Mullinix v. City of Pontiac

• Decision Date: 25 February 1969
• Docket Number: Docket No. 4939,No. 2,2
• Citation: 16 Mich.App. 110,167 N.W.2d 856
• Parties: Cecil C. MULLINIX, Proposed Intervenor, Appellant, Kenneth Davidson and Herbert L. Hay, Plaintiffs-Appellees, v. CITY OF PONTIAC, Michigan and William H. Taylor, Jr., John A. Dugan, T. Warren Fowler, Leslie H. Hudson, Robert C. Irwin, James H. Marshall and Wesley A. Wood, Members of the Commission of the City of Pontiac, Defendants-Appellees
• Court: Court of Appeal of Michigan — District of US

Page 856

167 N.W.2d 856

16 Mich.App. 110

Cecil C. MULLINIX, Proposed Intervenor, Appellant, Kenneth Davidson and Herbert L. Hay, Plaintiffs-Appellees, v. CITY OF PONTIAC, Michigan and William H. Taylor, Jr., John

A. Dugan, T. Warren Fowler, Leslie H. Hudson, Robert C.

Irwin, James H. Marshall and Wesley A. Wood, Members of the

Commission of the City of Pontiac, Defendants-Appellees.

Docket No. 4939.

Court of Appeals of Michigan, Division No. 2.

Feb. 25, 1969.

Rehearing Denied April 7, 1969.

Released for Publication May 27, 1969.

Leave to Appeal Denied June 13, 1969.

Robert D. Coon, Cunningham & Coon, Pontiac, for proposed intervenor-appellant.

Winston L. Livingston, Livingston, Gregory, Van Lopik & Higle, Detroit, for plaintiffs-appellees.

Sherwin M. Birnkrant, Pontiac, for defendants-appellees.

Before QUINN, P.J., and V. J. BRENNAN and McGREGOR, JJ.

V. J. BRENNAN, Judge.

The question is raised as to whether appellant was entitled to intervention as of right under GCR 1963, 209.1(3), or, in the alternative, to permissive intervention under GCR 1963, 209.2(2).

The Pontiac City Commission unanimously adopted a City Income Tax Ordinance on October 3, 1967. Appellant circulated and filed a timely petition seeking to force a referendum election on the question of adopting a city income tax. The petition was filed December 14, 1967. The City Commission took steps directed toward holding the election. On December 26, 1967, plaintiffs, citizens and taxpayers of Pontiac, brought suit to enjoin the City from holding the election alleging that appellant's petitions were legally defective. Defendants' answer of January 3, 1968, admitted the facts pleaded in support of the invalidity of the petition. On January 3, appellant filed an answer denying that the petition was invalid, and a motion to intervene. He alleged, Inter alia, that the City's representation of his interest would be and was inadequate because the City favored the tax and opposed an election.

On January 4, Judge William Beer of the Oakland county circuit court issued orders denying the motion to intervene and granting the injunction.

GCR 1963, 209.1(3) provides for intervention of right where 'the representation of the applicant's interest by existing parties is or may be inadequate and the applicant may be bound by a judgment in the action.'

Is the applicant's interest sufficient to qualify under the rule? Generally a person, merely as taxpayer has no such interest in litigation to which a municipality is a party as will entitle him to intervene. See School District of City of Ferndale v. Royal Oak Township School District No. 8 (1940), 293 Mich. 1, 291 N.W. 199, 127 A.L.R. 661. Allowing that Mullinix's status Qua taxpayer is insufficient to qualify for intervention, he does have a special interest which should satisfy the first condition of intervention of right. The applicant was a moving party behind the referendum petition. What he seeks to protect is an integral part of the exercise of the political right to petition (C.L.1948, § 141.503 as amended by P.A.1968, No. 307 (Stast.Ann.1969 Cum.Supp. § 5.3194(3))); namely, his compliance with the statutory requirements. Surely, if plaintiffs, as citizens and taxpayers, can properly attack the petitions' validity, Mullinix, as citizen, taxpayer and the party responsible for filing the petitions, should be allowed to defend their validity.

Might the representation by existing parties be inadequate? In Advance Dry Wall Company v. Wolfe-Gilchrist Inc. (1966), 3 Mich.App. 645, 646, 647, 143 N.W.2d 186, 187, it was said that,

'This rule (GCR 1963, 209) is practically verbatim from Federal Rules of Civil Procedure, Rule No 24, and since there are no Michigan cases interpreting GCR 1963, 209, we adopt Federal decisions interpreting Rule No 24 as controlling.'

Subsequent to this decision, Rule No. 24 was amended. See 1966 amendment to Rule No. 24, F.R.Civ.P. Although it is not entirely clear whether the amendment changed, or merely clarified, the test for allowing intervention, at least one court believes that the 'change in wording does not relate to any change in standard.' Nuesse v. Camp (1967), 128 U.S.App.D.C. 172, 385 F.2d 694, 702. Instead, 'it underscores both the burden on those opposing intervention to show the adequacy of existing representation and the need for a liberal application in favor of permitting intervention.' Nuesse v. Camp, Supra. Taking the above statement as declarative of the policy underlying GCR 1963, 209, the Federal decisions under Rule No. 24, though it has been reworded, are to be given considerable weight in interpreting GCR 1963, 209. Presently, the rules governing intervention are liberally construed in the Federal courts. See Cascade Natural Gas Corp. v. El Paso Natural Gas Co. (1967), 386 U.S. 129, 87 S.Ct. 932, 17 L.Ed.2d 814; Nuesse v. Camp, Supra; Justice v. United States (CA 6, 1966), 365 F.2d 312; 81 Harv.L.R. 721.

From the wording of GCR 1963, 209.1(3) it is clear that there need be no positive showing that the existing representation is In fact inadequate. All that is required is that the representation by existing parties May be inadequate. See Ford Motor Co. v. Bisanz Bros., Inc., (CA 8, 1957), 249 F.2d 22. Can it be said with certainty, then, that the applicant will be adequately represented?

Plaintiffs argue that taxpayers are presumed to be adequately represented by governmental authorities in the absence of a showing of gross negligence or bad faith. The Michigan Supreme Court has stated that the theory underlying the referendum is 'that public officials may not be sufficiently responsive to the temporary will of the electorate * * *.' Ferle v. Parsons (1920), 210 Mich. 150, 154, 177 N.W. 397, 398. A suit challenging the validity of a referendum petition aimed at overturning an act of the city is a peculiarly inappropriate one in which to apply a presumption that the city will adequately defend. Bad faith need not be claimed to show that representation will be or may be inadequate. Atlantic Refining Co. v. Standard Oil Co. (1962), 113 U.S.App.D.C. 20, 304 F.2d 387.

There are presented here several indications that the City of Pontiac's representation may be inadequate. The city failed to advance defenses which the appellant suggested that he would advance. In School District of City of Ferndale v. Royal Oak Township School District No. 8, Supra, it was said, quoting from 6 McQuillin, Municipal Corporations (2d ed.), p. 951, '* * * if the municipality, when sued, refuses to set up a material defense, taxpayers directly interested in the result are entitled to intervene and plead such defense.' The ultimate success or failure of the applicant's defense is, of course, irrelevant to the question of intervention. A defense could have been urged here.

The defendants have an interest adverse to that of the appellant. In Stadin v. Union Electric Co. (CA 8, 1962), 309 F.2d 912, the court said that inadequacy of representation 'is or may be shown * * * by the representative having or representing an interest adverse to the intervenor * * *.' See also Peterson v. United States (D.C.Minn.1966), 41 F.R.D. 131. The ordinance sought to be overturned by appellant was enacted by defendant individuals as constituent members of the Pontiac Commission. Defendant City, through its agents, has repeatedly warned...