FSM SUPREME COURT TRIAL DIVISION
Cite as Parkinson v. Island Dev. Co.
11 FSM Intrm. 451 (Yap 2003)

[11 FSM Intrm. 451]

DOUGLAS PARKINSON,
Plaintiff,

vs.

ISLAND DEVELOPMENT COMPANY, MICHAEL
HAUGE, and MERCY NABETNAG HAUGE,
Defendants.

CIVIL ACTION NO. 2002-3003

ORDER AND MEMORANDUM

Martin Yinug
Associate Justice

Decided:  March 28, 2003

APPEARANCES:

For the Plaintiff:	Douglas Parkinson, Esq., pro se
P.O. Box 1106
Koror, Palau PW 96940

[11 FSM Intrm. 452]

For the Movant:	Cyprian Manmaw, Esq.
(State of Yap)		Attorney General
Office of the Yap Attorney General
P.O. Box 435
Colonia, Yap FM 96943

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HEADNOTES

Constitutional Law - Interpretation; Statutes - Construction
Statutes are presumed constitutional until challenged, and the burden is on the challenger to clearly demonstrate that a statute is unconstitutional.  Parkinson v. Island Dev. Co., 11 FSM Intrm. 451, 453 (Yap 2003).

Constitutional Law - Interpretation
Unnecessary constitutional adjudication is to be avoided.  Parkinson v. Island Dev. Co., 11 FSM Intrm. 451, 453 (Yap 2003).

Attachment and Execution
The current practice that where a judgment creditor who holds a national court judgment wants national police officers to execute on the judgment, he must bear the transportation and per diem costs of bringing national police personnel to Yap to execute on the writ since Yap has no resident national law enforcement officer.  While this involves substantial up-front costs to the judgment creditor, those costs are recoverable from the judgment debtor under 6 F.S.M.C. 1408.  Parkinson v. Island Dev. Co., 11 FSM Intrm. 451, 453 (Yap 2003).

Attachment and Execution
The court is reluctant to opine on 6 F.S.M.C. 1408's constitutionality when the judgment creditor has an enforcement remedy, if not an ideal one, notwithstanding any constitutional adjudication which this court might render on the division of powers issue that Yap raised regarding a writ of execution directed to the Yap chief of police.  Parkinson v. Island Dev. Co., 11 FSM Intrm. 451, 453 (Yap 2003).

Attachment and Execution; Federalism
When the judgment creditor has an execution remedy apart from a writ of execution directed to the state police, the court is reluctant to unnecessarily consider the constitutional issue raised when doing so could be viewed in any light as hampering voluntary cooperation between state and national law enforcement as a matter of comity, an important concern given the geographical configuration of our country and the limited law enforcement resources of both the state and national governments.  Parkinson v. Island Dev. Co., 11 FSM Intrm. 451, 453 (Yap 2003).

Attachment and Execution
When the judgment creditor has made the necessary arrangements through the FSM Department of Justice to bring national police officers to Yap, he should so advise the court which will then issue the writ of execution designating the appropriate individuals.  Parkinson v. Island Dev. Co., 11 FSM Intrm. 451, 453-54 (Yap 2003).

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[11 FSM Intrm. 453]

COURT’S OPINION

MARTIN YINUG, Associate Justice:

After the close of business on Wednesday, March 26, 2003, the court received by fax the plaintiff’s response to the state of Yap’s motion to vacate the writ of execution in this case.  Good cause appearing, the court clerk is directed to file the faxed copy.

The court has reviewed all of the post-judgment submissions which have been filed in this case.  The court issued the January 22, 2003, writ of execution to the Yap chief of police or his designee based on the plain language of 6 F.S.M.C. 1407, which provides that "[e]very chief of police . . . receiving a writ of execution issued by any court . . . shall levy" on the writ.  In its February 14, 2003, filing the state of Yap has raised a constitutional division of powers issue.

Statutes are presumed constitutional until challenged, and the burden is on the challenger to clearly demonstrate that a statute is unconstitutional.  Wainit v. Weno, 7 FSM Intrm. 121, 123 (Chk. S. Ct. Tr. 1995); see also McDonald v. Board of Election Comm’rs, 394 U.S. 802, 809, 89 S. Ct. 1404, 1408, 22 L. Ed. 2d 739, 745 (1969) (holding that "[l]egislatures are presumed to have acted constitutionally even if source materials normally resorted to for ascertaining their grounds for action are otherwise silent").  Unnecessary constitutional adjudication is to be avoided.  Suldan v. FSM (II), 1 FSM Intrm. 339, 357 (Pon. 1983).  It is the current practice that where a judgment creditor who holds a national court judgment wants national police officers to execute on the judgment, he must bear the transportation and per diem costs of bringing national police personnel to Yap to execute on the writ since Yap has no resident national law enforcement officer.  While this involves substantial up-front costs to the judgment creditor, those costs are recoverable from the judgment debtor under 6 F.S.M.C. 1408.  Thus, the judgment creditor in this case has an enforcement remedy, if not an ideal one, notwithstanding any constitutional adjudication which this court might render on the division of powers issue that Yap raised regarding the January 22, 2003, writ of execution directed to the Yap chief of police.  This court is reluctant to opine on the constitutionality of 6 F.S.M.C. 1408 under these circumstances.

An additional consideration bears on the issue.  The state of Yap has challenged the writ because it is directed to the Yap chief of police and directs him or his designee to execute on a national court judgment.  But in addition to the language of 6 F.S.M.C. 1408 that gives rise to the issue Yap frames, that section also provides that a "person duly authorized receiving a writ of execution issued by any court, shall levy" on the writ.  This language is fairly read to contemplate delegation of law enforcement authority.  Delegation of this sort is not alien to national law; indeed, the reverse is the case.  Sections 1202 and 1203 of Title 12 of the FSM Code speak to the question of the delegation of law enforcement functions as between state and national law enforcement, and this is given specific expression in the Agreement for Joint Law Enforcement Between the National Government of the Federated States of Micronesia and the Government of Yap.  This court is reluctant to unnecessarily consider the constitutional issue that Yap raises where doing so could be viewed in any light as hampering voluntary cooperation between state and national law enforcement as a matter of comity, an important concern given the geographical configuration of our country and the limited law enforcement resources of both the state and national governments.

In sum, the judgment creditor in this case has an execution remedy available under 6 F.S.M.C. 1408 apart from the additional means of enforcement of that remedy conferred by this court’s January 22, 2003, writ of execution directed to the Yap chief of police.  Accordingly, and to avoid further adjudication on this issue and concomitant delay, the January 22, 2003, writ of execution is vacated.  When the judgment creditor has made the necessary arrangements through the FSM Department of 

[11 FSM Intrm. 454]

Justice to bring national police officers to Yap, he should so advise the court which will then issue the writ designating the appropriate individuals.

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