THE  SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
TRIAL DIVISION
Cite as Louis v. Kutta ,
8 FSM Intrm. 208 (Chk. 1997)

[8 FSM Intrm. 208]

SIKBERT LOUIS, as personal representative of
the estates of his sons Jeffrey and Jimmy Louis,
Plaintiff,

vs.

JIM KUTTA, HALVERSON NIMEISA, RESAUO
MARTIN, JOHNSON SILANDER and the
STATE OF CHUUK,
Defendants.

CIVIL ACTION NO. 1994-1023

ORDER IN AID OF JUDGMENT AND MEMORANDUM

Martin Yinug
Associate Justice

Decided:  November 17, 1997

APPEARANCES:
For the Plaintiff:            Frank Casiano, trial counselor
                 Midasy O. Aisek, Esq. (supervising attorney)
                 Micronesian Legal Services Corporation
                 P.O. Box D
                 Weno, Chuuk FM 96942

[8 FSM Intrm. 209]

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

*    *    *    *

HEADNOTES
Attachment and Execution; Constitutional Law ) Chuuk
     Under the Chuuk Constitution, statutory authorization is required as a predicate to expenditure of state funds, and the Chuuk state court does not have the power to issue an execution order against state property.  Louis v. Kutta, 8 FSM Intrm. 208, 210 (Chk. 1997).

Attachment and Execution
     Process to enforce payment of a money judgment is by writ of execution, in accordance with the practice and procedure of the state in which the court is held, except that an FSM statute governs to the extent it is applicable.  Louis v. Kutta, 8 FSM Intrm. 208, 210-11 (Chk. 1997).

Civil Rights
     Statute law confers a private cause of action for damages against any person who deprives another of his civil rights.  The word "person" embraces governmental organizations, including state governments.  Louis v. Kutta, 8 FSM Intrm. 208, 211 (Chk. 1997).

Constitutional Law ) Declaration of Rights
     The Declaration of Rights expresses ideals held sacred by all who cherish freedom and is the essential core of the FSM Constitution.  Louis v. Kutta, 8 FSM Intrm. 208, 212 (Chk. 1997).

Civil Rights; Federalism ) National/State Power
     State autonomy should be as wide-ranging as possible, but it is subject to the limits of the FSM Constitution.  A state may not exceed the scope of its power by reliance on a state constitutional provision where to do so prevents enforcement of national civil rights legislation. Louis v. Kutta, 8 FSM Intrm. 208, 212-13 (Chk. 1997).

Civil Rights; Constitutional Law ) Supremacy Clause; Federalism ) National/State Power
     The supremacy clause of the FSM Constitution does not admit a result where a state constitutional provision prevents the enforcement of a national statute which gives a private cause of action for rights guaranteed by the FSM Constitution, especially when it is the solemn obligation of state governments to uphold the principles of the FSM Constitution and to advance the principles of unity upon which the Constitution is founded.  Louis v. Kutta, 8 FSM Intrm. 208, 213 (Chk. 1997).

Attachment and Execution; Civil Rights
     A state may not use its own constitution to defeat enforcement of a judgment entered on a civil rights claim brought pursuant to the mandate of the national constitution and statutes.  Thus, a state constitutional provision will not prevent a civil rights plaintiff from using national execution procedures to obtain satisfaction of his judgment.  Louis v. Kutta, 8 FSM Intrm. 208, 213 (Chk. 1997).
*    *    *    *

[8 FSM Intrm. 210]

COURT'S OPINION
MARTIN YINUG, Associate Justice:
     For the reasons set out below, the FSM Department of Finance is directed to withhold the amount of $150,000 (plus interest at the statutory rate of nine percent from date of judgment entry in this case until date of payment) from any money it holds for the benefit of the state of Chuuk, or alternatively, from any money owed by the FSM to Chuuk, and to pay that sum directly to the plaintiff.  The payment is in satisfaction of the judgment entered in favor of plaintiff and against defendant in this matter on June 7, 1995.

MEMORANDUM
I.  Introduction and Issue
     Judgment was entered in plaintiff's favor and against the defendant on a complaint that alleged five counts, the first four of which sounded in tort.  Count V alleged a statutory civil rights violation in contravention of 11 F.S.M.C. 701 et seq. The judgment was entered pursuant to a Compromise and Settlement signed by counsel for plaintiff and counsel for Chuuk, dated May 23, 1995, and filed with the court on that date.  The agreement provides at paragraph three that the parties agree that plaintiff "is entitled to recover damages against the Defendants in tort and under the civil rights laws of the FSM and Chuuk State."  The agreement goes on to provide that "[i]t is agreed by and between the parties that Chuuk State shall pay to Plaintiff the sum of ONE HUNDRED FIFTY THOUSAND ($150,000.) DOLLARS, plus legal interest from the date of judgment until paid."

     Chuuk made no effort of record to satisfy the judgment.  Subsequently, plaintiff moved for an order in aid of judgment pursuant to Rule 69 of the FSM Rules of Civil Procedure, and requested, under 6 F.S.M.C. 1407, a writ of execution against personal property owned by Chuuk.  The court requested and received briefs from both parties on the extent to which Article VIII, 2 of the Chuuk Constitution; the Judiciary Act of 1990, Chk. S.L. 190-08, 4; and any other applicable law affect enforcement of a national court judgment for money against Chuuk state.

     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." Section 4 of the Judiciary Act provides that "[e]ach [state and municipal] court shall have power to issue all writs for equitable and legal relief, except the power of attachment, execution and garnishment of public property . . . ."  Under the Chuuk Constitution, statutory authorization is required as a predicate to the expenditure of state funds; and, a Chuuk state court does not have the power to issue an execution order against state property.  When these two provisions are read together, Chuuk is effectively judgment proof at least with respect to a Chuuk state court judgment unless the legislature specifically appropriates funding to pay the judgment.

     Rule 69 of the FSM Rules of Civil Procedure, by which plaintiff has moved for his order in aid of judgment, adds to this interplay between the Chuuk Constitution and state law.  That Rule provides in pertinent part that

[p]rocess to enforce a judgment for the payment of money shall be a writ of execution, unless the court directs otherwise.  The procedure on execution, in proceedings supplementary to and in aid of a judgment, and in proceedings on and in aid of execution shall be in accordance with the practice and procedure of the state in which the court is held, existing at the time the remedy is sought, except that any statute of the Federated

[8 FSM Intrm. 211]

      States of Micronesia governs to the extent that it is applicable.

The FSM has enacted a statute, codified at Title 6, Chapter 14 of the Federated States of Micronesia Code Annotated, which comprehends a variety of execution procedures, including, at 1407, writs of execution.  The issue presented by plaintiff's motion for order in aid of judgment stems from the Chuuk constitutional provision; the Chuuk statute; Rule 69; and 6 F.S.M.C. 1407:  can this court enter an order pursuant to FSM execution procedures which accomplishes satisfaction of the judgment against Chuuk in light of the fact that the Chuuk Constitution requires legislative approval of the expenditure of public funds?

II.  Discussion
     The starting point for analysis is that the judgment was entered upon a complaint which contained one count based upon an FSM civil rights statute.  The parties specifically agreed in their Compromise and Settlement that plaintiff was entitled to recover against Chuuk "under the civil rights laws of the FSM."  The complaint, at count five, alleged a violation of 11 F.S.M.C. 701, which provides in pertinent part as follows:

701.     Deprivation of rights.
(1)  Deprivation of rights.  A person commits an offense if he willfully, whether or not acting under color of law, deprives another of, or injures, oppresses, threatens, or intimidates another in the free exercise of enjoyment of, or because of his having so exercised any right, privilege, or immunity secured to him by the Constitution or laws of the Federated States of Micronesia . . . .

Section 701(3) of the same title goes on to provide as follows:

(3)  Civil liability.  A person who deprives another of any right or privilege protected under this Section shall be civilly liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, without regard to whether a criminal case has been brought or conviction obtained.  In an action brought under this Section, the court may award costs and reasonable attorney fees to the prevailing party.

Section 701(3) by its terms confers a private cause of action for damages against any "person" who deprives another of any right protected by the section.  The word "person" in 701(3) embraces governmental organizations, including state governments.  Plais v. Panuelo, 5 FSM Intrm. 179, 205 (Pon. 1991).  This statute applies to Chuuk, and Chuuk conceded its civil liability to plaintiff under the statute in the Compromise and Settlement.

      Chuuk's position as set out in its brief is that it is immune from any execution by plaintiff because 2, Article VIII of the Chuuk Constitution provides that "no public funds may be paid out of the treasury of the State of Chuuk except as prescribed by statute."  It argues that Chuuk does not own any personal property and that it holds all property in trust for the benefit of the people of Chuuk.  Chuuk urges at page 4 of its brief that "it is a cardinal rule of executions that the property of a state or municipality cannot be subject to execution unless the legislature expressly grants such power," citing 30 Am. Jur. 2d Executions 195.  These general principles do not address the specific issue here, which is whether Chuuk, in reliance upon a state constitutional provision, can claim insulation from the effect of a judgment entered against it pursuant to a national civil rights statute. This point turns on the question of supremacy.

[8 FSM Intrm. 212]

     The FSM Constitution contains a supremacy clause.  More precisely, it contains an entire supremacy article, which is Article II, entitled "Supremacy": "ARTICLE II  Supremacy  Section 1.  This Constitution is the expression of the sovereignty of the people and is the supreme law of the Federated States of Micronesia.  An act of the government in conflict with this Constitution is invalid to the extent of conflict."  Since no reported FSM case appears to address the question raised here, the court looks to the Constitution of the United States to establish a context.

     Article VI of the United States Constitution in pertinent part provides that "[t]his Constitution, and the Laws of the United States which shall be made in Pursuance thereof; . . . shall be the supreme Law of the Land; . . ." (emphasis added).  The difference between the supremacy clause of the United States Constitution and the supremacy article of the FSM Constitution is that the FSM supremacy provision provides that "[t]his Constitution . . . is the supreme law of the Federated States of Micronesia" while the United States Constitution provides that "[t]his Constitution and the Laws of the United States . . . shall be the supreme Law of the Land" (emphasis added).  If the FSM Constitution provided, as does the United States Constitution, that the FSM Constitution and the laws of the Federated States of Micronesia were the supreme law of the land, the issue here might be cast in more straightforward terms:  the FSM civil rights statute provides for certain penalties; the Chuuk state constitutional provision, if it is read to mean that Chuuk is not subject to national judgment execution proceedings, makes those penalties of no legal effect as to the defendant Chuuk, since it would prevent the enforcement of the national statute.  In such a hypothetical, the Chuuk constitutional provision would seem to be in direct conflict with the stated language of the FSM Constitution.  In the case at bar, though, the language "and national law" is not in the supremacy article of the FSM Constitution.  In the absence of such language, does the FSM civil rights statute control over the Chuuk state constitutional provision such that this court may compel compliance with its judgment rendered pursuant to that civil rights statute?

     The answer lies in the nature of the FSM statute at issue, and in the full implication of the language that is present in, as opposed to that which is absent from, the FSM Constitution.  11 F.S.M.C. 701(1) provides that "[a] person commits an offense if he . . . deprives another of . . . any right, privilege, or immunity secured to him by the Constitution . . . or laws of the Federated States of Micronesia . . . ."  The rights guaranteed by the Constitution are contained in Article IV, entitled "Declaration of Rights."  It is not overstating the matter to say that Article IV expresses ideals held sacred by all who cherish freedom.  It is, in this court's view, the essential core of our Constitution.  Congress subsequently enacted legislation that serves to guarantee those rights by imposing penalties on anyone who would deprive others of those essential rights.  The Chuuk constitutional provision, if given the effect that Chuuk urges this court to give it, would void these penalties by preventing their enforcement.  Such a result would manifestly defeat the purpose of the national law, the sole purpose of which is to guarantee fundamental rights secured to all FSM citizens by the FSM Constitution.  To that extent, to permit the state of Chuuk to avoid execution of the judgment by reliance on the state constitutional provision would violate the Supremacy Article of the Constitution of the Federated States of Micronesia.

     Chief Justice King wrote in Etpison v. Perman, 1 FSM Intrm. 405, 428 (Pon. 1984) as follows:

While the Constitution is the supreme law of the land and this court may under no circumstances acquiesce in unconstitutional government action, Suldan v. FSM (II), supra at 342-43, the Court also should avoid interceding unnecessarily in the exercise of state powers.  States should be given a full opportunity to exercise their legitimate powers in a manner consistent with the commands of the Constitution.

Surely state autonomy should be as wide-ranging as possible.  It is equally true that state autonomy

[8 FSM Intrm. 213]

is subject to the limits of the FSM Constitution.  A state may not exceed the scope of its power by reliance on a state constitutional provision where to do so prevents enforcement of national civil rights legislation.

     This result flows from the intent of the framers of the Constitution.  SCREP (Standing Committee Report) No. 16 of the Committee on General Provisions, dated September 27, 1975 (found at page 784 of Volume II of the Journal of the Micronesian Constitutional Convention of 1975) and entitled "Re:  Supremacy of the Constitution and Sovereignty of the Micronesian People" provides in pertinent part as follows:

The intent and purpose of this proposal is to provide in the Micronesian Constitution a clear expression of the sovereignty of the Micronesian people and State.  It provides that the Constitution shall be the supreme law of Micronesia, meaning that no other document, law, or treaty shall be given legal effect greater than the Constitution.  Laws enacted by the national legislature or passed by district legislative bodies and ordinances promulgated on a local level must be in conformance with this Constitution.

If this court were to say that the Chuuk state constitutional provision prevents enforcement of a national statute which gives a private cause of action for violation of rights guaranteed by the FSM Constitution, then such an interpretation would have the net, ultimate effect of giving greater legal effect to the Chuuk Constitution than to the FSM Constitution.  It would say to a state that it is free to violate rights with impunity which the FSM Constitution purports to guarantee, and which have been the subject of specific national legislation.  The Supremacy Article of the Constitution of the Federated States of Micronesia does not admit of such a result.  This is all the more the case since Chuuk itself has undertaken a positive duty to advance the principles of the FSM Constitution.  Article XIII of the FSM Constitution, entitled "General Provisions", provides at Section 3 as follows: "Section 3.  It is the solemn obligation of the national and state governments to uphold the provisions of this Constitution and to advance the principles of unity upon which this Constitution is founded."  (emphasis added).  The court does not view this as empty language.  Chuuk is committed to furthering the organic, on-going process of national unity for which the Constitution is the foundation.  To allow Chuuk to exclude itself from enforcement of a national civil rights statute does not uphold, but undercuts, essential, core provisions of the Constitution on which the civil rights statute is based.  It does not advance, but weakens, principles of unity to say effectively that the national civil rights statute, in its practical working out, does not apply to the state of Chuuk.

     No reported FSM case deals with the issue at hand, where a state seeks to avoid enforcement of national court judgment based on a national civil rights statute.  However, plaintiff has cited a pertinent United States case, Gates v. Collier, 616 F.2d 1268 (5th Cir. 1980) which is factually similar to the case at bar in two important respects:  it deals with a judgment for attorneys' fees pursuant to a U.S. federal civil rights statute, 42 U.S.C.A. 1988, and, as here, the defendant state of Mississippi relied on a state statute that prohibited satisfaction of any judgment against the state "`except by an appropriation therefor by the legislature.'"  616 F.2d at 1270.  As framed in colloquial terms by the court, the state of Mississippi's position was "you can order us to pay, but you can't make us pay if we don't want to."  616 F.2d at 1271.  The Mississippi statute is the equivalent of Article 2 of the Chuuk state constitution, which provides that "[n]o public funds may be paid out of the treasury of the State of Chuuk except as prescribed by statute."  The court, in finding that the district court properly ordered the state auditor and treasurer to submit a requisition to the auditor for a warrant to pay the judgment, offered the following analysis:

We recognize that our discussion thus far does not directly address the defendants' argument that they cannot be required to violate the laws of Mississippi.  The

[8 FSM Intrm. 214]

defendants misconceive the issue.  As Judge Rubin of this Court, sitting by designation in Gary W. v. State of Louisiana, 441 F.Supp. 1121 (E.D.La. 1977), responded when recently confronted with the identical argument:  "The issue here is not one of judicial confrontation with the state.  It is one of implementation of a Congressional mandate."  Id. at 1125 (emphasis added). The italicized words provide the key.  Congress has declared that states and their officials who violate federal civil rights laws must reimburse the successful plaintiff for costs incurred in seeking redress.  To strike down the order in this case because it conflicts with the laws of Mississippi would be no different than reversing a bare judgment for attorneys' fees.  . . . .  Such a result would be contrary to the command of the Supremacy Clause of the United States Constitution.

616 F.2d at 1272 (emphasis added in original).

     The phrase "implementation of a Congressional mandate" is resonant here, where the FSM Congress has passed a statute which allows one deprived of constitutional rights guaranteed by the plain language of Article IV of the FSM Constitution to recover damages for deprivation of those rights.  For Chuuk to say, like the defendants in Gates, that the court can order the state to pay a judgment for violation of those rights, but can't make it pay if it doesn't want to, allows the state of Chuuk to defeat this mandate of the FSM Congress, which directly and unambiguously reflects the FSM Constitution.  The guarantee of rights here is not only a Congressional mandate ) it is a Constitutional mandate as well, and Chuuk may not use its own constitution to defeat enforcement of a judgment entered on a claim brought pursuant to a federal civil rights statute.  Thus, the Chuuk state constitutional provision does not prevent plaintiff from using federal execution procedures to obtain satisfaction of his judgment.

III.  Conclusion
     Plaintiff moved the court for a writ of execution pursuant to Rule 69 of the FSM Rules of Civil Procedure and 6 F.S.M.C. 1407.  The court has determined that plaintiff may use these procedures to obtain payment of his judgment.  However, a writ of execution with respect to personal property wherever found may in all likelihood lead to a piecemeal seizure of property owned by Chuuk.  Such a result has the potential to interfere with state government operation in a way disproportionately great when compared to the amount of the judgment.  The court therefore looks to the approach taken by the court in Gates, supra.  The court in Gates noted that

[T]he Federal Rules of Civil Procedure contains a provision for the execution of district court judgments, Fed. R. Civ. P. 69, and a provision authorizing the court to appoint an individual to do any act on behalf of a party who has refused to comply with the judgment himself, Fed. R. Civ. P. 70.  . . .  In addition, "[a] federal court's interest in orderly, expeditious proceedings" justifies any reasonable action taken by the court to secure compliance with its orders.

616 F.2d at 1271 (citation omitted).  Rule 70 of the FSM Rules of Civil Procedure contains language identical to that noted above.  In Gates, the court looked to Rule 70 to order the Mississippi state treasurer to issue a warrant ) effectively, to cut a check ) for payment of the judgment.

     A one-time payment of the full sum owed seems the most reasonable, and ultimately least disruptive, approach to satisfaction of the instant judgment.  To this end, the FSM Secretary of Finance is directed to pay plaintiff the sum of $150,000 (plus statutory interest at the rate of nine percent from June 7, 1995 until the date of payment) out of any funds from whatever source and for any purpose which are now held by the Department of Finance for the benefit of the state of Chuuk.  Alternatively,

[8 FSM Intrm. 215]

the Department of Finance will pay the amount owed to plaintiff from any money which the FSM owes to Chuuk.  In the event that the Department of Finance now holds no funds for the benefit of Chuuk, or in the event that the FSM owes no money to Chuuk as of the date on which the Secretary of Finance receives a copy of this order, the Secretary shall pay the judgment from the first funds which come into the possession of the Department of Finance which otherwise, in the absence of this order, would be paid over to Chuuk, or held for the benefit of Chuuk.  The plaintiff will notify the court immediately upon receipt of payment of the judgment, and will file a satisfaction of judgment.
                                                                                                                                                                                                                                                                                                           
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