Asset Acceptance LLC v. Utah State Treasurer

2016 UT App 25

THE 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.

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Asset 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

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Asset 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 25

Asset 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 25

Asset 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 25

Asset 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 25

Asset 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 25

Asset 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 863

9. 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 25

Asset 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 25

Asset 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 25

Asset 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 25

Asset 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 25

Asset 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.

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Asset 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.

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Asset 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

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Asset 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.

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Asset 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.

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Asset 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

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Asset 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.

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Asset 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.

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