THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
Cite as Wainit v. Truk (I), 2 FSM Intrm. 81 (Truk 1985)

 [2 FSM Intrm. 81]

TADASHI WAINIT et al.,
Plaintiffs,

vs.

TRUK STATE GOVERNMENT,
Defendant,
and
SIMEON INNOCENTI, as Speaker
of the Truk State Legislature
Intervening Defendant.

CIVIL 1985-1006

OPINION

Before Richard H. Benson
Associate Justice
August 13, 1985

APPEARANCES:
     For the Plaintiffs:               R. Barrie Michelsen
                                                Attorney-at-Law
                                                Stovall, Spradlin, Ramp, Armstrong & Israel
                                                P.O. Box 1480
                                                Kolonia, Pohnpei 96941

     For the Intervenor:                  Tim G. Bruce
     (Simeon Innocenti                  Attorney-at-Law
     as Speaker, Truk State          P.O. Box 27
     Legislature)                             Moen, Truk 96942

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HEADNOTES
Civil Procedure; Parties
     Rules 19(a) and 24(a) of the FSM Rules of Civil Procedure refer to similar "interests." Decisions under Rule 19(a) provide additional understanding of the meaning of "interest" in Rule 24(a).  Wainit v. Truk (I), 2 FSM Intrm. 81, 84 (Truk 1985).

[2 FSM Intrm. 82]

Civil Procedure; Parties
     The interest of the Speaker of a state legislature in upholding validity of laws enacted by that legislature, and in obtaining funds for the legislature pursuant to the tax legislation challenged in litigation, is not the kind of interest which will support a right to intervene in the litigation pursuant to FSM Civ. R. 24(a) in order to enforce the legislation through cross-claims and counterclaims.Wainit v. Truk (I), 2 FSM Intrm. 81, 85 (Truk 1985).

Civil Procedure; Parties
     Under FSM Civ. R. 24(b), the interest needed for permissive intervention is not as great as that needed under FSM Civ. R. 24(a).  Wainit v. Truk (I), 2 FSM Intrm. 81, 85 (Truk 1985).

Civil Procedure; Parties
     Where the Speaker of a legislature seeks to intervene in order to deny the plaintiff's claim that legislation enacted by the legislature is invalid, his proposed denial, with the complaint, presents a single or common question of law within the meaning of FSM Civ. R. 24(b), and the intervention may be permitted so long it will not cause undue delay, or prejudice adjudication of the rights of the original parties.  Wainit v. Truk (I), 2 FSM Intrm. 81, 85 (Truk 1985).

Civil Procedure; Courts; Parties
     Where one seeking to intervene under FSM Civ. R. 24(b) would not raise new and difficult issues through a proposed answer but would do so through proposed cross-claims and counterclaims, the Court may properly limit the participation of the intervenor to defense of the plaintiff's claims.  Wainit v. Truk (I), 2 FSM Intrm. 81, 86 (Truk 1985).
 
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COURT'S OPINION
RICHARD H. BENSON, Associate Justice:
     This matter came before the Court on the motion of Simeon Innocenti, as Speaker of the Truk State Legislature, for an order permitting him to intervene as a defendant.  After oral argument on June 11, 1985 the matter was submitted for decision.

     The issue presented by the motion is whether or not the Speaker is entitled to intervene as a party defendant in a case brought by merchants against the Truk State Government  seeking a declaratory judgment that an excise tax imposed on imports is violative of the Constitution of the Federated States of Micronesia, and in which the Truk State Government fails to appear.

     In his proposed pleading, the Speaker answers the complaint generally denying that Section 4 of the Truk State Law violates the Constitution,

[2 FSM Intrm. 83]

cross-claims against the Truk State Government seeking a mandatory injunction that the law be executed, and counterclaims seeking an order that the plaintiffs pay the required tax to the Truk State General Fund.

     I conclude that the Speaker may intervene by authority of Rule 24(b) conditioned on his abandonment of his counterclaim and his cross-claim.  An order to that effect was filed August 6, 1985.

I. Intervention as of right under Rule 24(a) of the Rules of Civil Procedure for the Trial Division of the Supreme Court of the Federated States of Micronesia.

     Rule 24(a) permits intervention of right in  cases in which the intervenor has

an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant's interest is adequately represented by existing parties.

     Thus the proposed intervenor must show interest, impairment and inadequacy of representation.

     The Speaker has an interest in the validity of the laws enacted, and funds for the Legislature have been appropriated from the revenue expected from the Truk State Law No. 5-103, Section 4 of which concerns the tax at issue in this case.  This funding is substantial, constituting more that one-half of local revenue.

     If the Speaker were not permitted to intervene, and the law were found unconstitutional, a separate and subsequent action by the Speaker asserting constitutionality would appear difficult.

     As to the third prerequisite, there is no representation at all of the interest of the Speaker at this time.  The Truk State Government has not appeared asserting the validity of the law.

     The essential question however is whether or not the interest of the Speaker, although unquestionably real, is one that the Court can recognize for purposes of intervention.  Cases from United States courts have been examined because the Rules of Civil Procedure that govern this Court have been adopted from those courts, and there have been no cases in this Court interpreting Rule 24.

     Cases closest in point, since no cases presenting the same facts as presented in this case have been found, are those cases in which parties interested in certain legislation have sought to intervene.  In Washington State Bldg. & Constr. Trades Council, AFL-CIO v. Spellman, 684 F.2d 627 (9th

[2 FSM Intrm. 84]

Cir. 1982), cert. denied, 461 U.S. 913, 103 S. Ct. 1891, 77 L. Ed. 2d 282 (1983) the issue was the constitutionality of a state law forbidding importation of low-level nuclear waste into Washington.  The court permitted the public interest group which sponsored the legislation to intervene.  And in Idaho v. Freeman, 625 F.2d 886 (9th Cir. 1980) procedures for the ratification of the proposed equal rights amendment were challenged.  The National Organization for Women was permitted to intervene.

     In Keith v. Daley, 764 F.2d 1265 (7th Cir. 1985) physician-plaintiffs challenged the constitutionality of the Illinois abortion statute, joining the Attorney General of Illinois, the Director of the Illinois Department of Public Health, and the Cook County State's Attorney as defendants. The Illinois Pro-Life Coalition which had lobbied for the passage of the statute was not permitted to intervene.

     The digest of the case states,

A proposed intervenor must demonstrate a direct, significant, and legally protectable interest in the property at issue, that belongs to it rather than to an existing party, and that is so direct that the intervenor would have a right to maintain its own claim for the relief sought.

Id. at 2015.

     These two lines of authority cannot be reconciled.  In all cases the existing parties were ably representing the views of the intervenors, a situation not present in this case.

     Additional understanding of the meaning of "interest" is gained by comparing the language of Rule 19, Joinder of Persons Needed for Just Adjudication, with the language of Rule 24(a) already quoted above.  Rule 19(a) states, "A person . . . shall be joined . . . if . . . (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest. . ."

     The language in the two rules is similar.  The two rules refer then to a similar "interest."  3A J. Moore & J. Lucas, Moore's Federal Practice 19.01-1 [5-6] (2d ed. 1985).  If a party had moved to compel the Speaker to be joined as a necessary party under Rule 19, such a motion would have been denied according to long-recognized principles.  Shields v. Barrow, 58 U.S. (17 How.) 130, 15 L. Ed. 158 (1855).  This indicates that his interest is insufficient under Rule 24(a).

     In opposition to the motion to intervene the plaintiff asserts that the Speaker does not I have standing, and cites Goldwater v. Carter, 617 F.2d 697 (D.C. Cir.) (en banc), vacated, 444 U.S. 996, 100 S. Ct. 533, 62 L. Ed. 2d 428 (1979) (mem.). Seven judges participated in the decision in the Court of Appeals.  In dictum, the majority of the court and 2 dissenters agreed that "injury in fact" which would give

[2 FSM Intrm. 85]

standing to legislators does not exist in cases in which the executive had failed to obey or to carry out a statute enacted by the legislature. 617 F.2d at 702, and 712 n. 5.

     In Goldwater the Court of Appeals found standing, and reached a judgment on the merits.  The Supreme Court vacated the judgment, and remanded the case to the district court with directions to dismiss, four members believing the case presented a political question, and a fifth believing that the case was not ripe for decision.  Because the statements are dictum and because standing, political question and ripeness are all concepts of justiciability, (C. Wright, R. Miller & H. Cooper, Federal Practice and Procedure 3529 (1984)) the value of Goldwater as precedent on standing is weak.

     Taken together the foregoing would all incline the Court toward a denial of the motion to intervene.  However the Charter of Truk State provides the determining authority on the issue.  Article IX, Section 5 provides that "The Governor shall be responsible for the faithful execution of the laws . . ."  This decides the question of standing and answers the proper concern for the issue of separation of powers that this motion awakens.  The Speaker is not entitled to intervene and through his counterclaim and his cross claim seek to enforce the Tax Law.

II.  Permissive Intervention under Rule 24(b) of the Rules of Civil Procedure for the Trial Division of the Supreme Court of Federated States of Micronesia.

     The rule provides that "anyone may be permitted to intervene. . .  (2) when an applicant's claim or defense and the main action have a question of law or fact in common."

     The rule is permissive and addressed to the discretion of the court.

     The complaint of the plaintiffs and the denial proposed by the intervenor present a single question of law: whether or not Section 4 of the Truk State Law 5-103 is violative of the Constitution of the Federated States of Micronesia.  At present there appears no question of fact presented by the complaint which is at issue.

     The interest needed by the intervenor is not as stringent as that needed under Rule 24(a). C. Wright & R. Miller, Federal Practice and Procedure 1911 (1984).

     A comparison of Rule 24(b) with the permissive joinder rule, Rule 20, also reflects the lowered standard.  Rule 20 states, mall persons ... may be joined in one action as defendants if there is asserted against them jointly, ... any right to relief in respect of or arising out of the same transaction, ... and if any question of law or fact common to all defendants will arise in the action." It is seen that Rule 20 has the same requirement of a common question of law or fact, but has the additional requirement of a right to relief.  And the "common question" is less demanding than the "interest" of Rule 24(a). C. Wright & R. Miller, Federal Practice and Procedure 1911

[2 FSM Intrm. 86]

(1984).

     The application of the intervenor is timely, and I do not find that his denial of the allegation of the complaint will "unduly delay or prejudice the adjudication of the rights of the original parties."  FSM Civ. R. 24(b).

     It is proper to permit the intervention in order to deny the allegations of the complaint.  However the proposed counterclaim and the cross-claim raise issues of standing and separation of powers which have been addressed in the previous section.  Entertaining those matters would also "unduly delay" the resolution of the issue presented by the complaint.

     The court has authority to limit the participation of the intervenor.  Van Hoomissen v. Xerox Corp., 497 F.2d 180, 181 (9th Cir. 1974).

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