FSM SUPREME COURT TRIAL DIVISION

CIVIL ACTION NO. 2008-1113

ALEX NARRUHN,
Plaintiff,

vs.

STATE OF CHUUK,
Defendant.

______________

ORDER OF ABSTENTION AND MEMORANDUM OF DECISION

Martin G. Yinug
Associate Justice

Decided: September 14, 2009

APPEARANCES:

 For the Plaintiff: Steven V. Finnen, Esq.
 P.O. Box 1450
 Kolonia, Pohnpei FM 96941

 For the Defendant: Joses Gallen, Esq.
 Chuuk Attorney General
 P.O. Box 1050
 Weno, Chuuk FM 96942

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HEADNOTES

Civil Procedure  Dismissal; Federalism  Abstention and Certification
 Generally, a motion for the FSM Supreme Court to abstain from all or part of a case should proceed as a post-answer motion, and not a motion in lieu of answer under FSM Civil Procedure Rule 12(b) since abstention is not one of the enumerated grounds for a Rule 12(b) motion. But when, in one of those rare instances, where the material facts are not in dispute and an answer would not help to identify or to narrow the factual issues since only legal matters are contested, it may be appropriate to permit an abstention motion without an answer. Narruhn v. Chuuk, 16 FSM Intrm. ---, --- (Chk. 2009).

Federalism  Abstention and Certification
 Even cases which arise under the national Constitution sometimes call for deference to state courts. For example, courts generally strive to avoid unnecessarily or prematurely addressing issues of national constitutional law. A national court ordinarily should refrain from deciding a case in which state action is challenged as violating the national Constitution, if unsettled questions of state law may be dispositive and obviate the need for the constitutional determination. Under such circumstances, the national court may appropriately give the state court the opportunity to provide a definitive ruling as to state law. Narruhn v. Chuuk, 16 FSM Intrm. ---, --- (Chk. 2009).

Federalism  Abstention and Certification
 When there are identifiable, particularly strong state interests, such as when there are monetary claims against the state or its agencies, the national courts should exercise restraint and look with sympathy upon a state request for abstention. Narruhn v. Chuuk, 16 FSM Intrm. ---, --- (Chk. 2009).

Federalism  Abstention and Certification
 The likelihood of abstention, always discretionary, is increased when the state is a party; when the subject matter of the requested abstention is one involving local concerns that lie solidly within a state's sphere of interest; when the state has developed an administrative approach to deal with the specified issues; and when the issue presented is a "clean" legal issue, as opposed to a factual one. Narruhn v. Chuuk, 16 FSM Intrm. ---, --- (Chk. 2009).

Property
 Generally, what constitutes property and interests in property is purely a matter of state law. Narruhn v. Chuuk, 16 FSM Intrm. ---, --- (Chk. 2009).

Federalism  Abstention and Certification
 When what constitutes property and interests in property is purely a matter of state law; when the strong state interests in fiscal autonomy militate in favor of abstention in lawsuits against the state for monetary damages; and when the state is attempting (finally) to develop an administrative approach and policies to address monetary claims against it and its debts (both matters solidly within the state's sphere of interest), all of these considerations favor abstention. Narruhn v. Chuuk, 16 FSM Intrm. ---, --- (Chk. 2009).

Federalism  Abstention and Certification
 In a case arising under national law, the analysis must begin with an especially strong presumption against full abstention. Narruhn v. Chuuk, 16 FSM Intrm. ---, --- (Chk. 2009).

Federalism  Abstention and Certification
 Although, in a case arising under national law, the analysis must begin with an especially strong presumption against full abstention, when the national law question cannot even be reached unless a purely state law question is first resolved in the plaintiff's favor and is thus wholly dependent upon favorable resolution of that issue first and since the national court ordinarily should refrain from deciding a case in which state action is challenged as violating the national Constitution, if unsettled questions of state law may be dispositive and obviate the need for the constitutional determination, the state court should be given an opportunity to resolve that issue first. Narruhn v. Chuuk, 16 FSM Intrm. ---, --- (Chk. 2009).

Separation of powers
 State policy-making and legislating are functions of the political branches of state government. Narruhn v. Chuuk, 16 FSM Intrm. ---, --- (Chk. 2009).

Federalism  Abstention and Certification
 National court abstention or certification of issues may also be justified on occasion by a desire to avoid unsettling a delicate balance in national_state relationships. Narruhn v. Chuuk, 16 FSM Intrm. ---, --- (Chk. 2009).

Civil Rights; Federalism  National/State Power
 The Chuuk State Supreme Court is perfectly competent to adjudicate a civil rights claim against the state made under 11 F.S.M.C. 701(3) (violation of national constitutional rights) and also claims made under Chuuk's own constitutional provision barring deprivation of property. Narruhn v. Chuuk, 16 FSM Intrm. ---, --- (Chk. 2009).

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COURT'S OPINION

MARTIN G. YINUG, Associate Justice:

 The defendant State of Chuuk's motion to abstain is granted. The court's reasons follow.

I. Case History

 On September 15, 1993, the Chuuk State Supreme Court, in CSSC CA No. 28-93, entered a $40,000 judgment against the State of Chuuk in Alex Narruhn's favor. The parties had stipulated to the judgment and the amount. Since that date the State has made a number of payments to Narruhn, totaling $6,720. All $6,720 has been credited to the interest owed.

 In 2001, Narruhn filed a motion for an order in aid of judgment. After an inordinate amount of procedural delay, the motion was heard and, on July 5, 2002, the state court issued an order in aid of judgment. Narruhn v. Chuuk, 11 FSM Intrm. 48, 51-52 (Chk. S. Ct. Tr. 2002). That order 1) enjoined the State from paying, out of funds appropriated to pay judgments, any claims against the State that had not been reduced to judgment; 2) ordered the State to provide the court, within thirty days, a list of all outstanding unpaid judgments against the State, including amount, date entered, and payments made; 3) ordered the State, until legislation was adopted superseding the order, to pay judgments against the State in the order in which they were rendered, with the oldest outstanding judgment paid in full before any payment could be made on the next oldest judgment; 4) ordered the State to inform any judgment-creditor seeking payment about the Narruhn order's existence and that any such creditor could then seek waiver of the order; 5) stated that failure to comply with the order could be considered contempt; and 6) ordered that certain state officials be provided copies of the order and that it be fully explained to them. Id. at 54-55.

 The State has not made any payments to Narruhn since the July 5, 2002 order. Narruhn also has not seen any list of outstanding unpaid judgments and states that it has not been provided. Nor has the state court taken any further action in C.A. No. 28-93 despite a number of requests by Narruhn.

 On December 8, 2008, Narruhn filed the present action in the FSM Supreme Court as a civil rights case. He alleges that the State's failure to comply with the July 5, 2002 order in aid of judgment or to pay his 1993 judgment is a willful policy to deprive him of a property right without due process of law in violation of 11 F.S.M.C. 701 and the FSM Constitution, Article IV, section 3. He also seeks confirmation of his September 15, 1993 judgment in the amount of $40,000 principal and $48,078.24 in interest accrued as of December 8, 2008, plus $9.86 per day thereafter because otherwise 6 TTC 301 and 302 would, in his view, bar him from collecting anything on his judgment after twenty years had elapsed. Narruhn also seeks attorney's fees pursuant to 11 F.S.M.C. 701(3).

 On January 30, 2009, the State moved to dismiss this case on the grounds that, because it is a simple effort to enforce a state court judgment against the state 1) this court lacks subject matter jurisdiction and 2) this is a case of forum shopping. The State asked this court to either dismiss the case or to order Narruhn to proceed with his case in the state court. Narruhn filed his opposition on February 11, 2009. Narruhn asserted that this court has jurisdiction because his complaint alleges claims under national law. He also asserted that without national court action his state court judgment would forever go unpaid.

 The court then requested further briefing on 1) whether, under Chuuk state law, a state court judgment against the state is property; 2) whether, the FSM Supreme Court must, or should, abstain in enforcing satisfaction of the state court judgment in favor of the state court that rendered it, particularly when the venue is the same state; and 3) the accuracy of Narruhn's interpretation of law, that under 6 TTC 301 (or 6 F.S.M.C. 801) ("[a] judgment of any court shall be presumed to be paid and satisfied at the expiration of twenty years after it is rendered") if his judgment is not satisfied by September 2013, he would thereafter be barred from any attempt to collect on it. In regard to whether a state court judgment against the state is property, the court asked the parties to consult and comment on Louisiana ex rel. Folsom v. Mayor of New Orleans, 109 U.S. 285, 3 S. Ct. 211, 27 L. Ed. 936 (1883); Minton v. St. Bernard Parish Sch. Bd., 803 F.2d 129 (5th Cir. 1986); Evans v. City of Chicago, 689 F.2d 1286 (7th Cir. 1982), and any other case that might assist the court in reaching its decision. In regard to whether a judgment-creditor plaintiff would, after twenty years, be barred from any further attempt to collect on a judgment, the court asked the parties to consult and comment on similarly-worded statutes and cases that construe those statutes, such as Rosenbaum v. Newhoff, 152 A.2d 763 (Pa. 1959); Fino v. Municipal Ct. of Boston, 93 N.E.2d 558 (Mass. 1950); Bowman v. Holman, 99 P. 424 (Or. 1909); Gamles Corp. v. Gibson, 939 A.2d 1269 (Del. 2007); Standford v. Utley, 341 F.2d 265 (8th Cir. 1965) (Missouri law).

 Narruhn filed his views on April 21, 2009. The State filed its views on July 31, 2009. The State's views included what can only be termed an explicit motion to abstain, an issue implicitly raised but not directly addressed in the State's motion to dismiss. Narruhn responded to the State on August 10, 2009, and on August 27, 2009, filed a supplemental response to the motion to abstain.

II. Abstention

A. Motion's Timing

 Generally, a motion for the FSM Supreme Court to abstain from all or part of a case should proceed as a post-answer motion, and not a motion in lieu of answer under FSM Civil Procedure Rule 12(b) since abstention is not one of the enumerated grounds for a Rule 12(b) motion. McVey v. Etscheit, 13 FSM Intrm. 473, 476-77 (Pon. 2005); Island Dev. Co. v. Yap, 9 FSM Intrm. 279, 284 (Yap 1999). In this case, however, it may be one of those rare instances where it would be appropriate to permit an abstention motion without an answer. The material facts are not in dispute  Narruhn's $40,000 September 15, 1993 judgment has not been satisfied; only $6,720 in interest has been paid; and no payments have been made since the July 5, 2002 order in aid of judgment. Thus, an answer would not help to identify or to narrow the factual issues. Only legal matters are contested.

B. Discussion

 Narruhn contends that abstention is not appropriate because even though the State is a party and money damages are sought, the case has reached the level of a civil rights violation. He asks the court to take judicial notice 1) of the State's long-term inability to manage its own financial affairs particularly when it comes to debts and judgments against it; 2) of the futility of enforcement attempts in the state court and that the State has not even complied with the lawful July 5, 2002 state court order; and 3) that, even though over two years ago the State established another "debt commission," it has not paid any debts. Narruhn further speculates that the State seeks abstention because it believes that the state court will not act. Narruhn acknowledges that the choice to abstain is wholly within the court's discretion but cautions that a decision to abstain should not be lightly taken since the national courts do have the responsibility to exercise their own jurisdiction under the FSM Constitution.

 This case ostensibly involves a national constitutional question  whether the state has taken Alex Narruhn's property without due process of law because the State has not paid his state court judgment. But this "national law question" cannot even be reached without first resolving a purely state law question  whether a state court judgment against the state is property under state law  which is a matter of first impression and has never been considered, let alone decided in any court. Consideration of the national law issue is wholly contingent upon a favorable resolution of the underlying state law issue.

[E]ven cases which arise under the national Constitution sometimes call for deference to state courts. For example, courts generally strive to avoid addressing unnecessarily or prematurely issues of national constitutional law. A national court ordinarily should refrain from deciding a case in which state action is challenged as violating the [national] Constitution, if unsettled questions of state law may be dispositive and obviate the need for the constitutional determination. Under such circumstances, the national court may appropriately give the state court the opportunity to provide a definitive ruling as to state law.

Gimnang v. Yap, 5 FSM Intrm. 13, 21 (App. 1991) (citations omitted). When there are identifiable, particularly strong state interests, such as when there are monetary claims against the state or its agencies, the national courts should exercise restraint, and look with sympathy upon a state request for abstention. Damarlane v. Pohnpei Transp. Auth., 5 FSM Intrm. 67A, 67D (Pon. 1991). For instance, the FSM Supreme Court will abstain from a claim for recovery of taxes when the defendant state requests abstention, the claim is for monetary relief, and the state has endeavored to develop a body of law in the area. Gimnang v. Yap, 4 FSM Intrm. 212, 214 (Yap 1990) (excise taxes and sovereign immunity). The likelihood of abstention, always discretionary, is increased when the state is a party; when the subject matter of the requested abstention is one involving local concerns that lie solidly within a state's sphere of interest; when the state has developed an administrative approach to deal with the specified issues; and when the issue presented is a "clean" legal issue, as opposed to a factual one. Island Dev. Co. v. Yap, 9 FSM Intrm. 18, 21-22 (Yap 1999).

 The state law question here is more than unsettled; it is unexplored. Generally, what constitutes property and interests in property is purely a matter of state law. The state interest is very strong because the issue is solely a monetary claim against the state. "[T]he strong state interests in fiscal autonomy militate in favor of abstention . . . in lawsuits against the state for monetary damages." Gimnang, 5 FSM Intrm. at 21. The State is attempting (finally) to develop an administrative approach and policies to address monetary claims against it and its debts, both matters solidly within the state's sphere of interest. (There are a large number of these old state court judgements against the state.) All of these considerations favor abstention.

 However, in a case arising under national law, FSM Const. art. XI, § 6(b), the "[a]nalysis must begin with an especially strong presumption against full abstention." Gimnang, 5 FSM Intrm. at 22. But as stated above, this national law question cannot even be reached without first resolving a purely state law question  whether a state court judgment against the state is property under state law. Consideration of the national constitutional law issue is thus wholly dependent upon resolution of the underlying state law issue first. Since the "national court ordinarily should refrain from deciding a case in which state action is challenged as violating the [national] Constitution, if unsettled questions of state law may be dispositive and obviate the need for the constitutional determination," id. at 21, the state court should be given an opportunity to resolve that issue first. If it determines that a state court judgment against the state is not property that can be "taken," then this court would avoid making a premature or unneeded constitutional determination about at what point, if ever, non-payment might rise to the level of a constitutional violation. Setting a binding precedent on whether a state court judgment is "property" under Chuuk state law, is a matter the state should decide through its own legal processes (state court decisions, or state legislative enactments, or executive directives). It will have an opportunity to do so.

 Narruhn asserts that his claims in the present case might involve injunctive relief to enforce the July 5, 2002 state court order in aid of judgment. That order purported to set up a systematic scheme for the payment of the Narruhn judgment and all other judgments against the State of Chuuk (including FSM Supreme Court judgments). That order in aid appears contrary to (dicta in) a prior Chuuk appellate decision, Kama v. Chuuk, 10 FSM Intrm. 593, 600 (Chk. S. Ct. App. 2002) in which the state appellate court doubted that an order in aid of judgment in one case could include what are really orders in aid of judgments in all other similarly unpaid court judgments. The Narruhn July 5, 2002 order in aid of judgment may also violate constitutional due process since the rights of judgment-creditors in other cases against the state are affected (and adjudicated) without prior notice to them or an opportunity to be heard. The Narruhn court was policy-making and legislating (and realized it was legislating since it stated that its order continued until further court order "or until legislation is adopted which supersedes or negates the effect of this Order") by setting up a pervasive scheme for the payment of all Chuuk state judgments. See Narruhn, 11 FSM Intrm. at 55. Unless that order had been made in a class action brought on behalf of all judgment-creditors with unsatisfied judgments against the State of Chuuk, it would seem to violate the separation-of-powers principle enshrined in the Chuuk Constitution. State policy-making and legislating are functions of the political branches of state government. Thus, this ground is not an adequate basis to deny abstention or to even retain partial jurisdiction.

 Narruhn also directs the court's attention to the recent decision in Barrett v. Chuuk, 16 FSM Intrm. 229 (App. 2009). That case, however, involved a national court, not a state court, judgment. And, it was a default judgment, in which the issue of whether it was a civil rights case and whether the State's long-term failure to pay the judgment constituted a "taking" was never addressed and decided by the trial court. The Barrett trial court viewed the case only as "an action on a judgment entered in Barrett's favor on November 24, 1993 in the amount of $16,185, on which 9% simple interest has been accruing ever since." Order Granting Default Judgment at 2 (Chk. Civ. No. 2004-1026 Sept. 27, 2005). Barrett's later motion for attorney's fees under the civil rights statute was granted since it was unopposed and thus consented to. Order Granting Costs and Fees at 1 (Chk. Civ. No. 2004-1026 Dec. 5, 2005); see FSM Civ. R. 6(d). The Barrett judgment was not subject to appellate review. Barrett did appeal a later Order Denying Order in Aid of Judgment, Barrett v. Chuuk, 14 FSM Intrm. 509 (Chk. 2006), that did not grant the post-judgment relief he sought. The appellate court assumed, without discussion or analysis, (possibly in dicta) that the trial court judgment was a civil rights judgment and the underlying national court judgment was "property" under national law. Barrett, 16 FSM Intrm. at 235. The appellate court focused its attention on the issues raised by Barrett on appeal  whether Barrett could obtain an order in aid of judgment in the form he sought. Be that as it may, Barrett cannot be a binding precedent on whether a state court judgment against the state is "property" under state law. That is not a question that Barrett even tangentially touched upon.

 "National court abstention or certification of issues may also be justified on occasion by a desire to avoid unsettling a delicate balance in national_state relationships." Gimnang, 5 FSM Intrm. at 21. It seems contrary to the whole notion of federalism and national-state dual sovereignty that a state citizen would get a judgment against his own state government in the state court and then proceed over to the national court in the same state to have the national court enforce the state court judgment or get it paid. That is the thrust of Narruhn's action here. After carefully considering the various aspects of this matter and balancing the factors and policies involved, the court concludes that abstention in this matter is appropriate and desirable. Accordingly, this case is dismissed. Narruhn may proceed in the state court.

 Narruhn has not tried to bring this case in state court as a civil rights claim of taking his property (state court judgment) without due process of law, which would put the issue of whether a state court judgment against the State is property that can be "taken" through non-payment directly before the state court for resolution. He may do so. The Chuuk State Supreme Court is perfectly competent to adjudicate a civil rights claim against the state made under 11 F.S.M.C. 701(3) (violation of national constitutional rights) and also claims made under Chuuk's own constitutional provision barring deprivation of property, Chk. Const. art. III, § 2. This court has no reason to believe that the Chuuk State Supreme Court will neglect to take action or decide such a newly-filed civil rights case.

III. Conclusion

 The court hereby abstains from this matter. This case is dismissed. Plaintiff Alex Narruhn may either file this case as a civil rights action in the Chuuk State Supreme Court trial division and thereby directly raise and have resolved the issue of whether his state court judgment against the State is property under state law, or he may seek further enforcement of the CA No. 28-93 judgment there, or both.

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