Tipton-Whittingham v. City of Los Angeles Response to Motions to Intervene
Public Court Documents
December 9, 1996
Cite this item
-
Brief Collection, LDF Court Filings. Tipton-Whittingham v. City of Los Angeles Response to Motions to Intervene, 1996. 66087a41-c69a-ee11-be37-00224827e97b. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/966cd6e5-ca63-4324-8b4a-68496f698d34/tipton-whittingham-v-city-of-los-angeles-response-to-motions-to-intervene. Accessed October 09, 2025.
Copied!
1
2
3
4
S
6
7
8
9
10
11
12
13
14
15
16
17
16
IS
20
21
22
23
24
25
25
27
28
46
#173 P02:-10-’ 96 TUE 12:38 ID:Lfi CITY PlTTORNEY TEL NO: 213 485-8898
JAMES K. HAHN, City Attorney
FREDERICK N. MERKIN, Senior Assistant City Attorney
ROBERT CRAMER, Assistant City Attorney (SBN 56805)
1800 City Hall East
200 North Main Street
Los Angeles, California 90012-4131
(213) 485-5432 FAX: (213) 485-8898
Attorneys for Defendant
CITY OF LOS ANGELES
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
TERRY TIPTON-WHITTINGHAM, )
et al., )
)
Plaintiffs, )
)
v. )
)
CITY OF LOS ANGELES, et al., )
)
Defendants. )
____________)
CASE NO. CV 94-3240 (RC)
RESPONSE OF DEFENDANT CITY OF
LOS ANGELES TO MOTIONS TO
INTERVENE FILED BY LOS ANGELES
POLICE PROTECTIVE LEAGUE AND
RICHARD J. DYER
DATE: December 12,1996
TIME: 8:00 a.m.
PLACE: Courtroom 1600
DEC—10-’96 TUE 12:38 ID:LA CITY ATTORNEY TEL NO:213 485-8898 4173 P03
3
4
6
6
7
a
o
10
n
12
13
14
15
10
17
ia
19
20
21
22
23
24
25
26
27
28
TABLE OF CONTENTS Pa8e
TABLE OF CASES, STATUTES, AND OTHER AUTHORITIES...................................................Hi
I. STATEMENT OF THE CASE..................................................................................................1
II STANDARDS FOR INTERVENTION AS OF RIGHT UNDER FED.R.CIV.P.,
RULE 24(a)(2) AND FOR PERMISSIVE INTERVENTION UNDER
FED.R.CIV.P., RULE 24(b)(2)................................................................................................... 6
III. TIMELINESS OF THE PROPOSED INTERVENTION........................................................ 8
IV. ARTICULATION OF THE PROPOSED TNTERVENORS' INTERESTS......................... 11
V. ADEQUACY OF THE REPRESENTATION OF THE PROPOSED
INTERVENORS' INTERESTS BY THE EXISTING PARHES........................................... 15
VI. CONCLUSION.........................................................................................................................17
CA 1«6
i
\J
3
4
S
6
7
8
9
10
11
12
13
14
13
IS
17
18
19
20
21
82
22
24
26
26
27
28
146
DEC— 10— ’96 TUE 12:39 ID:LA CITY ATTORNEY TEL NO:213 485-8898 ttl73 P04
TABLE OF CASES, STATUTES, AND OTHER AUTHORITIES
FEDERAL CASES Page
County o f Orange v. Air California
799 F,2a 535 (9th Cir. 1986), cert, denied, 480 U.S. 946,107 S.Ct. 1605,
94 L. Ed. 2d 791 (1987).................................. ..................................................................6-8,10
Doe by Doe v. Perales
782 F.Supp. 201 (S.D.N.Y. 1991)............................................................................................. 4
Hunter v, City o f Los Angeles
No. C?V-92-1897-AWT (Central Dist., Cal.).............................................................. 2-3,9,12
Latin American Law Enforcement Association v. City of Los Angeles
No. CV-92-1898-AWT (Central Dist., Cal.)...............................................................2-3,9,12
Petrol Stops Northwest v. Continental Oil Co.
647 F.2d 1005 (9th Cir. 1981)................................................................................................... 7
Ragsdale v. Turnock
941 F.2d 501 (7th Cir. 1991), cert, denied sub ttom. Murphy v. Ragsdale,
502 U.S. 1035,112 S.Ct. 879,116 L.Ed.2d 784 (1992)............................................................ 8
United States ex rel. McGough v. Covington Technologies Co.
967 F.2d 1391 (9th Cir. June 24,1992)................................................................................. 6-8
United States v. State o f Oregon
913 F.2d 576 (9th Cir. 1990), cert, denied, _____U.S._____ , 111 S.Ct. 2889,
115 L.Ed.2d 1054 (1991)........................................ ..............................................................9-10
United States v. Stringfellow
783 F.2d 821 (9th Cir. 1986), vacated on other grounds, 480 U.S. 370,
107 S. Ct. 1177,94 L. Ed. 2d 389 (1987).................................................................................. 6
FEDERAL CONSTITUTION Page
Amendment XIV ..............................................................................................................................4
CALIFORNIA CONSTITUTION Page
Article I, § 31(a) ("Proposition 209")................................................................ ......................5,13-14
— iii—
1
2
3
4
5
6
7
8
9
10
u
12
13
14
15
16
17
18
10
20
21
22
28
24
25
26
27
28
146
DEC-10-’96 TUE 12:40 ID: LA CITY ATTORNEY TEL NO:213 485-8898 #173 P05
FEDERAL RULES OF CIVIL PROCEDURE
Rule 23(c).............................................................
Rule 24..................................................................
Rule 24(a)(2)........................................................
Rule 24(b)(2)........................................................
Page
....3-4
...1 ,7
4,6-7
...4 ,7
— iv—
1
2
3
4
5
e
7
e
e
10
n
12
13
U
16
16
17
18
10
20
21
22
23
24
25
28
27
28
46
8173 P06:-10-’96 TUE 12:40 ID:LA CITY ATTORNEY TEL NO:213 485-8898
I
STATEMENT OF THE CASE
The Los Angeles Police Protective League ("League") and Lt, Richard J. Dyer ("Lt.
Dyer") have separately moved to intervene as parties for the express purpose of setting aside
a proposed consent decree, the partial result of over two years of effort by the parties to
conclude the present litigation. Because of the failure of each of the proposed intervenors to
meet the requirements set by Fed.R.Civ.P., Rule 24, for either intervention by right or
permissive intervention, the City opposes the motions.
The plaintiffs on May 18,1994 filed a purported class action claiming that the processes
by which the defendant City of Los Angeles ("City") recruits, hires, promotes, advances,
assigns and disciplines persons within the Los Angeles Police Department ("LAPD" or
"Department") unlawfully discriminate against women and racial minorities. The City denies
these claims.
Beginning soon after the lawsuit was filed, the parties have engaged In talks designed
to identify areas of agreement and to explore opportunities for settlement of their differences.
On at least eight separate o cca sio n s, the p arties have sou gh t and received stays o f the
litigation sch ed u le to allow their talks to proceed apart from the burdens of trial and motion
preparation.
On November 5, 1996, the Los Angeles City Council approved a consent decree
negotiated by the parties. The parties lodged the proposed decree on the same day, and asked
for the court's expeditious acceptance. If approved by the court, the decree will resolve a small
but important portion of the outstanding issues, deferring the remainder for further
negotiations or litigation. The proposed consent decree defines a settlement class for purposes
of the decree only, and contains a statement of goals and definitions of decree terms. It also
contains four important substantive relief provisions:
1
2
3
4
5
fi
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
i\
23
28
27
28
146
96 TUE 12:41 ID:LA CITY ATTORNEY TEL NO:213 485-8898 8173 P07
(1) The goals set o u t in the consent decree which resolved lohn
W. Hunter v. City o f Los Angeles, No. CV-92-1897-AWT
(Central Diet., Cal.) and Latin American Law Enforcement
Association v. City o f Los Angeles, No. CV-92-1898-AWT
(Central Dist., Cal.) ("Hunter!La Ley") for the promotion of
African-American, Hispanic, and Aslan Pacific sworn
officers to the civil service classifications of Police Sergeant,
Police Detective, and Police Lieutenant, for the
advancement of the same groups to the paygrades of Police
Officer III, Sergeant II, Detective It Detective HI, and
Lieutenant II, and for the assignment of sworn officers in
the same groups to defined "coveted positions" would be
applied to women sworn officers in the same classifications
and paygrades;1
(2) The City will conduct and evaluate, within six months of
the consent decree's approval, a confidential survey of all
LAPD employees in an effort to determine the existence of
any impediments or barriers to equal employment
opportunities within the Department;2
(3) The City will annually prepare recruitment and outreach
plans for women and for racial minorities. The objective of
these annual plans is to strive in good faith for applicant
pools which reflect the Los Angeles County civilian labor
'Proposed Consent Decree, lodged November 5,19% , at III, ? 2.
^Proposed Consent Decree, lodged November 5,1996, at V, I I 1-2.
— 2—
1
‘2
3
4
0
6
7
8
0
10
11
12
13
14
15
16
17
IB
It)
20
21
22
23
24
25
26
27
2B
146
:-10-’96 TUE 12:42 ID: LA CITY ATTORNEY TEL NO:213 485-8898 B173 P08
force. In the case of women applicants, the parties recognize
that such a goal may nnt be attainable for several years, and
steady annual progress toward the ultimate goal is sought;^
(4) The City will establish, staff, and operate a Discrimination
Office under the authority of the City Board of Police
Commissioners to investigate allegations of unlawful
discrimination and harassment brought by Department
personnel.4
The proposed consent decree specifically provides that it does not require the selection
of any individual deemed unqualified under the City's advancement standards, and that none
of its provisions is to be interpreted as requiring or permitting the use of quota relief.5 In
applying the Hunter/La Ley consent decree goals to women, the proposed consent decree
grants no promotion, paygrade advancement or assignment preference to w o m en
candidates.6
Although a thorough legal review of the proposed consent decree is both necessary
and desirable, no requirement exists for a "fairness hearing" pursuant to Fed.R.Civ.P., Rule
^Proposed Consent Decree, lodged November 5,1996, at V, 1 1 6 -7 .
^Proposed Consent Decree, lodged November 5,1996, at VI, 1 1 .
^Proposed Consent Decree, lodged November 5,19% , at III, 1 1 0 .
6Under the Hunter/La Ley decree, "[nlothing in this Consent Decree and Agreement shall require the City to grant
a preference to any particular individual who is African American, Hispanic, or Aslan American.** Consent
Decree resolving John W. Hunter v. City of Los Angeles, No. CY-92-1897-AWT (Central Dtst., Cal.)' and Latin
American Lino Enforcement Association o. City of Los Angeles, No. CV'92T898-AWT (Central Dlst, Cal.), at 1 22.
Under the same decree, none of the goals set up In the decree are to be interpreted or applied as quotas. Id. at
1 3 7 . Nothing in the present consent decree alters the application of these or any other H unter/La Lay decree
provision. The proposed decree simply requires that all Hunter/La Ley decree provisions be applied to women to
the same extent as these provisions have been applied In the past to African American, Hispanic, and Aslan -
Pacific sworn officers. Proposed Consent Decree, lodged November 5 ,19% , at III, *1 2. Indeed, the Los Angeles
City Council has voluntarily applied the Hunter/La Ley decree goals to its women police officers virtually since
the inception of the decree, and the proposed decree in the presented litigation simply applies the court's
imprimatur to the existing voluntary program.
1
2
3
4
5
6
7
U
9
10
11
12
13
14
15
16
17
IB
10
20
21
22
23
24
25
26
27
28
14*
;-10-’96 TUE 12:43 ID:LA CITY ATTORNEY TEL NO:213 485-8898 4173 P09
13(c) before the proposal can be approved and implemented. A "fairness hearing" is
tecessary only if the proposed decree resolves all issues before the courts E.g., Doe by Doe v,
1erales, 782 F.Supp. 201,207 (S.D.N.Y. 1991).
Against this background, the League and Lt. Dyer on or about November 8, 1996 each
:iled motions to intervene as parties. Each seeks Intervention as of right under Fed.R.Civ.P.,
Rule 24(a)(2), as well as permissive intervention under Rule 24(b)(2).
The League is the recognized bargaining representative of all sworn police officers
employed by the City at the rank of Police Lieutenant and below. On or about November 13,
1996, the League filed a complaint In intervention, maintaining that the failure of the existing
parties to include the League in negotiations leading to the proposed consent decree has
deprived the League and its members of due process of law, League's Proposed Complaint in
Intervention, *114, and has impaired the League's "rights and ability to protect its members
interests." Id. at i 15. In its intervention motion, the League asserts that "the proposed consent
decree affects promotions, advancements, pay-grades and assignments to coveted positions of
officers represented by the League," and then reasons that the proposal "threatens to impair
or impede the hard won fruits of collective bargaining embodied in the Memorandum of
Understanding entered into between the City ... and the League on behalf of its more than
9/000 officers."
Lieutenant Dyer holds the paygrade of Lieutenant 11 within the Department. On or
about November 22, 1996, Lt. Dyer filed a complaint in intervention, claiming that the
proposed consent decree violates the equal protection clause of the Fourteenth Amendment,
because he is informed and believes that the proposal provides for "numerical 'goals/ in the
hiring, promotion, and assignment of present and future female and minority employees of
the ... Department," that "[t]he only way the City ... can comply with this numerical 'goal' is
to establish policies that discriminate against male Caucasian employees of the ...
Department," and that "(t]he [proposed] Consent Decree unfairly, unequally, and
unreasonably forecloses Lt. Dyer, and other similarly situated individuals, from being
1
2
3
4
S
6
7
8
8
10
tl
12
13
H
15
16
17
18
18
20
21
22
23
24
25
26
27
28
:-10-’96 TUE 12:43 ID:LA CITY ATTORNEY TEL NO:213 485-8898 8173 P10
assigned to 'coveted positions' and from receiving 'paygrade advancements/ in the ...
Department, by awarding these benefits to women and minorities on the basis of their gender
and/or their race." Lt. Dyer's Proposed Complaint In Intervention, ‘I f 11-12. Lt. Dyer also
asserts that the proposed consent decree violates the recently approved Proposition 209. Lt.
Dyer's Proposed Complaint in Intervention, M 14-15. He seeks a declaration that Proposition
209 is constitutional, and claims that the existing parties presently disagree with him on this
issue. Lt. Dyer's Proposed Complaint in Intervention, M 16-18.
The City views both of the intervention motions as untimely, and contends that the
presumptive intervenors have articulated no interest which will be impaired or impeded if the
court approves the proposed consent decree. Any peripheral interest either of the
presumptive intervenors may have in the future of this litigation is adequately protected by
participation as amici curiae. Much of the argument in opposition to intervention has been
stated well by the plaintiffs, and little of this ground needs to be turned further. The City will
attempt to underscore briefly certain points it contends are critical to its interests.
1
2
3
4
s
6
7
a
9
10
11
12
13
14
15
16
17
19
10
20
21
22
23
24
25
20
27
28
-10-’96 TUE 12:44 ID:LA CITY ATTORNEY TEL NO:213 485-8898 4173 Pll
II
STANDARDS FOR INTERVENTION AS OF RIGHT
UNDER FED.R.CIV.P., RULE 24(a)(2) AND FOR PERMISSIVE INTERVENTION
UNDER FED.R.CIV.P., RULE 24(b)(2)
T h e N inth C ircu it em p lo y s a fou r-p art test to determ in e the p rop riety of in terven tion as
of right under Fed.R.Civ.P., Rule 24(a)(2):
"An order granting intervention as of right is appropriate if (1) the
applicant's motion is timely; (2) the applicant has asserted an
interest relating to the property or transaction which is the subject
of the action; (3) the ap p lican t is so situated that without
intervention the disposition may, as a practical matter, impair or
impede its ability to protect that interest; and (4) the applicant's
interest is not adequately represented by the existing parties."
United States ex rel. McGough v. Covington Technologies Co., 967 F.2d 1391,1394 (9th Cir. June 24,
1992), quoting County of Orange v. Air California, 799 F.2d 535, 537 (9th Cir. 1986), cert, denied,
480 U.S. 946,107 S.Ct. 1605, 94 L. Ed. 2d 791 (1987). This test tracks the literal requirements of
Fed.R.Civ.P., Rule 24(a)(2). Generally, Rule 24(a)(2) is construed broadly in favor of proposed
intervenors, but the courts are ordinarily motivated to grant or to deny intervention by the
interplay of the practical issues presented by the application, and by the relative positions of
the parties and the state of the litigation at the time of the application. United States ex rel.
McGough v. Covington Technologies Co., supra, 967 F.2d at 1394, citing United States v.
Stringfellow, 783 F.2d 821, 826 (9th Cir. 1986), vacated on other grounds, 480 U.S. 370, 107 S. Ct.
1177,94 L. Ed. 2d 389 (1987).
t
2
3
4
5
E
7
8
S>
10
11
12
la
14
IS
IS
17
le
id
20
21
23
23
24
20
28
27
28
14 6
96 TUE 12:45 ID: LA CITY ATTORNEY TEL NO:213 485-8898 8173 P12
This court's denial of a party's motion to intervene as a matter of right is subject to de
novo review, except for the issue of timeliness, which is reviewed for abuse of discretion.
United States ex rel, McGough v, Covington Technologies Cosupra, 967 F.2d at 1393*94; County of
Orange v. Air California, supra, 799 F.2d at 537.
Permissive intervention is governed by Fed.R.Civ.P., Rule 24(b)(2):
"Upon timely application anyone may be permitted to intervene in
an action:... (2) when an applicant's claim or defense and the main
action have a question of law or fact in common...
Whether the intervention sought is permissive or by right, the burden is on a proposed
intervenor to demonstrate satisfaction of each and all of the elements for intervention set out
in Fed.R.Civ.Pv Rule 24. See, e.g., Petrol Stops Northwest v. Continental Oil Co., 647 F.2d 1005,
1010 n.5 (9th Cir. 1981). As will be addressed below, the City contests the presumptive
intervenors' showings of each of the required elements for Fed.R.Civ.P., Rule 24(a)(2)
intervention as of right and for Fed.R.Civ.P., Rule 24(b)(2) permissive intervention.
— 7.
I
2
3
4
5
S
7
8
6
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
£8
144
:-10-’96 TUE 12:46 ID:LA CITY ATTORNEY 8173 P13TEL NO:213 485-8898
III
TIMELINESS OF THE PROPOSED INTERVENTION
In determining whether a motion to intervene is timely, whether the proposed
intervention is permissive or by right, the Ninth Circuit evaluates three factors:
"(1) the stag e of the p ro ceed in g at which an applicant seeks to
intervene; (2) the prejudice to other parties; and (3) the reason for
and length of the delay."
United States ex rel, McGough v. Covington Technologies Co., supra, 967 F.2d at 1394, quoting
County o f Orange v. Air California, supra, 799 F.2d at 537, citing United States v, Oregon, 745 F.2d
550,552 (9th Cir. 1984).
Stage o f the Proceeding. Presumptive intervenors here are seeking to intervene
following extensive settlement discussions taking place over more than two years of litigation.
Attempted interventions on the eve of settlement are disfavored by the courts. Ragsdale v.
Turnock, 941 F.2d 501, 504 (7th Cir. 1991), cert, denied sub nom. Murphy v. Ragsdale, 502 U.S.
1035,112 S.Ct. 879,116 L.Ed.2d 784 (1992).
Both parties assert that the focus of the timeliness question should not be on when they
first learned of the pendency of the litigation, but should instead be on when they should
have been aware that their Interests, if any, would no longer be prolecled by the existing
parties. They assert several cases from other circuits where the facts demonstrated that a
proposed intervener should have been aware that its interests were not being adequately
represented only after the terms of a proposed settlement became known. As will appear in
Part IV below, however, the presumptive intervenors have not demonstrated an interest
sufficient to permit intervention at any time. They have clearly not asserted anything which
I
«*
3
4
5
0
i
7
0
9
10
11
12
13
14
15
1C
17
18
19
20
21
22
23
24
25
26
27
28
1 4 6
:-10-’96 TUE 12:46 ID:LA CITY ATTORNEY TEL NO:213 485-8898 4173 P14
would demonstrate that they have suffered, or are about to suffer, harm which would give
rise to a legitimate case or controversy under federal law. More importantly, however, even if
the interests being advanced by the prospective intervenors are or ever were genuine, then
each of the intervenors should have been aware at the outset of the litigation that its interests
were about to be threatened.
The League asserts that its right to bargain collectively concerning various personnel
issues are threatened by the proposed consent decree. As appears in Part IV below, the
League has no such right. Even if it does, however, the League ought to have been aware
more than two years ago, when the court granted the first of many stays for the express
6
purpose of allowing the parties to negotiate a settlement of the personnel issues the League
now cites, that the League's asserted interests to bargain collectively were being threatened.
Lt. Dyer asserts that his personal interests in merit-based promotions, advancements,
and assignments are in some way threatened by the terms of the proposed consent decree,
terms he first became aware of comparatively recently. As appears in Part IV below, Lt. Dyer's
interests are not in fact threatened by any provision of the proposed decree. Even if they are,
however, Lt. Dyer ought to have been aware more than two years ago, when the court
granted the first of several stays for the express purpose of allowing the parties to negotiate a
settlement, that the City could negotiate a resolution of the present litigation consistent with
the consent decree in Hunter/La Ley, litigation in which Lt. Dyer and others attempted
unsuccessfully to intervene.
Prejudice to Other Parties. The proposed intervention at this stage would
demonstrably adversely affect all of the present parties to the litigation, most especially the
City.
The present litigation posture is analogous to those cases in which the Ninth Circuit
has found serious prejudice from intervention which would seriously disrupt a delicate or
complex settlement. See United States v. State o f Oregon, 913 F.2d 576, 588-89 (9th Cir. 1990)
(delicately balanced, multi-party settlement involving fishing rights, where "the possibility of
■9-
1
a
s
4
s
e
7
6
»
10
n
12
13
14
13
18
17
18
10
BO
21
22
28
24
38
26
27
28
146
:-10-’96 TUE 12:47 ID:LA CITY ATTORNEY TEL NO:213 485-8898 8173 P15
this settlement unraveling is so prejudicial that to allow [intervention] at this late date would
be tantamount to disaster"), cert, denied,_____ U .S._____, 111 S.Ct. 2889, 115 L.Ed.2d 1054
(1991); County of Orange v. Air California, supra, 799 F.2d at 538 (multiple parties reached
complex arrangement regarding future development of commercial airline activity at John
Wayne Airport).
Basis for the Delay. The presumptive intervenors assert, without factual support, that
their dilatory intervention motion results from some activity of the parties concealing from
the presumptive intervenors the nature of the litigation and its proposed settlement. The
plaintiffs have dealt with this question appropriately In their opposition to the intervention
motion. The proposed intervenors are presumed to have been aware of this litigation from the
extensive media coverage it received when was filed, or from eight distinct stays of the
litigation, each setting forth the proposed settlement of the dispute as good cause for the stay,
or from the widespread notice the litigation received throughout the Los Angeles Police
Department. Nevertheless, neither proposed intervenor elected to move for intervention until
November 1996, a delay of more than two years from the earliest stay request. Given the state
of the litigation, and the prejudice to the parties which will ensue if intervention is granted,
this delay is unconscionable.
— 10—
1
[>
3
4
5
6
7
8
B
10
11
12
13
14
15
IB
17
18
IB
20
31
aa
as
24
25
3C
27
28
1 4b
:-10-’96 TUE 12:48 ID: LA CITY ATTORNEY TEL NO:213 485-8898 ttl?3 PIS
IV
ARTICULATION OF
THE PROPOSED INTERVENORS' INTERESTS
Intervention by right is especially inappropriate where the proposed interveners have
failed to both claim an interest in the subject matter and be so situated that the disposition of
the action may impede their ability to protect that interest. Similarly, the clearest reason why
permissive intervention cannot be allowed is the lack of congruence between the issues
dividing the present parties and those being advanced by the proposed intervenors.
The present litigation challenges as racially discriminatory the Department's
recruitment, hiring, promotion, paygrade advancement, "coveted assignment," and discipline
processes as they apply to both sworn and non-sworn Department employees. The City
denies these claims.
The League's Asserted Interests. The League's complaint in intervention does not claim
any question of law or fact in common with any of the legal or factual claims or defenses
being presented by the existing parties. Instead, the League asserts only that the proposed
consent decree affects promotions, advancements, and assignments to coveted positions of
some of the officers the League represents, and that the proposed consent decree might affect
the Memorandum of Understanding entered into between the City and the League. The
League insists that the failure of the existing parties to include the League in negotiations
leading to the proposed consent decree has somehow deprived the League and its members of
due process of law.
First, nothing in the proposed consent decree directs the City to recruit, hire, promote,
advance, assign, or discipline anyone. The proposed decree does not mandate that any
specific number or percentage of persons from any identifiable group be recruited, hired,
promoted, advanced assigned, or disciplined. The proposed decree expects only that the City
—11
1
2
3
4
8
e
7
8
0
10
11
12
13
14
13
18
17
18
19
20
21
22
23
34
2B
26
27
26
4h
:-10-’96 TUE 12:49 ID:LA CITY ATTORNEY TEL NO:213 485-8898 #173 P17
will set up annual recruitment plans intended to generate recruitment pools which reflect the
civilian workforce of Los Angeles County, but no penalties are provided for any failure to
achieve such recruitment pools. In the case of women sworn officers, the decree provides that
the requirements of the Hunter/La Ley consent decree—approved in 1992 by Judge Tashima—
be applied to certain promotion, paygrade advancement, and "coveted assignment"
applications by this group, but the goals being applied are merely to seek in good faith to
promote, advance, or assign women at approximately the rate at which they apply. No
requirement exists to in fact accomplish such levels of promotion, advancement, or
assignment, no unqualified person need be selected, and no preference is to be given to
women applicants seeking such promotions or advancements.7
Second, the League cannot show any basis in California law for its assertion that the
terms of the proposed consent decree, or the process by which the decree was negotiated, in
any way interfere with the League's collective bargaining rights. The most recent
memorandum of understanding between the City and the League makes clear that personnel
decisions, such as establishing qualifications for hiring, promotion, paygrade ad v an cem en t,
and transfers of assignment, are within the exclusive purview of management, subject to the
League's ability to consult with the City on the practical consequences of these decisions.
Declaration of Enrique A. Hernandez in Support of League's Motion to Intervene, Exhibit B9-
B10, Article 1.8. Under the theory the League presents in it motion, the League somehow has a
right to intervene in any litigation in which the City as a party attempts to exercise its
exclusive management rights under the memorandum of understanding.
The City has no interest in taking any action in this litigation which violates its
collective bargaining agreement with the League. Should the City attempt to take such action
in the future, the League would be within its rights to seek to intervene to prevent such
7Consent Decree resolving John W. Hunter v. City of Los Angeles, No. CV-92-1897-AWT (Central Dist., Ceil.) and
Latin American Law Enforcement Association o. City of Los Angeles, No. CV-92-1898-AVVT (Central Dist., Cal.), at
22,26-31,37. See note 6, supra.
— 12—
1
2
3
4
5
e
7
e
9
10
n
12
13
14
13
IS
17
18
19
20
21
22
23
24
23
28
27
28
146
:-10-’96 TUE 12:49 ID:LA CITY ATTORNEY TEL NO:213 485-8898 H173 P18
conduct. Until that time, the League can assert no Interest in this litigation founded on the
memorandum of understanding or the League's collective bargaining rights.
It. Dyer's Asserted Interests. Lt. Dyer's motion asserts a wholly distinct interest from
that advanced by the League. Nevertheless, Lt. Dyer also fails to claim any question of law or
fact in common with any of the legal or factual claims or defenses being presented by the
existing parties. Lt. Dyer claims that the proposed consent decree provides for numerical
goals for the hiring, promotion, and assignment of women and minority employees, that these
numerical goals discriminate against white male employees such as he, and that the decree
bars him and similarly situated persons from being assigned to "coveted positions" and from
receiving paygrade advancements because the proposed consent decree would award these
benefits to women and minorities on the basis of their gender or race. Lt. Dyer's Proposed
Complaint in Intervention, ‘H 11-12. Lt. Dyer also asserts that the proposed consent decree
violates the recently-approved Proposition 209, Lt. Dyer's Proposed Complaint in
Intervention, 14-15, he seeks a declaration that Proposition 209 is constitutional, and he
asks the court to advise the California Attorney General that the litigation implicates the
constitutionality of Proposition 209.
First, Lt. Dyer is a Lieutenant II, the highest paygrade of the Police Lieutenant civil
service classification, and he therefore has no interest in the recruitment, hiring, promotion, or
paygrade advancement provisions of the consent decree.
Second, Lt. Dyer's somewhat bizarre views of the requirements of the proposed
consent decree are not supported in the language of that document. As set out in greater
detail above, the decree does not provide numerical goals for the recruitment, hiring,
promotion, paygrade advancement, or assignment to "coveted positions" of anyone. It is true
that under the proposed decree the City will strive in good faith to promote, advance, and
assign women at approximately the same rate at which they apply for these benefits, but the
City would not be able to rely on the decree as a defense if it were to select an unqualified
- 13—
1
2
3
4
6
8
7
6
9
10
11
12
13
14
13
18
17
18
19
20
21
22
23
24
28
26
27
28
146
:-10-’96 TUE 12:50 ID:LA CITY ATTORNEY TEL NO:213 485-8898 8173 P19
person for any position, or if it were to grant any form of preference to a woman applicant on
the basis of her gender.
Third, because the proposed consent decree contains no preferences by race or gender,
and indeed bars such preferences, the proposed decree does not violate the recently-approved
Proposition 209.
Fourth, none of the existing parties has at this point in the litigation contested the
constitutionality of Proposition 209. Lt. Dyer's effort to introduce the complex, and presently
irrelevant, issues attendant to such a challenge into this litigation is not helpful, and hinders
the parties from achieving a resolution of their already difficult dispute. Lt. Dyer's odd
request to advise the California Attorney General that this litigation challenges the
constitutionality of Proposition 209, when no party has in fact done so, seems an abuse of
process.
Lt. Dyer has claimed, in essence, that various provisions of the proposed consent
decree threaten his ability to be selected on a merit basis for those "coveted assignments" for
which he might apply- This claim is not supported in the plain language of the proposed
decree. It is possible, however, that the proposed consent decree will be erroneously or
unlawfully implemented in a manner which in fact harms Lt. Dyer. If that should occur, Lt.
Dyer may have a basis for attacking the specific conduct which harms him, but he will not,
even at that time, have established a basis for intervening in the present litigation to attack the
consent decree itself.
For the above reasons, the City maintains that neither the League nor Lt. Dyer has both
claimed an interest in the subject matter of the action and is so situated that the disposition of
the action impairs the movant's ability to protect the claimed interest. Similarly, neither has
articulated a claim or defense in common with a claim or defense in the existing action. For
these reasons, neither intervention of right nor permissive intervention is proper at this time.
14—
I
w
3
4
5
6
7
8
0
10
11
12
13
14
15
16
17
18
10
20
21
22
23
24
28
26
27
28
146
DEC-10-’96 TUE 12:51 ID: LA CITY ATTORNEY TEL NO:213 485-8898 8173 P20
V
ADEQUACY OF THE REPRESENTATION
OF THE PROPOSED INTERVENORS' INTERESTS
BY THE EXISTING PARTIES
The City has appropriately and adequately represented any legitimate interests being
advanced by the proposed intervenors. This is an additional ground for denial of Intervention
of right.
The City is a municipal corporation. Various constituent entities of the City have an
interest in this litigation, and have considered the interests and views of persons expressing a
spectrum of opinions on the issues being disputed in this litigation.
The City C ou n cil in concert with the City Attorney controls the City's litigation.
Popularly elected through fifteen districts, the Council in concert with the Mayor also controls
the budget of the City's constituent departments, including the LAPD. The Council approves
all memoranda of understanding between the City and recogn ized representatives of labor,
such as the League.
The Mayor in concert with the City Council controls the budget of the City's
constituent departments. The Mayor also appoints and submits to the Council for approval
the members of the citizen panels, such as the Board of Police Commissioners and Board of
Civil Service Commissioners, who act as the policy-making directors of many of the
constituent departments.
The Board of Police Commissioners, the Chief of Police, the Board of Civil Service
Commissioners, and the General Manager of the Personnel Department also contribute to the
recruitment, hiring, promotion, paygrade advancement, assignments, and discipline of
employee of the Police Department.
— 15—
I
2
3
4
5
e
7
8
8
10
11
12
13
14
15
ltf
17
18
19
20
21
22
23
24
25
25
27
28
14b
DEC-10-’96 TUE 12:52 ID:LA CITY ATTORNEY TEL NO:213 485-8898 8173 P21
All of these persons and bodies have considered the impact of the proposed consent
decree on all of the employees potentially affected by its terms. They have also considered the
effect of the litigation itself on the employees, on the concerned Departments, on the fiscal and
administrative operations o f City government, and on the people of the City. Their collective
judgment was, and is, that the proposed decree fairly resolves a portion of the litigation and,
in concert with other consent decrees and structures, provides an equitable, legally sound
framework for entry-level Police Department recruitment and hiring, and for intermediate -
level promotions, paygrade advancements, and position assignments for a significant time to
come.
Most important, the City has never conceded the factual validity of the plaintiffs' case,
and has maintained throughout this litigation that its recruitment, examination and discipline
processes are legally defensible. Plaintiffs maintain to the contrary. Stated simply, however,
the merit of the plaintiffs' claims has not been litigated, and it is the purpose of the proposed
consent decree to avoid a portion of the burden, expense, and risk of litigation for all parties.
The parties are entitled to do this through the formulation of a legally sound consent decree.
In terms of affirmative action, the parties seek to do no more in this proposed consent decree
than to strive over time to promote and advance applicants in roughly the same proportions
as that in which they apply, to discuss periodically the reasons why any of these goals are not
being achieved, and to recommend and to implement lawful policies which will make
achievement of the goals more likely in the future. These provisions are in fact consistent with
the affirmative action plan under which the City has attempted to operate for many years.
None of these provisions conflict with established federal or state law.
For all of the above reasons, the City maintains that any legitimate interests the City's
employees, such as Lt. Dyer, and the labor representatives of those employees, such as the
League, may have in the proposed consent decree or in the remainder of the present litigation
are being adequately represented by the defendant City. To the extent either Lt. Dyer or the
1
2
3
4
5
6
7
8
9
10
11
12
13
14
16
16
IT
10
10
20
21
22
23
34
29
26
27
28
146
-10— ’96 TUE 12:53 ID:LA CITY ATTORNEY TEL NO:213 485-8898 8173 P22
League may believe otherwise, the City encourages them to participate as amici curiae to
idvise the parties and the court of additional issues.
VI
CONCLUSION
The City opposes both motions to intervene, and maintains that neither proposed
intervenor has shown a basis for either mandatory or permissive intervention. The City has
devoted extensive time and taxpayer funds to the defense and potential settlement of this
litigation. Third party intervention at this stage—especially intervention whose avowed
purpose is to undo more than two years of effort by hundreds of individuals to reach this
point—would be a burden the parties should not in good conscience be required to assume.
The City's clear purposes in this litigation, and in all of its dealings with its employees, is the
creation of a workforce which reflects the community it serves, and which fairly recognizes
the merits of its applicants. The partial resolution of this litigation will further these goals and
should be allowed to proceed.
-17—
I
2
3
4
5
6
7
8
8
10
11
12
ia
14
1G
16
17
16
19
20
21
22
23
24
25
20
27
28
6
DEC-10-’96 TUE 12:53 ID:LA CITY ATTORNEY TEL NO:213 485-8898 H173 P23
The City has no objection to consulting with the proposed intervenors concerning the
progress of the litigation, and has no objection to the proposed InterveDors, through amicus
curiae papers or otherwise, advising the court of their views on any aspect of the litigation.
Dated: December 9,1996 Respectfully submitted,
JAMES K, HAHN, City Attorney
FREDERICK N. MERKIN,
Senior Assistant City Attorney
ROBERT CRAMER,
Assistant City Attorney
Attorneys for Defendant
CITY OF LOS ANGELES
— 18—
DEC— 10— ’96 TUE 12:54 ID:LA C!^Y ATTORNEY TEL N0:213 485-8898 4173 P24
PROOF OF SERVICE BY MAIL
I, the undersigned, Bay: I am over the age of IS years
and not a party to the within action or proceeding. My business
address is 200 North Main Street, 1800 City Hall East, Los Angeles,
California, 90012-4131.
On December 10. 1996. I served the within
RESPONSE OF DEFENDANT CITY OF LOS ANGELES TO
MOTIONS TO INTERVENE FILED BY LOS ANGELES
POLICE PROTECTIVE LEAGUE AND RICHARD J. DYER
on the person(s) indicated below, by placing a true copy thereof
enclosed in a sealed envelope with postage thereon fully prepaid in
the United States mail at Loe Angeles, California, addressed as
followsl
(SEE ATTACHMENT)
[X] - FEDERAL--I declare that I am employed in the office
of a member of the bar of this court at whose direction the service
was m a d e .
I declare under penalty of perjury that the foregoing is
true and correct.
Executed on December 10 1996. L o b Angeles, California.