36
Stevens, J., dissenting
was too insignificant to justify intervention.2 In its brief in opposition, respondent argued that the intervention issue was not properly raised.3 After consideration of respondent's arguments, we nevertheless decided to grant certiorari. We might, of course, have expressly directed the parties to argue the two questions separately, but it is now apparent that such direction was unnecessary because their briefs on the merits canvassed both issues.
The question whether Izumi should have been allowed to intervene in the Court of Appeals is a "subsidiary question fairly included" in the question presented, Rule 14.1(a), because the answer to the intervention question depends on the validity of the practice of routinely granting settling parties' motions to vacate trial court judgments. For if that routine practice is proper, then there is no point in allowing intervention. On the other hand, if vacation should ever be denied because of the potential impact on third-party interests, it was error to deny intervention in this case.4 If routine vacation is improper, the Court of Appeals' reasons for denying intervention were clearly insufficient. Izumi obviously had a stake in the outcome of the motion, because the vacation of the Florida judgment significantly increased the potential liability and litigation expenses of its indemnitee. The fact that Izumi was not a formal party to the case before it sought to intervene is irrelevant because the very purpose of intervention is to acquire the status of a party.
2 The substantive portion of Izumi's petition for certiorari was divided into four lettered sections. In the fourth, section D, petitioner argued that the prospect of relitigation in Illinois and Izumi's interest in the judgment against Windmere gave it "an immediate and direct interest in challenging the propriety of granting vacatur following settlement," and therefore that "Izumi was entitled to intervene in the appeal for the purposes of opposing vacatur." Pet. for Cert. 14, 15.
3 Brief in Opposition 2, 4-5.
4 See National Union Fire Ins. Co. of Pittsburgh v. Seafirst Corp., 891 F. 2d 762, 764 (CA9 1989) (intervention granted to allow nonparty to challenge vacation of judgment).
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