FSM SUPREME COURT TRIAL DIVISION

Cite as Barrett v. Chuuk, 14 FSM Intrm. 509 (Chk. 2006)

[14 FSM Intrm. 509]

DANNY P. BARRETT,

Plaintiff,

vs.

STATE OF CHUUK,

Defendant.

CIVIL ACTION NO. 2004-1026

ORDER DENYING ORDER IN AID OF JUDGMENT

Dennis K. Yamase

Associate Justice

Hearing: November 30, 2006

Decided: December 14, 2006

APPEARANCES:

For the Plaintiff:        Stephen V. Finnen, Esq.

                                 P.O. Box 1450

                                 Kolonia, Pohnpei   FM   96941

[14 FSM Intrm. 510]

For the Defendant:  Joses Gallen, Esq.

                                Attorney General

                                Office of the Chuuk Attorney General

                                P.O. Box 189

                                Weno, Chuuk   FM   96942

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HEADNOTES

Attachment and Execution

     Generally, state property cannot be attached, executed upon, or garnished. Barrett v. Chuuk, 14 FSM Intrm. 509, 511 (Chk. 2006).

Attachment and Execution ) Garnishment; Debtors’ and Creditors’ Rights ) Orders in Aid of Judgment

     The trial court will not extend the right to a writ of garnishment against the state beyond that affirmed by the appellate division in Chuuk v. Davis and will therefore deny a judgment-creditor’s request to seize local revenues by the only means logical, a writ of garnishment directed to the FSM national government, when his damages are strictly economic in nature. The suggested alternative, a more drastic step of an order seizing and auctioning the state legislative officers’ new vehicles will also be denied. Barrett v. Chuuk, 14 FSM Intrm. 509, 511 (Chk. 2006).

Debtors’ and Creditors’ Rights ) Orders in Aid of Judgment

     The trial court can issue an order in aid of judgment requiring the state executive branch to submit, within thirty days of entry of this order, an appropriation request to the Legislature for funds to satisfy the judgment. Barrett v. Chuuk, 14 FSM Intrm. 509, 511 (Chk. 2006).

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COURT’S OPINION

DENNIS YAMASE, Associate Justice:

     The plaintiff’s Renewed Motion for an Order in Aid of Judgment was heard on November 30, 2006. The motion is denied. The court’s reasons follow.

I.

     This case was brought as a civil rights action based on the defendant State of Chuuk’s failure to make any payments over the course of more than a decade for Danny P. Barrett’s $16,185 judgment against the State of Chuuk entered on November 24, 1993 in Civil Action No. 1993-1009 on a breach of contract claim. On September 27, 2005, a judgment for the plaintiff was entered in this case in the amount of $33,405.67. On December 5, 2005, the court awarded Barrett fees and costs of $3,351.20.

      On February 7, 2006, Barrett moved for an order in aid of judgment. After hearing on June 12 and 13, 2006, the court, on June 14, 2006 issued an order in aid of judgment that required the Chuuk Director of Administrative Affairs and Finance to determine, by June 30, 2006, whether any unexpended funds remained of a $1.8 million appropriation that was available to pay judgments and, if none was available, that the Governor submit an appropriation request to the Legislature for funds to satisfy the judgment. None of the $1.8 million appropriation was left and no payments were made

[14 FSM Intrm. 511]

on the judgment.

II.

     On October 10, 2006, Barrett filed his Renewed Motion for an Order in Aid of Judgment. Barrett asks the court to order the State to pay the judgment and to seize, by writ of attachment or execution, the funds to do so. Barrett adduced evidence that local revenue paid for nonessential travel and vehicles for state legislative officers and that state governmental operations would not be significantly impaired if those expenditures were not made or the vehicles seized and sold.

      Generally, state property cannot be attached, executed upon, or garnished. Chk. S.L. No. 190-08, § 4. To overcome this bar, Barrett relies on another civil rights case, Davis v. Kutta, 9 FSM Intrm. 565, 567-68 (Chk. 2000), in which the court held that a state could not avoid payment of a civil rights judgment against it merely by not appropriating money to pay that judgment. The Davis trial court eventually ordered the judgment paid by means of a writ of garnishment directed to the FSM national government and levied on the State of Chuuk’s constitutionally-mandated share of local revenue collected by the national government. Davis v. Kutta, 11 FSM Intrm. 545, 549 (Chk. 2003), aff’d sub nom., Chuuk v. Davis, 13 FSM Intrm. 178 (App. 2005). The national government complied and the judgment was satisfied. Davis, 13 FSM Intrm. at 182. Barrett seems to seek a similar writ of garnishment in this case because otherwise any local revenue in Chuuk’s hands would already be appropriated for other purposes.

     The Davis appellate court, in affirming the issuance of a writ of garnishment, stated:

Our holding today applies only to cases where satisfaction of a judgment for physical injuries resulting from civil rights violations has been denied a plaintiff for an unreasonably long period of time. We do not decide, and take no position on, whether plaintiffs whose damages from civil rights violations are strictly economic in nature may satisfy their judgments through similar writs of garnishment.

Davis, 13 FSM Intrm. at 186. Barrett’s damages are strictly economic in nature. This court is reluctant to extend the right to a writ of garnishment beyond that affirmed by the appellate division. This court will therefore deny Barrett’s request to seize local revenues by the only means logical, a writ of garnishment directed to the FSM national government.

     In the alternative, Barrett seeks an order seizing and auctioning the legislative officers’ new vehicles. This is even a more drastic step than a writ of garnishment. It is therefore also denied.

     The previous order in aid of judgment remains in effect. Therefore, if it has not already done so, the executive branch shall submit, within thirty days of entry of this order, an appropriation request to the Legislature for funds to satisfy this judgment.

III.

      Accordingly, Barrett’s renewed motion for an order in aid of judgment is denied. The parties shall each bear their own fees and costs on this motion.

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