I dissent. I believe that the majority has misinterpreted the relevant statutes and case law. The majority opinion orders the case dismissed based on lack of jurisdiction and therefore does not treat the merits of this appeal. Because I dissent on the jurisdictional holding, I will address the majority's analysis and deal with the issues raised by the parties on appeal. *Page 386
The trial court granted summary judgment to defendants based on its conclusions that the Utah National Guard is immune from suit, that plaintiffs' decedent was not in the service of the state when he was killed, and that plaintiffs were therefore not entitled to assert a claim under Utah Code Ann. § 39-1-59 (Supp. 1987) (amended 1988).1 Because the trial court's judgment was based only on a limited, undisputed portion of the facts, there are no findings that would bind this court to any standard stricter than correction of error.
In mid-August 1983, plaintiffs submitted a claim that was denied by the board of examiners, apparently on the grounds of governmental immunity and the decedent's "inactive duty training" status under federal supervision at the time of his accidental death. Plaintiffs then filed this action in the district court, seeking compensation under Utah Code Ann. § 39-1-59 (Supp. 1987), asking the court to declare their rights under that statute, and petitioning for a writ of mandate to compel the board of examiners to grant their claim.
I. Jurisdiction
The majority holds that filing this action was inappropriate procedurally and that jurisdiction over any further proceedings on plaintiffs' claims for relief is in the legislature only. This holding is incorrect for two reasons.First, on appeal plaintiffs have requested only declaratory relief. While the majority's analysis of the roles to be played by the board of examiners and the legislature under Utah Constitution article VII, section 13 and Utah Code Ann. §§ 63-6-1 to -17 may be generally correct as to plaintiffs' first claim (for compensation), it does not address the claim for declaratory relief. Similarly, the concerns over immunity and separation of powers expressed by the majority in its footnote 2, ante, may apply to plaintiffs' third claim (for mandamus), and possibly to the first claim, but are not relevant to a claim for declaratory relief.
A claim for declaratory relief is not now (if it ever was) among the class of claims committed to the board of examiners for determination. The board of examiners has power to "examine all claims against the state for the payment of . . . funds. . . ." Utah Code Ann. § 63-6-1 (1989) (emphasis added). The statute does not grant the board of examiners jurisdiction over claims for declaratory relief.2 Therefore, the board of examiners does not have jurisdiction over plaintiffs' claim for declaratory relief, and the provisions for appeal to the legislature do not apply.
Second, the judicial power of this state has been vested in this court by article VIII, section 1 of our constitution. The legislature cannot insulate the board of examiners' statutory interpretation from collateral judicial review, nor can it vest in itself the ultimate authority to interpret its own statutes (on appeal from the board of examiners). That result would violate the principle of separation of powers embodied in article V, section 1 of the Utah Constitution. The board of examiners made its decision on the basis of its interpretation of relevant statutes and apparently did not even consider the factual merits of the claim. Plaintiffs cannot be forced to "appeal" this decision to the legislature. Their suit for declaratory relief was the appropriate next step.
I turn now to the merits of the appeal. *Page 387
II. Immunity
In their motion for summary judgment and again on appeal, defendants argued that they are immune from suit under Utah Code Ann. § 63-30-10(1)(i) (1989), which is an express reservation of immunity from suit for an injury that "arises out of the activities of the Utah National Guard." This subsection reserves immunity from suit otherwise waived for "injury proximately caused by a negligent act or omission of [a government] employee." Utah Code Ann. § 63-30-10(1) (1989).This argument is defective for two reasons. First, another statutory waiver applied to the facts as set out in plaintiffs' complaint. Plaintiffs alleged all the elements of negligence in their complaint (although on appeal they appear to rely only on section 39-1-59). Utah Code Ann. § 63-30-7 (1989) specifically waives governmental immunity from suit for injury resulting from negligent operation of motor vehicles — exactly the type of negligence alleged by plaintiffs. Although this court has not yet construed sections 63-30-7 and 63-30-10 together, a reading of the Governmental Immunity Act as a whole, in light of the principle that specific statutory language usually prevails over more general language within the same act (negligent operation of a motor vehicle versus negligent acts in general), suggests that defendants may not have been immune from suit in this instance, because section 63-30-7 does not include any relevant restrictions on its waiver.
Second, at least two counts of plaintiffs' complaint cannot be characterized as claims for injury resulting from exercise of a governmental function, to which immunity generally applies. See Utah Code Ann. § 63-30-3 (1989). Plaintiffs sought declaratory relief and/or a writ of mandate directed at the board of examiners, requesting in both of these counts an interpretation of section 39-1-59 favorable to their claim. At oral argument on appeal, plaintiffs limited their request to declaratory relief. To that extent, this is not a suit for injury; it is a suit to force the board of examiners to apply plaintiffs' view of the law to their claim.
On appeal, plaintiffs also correctly point out that in a certain sense, section 39-1-59 is an exception to governmental immunity, if such immunity were to apply in their case. The gist of this argument is that section 39-1-59 provides a specific remedial process for claims by injured members of the Utah National Guard or the families of deceased members. This process of submitting a claim to the board of examiners is totally separate from the traditional tort suit in a court of law. Because the compensation process does not involve a suit, immunity should not apply to a subsequent suit directed not at the merits of the claim itself, but rather at interpretation of the law setting up the compensation process. See also discussion in part I, above.
On appeal, defendants argue for the first time that the board of examiners is immune from any suit (as opposed to the majority opinion's jurisdictional problem) regarding its disposition of plaintiffs' claim because such a disposition is a "discretionary action." Although defendants did not argue this point below and this court is therefore not obligated to address it, I do so because of its fundamental importance. This court has passed on this question previously. In State ex rel. Davis v.Cutler, 34 Utah 99, 95 P. 1071 (1908), we stated the following:
*Page 388 34 Utah at 107, 95 P. at 1073-74 (some emphasis added). Although that case preceded the Utah Governmental Immunity Act by almost fifty years, its reasoning is sound and still applicable. In that case, the court interpreted the relevant statute differently from the board of examiners and ordered the board to allow a claim that the board had rejected based on its own interpretation of the statute. 34 Utah at 107-08, 95 P. at 1074. As noted in part I above, the judicial power of this state has been vested in this court by article VIII, section 1 of the Utah Constitution. Allowing an administrative body to insulate its interpretation of the law from review by cloaking itself with immunity would violate that grant of power, as well as offend article V, section 1. Plaintiffs basically dispute the board of examiners' interpretation of section 39-1-59. The resolution of this question of statutory interpretation by the courts is not prohibited by governmental immunity.It is further urged that a writ of mandate should not issue against respondents [board of examiners] for the reason that in passing upon claims against the state they act in a quasi judicial capacity and must therefore be permitted to exercise the discretion usually exercised by such boards. That respondents do act in such a capacity, and that they may exercise discretionary powers in the discharge of their official duties in passing upon and in allowing or rejecting claims, does not admit of doubt. But this discretion is not one that may be arbitrarily exercised so as to prevent a claimant from seeking redress in the courts where purely questions of law are involved.
III. Interpretation of Section 39-1-59
At the time plaintiffs' claim arose, section 39-1-59 provided in part:If any officer or enlisted man of the National Guard is wounded, injured, or otherwise disabled, or is killed or dies of wounds or injuries received while doing military duty under orders of competent authority and not as a result of his own misconduct, he, his widow, children, or any dependent relatives, shall receive from the state such just and reasonable relief as the legislature shall deem proper. . . .
Utah Code Ann. § 39-1-59 (Supp. 1987) (emphasis added). Defendants erroneously conclude that the term "military duty" is defined by Utah Code Ann. § 39-1-37 (1988). That section provides that "[p]articipation in public ceremonies and parades and other duties in the service of the state shall be deemed military duties of the National Guard" and requires the state to pay Guard members for such services. Chapter 1 of title 39 does not have a definitions section. Section 39-1-37 plainly does not define "military duty," but merely adds to the scope of the term activities that might not ordinarily be thought of as "military duties." If this section were a definition, it would be grossly inadequate as it fails to mention, for example: "active duty, active duty for training, inactive duty training, or state active duty," see Utah Code Ann. § 39-1-36(1) (1988); "military duty in case of war, insurrection, invasion, tumult, riot, or public disaster, or imminent danger of any of these," see Utah Code Ann. § 39-1-1(2) (1988); "active service" under martial law,see Utah Code Ann. § 39-1-8 (1988); "[e]ncampments of the National Guard," see Utah Code Ann. § 39-1-52 (1988); and "service of the United States" at the call of the President,see Utah Code Ann. § 39-1-9 (1988). All of these activities certainly constitute "military duty." It would be absurd to allow a claim for a Guard member injured in a parade but disallow a claim for a Guard member injured on active duty.
The relevant inquiry in this case is whether the decedent was "doing military duty." By participating in federally supervised inactive duty training, plaintiffs' decedent was "doing military duty" within the meaning of section 39-1-59 at the time he was killed.
IV. Other Issues Raised
Plaintiffs raise two other points on appeal: that they have an unresolved contract claim against defendants based on the decedent's contract with the Utah National Guard and that any award of compensation should not be reduced by federal benefits received. As to the first point, although plaintiffs have waived on appeal any tort action permitted by Utah Code Ann. § 63-30-7 (1989), they have preserved their contract claim, and they are entitled to a declaration of whether sections 39-1-59 and 63-30-5 would allow such a claim to go forward. Because the trial court did not address the issue, I would not examine it here, but would order a remand for that purpose.As to the argument that any compensation awarded should not be reduced by federal benefits received, section 39-1-59 provided that compensation should be *Page 389 "such just and reasonable relief as the legislature shall deem proper. . . ." Utah Code Ann. §39-1-59 (Supp. 1987). The legislature has reserved to itself discretion to determine — probably in the process of approving claims submitted to it by the board of examiners — what amount of compensation would be "just and reasonable." I would not intrude on that discretion by laying down a rule on whether compensation should reflect other benefits received.
Defendants raise one additional point. They argue that Utah Code Ann. § 39-1-51 (1988) prohibits the state from compensating plaintiffs because they have received some federal benefits. This interpretation conflicts with the legislature's discretion, and in any event, I read that section to say only that the state shall not pay salary to Utah National Guard members for services for which the United States pays such salaries, as, for example, in the case of National Guard encampments, drills, and maneuvers ordered by the President. See Utah Code Ann. § 39-1-9(2) (1988).
V. Conclusion
This court should hold that the trial court had jurisdiction to entertain plaintiffs' claim for declaratory relief. We should also hold that plaintiffs' decedent was "doing military duty" when he was killed and remand this case to the trial court to consider the legal merits, if any, of plaintiffs' contract claim, with orders to resubmit plaintiffs' claim to the board of examiners for reconsideration in light of a proper interpretation of section 39-1-59 and the scope of immunity.STEWART, J., concurs in the dissenting opinion of DURHAM, J.