Horton v. Meskill

• Decision Date: 25 May 1982
• Citation: 187 Conn. 187,445 A.2d 579
• Court: Connecticut Supreme Court
• Parties: , 4 Ed. Law Rep. 547 Barnaby HORTON et al. v. Thomas J. MESKILL et al. Peter D. GRACE et al. v. Thomas J. MESKILL et al.

Page 579

445 A.2d 579

187 Conn. 187, 4 Ed. Law Rep. 547

Barnaby HORTON et al. v. Thomas J. MESKILL et al.

Peter D. GRACE et al. v. Thomas J. MESKILL et al.

Supreme Court of Connecticut.

Argued Dec. 10, 1981.

Decided May 25, 1982.

[187 Conn. 188] Gregory M. Harris, Middletown, for appellants (applicants for intervention, town of Killingly et al.).

Paul W. Orth, Hartford, with whom was Austin Carey, Jr., Hartford, for appellants (applicants for intervention, town of North Haven et al.).

Susan W. Wolfson, New Haven, for appellants (applicants for intervention, city of New Haven et al.).

Robert W. Garvey, Asst. Atty. Gen., with whom were Charles A. Overend, Asst. Atty. Gen., and, on the brief, Carl R. Ajello, Atty. Gen., and Bernard F. McGovern, Jr., Asst. Atty. Gen., for appellees (defendants).

Wesley W. Horton and Naomi A. Plakins, Hartford, appeared for appellees (plaintiffs).

Before SPEZIALE, C. J., and PETERS, HEALEY, ARMENTANO and SHEA, JJ.

SPEZIALE, Chief Justice.

This is a consolidated appeal from the trial court's denial of three motions to intervene in this case. The appellants (hereinafter the applicants) are: the towns of Killingly and Putnam and their boards of education (Killingly and Putnam); the towns of North Haven, Orange, Woodbridge, Avon, Farmington, Fairfield, and Westport (Suburban Municipalities); and the city of New Haven and its board of education (New Haven). ¹ The applicants claim that the denial of their motions to intervene was erroneous because: (1) they had a right to intervene, and (2) assuming their intervention was permissive and not of right, the trial court abused its discretion by denying the motions. ² We find no error.

The underlying action in which the applicants have attempted to intervene was filed originally in November, 1973 and challenged the constitutionality of the statutory provisions governing the financing of Connecticut's secondary and elementary schools. The Superior Court, Rubinow, J., found that the then existing statutory financing system violated the Connecticut constitution's guarantees of equal protection and free public education. Horton v. Meskill, 31 Conn.Sup. 377, 386-89, 332 A.2d 113 (1974). The Superior Court rendered only a declaratory judgment at that time, retained jurisdiction for additional relief, but stayed further action until the legislature had an opportunity to address the need for a new method of financing secondary and elementary education. Id., 391, 332 A.2d 113. On appeal, we found no error in the judgment and approved the Superior Court's stay of further relief pending legislative action. Horton v. Meskill, 172 Conn. 615, 648-53, 376 A.2d 359 (1977) (Horton I).

The General Assembly adopted responsive remedial legislation in 1979 which provided for a new financing equalization formula to be phased in over a five year period. Public Acts 1979, No. 79-128 (hereinafter P.A. 79-128). The original plaintiffs did not challenge the constitutionality of P.A. 79-128. During 1980, the General Assembly twice amended P.A. 79-128. See Public Acts 1980, Nos. 80-404 and 80-473. The plaintiffs apparently viewed the 1980 amendments as receding from the basic remedial legislation because on May 9, 1980, under the Superior Court's retained jurisdiction, they sought and obtained an order to show cause why the defendants should not be enjoined from distributing education funds in an unconstitutional manner. No hearing has yet been held on this order to show cause.

On May 30, 1980, motions to intervene were filed by the towns of Darien and Greenwich and by the city of Hartford and its board of education. These motions to intervene were granted by the trial court on July 1, 1980. ³ Various other motions for permission to participate as amici curiae were also granted by the trial court. ⁴ The trial court denied the defendants' motion to dismiss the order to show cause on October 7, 1980.

On December 3, 1980, Killingly and Putnam moved to intervene as plaintiffs. The Suburban Municipalities moved to intervene as defendants on the same date. On December 8, 1980, New Haven moved to intervene as a plaintiff. All three motions were denied by the trial court and the applicants for intervention appealed to this court. These appeals were consolidated by this court on March 12, 1981.

I INTERVENTION OF RIGHT

The applicants contend that the trial court erred in denying their motions to intervene because they had a right to intervene. The applicants rely upon § 99 of the Practice Book which provides in relevant part: "If a person not a party [to a controversy before the court] has an interest or title which the judgment will affect, the court, on his [or her] motion, shall direct him [or her] to be made a party." ⁵ (Emphasis added.) The applicants contend that this language provides for intervention of right and that they qualify for such intervention. We agree with the applicants that The distinction between intervention of right and permissive intervention, such as is found in Rule 24 of the Federal Rules of Civil Procedure, has not been clearly made in Connecticut practice. See Practice Book §§ 99, 100. ⁶ Most of our cases discuss the admission of new parties as coming within the "broad discretion" of the trial court. E.g., Manter v. Manter, --- Conn. ---, ---, 441 A.2d 146 (43 Conn.L.J., No. 22, pp. 1, 3) (1981); Jones v. Ricker, 172 Conn. 572, 575n, 375 A.2d 1034 (1977); Nikitiuk v. Pishtey, 153 Conn. 545, 555, 219 A.2d 225 (1966). But there are also cases which make clear that intervention of right exists in Connecticut practice. Ricard v. Stanadyne, Inc., 181 Conn. 321, 322n, 435 A.2d 352 (1980); Greenwich Gas Co. v. Tuthill, 113 Conn. 684, 695, 155 A. 850 (1931); Bucky v. Zoning Board of Appeals, 33 Conn.Sup. 606, 608, 363 A.2d 1119 (1976); DeFelice v. Federal Grain Corporation, 12 Conn.Sup. 199, 201 (1943). The nature of the right to intervene in Connecticut, however, has not been fully articulated. Where state precedent is lacking, it is appropriate to look to authorities under the comparable federal rule, in this case Rule 24 of the Federal Rules of Civil Procedure. ⁷

                §   99 of the Practice Book provides for intervention of right;  however, we do not agree that the applicants are entitled to such intervention
                

In this case the trial court rejected the applicants' claim for intervention of right "because the intervention was not sought in a timely fashion at an earlier stage of the proceedings" and, therefore, treated their motions as addressed to the discretion of the court. The court considered the motions as untimely because they were filed long after the trial court had rendered its declaratory judgment in 1974. See Manter v. Manter, supra, ---, 441 A.2d 146.

Any motion for intervention, whether permissive or of right, must be timely. See Fed.R.Civ.P. 24. The timeliness of a motion for intervention, however, must be judged by all of the circumstances of the case. See NAACP v. New York, 413 U.S. 345, 366, 93 S.Ct. 2591, 2603, 37 L.Ed.2d 648 (1973); Hodgson v. United Mine Workers of America, 473 F.2d 118, 129 (D.C.Cir.1972). In any event, an untimely motion for intervention of right is not transformed In this case, the trial court expressed valid concerns about the timeliness of the applicants' motions for intervention. The interests which the applicants now claim are threatened by the impending judgment of necessity must have been equally threatened when this action was initiated in 1973. ⁸ The applicants' failure to intervene prior to the judgment rendered in 1974 would suggest that they have not moved to protect their claimed interests in a timely fashion. See Stallworth v. Monsanto Co., 558 F.2d 257, 263-66 (5th Cir. 1977). There is merit, however, to the applicants' claim that, although the present proceeding is technically a continuation of the original action, it is effectively a new action because it concerns the legislation adopted in 1979-1980, not the legislation declared unconstitutional by the Superior Court in 1974. In any event, we need not decide whether under the circumstances of this case the applicants have lost their right to intervene due to their delay in seeking intervention because the applicants never had the right to intervene in the first place.

                automatically thereby into a motion for permissive [187 Conn. 194] intervention.   The right to intervene is lost, not merely weakened, if it is not exercised in a timely fashion.   Ricard v. Stanadyne, Inc., supra, 323-24, 435 A.2d 352.   See 7A Wright & Miller, Federal Practice and Procedure § 1916;  3B Moore, Federal Practice § 24.13 .  As a general matter, the timeliness requirement is applied more leniently for intervention of right than for permissive intervention because of the greater likelihood that serious prejudice will result.   See  Alaniz v. Tillie Lewis Foods, 572 F.2d 657, 659 (9th Cir.), cert. denied, 439 U.S. 837, 99 S.Ct. 123, 58 L.Ed.2d 134 (1978);   Diaz v. Southern Drilling Corporation, 427 F.2d 1118, 1126 (5th Cir. 1970)
                

An applicant for intervention has a right to intervene under Practice Book § 99 where the applicant's interest is of such a direct and immediate character that the applicant " 'will either gain or lose by the direct legal operation and effect of the judgment.' " Bucky v. Zoning Board of Appeals, supra, 608, 363 A.2d 1119; DeFelice v. Federal Grain Corporation, supra, 201. See Smith v. Gale, 144 U.S. 509, 518, 12 S.Ct. 674, 676, 36 L.Ed. 521 (1892). The applicants do not have such an interest in this case.

There is no question that each of Connecticut's 169 municipalities, as a practical matter, will be affected by the ultimate judgment rendered in this case, as will the state's taxpayers and students. But a person or entity does not have a sufficient interest to qualify for the right to intervene merely because an impending judgment will have some effect on him, her, or it. The judgment to be rendered must affect the...