COURT'S OPINION

MARTIN G. YINUG, Associate Justice:

     On Tuesday, April 3, 2001, the court held a telephonic hearing on the plaintiff's order to show

[10 FSM Intrm. 127]

cause why Mr. Tiser Lippwe, as Acting Director of the Chuuk Treasury at relevant times prior to March 15, 2001, should not be held in contempt for his failure to obey the court's orders of November 7, 2000, and January 29, 2001, requiring payment of the judgment, attorney's fees, and accrued interest in this case. Mr. Lippwe was present and testified. Also appearing and testifying on plaintiff's behalf was Marietta Robert.

     At the hearing, neither the plaintiff Menry Davis ("Davis") nor the defendant state of Chuuk ("Chuuk") expressly classified this contempt proceeding as civil or criminal. However, this matter is now before the court pursuant to 6 F.S.M.C. 1412, which addresses the consequences of a judgment debtor's failure to comply with an order in aid of judgment, and provides that the debtor "may be adjudged in contempt as a civil matter." The distinction between civil and criminal contempt is that the former is prospective, while the latter is retrospective, which is to say that a civil contempt proceeding's purpose is to bring about compliance with an order or other issuance of the court, while criminal contempt's purpose is to punish for past wrongful conduct. 17 Am. Jur. 2d Contempt § 9 (1990). The court may not punish a contemnor for civil contempt where the contemnor lacks the ability, through no fault of his own, to comply with the order, or in other words, where the contemnor lacks the ability to purge the contempt. Hadley v. Bank of Hawaii, 7 FSM Intrm. 449, 452 (App. 1996); Hicks ex rel. Feiock v. Feiock, 485 U.S. 624, 637 n.9, 108 S. Ct. 1423, 1433 n.9, 99 L. Ed. 2d 721, 735 n.9 (1988).

     Mr. Lippwe testified that effective March 15, 2001, he was no longer the Acting Director of the Chuuk Treasury. He therefore no longer has the ability to purge the contempt by complying with the court's orders. Accordingly, he is not subject to punishment for civil contempt.

     Counsel for Davis urged at the hearing that Mr. Lippwe should be punished for his failure to pay the judgment in this case during the period when he was Acting Director of the Chuuk Treasury, and did have the ability to comply with the court's orders. Since this contention relies on past conduct, this was a request that the court find Mr. Lippwe in criminal contempt. Criminal contempt is not a specified remedy in 6 F.S.M.C. 1412. However, such a remedy is available to Davis under the general FSM contempt statute, 4 F.S.M.C. 119, which provides that the court may punish contempt of court, which is defined as "any intentional disobedience . . . to the court's lawful . . . order." The contempt specified in § 119(2) may be civil (subsection (a)) or criminal (subsection (b)), according to the nature of the remedy sought. An essential element of a criminal contempt is the subjective intent to defy the court's authority. 17 Am. Jur. 2d Contempt §§ 35-36 (1990).

     Mr. Lippwe unhesitantly testified that it was his opinion that the judgment in this case should be paid, and that he had participated in two attempts to have money appropriated by the Chuuk Legislature to pay the judgment. A legislative appropriation specifically earmarked to pay the judgment in this case was not necessary because as explained in the court's order and memorandum of July 13, 1998, the judgment is based on Chuuk's violation of the rights guaranteed FSM citizens by the FSM Constitution and by FSM statute, 11 F.S.M.C. 701. Nevertheless, his actions in attempting to achieve payment of the judgment indicate that he lacked the subjective intent necessary for criminal contempt. A criminal contemnor's intent "must be ascertained from all the acts, words, and circumstances surrounding the occurrence." 17 Am. Jur. 2d Contempt § 36 (1990). The court cannot, and therefore does not, find Mr. Lippwe in criminal contempt.

     While the motion for an order to show cause may have been rendered moot as to Mr. Lippwe, the issue of Chuuk's failure to comply with the prior court orders is very much alive. The present Acting Director of the Chuuk Treasury is Mr. Nakama Sana. He is ordered to take all necessary steps to pay the remaining balance of the judgment in this case, plus attorney's fees and statutory interest within 20 days of entry of this order. While there is nothing to prevent the Chuuk Legislature from

[10 FSM Intrm. 128]

making an appropriation to pay the judgment, the court emphasizes that the orders in this case directing payment, which are based on the Supremacy Clause of the FSM Constitution, supersede any requirement of the Chuuk Constitution or of the Chuuk Financial Management Act necessitating legislative appropriation prior to expenditure of Chuuk public funds. Mr. Sana will perform the purely ministerial act of issuing a check in full payment of the judgment in this case without regard to whether there has been a legislative appropriation for its payment. Gates v. Collier, 616 F.2d 1268, 1270 (5th Cir. 1980) (ordering State Treasurer to pay a judgment against the state based on the state's violation of national civil rights statute even though state law provided that a judgment could not be paid in the absence of a legislative appropriation). In doing so, Mr. Sana is ordered to use his best professional judgment as Acting Director of the Chuuk Treasury in determining from what accounts money will be drawn to pay the judgment at issue. If the judgment is not paid as ordered, plaintiff will notify the court and this matter will again be set for an OSC.

     As a final matter, the court notes that Mr. Lippwe testified that certain payments totaling more than $400,000 had recently been made on CIP ("capital improvement project") related judgments in which Chuuk is the judgment debtor. Out of that total, $1,000 had been paid on the judgment in this case. Mr. Lippwe testified that this was a mistake, because the judgment in this case is not CIP related. Whether specific funds are restricted for use for CIP related judgments does not enter into the matter, since based on the record there are sufficient nonrestricted funds available to Chuuk to pay the judgment. Mr. Sana will pay the judgment from such funds.

* * * *