleges Gender Bias in LAPD.” Los Angeles Times, May 19, 1994,

9 Metro p. B -l, Lee Declaration Exhibit D.

10 Plaintiffs filed a First Amended Complaint, adding additional plaintiffs; on September 14,

11 1994. The City filed an Answer on July 29, 1996. On November 5, 1996, the parties submitted a

12 stipulation adding as additional plaintiffs the Southern Christian Leadership Conference, the Latin

13 American Law Enforcement Association (LaLey) and the Latino Law Enforcement Association of

14 Asian Pacifies (LEAAP) on behalf of minority applicants and officers. Stipulation and [Proposed]

15 Order, filed November 5, 1996.

16 As the Court itself pointed out at the last status conference, the Court has issued numerous

17 stays of proceedings at the request of the parties for the publicly-stated purpose of facilitating the

18 parties' settlement discussions. The Court's orders thus belie the Leagues suggestion that the

19 settlement was achieved through "secret negotiations."

20 In late October 1996 the City Council was presented with a version of the Proposed Consent

21 Decree substantially longer than the present proposal. This draft is set forth in Kane Declaration,

22 Exhibit D. On October 23, 1996, the League sent a lengthy letter objecting to various provisions

23 of the proposed Decree and requesting that the City require the parties to include the League in any

24 settlement negotiations. Hernandez Declaration, Exhibit A. The City Council declined to rescind

25 the settlement and include the League in any settlement negotiations. The Council approved the

26 version of the proposed Decree presently before the Court.

27 On November 5, 1996, the parties submitted the proposed Consent Decree for judicial

28 approval. The proposed Decree is a tentative partial settlement, leaving many issues to the

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implementation phase and to subsequent discussion and litigation issues of harassment, retaliation 

and damages. The League acknowledges that among "outstanding issues subject to further injunctive 

relief" are "monitoring and enforcement of the consent decree" and "internal operation of the Police 

Department." League Memorandum 7 & 12-13 ("the proposed consent decree does not end this 

matter").1

C. The League’s Proposed Intervention.

The League filed a Motion to Intervention on November 8, 1996, more than two-and-a-half 

years after filing of the action.

In the Complaint in Intervention, the League denominates itself "plaintiff in intervention." 

Complaint in Intervention. The Complaint in Intervention, however, makes no claims -  nor does 

it assert any defenses ~  under the civil rights laws under which the plaintiffs have sought relief. Nor 

does it assert that the proposed Consent Decree will advance the civil rights of women and minority 

LAPD employees or hinder the civil rights of other LAPD employees. The sole federal claim 

contained in the Complaint in Intervention is the unprecedented assertion that the due process clause 

of the Fourteenth Amendment was violated by the City for failing to include the League in the 

negotiations leading to the Consent Decree Complaint in Intervention ffll 14-15. The Complaint in 

Intervention fails to acknowledge that the Memorandum of Understanding specifically reserves to 

the City's exclusive management responsibility and prerogatives the personnel policy-making affected 

by the proposed Consent Decree. Nor does the League apparently recognize black letter law 

concerning the “distinctly separate nature of . . . contractual and statutory rights” in the employment 

discrimination field. Alexander v. Gardner-Denver Co., 415 U.S. 36, 49-50, 94 S.Ct.. 1011, 39 

L.Ed.2d 147 (1974) (“In submitting his grievance to arbitration, an employee seeeks to vindicate his

1. The League erroneously suggests that the Court is required to give notice to the class and 
to hold a further fairness hearing pursuant to Fed. R. Civ. P. rule 23(e) (judicial approval 
required when entire action is dismissed or compromised.) before approving the Proposed 
Decree. Such notice and hearing is not required where, as here, the settlement resolves only part 
of the litigation, see 3B Moore's Fed. Pract. U 23.80[3] (1996), and provides only injunctive relief 
equally available to all class members. See, e.g. Doe by Doe v. Perales, 782 F. Supp. 201, 207 
(S.D.N.Y. 1991)("Rather than advance the goals o f the notice provision o f Rule 23(e), requiring 
notice and hearing in this case would intail substantial delay and concomitant cost, all to the 
detriment o f the class itself").

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contractual right under a collective-bargaining agreement. By contrast, in filing a lawsuit under Title 

VII, an employee asserts independent statutory rights accorded by Congress.”).

IV.
REASONS TO DENY INTERVENTION

This is a frivolous motion. The League meets neither the requirements of Fed. R. Civ. P. 

Rule 24(a) for intervention as of right nor the Rule 24(b) permissive intervention standards. The 

claims the League seeks to protect should either be separately advanced in the collective bargaining 

process or by amicus brief.

The burden is on the prospective intervenor to demonstrate that the conditions for 

intervention are satisfied. See, e.g., Petrol Stops Northwest v. Continental Oil Co., 647 F.2d 1005, 

1010 n. 5 (9th Cir.1981). A proposed intervention should be denied if an applicant fails to satisfy 

the requirements for intervention.

A. Intervention as of Right by the League Is Inappropriate.

1. The Intervention Is Untimely.

Timeliness is a threshold question addressed to the sound discretion of the Court based upon 

a consideration of all the circumstances. NAACP v. New York, 413 U.S. 345, 366, 37 L. Ed. 2d 648, 

93 S. Ct. 2591 (1973); see Schwarzer, Tashima & Wagstaffe, Cal. Practice Guide: Fed. Civ. Prac. 

Before Trial H 7:182 (1996). While the timeliness requirement is to be liberally construed, eleventh 

hour interventions, particularly on the brink of settlement, are disfavored. Id. at ffl[ 7:184-88. See, 

e.g., Ragsdale v. Turnock, 941 F.2d 501, 504 (7th Cir. 1991), cert, denied sub nom Murphy v. 

Ragsdale, 502 U.S. 1035, 116 L. Ed. 2d 784, 112 S. Ct. 879 (1992) ("Once parties have invested 

time and effort into settling a case it would be prejudicial to allow intervention . . . [Intervention 

at this time would render worthless all of the parties' painstaking negotiations because negotiations 

would have to begin again and [the intervenor] would have to agree to any proposed consent decree

A case may never be resolved if another person is allowed to intervene each time the parties 

approach a resolution of it" (citations omitted)); Alaniz v. Tillie Lewis Foods, 572 F.2d 657 (9th Cir. 

1978) cert, denied sub nom Beaver v. Alaniz, 439 U.S. 837, 58 L. Ed. 2d 134-, 99 S. Ct. 123 (1978) 

("The crux of [proposed intervenors'"] arguments is that they did not know the settlement decree

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would be to their detriment. But surely they knew the risks. To protect their interests, [proposed 

intervenors] should have joined the negotiation before the suit was settled.”).

The League concedes that the rule of law is that "the focus is on the date the person 

attempting to intervene should have been aware that his interest would no longer be protected 

adequately by the parties, rather than the date the person learned of the litigation." League 

Memorandum 10. See, e.g., NAACP v. New York, 413 U.S. at 366 ("[proposed intervenors] knew 

or should have known of the pendency of the action"); Officers for Justice v. Civil Service Com'n, 

934 F.2d 1092, 1095 (9th Cir. 1991); Alaniz, 572 F.2d at 657 (proposed intervenors "either knew 

or should have known of the continuing negotiations"),

a. Stage of the Proceeding.

The general rule is that intervention is disfavored at a late stage in a litigation. "Although 

a lapse of time is not determinative, a substantial delay will weigh heavily against intervention." 

Offices for Justice v. Civil Service Com'n, 934 F.2d at 1095 (9th Cir. 1991); Rasdale, 941 F.2d at 

504; Alaniz, 572 F.2d at 658-59. When a proposed intervenor asserts an interest that he or she 

cannot reasonably anticipate is at risk at the outset of litigation, courts look to the point when the 

intervenor's interest was put at risk. Officers for Justice, 934 F.2d at 1095 ("In analyzing timeliness, 

however, the focus is on the date the person attempting to intervene should have been aware his 

‘interests] would no longer be protected adequately by the parties,’ rather than the date the person 

learned of the litigation.”). Thus courts have permitted intervention at a late stage of the proceedings 

when an intervenor’s interest arose as the result of a change of litigation position by a party, Officers 

for Justice, 934 F.2d at 1095-96; Legal Aid Society o f Alameda Cty. v. Dunlop, 618 F.2d 48, 50 (9th 

Cir. 1980), or other change of circumstances. United States v. Oregon, 745 F.2d 550, 552 (9th Cir. 

1984); United States v. Killingsworth, 25 F.3d 715, 718-19 (9th Cir. 1994).

In the instant case, the League asserts an interest as a collective bargaining agent to join in 

any negotiations affecting LAPD personnel policies. Such an interest was put at risk as an objective 

matter when the litigation was initiated in light of the City having previously settled the prior 

Hunter/LaLey systemic litigation by negotiating a consent decree without the League’s participation. 

That was over two-and-a-half-years ago. At the very least, the League “should have been aware

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[its] 'interests] would no longer be protected adequately by the parties,” Officers for Justice, 934 

F.2d at 1095, when the Court first stayed proceedings to permit plaintiffs and the City to negotiate 

a settlement without the League’s participation. That was over two years ago.

The League tries to bring itself within the ambit of cases permitting intervention at a late 

stage. League Memorandum 9-13. The simple response is that that authority does not apply where, 

as here, the interest asserted was put at risk much earlier. The League merely asserts that it learned 

of the settlement as a subjective matter only in October 1996, id., even while conceding that the 

standard is an objective one. It wholly fails to establish that its interest was put at risk only when 

a consent decree was proposed.

The League cites a number of cases from other circuits in which an intervenor’s interest was 

put at risk only when the actual terms of a settlement became known. League Memorandum 10-12, 

citing Edwards v. City o f Houston, 78 F.3d 983, 1000-02 (5th Cir. 1996) (unions representing white 

employee members’ interest against reverse discrimination under civil rights laws may intervene after 

they learn of specific consent decree provisions that may infringe the interest); Howard v. Me Lucas 

782 F.2d 956, 960 (11th Cir. 1986) (white employees could intervene to challenge set aside of 240 

target promotions for minority employees to vindicate their interest against reverse discrimination 

under the civil rights laws); Stallworth v. Monsanto Co., 558 F.2d 257, 266-68 (5th Cir. 1977) 

(same); Buchet v. ITT Consumer Financial Corp., 845 F. Supp. 684, 688-89 (D. Minn. 1994) (class 

members with interest in objecting to specific consent decree provisions may intervene when they 

first learn of provisions). Unlike the intervenors in these cases, the League does not assert any 

interest under the civil rights laws in favor or opposed to any consent decree provision. Its collective 

bargaining interest was put at risk by the prospect or the fact that the parties were negotiating 

without the League, not by the terms of the Decree. Unlike the intervenors in all the cases the 

league erroneously cites, the League asserts no substantive law dispute with the Consent Decree: its 

objection is solely an unsupported procedural claim to participation,

b. Prejudice to the Parties.

The issue of prejudice to the existing parties “has been termed the most important 

consideration in deciding whether a motion for intervention is untimely’” United States v. Oregon,

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745 F.2d at 552 (citation omitted). Where, as here, the parties have labored over two years to 

produce a settlement, there is no doubt of substantial prejudice to the existing parties if intervention 

is permitted so the League can gut or renegotiate the Decree. See Ragsdale, 941 F.2d at 504; Alaniz, 

572 F.2d at 658 (“In evaluating the second factor, courts have emphasized the seriousness of the 

prejudice which results when relief from longstanding inequities is delayed”).

The League does not dispute that its intervention will substantially prejudice the parties,

c. The Reason for and Length of the Delay.

As noted above, courts have permitted intervention at a late stage of proceedings if the 

intervenor adequately explains its delay. The League, however, offers no reason for its delay other 

than the claim that the negotiations were “kept secret.” League Memorandum 13. That claim, 

however, is hardly credible in light of the public notice of negotiations in the Court’s stay orders. 

Given the widespread publicity surrounding the filing of the case, the League reasonably should have 

known of the case and the possibility of settlement, particularly in light of the outcome in the 

Hunter/LaLey case. Given the stay orders, the League reasonably should have no doubt at all about 

the possibility of a settlement. Its delay is inexcusable.

2. The League Has No Proper Protectable Interest.

A proposed intervenor is required to show “a protectable interest in the outcome of the 

litigation of sufficient magnitude to warrant inclusion in the action. Smith v. Pangilinan, 651 F.2d 

1320, 1324 (9th Cir. 1981). In the instant case, the League purports to assert an interest based on 

its MOU. Upon examination, the MOU expressly states that personnel policy-making is within the 

exclusive management responsibility and prerogative of the City. The interest that the League seeks 

to assert is not protectable because it is wholly illusory. See Kirkland v. New York State Department 

ofCorrec. Services, 711 F.2d 1117, 1128 (2d Cir. 1983), cert, denied sub nom Altheiser v. New York 

State Dept. ofCorrec. Services, 465 U.S. 1005, 104 S. Ct. 997, 79 L. Ed. 2d 230 (1984) (“it cannot 

be said that [collective bargaining] provisions give intervenors a specific contractual right in the 

preservation of their positions” where the collective bargaining agreement affords defendant city 

agency “wide authority to choose and modify the procedures it sees fit to determine merit and 

fitness”)

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The League cites a number of cases in which groups of employees or unions were found to 

have protectable interests as minority employees asserting rights under the civil rights laws or as 

white employees asserting reverse discrimination claims. Memorandum 14. The League, however, 

neither makes claims or asserts defenses under the civil rights laws. The only protectable interest 

it seeks to assert is one founded on its collective bargaining contract. The cases the League cites 

are clearly distinguishable. Even if the League’s intervention is a sub rosa attempt to assert the 

reverse discrimination interests of white, male LAPD officers whose employment rights are 

purportedly adversely affected by the proposed Consent Decree, Judge Tashima’s finding in similar 

circumstances that white LAPD employees have no protectable interest in challenging the terms of 

the Hunter/LaLey Decree, as opposed to its implementation, is entitled to great deference. Lee 

Declaration, Exhibit B (“no adverse impact will result to would-be intervenors’ interest”). No white 

male officer has been denied a promotion, pay grade advancement or coveted assignment as a result 

of the proposed Consent Decree.

If future implementation of the proposal does adversely affect the reverse discrimination 

interests or MOU-based rights of League members, the League can either raise such future harms 

in collective bargaining proceedings or in the instant case on an actual record of ripened injury.

3. No Impairment of Any Legitimate League Interest Will Result.

Under Fed. R. Civ. P. Rule 24(a)(2), a proposed intervenor must establish that the disposition 

of the action may as a practical matter impair or impede the applicant’s ability to protect its interest. 

In the instant case, the MOU gives the League no legitimate interest in whether the City agrees 

through the proposed Consent Decree to alter its personnel policies to assure the civil rights of 

women and minority individuals. The League in fact asserts no actual injury to its membership as 

a result of the proposed Consent Decree, only that “the League and its members will be affected by 

the consent decree as a practical matter since the Department will be forced to implement changes 

in promotions, transfers, discipline and performance evaluation procedures.” League Memorandum 

15. Under the MOU, the City and LAPD could make such management changes even in the absence 

of the proposed Consent Decree. The League, in any event, overlooks that any implementation of 

the proposed Decree by the LAPD is subject to the continuing jurisdiction of the Court. Judge

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Tashima’s ruling that the Hunter/LaLey settlement does not impair any interest of white employees, 

moreover, is entitled to great deference.

If, as noted above, the City’s implementation of the Consent Decree does adversely affect 

legitimate interests of League members, the League is not barred from moving in the future to 

protect those interests.

4. The League’s Interest Has Been Adequately Represented By 
the Parties and the Leagues Own Efforts in the City Council.

There is no right to intervene if “the applicant’s interest is adequately represented by the 

existing parties.” Fed. R. Civ. P. Rule 24(a)(2). Plaintiffs are League members; the City seeks to 

represent the public interest. In light of the fact that the League is unable to assert that the Consent 

Decree will cause any adverse impact to any member, the League can hardly complain about 

inadequate representation.

Moreover, as the League admitted in December 1991 when it decided to take no position on 

the Hunter/LaLey Consent Decree, it has minority and white, women and male members, all of 

whose interests it must represent in collective bargaining. Even if the Decree disadvantaged some 

of its members, the League should not favor the interests of some members over the interests of 

other members.

B. Permissive Intervention Is Inappropriate.

Fed. R. Civ. P. Rule 24(b) allows permissive intervention upon a showing of timely 

application, that proposed intervenor’s claim or defense of the main action has a question of law or 

fact in common and that the intervention will not unduly delay or prejudice the rights of the original 

parties. The Court may impose reasonable conditions on any permissive intervention. See, e.g., 

Stringfellow v. Concerned Neighbors, 480 U.S. 370, 373, 107 S. Ct. 1177, 94 L. Ed. 2d 389 (1987) 

(upholding conditions limiting intervenors’ claims for relief and right to conduct discovery).

The League’s unexplained delay in seeking intervention renders their application untimely.

The League’s erroneous claim that its rights under the MOU are violated by the negotiation 

of the Consent Decree is an entirely separate question of law from plaintiffs’- civil rights claims or 

the City’s defenses to those claims. Nor are there common factual questions. Plaintiffs have made

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no claim against the League and have not challenged the MOU. The City has asserted no defense 

under the MOU. The League neither asserts nor denies discrimination. The claims of the League 

and of the parties are like ships passing in the night.

The intervention will unduly delay or prejudice the rights of the original parties to resolve 

subject to the approval of the Court substantial issues in this significant civil rights action by the 

proposed Consent Decree.

C. The League May Participate as Amicus Curiae.

The League asserts that it has “knowlege” of the issues raised by this lawsuit that may be 

of assistance to the Court. Memorandum 21. In light of the above discussion, this contention is 

highly debatable. This is an employment discrimination action brought to vindicate rights of women 

and minority employees secured by the civil rights laws, not a case concerning the MOU. To the 

extent that the implementation of changes to promotional and other personnel policies within 

defendant City’s management responsibility and perogatives affect MOU-based collective bargaining 

rights, the League conceivably has a basis to file an amicus curiae brief. At present, it is unknown 

whether implementation of the proposed Consent Decree will have any such impact. Certainly, the 

League has never seen fit to defend any MOU-based rights in the Hunter/LaLey litigation 

notwithstanding that that Decree has been in implementation for four years.

The League’s participation should be limited strictly to the filing of amicus briefs. Oral 

argument and the right to present evidence are unnecessary for the League to give the Court the 

benefit of its at best peripheral knowledge of the issues.

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V.

CONCLUSION

The Court should deny the League’s motions for intervention as of right pursuant to Fed. 

R. Civ. P. Rule 24(a)(2) and for permissive intervention pursuant to Fed. R. Civ. P. Rule 24(b). 

Plaintiffs do not oppose the League’s request for amicus curiae participation limited to the 

submission of amicus.

Dated: December 6, 1996

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