[24 FSM R.001]

CIVIL ACTION NO. 2021-1013

Conference: May 23, 2023
Decided: August 21, 2023

APPEARANCES:

For the Petitioner:           Salomon M. Saimon, Esq.
                                        P.O. Box 911
                                        Kolonia, Pohnpei FM 96941

For the Respondent:      Jeffrey S. Tilfas, Esq.
 (FSM)                            Assistant Attorney General
                                       FSM Department of Justice
                                       P.O. Box PS-105
                                       Palikir, Pohnpei FM 96941

For the Respondent:      Mohammed Kutty, Jr., Esq.
 (Chuuk)                         Chuuk Attorney General
                                       Office of the Attorney General
                                       P.O. Box 1050
                                       Weno, Chuuk FM 96942

HEADNOTES

Civil Procedure – Motions – Unopposed

When no opposition has been filed, it is generally deemed a consent to the motion, but even if there is no opposition, the court still needs good grounds before it can grant the motion. Alafanso v. FSM, 24 FSM R. 235, 237 (Chk. 2023).

Statutes – Construction – Retrospective Application

The question of whether a statute acts retrospectively or only prospectively is one of legislative intent. FSM law does not recognize retroactive application of statutes without specific legislative instructions. Alafanso v. FSM, 24 FSM R. 235, 238 (Chk. 2023).

Statutes – Construction – Retrospective Application

Courts observe a strict rule of construction against a retrospective operation, and indulge in the presumption that the legislature intended statutes, or amendments thereof, enacted by it, to operate prospectively only, and not retroactively. A contrary determination will be made only when the legislature's intention to make a statute retroactive is stated in express terms, or is clearly, explicitly, positively, unequivocally, unmistakably, and unambiguously shown. Alafanso v. FSM, 24 FSM R. 235, 238 (Chk. 2023).

Constitutional Law – Due Process; Statutes – Construction – Retrospective Application

It is generally considered violative of the constitutional right to due process to apply a law retroactively when it would divest someone of a vested right or property interest. Alafanso v. FSM, 24 FSM R. 235, 238 (Chk. 2023).

Statutes – Construction – Retrospective Application

When a public law's statutory language seems to speak only in prospective terms and certainly does not expressly state or clearly, explicitly, positively, unequivocally, unmistakably, and unambiguously show legislative intent to make the statute retroactive or for it to be applied retrospectively to previously-awarded public contracts. Alafanso v. FSM, 24 FSM R. 235, 238 (Chk. 2023).

Statutes – Construction – Retrospective Application; Statutes – Repeal

When a later enacted public law is silent about whether it retroactively repealed certain statutes, those statutes in effect at the time of the actions will control. Alafanso v. FSM, 24 FSM R. 235, 238 (Chk. 2023).

Attachment and Execution – Garnishment; Statutes – Construction – Retrospective Application

When a new statute does not does not expressly state or clearly, explicitly, positively, unequivocally, unmistakably, and unambiguously show an intent to retroactively void or invalidate writs of garnishment related to causes pf action conferred by a national statute that had been properly issued before the statute's enactment, it does not apply retroactively. Alafanso v. FSM, 24 FSM R. 235, 238 (Chk. 2023).

Constitutional Law – Interpretation; Statutes – Construction

If a matter may properly be resolved on a statutory basis without reaching the constitutional issue, then, usually, the court must do so. Alafanso v. FSM, 24 FSM R. 235, 239 (Chk. 2023).

COURT'S OPINION

LARRY WENTWORTH, Associate Justice:

This comes before the court on the petitioner's Motion for Declaratory Judgment, filed July 7, 2023. No response was filed. When no opposition has been filed, it is generally deemed a consent to the motion, FSM Civ. R. 6(d); Eot Municipality v. Elimo, 20 FSM R. 7, 9 (Chk. 2015); Dungawin v. Simina, 17 FSM R. 51, 55 (Chk. 2010), but even if there is no opposition, the court still needs good grounds before it can grant the motion. Senda v. Mid-Pacific Constr. Co., 6 FSM R. 440, 442 (App. 1994). Good grounds exist. The motion is therefore granted.

I.

The petitioner, Rosalinda Alafanso a/k/a Rose Alafanso, seeks a declaratory judgment that the writ of garnishment that she obtained in Civil Action No. 2019-1003 on December 16, 2019, by stipulation with the State of Chuuk for satisfying a stipulated judgment entered on September 18, 2019, was still valid and not invalidated by FSM Public Law No. 22-33. The court asked the parties to brief:

a) whether the statute can be applied retroactively to writs issued before it was enacted;

b) whether writs can be issued for judgments entered before the statute's enactment; and

c) whether the statute itself is constitutional in all respects.

Alafanso submitted her and motion for a declaratory judgment on July 7, 2023. Neither respondent submitted a brief or a response to Alafanso's motion.

II.

FSM Public Law No. 22-33 provides that

A department or entity of the National Government of the Federated States of Micronesia shall under no circumstances be subject to writ of garnishment or other judicial process to apply funds or other assets that are in custody or control of the department or entity, if such funds or other assets belong to or are owed to a State of the Federated States of Micronesia, to satisfy an obligation of the State to a third person. This prohibition includes funds and assets that would be garnished to satisfy an obligation of the State resulting from a cause of action expressly conferred by national statute. Nothing herein shall imply that authority exists to issue a writ of garnishment or other process against the National Government in any circumstance.

Pub L. No. 22-33, § 2, 22nd Cong., 1st Reg. Sess. (2021) (to be codified at 6 F.S.M.C. 707). This public law amended the previous, 1999 version of 6 F.S.M.C. 707, which provided:

The National Government of the Federated States of Micronesia shall not be subject to writ of garnishment or other judicial process to apply funds or other assets that are in custody or control of the department or entity, if such funds or other assets owed by it to a State of the Federated States of Micronesia, to satisfy an obligation of the State to a third person. Nothing herein shall imply that authority exists to issue a writ of garnishment or other process against the National Government in any circumstance.

6 F.S.M.C. 707. That version was held unconstitutional by the appellate court in Chuuk v. Davis, 13 FSM R. 178, 185-86 (App. 2005), when applied to judgments against a State for civil rights violations involving physical injury, and earlier by the trial court in Estate of Mori v. Chuuk, 11 FSM R. 535, 542 (Chk. 2003) (court found 6 F.S.M.C. 707 unconstitutional to the extent that it prevents satisfaction of a judgment based on a violation of constitutional rights) only when applied to a judgment against the state based on civil rights claims under the national civil rights statute. The Davis holding of unconstitutionality was extended by the appellate court in Barrett v. Chuuk, 16 FSM R. 229, 233-34 (App. 2009) to include civil rights judgments for non-physical, economic injury.

III

Alafanso contends: 1) that Public Law No. 22-33 is not retroactive and therefore does not affect the validity of her earlier, December 16, 2019 writ of garnishment; 2) that the statute violated the court's power under 4 F.S.M.C. 117 to issue all necessary writs not inconsistent with law; 3) that Public Law No. 22-33 is just as unconstitutional as the previous version of 6 F.S.M.C. 707 for the same reasons; and 4) that writs apply with equal force to stipulated judgments because stipulated judgments are enforceable like any other judicial decree.

During the May 23, 2023 status conference, counsel for both respondents indicated that they were generally in agreement that Public Law No. 22-33 did not apply retroactively to writs issued before Public Law No. 22-33 was enacted on August 23, 2021.

IV.

The question of whether a statute acts retrospectively or only prospectively is one of legislative intent. FSM v. GMP Hawaii, Inc., 17 FSM R. 555, 592 (Pon. 2011); Herman v. Municipality of Patta, 12 FSM R. 130, 136 (Chk. 2003). But FSM law does not recognize retroactive application of statutes without specific legislative instructions. FSM v. Kuo Rong 113, 22 FSM R. 515, 528 (App. 2020). Thus, courts observe a strict rule of construction against a retrospective operation, and indulge in the presumption that the legislature intended statutes, or amendments thereof, enacted by it, to operate prospectively only, and not retroactively. Id.; GMP Hawaii, Inc., 17 FSM R. at 592; Esa v. Elimo, 15 FSM R. 198, 204 (Chk. 2007). And a contrary determination will be made only when the legislature's intention to make a statute retroactive is stated in express terms, or is clearly, explicitly, positively, unequivocally, unmistakably, and unambiguously shown. Kuo Rong 113, 22 FSM R. at 528; GMP Hawaii, Inc., 17 FSM R. at 592; Esa, 15 FSM R. at 204-05. It is generally considered violative of the constitutional right to due process to apply a law retroactively that would divest someone of a vested right or property interest. GMP Hawaii, Inc., 17 FSM R. at 592; Esa, 15 FSM R. at 205.

V.

Past court rulings have held that when a public law's statutory language seems to speak only in prospective terms and certainly does not expressly state or clearly, explicitly, positively, unequivocally, unmistakably, and unambiguously show legislative intent to make the statute retroactive or for it to be applied retrospectively to previously-awarded public contracts. GMP Hawaii, Inc., 17 FSM R. at 592 (movant was entitled to summary judgment and a declaration that the public law does not apply to the parties' earlier contract). And that when the later enacted public law is silent about whether it retroactively repealed certain statutes, those statutes in effect at the time of the actions will control. Kuo Rong 113, 22 FSM R. at 528.

Public Law No. 22-33 casts itself as a clarification of the previous enactment of 6 F.S.M.C. 707¹ by adding language "prohibiting "garnishment in all circumstances, including to satisfy an obligation related to a cause of action conferred by national statute." Pub L. No. 22-33, § 1, 22nd Cong., 1st Reg. Sess. (2021). But it does not expressly state or clearly, explicitly, positively, unequivocally, unmistakably, and unambiguously show an intent to retroactively void or invalidate writs of garnishment related to causes pf action conferred by a national statute that had been properly issued before Public Law No. 22-33's enactment. It therefore does not apply retroactively. Thus, the previous (unconstitutional in part) version applies before August 23, 2021.

The court therefore concludes that Alafanso's writ of garnishment is not barred by Public Law No. 22-33. Alafanso's motion is granted on this ground and a declaratory judgment will issue to this effect. That resolves the matter before the court. The court will not address the constitutional challenge to Public Law No. 22-33 because, if a matter may properly be resolved on a statutory basis without reaching the constitutional issue, then, usually, the court must do so. Department of Treasury v. FSM Telecomm. Corp., 9 FSM R. 575, 579 (App. 2000); see Pohnpei v. AHPW, Inc., 14 FSM R. 1, 25-26 (App. 2006) (general principle that constitutional adjudication should be avoided unless necessary, court should first consider any non-constitutional grounds that might resolve the issue).

VI.

Accordingly, FSM Public Law No. 22-33 does not apply retroactively to bar, void, or invalidate the writ(s) of garnishment issued in Civil Action No. 2019-1003, on December 16, 2019, in the favor of the petitioner, Rosalinda Alafanso a/k/a Rose Alafanso. The garnishee shall honor the writ.

Footnotes:

¹ The original enactment of 6 F.S.M.C. 707, was in April, 1999 by the Tenth FSM Congress. Pub. L. No. 10-142, 10th Cong., 4th Reg. Sess. (1999).