Tuesday, April 23, 2002
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LAPD Union Has Right to Intervene in Consent Decree Proceedings to Protect Members, Ninth Circuit Rules
Panel Orders Judge Feese to Reconsider ACLU’s Request to Join
By KENNETH OFGANG, Staff Writer/Appellate Courts
The Los Angeles Police Protective League has the right to intervene in legal proceedings concerning reform of the city’s police department, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
Overruling objections by both the city and the U.S. Department of Justice, the panel said the union for rank-and-file officers of the Los Angeles Police Department is entitled to intervene as a matter of right to protect the bargained-for rights of its members.
U.S. District Judge Gary Feess of the Central District of California approved a consent decree in November 2000 after the Justice Department concluded a four-year probe of what it claimed was a “pattern and practice” of constitutional violations by the department. The decree mandates changes in management, training, and record-keeping procedures and requires the appointment of an independent monitor.
Before approving the decree, Feess denied motions for intervention brought by the LAPPL and by the ACLU Foundation of Southern California.
“To the extent [the consent decree] contains or might contain provisions that contradict terms of the officers’ [Memorandum of Understanding], the Police League has an interest,” Judge Sidney Thomas wrote for the Ninth Circuit. “Further, to the extent that it is disputed whether or not the consent decree conflicts with the MOU, the Police League has the right to present its views on the subject to the district court and have them fully considered in conjunction with the district court’s decision to approve the consent decree.”
The court also directed Feess to reconsider his denial of the motion filed by the ACLU on behalf of itself and other groups, as well as a number of individuals claiming to be past or potential victims of rights violations. The panel agreed that the ACLU and its clients were not entitled to intervene as of right, but said the district judge used the wrong standard in denying permissive intervention.
Neither Patricia Glaser, who argued the appeal for the city, nor Gregory Petersen, who represents the LAPPL, returned MetNews phone calls. But Mayor James K. Hahn said he would urge the city to seek further review, unless he can persuade the union “ to drop this ill-conceived lawsuit and get on with finishing the job of reform.”
Hahn, who negotiated the decree as city attorney, expressed concern that the ruling will allow the union—which endorsed his election—“to be an obstacle for police reform.”
ACLU attorney Catherine Lhamon said the group was “quite pleased” with the appellate ruling. “I hope and expect that the [district] judge is going to let us in,” she said.
Lhamon declined to predict how soon Feess will rule, but said her clients would like to get in quickly in view of reports by the independent monitor suggesting that there have been inordinate delays in the implementation of the decree.
Thomas rejected Feess’ conclusion that the LAPPL could protect its members’ rights by serving as amicus. Amicus status, the appellate judge said, would be insufficient because it would limit the league to commenting on issues raised by others, as opposed to being able to bring matters to court itself, and would not give it standing to appeal.
The jurist also swept aside the contention that intervention is unnecessary because the decree itself says that the officers retain all labor rights guaranteed by the MOU or by state law.
Thomas noted that the decree alters the procedures by which the MOU is enforced, by requiring that a federal, rather than a state, court resolve any disagreement over whether a provision of the consent decree is subject to collective bargaining. The decree also contains a provision which could allow the city to seek to seek judicial enforcement over the objections of the LAPPL if it feels the “the bargaining process required by law is too slow,” Thomas said.
With respect to the ACLU and its clients, Thomas said they were not entitled to intervene as a matter of right because they failed to prove that the federal government will not protect their interests. “Unlike the Police League, both the individual and organizational community members are the exact constituents the United States is seeking to protect in this action,” the judge wrote.
Thomas acknowledged the moving parties’ argument that the willingness of the federal government to enforce the decree is in doubt because of President Bush’s opposition—expressed during the 2000 campaign—about the wisdom of using the federal courts for oversight of local police departments.
The appellate jurist distinguished a 1983 case allowing environmentalists to intervene to protect what they asserted was the public interest after James G. Watt, who had headed an organization representing the other side in the litigation, was appointed secretary of the interior.
There was no showing here that the Bush administration had acted contrary to the public interest in connection with the consent decree, Thomas said.
“Campaign rhetoric and perceived philosophic differences without more specific objective evidence in the record are insufficient by themselves to demonstrate adversity of interest,” the judge wrote. “Thus, the mere change of administration is insufficient to alter the conclusion that the interests of the Community Interveners are adequately protected by the United States.”
The district judge went too far, however, in concluding that permissive intervention could never be used to enforce a consent decree entered into by the government, the judge said. He agreed with the ACLU that past cases denying intervention by third parties to enforce consent decrees do not apply where the motion to intervene was filed in the underlying litigation before the decree was entered.
Thomas went on to say that the potential for delay in the process is an inadequate reason for denying intervention.
He praised Feess, saying he had shown himself “perfectly capable of managing this litigation in a fair, but expedient fashion.” But he added that “the idea of ‘streamlining’ the litigation, as both the City defendants and the United States describe it, should not be accomplished at the risk of marginalizing those—such as the Police League and the Community Interveners—who have some of the strongest interests in the outcome.”
Judge Johnnie Rawlinson and Senior Judge James Browning concurred in the outcome.
The case is United States v. City of Los Angeles, 01-55182.
Copyright 2002, Metropolitan News Company