Title 6(A). THE JUDICIARY -- CIVIL
Part I. Provisions of General Applicability
Chapter 1. Powers
Section 6.101. Powers.
(1) The Court has the power to:
(a) issue writs and other process;
(b) make rules and orders;
(c) grant bail, accepting and forfeiting security therefor;
(d) make orders for the attendance of witnesses with or
without documents;
(e) make orders for the disposal of exhibits;
(f) admit qualified persons as attorneys or counselors to
practice law, and discipline or disbar them for cause; and
(g) do all acts, not inconsistent with law or rule,
required for the due administration of justice.
Chapter 2.
Jurisdiction
Section 6.201. Territorial jurisdiction. The Court's territorial jurisdiction extends to the whole of
the State.
Section 6.202. Municipal law. The Court entertains a civil or criminal action arising
from municipal law.
Chapter 3. Evidence
Section 6.301. Official records. A book or record of account or minutes of proceedings of the
Government, the national government, or a predecessor government, are
admissible to prove the act, transaction or occurrence as a memorandum of which
it was made or kept. A copy or transcript, authenticated by the official having
custody, of a book, record, paper or document of the Government, the national
government, or a predecessor government, is admissible in evidence to the same
extent as its original.
Section 6.302. Privileges.
(1) Spouse. The Court may not compel a person to testify
against his spouse in a criminal proceeding.
(2) Other. The Court by rule may establish other privileges.
Section 6.303. Tradition. The Court does not
utilize tradition in reaching a decision unless it receives satisfactory
evidence of the tradition.
Chapter 4. Appeal
Section 6.401. Time. A person makes an
appeal by filing a notice of appeal with the Court within thirty days of
receipt of notice of the imposition of sentence or entry of the judgment, order
or decree to be appealed from, or within a longer time prescribed by rule.
Section 6.402. Error. An error in the
admission or exclusion of evidence, error or defect in a ruling or order, or
anything done or omitted by the Court, or by a party does not constitute a
ground for granting a new trial, or for vacating, modifying, or otherwise
disturbing a judgment or order, unless the appellate court finds that failure
to take action would be inconsistent with substantial justice.
Section 6.403. Power of appellate court.
(1) The appellate court has the power to affirm, modify, set
aside, or reverse and remand with directions for a new trial or for the entry
of judgment, the judgment or order appealed from.
(2) The appellate court does not set aside the Court's
findings of fact unless clearly erroneous.
(3) In an appeal from a criminal proceeding the appellate
court has the power to set aside a judgment of conviction, commute, reduce or
suspend the execution of a sentence, or order a new trial upon appellant's
petition. On a Government appeal from a criminal proceeding the appellate court
may not reverse a finding of not guilty, but may reverse a determination of
invalidity of a law or regulation.
Section 6.404. Right to appeal. A party may appeal from the Court to the appellate court:
(1) from a final judgment or order;
(2) from an interlocutory order granting, continuing,
modifying, refusing or dissolving an injunction, or refusing to dissolve or
modify an injunction;
(3) from an interlocutory order appointing a receiver, or
refusing an order to wind up a receivership or to take steps to accomplish the
purposes thereof, such as directing a sale or other disposal of property;
(4) in a criminal proceeding, by a defendant from a final
judgment, order or sentence, including an order granting or denying bail,
revoking or modifying probation or parole, and modifying or refusing to modify
a sentence, and as otherwise provided by law;
(5) in a criminal proceeding, by the Government only when
the Court has held a law or regulation invalid.
(6) in a civil proceeding, when a justice has certified that
an order not otherwise appealable involves a controlling question of law
concerning which there is substantial ground for difference of opinion and that
an immediate appeal from the order may materially advance completion of the
action.
Part
II. Organization
Chapter 11.
Proceedings
Section 6.1101. Proceedings. Court proceedings are public, except when otherwise ordered
by the Court for good cause.
Section 6.1102. Publication of
final decisions and opinions. The Court publishes a final decision and opinion in cases
taken under submission and in cases which establish new legal precedent, except
small claims matters and criminal cases where a guilty plea is offered. The
Court may in its discretion publish a final decision and opinion in any matter.
Background
Amended by State Law 4-42.
Section 6.1103. Seal. The Court has a seal for authentication of Court documents.
Section 6.1104. Contempt.
(1) In an adjudication of contempt:
(a) The Court gives a person accused of civil contempt
written notice of the charge and an opportunity to defend. The Court may order
the incarceration of a person found guilty of civil contempt until he complies
with the Court's order or pays an amount set by the Court to compensate an
injured party, or both;
(b) The Court gives a person accused of criminal contempt
written notice of the charge and an opportunity to defend. The Court does not
impose a sentence of imprisonment or a fine greater than $100 unless it affords
the accused written notice of the charge, a speedy public trial, and the
opportunity to confront the witnesses against him, to compel the attendance of
witness, to have counsel and to be released on bail pending adjudication of the
charge. The Court makes a charge of contempt within three months of the alleged
contempt and does not charge a person twice for the same alleged contempt. The
Court may summarily punish a contempt committed in its presence.
(2) A contemner may appeal a judgment of contempt. The Court
may stay sentence pending appeal. A stay of a sentence of imprisonment occurs
automatically unless the Court determines with written findings of fact that a
stay would cause an immediate obstruction of justice. A contemner may appeal a
denial of a stay of imprisonment.
Chapter 12. Justices
Section 6.1201. Standards of conduct. The standards of conduct for justices consist of:
(1) the provisions of the Code of Judicial Conduct of the
American Bar Association in effect on the effective date of the Code, except to
the extent made stricter by rule; and
(2) any other standard established by rule consistent with
the Code of Judicial Conduct.
Section 6.1202. Legislature consent. When the Legislature is considering a nomination to a
justiceship the term "learned in the law" means either:
(1) having completed law school and practiced law for at
least two years in the State; or
(2) having had at least eight years of experience in making,
interpreting, enforcing or executing law, or advising or representing clients
in legal matters.
Section 6.1203. Compensation and benefits of justices.
The annual salary of the Chief Justice is eighteen thousand three hundred and
seventy-five dollars ($18,375). The annual salary of an Associate Justice is
sixteen thousand nine hundred and ten dollars ($16,910).
Background
Amended by State Laws 5-198 and
6-132 (effective October 1, 1997).
Section 6.1204. Justice pro tempore.
(1) The Court proposes to the Legislature a person with the
qualifications of a justice for the Legislature's approval by resolution of the
Legislature to be available to serve as a justice pro tempore for a period of
one year.
(2) The Court may appoint only an approved person as a
justice pro tempore to exercise the powers of a justice in an action for which
a justice is not lawfully available.
(3) Appointment is pursuant to a method of regular rotation
established by rule.
(4) Unless a justice pro tempore dies, becomes disabled,
resigns, or is absent from the State on non-judicial matters for three months,
or his term expires, an appointment once made continues in effect until the
entry of a final judgment or order in the designated matter and the expiration
of the time for filing of a post-trial motion, or until final disposition of a
post-trial motion. If, upon remand after
appeal the same person is eligible for appointment as justice pro tempore, he
continues as justice pro tempore in that matter.
Section 6.1205. Extra-State action. A judicial act by the Court or a justice outside the State
has the same effect as if taken within the State.
Section 6.1206. Representation
funds. In addition to compensation
provided by this Chapter, the Chief Justice and Associate Justices are entitled
to receive reimbursement for actual expenses incurred in the performance of the
duties of their offices to the extent funds are appropriated for that purpose.
(1) Reimbursement is
not available under this Section for personal or political expenses. Reimbursement is not available under this
Section if the expense is reimbursable from any other source, including sources
other than the State.
(2) Funds may be
provided to the Chief Justice or an Associate Justice only after presentation
of evidence of the amount of expenses and documentation that the expenses were
incurred in the performance of official duties. Any permanent physical items for which reimbursement is provided
under this Section become the property of the State.
(3) The Director of
Administration and Finance shall provide a monthly report to the Chief Justice
of expenses for which reimbursement is provided under this Section. The Chief Justice is the final arbiter of
any dispute regarding a claim for reimbursement under this Section and shall
adopt internal rules or regulations regarding the reimbursement procedure.
Added by State Law 7-44.
Chapter 13. Staff
Section 6.1301. Court staff, standards of conduct. The Court's staff consists of those persons appointed to
officer and employee positions funded by law. The staff adheres to standards of
conduct established by rule which assure professional, courteous and unbiased
conduct in Court operations and proceedings. The standards include a
prohibition of the practice of law.
Section 6.1302. Notary public powers. A justice, and a Court officer appointed in writing by the
Court, may administer an oath or affirmation to a witness, and may exercise the
powers of a notary public pursuant to rule.
Section 6.1303. Police. At the Court's request the Governor makes every reasonable
effort to provide Police personnel to assist in Court proceedings and
operations. While on assignment to the Court pursuant to this section Police
personnel are subject to the Court's exclusive control in consultation with the
Chief of Police.
Chapter 14. Facilities
Section 6.1401. Courthouse; facilities. To the extent of the State's legal interest therein the
present courthouse and attendant facilities and [personalty] are subject to the
Court's exclusive control. The Court may make an exchange of building and
facilities with the Executive. At the Court's request the Governor makes every
reasonable effort to provide, by exchange of buildings and facilities,
Government land and buildings suitable for Court operations and appropriate to
the administration of justice. An exchange does not require Legislature
approval.
Chapter 15. Organization
Section 6.1501. Land Commission integration; inferior
courts. In consultation with the Land Commission the Court reports
and makes recommendations to the Legislature within one year of the Code's
effective date concerning the advisability of partial or complete integration
of the Land Commission within the Judiciary as an inferior court or some other
form of relationship between the Court and the Land Commission. The Court may
transmit to the Legislature its recommendations concerning the establishment of
inferior courts. Land
Court as an Inferior Court. Pursuant to
the Land Court Act of 2000, the Land Court, as described in Title 11, Chapter
6, is established as an inferior court within the Kosrae State Court system. (changes
effective October 1, 2001 by State Law 7-126)
Chapter 16. Fees, Costs and Fines
Section 6.1601. Fines; fees. The Court transmits weekly to the Office of Finance and
Treasury for deposit in the State Revenue Fund fines and fees received by the
Court, except fees received as payment for published decisions, opinions,
rules, or other documents issued by the Court.
Section 6.1602. Witness fees.
(1) The party on whose behalf a witness attends a Court
proceeding is responsible for financing the witness, travel to the proceeding,
if the witness resides outside the State.
(2) A person attending as a witness in a Court proceeding is
entitled to receive three cents per mile for going from and returning to his
place of residence or usual place of business or employment, whichever is
nearer to the place where he appears as a witness, unless he receives suitable
transportation without his expense, or receives a generally accepted prevailing
charge for transportation.
(3) If a witness receives a portion of his transportation
without his expense, he is entitled to receive mileage for the remaining
portion of the travel.
(4) Except when the summoning party is the Government, the
summoning party tenders the mileage fee for one round trip to the witness upon
service of the witness summons and the mileage fee for additional travel in
advance of travel.
(5) If a witness remains in attendance for Court proceedings
for more than one day at a point so far removed from his residence or usual
place of business or employment as to prohibit his return thereto from day to
day, the Court determines a reasonable amount for the witness' daily
subsistence while in attendance. The summoning party tenders this sum to the
witness in advance, except when suitable subsistence is available to the
witness without his expense.
(6) The failure to tender the fees specified in this section
does not exempt a witness from compliance with a summons if he has the means to
comply. A person questioning the sufficiency of an amount tendered pursuant to
this section promptly brings the matter to the Court's attention for its
resolution.
Section 6.1603. Inability to pay fee.
(1) If a person states under oath that he is unable to pay
fees or give security and that he believes that he is entitled to prevail in a
Court proceeding, the Court may authorize the commencement, prosecution or
defense of a civil or criminal action, proceeding or appeal without prepayment
of fees for serving of process, witness fees or filing fees, or the giving of
security therefor. Following Court authorization Court staff and the Police
issue and serve process and perform other duties without prepayment of fees or
the giving of security. Witnesses attend as in other cases.
(2) The Court may dismiss an action or proceeding or take
other action upon a finding that a statement of inability to pay fees is
untrue.
(3) In a criminal proceeding the Court may order the
issuance and service of a witness summons without prepayment of fees if an
accused states under oath the name and address of each witness and the expected
testimony and that the testimony of the witness is material to the defense,
that the accused cannot safely proceed to trial without the witness and, is
unable to pay witness fees. If the Court orders issuance and service of witness
summons without prepayment of fees, the Government pays the witness fees.
(4) If the Court authorizes a party to proceed without
payment of fees pursuant to this section, payment is from funds appropriated
for operations of the Judiciary.
Section 6.1604. Court fees. The Court establishes filing and other fees by rule.
Section 6.1605. Costs. Except in a criminal proceeding the Court may charge fees
and expenses incurred by a prevailing party pursuant to this chapter for the
service of process, witness fees, or filing fees on appeal as part of the costs
against the losing party, unless the Court otherwise orders. The Court does not
include fees paid to a witness who is a party in interest called and examined
on his own behalf or on behalf of others jointly interested with him. If there
is more than one prevailing or losing party, the Court apportions costs as it deems
just.
Part III. Civil Proceedings
Chapter 21. Procedure
Section 6.2101. Declaratory judgment. Upon the filing of an appropriate pleading in a case of
actual controversy, the Court may declare the rights and other legal relations
of an interested party seeking [a] declaration,
whether or not further relief is or could be available. A declaration has the
force and effect of a final judgment or decree and is reviewable as such. The
Court may grant further necessary or proper relief based on a declaratory
judgment after reasonable notice and hearing against an adverse party whose
rights the judgment has determined.
Chapter 22. Conciliation
Section 6.2201. Conciliation. At the request of a party to a civil controversy other than
annulment, divorce or adoption the Court may attempt to effect an amicable
settlement of the controversy and to that end may invite the other party to the
controversy to appear before the Court for an informal hearing. If the parties
reach an agreement in settlement of the controversy, the Court puts the
agreement in written form which, when signed by the parties, has the force and
effect of a judgment.
Chapter 23. Personal
Jurisdiction and Process
Section 6.2301. Jurisdiction. Except as provided in section 6.2302 the Court exercises
personal jurisdiction in a civil case only over a person residing or found in
the State whom the Court has duly summoned, or who voluntarily appears.
Section 6.2302. Jurisdiction over act of nonresident. A person, whether or not a citizen
or a resident of the State, who personally or through an agent does an act
enumerated in this section, thereby submits himself or a personal representative
to the Court's jurisdiction for a cause of action arising from:
(1) the transaction of business within the State;
(2) the operation of a motor vehicle in the State;
(3) the operation of a vessel or craft within State waters,
marine space, or airspace;
(4) the commission of a tortious act within the State;
(5) contracting to insure a person, property or risk located
within the State at the time of contracting;
(6) the ownership, use or possession of real property
located within the State;
(7) entering by mail or otherwise, into an express or
implied contract with a resident of the State for performance in whole or in
part by either party in the State;
(8) acting within the State as director, manager, trustee or
other officer of a corporation organized under the laws of the State or having
a place of business within the State;
(9) acting as executor or administrator of an estate within
the State;
(10) causing injury to a person or property within the State
arising out of an act of omission outside the State, if at the time of the
injury:
(a) he was engaged in solicitation or sales activities
within the State;
(b) products, materials, or things processed, serviced or
manufactured by him anywhere were used or consumed within the State;
(11) living in a marital relationship within the State
notwithstanding subsequent departure from the State, concerning an obligation
for alimony, child support or property rights, if the other party to the
marital relationship continues to reside in the State; or
(12) engaging in sexual intercourse in the State resulting
in the birth of a child.
A plaintiff may assert only a cause of action arising from
an act or omission stated in this section in an action in which jurisdiction
rests exclusively on this section.
Section 6.2303. Appointment of private person. The Court may appoint specially in a process a person it
deems suitable to execute or serve the process, except that a person less than
eighteen years of age may not serve process. The Court may not compel a private
person to serve or execute process. Upon acceptance of a process, a private
person appointed to serve or execute process, is responsible for the service or
execution pursuant to law. The Court uses special appointment freely to effect
a saving of time or expense.
Section 6.2304. Service and execution of process. An official responsible by law for the service or
execution of process or a private person who accepts the responsibility for the
service or execution of process serves or executes process unless prevented
from doing so by conditions beyond his control.
Section 6.2305. Return of service or execution. A police officer certifies and a private person reports
under oath or affirms by an endorsement on or attached to a process delivered
to him for execution or service the manner and time of execution or service or
the reason for failure to make execution or service. The server returns the
endorsed process, with a statement of fees and expenses charged, without delay
to the Court, not later than the date specified by the Court.
Section 6.2306. Fees.
(1) By rule the Court sets fees for service of process.
(2) The Police receive reasonable and necessary expenses,
including caring for property seized under an attachment or levy of execution.
A caretaker or watchman may receive no more than one dollar for each twelve
hours of service.
Section 6.2307. Prepayment for service. Except when process is on behalf of the Government or
pursuant to Section 6.1603 a police officer, or person appointed to serve or execute
process, may require prepayment of fees and estimated expenses or the giving of
reasonable security before serving or executing process.
Section 6.2308. Disposition of proceeds. A police officer, or person appointed to serve or execute
process, may retain for his own use the fees authorized by this chapter, if he
is not acting as a Government employee when he performs the services. If he is
a Government employee, he remits monthly to the Office of Finance and Treasury
for deposit in the State Revenue Fund fees collected for services and travel in
servicing or executing process, less reasonable expenses actually paid and
personally incurred by him for travel in connection with the duties.
Section 6.2309. Personal service outside the State. Service of process upon a person subject to the Court's
jurisdiction is valid by personal service upon the person outside the State and
has the same force and effect as though occurring in the State.
Service of a summons is in the manner of service within the
State by an officer or person authorized to make service of summons in the
jurisdiction where service occurs. The server files an affidavit with the Court
stating the time, manner and place of service. The Court may consider the
affidavit or other evidence in determining whether service was proper.
Section 6.2310. Default. The Court enters default only after the expiration of at
least thirty days following service. The Court sets aside a default judgment
following service outside the State only upon a showing which would be timely
and sufficient to set aside a default judgment entered following personal
service within the State.
Section 6.2311 Other methods of service. This chapter does not limit or affect a right to serve
process in another manner provided by law.
Section 6.2312. Order to appear or plead. In an action for annulment, divorce or adoption or to
enforce or remove a lien upon, or claim to, or adjudicate, an interest in real
or personal property within the State, when service of process cannot occur
within the State, and the defendant does not voluntarily appear, the Court may
order an absent defendant to appear or plead by a certain day. Service of an
order may be:
(1) on the absent defendant personally, wherever found;
(2) in the case of property, upon the person or persons in
its possession or charge, if any; or
(3) by mailing, postage prepaid, of a copy of the order to
the absent defendant at his last known address.
When personal service is not practicable, the order appears
in one or more conspicuous places as the Court may direct for a period of not
less than two weeks.
Section 6.2313. Procedure for absent defendant. If an absent defendant does not appear or plead within the
time allowed, the Court may proceed as if service on the absent defendant has
occurred within the State. As to the absent defendant an adjudication affects
only the property or status which is the subject of the action.
Section 6.2314. Setting aside judgment. Except for a decree of annulment, divorce or adoption, if a
defendant who did not receive personal notice of an action enters an appearance
within one year after final judgment, the Court sets aside the judgment and
permits the defendant to plead upon payment of costs as the Court may
determine.
Chapter 24. Judgment and Execution
Section 6.2401. Interest. A judgment for the payment of money bears interest at the
rate of nine percent a year from the date of its entry.
Section 6.2402. Judgments affecting land. After:
(1) the time for appeal has expired without the filing of a
notice of appeal;
(2) an appeal is complete; or
(3) entry of an order that an appeal does not stay the
judgment.
A judgment determining an interest in land automatically
effects the release or transfer of an interest in land in accordance with the judgment,
upon recordation of a copy of the judgment pursuant to section 11.619.
Section 6.2403. Other judgment. After expiration of the time for appeal without the filing
of a notice of appeal, determination of an appeal or entry of an order that an
appeal does not stay a judgment, the Court may enforce a non-monetary judgment
or the adjudication of an interest in land by contempt proceedings, if
enforcement is then necessary to prevent irreparable injury or multiple damage
to the interests of a prevailing party and is otherwise in the interests of
justice.
Section 6.2404. Other methods of enforcement. Enforcement of a judgment occurs by Court appointment of a
receiver, by a seizure and disposition of property pursuant to Court order, by
a civil action on the judgment, or by other common law means.
Section 6.2405. Writ of attachment.
(1) The Court may issue a writ of attachment for special
cause shown, upon plaintiff's statement under oath. A writ authorizes and
orders a police officer or other person to attach and safely keep as much of
the personal property of the person against whom the writ issues as will satisfy
the plaintiff's demand stated in the action, interest and costs. Attachment may
not extend to personal property exempt from attachment or a type of personal
property which the Court states in the writ.
(2) A debt owed to a defendant is subject to attachment by
Court order except salary or wages which the Court finds necessary for the
support of the defendant or his dependents.
Section 6.2406. Release and modification. Upon application of a party or of its own motion, the Court
may make and modify an order for the release of property from attachment or for
its sale when perishable or upon the request of the owner of the property, and
for the safekeeping of the proceeds of the sale.
Section 6.2407. Writ of execution. Upon request by a party receiving a civil judgment for the
payment of money, the Court issues a writ of execution against the personal
property of the party against whom a court rendered the judgment.
Section 6.2408. Levying execution. Upon receipt of a writ of execution issued by the Court,
the Chief of Police, a police officer or appointed person levies or causes the
Chief of Police or police officer to levy, execution as follows:
(1) He demands that the person against whom the execution
issues, pay the execution or exhibit sufficient property subject to execution.
If the person has property of a kind exempt from execution but [in] an amount exceeding the exemption,
he may select a portion of the property which he wants to retain under the
exemption, promptly making the selection known to the person making the levy.
If he fails to select promptly, the person making the levy makes the selection.
If the person against whom the execution issues does not pay the execution in
full, including interest, costs and expenses of the levy, the person making the
levy seizes property of the person against whom the execution issues, not
exempt from execution, sufficient in his opinion to cover the amount of the
execution. He first seizes property under attachment in the action in which the
execution issues. He next seizes property selected by the person against whom
the execution issues. He may remove the property to a safe place, or place a
caretaker in charge of it. He makes a list of the seized property.
(2) After seizure. The person making the levy gives public
notice of sale at least seven days in advance of the time of sale by notifying
the chief executive officer of the municipality where the levy will occur, by
posting a written notice of the sale in a conspicuous place at or near the
municipal office in the municipality in which the sale will occur, and by
notifying the person against whom the execution issues, or by notifying an
agent who had custody of the seized property at the time of seizure.
(3) Unless he received payment of the amount of the judgment
and interest and the costs and expenses of the levy, the person making the levy
on the day and at the place set for the sale sells the seized property at
public auction to the highest bidder. He deducts from the proceeds of the sale
sufficient money for the full payment of his fees and expenses, and pays the
person in whose favor the execution issued the balance of the amount due on the
execution. The person against whom the execution issued receives sales proceeds
remaining after the deduction and payment provided in this subsection. The
person making the levy returns the writ to the Court and reports his actions,
stating the amount collected and paid.
(4) Upon receipt of a written request signed by the debtor
and creditor for a postponement of the sale to an agreed time, the person
conducting the sale under execution, publicly declares a postponement of sale
to the agreed time and at the place originally established for sale. The person
responsible for a sale gives public notice of a postponement at the time and
place announced for the sale.
(5) If after beginning a levy of execution an authorized
person fails to complete the matter, another authorized person may complete the
levy, sale, and payment of proceeds as provided in this chapter.
Section 6.2409. Order in aid of judgment.
(1) After a judgment for the payment of money and before
full satisfaction of the judgment a party may apply to the Court for an order
in aid of judgment. After notice to the opposite party, the Court holds a
hearing on the question of the debtor's ability to pay and determines the
fastest way in which the debtor can reasonably satisfy the judgment. In making
a determination the Court allows the debtor to retain property and income
necessary to provide the reasonable living requirements of the debtor and his
dependents, including fulfillment of an obligation to extended family, in
return for which the debtor, or his dependents, receive any necessary part of
the food, shelter or services required for their living.
(2) At the hearing provided by subsection 1, the debtor is
subject to examination before the Court. The Court may refer the examination to
a master to take evidence and report his findings. A party, the Court or master
may introduce evidence properly bearing on the question as in the trial of a
civil action. Upon hearing the evidence or receipt of the report of a master,
the Court makes an order in aid of judgment as is just for the satisfaction of
a judgment consistent with findings.
(3) An order in aid of judgment may provide for the transfer
of assets at a price determined by the Court, for the sale of assets and
payment of net proceeds to the creditor, for payments in specified installments
on particular dates or at specified intervals, or for a method of payment which
the court deems just.
(4) The Court may modify an order in aid of judgment as
justice requires at any time upon application of either party and notice to the
other, or on the Court's motion.
(5) After filing of an application for an order in aid of
judgment in an action a writ of execution does not issue except pursuant to an
order in aid of judgment or by special order of the Court for cause shown.
(6) If a writ of execution is outstanding, a judgment
creditor applying for an order in aid of judgment files the writ of execution
with his application. A judgment debtor applying for an order in aid of
judgment may request a stay of execution of a writ which the Court may grant on
terms it finds just.
Section 6.2410. Exemptions. The following are exempt from attachment and execution:
(1) necessary household furniture, cooking and eating
utensils, wearing apparel, bedding, and provisions for household use sufficient
for four months;
(2) tools, implements, utensils, two work animals, and
equipment necessary to enable the person against whom the attachment or
execution issued to carry on his usual
occupation;
(3) interests in land, except that the
Court may order sold or transferred pursuant to an order in aid of judgment, an
interest held solely by a judgment debtor in his own right if the Court finds
that justice requires and that after the sale or transfer the debtor would have
sufficient land remaining to support himself and those persons directly
dependent on him according to custom and law; and
(4) Government property.
Chapter 25. Limitations
Section 6.2501. Commencement of action. Commencement of an action, or a proceeding in enforcement,
occurs only within the period stated in this chapter, except as otherwise
provided in this chapter.
Section 6.2502. Computation. Except as otherwise provided in this chapter, computation
of a period of limitations is from the date when the cause of action accrued.
Section 6.2503. Limitation of twenty years.
(1) Commencement of the following actions occurs within
twenty years after accrual of the cause of action:
(a) an action on a judgment; or
(b) an action for the recovery of land or an interest in
land.
(2) If a cause of action accrued to an ancestor or
predecessor of the person commencing the action, or to a person under whom he
claims, computation of the twenty year period begins from the time the cause of
action accrued.
(3) A court judgment is presumed to have been paid and
satisfied at the expiration of twenty years after rendition.
Section 6.2504. Limitation of two years. Commencement of the following actions occurs within two
years after accrual of the cause of action:
(1) an action for assault and battery, false imprisonment,
or defamation;
(2) an action against the Chief of Police, police officer or
person duly authorized to serve process for an act or omission in connection
with the performance of his official duties;
(3) an action for malpractice, error, or mistake by a
physician, surgeon, dentist, medical or dental practitioner, or medical or
dental assistant;
(4) an action for injury or death caused by wrongful act or
neglect, except as provided in Chapter 29;
(5) an action by a depositor against a bank for the payment
of a forged or raised check, or check which bears a forged or unauthorized
endorsement; or
(6) an action for wrongful death.
Section 6.2505. Action by or against an estate. Commencement of an action by or against a deceased's
executor, administrator or representative for relief in favor of or against the
deceased or his estate occurs within two years after the executor,
administrator or representative receives appointment or first takes possession
of the assets of the deceased, whichever occurs first.
Section 6.2506. Limitation of six years. Commencement of an action not stated in Sections 6.2503,
6.2504 or 6.2505 occurs within six years after accrual of the cause of action.
Section 6.2507. Disability. If a person entitled to an action is a minor, insane, or
imprisoned when the cause of action accrues, commencement of the action may
occur within the period stated in this chapter following removal of the disability.
Section 6.2508. Mutual account. In an action brought to recover the balance due upon a
mutual and open account, or in an action in which there has been partial
payment, the cause of action accrues at the proven time of the last item in the
account.
Section 6.2509. Absence. If when a cause of action accrues against a person he is
not in the State, commencement of the action may occur within the period
following the person's subsequent return to the State. If following accrual of
an action against a person he departs and resides beyond the State, the period
stated in this chapter does not include the period of absence.
Section 6.2510. Fraudulent concealment. If a person who would be liable in an action fraudulently
conceals the existence of the action from the knowledge of a person entitled to
bring it, commencement of the action may occur within the period stated in this
chapter following the entitled person's discovery, or his reasonable
opportunity of discovery, of the existence of the action.
Section 6.2511. Contrary agreement. An agreement for a period different from a period stated in
this chapter is invalid.
Chapter 26. Action
Against Government
Section 6.2601. Action against
the Government.
(1) A person may bring the following actions against the
Government in the Court, which has exclusive original jurisdiction of the
actions:
(a) an action for the recovery of a tax alleged to have been
erroneously or illegally collected, a penalty claimed to have been collected without
authority, or money alleged to have been wrongfully collected as a tax;
(b) an action founded upon a law, or regulation issued
pursuant to law, upon an express or implied contract with the Government, or
for liquidated or unliquidated damages in an action other than tort; or
(c) an action for monetary damages, for injury or loss of
property or personal injury or death caused by the negligent or wrongful act or
omission of Government employee acting within the scope of office or
employment, under circumstances in which the Government, if a private person,
would be liable to the claimant.
(d) An action for an injury resulting from conduct of a
Government officer, employee or agent acting under color of authority in
violation of a right stated in Article II of the Constitution.
(2) Recovery in action stated in paragraphs (c) and (d) of
paragraph (1) does not exceed one hundred thousand dollars.
Section 6.2602. Extent of jurisdiction. In a proceeding pursuant to this section the Court's
jurisdiction extends to a set-off, counterclaim or other claim or demand on the
part of the Government, or a properly joined party against a plaintiff, and on
the part of a defendant, or a properly joined party against the Government.
Section 6.2603. Payment. A payment of a judgment, rendered pursuant to this section
is with funds appropriated by law.
Section 6.2604. Accrual of cause of action. An action based on this chapter is valid only if the cause
of action arises after the Code takes effect. A cause of action arising, and an
action commenced pursuant to prior law remain valid in accordance with that
law.
Section 6.2605. Government action. This chapter does not limit the Government's right to bring
a civil action.
Chapter 27. Survival
Section 6.2701. Survival of
tort action.
(1) A cause of action in tort does not abate by the death of
the tort-feasor or other person liable. A party in interest may bring or
continue an action against the deceased's personal representative. The Court
may not award punitive or exemplary damages, or penalties.
(2) When a cause of action arises simultaneously with or
after the death of the tort-feasor or other person who would have been liable
if his death had not occurred simultaneously with the act, omission, circumstance
or event giving rise to the cause of action, or if his death had not intervened
between the wrongful act, omission, circumstance or event and the coming into
being of the cause of action, a party in interest may bring an action against
the deceased's personal representative.
Chapter 28.
Contribution
Section 6.2801. Right of
contribution.
(1) Except as otherwise provided in this chapter, when two
or more persons become jointly or severally liable in tort for the same injury
to person or property or for the same wrongful death, there is a right of
contribution among them even though there is then no judgment against all or
any of them.
(2) The right of contribution exists only in favor of a
tort-feasor who has paid more than his pro rata share of the common liability,
and his total recovery may not exceed the amount paid by him in excess of his
pro rata share. There is no obligation upon a tort-feasor to make contribution
beyond his own pro rata share of the entire liability.
(3) There is no right of contribution in favor of a
tort-feasor who has intentionally, wilfully, or wantonly caused or contributed
to the injury or wrongful death.
(4) A tort-feasor who enters into a settlement with a
claimant is not entitled to recover contribution from another tort-feasor whose
liability for the injury or wrongful death is not extinguished by the
settlement and is not entitled to recover in respect to an amount paid in a settlement
which is in excess of what was reasonable.
(5) A liability insurer, who by payment has discharged in
full or in part the liability of a tort-feasor and has thereby discharged in
full his obligation as insurer, is subrogated to the tort-feasor's right of
contribution to the extent of the amount he has paid in excess of the
tort-feasor's pro rata share of the common liability. This subsection does not
limit or impair a right of subrogation arising from another relationship.
(6) This chapter does not impair a right of indemnity under
existing law. When a tort-feasor is entitled to indemnity from another, the
right of the indemnity obligee is for indemnity and not contribution, and the
indemnity obligor is not entitled to contribution from the obligee for a
portion of his indemnity obligation.
(7) This chapter shall not apply to a breach of trust or
fiduciary obligation.
Section 6.2802. Pro rata shares. In a determination of the pro rata shares of tort-feasors
in the entire liability:
(1) Their relative degrees of fault are not relevant;
(2) If equity requires, the collective liability of some as
a group constitute a single share; and
(3) Principles of equity applicable to contribution
generally apply.
Section 6.2803. Enforcement.
(1) Whether or not there is a judgment against two or more
tort-feasors for the same injury or wrongful death, enforcement of contribution
may be by separate action.
(2) When there is a judgment in an action against two or
more tort-feasors for the same injury or wrongful death, enforcement of
contribution may be by judgment in the action in favor of one defendant against
other judgment defendants, by motion with notice to all parties to the action.
(3) If there is a judgment for the injury or wrongful death
against the tort-feasor seeking contribution, commencement of a separate action
by him to enforce contribution must occur within one year after the judgment
has become final by lapse of time for appeal or after appellate review.
(4) If there is no judgment for the injury or wrongful death
against the tort-feasor seeking contribution, he has no right of contribution
unless he has either:
(a) discharged by payment the common liability within the
statute of limitations period applicable to claimant's right of action against
him and has commenced his action for contribution within one year after
payment, or
(b) agreed while an action is pending against him to
discharge the common liability and has within one year after agreement paid the
liability and commenced his action for contribution.
(5) The recovery of a judgment for an injury or wrongful
death against one tort-feasor does not of itself discharge the other
tort-feasors from liability for the injury or wrongful death unless there has
been satisfaction of the judgment. A satisfaction of the judgment does not
impair a right of contribution.
(6) A judgment determining the liability of several
defendants to the claimant for an injury or wrongful death is binding as among
the defendants in determining their right to contribution.
Section 6.2804. Release or covenant not to sue. A
release or a covenant not to sue or not to enforce a judgment given in good
faith to one of two or more persons liable in tort for the same injury or the
same wrongful death:
(1) does not discharge any of the other tort-feasors from
liability for the injury or wrongful death unless its terms so provide, but it
reduces the claim against the other to the extent of any amount stipulated by
the release or the covenant, or in the amount of the consideration paid for it,
whichever is greater; and
(2) discharges the tort-feasor who [receives] it from all liability for contribution to any other
tort-feasor.
Section 6.2805. Retroactivity. This act does not create a right or remedy in a joint
tort-feasor in favor of whom the provisions of this chapter would otherwise
apply, when the joint tort-feasor's cause of action accrued prior to the effective
date of the Code, and to this extent the provisions of this chapter are not
retroactive.
Chapter 29. Wrongful Death
Section 6.2901. Wrongful death.
(1) If a wrongful act, neglect or default causes a person's
death and the deceased would have been entitled to maintain an action and
recover damages if the death had not occurred, the person who would have been
liable if death had not ensued, or the administrator or executor of the
person's estate, in his capacity as administrator or executor, is liable to an
action for damages for the death.
(2) When an action is against an administrator or executor
the damages recovered are a valid claim against the estate represented by the
executor or administrator.
(3) When a death results from wrongful act, neglect or
default outside the State in a jurisdiction where a statute provides a right to
maintain an action and recover damages for the death, the Court entertains the
action. The period of limitations of the jurisdiction applies to an action
brought pursuant to this subsection.
Section 6.2902. Action. An action pursuant
to this chapter is in the name of the deceased's personal representative, and
is for the exclusive benefit of the surviving spouse, the children and next of
kin, of the decedent, as the Court directs.
Section 6.2903. Damages; settlement representative. Damages in an action pursuant to this chapter may not
exceed one hundred thousand dollars awarded by the Court to persons for whose
benefit the action was brought in proportion to their respective injuries
which, when the deceased is a child, and the plaintiff is the parent of the
child, or stands in the place of a parent pursuant to custom, includes mental
pain and suffering for the loss of the child without regard to provable
pecuniary damage. With the Court's consent a personal representative at any
time may settle with the defendant the amount of damages.
Chapter 30.
Defamation
Section 6.3001. Single cause of action. There is only one cause of action for defamation, or invasion
of privacy or tort arising from a single publication, exhibition or utterance,
such as one edition of a newspaper, book, magazine, one presentation to an
audience, one television or radio broadcast or one exhibition of a motion
picture. Recovery in an action includes all damages for a tort suffered by the
plaintiff in all jurisdictions. This section does not create a cause of action
not already existing.
Section 6.3002. Bar. A judgment against the plaintiff upon the substantive
merits of an action for damages arising from a single publication, exhibition
or utterance stated in section 6.3001 bars an action for damages by the same
plaintiff against the same defendant founded upon the same publication,
exhibition or utterance.
Chapter 31. Adoption
Section 6.3101. Jurisdiction. The Court may grant an adoption pursuant to this chapter. A
non-domiciliary adopts a child only pursuant to this chapter.
Section 6.3102. Adoption by decree. The Court may grant adoption of a child to a suitable
unmarried person, a person who is married to the father or mother of the child,
or a husband and wife jointly. The decree may provide for a change of the
child's name.
Section 6.3103 . Conditions.
(1) The Court may not grant an adoption without either the
written consent of, or notice to a known living legal parent whom a Court has
not found insane or incompetent or who has not abandoned the child for a period
of six months, or without the consent of a child over the age of twelve years
who is the subject of adoption.
(2) The Court may not grant an adoption unless the child who
is the subject of the adoption appears before the court, and the Court is
satisfied that the adoption is in the best interests of the child. The standard
for determining best interests includes the State's prevailing social, cultural
and community standards.
(3) The Court may
not grant an adoption unless the facts clearly show that such adoption is a
legitimate bona fide adoption. The
standard for determining legitimacy of such adoption [includes] the age [of]
the minor person being adopted, and the dependency of the minor on the adoptive
parents.
(4) If a non-citizen
petitions for the adoption of a citizen child under the age of twelve years who
is not the petitioner's step-child, the Court:
(a) determines,
after reasonable inquiry, whether a member of the child's immediate or extended
family residing in the State, or any other citizen residing in the State is willing, able, and
suitable to adopt the child;
(b) gives preference
to a citizen as an adopting parent whenever practicable;
(c) appoints a
guardian ad litem or attorney to represent the child;
(d) does not issue a
final decree until the child has lived in the proposed adoptive home for a
length of time sufficient for the Court to determine that the placement is satisfactory; and
(e) does not grant
the adoption unless the petitioner has resided in the State for at least three
years prior to the filing of the petition.
(5) In this section, the term "child" means a
child born in the Federated States of Micronesia, one or both of whose parents
is a citizen.
Background
State Law 6-61 added new
subsection (3) and renumbered previous sections (3) and (4) as (4) and (5).
Section 6.3104. Effect of decree.
(1) When a decree of adoption has become absolute, the child
adopted and the adopting parents hold towards each other the legal relation of
parent and child and have all the rights, and are subject to all the duties, of
that relationship. From the time of adoption the natural parents of the adopted
child are relieved of all parental duties toward the child and all
responsibilities for the child, and have no right over him. A child adopted
pursuant to this title has the same rights of inheritance as a person adopted
in accordance with custom, in the case of real property, and at the place where
the decedent was a resident at the time of his death, in the case of personal
property. When there is no recognized custom as to rights of inheritance of
adopted children, an adopted child inherits from his adopting parents in the same
manner as if he were the natural child of the adopting parents, and may also
inherit from his natural parents and kindred in the same manner as if an
adoption has not taken place.
(2) If a person married to the father or mother of a child
adopts the child the same rights and duties which previously existed between
the natural parent and child remain the same, subject to the rights acquired
by, and the duties imposed upon, the adopting parent by reason of the adoption.
Section 6.3105. Confirmation. If an adoption has occurred in accordance with tradition
and its validity is in question or dispute, an interested party may file a
petition under oath in the Court for a decree confirming the annulment,
divorce, or adoption. If, following notice to living parties and a hearing, the
Court is satisfied that the annulment, divorce, or adoption alleged is valid in
accordance with custom or tradition, the Court enters a decree confirming the annulment,
divorce, or adoption and may include in the decree the date when the annulment,
divorce, or adoption became absolute pending the expiration of the period for
appeal without the filing of an appeal, or the disposition of an appeal.
Section 6.3106. Tradition. Except as
otherwise provided herein, this chapter does not place a restriction or
limitation on an adoption occurring by tradition.
Chapter 32. Annulment
and Divorce
Section 6.3201. Proceedings in
annulment and divorce.
(1) A proceeding for annulment or divorce, commences by a
petition signed and sworn by the petitioner.
(2) The petition sets forth sufficient facts to show
jurisdiction and, as far as practicable, the date and place of marriage of the
parties, the cause for the annulment or divorce, and the approximate date and
place of its occurrence, if the cause consists of individual acts, or
sufficient details to identify with reasonable certainty the facts relied upon,
and a statement as to a prior known application by a party for annulment or
divorce of the marriage or for separation from it in any jurisdiction and the
result of the application, if known.
Section 6.3202. Custody; support; alimony. In granting or denying a decree of an annulment or a
divorce, the Court may make an order for custody of a minor child, for its
support, for support of a party, and for the disposition of property in which
both parties have an interest, as it finds justice and the best interests of
all concerned may require. While an action for annulment or divorce is pending,
the Court may make a temporary order regarding the matters stated in this
section. A decree of custody or support of a minor child or of a party is
subject to revision by the Court upon motion of a party and following notice,
which the Court finds justice requires.
Section 6.3203. Effect of decree. Upon becoming absolute a decree of annulment or divorce
restores the parties to the state of unmarried persons regarding the marriage
which the decree affects.
Section 6.3204. Annulment. The Court may issue a decree annulling a marriage on a
ground, existing at the time of the marriage, which renders the marriage
illegal and void or voidable. The Court may refuse to annul a marriage which
the parties have ratified and confirmed by voluntary cohabitation after the
obstacle to the marriage's validity
has ceased to exist, unless the public interest requires annulment of the
marriage.
Section 6.3205. Residency. The Court does not issue a decree of annulment unless one
of the parties has resided in the State for the three months immediately
preceding the filing of the complaint.
Section 6.3206. Legitimacy of issue of annulled marriage. The issue of a marriage annulled pursuant to this chapter
are legitimate.
Section 6.3207. Divorce. The Court may issue a decree of divorce for the following
causes:
(1) adultery.
(2) cruel treatment, neglect or personal indignity by one
party toward the other, whether or not amounting to physical cruelty, which
renders the life of the other burdensome and intolerable and their further
living together unsupportable.
(3) wilful desertion for one year.
(4) a party's habitual intemperance in the use of
intoxicating drink or drugs for one year.
(5) a party's being sentenced to imprisonment for three
years.
(6) a party's insanity for three years or more.
(7) a party's contracting leprosy.
(8) the separation of the parties for two consecutive years
without cohabitation, whether or not by mutual consent.
(9) wilful neglect by a husband to provide suitable support
for his wife when able to do so or when failure to do so is because of his
idleness, profligacy or dissipation.
(10) A pardon granted to a sentenced party does not affect a
divorce decree pursuant to subsection 5.
Section 6.3208. Residence. The Court does not issue a decree of divorce unless one of
the parties has resided in the State for the two years immediately preceding
the filing of the complaint.
Section 6.3209. Forgiveness. The Court does not issue a decree of divorce if the injured
party has forgiven the ground for the divorce. Proof of forgiveness may be by
an express showing or by the voluntary cohabitation of the parties with
knowledge of the fact and restoration of the forgiving party to all marital
rights. Forgiveness implies a condition that the forgiven party treat the forgiving
party with conjugal kindness. If the forgiven party commits an act constituting
a similar ground for divorce or is guilty of conjugal unkindness sufficiently
habitual and gross to show that he has not accepted or fulfilled the conditions
of forgiveness in good faith, revocation of forgiveness and revival of the
ground for divorce results.
Section 6.3210. Procurement or connivance as defense. The Court may not issue a decree of divorce for adultery
when the adultery is with the procurement or connivance of the plaintiff.
Chapter 33. Commitment
Section 6.3301. Commitment.
(1) In a proceeding pursuant to this Chapter, the Court
promptly appoints counsel for the person alleged to be insane. If the person
alleged to be insane is unable to pay for counsel, the Court appoints the
public defender to represent him or, if the public defender is unable or
unwilling to represent him, appoints private counsel at the State's expense.
(2) After hearing, the Court may commit an insane person to
a hospital for the care and keeping of the insane, or to a member of the insane
person's family, who may restrain the insane person to the extent necessary for
his and the public safety.
(3) The Court orders commitment only on the testimony of two
or more witnesses who testify in open court, at least one of whom is a doctor
of medicine or medical practitioner authorized to practice medicine in the
Federated States of Micronesia. Before testifying the medical witness
personally examines the person who is the subject of the commitment proceeding
and establishes to the Court's satisfaction that the person is insane.
(4) Except when the Court is satisfied that the delay
incident to giving notice is detrimental to the public interest or the welfare
of the patient, it does not order commitment until notice to the allegedly
insane person's spouse, or one of his parent's children, or next of kin.
(5) In ordering a commitment the Court may make an order in
the interest of the public and of the patient for the patient's temporary
custody and transportation to the hospital.
Section 6.3302. Temporary commitment.
(1) After hearing the Court may commit a person for
observation of possible mental illness. The Court orders commitment only after
testimony in open court by at least one doctor or medical practitioner
authorized to practice medicine in the State, or from a nurse, health aide, or
nurse's aide who has personally examined the person who is the subject of the
commitment proceeding indicating to the Court's satisfaction that the public
welfare or the interest of the person requires commitment. Whenever
practicable, the Court attempts to secure the testimony of a doctor or medical
practitioner.
(2) A commitment for observation may be to a person or
institution willing to accept the patient and authorizes the patient's
detention for a period not exceeding thirty days, if the services of a doctor
or medical practitioner are reasonably available. If services are not
reasonably available, commitment for observation may authorize the patient's
detention for thirty days following examination by a doctor or medical
practitioner. The Court promptly gives notice of commitment for observation to
the Director of the Department of Health Services.
Chapter 34. Habeas Corpus
Section 6.3401. Writ of habeas corpus. The Court may grant a writ of habeas corpus upon application
by a person unlawfully imprisoned or restrained of his liberty under any
pretense, or by a person on his behalf, for a writ to inquire into the cause of
imprisonment or restraint.
Section 6.3402. Application for writ. Application for a writ of habeas corpus is by written
statement under oath by the party for whose relief it is intended, or by a
person on his behalf, setting forth the facts concerning the imprisonment or
restraint, and, if known, the name of the person who has custody over him, and
the authority for the restraint or imprisonment.
Section 6.3403. Court staff. The Court staff immediately brings an application for a
writ of habeas corpus to the Court's attention.
Section 6.3404. Show cause order. Within twenty four hours of receipt of an application for a
writ of habeas corpus the Court issues an order directing the person alleged in
the application to have custody to show cause why the writ should not issue,
unless it finds that the application does not warrant relief. A hearing on the
order occurs within twenty-four hours of its issuance. Before or at the hearing
the person to whom the Court directs the order makes response by stating under
oath the true cause of the detention, and, unless the application for the writ
and the response present only issues of law, the person to whom the Court
directs the order brings the detained person to the hearing, unless the Court
determines that because of the person's illness or weakness he should not
attend. The applicant, or the person detained, may under oath deny the facts in
the response, or state any other material facts. The application, the response,
and written suggestions made against either of them are subject to amendment by
leave of Court. If the person to whom the Court directs the order does not
respond, or does not appear at the hearing, the Court may proceed without him.
Section 6.3405. Issuance or denial [of] writ. Upon hearing an application for writ of habeas corpus the
Court without delay or formality determines the facts and denies the writ, or
grants the writ conditionally or unconditionally, discharging the person for
whose relief the application was brought or making an order for his disposition
as law and justice require.
Section 6.3406. Evidence. The Court may receive evidence orally or by deposition, or
in the Court's discretion, by written statement under oath. A party has the
right to propound written interrogatories to a person who made a written statement
under oath or to file an answering written statement under oath. Documentary
evidence, a transcript of
proceedings upon arraignment, plea, or sentence, and a transcript of oral
testimony introduced in a previous application for writ of habeas corpus by or
on behalf of the same person are admissible in evidence. The Court accepts a
declaration in a response to an order to show cause in a habeas corpus
proceeding as true, if not formally denied, except to the extent that the Court
from the evidence finds that it is not true.
Section 6.3407. Appeal. A final order in a habeas corpus proceeding is subject to
appeal. The Court may stay execution of the order, admit the person imprisoned
or restrained to bail pending action on appeal, or direct that the final order
take effect pending action on appeal or without waiting for the time for filing
notice of appeal to expire.
Chapter 35. Maritime
Libel
Section 6.3501. Notice of libel. Upon the filing of a libel, notice of the seizure and of
the forfeiture proceedings issues to the reputed owner of the vessel and to a
reputed holder of a lien upon it in a manner determined by the Court. Failure of
actual notice to reach the owner does not invalidate the proceedings if seizure
of the vessel was in accordance with this chapter or pursuant to a warrant of
arrest issued by the Court.
Section 6.3502. Claims.
(1) At any time within forty-five days after seizure or
arrest of the vessel, or such longer time as the Court may allow, a claimant of
a vessel seized pursuant to this chapter may file in Court, a statement of his
interest in the vessel. Upon filing of a statement the Court following such
notice as it determines justice requires proceeds to adjudicate the interests
in the vessel, tackle, apparel, furniture and equipment, and determines whether
their condemnation and forfeiture are appropriate.
(2) If a claimant is the owner or a person otherwise
entitled to the vessel's immediate possession, he has the burden of proving a
violation occurred without his knowledge or without negligence on his part.
Upon satisfactory proof that the violation occurred without his knowledge or
negligence on his part, he is entitled to a return of the vessel, together with
its tackle, apparel, furniture and equipment.
If the claimant is a lien holder, upon satisfactory proof that the
violation occurred without his knowledge or any negligence on his part, he is
entitled to have the amount of his lien determined and protected in the manner
and to the extent the Court determines that justice requires in a judgment
entered pursuant to this chapter.
Section 6.3503. Forfeiture and sale. If the Court finds in favor of the libelant, the Court
condemns and declares the vessel forfeit together with its tackle, apparel,
furniture and equipment, and orders the sale of the vessel at public auction,
or orders the vessel forfeited to the Government for its use, subject to
provisions which the Court determines justice requires for the protection of
liens determined in accordance with Section 6.3502.
Section 6.3504. Disposition of proceeds. Disposition of proceeds pursuant to this chapter is in the
following order:
(1) the payment of the expenses of the proceedings of
forfeiture and sale, including expenses of seizure, custody of the vessel, and
advertising, and court costs;
(2) the payment of liens to the extent that the Court has
determined they have protection pursuant to Section 6.3502; and
(3) deposit in the State Revenue Fund.
Section 6.3505. Return. Upon the entry of judgment in favor of a claimant who is
the owner of a vessel, or a person otherwise entitled to its immediate
possession, the Government immediately returns to him all property seized or
arrested. If the Court determines there was reasonable cause for the seizure or
arrest, the claimant is not entitled to costs, and the person who made the
seizure is not liable for the seizure.
Section 6.3506. Settlement. The Governor may settle a claim for forfeiture pursuant to
this chapter at any time on or upon terms and conditions he deems reasonable
and just. The Governor may remit or mitigate the forfeiture or order
discontinuance of prosecution. The Governor may not exercise his authority to
deprive a person of an award made before settlement without the person's
consent.
Chapter 36. State
Acquisition of Private Land
Section 6.3601. Initiation of
Court Action. At the Governor's direction, the Attorney General initiates
an action to acquire an interest in private land on behalf of the State
by:
(1) Filing with the Court a complaint naming the State of
Kosrae as plaintiff and naming as defendants all interested parties which are
all persons holding or claiming legal interest in the land or interest sought
by the State. The complaint contains an explanation of the interest sought by
the State, an exact description of
the land affected, the public purpose for which the interest is sought, a
showing that the land and the interest are highly suited to their intended use,
and the State's determination of fair compensation to the defendants for the
interest sought;
(2) Filing with the Court a Statement of Compliance showing
the State's compliance with the requirements of Title 11, Section 11.103. The
Statement of Compliance contains:
(a) A summary of the State's efforts to Identify and contact
all interested parties and any information or belief the State has regarding
unknown or uncontacted interested parties;
(b) A summary of the State's effort to acquire the interest
in private land with the consent of the interested parties, including efforts
to avoid substantial hardship to the interested parties in consideration of
their personal circumstances; and
(c) Attachment of all documents provided to the defendants
pursuant to Title 11, Section 11.103 and any documents received from the
defendants pursuant to that section.
(3) Lodge with the Court for deposit in a separate interest
bearing account a sum equal to the amount offered by the State as fair
compensation to the defendants for the interest in land sought by the State.
Background
Added by State Law 5-39.
Section 6.3602. Procedure. The Kosrae State Court Rules of Civil Procedure govern the
procedure for actions brought under this chapter except:
(1) The proceedings are scheduled on an accelerated basis.
Except upon motion showing extraordinary circumstances a judgment is rendered
within 120 days of the action being filed.
(2) Notice of the accelerated nature of the proceedings is
issued with the summons served upon each defendant.
(3) The State may join as defendants in one action all
interested parties in the acquisition of an interest in land sought for a
single public purpose.
(4) The costs of an action brought under this chapter,
including costs incurred by the Court in the valuation of an interest in land,
are paid by the State.
Background
Added by State Law 5-39.
Section 6.3603. Trial.
(1) Except upon a motion showing extraordinary
circumstances, the issues at the trial of an action brought under this chapter
are limited to the following:
(a) The suitability of the land and the interest sought for
their intended use;
(b) The ownership of the interest sought by the State;
(c) The State's good faith in its efforts to gain the
consent of the interested parties;
(d) The reasonableness of the State's efforts to avoid
substantial hardship to the interested parties in consideration of their
personal circumstances; and
(e) The fairness of the compensation offered to each
defendant for the interest in land sought by the State.
(2) The State is entitled to a presumption in its favor on
each [of] the trial issues with regard to any defendant who fails to timely respond to the State's
written request made pursuant to Title 11, Section 11.103.
(3) Where ownership of the interest in land to be acquired
by the State is in dispute and substantial hardship is not found as to any
defendant involved in the dispute, the Court may establish the fair
compensation for the interest and allow its ownership to be established in a
separate interpleader action.
Background
Added by State Law 5-39.
Section 6.3604. Valuation of Land. The Court uses any available equitable means of determining
the fair value of the interest in land to be acquired by the State.
Background
Added by State Law 5-39.
Chapter 37. Guardianship
Section 6.3701. Jurisdiction. The Court has jurisdiction over guardianship
proceedings. The court has jurisdiction
to appoint guardians of minors and adult persons.
Section 6.3702. Definitions.
In this chapter:
(1)
“Guardian” is a person appointed by the court to oversee the personal,
financial and or business affairs of the person.
(2)
“Guardianship proceeding” is a proceeding to appoint a guardian for an
incapacitated person.
(3)
“Incapacitated person” means any person who is impaired by reason of mental
illness, mental deficiency, physical illness or disability, advanced age,
chronic use of drugs, chronic intoxication, minority or other cause to the
extent that the person lacks sufficient understanding or capacity to make or
communicate responsible decisions concerning one’s person.
(4)
A “ward” is a person for whom a guardian has been appointed.
Section 6.3703. Natural
guardian of person alleged to be incapacitated; other persons who may be
appointed as a guardian.
(1)
The father and mother of an incapacitated person are jointly and severally the
natural guardians of his person and property.
If either parent dies or abandons the family or is incapable for ant
reason to act as guardian, the guardianship is transferred upon the other parent. When the parents live apart, the court may
award guardianship to either of them, having special regard to the interests of
the incapacitated person. Under this
subsection, the father and mother are those persons who have been caring for
the incapacitated person at the time of the filing of the petition. The father and mother may be biological or
adoptive parents.
(2)
If neither of the parents of the incapacitated person is available to act as
guardian pursuant to subsection (1), subsection (2), the court shall determine
and appoint, after [reasonable] inquiry, any other citizen residing in the
State who is willing, able and suitable to be appointed as guardian for the
incapacitated person.
Section 6.3704. Procedure for
court appointment of a guardian of an incapacitated person.
(1)
The incapacitated person or any person interested in his welfare may petition
the court for a finding of incapacity and appointment of a guardian for the
person.
(2)
After the filing of the petition, the court shall set a date for hearing on the
issue of incapacity. The petition shall
be subject to the requirements of notice as specified in section 6.3708.
(3)
The court may order the person alleged to be incapacitated be examined by a
licensed physician or psychologist appointed by the court, who shall submit a
report in writing to the court within 20 days of the examination. The physician or psychologist may also be
required to testify in court regarding the examination, the results and
opinions regarding the person alleged to be incapacitated.
(4) The person seeking to be appointed as
guardian shall submit information relating to the proposed residence and care
of the person alleged to be incapacitated.
Such information shall be submitted in the petition.
(5) The person alleged to be incapacitated is
entitled to be present at the hearing in person, and to see or hear all
evidence bearing upon the person’s condition.
The person alleged to be incapacitated is entitled to be represented by
counsel, to present evidence, to cross-examine [witnesses] including any person
submitting a report. The issue of
capacity may be determined at a [closed] hearing.
Section 6.3705. Finding; order
of appointment. The court may
appoint any competent person, subject to 6.3703, whose appointment would be in
the best interest of the alleged incapacitated person, as a guardian if the
court is satisfied that the person for whom the guardian is sought is
incapacitated, and that the appointment is necessary or desirable as a means of
providing continuing care and supervision of the person. The order of appointment may limit or
otherwise modify the power of the guardian and may specify areas in which the
ward shall retain the power to make and carry out decisions concerning the ward’s
person. The court may make any other
order necessary in the best interest of the incapacitated person, including,
but not limited to, [an] accounting of the funds and assets of the guardian’s
ward.
Section 6.3706. Termination of guardianship for
incapacitated person.
(1) The authority and responsibility of a
guardian for an incapacitated person
terminates upon the death of the guardian or the ward, the determination of
incapacity of the guardian, or upon removal or resignation as provided in
section 6.3707. Termination does not
affect the guardian’s liability for prior acts and the guardian’s obligation to
account for funds and assets of the guardian’s ward.
(2) The ward, the guardian of the ward , or any
other interested person may petition the court to terminate the
guardianship. A ward seeking
termination of guardianship is entitled to the same rights and procedures as in
an original proceeding for appointment of a guardian under section 6.3704. The court, upon determining that the
disability or incapacity of the ward has ceased, may terminate the guardianship
and make other orders as necessary for the best interest of the former ward.
Section 6.3707. Removal or resignation of guardian;
termination of incapacity.
(1) On petition of the ward or any person
interested in the ward’s welfare, the court may remove a guardian and appoint a
successor if in the best interest of the ward.
On petition of the guardian, the court may accept the [guardian’s]
resignation and make any other order which may be appropriate and in the best
interest of the ward.
(2) The ward or any person interested in the
ward’s welfare may petition for an order that the ward is no longer
incapacitated, and for removal resignation of the guardian. A request for this order may be made by
informal letter to the court.
(3) Before removing a guardian, accepting the
resignation of a guardian, or ordering that a ward’s incapacity has terminated,
the court shall follow the procedures in section 6.3704 to safeguard the rights
of the ward.
(4) The notice provisions in Section 6.3708
shall apply to petition for removal or resignation of the guardian under this
section.
Section 6.3708. Notices in guardianship proceedings.
(1) In a proceeding for the appointment,
resignation or removal of a guardian for an incapacitated person, notice of the
time and place of hearing shall be given by the petitioner to each of the
following:
(a) The ward or person alleged to be
incapacitated, for whom the proceeding has been commenced and the ward’s or
person’s spouse, parents and adult children;
(b) Any person who is serving as the guardian of
the ward or person; and
(c) In case no other person is notified under
paragraph (a), at least one of the ward’s or person’s closest adult relatives,
if any can be found.
(2) Notice shall be served personally on the
ward or alleged incapacitated person, the person’s spouse, the person’s
parents, and the person’s adult children, if they can be found within the State. Those persons who cannot be found within the
State and whose address is known shall be given notice by certified mail,
return receipt requested. In addition
to service upon persons specified in subsection (1), a copy of any petition for
the appointment, resignation or removal of a guardian of an incapacitated
person shall be posted at the FSM Post Office in Tofol, and at all Municipal
Offices for a period of not less than 30 days prior to the date of the hearing.
Background
Added by State
Law 6-142.