GeoMetWatch v. Hall , 428 P.3d 1064 ( 2018 )

This opinion is subject to revision before final
publication in the Pacific Reporter
2018 UT 50
IN THE
SUPREME COURT OF THE STATE OF UTAH
GEOMETWATCH CORPORATION,
Plaintiffs-Appellant,
v.
UTAH STATE UNIVERSITY RESEARCH FOUNDATION, ROBERT T.
BEHUNIN, CURTIS ROBERTS, UTAH STATE UNIVERSITY ADVANCED
WEATHER SYSTEMS FOUNDATION, and SCOTT JENSEN,
Defendants-Appellees.
No. 20170264
Filed September 12, 2018
On Certification from the
United States District Court for the District of Utah
The Honorable Jill N. Parrish
Case No. 1:14-cv-00060
Attorneys:
James E. Magleby, Peggy A. Tomsic, Adam Alba, Salt Lake City,
for appellant
Sean D. Reyes, Att’y Gen., Tyler R. Green, Solic. Gen., Stanford E.
Purser, Deputy Solic. Gen., Peggy E. Stone, Asst. Solic. Gen., Salt
Lake City, for appellees Utah State University Research
Foundation, Robert T. Behunin, and Curtis Roberts
Arthur B. Berger, Beth J. Ranschau, Ryan B. Bell,
Salt Lake City, for appellees Utah State University
Advanced Weather Systems Foundation and Scott Jensen
JUSTICE HIMONAS authored the opinion of the Court, in which
CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,
JUSTICE PETERSEN, and JUDGE HAGEN joined.
Having recused himself, JUSTICE PEARCE does not participate
herein; COURT OF APPEALS JUDGE DIANA HAGEN sat.
JUSTICE HIMONAS, opinion of the Court:
GEOMETWATCH CORP. v. UTAH STATE UNIV. RESEARCH FOUND.
Opinion of the Court
INTRODUCTION
¶1 This case comes to us on certification from the United
States District Court for the District of Utah. See UTAH R. APP. P.
41. The district court certified three questions relating to the
interpretation of the Governmental Immunity Act of Utah, Utah
Code sections 63G-7-101 to 904 (Immunity Act). The certified
questions are as follows:
1. Are the Utah State University Research
Foundation and the Utah State University
Advanced Weather Systems Foundation entitled
to immunity under the Governmental Immunity
Act of Utah . . . as a public corporation and/or
an instrumentality of the state?
2. Utah Code sections 63G-7-501 and 502 vest
exclusive, original jurisdiction over any action
brought under the Immunity Act in the district
courts and venue in the county in which the
claim arose or in Salt Lake County. Do these
provisions reflect an intent by the State of Utah
to limit the Immunity Act’s waiver of sovereign
immunity to suits brought in Utah district
courts?
3. If question 2 is answered in the affirmative, does
the Office of the Attorney General for the State
of Utah or any litigant have authority under
Utah law to waive the jurisdictional and venue
provisions enacted by the Utah Legislature in
the Immunity Act?
¶2 These questions raise important, unanswered questions
of state law. We therefore provide the applicable legal standard
for determining what is an instrumentality of the state. However,
“[o]ur authority to answer certified questions . . . is a matter of
discretion.” Zimmerman v. Univ. of Utah, 2018 UT 1, ¶ 2, 417 P.3d
78 (citations omitted). And we use that discretion here to decline
to establish a legal standard for public corporation immunity
based on the focus of the parties’ briefing.
¶3 The second and third certified questions are relevant only
if one of the entities involved is an instrumentality of the state or a
public corporation. Because that is a decision that must be made
by the district court, we forgo answering the second and third
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Opinion of the Court
questions before the first question has been answered in the
affirmative, thereby necessitating answers to these questions.
However, we noted significant confusion among the parties about
the proper interpretation of the second and third certified
questions. In light of this, we highlight this confusion so that,
should the district court choose to certify these questions to us
again, we can provide guidance in the way that is most helpful to
the district court.
BACKGROUND
¶4 GeoMetWatch filed a lawsuit against various defendants
in federal district court. Relevant to this certification from the
district court, GeoMetWatch brought causes of action against
Utah State University Research Foundation (USURF) and two of
its employees—Robert Behunin and Curtis Roberts—and Utah
State University Advanced Weather Systems Foundation (AWSF)
and one of its employees—Scott Jensen. 1
¶5 USURF and AWSF are both 501(c)(3) nonprofit
corporations wholly owned and operated by Utah State
University (USU). USURF and AWSF were incorporated to carry
out the functions of USU. Additionally, both entities’ founding
boards are appointed by USU.
¶6 The defendants filed motions for summary judgment in
federal court on multiple claims, alleging that the district court
lacks jurisdiction over the claims because GeoMetWatch had not
complied with the notice and undertaking requirements in the
Immunity Act. As a result of those motions, the district court
“became concerned that it may not have jurisdiction to adjudicate
whether the procedural requirements of the Immunity Act have
been met due to the jurisdiction and venue limitations in Utah
Code sections 63G-7-501 and 502.”
¶7 Based on these concerns, the district court certified three
important but unresolved questions of state law for our review.
We have jurisdiction pursuant to Utah Code section 78A-3-102(1).
__________________________________________________________
1 All references to the defendants in this opinion are limited to
the defendants before us on the certified questions. Additionally,
references to arguments made by USURF were also made by
Robert Behunin and Curtis Roberts. Likewise, references to
arguments made by ASWF were also made by Scott Jensen.
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STANDARD OF REVIEW
¶8 “A certified question from the federal district court does
not present us with a decision to affirm or reverse a lower court’s
decision; as such, traditional standards of review do not apply.”
Garfield Cty. v. United States, 2017 UT 41, ¶ 6, ---P.3d--- (citation
omitted). When presented with a certified question, “we merely
answer the question presented, leaving resolution of the parties’
competing claims and arguments . . . up to the federal courts,
which of course retain jurisdiction to decide [the] case.” Id.
(alterations in original) (citation omitted) (internal quotation
marks omitted).
ANALYSIS
¶9 The federal district court has certified three questions of
state law. The first question is focused on whether the defendants
are public corporations or instrumentalities of the state and are
thereby covered governmental entities for the purposes of the
Immunity Act. We set out the applicable legal standard for
determining whether an entity is an instrumentality of the state,
but we do not address whether the defendants meet this criterion.
Instead, we leave this determination to the district court. We also
decline to address the appropriate legal standard for determining
whether an entity is a public corporation.
¶10 The second and third certified questions require us to
interpret the jurisdiction and venue provisions of the Immunity
Act. The parties disagree about the proper interpretation of the
thrust of these questions. And, based on the contents of the
certification order, we see additional potential interpretations not
addressed by the parties. Because these questions are relevant
only if the defendants are governmental entities under the
Immunity Act, we decline to answer these questions before the
district court determines whether the defendants are covered by
the Immunity Act.
¶11 Nonetheless, we view certification orders as a dialogue
between our court and the federal courts. So we discuss the
relevant interpretations presented by the parties or contemplated
by this court. By doing so, we hope to provide the district court
with the opportunity to clarify the true nature of the question
posed to both the parties and to this court should the district court
choose to certify these questions to us again.
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Opinion of the Court
I. GOVERNMENT ENTITY UNDER THE
GOVERNMENT IMMUNITY ACT
¶12 The Immunity Act is a “comprehensive chapter”
containing “waivers and retentions of immunity” that “appl[y] to
all functions of government” and “govern[] all claims against
governmental entities or against their employees or agents [under
specific conditions].” UTAH CODE § 63G-7-101(2). 2 Unless
immunity is waived by the Immunity Act, “each governmental
entity and each employee of a governmental entity are immune
from suit for any injury that results from the exercise of a
governmental function.” Id. § 63G-7-201(1).
¶13 The defendants contend that they are governmental
entities or employees of a governmental entity covered by the
Immunity Act. The term “[g]overnmental entity” means “the state
and its political subdivisions as” defined in the Immunity Act. Id.
§ 63G-7-102(4). The “[s]tate” is defined as “the state of Utah, and
includes each office, department, division, agency, authority,
commission, board, institution, hospital, college, university,
Children’s Justice Center, or other instrumentality of the state.” Id.
§ 63G-7-102(10) (emphasis added). “Political subdivision” is
defined as “any county, city, town, school district, community
reinvestment agency, special improvement or taxing district, local
district, special service district, an entity created by an interlocal
agreement adopted under Title 11, Chapter 13, Interlocal
Cooperation Act, or other governmental subdivision or public
corporation.” Id. § 63G-7-102(8) (emphasis added).
¶14 The defendants do not argue that they fall under one of
the specifically enumerated categories in the definitions of state or
__________________________________________________________
2 The events that gave rise to GeoMetWatch’s claims against
the defendants occurred between 2009 and 2014. “As a general
rule, when adjudicating a dispute we apply the version of the
statute that was in effect ‘at the time of the events giving rise to
[the] suit.’” Harvey v. Cedar Hills City, 2010 UT 12, ¶ 12, 227 P.3d
256 (alteration in original) (citation omitted). However, when the
differences between the version in effect at the time of the events
“and the current version of the statutes are inconsequential [to
the] case, we cite to the current version.” Hammons v. Weber Cty.,
2018 UT 16, ¶ 1 n.2, 417 P.3d 624. Unless otherwise noted, we cite
the current version for all statutes in this opinion.
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political subdivision. Instead, they contend that they are covered
under the catchall provisions of “other instrumentality of the
state” and “other . . . public corporation.” The first certified
question asks us to interpret these broad terms so that the district
court may determine whether USURF and AWSF fall into one of
these sweeping categorical expressions.
¶15 When interpreting a statute, “our primary objective is to
ascertain the intent of the legislature.” Scott v. Scott, 2017 UT 66,
¶ 22, ---P.3d--- (citation omitted). “Because [t]he best evidence of
the legislature’s intent is the plain language of the statute itself,
we look first to the plain language of the statute.” Penunuri v.
Sundance Partners, Ltd., 2013 UT 22, ¶ 15, 301 P.3d 984 (alteration
in original) (citation omitted) (internal quotation marks omitted).
If the legislature has not defined a term, we must look to other
sources “to derive its meaning—to either the ordinary meaning of
the word, or to its technical sense as a legal term of art.” State v.
Bagnes, 2014 UT 4, ¶ 13, 322 P.3d 719 (citations omitted).
¶16 A term of art is a “specialized legal term[] that carr[ies] an
extra-ordinary meaning.” State v. Canton, 2013 UT 44, ¶ 28, 308
P.3d 517. “[W]hen a word or phrase is transplanted from another
legal source, whether the common law or other legislation, it
brings the old soil with it.” Id. (citation omitted) (internal
quotation marks omitted). To be a term of art, there must be “a
firmly rooted . . . notion” of the word or phrase. Id. ¶ 29; see also In
re Adoption of B.B., 2017 UT 59, ¶ 55, 417 P.3d 1 (“A term of art has
one established meaning . . . .” (citations omitted)).
¶17 Citing two cases from other states, GeoMetWatch argues
that we should treat instrumentality of the state and public
corporation as terms of art for the purposes of the Immunity Act.
However, those two cases are unhelpful here—they hold that
instrumentality of the state and public corporation are terms of art
in their respective states based upon the use of one of those terms
in the state’s constitution, code, or caselaw. See Hagman v. Meher
Mount Corp., 155 Cal. Rptr. 3d 192, 195 (Cal. Ct. App. 2013)
(deeming public corporation a term of art based on its usage in
California’s constitution, code, and caselaw); Slowinski v. Eng.
Econ. & Indus. Dev. Dist., 828 So. 2d 520, 523, 528 (La. 2002)
(concluding that when the legislature expressly labels a body an
instrumentality of the state, the legislature is using the phrase as a
term of art that is defined in a constitutional provision).
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¶18 And GeoMetWatch makes no argument that
instrumentality of the state and public corporation are terms of art
in Utah based upon this state’s code, constitution, or caselaw. 3
Nor does GeoMetWatch make any attempt to compare Utah’s use
of these terms to the other states’ uses to support a determination
that they are terms of art in this state. In fact, when GeoMetWatch
discusses how instrumentality of the state and public corporation
should be defined as terms of art in Utah, it does not reference
their use as terms of art in California and Louisiana or even
mention those cases to buttress its argument.
¶19 Additionally, GeoMetWatch fails to provide a definition
that each term should have when used as a term of art in Utah. In
fact, GeoMetWatch fails to analyze each term separately at all.
Instead, GeoMetWatch cites more than a dozen cases from other
jurisdictions that deal with terms different than the ones that are at
issue here. For example, many of the cases cited attempt to define
“arm of the state,” which is a term relevant for Eleventh
Amendment immunity purposes. But the governmental immunity
provided under the Eleventh Amendment is not coextensive with
the coverage provided by the Immunity Act. See Ambus v. Granite
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3 GeoMetWatch’s argument that the Immunity Act brings with
it “the very old soil of the doctrine of sovereign immunity” does
not count. We do not just carry forward general principles of law
into a new statute governing the subject. See Nielsen v. State, 2016
UT 52, ¶ 19, 391 P.3d 166. Instead, there must be an
“interpretation attached to a particular word or phrase . . . to be
carried forward.” Id. (Emphasis added). If there is “[n]o ‘old soil’
. . . fastened to the words,” there is nothing “that c[an] be
transplanted.” Id. (citation omitted). GeoMetWatch only points to
the general notion of sovereign entities from the common law. It
fails to point to any “old soil” attached to “instrumentality of the
state” or “public corporation” that should be carried forward. Cf.
Standiford v. Salt Lake City Corp., 605 P.2d 1230, 1234–35 (Utah
1980) (concluding that “‘governmental function’ is a term of art in
the law of sovereign immunity” and using the common-law
definition in interpreting the predecessor Immunity Act where
that term was otherwise undefined), superseded by UTAH CODE
§ 63-30-2(4)(a) (1987), as recognized in Tindley v. Salt Lake City Sch.
Dist., 2005 UT 30, 116 P.3d 295.
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Bd. of Educ., 995 F.2d 992, 995 (10th Cir. 1993) (holding that school
districts are not “arms of the state” for Eleventh Amendment
immunity purposes despite being expressly included as a
“political subdivision” under the Immunity Act); see also infra
¶¶ 52–54. Moreover, the cited cases use tests that apply widely
variant criteria.4 GeoMetWatch asks us to take these tests,
notwithstanding their disparity and analysis of terms other than
public corporation or instrumentality of the state, and create a
single six-part test for both public corporation and instrumentality
of the state. This request runs contrary to our settled principles of
statutory construction, and we refuse to undertake an analysis
that would do such an injustice to the statute.5
__________________________________________________________
4 This makes sense given that the cases are trying to define
different terms.
5 At one point, GeoMetWatch argues that the six-part test
should be used to determine whether “an entity is a governmental
entity.” This is not only outside the scope of the certified question,
but also an inappropriate endeavor. It is axiomatic that we give
effect to definitions in a statute. See, e.g., Salt Lake City v. Roberts,
2002 UT 30, ¶ 18, 44 P.3d 767 (“When a legislative body provides a
section containing the definitions of terms, and specifies the
legislation to which the definitions apply, this demonstrates the
body’s intent that the definitions establish meaning where the
terms appear within the legislation.” (citation omitted) (internal
quotation marks omitted)); Creameries of Am., Inc. v. Indus.
Comm’n, 102 P.2d 300, 302 (Utah 1940) (“Where words are defined
in a particular statute, and it is clear that the legislature intended
to give to such words a different meaning than the one generally
and ordinarily given to such words, the statutory definition is the
one to be applied.”); see also UTAH CODE § 68-3-11 (“[W]ords and
phrases . . . [that] are defined by statute[] are to be construed
according to such . . . definition.”). The legislature expressly
defined “governmental entity” in the Immunity Act as “the state
and its political subdivisions as both are defined in this section.”
See UTAH CODE § 63G-7-102(4). And there are definitions for both
“state” and “political subdivision” in the statute. Id. § 63G-7-
102(8), (10). The question before us is not what constitutes a
“governmental entity” for purposes of the Immunity Act—the
legislature has already answered that question. The question we
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Opinion of the Court
¶20 We are unconvinced by GeoMetWatch’s arguments that
we should treat public corporation or instrumentality of the state
as terms of art in the Immunity Act. And our own review of these
terms convinces us that they are not terms of art consistently used
throughout our law. 6 Therefore, we focus our attention on the
must address is what are the meanings of “other instrumentality
of the state” and “other . . . public corporation” as they are used in
the Immunity Act. See supra ¶ 1. For these reasons,
GeoMetWatch’s analysis is not helpful in interpreting these
phrases.
6 We discuss the inconsistent uses of public corporation in our
law below. See infra ¶¶ 37–43. Instrumentality of the state likewise
lacks consistent usage. Prior to the original enactment of the
Immunity Act, we classified “school districts [as] instrumentalities
of the state” for purposes of sovereign immunity. Campbell v. Pack,
389 P.2d 464, 465 (Utah 1964). Prior caselaw has also said that “the
municipal corporation also acts as the instrumentality of the
state. . . .” Branch v. Salt Lake Cty. Serv. Area No. 2-Cottonwood
Heights, 460 P.2d 814, 820 (Utah 1969) (Callister, J., dissenting).
These cases are inconsistent with later caselaw defining
instrumentality of the state. See Davis v. Cent. Utah Counseling Ctr.,
2006 UT 52, ¶ 21, 147 P.3d 390 (concluding that an interlocal
agency is not an “instrumentality of the [s]tate” where “the [s]tate
played no part in its creation [and] does not operate” the agency,
even though “the State exercises certain statutory policymaking
and administrative control over” the agency).
Moreover, those earlier cases are inconsistent with the
language of the Immunity Act itself. Both school districts and
municipal corporations (which include cities and towns, see UTAH
CODE § 10-1-104(5) (including cities and towns in the definition of
“[m]unicipality”)) id. § 10-1-201 (deeming municipalities
“municipal corporations”) are covered in the Immunity Act’s
definition of “political subdivision,” while “other instrumentality
of the state” is included in the definition of “state.” Id. § 63G-7-
102(8), (10). It would be anomalous for us to include school
districts, cities, and towns in the definition of “other
instrumentality of the state” while the Immunity Act squarely
places them in the definition of “political subdivision” instead.
Other sections of the Utah Code likewise deem certain public
entities as “instrumentalit[ies] of the state” even though those
entities are created by what the Immunity Act deems “political
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ordinary meaning of those terms as used in the Immunity Act. See
Bagnes, 2014 UT 4, ¶ 13 (stating that we derive a term’s meaning
either from its “ordinary meaning” or from “its technical sense as
a legal term of art”).
¶21 Dictionaries provide a useful starting point when
assessing the ordinary meaning. Id. ¶ 14. “The dictionary is useful
in cataloging a range of possible meanings that a statutory term
may bear. It provides an historical record, not necessarily all-
inclusive, of the meanings which words in fact have borne.” Id.
(citation omitted) (internal quotation marks omitted). But “the
dictionary alone is often inadequate to the task of interpretation”
because different definitions may support different
interpretations. Id. Accordingly, when the dictionary is
inconclusive, we turn to other canons of statutory construction to
focus our interpretation. See id. ¶¶ 14–21.
¶22 We do so here for the term “other instrumentality of the
state”—we begin with the dictionary definitions and then turn to
other canons as necessary. We would undertake the same mode of
analysis for public corporation, but the lack of briefing on the
appropriate method of analysis for this term leads us to decline to
answer this part of the first certified question. Importantly, we
limit our analysis to the question certified to us and leave the
ultimate resolution of the parties’ case to the federal court. See
Garfield Cty. v. United States, 2017 UT 41, ¶ 6, ---P.3d---.
A. Other Instrumentality of the State
¶23 As a starting point for our assessment of “other
instrumentality of the state,” both USURF and AWSF point us to
subdivisions.” See, e.g., id. § 11-3-13 (deeming a financing
authority “an instrumentality of the state”); id. § 11-3-3(1)
(allowing financing authorities to be created by “[t]he governing
body of any county”); see also id. § 17D-2-103(1) (calling a “local
building authority . . . an instrumentality of the state, created by a
local entity”); id. § 17D-2-102(7) (defining a “[l]ocal entity” as “a
county, city, town, school district, local district, or special service
district”). And these statutes are likewise inconsistent with the use
of “instrumentality of the [s]tate” in Davis, 2006 UT 52, ¶¶ 20–21.
The inconsistent usage of these terms in our law means that
they are not terms of art and there is no “old soil” that they can
bring into the Immunity Act.
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dictionary definitions of instrumentality. Looking at the
dictionaries they cite, two operative categories emerge: 1) a
general definition of instrumentality as a means by which
something is achieved and 2) a more specific definition of
instrumentality as it relates to governmental operation. For
example, Black’s Law Dictionary provides two relevant definitions
for instrumentality: “1. A thing used to achieve an end or
purpose. 2. A means or agency through which a function of
another entity is accomplished, such as a branch of a governing
body.” Instrumentality, BLACK’S LAW DICTIONARY (10th ed. 2014).
Similarly, instrumentality has been defined as “2. A means; an
agency. 3. A subsidiary branch, as of a government, by means of
which functions or policies are carried out,” Instrumentality,
AMERICAN HERITAGE® DICTIONARY OF THE ENGLISH LANGUAGE
(5th ed. 2016) and “[2a:] something by which an end is achieved :
MEANS . . . [b:] something that serves as an intermediary or agent
through which one or more functions of a controlling force are
carried out [:] a part, organ, or subsidiary branch esp. of a
governing body,” WEBSTER’S THIRD NEW INTERNATIONAL
DICTIONARY, (14th ed. 2016).
¶24 As these varying definitions show, and as several other
courts have recognized, “instrumentality . . . is a word susceptible
of more than one meaning and is therefore potentially
ambiguous.” Green v. City of N.Y., 465 F.3d 65, 79 (2d Cir. 2006); see
also Edison v. Douberly, 604 F.3d 1307, 1309 (11th Cir. 2010).
Therefore, although the dictionary definitions are a useful starting
point, “alone [they are] inadequate to the task of interpretation.”
Bagnes, 2014 UT 4, ¶ 14. To undergo a proper interpretation, we
must turn to other canons of statutory construction in our
assessment of the ordinary meaning intended by the legislature.
These canons show that the legislature intended a meaning
focused on government operations.
¶25 “[O]ther instrumentality” does not appear in isolation but
as a catchall term at the end of an exemplary list that is modified
by “of the state.” See UTAH CODE § 63G-7-102(10). USURF
correctly points us to two canons we find particularly useful in
interpreting this type of catchall term: ejusdem generis and noscitur
a sociis. See In re Disconnection of Certain Territory from Highland
City, 668 P.2d 544, 547–48 (Utah 1983) (recognizing that when an
ambiguous general catchall provision accompanies a specific list,
ejusdem generis and noscitur a sociis “require that the general words
be restricted to a sense analogous to the specific words”); see also
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Green, 465 F.3d at 79 n.10 (relying on ejusdem generis and noscitur a
sociis to interpret “other instrumentality of a State”).
¶26 Ejusdem generis 7 is a subset of noscitur a sociis, which
presumes that “[words] grouped in a list should be given related
meaning.” Fire Ins. Exch. v. Oltmanns, 2018 UT 10, ¶ 11, 416 P.3d
1148 (citation omitted); see ANTONIN SCALIA & BRYAN A. GARNER,
READING LAW: THE INTERPRETATION OF LEGAL TEXTS 205 (2012)
(distinguishing ejusdem generis as part of “the more general rule
noscitur a sociis,” but containing a “necessary specific-general
sequence in the enumeration”). Ejusdem generis presumes “that in
order to give meaning to a general term, the general term is
understood as restricted to include things of the same kind, class,
character, or nature as those specifically enumerated, unless there
is something to show a contrary intent.” State ex rel. A.T., 2001 UT
82, ¶ 12, 34 P.3d 228. In its simplest terms, ejusdem generis “posits
that general catchall terms appearing at the beginning or end of
an exemplary statutory list are understood to be informed by the
content of the terms of the list.” Bagnes, 2014 UT 4, ¶ 18; see also
SCALIA & GARNER, supra at 199–200 (“When the initial terms [in a
series] all belong to an obvious and readily identifiable genus, one
presumes that the speaker or writer has that category in mind for
the entire passage. . . . And . . . when the tagalong general term is
given its broadest application, it renders the prior enumeration
superfluous.”).
¶27 Therefore, it is necessary to turn to the specific terms in
the statute to give meaning to “other instrumentality of the state.”
Under the statute, the “[s]tate” is defined as “the state of Utah,
and includes each office, department, division, agency, authority,
commission, board, institution, hospital, college, university,
Children’s Justice Center, or other instrumentality of the state.”
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7 Literally, “’of the same kind,’ and . . . a variation of the
maxim noscitur a sociis.” 2A SUTHERLAND, STATUTES AND
STATUTORY CONSTRUCTION § 47.17 Ejusdem generis (Norman
Singer, 7th ed. 2017). Ejusdem generis instructs that “where general
words follow specific words in an enumeration describing a
statute's legal subject, the general words are construed to embrace
only objects similar in nature to those objects enumerated by the
preceding specific words.” Id. (footnotes omitted).
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UTAH CODE § 63G-7-102(10). 8 Any entity arguing that it falls
within the catchall provision of “other instrumentality of the
state” must show that it is “of the same kind, class, character, or
nature,” A.T., 2001 UT 82, ¶ 12, as the twelve specifically
enumerated terms.
¶28 It is sometimes possible for us to apply ejusdem generis to
a statute and delineate the specific commonalities between the
terms. See, e.g., Kilpatrick v. Bullough Abatement, Inc., 2008 UT 82,
¶ 33, 199 P.3d 957 (concluding that all of the terms in the list
“involve intentional behavior,” so the catchall term “‘fault’ should
not be interpreted to include unintentional behavior”). But at
other times, our analysis focuses on whether the specific
requested application falls outside the catchall under the principle
of ejusdem generis. See, e.g., A.T., 2001 UT 82, ¶ 13 (recognizing that
under ejusdem generis the “catchall phrase, ‘any other act of
lewdness[,]’ . . . obviously includes a wide variety of acts,” and
concluding only that the alleged act of lewdness was clearly
included in the parameters of the term); Isaacson v. Dorius, 669
P.2d 849, 851 (Utah 1983) (using ejusdem generis to determine that
“‘reports’ and ‘tax returns[]’ have little or no affinity with ‘notice
of appeal[,]’ [because notice of appeal] is a term for a judicial
procedure, that . . . controls the very functioning of the judiciary”
while the other statutory terms “ha[ve] no such connotation,”
without specifically stating the connotation of the statutory
terms).
¶29 The parties have not briefed what commonalities the
twelve enumerated terms share. And the commonalities between
__________________________________________________________
8 GeoMetWatch argues that ejusdem generis and noscitur a sociis
are inappropriate interpretive tools to use in this case because
“there are dozens, if not hundreds of private ‘institutions,’
‘hospitals,’ and ‘colleges’ in the state of Utah that could never be
classified as the ‘State’ as that term is used in the Immunity Act.”
This argument misses the mark. Under the structure of the statute,
“of the state” not only modifies “other instrumentality,” but also
every other term in the list, including institution, hospital, and
college. “When there is a straightforward, parallel construction
that involves all nouns or verbs in a series, a prepositive or
postpositive modifier normally applies to the entire series.”
SCALIA & GARNER, supra ¶ 26 at 147.
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Opinion of the Court
the twelve terms are not so readily apparent that we believe this is
a time where ejusdem generis allows us to delineate the specific
commonalities at a general level. Instead, determining whether an
entity qualifies as an “other instrumentality of the state” requires
a comparison between that entity’s specific characteristics and
those of the twelve enumerated terms, keeping the dictionary
definitions of the enumerated terms in mind. Therefore, the
ultimate inquiry is whether the entity is a branch of the state that
carries out state functions, and, if so, whether that branch and its
functions are “of the same general kind, class, character, or nature
as those enumerated” terms. A.T., 2001 UT 82, ¶ 12.
¶30 This is not an analysis for us to undertake in this case. In
responding to a certified question, we answer the question posed,
leaving to the federal courts the application of that legal standard
to the specific facts of the case at hand. Garfield Cty. v. United
States, 2017 UT 41, ¶ 6, ---P.3d---. We can, of course, “refer to
surrounding facts and circumstances not just to set the stage for
our resolution of questions certified by federal courts, but also to
illustrate the application of our answer in the context of the case.”
Fundamentalist Church of Jesus Christ of Latter-day Saints v. Horne,
2012 UT 66, ¶ 9, 289 P.3d 502 (citations omitted). But we lack
sufficient briefing on the commonalities of the twelve enumerated
terms and whether AWSF and USURF share those commonalities.
We therefore leave this determination to the federal district court
in subsequent proceedings.
B. Other Public Corporation
¶31 AWSF and USURF do not undertake the same thorough
analysis for public corporation. Although we are not bound by the
parties’ interpretation of a statute, see Kaiserman Assocs., Inc. v.
Francis Town, 977 P.2d 462, 464 (Utah 1998) (“We should not be
forced to ignore the law just because the parties have not raised or
pursued obvious arguments.”); see also State v. Rasabout, 2015 UT
72, ¶ 37, 356 P.3d 1258 (Durrant, C.J., concurring in part and
concurring in the judgment) (“[W]e may, and often have,
employed dictionaries, canons of construction, or other tools for
statutory interpretation that have not been argued by the
parties.”), we find the briefing on public corporation detrimental
to our ability to engage in the analysis necessary to do justice to
the statute.
¶32 Certified questions present an unusual procedural
posture, resulting in unique challenges to our decision-making
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process. See Zimmerman v. Univ. of Utah, 2018 UT 1, ¶¶ 13–14, 417
P.3d 78. Instead of being asked to review a lower court’s
determination of legal standards and their application to the case,
“we are addressing abstract questions of law.” Id. ¶ 13.
¶33 The first certified question asks us to create a legal test for
the catchall phrase “other public corporation.” Under normal
circumstances, we would be required to determine if the state
district court was correct in determining whether a certain entity
qualifies as a public corporation, and we would discuss the
principles only as they are relevant to that entity. Here, in order to
answer the question, we would be required to create an
overarching test applicable to every potential public corporation.
¶34 This is not to say that such an analysis could not be
done—it is possible, and some day it may be necessary for us to
create such an overarching test. And, under the proper
circumstances, we would not shy away from such a task. But the
proper circumstances do not exist here.
¶35 As demonstrated below, see infra ¶¶ 36–44, selecting the
appropriate definition of public corporation is not a simple or
straightforward exercise. And the challenges presented in
responding to a certified question are compounded by briefing
that misses the mark. See In re Kiley, 2018 UT 40, ¶ 13, ---P.3d---.
¶36 USURF’s sole analysis is to point us to Utah Code section
63E-1-102(7), which defines public corporation as “an artificial
person, public in ownership, individually created by the state as a
body politic and corporate for the administration of a public
purpose relating to the state or its citizens.” USURF argues that
we should construe the Immunity Act “in harmony with other
statutes in the same chapter and related chapters,” Delta Canal Co.
v. Frank Vincent Family Ranch, LC, 2013 UT 69, ¶ 16, 420 P.3d 1052
(citation omitted), especially because the definition has been
expressly incorporated into Utah Code section 63G-6a-103(63).
¶37 AWSF undertakes a slightly more in-depth analysis,
pointing us to dictionary definitions of public corporation. 9 But
__________________________________________________________
9 AWSF provides us with two dictionary definitions. Notably,
it points to one of the definitions of public corporation in Black’s
Law Dictionary: “A corporation that is created by the state as an
agency in the administration of civil government.” Public
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the only analysis AWSF undertakes to support those definitions is
to point to the definition from section 63E-1-102(7) and Utah Farm
Bureau Ins. Co. v. Utah Ins. Guar. Ass’n, 564 P.2d 751, 754–55 (Utah
1977) (noting that another jurisdiction recognized a public
corporation as an entity “created for public purposes connected
with the administration of government”) (citation omitted).
¶38 USURF and AWSF have failed to convince us that the
legislature intended for the definition of public corporation in
63E-1-102(7) to apply to the Immunity Act. The Immunity Act
“contains no indication that [public corporation is] defined
elsewhere.” I.M.L. v. State, 2002 UT 110, ¶ 29, 61 P.3d 1038
(refusing to incorporate the definition from one section of the
criminal code into another section of the criminal code, even
though both sections appeared in the same chapter).
¶39 Instead, we see many indications that importing the
definition of public corporation from section 63E-1-102 into the
Immunity Act would be contrary to the legislature’s intent.10 We
raise these concerns and engage in this discussion not to decide
this issue or to put our thumb on the scale in any way but to
highlight the briefing issues and explain our reasoning for not
reaching the ultimate question.
¶40 Looking closely at the definition in section 63E-1-102,
along with sections in the code that have incorporated that
definition, it initially appears that it is talking about a narrow
Corporation, BLACK’S LAW DICTIONARY. We are skeptical of limiting
the definition of public corporation in the Immunity Act to solely
those created by the state. See infra ¶ 40. Additionally, AWSF
makes no mention of, or any attempt to distinguish its preferred
definition from, a second definition provided by Black’s Law
Dictionary: “A government-owned corporation that engages in
activities that benefit the general public, usu. while remaining
financially independent.” Public Corporation, BLACK’S LAW
DICTIONARY. This cursory briefing does not provide us with
sufficient assistance in determining the correct interpretation of
the Immunity Act.
10 We would also have to import the Immunity Act’s definition
of “state” into section 63E-1-102. “State” isn’t defined in section
63E, and we would, at least by implication, be saying that “state”
includes everything in the Immunity Act’s definition.
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subsection of public corporations—those created by the
legislature by special act—and not all public corporations are
meant to be covered by the Immunity Act. 11 Section 63E-1-102
limits the definition of public corporation to “an artificial person,
public in ownership, individually created by the state as a body
politic and corporate for the administration of a public purpose
relating to the state or its citizens.” (Emphases added). The
legislature has incorporated that definition into a statute that
individually creates a body corporate and politic that serves a
statewide public purpose. See UTAH CODE § 63H-1-201.
¶41 None of the parties addressed the use of ejusdem generis or
noscitur a sociis in interpreting “other public corporation.” We
found these canons extremely helpful in interpreting “other
instrumentality of the state.” See supra ¶¶ 24–27. A brief analysis
under ejusdem generis and noscitur a sociis confirms our skepticism
of using the definition from section 63E-1-102. With the possible
exception of an interlocal entity (if created with participation of
the state), every entity listed in the definition of “political
subdivision” is created by a local governing body or the people of
an area not encompassing the entire state to serve a public
purpose that is limited to its narrow jurisdiction. 12
__________________________________________________________
11 While the Utah Constitution bans the creation of
corporations by special act, see UTAH CONST. art. XII, sec. 1, this
court has interpreted this provision to allow legislation that
“promotes a legitimate governmental and statewide purpose, as
declared by the legislature,” but not legislation that “involve[s]
the promotion of private or local interests.” Utah Farm Bureau Ins.
Co., 564 P.2d at 755 n.10.
12 See, e.g., UTAH CONST. art. XI, sec. 7 (“The Legislature may by
statute authorize:[] a county, city, or town to establish a special
service district within all or any part of the county, city, or town,
to be governed by the governing authority of the county, city, or
town, and to provide services as provided by statute . . . .”
(emphasis added)); UTAH CODE § 17D-1-103(1) (recognizing that a
special service district is “a body corporate and politic with
perpetual succession, separate and distinct from the county or
municipality that creates it” (emphasis added)); id. § 17C-1-
102(4)(c) (requiring a community redevelopment and renewal
agency’s boundaries to be coterminous with the municipality or
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Opinion of the Court
¶42 This is not to say that ejusdem generis or noscitur a sociis are
appropriate methods of interpretation in this case. This could be a
circumstance “[w]here the general term unambiguously exceeds
the scope of a non-exhaustive list, [which would mean] we cannot
read the list to override the clear meaning of the general term.”
Graves v. N. E. Servs., Inc., 2015 UT 28, ¶ 55, 345 P.3d 619. Indeed,
we must remember that we are ultimately interpreting political
subdivision. And, in the instance that the legislature incorporated
the definition of public corporation in section 63E-1-102 into a
statute that individually authorizes a public corporation
statewide, the legislature has deemed that entity a “political
subdivision of the state.” See UTAH CODE § 63H-1-201(2).
¶43 Ejusdem generis might also be inappropriate if not all of
the terms in the list are truly related. At least two of the listed
terms (local districts and special service districts) are a “quasi-
municipal corporation.” UTAH CODE §§ 17B-1-103(1), 17D-1-103(1).
In 1935, we recognized that “[t]here is no uniformity of
classification of the public agencies which may be set up by a
state.” Lehi City v. Meiling, 48 P.2d 530, 540 (Utah 1935) (noting
that at least one source classified public corporations “as
municipal, quasi-municipal, and public-quasi corporations”). It is
unclear whether our legislature intended to include all of those
categories into its definition of public corporation. If that is the
the “unincorporated area of the county” that created it); id. § 17C-
1-201.5(1) (permitting “[a] community legislative body [to] . . . create
a community reinvestment agency” by ordinance (emphasis
added)); id. § 17B-1-203(1) (allowing a local district to be initiated
by a petition signed by property owners located within “the
proposed local district” or “a resolution proposing the creation of
a local district, adopted by the legislative body of each county whose
unincorporated area . . . includes and each municipality whose
boundaries include any of the proposed local district” (emphases
added)); id. § 53G-3-301(2) (authorizing the creation of a new
school district to be initiated by “a citizens’ initiative petition,” a
“request of the board of the existing district or districts to be
affected,” or “at the request of a city within the boundaries of the
school district” (emphases added)); id. § 11-13-203(1) (recognizing
that an interlocal entity is “separate from the public agencies that
create it”). But see UTAH CODE § 11-13-103(19) (recognizing the
state as one of the agencies that can create an interlocal entity).
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case, we would need to include cities and towns to determine the
“same class” for ejusdem generis. See UTAH CODE § 10-1-104(5)
(including cities and towns in the definition of “[m]unicipality”);
id. § 10-1-201 (deeming municipalities “municipal corporations”).
¶44 Additionally, “other public corporation” is only part of
the catchall provision. As a whole, the catchall reads “other
governmental subdivision or public corporation.” Id. § 63G-7-
102(8). It is unclear to us (without any briefing on the issue)
whether the legislature considered each of the individual
enumerated terms to be a governmental subdivision, public
corporation, or both.
¶45 The parties have also left us without any analysis of
other places in the code where a similar or identical definition of
“political subdivision” appears. See, e.g., UTAH CODE § 11-50-
102(5)(a) (providing an identical definition); id. § 11-57-102(4)
(same); id. § 63G-9-201(1)(a) (same); id. § 63A-15-102(5) (including
a similar definition); id. § 11-55-102(4) (same). While we recognize
that many of these statutes were adopted during or after the
events that occurred in this case, we find them to be potentially
noteworthy examples of the confusion surrounding “public
corporation” in our statutes. This is, of course, not to say that we
would interpret “political subdivision” and the catchall “other
public corporation” in those sections in an identical manner as we
would in the Immunity Act. But their existence may (or may not)
provide interesting and helpful insight into the interpretive
puzzle with which we find ourselves today. The fact that an
identical definition of “political subdivision” appears in three
different chapters in Title 11 (Cities, Counties, and Local Taxing
Units) increases our hesitancy to limit the definition of public
corporation to those created solely by the state.
¶46 When a certified question is inadequately briefed, we
may exercise our discretion to decline to answer the question. See
Zimmerman, 2018 UT 1, ¶ 2 (“Because these [certified] questions
are not adequately briefed by the parties we decline to resolve
them here.”). Had the parties undertaken some of this analysis in
their briefs, we would be in a much better position to create an
overarching test for “other public corporation.” “But the parties
have not given us the kind of adversary briefing that we would
need to resolve these important issues with confidence, and we
therefore decline to do so.” Id. ¶ 28. We are unwilling to
undertake such an analysis on our own, particularly in light of the
unique challenges we face in answering a certified question. We
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Opinion of the Court
therefore exercise our discretion to decline to answer this portion
of the first certified question.
II. JURISDICTION AND VENUE UNDER
THE IMMUNITY ACT
¶47 The federal district court certified to us two additional
questions about the interpretation of the Immunity Act. These
questions are relevant only if the district court decides that
USURF or AWSF is a governmental entity for the purposes of the
Immunity Act.
¶48 Because we do not decide whether USURF or AWSF is a
governmental entity, it is not appropriate for us to answer the
second and third certified questions at this time. However, there
appears to be significant confusion among the parties about the
appropriate interpretation of the certified questions. Taking this
opportunity to engage in a dialogue with the district court, we
highlight the different interpretations set forth by the parties and
contemplated by this court. If the district court ultimately
determines that USURF or AWSF is a governmental entity and
decides to certify the second and third questions to this court
again, we hope that this dialogue will aid the district court in
clarifying the correct interpretation of these questions, allowing us
to answer the questions “in a context and manner useful to the
resolution of [the] pending federal case.” Zimmerman v. Univ. of
Utah, 2018 UT 1, ¶ 13, 417 P.3d 78 (citation omitted).
A. Are the Jurisdiction and Venue Provisions Required to
Be Followed for Waiver of Governmental Immunity?
¶49 The second certified question asks us whether the
jurisdiction and venue provisions in the Immunity Act, Utah
Code sections 63G-7-501 and 502, “reflect an intent by the State of
Utah to limit the Immunity Acts [sic] waiver of sovereign
immunity to suits brought in Utah district courts.” 13 The parties
__________________________________________________________
13The jurisdiction section states that “[t]he district courts have
exclusive, original jurisdiction over any action brought under this
chapter.” UTAH CODE § 63G-7-501(1). Relatedly, the venue section
provides:
(1) Actions against the state may be brought in the county in
which the claim arose or in Salt Lake County.
....
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Opinion of the Court
provide us with a variety of potential interpretations of this
question. But, upon careful examination of the certification order
and the relevant caselaw, we see an additional interpretation that
was not addressed in the briefing.
¶50 USURF sees three different interpretations of the
question. First, USURF believes the question could be interpreted
as asking whether those sections of the Immunity Act “define
jurisdiction and venue in Utah’s state courts.” Second, USURF
believes the question “could be construed to ask whether sections
501 and 502 limit a federal court’s subject-matter jurisdiction (or
federal venue).” Finally, USURF contends the question “could be
construed to ask whether the Utah Legislature intended the
Immunity Act to waive the State’s Eleventh Amendment
immunity.”
¶51 Conversely, GeoMetWatch simply believes that the
question is entirely inappropriate because the Eleventh
Amendment, not the Immunity Act, governs all state sovereign
immunity questions in federal courts.
¶52 AWSF sees the question slightly differently. AWSF
recognizes that the Eleventh Amendment is not the sole source of
a state’s sovereign immunity. But even AWSF frames its
discussion and conclusion based on Eleventh Amendment
jurisprudence.
¶53 We see another way of interpreting the district court’s
question based on the language in the certification order and our
caselaw. Cases sometimes refer to “the States’ immunity from suit
as ‘Eleventh Amendment immunity.’” Alden v. Maine, 527 U.S.
706, 713 (1999). However, the phrase is “something of a
misnomer, for the sovereign immunity of the States neither
derives from, nor is limited by, the terms of the Eleventh
Amendment.” Id. “[T]he States’ immunity from suit is a
fundamental aspect of the sovereignty which the States enjoyed
before the ratification of the Constitution, and which they retain
today . . . .” Id.
(3) Actions against all other political subdivisions,
including cities and towns, shall be brought in the county in
which the political subdivision is located or in the county in
which the claim arose.
Id. § 63G-7-502.
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¶54 “A State’s constitutional interest in immunity
encompasses not merely whether it may be sued, but where it may
be sued.” Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 99
(1984). Federal courts lack jurisdiction “to entertain a suit brought
by private parties against a State without consent given . . .
because of the Eleventh Amendment . . . [and] the fundamental
rule of which the Amendment is but an exemplification.” Id. at
98–99 (emphasis omitted) (citation omitted).
¶55 Importantly, “[a] state enjoys another kind of sovereign
immunity besides immunity from suit that it may invoke even
after agreeing to [suit in federal court]—immunity from liability.”
Trant v. Oklahoma, 754 F.3d 1158, 1172 (10th Cir. 2014). Therefore,
even where a state waives its Eleventh Amendment immunity
from a federal forum, the state retains “any defense it would have
enjoyed in the state court—including immunity from liability for
particular claims.” Stroud v. McIntosh, 722 F.3d 1294, 1302 (11th
Cir. 2013).
¶56 “[S]tate law . . . determine[s] the nature and scope of a
state’s immunity” outside of the Eleventh Amendment. Trant, 754
F.3d at 1172. The Immunity Act is Utah’s expression of the nature
and scope of its broader immunity. See Greene v. Utah Transit
Auth., 2001 UT 109, ¶ 11 n.1, 37 P.3d 1156 (“The doctrine of
sovereign immunity requires that government must consent
before any action is brought against it. The Immunity Act
represents such consent by the Utah Legislature.” (citation
omitted)). We find several provisions of the Immunity Act, along
with our prior jurisprudence interpreting the Immunity Act,
instrumental in crafting what we believe is the correct
interpretation of the second certified question.
¶57 The Immunity Act is a “comprehensive chapter”
containing “waivers and retentions of immunity” that “appl[y] to
all functions of government” and “govern[] all claims against
governmental entities or against their employees or agents [under
specific conditions].” UTAH CODE § 63G-7-101(2). The Immunity
Act contains limited waivers of immunity for particular types of
claims. See id. § 63G-7-301. However, these waivers are
“conditioned upon compliance with the Immunity Act.” Xiao
Yang Li v. Univ. of Utah, 2006 UT 57, ¶ 7, 144 P.3d 1142.
¶58 The Immunity Act “provide[s] a protocol that must be
followed by those seeking to file a claim against the government.”
Carter v. Univ. of Utah Med. Ctr., 2006 UT 78, ¶ 13, 150 P.3d 467
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(discussing a predecessor to the current venue provision). “We
consistently have interpreted the Immunity Act to require strict
compliance by plaintiffs.” Davis v. Cent. Utah Counseling Ctr., 2006
UT 52, ¶ 42, 147 P.3d 390. Importantly, we have recognized that
“allowance of a claim against [a governmental entity] is a
statutorily created exception to the Doctrine of Sovereign
Immunity.” Id. (alteration in original) (citation omitted).
Accordingly, “[t]he statutory right to sue a governmental entity
may be circumscribed by any conditions that the Legislature may
see fit to impose, and compliance with those conditions is an
‘indispensable prerequisite’ in suits against governmental
entities.” Id. (citation omitted) (internal quotation marks omitted);
see also Hall v. Utah State Dep’t of Corr., 2001 UT 34, ¶ 23, 24 P.3d
958 (“[W]here the government grants statutory rights of action
against itself, any conditions placed on those rights must be
followed precisely.”). “The requirement of strict compliance,
therefore, is a recognition of the government’s sovereign
immunity and its right to dictate the terms and conditions of its
waiver of that immunity.” Davis, 2006 UT 52, ¶ 42; see also Wheeler
v. McPherson, 2002 UT 16, ¶ 11, 40 P.3d 632 (“[T]his standard of
strict compliance derives naturally from both basic principles of
sovereign immunity and from the text of the Immunity Act
itself.”).
¶59 In its certification order, the district court recognized that
“[t]he Immunity Act represents a limited waiver of the State’s
broader sovereign immunity, permitting suits against Utah only
under specific conditions set by the Legislature.” It further
acknowledged that “[t]he interpretation of those conditions [in
sections 63G-7-501 and 502] . . . is the question now before the
federal court [and is] [u]ndoubtedly . . . a question of Utah law.”
¶60 Accordingly, we are not inclined to interpret the second
question as asking about Eleventh Amendment immunity or
general jurisdiction and venue requirements. Instead, we see the
likely thrust of the district court’s question as much more
nuanced—asking us whether the jurisdiction and venue
provisions are conditions to a governmental entity’s waiver of
immunity from liability for particular claims under the Immunity
Act.
¶61 Our interpretation of the district court’s question could be
incorrect. If the district court chooses to certify this question to us
again, it would be beneficial to this court to have clarification on
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Opinion of the Court
the question presented, allowing the parties to focus their briefing
on the relevant issue.
B. Can the Jurisdiction and Venue Provisions Be Waived?
¶62 The third certified question is relevant only if we answer
the second certified question in the affirmative. It asks us whether
“the Office of the Attorney General for the State of Utah or any
litigant [has] authority under Utah law to waive the jurisdictional
and venue provisions enacted by the Utah Legislature in the
Immunity Act.” Because the parties have inconsistent
interpretations of the second question, they likewise present
different interpretations of the third question. However, they all
reach the same conclusion.
¶63 GeoMetWatch continues to insist that this is an Eleventh
Amendment issue, and that the Eleventh Amendment can be
waived both expressly and impliedly. AWSF similarly engages in
a lengthy discussion of Eleventh Amendment jurisprudence on
the issue, but also recognizes that the question could raise the
issue of separation of powers. USURF takes a slightly different
approach, arguing that “no party can waive the [Immunity] Act’s
jurisdictional or venue requirements in state-court proceedings,”
but whether a party “can invoke or waive the State’s immunity
defenses when litigating in federal court” is a federal question
with a federal answer.
¶64 The proper interpretation of, and answer to, the third
question depends on two factors not discussed by the parties.
First, the analysis of the question will differ if sections 63G-7-501
and 502 are treated as general jurisdiction and venue provisions
or conditions to the waiver of sovereign immunity. Second, we
would be required to undertake a different analysis depending on
the person or entity waiving the provisions. Although the district
court expressly asks whether the Attorney General has the
authority to waive the jurisdiction and venue provisions, it also
asks the same of “any litigant.” The district court later stated that
it was requesting guidance “as to whether Utah law allows for the
Utah Attorney General or another governmental litigant to waive
the jurisdiction and venue conditions of the Immunity Act.” We
therefore see a proper analysis of this question focusing on both
governmental entities and employees of governmental entities,
represented by the Attorney General or by private counsel.
¶65 We believe there are three potential (and interrelated)
interpretations of the district court’s third question not raised by
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the parties: 1) Does the Attorney General or any other litigant
have the authority to affirmatively waive compliance with
conditions to the waiver of immunity under the Immunity Act?;
2) Can a governmental entity (or an employee of a governmental
entity) waive conditions to the waiver of immunity under the
Immunity Act by not asserting it? 14; and 3) Is the assertion of
noncompliance with conditions to the waiver of immunity under
the Immunity Act subject to equitable remedies based on litigation
and/or other conduct?
¶66 Importantly, these interpretations are relevant only if the
jurisdiction and venue provisions are treated as conditions to the
waiver of immunity. Because we have required “strict compliance
to the Immunity Act before determining that the State waived its
immunity,” Xiao Yang Li, 2006 UT 57, ¶ 8, these readings of the
district court’s third question not only raise the issue of whether a
litigant may waive terms and conditions to sovereign immunity,
but immunity itself.
¶67 These are very complicated questions without
straightforward answers. As AWSF recognizes, the third certified
question raises potential separation of powers concerns. We have
previously suggested that only the legislature has the authority to
waive immunity. Bailey Serv. & Supply Corp. v. State ex rel. Road
Comm’n, 533 P.2d 882, 883 (Utah 1975) (“Only the legislature can
waive sovereign immunity . . . .”); Fairclough v. Salt Lake Cty., 354
P.2d 105, 106 (Utah 1960) (“[C]onsistently and historically we
have ruled that the State may not be sued without its consent; . . .
and that to secure such consent is a legislative matter, a principle
recognized by the legislature itself.” (footnotes omitted) (citation
omitted)), overruled on other grounds by Colman v. Utah State Land
Bd., 795 P.2d 622 (Utah 1990); see also In re Bear River Drainage Area,
271 P.2d 846, 848–49 (Utah 1954) (“It is elemental that the Federal
government cannot be [sued] without its consent and it has been
held that there is no distinction between suits against the
government directly and suits against its property. Nor can an
officer of the government waive the exemption of the United
States from judicial process or submit the United States or its
__________________________________________________________
14For example, one condition we have previously recognized
is providing notice that “strictly complie[s] with the statutory
requirements.” Xiao Yang Li, 2006 UT 57, ¶ 15.
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Opinion of the Court
property to the jurisdiction of the court. The waiver of sovereign
immunity is the sole prerogative of Congress.” (footnotes
omitted)). We have even rejected a stipulation between a plaintiff
and a governmental entity that “purported to waive
governmental immunity” on this ground. Bailey Serv. & Supply,
533 P.2d at 883.
¶68 However, we have also characterized sovereign
immunity under the Immunity Act as an affirmative defense upon
which the defendant bears the burden of proof. Nelson ex rel.
Stuckman v. Salt Lake City, 919 P.2d 568, 574 (Utah 1996). And
affirmative defenses are generally waived by the parties if they
are not raised.15 See UTAH R. CIV. P. 8(c) (requiring a party to
designate affirmative defenses in their answer); Gonzalez v.
Cullimore, 2018 UT 9, ¶ 37, 417 P.3d 129 (“If a party fails to raise an
affirmative defense pursuant to rule 8(c), generally it is considered
waived.”). But even the applicability of Utah Rule of Civil
Procedure 8(c) to the Immunity Act would require us to
determine whether the restrictions on waiver of immunity in the
Immunity Act are “all-encompassing” on that issue, both as to
immunity as an affirmative defense generally, and as to equitable
remedies such as estoppel. See Craig v. Provo City, 2016 UT 40,
¶¶ 22–23, 389 P.3d 423; see also UTAH CODE § 63G-7-401(7)
(prohibiting a governmental entity from challenging the validity
of a notice under certain equitable circumstances). Moreover, the
applicability of rule 8(c) would require analysis of the ability of a
litigant to waive immunity.
¶69 The question of whether a litigant can implicitly waive
the terms and conditions found in the Immunity Act through the
application of equitable remedies, such as estoppel, provides an
even trickier question. With respect to Eleventh Amendment
immunity, federal courts have recognized an “extraordinarily
effective waiver” of Eleventh Amendment immunity when the
state voluntarily removes the case to federal court and litigates it
on the merits or otherwise voluntarily invokes the federal court’s
jurisdiction—to hold otherwise would be “grossly inequitable.” See,
__________________________________________________________
15 We recognize that our state statutes cannot affect the federal
courts’ rules of civil procedure, but our state’s jurisprudence and
rules of civil procedure may still be relevant to an analysis of how
immunity under the Immunity Act may be waived.
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Opinion of the Court
e.g., Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226,
1235–36 (10th Cir. 1999) (emphasis added) (citation omitted).
¶70 However, our law is not as clear on this subject with
regard to the Immunity Act. We have issued what appear to be
inconsistent opinions on whether estoppel applies to the terms
and conditions found in the Immunity Act.
¶71 We first discussed estoppel in the context of a
predecessor to the current Immunity Act in Rice v. Granite School
District, 456 P.2d 159 (Utah 1969). In that case, we noted that
“[g]overnmental immunity from estoppel is a derivative of the
doctrine conferring the sovereign entity with immunity from suit
without its consent.” Rice, 456 P.2d at 161 (citation omitted). And
we recognized that
[i]t would appear to be an anomalous situation if we
were to hold that although sovereign immunity has
been waived, a derivative of that doctrine,
governmental immunity from estoppel, is a viable
principle which may be asserted to avert liability by
an entity denominated by the act as a private
person.
Id. at 162; see also UTAH CODE § 63G-7-202(1)(b) (providing that
once immunity is waived by the Immunity Act “liability of the
entity shall be determined as if the entity were a private person”).
We therefore concluded that a governmental entity’s assertion of
the statute of limitations in the predecessor Immunity Act was
subject to estoppel. See Rice, 456 P.2d at 163.
¶72 If the statute of limitations in the Immunity Act is one of
the terms and conditions that must be followed for waiver to be
effective (an issue not contemplated in Rice), Rice would be
inconsistent with our later holdings that require “strict
compliance [with] the Immunity Act before determining that the
State waived its immunity.” Xiao Yang Li, 2006 UT 57, ¶ 8. If a
governmental entity is only subject to estoppel once immunity has
been waived, see Rice, 456 P.2d at 162, then it must follow that
estoppel cannot apply to one of the conditions to the waiver of
that immunity.
¶73 Since Rice, we have issued opinions that continue to
acknowledge the availability of estoppel against a governmental
entity in Immunity Act cases. See Wheeler, 2002 UT 16, ¶¶ 18–19
(recognizing that “governmental entities may be estopped from
raising the Immunity Act as a . . . defense,” but finding that the
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Opinion of the Court
governmental entity was not estopped from raising the
insufficiency of the notice because circumstances supporting
estoppel were absent from the case); Shunk v. State, 924 P.2d 879,
881–82 (Utah 1996) (concluding “that there is no basis to invoke an
estoppel against defendants for misleading plaintiff by their
answer” in an earlier case on the issue of proper notice because
“the State gave [the plaintiff] no misinformation”); Forsman v.
Forsman, 779 P.2d 218, 220 (Utah 1989) (remanding to allow the
plaintiff to present evidence on “whether the State is estopped to
assert the lack of timely notice of claim”).
¶74 However, we have also issued decisions that appear
inconsistent with applying estoppel to the terms and conditions to
waiver in the Immunity Act because estoppel would override the
explicit requirements of waiver set forth by the legislature. See
Davis, 2006 UT 52, ¶¶ 42, 45–46 (noting that “[t]he requirement of
strict compliance . . . is a recognition of the government’s
sovereign immunity and its right to dictate the terms and
conditions of its waiver of that immunity,” and that even though
“government employees and officials may even intentionally
mislead plaintiffs in some cases,” strict compliance with the notice
provision is necessary; but not discussing misleading statements
in terms of estoppel); Greene, 2001 UT 109, ¶ 17 (mandating strict
compliance with the notice provisions in the Immunity Act even
when an employee of the government entity misleads the plaintiff
on the delivery requirements because the employee’s “delivery
instructions cannot override the requirements set by the
legislature”—again deciding without discussing estoppel). There
may, of course, be ways of reconciling these cases that the parties
could provide in their briefs if this question is certified again to
this court. If there is no way to reconcile these cases, and if this is
relevant to the clarified question posed by the district court, we
would readily welcome additional briefing on the correct line of
cases to follow.
¶75 As with our interpretation of the second certified
question, our possible interpretations of the third certified
question could be incorrect. We acknowledge that the district
court may have intended a different interpretation, only one of
our interpretations, or a combination thereof. In the event that the
district court chooses to certify this question to us again, it would
be useful to have clarification from the court, and thereby directed
briefing from the parties, on the precise question that the district
court needs answered.
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CONCLUSION
¶76 In this response, we have answered part of the first
certified question—setting forth a legal standard for determining
whether an entity is an instrumentality of the state under the
Immunity Act. Nevertheless, we declined to define what
constitutes a public corporation under the Immunity Act. Based
on the complicated nature of that inquiry and the focus of the
briefing, we save this task for a future date.
¶77 The second and third certified questions are relevant only
if the district court determines that USURF or AWSF are an
instrumentality of the state or public corporation. Without that
determination, we would be writing an advisory opinion on these
issues, which might have constitutional implications.
¶78 Although we decline to answer the second and third
certified questions, we note the significance of these questions that
raise matters of first impression in this state and the propriety of
the district court’s certification. We recognize that, if the district
court determines that AWSF or USURF are governmental entities
for the purposes of the Immunity Act, there might be a desire to
once again certify these questions to this court for clarification of
state law. Therefore, by engaging in a dialogue with the district
court, we focus on the confusion of the parties in responding to
these questions in their briefing to give the district court the
opportunity to clarify the expectations for the parties and this
court.
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