DISTRICT COURT, CITY AND COUNTY OF DENVER, STATE OF COLORADO

 

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ORDER

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STATE OF COLORADO, ex rel. GALE A. NORTON, ATTORNEY GENERAL,

Plaintiff,

v.

R.J. REYNOLDS TOBACCO CO.; AMERICAN TOBACCO CO., INC.; BROWN &WILLIAMSON TOBACCO CORP.; LIGGETT & MYERS, INC.; LORRILARDTOBACCO CO., INC.; PHILIP MORRIS, INC.; UNITED STATES TOBACCOCO.; B.A.T. INDUSTRIES, P.L.C.; THE COUNCIL FOR TOBACCO RESEARCH-- U.S.A., INC.; and TOBACCO INSTITUTE, INC.,

Defendants.

Civil Action No. 97 CV 3432, Courtroom 3

This matter comes before the Court pursuant to a motion filed by Daniel J. Post, individually, and according to his representations "on behalf of all persons similarly situated" to intervene in the above captioned case. The Plaintiff State of Colorado, and all served Defendants have objected to this intervention on various grounds.

Before seeking to intervene in this case, Mr. Post filed a separate action naming himself, "Ex Rel The People of the State of Colorado" as Plaintiff and the Colorado Department of Public Health and Environment, the Colorado Department of Revenue and Gale A. Norton, Attorney General of the State of Colorado as Defendants. That case, 97CV3635 was dismissed by Judge Martinez, June 9, 1997. Judge Martinez' order took no position on a motion to intervene in the present case.

Proposed Intervenor Post acknowledges that the Attorney General has commenced the present action, "for monetary damages", "civil penalties, declaratory injunctive relief, forfeiture of proceeds of a public nuisance, and other equitable remedies including restitution and disgorgement of profits." The Attorney General brings the action as the chief law enforcement officer and attorney for the State of Colorado "on behalf of the state." Proposed Intervenor Post alleges that the complaint filed by the Attorney General "fails to adequately protect the general public and Mr. Post insofar as it fails to seek injunctive relief banning the sale and marketing of tobacco and tobacco products".

The motion to intervene is denied.

This Court finds that the power of the Attorney General to represent the State of Colorado is both constitutional, Colorado Constitution, Article IV, Section 1, and statutory, §24-31-lOl(l)(a) C.R.S. The Attorney General is specifically authorized to "appear for the state and prosecute and defend all actions and proceedings, civil and criminal, in which the state is a party or is interested when required to do so by the Governor . . . ." §24-31-101(1)(a). In essence, proposed Intervenor Post's motion seeks a finding that in filing the instant action the Attorney General of the State of Colorado is not carrying out her duties adequately and completely.

Proposed Intervenor first claims a right to intervene under Rule 24(a), C.R.C.P. The proviso at the end of Rule 24(a), however, is that certain persons may intervene as a right, "unless the applicant's interest is adequately represented by existing parties." Next, proposed Intervenor seeks permissive intervention under Rule 24(b) C.R.C.P. Under Rule 24(b) the Court has discretion by virtue of it being "permissive" intervention. In exercising that discretion the Court, "shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties."

The petition to intervene as a matter of right is denied. The Court specifically finds that the office of the Attorney General of the State of Colorado is adequately and competently representing the people of the State of Colorado. This Court's observation from the complaint itself and from previous legal proceedings conducted before this Court by the office of the Attorney General is that that office is a competent and zealous advocate for the people of the State of Colorado which will fully protect the rights of all Colorado citizens. Further, under Rule 24(b), although proposed Intervenor Post may be a cancer survivor and he may believe that his cancer was caused by prior use of tobacco and tobacco products, the Court finds that his individual issues will unduly delay or prejudice the adjudication of the rights of the original parties. Indeed, the instant case addresses important issues concerning all the people of the State of Colorado and the Court does not wish those issues to be diluted by individuals who wish to litigate personal issues. If the Court were to allow one intervention then why not two interventions? If the Court starts down that road where does the road end? Therefore the motion for permissive intervention under Rule 24(b) C.R.C.P. is denied.

This Court is also denying the motion of proposed Intervenor based upon the argument raised by the Attorney General that Mr. Post lacks the authority to maintain the action that he seeks to maintain. Constitutionally and by Statute it is the Attorney General who represents the People of Colorado. Public nuisance actions may be brought by the District Attorney or the Attorney General with the consent of the District Attorney in the name of the people of the State of Colorado. No authority has been provided to Mr. Post by either the Attorney General or the District Attorney for the Second Judicial District to prosecute this action on behalf of the People of the State of Colorado.

For all of the above stated reasons the motion to intervene is denied.

SO ORDERED this 22nd day of September, 1997.

BY THE COURT:

H. JEFFREY BAYLESS

District Court Judge

DANIEL J. POST

1122 - 9th St., #103

Greeley, CO 80631

MARTHA PHILLIPS ALLBRIGHT

1525 Sherman St., 5th Floor

Denver, CO 80203

 

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MICHAEL L. O'DONNELL JOE ESCHER

RICHARD P. BARKLEY Three Embarcadaro Center

1801 California St., #3600 San Francisco, CA 94111

Denver, CO 80202

WAYNE JOSELL

PAT DAVIES 919 Third Ave.

1201 Pennsylvania Ave., N.W. New York, NY 10022

Washington, DC 20044

JEFF NELSON

STEVE KLUGMAN One Kansas City Place

875 Third Ave. 1200 Main

New York, NY 10022 Kansas City, MO 64105

TONY RICHARDSON JAMES E. SCARBORO

300 S. Grand Ave., #3000 THOMAS W. STOEVER, JR.

Los Angeles, CA 90071 1700 Lincoln St., #4000

Denver, CO 80203

PERRY GLANTZ

8350 E. Crescent Parkway #200 AARON MARKS

Englewood, CO 80111 1301 Ave. of the Americas

New York, NY 10019