THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
TRIAL DIVISION
Cite as Louis v. Kutta ,
8 FSM Intrm. 228 (Chk. 1998)

[8 FSM Intrm. 228]

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

vs.

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

CIVIL ACTION NO. 1994-1023

ORDER AND MEMORANDUM

Martin Yinug
Associate Justice

Decided:  January 15, 1998

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

For the Movant:      Terence M. Brown, Esq.
      (FSM)         Assistant Attorney General
                   Office of the FSM Attorney General
                   P.O. Box PS-105
                   Palikir, Pohnpei FM 96941

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HEADNOTES
Constitutional Law
     A court should avoid unnecessary constitutional adjudication.  Louis v. Kutta, 8 FSM Intrm. 228, 229 (Chk. 1998).

Treaties
     Although the FSM Supreme Court has the power to interpret treaties, it should not do so if the issue may be decided on other grounds.  Louis v. Kutta, 8 FSM Intrm. 228, 229-30 (Chk. 1998).

Civil Procedure
     Under Civil Rule 70, the court may direct an act to be done at the cost of a disobedient party

[8 FSM Intrm. 229]

by some other person appointed by the court.  Louis v. Kutta, 8 FSM Intrm. 228, 230 (Chk. 1998).

Constitutional Law ) Due Process
     In order to assert due process, one must point to a property or liberty interest of one's own that is subject to due process.  Louis v. Kutta, 8 FSM Intrm. 228, 230 (Chk. 1998).

Constitutional Law ) Due Process ) Notice and Hearing
     Persons entitled to notice of a proceeding generally are those who are to be affected by a judgment or order therein and the requirement of notice applies only to those whose substantial interests are affected by the proceeding in question.  Louis v. Kutta, 8 FSM Intrm. 228, 230 (Chk. 1998).

Civil Procedure ) Joinder
     While Rule 70 provides that the court may "appoint" a third party to undertake specified actions on the behalf of defendants, when a non-party has indicated its desire to participate in the litigation in more than the administerial way contemplated by Rule 70, the better course may be to add the non-party formally as a party defendant pursuant to Rule 21, which provides for the addition of parties "at any stage of the action and on such terms as are just."  Louis v. Kutta, 8 FSM Intrm. 228, 230 (Chk. 1998).

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COURT'S OPINION
MARTIN YINUG, Associate Justice:
     The court is in receipt of the FSM's Request for Stay and Reconsideration of Court's Order of November 17, 1997, and has also received Plaintiff's Response to FSM'S Request for Stay and Reconsideration of Court's November 17, 1997 Order.  The FSM requests a stay of the order and asks leave to submit a brief addressing possible international treaty violations should it comply with the November 17, 1997, order.  The FSM also wishes to brief due process issues which the FSM associates with the fact that it had no prior notice of the order. Plaintiff has responded by citing Rule 62 of the FSM Rules of Civil Procedure to the effect that any stay should be predicated on the FSM's depositing with the court the judgment amount, plus interest, from any funds that it holds for the benefit of Chuuk.

     In its November 17, 1997, order, this court, looking to Rule 70 of the FSM Rules of Civil Procedure, directed the FSM to pay the plaintiff the sum of $150,00 from any funds which it holds for the benefit of the defendant Chuuk.  Louis v. Kutta, 8 FSM Intrm. 208 (Chk. 1997).  In urging that this order is potentially in violation of international treaty obligations, the FSM notes that "much of the money which the FSM Department of Finance transmits to its constituent states is money which is required by Treaty to go for certain purposes, such as capital improvement projects." (emphasis added).  Assuming for argument's sake that the FSM raises a valid point with respect to potential treaty violation, it is premature to reach this question.  The FSM has said that "much" of money held may be subject to international treaty.  If there are sufficient funds held by the FSM to satisfy the judgment that are not subject to treaty restrictions, the FSM will so indicate, and specify the approximate amount.  Also, if such funds will come under control of the FSM prospectively, the FSM will indicate as much, and will specify the approximate dollar amount.  The existence of funds within the control of the FSM not subject to treaty restrictions and which are sufficient to satisfy the judgment will obviate the need to address possible treaty violations.  A court should avoid unnecessary constitutional adjudication.  Suldan v. FSM (II), 1 FSM Intrm. 339 (Pon. 1983).  Similarly, although this court has the power to

[8 FSM Intrm. 230]

interpret treaties, In re Extradition of Jano, 6 FSM Intrm. 93 (App. 1993), it should not do so if the issue may be decided on other grounds.

     The FSM has also said at page 3 of its request for stay that "troubling issues of due process arise . . . when . . . [the FSM] . . . is not given an opportunity to be heard and was not brought within the jurisdiction of the Court by service or notice, prior to the issuance of the order."  The FSM was directed to pay the money pursuant to Rule 70, which provides that the court "direct" an act to be done "at the cost of the disobedient party by some other person appointed by the court." (emphasis added).  See also Gates v. Collier, 616 F.2d 1268 (5th Cir. 1980), on which this court relied in part in issuing its November 17, 1997, order. The court has proceeded on the assumption that the FSM is a stakeholder with respect to the money at issue.  At this post-judgment stage, it would seem that any FSM interest in funds it holds for the benefit of Chuuk is the administrative one of seeing that the funds are dispersed in accordance with law, with the FSM's position being that of a garnishee.  In order to assert due process, one must point to a property or liberty interest of one's own that is subject to due process. "Persons entitled to notice of a proceeding are, speaking generally, those who are to be affected by a judgment or order therein. . . .  [T]he requirement of notice applies only to those whose substantial interests are affected by the proceeding in question."  16A Am. Jur. 2d Constitutional Law 835 (1979).  The FSM will indicate the nature of its interest in any funds which it holds for the benefit of Chuuk, and will further indicate what specific process is due the FSM with respect to that money.

     The court did not make the FSM a formal party in its November 17th order, given that the language of Rule 70 of the FSM Rules of Civil Procedure provides that the court may "appoint" a third party to undertake specified actions on the behalf of defendants.  However, since the FSM has indicated its desire to participate in this litigation in more than the administerial way contemplated by Rule 70, the better course now is to add the FSM formally as a party defendant pursuant to Rule 21 of the FSM Rules of Civil Procedure which provides for the addition of parties "at any stage of the action and on such terms as are just."

     To summarize, on or before Friday, February 13, 1998, the FSM will file its brief in which it will advise the court whether it holds non-restricted funds payable to Chuuk, and if so the approximate dollar amount it holds.  The FSM will also advise of the approximate dollar amount, or a reasonable estimate, of non-restricted funds earmarked for Chuuk that will come into its possession during the course of 1998.  In its brief, the FSM will indicate the nature of its interest in the money owed to Chuuk, and the type of due process to which the FSM feels it is entitled with respect to the money it owes Chuuk.  The FSM will transmit copies of its brief by fax to plaintiff and defendants on or before February 13, 1998, and any responses are due on or before February 20, 1998.

     The FSM is added as a party defendant to this action, with the caption of this order and all subsequent filings to be amended accordingly.  The FSM's motion to stay the order is granted pending a final ruling on the FSM's motion for reconsideration.  The court, in its discretion, denies the FSM's request for oral argument at this time.  Given the specific facts of this case, the court declines to impose a bond requirement during the pendency of the FSM's motion for reconsideration.
 
     The FSM has requested a copy of all relevant pleadings and motions, as the court file in this matter is in Chuuk.  The court will cause to be delivered to the FSM Clerk of Court in Palikir on Monday, January 19, 1998, a copy of plaintiff's Motion for In-Aid [sic] of Judgment with Memorandum of Points and Authorities and all subsequent filings.  The FSM may obtain the copies from the clerk's office in Palikir at that time.
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