Motion to Intervene in Vermont

Understanding the Purpose and Significance of a Motion to Intervene

“Under Rule 24(a)(1), any person who has made a timely motion to intervene shall be permitted to do so when a statute confers an unconditional right to intervene.” (See Agency of Transp. v. Timberlake Assocs. (2020) 239 A.3d 253, 257.)

Pursuant to Rule 24(a)(2): “anyone shall be permitted to intervene in an action . . . when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest, unless the applicant's interest is adequately represented by existing parties.” (See 171234 Canada Inc. v. AHA Water Cooperative, Inc. (2008) 184 Vt. 633, 637.)

Stated differently, “a person shall be permitted to intervene as matter of right if they demonstrate, among other things, a substantial interest which may be adversely affected by the outcome of the proceeding.” (See In re Acorn Energy Solar 2 (2021) LLC, 2021 Vt. 3, 21.)

“The application to intervene must be timely." (See id; Ernst v. Rocky Rd., Inc. (1982) 141 Vt. 637, 639-40, 450 A.2d 1159, 1160 [holding even in cases of intervention as of right under V.R.C.P. 24(a), trial court has discretion to deny motions to intervene that are not made within a reasonable time]; In re Appeals of Garen (2002) 174 Vt. 151, 154.)

“The determination of timeliness is within the discretion of the trial court.” (See 171234 Canada Inc. v. AHA Water Cooperative, Inc. (2008) 184 Vt. 633, 637; Ernst v. Rocky Road. Inc. (1982) 141 Vt. 637, 639, 450 A.2d 1159, 1160.)

“In making such a determination, the trial court must consider at least four factors: the power to have sought intervention at an earlier stage in the case; the case's progress; harm to the Plaintiff's; and availability of other means to join the case." (See id.)

Circumstances under which Intervention is Authorized

There are “three circumstances under which intervention is authorized.” (See In re Gmpsolar-Richmond, LLC (2017) 179 A.3d 1232, 1239.)

They are "when the applicant demonstrates a substantial interest which may be adversely affected by the outcome of the proceeding, where the proceeding affords the exclusive means by which the applicant can protect that interest and where the applicant's interest is not adequately represented by existing parties." (See id; Rule 2.209(A)(3).) 

Discretion of the Court in Deciding a Motion to Intervene

"The right to intervene in pending litigation is governed by statute in many jurisdictions.” (See In re Callahan's Estate (1945) 114 Vt. 252, 254, 44 A.2d 162; March v. Beckman (1925) 98 Vt. 293, 296, 127 A. 296; Federal Land Bank v. Goyette (1963) 123 Vt. 400, 402.)

“In the absence of legislative enactment in this State, the application is ordinarily regarded as addressed to the discretion of the Court.” (See id.)

“As in other matters of this kind the ruling thereon is not to be revised in the absence of proof that the Court's discretion has been abused or withheld." (See id.)

“But there are cases where the would be intervenor has such a direct and immediate interest in the res which is the subject of the suit and where intervention is so necessary to the preservation of his rights that a denial of it is reviewable by the appellate court.” (See United States v. California Cooperative Canneries (1929) 279 U.S. 553, 556, 49 S Ct 423, 424, 73 L Ed 838; Vertner v. Vertner (1934) 63 App DC 179, 70 F.2d 783, 784; United States v. Radice (1930) 40 F.2d 445, 446; Real Estate Land Title and Trust Co. v. West Chester St. Ry. Co. (1930) 299 Pa 76, 149 A 84.; Re Callahan Estate (1945) 114 Vt. 252, 254.)

"Cases of this sort are those where there is a fund in court undergoing administration to which a third party asserts some right which will be lost in the event that he is not allowed to intervene before the fund is dissipated. In such cases an order denying leave to intervene is not discretionary. . . ." (See id.)

For example, “this Court review[s] the denial of a motion to intervene as of right de novo." (See Agency of Transp. v. Timberlake Assocs. (2020) 239 A.3d 253, 257.)

“We also review questions of statutory interpretation de novo.” (See id; In re South Burlington-Shelburne Highway Project (2002) 174 Vt. 604, 605, 817 A.2d 49, 51 [Statutory interpretation is a question of law; thus our review is nondeferential and plenary].)

Legal Precedents and Case Law on a Motion to Intervene

It is well settled that “under Vermont Rule of Civil Procedure 24(b), relating to permissive intervention, anyone may be permitted to intervene in an action . . . when an applicant's claim or defense and the main action have a question of law or fact in common, so long as the application is timely.” (See V.R.C.P. 24(b); Shahi v. Madden (2010) Vt. 56.)

It is also well settled that “V.R.C.P. 24(a)(2) grants intervention of right in certain statutorily enumerated situations unless the applicant's interest is adequately represented by existing parties.” (See In re Great Eastern Building Co., Inc. (1974) 132 Vt. 610, 614.)