UPEA v. State

2006 UT 9
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
Utah Public Employees Association 	No. 20051121
and Roes 1 through 5,
Plaintiffs and Petitioners,
v.
F I L E D
State of Utah,
Defendant and Respondent. 	February 16, 2006
---
Third District, Salt Lake
The Honorable William W. Barrett
No. 050911548
---
Attorneys: 	Benson L. Hathaway, Alexander Dushku,
Matthew K. Richards, Stephen W. Geary, Salt Lake
City, for plaintiffs
Clark Waddoups, Heidi E. Leithead, David C. Reymann,
Cheylynn Hayman, Salt Lake City, for defendant
---
Petition for Emergency Relief
WILKINS, Associate Chief Justice:
¶1 	In its 2005 session, the Utah Legislature passed House
Bill 213 (H.B. 213), known as the “Unused Sick Leave at
Retirement Amendments.” 	Although the Legislature set the bill’s
effective date as January 1, 2006, we, at the request of
Petitioners, postponed the effective date of the amendments to
allow review of the constitutional issues presented in this case.
The Utah Public Employees Association (UPEA) and Roes 1 through 5
have asked us, on expedited review, to consider whether the
provisions of H.B. 213 result in an unconstitutional taking of
state employees’ vested property rights. 	We conclude that they
do not.

1 Utah Code Ann. § 67-19-14 (1979).
2 See id.
No. 20051121 	2
BACKGROUND
I. FACTUAL BACKGROUND
¶2 	For more than 25 years, the State has permitted its
agencies to adopt an incentive program intended to both reduce
the misuse of sick leave and to induce persons to work for the
State in spite of generally better private-sector wages and
benefits. 	This program originated in 1979 and has been subject
to periodic legislative change since its inception. 	The program
is currently titled the “Unused Sick Leave Retirement Option
Program” (the Program), and is found in Utah Code section 67-19-
14.2. 	Plaintiffs contend that the 2005 amendments to the
Program, contained in H.B. 213, effect an unconstitutional taking
of employees’ unused sick leave benefits by retroactively
devaluing already vested rights. 	The State counters that no
rights vest until the date of actual retirement, and therefore
the employees lack a constitutionally protected property interest
in those unused sick leave hours.
A. Statutory History of Utah Code section 67-19-14.2
¶3 	Our extensive research led to the discovery that by
statute, the Legislature has occasionally changed the menu of
benefits that could be acquired upon retirement in exchange for
accrued and unused sick leave over the past 25 years, and that
the Legislature has imposed varied restrictions on how those
hours may be redeemed. 	We requested additional briefing on this
statutory history because in their original briefs on appeal,
both parties misstated the statutory history.
¶4 	The most cursory reading of the statutory history
discloses that since 1979 the Legislature has empowered state
agencies to permit their respective employees to participate in
some form of unused sick leave trade-in program. 	At its
inception, the program permitted employees to “at the time of
retirement” convert unused sick leave hours “into paid-up health
and medical insurance.” 1 	Under this iteration of the statute, an
employee could convert 100% of accrued sick leave hours into
post-retirement health and medical insurance. 2
¶5 	Beginning in 1983, however, the Legislature changed the
language of the statute to require employees to accept a cash
pay-out for 25% of the accrued sick leave and medical and life

3 Utah Code Ann. § 67-19-14 (1983) (“The program shall
provide for an employee to be paid for 25% of unused accumulated
sick leave at the employee’s preretirement rate of pay . . . .
An employee . . . whose unused sick leave, after the 25% cashout
has been paid . . . may continue health and life insurance.”).
4 See Utah Code Ann. § 67-19-14.2 (1983), (1988), (1993),
(1998), (1999).
5 Utah Code Ann. § 67-19-14.2 (2004) (“[U]pon retirement an
employee is paid for up to 25% of the employee’s unused
accumulated sick leave at the employee’s rate of pay at the time
of retirement.” (emphasis added)).
6 More specifically, the Program allows each retiring
employee to receive continuing medical and life insurance
benefits for up to five years or until age 65, whichever occurs
first. 	As briefly mentioned above, under the post-2004 version
of the Program, upon retirement an employee may redeem unused
sick leave hours in two ways:
(1) 	An employee is paid for up to 25% of the unused accumulated
sick leave at the employee’s rate of pay at the time of
retirement. 	The employee may choose to have money from this
pay-out transferred directly to the deferred compensation
plan qualified under section 401(k) of the Internal Revenue
(continued...)
3 	No. 20051121
insurance for the remaining 75%. 3 	This distinction between the
sanctioned use of the 25% versus the 75% remained in effect until
1998 when the Legislature changed the statutory scheme again to
permit an employee to apply 25% to either a cash-payout or a
401(k) contribution. 4 	Then in 2004, legislative modifications
again allowed, but did not require, use of the entire 100% for
medical and life insurance benefits. 5
¶6 	Due to the perceived desirability of the offered
incentives, most state agencies have chosen to extend the offer
to their employees, and many state employees have accordingly
reserved unused sick leave for the purposes permitted by the
Program. 	Participating State employees accrue sick leave hours
at the rate of four hours per two-week pay period, and many have
reserved, or “banked,” a significant number of unused sick leave
hours. 	As the Program has been administered, upon retirement,
employees have been allowed to redeem these banked hours for
prepaid medical and life insurance coverage or for other forms of
cash-payouts. 	Generally, the Program has permitted employees to
exchange eight unused sick leave hours for one full month’s
coverage of health insurance. 6 	Additional statutory provisions

6(...continued)
Code sponsored by the Utah State Retirement Board.
(2) 	An employee may purchase additional continuing medical and
life insurance benefits, at the rate of one month’s coverage
per policy for eight hours of unused sick leave remaining
after:
(a) 	the 25% cash out of 401(k) payout, if any;
(b) 	and an additional mandatory deduction of 480 hours of
unused sick leave.
See Utah Code Ann. § 67-19-14.2(2) (2004).
7 Id. §§ 67-19-14.2(2), 67-19-14.2(4)(a).
8 See, e.g., Utah Admin. Code R477-8-7(6)(c) (2000) (“An
employee may elect to receive a cash payment or transfer . . . up
to 25 percent of his accrued unused sick leave at his current
rate of pay.” (emphasis added)).
9 The bill’s sponsor, Representative David Clark, introduced
the bill by stating that “[i]n fact, the purpose of this
legislation is to make clarifying changes only that are based on
current agency interpretations and implementations of practice.
There are no substantive changes that are meant or to be included
in this draft.” 	Audio recording: House Debate of H.B. 11, 55th
Leg., Gen. Sess. (Feb. 10, 2004), available at
http://le.utah.gov/asp/audio/index.asp?Sess=2004GS&Day=0&Bill=HB0
011&House=H (emphasis added).
No. 20051121 	4
permit employees to apply the remaining unused sick leave hours
to medical and life insurance coverage for spouses and other
dependents once the employee reaches the age of Medicare
eligibility. 7
¶7 	Our own research has also led to the discovery that
there have been widespread inconsistencies between the uses of
unused sick leave hour redemption permitted by the statute and
those allowed by state personnel regulations. 8 	In many
instances, the regulations and practices appear to have permitted
use of 100% of unused sick leave hours to be traded for medical
and life insurance prior to 2004, although this practice was
clearly unsupported by the statutory language between 1983 and
2004. In fact, legislative debate regarding the 2004 statutory
amendment was represented by the bill’s sponsors as intended to
bring the statute into accord with the widespread practice of
allowing retiring employees to apply all unused sick leave toward
paid-up medical and life insurance at the rate of eight hours to
one month of insurance. 9

10 Plaintiffs’ complaint asserts the following facts about
Roes 1 through 5:
(continued...)
5 	No. 20051121
B. H.B. 213: An Amendment to the Program
¶8 	Beginning in 2003, the Legislature expressed increasing
concern with escalating health insurance costs facing the State
under the Program. 	In a short span of five years, the costs to
the State for already retired employees nearly doubled.
Moreover, the State anticipated an additional increase in the
next ten years of more than 300%. 	The Legislature responded to
these concerns by modifying the Program in 2005 with H.B. 213.
In essence, this modification returns to the 1983-2004 statutory
scheme, although not the actual practice, which allowed only 75%
of the unused sick leave to be redeemed for medical and life
insurance. 	Under H.B. 213, the statutory scheme again limits the
use of the other 25%: banked sick leave falls into one of two new
programs, depending upon when the employee banked the sick leave
hours.
¶9 	“Program I” applies to all sick leave accrued prior to
January 1, 2006, and implements a gradual, five-year phase-out of
the guaranteed continuing medical and life insurance benefits
(and the corresponding 480-hour automatic reduction of unused
sick leave) that had been guaranteed under the original Program.
Program I also eliminates the original Program’s provision
permitting employees to cash-out up to 25% of their unused sick
leave and instead mandates that 25% be contributed to the
employee’s 401(k). 	Plaintiffs challenge the constitutionality of
the Program I modifications as substantially reducing the value
of what they believe to be a vested right to use all 100% of
banked sick leave in exchange for post-retirement medical and
life insurance at the rate of eight hours of leave to one month
of insurance coverage.
¶10 	“Program II”, on the other hand, applies to all unused
sick leave hours accrued after January 1, 2006. 	There is no
dispute between the parties that the State may implement program
changes with prospective effects. 	We find nothing erroneous in
that agreement, and as a result, we need not address the
provisions of H.B. 213 that apply to Program II.
C. The Parties
¶11 	Plaintiffs Roes 1 through 5 have cumulatively banked
more than 8,000 hours of unused sick leave prior to January 1,
2006. 10 	In banking this many hours of sick leave, Roe Plaintiffs

10 (...continued)
(1) Roe 1 is 62 years old and has worked for the State for over
30 years. 	He has accumulated over 1,800 hours of unused sick
leave and had planned to retire in 2006, but due to the changes
implemented with H.B. 213, he plans to retire before the bill
becomes effective. 	If he retires after the bill becomes
effective, he loses nearly 5 years of health insurance coverage
which would have been covered by his accrued unused sick leave.
(2) Roe 2 is 58 years old and has worked for the State for over
30 years. 	He plans on retiring upon turning 60 in 2007. 	Under
the Program, his accumulated unused sick leave provides him with
medical insurance until reaching 80 years and 10 months old.
Under H.B. 213, however, his accrued unused hours will provide
him with health insurance benefits only until he is 75 years and
7 months old, a difference of over 5 years of coverage.
(3) Roe 3 is 45 years old and has worked for the State for over
20 years. 	He has accumulated over 2,100 hours of unused sick
leave. 	The effectiveness of H.B. 213 decreases the value of his
unused sick leave coverage by 5 ½ years.
(4) Roe 4 is 51 years old and has worked for the State for over
20 years. 	Post-H.B. 213, Roe 4 loses 6 years of medical
coverage.
(5) Roe 5 is 40 years old and has worked for the State for 14
years. 	She has accumulated over 700 hours of unused sick leave
and has recently declined numerous employment offers from private
employers, specifically relying on the State’s health insurance
benefits from the pre-H.B. 213 Program.
No. 20051121 	6
took personal leave days rather than sick leave and often worked
when ill. 	Roes 1 through 5 testified that they had been told
that if they did not retire by December 16, 2005, they would not
be able to utilize all of their banked sick leave hours to
acquire medical and life insurance as they could have under the
2004 statutory scheme. 	Roes 1, 2, 4, and 5 are currently
employed with the State; Roe 3 retired on August 1, 2005. 	The
parties agree that a number of state employees retired prior to
December 16, 2005, to preserve the greater benefit allowed under
the 2004 language of the statute.
¶12 	Acting in its role as the labor association
representing the interests of current and former public employees
on matters pertaining to public employment, UPEA commenced this
suit along with Roes 1 through 5. 	The record reflects the
extensive communication between UPEA and its members after the

7 	No. 20051121
proposal of H.B. 213 and demonstrates that UPEA adequately
represents the interests of its members in this case.
II. PROCEDURAL BACKGROUND
¶13 	Plaintiffs UPEA and Roes 1 through 5 filed their
complaint on June 29, 2005, in the district court and
subsequently moved for a preliminary injunction to stay the
effective date of H.B. 213 pending resolution of their
constitutional challenge. 	The State opposed the injunction and
moved for a dismissal based on the allegations of the pleadings.
After briefing, the district court held evidentiary hearings on
November 7, 9, 16, and 18, 2005. 	On December 8, 2005, the
district court denied Plaintiffs’ motions for a preliminary
injunction and granted the State’s motion for a judgment in its
favor on the pleadings.
¶14 	Plaintiffs petitioned this court on December 13, 2005,
for an emergency stay on the effective date of the statutory
changes to allow an appeal of the district court’s decision.
Absent such an emergency stay, the window of opportunity for
employees otherwise in a position to realize the greater benefit
of exchanging 100% rather than 75% of their unused sick leave for
paid insurance upon retirement would have expired within three
days of the matter reaching us. 	We granted the emergency stay on
December 14, 2005, and enjoined, for at least until thirty days
after the final disposition of this appeal, the implementation of
H.B. 213’s provisions insofar as they amend Utah Code section 67-
19-14.2. 	The State filed a motion to vacate the order granting
emergency relief and requested oral arguments on the matter,
which we heard on December 15, 2005. 	The State argued that the
petition did not meet the necessary standards we impose for such
relief, but ultimately agreed to the ongoing injunction with the
request that the court act with all possible haste so that the
impending legislative session might deal with any necessary
revisions of the scheme. 	We denied the State’s motion to vacate
the order granting emergency relief, and to facilitate expedited
review of the matter on its merits, ordered Plaintiffs to perfect
their appeal on or before December 29, 2005, ordered expedited
briefing by the parties, and set oral argument on the merits for
January 10, 2006.
¶15 	Given the extremely short time allotted to each party
to present its arguments in the briefs, the submissions were
adequate. 	However, after oral argument, it became obvious to the
court that important and influential matters had not been
included in any briefing or argument by either party.
Consequently, on January 23, 2006, we requested additional

No. 20051121 	8
briefing. 	The parties had failed to address the complex history
of the statutory scheme and its relevance to the constitutional
challenge presented. 	Moreover, the parties insisted on staking
out diametrically opposing positions, apparently without any
thought of assisting the court in finding a principled, legally
correct solution to the problem created by the obtuse language
employed in the statute and the actual practice engaged in by the
State over decades. 	Unfortunately, although the court requested
the parties to address those questions that most concerned it,
the parties chose in their supplemental briefs to either discount
the importance of the issues raised by the court or failed to
shed any meaningful light on the questions.
¶16 	Ordinarily, in matters presented to the court, the
parties and the court have the benefit of thoughtful and thorough
analysis by both the parties and the lower court to expose and
resolve questions. 	In the case of an expedited review of this
sort, where the district court’s order had not even been reduced
to writing at the time the petition was presented to us for
action, and the time for preparation of the briefs, record, and
other supplemental materials necessary for our review has been
shortened to the point of practical elimination, the usual help
given to the court by the parties has been diminished.
¶17 	Nevertheless, it is the obligation of the court to
reach a conclusion on the questions presented. 	To not answer, or
to refuse to answer under such pressure of time, and with
inadequate help from the parties, is not an option. 	However,
since there is no other authority available to review and correct
our errors in judgment on the legal merits of the case presented
should we wrongly decide the question of constitutionality of the
statute, we are also required to do all that we can to discover,
consider, and incorporate those legal and statutory elements that
are critical to a correct decision. 	This we have labored to do.
¶18 	It is also important to note that in a republican form
of government, and as specified in our state constitution, the
judicial power of the State is vested in this court. 	Moreover,
judges must exercise that power only in accord with the law and
the facts of the case, without regard to pressures brought by the
other branches of government or special interests of any kind.
This, too, we have labored to do. 	If media reports are accurate
of threats by members of the Legislature to withhold salary
increases for all state employees generally, and judicial
salaries in particular, in an effort to force this court to act
more quickly or to reach a certain result, then those making such
threats fail to grasp the very core of the separation of powers
doctrine and the value to the people of our state of a truly

11 State v. Herrera, 1999 UT 64, ¶ 4 n.2, 993 P.2d 854; see
also Smith Inv. Co. v. Sandy City, 958 P.2d 245, 251 (Utah Ct.
App. 1998) (explaining that plaintiffs carry a “heavy burden” in
facial challenges).
12 481 U.S. 739, 745 (1987).
13 527 U.S. 41, 55 n.22 (1999) (quoting Michael C. Dorf,
(continued...)
9 	No. 20051121
independent and responsible judiciary. 	Further, the suggestion
in the briefing of the State that a decision unfavorable to the
State’s position might result in a negative impact on judicial
retirement benefits, among others, might also be perceived as an
unwise effort to appeal to personal interests, an effort that we
reject as disrespectful of our function and therefore of the
constitutional responsibilities of the judicial branch itself.
ANALYSIS
I. PLAINTIFFS MAY ASSERT A FACIAL CHALLENGE TO H.B. 213
¶19 	When challenging the constitutionality of a statute,
Plaintiffs carry the burden of establishing that the statute is
“unconstitutional either on its face or as applied to the facts
of the given case.” 11 	In this instance, because the statutory
changes set forth in H.B. 213 are not yet effective, the parties
may assert only a facial challenge. 	They concede that an as
applied challenge would be improper.
¶20 	The State contests the availability to Plaintiffs of a
facial challenge, relying on United States v. Salerno, a case in
which the United States Supreme Court required the challenger to
establish that “no set of circumstances exists under which the
[challenged] Act would be valid” in order to succeed. 12 	However,
in its reliance on Salerno, the State fails to acknowledge that
both the United States Supreme Court and this court have
discredited, at least to some extent, the application of the
Salerno standard. 	The facts of this case present circumstances
where Salerno is not the correct standard and need not be
followed.
¶21 	When state courts interpret their own state law, the
United States Supreme Court has not required adherence to
Salerno. 	The 	in City of Chicago v. Morales
clarified that the “assumption that state courts must apply the
restrictive Salerno test is incorrect as a matter of law;
moreover it contradicts ‘essential principles of federalism.’” 13

13 (...continued)
Facial Challenges to State and Federal Statutes, 46 Stan. L. Rev.
235, 284 (1994)).
14 	(“Whether or not it would be appropriate for
federal courts to apply the Salerno standard in some cases–-a
proposition which is doubtful--state courts need not apply
prudential notions of standing created by this Court.”).
15 See id.; see, e.g., Michael C. Dorf, Facial Challenges to
State and Federal Statutes, 46 Stan. L. Rev. 235 (1994).
16 947 P.2d 630, 645 (Utah 1997) (“[A] facial challenge to a
statute under the Eighth Amendment’s cruel and unusual punishment
provision requires a different standard than that applicable
under the due process clause at issue in Salerno.”).
17 Id. (rejecting Salerno to follow Gregg v. Georgia, 428
U.S. 153, 175 (1976)).
No. 20051121 	10
We agree. 	The Court explained that because state courts are not
bound by federal law when assessing the constitutionality of
state law under state constitutions, they need not follow the
narrow interpretation of facial challenges found in Salerno. 14
¶22 	The Morales Court also suggested, by referencing
scholarly articles on the matter, that in state law cases in
state courts, a more appropriate threshold for determining the
validity of facial challenges may simply exist in establishing
the substantive merits of the case–-the unconstitutionality of
the legislation. 15
¶23 	More importantly in this situation, we have rejected
the Salerno standard in some instances and have discredited its
universal application. 	For instance, in State v. Gardner, an
Eighth Amendment Cruel and Unusual Punishment Clause case, we
determined that the “[s]tate’s reliance on the due process
standard–-‘no set of circumstances exists under which the act
would be valid’ [from Salerno]--[was] . . . misplaced.” 16 	We
relied rather on the broader Supreme Court standard for cruel and
unusual punishment cases found in Gregg v. Georgia.17
¶24 	We have also declined to apply Salerno in takings
cases. 	In Smith Investment Company v. Sandy City, for example,
our court of appeals turned to the substantive law in determining

18 958 P.2d 245, 251 (Utah Ct. App. 1998) (relying on
Keystone Bituminous Coal Ass’n v. DeBenedictis, 480 U.S. 470
(1987)).
19 Id.
20 Keystone Bituminous, 480 U.S. at 493.
21 See, e.g., NJD, Ltd. v. City of San Dimas, 110 Cal. App.
4th, 1428, 1438-39 (2003) (describing the test for a valid facial
challenge as “straightforward” and based on the substantive law:
“whether the mere enactment of the legislation constitutes a
taking”); Shea Homes Ltd. P’ship v. County of Alameda, 110 Cal.
App. 4th 1246, 1266-67 (2003) (“A facial challenge questions only
‘whether the mere enactment of’ the land use regulation
constitutes a taking. 	The test to be applied in considering a
facial challenge is straightforward.”); Glisson v. Alachua
County, 558 So. 2d 1030, 1036 (Fla. Dist. Ct. App. 1990) (noting
that when a taking claim arises in the context of a “facial
challenge rather than in the context of a concrete controversy
. . . , the only issue is whether the mere enactment of the
regulation constitutes a taking. 	The test to be applied in
considering a facial challenge is relatively straightforward,
i.e., ‘[a] statute regulating the uses that can be made of
property effects a taking’”).
11 	No. 20051121
whether a facial challenge was proper. 18 	In other words, the
court looked specifically to the constitutionality of the
legislation affecting the challenger’s property. 19 	The court
held that if plaintiffs do not allege “any injury due to the
enforcement of the statute, there is as yet no concrete
controversy regarding the application of the specific provisions
and regulations. 	Thus, the only question before this court is
whether the mere enactment of the statutes and regulations
constitutes a taking.” 20 	This is an approach we endorse. 	Many
other courts in the United States have likewise relied on the
substantive merits of the takings claim in determining the
validity of a facial challenge. 21
¶25 	Plaintiffs’ facial challenge is validly brought under
both United States Supreme Court jurisprudence and our own case
law. 	As articulated by the Supreme Court in Morales, an
essential principle of federalism is that states have the

22 Colman v. Utah State Land Bd., 795 P.2d 622, 625 (Utah
1990) (quoting State ex rel. State Rd. Comm’n v. Dist. Court,
Fourth Judicial Dist., 94 Utah 384, 78 P.2d 502 (1937)).
23 Id. at 625; see also Smith v. Price Dev. Co., 2005 UT 87,
¶ 12, 125 P.3d 945.
No. 20051121 	12
authority to create their own constitutional law when reviewing
claims brought under their own state constitution. 	Here,
Plaintiffs have filed their takings claim under the Utah
Constitution in Utah state court. 	Consequently, we are not
required to follow Salerno’s “restrictive” test for facial
challenges, and we elect not to in this instance. 	Rather, we
conclude that because Plaintiffs UPEA and Roes 1 through 5 have
undisputed standing, the ultimate test for the propriety of
bringing a facial challenge lies in the substantive merits of the
claim. 	Thus, our analysis turns on the question of whether H.B.
213 constitutes an unconstitutional taking as alleged.
II. THE RETROACTIVE APPLICATION OF H.B. 213 DOES NOT CONSTITUTE
AN UNCONSTITUTIONAL TAKING
¶26 	The thrust of Plaintiffs’ claim is that the imposition
of the retroactive provisions of H.B. 213 constitutes an
unconstitutional taking of their vested property interest in the
banked unused sick leave. 	Article I, section 22 of the Utah
Constitution provides that “[p]rivate property shall not be taken
or damaged for public use without just compensation.” 	We have
previously defined what constitutes a taking under this
constitutional provision: “A ‘taking’ is ‘any substantial
interference with private property which destroys or materially
lessens its value, or by which the owner’s right to its use and
enjoyment is in any substantial degree abridged or destroyed.’” 22
Thus, to establish that H.B. 213 results in an impermissible
taking, Plaintiffs must demonstrate that they have a protectable
property interest in redeeming the banked sick leave hours for
medical and life insurance and that provisions of H.B. 213 would
result in the government’s taking of that property.
A. Plaintiffs Do Not Have a Property Interest in the Specific Use
of Their Unused Sick Leave
¶27 	“A claimant must possess some protectable interest in
property before [being] entitled to recover[y] under this
[takings] provision.” 23 	In this case, Plaintiffs argue that
exchanging their banked and unused sick leave hours for medical
and life insurance at the rate authorized by the 2004 version of
the statute is vested personal property to which they have a

24 Cf. Canfield v. Layton City, 2005 UT 60, ¶ 16, 122 P.3d
622; Buckner v. Kennard, 2004 UT 78, ¶ 32, 99 P.3d 842; Knight v.
Salt Lake County, 2002 UT App 100, ¶ 8, 46 P.3d 247; Hom v. Utah
Dep’t of Pub. Safety, 962 P.2d 95, 101 (Utah Ct. App. 1998).
25 See, e.g., Hansen v. Pub. Employees Ret. Sys., 246 P.2d
591 (Utah 1952); Newcomb v. Ogden City Pub. Sch. Teachers’ Ret.
Comm’n, 243 P.2d 941 (Utah 1952); Driggs v. Utah Teachers Ret.
Bd., 142 P.2d 657 (Utah 1943).
26 See Canfield, 2005 UT 60, ¶ 16; Buckner, 2005 UT 78,
¶ 32.
27 Hom, 962 P.2d at 100.
13 	No. 20051121
contractual right. 	As a general rule, public employment is
governed by statute and legislative policy, and is therefore
subject to change as thought best by the people, acting through
their legislative representatives. 24 	Nevertheless, the
modification of the terms of public employment are subject to two
common sense exceptions to the general rule: first, when a public
employee has a vested contractual interest in retirement
benefits; 25 or second, when the government entity has entered
into an express or implied contract by voluntarily undertaking
additional obligations beyond the relevant statutory
requirements. 26 	Plaintiffs argue that they have valid
contractual rights under both exceptions. 	We disagree.
1. Plaintiffs lack vested contract rights.
¶28 	Plaintiffs assert their interests under the first
exception, claiming that a public employee has a vested
contractual interest in exchanging 100% of the unused sick leave
hours for medical and life insurance at retirement. 	We disagree.
¶29 	Both parties argue that a public employee obtains
vested rights to retirement benefits “only when he has satisfied
all conditions precedent.” 27 	We agree that parties must satisfy
all conditions precedent before the rights vest. 	The pivotal
question is at what point state employees satisfy the requisite
conditions precedent to vest a protectable property interest in
using 100% of their unused sick leave hours for medical and life
insurance.
¶30 	As always, we first look to the plain language of the
statute to determine the conditions precedent. 	Based on the

28 For example, R477-7-6 of the Human Resource Management
Regulations Governing Sick Leave and Sick Leave Retirement
Benefits found in the Utah Administrative Code states that
“[u]pon retirement from active employment, an employee may be
offered a retirement benefit program, according to Section 67-19-
14(2).”
29 Utah Code Ann. § 67-19-14.2(b) (emphasis added).
30 See Utah Code Ann. §§ 49-12-201(1), -401.
No. 20051121 	14
statute and the accompanying regulations, 28 the State contends
that the statutory scheme unambiguously dictates that an employee
may not receive retirement benefits until that employee actually
retires. 	Plaintiffs, on the other hand, interpret the statutory
language to mean that any member who chooses to bank unused sick
leave has a vested property interest to use that sick leave for
medical and life insurance benefits at retirement. 	We disagree
with both parties’ statutory interpretations.
¶31 	Instead, we find the statutory language ambiguous as to
when an employee’s right to redeem the unused sick leave for
medical and life insurance vests. 	Section 67-19-14.2 states that
“[a]n agency may offer the []Program to an employee who is
eligible to receive retirement benefits in accordance with Title
49, Utah State Retirement and Insurance Benefit Act.” 29 	One
might expect Title 49 to provide direction on the conditions
precedent necessary for an employee to be “eligible to receive
retirement benefits.”
¶32 	Title 49, however, fails to clarify when an employee is
“eligible to receive retirement benefits.” 	The Title, with its
eight parts and forty-four statutory sections, speaks of “service
credits,” “benefits,” and “allowances” but fails to explain the
distinctions, including when an employee is eligible for each.
The State argues that retirement benefits are synonymous with
“allowances.” 	Plaintiffs, on the other hand, argue that if an
employee is earning service credits, an employee is eligible for
retirement benefits but not for allowances. 	Our research
indicates that neither retirement benefits nor allowances are
used to define or explain one another, and that employees are
generally eligible for service credits upon the effective date of
employment. 30
¶33 	Absent clear language regarding or an obvious
interpretation of “eligible to receive retirement benefits” in
section 67-19-49 and Title 49, we conclude that the statutory
language is ambiguous. 	It is clearly capable of more than one

31 See Utah Code Ann. §§ 49-12-401(1), -402; 49-13-401(1),
-402.
32 246 P.2d 591, 596 (1952).
33 Id.
15 	No. 20051121
logical meaning within the statutory scheme. 	For example, a
state employee might be “eligible to receive retirement benefits”
when she reaches the length of service required for retirement
and the age required for retirement, and submits her signed
notice of retirement to the appropriate office or official of
state government. 	Alternatively, one might be “eligible to
receive retirement benefits” when reaching the service and age
minimums, even if he continues to work. 	Additionally, one might
be considered “eligible to receive retirement benefits” when one
is employed in a full-time position by the State, in an agency or
position for which there exists a retirement program under the
extensive provisions of Title 49. 	While one or more of these
possibilities may seem more logical, useful, or fair than
another, such is not the question we face. 	Unable to accurately
discern from the naked language alone which of the possible
meanings is the meaning intended by the legislative drafters, we
have no choice but to examine other appropriate evidence of what
meaning is correct.
¶34 	Moreover, the plausible interpretations of the isolated
word “eligible” in both section 67-19-14.2 and Title 49 also
render the statutory language ambiguous. 	The State suggests that
one is “eligible” when one is “qualified” to receive an
allowance. 31 	UPEA, on the other hand, argues that because Title
49 never refers to “eligibility” in relation to allowance but
rather only in respect to service credits, “eligible to receive
retirement benefits” cannot be synonymous with “qualified to
receive an allowance.”
¶35 	Furthermore, our prior case law suggests that “eligible
to receive retirement benefits” is an ambiguous phrase. 	In
Hansen v. Public Employees Retirement System Board of
Administration, for instance, we struggled with how to define
eligibility for retirement benefits. 32 	We held there that an
employee “who has neither served the necessary years to qualify
for pension, nor attained the retirement age[] has no vested
rights in the pension or retirement system” 33 and that since the
plaintiff had “neither served the time requisite to entitle him
to retire and receive a pension, nor had he attained retirement
age,” he had no vested rights in a pension or the retirement

34 Id. at 596-97.
35 Utah Code Ann. §§ 49.12.201, 49.13.201, 49.14.201 (2004).
36 See Murphy v. Crosland, 886 P.2d 74, 80 (Utah Ct. App.
1994) (“[W]here there is an ambiguity or uncertainty in a portion
of a statute . . . and if it is reasonably susceptible of
different interpretations, the one should be chosen which best
harmonizes with its [the statute’s] general purpose.”).
37 Utah Code Ann. § 67-19-3(16) (2005) (“‘Total
compensation’ means salaries and wages, bonuses, paid leave,
group insurance plans, retirement, and all other benefits offered
to state employees as inducements to work for the state.”
(continued...)
No. 20051121 	16
system. 34 	This interpretation adds to the ambiguity because it
implies that an employee may be eligible to receive retirement
benefits upon attaining retirement age, serving a requisite
number of years, qualifying for retirement benefits, or some
combination thereof.
¶36 	Consequently, we conclude that section 67-19-14.2 lacks
a clear meaning for “eligible to receive retirement benefits”
because the language gives rise to several plausible
interpretations. 	As noted, it may refer to the time at which the
employee walks out of the building for the last time and actually
retires, or perhaps to the point when, after having worked for
the State the requisite number of years to receive contributions
to the Utah Retirement System, the employee chooses yet to
continue state employment. 	It may also mean the condition
employer
chose to participate in the described program and who is earning
service credits. 	Both the statutory language and Utah case law
are ambiguous as to whether employees’ property rights vest at
eligibility for retirement, actual retirement, or eligibility for
the payout.
¶37 	We accordingly turn to the available indications of
legislative intent to determine at what point all conditions
precedent are satisfied for the vesting of employees’ right to
redeem unused sick leave for medical and life insurance under the
Program. 36 	The legislative intent behind these particular
retirement benefits is clearly stated as “inducements to work for
the state” 37 and “to reduce sick leave abuse.” 38 	Logically, no

37 (...continued)
(emphasis added)).
38 Id. § 67-19-14 (1979); id. § 67-19-14 (1983); id. § 67-
19-14(1) (1988); id. § 67-19-14(1) (1993); id. § 67-19-14(1)
(1998); id. § 67-19-14(1) (1999).
17 	No. 20051121
incentive exists if, as the State urges, the agency may offer the
benefit only on the occasion of the employee leaving his or her
state job by retirement. 	A benefit not known until the very day
on which the employee can do nothing to earn it, is no incentive
at all.
¶38 	In fact, the undisputed evidence before the district
court was that state agencies routinely described the
availability of the sick leave conversion to prepaid medical and
life insurance at retirement to their employees for the very
purpose described in the statute: to encourage state employees to
remain state employed in the face of lower wages than available
elsewhere, and to encourage limited use of sick leave.
¶39 	Thus, we conclude that state agencies inviting
employees to participate in the Program during the course of
their state employment constituted an offer by the State.
¶40 	We also conclude, however, that the State’s offer was
to exchange the unused sick leave for a benefit upon retirement,
but not necessarily any particular benefit. 	The various changes
in the statutory scheme from 1979 to 2004 clearly demonstrate
that the Legislature intended to reserve the ability to modify
the menu of available benefits, and did not intend to bind the
State forever to redeem 100% of the unused sick leave hours for
any one use, and in particular not necessarily for medical and
life insurance.
¶41
legislative history, we are compelled to conclude that the State
intended employees to accept the offer to redeem the hours for
unused sick leave only upon retirement. 	For example, the
regulations promulgated pursuant to the statute provide that
“[u]pon retirement from active employment, an employee may be

39 Utah Admin. Code R477-7-6 (2005).
40 Buckner v. Kennard, 2004 UT 78, ¶ 34, 99 P.3d 842.
41 See id.
42 2004 UT 78.
43
44
No. 20051121 	18
offered a retirement benefit program, according to Section 67-19-
14.2.” 39 	We can only interpret this to mean that at the time of
retirement an employee is offered a choice of the manner in which
the hours may be exchanged for other benefits of value. 	Those
choices can only be from those delineated in the then-current
statutory version of the Program. 	Only at that point may the
employee accept that particular offer to redeem the hours in the
manner set forth in the current statute. 	Moreover, as a matter
of ordinary contract law, until accepted, the State’s offer is
subject to unilateral modification. 	Thus, a property interest in
accumulated sick leave hours for the specific purpose of
exchanging them for paid medical and life insurance cannot vest,
as a matter of law, until the employee retires. 	The result is
that the first exception to the general rule is of no consequence
in our analysis of Plaintiffs’ claims.
2. The State undertook a voluntary obligation.
¶43 	Nevertheless, a contract in a public employment setting
may also arise if the State “voluntarily undertake[s] an
additional duty that it would otherwise have no obligation to
perform.” 40 	Plaintiffs argue that their contractual rights exist
because State agencies did exactly that in offering the Program
to their employees.
¶44 	The State, on the other hand, argues that in permitting
agencies to choose whether to offer employees the benefits of the
Program, those agencies failed to undertake an additional
obligation beyond statutory terms, 41 since the statutory scheme
authorized the offer. 	The State misinterprets prior Utah cases
on the issue. 	The cases to which the State cites, namely,
Buckner v. Kennard, 42 Knight v. Salt Lake County, 43 and Hom v.
Utah Department of Public Safety, 44 deal specifically with
changes to prospective compensation, hiring procedures, or other
employment structures controlled only by statute and which the
State required the involved agencies to adopt. 	The statutory

45 Buckner, 2004 UT 78, ¶ 34.
46 Utah Code Ann. § 67-19-14.2(1)(b).
47 See Utah Code Ann. § 67-19-14.2 (the title to the section
includes “Payout at Retirement”).
19 	No. 20051121
terms at issue in those instances were not regarding additional
duties that the agencies “would otherwise have no obligation to
perform.” 45
¶45 	With the Program at issue in this case, however, state
agencies had no obligation to offer the incentives found in Utah
Code section 67-19-14.2 to their employees. 	Instead, the
Legislature specifically constructed the statute to state that
“[a]n agency may offer the Unused Sick Leave Retirement Option
Program” to its employees. 46 	Therefore, in choosing to offer the
Program, state agencies volunteered to undertake the additional
duty of providing enhanced retirement benefits in exchange for
the employee taking fewer sick days and for staying with the
State until retirement. 	This constituted a valid offer to redeem
unused sick leave hours upon retirement.
¶46 	Nevertheless, the critical question remains at what
point in time employees are able to accept the offer. 	As
described above, employees may not accept this offer until
retirement. 	The State’s offer of various pay-out options,
specifically, the 401(k), cash-out, or medical and life insurance
coverage, can only be accepted when employees retire. 	At that
point, an employee chooses how to redeem accumulated unused sick
leave from the options then available, and the State is bound.
Until that time, however, the State retains the ability to modify
terms of the offer as needed or prudent. 47
¶47 	Therefore, although the State voluntarily undertook an
obligation to employees who bank unused sick leave to allow those
employees to eventually redeem unused sick leave hours for value,
the State’s offer does not lock in the method of pay-out until
retirement. 	Consequently, it cannot be said that the State
voluntarily undertook an obligation to permit employees to redeem
100% of their unused sick leave hours for medical and life
insurance. 	Absent this specific voluntary obligation by the
State, employees have no protectable property interest in
redeeming all or any of those hours for medical and life
insurance until they reach actual retirement and make the
appropriate election from among the then-available options.

48 See Colman v. Utah State Land Bd., 795 P.2d 622, 625
(Utah 1990).
No. 20051121 	20
B. We Need Not Address Whether H.B. 213 Materially Lessens the
Value of Plaintiffs’ Property Interest
¶48 	Because the ability to redeem 100% of the banked unused
sick leave hours for a particular purpose does not vest until the
employee makes a choice at the time of retirement, the option of
using them all for paid insurance is not personal property and
cannot be taken by the State. 	Consequently, we need not consider
the second prong of the takings analysis, namely, whether H.B.
213 substantially interfered with the unused sick leave hours in
a manner that destroyed or materially lessened their value or
abridged or destroyed employees’ use or enjoyment of them in any
substantial degree. 48 	Because Plaintiffs lack a constitutionally
protected property interest in redeeming 100% of their unused
sick leave hours for medical and life insurance, their takings
claim fails.
CONCLUSION
¶49 	Plaintiffs UPEA and Roes 1 through 5 have properly
raised a facial challenge to H.B. 213. 	Their facial challenge
fails on the merits because implementation of H.B. 213 does not
result in an unconstitutional taking under the Utah Constitution.
Plaintiffs have no present property interest in redeeming their
unused sick leave hours for medical and life insurance because
(1) although the State voluntarily offered to undertake a
contractual duty with them, State employees cannot accept the
offer specifying the form of redemption until retirement, and (2)
Plaintiffs contractual rights cannot vest until that offer has
been accepted. 	Further fact finding regarding a vital state
interest and a substantial substitute are unnecessary because
Plaintiffs lack a constitutionally protected property interest.
Thus, we conclude that H.B. 213 does not effect a taking of
property and is therefore constitutional under article I, section
22 of the Utah Constitution.
¶50 	The decision of the trial court is affirmed. 	The stay
and injunction imposed by this court is vacated, effective 30
days from the date of this opinion. 	Further relief is denied.
---

21 	No. 20051121
¶51 	Chief Justice Durham and Judge Greenwood concur in
Associate Chief Justice Wilkins’ opinion.
¶52 	Having disqualified himself, Justice Durrant does not
participate herein; Utah Court of Appeals Judge Pamela T.
Greenwood sat.
---
PARRISH, Justice, concurring:
¶53 	I agree with the lead opinion’s conclusion that H.B.
213 does not effect an unconstitutional taking of plaintiffs’
property. 	I write separately to express my opinion that state
employees had no vested right to exchange their accrued sick
leave for health insurance because the plain language of the 2004
version of the Unused Sick Leave Retirement Option Program
(“Option Program”), Utah Code Ann. § 67-19-14.2, limited
participation in the program to those employees eligible to
receive retirement benefits. 	Accordingly, state agencies could
offer the program only to those employees who had elected to
retire. 	Further, were I to assume the existence of a statutory
ambiguity with regard to the vesting issue, I would conclude that
extrinsic evidence of legislative intent and relevant principles
of statutory construction dictate the same result.
¶54 	Plaintiffs raise only one claim on appeal, a facial
challenge to the constitutionality of H.B. 213. 	Resolution of
their facial challenge hinges on whether they can establish that
they had a vested right to exchange 100% of their accrued sick
leave for insurance. 	If so, H.B. 213 effects an unconstitutional
taking of their property. 	If not, their challenge fails.
¶55 	As the lead opinion correctly states, because the terms
of public employment are generally governed by statute and
legislative policy, they are subject to legislative change. 	We
have recognized only two exceptions pursuant to which a public
employee may acquire a contractual interest in employment
benefits. 	The first is when a governmental employer has entered
into an express or implied contract by voluntarily undertaking
obligations beyond those provided by statute. 	See Canfield v.
Layton City, 2005 UT 60, ¶ 16, 122 P.3d 622. 	The second is when
an employee acquires a vested contractual interest pursuant to
the terms of the operative statute. 	See Hansen v. Pub. Employees
Ret. Sys., 246 P.2d 591, 595–96 (Utah 1952). 	I will address each
exception in turn.

No. 20051121 	22
I. 	PLAINTIFFS CANNOT ESTABLISH ANY PROPERTY INTEREST
PURSUANT TO THE VOLUNTARY UNDERTAKING EXCEPTION
¶56 	To give rise to a protectable property interest under
the voluntary undertaking exception, the voluntary undertaking
must stem from an agreement that alters or adds to the statutory
terms and conditions of public employment. 	See Buckner v.
Kennard, 2004 UT 78, ¶ 34, 99 P.3d 842. 	This exception appears
inapplicable in a case such as this where plaintiffs have raised
only a facial challenge to the governing statute.
¶57 	As the trial court found, the plaintiffs in this case
rested their claims entirely on the statutory language.
Plaintiffs presented no evidence and the trial court made no
finding of any obligation or undertaking by state agencies apart
from the decision of the agencies to participate in the Option
Program as set forth in the governing statute. 	While agency
participation in the Option Program was voluntary, the terms of
that participation were indisputably statutory. 	Because
plaintiffs lodge only a facial challenge to H.B. 213, their
voluntary undertaking argument is entirely dependent upon the
statutory language, which, as discussed below, dictates that any
offer of program benefits may occur only upon retirement.
II. 	THE PLAIN STATUTORY LANGUAGE DOES NOT CREATE ANY
VESTED RIGHTS IN STATE EMPLOYEES UNTIL THEY ELECT TO RETIRE
¶58 	I believe that the statutory language is determinative
in resolving plaintiffs’ claim that they had a vested right to
exchange 100% of their unused sick leave for health insurance.
In prior cases involving the claims of public employees, we have
reasoned that the rights at issue “rest largely upon the language
of the particular statute” involved. 	Driggs v. Utah Teachers
Ret. Bd., 142 P.2d 657, 663 (Utah 1943); see also Newcomb v.
Ogden City Pub. Sch. Teachers’ Ret. Comm’n, 243 P.2d 941, 944
(Utah 1952) (“[T]he rights of pensioners must be determined by
the purpose and language of the retirement act.”).
¶59 	When construing statutory language, this court adheres
to the well-accepted rule that we do “‘not look beyond the plain
language of [the] provision unless we find some ambiguity in
it.’” 	State v. Ostler, 2001 UT 68, ¶ 7, 31 P.3d 528 (alteration
in original) (quoting In re Worthen, 926 P.2d 853, 866 (Utah
1996)); Wilcox v. CSX Corp., 2003 UT 21, ¶ 8, 70 P.3d 85. 	Only
upon finding ambiguity may we “seek guidance from the legislative
history and relevant policy considerations.” 	Ostler, 2001 UT 68,
¶ 7 (internal quotation marks omitted). 	In other words, we may

23 	No. 20051121
not resort to extrinsic aids of interpretation unless we first
find ambiguity in the statutory text. 	See id.
¶60 	Like a contract, a statute is ambiguous when it may
reasonably “be understood to have two or more plausible
meanings.” 	Alf v. State Farm Fire & Cas. Co., 850 P.2d 1272,
1274 (Utah 1993) (internal quotation marks omitted) (defining
ambiguity in the context of a contract); Saleh v. Farmers Ins.
Exch., 2006 UT 1, ¶ 15, __ P.3d __. 	But determining whether
there are two or more plausible meanings depends not only on the
text of the particular provision at issue, but also on the text
of the statute as a whole. 	See Morton Int’l v. Auditing Div. of
the Utah State Tax Comm’n, 814 P.2d 581, 591 (Utah 1991).
Indeed, “[w]e ‘read the plain language of the statute as a whole,
and interpret its provisions in harmony with other statutes in
the same chapter and related chapters.’” 	State v. Barrett, 2005
UT 88, ¶ 29, 127 P.3d 682 (quoting Miller v. Weaver, 2003 UT 12,
¶ 17, 66 P.3d 592). 	As a result, a statute susceptible to
competing interpretations may nevertheless be unambiguous if the
text of the act as a whole, in light of related statutory
provisions, makes all but one of those meanings implausible. 	Id.
When viewing the act as a whole does not eliminate duplicative
yet plausible meanings, the statute is ambiguous, and we may
resort to extrinsic interpretive tools to resolve the ambiguity.
See Ostler, 2001 UT 68, ¶ 7.
¶61 	As the lead opinion ably explains, the statutory
iterations of the Option Program from 1983 through 2004 all
required that employees convert at least 25% of their accrued
sick leave to cash or a 401(k) contribution. 	In all respects
material to this appeal, these prior iterations are therefore
indistinguishable from H.B. 213. 	As a result, only the 2004
iteration of the Option Program could have conceivably vested in
state employees the right to convert to health insurance the
first 25% of their accrued sick leave. 	I therefore confine my
analysis to the 2004 statute.
¶62 	The 2004 statute provides that “[a]n agency may offer
the [Option Program] to an employee who is eligible to receive
retirement benefits in accordance with Title 49, Utah State
Retirement and Insurance Benefit Act.” 	Utah Code Ann.
§ 67-19-14.2(1)(b) (2004). 	The lead opinion concludes that this
language is ambiguous because it could be construed to apply to
(1) all regular, full-time state employees; (2) all state
employees who have reached the requisite age and years of
employment necessary to retire under a particular retirement
system; or (3) retiring employees. 	I disagree and conclude that
the statutory language effectively precludes agencies from even

No. 20051121 	24
offering the Option Program until an employee has elected to
retire.
¶63 	My analysis necessarily starts with “the usual and
natural meaning” of the operative terms of the statute. 	See
Saleh, 2006 UT 1, ¶ 17 (internal quotation marks omitted).
“Offer” is a verb meaning “an instance of presenting something
for acceptance.” 	Black’s Law Dictionary 1113 (8th ed. 2004).
“Eligible” is an adjective referring to one who is “legally
qualified for a[] . . . privilege, or status,” or “[f]it and
proper to . . . receive a benefit.” 	Id. at 559. 	“Receive” is a
verb meaning “to come into possession of.” 	Merriam-Webster’s
Collegiate Dictionary 975 (10th ed. 1998). 	And because the
statute is phrased in the present tense, it allows an agency to
offer the “Program to an employee who is eligible to receive
retirement benefits,” not to an employee who may become or who
could be eligible to receive benefits some time in the future.
Utah Code Ann. § 67-19-14.2(1)(b) (emphasis added). 	Moreover,
subsection (2) of the statute specifically states that an
employee may purchase continuing medical and life insurance
benefits “upon retirement.” 	Id. § 67-19-14.2(2).
¶64 	The commonly understood definitions of these operative
terms dictate that state agencies could present the Option
Program for acceptance only to those employees who were currently
legally qualified to come into possession of retirement benefits.
This renders implausible the interpretation urged by plaintiffs,
that the language allowed state agencies to offer the Option
Program to all regular, full-time employees. 	It also undercuts
the suggestion that the statute could plausibly be interpreted to
allow agencies to offer the Option Program to employees with the
requisite age and years of service necessary to enable them to
retire but who have not elected to do so. 	Indeed, it is
implausible to suggest that an employee who has not yet elected
to retire could be eligible to receive (as opposed to be eligible
to apply for) benefits. 	I therefore conclude that the text of
section 67-19-14.2 prevents an agency from offering the Option
Program until an employee elects to retire.
¶65 	The majority rejects this interpretation as implausible
because it believes such an interpretation is inconsistent with
the stated legislative purpose of the program, which is to induce
employees to reduce sick leave abuse. 	I find no such
inconsistency. 	The fact that the program did not vest employees
with the contractual right to exchange 100% of their accrued sick
leave for health insurance does not necessarily mean that it
could not operate as an effective incentive program.

25 	No. 20051121
¶66 	Individuals routinely assume some degree of risk in
making life decisions, and there is no reason why employees would
necessarily require an ironclad guarantee before being motivated
to reduce sick leave abuse. 	Nearly all aspects of compensation
and retirement benefits in both the public and private sectors
are offered as inducements to accept employment. 	But that does
not mean that those benefits become immutable contractual
guarantees as soon as an employee begins work or that any
employee can reasonably expect that an employer will be offering
the same benefits decades into the future. 	This principle is
aptly illustrated by the fact that the pre-2004 iterations of the
Option Program did not even include the option of exchanging the
first 25% of accrued sick leave for health insurance. 	It is also
illustrated by the majority’s tacit assumption that the statutory
purpose of reducing sick leave abuse is fulfilled by its
construction of the statute--a construction that in practical
effect differs not at all from the interpretation urged by the
State and adopted by me.
¶67 	My plain language construction of the Option Program is
bolstered by the language of title 49 of the Utah Code, which is
referenced in the 2004 statute. 	Title 49 of the Utah Code
consists of the Utah State Retirement and Insurance Benefit Act.
Chapter 11 of that act governs the administration of the system,
while chapters 12 through 21 establish various retirement systems
for specific classes of public employees. 	Although some of the
specific provisions of these various systems differ, the
statutory structure of each follows a similar pattern, and each
is consistent with my conclusion that eligibility to receive
retirement benefits can occur only when an employee elects to
retire.
¶68 	First, each of the various systems distinguishes those
employees who are merely eligible to participate in the
retirement system from those employees who are eligible to
receive an allowance from the system. 	Membership in the system
is available to all “regular full-time employee[s] of a
participating employer” and begins on “the effective date of
employment.” 	Utah Code Ann. § 49-12-201 (2002); see, e.g., id.
§§ 49-13-201, 49-14-201 (Supp. 2005). 	When the legislature
referred to the class of employees eligible for participation in
one of the state retirement systems, it used the phrase “eligible
for service credit.” 	E.G., Utah Code Ann. § 49-12-201. 	Because
eligibility for service credit differs from eligibility to
receive retirement benefits, I reject plaintiffs’ contention that
the phrase “eligible to receive retirement benefits” could
plausibly be interpreted to refer to all regular, full-time state
employees.

No. 20051121 	26
¶69 	I find the provisions of title 49 addressing
eligibility to receive allowances particularly helpful. 	For
example, Utah Code section 49-12-401 (2002) provides:
(1) A member is qualified to receive an
allowance from this system when:
(a) the member ceases actual work
for a participating employer in this
system before the member’s retirement
date and provides evidence of the
termination;
(b) the member has submitted to the
office a notarized retirement
application form that states the
member’s proposed retirement date; and
(c) one of the following conditions
is met as of the member’s retirement
date:
(i) the member has accrued
at least four years of service
credit and has attained an age of
65;
(ii) the member has accrued
at least ten years of service
credit and has attained an age of
62 years;
(iii) the member has accrued
at least 20 years of service credit
and has attained an age of 60
years; or
(iv) the member has accrued
at least 30 years of service
credit.
Each of the various retirement acts comprising title 49 contains
a similar provision. 	See, e.g., id. §§ 49-13-401, 49-14-401
(Supp. 2005), 49-15-401 (2002).
¶70 	At first glance, because these provisions use the
phrase “qualified to receive an allowance,” they do not appear to

1 Plaintiffs have never urged the interpretation of the 2004
statute articulated by Justice Nehring, a fact somewhat at odds
with Justice Nehring’s suggestion that his interpretation is
driven by the “plain” language of the statute.
27 	No. 20051121
clarify the meaning of the phrase “eligible to receive retirement
benefits” as used in section 67-19-14.2. 	But further examination
of title 49 demonstrates that the legislature used the terms
“allowance” and “retirement benefits” interchangeably. 	See,
e.g., id. §§ 49-12-402(2) (Supp. 2005) (the “Option One benefit
is an annual allowance”), 49-12-405, (4) (referring to Option
Three allowance as “[s]ervice retirement benefits” and stating
that “benefits payable under this section are retirement
benefits”), 49-11-401(3)(b) (“[a]n allowance or other benefit”),
49-11-405(3) (2002) (referring to a “member’s allowance” as
“benefit”). 	Moreover, the notion of being qualified or eligible
to actually “receive” an allowance or benefit is common to both
section 67-19-14.2 and section 49-12-401. 	They therefore support
my conclusion that those employees who are “eligible to receive
retirement benefits” must have satisfied the conditions
specified by section 49-12-401 for receipt of an allowance.
¶71 	Justice Nehring opines that my conclusion in this
regard is undercut by other provisions of title 49. 	In fact,
however, much of his analysis improperly draws on sources
extrinsic to the statutory language. 	He suggests that the phrase
“eligible to receive retirement benefits” is distinct from the
phrase “qualified to receive an allowance” by drawing a
distinction between the terms “eligible” and “qualified.” 1 	But
this distinction stems from an inspection of the statutory
language of pre-2004 versions of section 67-19-14. 	Prior to
2004, the statute provided that “[a]n employee must be eligible
for retirement benefits to qualify for the program.” 	Utah Code
Ann. § 67-19-14 (Supp. 1999). 	Because the predecessor versions
of the 2004 statute used both “eligible” and “qualify,” Justice
Nehring concludes that these words cannot be ascribed the same
meaning. 	He then suggests that, because legislative history
indicates that the legislature did not wish to make substantive
changes when passing the 2004 version of the statute, the
reference to title 49 must have implicitly preserved the
distinction found in prior iterations of the program. 	Finally,
Justice Nehring construes “eligible to receive retirement
benefits” to mean “eligible to retire.” 	I pause to briefly
respond to these contentions.
¶72 	First, we may not look to extrinsic aids to ascertain
the meaning of a statute where the statute is plain on its face.

No. 20051121 	28
Past versions of a statute and legislative history are
indisputably extrinsic aids. 	As such, they may be helpful in
resolving an ambiguity, but they may not be employed to create
one. 	As discussed above, the plain meaning of the statute is
that an agency may not offer the Option Program to an employee
until she elects to retire. 	Where the statutory meaning is
plain, resort to past versions of the statute and legislative
history is improper. 	Moreover, because the 2004 version of the
statute does not use both “eligible” and “qualify,” the dichotomy
that Justice Nehring attempts to create between the two terms
does not logically become an issue.
¶73 	In fact, the words “eligible” and “qualified” are
synonymous, and our case law does not mandate a distinction
between the two in the context of the Option Program. 	We have
stated that we give effect to each term of a statute and assume
that the legislature used each term advisedly. 	State v. Barrett,
2005 UT 88, ¶ 29, 127 P.3d 682. 	But this does not mean that we
must, in all cases, ascribe competing meanings to synonymous
terms found in the same statute. 	This is particularly true here
where title 49 uses the words “qualified,” “eligible,” and their
variants interchangeably. 	Compare Utah Code Ann.
§ 49-11-401(3)(c) (Supp. 2005) (instructing the board to regulate
how service credits should “be credited toward qualification for
retirement” (emphasis added)), and id. § 49-11-403(1)(c)
(providing that an employee may purchase service credits based on
out-of-state public employment where she “does not qualify for
any retirement benefits based on the employment” (emphasis
added)), with id. § 49-11-404(2)(d) (2002) (basing cost-of-living
increase factor “on the date the member is eligible to receive
benefits under a benefit protection contract” (emphasis added)).
Therefore, while Justice Nehring concludes that the legislature
used the word “qualify” rather than the phrase “be eligible” in
pre-2004 iterations of the statute for the sole purpose of
signaling that “eligible” means less than “legally qualified,” I
cannot make that inferential leap.
¶74 	More fundamentally, Justice Nehring defines “eligible”
as “able to choose.” 	But the prevailing definition of “eligible”
is “qualified to be chosen.” 	Merriam-Webster’s Collegiate
Dictionary 374 (10th ed. 1998). 	If we insert this definition
into the 2004 statute, it reads, “An agency may offer the [Option
Program] to an employee who is [qualified to be chosen] to
receive retirement benefits.” 	Because the State may not require
an employee to receive retirement benefits before the employee
fulfills all the requirements of Utah Code section 49-12-401,
including filing an application to retire, Justice Nehring’s
interpretation is unavailing. 	In other words, the State may not

2 In actuality, the legislative history indicates that the
legislature’s intent was to conform the statute to agency
practice. 	Audio recording: Senate Debate of H.B. 11, 55th Leg.
Gen. Sess. (Feb. 26, 2004) available at
http://le.utah.gov/asp/audio/index.asp?Sess=2004GS&Bill=HB0011&Da
y=0&House=S (“[The 2004 amendment] codifies existing procedure
. . . and the existing way that we use unused sick leave.”).
29 	No. 20051121
require that an employee actually receive retirement benefits
before the employee has applied for retirement.
¶75 	In addition to relying on prior versions of the
statute, Justice Nehring relies on legislative history for the
proposition that the 2004 amendment was not intended to make any
substantive changes to the Option Program. 	But in the absence of
ambiguity, reliance on legislative history is improper. 	And if
the legislative history of the 2004 statute truly indicates no
intent to make substantive changes to the Option Program, it is
patently unreliable because plaintiffs’ only claim arises as a
result of a substantive change wrought by the 2004 amendment. 2
Thus, Justice Nehring’s conclusion that the phrase “qualify for
the program” is functionally equivalent to the phrase “in
accordance with Title 49” in the 2004 statute has no basis.
Indeed, it is not unreasonable to conclude that the reference to
title 49 in the 2004 statute was intended to codify the pre-2004
regulation providing that “the decision to participate [in the
Option Program] shall be made at retirement.” 	Utah Admin. Code
r.477-7-6(b) (2000).
¶76 	Justice Nehring also relies on other provisions of
title 49. 	But none of these provisions establish the meaning of
the phrase “eligible to receive retirement benefits.” 	For
example, Justice Nehring points to the definition of “retirement”
contained in Utah Code section 49-11-102(34) (Supp. 2005). 	It
defines “retirement” as the status of an individual who has
“become eligible, applies for, and is entitled to receive an
allowance.” 	Because eligibility to receive an allowance is only
one of three components of “retirement,” Justice Nehring
concludes that eligibility to receive retirement benefits must
refer to a status distinct from retirement. 	I disagree because
the other two components of retirement (becoming eligible to
apply for retirement and filing a retirement application) are
conditions that must necessarily be fulfilled before one is
eligible to receive an allowance. 	Thus, the definition of
“retirement” may, in fact, be coextensive with the final act

3 Justice Nehring also invokes sections 49-12-701 and
49-11-103(2). 	Neither applies. 	While section 49-11-103(2)
suggests that title 49 should be liberally construed to provide
maximum benefits, it does not go so far as to suggest that it may
be invoked to create an ambiguity or to countenance a
construction inconsistent with the statutory language. 	It is
also questionable whether it even applies at all to our attempt
to construe the provisions the 2004 statute, which is found in a
different title of the Utah Code.
Section 49-12-701 is equally inapplicable. 	That section
governed an early retirement program that has not been available
since 1988. 	Its value in aiding our interpretation of the 2004
statute is therefore suspect.
No. 20051121 	30
necessary to effectuate retirement--eligibility to receive
retirement benefits. 3
¶77 	In summary, I believe that the only way to read section
67-19-14.2 consistently with title 49 is to give “retirement
benefits” the same meaning as “allowance.” 	Therefore, section
67-19-14.2 grants authority to an agency to offer the Option
Program to only those employees who have (1) ceased actual work,
(2) submitted an application to retire, and (3) attained the
requisite age and accumulated the requisite number of service
credits. 	Given this construction of the statute, no public
employee could have obtained a vested right in the Option Program
prior to submitting an application to retire. 	In the absence of
any vested rights, H.B. 213 cannot effect a taking.
III. 	ASSUMING AN AMBIGUITY IN THE STATUTE, APPLICABLE
CANONS OF STATUTORY CONSTRUCTION DICTATE THE SAME RESULT
¶78 	Were I to assume the ambiguity of the statute for
argument’s sake, I would nevertheless reject plaintiffs’
contention that the statute endowed employees with a vested right
to exchange 100% of their accrued sick leave for health
insurance. 	I reach this conclusion on the basis of the statutory
history of the Option Program, the implementing regulations, and
what I believe to be the applicable canon of statutory
construction.
¶79 	There is a “well-established presumption” that “absent
some clear indication that the legislature intends to bind itself
contractually, . . . ‘a law is not intended to create private
contractual or vested rights but merely declares a policy to be
pursued until the legislature shall ordain otherwise.’” 	Nat’l
R.R. Passenger Corp. v. Atchinson, Topeka & Santa Fe Ry. Co., 470
U.S. 451, 465–66 (1985) (citation omitted). 	In other words, when

31 	No. 20051121
it is unclear whether a legislature intends to bind itself, a
court should not infer such an intent. 	Cf. id. 	Because section
67-19-14.2 lacks a “clear indication” that “the legislature
intend[ed]” to bestow on state employees an irrevocable and
unalterable property right to exchange 100% of their banked sick
leave for health insurance, I would decline to find such a right.
¶80 	This conclusion is not only mandated by the applicable
canon of statutory construction, it is consistent with the
legislative intent. 	As described in the lead opinion, the
various changes in the Option Program from 1979 to 2004
demonstrate that the legislature intended to reserve its ability
to modify the menu of available benefits. 	The changes in the
program since its inception are, in fact, persuasive evidence
that the legislature did not intend to bind the State to forever
redeem 100% of accrued sick leave for health insurance benefits.
¶81 	This conclusion is also consistent with the
interpretation of the statute adopted by the Director of Human
Resource Management in the applicable regulations. 	We previously
have recognized that an agency’s interpretation of a statute it
administers may be given some weight. 	See McKnight v. State Land
Bd., 381 P.2d 726, 731 (Utah 1963). 	In this case, the director
has effectively interpreted the provision at issue by
promulgating rules that explicitly allow an agency to offer the
Option Program to an employee only “[u]pon retirement.” 	Utah
Admin. Code r.477-7-6 (2005). 	And the regulations also provide
that state agencies may opt in and out of the Option Program on
an annual basis, a provision that is wholly inconsistent with the
claim of a vested contractual right at any point prior to an
employee’s election to retire. 	See id. 	Inasmuch as the
regulatory interpretation is abundantly reasonable and consistent
with the statutory language, I believe it should be given
considerable weight.
CONCLUSION
¶82 	Although I agree with the result reached by the
majority, my reasoning differs. 	I conclude that both a plain
meaning analysis and an analysis that assumes ambiguity lead to
the conclusion that the 2004 statute empowered agencies to offer
the Option Program to employees only upon retirement. 	Because
the offer to participate in the Option Program could not be made
until an employee elected to retire, plaintiffs have no vested
contractual right to exchange 100% of their accrued sick leave
for health insurance.
---

No. 20051121 	32
NEHRING, Justice, concurring:
¶83 	I join Justice Wilkins’s review of the statutory and
procedural background of this case and note in particular my
agreement with his cautionary remarks about perceived attempts to
intrude on the constitutional obligations of this court to be the
independent voice of the rule of law under our form of
government. 	I also agree with Justice Wilkins that the
plaintiffs have standing to bring their facial challenge to H.B.
213 and that their facial challenge fails. 	I therefore concur in
the analysis of Part I and in the result of Part II(1), as well
as with its conclusion that the language concerning the meaning
of “eligibility to receive retirement benefits” in H.B. 213’s
predecessor statute is ambiguous.
¶84 	Like Justice Parrish, I conclude that the statute that
H.B. 213 supplanted survives facial attack on the strength of the
presumption that the legislature cannot be bound unless it
manifests a clear intention to create or vest a private property
right. 	I find it unnecessary, however, to set out on a trek into
the uncharted terrain of extrinsic evidence in the hope of
resolving the ambiguity that infests the 2004 amendment to
section 67-19-14.2, nor would I reach the question of whether the
State undertook a voluntary obligation.
¶85 	Although the lead opinion makes a persuasive case for
the ambiguity of section 67-19-14.2, the close textual exegesis
offered by Justice Parrish to defend her view that the statute
plainly and unambiguously conditions “eligibility to receive
retirement benefits” on actual retirement compels me to respond
with a text-based analysis of my own that reaches the contrary
result.
¶86 	The portion of the text of the 2004 version of section
67-19-14.2 that bears on the question of whether the statute
created a property right in the Option reads as follows:
(1) 	(a) There is created the “Unused Sick
Leave Retirement Option Program.”
(b) An agency may offer the Unused Sick
Leave Retirement Option Program to an
employee who is eligible to receive
retirement benefits in accordance with
Title 49, Utah State Retirement and
Insurance Benefit Act.
Utah Code Ann. § 67-19-14.2(1)(a)-(b) (2004).

33 	No. 20051121
¶87 	According to Justice Parrish, this provision cannot
create a property right in the Option because an agency that
chooses to adopt the Option Program does not offer it to an
employee until the employee has retired. 	This is not, of course,
an interpretation that can be harvested from the plain language
of the statute. 	An “employee who is eligible to receive
retirement benefits” to whom the employer agency offers the
Option need not necessarily be an employee who has retired.
Indeed, it is plausible, and in my view probable, that the phrase
is meant both to disqualify employees excluded or exempted from
participation in one of the State’s retirement systems, such as
temporary employees, see, e.g., Utah Code Ann. § 49-12-203
(2002), and to make the offer available to employees who have
satisfied the age and service requirements for retirement but who
have not yet retired.
¶88 	The contention that the Option cannot be offered to an
employee until the employee has retired must derive from the
phrase “in accordance with Title 49, Utah State Retirement and
Insurance Benefit Act.” 	Utah Code Ann. § 67-19-14.2(1)(b). 	In
the interpretation urged on us by the State, and in large measure
adopted by Justice Parrish, the clause “in accordance with” that
links the phrase “an employee who is eligible to receive
benefits” with “Title 49” means that Title 49 should be canvassed
for a provision that offers a supplemental definition for just
who “an employee who is eligible to receive benefits” might be.
The State and Justice Parrish contend that this defining language
appears in section 49-12-401, which details the status of an
employee who “is qualified to receive an allowance from this
system.” 	They reason that such an employee is the same employee
described as one “who is eligible to receive retirement benefits”
in section 67-19-14.2(1)(b). 	Since the employee described in
section 49-12-401 must have satisfied both the age and service
conditions for retirement and formally applied to retire, formal
retirement must be imparted into section 67-19-14.2(1)(b) as a
condition precedent to becoming an offeree of the Option. 	Two
fundamental flaws undermine this reasoning.
¶89 	First, the premise that the reference to Title 49 in
section 67-19-14.2(1)(b) inevitably compels the importation of
the restrictive formal retirement requirement of section 49-12-
401 is erroneous. 	A review of the text of the version of section
67-19-14 that the 2004 amendment modified discloses why. 	That
iteration of the conversion options available for unused sick
leave states that “[a]n employee must be eligible for retirement
benefits to qualify for the program.” 	Utah Code Ann. § 67-19-
14(1)(a)(iv) (1999).

1 The early retirement program that was created by the 1983
amendments and which at that time was grafted onto section 67-19-
14 was disconnected from the unused sick leave provisions and
recodified in Title 49. 	Utah Code Ann. § 49-12-701.
No. 20051121 	34
¶90 	This is a phrase that is less susceptible to competing
interpretations than its 2004 successor. 	It communicates the
unambiguous message that if a State agency offers a program that
permits agency employees to convert their unused sick leave, an
employee who has met the age and service requirements for
retirement but who has not yet formally retired may participate.
In fact, this language likely excluded employees who had, for
example, retired before the genesis of an unused sick leave
conversion program in 1975.
¶91 	The phrase “[a]n employee must be eligible for
retirement benefits to qualify for this program” has enjoyed an
enduring presence within section 67-19-14. 	It first appeared in
1983. 	In that year, the legislature amended the unused sick
leave conversion provision to accommodate the legislature’s
desire to supplement the original rationale for providing
employees the opportunity to convert unused sick leave into
health and medical insurance, that is, the reduction of sick
leave abuse, with an incentive for state employees to retire
early, with the goal of controlling the growth of the state
workforce. 1 	Utah Code Ann. § 67-19-14(2)(d). 	It was preserved
when the statute was amended in 1998 and again in 1999. 	Did the
2004 amendment to section 67-19-14 result in a substantive change
to pare back the class of those employees qualified to
participate in the program to employees who had provided formal
notice of retirement? 	No.
¶92 	Neither the sponsor of the 2004 amendment nor anyone
who rose in the legislature to speak to the merits of the
amendment indicated that it would bring about any modification of
the substance of the pre-amendment language. 	Yet, the State’s
reading of the 2004 amendment requires a dramatic interpretive
shift to a meaning squarely at odds with the legislative history.
This alone does not make the State’s interpretation wrong.
Indeed, the legislative history of the amendment would be
irrelevant if it proved to be at odds with the unambiguous plain
meaning of its text. 	The 2004 amendment can, however, be read to
conform its interpretation to the plain meaning of its
predecessor eligibility language acknowledging that an employee
acquired a property right in her unused sick leave without the
need to submit formal notice of an intent to retire.

35 	No. 20051121
¶93 	The central alteration made by the 2004 amendment to
the then-existing eligibility language was the replacement of the
concluding phrase “to qualify for the program” with “in
accordance with Title 49, Utah State Retirement and Insurance
Benefit Act.” 	The concept of eligibility is not, however,
displaced by the amending language. 	This is important. 	Even if
we were to limit our inspection of Title 49 to the sections cited
by Justice Parrish, we would nevertheless not be free to ignore
the text of section 67-19-14.2(1)(b) that expressly renders the
Option available to an employee “who is eligible to receive
retirement benefits.” (emphasis added).
¶94 	It is significant that the pre-2004 statutes contained
both the words “eligible” and “qualify.” 	These two words persist
in the 2004 amendment, but in an altered context. 	Because
“eligible” and “qualify” appear prominently in every
configuration of statutes relating to retirement, we take a
closer look at them. 	The pre-2004 phrase “[a]n employee must be
eligible for retirement benefits to qualify for the program” may
be broken down into two components, one assembled around
“eligible,” and the other around “qualify.” 	We start with the
first half of the phrase, “[a]n employee must be eligible for
retirement benefits.” 	There is no ambiguity in this phrase, and
thus no occasion to turn to extrinsic sources to divine its
meaning. 	We first observe that “eligible” is a word brimming
with potential. 	That is, to be eligible, one may be desirable,
fully capable of choosing or being chosen, but still uncommitted.
Just as a bachelor is eligible to marry by choosing to do so,
eligibility is defined by the ultimate choice or step a party
must complete in order to realize the matter. 	This is why a boy
who is under the legal marriage age is not yet eligible to
marry--there is no decision or step that the boy can make or take
to allow him to marry. 	So it is with the issue now before us.
An employee is eligible for retirement benefits when there exists
an election that she can make to start benefits flowing. 	Such a
point could not be on the employee’s first day of work--
presumably there is nothing the employee could do at that point
to start to receive retirement benefits. 	However, without more
information, we cannot be certain that the new employee is
ineligible to receive retirement benefits because nothing in the
statute explicitly states at what point an employee can choose to
begin receiving those benefits. 	All the pre-2004 statute told us
is that an employee must be eligible to “qualify for the
program.”
¶95 	The most logical interpretation of the link between
“eligible” and “qualify” is that the right to elect to receive

No. 20051121 	36
retirement benefits--to be eligible for those benefits--is one,
but not necessarily the only, requirement to access the program.
¶96 	Therefore, it must be established when an employee
would be qualified. 	The best answer is found in section 49-12-
401, which tells us when a member is qualified to receive a
retirement allowance. 	In essence, this section states that
someone is qualified to receive an allowance when she has accrued
a specified number of service credits and attained a certain age,
and then ceased work and filled out the requisite paperwork.
Therefore, one must ask, how can an employee become eligible to
qualify? 	As discussed above, one is eligible when she can choose
to effectuate the matter for which she is eligible. 	The only
possible answer is that she is eligible to qualify when she has
accrued the mandatory service credits and age, so that she can
choose, at her discretion, when to complete the qualification
requirements by ceasing work and filling out the retirement
paperwork.
¶97 	As mentioned above, the 2004 amendment to section 67-
19-14 was not intended to effectuate any substantive changes to
the statute, but merely to clarify its substance. 	This
description of the amendment is supported by what was done to
section 67-19-14.2(1)(b). 	There, the statute dropped “to qualify
for the program” and replaced it with the language quoted above,
“in accordance with Title 49, Utah State Retirement and Insurance
Benefit Act.” 	Where there may have been some initial doubt
before as to where one could discover the qualifications for
receiving the benefits provided by section 67-14-19, it was
replaced with an explicit reference to Title 49. 	Of utmost
importance is the fact that the term “eligible” remained in the
statute while pointing to Title 49. 	The first line of section
49-12-401 states that “[a] member is qualified to receive an
allowance from this system when,” and then outlines the
requirements for qualification as discussed above. 	The key is
that although the word “qualify” was removed from the text of
section 67-19-14.2, it was preserved by the reference to Title 49
which replaced it, and which begins by describing the
qualification requirements. 	Therefore, the 2004 amendment must
be read, as its predecessor read, that an agency can offer the
program to an employee who is eligible to qualify for the
program--in other words, to someone who has accrued the service
credits and attained the age outlined by section 49-12-401, but
who has yet to effectuate that eligibility by ceasing employment
and filling out the retirement paperwork.
¶98 	This understanding is enforced by a more comprehensive
look at Title 49. 	Taken as a whole, the content of Title 49 can

37 	No. 20051121
easily support the conclusion that an employee acquires a
property interest in unused sick leave when she satisfies the age
and service requirements for retirement without regard to whether
she has submitted an application to retire.
¶99 	Section 49-11-102(34) defines “retiree” as “an
individual who has qualified for an allowance under this title.”
This definition is in complete harmony with section 49-12-401
which, in sub-parts (b) and (c), requires the submission of a
formal application to retire and satisfaction of age and service
requirements before “[a] member is qualified to receive an
allowance from this system.” 	Put another way, the “member” in
section 49-12-401 is a “retiree” as defined in section 49-11-
102(34). 	It is obvious that not every “employee eligible to
receive retirement benefits” is a retiree, yet under the State’s
statutory interpretation, they must be.
¶100 Title 49’s definition of “retirement” further exposes
the weakness of relying solely on the text of section 49-12-401.
Section 49-11-102(35) states that “‘Retirement’ means the status
of an individual who has become eligible, applies for, and is
entitled to receive an allowance under this title.” 	Under this
definition, the “member” identified in section 49-12-401 who is
“qualified to receive an allowance” is a “retiree” as defined in
Title 49 and has also entered the realm of “retirement” because
she has met the three conditions for retirement: 	she has become
eligible for retirement, she has applied for retirement, and she
is entitled to receive an allowance. 	It is clear from the
definition of retirement that eligibility to receive retirement
benefits is a status different than retirement. 	Because the
status defined as “retirement” is achieved by complying with the
requirements of section 49-12-401 to file a formal application
for retirement and to satisfy the age and service standards, and
because mere eligibility to receive retirement benefits satisfies
but one of the three elements of “retirement,” an employee must
logically be capable of being eligible to receive retirement
benefits without filing a formal application to retire.
¶101 Section 49-12-701 underscores the point that under
Title 49 an employee’s eligibility to receive retirement benefits
does not require an employee to file a formal application to
retire. 	Title 49 defines the eligibility for and the benefits of
early retirement. 	Section 49-12-701(1)(a) makes early retirement
available if “the member is eligible for retirement under Section
49-12-401, or has 25 years of service credit.” 	The only
reasonable interpretation of this provision is that the right to
choose to become a retiree under section 49-12-401, in other
words to become “eligible” for retirement, is separate and

No. 20051121 	38
independent from actually electing to retire and undertaking the
tasks--most notably the submission of a formal application for
retirement--necessary to make the employee “qualified to receive
an allowance” under section 49-12-401.
¶102 Finally, it is unclear to me why section 49-11-103(2)
should be excluded from the provisions of Title 49 that should be
considered under the “in accordance” directive of section 67-19-
14.2. 	This section states that “[Title 49] shall be liberally
construed to provide maximum benefits and protections consistent
with sound fiduciary and actuarial principals [sic].”
¶103 While I have considerable confidence in the correctness
of this textual interpretation, I do not discount the legitimacy
of Justice Parrish’s closely reasoned approach. 	I therefore stop
short of asserting that my interpretation has won the day and
that section 67-19-14.2 should be crowned with my reading as its
sole, unambiguous construction. 	I am, instead, content to pursue
the more modest objective of reinforcing the lead opinion’s claim
that the statute is ambiguous.
¶104 Having offered up my interpretation of the statute
central to this appeal, I turn to interpreting the law that
governs how an ambiguous statute that purports to create a vested
private property right should be evaluated when confronted by a
facial challenge to its constitutionality. 	The key feature of
this law is the policy-based principle that the legislative
branch should be free to respond to the changing needs and will
of the people. 	The law acknowledges the fundamental need for
legislative flexibility and accountability when it imposes more
rigorous demands on those who would claim that the legislature
has bound itself by statute to duties and obligations that may
mature in the future to demonstrate with particular clarity the
legislature’s intent to assume such future duties.
¶105 Owing to the unique policy considerations that attend
to commitments made by the legislature, I would end the facial-
challenge inquiry into whether a statute creates a vested
property right upon a finding that the statute is ambiguous. 	It
is unnecessary and contrary to the presumption against the
creation of statutorily-vested property interests to take the
next step typically taken when confronted with statutory
ambiguity and examine extrinsic evidence, most notably
legislative history, for guidance on the intent of the statute.
¶106 I hasten to add that although in this instance the
State is rewarded for successfully enacting a statute remarkable
for its impenetrability (during the course of this appeal I have

39 	No. 20051121
mused over how a lawyer who might have been visited by a state
employee in late 2004 would have responded to her request for an
opinion concerning the status of her unused sick leave), any
legislative body that chooses to adopt as a strategy the notion
that there is victory in opacity would, besides betraying the
trust of the people, find that outside the context of a facial
challenge to a statute, ambiguity would offer scant defense
against the claim of a vested property right.
¶107 The voluntary undertaking exception to the presumption
against the statutory creation of vested property rights provides
parties who believe that they have sustained damage through the
unconstitutional deprivation of a statutorily-conferred property
right the opportunity for redress under circumstances where no
statute clearly creates that right. 	Buckner v. Kennard, 2004 UT
78, 99 P.3d 842. 	The lead opinion suggests that such a voluntary
undertaking must supplement an expressly-created statutory
obligation. 	This does not go far enough. 	Correctly understood,
the exception includes the use of evidence of a voluntary
undertaking to resolve a statutory ambiguity that bears on the
existence and scope of a claimed vested property right. 	In this
setting, evidence of a voluntary undertaking would be identical
in its form and purpose to extrinsic evidence that we call upon
routinely to aid in the resolution of statutory ambiguities.
This formulation of the exception would thereby compliment my
central proposition that the presence of ambiguity itself should
defeat a claim that a statute has conferred a vested property
right.
---