MARJEAN SEARCY NIELSEN AND UNIVERSITY OF UTAH, Petitioners, v. RETIREMENT BOARD, Respondent.
No. 20180010-CA
THE UTAH COURT OF APPEALS
May 23, 2019
2019 UT App 89
JUDGE KATE APPLEBY authored this Opinion, in which JUDGES RYAN M. HARRIS and DIANA HAGEN concurred.
Original Proceeding in this Court
Sean D. Reyes and Brent A. Burnett, Attorneys for Petitioner University of Utah
David B. Hansen and Erin G. Christensen, Attorneys for Respondent
Opinion
APPLEBY, Judge:
¶1 Marjean Searcy Nielsen and the University of Utah (University) seek judicial review of the Utah State Retirement Board’s (Board) final order, arguing that the Board erred in determining that Nielsen was not entitled to continue participating in Utah Retirement Systems’ Public Employee Noncontributory Retirement System (URS Plan). We conclude the Board’s determination was based on an erroneous interpretation and application of the law, and Nielsen has been substantially prejudiced by its error. We therefore set aside the Board’s order and instruct it to hold further proceedings consistent with this opinion.
BACKGROUND
¶2 In 2013, Nielsen had accrued 20.65 years of service credit in the URS Plan working with various participating employers. That year, she began working for the University in a position statutorily classified to participate in a non-URS retirement system (Alternate Plan). Because she had service credit in the URS Plan before the date of her University employment, she was entitled to a “one-time irrevocable election to continue participation” in the URS Plan.
¶3 Nielsen claims she accepted her position at the University in part because she knew she could continue participating in the URS Plan. Before beginning her new employment, Nielsen claims she telephoned the Utah State Retirement Office (URS) and asked if she needed to take any steps to maintain active participation in the URS Plan. According to Nielsen, a URS representative told her she was “good to go” and did not need to take any affirmative steps. Nielsen does not remember the name of the URS representative, and URS has no record of any such conversation. In any event, upon commencing her employment with the University, Nielsen did not affirmatively choose to participate in the Alternate Plan and—perhaps in reliance on her phone call with URS—she did not take any steps to continue participating in the URS Plan. Accordingly, the University enrolled her by default in the Alternate Plan.
¶4 Nielsen participated in the Alternate Plan for about two years, but claims not to have noticed she was not enrolled in the URS Plan until January 2015. Because Nielsen would lose a significant amount of retirement benefits by not participating in the URS Plan, she and the University discussed how she might re-enroll. An email dated January 28, 2015, from a University staff member said, “I have told [Nielsen] that she needs to resign from her position at the [University] then we will re-hire her in the same position after 32 days. At that time, she can enroll in the [URS Plan].”
¶5 In February 2015, Nielsen resigned from her University position. Thirty-six days later, the University rehired Nielsen to the same position from which she resigned. When she was rehired, Nielsen “signed an Irrevocable Retirement Plan Election to request participation [in the URS Plan].” The University certified to URS that, beginning the day Nielsen was rehired, she was eligible to participate in the URS Plan. About seven months after Nielsen was rehired, URS notified her she was not entitled to participate in the URS Plan. It explained that, because she made an “irrevocable election . . . to participate in [the Alternate Plan]” in 2013, she was not eligible to participate in the URS Plan while employed at the University.
¶6 Nielsen appealed URS’s decision to the Board’s executive director. The executive director upheld URS’s decision, explaining that when Nielsen “began employment with the
¶7 Nielsen filed a “Request for Board Action,” and the University was joined as a third-party respondent. Nielsen, the University, and URS each filed a motion for summary judgment. Nielsen and the University argued that, under the plain language of
¶8 After considering the undisputed evidence and the parties’ arguments, the Board granted summary judgment in favor of URS. The order began by noting that, under Utah Code
¶9 Nielsen and the University seek judicial review.
ISSUE AND STANDARD OF REVIEW
¶10 The issue before this court is whether the Board erred in determining that Nielsen was not entitled to make an election to continue participating in the URS Plan.1 This issue requires us to review the Board’s interpretation and application of
will grant relief only if we determine that Nielsen has been substantially prejudiced by the Board’s erroneous interpretation or application of the law. See
ANALYSIS
I. Statutory Interpretation
¶11 Nielsen argues that she is “entitled to continue her participation in [the URS Plan] based on the plain language of
¶12 In interpreting a statute, our “primary goal is to give effect to the legislature’s intent in light of the purpose that the statute was meant to achieve. The best evidence of the legislature’s intent is the plain language of the statute itself.” State v. Ogden, 2018 UT 8, ¶ 31, 416 P.3d 1132 (quotation simplified). Accordingly, “under our rules of statutory construction, we look first to the statute’s plain language to determine its meaning.” Whitaker v. Utah State Ret. Board, 2008 UT App 282, ¶ 15, 191 P.3d 814 (quotation simplified). “If the plain meaning of the statute can be discerned from its language, then we need not employ any other interpretive tools.” State v. Hunt, 2018 UT App 222, ¶ 17, 438 P.3d 1 (quotation simplified).
employment.”
¶14 The Board concluded, however, that
employees must make their one-time irrevocable elections, and because Nielsen made her first and only election in 2015, we conclude she is entitled to continue participating in the URS Plan.
¶15 First, the Board erred when it determined that the clause “who begins employment . . . on or after May 11, 2010,” means “the election must be made when beginning employment.” (Emphasis added.) The Board now clarifies its interpretation, arguing that “a regular full-time employee who begins employment” means “the election is available only . . . for a short period of time following and anchored to the hire date.”
¶16 We reject this interpretation because it is contrary to proper grammar and usage. See State ex rel. Div. of Forestry, Fire & State Lands v. Tooele County, 2002 UT 8, ¶ 13, 44 P.3d 680 (applying “elementary rules of punctuation and grammar . . . as an aid to ascertain the legislature’s purpose” (quotation simplified)); see also Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 140 (1st ed. 2012) (“Words are to be given the meaning that proper grammar and usage would assign them.”). In
¶17 Second, the Board erred in determining that the term “one-time irrevocable election” means “there is one limited period . . . to make the election.” “Absent a contrary indication, we assume that the legislature used each term advisedly according to its ordinary and usually accepted meaning.” Muddy Boys, Inc. v. Department of Commerce, 2019 UT App 33, ¶ 12 (quotation simplified). Because the term “one-time irrevocable election” is not defined in the relevant statute, “we must endeavor to determine
But “unambiguous language may not be interpreted to contradict its plain meaning.” Lorenzo v. Workforce Appeals Board, 2002 UT App 371, ¶ 11, 58 P.3d 873 (quotation simplified).
¶18 The dictionary defines “irrevocable” as “not possible to revoke: unalterable.” Merriam-Webster’s Collegiate Dictionary 640 (9th ed. 1986). “Unalterable” means “not capable of being altered or changed.” Id. at 1282. The word “one-time” means “occurring only once: one shot.” Id. at 824. And “one-shot” means “complete or effective through being done or used or applied only once” or “not followed by something else of the same kind.” Id.
¶19 Applying these definitions here, a one-time irrevocable election is an election that (1) may be made only once (one-time), and (2) may not be changed, altered, or revoked (irrevocable). But defining an election as “one-time irrevocable” does not, by itself, establish a restriction on when the election must be made. The Board argues that this interpretation renders meaningless the word “one-time.” It asserts that “[o]nce the irrevocable election is made, there would not be another opportunity to make it by virtue of its irrevocability because it would remain in force, unable to be revoked or altered.” According to the Board, because “‘one-time’ must add something to the meaning,” it “signifies that . . . there is one limited period, once an employee begins employment, to make the election.” We are not convinced.
¶20 To be sure, this court seeks to interpret statutes “to give meaning to all parts, and avoid rendering portions of the statute superfluous.” State v. Outzen, 2017 UT 30, ¶ 9, 408 P.3d 334 (quotation simplified). But adopting the Board’s interpretation would require us to ignore the plain meaning of unambiguous language and “effectively write into the statute words that are not there.” Whitaker v. Utah State Ret. Board, 2008 UT App 282, ¶ 18, 191 P.3d 814; see also State v. Rincon, 2012 UT App 372, ¶ 14, 293 P.3d 1142 (“[O]ur jurisprudence prohibits us from reading substantive terms into a statute that are not already there.”). In contrast, Nielsen argues that the term “one-time irrevocable election” means one-time irrevocable election, no more and no less. We see no reason to conclude that the term is intended to mean something different. See Scott v. Scott, 2017 UT 66, ¶ 26, 423 P.3d 1275 (explaining that courts “should discern what the legislature intended from the plain language of the text unencumbered by notions of what we think the legislature must have wanted the language to accomplish”).
¶21 If, as the Board argues, the legislature intended the election to be available only “at or for a short period of time following and anchored to the hire date,” “surely
¶22 In sum,
II. Substantial Prejudice
¶23 As explained above, the Board erred in determining that Nielsen was not entitled to elect to continue participating in the URS Plan. We will grant relief, however, only if Nielsen has been substantially prejudiced by the Board’s erroneous interpretation and application of the law.
CONCLUSION
¶24 The Board erred in determining that Nielsen was not entitled, under