Hoffman v. Peace Officer Standards ( 2022 )

2022 UT App 34THE UTAH COURT OF APPEALS
CHARLES HOFFMAN,
Petitioner,
v.
PEACE OFFICER STANDARDS AND TRAINING COUNCIL,
Respondent.
Opinion
No. 20200329-CA
Filed March 10, 2022
Original Proceeding in this Court
Jeremy G. Jones and Richard Willie, Attorneys
for Petitioner
Sean D. Reyes and Catherine F. Jordan, Attorneys
for Respondent
JUDGE DIANA HAGEN authored this Opinion, in which
JUDGES GREGORY K. ORME and RYAN D. TENNEY concurred.
HAGEN, Judge:
¶1 The Peace Officer Standards and Training Act (the Act)
permits the decertification of a peace officer who “refuses to
respond, or fails to respond truthfully, to questions after having
been issued a warning issued based on Garrity v. New Jersey, 385
U.S. 493 (1967).” Utah Code Ann. § 53-6-211(1)(d) (LexisNexis
Supp. 2021). Petitioner Charles Hoffman was decertified under
this provision and now seeks judicial review. We decline to
disturb Hoffman’s decertification.
Hoffman v. P.O.S.T
BACKGROUND1
¶2 Prior to his decertification, Hoffman worked as a police
officer for the Box Elder County Sheriff’s Office (Box Elder). In
May 2018, Hoffman learned that a neighboring law enforcement
agency had been tasked with investigating an incident involving
one of his fellow officers. Hoffman was not on good terms with
the officer involved and, despite being prohibited from doing so,
approached several officers from the neighboring agency and
asked them about the investigation. Three of these officers
reported Hoffman to their superiors, and word eventually
reached Box Elder.
¶3 In response to those reports, Hoffman was interviewed by
two of his superior officers on May 31, 2018. At the outset of the
interview, Hoffman received a written statement of rights,
captioned, “Box Elder County Sheriff Garrity Warning.” The
statement indicated that Hoffman was “to fully cooperate with
the investigating official(s)” and that Hoffman’s statements
could “be used as evidence of misconduct or as the basis for
seeking disciplinary action.” It further provided, “Any
statements made by you during these interviews cannot be used
against you in any subsequent criminal proceeding, nor can the
fruits of any of your statements be used against you in any
subsequent criminal proceeding.” One of Hoffman’s superiors
read the statement aloud to him, and Hoffman signed an
acknowledgment of understanding.
1. “Because the party seeking review of an agency’s order
following a formal administrative proceeding has the burden to
prove that the agency’s factual findings are not supported by
substantial evidence, we state the facts and all legitimate
inferences to be drawn from them in the light most favorable to
the agency’s findings.” Macfarlane v. Career Service Review Office,
2019 UT App 133, n.1, 450 P.3d 87 (cleaned up).
20200329-CA 2 2022 UT App 34Hoffman v. P.O.S.T
¶4 Hoffman’s superiors then asked whether he had
discussed the officer-involved incident with anyone from the
neighboring agency. Hoffman stated that the investigation had
come up in conversation with two officers, but he denied having
asked them for any specific information.
¶5 Hoffman was later re-interviewed after his superiors
confirmed the stories of the officers who had reported him. This
time, Hoffman admitted to discussing the investigation with
four additional officers. He also indicated that he had asked the
officers for the date and time of the incident, along with the
name of the investigating officer. Based on those admissions,
Box Elder gave Hoffman notice of potential discipline, but
Hoffman left the agency before any discipline occurred.
¶6 Hoffman’s case was then referred to the Division of Peace
Officer Standards and Training (POST) for further action. Under
the Act, POST “is responsible for investigating officers . . .
alleged to have engaged in” certain enumerated acts of
misconduct. Utah Code Ann. § 53-6-211(3)(a) (LexisNexis Supp.
2021). If POST believes that any of those acts have occurred, it
“shall initiate [an] adjudicative proceeding[] . . . by providing to
the peace officer . . . notice and an opportunity for a hearing
before an administrative law judge” (ALJ). Id. § 53-6-211(3)(b).
Then, if the ALJ finds that there is clear and convincing evidence
of misconduct, POST must present the ALJ’s decision to the
Peace Officer Standards and Training Council (the Council),
which, in turn, makes the ultimate decision regarding “whether
to suspend or revoke the officer’s certification.”2 Id. § 53-6-
211(3)(d)–(e), (4)(a) (LexisNexis 2015).
2. The legislature has twice amended section 53-6-211 since the
events of this case. See Utah Code Ann. § 53-6-211 (LexisNexis
Supp. 2021); id. § 53-6-211 (LexisNexis Supp. 2020). These
(continued…)
20200329-CA 3 2022 UT App 34Hoffman v. P.O.S.T
¶7 POST initiated an adjudicative proceeding against
Hoffman nearly a year after receiving Box Elder’s referral, citing
Hoffman’s untruthful responses during the May 31st interview
and “recommending that [Hoffman’s] peace officer certification
be revoked” under what is now subsection 53-6-211(1)(d) of the
Act (Subsection (d)).3 Under Subsection (d), the Council may
decertify an officer who “refuses to respond, or fails to respond
truthfully, to questions after having been issued a warning
issued based on Garrity v. New Jersey, 385 U.S. 493 (1967).” Utah
Code Ann. § 53-6-211(1)(d) (LexisNexis Supp. 2021). Hoffman
promptly obtained legal counsel, denied the allegations, and
requested a formal hearing under the Act.
(…continued)
amendments supply an alternative to suspending or revoking
the officer’s certification, see id. § 53-6-211(1) (LexisNexis Supp.
2021) (“The [C]ouncil has the authority to issue a Letter of
Caution . . . .”), and provide that the Council must “accept the
[ALJ]’s findings of fact and conclusions of law,” id. § 53-6-
211(4)(a)(i). “[W]e apply the law as it exists at the time of the
event regulated by the law in question.” State v. Clark, 2011 UT
23, ¶ 13, 251 P.3d 829. Thus, when assessing Hoffman’s
misconduct and the adequacy of his proceedings below, we
apply the version of the Act in effect at such times. See Utah
Code Ann. § 53-6-211 (LexisNexis Supp. 2020) (hearing before
the Council on May 29, 2020); id. § 53-6-211 (LexisNexis 2015)
(misconduct on May 31, 2018; hearing before the ALJ on
December 5, 2019). But where the text is identical, we cite the
most recent version for convenience.
3. At the time of Hoffman’s decertification, the relevant
provision was contained in subsection (e) of the statute. See id.
§ 53-6-211(1)(e) (LexisNexis 2015).
20200329-CA 4 2022 UT App 34Hoffman v. P.O.S.T
¶8 After the hearing, the ALJ found that there was clear and
convincing evidence that Hoffman had given “incomplete and
inaccurate information” to his superiors during “the May 31st
Garrity interview.” Consequently, the ALJ concluded that
Hoffman had committed misconduct as set forth in Subsection
(d) and, therefore, agreed with POST’s recommendation that
Hoffman be decertified. Following a review hearing, the Council
adopted the ALJ’s findings of fact and conclusions of law and
revoked Hoffman’s peace officer certification.
¶9 Hoffman seeks judicial review.
ISSUES AND STANDARDS OF REVIEW
¶10 Hoffman raises “two broad issues in this case relating to
statutory interpretation and application.” He contends (1) that
Subsection (d) is “unconstitutionally vague,” and (2) that the
Council “act[ed] beyond the jurisdiction conferred [on] it under”
the Act.4
4. POST argues that Hoffman’s arguments, in whole or in part,
are unpreserved because he never raised them before the ALJ or
the Council. Ordinarily, issues must be raised in the first
instance before the ALJ or the Council in order to preserve them
for judicial review. See Guenon v. Division of Peace Officer
Standards & Training, 2011 UT App 105, ¶ 8, 251 P.3d 851. But
Hoffman contends that the Council prevented him from making
his legal arguments, while assuring him that he could
nonetheless raise those issues before this court. During the
hearing, one of the Council members interrupted Hoffman’s
counsel and stated that the Council did not have the ability to
address legal arguments. The Council’s attorney confirmed,
“This is a legal argument, and if you’d like to address this later
on in an appeal to the court of appeals, you’re more than
(continued…)
20200329-CA 5 2022 UT App 34Hoffman v. P.O.S.T
¶11 “The interpretation and constitutionality of a statute are
questions of law that we review for correctness.” Waite v. Utah
Labor Comm’n, 2017 UT 86, ¶ 5, 416 P.3d 635. This same standard
applies to our review of the Council’s application of the statute.
See Avis v. Board of Review Indus. Comm’n, 837 P.2d 584, 586 (Utah
Ct. App. 1992) (“When reviewing an application or
interpretation of law we use a correction of error standard,
giving no deference to the [Council’s] interpretation of the
law.”).
ANALYSIS
¶12 In Garrity v. New Jersey, 385 U.S. 493 (1967), the Supreme
Court held that a police officer’s “statements obtained under
threat of removal” are inadmissible “in subsequent criminal
proceedings.” Id. at 500. The case arose after several New Jersey
police officers were criminally convicted for fixing traffic tickets.
Id. at 495. Prior to their convictions, each officer had been
(…continued)
welcome to [do so].” Hoffman’s counsel explained that he “was
not finished with [his] . . . legal arguments,” but would move on
as long as it was “clear that [he was] not waiving any legal
arguments on . . . appeal.” Under these circumstances, Hoffman
may have been excused from preserving the legal issues he now
raises. Cf. State v. Ashcraft, 2015 UT 5, ¶ 33, 349 P.3d 664(excusing defendant’s failure to specifically raise an objection
where court indicated its “unwillingness to hear any further
objection or explanation”). But we do not need to decide that
issue here. “[B]ecause we can easily dispose of [Hoffman’s]
claims on their merits, we choose to exercise our prerogative to
simply assume that [his] claims were preserved and proceed to
consideration of the merits.” See State v. Kitches, 2021 UT App 24,
¶ 28, 484 P.3d 415.
20200329-CA 6 2022 UT App 34Hoffman v. P.O.S.T
interviewed by the State, and each was informed “that, if they
refused to answer [the investigators’ questions], they could lose
their positions with the police department.” Id. The prosecution
then used the officers’ statements against them at trial on their
criminal charges. Id. The Supreme Court condemned this
practice, recognizing that the State had effectively forced each
officer to choose between continued employment and exercising
his Fifth Amendment right against self-incrimination, which
“disable[d] him from making a free and rational choice.” See id.
at 497 (cleaned up). Accordingly, because the officers’
“statements were infected by the coercion inherent in this
scheme of questioning,” they were inadmissible in a later
criminal proceeding. Id. at 497, 500 (cleaned up).
¶13 “In response to [Garrity], police departments routinely
engage in the practice of advising officers who are the subject of
an internal investigation that their answers will not be used in
any criminal prosecution . . . .” Dinger v. Department of Workforce
Services, 2013 UT App 59, ¶ 33, 300 P.3d 313. Utah cases refer to
these warnings as “Garrity warnings.” See Macfarlane v. Career
Service Review Office, 2019 UT App 133, ¶ 14, 450 P.3d 87; Dinger,
2013 UT App 59, ¶ 33; Kelly v. Salt Lake City Civil Service Comm’n,
2000 UT App 235, ¶ 32 n.9, 8 P.3d 1048. Such warnings remove
the coercive pressure that the Supreme Court condemned, while
still allowing police departments to compel officers “to answer
questions concerning their conduct . . . in a noncriminal
investigation.” See Harmon v. Ogden City Civil Service Comm’n,
2007 UT App 336, ¶ 17, 171 P.3d 474; see also Kelly, 2000 UT App
235, ¶ 32 n.9.
¶14 All peace officers in Utah must meet certain minimum
standards and be certified by POST. See Utah Code Ann. § 53-6-
205 (LexisNexis Supp. 2021). Section 53-6-211(1) of the Act gives
the Council the authority to revoke that certification if an officer
engages in certain types of misconduct. Critical to this appeal,
Subsection (d) applies where an officer “refuses to respond, or
20200329-CA 7 2022 UT App 34Hoffman v. P.O.S.T
fails to respond truthfully, to questions after having been issued
a warning issued based on Garrity v. New Jersey, 385 U.S. 493(1967).” See id. § 53-6-211(1)(d). Hoffman argues that Subsection
(d) is unconstitutionally vague, and that the Council lacked
jurisdiction to decertify him based on his responses during the
May 31st interview. We address each argument in turn.
I. Vagueness
¶15 Hoffman argues that Subsection (d) is unconstitutionally
vague because of “two glaring ambiguities”: (1) it fails to dictate
“the form that a Garrity warning may take,” and (2) it fails to
identify “the actor who must administer the Garrity warning to
trigger the statute.”5 Neither of these alleged deficiencies renders
Subsection (d) vague as applied to Hoffman’s conduct.
¶16 “Vagueness questions are essentially procedural due
process issues, i.e., whether the statute adequately notices the
proscribed conduct.” State v. Frampton, 737 P.2d 183, 191–92
(Utah 1987). A law is void for vagueness “when its prohibition is
so vague as to leave an individual without knowledge of the
nature of the activity that is prohibited.” See State v. Mattinson,
2007 UT 7, ¶ 9, 152 P.3d 300 (cleaned up). Conversely, a law is
not unconstitutionally vague if it “is sufficiently definite to
provide adequate notice as to what conduct is proscribed.” See
State v. MacGuire, 2004 UT 4, ¶ 14, 84 P.3d 1171.
¶17 A law is void for vagueness “only if the enactment is
impermissibly vague in all of its applications.” Village of Hoffman
5. Hoffman also argues that Subsection (d) is unconstitutionally
vague because “[i]t is highly unlikely that a person of ordinary
intelligence would be able to discern the” meaning of an entire
Supreme Court case. But because Hoffman raised this argument
for the first time in his reply brief, it is waived. See Utah R. App.
P. 24(b).
20200329-CA 8 2022 UT App 34Hoffman v. P.O.S.T
Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495 (1982);
see also MacGuire, 2004 UT 4, ¶ 12 (“A statute that is clear as
applied to a particular complainant cannot be considered
impermissibly vague in all of its applications and thus will
necessarily survive a facial vagueness challenge.”). A
complainant “who engages in some conduct that is clearly
proscribed by statute cannot complain of the vagueness of the
law as applied to the conduct of others.” State v. Tulley, 2018 UT
35, ¶ 55, 428 P.3d 1005 (cleaned up). Therefore, we “examine the
complainant’s conduct before analyzing other hypothetical
applications of the law.” Id. (cleaned up). “If the [complainant’s]
conduct is clearly prohibited, then he lacks standing to challenge
the statute based on another’s hypothetical conduct.” State v.
Jones, 2018 UT App 110, ¶ 16, 427 P.3d 538.
¶18 Hoffman first argues that Subsection (d) is vague because
it fails to specify the form that a Garrity warning must take.
Hoffman points out that “a warning issued based Garrity” could
arguably refer to “a traditional Garrity warning” or “a Reverse
Garrity warning.” According to Hoffman, a traditional Garrity
warning “advises government employees under investigation
that they may remain silent, that they will not be fired solely
because they exercise [that] right,” but that “any statements they
make can be used [against them] in a criminal proceeding.”
(Quoting Jackson v. District of Columbia, 327 F. Supp. 3d 52, 61 n.4
(D.D.C. 2018).) In contrast, a reverse Garrity warning “advises
employees that they are required to speak to investigators, that
they may face adverse employment consequences for anything
they say, but that their statement will not be used against them in
a criminal case.” (Quoting id. (cleaned up).)
¶19 Hoffman acknowledges that he “was presented a warning
in the ‘Reverse Garrity’ form” at the May 31st interview. And we
have previously held that Subsection (d) applies where an officer
receives that type of warning. In Macfarlane v. Career Service
Review Office, 2019 UT App 133, 450 P.3d 87, we described a
20200329-CA 9 2022 UT App 34Hoffman v. P.O.S.T
Garrity warning as one that “assures officers that their
statements given in a disciplinary interview will not be used
against them in a subsequent criminal prosecution.” Id. ¶ 14. We
then said that an officer who “‘refuses to respond, or fails to
respond truthfully, to questions’ after receiving” this type of
warning is subject to discipline under what is now Subsection
(d). Id. (quoting Utah Code Ann. § 53-6-211(1)(e) (LexisNexis
2015)).
¶20 This interpretation is supported by the text of the statute,
which expressly applies in circumstances where the officer either
“refuses to respond, or fails to respond truthfully.” See Utah
Code Ann. § 53-6-211(1)(d) (LexisNexis Supp. 2021). A
traditional Garrity warning expressly permits officers to remain
silent without risking employment consequences. If Subsection
(d) were confined to scenarios where an officer receives a
traditional Garrity warning, it would render the refuses-to-
respond portion of the statutory text inoperable. See State v.
Martinez, 2002 UT 80, ¶ 8, 52 P.3d 1276 (“[W]e avoid
interpretations that will render portions of a statute superfluous
or inoperative.” (cleaned up)). Accordingly, to give effect to the
statutory language, Subsection (d) must at least apply in
situations where the “warning issued based on Garrity” permits
employment consequences for refusing to respond—in other
words, where the officer receives the type of Garrity warning
Hoffman received here.
¶21 Hoffman’s vagueness argument asserts that the statutory
language is unclear as to whether Subsection (d) also applies to
an officer who chooses to provide untruthful answers following
a traditional Garrity warning. Hoffman contends that Subsection
(d) might allow an agency “to administer a traditional ‘Garrity
warning’ . . . placing the employee in the very penalty situation
that . . . Garrity was designed to prevent.” But that did not occur
here, and he “cannot seek refuge in imaginary cases.” See Holder
v. Humanitarian Law Project, 561 U.S. 1, 22 (2010). Hoffman’s
20200329-CA 10 2022 UT App 34Hoffman v. P.O.S.T
failure to respond truthfully was “clearly proscribed” by
Subsection (d). See Tulley, 2018 UT 35, ¶ 55 (cleaned up).
¶22 We also reject Hoffman’s second argument that
Subsection (d) is vague because it fails to specify who must issue
the Garrity warning. Hoffman points out that a police
department is not the only entity likely to issue a Garrity
warning during internal investigations; rather, POST itself may
issue Garrity warnings when interviewing officers in its
investigative capacity. Hoffman therefore contends that
Subsection (d) is vague because it does not specify whether the
Garrity warning must be issued by the officer’s employer or
POST.6
¶23 But Hoffman does not explain why the legislature was
constitutionally required to limit the application of Subsection
(d) to either scenario. Statutory language can be “broad” and yet
“not so vague as to be without meaning.” In re McCully, 942 P.2d
327, 332 (Utah 1997). Indeed, “it will almost always be true that
the legislature could have more clearly” indicated when, where,
and how a law is to apply. See In re Estate of Hannifin, 2013 UT 46,
¶ 25, 311 P.3d 1016; Buhler v. Stone, 533 P.2d 292, 294 (Utah 1975)
(“[I]t is obviously impossible to describe in detail every act and
circumstance a statute or ordinance is intended to deal with.”).
Parties must do more than criticize the legislature’s lack of
specificity; they must show that the lack of specificity operated
6. Hoffman further argues, without support, that “[t]he purpose
of [Subsection (d)] is to authorize POST to compel . . . statements
from law enforcement officers when . . . conducting [its own]
investigations into criminal conduct.” He also argues that our
constitutional avoidance canon of interpretation requires us to
interpret Subsection (d) as applying exclusively to warnings
issued by POST. But these are statutory interpretation
arguments; they do not support Hoffman’s vagueness challenge.
20200329-CA 11 2022 UT App 34Hoffman v. P.O.S.T
to deprive them of fair notice. Garrity warnings, by their very
nature, are only issued by entities with the power to take
disciplinary action against a public employee. An ordinary
person in Hoffman’s circumstances would therefore understand
that the obligation to answer truthfully after receiving a Garrity
warning applies to all interviews conducted by the limited
number of entities capable of imposing such discipline,
including his employer.
¶24 In sum, we hold that Subsection (d) is not
unconstitutionally vague as applied to Hoffman’s conduct.
Hoffman was interviewed by his employer after being issued a
written statement of rights, captioned, “Box Elder County Sheriff
Garrity Warning.” That document warned Hoffman that his
statements could “be used as evidence of misconduct or as the
basis for seeking disciplinary action” but could not be used in a
criminal prosecution. Hoffman signed a written
acknowledgement that he understood the warning. Therefore,
an ordinary person in Hoffman’s circumstances would have had
fair notice that the warning he received was a “warning issued
based on Garrity” and that his failure to answer truthfully would
subject him to possible decertification. Because Subsection (d)
clearly applies to Hoffman’s conduct, he cannot complain of the
vagueness of the law as applied to the conduct of others.
II. The Council’s Authority
¶25 Hoffman alternatively contends that the “Council erred in
interpreting its authorizing statute, when it determined it had
the authority to” decertify him under the Act. Hoffman
characterizes this as a jurisdictional argument.
¶26 To the extent that Hoffman challenges the Council’s
authority to hear and decide his case, he is mistaken. The Act
expressly tasks the Council with deciding whether “to suspend
or revoke the certification of a peace officer” whom POST has
investigated and whom an ALJ has found to have committed an
20200329-CA 12 2022 UT App 34Hoffman v. P.O.S.T
enumerated act of misconduct. Utah Code Ann. § 53-6-211(1), (3)
(LexisNexis 2015). Here, POST investigated Hoffman for
allegedly violating Subsection (d), and the ALJ determined that
the violation in fact occurred by clear and convincing evidence.
At that point, Hoffman’s case fell precisely within the class of
cases that the Council had authority to hear and decide.
¶27 We understand Hoffman’s argument to be that the
Council lacked authority in the sense that it decertified him
based on conduct not regulated by Subsection (d). In other
words, Hoffman appears to challenge the Council’s conclusion
that he made false statements “after having been issued a
warning issued based on Garrity.” Hoffman raises two primary
arguments in support of this contention, which we address in
turn.
¶28 Hoffman first argues that, per Subsection (d), “a warning
issued based on Garrity” must clearly advise the officer of the
full consequences of his choice to participate. In Hoffman’s view,
Box Elder only warned him that failing to cooperate during the
May 31st interview could result in termination, but it did not
warn him of possible decertification under the Act. Hoffman
therefore reasons that the Garrity warning was deficient.
¶29 As an initial matter, Box Elder’s warning was not as
narrow as Hoffman asserts. Box Elder expressly advised
Hoffman that his statements could “be used as evidence of
misconduct or as the basis for seeking disciplinary action
against” him. This language encompasses the threat of
“disciplinary action” by POST—an entity with authority to
investigate and discipline peace officers for misconduct.
¶30 Moreover, Subsection (d) only calls for a warning “issued
based on Garrity.” As Hoffman acknowledges, “The crux of
Garrity lies in the ‘choice’ a public employee must make
regarding self-incrimination or their continued employment.” If
a public employee is required to answer as a condition of their
20200329-CA 13 2022 UT App 34Hoffman v. P.O.S.T
employment, the employer must remove the threat that the
officer’s “statements given in a disciplinary interview” could
later “be used against them in a subsequent criminal
prosecution.” See Macfarlane v. Career Service Review Office, 2019
UT App 133, ¶ 14, 450 P.3d 87. Here, Box Elder assured Hoffman
that his statements could not “be used against [him] in any
subsequent criminal proceeding.” Accordingly, that warning
falls comfortably within the statutory language.
¶31 Hoffman’s second argument is that the “Garrity warning
and interview” were ineffective because Box Elder “failed to
administer proper proceedings” typically associated with Garrity
interviews. Specifically, Hoffman asserts that Box Elder “lied to
him about the scope of the Garrity interview,” pressured him to
waive his right to have a witness present, and asked questions
that “were not specifically, directly, and narrowly related to the
performance of his official duties.” None of these arguments,
however, go to whether Hoffman received “a warning issued
based on Garrity,” which is all that Subsection (d) plainly
requires.
¶32 But Hoffman argues that “a warning issued based on
Garrity” refers to more than just the warning itself. He asserts
that the phrase is a legal term of art encompassing the various
restrictions that Box Elder allegedly violated. Hoffman then
points out that, when the legislature uses a legal term of art, we
must “credit” that specialized meaning and “not the common
understanding of the words” themselves. See State v. Canton,
2013 UT 44, ¶ 28, 308 P.3d 517. Thus, even though Subsection (d)
says nothing about other restrictions on internal affairs
interviews, Hoffman argues that “a warning issued based on
Garrity” necessarily incorporates them.
¶33 We are unpersuaded that “a warning issued based on
Garrity” is a legal term of art. Fundamentally, Hoffman has not
shown that the term has been used “long enough to have
20200329-CA 14 2022 UT App 34Hoffman v. P.O.S.T
accumulated legal tradition and certain clusters of ideas.” See
Ibarra v. Holder, 736 F.3d 903, 914 (10th Cir. 2013) (cleaned up); see
also Maxfield v. Herbert, 2012 UT 44, ¶ 31, 284 P.3d 647 (describing
legal terms of art as terms “in which are accumulated the legal
tradition and meaning of centuries of practice”). And although
Hoffman packs his brief with authority discussing restrictions on
internal affairs interviews, none of that authority suggests that
the statutory language at issue here—“a warning issued based
on Garrity”—encompasses any of those legal concepts. See Oliver
v. Utah Labor Comm’n, 2017 UT 39, ¶¶ 33–37, 424 P.3d 22 (holding
that the state workers’ compensation statute did not encompass
the legal tradition of its federal counterpart, where the specific
language at issue was not associated with that tradition).
Therefore, we interpret Subsection (d) based on its ordinary
meaning.
¶34 The plain language of the statute does not support
Hoffman’s argument that Subsection (d) applies only when the
“‘proper procedures’ discussed in Garrity’s progeny” have been
followed. Hoffman might have a colorable argument if
Subsection (d) referred to “interviews conducted based on
Garrity” or used broader language such as “Garrity procedures”
or “Garrity protections.” But the statute does not speak to the
way in which the interview must be conducted. Instead, it
applies when an officer “refuses to respond, or fails to respond
truthfully, to questions after having been issued a warning issued
based on Garrity v. New Jersey, 385 U.S. 493 (1967).” See Utah
Code Ann. § 53-6-211(1)(d) (LexisNexis Supp. 2021) (emphasis
added). In other words, “a warning” is the singular event that
triggers the potential application of Subsection (d) to officers
who thereafter choose to not answer or to answer untruthfully.
Construing “a warning” to refer to the kind of continuous,
interview-wide procedural protections that Hoffman describes
would be an unnatural reading of the statute’s plain language.
Because Hoffman chose to lie “after having been issued a
20200329-CA 15 2022 UT App 34Hoffman v. P.O.S.T
warning issued based on Garrity,” the Council did not exceed its
authority in revoking his peace officer certification.
CONCLUSION
¶35 We conclude that Subsection (d) is not unconstitutionally
vague with respect to Hoffman’s conduct and that the Council
did not exceed its authority under the Act. We therefore decline
to disturb the Council’s decision.
20200329-CA 16 2022 UT App 34