8 FSM Intrm. 312-323

THE SUPREME COURT OF THE

FEDERATED STATES OF MICRONESIA

Cite as Louis v. Kutta ,

8 FSM Intrm 312 (Chk. 1998)

[8 FSM Intrm. 312]

SIKBERT LOUIS, as personal representative of the

estates of his sons Jeffrey and Jimmy Louis, deceased,

JIM KUTTA, HALVERSON NIMEISA, RESAUO MARTIN,

JOHNSON SILANDER and the STATE OF CHUUK,

THE FEDERATED STATES OF MICRONESIA,

Garnishee/Defendant.

CIVIL ACTION NO. 1994-1023

AMENDED ORDER AND MEMORANDUM OF DECISION

Argued: May 15, 1998

Ordered: July 3, 1998

Entered: July 6, 1998

Midasy O. Aisek, Esq. (supervising attorney)

Micronesian Legal Services Corporation

Weno, Chuuk FM 96942

For the Defendants: Joses Gallen, Esq.

Assistant Attorney General

Office of the Chuuk Attorney General

Weno, Chuuk FM 96942

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Assistant Attorney General

FSM Department of Justice

Palikir, Pohnpei FM 96941

Attachment and Execution

FSM Civil Rule 70 provides for five different remedies, one of which is a writ of attachment. Garnishment exists in the FSM through judicial interpretation of the FSM attachment statute, 6 F.S.M.C. 1405(2), and because attachment is an available remedy under Rule 70, it follows that garnishment is also. Louis v. Kutta, 8 FSM Intrm. 312, 314 n.1 (Chk. 1998).

Attachment and Execution

The statute authorizing issuance of an order in aid of judgment, 6 F.S.M.C. 1409, presents two issues: the debtor's ability to pay, and the most expeditious way that payment can be accomplished. Louis v. Kutta, 8 FSM Intrm. 312, 316 (Chk. 1998).

The FSM civil rights law is intended to provide an effective remedy to FSM citizens when their constitutional rights are violated. A fundamental role of government, be it state or national, is to safeguard those rights. Louis v. Kutta, 8 FSM Intrm. 312, 317 (Chk. 1998).

When a state government, acting by its agents, steps out of its role of protector of a citizen's constitutional rights, and violates the very rights it is meant to guard, a money judgment is the only practical means by which the state can compensate its citizens for the damage it inflicts. Louis v. Kutta, 8 FSM Intrm. 312, 317 (Chk. 1998).

Attachment and Execution; Courts

A court has an interest in insuring that its orders are heeded, and this interest exists apart from any interest the parties may have in the litigation. A court may take whatever reasonable steps are appropriate to insure compliance with its orders. It need not rely on the parties themselves to prescribe the way in which its orders will be carried out, or its judgments executed. Louis v. Kutta, 8 FSM Intrm. 312, 318 (Chk. 1998).

Attachment and Execution

By statute, a court has wide latitude in crafting an order in aid of judgment and may even modify the order on its own motion. Louis v. Kutta, 8 FSM Intrm. 312, 319 (Chk. 1998).

Attachment and Execution

Garnishment exists as a remedy available in the FSM to a judgment creditor. Louis v. Kutta, 8 FSM Intrm. 312, 319 (Chk. 1998).

Sovereign Immunity

The purpose of 6 F.S.M.C. 701 et seq. is to permit and define certain specific causes of action against the FSM. The statute creates specified causes of action, not sovereign immunity. Louis v. Kutta, 8 FSM Intrm. 312, 321 n.6 (Chk. 1998).

[8 FSM Intrm. 314]

Attachment and Execution; Sovereign Immunity

Creation of a doctrine of sovereign immunity of the FSM from garnishment should be left to the specific, unambiguous, and explicit action of Congress. The court will not create such a doctrine by judicial action. Louis v. Kutta, 8 FSM Intrm. 312, 321 (Chk. 1998).

Attachment and Execution

Hypothetical administrative difficulties do not justify holding that garnishment does not apply to the national government. Louis v. Kutta, 8 FSM Intrm. 312, 321 (Chk. 1998).

Attachment and Execution

FSM Civil Rule 69 expressly authorizes the court to issue process other than a writ of execution in the course of enforcing a judgment. Louis v. Kutta, 8 FSM Intrm. 312, 322 (Chk. 1998).

Attachment and Execution

The provision that money judgments against the FSM shall be paid from funds appropriated by Congress is not implicated when the FSM is a mere garnishee because garnishment is directed toward the property of the judgment debtor held by the FSM, not toward property of the FSM itself. Louis v. Kutta, 8 FSM Intrm. 312, 322 (Chk. 1998).

MARTIN YINUG, Associate Justice:

For the reasons set forth in the accompanying memorandum, upon receipt of this order the FSM, in its capacity as garnishee and acting by its Secretary of Finance Mr. John Ehsa, will pay to the plaintiff the sum of $150,000. Pursuant to this court's order of November 17th, 1998, the FSM had previously withheld this amount from funds that it otherwise would have paid to defendant Chuuk. Taking into account the two payments made to date by Chuuk ($7,000 on December 1, 1997, and $800 on March 11, 1998), as well as accrued interest pursuant to 6 F.S.M.C. 1401 at nine percent per annum, the total amount of the judgment plus interest to date is $183,250.07. Subtracting the $150,000 previously withheld leaves a remaining amount owing as of today's date of $33,250.07. The FSM, as garnishee, will pay this remaining sum, plus interest at nine percent per annum for each day after the date of this order until paid. The $33,250.07, and any accrued interest, will be paid from funds in the Chuuk State current account. Upon receipt of payment in full, plaintiff will file a notice of satisfaction of judgment with the court.

On May 15, 1998, the court held a hearing on plaintiff's motion for order in aid of judgment. The court had previously entered judgment in plaintiff's favor against defendant Chuuk in the amount of $150,000 on June 7, 1995. The judgment was entered pursuant to a Compromise and Settlement which the parties entered into on the third day of the trial. The Compromise and Settlement, filed with the court on May 23, 1995, provides at paragraph 5 that "Chuuk State shall pay to Plaintiff the sum of ONE HUNDRED FIFTY THOUSAND ($150,000.), plus legal interest from date of judgment until paid."

The complaint contained five counts, including one count alleging violation of the civil rights of Jimmy and Jeffrey Louis pursuant to 11 F.S.M.C. 701. The factual allegations of the complaint were

[8 FSM Intrm. 315]

that on April 17, 1992, defendant Chuuk state police officers fired into an unarmed crowd, fatally wounding one of the plaintiff's sons, Jimmy Louis, and injuring another son, Jeffrey Louis, who, according to the complaint, suffered emotional distress from the time of the incident until he subsequently committed suicide.

Chuuk paid nothing on the judgment, and in September of 1996, the plaintiff filed his motion for an order in aid of judgment, which Chuuk did not oppose. The court then asked the parties, by order dated December 16, 1996, to submit briefs on "the effect of Article VIII, § 2 of the Chuuk Constitution, the Judiciary Act of 1990, Chuuk S.L. 190-08, § 4, any other applicable law, and the practice of the FSM Supreme Court, Trial Division, Chuuk State, on enforcing a judgment for money against Chuuk State." The Chuuk Constitution provides that no public funds may be expended absent legislative approval, while the Judiciary Act provides that a Chuuk state court may not levy, either by execution or garnishment, against state property. After receiving and considering the briefs, the court issued an order in aid of judgment entered November 17, 1997, which directed the FSM Secretary of Finance to withhold from funds it owes to Chuuk the full amount of the judgment plus interest, and to pay the total amount to plaintiff, the judgment creditor. See Louis v. Kutta, 8 FSM Intrm. 208 (Chk. 1997). The court based its ruling on principles of supremacy, holding that neither the Chuuk Constitution nor the Judiciary Act prevented this court from ordering the FSM Secretary of Finance to pay the judgment amount from funds that it holds for the benefit of Chuuk, where the underlying judgment is based on the violation of the national civil rights statute.1

Chuuk itself did not oppose the court's order of November 17, 1997.2 The FSM, however, while it set aside from the Chuuk State current account on December 19, 1997, the judgment principal amount of $150,000, filed extensive pleadings in response to the court's November 17th order and the court's subsequent order of January 15th, 1998, urging that the judgment should not be paid from funds that the FSM holds for the benefit of Chuuk. The FSM's filings are:

1) Request for Stay and Reconsideration of Court's Order of November 14, 1997;

2) FSM's Reply to Plaintiff's Response to Request for Stay and Reconsideration;

3) FSM's Brief in Support of Reconsideration of the Court's Order Naming the FSM as a Garnishee; and

4) Defendant FSM's Reply to Plaintiff's Opposition Brief.

The court granted the FSM's request to stay the November 17th, 1997, order pending a ruling

[8 FSM Intrm. 316]

on the FSM's motion for reconsideration. No hearing had previously been held on plaintiff's motion for order in aid of judgment. The court held an evidentiary hearing on the motion on May 15, 1998, at which Sikbert Louis, Chuuk, and the FSM were represented by counsel. Plaintiff and Presenta Sablan-Shirai, the Chuuk Directress of Treasury, appeared and testified.

6 F.S.M.C. 1409 provides that in issuing an order in aid of judgment, the court shall consider the "debtor's ability to pay and determine the fastest manner in which the debtor can reasonably pay a judgment based on the finding." The statute presents two issues: ability to pay, and the most expeditious way that payment can be accomplished.

A. Chuuk's ability to pay

Ms. Sablan-Shirai, Directress of Treasury, testified that there are approximately 160 outstanding judgments against Chuuk which total approximately 16 million dollars. Chuuk has an investment fund of approximately 30 million dollars, the principal of which cannot be invaded without the permission of the other states. From December of 1997 to date, income from this fund has been used to make payments on judgments. Approximately half a million dollars have been paid on judgments thus far. As recently as of April of 1998, one judgment in the amount of $44,000 was paid in its entirety. In the instant case, income from the investment fund has been used to make two payments, one of $7,000 and one of $800. Ms. Sablan-Shirai testified that Chuuk receives a monthly drawdown of money from the FSM, and that these funds are earmarked for specific expenditures before the money is paid over to Chuuk. In recent months, the amount of the drawdown has been approximately $1.5 million. Ms. Sablan-Shirai testified that she felt she must have legislative approval before disbursing any money. She emphasized that it is the legislature which decides how funds are to be expended, and not herself, as Directress of the Treasury. Once funds are earmarked for specified expenditures, they cannot be used for other purposes unless reappropriated or reprogrammed by the legislature.

Based on the testimony adduced at the hearing, the court determines that Chuuk has the ability to pay the instant judgment. The question then becomes the fastest manner to effect payment of the outstanding judgment amount, which as of July 3, 1998, is $183,250.07.3

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B. The fastest manner to effect payment

The plaintiff testified about his expectations relative to the judgment, and about unsuccessful efforts to secure satisfaction of the judgment. Mr. Louis, now 65 years old and speaking in Chuukese with translation, testified briefly that although he felt he had claims of half a million dollars against Chuuk for the loss of each of his sons, he had accepted the $150,000 in settlement because he had been advised by counsel that he did not stand a realistic chance of being paid the claims if he obtained a judgment in a greater amount. It was his belief at the time he accepted the settlement that payment would be made forthwith. He testified that he himself had contacted former Governor Marcelino Umwech about getting his judgment paid. According to Mr. Louis, his counsel also had written to both the president and vice-president of the state senate about the matter, but had obtained no response. Mr. Louis said that he had personally met with former Chuuk attorney general Wesley Simina, who told him that nothing could be done in the absence of legislative action.

After reviewing the extensive pleadings filed by the FSM and the pleadings filed in response thereto by the plaintiff; after hearing the testimony of plaintiff and the Chuuk Directress of Treasury, who were examined by the plaintiff and cross-examined by counsel for Chuuk and the FSM at the hearing held on May 15, 1998; and after listening to the arguments presented by counsel at the hearing, the court remains convinced that the fastest way to effect payment of the judgment is a one-time payment of the total amount owed via a garnishment of funds held by the FSM for the benefit of Chuuk. The FSM has previously set aside the sum of $150,000. The FSM will pay over to the plaintiff this sum, plus the additional sum of $33,250.07, which is the amount due including judgment interest pursuant to 6 F.S.M.C. 1401 as of the date of this order. In addition, interest will accrue at the rate of nine percent per annum for every day after this order that the judgment remains unpaid.

The judgment in this case, as well as that in the companion case, Davis v. Kutta, 7 FSM Intrm. 536 (Chk. 1996), is based on conduct in violation of our nation civil rights statute, 11 F.S.M.C. 701 et seq. The Compromise and Settlement signed by Chuuk's Attorney General on behalf of Chuuk specifically acknowledges that plaintiff is entitled to "recover damages against the Defendant [Chuuk] . . . under the civil rights laws of the FSM." The FSM civil rights law is intended to provide an effective remedy to FSM citizens when their Constitutional rights are violated. A fundamental role of government, whether it be state or national, is to safeguard those rights. Article XIII, section 3, of the Constitution provides that "[i]t is the solemn obligation of the . . . state governments to uphold the provisions of this Constitution." When a state government, acting by its agents, steps out of its role of protector of those rights, and violates the very rights it is meant to guard, a money judgment is the only practical means by which the state can compensate its citizens for the damage it inflicts. In this case, according to the complaint upon which the Compromise and Settlement was based, the state directly caused the death of one of its citizens, and caused injury to another, who later committed suicide. A judgment of this sort ) quite apart from the fact that this court has made the specific determination that Chuuk has the ability to pay the judgment ) is entitled, along with the judgment in the Menry Davis companion case, both of which stem from the same events, to the highest priority relative to the spectrum of important uses to which Chuuk state funds are put, and this includes, to this court's mind, other judgments. This court has previously ruled, by its order entered November 17, 1997, that supremacy considerations preclude Chuuk from relying on either Article VIII, § 2, of the Chuuk Constitution, or section 4 of the Chuuk Judiciary Act of 1990 (Chk. S.L. 190-08), in urging that payment of the instant judgment must hinge on legislative action.4 Chuuk paid nothing on the

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judgment for two and a half years after it was entered. The time has come for Chuuk to discharge this obligation in full.

C. The issues raised by the FSM

As previously noted, with the exception of the summary notice of joinder tendered to the court at the May 15, 1998, hearing, Chuuk itself did not object to the court's November 17, 1997, order. The FSM as garnishee did object, and raised a number of issues, four of which merit discussion here. The FSM argues that by affording relief not specifically requested by the plaintiff in its November 17, 1997, order, the court took on the role of advocate, and was not acting as an impartial trier of fact. The FSM further contends that garnishment does not exist as a remedy in the FSM Supreme Court; that the FSM is immune from garnishment under principles of sovereign immunity; and that concerns of efficient administration dictate that the FSM not become involved in debt collection matters involving Chuuk. The court considers each in turn.

1. The court not impartial because it afforded relief not requested by plaintiff

Beyond offering a general formulation that "[d]ue process requires, at a minimum, notice, an opportunity to respond, and an impartial trier of fact," FSM's Brief at 14 (Feb. 18, 1998), the FSM cites no authority to support its contention that when the court in its order in aid of judgment entered November 17, 1997, afforded relief under Rule 70 ) instead of execution against personal property as plaintiff had requested in its motion for order in aid of judgment ) the court "acted more as an advocate, than as a detached and impartial trier of fact." Id. In its November 17, 1997, order, the court relied in part on Gates v. Collier, 616 F.2d 1268 (5th Cir. 1980). The Gates court noted that "`[a] federal court's interest in orderly, expeditious proceedings,' Hutto v. Finney, 437 U.S. at 696, 98 S.Ct. at 2577, justifies any reasonable action taken by the court to secure compliance with its orders." Gates, 616 F.2d at 1271. Further, the court observed that "where a state expresses its unwillingness to comply with a valid judgment of a federal district court, the court may use any of the weapons generally at its disposal to ensure compliance." Id.

A court has an interest in insuring that its orders are heeded, and this interest exists apart from any interest the parties may have in the litigation. Let it be plain that this court may take whatever reasonable steps are appropriate ) to employ, in the forceful language employed by the Gates court, "any of the weapons generally at its disposal" ) to insure compliance with its orders. A court need not be reliant on the parties themselves to prescribe the way in which its orders will be carried out, or its judgments executed. By Compromise and Settlement dated May 23, 1995, the defendant agreed to entry of judgment against it in the amount of $150,000. Plaintiff did not file his motion for order in aid of judgment until September 11, 1996, over a year and three months later. Chuuk made no payment on the judgment during that period; indeed, the first payment that Chuuk made was after this court's November 17, 1997, order when on December 1, 1998, Chuuk made a payment on the judgment in the amount of $7,000. Beyond the notice of joinder tendered to the court at the May 15, 1998, hearing, Chuuk itself did not object to this court's order directing the FSM to pay over to the judgment creditor money that the FSM is otherwise obligated under law to pay Chuuk in order that this judgment be paid in full; rather, it is the FSM which alleges that the court has taken on the role of the advocate. For the FSM to assail the impartiality of this court because it has chosen a way of enforcing a judgment against Chuuk with which the FSM takes issue is to urge a dubious postulate indeed.

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The dubiousness of such a hypothesis is underscored by the language of 6 F.S.M.C. 1410(2), which is one of six sections, beginning with section 1409 and continuing through § 1414, which address orders in aid of judgment. Section 1410(2) provides that an order in aid of judgment

may provide for the transfer of particular assets at a price determined by the court, or for the sale of particular assets and payment of the net proceeds to the creditor, or for payments, in specified installments on particular dates or at specified intervals, or for any other method of payment which the court deems just.

Id. (emphasis added). This statutory provision, by its terms, gives wide latitude to a court in crafting an order in aid of judgment. And, the statutory scheme contemplates that this wide latitude will be ongoing: section 1411 provides that the order in aid of judgment "may be modified by the court . . . on the court's own motion." Accordingly, the FSM's contention that the court was impartial in affording relief not specifically requested by plaintiff is, in this court's view, most decidedly without merit.

2. Garnishment as an available remedy in the FSM Supreme Court

The FSM's argument that garnishment does not exist as a remedy in the FSM Supreme Court is readily dispatched. This question is specifically addressed in Bank of Guam v. Elwise, 4 FSM Intrm. 150, 152 (Pon. 1989), where the court found that "garnishment of wages is within the power of the Court and is an acceptable means for enforcing an unpaid judgment. The requirements and procedures for such process should be the same as those applied to attachment proceedings." In reaching this conclusion, the court noted that

under "Writs of attachment" the FSM Code provides that "Debts payable to the defendant may be similarly attached by special order issued by the Trial Division. . ." 6 F.S.M.C. 1405(2). Technically, attachment and garnishment are distinct processes. Attachment applies to assets in the defendant's possession, and garnishment involves assets of the defendant which are in the possession of third parties. However, the language of section 1405(2) would seem to apply to both cases.

4 FSM Intrm. at 152. Factually, Elwise deals with the garnishment of wages, but nothing about the reasoning is limited to the wages context. In light of the unambiguous holding of Elwise, the FSM is incorrect when it asserts that garnishment does not exist as a remedy available to the judgment creditor in this case.

3. FSM precedent establishing that sovereign immunity does not exist in the absence of a specific constitutional or legislative provision creating it

In practical terms, sovereign immunity means immunity from all civil process, including garnishment. Bank of Denver v. Romstrom, 496 F. Supp. 242 (D. Colo. 1980). The FSM contends the doctrine of sovereign immunity prevents it from being subject to garnishment absent a specific statutory provision permitting garnishment. In support of this proposition, the FSM relies on case law authority from the United States, and principally on a case dating from 1940.5

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The court endeavors to be ever mindful of the admonition contained in Article XI, section 11 of the Constitution ) the Judicial Guidance Clause ) that "[i]n rendering a decision, the court must consult and apply sources of the Federated States of Micronesia." The court in Wesreco v. United States Dep't of Interior, 618 F. Supp. 562, 566 n.7 (D. Utah 1985) observed that

[t]he origin of the doctrine of sovereign immunity is said to be the monarchical notion that because the "King can do no wrong," there exists no reason for him to be sued." Whatever the precise origin of the doctrine, there is no dispute that the concept is derived from our English ancestors and has been employed there since the time of Edward the First.

Id. (citation omitted). According to the Encyclopedia Britannica (15th ed. 1990), Edward I was king of England from 1272 to 1307. A thirteenth century English legal dogma, by its terms antithetical to egalitarian ideals, is uniquely ill-suited for transplantation in the last years of the 20th century to Micronesia, half a world away geographically, some 700 years away in time, and many worlds away culturally. At the outset, in terms of Article XI, Section 11, one is hard pressed to come up with a less Micronesian source than the historical antecedents which underlie the doctrine of sovereign immunity.

While the court acknowledges that issues of first impression to which Micronesian precedent does not speak arise with some frequency in this court, that is all the more reason why the court should look to Micronesian precedent where it does exist. The court looks to the seminal FSM case dealing with the question of sovereign immunity. Albeit from the trial division, Panuelo v. Pohnpei, 2 FSM Intrm. 150 (Pon. 1986), merits careful consideration. In Panuelo Chief Justice King undertakes, beginning at page 157, an extended analysis of the applicability of the doctrine of sovereign immunity to Micronesia. At issue in Panuelo was whether the state of Pohnpei was immune from a claim for money damages by one of its citizens. The court noted that the doctrine of sovereign immunity is a discredited one, and surveyed the Pohnpei Constitution, Pohnpei legislation, custom and tradition, and United States common law in an effort to establish a basis for finding that the doctrine of sovereign immunity should insulate the state of Pohnpei from a suit by one of its citizens. Specifically with respect to the common law, the court observed that "to put it mildly, the common law today furnishes no compelling arguments for judicial adoption of sovereign immunity." Id. at 163. The court concluded that because no basis for governmental immunity was to be found in any of the sources to which it looked ) Pohnpei Constitution, Pohnpei legislation, custom and tradition, and United States common law ) the court would "have to create, not merely refrain from abolishing sovereign immunity." Id. at 162. Accord Edwards v. Pohnpei, 3 FSM Intrm. 350, 363 (Pon. 1988); Epiti v. Chuuk, 5 FSM Intrm. 162, 166-67 (Chk. S. Ct. Tr. 1991); Suka v. Truk, 4 FSM Intrm. 123, 126 n.2 (Truk S. Ct. Tr. 1989).

Just as the Pohnpei Constitution does not contain a specific provision immunizing the state of Pohnpei from suit, neither does the Constitution of the Federated States of Micronesia provide that the doctrine of sovereign immunity is applicable to the FSM. Nor does any legislation of which this court

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is aware adopt this doctrine.6 Certainly, no legislation of which this court is aware provides that the FSM cannot be subject to a garnishment. Putting sovereign immunity to the test in terms of national custom and tradition is not useful, as national custom and tradition is necessarily derivative of the customs and traditions of the individual states, and in this strict sense no pan-Micronesian custom and tradition exists. Lastly, contemporary notions of common law, as explored in detail in Panuelo, supra, militate against adoption of sovereign immunity. All of these considerations point to the conclusion that the creation of such a doctrine in the FSM should be left to the specific, unambiguous, and explicit action of Congress. This court will not create the doctrine by judicial action. Hence, the court rejects the FSM's contention that sovereign immunity precludes garnishment in this case.

4. Hypothetical administrative problems not preclusive of garnishment of the FSM

The FSM urges in its brief that "practical problems will plague both the FSM Supreme Court and FSM, should the Court create a non-statutory garnishment procedure with the FSM as a garnishee." The FSM alleges that "it is our view that it is not in either the Court's or the National Government's best interest to become involved in an endless stream of debt collection disputes involving Chuuk." The FSM cites to no specifics in alleging that government financial administration will be impeded. Concerns of this sort have traditionally been urged in support of sovereign immunity: "In 1868, the Supreme Court stated that the purpose for the doctrine of sovereign immunity is to prevent litigation from interfering with public acts that are essential to govern the Nation. Nichols v. United States, 74 U.S. (7 Wall.) 122, 126, 19 L. Ed. 125 (1868)." Wesreco, 618 F. Supp. at 566 n.7. The instant garnishment would appear to impose a minimal administrative burden, involving as it does the direct payment to the plaintiff of money the FSM would otherwise pay Chuuk. As plaintiff's counsel noted in his hearing brief, the FSM has submitted itself to garnishment by stipulation in a least on case, Black Micro Corp. v. Osaia Santos, Civil Action No. 1993-073, a case from the Pohnpei Trial Division of the FSM Supreme Court. This is indicative that garnishment does not raise insurmountable administrative hurdles. In any event, the court decides herein that it will not create sovereign immunity by judicial fiat; neither will it hold that hypothetical administrative difficulties justify a holding that garnishment does not apply to the national government. Whether these concerns are of sufficient weight to take

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precedence over the plaintiff's right under law to have recourse to the judgment enforcement procedures provided by 6 F.S.M.C. 1401 et seq. and Rule 70 of the FSM Rules of Civil Procedure is an issue for the legislature.

D. Rule 69 of the FSM Rules of Civil Procedure and 6 F.S.M.C. 705

Brief comment is appropriate with respect to FSM Civil Rule 69 and 6 F.S.M.C. 705. Rule 69 provides as follows:

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

Two points bear making with respect to Rule 69. The first is that the rule expressly authorizes the court to issue process other than execution in the course of enforcing a judgment ) in this case, the court directs garnishment, a remedy also authorized by Rule 70. See supra note 1, and p. 319. Second, the rule provides that execution in the national courts shall be according to state practice and procedure "except that any statute of the Federated States of Micronesia governs to the extent that it is applicable." In this case, the FSM statute which controls ) via the precept of national supremacy as discussed at pages 3-11 of the court's November 17, 1997, order [Louis, 8 FSM Intrm. at 211-14] ) over Chuuk state law prohibiting execution generally against Chuuk is 11 F.S.M.C. 701 et seq.

As to 6 F.S.M.C. 705, the court makes an obvious point. This section provides that money judgments against the FSM shall be paid from funds appropriated by Congress. This provision is not implicated where the FSM is a mere garnishee. The instant garnishment is directed toward property of the judgment debtor held by the FSM, not toward property of the FSM itself. The garnishment does not constitute a money judgment against the FSM within the meaning of 6 F.S.M.C. 705.

E. Procedural matter

As a final procedural concern, in response to the FSM's request for stay and motion for reconsideration filed on December 30, 1997, the court, by order entered January 15, 1998, stayed its November 17, 1997 order pending a ruling on the FSM's motion for reconsideration. See Louis v. Kutta, 8 FSM Intrm. 228 (Chk. 1998). Today's order, styled amended order in aid of judgment, addresses the substance of the FSM's motion for reconsideration; hence, the FSM's motion is denied. Further, while today's order reflects the fact that since the November 17, 1997, order, the FSM set aside the sum of $150,000 from funds it would otherwise have paid Chuuk, today's order is consistent with the November 17, 1997, order. The order staying the November 17, 1997, order ) the stay was entered January 15, 1998 ) is therefore vacated.

In recapitulation, the FSM, in its capacity as garnishee and acting by its Secretary of Finance Mr. John Ehsa, will pay to the plaintiff, the judgment creditor herein, the sum of $183,250.07, plus accruing judgment interest at the rate of $35.06 per day for each day after June 30, 1998, that the full amount remains unpaid. Of the total sum, $150,000, was previously withheld from funds owned to Chuuk on December 19, 1997. The FSM will pay the remaining sum of $33,250.07 from the Chuuk State current account. Upon receipt of payment in full, plaintiff will file a notice of satisfaction of judgment with the court.

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Finally, the FSM's motion for reconsideration filed December 30, 1997 is denied, and the stay entered January 15, 1998 is vacated.

1. The court issued the order pursuant to Rule 70. The order was the functional equivalent of a writ of garnishment, although the court did not denominate it as such. Rule 70 of the FSM Rules of Civil Procedure, which is the same as Rule 70 of the United States Federal Rules of Civil Procedure, provides for five different remedies, one of which is a writ of attachment. 12 Charles A. Wright and Arthur R. Miller, Federal Practice and Procedure § 3022 (1973). As discussed below in the body of the memorandum, garnishment exists in the FSM through judicial interpretation of the FSM attachment statute, 6 F.S.M.C. 1405(2). Since attachment is an available remedy under FSM Rule 70, it follows that garnishment is also an available remedy under FSM Rule 70. Hence, the FSM is styled "garnishee" herein.

2. The first time the Chuuk objected to the garnishment order was at the hearing on May 15, 1998, when counsel for Chuuk tendered to the court a summary notice, to the effect that it joined "with the motion filed by the FSM National Government and its underlying rationale."

3. The calculation of the current amount owed on the judgment is as follows. Two years of interest, from June 7, 1995, the date of the entry of judgment, to June 7, 1997, at nine percent which is the judgment rate pursuant to 6 F.S.M.C. 1401, is 2 X (.09 X $150,000) = 2 X $13,500 = $27,000. The amount owed as of June 7, 1997, was $150,000 + $27,000, or $177,000. The daily interest on $150,000 is $36.99 ($13,500 / 365). 177 days elapsed from June 7, 1997, until December 1, 1997, on which the first payment of $7,000 was made. 177 X $36.99 = $6547.23, which means total interest due as of the date of the first payment was $33,547.23. Crediting the $7,000 to principal on December 1, 1997, there remained owing on that date $176,547.23 ($143,000 + $33,547.23). The daily interest at nine percent on $143,000 is $35.26 ($143,000 X .09 / 365). 100 days elapsed from December 1, 1997, to March 11, 1998, on which the second payment of $800 was made. Interest from December 1, 1997, to March 11 is $3526.00 (100 X $35.26). The total owed as of March 11, 1998, was $180,073.23 ($176,547,23 + $3,526.00); after payment of the $800 (crediting the $800 to principal) on that date, $179,273.23 remained owing. Daily interest on $142,200 ($143,000 -$800) is $35.06 ($142,200 X .09 / 365). 114 days have elapsed from March 11 until July 3, for a total interest $3976.84 for that period. The total amount including owed as of July 3, 1998, is therefore $183,250.07 ($179,273.23 + $3,976.84). < /FONT >

4. Article VIII, § 2 of the Chuuk Constitution provides in pertinent part 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 in pertinent part 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."

5. In that case, Federal Housing Administration v. Burr, 309 U.S. 242, 60 S. Ct. 488, 84 L. Ed. 724 (1940), the United States Supreme Court, writing in 1940, noted "the current disfavor of the doctrine of governmental immunity from suit, as evidenced by the increasing tendency of Congress to waive the immunity from suit where governmental corporation are concerned." Id. at 245, 60 S. Ct. at 490, 84 L. Ed. at 728. The court noted that "waivers by Congress of governmental immunity . . . should be liberally construed." Id. The court found that Congress had waived sovereign immunity with respect to the Federal Housing Administration when in 1935 it amended the enabling legislation to provide that the Administrator was "`authorized, in his official capacity, to sue and be sued in any court of competent jurisdiction, State or Federal.'" Id. at 244, 60 S. Ct. at 490, 84 L. Ed. at 728. In holding that wages owed a former employee by the Federal Housing Administration could not be garnished, the court relied not on sovereign immunity per se but on a specific provision of the National Housing Act that provided that claims against the Federal Housing Administration "`shall be paid out of funds made available by this Act.' § 1 [of the National Housing Act]." Id. at 250, 60 S. Ct. at 493, 84 L. Ed. at 731.

6. Of course, early on the FSM Congress enacted Chapter 7 of Title 6 of the FSM Code. This statute, the codification of Public Law No. 1-141, § 1 et seq., became law on February 12, 1981. Of the three references to sovereign immunity found in the FSM Code, this statute is germane. (The other two references, in the context of maritime law and bonds issued pursuant to the Compact Funds Financing Act, are found at 19 F.S.M.C. 901 and 58 F.S.M.C. 564 respectively.)

The purpose of 6 F.S.M.C. 701 et seq. is to permit and define certain specific causes of action against the FSM. Section 701, entitled "Policy," provides that

[t]he Constitutional Convention determined that the National Government be accountable for civil wrongs to its citizenry as such time and under such terms and conditions as found appropriate from the national experience. It, therefore, at this time in our national history the policy of the National Government of the Federated States of Micronesia to grant redress for civil wrongs by waiving sovereign immunity to the extent prescribed in this Chapter.

This statute creates specified causes of action, not sovereign immunity. Although the statute seems to assume that sovereign immunity has vitality in the FSM, the court, looking to the principles enunciated in Panuelo, supra, can find no Constitutional or legislative provision which specifically adopts this principle either before or for that matter after the enactment of this statute to serve as a basis for this assumption. To this court's mind, it would be statutory construction by paradox to rely solely on this statute, intrinsically abrogative of sovereign immunity, to infuse the breath of life into a dying doctrine.