Davis v Kutta [2003] FMSC 25; 11 FSM Intrm. 545 (Chk. 2003) (19 May 2003)

FSM SUPREME COURT TRIAL DIVISION
Cite as Davis v. Kutta
[2003] FMSC 25; 11 FSM Intrm. 545 (Chk. 2003)

[2003] FMSC 25; [11 FSM Intrm. 545]

MENRY DAVIS,
Plaintiff,

vs.

JIM KUTTA, HALVERSON NIMEISA, RESAUO
MARTIN, ERADIO WILLIAM, STATE OF CHUUK,
FRANCIS RUBEN, and JOHNSON SILANDER,
Defendants.

CIVIL ACTION NO. 1992-1039

ORDER IN AID OF JUDGMENT AND MEMORANDUM

Martin Yinug
Associate Justice

Decided: May 19, 2003

APPEARANCES:

For the Plaintiff: Stephen V. Finnen,Esq.
Law Offices of Saimon & Associates
P.O. Box 1450
Kolonia, Pohnpei FM 96941

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

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HEADNOTES

Contempt
A motion to vacate a contempt order will be denied when nothing stated changes the previous finding. Davis v. Kutta, [2003] FMSC 25; 11 FSM Intrm. 545, 548 (Pon. 2003).

Civil Procedure - Motions
A motion to relieve a person of the effect of a court order will be denied as moot when a later order directed another to undertake the task. Davis v. Kutta, [2003] FMSC 25; 11 FSM Intrm. 545, 548 (Chk. 2003).

Civil Rights; Judgments
Even if the Chuuk Financial Control Commission were at some future time to assume its responsibility to develop legislation for appropriation to address court judgments when it has thus far declined to do so, payment of the judgment would still have to await legislative appropriation, a state

[11 FSM Intrm. 546]

of affairs that the principle of supremacy of the FSM Constitution does not countenance where a judgment based on a civil rights violation is concerned. Davis v. Kutta, [2003] FMSC 25; 11 FSM Intrm. 545, 549 (Chk. 2003).

Civil Rights; Judgments
The remedy for violation of a constitutional right, to be meaningful, must be one that can be realized upon in a reasonably expeditious manner. When more than six and a half years have elapsed since the judgment was entered, 6 F.S.M.C. 707, which prohibits the garnishment of funds owed by the FSM to a state, is unconstitutional as it applies to the case’s judgment for a violation of civil rights guaranteed by the FSM Constitution. In practical terms, that statute takes from the plaintiff the only means of securing a reasonably expeditious satisfaction of the judgment. Davis v. Kutta, [2003] FMSC 25; 11 FSM Intrm. 545, 549 (Chk. 2003).

Attachment and Execution - Garnishment
When the drawdown amounts that Chuuk receives from the FSM national government are greater by more than an order of magnitude than the judgment amount remaining and when, looking to the case’s more than six and a half year post-judgment history, the anti-garnishment statute deprives the judgment creditor of the only reasonably expeditious means of obtaining satisfaction of her judgment. Thus the fastest manner in which the debtor can reasonably pay the judgment under 6 F.S.M.C. 1409 is by an order of garnishment directed to the national government. Davis v. Kutta, [2003] FMSC 25; 11 FSM Intrm. 545, 549 (Chk. 2003).

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COURT’S OPINION

MARTIN YINUG, Associate Justice:

The clerk is directed to transmit a copy of this order and memorandum, and the writ of garnishment directed to the FSM Secretary of Finance that issues herewith, to the office of the FSM Secretary of Justice.

The post-judgment history of this case up to July 30, 2002, is set out in an unreported order entered on that date. That history is relevant for purposes of this order, and what follows in part A. relative to that time period is taken substantially verbatim from that order.

A. POST JUDGMENT HISTORY

The judgment in the amount of $130,000 was entered on August 9, 1996, or more than six and a half years ago, and an award of attorney fees was entered on December 5, 1997. Davis’ first motion for an order in aid of judgment was filed on December 15, 1997. The court held an evidentiary hearing on May 15, 1998, and by order and memorandum of July 13, 1998, the court gave Chuuk until September 15, 1998, to pay the judgment and indicated that if it were not paid, the court would take steps not inconsistent with that opinion. On August 17, 1998, Chuuk appealed. On August 14, 2000, the appellate division dismissed the appeal because the order appealed from was not a final decision. Chuuk v. Davis, [2000] FMSC 17; 9 FSM Intrm. 471, 474 (App. 2000). On August 23, 2000, Davis requested further proceedings. By order dated September 25, 2000, the court directed Chuuk to provide current information on its finances, which was filed with the court on October 13 and October 25, 2000.

On November 1, 2000, Davis again requested further proceedings. On November 7, 2000, the court ordered full payment of the judgment and attorney fee award by December 29, 2000. On

[11 FSM Intrm. 547]

January 11, 2001, after the time for payment had passed, Chuuk sought relief from the November 7, 2000, order. That motion was denied by order of January 29, 2001. On February 12, 2001, Davis filed a motion for an order to show cause which recited that Chuuk had not complied with the November 7, 2000, order. On February 13, 2001, Chuuk filed a response to the motion for order to show cause. On March 5, 2001, Davis filed its renewed motion for order to show cause. A hearing was held on April 3, 2001, and by order entered on April 9, 2001, the court again ordered Chuuk to pay the judgment.

On April 27, 2001, Chuuk moved to modify the April 27, 2001, order. On May 5, 2001, Davis renewed her motion for an order to show cause, this time seeking a contempt citation as Chuuk’s disobedience to the April 9, 2001, order. On May 14, 2001, Chuuk filed a response to Davis’ renewed order to show cause. On May 16, 2002, the court held a telephonic hearing on Davis’ motion for order to show cause at which Chuuk committed to pay $50,000 no later than the end of June 29, 2001; $50,000 no later than the end of July, 2001; $100,000 no later than the end of October, 2001, and the remaining balance by the end of November, 2001. This payment schedule was incorporated into the order entered on May 22, 2001. On January 14, 2002, Davis filed yet another motion for order to show cause, reciting that Chuuk had made late, partial payments totalling $150,000, leaving an outstanding balance. On February 12, 2002, the court entered an order finding that Chuuk was not in contempt due to financial exigencies. At the hearing, based on the representation of Mr. Nakama Sana, who at that time was Chuuk’s acting Director of the Treasury and at later relevant times Director, could make a payment of no more than $50,000 by the end of February, 2002, the court directed that payment, and also directed Mr. Sana to propose a payment schedule for the remaining balance by March 15, 2002. Chuuk did not comply with this order. Rather, Chuuk issued a check in the sum of $25,000 as partial payment, but that check was returned for insufficient funds.^[1] On March 26, 2002, Davis filed a motion for an order to show cause, which was her fifth filing of such a motion or renewal thereof.

The court held a hearing on May 16, 2002. At that hearing, Mr. Sana testified that the money that was to be used to pay the judgment in this case was used to pay claims of businesses, banks, and certain individuals. On the day before the hearing, Chuuk paid Machime O’Sonis the sum of $15,000. The court by order entered on July 30, 2002, found Mr. Sana, in his official capacity as Chuuk’s Director of the Treasury, in contempt under 4 F.S.M.C. 119 for intentionally disobeying this court’s order of February 12, 2002. He had the funds available to make at least some payments on the judgment, but did not do so. The order also directed Mr. Sana to present a payment plan showing how the judgment was to be paid, and set the case for further hearing on August 12, 2002. On the day scheduled for the hearing, Chuuk filed its motion to vacate the July 30, 2002, contempt order and also to relieve Mr. Sana from the effect of the July 30, 2002, order to the extent that it required Mr. Sana to submit a payment plan. Chuuk urged that Mr. Sana’s authority to submit such a plan was abrogated by the passage of Chuuk State Law No. 6-02-09, which established the Chuuk State Financial Control Commission ("CFCC").

The hearing originally scheduled for August 12, 2002, was continued until August 16, 2002. As of the date of that hearing, proceedings in the case at bar and Civil Action No. 1998-1000, Estate of Mori et al. v. State of Chuuk et al., have been handled together. The combined history of the two cases from August 16, 2002, until the present is set out in the order entered today in Mori, beginning with the second paragraph of page 4 and continuing through page 6. [Estate of Mori v. Chuuk, [2003] FMSC 22; 11 FSM Intrm. 535, 538-39 (Chk. 2003).] It will not be repeated here, except to note the following.

[11 FSM Intrm. 548]

The March 4, 2003, order entered in both cases did not find Mr. Nick Andon, chairman CFCC in contempt for his failure to submit a payment plan for the judgment in this case as required by the order of August 16, 2002, based on his representation that the CFCC’s only role is to approve or disapprove vouchers submitted to it for payment. Additionally, the March 4, 2003, order gave Mr. Sana until March 12, 2003, to submit his affidavit setting forth his reasons why the court’s order of July 30, 2002, finding him in contempt of the court’s prior February 12, 2002, order in this case should be vacated. He was also to provide a listing of the outstanding judgments against Chuuk, and to show what payments were made on those judgments between February 12, 2002, and July 1, 2002. On March 10, 2003, Mr. Sana submitted a letter and affidavit to the court explaining why he feels he should not be held in contempt. He provided a listing of payments made on the judgment in this case, but the file does not appear to contain as listing of all court judgments and the amounts paid on them, if any, during the period February 12, 2002, and July 1, 2002, as required by the May 4, 2003, order. On March 17, 2003, the plaintiff then filed her response to the information provided by Mr. Sana, and also moved for further proceedings. Chuuk did not respond to the motion for further proceedings. On April 4, 2003, the court requested an accounting from the plaintiff of all the amounts paid on the judgment, and this was filed on April 22, 2003.

B. CHUUK’S MOTION TO VACATE THE JULY 30, 2002 ORDER OF CONTEMPT AS TO MR. SANA AND TO RELIEVE HIM FROM THE EFFECT OF THAT ORDER

The court first disposes of Chuuk’s August 12, 2002, motion to vacate the July 30, 2002, order of contempt as to Mr. Sana and to relieve him from the duty imposed to propose a payment plan for the judgment in this case. This motion has remained pending due to technical difficulties experienced in attempting to hold the telephonic hearing on August 16, 2002, and subsequent apparent non-receipt by the court of some of Chuuk’s submissions. As to the first part of the motion, the July 30, 2002, order found Mr. Nakama Sana as Chuuk’s Director of the Treasury, to be in contempt under 4 F.S.M.C. 119 for intentionally disobeying this court’s order of February 12, 2002, because at relevant times "[h]e had the funds available to make at least some payments on the judgment, but did not do so." Order in Aid of Judgment at 3-4 (July 30, 2002). In the letter that Mr. Sana submitted to the court on March 10, 2003, Mr. Sana stresses the difficulties and pressures that he faces as the director of the Chuuk State treasury. He recites that in planning to pay the remainder of the judgment in this case, he had relied on a $2 million dollar drawdown during the fourth quarter of the fiscal year 2002, but that those funds had been deposited directly into the Chuuk Financial Control Commission’s bank account.

The court realizes that Mr. Sana faces challenges of substantial magnitude in the course of his duties as Chuuk’s director of the treasury. The July 30, 2002, order implicitly acknowledges those difficulties in that it imposes no sanction, notwithstanding the finding of contempt. However, nothing stated in either Mr. Sana’s letter or affidavit changes the finding made in the July 30, 2002, order that Mr. Sana did have at least some funds available during the period February 12, 2002, until July 1, 2002, from which payments could have been made. Accordingly, Chuuk’s motion to vacate the July 30, 2002, order of contempt is denied.

Chuuk has also moved to relieve Mr. Sana from the effect of the July 30, 2002, order. In addition to finding Mr. Sana in contempt, that order had required Mr. Sana to submit a payment plan by August 12, 2002, setting forth how the judgment in this case was to be paid. This motion is denied as moot by virtue of the order entered on August 16, 2002, which directed Mr. Nick Andon, chairman of the then newly created CFCC, to undertake that task instead of Mr. Sana.

C. PLAINTIFF’S MOTION FOR FURTHER PROCEEDINGS

The plaintiffs filed her motion for further proceedings in this case on March 17, 2003. On March

[11 FSM Intrm. 549]

26, 2003, the plaintiffs in Mori v. Chuuk, Civil Action No. 1998-1000, filed a notice of joinder of motion, which indicates that they are seeking the same relief in Mori as they seek in this case. Both cases are based in material part on violations of the FSM civil rights statute, 11 F.S.M.C. 701 et seq., which confers a cause of action for violation of civil rights guaranteed by the FSM Constitution; both are in a post judgment posture; and in both cases the plaintiffs are seeking payment of the judgments. In Mori, no payments have been made, while in this case per the plaintiff’s calculations submitted to the court on April 25, 2003, there remains due as of April 23, 2003, the sum of $71,263.34.

By the order and memorandum entered today in Mori, the court addresses the judgment payment issues that the plaintiffs raise in both cases in the motion for further proceedings. The rationale set out in the discussion section of that order and memorandum governs here as well, where the judgment was entered more than six and a half years ago. In this case, unlike Mori, substantial payments have been made. While it is possible that the plaintiff in this case might be successful in obtaining further payments on her judgment, all matters must conclude at some point, and the court finds that this point has been reached. Even if the CFCC were at some future time to assume its responsibility under § 7(e)(iii) tvelop in consultnsultation with the Governor and Attorney General subsequent legislation for appropriation or other purposes for consideration by the Chuuk State Legislature to address . . . [t judgments," it has thus fhus far declined to do so. Even then, under § 7(g) of Chuuk Staw No. 6-02 6-02-09, payment of the judgment would still have to await legislative appropriation, a state of affairs that the principle of supremacy of the FSM Ctution does not countenance where a judgment based on a civa civil rights violation is concerned. Louis v. Kutta, [1997] FMSC 36; 8 FSM Intrm. 208, 210-14 (Chk. 1998).

Delays of the sort that have occurred in the payment of the judgment in this case in and of themselves diminish the constitutionally guaranteed right that the judgment is meant to vindicate. The remedy for violation of a constitutional right, to be meaningful, must be one that can be realized upon in a reasonably expeditious manner. Here, more than six and a half years have elapsed since the judgment was entered. Therefore, and for the reasons further set forth in the discussion section of the order and memorandum entered today in Mori [11 FSM Intrm. at 539-42], the court finds that 6 F.S.M.C. 707, which prohibits the garnishment of funds owed by the FSM to a state is unconstitutional as it applies to the judgment for a violation of civil rights guaranteed by the FSM Constitution in this case. The court finds that in practical terms, that statute takes from the plaintiff the only means of securing a reasonably expeditious satisfaction of the judgment.

Pursuant to 6 F.S.M.C. 1409, the court finds that the Chuuk has the ability to pay the judgment in the instant case. The court takes judicial notice that the drawdown amounts that Chuuk receives from the FSM national government are greater by more than an order of magnitude than the amount that remains owing to the plaintiff in this case. The court further finds, looking to the more than six and a half year post-judgment history of this case, that 6 F.S.M.C. 707 deprives the judgment creditor of the only reasonably expeditious means by which she may obtain satisfaction of her judgment. Thus, the "fastest manner in which the debtor can reasonably pay [the] judgment" under 6 F.S.M.C. 1409 is by an order of garnishment directed to the national government. A writ of garnishment directing the FSM Secretary of Finance to pay the outstanding amount of the judgment, fees, costs, and accrued interest issues herewith. Upon receipt of payment, the plaintiff will file a notice of satisfaction of judgment with the court.

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Footnotes:

1. The court was advised on April 25, 2003, that the insufficient funds check for $25,000 issued to the plaintiff that is recited at page 3 of the July 30, 2002, order subsequently cleared.

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