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    Rebekah CONNER, Appellant, v. DEPARTMENT OF COMMERCE, State of Utah, and Francine Giani, Appellees.
    No. 20160909-CA
    Court of Appeals of Utah.
    Filed May 23, 2019
    C. Reed Brown, Sandy, and Elizabeth B. Grimshaw, St. George, Attorneys for Appellant
    Kristin A. VanOrman, Salt Lake City, S. Spencer Brown, and Ashley F. Leonard, Attorneys for Appellees
    Judge Diana Hagen authored this Opinion, in which Judges Gregory K. Orme and Jill M. Pohlman concurred.
    Opinion
   HAGEN, Judge:

¶1 Rebekah Conner appeals from a dismissal of her wrongful termination claim. The last business day before trial, the Department of Commerce, State of Utah, and Francine Giani (collectively, the Defendants) filed a motion for judgment on the pleadings under rule 12(c) of the Utah Rules of Civil Procedure, asserting that they were immune from suit due to governmental immunity. The district court deferred consideration of the motion until after trial. The jury found the Defendants liable for wrongful termination and awarded Conner $ 240,000 in damages. After trial, the district court granted the rule 12(c) motion on the ground that the claim tried to the jury-wrongful termination in violation of public policy-is a tort claim for which the government has not waived immunity. The court rejected Conner's argument that her amended complaint could be reasonably read to state a statutory claim for wrongful termination. The court also denied Conner's subsequent motion under rule 15(b) of the Utah Rules of Civil Procedure to amend the pleadings to reflect that claim. Accordingly, the court vacated the jury's verdict for wrongful termination and entered judgment on the pleadings, effectively immunizing the Defendants from the jury's verdict.

¶2 We conclude that the district court properly entered judgment on the pleadings. Even when construed in the light most favorable to Conner, her amended complaint did not state a viable statutory claim for the simple reason that the statute on which she relies does not provide for a private right of action. For that same reason, the district court also properly denied Conner's motion to amend the pleadings to state such a non-existent cause of action. We further conclude that the Defendants did not waive their governmental immunity defense and that the district court did not exceed its discretion when it chose to entertain the Defendants' rule 12(c) motion filed on the eve of trial. Finally, Conner did not preserve her procedural due process claim below and does not argue an exception to preservation on appeal.

Therefore, we affirm the district court's judgment on the pleadings.

BACKGROUND

¶3 Conner sued the Defendants after she was fired in 2013 from her job at the Department of Commerce. Conner had served as the administrative assistant to the director, Giani, for eight years. As a schedule AD employee in a confidential relationship with and reporting directly to the department head, Conner was exempt from the career service provisions of the Utah State Personnel Management Act (USPMA). Utah Code Ann. § 67-19-15 (LexisNexis 2013). According to Conner, Giani did not like or trust the leadership of the Utah Attorney General's Office, where Conner's husband worked as a special agent. Conner claims that she was fired "based on Giani's troubled relationship with the A.G.'s office and the mere fact that Conner's husband was employed there."

¶4 This appeal relates to the first cause of action alleged in Conner's amended complaint. Conner titled this cause of action as "Wrongful Termination Against Public Policy (Vindication of Rights Created by Statute to be Free from Discrimination on the Basis of Political Affiliation or Other Nonmerit Factor)." Conner cited Utah Code section 67-19-18(2) of the USPMA and rule R477-2-3(2) of the Utah Administrative Code, both of which provide that an employee may not be dismissed because of "political affiliation." Conner alleged that the statute and rule reflect a substantial public policy against terminating an employee based on political affiliation, which the Defendants violated by firing Conner based on her husband's employment. She also alleged that she "has a statutory right to be free from discrimination on the basis of political affiliation."

¶5 The Defendants filed an answer to the amended complaint alleging two immunity-based affirmative defenses. The thirteenth defense stated that Conner's claims were "barred by the doctrines of absolute and qualified immunity." The fourteenth defense stated that Conner's claims were barred because she had "failed to comply with the applicable requirements of the Governmental Immunity Act" (GIA). Although the Defendants later withdrew the fourteenth defense concerning whether Conner had complied with the requirements of the GIA, they did not withdraw the thirteenth defense.

¶6 The Defendants did not move for judgment based on their immunity from suit prior to the pretrial motion deadline. The district court denied the Defendants' motion for partial summary judgment based on other grounds, and the case was set for trial.

¶7 One business day before trial, the Defendants filed a rule 12(c) motion for judgment on the pleadings, arguing that Conner's wrongful termination claim was barred by governmental immunity. See Utah R. Civ. P. 12(c). Specifically, the Defendants argued that Conner's first cause of action was a tort claim for wrongful termination in violation of public policy for which governmental immunity had not been waived.

¶8 Conner moved to strike the motion for judgment on the pleadings, arguing that it was untimely and that the governmental immunity defense had been waived and abandoned by the Defendants. The district court requested briefing on the rule 12(c) motion but did not continue the trial. The district court "made it clear that [it] was deferring on ruling on the motion and that [it] ... would rule on the motion after trial."

¶9 The jury returned a verdict in favor of Conner, finding that Conner was terminated due to her political affiliation and awarding her $ 240,000 in compensatory damages.

¶10 After full briefing post-trial, the district court heard argument on the rule 12(c) motion. The district court recognized that it "could have denied this motion for being untimely" as the motion "was filed literally on the eve of trial." Although the court observed that governmental immunity "should have been raised in a 12(b)(6) or in a 12(c) [motion] right after the answer was filed," it elected to entertain the motion because of the "importance of the issues raised in the motion" and because, when suing a governmental entity, a plaintiff is "responsible for understanding [governmental immunity], knowing it, preparing for it, [and] arguing alternative causes of action." On the merits, the district court construed Conner's amended complaint to assert "a wrongful termination tort" for which governmental immunity had not been waived under the GIA. Accordingly, the court granted the Defendants' motion for judgment on the pleadings.

¶11 In its oral ruling from the bench, the district court indicated it was vacating the jury's verdict. In a subsequent written ruling, however, the court concluded that vacating the jury's verdict was "unnecessary and improper." The court explained,

The question of governmental immunity was not put to the jury. Rather it was reserved for judgment by the Court on the pleadings. Because the jury never decided the issue of governmental immunity, there is no reason to vacate the jury's verdict with respect to the first cause of action. Instead, the jury's verdict stands and the Court's order has the effect of immunizing [the] Defendants from the verdict and dismissing the cause of action.

¶12 Conner subsequently filed a rule 52(b) and 59 motion to alter or amend the judgment and for a new trial, along with a rule 15(b) motion to amend the pleadings to conform to the evidence at trial. See Utah R. Civ. P. 52(b), 59(a)(7), 15(b)(1). Conner argued that her wrongful termination claim could be construed either as a claim sounding in tort, which would be barred by governmental immunity, or as a statutory enforcement claim. Conner argued that in granting the Defendants' rule 12(c) motion, the district court erred in not construing the pleadings more liberally to include a claim that she was terminated in violation of a statutory right. In the alternative, she argued that such a statutory enforcement claim was tried by implied consent and that the pleadings must be amended under rule 15(b) to reflect the claim actually tried to the jury. The court denied Conner's motions, concluding that the "pleadings correctly reflect the claim that was actually tried to the jury: wrongful termination in violation of public policy," which was "a tort claim of wrongful termination."

¶13 Conner appeals the district court's grant of the Defendants' rule 12(c) motion, which resulted in the dismissal of the wrongful termination claim, and the denial of her rule 15(b) motion, in which the court refused to amend the pleadings to include a claim of statutory enforcement.

ISSUES AND STANDARDS OF REVIEW

¶14 Conner makes two related arguments as to why her first cause of action should not have been dismissed. She argues, first, that the district court erred in granting the Defendants' motion for judgment on the pleadings under rule 12(c) of the Utah Rules of Civil Procedure, and second, that the district court erred when it declined to amend the pleadings to conform to the evidence presented at trial under rule 15(b) of the Utah Rules of Civil Procedure. Specifically, she argues that the district court should have either construed her amended complaint or amended the pleadings to assert a statutory cause of action that could survive the affirmative defense of governmental immunity. Both issues require us to consider the threshold question of whether such a statutory cause of action exists. "Whether a particular statute provides a private right of action is a question of statutory interpretation," Buckner v. Kennard , 2004 UT 78, ¶ 41, 99 P.3d 842, which we review for correctness, Marion Energy, Inc v. KFJ Ranch P'ship , 2011 UT 50, ¶ 12, 267 P.3d 863.

¶15 Next, we address Conner's contention that the Defendants should have been precluded from raising the affirmative defense of governmental immunity on the eve of trial. "We review the trial court's findings of fact for clear error and its conclusions of law for correctness." Hart v. Salt Lake County Comm'n , 945 P.2d 125, 132 (Utah Ct. App. 1997). We review the district court's interpretation and application of the rules of civil procedure for correctness and will reverse only if the appellant shows "error that was substantial and prejudicial." Hofheins v. Bajio Mountain West LLC , 2017 UT App 238, ¶¶ 26, 32, 414 P.3d 531 (quotation simplified).

¶16 Finally, Conner contends that her right to due process was violated because the district court granted the Defendants' rule 12(c) motion without providing Conner an opportunity to modify her presentation at trial. "Constitutional issues, including questions regarding due process, are questions of law that we review for correctness." Osburn v. Bott , 2011 UT App 138, ¶ 4, 257 P.3d 1028 (quotation simplified). But where the constitutional issue is unpreserved, the appellant must establish an exception to the preservation requirement. See In re A.W. , 2018 UT App 217, ¶ 26, 437 P.3d 640. Unless an exception to the preservation rule applies, an appellate court will not review unpreserved constitutional claims. Id.

ANALYSIS

¶17 The overarching issue on appeal is whether Conner's complaint adequately stated, or should have been amended to state, a claim that is not barred by the GIA. "Generally, to determine whether a governmental entity is immune from suit under [the GIA], we apply a three-part test, which assesses (1) whether the activity undertaken is a governmental function; (2) whether governmental immunity was waived for the particular activity; and (3) whether there is an exception to that waiver." Van de Grift v. State , 2013 UT 11, ¶ 8, 299 P.3d 1043 (quotation simplified).

¶18 On appeal, the parties do not dispute that the first part of the test is met, because the Defendants' actions with respect to Conner's employment qualify as a governmental function. Concerning the second part, our supreme court has held that termination of employment "for a reason that contravenes a clear and substantial public policy gives rise to a cause of action in tort," Hansen v. America Online, Inc. , 2004 UT 62, ¶ 7, 96 P.3d 950 (citing Peterson v. Browning , 832 P.2d 1280, 1284 (Utah 1992) ), for which immunity has not been waived, see Broadbent v. Board of Educ. of Cache County School Dist. , 910 P.2d 1274, 1277 (Utah Ct. App. 1996). Therefore, if Conner's first cause of action is properly characterized as a tort claim for wrongful termination in violation of public policy, immunity has not been waived and there is no need to look for an exception to waiver under the third part of the test.

¶19 Thus, the crux of this appeal is whether Conner's first cause of action could be properly construed or amended to state a "statutory enforcement" claim instead of a wrongful termination tort claim for which governmental immunity has not been waived. Because we conclude that the statute on which Conner relies does not create a private right of action, Conner's claims could not be construed or amended in a way that would survive the defense of governmental immunity.

I. No Statutory Cause of Action

¶20 On appeal, Conner makes two alternative arguments that rely on the assumption that there is a private statutory cause of action for violation of Utah Code section 67-19-18(2) and rule R477-2-3(2) of the Utah Administrative Code. As an initial matter, Conner contends that the district court should have denied the Defendants' rule 12(c) motion for judgment on the pleadings because, when construed in the light most favorable to her as the nonmoving party, her amended complaint could be read as stating a statutory enforcement claim. Alternatively, she argues that such a statutory enforcement claim was tried by implied consent and that the district court should have granted her motion to amend the pleadings under rule 15(b) to reflect the claim actually tried to the jury. See Fisher v. Davidhizar , 2011 UT App 270, ¶ 9, 263 P.3d 440 (explaining that where an issue is tried by the parties' express or implied consent, the court "must treat the claim as if it were properly raised in the pleadings" (quotation simplified)).

¶21 In her amended complaint, Conner titled her first cause of action "Wrongful Termination Against Public Policy," which, as the district court noted, is "a well-recognized tort claim in Utah." However, the label attached to the claim is not necessarily dispositive. "Our rules of pleading require that a cause be made out, but not necessarily that it always be correctly labeled." Youngblood v. Auto-Owners Ins. Co. , 2007 UT 28, ¶ 22, 158 P.3d 1088. Where a complaint is "capable of more than one construction," only one of which is barred by governmental immunity, our supreme court has "required that ambiguities be construed in a manner that sustains the complaint." Bingham v. Roosevelt City Corp. , 2010 UT 37, ¶ 45, 235 P.3d 730 ; see also Baker v. Angus , 910 P.2d 427, 432 (Utah Ct. App. 1996) (viewing the complaint in the light most favorable to the plaintiffs to state a claim exempt from governmental immunity).

¶22 Conner notes that there are three exceptions to the general rule that an employer's decision to terminate an at-will employee, like her, is presumed valid. An employee can overcome the presumption of validity by demonstrating that

(1) there is an implied or express agreement that the employment may be terminated only for cause or upon satisfaction of some agreed-upon condition; (2) a statute or regulation restricts the right of an employer to terminate an employee under certain conditions; or (3) the termination of employment constitutes a violation of a clear and substantial public policy.

Hansen , 2004 UT 62, ¶ 7, 96 P.3d 950 (quotation simplified).

¶23 The district court ruled that Conner had pled and tried a tort claim for wrongful termination in violation of public policy. An at-will employee may bring a claim under the third exception when "the public interest is so strong and the policy so clear and weighty that we should place the policy beyond the reach of an at-will employment contract." Ray v. Wal-Mart Stores, Inc. , 2015 UT 83, ¶ 12, 359 P.3d 614 (quotation simplified). In determining "whether the legal right at issue reflects the type of clear and substantial Utah public policy that qualifies as an exception to the at-will rule," courts consider, among other things, "whether the policy at issue is reflected in authoritative sources of state public policy." Id. ¶ 14. "A policy is recognized in an authoritative source of state public policy if it is plainly defined by legislative enactments, constitutional standards, or judicial decisions." Id. ¶ 15 (quotation simplified).

¶24 In her amended complaint, Conner cited to Utah Code section 67-19-18(2) of the USPMA to show that termination of an employee based on political affiliation is against public policy in Utah. The USPMA provides, in part, that an employee may not be dismissed because of "political affiliation, or other nonmerit factor." Utah Code Ann. § 67-19-18(2) (LexisNexis 2013). A knowing violation of a provision of the USPMA is punishable as a class A misdemeanor. See id. § 67-19-29. Conner also quoted rule R477-2-3(2) of the Utah Administrative Code, which implements the USPMA and states that employment actions may not be based on "political affiliation ... or any other non-job related factor." Conner then explained how the cited statute and rule supported her claim of wrongful termination in violation of public policy:

The fact that both the state legislature and the executive branch through its rules-making process have expressly stated that Utah State Government employers ... may not discriminate against employees on the basis of an employee's political affiliations, or discriminate against an employee for any reason that is not related to job performance, demonstrates that this is a substantial public policy. Likewise, the fact that the legislature criminalized behavior that would violate the [USPMA] also supports the fact that this is a substantial public policy.

¶25 As the district court recognized, the alleged "violation of Rule 477-2-3(2) and Utah Code section 67-19-18(2) was put to the jury because it was the public policy that underpinned [Conner's] tort claim." In other words, the references to the governing statute and regulation were offered "to demonstrate a substantial public policy against terminating at-will employees for political affiliations." Our courts frequently look to statutes "as a source of clear and substantial public policy," even when the statute does not create a private statutory cause of action. Touchard v. La-Z-Boy, Inc. , 2006 UT 71, ¶¶ 21-22, 148 P.3d 945 ; see also Peterson v. Browning , 832 P.2d 1280, 1282 (Utah 1992) (holding that "the public policy exception applies in this state when the statutory language expressing the public conscience is clear and when the affected interests of society are substantial"); Berube v. Fashion Centre, Ltd. , 771 P.2d 1033, 1043 (Utah 1989) ("Public policy is most obviously, but not exclusively, embodied in legislative enactments."). Moreover, in pretrial proceedings, Conner affirmatively represented that her claim sounded in tort. On this record, the district court correctly determined that Conner's first cause of action was pled and tried as a tort claim for wrongful termination in violation of public policy.

¶26 Given that such a tort claim is barred by governmental immunity, Conner argues that her amended complaint can be alternatively construed (or amended) to state a statutory claim. But, as the Defendants point out, Conner's argument assumes her statutory claim "is a valid cause of action." The Defendants maintain that the Utah Code does not provide a private right of action for state employees alleging discrimination based on "political affiliation" in violation of section 67-19-18(2). We agree. Conner has not demonstrated that the USPMA should be construed as creating a private right of action for a violation of section 67-19-18(2).

¶27 "[T]he courts of this state are not generally in the habit of implying a private right of action based upon state law, absent some specific direction from the Legislature." Broadbent v. Board of Educ. of Cache County School Dist. , 910 P.2d 1274, 1278 (Utah Ct. App. 1996). Because it is a matter of statutory interpretation, we "look first to the plain language of the statute for an express indication that a private right of action was intended." Machan v. UNUM Life Ins. Co. of Am. , 2005 UT 37, ¶ 24, 116 P.3d 342. "A statute's mere prohibition of a certain act does not imply creation of a private right of action for its violation." See Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 313 (2012) (discussing the presumption against an implied right of action). Instead, "[t]he creation of such a right must be either express or clearly implied from the text of the statute." Id.

¶28 Unlike other provisions of the Utah Code, the USPMA does not expressly state a private right of action. Where the Utah Legislature has intended to establish a private right of action, it has done so expressly. "The Utah Code has many examples of the explicit language which creates such rights, none of which require anyone to add language or make inferences to impart the full meaning of the statute." Miller v. Weaver , 2003 UT 12, ¶ 21, 66 P.3d 592. For example, the Utah Protection of Public Employees Act provides that a public employee may assert a claim of retaliatory action by "bringing a civil action for appropriate injunctive relief, damages, or both." Utah Code Ann. § 67-21-4(1)(c)(ii) (LexisNexis 2016).

¶29 The USPMA contains no such provision. Instead, the USPMA provides that a knowing violation of a provision of the chapter is punishable as a class A misdemeanor. See id. § 67-19-29 (2013). "When a statute makes certain acts unlawful and provides criminal penalties for such acts, but does not specifically provide for a private right of action, we generally will not create such a private right of action." Youren v. Tintic School Dist. , 2004 UT App 33, ¶ 4, 86 P.3d 771.

¶30 Moreover, it would be inconsistent with the legislature's statutory scheme to imply a private right of action in this case. "Utah courts have rarely, if ever, found a Utah statute to grant an implied private right of action." Buckner v. Kennard , 2004 UT 78, ¶ 43, 99 P.3d 842. The reluctance to imply a private right of action "is particularly strong when the Legislature has already designated a method of resolution through an administrative agency specifically empowered to handle issues such as the discipline or termination" of public employees. Id. ¶ 49 (quotation simplified). "Even where there is a strong public policy, as in discrimination, the legislative body retains the right to specify the remedies and course of action available for violations of a statute it has enacted to pursue such policy." Id. ¶ 52. For example, the Utah Antidiscrimination Act (the UADA) "prohibits a number of forms of employment discrimination, but limits a victim's recourse by providing that the exclusive remedy under state law for employment discrimination is the administrative procedure set forth in the [UADA]." Id. ¶ 52 (quotation simplified); see also Utah Code Ann. § 34A-5-107(15) (LexisNexis 2013).

¶31 Here, in addition to the criminal penalty, the 2013 version of the USPMA provides administrative remedies for discriminatory employment actions. First, an employee alleging employment actions based on race, color, sex, retaliation, pregnancy or childbirth, age, religion, national origin, or disability, which are prohibited by the UADA, see Utah Code Ann. § 34A-5-107(15), "may submit a written grievance to the department head where the alleged unlawful act occurred" and, if dissatisfied with the decision, may submit a complaint to the Division of Antidiscrimination and Labor, whose decision is subject to further agency and judicial review, id. § 67-19-32(1). Second, the USPMA provides that "[a]ll grievances based upon a claim or charge of injustice or oppression, including dismissal from employment, resulting from an act, occurrence, commission, or condition shall be governed by Chapter 19a, Grievance Procedures, and Title 63G, Chapter 4, Administrative Procedures Act." Id. § 67-19-30(2). Those grievance procedures apply only to career service employees. Id. § 67-19a-301. Third, the USPMA delegates authority to the executive director of the Department of Human Resource Management to establish rules governing executive branch dismissals. Id. § 67-19-18(3). These rules, which apply to both career service and exempt employees, Utah Admin. Code R477-2-1 (LexisNexis 2013), provide that any "employee who alleges unlawful discrimination may: (a) submit a complaint to the agency head; and (b) file a charge with the Utah Labor Commission" or "directly with the [Equal Employment Opportunity Commission (EEOC) ]," id. R477-2-3(3).

¶32 Conner argues that these administrative procedures provide little protection in her particular case because (1) "political affiliation" is not protected by the UADA; (2) as an employee who was in a confidential relationship with and reported directly to a department head, she was exempt from the grievance procedures provided for career service employees; and (3) "neither the Utah Antidiscrimination Division nor the EEOC had jurisdiction to investigate discrimination based on 'political affiliation,' " so her only remedy under the rules was to submit a complaint to the agency head. We agree that the statutory scheme plainly affords more protection to employees alleging discrimination on the basis of race, color, sex, retaliation, pregnancy or childbirth, age, religion, national origin, or disability under the UADA than to employees alleging discrimination based on "political affiliation, or other non-merit factor" under section 67-19-18. It also provides more protection to career service employees who are entitled to grievance procedures not available to exempt employees in special positions. Yet even employees in those more highly protected situations have no private right of action and are limited to the administrative procedures and judicial review provided by statute. See Blauer v. Department of Workforce Services , 2014 UT App 100, ¶ 6 n.2, 331 P.3d 1 (recognizing that "the UADA provides only an administrative remedy for violations of its provisions, not a private right of action"). Affording more protection to Conner by implying a private right of action for career service exempt employees alleging discrimination based on "political affiliation" would be inconsistent with this statutory scheme.

¶33 In the absence of any express direction or clear implication in the language of the statute, we will not assume that the legislature intended to create a private right of action for violation of section 67-19-18(2). Because Conner has not shown that such a cause of action exists, the district court did not err in failing to construe or amend her complaint to state such a claim.

II. Timeliness

¶34 Conner also argues that the district court should not have entertained the rule 12(c) motion because the Defendants waived their defense of governmental immunity by failing to plead and pursue this defense. "Governmental immunity is an affirmative defense to suits against state or local government." Buckner v. Kennard , 2004 UT 78, ¶ 35, 99 P.3d 842. As an affirmative defense, governmental immunity can be waived. Hart v. Salt Lake County Comm'n , 945 P.2d 125, 133 (Utah Ct. App. 1997).

¶35 In Hart , this court affirmed the district court's conclusion that the Salt Lake County Commission waived its governmental immunity defense. Id. Although the County raised the affirmative defense in its answer, during oral argument on its motion for summary judgment, the County "in open court ... waived and abandoned the governmental immunity defense." Id. at 131 n.4 (quotation simplified). The County made no attempt to raise the defense "through the conclusion of trial and the jury verdict." Id. (quotation simplified). Six months after the trial ended, the County moved for judgment notwithstanding the verdict based on governmental immunity. Id. at 133. In concluding that the County's actions waived the governmental immunity defense, this court emphasized that defendants have the burden of proving governmental immunity at trial and that the County "wholly failed to both argue governmental immunity at trial and to produce any evidence supporting that argument." Id. "As a result of the County's inaction and failure to meet its burden at trial," this court did not disturb "the [district] court's findings or conclusion that the County waived its affirmative defense of governmental immunity." Id.

¶36 Unlike the County in Hart , the Defendants' actions during the course of this litigation did not waive governmental immunity. Instead, while they were not as diligent as they could have been, the Defendants adequately pled and pursued the affirmative defense.

¶37 First, the Defendants adequately pled the affirmative defense of governmental immunity in their answer to the amended complaint. The Utah Rules of Civil Procedure require that pleadings "be construed to do substantial justice." Utah R. Civ. P. 8(f). In accordance with this rule, courts construe pleadings in favor of the pleader and "require the parties to proceed to the merits, if such a course is permissible, after giving the allegations and averments contained in the pleadings, and the necessary inferences arising therefrom, a liberal construction and application." Harman v. Yeager , 100 Utah 30, 110 P.2d 352, 354 (1941) (quotation simplified).

¶38 As their thirteenth defense, the Defendants asserted that Conner's claims were "barred by the doctrines of absolute and qualified immunity." Conner argues that this language did not adequately plead a defense of governmental immunity under the GIA. Although the terms absolute and qualified immunity are more commonly used to refer to a type of immunity arising under federal law, the Utah Supreme Court has also applied those terms when discussing immunity conferred by the GIA. In this context, "qualified immunity" simply means "immunity subject to exceptions," Hansen v. Salt Lake County , 794 P.2d 838, 842 (Utah 1990), and refers to the GIA's grant of "general qualified immunity for governmental functions" subject to the exceptions "as ... otherwise provided in this chapter," Provo City Corp. v. State ex rel. Dep't of Transp. , 795 P.2d 1120, 1124 (Utah 1990). In contrast, "absolute immunity" would refer to "unqualified immunity" not subject to the waivers provided in the GIA. Id.

¶39 In ruling that the Defendants had adequately pled a governmental immunity defense, the district court noted this line of cases. While the court recognized that the Defendants could "have phrased [their thirteenth defense] more artfully in their answer," it ultimately concluded that "by asserting the defenses of qualified immunity and absolute immunity," the Defendants "affirmatively raised the defense of immunity under the GIA." Given our liberal pleading standards and in light of the case law using the terms absolute and qualified immunity in the context of the GIA, the district court correctly ruled that the answer adequately asserted the affirmative defense of governmental immunity.

¶40 Conner also argues that the Defendants waived the governmental immunity defense when they agreed to withdraw their fourteenth defense. The fourteenth defense alleged that Conner had "failed to comply with the applicable requirements of the [GIA] and, therefore, her claims in this civil action [were] barred." The GIA provides that a plaintiff's claim against a governmental entity or employee is barred unless the plaintiff complies with the requirement of filing a timely written notice of claim. See Utah Code Ann. § 63G-7-402 (LexisNexis 2016). Withdrawing this defense related to whether Conner had complied with the applicable procedural requirements of the GIA did not waive the argument that the Defendants were immune from suit. Indeed, in the same correspondence withdrawing the fourteenth defense, the Defendants' attorney stated, "My client will not agree to withdraw its Thirteenth Defense in this matter." Thus, the Defendants' conduct in this case is readily distinguishable from the type of express abandonment that occurred in Hart .

¶41 Second, the Defendants in this case did not wait until after trial to raise the governmental immunity defense. As we pointed out in Hart , the defendant has the burden of proving an affirmative defense at trial. By failing to raise governmental immunity until six months after trial, the County in Hart failed to meet that burden. 945 P.2d at 133. But Conner has not directed us to any authority that would require a defendant to establish an affirmative defense prior to trial, although doing so by means of a dispositive motion would surely be more efficient and, in this case, may have obviated the need for discovery and trial. The affirmative defense of governmental immunity, in particular, "conceptually arises subsequent to the question of whether there is tort liability in the first instance." Ferree v. State , 784 P.2d 149, 153 (Utah 1989), overruled on other grounds by Scott v. Universal Sales, Inc. , 2015 UT 64, 356 P.3d 1172. As noted, judicial economy may have been better served had the Defendants brought the motion in time to avoid or substantially limit the scope of trial, but their failure to more diligently pursue the affirmative defense prior to trial does not necessarily amount to waiver.

¶42 Relatedly, Conner contends that the district court violated the timing requirement in rule 12(c) of the Utah Rules of Civil Procedure when it allowed the Defendants to file such a motion the day before trial. Rule 12(c) requires that the motion be brought "after the pleadings are closed but within such time as not to delay the trial." Utah R. Civ. P. 12(c). In this case, the motion was filed one business day before the scheduled trial. As the district court here recognized, it would have been well within its discretion to deny the motion as untimely. See Tschaggeny v. Milbank Ins. Co. , 2007 UT 37, ¶ 17, 163 P.3d 615 (recognizing that "a trial court does not abuse its discretion when it denies as untimely last minute motions on the eve of trial"). But the question on appeal is whether rule 12(c) prohibits the district court from entertaining the motion under these circumstances.

¶43 The district court did not violate the rules of civil procedure or exceed its discretion by reserving its ruling on the motion for judgment on the pleadings until after trial. See Maxfield v. Herbert , 2012 UT 44, ¶ 11, 284 P.3d 647 (recognizing that "[w]ithin the bounds set by rule and statute, ... a district court's management of its docket and trial schedule is reviewed for an abuse of discretion" (quotation simplified)). Given the district court's handling of the rule 12(c) motion, the late filing did not in fact delay trial. Although the motion could not have been fully briefed and resolved "within such time as not to delay trial," the rules do not require district courts to hear and resolve a rule 12(c) motion prior to trial. To the contrary, the rules expressly allow a court to defer its ruling on a rule 12(c) motion. Rule 12(d) provides that a rule 12(c) motion "shall be heard and determined before trial on application of any party, unless the court orders that the hearings and determination thereof be deferred until the trial." Utah R. Civ. P. 12(d). Significantly, rule 12(d) expressly contemplates a deferred ruling even though, by definition, a motion for judgment on the pleadings would not rely on the evidence developed or the facts found at trial. When Conner moved to strike the rule 12(c) motion as untimely, the district court "made it clear that [it] was deferring on ruling on the motion and that [it] ... would rule on the motion after trial."

¶44 Although rule 12(d) speaks of deferring a ruling "until the trial," the district court's decision to rule on the matter after trial is consistent with the concept that governmental immunity does not conceptually arise until after liability is determined. See Ferree , 784 P.2d at 153. "Generally, it is appropriate to address liability issues ... prior to addressing the affirmative defense of the defendant's immunity from suit." Lyon v. Burton , 2000 UT 19, ¶ 12, 5 P.3d 616. As the district court explained, "[t]he question of governmental immunity was not put to the jury," because it was a purely legal issue that the district court "reserved for judgment by the Court on the pleadings." Once the jury found the Defendants liable, the court's ruling had "the effect of immunizing [the] Defendants from the verdict."

¶45 Judicial economy may be better served by performing the immunity analysis first, especially where, as here, that analysis ends the inquiry. See Ledfors v. Emery County School Dist. , 849 P.2d 1162, 1164 (Utah 1993) (citing cases in which the court has "performed the immunity analysis first, typically when it ended the inquiry"). But, while a pretrial ruling in this case may well have been preferable, we cannot say that the district court was required to resolve the question of governmental immunity before the jury determined liability. Therefore, the district court's handling of the rule 12(c) motion did not violate the rules of civil procedure or otherwise constitute an abuse of discretion.

III. Due Process

¶46 Finally, Conner contends that the timing of the rule 12(c) motion and the court's ruling deprived her of due process. "Procedural due process requires, at a minimum, timely and adequate notice and an opportunity to be heard in a meaningful way." McBride v. Utah State Bar , 2010 UT 60, ¶ 16, 242 P.3d 769 (quotation simplified). This encompasses the right to be heard both "at a meaningful time and in a meaningful manner."

Mathews v. Eldridge , 424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) (quotation simplified).

¶47 Conner claims that the Defendants, intentionally or unintentionally, "sandbagged" her by waiting to raise the governmental immunity defense until it was too late for her to pursue an alternative claim for statutory enforcement at trial. She asserts that she "had a right to know what issues the [district] court would be considering in reference to the Rule 12 motion before she presented her case at trial" and that "she did not have a meaningful opportunity to oppose [the Defendants'] motion at a meaningful time."

¶48 "As a general rule, claims not raised before the trial court may not be raised on appeal." State v. Holgate , 2000 UT 74, ¶ 11, 10 P.3d 346. It is well-established that the preservation requirement "applies to every claim, including constitutional questions." Id. ; see also State v. Dalton , 2014 UT App 68, ¶ 55, 331 P.3d 1110 ("The preservation requirement applies to constitutional issues."). Although Conner claims that she preserved this issue, the parts of the record cited by Conner do not support that assertion. "For an issue to be preserved, a party must raise it before the district court specifically, in a timely manner, and with support by evidence and relevant legal authority, such that the issue has been presented to the trial court in such a way that the trial court has an opportunity to rule on it." True v. Utah Dep't of Transp. , 2018 UT App 86, ¶ 24, 427 P.3d 338 (quotation simplified). The portions of the record Conner cites reflect her objections to the timeliness of the rule 12(c) motion, but do not allege a violation of her constitutional right to due process. Her constitutional claim is therefore unpreserved. Where the constitutional issue is unpreserved, the appellant must establish an exception to the preservation requirement. See In re A.W. , 2018 UT App 217, ¶ 26, 437 P.3d 640 ("[I]t is well established that Utah appellate courts will not review unpreserved constitutional claims unless an exception to the preservation rule applies."). Because Conner does not allege an exception to preservation on appeal, we do not consider the merits of her due process claim.

CONCLUSION

¶49 The belated rule 12(c) motion resulted in a regrettable waste of party and judicial resources that might have been avoided had the Defendants sought judgment based on governmental immunity promptly after pleadings were closed or, at the very least, in sufficient time to possibly avoid a five-day jury trial. However, we cannot say that the court exceeded its discretion in electing to entertain the motion.

¶50 On the merits, the district court correctly construed Conner's first cause of action as a tort claim for wrongful termination in violation of public policy and denied her motion to amend the pleadings post-trial to state a statutory enforcement claim to overcome the defense of governmental immunity. Conner has failed to establish that the statute on which she relies creates a private right of action. Because the government has not waived immunity for Conner's only viable claim-wrongful termination in violation of public policy-the district court correctly granted the Defendants' motion for judgment on the pleadings, denied Conner's motion to amend, and dismissed the claim notwithstanding the jury's verdict.

¶51 Affirmed.

      At-will employees are statutorily classified under Schedule A of the USPMA while career service employees are statutorily classified under Schedule B. "Career service systems were designed to protect public employees from unfair personnel practices occurring with political changes." Report to the Utah Legislature, A Limited Review of the State's Career Service System (July 2010), https://le.utah.gov/audit/10_08rpt.pdf [https://perma.cc/K8VL-LD6W]. Among other protections, "[c]areer service employees have the right to grieve certain personnel actions, a right not granted to noncareer-service employees." Id.

      Throughout this opinion, we refer to the provisions of the Utah Code in effect at the time of Conner's termination, unless otherwise noted.

      Conner also claimed that the Defendants failed to pay her severance benefits mandated by Utah law (second cause of action) and, in the alternative, that the failure to pay severance benefits breached the implied covenant of good faith and fair dealing (third cause of action). Conner prevailed at trial on her claim for severance benefits, and the Defendants have not challenged that verdict and judgment on appeal.

      Although Conner's briefs do not explain how her husband's employment in another part of state government constitutes "political affiliation," the jury found that she was terminated for her "political affiliation," and that finding is not at issue on appeal.

      Conner presumes that governmental immunity would be waived for a claim of "statutory enforcement." Because we conclude that there is no private right of action under Utah Code section 67-19-18(2), we have no need to address that premise.

      The current version of the UADA also prohibits employment actions based on sexual orientation or gender identity. See Utah Code Ann. § 34A-5-107 (LexisNexis Supp. 2018).

      Conner argues that the absence of a private right of action under Utah Code section 67-19-18(2) would violate the "open courts" provision of article I, section 11 of the Utah Constitution. The open courts provision does not create a remedy or cause of action where none otherwise exists, but instead limits the legislature's power to abolish an existing remedy. See Puttuck v. Gendron , 2008 UT App 362, ¶ 19, 199 P.3d 971.

      Under qualified immunity, "government officials are not subject to damages liability for the performance of their discretionary functions when their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Buckley v. Fitzsimmons , 509 U.S. 259, 268, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993) (quotation simplified). Absolute immunity applies only when a public official is performing "special functions" that "deserve absolute protection from damages liability." Id. at 268-69, 113 S.Ct. 2606.

      It is uncertain whether resolution of the immunity issue earlier in this case would have avoided trial. Conner ultimately prevailed on her claims for severance benefits. The parties may or may not have settled those claims had the wrongful termination claim been dismissed before trial.

      Although we do not reach the merits of this claim for lack of preservation, we note that Conner's procedural due process claim would necessarily fail given our conclusion that she has not established that a private right of action exists for a violation of Utah Code section 67-19-18(2). See supra ¶¶ 26-33. Even if the rule 12(c) motion had been brought in a timely fashion and resolved prior to trial, Conner could not have successfully pursued a non-existent statutory enforcement claim.


source: Caselaw Access Project

author: APPLEBY, Judge:

license: Public Domain

text:
    Marjean Searcy NIELSEN and University of Utah, Petitioners, v. RETIREMENT BOARD, Respondent.
    No. 20180010-CA
    Court of Appeals of Utah.
    Filed May 23, 2019
    Heather S. White, Robert T. Denny, and Rachel E. Phillips, Salt Lake City, Attorneys for Petitioner Marjean Searcy Nielsen
    Sean D. Reyes and Brent A. Burnett, Salt Lake City, Attorneys for Petitioner University of Utah
    David B. Hansen and Erin G. Christensen, Attorneys for Respondent
    Judge Kate Appleby authored this Opinion, in which Judges Ryan M. Harris and Diana Hagen concurred.
    Opinion
   APPLEBY, Judge:

¶1 Marjean Searcy Nielsen and the University of Utah (University) seek judicial review of the Utah State Retirement Board's (Board) final order, arguing that the Board erred in determining that Nielsen was not entitled to continue participating in Utah Retirement Systems' Public Employee Noncontributory Retirement System (URS Plan). We conclude the Board's determination was based on an erroneous interpretation and application of the law, and Nielsen has been substantially prejudiced by its error. We therefore set aside the Board's order and instruct it to hold further proceedings consistent with this opinion.

BACKGROUND

¶2 In 2013, Nielsen had accrued 20.65 years of service credit in the URS Plan working with various participating employers. That year, she began working for the University in a position statutorily classified to participate in a non-URS retirement system (Alternate Plan). Because she had service credit in the URS Plan before the date of her University employment, she was entitled to a "one-time irrevocable election to continue participation" in the URS Plan. Utah Code Ann. § 49-13-204(2)(c) (LexisNexis Supp. 2018).

¶3 Nielsen claims she accepted her position at the University in part because she knew she could continue participating in the URS Plan. Before beginning her new employment, Nielsen claims she telephoned the Utah State Retirement Office (URS) and asked if she needed to take any steps to maintain active participation in the URS Plan. According to Nielsen, a URS representative told her she was "good to go" and did not need to take any affirmative steps. Nielsen does not remember the name of the URS representative, and URS has no record of any such conversation. In any event, upon commencing her employment with the University, Nielsen did not affirmatively choose to participate in the Alternate Plan and-perhaps in reliance on her phone call with URS-she did not take any steps to continue participating in the URS Plan. Accordingly, the University enrolled her by default in the Alternate Plan.

¶4 Nielsen participated in the Alternate Plan for about two years, but claims not to have noticed she was not enrolled in the URS Plan until January 2015. Because Nielsen would lose a significant amount of retirement benefits by not participating in the URS Plan, she and the University discussed how she might re-enroll. An email dated January 28, 2015, from a University staff member said, "I have told [Nielsen] that she needs to resign from her position at the [University] then we will re-hire her in the same position after 32 days. At that time, she can enroll in the [URS Plan]."

¶5 In February 2015, Nielsen resigned from her University position. Thirty-six days later, the University rehired Nielsen to the same position from which she resigned. When she was rehired, Nielsen "signed an Irrevocable Retirement Plan Election to request participation [in the URS Plan]." The University certified to URS that, beginning the day Nielsen was rehired, she was eligible to participate in the URS Plan. About seven months after Nielsen was rehired, URS notified her she was not entitled to participate in the URS Plan. It explained that, because she made an "irrevocable election ... to participate in [the Alternate Plan]" in 2013, she was not eligible to participate in the URS Plan while employed at the University.

¶6 Nielsen appealed URS's decision to the Board's executive director. The executive director upheld URS's decision, explaining that when Nielsen "began employment with the University of Utah, ... [she] had a one time opportunity under statute to elect to continue with [the URS Plan] but did not do so." His letter to Nielsen added, "Unfortunately, I do not have the discretion to contradict the statute and allow you another election to rejoin [the URS Plan]."

¶7 Nielsen filed a "Request for Board Action," and the University was joined as a third-party respondent. Nielsen, the University, and URS each filed a motion for summary judgment. Nielsen and the University argued that, under the plain language of Utah Code section 49-13-204(2)(c), she was entitled to continue participation in the URS Plan. Nielsen presented evidence showing she would "lose over $ 550,000 in retirement benefits if she [was] not permitted to continue with [the URS Plan]."

¶8 After considering the undisputed evidence and the parties' arguments, the Board granted summary judgment in favor of URS. The order began by noting that, under Utah Code section 49-13-204(2)(c), Nielsen "had a statutory one-time irrevocable election to continue her participation [in the URS Plan] when she began employment with the University in 2013." The Board then interpreted the statute and applied it to Nielsen's case. First, it noted that, "[u]nder the plain language of the statute, the election must be made when beginning employment." The Board explained that " '[i]rrevocable,' on its own, would necessarily require that the election be made only once-once you've made it, it cannot be undone or changed." It then interpreted the word "one-time" to mean "there is one limited period, once an employee begins employment, to make the election." Based on this statutory interpretation, the Board concluded that, because Nielsen "failed to exercise her election when she began employment [in 2013], and instead was enrolled in the [Alternate Plan], she was unable to make the election at a later date."

¶9 Nielsen and the University seek judicial review.

ISSUE AND STANDARD OF REVIEW

¶10 The issue before this court is whether the Board erred in determining that Nielsen was not entitled to make an election to continue participating in the URS Plan. This issue requires us to review the Board's interpretation and application of Utah Code section 49-13-204(2)(c). "We review the Board's application or interpretation of a statute as a question of law under the correction-of-error standard." Whitaker v. Utah State Ret. Board , 2008 UT App 282, ¶ 10, 191 P.3d 814 (quotation simplified). We will grant relief only if we determine that Nielsen has been substantially prejudiced by the Board's erroneous interpretation or application of the law. See Utah Code Ann. § 63G-4-403(4)(d) (LexisNexis 2016).

ANALYSIS

I. Statutory Interpretation

¶11 Nielsen argues that she is "entitled to continue her participation in [the URS Plan] based on the plain language of Utah Code section 49-13-204(2)(c)." We agree.

¶12 In interpreting a statute, our "primary goal is to give effect to the legislature's intent in light of the purpose that the statute was meant to achieve. The best evidence of the legislature's intent is the plain language of the statute itself." State v. Ogden , 2018 UT 8, ¶ 31, 416 P.3d 1132 (quotation simplified). Accordingly, "under our rules of statutory construction, we look first to the statute's plain language to determine its meaning." Whitaker v. Utah State Ret. Board , 2008 UT App 282, ¶ 15, 191 P.3d 814 (quotation simplified). "If the plain meaning of the statute can be discerned from its language, then we need not employ any other interpretive tools." State v. Hunt , 2018 UT App 222, ¶ 17, 438 P.3d 1 (quotation simplified).

¶13 The statute at issue here provides, "[A] regular full-time employee who begins employment with an institution of higher education on or after May 11, 2010, has a one-time irrevocable election to continue participation in [the URS Plan], if the employee has service credit in [the URS Plan] before the date of employment." Utah Code Ann. § 49-13-204(2)(c) (LexisNexis Supp. 2018). It is undisputed that, at least at some point, Nielsen was entitled to make a one-time irrevocable election to continue in the URS Plan. That is, Nielsen is a regular full-time employee at an institution of higher education who began employment after May 11, 2010, and she had service credit in the URS Plan before the date of her employment. It is also undisputed that Nielsen made her first and only affirmative election to continue participating in the URS Plan in 2015.

¶14 The Board concluded, however, that section 49-13-204(2)(c) required Nielsen to make her election within some "limited period" after she first began employment at the University in 2013. As we explain below, the Board's interpretation of section 49-13-204(2)(c) is contrary to the plain meaning of the statute's unambiguous language. Because the statute does not limit the time frame within which employees must make their one-time irrevocable elections, and because Nielsen made her first and only election in 2015, we conclude she is entitled to continue participating in the URS Plan.

¶15 First, the Board erred when it determined that the clause "who begins employment ... on or after May 11, 2010," means "the election must be made when beginning employment." (Emphasis added.) The Board now clarifies its interpretation, arguing that "a regular full-time employee who begins employment " means "the election is available only ... for a short period of time following and anchored to the hire date."

¶16 We reject this interpretation because it is contrary to proper grammar and usage. See State ex rel. Div. of Forestry, Fire & State Lands v. Tooele County , 2002 UT 8, ¶ 13, 44 P.3d 680 (applying "elementary rules of punctuation and grammar ... as an aid to ascertain the legislature's purpose" (quotation simplified)); see also Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 140 (1st ed. 2012) ("Words are to be given the meaning that proper grammar and usage would assign them."). In section 49-13-204(2)(c), "who begins employment with an institution of higher education on or before May 11, 2010," is a relative clause that modifies the term "regular full-time employee." Thus, not all regular full-time employees have the right to a one-time irrevocable election; only such employees who begin employment on or after May 11, 2010, have that right. Contrary to the Board's interpretation, the clause "who begins employment ... on or after May 11, 2010," does not establish a period in which the relevant employees must make their elections.

¶17 Second, the Board erred in determining that the term "one-time irrevocable election" means "there is one limited period ... to make the election." "Absent a contrary indication, we assume that the legislature used each term advisedly according to its ordinary and usually accepted meaning." Muddy Boys, Inc. v. Department of Commerce , 2019 UT App 33, ¶ 12 (quotation simplified). Because the term "one-time irrevocable election" is not defined in the relevant statute, "we must endeavor to determine its plain and ordinary meaning." Id. ¶ 16. In determining "the ordinary meaning of nontechnical terms of a statute, our starting point is the dictionary. If not plain when read in isolation, a word may become so in light of its linguistic, structural, and statutory context." Nichols v. Jacobsen Constr. Co. , 2016 UT 19, ¶ 17, 374 P.3d 3 (quotation simplified). But "unambiguous language may not be interpreted to contradict its plain meaning." Lorenzo v. Workforce Appeals Board , 2002 UT App 371, ¶ 11, 58 P.3d 873 (quotation simplified).

¶18 The dictionary defines "irrevocable" as "not possible to revoke: unalterable." Merriam-Webster's Collegiate Dictionary 640 (9th ed. 1986). "Unalterable" means "not capable of being altered or changed." Id. at 1282. The word "one-time" means "occurring only once: one shot." Id. at 824. And "one-shot" means "complete or effective through being done or used or applied only once" or "not followed by something else of the same kind." Id.

¶19 Applying these definitions here, a one-time irrevocable election is an election that (1) may be made only once (one-time), and (2) may not be changed, altered, or revoked (irrevocable). But defining an election as "one-time irrevocable" does not, by itself, establish a restriction on when the election must be made. The Board argues that this interpretation renders meaningless the word "one-time." It asserts that "[o]nce the irrevocable election is made, there would not be another opportunity to make it by virtue of its irrevocability because it would remain in force, unable to be revoked or altered." According to the Board, because " 'one-time' must add something to the meaning," it "signifies that ... there is one limited period, once an employee begins employment, to make the election." We are not convinced.

¶20 To be sure, this court seeks to interpret statutes "to give meaning to all parts, and avoid rendering portions of the statute superfluous." State v. Outzen , 2017 UT 30, ¶ 9, 408 P.3d 334 (quotation simplified). But adopting the Board's interpretation would require us to ignore the plain meaning of unambiguous language and "effectively write into the statute words that are not there." Whitaker v. Utah State Ret. Board , 2008 UT App 282, ¶ 18, 191 P.3d 814 ; see also State v. Rincon , 2012 UT App 372, ¶ 14, 293 P.3d 1142 ("[O]ur jurisprudence prohibits us from reading substantive terms into a statute that are not already there."). In contrast, Nielsen argues that the term "one-time irrevocable election" means one-time irrevocable election, no more and no less. We see no reason to conclude that the term is intended to mean something different. See Scott v. Scott , 2017 UT 66, ¶ 26, 423 P.3d 1275 (explaining that courts "should discern what the legislature intended from the plain language of the text unencumbered by notions of what we think the legislature must have wanted the language to accomplish").

¶21 If, as the Board argues, the legislature intended the election to be available only "at or for a short period of time following and anchored to the hire date," "surely the legislature would have said so in the text of [the statute]." Olsen v. Eagle Mountain City , 2011 UT 10, ¶ 22, 248 P.3d 465. In fact, provisions immediately preceding and following section 49-13-204(2)(c) set time limitations on when other groups of employees must make similar elections. See Utah Code Ann. §§ 49-13-204(1)(a), (5)(a)-(b) (LexisNexis Supp. 2018). Under our rules of statutory interpretation, we must "give effect" to the legislature's omission of a time limitation "by presuming [it] to be purposeful." Marion Energy, Inc. v. KFJ Ranch P'ship , 2011 UT 50, ¶ 14, 267 P.3d 863.

¶22 In sum, Utah Code section 49-13-204(2)(c) provides Nielsen the right to make a one-time irrevocable election to continue her participation in the URS Plan, and the statute does not include a limitation on when the election must be made. Because Nielsen made her first and only election in 2015, we conclude she is entitled to continue her participation in the URS Plan.

II. Substantial Prejudice

¶23 As explained above, the Board erred in determining that Nielsen was not entitled to elect to continue participating in the URS Plan. We will grant relief, however, only if Nielsen has been substantially prejudiced by the Board's erroneous interpretation and application of the law. Utah Code Ann. § 63G-4-403(4)(d) (LexisNexis 2016). The record indicates that Nielsen will lose more than $ 550,000 over the course of her retirement if she is not permitted to continue participating in the URS Plan. Such a loss certainly constitutes substantial prejudice. See WWC Holding Co. v. Public Service Comm'n , 2002 UT 23, ¶ 7, 44 P.3d 714 ("A party has been substantially prejudiced if the alleged error was not harmless." (quotation simplified)).

CONCLUSION

¶24 The Board erred in determining that Nielsen was not entitled, under Utah Code section 49-13-204(2)(c), to elect to continue participating in the URS Plan. The Board's error substantially prejudiced Nielsen. We therefore set aside the Board's final order and instruct it to hold further proceedings consistent with this opinion.

      Nielsen remains a member of the URS Plan with vested benefits based on her 20.65 years of service credit. See Utah Code Ann. § 49-13-401(1) (LexisNexis Supp. 2018). The issue is whether she may elect to "continue" participating while employed at the University-that is, accrue additional service credit.

      Nielsen's arguments are consistent with the University's position. The University argues that the Board "erred in its interpretation of [Utah Code section 49-13-204(2)(c) ]," and requests that we set aside "the Board's final agency action."

      The Board argues that, because "Nielsen did not make the necessary election to participate in the [URS Plan]," her default enrollment in the Alternate Plan "had the effect of irrevocably limiting her retirement participation to the Alternate Plan." That is, it asserts Nielsen's failure to take affirmative action regarding her participation in a particular retirement plan "result[ed] in irrevocable application of [a] default election." We reject this argument because it is contrary to the statute's plain language. The right to an "election" includes the right to make an affirmative choice. See Merriam-Webster's Collegiate Dictionary 400 (9th ed. 1986) (defining "election" as "the right, power, or privilege of making a choice"). In proceedings before the Board, the parties stipulated that Nielsen "did not make an election to continue her retirement participation with URS upon beginning employment with the University in February 2013." And we are not convinced that a "non-election" (the default enrollment), without some affirmative choice of the employee, can qualify as an "election" as the term is used in Utah Code section 49-13-204(2)(c).

      Many of the Board's arguments rely on "federal law and guidance." That is, the Board argues that its interpretation of Utah Code section 49-13-204(2)(c) "keeps URS and its employers and members within the established bounds to maintain its tax qualified status" under federal law. We acknowledge that the Board has a duty to "ensure that the [retirement] systems, plans, programs, and funds are administered according to law" and "on an actuarially sound basis," Utah Code Ann. § 49-11-203(1)(c), (g) (LexisNexis 2015), and that the Board "may take actions necessary to protect the tax-qualified status of the systems, plans, and programs under its control," id. § 49-11-801(5). But this statutory authority does not permit the Board to ignore a statute's plain language. See Allred v. Utah State Ret. Board , 914 P.2d 1172, 1175 (Utah Ct. App. 1996) ("If the Board believes that the current language of the Act produces an actuarially unsound retirement system, the Board should seek relief from the Legislature through an amendment to the Act."). Further, the "federal law and guidance" cited by the Board does not support the Board's claim that the legislature used the term "one-time irrevocable election" as "a defined term of art with respect to retirement plan participation elections." We tend to agree with Nielsen that the phrase is not well-defined, and we are not convinced that it has "a settled meaning in the law." See Truck Ins. Exch. v. Rutherford , 2017 UT 25, ¶ 7, 395 P.3d 143 (explaining that "when a statute adopts a legal term of art with a settled meaning in the law, we interpret the statute to embrace the meaning of the term as it is understood in that context" (quotation simplified)).


author: HARRIS, Judge:

text:
    STATE of Utah, Appellee, v. Brett Clark COCHRAN, Appellant.
    No. 20170418-CA
    Court of Appeals of Utah.
    Filed May 23, 2019
    Linda M. Jones, John J. Hurst, and Freyja R. Johnson, Salt Lake City, Attorneys for Appellant
    Sean D. Reyes and Jeffrey D. Mann, Salt Lake City, Attorneys for Appellee
    Judge Ryan M. Harris authored this Opinion, in which Judges David N. Mortensen and Jill M. Pohlman concurred.
    Amended Opinion

      This Amended Opinion replaces the Opinion in Case No. 20170418-CA that was issued on May 9, 2019. After our opinion issued, Cochran filed a petition for rehearing, and we called for a response. We grant the petition for the limited purpose of making certain deletions from our original opinion, which deletions do not alter our analysis or the outcome of the appeal.

   HARRIS, Judge:

¶1 Brett Clark Cochran pled guilty to driving under the influence of alcohol (DUI), which in his case amounted to a third-degree felony because he had two other similar recent convictions. He was sentenced to a short jail term and three years on probation. After completing his sentence, including compliance with the terms and conditions of probation, he asked the district court to reduce his conviction from a felony to a misdemeanor, pursuant to Utah Code section 76-3-402(2). The district court declined to do so, and Cochran now appeals that decision. We affirm.

BACKGROUND

¶2 On July 8, 2012, a police officer stopped Cochran for traffic violations, and soon learned that Cochran's blood alcohol level was 0.181, over twice the then-effective legal limit. Cochran had been convicted of DUI on two other occasions within the previous three years, and Utah law treats the third DUI charge within any ten-year period as a third-degree felony, see Utah Code Ann. § 41-6a-503(2)(b) (LexisNexis 2018). The State charged Cochran with felony DUI, a charge to which he eventually pled guilty, and Cochran was sentenced to a suspended prison term, 62.5 days in jail, and a three-year term of probation.

¶3 During the term of Cochran's probation, which he was allowed to complete from his home state of Montana, Cochran had two issues with compliance. The first issue occurred right at the beginning, when Cochran refused to sign the probation agreement. Following his refusal, the State filed a motion seeking an order commanding Cochran to appear and show cause why he should not be sanctioned for his noncompliance, but the district court declined to sign the State's proposed order because Cochran had been incarcerated at the time of the event. The second issue occurred later in the probationary term, when Adult Probation and Parole (AP&P) alleged that Cochran had failed to undergo a substance abuse evaluation and complete treatment as directed. In connection with these allegations, AP&P reported that Cochran had a poor attitude, was "very difficult to work with," and did not take his "probation seriously." Ultimately, however, AP&P recommended that Cochran be granted an "alternative event" for these violations and that he "be allowed to remain on probation." Cochran eventually completed probation, including all recommended treatment, without any further mishaps, and the court-without objection from AP&P or the State-terminated Cochran's probation successfully in May 2016, and closed his case.

¶4 In December 2016, seven months after completing probation, Cochran filed a motion (402 Motion) asking the district court to reduce his conviction from a third-degree felony to a class A misdemeanor, pursuant to Utah Code section 76-3-402(2). In support of the requested reduction, Cochran claimed that his status as a convicted felon was "impeding his ability to engage in" his profession as an electrician because it was limiting "the number and type of jobs" for which he was eligible to apply. He also asserted that nothing in the nature of the offense should preclude a reduction in his case, and maintained that there was no evidence of "aggravating factors" such as an "aggravated blood alcohol level" or "any collision, injury, or restitution." Furthermore, other than the two previous DUI offenses, there was "no indication of anything else on [Cochran's] criminal history." And finally, Cochran noted that he had completed probation successfully. In sum, Cochran argued that the court should grant his 402 Motion because a reduction would allow him to "resume the trajectory of his life," and because "[i]t is in the interest[ ] of justice to reward a Defendant for his successful completion of probation." The State, however, filed an objection to Cochran's 402 Motion, asking the district court to deny the motion based on "the nature of the offense, [Cochran's] criminal history, and issues with [Cochran's] compliance with the conditions of his probation."

¶5 At the hearing on Cochran's 402 Motion, the court stated that it had reviewed the motion and accompanying paperwork, and asked if there was "anything else" that it "should know on behalf of the defendant." The parties stipulated that the only crime Cochran had ever committed in Utah was the felony DUI that is the subject of this case. Cochran's counsel argued that a reduction was warranted in the interest of justice for the reasons articulated in the 402 Motion, specifically mentioning Cochran's successful completion of probation and related treatment, as well as the employment limitations Cochran was experiencing based upon his status as a convicted felon. In response, the State noted that Cochran's argument about his employment limitations "sound[ed] reasonable," that Cochran's Utah DUI conviction would still be a lifetime enhanceable offense even if it were reduced to a misdemeanor, and told the court that it would "simply submit it."

¶6 After listening to both sides, the court agreed that there were "lots of reasons" to grant Cochran's motion. However, the court ultimately denied Cochran's 402 Motion without prejudice to it being refiled later. The court stated its reasoning as follows:

[W]hat I'd generally do, counsel, with felony DUIs is I have parties wait the 10-year period with successful completion and so I'm certainly willing to hear this again but I want to see that [Cochran] goes that period of time without picking up new charges. It sounds like he's done some good things and that he's gainfully employed. So I can see lots of reasons to grant that. But I find in the interest of justice and under these circumstances that we're better served as a community to do that and so what I would do is deny the motion without prejudice with the understanding that at a point in time where we have a 10-year period without any new DUIs that have come up, then I [will be] inclined to hear that and, and proceed on that basis.

The court also explained that, because it had denied the 402 Motion without prejudice, it anticipated that at "a point in time" when Cochran had completed "a 10-year period without any new DUIs" Cochran could bring a 402 Motion again. Following additional comments by Cochran's counsel, the court reiterated its reasons for denying the motion, and noted that, although Cochran should be commended for his hard work, "at this juncture" "the danger to the community and the interest of justice outweigh[ed]" reducing the conviction.

ISSUE AND STANDARD OF REVIEW

¶7 Cochran appeals the district court's denial of his 402 Motion. Because sentencing "necessarily reflects the personal judgment of the court," we "afford the [district] court wide latitude and discretion in sentencing." State v. Boyd , 2001 UT 30, ¶ 31, 25 P.3d 985 (quotations simplified). Accordingly, "[w]e review a [district] court's denial of a motion to reduce the degree of a conviction for abuse of discretion." State v. Salt , 2015 UT App 72, ¶ 9, 347 P.3d 414. Under this standard, we will affirm the court's decision absent a showing that it "fail[ed] to consider all legally relevant factors," or if "no reasonable person would take the view [it] adopted." State v. Gomez , 2015 UT App 149, ¶ 14, 353 P.3d 175 (quotations simplified).

ANALYSIS

¶8 The applicable statutory language provides that, in cases in which a defendant is placed on probation, a district court "may[ ] enter a judgment of conviction for the next lower degree of offense" if five conditions are met. See Utah Code Ann. § 76-3-402(2) (LexisNexis 2017). Neither side in this case contests the existence of the first four conditions; instead, the dispute centers around the fifth one-whether "entering a judgment of conviction for the next lower degree of offense is in the interest of justice." See id. § 76-3-402(2)(v).

¶9 Cochran contends that the district court abused its discretion in determining that it was not in the interest of justice for his conviction to be reduced to a misdemeanor. Specifically, Cochran asserts that the district court's analysis was flawed because it applied its own "bright-line-rule" rather than conducting a more general "interest-of-justice" analysis, which Cochran argues is required by the statutory language.

¶10 As an initial matter, we do not share Cochran's interpretation of the district court's statements. Although the court expressed that its general practice in felony DUI cases was to wait until the defendant had gone ten years without committing another DUI before granting a 402 motion, we do not view the court's statement as an ironclad vow that it would never vary that practice in an appropriate case. Indeed, immediately after noting its general practice, the court went on to explain that, "under these circumstances," the community would be better served by denying the motion-in effect confirming that the court did consider more than just whether Cochran had gone ten years without any DUIs. In other similar contexts, we have determined that it is not an abuse of discretion for a court to decline to deviate from its "normal practice." See State v. Sanchez , 2015 UT App 58, ¶ 11, 346 P.3d 701.

¶11 Furthermore, there is nothing in the record that would indicate that the district court failed or declined to fully consider all the relevant evidence in making its decision. For example, at the outset of the hearing, the court stated specifically that it had reviewed Cochran's 402 Motion and inquired if there was "anything else [it] should know" in deciding the motion. By reviewing the written motion and the State's objection, the court would have learned-if it did not know already-that Cochran's three DUIs all took place in a relatively compact period of time (three years), and would have learned about Cochran's two relatively minor issues with probation compliance. The district court had itself previously entered an order successfully terminating Cochran's probation and closing the case, so the court was already aware that Cochran had successfully completed probation. At the hearing, the court specifically commended Cochran for his recent progress and continued employment. The court listened to and considered counsel's argument that Cochran's felony conviction was hampering his employment opportunities. A court that considers all the circumstances before making a sentencing decision is usually found to have acted within its discretion. See, e.g. , State v. Gomez , 2015 UT App 149, ¶ 16, 353 P.3d 175 (holding that the court did not exceed its discretion in denying a 402(1) motion where "the record reflect[ed] that the court was aware of all the circumstances").

¶12 In the end, Cochran has fallen short of demonstrating that "no reasonable person would take the view adopted by the [district] court." See id. ¶ 14 (quotation simplified). Perhaps another judge might have granted Cochran's 402 Motion, and perhaps it would have been completely within the court's discretion to have done so here. But that does not make it an abuse of discretion for the court to deny the motion. Cf. Gunn Hill Dairy Props., LLC v. Los Angeles Dep't of Water & Power , 2015 UT App 261, ¶¶ 21-24, 361 P.3d 703 (Orme, J., concurring) (upholding a district court's change-of-venue decision, even though two of the reviewing judges would have made a different decision in the first instance, because the district court did not abuse its wide discretion in making its ruling). In this case, the court reviewed all the evidence presented, and considered all the circumstances of Cochran's situation; after doing so, the court concluded that it was not in the interest of justice to grant Cochran's 402 Motion, and stated reasonable grounds for so ruling. Outside the unique context of LeBeau v. State , 2014 UT 39, 337 P.3d 254, see supra ¶ 9 n.3, nothing further is required of a court conducting an "interest-of-justice" analysis. In the end, we cannot conclude that the district court abused its discretion when it concluded that, despite the trouble Cochran's status as a felon was causing him in the employment context, "the danger to the community and the interests of justice outweigh[ed]" reducing Cochran's conviction "at this juncture." See State v. Salt , 2015 UT App 72, ¶ 26, 347 P.3d 414 (holding that "[t]he [trial] court did not exceed its discretion when it determined that [the defendant's] clean criminal history and potential job problems did not warrant ... a reduction"); see also Sanchez , 2015 UT App 58, ¶¶ 6-7, 346 P.3d 701 (holding that the district court did not abuse its discretion in denying defendant's motion to reduce his conviction, even though defendant was "a hard worker" and the conviction "would subject him to deportation").

¶13 Affirmed.

      Because the statutory provisions in effect at the time of Cochran's offense do not differ in any way material to our analysis from those now in effect, we cite to the current version of the Utah Code for convenience.

      Although the parties did not raise this issue, we wonder whether a district court would be compelled to reduce a defendant's sentence even if all five of the prerequisite conditions were met. The statute uses the term "may" rather than "shall," and in another analogous context, we have held that "may" means "may," and that even if all of a series of statutory prerequisites are met, a court still retains discretion to decline to make the change at issue. See Lay v. Lay , 2018 UT App 137, ¶¶ 12-13, 427 P.3d 1221 (recognizing that in the Utah Code "[m]ay means that an action is authorized or permissive" and "shall" means "an action is required or mandatory," and holding that, because the statute uses the permissive term "may," a court is not required to adopt an "alternative" parent-time schedule even if all of the statutory conditions are met (quotations simplified)). However, we need not reach this issue in this case, because we conclude that the district court did not abuse its discretion in concluding that the fifth condition was not met.

      In his brief, Cochran urged this court to apply our supreme court's "interest-of-justice" analysis from LeBeau v. State , 2014 UT 39, 337 P.3d 254, to the circumstances of this case, and argued that the district court erred by not using the LeBeau analysis in deciding the 402 Motion. No Utah appellate court has yet required a LeBeau -style analysis in deciding a charge-reduction motion brought under Utah Code section 76-3-402. However, we need not decide here whether LeBeau 's analysis is required in this context, because at oral argument before this court, Cochran withdrew his argument that a district court's failure to go through the LeBeau analysis is always erroneous. Instead, Cochran now maintains that a court may, but need not, consider LeBeau to the extent it may help inform the court's analysis. In any event, Cochran no longer contends that it was necessarily an abuse of discretion for the court to have failed to apply LeBeau , and therefore we need not discuss the matter further.


text:
    Reed Scott WATERFALL, Petitioner, v. RETIREMENT BOARD and Utah Retirement Systems, Respondents.
    No. 20180192-CA
    Court of Appeals of Utah.
    Filed May 23, 2019
    Michael V. Houtz and Keith M. Backman, Ogden, Attorneys for Petitioner
    David B. Hansen and Erin G. Christensen, Attorneys for Respondents
    Judge Kate Appleby authored this Opinion, in which Judges Ryan M. Harris and Diana Hagen concurred.
    Opinion
   APPLEBY, Judge:

¶1 Reed Scott Waterfall seeks judicial review of Utah Retirement Systems' (URS) calculation of his benefits as a justice court judge for South Ogden City (City) from 1992 to 2012. We approve Utah State Retirement Board's (Board) determination that Waterfall was a part-time employee during the relevant period.

BACKGROUND

¶2 Waterfall was employed as a justice court judge in the City from 1992 to 2012. In April 2012, the city director of finance reported to URS that "Judge Waterfall has always been part-time" while working for the City (2012 Report). Based on this representation, URS planned on calculating Waterfall's retirement benefits based on his part-time employment status with the City.

¶3 Waterfall disputed the calculation of his benefits by filing a request for board action in 2013. He argued that the part-time determination was incorrect and he should have been considered a full-time employee for the City. A hearing on the issue was held in 2015. At the hearing, the hearing officer considered the 2012 Report indicating Waterfall was part-time, as well as a subsequent letter dated March 2015 (2015 Letter) from the city manager (City Manager) indicating that Waterfall actually worked full-time for the City. The hearing officer also heard testimony from Waterfall on the issue. Based on the evidence presented, the hearing officer issued findings of fact and conclusions of law denying Waterfall's request to be considered a full-time employee for the City. The Board approved the findings of fact and conclusions of law entered by the hearing officer and denied Waterfall's petition for reconsideration.

¶4 In November 2016, Waterfall notified URS that he retired. Throughout 2016 and the beginning of 2017, Waterfall communicated with URS regarding the calculation of his retirement benefits. In 2017, Waterfall filed his retirement application and attached the 2015 Letter, which stated he was a full-time employee for the City. In response URS told Waterfall that his benefit would be calculated based on the Board's determination that he was a part-time employee. Waterfall then provided URS with a second letter dated January 2017 (2017 Letter), again signed by City Manager, "reaffirming" Waterfall was a full-time employee for the City during the relevant period.

¶5 URS was unsure how to interpret the conflicting information regarding Waterfall's employment status and asked the city attorney (City Attorney) for a response. City Attorney notified URS that the City's position was that the 2015 and 2017 letters from City Manager "should be withdrawn" and the 2012 Report should "be deemed the official response as to Mr. Waterfall's employment status." Based on City Attorney's response and its own previous determination after a hearing that Waterfall worked part-time for the City, URS calculated Waterfall's retirement benefits based on part-time employment.

¶6 In October 2017, Waterfall filed a second request for board action challenging URS's calculation of his benefits based on this part-time employment certification. URS filed a motion to dismiss arguing that res judicata barred Waterfall's claim and that he failed to establish he was a full-time employee. URS argued Waterfall could not be considered full-time because City Attorney's letter indicated he was part-time and withdrew prior letters indicating he was full-time. The hearing officer granted the motion to dismiss. The Board affirmed the dismissal of Waterfall's petition.

¶7 Waterfall seeks judicial review of the Board's dismissal of his petition.

ISSUE AND STANDARD OF REVIEW

¶8 The issue under review is whether the Board properly granted URS's motion to dismiss on the ground that Waterfall did not meet the statutory requirements to be considered a full-time employee of the City during the relevant period. On "review of an agency's formal adjudicative proceedings, we treat the Board's dismissal of [Waterfall's] petition as analogous to a court's dismissal of a complaint pursuant to a ... motion for failure to state a claim" under rule 12(b)(6) of the Utah Rules of Civil Procedure. Adkins v. Board of Oil, Gas & Mining , 926 P.2d 880, 882 (Utah 1996) (quotation simplified). "Therefore, we grant no particular deference to the Board's legal conclusions." Id. (quotation simplified). "[W]e accept all facts alleged as true, and indulge all reasonable inferences in favor of the non-moving party."

O'Hearon v. Hansen , 2017 UT App 214, ¶ 10, 409 P.3d 85 (quotation simplified).

¶9 This case requires us to review the Board's application of relevant statutes in the Utah State Retirement and Insurance Benefit Act. See Utah Code Ann. §§ 49-11-101 to -23-601 (LexisNexis 2015). "We review the Board's application or interpretation of a statute as a question of law under the correction-of-error standard." Whitaker v. Utah State Ret. Board , 2008 UT App 282, ¶ 10, 191 P.3d 814 (quotation simplified).

ANALYSIS

¶10 Waterfall argues his petition should not have been dismissed because the City considered him a full-time employee at the time of his retirement and URS had no authority to change the certification. He contends URS was required to accept the 2015 Letter as the final certification from the City regarding his employment status.

¶11 Utah Code section 49-13-406 provides, "A justice court judge who has service with more than one participating employer shall be considered full-time by the office for a period of service in which the judge is certified as full-time by: (i) a participating employer; or (ii) the Administrative Office of the Courts ...." Utah Code Ann. § 49-13-406(3)(a) (LexisNexis 2015). Waterfall argues that the word "shall" in the statute binds URS to accept the 2015 Letter as the certification of his employment status for the City. He contends the 2017 Letter from City Attorney is irrelevant because URS received the letter after his retirement date. URS argues Waterfall lacks proper certification of full-time employment because City Attorney withdrew City Manager's letters indicating he was a full-time employee.

¶12 Utah Code section 49-11-607 addresses the problem that arises when there are errors or disputes in an employee's records. After an employee retires, alterations, additions, and cancellations of benefits are not allowed except under the following circumstances: (1) if there are "[e]rrors in the records or in the calculations of the office which result in an incorrect benefit to any member," (2) if there are "[e]rrors in the records or calculation of a participating employer which result in an incorrect benefit to a member," or (3) "[i]f a dispute exists between a participating employer and a member at the time of the member's retirement." Id. § 49-11-607(1) - (4).

¶13 In this case, URS was presented with conflicting reports about Waterfall's employment status. Under section 49-11-607, URS may fix errors in, and resolve disputes about, the calculation of benefits even after an employee retires. That is what happened here. After URS contacted the City regarding the conflicting reports, City Attorney responded and said the City's official response was that Waterfall was a part-time employee. URS was thus able to correct the error and resolve the dispute over whether Waterfall was a part-time or full-time employee.

¶14 Waterfall relies on Gottfredson v. Utah State Retirement Board to support his position that benefits are fixed at retirement and cannot be changed after that date. 808 P.2d 153 (Utah Ct. App. 1991). In Gottfredson , the petitioner filed a retirement application, then after his established retirement date had passed, he learned about pending legislation that would increase his benefit and tried to rescind his application. Id. at 154. This court determined the Board properly refused his request because, after the established retirement date had passed, "no alteration, addition, or cancellation of [his] benefits could be made." Id. at 155 (citing the relevant provisions of the Utah Code). But our decision in Gottfredson does not support Waterfall's position in this case. Again, while it is generally true that an employee's benefits become fixed at the time of retirement, URS retains the ability to ensure the benefit is correct under the exceptions listed in Utah Code section 49-11-607. We approve the Board's dismissal of Waterfall's second request for board action.

CONCLUSION

¶15 The Board properly dismissed Waterfall's petition because URS had the ability to correct City Manager's error and resolve the dispute regarding whether he was a part-time or full-time employee. We therefore decline to disturb URS's calculation of his benefits, or its decision to treat Waterfall as a part-time employee.

      During his career, Waterfall was also employed as a justice court judge in Roy City and other jurisdictions.

      Waterfall stopped working for the City in 2012. The record is unclear from where Waterfall retired in 2016.

      Waterfall also argues his petition should not have been dismissed under res judicata. We do not reach this issue because we approve the Board's decision to dismiss Waterfall's petition on the alternative ground that he did not meet the statutory requirements to be considered a full-time employee.

      The statute does not make clear who is authorized to speak for the judge's "employer." It also does not articulate guidelines for what constitutes full-time and part-time employment. It may be advisable for the legislature to specify exactly who is authorized to speak for a justice court judge's municipal employer in this context, and to set out clear guidelines for what constitutes full-time and part-time employment.