Hoyer v. State

2009 UT 38
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
Ryan Hoyer and Richard F. Hoyer, 	No. 20080103
Plaintiffs and Appellants,
v.
State of Utah, Division of Wildlife
Resource; Jim Karpowitz; Richard
Ashcroft; Rudy Musclow; and Miles
Moretti (in their official capacity
as officials of the Utah Division 	F I L E D
of Wildlife Resources),
Defendants and Appellee. 	June 19, 2009
---
Third District, Salt Lake
The Honorable Anthony B. Quinn
No. 040916063
Attorneys: 	Stephen D. Spencer, Nathan Whittaker, Murray, for
appellants
Mark L. Shurtleff, Att’y Gen., Bridget K. Romano,
Asst. Att’y Gen., Salt Lake City, for appellee
---
NEHRING, Justice:
INTRODUCTION
¶1 	Ryan Hoyer and his father, Richard Hoyer, sued Utah
Division of Wildlife Resources for negligence. 	DWR seized
approximately sixty-five rubber boa snakes from Ryan Hoyer’s
home. 	After the snakes were seized, Ryan discovered that all but
eight of the snakes died while in the “care” of DWR. 	Through
their lawsuit, the Hoyers sought to recover damages for the death
of the snakes. 	DWR moved for summary judgment, which the
district court granted, and the Hoyers brought the appeal that we
decide today.

1 In 2008, the legislature renumbered Title 63 of the Utah
Code; because substantive changes were made, we cite to the
version in effect at the time the Hoyers commenced their suit.
No. 20080103 	2
BACKGROUND
¶2 	Ryan Hoyer is an amateur herpetologist whose research
focuses on the rubber boa (charina bottae). 	He assists his
father, Richard, who has studied the rubber boa for over forty
years. 	On January 9, 2004, DWR obtained a warrant to search
Ryan’s home as part of “Operation Slither,” an investigation
aimed at prosecuting the illegal possession of and commercial
trade in reptiles. 	Upon searching Ryan’s home, DWR seized a
computer, documents, and approximately sixty-five rubber boa
snakes. 	The snakes were taken to DWR offices in Salt Lake City
and were held as evidence in criminal proceedings against Ryan in
the Davis County and Clearfield City Justice Courts. 	Ryan was
first convicted in the Clearfield Justice Court. 	He then
exercised his right to a trial de novo in the Second District
Court and was again convicted of the unlawful possession of some
of the snakes. 	Ryan appealed and the Utah Court of Appeals
affirmed his conviction. 	Clearfield City v. Hoyer, 2008 UT App
226, ¶ 7, 189 P.3d 94 (affirming Ryan Hoyer’s conviction and
rejecting his challenge to the constitutionality of Utah Code
section 23-20-3 and administrative rule 58-1-4(B)).
¶3 	After DWR seized the snakes, Ryan offered to have his
father, Richard, travel to Utah to care for the snakes or to
arrange for expert care by a third party. 	DWR declined these
offers. 	On October 16, 2006, the date of Ryan’s district court
conviction and more than two and one-half years after DWR seized
the snakes, Ryan was granted the opportunity to inspect the
snakes at DWR offices pursuant to an order from the Clearfield
City Justice Court. 	At that time, he learned that all but eight
of the snakes had died.
¶4 	Upon learning of the death of the snakes, Ryan and his
father sued DWR, alleging negligence by DWR in caring for the
snakes, as well as violations of substantive and procedural due
process. 	On September 11, 2007, DWR filed a motion for summary
judgment. 	It argued that since the snakes were seized pursuant
to a judicial proceeding, DWR retained immunity under Utah Code
section 63-30d-301(5)(e) (2004) 1. 	The trial court granted the
motion on December 13, 2007. 	On January 3, 2008, the Hoyers
filed a petition for permission to appeal an interlocutory order.
DWR opposed the motion, arguing that the grant of summary
judgment was not an interlocutory order but a final order. 	On
January 17, the Hoyers filed a motion in the district court

3 	No. 20080103
seeking an extension of time to file a notice of appeal. 	The
Hoyers withdrew the petition for permission to appeal an
interlocutory order on January 24, and on January 25, they filed
a notice of appeal with the clerk of the district court. 	The
district court granted the motion and extended the Hoyers’
deadline for filing a notice of appeal to February 14. 	The
Hoyers did not refile or amend their previous notice of appeal.
¶5 	DWR moved for the summary dismissal of the Hoyers’
appeal with this court. 	DWR argues that since the Hoyers filed
their notice of appeal more than thirty days after the entry of
final judgment (December 13, 2007) and before the district court
granted their motion to extend the time to file, the appeal
failed to comply with Utah Rule of Appellate Procedure 4(a) and
(e) and, as a result, this court lacks subject matter
jurisdiction to consider the appeal. 	In response, the Hoyers
assert that while Utah Rule of Appellate Procedure 4(e) states
that “[n]o extension shall exceed 30 days past the prescribed
time,” nothing in the rule prevents us from hearing an appeal
when the notice of appeal was filed after the original deadline
but before a properly filed application to extend the time to
appeal under rule 4(e) was granted.
¶6 	DWR also filed a motion to strike portions of the fact
section of the Hoyers’ appellate brief. 	DWR contends that
because the Hoyers failed to support their factual assertions on
pages six and seven of their brief with citations to the record,
we should strike those portions pursuant to Utah Rule of
Appellate Procedure 24(k). 	In response to DWR’s motion to
strike, the Hoyers filed a motion for leave to amend their brief
along with proposed amendments.
STANDARD OF REVIEW
¶7 	“Summary judgment is appropriate only when there is no
genuine issue as to any material fact and the moving party is
entitled to judgment as a matter of law.” 	Crestwood Cove
Apartments Bus. Trust v. Turner, 2007 UT 48, ¶ 10, 164 P.3d 1247
(internal quotation marks omitted). 	When reviewing a grant of
summary judgment, we review the district court’s conclusions of
law for correctness and give them no deference. 	Grappendorf v.
Pleasant Grove City, 2007 UT 84, ¶ 5, 173 P.3d 166; Blackner v.
State, 2002 UT 44, ¶ 8, 48 P.3d 949. 	We review the facts in the
light most favorable to the nonmoving party, the Hoyers, and make
any reasonable inferences in their favor. 	Johnson v. Hermes
Assocs., 2005 UT 82, ¶ 2, 128 P.3d 1151.

No. 20080103 	4
ANALYSIS
¶8 	This appeal presents us with three issues: 	(1) whether
the Hoyers’ appeal was timely; (2) whether we should strike
portions of their brief for not properly citing to the record;
and (3) whether DWR is immune from suit because its actions fall
within the exception to the waiver of immunity for negligence
contained in section 63-30d-301.
I. 	THE HOYERS’ APPEAL WAS TIMELY
¶9 	The first issue before us is whether the Hoyers’ appeal
was timely. 	DWR argues that we lack subject matter jurisdiction
because the Hoyers filed their appeal more than thirty days after
the entry of final judgment (December 13, 2007) and before the
district court granted the motion to extend the time to file and
because they did not renew their notice of appeal after the
extension was granted. 	This appeal, DWR insists, fails to comply
with Utah Rule of Appellate Procedure 4(a) and (e). 	In response,
the Hoyers argue that the appeal is timely because nothing in the
language of the rule prevents this court from asserting
jurisdiction over an appeal filed after the time required by rule
4(a) but before the entry of an order extending the time to
appeal under 4(e).
¶10 	In analyzing this issue, we first turn to Utah Rule of
Appellate Procedure 4(a), which states,
In a case in which an appeal is permitted as
a matter of right from the trial court to the
appellate court, the notice of appeal . . .
shall be filed with the clerk of the trial
court within 30 days after the date of entry
of the judgment or order appealed from.
Utah Rule of Appellate Procedure 4(e) states,
The trial court, upon a showing of excusable
neglect or good cause, may extend the time
for filing a notice of appeal upon motion
filed not later than 30 days after the
expiration of the time prescribed by
paragraphs (a) and (b) of this rule. 	A
motion filed before expiration of the
prescribed time may be ex parte unless the
trial court otherwise requires. 	Notice of a
motion filed after expiration of the
prescribed time shall be given to the other

5 	No. 20080103
parties in accordance with the rules of
practice of the trial court. 	No extension
shall exceed 30 days past the prescribed time
or 10 days from the date of entry of the
order granting the motion, whichever occurs
later.
¶11 	Finally, Utah Rule of Civil Procedure 1(a) states that
the rules “shall be liberally construed to secure the just . . .
determination of every action.”
¶12 	Taken together, these rules authorize the district
court to grant an extension of the deadline for filing a notice
of appeal within the thirty days following the expiration of the
time for filing provided by rule 4(a) and forbid extensions of
more than thirty days from the date of entry of a judgment unless
the new deadline is within ten days of the granting of the
extension. 	Here, it is uncontested that the district court
granted the motion to extend the time to file a notice of appeal
within the thirty-day period after the rule 4(a) deadline passed.
The question we are faced with is whether the Hoyers’ notice of
appeal, which was filed after they moved for an extension of the
deadline but before the extension was granted, fulfilled their
filing requirement.
¶13 	The timing of the notice of appeal in this case is
similar to the situation in Nelson v. Stoker, 669 P.2d 390, 392-
93 (Utah 1983), where a premature notice of appeal was filed and
the final judgment merely formally entered the earlier announced
decision that the plaintiffs appealed from. 	In Stoker, the
defendants filed a notice of appeal following a minute entry
granting the plaintiffs’ motion for summary judgment.
Approximately one month later, the district court entered its
written Findings of Fact, Conclusions of Law and Judgment, and
the defendants did not file another notice of appeal. 	We held
that such a premature notice of appeal did not automatically
deprive this court of jurisdiction. 	Id. at 392.
¶14 	In Stoker, we reaffirmed our holding in Wood v. Turner,
419 P.2d 634, 635 (Utah 1966), where we stated,
Our Constitution assures the right of appeal
in all cases to the end that claimed errors
or abuses may be reviewed by another
tribunal. 	It is usually held that statutes
implementing the right of appeal are
liberally construed and applied in the
furtherance of justice; and that an

No. 20080103 	6
interpretation which will prevent that right
from being exercised is not favored. 	The
purpose of a notice of appeal is to advise
the opposite party that the appeal has been
taken and of the essentials requisite
thereto. 	If it does so in substance, it
should be given effect and mere technical
defects should not defeat the right of
appeal. 	This is in accord with the generally
desirable objective of not placing undue
stress on technicalities where others are not
adversely affected.
Wood, 419 P.2d at 635 (citations omitted).
¶15 	Although the Hoyers sought to extend the time to appeal
an order that was indisputably final, the invocation of this
court’s jurisdiction over the appeal was proper. 	The reasoning
that informed our holdings in Stoker and Wood strongly influence
the result here. 	The Hoyers’ notice of appeal advised DWR that
they were appealing and left no doubt about the order from which
the appeal was sought. 	Moreover, DWR would sustain no prejudice
because the sole purpose of granting the motion to extend the
time for filing the notice of appeal was to legitimize the notice
of appeal that the Hoyers filed after the deadline set by rule
4(a) but within the extended time granted by the trial court.
Requiring the Hoyers to file a second notice of appeal after the
motion to extend was granted would put “undue stress on
technicalities where others are not adversely affected.” 	Wood,
419 P.2d at 635.
¶16 	Interpretation of the federal equivalent to rule 4(e)
also persuades us that the district court’s extension of the
notice of appeal deadline operates to validate the Hoyers’
untimely notice of appeal. 	In Hinton v. City of Elwood, 997 F.2d
774, 777 (10th Cir. 1993), the plaintiff filed his notice of
appeal one day after the filing deadline. 	Mr. Hinton filed a
motion for extension of time within the period allowed by the
federal rule, and the district court granted him an extension.
Id. 	He did not file another notice of appeal after receiving
the extension. 	Id. at 777-78. 	The court held that “Rule 4(a)(5)
permits the district court’s approval of a timely motion to
extend to validate a prior notice of appeal” and that “to require
the filing of a new notice of appeal following a motion to extend
would amount to little more than ‘empty paper shuffling.’” 	Id.
at 778. 	The court noted that “the Federal Rules of Appellate
Procedure were [not] designed to impose such a hollow ritual on a
would-be appellant.” 	Id.

7 	No. 20080103
¶17 	We decline to endorse DWR’s contention that the Hoyers
were required to file a second notice of appeal after the
district court granted their motion for extension of time to file
the notice of appeal. 	Because requiring a second notice of
appeal would “amount to little more than empty paper shuffling”
and finding that the Hoyers’ notice of appeal was timely would
not prejudice DWR, we conclude that the Hoyers’ appeal was timely
filed pursuant to the district court’s grant of the motion to
extend the time for filing.
II. 	THE HOYERS’ AMENDMENT OF THEIR BRIEF IS ADEQUATE
¶18 	We next turn to the issue of whether we should strike
portions of the Hoyers’ brief for failure to cite to the record.
Because this court’s review is limited to the evidence contained
in the record on appeal, DWR insists that we should strike the
factual assertions that the Hoyers presented which lacked
citations.
¶19 	The Hoyers argue that there is no need to strike the
factual assertions from their brief because all the facts are
present in the record. 	Since they filed their proposed
amendments with their motion for leave to amend, they have not
imposed on this court the burden of determining whether the facts
are in the record. 	Granting DWR’s motion to strike in this case,
the Hoyers argue, would not serve to advance the administration
of justice and would be fundamentally unfair. 	We agree.
¶20 	We decline to grant DWR’s motion to strike portions of
the Hoyers’ brief for not properly citing to the record. 	It is
true that Utah Rule of Appellate Procedure 24(e) requires that
“[r]eferences shall be made to the pages of the original record
as paginated” and that rule 24(k) provides that “[b]riefs which
are not in compliance may be disregarded or stricken, on motion
or sua sponte by the court.” 	However, permitting the Hoyers to
amend would not result in prejudice to the court or DWR.
¶21 	Accompanying the Hoyers’ motion to amend are proposed
amendments, which consist entirely of the omitted citations to
the record about which DWR complains. 	These proposed amendments
do not saddle the court or DWR with “the expense and time of
performing the critical task of marshaling the evidence.” 	United
Park City Mines Co. v. Stichting Mayflower Mountain Fonds, 2006
UT 35, ¶ 26, 140 P.3d 1200. 	Nor do they introduce “evidence not
made part of the record on appeal.” 	Lovendahl v. Jordan Sch.
Dist., 2002 UT 130, ¶ 51, 63 P.3d 705. 	In light of these
considerations, we determine that the Hoyers’ error is not so

No. 20080103 	8
prejudicial to the administration of justice that it merits
striking sections of their brief. 	Since the Hoyers moved to
amend and submitted proposed changes along with the motion, we
grant their motion to amend and deny DWR’s motion to strike.
III. 	AN EXCEPTION TO THE WAIVER OF IMMUNITY FOR NEGLIGENCE
APPLIES TO THIS CASE UNDER UTAH CODE SECTION 63-30d-301(5)(e)
¶22 	The predominant issue in this case is whether DWR is
immune from liability for the death of the snakes under Utah Code
section 63-30d-301(5)(e). 	When interpreting a statute, we seek
to give effect to the purpose and intent of the legislature.
Grappendorf v. Pleasant Grove City, 2007 UT 84, ¶ 9, 173 P.3d
166. 	To that end, we begin by examining the statute’s plain
language. 	Blackner v. State, 2002 UT 44, ¶ 12, 48 P.3d 949. 	In
conducting a textual analysis, we consider the literal meaning of
each term and “‘avoid interpretations that will render portions
of a statute superfluous or inoperative.’” 	Grappendorf, 2007 UT
84, ¶ 9 (quoting Hall v. State Dep’t of Corr., 2001 UT 34, ¶ 15,
24 P.3d 958). 	Whenever possible, we interpret the plain language
to give effect to all the statutory terms. 	Lyon v. Burton, 2000
UT 19, ¶ 17, 5 P.3d 616.
¶23 	According to the statute, a governmental entity is
immune from liability if it can show the following: 	(1) the
activity giving rise to liability served a government function;
(2) governmental immunity is not waived for the activity; or
(3) if immunity is waived, then the activity falls within an
exception to the waiver. 	Utah Code Ann. § 63-30d-301 (2004); see
also Grappendorf, 2007 UT 84, ¶ 6; Blackner, 2002 UT 44, ¶ 10.
¶24 	Both parties agree that the first two parts of the test
are satisfied. 	The only issue before us is whether there is an
exception to the waiver of immunity for negligence. 	The
exception on which DWR relies provides that the government
retains immunity, its negligence notwithstanding, “if the injury
arises out of, in connection with, or results from: 	. . .
(e) the institution or prosecution of any judicial or
administrative proceeding, even if malicious or without probable
cause.” 	Utah Code Ann. § 63-30d-301(5)(e). 	DWR argues that it
is immune from liability because the death of the snakes “[arose]
out of, in connection with, or result[ed] from . . . the
institution or prosecution of any judicial or administrative
proceeding.” 	Id. 	We agree.
¶25 	As we have previously held, the term “arising out of”
as it is used in the Governmental Immunity Act reaches further
than “caused by.” 	Taylor v. Odgen City Sch. Dist., 927 P.2d 159,

9 	No. 20080103
163 (Utah 1996). 	The term is “very broad, general and
comprehensive” and is “commonly understood to mean originating
from, growing out of, or flowing from.” 	Id. (internal quotation
marks omitted); see also Barenbrugge v. State, 2007 UT App 263,
¶ 11, 167 P.3d 549, cert. denied, 186 P.3d 347 (Utah 2007). 	To
arise out of requires only that “there be some causal
relationship between the injury and the risk.” 	Taylor, 927 P.2d
at 163 (internal quotation marks omitted). 	We have found an
exception to the waiver of immunity for negligence when “but for”
the act covered by the exception, the harm would not have
occurred. 	Id. at 163 (holding that the school was immune for
injuries arising out of an assault when, “[b]ut for the assault,
[the child’s] injuries would not have occurred”). 	Against this
background, our inquiry focuses on whether but for the search
warrant and criminal proceedings against the Hoyers the death of
the snakes would not have occurred.
¶26 	The Hoyers ask us to abandon the test we laid out in
Taylor and adopt a narrower definition for “arising out of” as it
is used in section 63-30d-301(5)(e). 	For us to abandon the
Taylor standard, the Hoyers have to meet the “substantial burden
of persuasion” required for us to overturn our prior precedent
and disregard “the doctrine of stare decisis.” 	State v. Menzies,
889 P.2d 393, 399 (Utah 1994). 	They must convince us that the
Taylor standard was “clearly erroneous or conditions have changed
so as to render the prior decision inapplicable.” 	Id. at 399 n.3
(internal quotation marks omitted).
¶27 	The Hoyers argue that Taylor was incorrect because the
legislature did not intend that the Governmental Immunity Act
incorporate a “but-for” test in determining whether government
actions come within the exception to the waiver of immunity for
negligence. 	First, they argue that the “but-for” test renders
the waiver of immunity meaningless because the test will
encompass every government action. 	For example, they point out
that any government agency that traces its authority to enabling
legislation or that is financed by tax dollars could retain
immunity for any negligent action, since immunity is not waived
for “discretionary function[s],” Utah Code Ann. § 63-30d-
301(5)(a), and “the collection of and assessment of taxes,” id.
§ 63-30d-301(5)(h). 	But for the collection of taxes and the
enabling legislation, they argue, the government entity would not
have the power to act and therefore the exception to the waiver
of immunity for negligence applies. 	Second, they assert that the
legislature would not have waived immunity for negligence for
damage to property seized in forfeiture under section 63-30d-
301(2)(c) while retaining immunity for damage to property seized
as evidence under section 63-30d-301(5)(e).

No. 20080103 	10
¶28 	Finally, the Hoyers argue that the Taylor standard is
impractical because it would allow the government to retain
immunity even if law enforcement officers intentionally damage
property seized pursuant to a search warrant. 	To avoid this
disastrous result, the Hoyers urge us to narrowly construe
“arising out of” in the Governmental Immunity Act, as we have
done in other contexts. 	See, e.g., Viking Ins. Co. v. Coleman,
927 P.2d 661, 664 (Utah Ct. App. 1996) (holding that the term
“arising out of” in the insurance policy requires “more than
‘but-for’ causation, but less than legal, proximate cause”);
Commercial Carriers v. Indus. Comm’n of Utah, 888 P.2d 707, 712
(Utah Ct. App. 1994) (holding that an injury from fighting
“arises out of” employment if the fighting is “closely entangled”
with the employment). 	The Hoyers argue that the test for an
exception to the waiver of immunity should likewise require
something less than proximate cause and more than “but-for”
causation because the “but-for” test could provide immunity to
the government for all negligent acts.
¶29 	The Hoyers’ arguments, however, do not convince us that
we were “clearly erroneous” in adopting the Taylor standard or
that “conditions have changed so much as to render [Taylor]
inapplicable.” 	Menzies, 889 P.2d at 399 n.3. 	In response to the
Hoyers’ first contention, our case law shows that their
fear--that the government will be immune from all acts of
negligence--is unfounded. 	We have never held that the “but-for”
test allows the government to retain immunity under all
circumstances. 	See, e.g., Grappendorf, 2007 UT 84, ¶ 15 (holding
that atmospheric conditions do not come within the exception for
natural conditions on the land); Johnson v. Utah Dep’t of
Transp., 2006 UT 15, ¶ 39, 133 P.3d 402 (holding that the use of
orange barrels on the highway did not qualify as a discretionary
exception to the waiver of governmental immunity); Laney v.
Fairview City, 2002 UT 79, ¶ 1, 57 P.3d 1007 (holding that the
city could not escape liability under the Governmental Immunity
Act for negligently operating a power system because the
definition of “governmental function” as applied to municipal
power systems violated the Utah Constitution).
¶30 	The Hoyers likewise fail to convince us to abandon the
Taylor standard by arguing that the legislature would not have
waived immunity for negligent damage to property seized in
forfeiture but retained it for property seized under a search
warrant. 	Since the legislature enacted section 63-30d-301(2)(c)
to deal with negligent damage to property seized in forfeiture
and section 63-30d-301(5)(e) to deal with negligent damage
arising out of a judicial proceeding, it is clear to us that the

11 	No. 20080103
legislature has in fact waived immunity in one instance and not
the other. 	It is the plain language of the statute, not the
pursuit of symmetry, that controls our decision.
¶31 	Finally, the Taylor standard would not allow the
government to retain immunity even if law enforcement officers
intentionally damaged property seized pursuant to a search
warrant. 	The Governmental Immunity Act already provides that an
action may be brought against individuals in certain cases where
intentional damage is caused. 	Although “[a] plaintiff may not
bring or pursue any civil action or proceeding based upon the
same subject matter [that was found to be an immune action]
against the employee or the estate of the employee whose act or
omission gave rise to the claim,” a plaintiff may do so if “the
employee acted or failed to act through fraud or willful
misconduct.” 	Utah Code Ann. § 63-30d-202(3)(c)(i). 	This
convinces us that the Hoyers’ second concern--that government
employees may willfully destroy property and escape liability--is
unfounded.
¶32 	Looking to the language of the statute, it is apparent
that the legislature has manifested a clear intent to retain
immunity for actions carried out in connection with criminal
prosecutions, and it falls to us to give effect to the
legislature’s purpose. 	Grappendorf, 2007 UT 84, ¶ 9. 	As we have
previously held, the test for whether an exception to the waiver
of immunity for negligence applies is whether “but for” the
excepted act, the harm would not have occurred. 	Taylor, 927 P.2d
at 163. 	Applying the Taylor standard to the case before us, we
find there is a sufficient causal nexus between the death of the
snakes and the prosecution of the judicial proceeding against
Ryan Hoyer for the exception to the waiver of immunity for
negligence to apply. 	The uncontested facts show that DWR seized
the snakes from Ryan’s house pursuant to a search warrant, and
DWR kept the snakes and used photographs of them in the criminal
proceeding. 	Both the search warrant and the criminal proceeding
were judicial proceedings. 	But for these judicial proceedings,
DWR would not have had possession of or had to keep the snakes
and the snakes would not have died.
¶33 	The Hoyers argue that the death of the snakes did not
actually arise out of the prosecution of a judicial proceeding
because only photographs of the snakes, not the snakes
themselves, were actually introduced as evidence in the trial.
In their opinion, because DWR did not use the actual snakes in
the criminal proceeding, their death did not arise out of the
judicial proceeding.

No. 20080103 	12
¶34 	There is, however, no necessity provision in the
statute. 	As we have stated, when we interpret a statute, we seek
to give effect to the purpose and intent of the legislature.
Grappendorf, 2007 UT 84, ¶ 9. 	Nothing in the language of the
statute suggests that the legislature wanted to make immunity
contingent on an assessment of the necessity of the immune act to
the judicial proceeding. 	If the statute allows the government to
retain immunity for injuries arising out of judicial proceedings
even if “malicious or without probable cause,” Utah Code Ann.
§ 63-30d-301(5)(e), we see no reason to believe that the
legislature intended for us to insist on a showing of necessity
to the judicial proceeding before we recognize an exception to
the waiver of immunity for negligence. 	As we have previously
stated, “‘[T]his court cannot ignore or strike down an act
because it is either wise or unwise. 	The wisdom or lack of
wisdom is for the legislature to determine.’” 	Gottling v. P.R.
Inc., 2002 UT 95, ¶ 23, 61 P.3d 989 (quoting Masich v. U.S.
Smelting, Refining, & Min. Co., 192 P.2d 612, 625 (Utah 1948)).
Our inquiry is not what the legislature should do, but rather
what the legislature has done. 	Id. 	We therefore conclude that
the death of the snakes arose out of the institution or
prosecution of a judicial proceeding and that the exception to
the waiver of immunity for negligence applies.
CONCLUSION
¶35 	We find that the Hoyers’ appeal was timely filed
because the district court granted their motion for an extension
of time to file. 	We grant the Hoyers’ motion to amend their
brief and deny DWR’s motion to strike portions of the Hoyers’
brief for failure to cite to the record. 	We hold that DWR is
immune from suit for the death of the snakes under the exception
to the waiver of negligence for injuries arising out of the
institution or prosecution of judicial proceedings. 	We therefore
affirm the district court’s grant of summary judgment to DWR.
---
¶36 	Chief Justice Durham, Associate Chief Justice Durrant,
Justice Wilkins, and Justice Parrish concur in Justice Nehring’s
opinion.