Assistant Attorney General Michael A. Stanker in his opposition to the memorandum in support of motions by the Commonwealth Ports Authority, Commonwealth Utilities Corp., and Commonwealth Development Authority filed on Dec. 19 argued that CPA’s motion to intervene be denied.
For Stanker, CPA failed to meet the two types of intervention under Rule 24 of the Commonwealth Rules of Civil Procedure: Intervention as of right and Permissive Intervention.
He stated, “CPA does not meet the tests for either type of intervention and its Motion to Intervene should be denied.”
Applying the four-pronged test under Rule 24, Stanker said (1) CPA’s motion is not timely; (2) the parties would be prejudiced if CPA were to intervene; (3) CPA does not have a justifiable reason for the delay or the length of the delay; and (4) CPA has not met the burden for proving timeliness.
For Stanker, CPA’s motion is not timely because it sought to join the proceedings at a late stage and it weighed heavily against the applicant where the trial court had substantially engaged the issues in a case.
He said, “Courts have denied motions for intervention at substantially earlier stages than in the case at hand.”
Stanker argued that the parties would be prejudiced if CPA were to intervene.
He said, “Whether an application for intervention is timely depends primarily on whether granting it would delay relief from long-standing equities.”
He said CPA incorrectly applied a case discussing permissive intervention and asked the court to disregard CPA’s analysis.
Stanker also recognized the court’s issuance of several orders modifying damages and contribution rate to be awarded in “delicate balance of judicial fairness and realistic examination of the financial situation of both parties.”
Allowing the parties to intervene would deprive the government of any firm expectations in what judgment it might ultimately owe or rate of contribution it would be required to pay, he said.
Delaying this uncertainty now that the Fund’s and the CNMI government’s finances’ border on insolvency would prejudice both the CNMI government and the Fund.
He also said CPA does not have a justifiable reason for the delay.
He reasoned that the Fund’s lawsuit is a high-profile case in a small jurisdiction and has been well publicized in the newspapers.
Stanker said the newspapers had speculated on the Fund’s financial woes and CPA should have been alerted that the Fund would at some point implement measures like increasing the contribution rate.
He also argued that CPA had actual knowledge of disparity between the rates of the government and other entities and it knew that the government had been having difficulty making the required contribution.
“This fact alone militates against granting the motion,” said Stanker adding the CPA and the agencies knew the said issues but did nothing.
CPA, Stanker added, has not met the burden of timeliness because it has not established a presumption of timeliness.
“CPA fails to satisfy its burden of proof by failing to raise adequate legal or factual grounds to support this attempted intervention,” said Stanker.
Stanker also argued that CPA lacks significant protectable interest in the Fund’s claim.
He also said CPA can protect its own interests in other ways and its interests are adequately represented by the parties to the action.
For Stanker, because CPA failed to establish all four prongs required to satisfy the Motion to Intervene, the court should deny the motion as of right.
“CPA asks a question which is unrelated to the existing suit and allowing intervention would prejudice the existing parties,” Stanker said.
He believes that the agency failed to meet the procedural requirements that must be met before either type of intervention could be granted.
Associate Judge Kenneth Govendo on Monday told the parties and the agencies seeking to intervene that he would decide on their motion on Dec. 28.
On Monday, CPA legal counsel Robert T. Torres asked Govendo, “Let us intervene.”
Torres said, “Our interests are being adversely affected to the detriment of the agency and the employees,” he added.
For Torres, the insistence on doubling CPA’s employer contribution rate places CPA’s ability to fulfill its statutory mission in jeopardy and threatens its ability to function.
In its motion to intervene, CPA asked the court to issue an order permitting CPA to participate in the proceedings as intervenor and permitting the agency to assist in the resolution of the matter.
