Certification from the United States District Court for the
District of Utah The Honorable Jill N. Parrish Case No.
E. Magleby, Peggy A. Tomsic, Adam Alba, Salt Lake City, for
D. Reyes, Att'y Gen., Tyler R. Green, Solic. Gen.,
Stanford E. Purser, Deputy Solic. Gen., Peggy E. Stone, Asst.
Solic. Gen., Salt Lake City, for appellees Utah State
University Research Foundation, Robert T. Behunin, and Curtis
B. Berger, Beth J. Ranschau, Ryan B. Bell, Salt Lake City,
for appellees Utah State University Advanced Weather Systems
Foundation and Scott Jensen.
Justice Himonas authored the opinion of the Court, in which
Chief Justice Durrant, Associate Chief Justice Lee, Justice
Petersen, and Judge Hagen joined.
recused himself, Justice Pearce does not participate herein;
Court of Appeals Judge Diana Hagen sat.
This case comes to us on certification from the United States
District Court for the District of Utah. See Utah R.
App. P. 41. The district court certified three questions
relating to the interpretation of the Governmental Immunity
Act of Utah, Utah Code sections 63G-7-101 to 904 (Immunity
Act). The certified questions are as follows:
1. Are the Utah State University Research Foundation and the
Utah State University Advanced Weather Systems Foundation
entitled to immunity under the Governmental Immunity Act of
Utah . . . as a public corporation and/or an instrumentality
of the state?
2. Utah Code sections 63G-7-501 and 502 vest exclusive,
original jurisdiction over any action brought under the
Immunity Act in the district courts and venue in the county
in which the claim arose or in Salt Lake County. Do these
provisions reflect an intent by the State of Utah to limit
the Immunity Act's waiver of sovereign immunity to suits
brought in Utah district courts?
3. If question 2 is answered in the affirmative, does the
Office of the Attorney General for the State of Utah or any
litigant have authority under Utah law to waive the
jurisdictional and venue provisions enacted by the Utah
Legislature in the Immunity Act?
These questions raise important, unanswered questions of
state law. We therefore provide the applicable legal standard
for determining what is an instrumentality of the state.
However, "[o]ur authority to answer certified questions
. . . is a matter of discretion." Zimmerman v. Univ.
of Utah, 2018 UT 1, ¶ 2, 417 P.3d 78 (citations
omitted). And we use that discretion here to decline to
establish a legal standard for public corporation immunity
based on the focus of the parties' briefing.
The second and third certified questions are relevant only if
one of the entities involved is an instrumentality of the
state or a public corporation. Because that is a decision
that must be made by the district court, we forgo answering
the second and third questions before the first question has
been answered in the affirmative, thereby necessitating
answers to these questions. However, we noted significant
confusion among the parties about the proper interpretation
of the second and third certified questions. In light of
this, we highlight this confusion so that, should the
district court choose to certify these questions to us again,
we can provide guidance in the way that is most helpful to
the district court.
GeoMetWatch filed a lawsuit against various defendants in
federal district court. Relevant to this certification from
the district court, GeoMetWatch brought causes of action
against Utah State University Research Foundation (USURF) and
two of its employees—Robert Behunin and Curtis
Roberts—and Utah State University Advanced Weather
Systems Foundation (AWSF) and one of its
USURF and AWSF are both 501(c)(3) nonprofit corporations
wholly owned and operated by Utah State University (USU).
USURF and AWSF were incorporated to carry out the functions
of USU. Additionally, both entities' founding boards are
appointed by USU.
The defendants filed motions for summary judgment in federal
court on multiple claims, alleging that the district court
lacks jurisdiction over the claims because GeoMetWatch had
not complied with the notice and undertaking requirements in
the Immunity Act. As a result of those motions, the district
court "became concerned that it may not have
jurisdiction to adjudicate whether the procedural
requirements of the Immunity Act have been met due to the
jurisdiction and venue limitations in Utah Code sections
63G-7-501 and 502."
Based on these concerns, the district court certified three
important but unresolved questions of state law for our
review. We have jurisdiction pursuant to Utah Code section
"A certified question from the federal district court
does not present us with a decision to affirm or reverse a
lower court's decision; as such, traditional standards of
review do not apply." Garfield Cty. v. United
States, 2017 UT 41, ¶ 6, ---P.3d--- (citation
omitted). When presented with a certified question, "we
merely answer the question presented, leaving resolution of
the parties' competing claims and arguments . . . up to
the federal courts, which of course retain jurisdiction to
decide [the] case." Id. (alterations in
original) (citation omitted) (internal quotation marks
The federal district court has certified three questions of
state law. The first question is focused on whether the
defendants are public corporations or instrumentalities of
the state and are thereby covered governmental entities for
the purposes of the Immunity Act. We set out the applicable
legal standard for determining whether an entity is an
instrumentality of the state, but we do not address whether
the defendants meet this criterion. Instead, we leave this
determination to the district court. We also decline to
address the appropriate legal standard for determining
whether an entity is a public corporation.
The second and third certified questions require us to
interpret the jurisdiction and venue provisions of the
Immunity Act. The parties disagree about the proper
interpretation of the thrust of these questions. And, based
on the contents of the certification order, we see additional
potential interpretations not addressed by the parties.
Because these questions are relevant only if the defendants
are governmental entities under the Immunity Act, we decline
to answer these questions before the district court
determines whether the defendants are covered by the Immunity
Nonetheless, we view certification orders as a dialogue
between our court and the federal courts. So we discuss the
relevant interpretations presented by the parties or
contemplated by this court. By doing so, we hope to provide
the district court with the opportunity to clarify the true
nature of the question posed to both the parties and to this
court should the district court choose to certify these
questions to us again.
GOVERNMENT ENTITY UNDER THE GOVERNMENT IMMUNITY ACT
The Immunity Act is a "comprehensive chapter"
containing "waivers and retentions of immunity"
that "appl[y] to all functions of government" and
"govern all claims against governmental entities or
against their employees or agents [under specific
conditions]." Utah Code §
63G-7-101(2). Unless immunity is waived by the Immunity
Act, "each governmental entity and each employee of a
governmental entity are immune from suit for any injury that
results from the exercise of a governmental function."
Id. § 63G-7-201(1).
The defendants contend that they are governmental entities or
employees of a governmental entity covered by the Immunity
Act. The term "[g]overnmental entity" means
"the state and its political subdivisions as"
defined in the Immunity Act. Id. §
63G-7-102(4). The "[s]tate" is defined as "the
state of Utah, and includes each office, department,
division, agency, authority, commission, board, institution,
hospital, college, university, Children's Justice Center,
or other instrumentality of the state."
Id. § 63G-7-102(10) (emphasis added).
"Political subdivision" is defined as "any
county, city, town, school district, community reinvestment
agency, special improvement or taxing district, local
district, special service district, an entity created by an
interlocal agreement adopted under Title 11, Chapter 13,
Interlocal Cooperation Act, or other governmental subdivision
or public corporation." Id. §
63G-7-102(8) (emphasis added).
The defendants do not argue that they fall under one of the
specifically enumerated categories in the definitions of
state or political subdivision. Instead, they contend that
they are covered under the catchall provisions of "other
instrumentality of the state" and "other . . .
public corporation." The first certified question asks
us to interpret these broad terms so that the district court
may determine whether USURF and AWSF fall into one of these
sweeping categorical expressions.
When interpreting a statute, "our primary objective is
to ascertain the intent of the legislature." Scott
v. Scott, 2017 UT 66, ¶ 22, ___ P.3d ___ (citation
omitted). "Because [t]he best evidence of the
legislature's intent is the plain language of the statute
itself, we look first to the plain language of the
statute." Penunuri v. Sundance Partners, Ltd.,
2013 UT 22, ¶ 15, 301 P.3d 984 (alteration in original)
(citation omitted) (internal quotation marks omitted). If the
legislature has not defined a term, we must look to other
sources "to derive its meaning—to either the
ordinary meaning of the word, or to its technical sense as a
legal term of art." State v. Bagnes, 2014 UT 4,
¶ 13, 322 P.3d 719 (citations omitted).
A term of art is a "specialized legal term that
carr[ies] an extra-ordinary meaning." State v.
Canton, 2013 UT 44, ¶ 28, 308 P.3d 517.
"[W]hen a word or phrase is transplanted from another
legal source, whether the common law or other legislation, it
brings the old soil with it." Id. (citation
omitted) (internal quotation marks omitted). To be a term of
art, there must be "a firmly rooted . . . notion"
of the word or phrase. Id. ¶ 29; see also
In re Adoption of B.B., 2017 UT 59, ¶ 55, 417 P.3d
1 ("A term of art has one established meaning . . .
." (citations omitted)).
Citing two cases from other states, GeoMetWatch argues that
we should treat instrumentality of the state and public
corporation as terms of art for the purposes of the Immunity
Act. However, those two cases are unhelpful here—they
hold that instrumentality of the state and public corporation
are terms of art in their respective states based upon the
use of one of those terms in the state's constitution,
code, or caselaw. See Hagman v. Meher Mount Corp.,
155 Cal.Rptr.3d 192, 195 (Cal.Ct.App. 2013) (deeming public
corporation a term of art based on its usage in
California's constitution, code, and caselaw);
Slowinski v. Eng. Econ. & Indus. Dev. Dist., 828
So.2d 520, 523, 528 (La. 2002) (concluding that when the
legislature expressly labels a body an instrumentality of the
state, the legislature is using the phrase as a term of art
that is defined in a constitutional provision).
And GeoMetWatch makes no argument that instrumentality of the
state and public corporation are terms of art in Utah based
upon this state's code, constitution, or
caselaw. Nor does GeoMetWatch make any attempt to
compare Utah's use of these terms to the other
states' uses to support a determination that they are
terms of art in this state. In fact, when GeoMetWatch
discusses how instrumentality of the state and public
corporation should be defined as terms of art in Utah, it
does not reference their use as terms of art in California
and Louisiana or even mention those cases to buttress its
Additionally, GeoMetWatch fails to provide a definition that
each term should have when used as a term of art in Utah. In
fact, GeoMetWatch fails to analyze each term separately at
all. Instead, GeoMetWatch cites more than a dozen cases from
other jurisdictions that deal with terms different
than the ones that are at issue here. For example, many of
the cases cited attempt to define "arm of the
state," which is a term relevant for Eleventh Amendment
immunity purposes. But the governmental immunity provided
under the Eleventh Amendment is not coextensive with the
coverage provided by the Immunity Act. See Ambus v.
Granite Bd. of Educ., 995 F.2d 992, 995 (10th
Cir. 1993) (holding that school districts are not "arms
of the state" for Eleventh Amendment immunity purposes
despite being expressly included as a "political
subdivision" under the Immunity Act); see also
infra ¶¶ 52-54. Moreover, the cited cases use
tests that apply widely variant criteria. GeoMetWatch asks
us to take these tests, notwithstanding their disparity and
analysis of terms other than public corporation or
instrumentality of the state, and create a single
six-part test for both public corporation and
instrumentality of the state. This request runs contrary to
our settled principles of statutory construction, and we
refuse to undertake an analysis that would do such an
injustice to the statute.
We are unconvinced by GeoMetWatch's arguments that we
should treat public corporation or instrumentality of the
state as terms of art in the Immunity Act. And our own review
of these terms convinces us that they are not terms of art
consistently used throughout our law. Therefore, we focus our
attention on the ordinary meaning of those terms as used in
the Immunity Act. See Bagnes, 2014 UT 4, ¶ 13
(stating that we derive a term's meaning either from its
"ordinary meaning" or from "its technical
sense as a legal term of art").
Dictionaries provide a useful starting point when assessing
the ordinary meaning. Id. ¶ 14. "The
dictionary is useful in cataloging a range of possible
meanings that a statutory term may bear. It provides an
historical record, not necessarily all-inclusive, of the
meanings which words in fact have borne." Id.
(citation omitted) (internal quotation marks omitted). But
"the dictionary alone is often inadequate to the task of
interpretation" because different definitions may
support different interpretations. Id. Accordingly,
when the dictionary is inconclusive, we turn to other canons
of statutory construction to focus our interpretation.
See id. ¶¶ 14-21.
We do so here for the term "other instrumentality of the
state"—we begin with the dictionary definitions
and then turn to other canons as necessary. We would
undertake the same mode of analysis for public corporation,
but the lack of briefing on the appropriate method of
analysis for this term leads us to decline to answer this
part of the first certified question. Importantly, we limit
our analysis to the question certified to us and leave the