Thayer v. Washington County School District ( 2012 )

Justice DURHAM,

opinion of the Court:

INTRODUCTION

T1 This case arises from a lawsuit in federal district court over the death of fifteen-year-old Tucker Thayer. In that suit, Tucker's parents allege that Washington County School District officials were negligent when they allowed a gun loaded with blank cartridges to be used in a school musical production, resulting in their son's death. The school district asserts governmental immunity from these claims.

12 Because the school district's argument raises a novel issue of state law, the U.S. District Court for the District of Utah certified the governmental immunity question to us. We agreed to decide whether the conduct of school officials and those acting on the school district's behalf constituted the "issuance ... [of al permit, license, certificate, approval, order, or similar authorization" such that the school district has retained immunity. Ura Copp § 63G-7-301(5)(c). We hold that the conduct of school district officials in allowing the gun to be present on school grounds does not fall within this provision.

BACKGROUND ¹

T3 In the fall of 2008, the drama department of Desert Hills High School (DHHS) staged a production of the musical Oklahoma! Tucker was a stage technician in the production. To enhance the production's sound effects during gunshot seenes, theater instructor and school district employee Michael Eaton wanted to fire blank bullets from a real gun, rather than use a prop gun. David Amodt, the father of a student involved in the production, offered his Smith & Wesson .38-caliber, six-shot revolver for use in the musical.

T4 Mr. Eaton consulted School Resource Officer Stacy Richan about the use of the gun in the production because school policy and state law prohibited the possession of a firearm on school grounds. Officer Richan, the school's in-house representative from the St. George Police Department, approved the use of the gun on school property, subject to three conditions: (1) only an adult could transport the weapon to and from school for rehearsals and performances, (2) the weapon would remain in a locked container and be under an adult's control when not in use, and (3) only an adult could handle and fire the weapon. Officer Richan then approached DHHS Vice Principal Robert Goulding about the presence of the gun on school property. He informed Goulding that he had authorized use of the gun in the production. Goulding agreed with Officer Richan's decision and authorized use of the gun during the production, subject to the conditions Officer Richan had imposed.

15 Despite Officer Richan's conditions, Tucker was allowed to handle and fire the weapon. On November 15, 2008, Tucker was in the production's sound booth without adult supervision. The gun was discharged near his head, and although the firearm was loaded with a blank cartridge, the muzzle blast drove skull fragments into Tucker's brain. He died later that night.

T6 After their son's death, Ron and Cathie Thayer filed state law negligence and wrongful death claims and federal civil rights claims against various defendants in the U.S. District Court for the District of Utah. The only claims at issue in this certified question are the Thayers' negligence claims against the school district stemming from the conduct of Vice Principal Goulding and Mr. Eaton. ' With respect to these claims, the school district moved for judgment on the pleadings under rule 12(c) of the Federal Rules of Civil Procedure, asserting immunity under the Governmental Immunity Act of Utah. It argued that it retained immunity from suit because Tucker's injuries arose out of, or resulted from, the "issuance ... [of al permit, license, certificate, approval, order, or similar authorization" (the Licensing Exeception). Utax § 68G-7-801(5)(c) The federal district court certified the governmental immunity question to this court, and we have jurisdiction under section 78A-3-102(1) of the Utah Code.

STANDARD OF REVIEW

{7 "On certification, we answer the legal questions presented without resolving the underlying dispute." Iverson v. State Farm Mut. Ins. Co., 2011 UT 34, ¶ 8, 256 P.3d 222 (internal quotation marks omitted).

ANALYSIS

18 When a governmental entity asserts immunity under the Governmental Immunity Act of Utah, this court typically applies a three-part test to determine whether immunity applies. Peck v. State, 2008 UT 39, ¶ 8, 191 P.3d 4. "The test assesses (1) whether the activity undertaken is a governmental function; (2) whether governmental immunity was waived for the particular activity; and (8) whether there is an exception to that waiver." Id. (internal quotation marks omitted).

19 In this case, the first two questions are not at issue. It is undisputed that the school district was engaged in a governmental function under the Act's general grant of immunity. See Uran Cope § 63G-7-201(1). It is also undisputed that, under the allegations in the Thayers' complaint, the school district waived its immunity because Tucker's death was "proximately caused by a negligent act or omission of [a governmental] employee committed within the scope of employment." Id. § 68G-7-301(4). The sole question certified for our review is whether the school district has retained immunity under the Licensing Exception-section 63G-7-301(5)(c) of the Utah Code. Under this exception, the school district retains immunity if Tucker's injury "ar[ose} out of, in connection with, or resulted] from ... the issuance, denial, suspension, or revocation of ... any permit, license, certificate, approval, order, or similar authorization." Id. § 68G-7-801(5)(c).

{10 The school district concedes that its officials did not issue a permit, license, certificate, or order allowing the presence of the gun on school grounds. Instead, it argues that the Licensing Exception applies because Tucker's death arose out of Officer Richan's and Vice Principal Goulding's issuance of an "approval" or "authorization" granting permission for the revolver to be at DHHS. In contrast, the Thayers contend that the Licensing Exception "is intended to cover the regulatory, discretionary activities of government agencies that are endowed with the authority to regulate a particular activity" and does not apply to school officials' negligent operational decision to create a dangerous condition at the school.

11 From the plain language of the statute, we conclude that the Licensing Exception applies only to formal, official, regulatory authorizations by a governmental entity empowered to issue, deny, suspend, or revoke such authorizations. We also conclude that Officer Richan's and Vice Principal Goulding's authorization of the presence of the firearm on school grounds was not such a formal, official, and regulatory authorization. In addition, we hold that the Licensing Exception is unavailable in this case because it does not apply to a governmental entity's internal approval or authorization of an employee's negligent conduct. A contrary interpretation of the exception would permit it to "swallow the rule" and would compromise the harmonious whole of the Governmental Immunity Act.

112 To determine the meaning of "approval" and "authorization" as used in the Licensing Exception, we begin our analysis with the statute's plain language, from which we seek to ascertain the intent and purpose of the legislature. "Under our rules of statutory construction, we must give effect to every provision of a statute and avoid an interpretation that will render portions of a statute inoperative." Warne v. Warne, 2012 UT 13, ¶ 36, 275 P.3d 238. In analyzing the Governmental Immunity Act, we have "decline[d] to stray from the plain meaning of the text where the statute is unambiguous and there is no compelling reason to believe that the legislature has misspoken." Moss v. Pete Suazo Utah Athletic Comm'n, 2007 UT 99, ¶ 13, 175 P.3d 1042.

{13 Under the Licensing Exception, a governmental entity retains immunity if an injury caused by an employee's negligence "arlose] out of, in connection with, or result[ed] from ... the issuance, denial, suspension, or revocation of ... any permit, license, certificate, approval, order, or similar authorization." Utar® Copm § 68G-7--301(5)(c). The causation language of the exception ("ar[ose] out of, in connection with, or result[ed] from") is not at issue in the certified question before us. The operative text at issue can be separated into two categories of terms: those relating to the governmental action ("issuance, denial, suspension, or revocation") and those relating to the object of that action ("permit, license, certificate, approval, order, or similar authorization").

¶14 With respect to the first category, each word describes a formal action undertaken as part of an entity's official power. For example, "issuance" derives from the verb "issue," which means "[to send out or distribute officially," Buack's Law DictioNary 908 (9th ed. 2009), and "to cause to appear or become available by officially putting forth or distributing or granting or proclaiming or promulgating," WeBstEr's THirp NEw IntEernationat Dictionary 1201 (1961). Similarly, a "revocation" is "[an annulment, cancellation, or reversal, usu[ally] of an act or power." Bmack's Law Dictionary 1485. "Denial" and "suspension" also are imbued with connotations of formality and official power. See WessrEr's Tairp NEw INTERNATIONAL Dictionary 602 (defining "denial" as a "refusal to grant, assent to, or sanction"); id. at 2308 (defining "suspension" as a "temporary remission of action or execution (as of a law, regulation, or rule)").²

T 15 Moreover, the formal, official nature of the governmental action in question informs our interpretation of the second category of terms, which describe what is being issued, denied, suspended, or revoked. Among these terms are "approval" and "authorization." In determining the meaning of these words, we note their placement in a list of terms that includes "permit," "license," "certificate," and "order." A "commonsense [approach] ... counsels that a word is given more precise content by the neighboring words with which it is associated." United States v. Williams, 553 U.S. 285, 294, 128 S.Ct. 1830, 170 L.Ed.2d 650 (2008); see also Salt Lake City v. Salt Lake Cnty., 568 P.2d 738, 741 (Utah 1977). While not always helpful, this interpretive canon, known as nosct-tur a sociis, is useful here because the terms surrounding "approval" and "authorization" have a common feature from which we may extrapolate meaning. Cf. S.D. Warren Co. v. Me. Bd. of Envtl. Prot., 547 U.S. 370, 379-80, 126 S.Ct. 1843, 164 L.Ed.2d 625 (2006) ("[NJoscitur a sociis is no help absent ... a common feature to extrapolate."); Beecham v. United States, 511 U.S. 368, 371, 114 S.Ct. 1669, 128 L.Ed.2d 383 (1994) ("That several items in a list share an attribute counsels in favor of interpreting the other items as possessing that attribute as well."). This common attribute, illustrated in the following definitions, is formal and official action:

e Permit; "A certificate evidencing permission; a license," Bracks Law Di1c-TIONARY 1255; "a written warrant or license granted by one having authority," WeBstrer's THirp NEw INTERNATIONAL Dictionary 1683.

e License: "A permission, usu[ally] revocable, to commit some act that would otherwise be unlawful," Brack's Law Dictionary 1002; "permission to act" or "a right or permission granted in accordance with law by a competent authority," WesstEr's THirp NEw InTERNATIONAL DICTIONARY 18304.

e Certificate: "A document certifying the bearer's status or authorization to act in a specified way," Buack's Law DicTIONARY 255; "a document containing a certified and usu[ally] official statement," WeBsrtEr's THirDp NEw INTERNATIONAL Dictionary 367.

e Order: "A command, direction, or instruction," Buack's Law DICTIONARY 1206; "an authoritative mandate usually] from a superior to a subordinate" or "a command or direction of a court," WaeBster's Teirp NEw IntEBRNA TIONAL DICTIONARY 1588.

{16 Because the terms concerning the government action-"issuance, denial, suspension, [and] revocation"-and those concerning the object of the government action-"permit, license, certificate ..., [and] order"-desecribe formal, official action, we conclude that the term "approval" shares the same attribute. Indeed, one definition of "approve" is "[to give formal sanction to; to confirm authoritatively." Buack's Law DICTIONARY 118 (emphasis added). The remaining text of the statute confirms this conclusion. After listing "permit, license, certificate, approval, [and] order," the Licensing Exception states "or similar authorization." Utax® Copm § 63G-7-8301(5)(c) (emphasis added).

117 That the statute considers each term a form of authorization is significant. "Authorization" derives from the verb "authorize," which means "[to give legal authority; to empower." Buack's Law Dictto-NaARY 158. A governmental entity or employee therefore cannot issue an authorization- or "permit, license, certificate, approval, [or] order"-unless it has the power "[tlo give legal authority." Moreover, a governmental entity must Aave legal authority in order to give legal authority. The only way in which a governmental entity has such authority is through legislative or executive enactment.

118 We hold that the Licensing Exception uses terms reflecting formality, official action, and authorization. A governmental entity may not invoke the Licensing Exception unless it has the authority, as a regulatory body, to formally and officially issue, deny, suspend, or revoke the authorizations listed in the exception, or similar authorizations. This authority may be granted by legislative or regulatory enactment, but the enactment must expressly empower the governmental entity with the ability to "give legal authority" to those seeking such authorizations.

T19 This interpretation of the Licensing Exception also is consistent with our case law. In every instance in which we have held that a governmental entity retained immunity under the Licensing Exception, the entity was empowered with the regulatory authority to issue the authorization in question. For example, Moss v. Pete Suazo Utah Athletic Commission involved an athletic commission's approval of a boxer's participation in a match, in which the contestant died. In that case, we detailed the regulations governing the athletic commission's decision to allow a boxer to compete. 2007 UT 99, ¶¶ 3-6, 175 P.3d 1042. We concluded that the commission retained immunity under the Licensing Exception because, even though the commission failed to follow regulations, the boxer's participation in the match concerned the commission's licensing authority. Id. 115. We noted that "the Athletic Commission's authority to prevent a boxer from competing is indistinguishable from a licensing decision" and that "[the essential element of such a decision continues to be whether to retract governmental authorization of private activity." Id. 119 (emphasis added).

120 Similarly, in Gillman v. Department of Financial Institutions, 782 P.2d 506 (Utah 1989), the plaintiff brought a negli-genee action against the state's Department of Financial Institutions for failure to properly regulate financial bodies. We held that the department retained immunity under the Licensing Exception because the alleged injury arose from the licensing decisions of the department, which had the statutory authority to regulate and issue licenses to financial institutions. Id. at 511; see also Metro. Fin. Co. v. State, 714 P.2d 293, 294 (Utah 1986) (applying the Licensing Exception to the Motor Vehicle Division's issuance of automobile title certificates); DeBry v. Salt Lake Cnty., 835 P.2d 981, 986 (Utah Ct App 1992) (applying the Licensing Exception to allegations of the county's "failure to conduct inspections, failure to issue permits, and issuance of a temporary certificate of occupancy").

T21 In this case, the school district has failed to identify any enactments outlining school district officials' ability to regulate the presence of guns on campus or to issue formal, official authorizations in that arena. We are aware of only one statutory provision with arguable relevance. Section 76-10-505.5 of the Utah Code eriminalizes the possession of a firearm on school premises as a class A misdemeanor. This penalty does not apply, however, if "the possession is approved by the responsible school administrator." Uran Cop § 76-10-505.5(4)(b). At oral argument, the school district contended that Mr. Goulding was the "responsible school administrator" and that this provision may be read as authorizing him to regulate the presence of firearms on school grounds.

122 Section 76-10-505.5, however, is a criminal statute imposing penalties on those who possess firearms on school grounds and providing a defense to eriminal liability if the "responsible school administrator" approved the possession of the firearm. That a defendant may be excused from eriminal liability based on such approval, however, does not mean that the "responsible school administrator" is endowed with regulatory authority over the presence of firearms on campus. Accordingly, we do not read this provision to have expressly allowed school officials to issue a formal, official approval or authorization within the meaning of the Licensing Exception.

123 There is another reason to reject the school district's interpretation of the Licensing Exception. A governmental entity may not issue approvals or authorizations to itself or its employees to immunize negligent conduct under the Governmental Immunity Act. We must read all parts of the Act in harmony with one another and take care to avoid a construction that renders any part "inoperative or superfluous." State v. Jeffries, 2009 UT 57, ¶ 9, 217 P.3d 265 (internal quotation marks omitted). With this in mind, we note that the Act operates to grant immunity to governmental entities for their governmental functions. Urax Copg $ 68G-7-201(1). But it waives that immunity for injuries "proximately caused by a negligent act or omission of an employee committed within the seope of employment." Id. § 63G-7-801(4).

4 24 Were we to accept the school district's interpretation of the Licensing Exception, the waiver of immunity for acts of employee negligence would become a nullity. Governmental employees' actions are frequently, if not always, approved or authorized by their employers in some fashion. Were we to interpret the Licensing Exception to include such routine operational approvals, the waiver of immunity in employee negligence cases would be rendered useless because governmental entities would all have the ability to cireamvent the provision. The Licensing Exception would "swallow" the waiver rule. See Johnson v. Utah Dep't of Transp., 2006 UT 15, ¶ 19, 133 P.3d 402.

25 This conclusion is reinforced by looking to other waivers of immunity subject to the Licensing Exception. For instance, immunity is waived for injuries caused by "a defective, unsafe, or dangerous condition of any highway, road, street, alley, crosswalk, sidewalk, culvert, tunnel, bridge, viaduct, or other structure located on them" or by "any defective or dangerous condition of a public building, structure, dam, reservoir, or other public improvement." Uran Cope $ 68G-7-301(8)(a). The governmental entities in charge of such public improvements-for example, the Utah Department of Transportation (UDOT)-almost always approve or authorize aspects of their own work. It would be illogical for the legislature to have enacted a waiver of immunity in instances where UDOT's construction of a defective highway leads to an injury, but also to have permitted retention of immunity under the Licensing Exception where UDOT authorizes and approves its own defective construction.

[ 26 Nor has the school district offered any support for the notion that the Licensing Exception applies when a governmental entity has approved or authorized the negligent conduct of its own employees. As noted above, all the cases from this state applying the exception have done so when the governmental entity was endowed with regulatory authority to issue, deny, suspend, or revoke authorizations concerning private conduct. Although many states have immunity statutes with similar licensing exceptions, the school district has not cited any case that supports its broad interpretation of the terms "approval" and "authorization."

127 For the foregoing reasons, we hold that the conduct of school district officials and those acting on the district's behalf does not qualify for a retention of immunity under section 63G-7-301(5)(c) of the Utah Code.

CONCLUSION

28 In response to this certified question from the federal district court, we hold that the Licensing Exception does not apply to the conduct of school district officials and those acting on the district's behalf. Officer Richan's and Vice Principal Goulding's authorization of the presence of the firearm on campus was not a formal, official authorization by a governmental body or employee endowed with regulatory power to issue such an authorization. In addition, a governmental entity such as the school district may not insulate itself from suit by routinely authorizing and approving the negligent conduct of its employees. A contrary interpretation of the Licensing Exception would not be in harmony with the whole of the Governmental Immunity Act.

Justice DURHAM authored the opinion of the Court, in which Associate Chief Justice NEHRING, and Justice PARRISH joined. Justice LEE filed a dissenting opinion in which Chief Justice DURRANT joined.

1 . The facts surrounding Tucker's death are taken from the Thayers' complaint,. The parties have stipulated to these facts for purposes of certification of the state law question before this court.

2 . It is true that the terms "issuance, denial, suspension, [and] revocation" may not in all contexts impart formality and official action. But these terms must be viewed in the context of the Governmental Immunity Act, which seeks to immunize governmental entities and their employees who perform governmental functions. Thus, although these terms may in some circumstances have informal and unofficial connotations, we are interpreting them in the context of a statute protecting governmental entities and dealing with their power to regulate through licensure. See Olsen v. Eagle Mountain City, 2011 UT 10, ¶ 12, 248 P.3d 465 ("[Wle do not interpret the 'plain meaning' of a statutory term in isolation. Our task, instead, is to determine the meaning of the text given the relevant context of the statute (including, particularly, the structure and language of the statutory scheme)."). We note that in ordinary usage in the context of governmental entities, issuances, denials, suspensions, and revocations are not made in informal or unofficial ways.