Spickardv.Civil Ser. Comm

Colorado Court of Appeals. Division IApr 2, 1974
33 Colo. App. 426 (Colo. App. 1974)
33 Colo. App. 426523 P.2d 149

No. 73-138

Decided April 2, 1974 Rehearing denied April 30, 1974. Certiorari denied July 1, 1974.

Following reversal and remand of judgment in action challenging police department promotional procedures, certain members of police department moved to intervene. From denial of their motion, applicants for intervention appealed.

Affirmed

1. PRACTICE AND PROCEDUREMotion for Intervention — Untimely — After — Judgment Reversed — Cause Remanded — Without — New Trial. As a general rule, a motion for intervention is considered untimely when it is filed after a judgment has been reversed on appeal and the cause remanded with directions which enable the prevailing party to obtain a judgment without a new trial.

2. Motions for Intervention — After Judgment — Disfavored — Prejudice Rights — Existing Parties — Interfere — Orderly Processes — Moving Party — Heavy Burden. Motions for intervention filed after judgment or after a decision is rendered on appeal are viewed with disfavor because it is assumed that intervention at this point will either prejudice the rights of the existing parties to the litigation, or substantially interfere with the orderly processes of the court; thus, the moving party has a heavy burden to show facts or circumstances which justify intervention at that late date.

3. Intervention Sought — Include Applicants — Within Mandate — Judgment as Reversed — Would Delay — Prejudice Rights — Properly — Denied. Where, after judgment was reversed and cause remanded, intervention was sought as a matter of right for the limited purpose of including applicants for intervention within the mandate of the judgment as reversed, the timing and manner in which the applicants for intervention seek to enter the litigation raise questions with respect to whether issues previously determined as to the original parties would need to be determined as to them; thus, disposition of these issues would delay the proceedings of the court on remand and thereby prejudice the rights of the original parties, and hence their application for intervention was properly denied.

4. Intervention Sought — Include Applicants — Within Mandate — Judgment as Reversed — Failed — Exhaust Administrative Remedies — Basis — Denial of Intervention. Where, after judgment had been reversed and cause remanded, intervention was sought as a matter of right for the limited purpose of including applicants for intervention within the mandate of the judgment as reversed, one basis for denying intervention arises from the fact that the applicants for intervention had failed to exhaust their administrative remedies; thus, the trial court properly denied the motion to intervene.

Appeal for the District Court of the City and County of Denver, Honorable Edward J. Byrne, Judge.

No appearance by plaintiffs-appellees.

Max P. Zall, City Attorney, Spencer Dennison, Assistant City Attorney, Robert D. Dowler, Assistant City Attorney, for defendants-appellees.

Zarlengo Kirshbaum, Howard M. Kirshbaum, for applicants for intervention-appellants.


Appellants seek reversal of the trial court's order denying their motion to intervene. The original complaint, filed on July 17, 1970, alleged that the list of policemen eligible for promotion to the rank of sergeant published by the Denver Civil Service Commission and the Denver Police Department in November of 1969 was invalid because certain improper procedures were used in raking the applicants for promotion. After trial, the court entered judgment for defendants on December 23, 1970. Subsequently, plaintiffs perfected their appeal to this court and we reversed the judgment of the trial court on November 14, 1972, and remanded the case for further proceedings. Spickard v. Civil Service Comm., 31 Colo. App. 450, 505 P.2d 32.

On January 30, 1973, appellants filed a motion in the district court to intervene as a matter of right for the limited purpose of including themselves within the mandate of our decision in Spickard, supra, and the order of the district court on remand. Defendants filed a motion in opposition to appellants' motion to intervene wherein they asserted, inter alia, the defense of laches and failure to exhaust administrative remedies. After a hearing, the motion to intervene was denied on the ground that it was not timely filed as required by C.R.C.P. 24(a). We affirm.

[1,2] As a general rule, a motion for intervention is considered untimely when it is filed after a judgment has been reversed on appeal and the cause remanded with directions which enable the prevailing party to obtain a judgment without a new trial. Rockwell v. Coffey, 20 Colo. 397, 38 P. 376; Annot., 37 A.L.R. 2d 1306. Motions for intervention filed after judgment or after a decision is rendered on appeal are viewed with disfavor and the moving party has a heavy burden to show facts or circumstances which justify intervention at that late date. 7A C. Wright A. Miller, Federal Practice Procedure § 1916. Courts view motions for intervention at these stages of the proceedings with a jaundiced eye because it is assumed that intervention at this point will either (1) prejudice the rights of the existing parties to the litigation, or (2) substantially interfere with the orderly processes of the court. McDonald v. E.J. Lavino Co., 430 F.2d 1065 (5th Cir.).

Appellants concede the validity of the general rule against intervention at this stage of the proceedings. However, they assert that intervention should be allowed in the instant case because they do not seek to relitigate any of the issues decided previously and they are willing to have the judgment on appeal and the decision of the trial court on remand apply to them.

[3] Although appellants do not seek to relitigate issues previously decided, the timing and manner in which they seek to enter the litigation raise questions with respect to whether issues previously determined as to the original parties would need to be determined as to them. Disposition of these issues would delay the proceedings of the court on remand and thereby prejudice the rights of the original parties. See Grijalva v. Elkins, 132 Colo. 315, 287 P.2d 970.

[4] Furthermore, a separate basis for denying intervention arises from the fact that appellants had failed to exhaust their administrative remedies.

Appellants maintain that a failure to exhaust their administrative remedies should be excused because the original plaintiffs were unsuccessful before the Civil Service Commission and exhaustion of remedies is not required when it is futile. See, e.g., Montana National Bank v. Yellowstone County, 276 U.S. 499, 48 S.Ct. 331, 72 L.Ed. 673. Appellants' argument is based upon the tacit and unjustified assumption that the Commission would ignore our decision in Spickard, supra. Our Supreme Court has stated repeatedly that persons seeking judicial relief must first exhaust their administrative remedies. See, e.g., Heron v. Denver, 131 Colo. 501, 283 P.2d 647.

Accordingly, we conclude that the trial court properly denied appellants' motion to intervene.

The judgment is affirmed.

CHIEF JUDGE SILVERSTEIN and JUDGE SMITH concur.