Muddy Boys v. Department of Commerce

2019 UT App 33
THE UTAH COURT OF APPEALS
M UDDY BOYS, I NC ,
Petitioner,
v.
DEPARTMENT OF C OMMERCE, DIVISION OF O CCUPATIONAL AND
PROFESSIONAL LICENSING,
Respondent.
Opinion
No. 20170938-CA
Filed March 7, 2019
Original Proceeding in this Court
David R. Nielson and Michael D. Lichfield,
Attorneys for Petitioner
Sean D. Reyes and Brent A. Burnett, Attorneys
for Respondent
JUDGE R YAN M. HARRIS authored this Opinion, in which
JUDGES M ICHELE M. C HRISTIANSEN F ORSTER and K ATE A PPLEBY
concurred.
HARRIS, Judge:
In this case, we are asked to decide whether a contractor	¶1
who successfully defends itself in an administrative enforcement
action brought against it by the Utah Division of Occupational
and 	Professional 	Licensing 	(DOPL) 	may 	as 	the 	“prevailing
party” recover attorney fees and costs from DOPL. See Utah
Code Ann. § 58-55-503(5)(d) (LexisNexis 2016). In administrative
decisions, 	DOPL 	and 	the 	Department 	of 	Commerce 	(the
Department) 	each 	interpreted 	the 	governing 	statute 	as
forbidding such fee awards. Muddy Boys, Inc. (Muddy Boys)
challenges those decisions and, although we acknowledge that
the statute is not entirely clear, we think the Department has the

Muddy Boys v. Department of Commerce
20170938-CA 	2 	2019 UT App 33
better of the arguments. Accordingly, we decline to disturb the
Department’s decision.
BACKGROUND
Muddy Boys is a drywall contractor that on occasion	¶2
subcontracted work to a then-licensed company known as ITY
LLC 	(ITY1). 	Unbeknownst 	to 	Muddy 	Boys, 	ITY1 	lost 	its
contractor’s license, and its principal formed a new company
known as ITY of Texas LLC (ITY2), but the new company was
unable to obtain a contractor’s license. ITY2 nevertheless falsely
assured Muddy Boys that it was licensed, and offered as proof a
state certificate that resembled a license. Muddy Boys apparently
fell for the ploy and, under the impression that ITY2 was
licensed, continued to subcontract work to the new entity on
multiple projects.
In November 2015, DOPL filed an administrative action	¶3
against 	Muddy 	Boys, 	accusing 	it 	of 	hiring 	an 	unlicensed
subcontractor 	on 	fifty-eight 	separate 	projects, 	which 	DOPL
contended was a violation of Utah Code section 58-55-501(3),
and asserting that Muddy Boys should be assessed a $2,000 fine
for 	each 	violation, 	pursuant 	to 	Utah 	Code 	section 	58-55-
503(4)(h). In total, DOPL sought to impose a $116,000 fine on
Muddy Boys, and also asked for an order placing Muddy Boys’s
contractor license on probation. As the proceeding progressed,
DOPL took the position that these violations were strict liability
offenses, and that it did not matter that Muddy Boys may have
been unaware that it was hiring an unlicensed subcontractor.
DOPL also took the position that Muddy Boys had committed
similar offenses before, which increased the fine from $1,000 per
occurrence to $2,000 per occurrence. See Utah Code Ann. § 58-55-
503(4)(h) (LexisNexis 2016). Muddy Boys maintained that it had
never committed any such violations in the past.
After substantial motion practice, Muddy Boys prevailed	¶4
on 	both 	of 	these 	preliminary 	issues: 	(1) 	DOPL 	eventually
conceded that it needed to prove that Muddy Boys intentionally,

Muddy Boys v. Department of Commerce
20170938-CA 	3 	2019 UT App 33
knowingly, or recklessly hired an unlicensed subcontractor, and
(2) the administrative law judge (ALJ) assigned to the case ruled
that any violation in this case would be Muddy Boys’s first.
After 	these 	issues 	were 	decided, 	the 	case 	went 	to 	trial 	in
November 2016 before the ALJ. Following several hours of
testimony, the ALJ ordered a lunch recess and, upon returning
from lunch, DOPL made a unilateral motion to dismiss the case
with prejudice, which the ALJ granted. At the time, DOPL
offered no reason for its motion, although Muddy Boys contends
in its brief that DOPL made its motion because it “finally
recognized that it could not prove recklessness.”
Soon after the case was dismissed, Muddy Boys filed a	¶5
motion before the ALJ, pursuant to a briefing schedule set by the
ALJ, seeking to recover more than $80,000 of attorney fees and
costs 	it 	incurred 	in 	defending 	against 	DOPL’s 	action. 	In
response, DOPL did not challenge the amount or reasonableness
of the proposed fees, but opposed the motion on legal grounds,
asserting that attorney fees were not recoverable at all under the
relevant statute. In January 2017, after briefing was complete,
Muddy Boys submitted the matter to the ALJ for decision. But
the ALJ did not issue a decision on Muddy Boys’s motion.
Instead, more than five months later, in June 2017, the director of
DOPL (the Director) issued a lengthy order denying Muddy
Boys’s motion on the ground that the applicable statute, which
authorized “courts” to award fees, did not allow fee awards by
administrative tribunals. See Utah Code Ann. § 58-55-503(5)(d)
(LexisNexis 2016).
After the Director issued his decision, and concerned	¶6
about whether DOPL had communicated ex parte with the ALJ
about the motion and whether the ALJ had drafted (but not
issued) a recommended decision, Muddy Boys on two separate
occasions asked DOPL to produce copies of any communications
it might have had with the ALJ about the motion. DOPL refused.
Muddy 	Boys 	appealed 	the 	Director’s 	decision 	to 	the	¶7
Department. In addition to appealing the merits of that decision,

Muddy Boys v. Department of Commerce
20170938-CA 	4 	2019 UT App 33
Muddy 	Boys 	also 	asked 	the 	Department 	to 	address 	two
peripheral issues: (a) whether the Director had a conflict of
interest, based on the fact that his agency would have had to pay
any fee award out of budgeted funds, such that the Director
should not have rendered a substantive decision on its motion;
and (b) whether DOPL should be compelled to produce any
communications it may have had with the ALJ.
In 	November 	2017, 	the 	Department 	issued 	an 	order	¶8
affirming the Director’s decision declining to award fees, but
reached 	that 	conclusion 	on 	completely 	different 	grounds,
determining that the attorney fees provision in question applied
only to proceedings brought pursuant to subsection (5) of Utah
Code 	section 	58-55-503, 	and 	not 	to 	proceedings 	brought
pursuant to subsection (4). In its order, the Department expressly
“decline[d] to address” either of the peripheral issues Muddy
Boys raised.
ISSUE AND STANDARD OF REVIEW
Muddy Boys asks us to review the Department’s order,	¶9
and argues that both the Department and the Director erred in
concluding 	that 	the 	applicable 	statute, 	Utah 	Code 	section
58-55-503(5)(d), does not allow Muddy Boys to recover attorney
fees and costs. A party’s challenge to an administrative agency’s
analysis of a statute presents an issue of statutory interpretation
that we review for correctness. Cook v. Department of Commerce,
2015 UT App 64, ¶ 12, 347 P.3d 5.1
1. Muddy Boys also asks us to review the two peripheral issues
that the Department declined to decide: (a) whether the Director
had a conflict of interest that should have prevented him from
issuing a decision on the merits of Muddy Boys’s motion, and
(b) whether DOPL should have been compelled to produce
copies of any communications it had with the ALJ, including a
(continued…)

Muddy Boys v. Department of Commerce
20170938-CA 	5 	2019 UT App 33
ANALYSIS
The main issue presented here is whether Muddy Boys is	¶10
entitled to recover the attorney fees and costs it incurred in
successfully defending against DOPL’s administrative action.
“In Utah, attorney fees are awardable only if authorized by
statute or contract.” R.T. Nielson Co. v. Cook, 2002 UT 11, ¶ 17, 40
P.3d 1119 (quotation simplified). Muddy Boys asserts that it has
a statutory entitlement to recover such fees and costs pursuant to
the 2014 version of Utah Code section 58-55-503(5)(d),2 which
provides that, “[i]n an action brought to enforce the provisions
of this section, the court shall award reasonable attorney fees
and costs to the prevailing party.” Utah Code Ann. § 58-55-
503(5)(d) (LexisNexis 2016).
Section 	503 	is 	comprised 	of 	five 	subsections, 	each	¶11
discussing different kinds of penalties, sanctions, and citations
(…continued)
copy of any un-issued draft order. Because we conclude that
Muddy Boys was not entitled to recover attorney fees under the
governing statute, we need not reach these issues.
2. In 2017, this statute was substantively amended, and the
pertinent subsection was renumbered to Utah Code section 58-
55-503(7)(d). Throughout this opinion, we cite the statute in
effect at the time of the administrative proceedings, which both
parties agree is the provision that applies in this case. We also
note 	that 	the 	2017 	amendment 	contains 	language 	that 	is
substantially different from the 2016 version of the statute,
which language would have made Muddy Boys’s arguments
much 	more 	difficult. 	See 	Utah 	Code 	Ann. 	§ 58-55-503(7)(d)
(LexisNexis Supp. 2018) (stating that, “[i]n an action brought to
collect a penalty” referenced in subsection (7)(a), which action
must be brought in “district court” pursuant to subsection (7)(b),
“the court shall award reasonable attorney fees and costs to the
prevailing party”).

Muddy Boys v. Department of Commerce
20170938-CA 	6 	2019 UT App 33
that may be imposed for violations of other sections of title 58,
part 55. See id. § 58-55-503. Relevant here, subsection (4), among
other things, allows DOPL’s director to issue administrative
citations for certain violations. Id. § 58-55-503(4). Subsection (4)
envisions administrative hearings regarding alleged violations,
which hearings may be initiated either by DOPL, id. § 58-55-
503(4)(a) 	(giving 	DOPL 	the 	option 	of 	requiring 	an 	alleged
violator 	to 	“appear 	before 	an 	adjudicative 	proceeding”
conducted 	under 	Utah’s 	Administrative 	Procedures 	Act
(UAPA)), or by the alleged violator, id. § 58-55-503(4)(b)(ii)
(allowing any person receiving a citation to “contest the citation
at 	a 	hearing 	conducted 	under” 	UAPA). 	Subsection 	(4)(h)
authorizes DOPL’s director to impose fines of “up to $1,000” for
first violations, and “up to $2,000” for subsequent violations. Id.
§ 58-55-503(4)(h). Subsection (5) states:
(a) 	A 	penalty 	imposed 	by 	the 	director 	under
Subsection 	(4)(h) 	shall 	be 	deposited 	into 	the
Commerce Service Account created by Section 13-
1-2.
(b) A penalty that is not paid may be collected by
the director by either referring the matter to a
collection 	agency 	or 	bringing 	an 	action 	in 	the
district court of the county in which the person
against whom the penalty is imposed resides or in
the 	county 	where 	the 	office 	of 	the 	director 	is
located.
(c) A county attorney or the attorney general of the
state is to provide legal assistance and advice to the
director in any action to collect the penalty.
(d) In an action brought to enforce the provisions
of this section, the court shall award reasonable
attorney fees and costs to the prevailing party.

Muddy Boys v. Department of Commerce
20170938-CA 	7 	2019 UT App 33
Id. § 58-55-503(5). The question presented here is whether a party
who prevailed in administrative proceedings initiated pursuant
to 	subsection 	(4) 	is 	entitled 	to recover 	attorney 	fees under
subsection (5)(d), or whether the attorney fees provision is more
limited in scope.
The question presented is one of statutory interpretation,	¶12
and when faced with such a question, “our primary goal is to
evince the true intent and purpose of the Legislature.” State v.
Stewart, 2018 UT 24, ¶ 12 (quotation simplified). “The best
evidence of the legislature’s intent is the plain language of the
statute itself.” Id. (quotation simplified). “[A]bsent a contrary
indication,” we assume “that the legislature used each term
advisedly 	according 	to 	its 	ordinary 	and 	usually 	accepted
meaning.” Marion Energy, Inc. v. KFJ Ranch P’ship, 2011 UT 50,
¶ 14, 267 P.3d 863. “Wherever possible, we give effect to every
word of a statute, avoiding any interpretation which renders
parts or words in a statute inoperative or superfluous.” Stewart,
2018 	UT 	24, 	¶ 	12 	(quotation 	simplified). 	Additionally, 	we
“presume that the expression of one term should be interpreted
as the exclusion of another, and we seek to give effect to
omissions in statutory language by presuming all omissions to
be 	purposeful.” 	Id. 	¶ 	13 	(quotation 	simplified). 	However,
individual words and subsections cannot be viewed in isolation,
but rather must be “construed in connection with every other
part or section so as to produce a harmonious whole.” Id.
(quotation simplified).
Interpreting the statute at issue, the Department and the	¶13
Director each reached the same conclusion—that Muddy Boys
was 	not 	entitled 	to 	attorney 	fees—but 	they 	reached 	that
conclusion on different grounds. In concluding that the statute
did not authorize recovery of fees incurred in defending actions
before administrative tribunals, the Director focused on the
statutory language stating that the “court” shall award fees, and
determined that an administrative tribunal is not a court. The
Department 	took 	a 	different 	tack, 	determining 	that 	the
provision—despite 	its 	use 	of 	the 	term 	“section” 	and 	not

Muddy Boys v. Department of Commerce
20170938-CA 	8 	2019 UT App 33
“subsection”—authorized fee awards only for actions brought
pursuant to subsection (5), and not actions brought pursuant to
subsection (4). As it must in order to prevail here, Muddy Boys
takes 	issue 	with 	both 	approaches, 	asserting 	that 	neither 	is
consonant with what it views as the plain meaning of the
statutory language.
For the purposes of our analysis, we assume—without	¶14
reaching 	the 	merits 	of 	the 	question—that 	the 	Department’s
analysis was incorrect, and that the legislature’s use of the words
“section” and “action” in the first clause of subsection (5)(d)
signals an intent that the attorney fees provision could at least
potentially apply to all “actions” brought pursuant to any of
section 	503’s 	various 	subsections. 	Even 	if 	this 	is 	the 	case,
however, Muddy Boys is entitled to recover attorney fees as the
prevailing party only if the entity positioned to award them is a
“court.” See Utah Code Ann. § 58-55-503(5)(d) (authorizing “the
court” to award attorney fees).
Muddy 	Boys 	correctly 	points 	out 	that 	it 	was 	the	¶15
Director—and not the Department—that espoused the position,
during 	the 	administrative 	proceedings, 	that 	administrative
tribunals are not “courts,” and that therefore, under subsection
(5)(d), 	no 	party 	may 	recover 	attorney 	fees 	incurred 	in
administrative proceedings (as opposed to court proceedings).
Despite having already once passed on adopting that position,
the Department now defends it, and argues that the legislature’s
use of the word “court” makes clear that no administrative
agency 	is 	authorized 	to 	award 	attorney 	fees, 	even 	to 	the
prevailing party. Muddy Boys disagrees, and argues that the
term “court,” as used in subsection (5)(d), is broad enough to
encompass administrative tribunals.
As with any question of statutory interpretation, we begin	¶16
here with an examination of the statutory text. The legislature
used the word “court” to describe the entity that is authorized to
award 	fees. 	Unfortunately, 	that 	term 	is 	not 	defined 	in 	the
relevant statute. Had it been, the definition would have been

Muddy Boys v. Department of Commerce
20170938-CA 	9 	2019 UT App 33
controlling. See O’Hearon v. Hansen, 2017 UT App 214, ¶ 24, 409
P.3d 85. Where a statutory term is undefined, we must endeavor
to determine its plain and ordinary meaning. See Stewart, 2018
UT 24, ¶ 12. Dictionaries, other sections of the Utah Code,3
judicial 	opinions, 	and 	treatises may 	be 	useful 	tools 	in 	this
endeavor. See John Kuhni & Sons Inc. v. Labor Comm’n, 2018 UT
App 6, ¶ 15, 414 P.3d 952 (“When the applicable statute contains
no definition of a relevant term, we may look to case law to see if
courts have provided a definition.”); O’Hearon, 2017 UT App
214, ¶ 25 (“A starting point for a court’s assessment of ordinary
meaning is the dictionary.” (quotation simplified)); id. ¶ 26
(“When a term is not defined within a particular section of the
Utah Code, courts may also look to other sections of the Utah
Code to see whether the same term is defined elsewhere.”); see
also Summit Water Distribution Co. v. Utah State Tax Comm’n, 2011
UT 43, ¶ 16, 259 P.3d 1055 (using a treatise to aid in interpreting
constitutional language).
Muddy 	Boys 	points 	hopefully 	to 	certain 	dictionary	¶17
definitions of “court,” which it contends are broad enough
to 	encompass 	both 	judicial 	courts 	and 	administrative
3. In this case, however, examination of other sections of the
Utah Code is unhelpful, because we find conflicting definitions
and uses of the term “court.” On one occasion, in UAPA itself,
the legislature uses the term in a way that makes clear that it was
not intended to include administrative tribunals. See Utah Code
Ann. § 63G-4-103(1)(b) (LexisNexis 2018) (defining “agency” as
“a board, commission, department, division, officer, council,
office, committee, bureau, or other administrative unit of this
state,” but specifically excluding “the Legislature, the courts, the
governor, 	any 	political 	subdivision 	of 	the 	state” 	(emphasis
added)). On another occasion, however, the legislature uses the
term 	“court” 	in 	a 	much 	broader 	way 	that 	clearly 	includes
administrative tribunals. See id. § 58-67b-117(2) (stating that “[a]ll
courts shall take judicial notice of the Compact and the rules in
any judicial or administrative proceeding”).

Muddy Boys v. Department of Commerce
20170938-CA 	10 	2019 UT App 33
tribunals. See, e.g., Court, Black’s Law Dictionary (10th ed. 2014)
(defining 	“court” 	as 	“[a] 	tribunal 	constituted 	to 	administer
justice,” 	or 	a 	“governmental 	body 	consisting 	of 	one 	or
more judges who sit to adjudicate disputes”); Court, Merriam-
Webster, 	https://www.merriam-webster.com/dictionary/court
[https://perma.cc/S485-46CE] (defining “court” as “an official
assembly for the transaction of judicial business” or “a place
(such as a chamber) for the administration of justice” or “a judge
or judges in session” or “an assembly or board with legislative or
administrative powers”); Court, Bouvier’s Law Dictionary (1934)
(defining “court” as “[a] body in the government to which the
public administration of justice is delegated”).
But these are not the only definitions of the word “court.”	¶18
Some sources define the term by reference to its possession of
inherent judicial powers. See Baumgaertel v. Salt Lake County, 560
P.2d 	325, 	327 	(Utah 	1977) 	(stating 	that 	“[t]he 	term 	‘court’
connotes a governmental institution in which 	is vested the
judicial power of the State”). For example, as has long been
recognized, “the power to punish for contempts is inherent in all
courts.” 	Chambers 	v. 	NASCO, 	Inc., 	501 	U.S. 	32, 	44 	(1991)
(quotation 	simplified). 	But 	administrative 	tribunals 	do 	not
possess judicial power, including contempt power. See, e.g., A-Z
Int’l v. Phillips, 179 F.3d 1187, 1192 n.5 (9th Cir. 1999) (stating that
“only 	courts 	of 	law 	are 	empowered 	to 	punish 	contempt
committed before an administrative tribunal,” and that “most
administrative agencies [have] not been vested with contempt
powers”); 	20 	Am. 	Jur. 	2d 	Courts 	§ 	1 	(2019) 	(stating 	that
“administrative 	agencies 	do 	not 	have 	the 	power 	to 	punish
contempts”). Other sources relatedly define the term “courts” by
reference 	to 	their 	placement 	within 	our 	governmental
framework. Courts are part of the judicial branch of government,
but “administrative agencies are part of the executive branch of
government.” Barrett v. Tennessee Occupational Safety & Health
Review 	Comm'n, 	284 	S.W.3d 	784, 	789 	(Tenn. 	2009). 	These
distinctions are especially relevant here, because the statute at
issue acknowledges that DOPL—an administrative agency—
may assess a fine in administrative proceedings, see Utah Code

Muddy Boys v. Department of Commerce
20170938-CA 	11 	2019 UT App 33
Ann. 	§ 58-55-503(4)(h), 	but 	that, 	due 	to 	the 	inability 	of
administrative tribunals to issue binding judgments or punish
contempts, any collection of unpaid fines or penalties must occur
in district court, see id. § 58-55-503(5)(b).
Accordingly, we do not view this as a case in which we	¶19
can 	easily 	glean 	the 	answer 	to 	our 	statutory 	interpretation
question from dictionary definitions. See GeoMetWatch Corp. v.
Utah State Univ. Research Found., 2018 UT 50, ¶ 21, 428 P.3d 1064
(“The 	dictionary 	alone 	is 	often 	inadequate 	[in 	statutory
interpretation] 	because 	different 	definitions 	may 	support
different interpretations.” (quotation simplified)). For assistance
in 	choosing 	among 	the 	competing 	definitions 	of 	the 	term
“court,” we look to the specific context in which the term is used
here, as well as to judicial opinions, both inside and outside
Utah, that have directly grappled with—rather than merely
mentioned 	the 	term 	in 	passing—the 	meaning 	of 	the 	word
“court” in other contexts.
When examination of the term itself yields inconclusive	¶20
results, examination of its context often can be helpful. See
Stewart, 2018 UT 24, ¶ 13 (stating that individual words and
subsections cannot be viewed in isolation, but rather must be
“construed in connection with every other part or section so as
to produce a harmonious whole” (quotation simplified)). In this
instance, 	the 	term 	“court” 	is 	used 	in 	section 	503 	only 	in
subsection (5), the subsection that discusses the debt-collection
actions that are to be filed in district court. When describing the
procedure used to establish that a licensee is in violation of a
statute and whether a fine or penalty should be imposed, the
legislature used the phrase “adjudicative proceeding conducted
under” 	UAPA. 	Utah 	Code 	Ann. 	§ 	58-55-503(4). 	But 	when
describing the procedure for collecting any imposed fines and
penalties, the legislature stated that the director could bring “an
action in the district court.” Id. § 58-55-503(5)(b). And just two
subsections later, it vested in the “court”—not the “director” or
the “tribunal”—the authority to award reasonable attorney fees

Muddy Boys v. Department of Commerce
20170938-CA 	12 	2019 UT App 33
and costs to the prevailing party. Id. § 58-55-503(5)(d).4 As noted
above, the use of the term “court” in this context is potentially
significant, given that the proceeding discussed in subsection
(5)(b)—one for collection of an unpaid fine or penalty—can be
usefully held only in a court possessing judicial power.
In addition to the clues we can derive from the context in	¶21
which the term “court” is used in section 503, we also are
constrained by our supreme court’s opinion in Frito-Lay v. Utah
Labor Commission, 2009 UT 71, 222 P.3d 55. In that case, the court
confronted 	the 	issue 	of 	whether 	the 	Utah 	Rules 	of 	Civil
Procedure apply to administrative adjudications under UAPA,
the same statute that governed the administrative proceedings in
this case. At issue was a state constitutional provision that
limited judicial rulemaking power to rules applicable to “‘the
courts of the state.’” Id. ¶ 17 (quoting Utah Const. art. VIII, § 4).
The court determined that administrative tribunals were not
“courts of the state,” and therefore concluded that judicially
created rules of procedure are not applicable to “administrative
adjudications [unless] the governing statute or regulations so
provide.” Id. ¶ 18 (quotation simplified); see also id. ¶ 17 (“We are
4. Muddy Boys argues that the legislature’s use of the word
“court”—rather 	than 	“district 	court”—in 	subsection 	(5)(d)
signals a more expansive use of the term “court.” We are not
persuaded. Given the close proximity between subsection (5)(b)
and subsection (5)(d), it was not necessary for the Legislature to
say “district court” in the second reference to the word “court.”
Indeed, it appears likely that the use of the single word “court”
in subsection (5)(d) was meant as a shorthand reference to the
immediately 	preceding 	phrase 	“district 	court” 	used 	in
subsection 	(5)(b). 	This 	resort 	to 	shorthand 	references 	is
something the legislature is known to do in other sections of the
code. 	See, 	e.g., 	id. 	§ 	63G-4-501 	(using 	“district 	courts” 	in
subsection 	(1)(a), 	and 	then 	“court” 	in 	three 	following
subsections); 	id. 	§ 	63G-4-402 	(using 	“district 	courts” 	in
subsection (1)(a), and then “court” in subsequent subsections).

Muddy Boys v. Department of Commerce
20170938-CA 	13 	2019 UT App 33
powerless to impose our court rules on proceedings outside of
state and local courts.”); cf. Baumgaertel, 560 P.2d at 327 (stating
that “[t]he term ‘court’ connotes a governmental institution in
which is vested the judicial power of the State”).
The Utah Supreme Court’s determination, in Frito-Lay,	¶22
that administrative tribunals are not “courts” is a conclusion
almost uniformly shared by courts in other jurisdictions and by
legal 	commentators who 	have 	directly 	addressed 	the 	issue.
Leading legal encyclopedias state it as a matter of hornbook law
that “an administrative tribunal is not a court.” See 16A Am. Jur.
2d 	Constitutional 	Law 	§ 	256 	(2019); 	see 	also 	73 	C.J.S. 	Public
Administrative 	Law 	and 	Procedure 	§ 	35 	(2019) 	(stating 	that
“administrative agencies are not courts, judges, judicial bodies,
or officers, and their proceedings are not judicial”). And because
of the inherent differences between courts and administrative
agencies 	in 	terms 	of 	judicial 	power 	and 	governmental
placement, almost all courts that have directly confronted the
issue have rejected the broad definition offered here by Muddy
Boys, and have concluded—in many different contexts—that the
plain language meaning of the term “court” does not include
administrative tribunals.
Important to this analysis is the fact that administrative	¶23
agencies are part of the executive (and not the judicial) branch,
and do not generally possess judicial power. See, e.g., Quinton v.
General 	Motors 	Corp., 	551 	N.W.2d 	677, 	684–85 	(Mich. 	1996)
(concluding that the doctrine of separation of powers is not
violated when the legislature reopens or sets aside an order
entered 	by 	an 	administrative 	tribunal 	because 	“[a]n
administrative tribunal is not a court—it is not part of the
judicial branch of government”); State ex rel. Stenberg v. Murphy,
527 N.W.2d 185, 193 (Neb. 1995) (“Although it is not always
clear whether a state agency is part of the executive or legislative
department, it is clear that a state agency is not part of the
judicial department of government. Administrative agencies are
not courts.”). Federal courts have determined, for instance, that
litigants cannot remove administrative proceedings to federal

Muddy Boys v. Department of Commerce
20170938-CA 	14 	2019 UT App 33
court because the federal removal statute, 28 U.S.C. § 1441(a),
only authorizes removal of cases pending in a “state court” and,
using a plain language analysis, the term “state court” does not
include 	administrative 	tribunals. 	See 	Oregon 	Bureau 	of 	Labor
& Indus. ex rel. Richardson v. United States W. Commc’ns, Inc., 288
F.3d 414, 418 (9th Cir. 2002) (“It is undisputed that [the Oregon
Bureau of Labor and Industries] is not a court. . . . [It] is an
administrative 	agency, 	albeit 	one 	that, 	like 	many 	others,
conducts court-like adjudications.”); Smith v. Detroit Entm’t, LLC,
919 F. Supp. 2d 883, 886–87 (E.D. Mich. 2013) (using a plain
language analysis to conclude that an administrative agency is
not a “state court,” and that therefore removal was not allowed).
Similarly, 	courts 	have 	also 	determined, 	in 	other 	statutory
contexts, that administrative tribunals do not fall within the
ambit of the word “court.” See Sierra Club v. Two Elk Generation
Partners, Ltd. P’ship, 646 F.3d 1258, 1278 (10th Cir. 2011) (“All but
two 	of 	the 	more 	than 	thirty 	courts 	asked 	to 	rule 	that 	an
administrative tribunal is a ‘court’ for the purposes of preclusion
under the [Clean Air Act] or similar statutes have refused to do
so.” (quotation simplified)); Bud Antle, Inc. v. Barbosa, 45 F.3d
1261, 1271 (9th Cir. 1994) (recognizing that the federal Anti-
Injunction 	Act 	limits 	a 	“federal 	court’s 	power 	to 	enjoin
proceedings in a State court,” but not “in any other entity of state
government, such as a state administrative agency” (quotation
simplified)); Narey v. Dean, 32 F.3d 1521, 1524–25 (11th Cir. 1994)
(concluding that the Rooker-Feldman doctrine, which prohibits a
federal district court from reviewing a final state court judgment,
“applies only to state court decisions, not to state administrative
decisions”).
Muddy 	Boys 	resists 	the 	conclusion 	to 	which 	these	¶24
authorities point by arguing that administrative tribunals must
be 	“courts” 	because 	litigants—and 	even 	courts—sometimes
colloquially refer to them as such. In support of its point, Muddy
Boys refers us to certain instances in this case in which DOPL’s
counsel referred to the administrative tribunal as a “court” or
addressed 	the 	administrative 	law 	judge 	as 	“your 	honor.”
Similarly, Muddy Boys directs our attention to a number of

Muddy Boys v. Department of Commerce
20170938-CA 	15 	2019 UT App 33
unpublished cases in which courts, in passing and without
analysis, sometimes refer to administrative tribunals as “courts.”
See, 	e.g., 	Callister 	Nebeker 	& 	McCullough 	v. 	United 	States,
No. 2:14-CV-919-TC, 2015 WL 5918494, at *8 n.11 (D. Utah Oct. 9,
2015) (“The court assumes, without deciding, that an agency
administrative court decision may be used to collaterally bar an
issue raised in federal district court.”); In re Bryon D. Peterson,
No. 2:10-CV-741, 2011 WL 772664, at *1 (D. Utah Feb. 28, 2011)
(referring in passing to “an Article I administrative court”); Desai
v. Panguitch Main St., Inc., No. 2:04-CV-691DAK-PMW, 2009 WL
54291, 	at 	*1 	(D. 	Utah 	Jan. 	8, 	2009) 	(discussing 	a 	pending
“administrative court decision”); Peterson v. Provo City, 2002 UT
App 430U, para. 1 (referring to the finding of an administrative
body as “the Provo administrative court’s finding”).
The 	manner 	in 	which 	citizens—or 	even 	judges—use	¶25
words 	in 	common 	parlance 	can 	certainly 	play 	a 	role 	in
evaluating the definition and interpretation of those words,
especially 	where 	dictionary 	definitions 	fail 	to 	supply 	a
conclusive definition. See State v. Rasabout, 2015 UT 72, ¶ 57, 356
P.3d 1258 (Lee, J., concurring) (urging courts to employ “corpus
linguistics,” 	a 	method 	of 	interpretation 	which 	involves
“access[ing] large bodies of real-world language to see how
particular words or phrases are actually used in written or
spoken English”). But one of the chief benefits of a corpus-
linguistics-style 	analysis 	is 	that 	it 	offers 	a 	systematic, 	non-
random look at the way words are used across a large body of
sources. See id. ¶ 84 (Lee, J., concurring) (suggesting that, if
corpus linguistics principles are employed, large databases of
language 	usage 	should 	be 	examined, 	rather 	than 	a 	small
sampling, in order to guard against biased selection of sources).
Here, Muddy Boys offers us only a small, hand-picked	¶26
sampling of offhand cultural uses of the word “court,” and
makes no effort to supply us with systematic corpus linguistics
data on the topic. Certainly, the Department has not had a
chance to respond to any such systematic analysis. And we are
uncomfortable engaging any such analysis sua sponte. See id.

Muddy Boys v. Department of Commerce
20170938-CA 	16 	2019 UT App 33
¶ 37 (Durrant, J., concurring) (stating that corpus linguistics
analysis “may be a useful addition to our traditional methods of
statutory construction,” but that “it would be best employed by
us, or by other judges, only after the parties have raised it and
argued 	it”). 	In 	any 	event, 	we 	do 	not 	doubt 	that 	people
sometimes casually refer to administrative tribunals as “courts.”
After 	all, 	those 	tribunals 	are 	often 	presided 	over 	by
administrative law judges, to whom respect is owed, and are
often asked to adjudicate important issues. But a few examples
of this kind of in-passing usage are nowhere near enough to
overcome near-unanimity among courts—including our own
supreme court in Frito-Lay—that have actually considered the
question of whether the word “court,” in various statutory and
constitutional contexts, was intended to include administrative
tribunals.
Although we acknowledge that the statute is not entirely	¶27
clear on this point, we conclude that the legislature, in this
context, intended to use the term “court” in its narrower and
more conventional sense: that “court” refers to the courts that
are part of the judicial branch of government and that possess
the full array of judicial power, including the power to issue
binding orders and judgments and hold violators in contempt.
Accordingly, 	even 	if 	the 	first 	clause 	of 	the 	attorney 	fees
provision signals its application to potentially the entire section,
only 	“courts”—and 	not 	administrative 	agencies—are
empowered to make attorney fee awards.
CONCLUSION
We are not without sympathy to Muddy Boys’s plight.	¶28
The 	company 	was 	inaccurately 	accused 	of 	committing
administrative 	violations, 	and 	threatened 	not 	only 	with
sanctions against its contractor license but also with imposition
of a six-figure fine. It required the expenditure of over $80,000 in
attorney fees, and two significant pre-hearing rulings, for DOPL
to realize that it could not and should not proceed with its case.
If this were just a question of fairness, we would have no trouble

Muddy Boys v. Department of Commerce
20170938-CA 	17 	2019 UT App 33
concluding that Muddy Boys should be entitled to recover its
attorney fees so that it could be made whole.
But the question before us is not one of fairness. It is one	¶29
of statutory interpretation. The statute upon which Muddy Boys
rests its claim for attorney fees authorizes only “the court” to
award attorney fees, and in this context we conclude that the
legislature 	did 	not 	intend 	the 	term 	“court” 	to 	include
administrative agencies. Accordingly, we decline to disturb the
Department’s conclusion that Muddy Boys is not entitled to
recover the attorney fees it incurred in successfully defending
itself against DOPL’s administrative prosecution.