FSM SUPREME COURT TRIAL DIVISION
Cite as AHPW, Inc. v. FSM
10 FSM Intrm. 420 ( Pon. 2001)
 
[10 FSM Intrm. 420]
 
AHPW, INC.,
Plaintiff,
 
vs.
 
GOVERNMENT OF THE FEDERATED STATES
OF MICRONESIA and GOVERNMENT OF
THE STATE OF POHNPEI,
Defendants.
 
CIVIL ACTION NO. 1999-053
 
ORDER AND MEMORANDUM
 
Martin Yinug
Associate Justice
 
Decided: October 5, 2001
 
APPEARANCES:
 
For the Plaintiff:                       Douglas F. Cushnie, Esq.
                                                  P.O. Box 949
                                                  Saipan, Northern Marianas MP 96950
 
For the Defendant:                 R. Anthony Welch, Esq.
(FSM)                                      Assistant Attorney General
                                                 FSM Department of Justice
                                                 P.O. Box PS-105
                                                 Palikir, Pohnpei FM 96941
 
For the Defendant:                Joses Gallen, Esq.
(Pohnpei)                               Acting Attorney General
                                                Pohnpei Department of Justice
                                                P.O. Box 1555
                                                Kolonia, Pohnpei FM 96941
 
For the Movant:                     Huddy T. Lucas, Esq.
(Perman)                               Office of Legislative Counsel
                                               Pohnpei Legislature
                                               P.O. Box 114
                                               Kolonia, Pohnpei FM 96941
 
* * * *
 
[10 FSM Intrm. 421]
 
HEADNOTES
Evidence ) Privileges
     A privilege is a peculiar right, advantage, exemption, power, franchise, or immunity held by a person or class, not generally possessed by others. AHPW, Inc. v. FSM, 10 FSM Intrm. 420, 423 n.1 (Pon. 2001).
 
Evidence) Privileges
     A witness's privilege is governed by common law principles as they may be interpreted by FSM courts in the light of reason and experience, including local custom and tradition. AHPW, Inc. v. FSM, 10 FSM Intrm. 420, 423 (Pon. 2001).
 
Common Law
    Prior to the 1979 initiation of constitutional government in the FSM, it may be said that the common law of the FSM was based on the law of the United States, the Trust Territory, and other nations in the common law tradition. AHPW, Inc. v. FSM, 10 FSM Intrm. 420, 423 (Pon. 2001).
 
Common Law ; Constitutional Law ) Judicial Guidance Clause; Evidence ) Privileges
     When the court looks to common law sources in considering the nature of the legislative privilege enjoyed by members of the Pohnpei Legislature, it is mindful of Article XI, section 11 of the FSM Constitution, which requires that FSM Supreme Court decisions be consistent with the Constitution, Micronesian customs and traditions, and the social and geographical configuration of Micronesia. AHPW, Inc. v. FSM, 10 FSM Intrm. 420, 423 (Pon. 2001).
 
Evidence ) Privileges
     Legislative privilege has a long history, and was well established at common law even before the founding of the United States. AHPW, Inc. v. FSM, 10 FSM Intrm. 420, 423 (Pon. 2001).
 
Evidence ) Privileges
     Legislative immunity for state legislators exists under United States federal law independent of state constitutional speech or debate provisions. Legislative freedom has no less vitality in the FSM than in the United States. Our national Constitution and all four state constitutions contain speech or debate clauses. AHPW, Inc. v. FSM, 10 FSM Intrm. 420, 424 (Pon. 2001).
 
Constitutional Law ) Pohnpei ) Legislative Powers; Evidence ) Privileges
     A member of the Pohnpei Legislature is responsible only to the Legislature for statements in the Legislature or a committee thereof. AHPW, Inc. v. FSM, 10 FSM Intrm. 420, 424 (Pon. 2001).
 
Constitutional Law ) Legislative Powers; Evidence ) Privileges
     A lawmaker engages in many activities which are not covered by the legislative privilege, such as a wide range of legitimate errands performed for constituents, making of appointments with government agencies, assistance in securing government contracts, preparing news letters to constituents, news releases, and outside speeches. Such activities, though entirely legitimate, are political in nature rather than legislative, and such political matters do not have speech or debate clause protection. But when a legislator is acting within the legitimate legislative sphere, the speech or debate clause is an absolute bar to interference. AHPW, Inc. v. FSM, 10 FSM Intrm. 420, 424-25 (Pon. 2001).
 
Constitutional Law ) Legislative Powers; Evidence ) Privileges
     Legislative privilege should be read broadly to include anything generally done in a session of the legislature by one of its members in relation to the business before it. The ambit of the privilege
 
[10 FSM Intrm. 422]

extends beyond speech and debate per se to cover voting, circulation of information to other legislators, participation in the work of legislative committees, and a host of kindred activities. AHPW, Inc. v. FSM, 10 FSM Intrm. 420, 425 (Pon. 2001).
 
Criminal Law and Procedure ; Constitutional Law ) Legislative Powers; Evidence ) Privileges; Torts
     The legislative privilege doctrine has both substantive and evidentiary aspects. In substance, the doctrine renders legislators immune from civil and criminal liability based on either speech or debate in the course of proceedings in the legislature. From an evidentiary standpoint, a legislator may claim the privilege in declining to answer any questions outside the legislature itself where those questions concern how a legislator voted, acted, or decided on matters within the sphere of legitimate legislative activity. AHPW, Inc. v. FSM, 10 FSM Intrm. 420, 425 (Pon. 2001).
 
Constitutional Law ) Pohnpei ) Legislative Powers; Evidence ) Privileges
     A Pohnpei legislator may decline to answer any questions that fall within the legitimate legislative activity of the Pohnpei legislature. AHPW, Inc. v. FSM, 10 FSM Intrm. 420, 425 (Pon. 2001).
 
Civil Procedure ) Depositions; Civil Procedure ) Interrogatories
     Any party may serve upon any other party written interrogatories to be answered by the party served. Depositions may be taken of any person but interrogatories are limited to parties. AHPW, Inc. v. FSM, 10 FSM Intrm. 420, 426 (Pon. 2001).
 
Civil Procedure ) Depositions
     The Rule 31 procedure for depositions upon written questions is that a copy of the questions is delivered to the court reporter who then takes the deposition in accordance with Rule 30(c), (e), and (f). Written cross, redirect, and recross questions are thereafter propounded within the time provided by the rule. While a deposition on written questions may be useful in certain circumstances, this procedure is inflexible, and as a result, infrequently used. All things considered, depositions upon written questions are not as effective as oral depositions in eliciting spontaneous answers. AHPW, Inc. v. FSM, 10 FSM Intrm. 420, 426 (Pon. 2001).
 
Constitutional Law ) Pohnpei ) Legislative Powers; Evidence ) Privileges
      Questions that are casually or incidentally related to legislative affairs but not a part of the legislative process itself, do not fall within the legislative privilege. Such questions, when otherwise appropriate under Rule 26(b)(1), should be answered by a Pohnpei legislator. AHPW, Inc. v. FSM, 10 FSM Intrm. 420, 426 (Pon. 2001).
 
* * * *
COURT'S OPINION

MARTIN YINUG, Associate Justice:

     The court has received the motion to quash subpoena and motion for protective order of Feliciano M. Perman ("Perman") filed August 9, 2001; the opposition of plaintiff AHPW ("AHPW") filed on August 31, 2001; and the reply filed on August 29, 2001.

     The court has also received the parties' joint motion for an extension of time to complete discovery, which the court grants.

     The motion to quash is denied. Perman's motion for a protective order is granted to the extent set out below. Reasons follow.

[10 FSM Intrm. 423]

Discussion

     AHPW subpoenaed Perman, who is the speaker of the Pohnpei Legislature, for the purpose of deposing him. Perman appeared at the deposition, and after responding to some preliminary inquiries, declined to answer further questions based on his immunity as a member of the Pohnpei Legislature. Perman then moved to quash the subpoena. In the alternative, he seeks a protective order. The question for resolution is to what extent a Pohnpei legislator may make a claim of legislative immunity in declining to answer deposition questions.

     FSM case law to date has not addressed the question of legislative privilege.1 However, Rule 501 of the FSM Rules of Evidence provides in pertinent part that "the privilege of a witness . . . shall be governed by the principles of the common law as they may be interpreted by the courts of the Federated States of Micronesia in the light of reason and experience, including local custom and tradition." Prior to the initiation of constitutional government in the FSM in 1979, it may be said that the common law of the FSM was based on the law of the United States, the Trust Territory, and other nations in the common law tradition. Rauzi v. FSM, 2 FSM Intrm. 8, 17 (Pon. 1985). The court looks to these sources in considering the nature of the legislative privilege enjoyed by members of the Pohnpei Legislature. In doing so, the court is mindful of Article XI, Section 11 of the FSM Constitution, which requires that decisions of this court be "consistent with this Constitution, Micronesian customs and traditions, and the social and geographical configuration of Micronesia."

     As Perman points out, the privilege has a long history. It was well established at common law even before the founding of the United States. 16A Am. Jur. 2d Constitutional Law  525 (1979). Insight into the privilege's history is found in Tenney v. Brandhove, 341 U.S. 367, 372-76, 71 S. Ct. 783, 786-88, 95 L. Ed. 1019, 1024-27 (1951); United States v. Johnson, 383 U.S. 169, 177-83; 86 S. Ct. 749, 754-57, 15 L. Ed. 2d 681, 686-90 (1966); and United States v. Brewster, 408 U.S. 501, 517-24, 92 S. Ct. 2531, 2540-43, 33 L. Ed. 2d 507, 520-24 (1972). Justice Frankfurter in writing for the court in Tenney noted that

     [f]reedom of speech and action in the legislature was taken as a matter of course by those who severed the Colonies from the Crown and founded our Nation. It was deemed so essential for representatives of the people that it was written into the Articles of Confederation and later in the Constitution. Article 5 of the Articles of Confederation is quite close to the English Bill of Rights: "Freedom of Speech and debate in Congress shall not be impeached or questioned in any court or place out of Congress . . . ." Article 1  6, of the Constitution provides: ". . . for any Speech or Debate in either House, [the Senators and Representatives] shall not be questioned in any other Place.

341 U.S. at 372-73, 71 S. Ct. at 786, 95 L. Ed. at 1025. Thus the Speech and Debate Clause of the United States Constitution "was a reflection of political principles already firmly established in the States" prior to the Constitution's adoption. Id. at 373, 71 S. Ct. at 786, 95 L. Ed. at 1025. Further,

[t]he reason for the privilege is clear. It was well summarized by James Wilson, an influential member of the Committee of Detail which was responsible for the provision in the Federal Constitution. "In order to enable and encourage a representative of the public to discharge his public trust with firmness and success, it is indispensably necessary, that

[10 FSM Intrm. 424]

he should enjoy the fullest liberty of speech, and that he should be protected from the resentment of every one, however powerful, to whom the exercise of that liberty may occasion offense." II Works of James Wilson (Andrews ed. 1896) 38.

Id.2 Justice Frankfurter observed in a frequently cited passage from Tenney that

     [t]he claim of an unworthy purpose does not destroy the privilege. Legislators are immune from deterrents to the uninhibited discharge of their legislative duty, not for their private indulgence but for the public good. One must not expect uncommon courage even in legislators. The privilege would be of little value if they could be subjected to the cost and inconvenience and distractions of a trial upon a conclusion of the pleader, or to the hazard of a judgment against them based upon a jury's speculation as to motives.

341 U.S. at 377, 71 S. Ct. at 788, 95 L. Ed. at 1027. Tenney's holding was that a state legislator's common law absolute immunity from civil suit survived the passage of the Civil Rights Act of 1891. Id. at 379, 71 S. Ct. at 789, 95 L. Ed. at 1028.

     That legislative immunity exists under United States federal law for state legislators independent of state constitutional provisions was expressly acknowledged by the United States Supreme Court twenty-eight years after Tenney in Lake Country Estates, Inc. v. Tahoe Planning Agency, 440 U.S. 391, 404-05, 99 S. Ct. 1171, 1179, 59 L. Ed. 2d 401, 412 (1979):

[T]he absolute immunity for state legislators recognized in Tenney reflected the Court's interpretation of federal law; the decision did not depend on the presence of a speech or debate clause in the constitution of any State . . . . Rather, the rule of that case recognizes the need for immunity to protect the "public good."

The fact that the constitutions of many of the states of the United States have such clauses "reflect[s] the central importance attached to legislative freedom in [the United States]." Id. at 404, 99 S. Ct. at 1179, 59 L. Ed. 2d at 412.

      Legislative freedom has no less vitality in the FSM than in the United States. Our national Constitution and the constitutions of all four of our states contain speech or debate clauses. FSM Const. art. IX,  15; Kos. Const. art. IV,  8; Pon. Const. art. 8,  7; Chk. Const. art. VI,  10; Yap Const. art. V,  9. Specifically, Article 8, Section 7 of the Constitution of Pohnpei provides that "[a] member [of the Pohnpei Legislature] is responsible only to the Legislature for statements in the Legislature or a committee thereof." Thus in the appropriate circumstances, a member of the Pohnpei legislature may claim the privilege. The question becomes, what are those circumstances?

     It is safe to say that a lawmaker typically engages in many activities which are not covered by the legislative privilege. Examples of such activities include "a wide range of legitimate `errands' performed for constituents, the making of appointments with Government agencies, assistance in securing Government contracts, preparing so-called `news letters' to constituents, news releases, and speeches delivered outside Congress." Brewster, 408 U.S. at 512, 92 S. Ct. at 2537, 33 L. Ed. 2d

[10 FSM Intrm. 425]

at 518. Such activities, though "entirely legitimate," are political in nature rather than legislative," and it has "never been seriously contended that [such] political matters, however appropriate," have speech or debate clause protection. Id. But where a legislator is acting "within the `legitimate legislative sphere,' the Speech or Debate Clause is an absolute bar to interference." Eastland v. United States Servicemen's Fund, 421 U.S. 491, 503, 95 S. Ct. 1813, 1821, 44 L. Ed. 2d 324, 336 (1975), (citing Doe v. McMillan, 412 U.S. 306, 314 [sic], 93 S. Ct. 2018, 2025, 36 L. Ed. 2d 912, 921 (1975)). The privilege should be read broadly to include anything "generally done in a session of the [legislature] by one of its members in relation to the business before it." Kilbourn v. Thompson, 103 U.S. 168, 204, 26 L. Ed. 377, 392 (1881). The ambit of the privilege extends beyond speech and debate per se to cover

voting, see id. [referring to Kilbourn], circulation of information to other legislators, see Doe v. McMillan, 412 U.S. 306, 312, 93 S. Ct. 2018, 2024, 36 L. Ed. 2d 912 (1973), participation in the work of legislative committees, see Gravel, 408 U.S. at 624, 92 S. Ct. at 2626; Tenney, 341 U.S. at 378-79, 71 S. Ct. at 789-90, and a host of kindred activities.

National Ass'n of Social Workers v. Harwood , 69 F.3d 622, 630 (1st Cir. 1995).

     On the other hand the Brewster court, after noting that legislative immunity "preclud[ed] any showing of how he [Senator Brewster] acted, voted, or decided," 408 U.S. at 527, 92 S. Ct. at 2545, 33 L. Ed. 2d at 527), went on to state that legislative immunity does not encompass conduct "simply because it has some nexus to legislative functions." Id. at 528, 92 S. Ct. at 2545, 33 L. Ed. 2d at 527. The Brewster court concluded that "[t]he only reasonable reading of the Clause, consistent with its history and purpose, is that it does not prohibit inquiry into activities that are casually or incidentally related to legislative affairs but not a part of the legislative process itself." Id.

     The doctrine of legislative privilege has "both substantive and evidentiary aspects." United States v. Mandel, 415 F. Supp. 1025, 1027 (D. Md. 1976). In substance, the doctrine renders legislators immune from civil3 and criminal4 liability based on either speech or debate in the course of proceedings in the legislature. Id. From an evidentiary standpoint, a legislator may claim the privilege in declining to answer any questions outside the legislature itself where those questions concern how "a legislator voted, acted, or decided on matters within the sphere of legitimate legislative activity." Id. Hence, as applied to the present circumstances, Perman may decline to answer any questions that fall within the "legitimate legislative activity" of the Pohnpei legislature.

     AHPW counters Perman's claim of privilege by contending that it seeks only information pertaining to Perman's "personal knowledge as to other matters within the community." Memorandum in Opp'n to Motion for Protective Order and to Quash Subpoena at 3 (Aug. 31, 2001). Such matter

[10 FSM Intrm, 426]

would not be covered by the privilege. In order to determine the contested areas of inquiry, Perman suggests that AHPW prepare and submit interrogatories, and that the answers to them be used as a basis for resumption of the deposition if necessary. Although this suggestion is not without appeal, Rule 33 of the FSM Rules of Civil Procedure provides that "[a]ny party may serve upon any other party written interrogatories to be answered by the party served" (emphasis added). As one commentator notes, "[d]epositions may be taken of any person but interrogatories are limited to parties to the litigation." 8 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure  2171 (1970). Perman is not a party to this suit.

     In lieu of Perman's suggested approach, the court has considered proceeding by way of a deposition upon written questions under Rule 31 of the FSM Rules of Civil Procedure. The procedure anticipated by that rule is that a copy of the questions are delivered to the court reporter who then takes the deposition in accordance with Rule 30(c), (e), and (f). Written cross, redirect, and recross questions are thereafter propounded within the time provided by the rule. While a deposition on written questions may be useful in certain circumstances, 7 James Wm. Moore et al., Moore's Federal Practice  31.02[1] (3d ed. 1999), this procedure has been described as "inflexible," and as a result, "infrequent[ly] use[d]." 8 Wright & Miller, supra,  2171. "All things considered, depositions upon written questions are not as effective as oral depositions in eliciting spontaneous answers." 7 James Wm. Moore et al., supra,  31.02[3]. On balance, such an approach is not suited to the present circumstances.

     The deposition will resume at an appropriate time. Perman may claim the legislative privilege where to do so is consistent with the contours of the legislative privilege as set out in this memorandum. By way of providing guidance to the parties, and in the hope of facilitating Perman's deposition when it resumes, the court notes that in his reply, Perman appears to overstate the scope of the privilege. When suggesting that AHPW propound interrogatories, he asserts that the interrogatories should "ask nothing regarding Pohnpei's Legislature, or legislative process." Pohnpei State Legislature's Memorandum in Response to Plaintiff's Memorandum in Opposition to Motion for Protective Order and to Quash Subpoena; Certificate of Service at 2 (Aug. 29, 2001). Questions that "are casually or incidentally related to legislative affairs but not a part of the legislative process itself," Brewster, 408 U.S. at 528, 92 S. Ct. at 2545, 33 L. Ed. 2d at 527, do not fall within the privilege. Such questions, where otherwise appropriate under Rule 26 (b) (1) of the FSM Rules of Civil Procedure, should be answered.

* * * *

_____________________________________________________

Footnotes:

1."Privilege" and "immunity" are synonymous for present purposes. "Privilege" is defined as "[a] peculiar right, advantage, exemption, power, franchise, or immunity held by a person or class, not generally possessed by others." Black's Law Dictionary 1197 (6th ed. 1990) (emphasis added).

2. A subsequent formulation of the purpose of speech or debate clause immunity is "to preserve the integrity of the legislative process by insuring the independence of individual legislators." United States v. Brewster, 408 U.S. 501, 507, 92 S. Ct. 2531, 2535, 33 L. Ed. 2d 507, 515, (1972). The privilege protects individual legislators "from inquiry into legislative acts or their motivation for the actual performance of legislative acts." Id. at 509, 92 S. Ct. at 2536, 33 L. Ed. 2d at 516.

3. Eastland v. United States Servicemen's Fund, 421 U.S. 491, 95 S. Ct. 1813, 44 L. Ed. 2d 324 (1975); Doe v. McMillan, 412 U.S. 306, 93 S. Ct. 2018, 36 L. Ed. 2d 912 (1973); Powell v. McCormack, 395 U.S. 486, 89 S. Ct. 1944, 23 L. Ed. 2d 491 (1969); Dombrowski v. Eastland, 387 U.S. 82, 87 S. Ct. 1425, 18 L. Ed. 2d 577 (1967); Tenney v. Brandhove, 341 U.S. 367, 71 S. Ct. 783, 95 L. Ed. 1019 (1951); Kilbourn v. Thompson, 103 U.S. 168, 26 L. Ed. 377 (1881); McSurely v. McClellan, 521 F.2d 1024 (D.C. Cir. 1975); Eslinger v. Thomas, 476 F.2d 225 (4th Cir. 1973).

4. Gravel v. United States, 408 U.S. 606, 92 S. Ct. 2614, 33 L. Ed. 2d 583 (1972); United States v. Brewster, 408 U.S. 501, 92 S. Ct. 2531, 33 L. Ed. 2d 507 (1972); United States v. Johnson, 383 U.S. 169, 86 S. Ct. 749, 15 L. Ed. 2d 681 (1966); United States v. Dowdy, 479 F.2d 213 (4th Cir. 1973).

 
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