FSM SUPREME COURT TRIAL DIVISION
Cite as Estate of Mori v. Chuuk
12 FSM Intrm. 3 (Chk. 2003)

[12 FSM Intrm. 3]

 

ESTATE OF JOHNNY MORI et al.,
Plaintiffs,
 
vs.
 
STATE OF CHUUK, ERADIO WILLIAM, KAPIER
KAMERINO, and KASTINA KAMINO,
Defendants.
 
FEDERATED STATES OF MICRONESIA,
Garnishee/Defendant.
S))))))))))))))))))))))))))))))))))))))))))))))))
MENRY DAVIS,
Plaintiff,
 
vs.
 
JIM KUTTA, HALVERSON NIMEISA, RESAUO
MARTIN, ERADIO WILLIAM,) STATE OF CHUUK,
FRANCIS RUBEN, and JOHNSON SILANDER,
Defendants.
 
FEDERATED STATES OF MICRONESIA,
Garnishee/Defendant.
 
CIVIL ACTION NO. 1998-1000
CIVIL ACTION NO. 1992-1039

ORDER AND MEMORANDUM

Martin Yinug

Associate Justice

Decided: July 17, 2003

[12 FSM Intrm. 4]

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
 
For the Garnishee:                      R. Anthony Welch, Esq.
                                                     Assistant Attorney General
                                                     FSM Department of Justice
                                                     P.O. Box PS-105
                                                     Palikir, Pohnpei FM 96941

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HEADNOTES

Attachment and Execution ) Garnishment; Appellate Review ) Stay
     The trial court has jurisdiction to entertain the motions to stay enforcement of the writs of garnishment. Ordinarily the applicant must first seek a stay from the court appealed from; if the court denies the motion, the applicant may then seek a stay from the appellate division. Estate of Mori v. Chuuk, 12 FSM Intrm. 3, 7 (Pon. 2003).
 
Appellate Review ) Stay
     The four factors that a court will consider in granting or denying a stay on appeal are: whether the applicant has shown that without the stay he will suffer irreparable harm; whether the stay would substantially harm other parties interested in the proceeding; whether the public interest would be served by a stay; and whether the applicant has shown that he is likely to prevail on the merits of the appeal. As to the last factor, a stay may be granted even if there is less than a 50% chance of prevailing on appeal when the issue is difficult, or when it is one of first impression over which reasonable minds may reach different conclusions. Estate of Mori v. Chuuk, 12 FSM Intrm. 3, 7 (Chk. 2003).
 
Appellate Review ) Stay
     No stay pending appeal is warranted when the defendant will not suffer irreparable harm if no stay is granted because it undeniably owes the judgments, as liability is not an issue on appeal since the only issue for appeal purposes is how the judgments will be paid; when the stay would harm the plaintiffs by further delaying exoneration of the constitutional rights that the judgments are intended to vindicate; when all citizens have an interest in preserving the constitutional rights guaranteed to all and would be disserved by the further delay in the judgments’ satisfaction; and when the issue presented, although one of first impression, does not alone compel the conclusion that a stay should issue in light of the other considerations ) a material one being that liability is not at issue. Estate of Mori v. Chuuk, 12 FSM Intrm. 3, 7-8 (Chk. 2003).
 
[12 FSM Intrm. 5]
 
Civil Procedure ) Intervention
     Although there is authority that it was the moving party’s burden to insure compliance with the Rule 24(c) requirement that the attorney general be notified of challenges to a statute’s constitutionality, the language of the rule provides that the court "shall notify" the attorney general, and the better course would have been for the court to insure that the FSM attorney general’s office had received notice. However, the failure to notify the attorney general does not deprive the court of jurisdiction. Estate of Mori v. Chuuk, 12 FSM Intrm. 3, 8 (Chk. 2003).
 
Attachment and Execution ) Garnishment; Civil Procedure ) Intervention
     When writs of garnishment that formally designated the FSM as a "garnishee/defendant" were entered before the notices of appeal, the FSM was already a party and its motion to intervene is therefore moot. Estate of Mori v. Chuuk, 12 FSM Intrm. 3, 8 (Chk. 2003).
 
Civil Procedure ) Intervention
     The court cannot grant a motion to intervene after a notice of appeal has been filed, since it would have no jurisdiction to permit intervention once a notice of appeal has been filed. Estate of Mori v. Chuuk, 12 FSM Intrm. 3, 8 n.2 (Chk. 2003).
 
Appellate Review ) Parties; Civil Procedure ) Intervention
     Certification by the court to the attorney general that the constitutionality of a statute has been drawn into question and subsequent intervention may occur at any stage of a proceeding. Thus, the FSM could intervene as a matter of right in any appeal of the matter. Estate of Mori v. Chuuk, 12 FSM Intrm. 3, 8-9 (Chk. 2003).
 
Judgments ) Relief from Judgment
     When a motion to relieve a party from a final order on the basis of surprise is filed after the order has been appealed, the court may deny the motion and leave the order appealed from intact, or, if the court is inclined to grant the motion it may only state on the record what it would do in the event that the case were remanded to it since the filing of the notice of appeal transferred jurisdiction to the appellate division. Estate of Mori v. Chuuk, 12 FSM Intrm. 3, 9 (Chk. 2003).
 
Attachment and Execution ) Garnishment
     The finding of unconstitutionality of 6 F.S.M.C. 707 (the anti-garnishment statute) applies only to the facts of cases which involve judgments based on violation of constitutional rights guaranteed under the FSM Constitution’s Declaration of Rights, and for which a cause of action is expressly conferred by national civil rights statute. Estate of Mori v. Chuuk, 12 FSM Intrm. 3, 9 (Chk. 2003).
 
Debtors’ and Creditors’ Rights
     In the usual case, the payment of a money judgment against the state must abide a legislative appropriation. "The usual case" means the ordinary civil case for money damages. Estate of Mori v. Chuuk, 12 FSM Intrm. 3, 9 (Chk. 2003).
 
Attachment and Execution ) Garnishment
     A garnishment order directs the garnishee, which is the person or entity holding money for the benefit of the judgment creditor, to pay sufficient money to the judgment creditor to discharge the judgment. Before this can occur, the garnishee must determine if and how much money it holds for the judgment debtor, and then pay the judgment amount. This will involve administrative steps by the garnishee. Estate of Mori v. Chuuk, 12 FSM Intrm. 3, 10 (Chk. 2003).
 
Attachment and Execution ) Garnishment
     In a garnishment matter, a significant administrative burden would be offset by the substantially

[12 FSM Intrm. 6]

greater weight of the fundamental human rights guaranteed by the FSM’s Constitution’s Declaration of Rights. In such a case, a mere administrative burden may not be interposed as an obstacle to the vindication of those rights. Estate of Mori v. Chuuk, 12 FSM Intrm. 3, 10 (Chk. 2003).
 
Attachment and Execution ) Garnishment
     A garnishment order will not circumvent any state plan to pay judgments when there has been no plan although legislation had required that one be developed. Estate of Mori v. Chuuk, 12 FSM Intrm. 3, 10 (Chk. 2003).
 
Civil Rights ; Constitutional Law ) Supremacy Clause
     Although a state constitutional and a statutory provisions barring payment without a legislative appropriation are neither facially objectionable, what is not constitutionally permissible is to use the requirement defensively to avoid payment of a judgment based on a civil rights claim brought under the national civil rights statute. Principles of supremacy under Article II of the FSM Constitution preclude this result. Estate of Mori v. Chuuk, 12 FSM Intrm. 3, 11 n.5 (Chk. 2003).
 
Debtors’ and Creditors’ Rights
     The court will not determine the state to be insolvent and appoint a receiver to manage its debts to insure the payment of its judgments because it is a much more drastic approach than garnishment and it is also a course upon which the court will not embark without the benefit of a substantially fuller record than that now before it. Estate of Mori v. Chuuk, 12 FSM Intrm. 3, 11 (Chk. 2003).
 
Statutes ) Construction
     The conclusion that the statute is unconstitutional to the extent that it denies payment of judgments based on civil rights violations at least implies that the statute may be judicially tailored in application to make the statute otherwise workable. Estate of Mori v. Chuuk, 12 FSM Intrm. 3, 12 (Chk. 2003).
 
Civil Rights
     A state trial court order that does not address the question of national court judgments based on the violation of civil rights guaranteed under the FSM Constitution cannot provide guidance with respect to enforcement of the FSM Supreme Court civil rights judgments. Estate of Mori v. Chuuk, 12 FSM Intrm. 3, 12 (Chk. 2003).
 
Appellate Review ) Stay; Judgments ) Relief from Judgment
     A trial court may stay the execution of any proceedings to enforce a judgment pending the disposition of a motion for relief from a judgment or order made pursuant to Rule 60. Estate of Mori v. Chuuk, 12 FSM Intrm. 3, 12 (Chk. 2003).
 
Attachment and Execution ) Garnishment
     When writs of garnishment are left in place which require the FSM to pay the judgments and attorney’s fees awards, the FSM may pay the judgments under protest and still preserve its grounds for appeal. Estate of Mori v. Chuuk, 12 FSM Intrm. 3, 12 (Chk. 2003).
 
Attorney, Trial Counselor and Client ) Fees
     When the plaintiff has requested supplementary attorney’s fees and the defendant has not objected and when this goes to an issue that is not subject to the pending appeal, the trial court has jurisdiction to grant the motion. Estate of Mori v. Chuuk, 12 FSM Intrm. 3, 13 (Chk. 2003).

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[12 FSM Intrm. 7]

COURT’S OPINION

MARTIN YINUG, Associate Justice:

     On May 19, 2003, the court entered an order and memorandum and writ of garnishment in each of these cases. [Estate of Mori v. Chuuk, 11 FSM Intrm. 535 (Chk. 2003);Davis v. Kutta, 11 FSM Intrm. 545 (Chk. 2003).] Also in these cases, on May 28, 2003, Chuuk filed identical notices of appeal in which they appeal "the May 19, 2003, Trial Division Garnishment Order," and also filed motions to stay the execution of the May 19, 2003, writs of garnishment in both cases. While the motions do not expressly state that the stays are sought pending appeal, each motion recites that "[t]he above-captioned-case is heretofore appealed." On June 4, 2003, the FSM submitted by fax a motion to intervene and to stay enforcement of the writs of garnishment in both cases, and also requested permission to file the motions by fax. (For good cause shown, the motions to file by fax are granted and the clerk is directed to file the faxed copies.) The FSM further requested in its motion a hearing so that it could explore alternative means of satisfying the judgment other than by garnishment. In lieu of a hearing, the court requested further written input on this point, and the FSM filed this in Davis on June 25, 2003, but apparently filed nothing in Mori1. On June 25, 2003, the plaintiffs responded in both cases to the FSM’s additional submission in Davis, and also requested payment in both cases. (The plaintiffs’ requests for payment are rendered moot by this order, as is the plaintiffs’ June 13, 2003, request to compel discovery responses in Mori.) Then on June 27, 2003, plaintiffs requested the court to hold any decision on pending matters in abeyance in both cases for one week until July 4, 2003, pending discussion between the FSM and Chuuk regarding alternative means to pay the judgments. However, no notification of any payment has been forthcoming.

     The court considers in turn Chuuk’s motions to stay and the FSM’s motions to intervene and to stay.

A. Chuuk’s motions to stay the garnishment orders

     This court has jurisdiction to entertain the motions to stay enforcement of the writs of garnishment. Ordinarily the applicant must first seek a stay from the court appealed from; if the court denies the motion, the applicant may then seek a stay from the appellate division. FSM App. R. 8(a).

     Chuuk lists five brief legal conclusions in its identical motions. It does not discuss the four factors that a court will consider in granting or denying a stay on appeal under FSM Civil Rule 62 as set out in Ponape Enterprises Co. v. Luzama, 6 FSM Intrm. 274, 277-78 (Pon. 1993). Those factors are: whether the applicant has shown that without the stay he will suffer irreparable harm; whether the stay would substantially harm other parties interested in the proceeding; whether the public interest would be served by a stay; and whether the applicant has shown that he is likely to prevail on the merits of the appeal. As to the last factor, a stay may be granted even if there is less than a 50% chance of prevailing on appeal where the issue is difficult, or where it is one of first impression over which reasonable minds may reach different conclusions. Id. at 279.

     In the cases at bar, Chuuk has made no showing as to any of these factors, and the court concludes that no stay pending appeal is warranted. As to the first factor, Chuuk undeniably owes the

[12 FSM Intrm. 8]

judgments, as liability is not an issue on appeal. It must pay them. The only issue for appeal purposes is how the judgments will be paid. Thus, Chuuk will not suffer irreparable harm if no stay is granted, even if the appellate court were to reverse this court’s decision as to how payment should proceed. As to the second factor, the stay would harm the plaintiffs, since it would further delay exoneration of the constitutional rights that the judgments are intended to vindicate. As to the third factor, all citizens have an interest in preserving the constitutional rights guaranteed to all FSM citizens. In this respect, the public interest would be disserved by the further delay in satisfaction of the judgments at issue. Finally, the issue presented, which is the constitutionality of 6 F.S.M.C. 707, is one of first impression, but in light of the other considerations ) a material one being that Chuuk’s liability is not at issue ) this fact does not alone compel the conclusion that a stay should issue. Accordingly, Chuuk’s motion for stay is denied.

B. The FSM’s motions to intervene and to stay

1. Intervention

     The basis for the FSM’s requested intervention is FSM Civil Rule 24(c), which provides in pertinent part that "[w]hen the constitutionality of an Act of the Congress of the Federated States of Micronesia affecting the public interest is drawn in question in any action to which the Federated States of Micronesia or an officer, agency, or employee thereof is not a party, the court shall notify the Attorney General of the Federated States of Micronesia." The court entered separate orders in aid of judgment in both cases on May 19, 2003, in which it found 6 F.S.M.C. 707 unconstitutional. Also on that date, it issued writs of garnishment that designated the FSM as "garnishee/defendant." The FSM had no notice, prior to the May 19, 2003 orders, that the plaintiffs had called into question the constitutionality of 6 F.S.M.C. 707 by post judgment motions filed in both cases.

     While there is authority that it was the moving party’s burden ) in this instance, the judgment creditors’ ) to insure compliance with the Rule 24(c), In re Snellgrove, 15 B.R. 149, 152 (Bkrtcy. S.D. Fla. 1981), the language of the rule provides that the court "shall notify" the attorney general, and the better course would have been for the court to insure that the FSM attorney general’s office had received notice. However, the failure to notify the attorney general does not deprive the court of jurisdiction. James Wm. Moore et al., Moore’s Federal Practice § 24.02[2][b] (3d ed. 1999) (citing in n.13 Kealey Pharmacy v. Walgreen Co., 761 F. 2d 345, 350 (7th Cir. 1985); Wallach v. Lieberman, 366 F. 2d 254, 258 (2d Cir. 1966)).

     The May 19, 2003 writs of garnishment, which were entered before the May 28, 2003 notices of appeal, formally designates the FSM as a "garnishee/defendant." Thus, the FSM has been a party as of May 19, 20032, and the FSM’s motion to intervene is therefore moot. Second, even if the May 19, 2003 writs had not designated the FSM as a party, certification by the court to the attorney general that the constitutionality of a statute has been drawn into question and subsequent intervention may occur at any stage of a proceeding. Glidden v. Zdanok, 368 U.S. 814, 82 S. Ct. 56, 7 L. Ed. 2d 22 (1961) (certification by the United States Court to the attorney general that the constitutionality of a statute had been called into question); Glidden v. Zdanok, 368 U.S. 82 S. Ct. 140 (1961) (granting attorney general’s motion to intervene before the United States Supreme Court); Glidden v. Zdanok,

[12 FSM Intrm. 9]

370 U.S. 530, 531, 82 S. Ct. 1459, 1462, 8 L. Ed. 2d 671, 676 (1962) (subsequent appearance before the same court). Thus, irrespective of the fact that the FSM has been a party as of May 19, 2003, the FSM could intervene as a matter of right in any appeal of this matter. As noted, Chuuk filed its notice of appeal on May 28, 2003.

     As to the FSM’s request for substantive relief, its June 4, 2003, motions to intervene and its subsequent June 25, 2003, filing in Davis (also by this order made a part of the record in Mori) challenge this court’s conclusion of law regarding the constitutionality of 6 F.S.M.C. 707. Thus, the FSM seeks relief from the orders and writs entered on May 19, 2003. The motions are predicated on lack of notice, and as such constitute a request for relief under FSM Civil Rule 60(b)(1), which provides that the court may relieve a party from a final order on the basis of surprise. In Meippen v. Walter, 7 FSM Intrm. 515, 518 (Chk. 1996), the court outlined what the trial court may do where both a Rule 60(b) motion and a notice of appeal have been filed. The court may deny the motion and leave the order appealed from intact. Id. However, if the court is inclined to grant the motion it may only state on the record what it would do in the event that the case were remanded to it, since the filing of the notice of appeal transferred jurisdiction to the appellate division. Id.

     In its June 4, 2003 motion the FSM asserts that the court did not take into account the FSM’s interest in enacting legislation which prohibited the garnishment of funds held by the FSM. In its subsequent June 25, 2003 submission in Davis, now also made a part of the record in Mori, the FSM raises a number of issues. Broadly, the first point of discussion has to do with the purpose of 6 F.S.M.C. 707 as set out in Standing Committee Report No. 10-286, while the second is directed to alternatives to a declaration that 6 F.S.M.C. 707 is unconstitutional. Under its second discussion point, the FSM also raises a number of subpoints. The court addresses each of these concerns, and indicates how the court would rule on these issues if jurisdiction were returned to this court on remand. Meippen, 7 FSM Intrm. at 518.

     a. Standing Committee Report No. 10-286

     Standing Committee Report No. 10-286 provides that the purpose of 6 F.S.M.C. 707's prohibition against garnishment of funds held for the benefit of the states by the national government is

to remove the option that the States’ creditors be able [sic] to get an order against the National Government every time they get a judgment against a State, thus posing potentially significant administrative problems and, by providing a means for circumventing the States’ avenues for satisfying judgments against them, possibly creating conflict between the States and the National Government.

The report is predicated on the assumption that a creditor of Chuuk, or any of the other three states, would be able to obtain a garnishment order "every time they get a judgment against a State." But this assumption is inconsistent with the orders in these two cases. The May 19, 2002 orders make it clear that the finding of unconstitutionality of 6 F.S.M.C. 707 applies only to the facts of these two cases, both of which involve judgments based on violation of constitutional rights guaranteed under the FSM Constitution’s Declaration of Rights, and for which a cause of action is expressly conferred by national statute, 11 F.S.M.C. 701 et seq. The court expressly stated in the May 19, 2003, order in Estate of Mori, 11 FSM Intrm. at 541 that "[i]n the usual case the payment of a money judgment against the state of Chuuk must abide a legislative appropriation." While this court cannot foresee the nature of any case that may come before it, suffice it to say that "the usual case" means the ordinary civil case for money damages.

[12 FSM Intrm. 10]

     Moreover, the possibility of "significant administrative problems" is one that must be placed in the context of the cases at bar. A garnishment order directs the garnishee, which is the person or entity holding money for the benefit of the judgment creditor, to pay sufficient money to the judgment creditor to discharge the judgment. Before this can occur, the garnishee must determine if and how much money it holds for the judgment debtor, and then pay the judgment amount. This will involve administrative steps by the garnishee. But this administrative activity does not appear onerous, and in comparison to the many hundreds of judgments now outstanding against Chuuk ) the FSM asserts that these number more than 800, Response [] in Davis at 4 (June 25, 2003) ) would be required in a very few cases3. Further, even if the administrative burden were significant, it would be offset by the substantially greater weight of the fundamental human rights guaranteed by the FSM’s Constitution’s Declaration of Rights that are at issue here. In such a case, a mere administrative burden may not be interposed as an obstacle to the vindication of those rights.

     Finally, the committee report states that a garnishment order would act to "circumvent[]" Chuuk’s "avenues for satisfying judgments against" it. As applied to the facts of the two cases at bar, this proposition is inapposite. The problem in both of the cases at bar has not been that any plan of Chuuk’s to pay the judgments has been circumvented. There can be no circumvention because there has been no plan. As noted in the May 19, 2003, order in Estate of Mori, 11 FSM Intrm. at 540, the chairman of the Chuuk Financial Control Commission ("CFCC") abdicated any responsibility for formulating a payment plan, and claimed that the CFCC’s only authority is to approve or disapprove proposed expenditures submitted to it. This was so even in the face of the express language of § 7(e)(iii) of the Chuuk State Law 6-02-09, which provides that the CFCC "shall," in a timely manner develop in consultation with the Governor and Attorney General subsequent legislation for appropriation or other purposes for consideration by the Chuuk State Legislature to address specific future actions of the Commission in the following areas; . . . (iii) Court judgments and claims." Thus, the concern expressed in the committee report that a garnishment stands in the way of Chuuk’s payment of judgments against it is not viable where, as here, Chuuk has not proposed a plan.

b. The FSM’s alternatives to a finding that 6 F.S.M.C. 707 is unconstitutional

     The FSM also contends that there are three alternatives to the legal conclusion that 6 F.S.M.C. 707 is unconstitutional. First, the FSM asserts that the court can order the CFCC to comply with its duties under § 7(g)(iii) [sic ) actually § 7(e)(iii)] of Chuuk State Law 6-02-09, and order it to make no payments to anyone except state employees and other judgment creditors until it "receives . . . legislative approval for a plan to pay judgment creditors of the state with a priority given to individual civil rights judgments."4 Response [] in Davis at 1-2 (June 25, 2003). How this is to prove workable,

[12 FSM Intrm. 11]

however, is a point that the FSM does not address. This court has already concluded that "[o]rdering Chuuk to pay the judgment[s] through taking the first step in that direction by proposing a payment plan has not proved a workable means of obtaining satisfaction of the judgment[s]." Estate of Mori, 11 FSM Intrm. at 540. But even assuming that the CFCC would propose such a plan, the CFCC has no statutory or other authority by which it may be assured of obtaining approval from the Chuuk State Legislature to achieve payment of the judgments in question5. Throughout the long post-judgment history of these two cases, the Chuuk State Legislature has not acted to appropriate money to fund the payment of these judgments. If it had, these two cases would not be before the court in the posture that they are today. On the record now before the court, there can be no reasoned basis on which to conclude that the Chuuk State Legislature would act at the behest of the CFCC to approve any plan submitted to it by the CFCC and appropriate money to fund the payment of these judgments. Thus, this is not a viable approach to the issue at hand.

     The FSM’s second alternative to a finding that 6 F.S.M.C. 707 is unconstitutional is that the court could determine Chuuk to be insolvent and appoint a receiver to manage Chuuk’s debts. The FSM characterizes this as a "much more drastic approach," Response [] in Davis at 4 (June 25, 2003), and the court agrees, of insuring the payment of Chuuk’s judgments. It is also a course upon which this court will not embark without the benefit of a substantially fuller record than that now before it.

[12 FSM Intrm. 12]

     The FSM’s third alternative is that this court could find Chuuk State Law 6-02-09 unconstitutional to the extent that it denies payment of judgments based on civil rights violations. The FSM does not explore this position, but rather states that "[t]he argument for this position is set forth by the court in its finding that section 707 of title 6 is unconstitutional." Response [] in Davis at 4 (June 25, 2003). It is not clear what purpose would be served by finding Chuuk State Law 6-02-09 unconstitutional in light of the fact that the court has found that the remedy provided in the statute is not workable. Delving into the constitutionality of an unworkable statute is not an endeavor calculated to bear fruit. Moreover, the FSM’s contention is not a meaningful departure from its first alternative. The conclusion that the statute is unconstitutional to the extent that it denies payment of judgments based on civil rights violations at least implies that the statute may be judicially tailored in application to make the statute workable. This, however, is essentially a way of restating the FSM’s first alternative, which the court has rejected. Similarly, the court rejects the FSM’s proposed third alternative.

     As a final point on the question of alternatives to the conclusion that 6 F.S.M.C. 707 is unconstitutional as applied to judgments based on civil rights violations, Chuuk urges in its July 7, 2003, identical responses filed in each case to the FSM’s motions to intervene and to stay that this court should defer to the plan for the payment of court judgments set out in the July 9, 2002, order in Chuuk State Supreme Court Civil Action 28-93, Narruhn v. Chuuk, 11 FSM Intrm. 48 (Chk. S. Ct. Tr. 2002). However, the Narruhn order is a state court order that does not address the question of national court judgments based on the violation of civil rights guaranteed under the FSM Constitution. It does not provide guidance with respect to enforcement of the judgments in the cases at bar.

     Accordingly, for the foregoing reasons the court would deny the FSM’s request for substantive relief in these cases in the event that the cases were remanded to it.

2. Stay

     The FSM seeks a stay of the May 19, 2002, orders "pending an opportunity for the FSM to be heard upon the issues." Motion [] in Mori at 5 (June 4, 2003); Motion [] in Davis at 4 (June 4, 2003). The court takes "pending an opportunity for the FSM to be heard upon the issues" to mean the disposition of the FSM’s June 4, 2003, motions in both cases. The court has deemed the June 4, 2003, motions to intervene and the subsequent June 25, 2003 filing in Davis (also by this order made a part of the record in Mori) as a request for relief under FSM Civil Rule 60(b)(1). Under FSM Civil Rule 62(b), the court "may stay the execution of any proceedings to enforce a judgment pending the disposition of . . . a motion for relief from a judgment or order made pursuant to rule 60." Thus, the court has jurisdiction to entertain the FSM’s motion for stay. Today’s order disposes of the intervention issue, and also addresses the FSM’s arguments relative to the constitutionality of 6 F.S.M.C. 707. The motions for stay are granted nunc pro tunc during their pendency, i.e., from today retroactively to the submission of the motions on June 4, 2003. Prospectively, however, the motions for stay are denied.

     The stay that terminates under the terms of today’s order leaves the May 19, 2003, writs of garnishment in place. Those writs require the FSM to pay the judgments and attorney’s fees awards in both cases, plus accrued interest. The FSM may pay the judgments under protest and still preserve its grounds for appeal in these two cases where execution proceedings have occurred. See Louis v. Kutta, Civ. Act. No. 1994-1023 (Chk. Oct. 7, 1998) (order requesting additional briefing from parties (citing E.H. Schopler, Defeated Party’s Payment or Satisfaction of, or Compliance with, Civil Judgment as Barring his Right to Appeal, 39 A.L.R.2d 153, 166 n.11, at § 6[a], 172 at § 8(c) (1955))). Further, since the FSM is only a stakeholder of funds designated to pay a liability of Chuuk’s where that liability is not at issue, the issue of recapture in the event that the orders and writs are reversed on appeal does not arise.

[12 FSM Intrm. 13]

C. Plaintiffs’ motion for supplementary attorney’s fees

     Plaintiff has also requested supplementary attorney’s fees against Chuuk incurred since March 7, 2003, in Mori. Chuuk has not objected. As this goes to an issue that is not subject to the May 28, 2003, appeal, the court has jurisdiction to grant the motion. Accordingly, and good cause appearing, supplementary fees in the amount of $1,128.00 are awarded. The FSM is directed to pay this amount under the May 19, 2003, writ of garnishment.

     All pending motions to file by fax are mooted by the receipt of originals except as noted herein.

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__________________________________

Footnotes:

1. The order requiring further input on the question of alternative means of payment was issued in both cases, and a response should have been filed in both. The response addresses post-judgment issues common to both cases. The clerk is directed to place a copy of the June 25, 2003 Davis response in the Mori file so that the June 25, 2003 response will be part of the record in Mori.

2 . If the FSM were not already a party, the court could not grant the motion to intervene, since it would have no jurisdiction to permit intervention once a notice of appeal has been filed. Evens & Howard Fire Brick Co. v. United States, 236 U.S. 210, 211, 35 S. Ct. 415, 415, 59 L. Ed. 542, 542 (1915) (no jurisdiction on the part of the trial court to grant intervention after notice of appeal filed; but relief sought below obtained as a result of original petition for intervention filed in the U.S. Supreme Court).

3 . There is one other case, Atesom v. Kukkun, 10 FSM Intrm. 19 (Chk. 2001), in which the FSM Supreme Court entered a judgment based on a civil rights claim. In a second case, Saret v. Chuuk, 10 FSM Intrm. 320 (Chk. 2001), the parties stipulated to motion on July 26, 2001, for a final judgment that recites that the "lawsuit [is one] for civil and constitutional right violations." A third case, Fritz v. Weno, Civil Action No. 2001-1021, which is now pending in Chuuk, makes a claim for constitutional rights violations.

4. As a subhead under this argument, the FSM claims that this approach has three advantages.

     First, the FSM asserts that such an approach avoids "the sophistry that funds belonging to Chuuk but collected and held by the national government are other than un-appropriated funds of Chuuk State and are therefore not subject to the same Chuuk State appropriations laws and protection from creditors as other un-appropriated Chuuk State funds." This statement misses the point that the purpose of a garnishment order is to secure payment of a judgment from funds held by the FSM for the benefit of Chuuk before those funds come under Chuuk’s control. Sophistry of any stripe is not implicated where this method, as it did in Louis v. Kutta, 8 FSM Intrm. 208 (Chk. 1997), serves to secure payment of the judgment in question.

     Second, the FSM contends that ordering the CFCC to pay the judgment "would avoid the implication that the FSM Supreme Court is incapable of enforcing its money judgments for other types of litigants who prevail against Chuuk." No such conclusions follows from the failure to find Chuuk State Law 6-02-09 unconstitutional. The court has found that the facts of the two cases at bar dictate garnishment as a means of enforcing the judgments. Other litigants, however, must look to the law as it applies to the facts of their cases.

     Third, the FSM contends that an additional advantage of ordering the CFCC to the pay the judgments would avoid

further possible problems with enforcement of future civil rights judgments should the FSM and the State of Chuuk agree to an accounting change that makes the Chuuk State current account a sweep account with daily sweeps of the funds or makes a change that puts the money directly into a Chuuk State account with the national government never having control of the funds. Such changes are not under consideration by the national government. This matter is only addressed to inform the court of potential pitfalls.

Response [] in Davis at 3 (June 25, 2003). If such a course of action were not under discussion, then it is not clear why this point is raised. This concern notwithstanding, the court will not opine on the propriety of such a hypothetical course of conduct, if it were undertaken in concert by the FSM and Chuuk to defeat a civil rights judgment creditor’s attempts to execute on his judgment.

5.  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 7(g) of Chuuk State Law 6-02-09 is to the same effect, and states that "[t]he commission is precluded from paying any court ordered judgements [sic], unless specifically appropriated by law." Neither of these two provisions is facially objectionable. Viewed proactively, this requirement is a useful means of assuring accountability for the actual expenditure of state funds. What is not constitutionally permissible is to use the requirement defensively to avoid payment of a judgment based on a civil rights claim brought under the national civil rights statute, 11 F.S.M.C. 701 et seq. Principles of supremacy under Article II of the FSM Constitution preclude this result. Louis v. Kutta, 8 FSM Intrm. 208, 212 (Chk. 1997).