Platte County School Dist. No. 1 v. Basin Elec. Power Co-op., 2

• Decision Date: 13 January 1982
• Docket Number: No. 5487,No. 2,2,5487
• Citation: 638 P.2d 1276
• Parties: PLATTE COUNTY SCHOOL DISTRICT NO. 1, Platte County School District, and Platte County Parks and Recreation District, Appellants (Applicants), Doyle Hutchinson as County Assessor of Platte County, Wyoming; and Betty M. Dunham as County Treasurer of Platte County, Wyoming, (Defendants), v. BASIN ELECTRIC POWER COOPERATIVE, a Corporation, in its own behalf and as project manager in behalf of Tri-State Generation and Transmission Association, Inc., Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 1276

638 P.2d 1276

PLATTE COUNTY SCHOOL DISTRICT NO. 1, Platte County School District No. 2, and Platte County Parks and Recreation District, Appellants (Applicants), Doyle Hutchinson as County Assessor of Platte County, Wyoming; and Betty M. Dunham as County Treasurer of Platte County, Wyoming, (Defendants), v. BASIN ELECTRIC POWER COOPERATIVE, a Corporation, in its own behalf and as project manager in behalf of Tri-State Generation and Transmission Association, Inc., Appellee (Plaintiff).

No. 5487.

Supreme Court of Wyoming.

Jan. 13, 1982.

Raymond B. Hunkins, Jones, Jones, Vines & Hunkins, Wheatland, for appellants.

Rodger McDaniel, Roncalio, Salazar & McDaniel, Cheyenne, and Donald N. Sherard, Wheatland, for appellee.

Before ROSE, C. J., and RAPER, THOMAS, ROONEY and BROWN, JJ.

ROSE, Chief Justice.

This is an appeal from an order denying appellants' ¹ application for intervention of right brought pursuant to Rule 24(a), W.R.C.P. ² The only issue for our review concerns the propriety of the trial court's refusal to allow intervention.

We will affirm.

FACTS

The appellants attempted to intervene in a suit brought by Basin Electric in which they, the appellant districts, sought to permanently enjoin the levy and collection of a tax assessment. The events leading up to this suit must be set out in order to gain an understanding of appellants' position.

From 1967 until 1979, the State Board of Equalization assessed all power plants under construction at 25% of installed cost. In formulating its school budget for 1979, appellants relied upon the revenues to be derived from Basin's property assessed under the 25% rule.

On June 1, 1979, the State Board of Equalization, without notice to the school districts or the Recreation District, reduced the multiplier used to assess utility property under construction from 25% to 15%. Appellants successfully attacked this reduction as having been adopted in violation of the procedural requirements of the Wyoming Administrative Procedure Act.

That same year, and after the 15% rule had been declared invalid, the State Board of Equalization reassessed Basin's property under the old 25% method, but Basin, in the interim, had already paid the taxes due under the 15% multiplier. At the same time the notice of the increased valuation was mailed, the Board of Equalization certified that valuation to the County Assessor of Platte County. Sometime later the assessment was entered in the tax rolls of Platte County and tax notices were sent to appellees.

On July 28, 1980, Basin filed the currently pending action in district court seeking to enjoin the State Board of Equalization and its members from imposing the increased reassessment and the Platte County Assessor and County Treasurer from collecting taxes under the increased 1979 25% assessment. The State Board of Equalization was dismissed from this action, and, on August 20, 1980, the district court entered a temporary injunction which prohibited the collection of the 1979 assessment until further order of the court. On August 28 1980, appellants first sought application for a motion to intervene. This motion for intervention of right was denied on February 4, 1981.

DID APPELLANTS SATISFY THE REQUIREMENTS OF RULE 24(a), W.R.C.P.?

Appellants sought intervention in the present litigation by authority of Rule 24(a), W.R.C.P. In order to come within the provisions of that rule, three conditions must be present-namely: (1) appellants must have an interest in the subject of the action; (2) appellants must be able to show that they are so situated that a failure to allow intervention will impair or impede their ability to protect that interest; and (3) it must be apparent that appellants' interest is not adequately represented by existing parties. Rule 24(a), W.R.C.P.; Rawlins v. Stanley, 207 Kan. 564, 486 P.2d 840 (1971). A fourth requirement which has also been recognized by the courts is that of timeliness. In other words, the application for intervention must be made at a time when it is practical to allow another party to enter the dispute. NAACP v. New York, 413 U.S. 345, 93 S.Ct. 2591, 37 L.Ed.2d 648 (1973); Llewellyn v. Beasley, Ind.App., 415 N.E.2d 789 (1981).

It has been suggested that an issue involving intervention of right under Rule 24(a) is a question of law. 7A Wright & Miller, Federal Practice and Procedure, § 1902, p. 466 (1972). It cannot be denied, however, that the resolution of a right-to-intervene problem also involves a question of fact. Therefore, a Rule 24(a)(2) claim should be viewed as one involving a question of law and fact. Llewellyn v. Beasley, supra, 415 N.E.2d at 792. From this it follows that under Rule 24(a) there is an element of discretion which attaches to a trial judge's decision to refuse or allow intervention.

It is appropriate here to consider the factors outlined above in order to ascertain the propriety of the trial judge's denial of appellants' motion to intervene.

Timeliness

We address the question of the timeliness of the petition first because the appellee raises it, and also because such a question is of a threshold nature. We say this because although a petitioner may satisfy the other requirements of Rule 24(a) the right to intervene can be denied if the petition was not timely. Although the facts reflect that appellants did not seek intervention in the present action until the district court had issued a temporary injunction, we believe that the application for intervention was timely. The temporary order was issued so that no action would be taken by the county officials before the correct 1979 assessment for appellee's property could be determined. The litigation still involved substantial questions concerning the denial or granting of a permanent injunction at the time appellants sought to intervene.

Clearly the question of timeliness is a flexible one, and it must, of necessity, be left within the discretion of the trial judge. 7A Wright & Miller, supra, § 1916 at p. 572; McDonald v. E. J. Lavino Co., 430 F.2d 1065 (5th Cir. 1970). Considering the stage of the proceedings at which appellants sought to intervene, we hold that the trial judge did not abuse his discretion in permitting appellants' motion to be heard.

Interest in Subject Matter

Appellants claim an interest in the present litigation on the ground that they have relied upon the 25% multiplier in budgeting, and, as a result of the reduction, the school districts will suffer the loss of some $650,000.00 in revenue should the county officials be enjoined from collecting the 25% assessment of appellee's property. ³ They also urge that §§ 39-4-101 and 21-13-207, W.S.1977, ⁴ guaranteed to them a right to the 1979 assessment under the 25% rule.

The authorities and case law which have dealt with the problem of the "interest" requirement under Rule 24(a) point out that the term has thus far avoided concise definition. Shapiro, Some Thoughts on Intervention Before Courts, Agencies, and Arbitrators, 81 Harv.L.Rev. 721 (1968). However, a number of courts have grappled with the question, and many have come to utilize the "significantly protectable interest" test enunciated by the United States Supreme Court in Donaldson v. United States, 400 U.S. 517, 91 S.Ct. 534, 27 L.Ed.2d 580 (1971). While we may agree that Rule 24(a) lends itself to liberal construction, it is also true that one seeking intervention must present a significant protectable interest in the suit, rather than one that is contingent. O'Hara Group Denver, Ltd. v. Marcor Housing Systems Inc., Colo., 595 P.2d 679 (1979); In re Penn Central Commercial Paper Litigation, 62 F.R.D. 341 (1974), aff'd without opinion 515 F.2d 505 (2nd Cir. 1975). Appellants were, therefore, obliged to demonstrate that they had a significant interest in the present litigation and not one that was merely contingent or similar to the interest of any member of the public at large.

As noted previously, appellants sought to establish...