Tipton-Whittingham v. City of Los Angeles Plaintiff's Opposition to Motion for Intervention

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CONSTANCE L. RICE (Bar #153372) 
BILL LANN LEE (Bar #108452) 
DARCI BURRELL (Bar # 180452) 
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

TERRY TIPTON-WHITTINGHAM, et al, CASE NO. CV 94-3240-WDK

Plaintiffs,

vs.

CITY OF LOS ANGELES, et al.,

Defendants.

PLAINTIFFS' OPPOSITION TO 
LIEUTENANT RICHARD DYER'S 
MOTION FOR INTERVENTION

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

Hon. William D. Keller

III

III

III

III

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TABLE OF CONTENTS

I. Proposed Consent D ecree .................................................................................................. 1

II. Statement of the Case .........................................................................................................  1

A. Hunter/LaLey and Prior Proceedings........................................................................  1

B. Dyer’s Proposed Intervention.................................................................................... 1

III. Reasons to Deny Intervention...............................................................................................  3

A. Intervention as of Right Is Inappropriate...............................................................  4

1. The Intervention Is Untimely........................................................................  4

a. Stage of the Proceeding....................................................................  5

b. Prejudice to the Existing Parties........................... ........................... 5

c. The Reason for and Length of the Delay.......................................  6

2. Dyer Has No Protectable Interest in the Litigation..................................... 6

3. No Legitimate Interest of Dyer Will Be Impaired......................................  6

4. Dyer’s Interest is Adequately Represented Bythe Parties and His Amicus
Participation .................................................................................................. 7

B. Permissive Intervention Is Inappropriate................................................................... 8

C. Dyer May Participate as Amicus Curiae^...............................................................  8

IV. Conclusion...............................................................................................................................  9

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Plaintiffs Terry Tipton-Whittingham, et al. oppose the motion of LAPD Lieutenant Richard 

J. Dyer to intervene in order to challenge the proposed Consent Decree. Plaintiffs do not oppose 

the request of Lt. Dyer to participate as amicus curiae, as he has in the Hunter & LaLey v. City o f 

Los Angeles litigation.

I .

PROPOSED CONSENT DECREE

Plaintiffs incorporate by reference the description of the proposed consent decree set forth 

in their contemporaneously-filed Plaintiffs’ Opposition to Police Protective League’s Motion for 

Intervention 3 (Plaintiffs’ League Opp.). In brief, the proposal’s two substantive provisions consist 

of (a) incorporating the procedures and remedies concerning promotions, pay grade advancements 

and coveted position assignments to sergeant, detective and lieutenant positions in the 1992 Hunter 

& LaLey v. City o f Los Angeles Consent Decree and applying them to women officers and (b) 

requiring the City and the LAPD to prepare an annual recruitment and outreach plan for women and 

minority applicants.

II.

STATEMENT OF THE CASE

A. Hunter/LaLey and Prior Proceedings.

Plaintiffs incorporate by reference the statement contained in Plaintiffs’ League Opp. 4-6.

B. Dyer’s Proposed Intervention.

On November 18, 1996, Dyer submitted an ex parte application and memorandum in the 

instant case for intervention as of right pursuant to Fed. R. Civ. P. Rule 24 (a) (2) and for permissive 

intervention pursuant to Rule 24 (b). At the status conference of November 19, 1996, the Court set 

a schedule for briefing and hearing the intervention and requested the views of the parties and 

potential intervenors on participation as amicus curiae. Dyer submitted a complaint in intervention 

and a supplemental memorandum in support of both intervention and amicus status on November 

22d.

Lt. Dyer identifies himself as a white LAPD officer who has reached the rank of Lieutenant 

II. He seeks to intervene as an individual only. Dyer Complaint in Intervention. Dyer states that

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his “interest is much more than merely general” because “his interests in pay grade advancements 

and coveted job assignments would be impermissibly impaired by the proposed consent decree” and 

that he “currently has a pending race discrimination case against the City.” Dyer Suppl. 

Memorandum 4.

Because of his rank — Lieutenant II -  Dyer is ineligible to fill any of the entry-level LAPD 

positions for which the proposed recruitment and outreach plans provision is designed. Nor is Lt. 

Dyer eligible for any of the positions for which the proposed promotional or pay grade advancement 

provisions apply because he has already achieved the top promotional rank and the top pay grade 

advancement covered by the Decree. See Proposed Consent Decree, § IV. 1. & 2. (definitions of 

“promotion” and “pay grade advancement”). With respect to short-term, coveted position 

assignments, Dyer’s record shows that he has served in coveted position assignments continuously 

for the last decade as an officer-in-charge. Dyer Memorandum, Exhibit I (data sheet); Proposed 

Consent Decree § IV. 3 (definition of “coveted position”).

Dyer states that he is prosecuting a Title VII discrimination administrative charge based on 

race against the LAPD for the denial on January 22, 1996 of “a promotion from Lieutenant II to 

Lieutenant I+II.” Dyer Memorandum, Exhibit 2 ( administrative charge). The charge concerns 

Dyer’s claim that an African-American officer received a watch commander position in the Air 

Support Division for which he had applied. Dyer Memorandum, Exhibit 2 (employee report). 

Positions in the unit require a pilot’s license. Id. Dyer’s administrative charge complains both of 

“reverse discrimination” because “the selection was based on race due to a conspicuous absence of 

minority supervisors among ASD personnel” and of “favoritism” because the selectee had earlier 

served as a sergeant in the Division as had others selected to the position. Dyer Memorandum, 

Exhibit 2 (employee report). Dyer does not allege discrimination on the basis of sex. Id. He fails 

to allege that any LAPD women lieutenants have pilot’s licenses that would qualify them for the 

ASD position.

The promotional denial that Dyer complains of occurred a full 11 months before the Consent 

Decree was even proposed. Whatever the merits of his charge, the proposal is not the cause. The 

position that Dyer was denied, in any event, is not covered by the proposed Decree, Lieutenant II

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being the top job to which it applies. The proposed Decree, moreover, provides only promotional, 

pay grade advancement and coveted position relief for women officers. There is no promotional, 

pay grade or coveted position relief provided in the proposed Decree for minority officers.

To the extent, Dyer has a colorable claim to an employment interest being adversely 

affected by any Consent Decree, it would appear to be the separate Hunter/LaLey Decree which does 

contain remedial provisions for minority officers to sergeant, detective and lieutenant positions. The 

record in that case suggests that Dyer’s confusion of the two Decrees is not inadvertent since he is 

well acquainted with the Hunter/LaLey litigation.

Lt. Dyer was one of three white officers who initially participated in the Hunter/LaLey 

litigation as amicus curiae and then sought to intervene in the proceedings. Dyer raised reverse 

discrimination federal statutory and constitutional challenges to that Decree similar to those he 

attempts to raise here. For the convenience of the Court, Dyer’s amicus brief and plaintiffs’ response 

on these issues are appended as Lee Declaration Exhibit E. The Court, through the Hon. A. Wallace 

Tashima, denied intervention as of right on November 18, 1992. The Court ruled that none of the 

prerequisites for intervention as of right had been satisfied. Lee Declaration Exhibit 13.

In his papers in the instant litigation, Dyer states his intent to raise the unconstitutionality 

of the proposed Consent Decree under state constitutional law, notably the recently-enacted 

Proposition 209, as well as the federal statutory and constitutional law he earlier raised. Plainly, a 

state enactment cannot abrogate federal rights. Moreover, Dyer’s prediction that this case will 

involve any broad constitutional challenge to Proposition 209 is wholly unsupported. As Dyer 

himself notes such broad challenges to Proposition 209 are already pending and moving toward 

resolution in the Northern District in Coalition for Economic Equity v. Wilson, N.D. Cal. No. 

C964024 THE. Dyer Memorandum 6 n. 2; Dyer Suppl. Memorandum 2 n.l.

III.

REASONS TO DENY INTERVENTION

Lt Dyer’s motions to intervene pursuant to Rule 24 (a) (2) or Rule 24 (b) should be denied 

for failure to satisfy the either of those two sets of prerequisites for intervention. In light of his 

“general interest in the litigation,” Dyer Suppl. Memorandum 4, the Court may permit his

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participation as amicus curiae, consistent with the role Judge Tashima recognized for Dyer in the 

parallel Hunter/LaLey litigation.

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 IS INAPPROPRIATE.

1. The Intervention Is Untimely.

As discussed in Plaintiffs’ League Opp. 7-11, 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 ^ 7:182 (1996), and that eleventh hour 

interventions, particularly on the brink of settlement, are disfavored. 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, 112 S. Ct. 879, 116 L. Ed. 2d 784 (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 

against 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)).

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. 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").

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 intervenoTs interest was first

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put at risk in order to determine timeliness. 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 interest[s] 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 ex rel. McGough v. 

Covington Technologies, 967 F.2d 1391, 1394 (9th Cir. 1992); United States v. Oregon, 745 F.2d 

550, 552 (9th Cir. 1984).

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." 

Officers for Justice v. Civil Service Com'n, 934 F.2d 1092, 1095 (9th Cir. 1991); Rasdale, 941 F.2d 

at 504; Alaniz v. Tillie Lewis Foods, 572 F.2d 657, 658-59 (9th Cir.), cert, denied sub nom Beaver 

v. Alaniz, 439 U.S. 837, 58 L.Ed.2d 134, 99 S.Ct. 123 (1978).

Lt. Dyer claims that the delay in his intervention is excusable because his interest in the 

litigation only arose when the terms of the proposed Consent Decree became known. Dyer 

Memorandum 9-10. In fact, the interest that he asserts -  a threat to his “specific” employment 

interests — was put at risk from an objective point of view two-and-a-half years ago when this class 

action challenge to systemic hiring, advancement and harassment was filed or, at the latest, two years 

ago when the Court entered stipulated public orders staying the proceedings in order to facilitate 

negotiation of a possible settlement. Certainly, in light of the adjudication of the untimeliness of his 

attempted intervention in the Hunter/LaLey litigation, Dyer of all people should have sought 

intervention earlier.

b. Prejudice to the Existing 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, 

745 F.2d at 552 (citation omitted). Where, as here, plaintiffs and defendants have labored for two

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years to produce a settlement, there is substantial prejudice to the existing parties if intervention is 

permitted so that Dyer can renegotiate the settlement. 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”).

Dyer does not dispute that the parties will be prejudiced by his intervention. In similar 

circumstances in the Hunter/LaLey litigation, Judge Tashima ruled that intervention “will unduly 

delay or prejudice the adjudication of the rights of the parties.” Lee Declaration Exhibit B..

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. Dyer, however, offers no reason for its delay other than 

the claim that the negotiations were kept secret. Dyer Memorandum 10. That claim, however, is 

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

2. Dyer Has No Protectable Interest in the Litigation.

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). Dyer purports to assert interests based on his specific employment 

status as a LAPD Lieutenant II. Upon examination, the interests Dyer specifically assert are 

unaffected by the proposed Consent. They are perforce not protectable in this litigation. Nor are 

they significant.

3. No Legitimate Interest of Dyer Will Be Impaired.

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. 

As discussed above, Dyer’s employment interests are unaffected by the proposed Consent Decree 

even if fully implemented. He is beyond the promotional and pay grade advancement positions 

covered by the proposed Decree. As to coveted position assignments, he has not alleged nor even 

suggested that the selection process for the position he seeks would be affected at all by provisions 

concerning women officers, the only group benefitted by coveted position relief in the proposed 

Consent Decree.

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Furthermore, the proposed Decree of course has never been implemented. In similar pre­

implementation circumstances in the Hunter/LaLey case, Judge Tashima specifically ruled in denying 

Dyer’s intervention as of right that “no adverse impact will result to would-be intervenor[’]s[ ] 

interest.” Lee Declaration Exhibit B. Dyer, moreover, overlooks that any implementation of the 

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

4. Dyer’s Interest is Adequately Represented By 
the Parties and His Amicus Participation.

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). Dyer appears to complain about the Hunter/LaLey 

Decree. Judge Tashima has specifically ruled in that case that Dyer’s “interest has been adequately 

represented by [his] own participation as amicus curiae or future intervention or suit if the 

implementation of the [Hunter/LaLey) Decree results in a live controversy.” Lee Declaration Exhibit 

B. Judge Tashima further ruled that the terms of that Decree crafted by the parties complied with 

federal statutory and constitutional law, demonstrating that the parties had adequately represented 

Dyer’s interests in Hunter/LaLey. The Court further noted that it had actually adopted one of the 

changes to the Decree that Dyer and the other white officers had proposed, confirming the efficacy 

of amicus participation to protect Dyer’s interests. Id. To the extent Dyer’s interests are affected 

at all by the proposed Consent Decree, his interests likewise can be protected by amicus briefing.

Plaintiffs have not addressed the merits of Dyer’s objections in light of the Court’s desire for 

full briefing of the legal ramifications of the proposed Consent Decree before considering whether 

to approve the proposed Consent Decree. We note that the substantive provisions of the proposal 

provide only that the already-approved Hunter/LaLey Decree apply to female LAPD officers with 

respect to promotions, pay grade advancement and coveted position assignments for covered 

positions. With respect to recruitment, hiring and training, the proposed Consent Decree imposes 

no goals or other relief, requiring only that annual plans be prepared in which any goals would be 

implemented only if “appropriate and necessary for the upcoming year.” Proposed Consent Decree 

V. 6.

Dyer’s federal statutory and constitutional claims were raised by Dyer in similar

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circumstances and rejected upon full consideration by Judge Tashima when he approved the 

Hunter/LaLey Decree. See Lee Declaration Exhibit E. With respect to the Proposition 209 claims, 

the ongoing separate litigation suggests that these claims are premature at best.

B. Permissive Intervention Is Inappropriate.

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

application, that proposed intervcnor’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).

Dyer’s unexplained delay in seeking intervention renders his application untimely. That 

Dyer’s real dispute is with the Hunter/LaLey Consent Decree means that his intervention raises no 

common questions of law or fact. 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. Dyer May Participate as Amicus Curiae.

The general interest of Lt. Dyer can best be accommodated, as Judge Tashima earlier held, 

by his continued briefing as an amicus curiae.

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IV.

CONCLUSION

For the above stated reasons, Lt. Dyer’s motions to intervene should be denied. Dyer may 

participate in the litigation through the filing of amicus curiae briefs.

Date: December 6, 1996
/

Respectfully submitted, ' / ,  /
/  \ / /
• /  , v  X

H \ ' v - ' .. / '

Bill Lann Lee 
Attorney for Plaintiffs

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PROOF OF SERVICE
STATE OF CALIFORNIA, COUNTY OF LOS ANGELES

I am employed in the county of Los Angeles, State of California. I am over the age of 18 and 
not a party to the within action; my business address is: 315 West Ninth Street, Suite 208, Los 
Angeles, California 90015.

On December 6, 1996, I served the foregoing document described as PLAINTIFFS' 
OPPOSITION TO LIEUTENANT RICHARD DYER'S MOTION FOR INTERVENTION, on all 

interested parties in this action by placing true copies thereof enclosed in sealed envelopes addressed 
as follows:

JAMES K. HAHN
L.A. CITY ATTORNEY'S OFFICE
1800 City Hall East
200 N. Main
Los Angeles, CA 90012

PATRICK J. MANSHARDT 
MARK V. SANTA ROMANA 
MANSHARDT & SANTA ROMANA 
630 S. Masselin Avenue, Suite 437 
Los Angeles, CA 90036

INDIVIDUAL RIGHTS FOUNDATION 
9911 W. Pico Boulevard 
Suite 1290
Los Angeles, CA 90035

RONALD S. WHITAKER, ESQ 
MARK KANE, ESQ
ROBINSON, D1 LANDO & WHITAKER 
800 Wilshire Boulevard 
Suite 1300
Los Angeles, CA 90017-2687

MANUEL S. KLAUSNER 
Twenty-Ninth Floor 
555 S. Flower Street 
Los Angeles, CA 90071 -2496

I am "readily familiar" with the firm's practice of collection and processing correspondence 
for mailing. Under that practice it would be deposited with U.S. postal service on that same day with 

postage thereon fully prepaid at Los Angeles, California in the ordinary course of business. I am 
aware that on motion of the party served, service is presumed invalid if postal cancellation date or 
postage meter date is more than one day after date of deposit for mailing in the affidavit.
Executed on December 6, 1996, at Los Angeles, California.

I declare that I am employed in the office of a member of the bar of this court at whose 
direction the service was made.

SHEDRALYN PULLUM