This opinion is subject to revision before final
publication in the Pacific Reporter
2019 UT 67
IN THE
SUPREME COURT OF THE STATE OF UTAH
TAMARA MONICA GALINDO,
Appellant,
v.
CITY OF FLAGSTAFF, ARIZONA and JEROLYN BYRNE,
Appellees.
No. 20180346
Heard September 18, 2019
Filed November 1, 2019
On Direct Appeal
Fourth District, Provo
The Honorable James R. Taylor
No. 170401281
Attorneys:
Shane D. Gosdis, Murray, for appellant
Terry M. Plant, Stewart B. Harman, Matthew D. Church,
Salt Lake City, for appellees
JUSTICE HIMONAS authored the opinion of the Court in which
CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,
JUSTICE PEARCE, and JUSTICE PETERSEN joined.
JUSTICE HIMONAS, opinion of the Court:
INTRODUCTION
¶1 Can a Utah resident, injured in Utah by an Arizona
municipal employee, file a claim against that employee and the
municipality after the time to do so has expired under Arizona law
but not under Utah law? The answer lies in principles of comity,
which create a rebuttable presumption that in circumstances like
these, our courts enforce our sister states’ laws unless they violate
Utah public policy.
GALINDO v. CITY OF FLAGSTAFF, AZ
Opinion of the Court
¶2 Arizona’s law is not so violative. Therefore, we agree with
the district court that comity should be extended and hold that the
district court properly dismissed Galindo’s claim for failure to timely
file a notice of claim.
BACKGROUND
¶3 On September 9, 2016, Tamara Galindo, a Utah resident, and
Jerolyn Byrne were involved in a motor vehicle accident in Orem,
Utah. The parties stipulated that at the time of the accident, Byrne
was acting in the course and scope of her employment with the City
of Flagstaff, Arizona (City).
¶4 Three hundred and sixty-four days after the accident, on
September 8, 2017, Galindo served a notice of claim on the City,
complying with the Governmental Immunity Act of Utah’s one-year
notice of claim period that applies in suits against Utah
municipalities. UTAH CODE § 63G-7-402. The City and Byrne moved
to dismiss, arguing that the district court lacked subject matter
jurisdiction because Galindo did not serve her notice of claim within
six months as required by Arizona’s Actions Against Public Entities
or Public Employees Statute (Statute or Arizona Statute)—Arizona’s
governmental immunity statute. See ARIZ. REV. STAT. § 12-821.01. The
City argued that the district court should apply the Statute as a
matter of comity. The district court agreed, applying the Arizona
Statute and ruling that it lacked subject matter jurisdiction because
Galindo failed to comply with the Statute’s six-month notice of claim
requirement. Galindo appealed.
¶5 We exercise jurisdiction under Utah Code section
78A-3-102(3)(j).
STANDARD OF REVIEW
¶6 Generally, “we review a motion to dismiss for correctness.
However, in applying principles of comity,” we have traditionally
afforded the district court “broad discretion.” See Trillium USA, Inc.
v. Bd. of Cty. Comm’rs, 2001 UT 101, ¶ 18,
37 P.3d 1093 (internal
citations omitted).
¶7 We recognize, however, that courts around the country differ
on what standard of review applies in comity decisions. Most courts
review comity decisions for abuse of discretion, as we have done.
See, e.g., In re Sealed Case, 932 F.3d 915, 934 (D.C. Cir. 2019); Derr v.
Swarek,
766 F.3d 430, 436 (5th Cir. 2014); Univ. of Iowa Press v. Urrea,
440 S.E.2d 203, 204 (Ga. Ct. App. 1993); First Midwest Corp. v. Corp.
Fin. Assocs.,
663 N.W.2d 888, 890–91 (Iowa 2003). But others apply
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Opinion of the Court
mixed standards or review such decisions de novo. See Quaak v.
Klynveld Peat Marwick Goerdeler Bedrijfsrevisoren, 361 F.3d 11, 16 (1st
Cir. 2004) (“This is an intermediate level of scrutiny, more rigorous
than the abuse-of-discretion or clear-error standards, but stopping
short of plenary or de novo review.” (internal quotation marks
omitted) (emphasis omitted)); Montaño v. Frezza,
393 P.3d 700, 704
(N.M. 2017) (“We apply a mixed standard of review to questions of
comity. While a district court’s decision to extend comity in a given
case is subject to de novo review, we also analyze any fact-intensive
aspects of the district court’s comity analysis under a more
deferential abuse of discretion standard.” (internal citation omitted));
Gesinger v. Gesinger,
531 N.W.2d 17, 19 (S.D. 1995) (“Comity is a
question of jurisdiction which is reviewed de novo.”).
¶8 The arguments for a stricter standard of review are far from
meritless, chiefly because comity involves issues of law and is not
merely a fact-driven decision. See Montaño, 393 P.3d at 704. However,
as the parties have not briefed this issue, and because we would
reach the same outcome regardless of the standard applied, we leave
this matter for a future, appropriate case. See Mobley v. Arkansas, No.
W2017-02356-COA-R3-CV, 2019 WL 117585, at *24 n.6 (Tenn. Ct.
App. Jan. 7, 2019) (surveying the different approaches but deciding
not to reach the issue).
ANALYSIS
¶9 The only issue presented in the district court and currently
before us is whether we should extend comity to apply the Arizona
Statute. 1 The parties dispute whether extending comity here—which
will bar Galindo’s claim as untimely—violates Utah’s public policy.
1 Another relevant framework for analysis of the underlying issue
is choice of law. We previously suggested that comity, a
discretionary doctrine, could supersede a choice-of-law analysis. See
Trillium USA, Inc. v. Bd. of Cty. Comm’rs, 2001 UT 101, ¶¶ 14–16,
37
P.3d 1093. Other courts also seem to follow suit. See, e.g., Coleman v.
Clark,
322 F. Supp. 3d 1, 5 n.1 (D.D.C. 2018); Montaño v. Frezza,
393
P.3d 700, 703 n.2 (N.M. 2017); Hansen v. Scott,
687 N.W.2d 247, 251
(N.D. 2004). But as with the standard of review, we see no reason to
affirmatively determine this issue as the parties did not address it,
and therefore it does not impact the outcome of this case.
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GALINDO v. CITY OF FLAGSTAFF, AZ
Opinion of the Court
We hold that it does not. Therefore, comity was properly extended,
and Galindo’s claim was rightfully dismissed for its untimeliness. 2
2 While this case was pending on direct review before this court,
the United States Supreme Court issued Franchise Tax Board of
California v. Hyatt, which held, “States retain their sovereign
immunity from private suits brought in the courts of other States.”
139 S. Ct. 1485, 1492 (2019) (overruling Nevada v. Hall,
440 U.S. 410,
426 (1979), which held that states were not required to recognize the
sovereign immunity of their sister states). We requested
supplemental briefing from the parties as to the effect of Hyatt on
this case.
Despite our request and the parties’ appreciated briefings, we
need not address that sea change in sovereign immunity practice
because “municipalities, unlike States, do not enjoy a constitutionally
protected immunity from suit” under the Eleventh Amendment of
the United States Constitution. Jinks v. Richland Cty., 538 U.S. 456, 466
(2003); see also Alden v. Maine,
527 U.S. 706, 756 (1999).
It is important to clarify that sovereign immunity does not flow
from the Eleventh Amendment. Sovereign immunity is a concept the
founders “took as given.” Hyatt, 139 S. Ct. at 1493–94. At first, courts
held that sovereign immunity extended to political subdivisions.
However, courts found ways to chip away at its scope, until it
became a rarity. In response, legislatures enacted governmental
immunity statutes. Some scholars explain these statutes as waivers
of an immunity that was traditionally understood to exist. See John
W. Creer, The Utah Governmental Immunity Act: An Analysis, 1967
UTAH L. REV. 120, 121–22; Adam Goldstein, Recent Legislative
Development: IV. Tort Law: A. Governmental Immunity Act of Utah, 2005
UTAH L. REV. 380, 380. This court, prior to the enactment of the
Governmental Immunity Act of Utah, viewed the matter similarly.
See, e.g., Niblock v. Salt Lake City, 111 P.2d 800, 801 (Utah 1941) (“It is
generally recognized throughout this country and in England that in
the absence of a statute a municipality is not liable for the negligent
acts of its servants while they are engaged in performing a
governmental function or duty.”). Yet other scholars argue that
courts abandoned the view that sovereign immunity extends to
political subdivisions, and the governmental immunity acts establish
such immunity and do not simply waive it. See Fred Smith, Local
Sovereign Immunity, 116 COLUM. L. REV. 409, 424–29 (2016).
Under either of these interpretations of the development of
political subdivision immunity, Hyatt—which addressed
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Opinion of the Court
¶10 Comity is “a principle under which the courts of one state
give effect to the laws of another state . . . not as a rule of law, but
rather out of deference or respect.” Trillium USA, Inc. v. Bd. of Cty.
Comm’rs, 2001 UT 101, ¶ 19,
37 P.3d 1093 (alteration in original)
(quoting Hawsey v. La. Dep’t of Soc. Servs.,
934 S.W.2d 723, 726 (Tex.
Ct. App. 1996)); see also Nevada v. Hall,
440 U.S. 410, 426 (1979).
¶11 We initially presume comity should be extended to our
sister states’ governmental immunity acts. 3 Other courts have taken
a similar approach. See, e.g., Sam v. Sam, 134 P.3d 761, 767 (N.M.
2006) (“As a general rule, comity should be extended. Only if doing
so would undermine New Mexico’s own public policy will comity
not be extended.”); Hyde v. Hyde,
562 S.W.2d 194, 196 (Tenn. 1978)
(“The rule of comity to be gleaned from these cases is that, where the
law of another jurisdiction is applicable, Tennessee will enforce the
substantive rights which litigants have under the laws of the other
jurisdiction if such rights are not contrary to the policy of
Tennessee.”). The goals of this presumption include fostering
cooperation, promoting harmony, and building goodwill among the
states. Trillium,
2001 UT 101, ¶ 19; see also Lee v. Miller Cty.,
800 F.2d
1372, 1375 (5th Cir. 1986).
¶12 The party seeking to rebut this presumption must show that
the extension of comity “contravene[s]” or “undermines” Utah’s
public policy. 4 Trillium,
2001 UT 101, ¶¶ 19–20. And it must be
“sufficiently offensive” to our public policy “to outweigh the
principles of comity.” Sam,
134 P.3d at 766.
constitutionally protected sovereign immunity—does not apply to
political subdivisions. The principles set forth in Hall continue to
govern a state’s governmental immunity grant to its political
subdivisions and the respect that should be attributed to it by other
states.
3 With this statement, we make explicit what has been implicit in
our jurisprudence. See Trillium,
2001 UT 101, ¶ 19; Jackett v. L.A. Dep’t
of Water & Power,
771 P.2d 1074, 1075–76 (Utah Ct. App. 1989).
4 When, as here, the legislature has not directly answered the
public policy question before us we are left with a gap in our
legislation. In order to fill that gap, we engage in common-law
reasoning—inferring whatever public policy we can glean from
legislation in the general field, and filling in the gap with our best
assessment of likely policies that the legislature would embrace, or
that we find to be prudent public policy in that context.
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GALINDO v. CITY OF FLAGSTAFF, AZ
Opinion of the Court
¶13 Galindo offers two arguments in an attempt to rebut this
presumption. First, she argues that the notice of claim time bar under
the Arizona Statute, which is six months shorter than Utah’s
respective time bar, violates Utah’s public policy. Second, she argues
that applying comity to effectively bar a Utah plaintiff from recovery
also violates our public policy. We are unpersuaded by either
argument. We address them below in turn. 5
¶14 First, in general, statutes do not reflect different policies
merely because they have different time constraints on filing. 6 Both
Utah and Arizona have conditioned suits against the state and its
political subdivisions by requiring timely filing of a notice of claim
within a relatively short period. 7 By doing so, they balanced
5 Other states, like New Mexico, have outlined factors for district
courts to consider when determining whether comity is violative of
public policy, based on decisions from around the country. See Sam,
134 P.3d at 767. These factors are reflected in a decision by our court
of appeals. See Jackett,
771 P.2d at 1076.
In past cases we followed the parties’ attempts at rebutting the
presumption that comity extends. Trillium, 2001 UT 101, ¶¶ 20–21.
But even so, these factors were guiding our analysis, not as elements
to consider or not, but rather as examples of public policies we might
infer from legislation in the general field and from our gap-filling,
common-law analysis. For example, we might determine that the
legislative scheme is designed “to give primary regard to the rights
of [our] own citizens.” Jackett,
771 P.2d at 1076. This would mean that
comity would be inappropriate. We might, on the other hand, find
that legislation in the general field aimed to minimize forum
shopping. See
id. In that case, comity extension might be viewed as
far more suitable. Our analysis of Galindo’s arguments below is
informed by these examples.
6 There may be, of course, limits to this general statement. For
example, where there is a significant difference, as between a very
short statute of limitations and a very lengthy one or none at all,
extending comity may contravene public policy. This is not the case
here.
7 The limitations posed by the two states only govern suits
against their own governmental entities. The Utah and Arizona
legislatures have not expressed their views as to applicability of
these limitations on a foreign governmental entity. In addition, it is
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Opinion of the Court
competing policies. On the one hand, they allow residents to recover
for injuries, even when those are committed by governmental
entities. On the other hand, they permit government entities an
opportunity to investigate claims, avoid payment of false claims, and
protect the public treasury. See Sweet v. Salt Lake City, 134 P. 1167,
1171 (Utah 1913) (“One of the principal objects of the statute is to
prevent spurious claims from being paid, and, in order to fully
accomplish that purpose, to give the city officials ample opportunity
to examine into both the cause and extent of the injury and also to
test the good faith of the claimant in presenting the claim.”); Hall v.
Dep’t of Corr.,
2001 UT 34, ¶¶ 14, 23,
24 P.3d 938; Lee v. Arizona,
182
P.3d 1169, 1173 (Ariz. 2008) (“A notice of claim serves to give the
government notice of potential liability, an opportunity to
investigate claims, the chance to avoid costly litigation through
settlement, and assistance in budgeting.”).
¶15 Although both states waive governmental immunity to an
extent, they differ in the time limit posed for notice of claim filing.
Utah limits the time to submit a notice of claim against governmental
entities to one year. UTAH CODE § 63G-7-402. Our courts treat this
time restriction strictly and view the failure to timely file a notice of
claim as a jurisdictional bar to a suit. 8 See, e.g., Wheeler v. McPherson,
2002 UT 16, ¶ 11,
40 P.3d 632; Hall,
2001 UT 34, ¶ 23. Arizona
mandates a shorter period—six months (180 days). ARIZ. REV. STAT.
§ 12–821.01(A). But the Arizona courts view the period as more
flexible, allowing for its waiver, forfeiture, and equitable tolling,
not clear that a state legislature can regulate extraterritorial litigation.
This statutory void is exactly where the doctrine of comity comes
into our jurisprudence. See Pan Energy v. Martin,
813 P.2d 1142, 1146
(Utah 1991) (“[T]he Legislature has removed this issue from the
realm of comity and judicial discretion by directing that foreign
judgments shall be treated the same as local judgments once they
have been filed in this state.”).
8 Galindo asks us to follow Utah law regarding the notice of claim
requirement because it is procedural, like any other statute of
limitations. See Fin. Bancorp, Inc. v. Pingree & Dahle, Inc.,
880 P.2d 14,
16 (Utah Ct. App. 1994). We decline the invitation. First, this
argument is one of choice of law and not comity. Second, it ignores
that in Utah we view the notice of claim requirement in Utah Code
section 63G-7-402 as a substantive requirement. Davis v. Cent. Utah
Counseling Ctr.,
2006 UT 52, ¶¶ 42–44,
147 P.3d 390.
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GALINDO v. CITY OF FLAGSTAFF, AZ
Opinion of the Court
when appropriate. See Pritchard v. State, 788 P.2d 1178, 1183 (Ariz.
1990) (en banc) (“[T]he time element with respect to filing is
essentially procedural in nature . . . [and] is subject to waiver,
estoppel and equitable tolling.”). 9 As a result, the Arizona notice of
claim period may extend beyond six months, closing the gap
between the two states’ time limitations.
¶16 This possibility, together with the small difference in the
time restrictions to begin with, leads us to hold that the difference in
the notice of claim periods does not violate Utah’s public policy.
¶17 Second, Galindo argues that other courts have declined to
extend comity when the outcome of such an extension would
deprive a forum state litigant of recovery. She offers four cases to
support this argument. None are instructive.
¶18 Two of the cases address a complete bar from suit in the
jurisdiction that would receive comity. See Biscoe v. Arlington Cty.,
738 F.2d 1352, 1357 (D.C. Cir. 1984); Mianecki v. Second Judicial Dist.
Court,
658 P.2d 422, 424 (Nev. 1983). This is not the case here.
Galindo never claimed she was completely barred from suit
according to the Arizona Statute. If she had filed within the
six-month period, her claim would not be time-barred. Additionally,
Galindo does not dispute that her counsel contacted the City well
before the six months to file a notice of claim expired. Under these
circumstances, ruling that comity does not extend would encourage
forum-shopping—something that comity is meant to prevent. See
Jackett v. L.A. Dep’t of Water & Power,
771 P.2d 1074, 1077 (Utah Ct.
App. 1989); see also Montaño v. Frezza,
393 P.3d 700, 710 (N.M. 2017).
¶19 The two other cases are also unhelpful for Galindo for
several reasons. First, they both address sovereign immunity and not
governmental immunity. These are distinct immunities and should
not be conflated. See supra ¶ 9 n.2. Second, the court in Schoeberlein v.
Purdue University, actually extended comity after finding that both
Illinois and Indiana had similar sovereign immunity protection and
such extension was not “inconsistent” with Illinois public policy. 544
N.E.2d 283, 287–88 (Ill. 1989). Third, Peterson v. Texas offers virtually
nothing but a conclusory statement of comity that is antithetical to
9 Galindo did not argue below, and has not argued on appeal,
that waiver, estoppel, or equitable tolling prevents the application of
Arizona Revised Statutes section 12-821.01(A) in this case. We do not
opine whether she could still make such claims in an Arizona court.
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our comity jurisprudence: anytime “a citizen of this state” is “injured
in this state and sues in the courts of this state, there is no immunity,
by law or as a matter of comity.” 635 P.2d 241, 243 (Colo. App. 1981).
Carried to its logical conclusion, this view would largely eviscerate
the doctrine of comity, which we are not interested in doing.
¶20 In sum, Galindo has failed to rebut the presumption of
comity.
CONCLUSION
¶21 Comity was rightfully extended, and the district court
correctly applied the Arizona Statute. Galindo failed to comply with
the Statute’s notice of claim requirement. Accordingly, Galindo’s
action is untimely and must be dismissed.
9
