Ben v Chuuk [2003] FMCSC 2; 11 FSM Intrm 649 (Chk. S. Ct. Tr. 2003) (7 July 2003)

CHUUK STATE SUPREME COURT TRIAL DIVISION
Cite as Ben v. Chuuk
[2003] FMCSC 2; 11 FSM Intrm. 649 (Chk. S. Ct. Tr. 2003)

[FSM Intrm. 649]

CHIAKO BEN,
Plaintiff,

vs.

CHUUK STATE GOVERNMENT,
Defendants.

CSSC-CA-NO. 249-2000

ORDER DENYING MOTION FOR ORDER IN AID OF JUDGMENT

Soukichi Fritz
Chief Justice

Hearing: May 28, 2003
Decided: July 7, 2003

APPEARANCES:

For the Plaintiff: Repeat Samuel
Micronesian Legal Services Corporation
P.O. Box D
Weno, Chuuk FM 96942

For the Defendant: Ready Johnny, Esq.
Attorney General
Office of the Attorney General
P.O. Box 189
Weno, Chuuk FM 96942

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HEADNOTES

Statutes of Limitation; Torts - Negligence
6 TTC 305 establishes a period of 6 years in which to bring an action for negligent damage to real property. Ben v. Chuuk, [2003] FMCSC 2; 11 FSM Intrm. 649, 650 (Chk. S. Ct. Tr. 2003).

Attachment and Execution; Debtors' and Creditors' Rights - Orders in Aid of Judgment
Courts have the power to issue all writs for equitable and legal relief, except the power of attachment, execution and garnishment of public property. This statutory prohibition has been held to prohibit the issuance of an order in aid of judgment against Chuuk. Ben v. Chuuk, [2003] FMCSC 2; 11 FSM Intrm. 649, 651 (Chk. S. Ct. Tr. 2003).

Attachment and Execution; Jurisdiction
The statutory prohibition on issuing writs against public property is jurisdictional. Since the statute deprives a court of jurisdiction to issue any such writ, the parties may not by agreement confer

[FSM Intrm. 650]

jurisdiction upon a court when a statute affirmatively deprives the court of jurisdiction. Ben v. Chuuk, [2003] FMCSC 2; 11 FSM Intrm. 649, 651 (Chk. S. Ct. Tr. 2003).

Jurisdiction
Whether a court has subject matter jurisdiction is an issue which may be raised at any time, even after judgment. Ben v. Chuuk, [2003] FMCSC 2; 11 FSM Intrm. 649, 651 (Chk. S. Ct. Tr. 2003).

Debtors' and Creditors' Rights - Orders in Aid of Judgment
A stipulated judgment, even after court approval, cannot confer jurisdiction on a court to issue an order in aid of judgment against Chuuk in direct contravention of a statute. Regardless of the stipulated judgment's language, the court simply cannot violate the statute and issue an order in aid of judgment against Chuuk. Ben v. Chuuk, [2003] FMCSC 2; 11 FSM Intrm. 649, 651 (Chk. S. Ct. Tr. 2003).

Debtors' and Creditors' Rights - Orders in Aid of Judgment
When no appropriation has been made, general or otherwise, for the payment of judgments, even if the court were to issue an order in aid of judgment, and even if the state government were to identify funds from some other source for payment of the judgment, the Chuuk Financial Control Commission would be precluded from approving the payment pursuant to the order in aid of judgment since it is precluded from paying any court ordered judgements unless specifically appropriated by law. Ben v. Chuuk, [2003] FMCSC 2; 11 FSM Intrm. 649, 652 (Chk. S. Ct. Tr. 2003).

Debtors' and Creditors' Rights - Orders in Aid of Judgment
Under a Chuuk State Supreme Court decision, if money was appropriated to pay court judgments, the oldest judgment must be paid in full before any payment could be made on the next oldest judgment. Ben v. Chuuk, [2003] FMCSC 2; 11 FSM Intrm. 649, 652 (Chk. S. Ct. Tr. 2003).

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COURT'S OPINION

SOUKICHI FRITZ, Chief Justice:

This matter came before the Court on May 28, 2003, on Plaintiff's motion for an order in aid of judgment against Defendant CHUUK STATE. Plaintiff appeared by and through his counselor of record, Repeat Samuel of Micronesian Legal Services, Inc. Defendant appeared by and through its Attorney General, Ready Johnny, Esq. For the reasons set forth below, the Court must deny the motion.

I. FACTUAL AND PROCEDURAL HISTORY

This breach of contract action is based on an agreement between Defendant and Plaintiff that Defendant would pay Plaintiff the sum of $100,000 for damage to Plaintiff's land resulting from a public project constructed in the 1980's. According to the complaint, which was filed on December 8, 2000, Plaintiff filed a claim against Defendant (Claim No. C-61-99) on June 16, 1999, claiming damages resulting from the improper construction of a sea wall. The sea wall was intended to keep salt water out of the land adjacent to Plaintiff's land, but instead caused sea water to remain on the land adjacent to Plaintiff's parcel, then to overflow onto Plaintiff's parcel damaging his trees and crops.

The day after the claim was filed, apparently ignoring the clear statute of limitations defense (6 TTC 305 establishes a period of 6 years in which to bring an action for negligent damage to real property), Defendant, through its agent Sachuo William, approved the claim in the sum of $100,000. According to the complaint, a total of $420 was paid on the claim prior to the filing of the instant

[FSM Intrm. 651]

action.

Defendant filed an answer to the complaint, denying the allegations on information and belief. According to the Stipulated Judgment subsequently entered into between the parties, they agreed at a hearing on July 6, 2001 to reduce the amount of the claim to $50,000, and to stipulate to a judgment being entered in that amount. The Stipulated Judgment, signed by the Attorney General on September 17, 2001, and by the counselor for the Plaintiff on September 25, 2001 provided for a lump sum payment of $50,000 "at the next availability of funds." The Stipulated Judgment also provided that "An order in Aid of Judgment may be issued to enforce these agreed upon terms." The Stipulated Judgment was approved by the Court on September 25, 2001, and entered on the judgment roll by the Clerk of the Court on October 2, 2001.

By his motion, Plaintiff sought an order of this Court directing the Defendant to pay the remaining sums due and owing pursuant to the Stipulated Judgment. At the hearing, the Attorney General raised several objections to the motion, including the effect of Associate Justice Simina's decision in Narruhn v. Chuuk, 11 FSM Intrm. 48 (Chk. S. Ct. Tr. 2002), and the prohibition contained in the enabling statute creating the Chuuk Financial Control Commission, Chk. S.L. No. 6-02-09, § 7(g).

II. THE MOTION MUST BE DENIED

A. The Chuuk State Judiciary Act precludes the motion.

Chk. S.L. No. 190-08, § 4 provides: "Each court shall have power to isso issue all writs for equitable and legal relief, except the power of attachment, execution and garnishment of public property . .&. ." Id. asi> asis added).

Th

This statutory prohibition has been held on several occasions by this Court to prohibit the issuance ofrder d of judgment against Chuuk State. See, e.g., Narruhn v. Chuuk State, 1u>, 11 FSM Intrm. 48, 53 (Chk. S. Ct. Tr. 2002); Kama v. Chuuk, [1999] FMCSC 15; 9 FSM Intrm. 496, 497 (Chk. S. Ct. Tr. 1999); Billimon v. Chuuk, [1991] FMCSC 1; 5 FSM Intrm. 130, 136 (Chk. S. Ct. Tr. 1991).

The statutory prohibition on issuing writs against public property is jurisdictional. The statute deprives the Court of jurisdiction to issue any such writ. The parties may not by agreement confer jurisdiction upon the Court where a statute affirmatively deprives the Court of jurisdiction. Luzama v. Pohnpei Enterprises Co., [1995] FMSC 11; 7 FSM Intrm. 40, 45 (App. 1995); Federal Business Dev. Bank v. S.S. Thorfinn, [1990] FMSC 20; 4 FSM Intrm. 367, 369 (App. 1990).

Neither does the fact that the Court approved the stipulated judgment affect the prohibition against issuing writs against public property. Whether a Court has subject matter jurisdiction is an issue which may be raised at any time, even after judgment. Island Dev. Co. v. Yap, [1999] FMSC 36; 9 FSM Intrm. 220, 222 (Yap 1999); Hartman v. FSM, [1993] FMSC 53; 6 FSM Intrm. 293, 296 (App. 1993).

Thus, any argument that the Stipulated Judgment, even after approval by the Court, somehow conferred jurisdiction on this Court to issue an order in aid of judgment against Chuuk State in direct contravention of Chk. S.L. No. 190-08, § 4 must fail. Regss of the the language of the Stipulated Judgment, the Court simply cannot violate the statute and issue an order in aid of jud against Chuuk State.

B. Chk. S.L. No. 6-02-09 precludes relief in this cass case.

Even if it were possible for the parties or the Court to waive the statutory prohibition against

[FSM Intrm. 652]

issuing writs against public property, the enabling statute which created the Chuuk Financial Control Commission also precludes Plaintiff from obtaining the relief he seeks against the State.

Due to the severe financial crisis confronting Chuuk State in the spring of 2002, the State and National governments entered into an agreement which among other things required the creation of an independent body in Chuuk State which would have certain powers over the payment of obligations of the State. The Chuuk Financial Control Commission was created by the enactment of Chk. S.L. No. 6-02-09, which Act, in § 7, established tties and rend responsibilities of the CFCC.

Chk. S.L. No. 6-02-09, § 7(g) clearates that "The cohe commisss precluded from paying any court ordered judgements [sic], unless specifically appropriateriated by law."

This section o CFCC enabling statute has never been interpreted by this Chis Court. Thus the question of whether a general appropriation by the Legislature to pay judgments is sufficient to enable the CFCC to pay a particular judgment, or whether each judgment must have a separate appropriation in order to permit the CFCC to pay the judgment, has not been raised or decided. Past practice of the Legislature has been to make a general appropriation for the payment of judgments, and that is what this Court assumes for the purpose of this analysis.

Regardless of whether a general or specific appropriation is required under the statute, it is clear to the Court that no appropriation has been made for FY 2003, general or otherwise, for the payment of judgments. Therefore, even if the Court were to issue an order in aid of judgment, and even if the State government were to identify funds from some other source for payment of the judgment (which would be a violation of the Chuuk State Constitution, Chk. Const. art. VIII, § 2, and the Chuuk Fial ManagManagement Act, Truk S.L. No. 5-44, § 9, the CFCC wbe precluded bded by Chk. S.L. No. 6-02-09, § 7(g) from appg the payment ment pursuant to the order in aid of judgment.

C. Narruhn uuk State also precludes relief.

Even iven if the other impediments to relief did not exist, the decision of Associate Justice Simina in Narruhn v. Chuuk, 11 FSM Intrm. 48 (Chk. S. Ct. Tr. 2002) would prohibit the Court from ordering the relief Plaintiff seeks.

In Narruhn, the Plaintiff was confronted with a situation very similar to that presented here. Plaintiff Narruhn obtained a judgment by stipulation against the State in 1993, and despite great effort was unable to collect more than a few thousand dollars by 2002. The Legislature had, over the years, appropriated funds to pay court judgments, but the various Governors had "cherry-picked" some judgments to pay, while allowing others to go unpaid.
Recognizing the patent unfairness of the process used by the Executive branch to determine what judgments to pay, and how much to pay on particular judgments, Associate Justice Simina ordered, in the Narruhn case, on a similar motion for an order in aid of judgment, that beginning with fiscal year 2003, if money was appropriated to pay court judgments, the oldest judgment must be paid in full before any payment could be made on the next oldest judgment. Each successive judgment would have to be paid in full before any payment could be made on the next judgment. With one exception not relevant here, all judgments would be paid in the order they were entered.

Since the Narruhn judgment was entered in 1993, it is clear that until the Narruhn judgment is paid, and until all judgments between the Narruhn judgment and the judgment in the instant case are paid, Plaintiff herein will not be entitled to any payment on his judgment.

[FSM Intrm. 653]

III. CONCLUSION

The Court takes judicial notice of the fact that as of March, 2002, there were more than $10 million in outstanding and unpaid judgments, claims and settlements against Chuuk State. This is approximately one-third of the entire debt of Chuuk State. Until fiscal reforms take place in Chuuk State, it does not appear that any judgments, let alone the judgment in the instant case, will be paid. It is the fervent hope of the Court that the question of court judgments will be addressed by the Legislature in the near future, with a goal of reducing the number and amount of unpaid judgments currently on the books of the state.

For the reasons stated, the motion of Plaintiff for an order in aid of judgment is due to be, and it hereby is, DENIED.

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