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HEADNOTES

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COURT'S OPINION

CAMILLO NOKET, Chief Justice:

This matter is before the Court on Plaintiff's Motion for Summary Judgment. A hearing was held and oral arguments were presented. In light of all the information presented, and in addition to the moving and opposition papers, the Court grants in part, and denies in part Plaintiff's Motion for Summary Judgment.

FACTUAL BACKGROUND

The initial complaint originated in the civil action 129-90, which was premised on an inverse condemnation action. Compl. 129-90. Plaintiff, Minoru Kama ("Plaintiff") was the undisputed owner of Lot 64098, which, on or about 1989, Defendant, Chuuk State, constructed a paved road through. Id. at 2. Plaintiff asserted, and Defendant did not refute, that in the process of paving and widening the road, said road was extended into the land owned by Plaintiff. Id. The Defendants do not dispute that they committed the relevant conduct under color of state law. Defendant offered a judgment in the amount of $80,000 as compensation for the land that was taken. Offer & Acceptance of J. Plaintiff accepted said offer and accordingly, a judgment was entered on June 13, 1994, in the amount of $80,000. J. in CSSC 129-90; Mot. for Summ. J. at 5, Opp'n to Summ. J. at 2. The undisputed condition of the judgment articulated that were payment not made within 90 days, post judgment interest would then accrue from the date of the entry of judgment. Opp'n at 2. Payment was not made within 90 days, additionally, from 1998 to 2002; a combined total of $5,920 was made on the judgment. Id. at 2-3.

PROCEDURAL BACKGROUND

Plaintiff filed a complaint on February 10, 2011. The complaint alleged three causes of actions: (1) Violation of civil rights and constitutional right of due process; (2) Confirmation of judgment; (3) Declaratory relief. On November 30, 2011, Plaintiff moved for summary judgment seeking the following determinations:

1. Whether a judgment is a property interest in the State of Chuuk;

2. Whether the civil rights of the Plaintiff have been violated based on the failure to satisfy the judgment rendered in CSSC No. 129-90;

3. Whether pursuant to the equal protection clause, this Court is constitutionally authorized to issue writs against the State of Chuuk to enforce judgments;

4. Whether the Court can confirm the judgment in CSSC No. 129-90;

5. Whether a judgment is enforceable against the State of Chuuk upon the expiration of 20 years.

As explained below, the Court denies Plaintiff's motion for summary judgment on issue 1, 2, 3, and 5, and grants the motion in regards to issue 4.

LEGAL STANDARD

A court is empowered to enter summary judgment on factually unsupported claims or defenses. Etscheit v. Adams, 6 FSM Intrm. 365, 373 (Pon. 1994). Summary judgment is appropriate "if the

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pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Chk. Civ. R. 56(c). A fact is material when, under the substantive governing law; it affects the outcome of the case. The party moving for summary judgment bears the initial burden of establishing the absence of genuine issue of material fact. Etscheit, 6 FSM Intrm. 365. If the moving party does not have the burden of proof at trial, it may carry its initial burden by producing evidence negating an essential element of the non moving party's case, or, after suitable discovery, the moving party may show that the nonmoving party does not have enough evidence of an essential element of its claim or defense to carry its ultimate burden of persuasion at trial.

In rendering a decision, the Court must first consult and apply legal sources of Chuuk State. In resolving a Constitutional question, first the Court must look at plain meaning of words of the Constitution. If the Constitution is not clear as to a particular provision, the Court should attempt to ascertain the intent of the drafters by looking at Constitutional Convention and the reasons expressed for including a particular provision in the Constitution. Finally, if there are provisions in the FSM Constitution similar to provisions in other countries' constitutions, the Court may look to case law of other countries for guidance, but is not bound. Alaphanso v. FSM, 1 FSM Intrm. 209, 213 (App. 1982); Suldan v. FSM (II), 1 FSM Intrm. 339, 345 (Pon. 1983).

ANALYSIS

No Genuine Issue of Material Fact Exists Regarding Whether a Judgment is a Property Interest in the State of Chuuk

On the issue of judgment as a property interest, Plaintiff correctly asserts that this is a case of first impression in the State of Chuuk. Plaintiff argues that by failing to fully satisfy the judgment in CSSC No.: 129-90, the State of Chuuk has deprived the Plaintiff of property, and that the failure to pay is a willful method of ignoring existing debts. Mot. for Summ. J. at 8. Plaintiff relies on a U.S. Supreme Court case, Louisiana ex rel. Folsom v. Mayor of New Orleans. 109 U.S. 285, 3 S. Ct. 211, 27 L. Ed. 936 (1883), in discussing the issue of a government being able to ignore its debts. Particularly, Plaintiff relies on the concurring opinion and the dissent to define the right of due process regarding a property right incumbent to judgments. Mot. for Summ. J. at 12. Plaintiff asserts that for the court to narrowly define judgment as not being a property interest would effectively eliminate due process constitutionally afforded to Plaintiff. Id.

In opposition, Defendant cites Folsom, however, unlike Plaintiff, Defendant correctly notes that the instant case is dissimilar from Folsom, in that in Folsom, a specific state statute created the property right in question. Opp'n to Summ. J. at 3. Defendant further argues that due to the partial satisfaction of the judgment, the obligation of the judgment continues. Id. at 4. Additionally, Defendant distinguishes the instant case from Barrett v. Chuuk by highlighting the FSM Appellate Court findings in Narruhn which explained that the court in Barrett made a determination based on an entry of default judgment and therefore relied solely on the record and did not make any legal findings as to the question of whether a judgment is a property interest. See Narruhn v. Chuuk, 16 FSM Intrm. 558 (App. 2009); Barrett v. Chuuk, 12 FSM Intrm. 558, 561-62 (Chk. 2004). Neither Plaintiff nor Defendant raises any issues of material fact regarding the topic of whether a judgment is a property interest in the State of Chuuk.

Since this is an issue of first impression, the US Court decisions are used for guidance. The Constitution does not create property interests, property interests "are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law[,] . . . that secure certain benefits, and that support claims of entitlement to those benefits." Board

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of Regents of State Colleges v. Roth, 408 U.S. 564, 577, 92 S. Ct. 2701, 2709, 33 L. Ed.2d 548, 561 (1972). US Supreme Court cases emphasize that the hallmark of property "is an individual entitlement grounded in state law, which cannot be removed except 'for cause.' Once that characteristic is found, the types of interests protected as 'property' are varied and, as often as not, intangible, relating 'to the whole domain of social and economic fact.'" Logan v. Zimmerman Brush Co., 455 U.S. 422, 430, 102 S. Ct. 1148, 1155, 71 L. Ed.2d 265, 274 (1982) (citations omitted). Property is more than mere ownership. It includes the right to acquire, use, enjoy, and dispose of acquisitions subject only to the law of the land. Morton Grove Park Dist. v. American Nat'l Bank, 399 N.E.2d 1295, 1299 (Ill. 1980). See Buchanan v. Warley, 245 U.S. 60, 74, 38 S. Ct. 16, 18, 62 L. Ed. 149, 161 (1917). However, the property right created by a judgment against a government entity is not a right to payment at a particular time but merely the recognition of a continuing debt of that government entity. Louisiana ex rel. Folsom v. Mayor of New Orleans. 109 U.S. 285, 289, 3 S. Ct. 211, 214, 27 L. Ed. 936, 938 (1883).

The political authority of Chuuk is divided into legislative, executive and judicial powers. The powers delegated to the three branches are functionally identifiable, distinct, and definable. These three powers must be separate and acting independently with the intent being to prevent the concentration of power and provide for checks and balances. The legislative branch is responsible for enacting the laws of the state and appropriating the money necessary to operate the government, the executive branch is responsible for implementing and administering the public policy enacted and funded by the legislative branch while the judicial branch is responsible for interpreting the constitution and laws and applying their interpretations to controversies brought before it. Adhering to the authority vested in the judicial branch, the court should only interpret the laws regarding property in Chuuk State; it should not take over the role of the legislative branch. In 2007, the Debt Relief Fund was established, with a corresponding Chuuk State Debt Relief Commission. The purported legislative intent for the establishment of the Commission was to categorize and clear debt in a manner that would maintain the financial integrity of the government. The debts that the Commission aims to clear include court judgments, which demonstrate the legislative intent to respect the judgments rendered by the judicial branch. Based on the research of existing legislation, there has been no showing of a specific desire to ascribe a property right to judgments, and therefore, absent a specific Chuuk State legislation creating a specific property right, such a right cannot be ascribed to judgments. Consequently, Plaintiff's motion for summary judgment is denied and granted as to Defendant.

No Genuine Issue of Material Fact Exists Regarding Whether the Civil Rights of the Plaintiff were violated on the Failure to Satisfy the Judgment Rendered in CSSC No.: 129-90

Plaintiff brings a claim pursuant to Article III, section 2 of the Chuuk State Constitution, 11 F.S.M.C. 701 et seq. and the FSM Constitution, Article IV, section 3. Article III, Section 2 of the Chuuk State Constitution provides:

No person may be deprived of life, liberty, or property without due process of law, be denied equal protection under the law, be denied the enjoyment of civil rights, or be discriminated against in the exercise of civil rights, on account of race, sex, religion, language, dialect, ancestry, national origin or social status.

In support of its motion for summary judgment, Plaintiff contends that the Defendant's reluctance to pay the judgment rendered rises to the level of a deprivation of property without due process of law, in violation of the Chuuk State Constitution. Compl. at 2. Plaintiff further asserts that the availability of writs of garnishment to non-FSM citizens (and the inability of FSM Citizens to acquire the same) amount to a deprivation of equal protection of the laws. Id. Plaintiff asserts that since the judgment was issued, Defendant has paid an amount less than $10,000 towards this judgment. Compl.

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at 2. Due to the infrequent and minimal payments, the payments were applied to interest and have failed to reduce the principal amount of the judgment. Id. The last payment made by Defendant was over eight years ago. Id. Plaintiff has attempted enforcement proceedings in the initial case, but since the passing of the Justice to whom the case was assigned, no further action by the Court has been taken since 2003. Id. at 3. Plaintiff further cites Narruhn v. Chuuk, CSSC No. 28-93, in which an order dated July 5, 2002 [11 FSM Intrm. 48 (Chk. S. Ct. Tr. 2002)] was issued instructing the State of Chuuk to pay judgments in full. Plaintiff has not received any payment on the judgment since the issuance of the order in the aforementioned case. Id. Plaintiff cites the deprivation of an effective means to collect on the judgment as a violation of a property right without due process. Id. at 4. Plaintiff additionally argues that non-FSM citizens may receive writs of garnishment against the State to enforce their judgments, and this same remedy is not available to citizens of the State of Chuuk. Id. Plaintiff believes that such restrictions amount to a deprivation of equal protection of the laws. Id.

In opposition, Defendant primarily relies on the argument that since a judgment does not create a property interest; the deprivation of the former could not amount to a civil rights violation under either Chuuk State law or FSM law. Opp'n to Summ. J. at 8. Further, Defendant states that assuming arguendo, a judgment does create a property interest, partial satisfaction of the debt, combined with the establishment of the Debt Relief Fund contradict the assertions by Plaintiff of a deprivation of a means to collect on the judgment. Id. Defendant cites the creation of the Debt Relief Fund as a good faith effort to eliminate the State's mounting debts. Id. at 9.

Plaintiff responds to the creation reliance on the Chuuk State Debt Relief Commission by asserting that the State does not adequately fund the Commission to pay accumulated debts, and as a result, the judgment will never be paid, rendering it valueless. Supplement to Mot. for Sanctions & Summ. J. at 5. Essentially, Plaintiff assertions allege that the Debt Relief Fund is essentially an additional mechanism for the Defendant to avoid payment of debts.¹

Neither side disputes the facts in this issue. Both Plaintiff and Defendant agree that there was a valid judgment, which has not been fully satisfied.

Article IV, Section 3 of the FSM Constitution provides that "a person may not be deprived of life, liberty or property without due process of law . . ." FSM Const. art. IV, § 3. In order to prevail on a claim of deprivation of liberty or property without due process of law, a plaintiff must: (1) identify a liberty or property right which implicates the Due Process Clause; (2) identify a governmental action which amounts to a deprivation of that liberty or property right; and (3) demonstrate that the deprivation occurred without due process of law.

Plaintiff specifically alleges that the deprivation of an effective means to collect on his valid judgment as a violation of a property right without due process. No state shall "deprive any person of life, liberty, or property without due process of law," is the mandate of the constitution. However, a party cannot be said to be deprived of his property in a judgment because at the time he is unable to collect it. Louisiana ex rel. Folsom v. Mayor of New Orleans. 109 U.S. 285, 289, 3 S. Ct. 211, 214, 27 L. Ed. 936, 938 (1883). It is said that the plaintiffs are not deprived of their judgments, so long as they continue to be existing liabilities against the entity, therefore a failure to timely fulfill a judgment does not constitute a taking in violation of the due process clause as there continues to be an existing liability against the state. The judgment issued is valid and represents an existing liability against the state of Chuuk. Additionally, as established in the prior issue, no property right can be ascribed to the judgment at issue; therefore the due process standard is not applicable. For the aforementioned

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reasons, Plaintiff's motion for summary judgment is denied; summary judgment granted to Defendant on the issue of whether civil rights of the Plaintiff have been violated based on the failure to satisfy the judgment rendered in CSSC No.: 129-90.

No Genuine Issue of Material Fact Exists Regarding Whether Pursuant to the Equal Protection Clause, this Court is Constitutionally Authorized to Issue Writs Against the State of Chuuk to Enforce Judgments

Plaintiff relies on Article III, Section 2, of the Chuuk State Constitution to assert an equal protection claim. Mot. for Summ. J. at 18. Plaintiff analogizes the instant case to Barrett, a case in which a US Citizen brought a civil action in order to receive a writ of garnishment to pay off an old judgment. Id. Plaintiff asserts that the only reason for the inability to secure a writ of garnishment in the instant case is the national origin of the Plaintiff. Id. at 19.

In opposition, the Defendant fails to specifically address the issue of equal protection.²

The FSM Supreme Court has issued writs of garnishment directed toward the assets of a state government where the underlying cause of action is based on a violation of the national civil rights statute. The rationale for those writs was the Supremacy Article of the FSM Constitution, which must control regardless of a state constitutional provision, or national law, to the contrary. It has declined to issue a writ of garnishment where the judgment debtor was a state government and the judgment was based on ordinary breach of contract. FSM Social Sec. Admin. v. Lelu Town, 13 FSM Intrm. 60, 62 (Kos. 2004). The FSM court has granted writs of garnishment against funds held by the national government for the benefit of the State of Chuuk only in one instance, and that is where a judgment was entered against the state for violations of 11 F.S.M.C. 701 et seq., the national civil rights statute. Barrett v. Chuuk, 12 FSM Intrm. 558, 560 (Chk. 2004).

Plaintiff does not allege a violation of the national civil rights statute, and actually cites a violation of a State law. The specific cases Plaintiff relies on are dissimilar from the instant case in that there is a difference between an alleged violation of a State law as opposed to an alleged violation of a National law. Further, Section 4 of the Chuuk State Judiciary Act [Chk. S.L. No. 190-08, § 4] states in pertinent part, "[e]ach court shall have power to issue all writs for equitable an legal relief; except the power of attachment, execution and garnishment of public property . . . ." thus effectively distinguishing the ability of the instant court to issue a writ of garnishment, similar to that issued in Barrett. Irrespective of national origin, the Court is without the power to issue the writ sought by Plaintiff.

No genuine issues of material fact are raised pertaining to this issue, therefore summary judgment on the issue of whether the Court is Constitutionally authorized to issue writs against the State of Chuuk, is denied as to Plaintiff and granted as to Defendant.

No Genuine Issue of Material Fact Exists Regarding Whether the Court can confirm the Judgment in CSSC No.: 129-90

Plaintiff seeks confirmation of the judgment in CSSC No.: 129-90, which was issued June 13, 1994 in favor of Plaintiff. Id. at 5. Plaintiff seeks confirmation of the judgment to avoid the

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presumption of payment. Id. The initial judgment was in the amount of $80,000. Id. The judgment was not paid within the 90-day period and therefore post-judgment interest must be accrued from the date of entry of judgment. J. at 1. Plaintiff presents documentation demonstrating the undisputed judgment in CSSC No.: 129-90. Said documentation reflects an initial principal of $80,000, with post judgment interest through November 18, 2011 of $119,597.34.³ Mot. for Summ. J. at 19. No allowance was made to credit the Defendant for the amount already paid towards the balance as the amounts paid were applied to interest only. Id. In response to the issue of confirmation of the judgment in CSSC No.: 129-90, Defendant explicitly states, "this is not disputed in facts" thereby implying that summary judgment is in fact appropriate in this instance. Opp'n to Summ. J. at 2. Defendant further admits that the judgment was entered on June 13, 1994 and that the terms of the judgment specifically stated that payment not made within 90 days would incur a post judgment interest accruing from the date of the entry of judgment. Id. Further, Defendant agrees that payment was not made within the 90-day period. Id. at 3. Defendant asserts that payments in the amount of $5,920 were made between 1998 to 2002. Id.

The Court finds that there is an undisputed judgment in this matter. The judgment exists and a mere recognition of an existing legal obligation would be redundant. No genuine issues of material fact exists regarding the judgment in CSSC No.: 129-90 therefore summary judgment in favor of the Plaintiff on this issue is proper.

No Genuine Issue of Material Fact Exists Regarding Whether a Judgment is Enforceable Against the State of Chuuk Upon the Expiration of 20 years

Plaintiff cites 6 TTC 301 in asserting that a judgment is presumed paid within 20 years, and further cites 6 TTC 302 in asserting that an action for enforcement of judgment is subject to a twenty year statute of limitations. Enforcement proceedings have occurred in civil action 129-90. Plaintiff further alleges Defendant's failure to timely fulfill the judgment is a willful policy to avoid payment of judgments. In opposition, Defendant cites Walter v. Chuuk, 10 FSM Intrm. 312, 316 (Chk. 2001) in demonstrating that a judgment can be revived if certain steps are taken. Opp'n to Summ. J. at 13.

To address this issue, the intent of the law surrounding the presumption of payment must first be addressed. The rebuttable presumption of payment originated in equity by analogy to the English statute of limitations as early as the statute of 32 Henry VIII, C.F. (1540), and was later made part of the common law. Kyle v. Green Acres at Verona, Inc., 207 A.2d 513, 514-15 (N.J. 1965); Metlar v. Williams, 97 A. 961, 962 (N.J. Ch. 1916). While a statute of limitations bars a claim after the passage of a specified time, the common-law rebuttable presumption of payment, on the other hand, is used as evidence, based on the lapse of time, to create a rebuttable inference that the debt has been paid or otherwise satisfied. The presumption is based on the assumption that a person, before the passage of twenty years, would have recovered what belonged to that person unless prevented by some impediment. Gulick v. Loder, 13 N.J.L. 68, 71-74 (N.J. Sup. Ct. 1832). The persuasiveness of the presumption may be strengthened or diminished by evidence supporting or contradicting the significance of the lapse of time.

In calculating the tolling of the 20-year period, the US courts are well settled in holding that "the presumption cannot be raised until after the lapse of 20 years from when a debt is either due or demandable." See Oxford v. Estes, 158 So. 534, 538 (Ala. 1934) (emphasis added); see also Braun v. Pettyjohn, 58 So. 907, 908 (Ala. 1912). Case law is explicit in contending that the presumption is

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prima facie only and may be rebutted. Additionally, an acknowledgment of the debt within twenty years preceding the action, if made by the debtor, rebuts such presumption. Such acknowledgment need not recognize the debt as a valid and subsisting obligation, and need not expressly nor impliedly contain a promise to pay. It is sufficient if it shows that the debt in question has never been paid. An admission of non-payment coupled with a refusal to pay is sufficient to rebut the presumption of payment. Finally, part payment by a debtor within twenty years before action is begun rebuts such presumption.

Plaintiff's interpretation of the code implies that a plain reading of the text imposes a statute of limitations on the ability to collect on a judgment after 20 years. 6 FSM Code 801 provides that: "[a] judgment of any court shall be presumed to be paid and satisfied at the expiration of twenty years after it is rendered." The Code reflects the common-law rebuttable presumption of payment after a lapse of twenty years. It can therefore be implied that the 20-year statute of limitations for enforcing a judgment is a rule that creates a rebuttable presumption of payment. In the instant case, we conclude that the doctrine of prescription or presumption of payment does not apply, as the 20 years has not lapsed. Specifically, we conclude that no genuine issue of material fact exists regarding whether a judgment is enforceable against the State of Chuuk upon the expiration of 20 years, and summary judgment is therefore appropriate. Plaintiff's motion for summary judgment on this issue is denied summary judgment in favor of the defendant granted.

CONCLUSION

For the foregoing reasons, Plaintiffs' Motion for Summary Judgment on the issue of Whether the Court can confirm the judgment in CSSC No. 129-90 is GRANTED. Further, on the issues of Whether a judgment is a property interest in the State of Chuuk; Whether the civil rights of the Plaintiff have been violated based on the failure to satisfy the judgment rendered in CSSC No. 129-90; Whether pursuant to the equal protection clause, this Court is constitutionally authorized to issue writs against the State of Chuuk to enforce judgments; and Whether a judgment is enforceable against the State of Chuuk upon the expiration of 20 years, summary judgment is DENIED as to Plaintiff and GRANTED in favor of Defendant.

Footnotes:

¹ This particular issue warrants a finding outside the scope of the instant case.

² Defendant asserts that Barrett is not applicable, but with specific regard to the proposition that a judgment is a property right. Opp’n to Summ. J. at 7. While Defendant broadly addresses the issue of civil rights violations, no specific rebuttal to the assertion of a violation of the equal protection clause is made.

³ No documentation was provided to demonstrate the calculation of the post judgment interest daily rate.