FSM 3 Intrm. 556-565

Truk Attorney General represents the government in legal actions and is given the statutory authority pursuant to TIS 5-32 to conduct and control the proceedings on behalf of the government and, in absence of explicit legislative or constitutional expression to the contrary, possesses complete dominion over litigation including power to settle the case in which he properly appears in the interest of the state. Truk v. Robi, 3 FSM Intrm. 556, 561-63 (Truk S. Ct. App. 1988).

Courts may not speculate as to the powers and duties of the office of the Attorney General, but must look to the wording of the relevant law, and further, may not speculate as to the probable intent of the legislature apart from the words. Truk v. Robi, 3 FSM Intrm. 556, 562 (Truk S. Ct. App. 1988).

The discretion vested in the office of the Attorney General to settle a civil action brought against Truk State is provided for by law, which does not require consent of the Governor before the Attorney General may settle a civil suit against Truk State. Truk v. Robi, 3 FSM Intrm. 556, 561-63 (Truk S. Ct. App. 1988).

A valid compromise and settlement is as final, conclusive and binding upon the parties and upon those who knowingly accept its benefit as if its terms were embodied in a judgment and, regardless of what the actual merits of the antecedent claim may have been, they will not afterward be inquired into and examined. Truk v. Robi, 3 FSM Intrm. 556, 564 (Truk S. Ct. App. 1988).

Judgment entered pursuant to compromise and settlement is treated as a judgment on the merits barring any other action for the same cause. Truk v. Robi, 3 FSM Intrm. 556, 564 (Truk S. Ct. App. 1988).

The action of a trial court in refusing to vacate a judgment will not be disturbed on appeal unless it clearly appears that the trial court has abused its discretion. Truk v. Robi, 3 FSM Intrm. 556, 564 (Truk S. Ct. App. 1988).

This case concerns the authority involved in the discretionary power vested in the office of the Truk State Attorney General to enter into a settlement of a civil action brought against Truk State without obtaining the consent of the Governor.

We conclude that Truk State Law does not specifically require the consent of the Governor in order for the office of the Attorney General to invoke their discretion to settle a civil action brought against Truk State.

This case began on December 10, 1985, by Plaintiff Mister S. Robi, filing a civil action through her trial counselor, Kawaichy Eseina, against Truk State and Truk State Hospital seeking monetary damages for the alleged negligence of Truk Hospital resulting in the wrongful death of their newborn infant.

The late Acting Attorney General, Fujita Peter, represented the State and denied the allegations as set forth in Plaintiff's complaint in his answer of January 22, 1986.

After an order for continuance by Court on May 30, 1986, a stipulation for payment was entered into on December 31, 1986, and filed in Truk State Court on January 5, 1987, between the counsel for the plaintiff and Fujita Peter, on behalf of the State of Truk.

The stipulation was made, subject to the Court's approval, to allow the Court to enter a judgment in favor of the plaintiff and against the Truk State in the amount of seventeen thousand dollars ($17,000.00), with interest to accrue at nine per cent per annum until paid. The stipulation contained the following statement: "by entering into this stipulation for payment, Defendant Truk State, is not admitting liability for the loss of the baby sued upon but rather is to be deemed as compromising a disputed claim."

On February 10, 1987, the trial court entered a judgment in favor of the plaintiff and against the defendant Truk State in the amount of seventeen thousand dollars, and ordered full payment within a period of three months and that nine per cent interest shall earn if payment is not received at the expiration of that time limit.

The February 10, 1987, court order requiring judgment to be paid by May 10, 1987 did not occur. On May 13, 1987, the plaintiff submitted an offer to satisfy the judgment. Plaintiff's offer entailed receiving half the amount of the judgment by May 21, 1987, and the remaining balance by November 20, 1987. Plaintiff offered to waive the interest if Truk State could abide by that payment schedule. On the same day of May 13, 1987, when plaintiff's offer was received, the then Acting Attorney General, Paul Ake, informed both the Governor and the Director of Truk Finance of that offer.

On May 28, 1987, plaintiff filed for a Show Cause hearing. The plaintiff prevailed on the Show Cause hearing, and on July 10, 1987, the trial court ordered Attorney General, Paul Ake, to comply with the terms of the January 13, 1987, stipulated payment. The Court also ordered Paul Ake to furnish verification indicating what procedure was utilized regarding notification to the State Finance Office in order to comply with the terms of the stipulated payment and judgment.

Ake's answer further indicated that his immediate predecessor charged with responsibility for the case, had been suspended from performing his duties in the Truk Office of the Attorney General. Prior to that occurrence, the original Acting Attorney General, Fujita Peter, died. Ake also indicated that his first knowledge of the case came to him by way of Mister S. Robi's offer on May 13, 1987, waiving the interest owed providing Truk State would agree to the terms of that payment schedule.

The plaintiff continued in her efforts to collect the judgment, and on August 10, 1987, requested a hearing to compel the State Director of Finance to testify regarding the non-payment of plaintiff's judgment.

On August 26, 1987, the court received testimony from the State Director of Finance that Truk State would have sufficient funds by the first week of October, 1987, to enable a partial payment to be made to the plaintiff. Based upon such testimony concerning the availability of funds, and the response as presented by the Attorney General, the Court issued an order on September 17, 1987, establishing a payment schedule. This order mandated Truk State, through the Director of Finance, to comply with a schedule of payment requiring $10,000.00 to be paid to plaintiff's counsel by October 31, 1987, and the remaining balance to be paid with interest by November 30, 1987. The order further indicated that failure to comply would be deemed contempt of Court.

On November 5, 1987, defendant's counsel, Acting Attorney General Mr. Jeanne Rayphand, (replacing Paul Ake), filed a motion to set aside the judgment, and a motion for a stay of proceedings to enforce the judgment pursuant to Truk State Rules of Civil Procedure 60 and 62(b). The essential basis for those motions was the contention that previous Attorneys General had no authority to stipulate to settlement of a civil action brought against Truk State without the consent of the Governor of Truk State.

On January 13, 1988, the trial judge denied those two motions. The basis for the denial included the reasoning that three previous Attorney Generals have been involved in the case and that the new legal theory presented by the fourth Attorney General was an insufficient basis to grant relief. In addition, the order stated that the testimony of the Director of Finance indicated that funds had been provided to satisfy the judgment, and included the trial court's belief defendant's motions were interposed for delay. The order concluded by stating that judgment of seventeen thousand dollars ($17,000.00), plus the nine per cent interest accruing from January 5, 1987, must be paid to the plaintiff, through her counsel, no later than January 15, 1988.

Defendant's application to the trial court for a stay of judgment pending appeal was denied on January 29, 1988. Also on the date of January 19, 1988 the trial court issued a Writ of Execution against Truk State requiring judgment to be paid in full to the plaintiff. On the same date, pursuant to Truk State Appellate Procedure Rule 8, Appellant sought this court's review for the denial of Appellant's trial court stay of judgment pending appeal, and of the trial court's order denying Defendant/Appellant's motion to set aside judgment, and of the motion for a stay of proceedings to enforce judgment dated January 13, 1988. On January 22, 1988, the Truk State Court Appellate Division heard this case.

The common element of those motions asserted by the Appellant is that the trial court erred by refusing to uphold the legal theory that a past Attorney General had no authority to stipulate to a settlement of a civil action brought against Truk State without the consent of the Governor.

It is settled doctrine that the power vested in the office of the Attorney General empowers settlement of litigation in which the Attorney General has supervision and control. Leonard v. United States Postal Service, 489 F.2d 814, 817 (1st Cir. 1974), citing cases establishing an Attorney General's power to settle.

The FSM Supreme Court decided the issue of whether discretionary authority vests in the Office of the Attorney General in Nix v. Ehmes, 1 FSM Intrm. 114 (Pon. 1982). The Nix case held that "a State Attorney is necessarily given wide discretion to determine whether to prosecute and this determination should be overruled only in the most extraordinary circumstances." Id. at 126. (Emphasis added).

Although Nix is a criminal case, the discretionary authority exercised by a State Attorney in that case is applicable to the case at bar. The discretionary doctrine vested in the Office of the Attorney General is well settled not only in the FSM but in the other jurisdictions as well:

It is well settled doctrine that the Attorney General, absent specific statutory provisions limiting his discretion, has the power conferred upon him to exercise his right of discretion in a large degree. As a rule, the character of the duties pertaining to the office are such as calls for exercise of personal judgment based upon the facts

and circumstances surrounding each particular question,and absent extraordinary circumstances, if he, in his discretion, declines to prosecute a criminal case or settle a civil action against the state, the courts will not assume jurisdiction to compel him to do so.

State of Kansas v. Finch, 280 P. 910; State v. Dawson, 119 P. 360, Ford v. Young, 170 P. 948; Ex parte Young, 209 U.S. 123, 28 S. Ct. 441, 52 L. Ed. 714 (explaining common-law duties attached to the office of the Attorney General); Nolan v. District Ct., 55 P. 916; Olsen v. Public Service Comm., 283 P.2d. 594, 20 A.L.R. 398; Arizona State Land Dep't v. McFate, 348 P.2d 912.

The discretionary power vested in the office of the Truk State Attorney General allows the authority to settle a civil action brought against Truk State.

Having established the discretionary power of the office of the Attorney General does not, however, end our inquiry. The remaining issue is the determination of whether or not Truk State law limits that discretionary power to specifically require the consent of the Governor prior to the office of the Attorney General settling a civil action against Truk State.

The discretion vested in the office of the Attorney General to settle a civil action brought against Truk State is provided for by law. The law does not limit that discretion by requiring the consent of the Governor before the Attorney General may settle a civil action against Truk State.

The duties of the Attorney General are enumerated in the Executive Branch Organization Act. of 1980, Truk State Law No. 3-25 Sections 15 and 26. Section 15 provides the general grant of authority: "The Office of the Attorney General shall provide legal services to the State Government, its agencies, instrumentalities and political subdivisions".

The Attorney General shall give all opinions and render all services requiring the skill of an attorney at law necessary to enable the Governor, heads of departments and offices, Chiefs of Divisions, and other officers of the State Government to discharge their respective duties, and shall on behalf of the State Government, procurethe proper evidence for, and conduct, prosecute or defend all suits and proceedings in which the State Governments, or any officer thereof, as such officer, is a party or may be interested.

Evident by reading TIS 3-25, Sec. 26, is the clear fact that the law prescribing the powers and duties of the Attorney General vests that office with the discretion to: "On behalf of the state government . . . (to) conduct;

The Attorney General represents the government in legal actions and is given the statutory authority pursuant to TIS 5-32 to conduct and control the proceedings on behalf of the government.

"The term 'represented' . . . means the same thing as 'on behalf of' . . . since to represent another in court means to conduct and control the proceedings on behalf of the other." State v. McCarthy, 282 P. 1045 (Mont. 1929).

Absent any specific statutory authority requiring the consent of the Governor be issued to the Attorney General prior to the settlement of a case, this court cannot extend such a legislative enactment when it is not provided for in the law.

"No intent may be imputed to the Legislature in the enactment of a law other than such as is supported by the face of the law itself." Denn v. Reid, 35 U.S. 524, 9 L. Ed. 519.

The decision making responsibility to settle a civil action without the consent of the Governor is set forth in statute and neither the Attorney General not his court may decide among themselves to reassign that decision making responsibility.

When Congress has passed a statute, executive branch and judiciary branch members may not decide among themselves to reassign the decision making responsibilities set forth in statute. Suldan v. FSM, 1 FSM Intrm. 201, 205 (Pon. 1982).

This Court cannot speculate as to the powers and duties of the office of the Attorney General but must look to the wording of the relevant law. The courts may not speculate as to the probable intent of the Legislature apart from the words." Tinkie v. State, 328 S.W.2d 111; Corp. and Taxn, 172 N.E. 643, 70 A.L.R. 1299.

The general rule is that nothing may be read into a statute which is not within the manifest intention of the Legislature as gathered from the act itself. Yu Cong v. Trinidad, 271 U.S. 463, 28 S. Ct. 141, 52 L. Ed. 297.

without the consent of the Governor of the State of Truk is without any persuasive legal basis. Such a contention is an overbroad reading of the relevant law giving greater effect than is required by the terms of the statute. "A statute should not be construed any more broadly or given any greater effect than its terms require." Huffman v. Oklahoma Coca-cola Bottling Co., 281 P.2d 436.

"In the absence of explicit legislative or constitutional expression to the contrary, the Attorney General possesses complete dominion over every litigation in which he properly appears in the interest of the state." State ex rel. Derryberry v. Kerr-McGee Corp., 516 P.2d 813.

The decision of the Attorney General to settle a civil action against the state of Truk without the consent of the Governor is given legislative sanction pursuant to TIS 3-25, Section 26. The settlement of a civil action brought against the Truk state without consent of the Governor is an allowable exercise of the discretionary power vested in the office of the Attorney General.

An issue raised by the Appellant in her trial court motions is that the contested settlement violated the Model Rules of Professional Conduct (MRPC). Appellant cited MRPC 1.2(a) which provides that "a lawyer shall abide by a client's decision whether to accept an offer of a settlement of a matter."

This is a general rule binding on all attorneys. However, the resulting obligations of government lawyers are not always subject to the same precise rules as are involved with private clients:

. . . [a] lawyer for a government agency may have authority on behalf of the government to decide upon settlement or whether to appeal from an adverse judgment. Such authority in various respects is generally vested in the Attorney General and the state's attorney in state government, and the same may be true of other government law officers.

The judgment of the trial court was entered pursuant to a valid stipulation agreed upon by both parties. This compromise and settlement bars any further right to recovery absent any extraordinary circumstances.

"The rule is that judgment entered pursuant to compromise and settlement bars any further action. (It) is treated as a judgment on the merits barring any other action for the same cause." State v. Young, 7 P.2d 216.

A valid compromise and settlement is final, conclusive, and binding upon the parties and upon those who knowingly accept its benefit. It is as binding as if its terms were embodied in a judgment; and regardless of what the actual merits of the antecedent claim may have been, they will not afterward be inquired into and examined. United States v. Child & Co., 79 U.S. 232; Aviation Corp. v. United States, 46 F. Supp. 491, cert. denied, 318 U.S. 771; Killer v. Wohletz, 101 P. 474 (emphasis added).

The stipulation entered into was a valid settlement. There has been no abuse of discretion in the trial court in refusing to vacate the judgment in the denial of the stay of judgment pending appeal.

The action of a trial court in refusing to vacate a judgment will not be disturbed on appeal unless it clearly appears that the trial court has abused its discretion. Kohlbeck v. Handle, 415 P.2d 483, 21 A.L.R.3d 1248; Parker v. Board of Commissioners, 102 P.2d 880.

Truk Rules of Civil Procedure 11 provides that a pleading signed by an attorney or trial counselor constitutes a certification by him "to the best of his knowledge, information and belief, that there is good ground to support it." (emphasis added).

There has not been a showing of any evidence indicating that there was no ground to support the stipulation entered into by the former Acting Attorney General and counsel for plaintiff Mister S. Robi.

The current Truk Attorney General is bound by the orders of the trial court entered against previous incumbents who have held the office of Attorney General.

The current office of Attorney General has inherited, for better or for worse, the final decrees issued in cases currently pending, held by her previous incumbents.

"Several changes of incumbents in the office of the Attorney General took place while the cases were proceeded in, but that did not deprive the court of jurisdiction. The successors in office were duly substituted, the

thus became subjected to the preliminary and final decrees of the court." Prout v. Starr, 188 U.S. 537, 23 S. Ct. 393 (1920). See also 7 C.J.S. § 1224.

We find the action of the trial court in refusing to vacate the judgment, and in the denial of a motion for stay of proceedings to enforce judgment, and in the denial of a stay of judgment pending appeal, was not an abuse of discretion.

The discretionary power vested in the office of the Truk State Attorney General allows the authority to settle a civil action brought against Truk State. The law does not limit that discretion by requiring the consent of the Governor before the Attorney General may settle a civil action against Truk State.