Asset Acceptance LLC v. Utah State Treasurer ( 2016 )

2016 UT App 25THE UTAH COURT OF APPEALS
ASSET ACCEPTANCE LLC,
Appellant,
v.
UTAH STATE TREASURER, UNCLAIMED PROPERTY ADMINISTRATOR,
Appellee.
Memorandum Decision
No. 20140686-CA
Filed February 4, 2016
Fourth District Court, American Fork Department
The Honorable Thomas Low
No. 129101488
Gregory M. Constantino, Attorney for Appellant
Sean D. Reyes, Thom D. Roberts, and Michael K.
Green, Attorneys for Appellee
Clark L. Snelson, Attorney for Amicus Curiae
Utah State Tax Commission
JUSTICE JOHN A. PEARCE authored this Memorandum Decision, in
which JUDGE GREGORY K. ORME concurred, with opinion.1 JUDGE
J. FREDERIC VOROS JR. concurred dubitante, with opinion.
PEARCE, Justice:
¶1 Asset Acceptance LLC appeals the district court’s order
quashing its writ of garnishment on the Unclaimed Property
1. Justice John A. Pearce began his work on this case as a
member of the Utah Court of Appeals. He became a member of
the Utah Supreme Court thereafter and completed his work on
the case sitting by special assignment as authorized by law. See
generally Utah R. Jud. Admin. 3-108(3).
Asset Acceptance v. Utah State Treasurer
Division (Administrator).2 The district court concluded that
Asset Acceptance’s garnishment of property held by
Administrator was not authorized by Utah Code section 78B-5-
808, which provides for the service of a writ of garnishment on
the State in certain instances. Asset Acceptance appeals.3 We
affirm.4
¶2 Asset Acceptance obtained a default judgment against a
debtor for his unpaid credit card debt. In an attempt to satisfy
the judgment, Asset Acceptance applied for a writ of
garnishment against Administrator to obtain unclaimed
property held by Administrator but purportedly belonging to
the debtor. See generally Utah R. Civ. P. 64D (setting out the
procedures for the issuance of a writ of garnishment). The
district court issued the writ of garnishment to be served on
Administrator.
¶3 Administrator moved to quash the writ, arguing it could
not be enforced against Administrator, an entity of the State.
Administrator maintained that the State’s governmental
immunity and the Governmental Immunity Act of Utah (the
Immunity Act) bar the garnishment of property held by the
State. The district court granted Administrator’s motion to
quash, concluding that Utah law does not require Administrator
2. On appeal, the Unclaimed Property Division, which acts
under the direction of the Utah State Treasurer, refers to the
relevant party as the Unclaimed Property Administrator. We
adopt that nomenclature.
3. In addition to the parties’ briefings in this case, we requested
and received briefing from the Utah State Tax Commission, as
amicus curiae.
4. This case and its companion case, Federal Pacific Credit Co. v.
Utah State Treasurer, 2016 UT App 24, were argued together. The
cases are legally and factually indistinguishable.
20140686-CA 2 2016 UT App 25Asset Acceptance v. Utah State Treasurer
to comply with the writ of garnishment. Asset Acceptance
appeals.
¶4 Asset Acceptance argues that Administrator must comply
with the writ because governmental immunity does not apply in
this situation, and, even if it did, that the Immunity Act waives
any immunity Administrator might otherwise possess. Asset
Acceptance also argues that its writ of garnishment is authorized
by Utah Code section 78B-5-808 and the Utah Supreme Court’s
interpretation of a prior version of that statute in Funk v. Utah
State Tax Commission, 839 P.2d 818 (Utah 1992).
¶5 These arguments require us to review the district court’s
order to determine if the court properly analyzed and applied
various statutes. We review the district court’s interpretation of a
statute for correctness and afford no deference to the district
court’s decision. DePatco, Inc. v. Teton View Golf Estates, LLC, 2014
UT App 266, ¶ 6, 339 P.3d 126; see also Gutierrez v. Medley, 972
P.2d 913, 914–15 (Utah 1998).
¶6 ‚Sovereign immunity—the principle that the state cannot
be sued in its own courts without its consent—was a well-settled
principle of American common law at the time Utah became a
state.‛ Madsen v. Borthick, 658 P.2d 627, 629 (Utah 1983). Utah
case law has long recognized that sovereign immunity generally
prohibits actions against the State unless it has expressly waived
its immunity. See Wilkinson v. State, 134 P. 626, 630 (Utah 1913)
(‚*I+n the absence of either express constitutional or statutory
authority an action against a sovereign state cannot be
maintained.‛).
¶7 The Utah Legislature codified the doctrine of sovereign
immunity in the Immunity Act. See Scott v. Universal Sales, Inc.,
2015 UT 64, ¶ 55, 356 P.3d 1172 (‚Prior to the enactment of [the
Immunity Act] in 1965, the common law doctrine of sovereign
immunity prevented a citizen from suing a state governmental
entity for any act considered to be a function of government.‛).
In defining the Immunity Act’s scope, the Legislature has
20140686-CA 3 2016 UT App 25Asset Acceptance v. Utah State Treasurer
provided that the Immunity Act’s ‚waivers and retentions of
immunity‛ apply to ‚all functions of government, no matter
how labeled,‛ and in a separate subsection, that the Immunity
Act ‚governs all claims against governmental entities or against
their employees or agents arising [from the employee’s or
agent’s official capacity].‛ Utah Code Ann. § 63G-7-101(2)(a), (b)
(LexisNexis 2014). The Immunity Act further states, ‚Except as
may be otherwise provided in this chapter, each governmental
entity and each employee of a governmental entity are immune
from suit for any injury that results from the exercise of a
governmental function.‛ Id. § 63G-7-201(1).5 The Immunity Act
defines ‚governmental function‛ as ‚each activity, undertaking,
or operation‛ of a governmental entity or employee. Id. § 63G-7-
102(4)(a). ‚Governmental function‛ also includes ‚a
governmental entity’s failure to act.‛ Id. § 63G-7-102(4)(c). The
Utah Supreme Court has noted that the breadth of this definition
encompasses ‚anything the government decides to do.‛ Scott,
2015 UT 64, ¶ 58.
¶8 Thus, absent a waiver, the State’s governmental immunity
prohibits Asset Acceptance from seeking to judicially compel
Administrator to comply with a writ of garnishment.6 Cf. Hall v.
5. In 2015, after the district court entered the order in this case,
the Utah Legislature amended this provision. It now provides,
‚Except as otherwise provided in this chapter, each
governmental entity and each employee of a governmental
entity are immune from suit for any injury that results from the
exercise of a governmental function.‛ Utah Code Ann. § 63G-7-
201(1) (LexisNexis Supp. 2015). The Legislature also amended
section 63G-7-101 to add subsection (3), which now provides, ‚A
governmental entity and an employee of a governmental entity
retain immunity from suit unless that immunity has been
expressly waived in this chapter.‛ Id. § 63G-7-101.
6. The Utah Supreme Court has recognized that ‚the legislature
can limit how and when the state may be subject to
(continued…)
20140686-CA 4 2016 UT App 25Asset Acceptance v. Utah State Treasurer
Utah State Dep’t of Corr., 2001 UT 34, ¶ 14, 24 P.3d 958 (holding
that the Immunity Act ‚must be strictly applied‛ because ‚it is
through the [Immunity Act] that the legislature has recognized
the necessity of immunity as essential to the protection of the
state in rendering the many and ever increasing number of
governmental services‛ (citation and internal quotation marks
omitted)); Epting v. State, 546 P.2d 242, 244 (Utah 1976) (‚The
decisions of this court, and other states, have indicated
recognition of the principle that where there is thus a general
preservation of governmental immunity, any exception must be
found to be clearly stated within the provisions of the [Immunity
Act+.‛ (footnotes omitted)).7
(…continued)
garnishment.‛ Funk v. Utah State Tax Comm’n, 839 P.2d 818, 821
(Utah 1992).
7. Other jurisdictions have recognized that governmental
immunity prevents writs of garnishment against state or federal
entities absent specific waiver of that immunity. See, e.g.,
Applegate v. Applegate, 39 F. Supp. 887, 889 (E.D. Va. 1941) (‚That
[an attachment or garnishment of property held by the United
States] cannot be maintained without the consent of the United
States to being sued has long been established.‛); Doss v. Thomas,
183 Ohio App. 3d 795, 2009-Ohio-2275, 919 N.E.2d 219, at ¶ 12
(‚The general rule nationally is that the United States, the states,
and their political subdivisions and agencies cannot be
summoned as a garnishee in an action without clear and
unequivocal statutory authorization, consent, or waiver.‛);
Hernando County v. Warner, 705 So. 2d 1053, 1054 (Fla. Dist. Ct.
App. 1998) (‚The state and its subdivisions and agencies are
immune from garnishment proceedings absent a clear and
unequivocal legislative enactment to the contrary.‛); see also
North Sea Prods., Ltd. v. Clipper Seafoods Co., 595 P.2d 938 (Wash.
1979) (en banc) (analyzing tribal immunity). This is true even
(continued…)
20140686-CA 5 2016 UT App 25Asset Acceptance v. Utah State Treasurer
(…continued)
where the plaintiff attempts to garnish the property of private
parties held by a state or federal agency. See, e.g., In re Pritchard,
75 B.R. 877, 880 (Bankr. D. Minn. 1987) (‚It must be
acknowledged that, under the doctrine of sovereign immunity,
the United States is not subject to suit as a third-party garnishee
or bailee in attachment or garnishment proceedings in the
absence of a statutory waiver of that immunity.‛); Herzig v.
Horrigan, 644 A.2d 360, 362–63 (Conn. App. Ct. 1994) (rejecting
an argument that ‚property execution on a state agency *to
attach the property of a third party+ is not the ‘institution of suit’
and thus is not barred by the doctrine of sovereign immunity,‛
because Connecticut law ‚does not limit the application of the
doctrine of sovereign immunity to suits against the state
involving the state’s direct pecuniary interest in the outcome‛);
Meyers v. Ohio State Lottery Comm’n, 517 N.E.2d 1029, 1033–34
(Ohio Ct. App. 1986) (holding that lottery winnings held by
Ohio’s State Lottery Commission but owing to a third party are
generally not subject to attachment by a lottery winner’s
judgment creditors because, among other things, the state’s
sovereign immunity generally prevents it from being sued in its
courts and ‚the legislature ha[d] not specifically provided that
these winnings may be attached‛ (emphasis in original)); Ridge
Lumber Co. v. Overmont Dev., 366 A.2d 125, 125 (Md. Ct. Spec.
App. 1976) (‚*G+overnmental officers and subdivisions of the
State are exempt from attachment proceedings where the money
sought to be attached is held by the garnishee in its official
capacity.‛); Knight v. Knight, 409 So. 2d 432, 435–36 (Ala. Civ.
App. 1982) (holding that a public employee’s salary held by the
City of Birmingham was generally immune from garnishment
under the doctrine of sovereign immunity and concluding that
‚the general rule . . . is only changed by statute‛ because ‚the
modification of the doctrine is a legislative question, not one for
the courts‛).
20140686-CA 6 2016 UT App 25Asset Acceptance v. Utah State Treasurer
¶9 Asset Acceptance argues that not only has the State
waived its governmental immunity with regard to the
garnishment in this case, but that its garnishment is also
authorized by the Immunity Act’s general waiver of immunity
in Utah Code section 63G-7-301(2)(a) for certain types of suits.
Administrator counters that it is immune from Asset
Acceptance’s garnishment due to Utah Code section 63G-7-603’s
reservation of immunity from judicial actions taken through
certain processes.
¶10 ‚Because we will not alter the meaning of a statute by
judicial fiat, we must try to interpret it in accordance with the
legislature’s intent.‛ Flowell Elec. Ass’n, Inc. v. Rhodes Pump, LLC,
2015 UT 87, ¶ 34, 361 P.3d 91. ‚When we are faced with two
statutes that purport to cover the same subject, we seek to
determine the legislature’s intent as to which applies.‛ Jensen v.
IHC Hosps., Inc., 944 P.2d 327, 331 (Utah 1997). In doing so, we
‚follow the general rules of statutory construction, which
provide both that ‘the best evidence of legislative intent is the
plain language of the statute,’‛ id. (citation omitted), and ‚that
when two statutory provisions conflict in their operation, the
provision more specific in application governs over the more
general provision,‛ Taghipour v. Jerez, 2002 UT 74, ¶ 11, 52 P.3d
1252 (citation and internal quotation marks omitted).
¶11 Section 63G-7-301(2)(a) provides that immunity is waived
‚as to any action brought to recover, obtain possession of, or
quiet title to real or personal property.‛ Utah Code Ann. § 63G-
7-301(2)(a) (LexisNexis Supp. 2015). Section 63G-7-603(2)
provides, ‚Execution, attachment, or garnishment may not issue
against a governmental entity.‛ Id. § 63G-7-603(2) (2014).
¶12 Section 63G-7-603 is the more specific statute. It provides
that the precise action attempted by Asset Acceptance—
garnishment—may not issue against a governmental entity. Id.
In contrast, section 63G-7-301 addresses a much broader range of
potential actions, including any action to recover or obtain
possession of personal property. See id. § 63G-7-301(2)(a) (Supp.
20140686-CA 7 2016 UT App 25Asset Acceptance v. Utah State Treasurer
2015). Thus, section 63G-7-603 applies here, preventing the
issuance of Asset Acceptance’s garnishment.8
¶13 Moreover, Administrator’s reading of the Immunity Act
comports with our prior interpretation of section 63G-7-603. See
Fisher v. Fisher, 2003 UT App 91, ¶¶ 13–14, 67 P.3d 1055. In Fisher,
an attorney obtained a judgment for past-due child support and
an award of future child support payments. Id. ¶ 2. His client
sought the assistance of the Office of Recovery Services (ORS) to
garnish her ex-husband’s wages. Id. The attorney then filed an
attorney lien on the funds ORS had collected. Id. ORS moved to
quash the lien arguing, in part, that the Immunity Act did not
permit such a lien. See id. ¶¶ 2, 7.
¶14 Specifically, ORS argued a prior (but identical) version of
section 63G-7-603(2), which commands that ‚[e]xecution,
8. Asset Acceptance contends that its garnishment does not fall
within the reservation of immunity in section 63G-7-603 because
Administrator does not own the property to be garnished and,
therefore, the garnishment does not ‚issue against a
governmental entity.‛ See Utah Code Ann. § 63G-7-603(2)
(LexisNexis 2014). Amicus curiae Utah State Tax Commission
argues that the Immunity Act ‚does not specifically permit or
prevent Utah from being served with a writ of garnishment to
garnish funds or property belonging to a third party.‛ Our
precedent forecloses both arguments. We have previously held
that a writ of garnishment served on a government agency to
obtain property in the possession of, but not owned by, that
government agency ‚issues‛ against that entity for purposes of
section 63G-7-603. See Fisher v. Fisher, 2003 UT App 91, ¶¶ 13–14,
67 P.3d 1055 (holding that an attorney lien could not issue
against property held by a state entity, but owing to a third
party). Moreover, Asset Acceptance points to nothing in the
statutory language that could be read to specifically create a
waiver of immunity when a party is attempting to garnish
property held but not owned by Administrator.
20140686-CA 8 2016 UT App 25Asset Acceptance v. Utah State Treasurer
attachment, or garnishment may not issue against a
governmental entity,‛ precluded the lien. Id. ¶ 13 (alteration in
original) (citation and internal quotation marks omitted). We
agreed, concluding that the funds the attorney sought to attach
were ‚in the possession and control of ORS, a governmental
agency that is immune from execution, attachment, or
garnishment.‛ Id. ¶ 14. Asset Acceptance does not discuss Fisher
in its briefing.9 In the absence of argument attempting to
distinguish Fisher and its application of the Immunity Act in
similar circumstances, we conclude that Fisher’s reasoning
applies and that section 63G-7-603(2) prohibits Asset Acceptance
from garnishing the property held by Administrator.
¶15 Finally, Asset Acceptance argues that Utah Code section
78B-5-808 authorizes its garnishment in this action. The district
court rejected this argument, concluding that a ‚common sense
reading of [section 78B-5-808 shows] that the State is subject to
garnishment only for money owed to a public official or
employee as either salary or wages.‛ We agree with the district
court.
¶16 When interpreting a statute, ‚our primary goal is to
evince the true intent and purpose of the Legislature.‛ Marion
Energy, Inc. v. KFJ Ranch P’ship, 2011 UT 50, ¶ 14, 267 P.3d 8639. Nor has Asset Acceptance asked us to revisit Fisher’s holding.
‚*I+n accordance with horizontal stare decisis . . . [an appellate
court] will overrule its own precedent in the limited
circumstances where it is ‘clearly convinced that the rule was
originally erroneous or is no longer sound because of changing
conditions and that more good than harm will come by
departing from precedent.’‛ State v. Tenorio, 2007 UT App 92,
¶ 9, 156 P.3d 854 (quoting State v. Bennett, 2000 UT 34, ¶ 8, 999
P.2d 1). Furthermore, the party seeking a departure from
precedent ‚carries a heavy burden of persuasion.‛ Ewing v.
Department of Transp., 2010 UT App 158, ¶ 13, 235 P.3d 776. Asset
Acceptance has made no effort to shoulder that burden.
20140686-CA 9 2016 UT App 25Asset Acceptance v. Utah State Treasurer
(citation and internal quotation marks omitted). ‚The best
evidence of the legislature’s intent is the plain language of the
statute itself.‛ Id. (citation and internal quotation marks
omitted). ‚When discerning the plain meaning of the statute,
terms that are used in common, daily, nontechnical speech,
should, in the absence of evidence of a contrary intent, be given
the meaning which they have for laymen in such daily usage.‛
O’Dea v. Olea, 2009 UT 46, ¶ 32, 217 P.3d 704 (citation and
internal quotation marks omitted). Further, ‚*w+hen the meaning
of [a] statute can be discerned from its language, no other
interpretive tools are needed.‛ Marion Energy, 2011 UT 50, ¶ 15
(second alteration in original) (citation and internal quotation
marks omitted). A statute is ambiguous only when it is
‚susceptible to two or more reasonable interpretations.‛ Id. ‚A
statute is not ambiguous merely because the parties disagree
about its meaning. Rather, [a] statute is ambiguous [only] if it
can be understood by reasonably well-informed persons to have
different meanings.‛ Peeples v. State, 2004 UT App 328, ¶ 8 n.3,
100 P.3d 254 (alterations in original) (citation and internal
quotation marks omitted).
¶17 Section 78B-5-808 provides,
The state and any subdivision, agency, or
institution of the state which has in its possession
or under its control any credits or other personal
property of, or owing any debt to, the defendant in
any action, whether as salary or wages, as a public
official or employee may be subject to attachment,
garnishment, and execution in accordance with any
rights, remedies, and procedures applicable to
attachment, garnishment, and execution,
respectively . . . .
Utah Code Ann. § 78B-5-808 (LexisNexis 2012).
¶18 Asset Acceptance argues that the operative language of
section 78B-5-808 is its first clause, which provides for
20140686-CA 10 2016 UT App 25Asset Acceptance v. Utah State Treasurer
garnishment of ‚any credits or other personal property of, or
owing any debt to, the defendant in any action.‛ Id. Based on
this broad language, it contends section 78B-5-808 provides for
garnishment of both public employee and nonpublic employee
property held by the State.
¶19 In contrast, Administrator contends that the district
court’s interpretation of section 78B-5-808 is correct; it asserts
that the statute ‚makes clear that only a public official or
employee may have his property garnished.‛ Administrator
reasons that the statute’s broad statement ‚defendant in any
action‛ is narrowed by ‚as a public official or employee‛ and
that the broad statement ‚any credits or other personal
property‛ is similarly narrowed by the later phrase ‚whether as
salary or wages.‛ According to Administrator, when the
statutory language is read as a whole, it authorizes garnishment
only against the salary or wages of a public official or employee.
¶20 We agree with Administrator and the district court. The
only reasonable reading of the statute requires the State to
respond to garnishments only if it is holding property owed as
salary or wages to a public official or employee. When distilled
to its component parts, the statute provides that the State is
subject to ‚attachment, garnishment, and execution‛ when it
‚has in its possession or under its control‛ certain property of, or
owing to, ‚the defendant in any action.‛ See Utah Code Ann.
§ 78B-5-808. And, most importantly, the statute narrows this
potentially broad grant to only those situations where the
property in the State’s possession or control is held, ‚whether as
salary or wages‛ and the defendant in the action is ‚a public
official or employee.‛ See id.
¶21 Asset Acceptance argues that the word ‚whether‛ and the
words that follow it in section 78B-5-808 act only to illustrate
certain descriptive examples of when a garnishment may be
issued against the State. Based on this reading, Asset Acceptance
argues that the statute has ‚broad application.‛ We disagree. The
statute’s use of the word ‚whether‛ cannot reasonably be
20140686-CA 11 2016 UT App 25Asset Acceptance v. Utah State Treasurer
construed to provide an illustrative example. To come to this
conclusion, we would be required to determine that the
Legislature used ‚whether‛ to describe a non-exhaustive list,
and that ‚whether‛ in this instance is the equivalent of
‚including‛ or ‚includes, but is not limited to.‛10 This we simply
cannot do; we are not aware of any case, nor have the parties
pointed us to any, where a court has interpreted ‚whether‛ to
signify a non-exhaustive list of descriptive examples. Both the
ordinary meaning of ‚whether‛ and the structure of section 78B-
5-808 indicate that ‚whether‛ limits, rather than illustrates, the
statute’s prior language.11
¶22 Asset Acceptance’s argument is further undercut by the
Legislature’s actions following the Utah Supreme Court’s
10. ‚Including‛ or ‚includes‛ is a somewhat unique word in the
English language, particularly with regard to its legal usage,
because it has long been held to unambiguously indicate a non-
exhaustive list. See, e.g., Federal Land Bank of St. Paul v. Bismarck
Lumber Co., 314 U.S. 95, 100 (1941); Helvering v. Morgan’s Inc., 293
U.S. 121, 125–26 (1934); Chickasaw Nation v. United States, 208 F.3d
871, 878 (10th Cir. 2000).
11. Additionally, ‚whether‛ is defined as ‚alternative conditions
or possibilities‛ such as ‚whether or not‛ or ‚whichever one of
the two.‛ Merriam-Webster, Merriam-Webster’s Collegiate
Dictionary 1346 (10th ed. 1999); see also Whether, Oxford
Dictionaries, http://www.oxforddictionaries.com/us/definition/a
merican_english/whether (last visited Jan. 13, 2016) (defining
‚whether‛ as ‚*i+ndicating that a statement applies whichever of
the alternatives mentioned is the case‛ or ‚*e+xpressing a doubt
or choice between alternatives‛), archived at perma.cc/9CHP-
6LKE. While dictionary definitions are not dispositive in our
interpretation of statutes, they are ‚useful in cataloging a range
of possible meanings that a statutory term may bear.‛ State v.
Canton, 2013 UT 44, ¶ 13, 308 P.3d 517 (citation and internal
quotation marks omitted).
20140686-CA 12 2016 UT App 25Asset Acceptance v. Utah State Treasurer
decision in Funk v. Utah State Tax Commission, 839 P.2d 818 (Utah
1992). In Funk, First Security Bank obtained a writ of
garnishment directing the Utah State Tax Commission to attach
Funk’s state tax refund. Id. at 819. After the Tax Commission
complied with the writ, Funk filed suit against the Tax
Commission, arguing that, as a state entity, the Tax Commission
was immune from the garnishment and could not comply with
the writ because no specific legislation authorized its
compliance. Id.
¶23 The Funk court used a prior version of Utah Code section
78B-5-808 as the starting point for its analysis. See id. at 820. The
then-applicable version of the statute authorized garnishments
against the State when the property at issue was owing to ‚the
defendant in any action, whether as salary or wages, as a public
official or employee, or otherwise.‛ Utah Code Ann. § 78-27-15(Michie 1987) (emphasis added). The supreme court held, ‚The
‘or otherwise’ language and the phrase ‘the defendant in any
action’ indicate that the legislature intended the statute to have
broad application.‛ Funk, 839 P.2d at 820. The court concluded
that, ‚*a+lthough the legislature can limit how and when the
state may be subject to garnishment,‛ the then-enacted statute
authorized attachments, garnishments, and executions against
both public and nonpublic employees. Id. at 821. It reasoned, ‚If
the statute were intended to apply only to public employees,
there would be no need to add ‘or otherwise.’‛ Id. at 820. Based
upon this reading of the statute, Funk concluded that the statute
‚authorizes the *Tax+ Commission to comply with a writ of
garnishment of a state tax refund owing to nonpublic
employees.‛ Id. at 821.
¶24 Following Funk, the Legislature removed the words ‚or
otherwise‛ from the statute. See Title 78 Recodification and
Revision, ch. 3, § 840, 2008 Utah Laws 48, 437–38; cf. Utah Code
Ann. § 78B-5-808 (LexisNexis 2008). Thus, prior to its
amendment, the statute authorized garnishments against certain
property owing to ‚the defendant in any action, whether as
salary or wages, as a public official or employee, or otherwise.‛
20140686-CA 13 2016 UT App 25Asset Acceptance v. Utah State Treasurer
Utah Code Ann. § 78-27-15 (Michie 1987) (emphasis added). As
amended, the statute provides for garnishments against certain
property owing to ‚the defendant in any action, whether as
salary or wages, as a public official or employee.‛ Id. § 78B-5-808
(LexisNexis 2012). Through the amendment, the Legislature
removed the language the Funk court relied upon to hold that
the statute’s reach extended to persons other than public
employees.12
¶25 Additionally, while we conclude the plain language of the
statute is unambiguous and thus we are not required to look
beyond the plain language of the statute, we also note that the
statute’s title, ‚Salaries of public officers subject to garnishment,‛
12. Asset Acceptance argues that the Legislature’s amendment
was merely a stylistic change that did not affect the supreme
court’s decision in Funk. It argues that the statute’s legislative
history indicates that the Legislature did not intend its removal
of ‚or otherwise‛ to have any substantive effect. The
amendments to section 78B-5-808 were part of the Legislature’s
recodification of the entire judicial code. See Title 78
Recodification and Revision, ch. 3, § 840, 2008 Utah Laws 48,
437–38. The house sponsor stated that the bill made ‚no
substantial changes to law.‛ Recording of Utah House Floor
Debates, H.B. 78, 57th Leg., Gen. Sess. (Jan. 22, 2008)
(statement of Rep. Jackie Biskupski), available at http://utahlegisla
ture.granicus.com/MediaPlayer.php?clip_id=17197&meta_id=50
9722, archived at https://perma.cc/S9K8-WV58. As noted above,
however, the Legislature’s removal of ‚or otherwise‛ had a
substantive effect on the statute’s meaning. Asset Acceptance’s
argument highlights the dangers of ignoring a statute’s text in
favor of arguments based upon the comments of individual
legislators. ‚We cannot properly invoke the legislative history in
a manner overriding the terms of the statute. Legislative history
is not law. It may be useful in informing our construction of
ambiguities in the law. But its utility ends there.‛ Graves v. North
E. Servs., Inc., 2015 UT 28, ¶ 64, 345 P.3d 619.
20140686-CA 14 2016 UT App 25Asset Acceptance v. Utah State Treasurer
comports with our reading of the statute. Id. And the statute’s
placement by the Legislature in Title 78B of the Utah Code—the
judicial code—rather than in Title 63G—the general government
code—suggests that it was not meant to have the broad effect
attributed to it by Asset Acceptance. Had the Legislature
intended to provide a broad grant of immunity from
garnishment, it likely would have included the statute in the
Immunity Act, located in chapter 7 of Title 63G of the Utah
Code. While we do not rely directly on either of these factors in
our decision, they nonetheless bolster our conclusion.
¶26 Thus, we conclude that Asset Acceptance’s writ of
garnishment against Administrator is not authorized by the
plain language of Utah Code section 78B-5-808. We also hold
that the Legislature’s amendment to that statute supplants the
applicability of the supreme court’s holding in Funk to the
current version of the statute.13
¶27 Finally, it bears noting that, despite our ruling, the Utah
Code provides Asset Acceptance with a path to obtain the
13. As noted above, we asked the Utah State Tax Commission to
file a brief in this case as amicus curiae. See supra note 3. We
asked the Tax Commission to weigh in on the dispute before us
because, at oral argument, counsel for Asset Acceptance
represented that the Tax Commission’s practice was to comply
with writs of garnishment, despite the Legislature’s 2008
amendment to Utah Code section 78B-5-808. In its brief, the Tax
Commission confirmed its practice and represented that it ‚does
not believe it can disregard the rule established by Funk without
clear guidance given by a Court, or an act of the legislature
which unequivocally states a contrary intent.‛ We hold today
that the Legislature overrode Funk’s precedential authority when
it amended the statute to remove the words, ‚or otherwise.‛ We
leave the question of whether it constitutes good policy to allow
private parties to compel the Tax Commission and other state
entities to process writs of garnishment to the Legislature.
20140686-CA 15 2016 UT App 25Asset Acceptance v. Utah State Treasurer
property it seeks. The Unclaimed Property Act, see Utah Code
Ann. §§ 67-4a-101 to -902 (LexisNexis 2014), provides a means
for creditors to access the unclaimed property of third-party
debtors. The Unclaimed Property Act provides that ‚the owner
may receive from [Administrator] the principal amount turned
over to the state.‛ Id. § 67-4a-401. The Act defines ‚owner‛ as,
among other things, ‚a creditor, claimant, or payee in the case of
other intangible property.‛ Id. § 67-4a-102(21)(c). Administrator
therefore contends, ‚[A] creditor, which includes a judgment
creditor like [Asset Acceptance], can simply file a claim for the
debtor’s unclaimed property claim. *Administrator+ will satisfy
the underlying unclaimed property claim . . . up to the amount
of the judgment or the amount of unclaimed property claim,
whichever is less.‛
¶28 We conclude that neither the Immunity Act nor Utah
Code section 78B-5-808 waives Administrator’s governmental
immunity with respect to the garnishment in this action. The
Legislature’s 2008 amendment to Utah Code section 78B-5-808
narrowed the scope of that statute and removed the language
upon which the Utah Supreme Court relied to decide Funk v.
Utah State Tax Commission, 839 P.2d 818 (Utah 1992). Funk’s
reasoning, therefore, no longer governs the interpretation of that
statute. Accordingly, we affirm the district court’s order
quashing Asset Acceptance’s writ of garnishment.
ORME, Judge (concurring):
¶29 I concur in the lead opinion. I confess that the alternative
route to the same result outlined in the other concurring opinion
also rings true.
¶30 But whether affirmance is mandated by the plain
language of the key statute or by judicial precedent that reflects a
misreading of several statutes, this simply is not good public
policy. For the life of me, I cannot see why our Legislature
20140686-CA 16 2016 UT App 25Asset Acceptance v. Utah State Treasurer
would have any interest in protecting judgment debtors from
making good on their just obligations. Stated the other way, I
cannot see why our Legislature would want to hinder the State’s
citizens who hold valid judgments in their efforts to collect on
those judgments. Yet that is the very upshot of the statutory
scheme now in effect—at least as the statutory language has
been interpreted by both of the state’s appellate courts.
¶31 True, the current scheme does insulate state agencies from
the modest inconvenience of preparing answers to garnishment
interrogatories and, in appropriate cases, from the ‚trouble‛ of
issuing and mailing a check payable to the successful garnishor.
But this seems inconsequential in the face of the compelling
competing interests, namely that the citizens of this State should
make good on their just debts and that garnishment should be
readily available as a tool in favor of judgment creditors to help
make this happen.
¶32 Very simply, the State, like any other person or entity
holding funds owed to a judgment debtor that ought properly be
shifted to that debtor’s creditor, should be required to facilitate
the transfer. I hope the Legislature will immediately reconsider
the current policy that instead insulates debtors from the reach
of our garnishment laws as concerns those debtors’ funds in the
possession of the State or one of its entities, whether those funds
be in the form of a public employee’s salary, unclaimed accounts
owned by the debtor, or a state tax refund.
VOROS, Judge (concurring dubitante):
¶33 I do not read the Governmental Immunity Act as the
majority opinion does. I do read Funk v. Utah State Tax
Commission, 839 P.2d 818 (Utah 1992), as the majority does, and I
agree it requires affirmance here. But I question the soundness of
Funk.
20140686-CA 17 2016 UT App 25Asset Acceptance v. Utah State Treasurer
¶34 First, as to the Governmental Immunity Act. 14 I agree with
amicus Utah State Tax Commission that the Act ‚does not
specifically permit or prevent Utah from being served with a
writ of garnishment to garnish funds or property belonging to a
third party.‛ The Act states, ‚A governmental entity and an
employee of a governmental entity retain immunity from suit
unless that immunity has been expressly waived in this
chapter.‛ Utah Code Ann. § 63G-7-101(3) (LexisNexis Supp.
2015). I doubt that this reference to ‚suit‛ encompasses a
14. ‚Historically, the ability to sue the State of Utah or one of its
political subdivisions rested on a determination of whether the
governmental entity was protected by the common law doctrine
of sovereign immunity.‛ Tindley v. Salt Lake City Sch. Dist., 2005
UT 30, ¶ 9, 116 P.3d 295. But ‚*t+hat changed in 1965, when the
Utah Legislature enacted the Utah Governmental Immunity
Act . . . .‛ Id. The Act represents ‚the codification of sovereign
immunity,‛ Hall v. Utah State Dep't of Corr., 2001 UT 34, ¶ 14, 24
P.3d 958, and thus ‚establishes the law of this state respecting
the subjects to which *it+ relates,‛ Utah Code Ann. § 68-3-2(2)
(LexisNexis 2010). It has ‚significantly altered the common law
of sovereign immunity, and substituted a statutory framework
to be interpreted by the courts and reshaped by the Legislature
as necessary from time to time.‛ Madsen v. Borthick, 658 P.2d 627,
629–30 (Utah 1983). It represents a ‚careful balancing‛ of the
need to protect the government from ‚a flood of lawsuits‛ on the
one hand and the hardship imposed on parties injured by
governmental acts on the other. Taylor ex rel. Taylor v. Ogden City
Sch. Dist., 927 P.2d 159, 167 (Utah 1996). Thus while the Act has
in some ways ‚limited Utah’s sovereign immunity,‛ Cope v. Utah
Valley State Coll., 2014 UT 53, ¶ 16, 342 P.3d 243, it has in others
‚extended the scope of governmental immunity far beyond the
common law doctrine of sovereign immunity,‛ DeBry v. Noble,
889 P.2d 428, 434 (Utah 1995). These pronouncements suggest
that the Act has wholly supplanted the common law doctrine of
sovereign immunity.
20140686-CA 18 2016 UT App 25Asset Acceptance v. Utah State Treasurer
garnishment seeking funds belonging to a third party—Asset
Acceptance has not sued the State Treasurer. Therefore, its
garnishment does not fall within the plain language of section
63G-7-101(3).
¶35 Section 63G-7-101 states that the Act’s immunities and
waivers ‚govern*+ all claims against governmental entities or
against their employees or agents arising out of the performance
of the employee’s duties, within the scope of employment, or
under color of authority.‛ Id. § 63G-7-101(2)(b) (emphasis
added). Reasonable minds could disagree as to whether a
garnishment served on the State Treasurer constitutes a ‚claim.‛
But the Act does not apply to all claims, only those ‚arising out
of the performance of the employee’s duties, within the scope of
employment, or under color of authority.‛ And Asset
Acceptance’s garnishment does not arise out of the performance
of any governmental employee’s duties. So even if Asset
Acceptance’s garnishment did qualify as a ‚claim‛ against a
governmental entity, it nevertheless does not fall within the
plain language of section 63G-7-101.
¶36 I also agree with the Tax Commission that § 63G-7-603
‚does not appear to apply to writs seeking third party funds.‛
That section states, ‚Execution, attachment, or garnishment may
not issue against a governmental entity.‛ Id. § 63G-7-603(2)
(2008). But we interpret statutes ‚in harmony with other statutes
in the same chapter and related chapters.‛ State v. Barrett, 2005
UT 88, ¶ 29, 127 P.3d 682 (citation and internal quotation marks
omitted). And this sentence addressing garnishment appears in
Part 6 of the Act, which deals with ‚actions‛ (which require an
undertaking of not less than $300), judgments ‚against a
governmental entity,‛ and the unavailability of punitive
damages against the government—in short, lawsuits against
governmental entities. In this context, the statement that
‚garnishment may not issue against a governmental entity‛
most plausibly refers to the situation where the government is
the judgment debtor, not the garnishee. True, our opinion in
Fisher reads section 63G-7-603 to prevent liens against property
20140686-CA 19 2016 UT App 25Asset Acceptance v. Utah State Treasurer
owned by third parties. See Fisher v. Fisher, 2003 UT App 91, ¶ 13,
67 P.3d 1055. But I find Fisher unpersuasive for the reason stated
by the Tax Commission: Fisher ‚never explains how the
Immunity Act could have applied to the proceedings. There was
no claim arising out of a public employee’s duties.‛
¶37 In sum, I do not agree that sections 63G-7-101(2), 63G-7-
101(3), or 63G-7-603 apply to a garnishment targeting third party
funds in the hands of the State. But because I read Funk as the
majority opinion does, I vote to affirm the judgment of the
district court.
¶38 That said, I doubt the soundness of Funk. Funk seems to
address governmental immunity, but in fact applies section 78B-
5-808. See Funk v. Utah State Tax Comm’n, 839 P.2d 818, 820 (Utah
1992). That section does nothing more than make ‚salaries of
public officers subject to garnishment‛—that is in fact the title of
the section. The section resides in the Judicial Code, far from the
Governmental Immunity Act, in a chapter titled ‚Procedure and
Evidence‛ and a part titled ‚Miscellaneous.‛ It does not purport
to be a waiver of governmental immunity; indeed, nothing in
Part 8 seems to address governmental immunity. The sections
surrounding section 808 address tender, money deposited in
court, bonds, payment of costs by the State and counties, service
of process, sureties on stay bonds, depositions, releases, and
comparative negligence.
¶39 So while we read Funk as an interpretation of the limits of
governmental immunity, really it interprets a statute with no
apparent connection to governmental immunity. Nor does Funk
ever cite the Governmental Immunity Act. It refers to
governmental immunity only twice; both references describe the
allegations of the complaint filed in that case. And in that case,
as in this one, the Tax Commission took the position that nothing
in the Utah Code prevented the State from releasing third party
funds to judgment creditors pursuant to writs of garnishment.
20140686-CA 20 2016 UT App 25Asset Acceptance v. Utah State Treasurer
See Funk, 839 P.2d at 820.15 Without analyzing whether such a
garnishment qualified as a claim against the government and
without citing any legal prohibition against the release of such
funds, the Funk court read a negative pregnant into the statute
affirmatively authorizing garnishment of money owed to
governmental employees ‚or otherwise.‛ See id. at 820–21. It held
that but for the phrase ‚or otherwise,‛ the law—precisely what
law remained unstated—would prevent the garnishment at issue
there. But notwithstanding its shaky analytical foundation, that
holding binds this court. And it requires affirmance here.
¶40 Affirming this judgment will have significant real world
implications. I agree with Judge Orme that, whatever its source,
the policy we are constrained to implement in this case makes
little sense. As Judge Orme notes in his concurring opinion,
today’s holding protects ‚judgment debtors from making good
on their just obligations.‛ Supra ¶ 30. And today’s decision may
extend that protection to thousands of such judgment debtors.
Based on its reading of Funk—which we today reject—the Tax
Commission routinely processes the very type of garnishments
the State Treasurer here resists. In the past three fiscal years, the
Tax Commission has received and responded to a total of 10,729
writs, resulting in 2,651 refunds garnished to the tune of
$1,249,635. Today’s opinion will, I fear, end that practice.
15. Although the Utah State Tax Commission appears as amicus
here by invitation of the court, in Funk it was the appellee.
20140686-CA 21 2016 UT App 25