FSM SUPREME COURT TRIAL DIVISION
Cite as Estate of Mori v. Chuuk 11 FSM Intrm. 535 (Chk. 2003)

[11 FSM Intrm. 535]

ESTATE OF JOHNNY MORI et al.,
Plaintiffs,

vs.

STATE OF CHUUK, ERADIO WILLIAM, KAPIER
KAMERINO, and KASTINA KAMINO,
Defendants.

CIVIL ACTION NO. 1998-1000

ORDER AND MEMORANDUM

Martin Yinug
Associate Justice

Decided:  May 19, 2003

APPEARANCES:

For the Plaintiff:	Stephen V. Finnen, Esq.
Law Offices of Saimon & Associates
P.O. Box 1450
Kolonia, Pohnpei FM 96941

For the Defendants:	Ready Johnny, Esq.
Attorney General
Office of the Chuuk Attorney General
P.O. Box 189
Weno, Chuuk FM 96942

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HEADNOTES

Civil Rights; Jurisdiction - Pendent
The FSM Supreme Court exercised pendent jurisdiction over a wrongful death claim, a state law cause of action when the plaintiffs’ claim for civil rights violation under 11 F.S.M.C. 701(3) arose from the same nucleus of operative fact so as to create the reasonable expectation that the claims would be tried in the same proceeding.  Estate of Mori v. Chuuk, 11 FSM Intrm. 535, 537 (Chk. 2003).

Attorney, Trial Counselor and Client - Fees; Civil Rights
Plaintiffs may recover all of their attorney’s fees although the bulk of the damages was awarded on the state law claim and even though the entitlement to those fees arises from the civil rights statute because for attorney fee purposes in such an instance, it is sufficient that the non-fee claims (i.e., the state law claims) and the fee claims (i.e., the civil rights claims) arise out of a common nucleus of operative fact.  Estate of Mori v. Chuuk, 11 FSM Intrm. 535, 537-38 (Chk. 2003).

[11 FSM Intrm. 536]

Attorney, Trial Counselor and Client - Fees; Civil Rights
When both the civil rights claim and the wrongful death claim arose from a common nucleus of operative fact, for purposes of enforcing the judgment, and to be consistent with the principle that plaintiffs are entitled to all of their attorney’s fees under 11 F.S.M.C. 701 even though they prevailed on a state law claim as well as a civil rights claim, the court will treat the judgment as though it is in its entirety based on a civil rights claim.  Estate of Mori v. Chuuk, 11 FSM Intrm. 535, 538 (Chk. 2003).

Contempt
When someone has no say over payment of judgments against the state beyond approving or disapproving vouchers that are submitted to the commission for payment he cannot be in contempt for failure to pay.  Estate of Mori v. Chuuk, 11 FSM Intrm. 535, 539 (Chk. 2003).

Judgments
While the Chuuk Financial Control Commission is precluded from paying any court ordered judgments unless specifically appropriated by law, it must, in a timely manner, develop in consultation with the Governor and Attorney General subsequent legislation for appropriation or other purposes for consideration by the Chuuk Legislature to address court judgments.  That the Commission has disclaimed this responsibility imparted is in material part a basis for the court’s ruling that ordering Chuuk to pay the judgment through taking the first step in that direction by proposing a payment plan is not a workable means of obtaining a satisfaction of the judgment, and the parlous state of Chuuk’s finances is more reason, not less, why it should have been forthcoming with a plan for payment.  Estate of Mori v. Chuuk, 11 FSM Intrm. 535, 540 (Chk. 2003).

Separation of Powers - Chuuk - Legislative Powers
An order to show cause to the entire Chuuk Legislature requiring it to demonstrate why it should not be held in contempt for failing to pay the judgment will not be issued because it is not for the court to intrude in this manner into areas committed to the province of the state legislature.  Estate of Mori v. Chuuk, 11 FSM Intrm. 535, 540 (Chk. 2003).

Attachment and Execution - Garnishment
By statute, the national government is not subject to writ of garnishment or other judicial process to apply funds or other assets owed by it to a state to satisfy a state’s obligation to a third person.  Estate of Mori v. Chuuk, 11 FSM Intrm. 535, 540-41 (Chk. 2003).

Statutes - Construction
All statutes are presumed to be constitutional and if there is any other way of disposing of an issue other than on a constitutional ground, then the court should decide the issue in that manner.  Thus the court addresses a statute’s constitutionality only with reluctance.  Estate of Mori v. Chuuk, 11 FSM Intrm. 535, 541 (Chk. 2003).

Attachment and Execution - Garnishment; Civil Rights
When the only reasonably effective means by which to obtain payment of a civil rights judgment against the state is through an order of garnishment directed to the national government, the anti-garnishment statute is unconstitutional to the extent that it precludes a garnishment order to pay a judgment that is based in material part on civil rights claims under 11 F.S.M.C. 701.  Estate of Mori v. Chuuk, 11 FSM Intrm. 535, 541 (Chk. 2003).

Civil Rights; Judgments
A civil rights judgment must not depend on legislative action for satisfaction.  Estate of Mori v. Chuuk, 11 FSM Intrm. 535, 541 (Chk. 2003).

[11 FSM Intrm. 537]

Attachment and Execution - Garnishment; Civil Rights
A court finding that 6 F.S.M.C. 707 is unconstitutional to the extent that it prevents satisfaction of a judgment based on a violation of constitutional rights is limited to the facts before the court and applies only to a judgment against the state that is based on civil rights claims under the national civil rights statute, which confers a cause of action for violation of rights guaranteed by the FSM Constitution.  Estate of Mori v. Chuuk, 11 FSM Intrm. 535, 541 (Chk. 2003).

Civil Rights; Judgments
In the usual case payment of a money judgment against the state must abide a legislative appropriation, but a judgment for the violation of rights guaranteed by the FSM Constitution is a species apart.  If there is no meaningful remedy for such a violation, which means a judgment subject to satisfaction in a reasonably expeditious manner, then that right afforded constitutional protection is an illusion, and, if that right is reduced to an illusion, then our Constitution itself is reduced to a solemn mockery.  Estate of Mori v. Chuuk, 11 FSM Intrm. 535, 541 (Chk. 2003).

Debtors’ and Creditors’ Rights - Orders in Aid of Judgment
On motion for an order in aid of judgment, the court must determine both the question of the judgment debtor’s ability to pay and the fastest manner in which payment can reasonably be made.  Estate of Mori v. Chuuk, 11 FSM Intrm. 535, 542 (Chk. 2003).

Attachment and Execution - Garnishment; Civil Rights
A garnishment order against the national government will issue to pay a civil rights judgment against Chuuk when the sum is less by at least an order of magnitude than the sums that Chuuk receives on a drawdown basis from the FSM when Chuuk accordingly has the ability to pay the judgment and when, based on the case’s history, a garnishment order is the only means by which payment can reasonably be made.  Estate of Mori v. Chuuk, 11 FSM Intrm. 535, 542 (Chk. 2003).

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COURT’S OPINION

MARTIN YINUG, Associate Justice:

The clerk is directed to transmit a copy of this order and memorandum, and the writ of garnishment directed to the FSM Secretary of Finance that issues herewith, to the office of the FSM Secretary of Justice.

The judgment in this case was entered on March 30, 2001, in the sum of $42,849.90, plus attorney’s fees of $28,918.80 and costs of $7,645.81, for a total of $79,414.51.  Of this amount, $79,354.51 was entered jointly and severally against Chuuk and other defendants, while $15 was entered individually against the state of Chuuk and three of the other defendants for a total of $60 in service costs (4 X $15.00).  Of the $42,849.90 in damages, $250 represented damages for violation of civil rights under 11 F.S.M.C. 701 et seq., which confers a cause of action for violation of civil rights guaranteed under the FSM Constitution, and $42,599.90 was for wrongful death.  This court exercised pendent jurisdiction over the wrongful death claim, a state law cause of action, because the plaintiffs’ claim for civil rights violation under 11 F.S.M.C. 701(3) arose from the same nucleus of operative fact so as to create the reasonable expectation that the claims would be tried in the same proceeding.  Ponape Constr. Co. v. Pohnpei, 6 FSM Intrm. 114, 116 (Pon. 1993).  Similarly, although the bulk of the damages was awarded on the state law claim, plaintiffs may recover all of their attorney’s fees even though the entitlement to those fees arises from the civil rights statute.  Seaway Drive-in, Inc. v. Township of Clay, 791 F.2d 447, 450-52, 455 (6th Cir. 1986).  For attorney fee purposes in such an 

[11 FSM Intrm. 538]

instance, it is sufficient that the non-fee claims (i.e., the state law claims) and the fee claims (i.e., the civil rights claims) "aris[e] out of a ‘common nucleus of operative fact.’"  Maher v. Gagne, 448 U.S. 122, 132 n.15, 100 S. Ct. 2570, 2576 n.15, 65 L. Ed. 653, 663 n.15 (1980) (citing United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S. Ct. 1130, 1138, 16 L. Ed. 2d 218, 228 (1966)).  Here, both the civil rights claim and the wrongful death claim arose from events that occurred on February 18, 1996, while the plaintiffs’ decedent, Johnny Mori, was in custody in the Chuuk State Jail.  These events constitute the "common nucleus of operative fact."  For purposes of enforcing the judgment, and to be consistent with the principle that plaintiffs are entitled to all of their attorney’s fees under 11 F.S.M.C. 701 et seq. even though they prevailed on a state law claim as well as a civil rights claim, the court will treat the judgment as though it is in its entirety based on a civil rights claim.

As a further introductory matter, the plaintiffs filed on March 11, 2002, a second supplement to their request for attorney’s fees and costs.  Chuuk did not oppose or otherwise respond to the request.  Good cause appearing, additional attorney’s fees of $300.00 are granted, as are additional costs of $120.11.

I.  Post-judgment background

On June 12, 2001, the plaintiffs first moved pursuant to 6 F.S.M.C. 1409 for an order in aid of the judgment entered on March 30, 2001.  Hearing on the motion was set for July 19, 2002, and the plaintiffs served three individuals with subpoenas duces tecum to appear.  Those individuals were Nakama Sana, then acting director of the Chuuk Department of Treasury and now director; Detor Santos, president pro tem of the Chuuk State Senate; and Bonciano Nethon, speaker of the Chuuk House of Representatives.  None of these three individuals appeared at the hearing, and on July 20, 2001, orders to show cause why those individuals should not be found in contempt were issued.  On July 24, 2001, a hearing was held on the orders to show cause.  Only Mr. Sana appeared at that hearing.  On July 27, 2001, the court issued an order assigning each of the contempt matters individual docket numbers and requesting the FSM attorney general to prosecute those cases.  The separate contempt actions were subsequently resolved independently of the present action, and are no longer germane for present purposes.  On August 30, 2001, this case was reassigned to this court, due to the retirement of Associate Justice Benson, who up until that time had been hearing the case.

On September 10, 2001, plaintiffs requested that a further hearing be held on their June 12, 2001, motion for order in aid of judgment.  A telephonic hearing, with the court in Yap and counsel in Chuuk, was set for November 15, 2001, and Mr. Sana was again served with a subpoena duces tecum to appear at the hearing.  Again he did not appear at the hearing, although he did send an assistant.  The documents requested pursuant to the subpoena were not provided.  The court issued an order to show cause resulting from Mr. Sana’s nonappearance.  A hearing was then held on January 16, 2002, at which Mr. Sana did appear.  As a result of discussions held at the hearing, the plaintiffs submitted a list of 11 questions that sought clarification of Mr. Sana’s testimony.  Chuuk agreed that these answers would be provided within two weeks of service of the questions.  Chuuk sought two enlargements of time to answer, and ultimately filed its responses on April 12, 2002.  Plaintiffs then renewed their motion for order in aid of judgment on April 30, 2002.  A hearing was held on May 16, 2002, and on July 30, 2002, the court ordered Mr. Sana to propose "a realistic, good faith payment plan for the judgment in this case" before the next scheduled hearing on August 12, 2002.

The hearing originally scheduled for August 12, 2002, was continued until four days later on August 16, 2002.  The hearing, which was held telephonically, with the court in Yap and the other participants in Chuuk, was made part of the record in Davis v. Kutta, Civil Action No. 1992-1039, because also argued at the hearing was the pending motion for an order in aid of judgment in that case, which also involves a judgment for damages for violation of civil rights.  On the day of the hearing, 

[11 FSM Intrm. 539]

Chuuk moved for relief from the July 30, 2002, order in Davis on the basis that Chuuk had passed Chuuk State Law No. 6-02-09, which established the Chuuk Financial Control Commission ("CFCC").  Chuuk urged that the CFCC "now has the legal authority and responsibility of the control and handling of disbursement of Chuuk State funds."  Motion for Relief From Judgment and In Aid Order [sic] at 2 (Aug. 16, 2002).  Chuuk further asserted that "it is improper for the court to continue imposing upon Mr. Sana a ministerial duty that has been barred by statute."  Id.  At the hearing itself, Mr. Sana attempted to explain why the order of contempt against him which had been entered in Davis on February 12, 2002, should be vacated, even though in its discretion the court had levied no contempt sanction.  Unfortunately the phone connection was sufficiently poor that the court could not hear a substantial portion of both the witness testimony and argument of counsel.  The court brought the hearing to a conclusion, and in the single order entered that day, August 16, 2002, in both cases directed that in lieu of testimony Mr. Sana would submit an affidavit setting forth his reasons why the order of contempt in Davis should be vacated.  The order directed Mr. Nick Andon, in his official capacity as chairman of the CFCC to set forth the Commission’s proposal to pay the judgment in both the instant case and Davis.

Mr. Andon did not comply with the August 16, 2002, order.  In an uncaptioned, collective affidavit filed on August 23, 2002, that is apparently intended to be made a part of the file in both this case and Davis, Nick Andon, Evlyn Paul, and Seis Arechy, the chairman, vice-chairman, and treasurer respectively of the CFCC, state that they are precluded from making any payments on judgments unless funds are appropriated by law.  On February 4, 2003, the court issued an order to show cause why Mr. Andon should not be held in contempt of the August 16, 2002, order and set a hearing date for February 26, 2003.  Both Mr. Andon and Mr. Sana appeared at that hearing.  Mr. Andon testified that the CFCC has no say over payment of judgments against the state of Chuuk beyond approving or disapproving vouchers that are submitted to it for payment.  Relying on the veracity of this testimony, as well as on Hadley v. Bank of Hawaii, 7 FSM Intrm. 449, 452 (App. 1995) (holding that as a predicate to imposition of a contempt sanction the alleged contemnor must have both knowledge of the order and the ability to comply with it), found by order of March 4, 2003, that Mr. Andon was not in contempt of the August 16, 2002, order.

On March 26, 2003, plaintiffs filed a notice of joinder in a motion filed on March 17, 2002, in Davis which requests further proceedings in both of the these cases.  Chuuk did not respond to the motion in either case.  That motion proposes three ways for payment of the judgments in these two cases:  1) the court must simply order Chuuk to pay the judgment; 2) issue an order to show cause against the entire Chuuk legislature for failing to pay the judgment; or 3) hold the 6 F.S.M.C. 707 is unconstitutional, and direct the national government, by a writ of garnishment, to withhold money due to Chuuk and use that money to pay the judgment, fees, and costs in this case.

II.  Discussion

The court turns to each of the plaintiffs’ proposals seriatim.

A.  First option:  ordering Chuuk to pay the judgment

The disclaimers by both Mr. Sana and Mr. Andon that neither has authority even so far as the initial step of proposing a payment plan underscores the futility of ordering Chuuk to pay the judgment.  

[11 FSM Intrm. 540]

While it is true that § 7(g) of Chuuk State Law No. 6-02-09 provides that "[t]he Commission is precluded from paying any court ordered judgments [sic], unless specifically appropriated by law," it is equally the case that § 7(e)(iii) of that same law provides that "[t]he Commission shall, in a timely manner, develop in consultation with the Governor and Attorney General subsequent legislation for appropriation or other purposes for consideration by the Chuuk State Legislature to address specific future actions of the Commission in the following areas; . . . (iii) Court judgments" (emphasis added).  It will not suffice for Chuuk to say the CFCC does not have authority even to the extent of proposing a payment plan when § 7(e)(iii) mandates that very duty.  The fact that the CFCC has disclaimed this responsibility imparted under Chuuk State Law No. 6-02-09 is in material part a basis for the court’s ruling in this case today.  This disclaimer, together with the CFCC’s position taken in the August 23, 2002, affidavit that no judgment payments could be made in the absence of a legislative appropriation, brings this case full circle to the argument that this court rejected in Louis v. Kutta, 8 FSM Intrm. 208, 210-14 (Chk. 1998) over five years ago, when this court made it plain that principles of supremacy under the FSM Constitution preclude the argument that payment of a judgment based on civil rights claims against a state must await a legislative appropriation.

Ordering Chuuk to pay the judgment through taking the first step in that direction by proposing a payment plan has not proved a workable means of obtaining satisfaction of the judgment in this case.  The parlous state of Chuuk’s finances is more reason, not less, why it should have been forthcoming with a plan for payment of the judgment in this case.  Notwithstanding the representations to the contrary by Mr. Andon, there existed express statutory authority, i.e. Chuuk State Law No. 6-02-09, for making such a proposal.  Yet, Chuuk made no such proposal even when expressly ordered to do so.  Thus, the court rejects the plaintiffs’ first option.

B.  Second option:  issuance of an order to show cause why the entire Chuuk legislature should not be held in contempt

Plaintiffs urge that the court direct an order to show cause to the entire Chuuk state legislature requiring it to demonstrate why it should not be held in contempt for failing to pay the judgment in this case.  This court has previously declined such an approach.  It is not for this court to intrude in this manner into areas committed to the province of the Chuuk state legislature.  Davis v. Kutta, 10 FSM Intrm. 98, 99 (Chk. 2001).  See also People of Kapingamarangi v. Pohnpei Legislature, 3 FSM Intrm. 5, 10 (Pon. S. Ct. Tr. 1985) (holding that "a state legislature may not be compelled by mandamus to enact a law, even though the constitution expressly commands it").  Accordingly, the court declines to employ the second option.

C.  Third option:  an order of garnishment directed to the FSM national government requiring it to pay over to the plaintiffs the full judgment amount plus interest and costs

Plaintiffs’ third option is to issue an order of garnishment to the FSM national government and order it to pay over to the plaintiffs funds otherwise due to Chuuk sufficient to pay the judgment in this case.  In Louis v. Kutta, 8 FSM Intrm. at 214-15, this court had issued an order of garnishment directed to the national government to pay the judgment based on civil rights claims in that case.  The order directed the government to pay over money to the judgment creditor in that case that it would otherwise have paid to Chuuk.  The money was subsequently paid, and the judgment was satisfied.  Thereafter, Congress amended Title 6 of the FSM Code to add section 707, which provides in pertinent part that

[t]he National Government of the Federated States of Micronesia shall not be subject to writ of garnishment or other judicial process to apply funds or other assets owed by it to a State of the Federated States of Micronesia to satisfy an obligation of the State to a 

[11 FSM Intrm. 541]

third person.

Thus, in order to pursue the third option suggested by the plaintiffs, this court must find 6 F.S.M.C. 707 to be unconstitutional as it is applied to the facts of this case.

All statutes are presumed to be constitutional.  Chuuk v. Secretary of Finance, 8 FSM Intrm. 353, 374 (Pon. 1998).  If there is any other way of disposing of an issue other than on a constitutional ground, then the court should decide the issue in that manner.  See FSM v. Edwards, 3 FSM Intrm. 224, 230 (Pon. 1987).  Thus the court addresses the constitutionality of 6 F.S.M.C. 707 only with reluctance.  At the same time, the judgment in this case was rendered more than two years ago, and despite repeated orders of this court, Chuuk has paid nothing on the judgment.  Nor has it taken the first step in that direction in proposing a payment plan when required to do so both by order of this court and § 7(e)(iii) of Chuuk State Law No. 6-02-09.  Under these circumstances, the constitutionality of 6 F.S.M.C. 707 is called into question.

The court has set out the post-judgment history of this case at part I, supra.  This history speaks for itself, and in light of this history, the court concludes that the only reasonably effective means by which to obtain payment of the judgment in this case is through an order of garnishment directed to the national government.  Such an order proved effective in Louis.  There is no reason to think that such an order would be anything other than effective in the case at bar.  Thus the court finds that 6 F.S.M.C. 707 is unconstitutional to the extent that it precludes a garnishment order to pay the judgment in this case that was based in material part on civil rights claims under 11 F.S.M.C. 701 et seq.

This court could continue to issue further orders directed to Chuuk and the agents by which it must act.  The most obvious example at this juncture would be for the court to direct Mr. Andon and the CFCC to comply specifically with § 7(e)(iii) of Chuuk State Law No. 6-02-09 by "develop[ing] in consultation with the Governor and Attorney General subsequent legislation for appropriation or other purposes for consideration by the Chuuk State Legislature to address . . . [the] Court judgment[]" in this case, as that statutory provision requires.  Even then, however, that would only advance matters to the extent of putting the issue before the Chuuk legislature, and this court has made it plain that a civil rights judgment must not depend on legislative action for satisfaction.  Louis v. Kutta, 8 FSM Intrm. 208, 210-14 (Chk. 1998).  Under all of the circumstances, the court concludes that such a course would not be productive.

A finding that 6 F.S.M.C. 707 is unconstitutional to the extent that it prevents satisfaction of a judgment based on a violation of constitutional rights presents a significant issue that affects both how Chuuk handles its money, and how the financial relationship between the national government and Chuuk is managed.  At the same time, it bears emphasis that the court’s order today is limited to the facts before it, and applies only to a judgment against the state of Chuuk that is based on civil rights claims under the national civil rights statute, 11 F.S.M.C. 701 et seq., which confers a cause of action for violation of rights guaranteed by the FSM Constitution.  Article VIII, § 2 of the Chuuk Constitution provides that "[n]o public funds may be paid out of the treasury of the State of Chuuk except as prescribed by statute."  In the usual case payment of a money judgment against the state of Chuuk must abide a legislative appropriation.  However, a judgment for the violation of rights guaranteed by the FSM Constitution is a species apart.  If there is no meaningful remedy for such a violation, which means a judgment subject to satisfaction in a reasonably expeditious manner, then that right afforded constitutional protection is an illusion.  If that right is reduced to an illusion, then our Constitution itself is reduced to a "solemn mockery."  Cooper v. Aaron, 358 U.S. 1, 18, 78 S. Ct. 1401, 1410, 3 L. Ed. 2d 5, 17 (1958).  This state of affairs cannot be.

[11 FSM Intrm. 542]

Under 6 F.S.M.C. 1409, on motion for an order in aid of judgment, the court must determine both the question of the judgment debtor’s ability to pay and the fastest manner in which payment can reasonably be made.  The total of the judgment, attorney’s fees, and costs, and the supplemental attorney’s fees and costs awarded against Chuuk in the case at bar is $82,779.24.  The court takes judicial notice that this is less by at least an order of magnitude than the sums that Chuuk receives on a drawdown basis from the FSM.  Accordingly, the court finds that Chuuk has the ability to pay the instant judgment.  Further, based on the history of this case, the court finds that a garnishment order is the only means by which payment can reasonably be made.

Chuuk has many critical claims on its limited financial resources.  Today’s order gives priority to a judgment based in material part on a civil rights violation over other claims, since it requires payment of the judgment before Chuuk’s drawdown funds are paid to it.  However, a money judgment subject to satisfaction in a reasonably expeditious manner is the only redress that the law can afford the plaintiffs’ decedent for the violation of his constitutionally protected rights that occurred in this case.  Such a judgment stands as a vindication of those rights, and to the extent that the judgment in the case at bar must compete with other commitments made by Chuuk and other claims against Chuuk, it must ever occupy a position of first among equals as it relates to the most significant of those commitments and claims.

III.  Conclusion

Accordingly, the court finds that 6 F.S.M.C. 707 is unconstitutional as applied to the facts of this case.  A writ of garnishment issues herewith directing the FSM Secretary of Finance to pay from Chuuk’s current account with the FSM the amount sufficient to satisfy the outstanding balance of the judgment in this case, plus attorney’s fees, and costs.  Upon receipt of payment, the plaintiffs will file a satisfaction of judgment with the court.

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Footnotes:

1. The August 16, 2002, order is a single order that was double captioned with the captions of both this case and Davis.  The reference in the first paragraph of the order to "this case" refers to Davis, and not to the case at bar.  To date there has been no contempt order entered against Chuuk in the case at bar.