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Colorado v. International Ass’n of Firefighters.

2023 COA 52. No. 22CA0988. Public Integrity Statute—Attorney General—CRCP 24—Intervention as of Right—Permissive Intervention.

June 8, 2023

This case arose from investigations by the Aurora Police Department (Aurora Police) and Aurora Fire Rescue (Aurora Fire) after the death of McClain, who died six days after a police encounter during which Aurora Fire personnel injected him with ketamine to sedate him. The State of Colorado (state) released a report pursuant to CRS § 24-31-113 finding that Aurora Police and Aurora Fire had engaged in a pattern and practice of illegal conduct. The state and the City of Aurora (city) then negotiated a consent decree to address and remediate the state’s findings under the supervision of an independent monitor. The state filed a civil complaint against the city seeking, as relevant here, an injunction against Aurora Fire to prevent it from engaging in a pattern or practice of using ketamine or other chemical sedatives in violation of the law; and the parties jointly moved for entry of their proposed consent decree. The International Association of Firefighters, Local 1290 (the union), which represents Aurora Fire’s firefighters and emergency medical technicians, moved to intervene as a defendant, either as of right or permissively, under CRCP 24. The district court ultimately denied the union’s motion.

On appeal, the union argued that the district court reversibly erred by denying its request to intervene as a matter of right. The state and the city argued that, pursuant to CRCP 24, the public integrity statute, CRS § 24-31-113, bars the union from intervening because the union is not a potential party under the statute, and the attorney general may bring a pattern-or-practice claim only against governmental authorities or their agents. But the state and the city also acknowledged that the Colorado Supreme Court has interpreted Rule 24 to permit an entity to intervene even though it could not have been a party when the legal action began. The public integrity statute allows the attorney general to bring a civil suit against a governmental authority when the attorney general has reasonable cause to believe that the governmental authority has engaged in a pattern or practice of conduct that deprives persons of legally protected rights, privileges, or immunities. The public integrity statute neither limits intervention to entities that could have been parties at the start of the legal action nor sets out a procedure that is inconsistent with allowing a third party to intervene in a civil suit. Further, Colorado’s public integrity statute closely resembles 34 USC § 12601, which empowers the US Attorney General to sue governmental authorities for pattern-or-practice conduct, and courts analyze motions to intervene in federal pattern-or-practice suits under Fed. R. Civ. P. 24. Based on the plain language of CRS § 24-31-113 and how federal courts have addressed motions to intervene in cases brought under the similar federal statute, the Colorado statute does not bar intervention.

The union also contended that the district court erred by denying its request to intervene as a matter of right. Here, the district court correctly found that the union did not satisfy the first Rule 24(a)(2) requirement, because it does not have an interest in the subject matter of this litigation; and it did not satisfy the second rule requirement, because even if the union had an interest in the litigation, such interest would not be impaired if it were not allowed to intervene because nothing prevents it from pursuing an interest in the future.

The union further argued that the district court abused its discretion by failing to address its request for permissive intervention. Here, the district court did not address the union’s motion for permissive intervention at all, and it abused its discretion by denying the motion without any explanation.

The portion of the district court’s order denying the union’s motion to intervene as of right was affirmed. The portion of the order denying without addressing the union’s motion for permissive intervention was reversed and the matter was remanded for the district court to make findings and issue a ruling under Rule 24(b).

Official Colorado Court of Appeals proceedings can be found at the Colorado Court of Appeals website.

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