Jackson v. Utah — Sovereign Immunity Brief
Bruce M. Pritchett (6781)
RUDD | COOPER
75 Towne Ridge Parkway, Suite 125
Sandy, Utah 84070
Telephone: (801) 676-5337
Email: bpritchett@ruddfirm.com
Daniel E. Holloway (pro hac vice)
DEH Law
1362 Promise Road, Unit 1305
Rapid City, SD 57701
Telephone: (404) 670-6227
Email: dan@dehlegal.com
Attorneys for Plaintiff
IN THE THIRD JUDICIAL DISTRICT COURT
SALT LAKE COUNTY, STATE OF UTAH
BROOKE JACKSON and JEROMEY JACKSON, individually and on behalf of the estate of HUNTER JACKSON, and as heirs of HUNTER JACKSON, deceased, and on behalf of their minor daughter, C.J.,
Plaintiffs,
— versus —
STATE OF UTAH; UTAH DEPARTMENT OF CORRECTIONS; UTAH BOARD OF PARDONS AND PAROLE; UTAH ADULT PROBATION AND PAROLE; WASATCH BEHAVIORAL HEALTH; PRIMARY CHILDREN’S HOSPITAL, a d/b/a of IHC HEALTH SERVICES, INC.; DONOR CONNECT; KENT CODY BARLOW; TIFFANY WALDEN; ZJT MANAGEMENT LLC; and DOES 1-10,
Defendants.
Opposition to Wasatch Behavioral Health’s Motion to Dismiss
Civil No. 240903471
Hon. Stephen Nelson
TABLE OF CONTENTS
PART ONE: NON-CONSTITUTIONAL ISSUES
Counties & Analogues to Special Districts
7. The Utah Constitutional Convention rejected the doctrine of sovereign-immunity.
English Law, circa 1776: Sovereign Immunity as a Limited Procedural Doctrine
Revolutionary America & the Great Conundrum
The US Constitution & Ratification
Chisholm v. Georgia (1793), the 11th Amendment, & Caselaw through the Civil War
Abuse of LDS at the Hands of Governments
After the Civil War: Accommodating the Southern States’ War Debt
Chronic Controversy and the Weight of Ipse Dixit
Summing Up: The Lack of Foundation for Sovereign Immunity
TABLE OF AUTHORITIES
Cases
Berry v. Beech Aircraft, 717 P.2d 670 (Utah 1985) ............................................................... 14, 15
Bingham v. Board of Education, 118 Utah 582 (1950) .......................................................... 16, 51
Chisholm v. Georgia, 2 US 419 (1793) .................................................................. 16, 46-47, 50-51
Cohens v. Virginia, 19 US 264 (1821) ......................................................................................... 48
ET v. RKB, 2017 UT 59 ............................................................................................................. 10
Fenton v. Salt Lake County, 3 Utah 423, 4 P. 241 (Sup. Ct. 1884) ............................................. 20
Fritsch v. Board of Commissioners of Salt Lake County, 15 Utah 83 (1897) ......................... 20-21
Hans v. Louisiana, 134 US 1 (1890) ............................................................................................. 50
Larsen v. Davis County, 2017 UT App 221 ........................................................................... 17-18
Lewis v. U.S. Bank, 2020 UT App 55 ............................................................................................ 8
Marbury v. Madison, 5 U.S. 137 (1803) ...................................................................................... 34
Scott v. Utah County, 2015 UT 64 ........................................................................................ 14, 17
SH v. State, 865 P.2d 1363 (Utah 1993) ................................................................................ 17, 51
Taylor v. County Court, 2 Utah 405 (1877) ................................................................................ 19
Tiede v. State, 915 P.2d 500 (Utah 1996) .................................................................................... 17
Wilkinson v. State, 42 Utah 483 (1913) ............................................................................ 16, 51-52
Statutes
Utah Code § 17D-1-208 ................................................................................................................. 8
Utah Code § 58-13-2.5 ................................................................................................................. 54
Utah Code § 63G-7-102 ............................................................................................................... 10
Utah Code § 63G-7-201(4)(b) ......................................................................................................... 9
Utah Code § 63G-7-202(3) ........................................................................................................... 23
Utah Code § 63G-7-301(2)(i) .................................................................................................... 9, 11
Utah Code § 68-3-1 ...................................................................................................................... 15
Rules
Utah R. Civ. P. 8(e) ....................................................................................................................... 9
Utah R. Civ. P. 15(a)(3) ..... ............................................................................................................ 9
Constitutional Provisions
U.S. Constitution, Article III ....................................................................................... 35-37, 41-47
U.S. Constitution, 11th Amendment ...................................................................................... 47-48
Utah Constitution, Article I, § 2 ................................................................................................... 27
Utah Constitution, Article I, § 11 ................................................................................................. 26
Utah Constitution, Article I, § 27 ................................................................................................. 13
Utah Constitution, Article XI, § 7 .................................................................................................. 8
Utah Constitution, Article XVI, § 5 ............................................................................................. 26
Other Legal Authorities/Documents
1888 Compiled Laws of Utah ................................................................................................. 18-25
1898 Revised Statutes of Utah .................................................................................... 15, 19, 28-29
Declaration of Independence .................................................................................................. 34-35
Poland Bill .................................................................................................................................... 24
Restatement (Second) of Torts ..................................................................................................... 10
Books & Articles
Ballentine's Law Dictionary ......................................................................................................... 10
Celia, Jim and Farley Grubb, "Van Cleve, George William. "The Anti-Federalists' Toughest Challenge: Paper Money, Debt Relief, and the Ratification of the Constitution." Journal of the Early Republic 34, no. 4 (2014) ....................... 45
Elliot, Jonathan, The Debates In The Several State Conventions of the Adoption of The Federal Constitution ("Elliot's Debates") ........................................................................................................................ 39, 42, 43
Engdahl, David E., "Immunity and Accountability for Positive Governmental Wrongs," University of Colorado Law Review 44, no. 1 (August 1972) ................................................................................................................................ 33
Ewald, William. "The Committee of Detail." Constitutional Commentary 28 (2012) ........................ 39
Fortin, Marie-France, The King Can Do No Wrong: Constitutional Fundamentals, Common Law History, And Crown Liability (Oxford, 2024) ....................................................................................................... 33, 34
Gibbons, John J., "The Eleventh Amendment and State Sovereign Immunity: A Reinterpretation," Columbia Law Review 83, no. 8 (December 1983) .................................................................................................................... 49, 50
Hamilton, Alexander, The Federalist No. 80 ......................................................................... 40-41
Hamilton, Alexander, The Federalist No. 81 ......................................................................... 41-42
Hartley, L.P., The Go-Between, H. Hamilton, London (1953) ............................................... 25
Hoock, Holger. Scars of Independence: America's Violent Birth. Crown Publishing Group (2017) 35
Maier, Pauline. American Scripture: Making The Declaration Of Independence. Vintage (2012) 34
Pfander, James E., "Sovereign Immunity and the Right to Petition: Toward a First Amendment Right to Pursue Judicial Claims Against the Government." Northwestern University Law Review 91 (1996) ..................................... 33, 34
Randall, Susan, "Sovereign Immunity and the Uses of History," Nebraska Law Review 81 (2002) 30, 37, 38, 51
Ruskin, John, The Works of John Ruskin, E.T. Cook, ed., Longmans, Green, and Co., New York (1905) 56, 57
Scalia, Antonin, "Historical Anomalies in Administrative Law," Yearbook: Supreme Court Historical Society (1985) 34
Wade, William. "The Crown, ministers and officials: legal status and liability" in The Nature of The Crown: A Legal and Political Analysis (1999) ........................................................................................................................... 33
INTRODUCTION
The dismissal motion by Wasatch Behavioral Health (“Wasatch”) fails for the same reasons the State’s motion fails. Instead of repeating the arguments in their Opposition to the State’s motion, Plaintiffs incorporate all those arguments here by reference as if set forth fully.
The remainder of this brief addresses additional issues. In Part 1, we address the additional issues raised by Wasatch’s motion, as well as the December 16, 2024, order in a companion case that the Defendants have submitted as supplemental authority in this case. In Part 2, we provide additional discussion of the constitutional infirmities of the Governmental Immunity Act. That discussion is focused on Wasatch, but much of the discussion applies equally to the State.
PART ONE: NON-CONSTITUTIONAL ISSUES[1]
1. The public-duty doctrine and Governmental Immunity Act defenses do not apply, for the same reasons discussed in Plaintiff’s Opposition to the State’s motion to dismiss.
Most of the non-constitutional arguments in response to Wasatch’s motion are made in Plaintiffs’ opposition to the State’s motion to dismiss. We incorporate all those arguments by reference but do not repeat them here. Instead we address here only the issues unique to Wasatch’s motion.
2. Wasatch has not shown that they are a “governmental entity” as defined by the Governmental Immunity Act, so Wasatch has no claim to immunity under the Act.
At this stage of the case, Wasatch’s claim for immunity under the Governmental Immunity Act motion fails. A claim of immunity is an affirmative defense on which Wasatch bears the burden of proof. Wasatch has not shown it is a governmental entity, so its claim of immunity fails at step one. On a dismissal motion, the Court may take judicial notice of appropriate facts. See Lewis v. U.S. Bank, 2020 UT App 55, ¶ 14. But Wasatch offers nothing the Court can take proper judicial notice of, to prove it is a governmental entity.
Wasatch claims to be a special service district of Utah County, but they offer no proof. The Utah Constitution and statutes provide for counties to create special service districts by resolution or ordinance. See Utah Const. Art XI, § 7; Utah Code § 17D-1-208. Wasatch does not present any verifiable, timely resolution, ordinance, or other enactment of Utah County that creates Wasatch as a special service district. (We have looked for such a resolution or ordinance and haven’t found one.)
Wasatch cites only to their Annual Report on their website. (Motion, p. 10.) But a statement in Wasatch’s own annual report on their own website is not a sufficient basis for taking judicial notice. The Rules of Evidence limit judicial notice to a fact that is “not subject to reasonable dispute because it: (1) is generally known within the trial court’s territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Utah Rule Evid. 201. Wasatch’s putative status as a special service district is not generally known within this Court’s territorial jurisdiction, nor is a statement in Wasatch’s annual report on their website a source “whose accuracy cannot reasonably be questioned.”
Because Wasatch has not shown it is a governmental entity, its motion fails at step one.
3. The punitive damages claim against Wasatch survives dismissal because Wasatch has not shown it is a governmental entity.
If Wasatch provides proper proof that it is a duly formed governmental entity, then it would not be subject to punitive damages. On its motion to dismiss, however, it has not shown the proper documents to prove this factual issue. So Plaintiffs’ claim for punitive damages should not be dismissed.
4. Immunity for injuries caused by assault or battery does not apply, because Kent Cody Barlow’s reckless driving did not constitute assault or battery.
Unlike the State, Wasatch invokes the Governmental Immunity Act’s § 201(4)(b) assault and battery exception to the general waiver of immunity in § 301(2)(i). But none of the injury-causing acts in this case constitute assault or battery.
The Governmental Immunity Act does not define “assault” or “battery,” so those terms have their ordinary dictionary meanings. See § 63G-7-102 (definitions). See also ET v. RKB, 2017 UT 59, ¶ 52 (“Because the terms … are not defined in the statute, we turn first to dictionary definitions for guidance”).
The ordinary meanings of “assault” and “battery” require an intentional act. Dictionaries define both terms as referring to intentional acts. E.g., Ballentine’s Law Dictionary, “assault: 1. A demonstration of an unlawful intent by one person to inflict immediate injury….”; “battery: 1. The unlawful touching or striking … with the intention of bringing about a harmful or offensive contact….” This accords with the general understanding of assault and battery in the law. See, e.g., Rest. Torts 2d, § 13 (battery as an intentional tort); § 21 (assault as an intentional tort).
For criminal law, Utah statutes specifically expand the mental state required for assault or battery to include recklessness. Wasatch seeks to import those specific statutory provisions into the Governmental Immunity Act. (Motion, p. 14-15.) But Utah’s criminal statutes do something the Governmental Immunity Act does not: they employ specific definitions for purposes of those particular statutes. The tailor-made criminal statutes do not apply to the Governmental Immunity Act, nor do they change the ordinary meanings of the terms “assault” and “battery” that Utah courts recognize in the absence of statutory definitions to the contrary. Indeed, the definitions in the criminal statutes are necessary in part because they depart from the ordinary meanings of the words. The Governmental Immunity Act could have defined assault and battery as including reckless conduct as well as intentional conduct. But the Act does not take that step. So the ordinary meanings of those terms apply.
This case does not involve an assault or battery as those terms are ordinarily understood. Hunter Jackson, Odin Ratliff, and Hunter’s surviving sister suffered injury from a reckless car crash. The Complaint does not allege that Kent Cody Barlow intended to crash his car into the children, nor that he intended to harm the children. Nor has Wasatch presented any evidence to prove Barlow had such an intention (and certainly has not proved it as a matter of law). The assault and battery exceptions to the Act’s waiver do not apply here.
Finally, even if the assault and battery exceptions did apply, under the 2017 amendment to the Act, an exception would apply (and immunity would be preserved) only if the battery was less than a proximate cause of the injuries. SeeOpposition to the State’s motion to dismiss. If the car crash did meet the definition of a battery (which it does not), then the crash certainly would have been a proximate cause of Hunter Jackson’s death. In that case, pursuant to the 2017 amendment, immunity would be waived.
5. The December 16, 2024, order in a companion case does not illuminate the issues before this Court.
In a companion case brought by Odin Ratliff’s parents, the trial court granted the motions to dismiss brought by the State and Wasatch. The Defendants have submitted that December 16, 2024, order as supplemental authority in this case. The order appears to have been written by the defendants in that case, to document a ruling from the bench following a hearing. The Defendants submit only the final order, not the transcript of the hearing.
The companion-case order does not bind this Court, and the order’s persuasive value is negligible because the order offers limited analysis on a different set of arguments.
First, as to the public-duty doctrine, the order makes no mention of Scott v. Utah County, 2015 UT 64. It would be difficult to square the order’s application of the public duty doctrine with Scott’s holding that the doctrine does not apply to negligence in the State’s operation of a work-release program for prisoners. The order says “negligent hiring, retention, and supervision are alleged omissions” but does not explain how Scott permits the act/omission distinction to be made at the level of granular events rather than, as in Scott, at the macro level. Nor does the order explain how at the pleadings stage a court can make a broad finding of fact that negligent hiring, retention, and supervision could not possibly involve affirmative acts as well as omissions. Such a finding of fact is implied by the order, but the finding would seem impossible. As to the application of a special relationship if the public-duty doctrine did apply, again the order does not explain how Scott can be read to preclude such a relationship here.
Second, as to the Governmental Immunity Act, the order makes the same mistakes the Defendants make here — (a) ignoring the possible states of facts that may exist and that would support the claim and (b) assuming that initial, pre-discovery allegations in the complaint are non-amendable and conclusive for all time. That is, the order ignores or misapplies the legal standards that govern dismissal motions at the pleadings stage. Thus, the order:
· assumes the Parole Board’s negligence consisted only of discretionary, quasi-judicial functions (i.e., granting parole), while ignoring any potential negligence in non-discretionary functions
· assumes that the injuries did indeed result from misrepresentations by government employees — i.e., treating initial, pre-discovery allegations concerning misrepresentations as non-amendable if the actual facts do not support them
· assumes that the necessary causal relationships do in fact exist (or not).
In effect, the order makes sweeping findings of fact on the basis of literally zero evidence and ignores the standard on dismissal — which requires considering all possible states of facts. That is not permissible on a motion to dismiss at the pleadings stage.
Third, the Ratliff order does not address the 2017 amendment of the Governmental Immunity Act, or the impact of the amendment on how § 301(2)(i) interacts with § 201(4).
Fourth, the order does not address the question of the constitutionality of the Act with respect to (a) Article I § 11’s open courts clause; (b) Article XVI § 5’s wrongful death clause; (c) government employees or (d) political subdivisions of the State, such as counties or special service districts.
In short, the analysis written by the State/Wasatch and signed by the court in Ratliff does not sustain the decision there or support a similar decision here.
PART TWO: THE GOVERNMENTAL IMMUNITY ACT IS UNCONSTITUTIONAL AS IT RELATES TO COUNTIES (OR ARMS OF A COUNTY, LIKE WASATCH) OR THEIR EMPLOYEES.
“Frequent recurrence to fundamental principles is essential to the security of individual rights and the perpetuity of free government.”
— Utah Constitution, Art. I, § 27
“It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV.”[2]
— Oliver Wendell Holmes
We believe the dismissal motions fail based on the non-constitutional issues addressed above. If the Court so finds, then the Court need not reach the constitutional issues. In the discussion below, therefore, we assume for the sake of argument that immunity applies, and the Complaint would be subject to dismissal but for the constitutional infirmity of the Governmental Immunity Act. To emphasize: That’s an assumption for the sake of argument, not a concession.
Wasatch claims to be a special service district created and overseen by Utah County. Wasatch does not claim to be an arm of the State of Utah, which presumably is why they’re not sharing attorneys with the State. As discussed in Plaintiffs’ opposition to the State’s motion to dismiss, the open courts and wrongful death clauses of the Utah Constitution preserve claims that existed at the time Utah was founded — unless Utah law provides a similar alternative remedy, or necessity requires eliminating the claim to cure an important public evil. See Berry v. Beech Aircraft, 717 P.2d 670 (Utah 1985) and its progeny.
Summary of Argument
The Utah Constitution trumps statutes and judge-made law. The 1895 Constitution preserved causes of action that existed at the time of its ratification, which included wrongful death claims.
When the 1895 Utah Constitution was ratified, the then-existing Territorial Code of 1888 provided generally for the sue-ability of government officers, cities & towns, counties, and various state bodies (the university, insane asylums, etc.). The 1888 Code of Civil Procedure recognized that the Territory itself could be a defendant in civil cases in court. The 1888 Code said nothing about sovereign immunity.[3] The 1888 Code provided a wrongful death cause of action against “the person who, or the company or corporation which” caused the death. The Territorial Supreme Court treated counties (along with cities and towns) as corporations liable for duties they undertook. At the time of ratification, therefore, counties as well as their employees were subject to wrongful death claims in court. “Special service districts” by that name do not appear in the 1888 Code, but analogous bodies — irrigation districts — were created by the county courts, and the trustees of an irrigation district likewise had power to sue and be sued. Under the Utah Constitution and its related historical antecedents, as well as Berry v. Beech Aircraft and its progeny, Wasatch and its employees are subject to wrongful death claims.
The Governmental Immunity Act purports to eliminate Plaintiffs’ claims against Wasatch, the State, and their employees entirely, leaving no meaningful substitute. And not because it is necessary to cure a great public evil. To the contrary, the Act increases danger to the public from negligence by government employees. People act with less care and diligence, and cause more harm, when they are not accountable for their negligence. And governmental impunity creates distrust in government and increases the danger of dissension and civil strife. It is unhealthy for a society when its government says, as they do here, “We have a privilege to do sloppy work that gets your children killed. You have no recourse or recompense against us.”
To the extent the Governmental Immunity Act has any support, it arises only from an extra-constitutional notion of sovereign immunity. That notion — the government enjoys a privilege to commit torts against the people — is extraordinary. The proponents of the privilege have the burden of proving that the Constitution grants the privilege. Extraordinary claims require extraordinary evidence. The evidence does not exist.
The concept of sovereign immunity has a long, questionable past. It appears nowhere in Utah’s Constitution. Support supposedly comes from English common law, but the post-ratification Utah Code of 1898 requires an explanation of how that doctrine comports with the Utah Constitution. The 1898 Code provided, “The common law of England, so far as it is not repugnant to, or in conflict with the constitution and laws of the United States, or the constitution and laws of this state, shall be the rule of decision in all the courts of this state.” 1898 Code, § 2488 (now Utah Code 68-3-1). So to import sovereign immunity from England into Utah, a judge would have to explain how sovereign immunity is consistent with the Utah Constitution, a tripartite system of government with divided powers but no “sovereign,” and popular sovereignty (and with the Constitutional Convention having considered and rejected a sovereign-immunity clause). To our knowledge, no Utah court has ever attempted such an explanation — which would be difficult. In 1913, nearly 20 years after the Utah Constitution was ratified, the Utah Supreme Court wrote that the doctrine of sovereign immunity “is elementary and of universal application, and so far as we are aware there is not a single authority to the contrary.” Wilkinson v. State, 42 Utah 483 (1913). But the Wilkinson court did not support its assertion with evidence. Nor did the court discuss how the doctrine could comport with the Utah Constitution. Factually, the court was simply wrong: For example, in 1793, four years after ratification of the US Constitution, the US Supreme Court famously rejected the doctrine of sovereign immunity. See Chisholm v. Georgia, 2 US 419. Wilkinson was factually inaccurate, unexplained ipse dixit, but it continues to serve as the origin of sovereign immunity in Utah.[4]
Judges have imposed sovereign immunity on the Constitution and the People of Utah essentially by judicial fiat. At best, one might say they have treated the Constitution as containing sovereign immunity as an unwritten, invisible clause — a ghost. Such a claim requires compelling evidence, but as with ghosts generally, evidence for its existence is scant.
Courts have long recognized that the doctrine of sovereign immunity is dubious and fosters injustice. Seventy-five years ago, on a 3-2 split decision, the Utah Supreme Court majority wrote:
While law writers, editors and judges have criticized and disapproved the foregoing doctrine of governmental immunity as illogical and unjust, the weight of precedent of decided cases supports the general rule and we prefer not to disregard a principle so well established without statutory authority.
Bingham v. Board of Education, 118 Utah 582 (1950). The two dissenters wrote that “the entire doctrine of sovereign immunity is inconsistent with justice” and that “we should judicially strike the ax at the very roots of this tree of governmental immunity grown from a by-gone time.”
Nonetheless, in the 75 years since Bingham, Utah courts have largely stood by, seemingly helpless, as sovereign immunity has worked injustice upon injustice and the human wreckage has risen. In Bingham itself (1950), a three-year-old girl was severely burned by an incinerator that a school put by a playground. 223 P.2d at 433. The majority noted its sympathy but felt constrained to absolve the school district. In SH v. State (1993), the government negligently hired a driver who then sexually assaulted a deaf child. The Supreme Court split again 3-2 in finding the government beyond accountability. The majority wrote that “Plaintiffs may find the immunity given by the legislature unconscionable, but their remedy lies with that same legislature.” 865 P.2d 1363. No such remedy came. In Tiede v. State (1996), the government negligently supervised a pair of felons, who walked away from a halfway house, killed two women, gravely injured the husband of one, and kidnapped and assaulted two young girls. The Supreme Court again sympathized but deemed the State unaccountable. 915 P.2d 500, 504. In Scott v. Utah County (2015), county workers negligently allowed a prisoner to escape. The prisoner approached Mika Scott on the Provo River Trail, forced her into the bushes, choked her, hit her in the head with a cinder block, and raped her. 2015 UT 64, ¶ 10. In Larsen v. Davis County (2017), the Court of Appeals felt constrained to write that, “It might seem counterintuitive that our law provides no civil remedy against a school district that is alleged to have negligently hired and retained a teacher who has illegal sexual contact with her minor students.” (It seems less counterintuitive if we recall that those who authorize payment for accountability tend not to favor accountability.) The court went on to note that “Decades ago, after reluctantly dismissing a somewhat similar case, our supreme court invited legislative action.” But the legislature was unmoved. So the Court of Appeals deemed the county unaccountable. 2017 UT App 221, ¶¶ 41-42. Thus, today our legislature and courts have granted the government a privilege the government did not enjoy at ratification — a privilege to commit torts, including torts that cause the ones we love to be raped or murdered.
But we have a Constitution. Neither the legislature nor the courts have authority to grant that privilege to the government. It’s time for Utah’s courts to restore the Constitutional order.
6. At ratification of the 1895 Utah Constitution, individuals could sue counties and special districts as well as government employees.
Wasatch purports to be a special services district created and supervised by Utah County — that is, an arm of the County. As to the ability to sue, seven years before ratification of the Utah Constitution, the 1888 Territorial Code put counties (and cities, and towns, and various Territorial bodies) on the same footing as private corporations. All had power to “sue and be sued.” The Code put no general restrictions on what counties could be sued for, and the Code endowed counties with no general immunity from tort liability.
Cities & Private Corporations
Private Corporations: In American law generally, corporations are liable for their torts. The 1888 Code expressed this principle by saying private corporations “shall have power to make contracts, to sue and be sued, to have a seal,” etc. The Compiled Laws of Utah (1888) (“1888 Code”), § 2272 (Appendix A, p. 56.)
Cities: In American law generally, cities are corporate bodies liable for their torts. For cities, the 1888 Code again expresses that principle in essentially the same language as for private corporations: “Cities incorporated under this act shall be bodies politic and corporate and … may sue and be sued, contract and be contracted with,” etc. Id., § 1719 (p. 34).
Counties & Analogues to Special Districts
Counties
In this respect, the 1888 Code treats counties the same as private corporations and cities: counties are “bodies corporate and politic” with power “1. To sue and be sued. 2. To purchase and hold land,” to make such contracts, etc. Id., §§ 169, 172 (p. 25). An annotation to the later, post-ratification Code of 1898 suggests that this general power to sue and be sued was enacted to remedy an 1877 decision by the Territorial Supreme Court. The 1898 Code annotates the general sue-and-be-sued provision with a note concerning Taylor v. County Court, 2 Utah 405 (1877). In that case, 11 years before the 1888 Code, the court wrote that “There is in this Territory no statute allowing a county to be sued” and that therefore a writ of mandamus was the proper remedy. So the later Codes included an express power for counties “to sue and be sued.” From the 1898 Code:
(Appendix B, p. 18.)
Returning to the pre-ratification, 1888 Code: It did not limit the types of claims that could be presented or sued for. The 1888 Code did include procedural requirements for lawsuits against counties, but no substantive limitations. The Code required that claims be presented to the county court first. After that, “A claimant dissatisfied with the rejection of his claim or demand … may sue the county therefore, at any time within six months after the final action of the court.” Id., § 199 (Appendix A, p. 28). The Code of Civil Procedure similarly provided for “actions on claims against a county, which have been rejected by the county court.” Id., § 3148 (p. 67).
The Code nowhere says or even hints that counties enjoy a privilege to commit torts against anyone. The Code makes no mention of immunity for counties, either as to contract or tort liabilities.
Nor do the Territorial courts seem to have been aware of any tort immunity or privilege for counties. The Territorial Supreme Court treated tort claims against counties as allowable but subject to the procedural requirement of presentation to the county court before suit. Thus, in 1886 (nine years before the 1895 Constitution), the Territorial Supreme Court reversed judgment in favor of the plaintiff in a tort claim against Salt Lake County — but only on the ground that the plaintiff had not first presented the claim to the county court. The county had constructed canals near the plaintiff’s land, diverting an existing stream. The trial court entered judgment in favor of the plaintiff and against the county. Fenton v. Salt Lake County, 3 Utah 423, 4 P. 241 (Sup. Ct. 1884). So far as the trial judge and the Territorial Supreme Court knew — a decade before ratification — the law did not endow counties with immunity or a privilege to commit torts.
In 1897, two years after ratification, the Utah Supreme Court again took for granted that counties could be sued for their torts (meaning the torts of their agents). In Fritsch v. Board of Commissioners of Salt Lake County, the court addressed the limits on a county’s ability to incur and pay “debts.” One important factor was the potential for a county to become a judgment debtor because of negligence by its agents. Despite the absence of any statute specific to tort lawsuits against counties, the parties and the Supreme Court took for granted that a county was liable for torts:
It is also urged that only indebtedness arising from voluntary contracts should be included, in determining when the limit is reached. That indebtedness for salaries and liabilities for the negligence of the officers or agents of the county for which it may be liable should not be included. The language of the constitutional provision is, “No debt in excess of the taxes for the current year shall be created.” That language includes all debts where the proposition to create has not been submitted to the electors. The number of officers of the county, and their salaries, are largely within the discretion of the county board. The commissioners, by the exercise of reasonable foresight and discretion, can avoid any lack of revenue for the payment of salaries or fees, or the payment of damages in consequence of torts, by taking such salaries and fees into consideration in estimating the amount of the tax levy, and by making a reasonable estimate for extraordinary demands for torts. They have the means of ascertaining, when making their estimate and assessment of taxes for the year, the precise expenditures of the preceding years, and, with the exercise of reasonable foresight, caution, and care, they can make an assessment sufficient to meet all just demands for the year.
15 Utah 83 (1897).
The Supreme Court around the time of ratification was in a position to know whether the law of the time allowed counties to be sued for torts. The Supreme Court of that time, and the statutes of the time, both confirm the answer is Yes.
Wasatch will want to say the general power of counties to “sue and be sued” did not mean what it says. Wasatch will want to say that to sue a county, there had to be some additional, specific statute saying “counties can be sued for X, for Y, for Z,” etc. Such a reading is not credible. The 1888 Code contained no such additional, specific authorization for lawsuits against counties. The Code contained only the general authorization. Wasatch’s desired reading would make nonsense of the 1888 Code and would require concluding that the Supreme Court around the time of ratification was unaware of a supposedly fundamental principle of law that everyone knew. That conclusion would require willful blindness and hubris.
Public Bodies Analogous to Special Districts
In 1888, the terms “special district” and “special service district” were not in use, but the 1888 Code addressed similar types of public bodies — and made them capable of suing and being sued, the same as private corporations. Thus, irrigation districts were created by the county courts, and the trustees of an irrigation district had power to sue and be sued. 1888 Code, §§ 2403, 2413 (Appendix A, p. 59, 62). Other public bodies also were given the power to sue and be sued. The University of the State of Deseret is created as a public body and, “The chancellor and board of regents are a body corporate, to sue and be sued….” § 1832 (p. 38). Same with the Territorial insane asylum. § 1948 (p. 42). And with the Deseret Agricultural and Manufacturing Society. See § 2126 (p. 48). The 1888 Code provided that a humane society may appoint its agents as deputy sheriffs, but the society was liable for the acts of those deputy sheriffs it had appointed. See § 4777 (p. 93).
Since Wasatch is (purportedly) an arm of Utah County, created and supervised by the county, it is similarly subject to lawsuits and tort liability.
Government Employees
After sufficient discovery in this case, Plaintiffs intend to amend the Complaint to substitute the culpable employees for the Doe Defendants. Those substitutions are permissible under Rule 15(c) because of the identity of interest between those employers and the defendants originally named in the Complaint. See generally Penrose v. Ross, 2003 UT App 157, ¶¶ 16-20. So the lack of sovereign immunity for government employees is relevant here.[5]
By way of background: Even under English law, individual government employees were personally liable for wrongs they committed on the job. “[T]he law of governmental liability was … developed on the old foundations of individual officers’ and crown servants’ personal liability.”[6] “[I]mmunity [did] not extend to ministers and Crown officers, who were liable personally in law for anything unlawful that they did.”[7]
This personal liability carried over into American law, at least until post-Civil War legislators and judges developed an enthusiasm for governmental immunity: Before that, “American courts seized this principle of personal official liability, modified it somewhat, and applied it with unprecedented vigor.”[8]
In Utah law at the ratification of the Utah Constitution, government officers and employees were personally liable for torts they committed in their official work. The 1888 Code provided no immunity. To the contrary, the Code repeatedly made clear that officers and employees were personally liable for damages caused by negligence in their duties.
The Code generally required officers to post bonds upon taking office, to cover damages that might be caused by their negligence in office. Even federal congressional law — not just Territorial statutes — required such bonds. For example, the federal “Poland Bill” governing territorial courts required court marshals to post a bond in the amount of $10,000 (in 1860’s money), which would be available “in actions brought against said marshal for the misfeasance or nonfeasance of any deputy.” Poland Bill, § 1 (Appendix A, p. 4.). Note that this was not just individual liability, but vicarious liability for government torts. Similarly, the Territorial statutes required bonds of various Territorial officers. See, e.g., § 28 re. surveyor general (p. 6); § 30 re. sealer of weights & measures (p. 7); § 39 re. deputy sealers of weights and measures (p. 9); etc.
In ways both general and specific, the 1888 Code made clear that government officers and employees were subject to civil lawsuits by the people. Thus:
· §§ 106, 163 (Appendix A, pp. 11, 23): Sheriffs liable for damages for failing to make service of process.
· § 112 (p. 12): Sheriffs and jailors liable to a prisoner for damages caused by failure to deliver legal papers to the prisoner.
· §§ 141, 148, 153 (pp. 18, 20): Recorders and deputy recorders liable for damages caused by negligent performance of duties.
· § 1990 (pp. 45-46): Custodians of insane persons liable for damages caused by cruel treatment.
· §§ 3960-62 (p. 88): An officer arresting a witness despite knowing the arrest is unauthorized is liable to the witness for twice the actual damages.
More generally, the 1888 Code of Civil Procedure provided a 2-year statute of limitations for “an action against a marshal, sheriff, coroner or constable upon a liability incurred by the doing of an act in his official capacity, and in virtue of his office, or by the omission of an official duty.” § 3145(2) (p. 65). The Code provided a 1-year limitations period for such actions, if the offense concerned the escape of a prisoner. § 3146, ¶ 4 (p. 66). The Code provided a 6-month limitations period for actions against “an officer, or officers de facto” for damages to person or property that occurred during the seizure of property. § 3147, ¶ 1 (p. 66). Note that this provision does not specify any particular type of officer. The Code of Civil Procedure provided for verification of an answer to a complaint “unless an officer of the Territory, in his official capacity, is a defendant.” § 3234 (p. 69).
In the old days, the law allowed for arrest of a defendant in a civil case, in certain circumstances. (“The past is a foreign country: they do things differently there.”[9]) Under the 1888 Code of Civil Procedure, those circumstances included “an action … for money or property embezzled … by a public officer … or for misconduct or neglect in office.” § 3261, ¶ 2 (p. 72).
If an officer arrested a defendant but the defendant then escaped, the arresting officer was personally liable up to the amount required for bail. §§ 3283-84 (p. 76). The 1888 Civil Code also provided that after a plaintiff received a judgment, a marshal or sheriff must execute on it and was personally liable to the plaintiff for treble damages for neglect or refusal to pay the plaintiff the amount collected. § 3420, ¶ 4 (pp. 80-81).
The 1888 Code provided for liability of a sheriff on any bond of indemnity he posted, where “an action is brought against a sheriff for an act done by virtue of his office” and a judgment is recovered against the sheriff. § 3712 (p. 84). The Code provided that in an action against any Territorial officer, in his official capacity, no bond or undertaking could be required of the officer-defendant. § 3714 (p. 85).
In short, under the 1888 Code, seven years before the drafting of the 1895 Constitution, there was no immunity for government employees. Indeed, it is shocking how thoroughly they were liable for negligence in their official acts — even sheriffs liable to prisoners. Can you imagine? If sovereign immunity existed in Utah law at all (which it did not), it did not cover government employees.
———
To recap: Sovereign immunity was a concept foreign to the 1888 Code. The Code said nothing about any form of sovereign immunity — did not refer to it even obliquely. To the contrary, all evidence from the Code contradicts any assertion that sovereign immunity was part of the law. Thus, the Code specifically acknowledged and provided for civil suits against (a) government officers and employees, (b) subordinate public bodies including counties and districts they create, and (c) the Territory itself. Sovereign immunity did not exist in Utah law in 1888, seven years before the 1895 Constitution.
7. The Utah Constitutional Convention rejected the doctrine of sovereign-immunity.
7.1. The Utah Constitutional Convention considered and rejected a clause that would have created partial sovereign immunity for the State.
On Day 38 of the 1895 Constitutional Convention, Mr. Eichnor proposed a clause stating, “The Legislature shall not pass any law authorizing suits to be brought against the State.” The Convention rejected that proposal. In the brief discussion, one participant said:
It seems to me, unless we are to provide in our judicial article for a court of claims, there is nothing in the world that would prevent a man that thought he had a just claim against the State, from suing the State in the courts of the State, and if they decided that the claim was just, undoubtedly they would make recompense.
Immediately following that statement, “The section offered … was rejected.” (State of Utah Constitutional Convention, Day 38.[10])
Even that proposal would not have created the broad immunity the Defendants in this case argue for. The proposal said nothing about suits against political subdivisions or government employees. The proposal said nothing about suits already authorized under preexisting law. Still the Convention rejected even this limited immunity for the State.
That’s about the strongest evidence we could ask for on the question of whether the Utah Constitution includes an invisible sovereign immunity clause. If the original understanding of the Constitution means anything, then sovereign immunity is not a part of Utah’s fundamental law.
7.2. The Utah Constitution affirms the sovereignty of the people — not of the government — and creates a tripartite government with no analogue to a sovereign king.
Article I, Section 2 of the Utah Constitution says, “All political power is inherent in the people; and all free governments are founded on their authority for their equal protection and benefit, and they have the right to alter or reform their government as the public welfare may require.”
Similarly, the Constitution creates a system of government with powers divided between a legislature, executive, and judiciary. No single branch speaks alone for the State, no single branch is sovereign, no individual is sovereign. In Utah’s tripartite government there is no analogy to an English king.
These foundational principles cannot be squared with the idea that each of the many arms or departments of the government, and each of their tens of thousands of employees, is a “sovereign” over the people and enjoys a privilege to commit torts against the people. So far as we have found, no proponent of sovereign immunity has ever even tried to square that circle.
8. After ratification of the Utah Constitution, counties and government employees remained liable for their torts.
As discussed further below, the Constitution itself said nothing about sovereign immunity, and what the Constitution did say cuts against any suggestion that Utah law sprung a new immunity doctrine in the seven years between the 1888 Code and the Constitutional Convention. Similarly, two years after the 1896 ratification of the Constitution, the Revised Statutes of the State of Utah in Force Jan. 1, 1898 (“1898 Code”) (Appendix B) further confirms that governmental immunity was not part of Utah law.
In the Preface, the 1898 Code Commission identified “the most important” of the changes from the 1888 Code. The commission made a long list of changes but said nothing about governmental immunity. The commission mentioned “an act providing for assignments for the benefit of creditors.” The commission mentioned “providing for a state bank examiner.” They mentioned “a new form of ballot.” They mentioned “changing the manner of commencing civil actions” and “providing for reply to counterclaim.” But they said nothing about governmental immunity. Id. at iii-iv (Appendix B, pp. 3-4).
Review of the 1898 Code confirms there was no new immunity for government actors. Counties could still sue and be sued. 1898 Code, § 491 (p. 18). Cities and towns still could sue and be sued. Id., §§ 180, 299 (pp. 9, 12). The plethora of public and quasi-public institutions could sue and be sued. See, e.g., id., § 1668 (p. 25) (notaries public); § 1799 (p. 27) (school districts); § 2076 (p. 31) (agricultural college); § 2105 (p. 35) (school for the deaf and dumb); § 2120 (p. 37) (agricultural & manufacturing society); § 2133 (p. 38) (industrial school); § 2157 (p. 42) (insane asylum); § 2209 (p. 52) (state miner’s hospital); § 2222 (p. 54) (state prison); § 2290 (p. 65) (university). See also § 2879, ¶ 5, § 2881 (p. 71) (re. statutes of limitations); § 2948 (p. 76) (re. service of summons).
Government officers and employees could still be sued for negligence in their official duties. See, e.g., §§ 2878-80 (p. 71) (re. statutes of limitations); § 2948 (p. 76) (re. service of summons).
As for claims against the State directly, the Board of Examiners was created to hear such claims. See §§ 929-49 (p. 21-23).
In sum, the post-founding statutes like the pre-founding statutes made no mention of governmental immunity but explicitly provided for civil actions against every level of government other than the State itself, other public bodies, and individual officers and employees. And for the State, claims were not eliminated but were made to the Board of Examiners.
———
That’s essentially the end of the historical evidence from Utah. Proponents of sovereign immunity must look outside Utah to find evidence in foreign jurisdictions and then argue that somehow Utah’s Founders — without ever saying so explicitly — let those principles overwhelm or insinuate themselves into Utah law. That argument fails at both steps: As we’ve already seen, there’s no evidence that Utah imported an unwritten sovereign immunity clause into its Constitution. Beyond that, though, the evidence for a foundational doctrine of sovereign immunity in American law generally is breathtakingly weak.
9. The government and the courts have never offered explanation or evidence to show sovereign immunity was written into the Utah Constitution.
On our review of the Supreme Court’s decisions, we find no explanation how a supposed English common law doctrine of sovereign immunity is consistent with the Utah Constitution. We find no answer to the Great Conundrum noted below — that is, why the Founders would have thought it important to give the government a right to commit torts (even intentional torts) against the people; and why no one has unearthed even a single historical document in which any of the Founders expressed this view. We find no survey of the historical evidence as to the rights of the people to sue the government before 1895. We find no reckoning with the Constitutional Convention’s having considered and rejected a sovereign immunity clause. We find no explanation of why the 1895 Utah Constitution, though it recited both obvious fundamentals (e.g., power resides in the people) and specific details (e.g., no contracts for convict labor) would have omitted a principle so basic and controversial as a privilege by government departments and their employees to commit torts against the people.
The doctrine of sovereign immunity is problematic and controversial on its face — rooted as it was in an attempt at absolute monarchy by English kings — so all of this requires explanation before imposing that doctrine on a free people. But instead of such explanation, we find only the factually inaccurate say-so of Wilkinson, and a century’s worth of cases following it, sometimes on 3-2 split decisions.
10. There is no evidence from outside Utah to prove the existence of an unwritten sovereign-immunity clause in the Utah Constitution that would override the ratification-era right to sue.
“The history of sovereign immunity in the United States is a history of mistakes.”
— Susan Randall, “Sovereign Immunity & the Uses of History”[11]
Given the open courts clause, the wrongful death clause, and the law at the time of ratification (and immediately afterward), the only thing that could render the Governmental Immunity Act constitutional here would be some constitutional sovereign immunity clause that is unwritten and invisible. To save the Act, we have to imagine that silently, at the time of ratification, a universal consensus existed among the framers of the Utah Constitution that their government should enjoy a right and privilege to commit torts against them if the legislature so chose — but the framers forgot to mention that in the Constitution.
More specifically, the Defendants’ proposition must be that under the invisible sovereign-immunity clause in the Utah Constitution, every part of government, local and state, enjoyed absolute impunity and could not be sued for anything at all — any negligence, any intentional tort, any rape, any murder, any incitement of mob violence — unless the government chose in its grace to allow the suit. As for government employees, the proponents of sovereign immunity must argue that the founders of Utah assumed that every government employee had impunity to commit any tort, negligent or intentional, connected with the exercise of a government function. So every person, upon being hired by the government, as a perk of employment gets license to lounge back into sloppy indifference and to treat the people with arrogance and abuse. The Defendants will say the Governmental Immunity Act is better than that and has waived immunity in a semi-random assortment of circumstances. That doesn’t matter: The Defendants must show a principle that as to government torts, the Utah Constitution forsakes the people and permits the government to refuse any accountability at all, for anything. That’s the only Constitutional principle that could rescue the Act.
Extraordinary claims require extraordinary evidence. There is approximately zero evidence that sovereign immunity was written into Utah’s Constitution with invisible ink. Look closely at the doctrine of sovereign immunity, and you get vertigo. The doctrine is so familiar that one assumes it has solid rock foundations. It does not. There’s shockingly little historical evidence to support sovereign immunity. Sovereign immunity is built on an outcropping of ice perched above a chasm. Sovereign immunity is the emperor strutting around town with no clothes.
English Law, circa 1776: Sovereign Immunity as a Limited Procedural Doctrine
American proponents of sovereign immunity cite to English law, but their view of English law is wrong. That’s not surprising, because we’re looking to foreign law, in history that we know (at best) from books or (more often) from movies and myths.
Sovereign immunity in England evolved over centuries, and by 1776 it was a limited doctrine that allowed claims against the government (the “king”) as well as against individual government officers and employees. The idea of sovereign immunity first arose in Britain around 1000 to 1200 AD, from the notion that feudal lords could not be sued in their own courts. The courts belonged to the lord: The lord owned and controlled them. There was no separation of powers and no judicial independence, so it made no sense to think courts could be used against their owners.[12]
Over the centuries, power in Britain shifted between the monarch, the nobles, and the commoners. The maxim “The king can do no wrong” was coined in 1601 amid a power struggle.[13] In the 1600s, the Stuarts tried to assert an absolute monarchy in which the king was above the law and beyond accountability. That led to the English Civil War, and the Stuarts’ dreams of divine right and absolute power died abruptly in 1649 when Parliament cut off Charles I’s head. As a sort of compromise after the beheading, the king was deemed not personally liable for the acts of the “crown,” but the king’s ministers were. By a decorous fiction, just as the king would eventually be removed from a meaningful role in government, the person of the king was removed from governmental liability.[14] That had limited meaning, because long before 1600, England was more than a tribe of a few members, and the State was vastly more than a single person.
By the 1700s, Britain had a constitutional monarchy with power shared between king and Parliament, the balance favoring Parliament. After the Glorious Revolution of 1688-89, the Bill of Rights of 1689 was promulgated, and the Act of Settlement of 1701 limited the monarch’s powers and established a measure of judicial independence. Sovereign immunity was increasingly a limited, procedural doctrine. By the mid 1700s, claims could be made against the government (the “king”) through a variety of mechanisms — the “petition of right,” “Monstrans de troit,” “traverse,” and “scire facias.”[15] As one scholar writes, such claims “were invariably controlled by the King’s justices rather than the King himself. The rule of law, as opposed to royal whim, largely determined the availability of relief against the Crown.” Moreover:
[T]he British constitution was understood to guarantee the subject’s right to invoke these rules of law by submitting petitions to the courts of justice. As Blackstone explained, the right to petition for redress of grievances encompassed a right to pursue judicial remedies for government wrongs.[16]
English legal concepts and terminology are somewhat foreign and Dickensian to us, but American lawyers at the Founding had grown up with English law and had read their Blackstone. In 1803, in Marbury v. Madison, Chief Justice John Marshall wrote:
The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. One of the first duties of government is to afford that protection. In Great Britain the king himself is sued in the respectful form of a petition, and he never fails to comply with the judgment of his court.
Marbury v. Madison, 5 U.S. 137 (1803). That is, sovereign immunity was procedural: It governed the “respectful form” in which the king could be sued. A year before taking his seat on the US Supreme Court, Antonin Scalia wrote that, “At the time of Marbury v. Madison there was no doctrine of domestic sovereign immunity, as there never had been in English law” (emphasis in original).[17]
In short, any effort to legitimize sovereign immunity on the basis of English common law as it existed at the Founding of America fails. But that mistaken view of English law is indispensable to the current arguments for sovereign immunity.
Revolutionary America & the Great Conundrum
Because of governmental neglect and abuse, British colonists in America opted for a bloody, devastating revolt from that government. The colonies’ collective Declaration of Independence recited a list of governmental abuses, including undermining judicial independence, protecting imperial soldiers from punishment for murder, and “destroy[ing] the lives of our people.”[18] The Declaration principally authored by Thomas Jefferson was preceded by at least 90 declarations of independence by various colonies and localities reciting similar grievances.[19] In Boston, for example:
British soldiers were quartered not just in barracks but in private homes and warehouses, too. … Drunken soldiers fueled petty crime and prostitution. Redcoats beat male residents; women faced attempted abductions and sexual assault.[20]
Against this background, and after the “pervasive violence and terror”[21] of the Revolutionary War, it would be implausible if not unthinkable for the new Americans to endow their governments with the privilege to harm citizens with impunity. The new Americans were at least as fractious as humans generally, so any serious attempt to immunize governmental abuses would have provoked debate, at least. But so far as we know, there is no historical evidence that the Founding generation shared any widespread belief in the government’s privilege to commit torts against The People. This is the Great Conundrum for proponents of sovereign immunity: If they can’t explain why the Founding generation would want to give their new, improved government a vestigial British privilege to commit torts with impunity — and show evidence of a widespread belief in that privilege — then sovereign immunity is not a historically grounded doctrine, but merely a historical fiction. And in fact the Defendants do not show such evidence, because it doesn’t exist.
The US Constitution & Ratification
Article III
In the original US Constitution, the concept of sovereign immunity did not exist. Instead, the Constitution created a tripartite government with a separation of powers — and no “sovereign” apart from the people. As to lawsuits, Article III provided that:
The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, …—to Controversies to which the United States shall be a Party; —to Controversies … between a State and Citizens of another State….
That text and the structure of the government as a whole is incompatible with sovereign immunity — a doctrine which requires, among other things, “a sovereign.”
Setting aside the Great Conundrum of why the Founders would have wanted their reformed government to be free to abuse them, the US Constitution requires the proponents of sovereign immunity to prove three claims:
1. that the Founders believed sovereign immunity was compatible with the new system of government based on popular sovereignty and a tripartite division of governmental powers,
2. that the Founders believed in sovereign immunity so universally and emphatically that they just didn’t think to mention it in the carefully written, heavily debated, extensively edited Constitution, and
3. that despite the extended scrutiny and debates over wording, the Founders failed to notice that the text of Article III was contrary to the supposedly universal principle of sovereign immunity.
To our knowledge, no proponent of sovereign immunity has ever made a serious effort to prove any of these claims. (We discuss the standard lackluster effort below.)
Debate in the Press
During the Revolutionary War, the colonies amassed enormous debts. After the war, there was widespread concern about creditors coming to collect. After the 1787 Philadelphia Convention, the issue of lawsuits against states in federal court was contested both in the popular press and in the state ratifying conventions. The new Americans were not monolithic. They disagreed about many things. Broadly, there were federalists who favored a stronger central government and sought ratification of the proposed Constitution, and anti-federalists who favored a weak central government and opposed the Constitution.
Federalists and anti-federalists alike concluded that the Constitution empowered individuals to sue the states in federal court — that is, that the Constitution eliminated sovereign immunity. In the popular press,
Examples of the view that ratification constituted the ratifying states’ consent to the power of the federal courts are numerous. Brutus, who published a number of articles in the New York Journal, wrote a lengthy article entitled The Judicial Power: Can an Individual Sue a State? in which he concluded that the Constitution did in fact permit an individual to sue a state, and argued extensively that such jurisdiction should not be extended. Brutus … raised the familiar objection that suits against the states for revolutionary war debts would cripple the states.[22]
State Ratifying Conventions
As to the state ratifying conventions, the records we have reveal debates on this issue in only three states — three states that ratified the Constitution after it had become effective by the prior ratification of nine of the 13 states.[23]
Virginia
The Virginia convention had 168 delegates.[24] According to one scholar, “Apart from Madison and Marshall in the Virginia ratification debates, the recorded comments of every other participant in the ratification debates — Federalist and Antifederalist alike — show that they read the Constitution to extend the national judicial power to cases brought against the states by diverse citizens.”[25] Patrick Henry, an anti-federalist, argued that the federal judiciary powers of Article III would render the states subject to lawsuits in federal court by creditors seeking to collect on war debt. “Pass that government, and you will be bound hand and foot,” he argued.[26] George Mason agreed.
The Virginia vote was close from the beginning. The federalists James Madison and John Marshall tried (vainly) to assuage the war-debt fears. Madison said that under Article III, “It is not in the power of individuals to call any state into court. The only operation it can have, is that, if a state should wish to bring a suit against a citizen, it must be brought before the federal court.”[27] Patrick Henry rejected Madison’s reading as a “perversion” of the plain language:
As to controversies between a state and the citizens of another state, his construction of it is to me perfectly incomprehensible. … But he says that the state may be plaintiff only. If gentlemen pervert the most clear expressions, and the usual meaning of the language of the people, there is an end of all argument. What says the paper? That it shall have cognizance of controversies between a state and citizens of another state, without discriminating between plaintiff and defendant.[28]
John Marshall came to Madison’s aid, saying “I hope that no gentleman will think that a state will be called at the bar of the federal court. Is there no such case at present? Are there not many cases in which the legislature of Virginia is a party, and yet the state is not sued? It is not rational to suppose that the sovereign power should be dragged before a court.”[29]Marshall’s comments convinced no one. Antifederalist William Grayson said No: “My honorable friend, whom I much respect, said that the consent of the parties must be previously obtained. I agree that the consent of foreign nations must be had before they become parties; but it is not so with our states. It is fixed in the Constitution that they shall become parties.”[30]
Federalist Edmund Randolph had served on the Committee of Detail at the Constitutional Convention in Philadelphia. That committee’s job was to take the various resolutions that had been adopted and to combine them into a single coherent document.[31] After Madison’s and Marshall’s comments, Randolph agreed with Henry and the anti-federalists that under the Constitution the states lacked sovereign immunity. But Randolph defended the preclusion of sovereign immunity and took the nine prior states’ ratifications to reflect their agreement:
If a government refuses to do justice to individuals, war is the consequence. Is this the bloody alternative to which we are referred. Suppose justice was refused to be done by a particular state to another; I am not of the same opinion with the honorable gentleman. I think, whatever the law of nations may say, that any doubt respecting the construction that a state may be plaintiff, and not defendant, is taken away by the words where a state shall be a party. But it is objected that this is retrospective in its nature. If thoroughly considered, this objection will vanish. It is only to render valid and effective existing claims, and secure that justice, ultimately, which is to be found in every regular government. It is said to be disgraceful. What would be the disgrace? Would it not be that Virginia, after eight states had adopted the government, none of which opposed the federal jurisdiction in this case, rejected it on this account?[32]
The debate ended with Patrick Henry commenting merely that “he did not consider the objections answered in such a manner as gave satisfaction.”[33] In short, no one was buying the counter-textual assurances that Madison and Marshall attempted — not the anti-federalists, and not their fellow federalists. In the end, the Virginia convention ratified the Constitution with only a 10-vote majority, 89 to 79 (after the requisite nine states had already ratified). Madison’s and Marshall’s comments did not reflect a consensus in the Virginia convention, let alone in any other state.
New York
When the New York ratifying convention began, eight of the nine requisite states had already ratified the Constitution.[34] Federalist Alexander Hamilton was the leading proponent of the Constitution in the New York delegation, and he was up against stiff odds. The convention lasted five weeks, June 17 – July 26, 1788. In the middle of the convention, Hamilton published two of the Federalist papers, numbers 80 and 81. In Federalist 80, Hamilton defended the power of federal courts over states:
What, for instance, would avail restrictions on the authority of the State legislatures, without some constitutional mode of enforcing the observance of them? … No man of sense will believe, that such prohibitions would be scrupulously regarded, without some effectual power in the government to restrain or correct the infractions of them. This power must either be a direct negative on the State laws, or an authority in the federal courts to overrule such as might be in manifest contravention of the articles of Union.
So the states lacked sovereign immunity at least that far. Hamilton went on to write that, “The power of determining causes between two States, between one State and the citizens of another, and between the citizens of different States, is perhaps not less essential to the peace of the Union than that which has been just examined.” Hamilton described the civil strife that existed in Germany until the creation of “a court invested with authority to decide finally all differences among the members of the Germanic body.”[35] That language is hard to square with any conception of sovereign immunity.
A few days later, though, Hamilton published another article, Federalist 81. In it, he addressed the fear of the states being sued by creditors seeking to collect on war debt:
It has been suggested that an assignment of the public securities of one State to the citizens of another, would enable them to prosecute that State in the federal courts for the amount of those securities….
Hamilton answered this fear with squirrely, question-begging assurances:
It is inherent in the nature of sovereignty not to be amenable to the suit of an individual WITHOUT ITS CONSENT. This is the general sense, and the general practice of mankind; and the exemption, as one of the attributes of sovereignty, is now enjoyed by the government of every State in the Union. Unless, therefore, there is a surrender of this immunity in the plan of the convention, it will remain with the States, and the danger intimated must be merely ideal. … To what purpose would it be to authorize suits against States for the debts they owe? How could recoveries be enforced? It is evident, it could not be done without waging war against the contracting State; and to ascribe to the federal courts, by mere implication, and in destruction of a pre-existing right of the State governments, a power which would involve such a consequence, would be altogether forced and unwarrantable.[36]
The whole question was whether ratifying the Constitution would surrender whatever sovereign immunity might exist, so Hamilton’s assurances would have rung hollow to any careful reader. Additionally, as many a disappointed plaintiff has learned, the ability to enforce a judgment is distinct from the ability to sue. Thus, one of the delegates to the New York ratification convention introduced a proposed an amendment to Article III reading, “Resolved, as the opinion of this committee, that nothing in the Constitution now under consideration contained, is to be construed to authorize any suit to be brought against any state, in any manner what ever.”[37] As discussed below, New York eventually adopted similar language in a sort of signing statement to accompany their ratification of the Constitution — purporting to read the language of Article III as saying that (and purporting to read the Constitution generally as saying a good many other things it plainly did not say). This is an old tactic both in contract and legislative negotiations. It’s one reason we put things in writing.
North Carolina
In the North Carolina convention, anti-federalist William Lenoir objected to the Constitution partly on the ground that the state’s creditors would be able to sue it in federal court:
Another disadvantage to this state will arise from it. This state has made a contract with its citizens. The public securities and certificates I allude to. These may be negotiated to men who live in other states. Should that be the case, these gentlemen will have demands against this state on that account. The Constitution points out the mode of recovery; it must be in the federal court only, because controversies between a state and the citizens of another state are cognizable only in the federal courts. They cannot be paid but in gold and silver. Actual specie will be recovered in that court. This would be an intolerable grievance without remedy.[38]
———
In the records we have, objections to the plain meaning of Article III — that individuals could sue states in federal courts — appear to have arisen mainly in the states that were last to ratify the Constitution: Virginia, New York, and North Carolina (and apparently Rhode Island, as discussed below). For the nine states that ratified first, and thus made the Constitution effective, we have no record of objections to the ability of individuals to sue a state.
Ratification Declarations
The ratification decisions of the states overwhelmingly confirm that the states understood that Article III precluded any claim of sovereign immunity as to federal questions or diversity suits against states. Several of the states ratified the Constitution in declarations that either proposed constitutional amendments or included signing statements purporting to state their interpretation of Article III.
The Critical Nine States
It took ratification by nine of the 13 states to adopt the Constitution. Of the first nine to ratify, none of the states proposed amendments or issued signing statements dealing with judicial power over the states. The first five states (Delaware, New Jersey, Connecticut, Georgia, Maryland) included no proposed amendments or signing statements at all.[39] Four other states (Pennsylvania, South Carolina, Massachusetts, New Hampshire) ratified the Constitution in declarations that proposed some amendments, but none dealing with judicial power over the states. That made nine states, and the Constitution was adopted. Given the public debate, the deliberative processes the conventions adopted, and the plain text of Article III, it is highly likely that the critical nine ratifying states saw and accepted that under the Constitution the states would not be able to claim sovereign immunity in federal court. At minimum, the language of Article III called immunity into question and the critical nine states did nothing to affirm sovereign immunity.
Virginia & North Carolina
The four late-ratifying states divided in how they responded to Article III and the judicial power over the states. Two of those states were forthright: Virginia and North Carolina issued ratification declarations that included identical proposed amendments restricting federal jurisdiction. In keeping with the focus on liabilities for war debt, the proposed amendments would preserve federal-question jurisdiction generally (cases arising “under the authority of the United States”) but eliminate diversity jurisdiction in cases between individuals and states, and in all cases “where the cause of action shall have originated before the ratification of the Constitution.”[40] That amendment would avoid federal suits by creditors holding war debt. Virginia and North Carolina thus acknowledged that an amendment was necessary to prevent individuals from suing states. That is, they acknowledged that absent an amendment, sovereign immunity did not exist under the US Constitution at all — and even their proposed amendments would allow individuals to sue states in federal court on claims arising under federal law.
New York & Rhode Island
The two other late-ratifying states (New York and Rhode Island) issued ratification declarations with signing statements. Signing statements are inherently suspect: Presidents use them, for example, when they feel they must sign legislation they don’t like.[41] Rhode Island’s ratification attached a list of amendments which included a statement “that the judicial power of the United States, in cases in which a state may be a party, does not extend … to authorize any suit by any person against a state.” But “to remove all doubts,” the Constitution should be amended. In keeping with the focus on creditors suing over war debt, the proposed amendment was specifically to prevent suits over debt: “Congress shall not … interfere with any one of the states, in the redemption of paper money already emitted, and now in circulation, or in liquidating and discharging the public securities of any one state.”[42] The proposed amendment (intended to “remove all doubts” addressed only the state’s debt. (At the time, paper money was regarded as debt redeemable in specie, i.e., gold or silver.[43]) Similarly, New York’s ratification declaration began with a bill of rights and, among other things, a statement that “the judicial power of the United States, in cases in which a state may be a party, does not extend … to authorize any suit by any person against a state.” The declaration went on to say New York ratified the Constitution “Under these impressions, and declaring … that the explanations aforesaid are consistent with the said Constitution.”[44]
———
The ratification declarations of all 13 states confirm that Article III meant what it said — that the states enjoyed no sovereign immunity in federal court as to federal questions or any case between individuals of one state and another state. Even the two apparent exceptions confirm the point —the signing statements of New York and Rhode Island — serve mainly to highlight qualms the signers have with legislation they nonetheless felt constrained to sign. No general principle of sovereign immunity survived the Constitution. Sovereign immunity was not a background principle that went without saying and just got lost in the shuffle when the Founders set out to write down the foundational principles of government.
Chisholm v. Georgia (1793), the 11th Amendment, & Caselaw through the Civil Wars
Chisholm v. Georgia
In 1793, only four years after the US Constitution was ratified, the US Supreme Court rejected sovereign immunity in a lawsuit by a South Carolina creditor of Georgia, over debt incurred by Georgia during the Revolutionary War. The vote was 4-1 against Georgia’s claim of sovereign immunity. Each of the four justices was involved in the Constitutional Convention, a ratifying convention, or both. Chief Justice John Jay and Justice James Wilson both criticized sovereign immunity broadly as inapplicable to the system of government created by the Constitution. Justices William Cushing and John Blair wrote that the text of Article III waived any claim of sovereign immunity. Only Justice James Iredell supported Georgia’s claim of sovereign immunity. Justice Iredell relied on English law, without explaining how sovereign immunity applies in a government founded on popular sovereignty. Justice Iredell made no attempt to address the Great Conundrum. See generally Chisholm v. Georgia, 2 US 419 (1793).
The 11th Amendment
In 1795, two years after the decision in Chisholm, the 11th Amendment was adopted. It left federal-question jurisdiction untouched but eliminated federal jurisdiction where a citizen of one state sues a different state:
The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.
The text of the amendment is specific and narrow. It contains no vague concepts, no grand abstractions that require profound explication. It is a precise jurisdictional limitation. It said nothing to limit federal-question jurisdiction in cases between a state and its own citizens. Compare the 11th Amendment, for example, to the amendment proposed at the New York ratifying convention, “nothing in the Constitution … is to be construed to authorize any suit to be brought against any state, in any manner what ever.” Or the amendment proposed by Virginia and North Carolina, removing diversity jurisdiction “where the cause of action shall have originated before the ratification of the Constitution.” Or the straightforward signing statements by New York and Rhode Island: “the judicial power of the United States … does not extend … to authorize any suit by any person against a state.” The founders were critical readers, alert to the meanings of words, and they knew how to say what they meant. They wrote the 11th Amendment narrowly. To read a broad notion of sovereign immunity into the Amendment cannot be justified by the text.
Caselaw through the Civil War
Twenty-six years after adoption of the Amendment, in Cohens v. Virginia Chief Justice John Marshall, writing for a unanimous Supreme Court, discussed the 11th Amendment and identified its narrow, practical purpose: to make it easier for the heavily indebted states to avoid their debts from the Revolutionary War:
It is a part of our history, that, at the adoption of the constitution, all the States were greatly indebted; and the apprehension that these debts might be prosecuted in the federal Courts, formed a very serious objection to that instrument. Suits were instituted; and the Court maintained its jurisdiction. The alarm was general; and, to quiet the apprehensions that were so extensively entertained, this amendment was proposed in Congress, and adopted by the State legislatures. That its motive was not to maintain the sovereignty of a State from the degradation supposed to attend a compulsory appearance before the tribunal of the nation, may be inferred from the terms of the amendment. It does not comprehend controversies between two or more States, or between a State and a foreign State. The jurisdiction of the Court still extends to these cases: and in these a State may still be sued. We must ascribe the amendment, then, to some other cause than the dignity of a State. There is no difficulty in finding this cause. Those who were inhibited from commencing a suit against a State, or from prosecuting one which might be commenced before the adoption of the amendment, were persons who might probably be its creditors. … The amendment, therefore, extended to suits commenced or prosecuted by individuals, but not to those brought by States.
19 US 264 (1821). In Cohens, the unanimous court held that a citizen could bring his own state into federal court on appeal to decide a federal question.
Consistent with the text of the Amendment and its purpose as discussed by John Marshall, “In the years between the adoption of the amendment and the Civil War the Court confronted several” cases involving the meaning of the 11th Amendment, and “every attempt to expand the amendment’s meaning beyond its narrow [] language was decisively rejected.”[45]
Abuse of LDS at the Hands of Governments
Meanwhile, in 1830 Joseph Smith formed the LDS church. Almost immediately, the Church began suffering neglect and abuse by various governmental bodies. Smith was attacked by a mob in 1832. Settlers in Missouri were attacked the next year. Over 1,200 were forced to flee — unprotected by the government. A few years later, in 1838, the governor of Missouri issued an extermination order against the Church, and several thousand more were forced to flee. In 1844 Smith was murdered by a mob while in the custody of an Illinois jail. A couple years after that, another forced exodus, from Illinois. Abuse and neglect by governments was a continuing theme in the origin of Utah — including the Edmunds-Tucker Act of 1887, permitting the federal seizure of Church property only nine years before statehood in 1896.
As much as the colonists who went to war with Britain, the founders of Utah had suffered at the hands of governments and their agents, including by mobs the government allowed to run wild. (The 1888 Code of Civil Procedure, allowed for a year in which to bring “an action against a municipal corporation for damages or injuries to property caused by a mob or riot.” 1888 Code, § 3146(5) (Vol 2, p. 225).) It would require compelling evidence to conclude that Utah’s founders believed it was important to grant their government a privilege to commit further torts against them. To our knowledge, there is no such evidence, much less compelling evidence. To the contrary, the clearest evidence we have is the Utah Constitutional Convention’s rejection of a clause that would have created partial immunity for the government.
After the Civil War: Accommodating the Southern States’ War Debt
After the Civil War, the US Supreme Court faced a series of cases setting up potential conflicts with the again-heavily-indebted Southern states. The court had significant doubts about whether the President would enforce any judgments against the states, should they defy the court:
The United States Marshals had been rendered powerless by the passage of the Posse Comitatus Act. While the President still had authority under the law to enforce the decrees of the federal courts, the justices knew that he could do so against a Southern State only at the risk that the House of Representatives would once again refuse to provide funds for the Army.[46]
Over the post-Civil War years, the court reinterpreted the 11th Amendment in disregard of its text — as incorporating an unwritten, invisible sovereign-immunity clause.
In the 1890 case of Hans v. Louisiana, 134 US 1, the Supreme Court offered what has become the standard rationale for sovereign immunity. To go beyond the text of the Amendment, the US Supreme Court looked at the history of the ratification conventions for the Constitution (which occurred a century before). The court cherry-picked the three ratification-debate remarks from Hamilton, Madison, and Marshall discussed above — while ignoring the broader historical record. As Justice Scalia might have put it, this was “the equivalent of entering a crowded cocktail party and looking over the heads of the guests for one’s friends.”[47] Additionally, the Hans court told a story about how the Chisholmdecision provoked a nation-wide convulsion that resulted in the 11th Amendment. The facts do not quite support the story. The facts are: “The Congress did not act on the proposed amendment until January 1794, almost a year after the decision in Chisolm. The states did not complete the ratification process until 1798. As of March 1797, more than four years after the Chisolm decision, half of the states had not even responded on the issue.”[48] More importantly, even crediting the Hans court’s version of nationwide shock, the story cannot carry the weight that proponents of sovereign immunity put on it. The story has to explain how the Founders were so shocked that they lost their ability either to write, or to read and understand what they had written. No proponent of sovereign immunity has ever attempted to justify the insult to the Founders.
More than a century after Hans, proponents of the doctrine have not improved on the Hans rationale for sovereign immunity. The doctrine is bankrupt intellectually as well as morally.
Chronic Controversy and the Weight of Ipse Dixit
The entire history of sovereign immunity has been attended by controversy, starting in the ratification debates. Then in Chisholm, then in a long line of decisions of split decisions by courts (e.g., Bingham v. Board of Education, 118 Utah 582 (1950)), and other decisions in which courts hint at the injustice of the doctrine but apply it nonetheless (e.g., SH v. State, 865 P.2d 1363 (1993)).
Amid the controversy, for over a century, sovereign immunity has been borne aloft by a balloon of ipse dixit. The Utah Supreme Court’s 1913 decision in Wilkinson is one example: “The doctrine is elementary and of universal application, and so far as we are aware there is not a single authority to the contrary.” 42 Utah 483. The court did not look very hard. And for over a century since Wilkinson, sovereign immunity in Utah has persisted on the basis of the weight of precedent — which here means the weight of ipse dixit.
Summing Up: The Lack of Foundation for Sovereign Immunity
Sovereign immunity is the worst sort of judge-made law, and the worst sort of speculative, anti-textualist fauxoriginalism — the sort of doctrine that suggests originalism is just a fig leaf for judges embarrassed by their activism. It is a doctrine without support in the US or Utah Constitutions, existing mainly by the weight of past ipse dixit, supported at best by a shallow understanding of history, and with no defensible policy rationale — and sustained over the years despite repeated acknowledgements by courts of the injustice the doctrine perpetuates.
At bottom, the proponents of sovereign immunity say that by saying nothing about sovereign immunity, the Utah Constitution adopted sovereign immunity. The Utah Constitution expressly states the most elementary points — that all political power comes from the people, for example — but the absence of any clause giving the government a privilege to commit torts against the people is offered as proof that the Constitution does just that. And in the proponents’ argument, the unwritten, invisible constitutional clause trumps the written, visible ones. It’s an audacious argument, which seems to miss the point of a written constitution. As to the Utah Constitution, that line of argument is doubly dubious, since the Constitutional Convention considered and rejected a sovereign immunity clause.
Most strikingly, the proponents of sovereign immunity dodge their primary problem — the Great Conundrum. They can’t even look it in the face. Sovereign immunity means a privilege to commit torts against The People. The Declaration of Independence complained about British soldiers abusing the colonists. The founders of Utah suffered similar abuse at the hands of governments. How then did those same founders become convinced that it was essential for their new governments to enjoy a privilege to abuse them? What’s the evidence of this conviction? Did Thomas Paine write pamphlets declaring the necessity of a governmental privilege to commit torts against the people? Did Brigham Young? The proponents of sovereign immunity point to no evidence of such a conviction, because there’s none to point to. The proponents don’t even offer a speculative “well, the Founders might have been thinking ….”
———
Sovereign immunity is not part of the Utah Constitution. Sovereign immunity exists only on the ipse dixit of judges. It is past time to restore the Constitutional order.
11. The Governmental Immunity Act purports to extinguish Plaintiffs’ claims against Wasatch entirely, and it is not necessary to do so in order to cure a great public evil.
Extinction of Claims
Like the State, Wasatch contends that the Governmental Immunity Act purports to extinguish Plaintiffs’ claims against them entirely, leaving no substitute.
Public Evils and Cures
Neither Wasatch nor the State Defendants can show that extinguishing Plaintiff’s claims is necessary to cure a great public evil. When they are offered at all, the policy rationales for governmental immunity include specific, limited concerns that can be addressed without eliminating claims entirely. For example:
If there are no limits on enforcement of judgments against government bodies, that could cause public harm. Of course that’s true. We can’t have judgment creditors seizing police cars or the Capitol building to satisfy debts. But all judgments, all debts are subject to limitations on enforcement. Judgment debtors routinely seek the protection of bankruptcy laws. Many a plaintiff has ended with a judgment that could not be enforced. The legislature can address concerns about enforcement of judgment without extinguishing the claims themselves.
In some circumstances, government agents work under high pressure and uncertainty — police responding to emergencies, for example — and they must have reasonable latitude to do their jobs. Also true, and also not unique. Even the ordinary definition of negligence takes into account the circumstances of the event. If more is needed, the legislature can define standards of care, standards of proof, etc. to avoid unduly constricting government activities. For example, extreme medical emergencies present similar concerns in medical malpractice cases. Legislatures have addressed that by requiring plaintiffs to show gross negligence (not simple negligence) and to show it by clear and convincing evidence (rather than a preponderance). See, e.g., Utah Code 58-13-2.5.
The government is so deeply enmeshed in people’s lives that allowing lawsuits would create an unbearable burden for the government. This is the least convincing policy rationale. First, the fewer actual torts the government commits, the fewer times it will be sued. Second, natural incentives limit frivolous lawsuits: Plaintiff lawyers try to avoid worthless cases because they’re expensive in both time and money. And apart from prisoners with nothing but time, few people are up for handling their own cases pro se. But even assuming that the crushing burden of litigation is a real concern, again there are ways to address the concern without extinguishing claims entirely: See, for example, the federal Court of Claims with its streamlined filing and discovery procedures.
Even opponents of sovereign immunity recognize that litigation against the government raises special issues and legitimate concerns. But addressing them does not require extinguishing claims and granting the government and its employees a privilege to commit torts against The People.
Greater Danger
On the contrary, to whatever extent the government and its employees are placed beyond accountability, care and diligence will decrease; torts will increase; and more people will suffer harm at the hands of their government.
The Governmental Immunity Act is unconstitutional as applied to Wasatch and its employees, because at the ratification of the Utah Constitution an arm of the county like Wasatch was liable for the torts of its agents, and its employees were personally liable as well. The Defendants say the current Act extinguishes Plaintiffs’ claims entirely. That extreme measure is not necessary to cure any great public evil.
CONCLUSION
The American colonists came to this continent with the dream of living without a boot on their necks. At first sight from the ships, the land must have looked like a new Eden. Later, when the Latter-Day Saints pushed west, the bloom had faded, hopes were tempered, and even on the journey they faced peril and slaughter — sometimes at the hands of government agents. Again, though, there was the dream of forging a new land. But however strangely for a people who sought to escape the arrogance of the State and its prerogative to maim and kill, our judges have acceded to the demands of the various departments of government — and their employees — that they must retain this prerogative at least in part.
Because of the Defendants’ sloppy work, Brooke and Jeromey Jackson grieve their little boy with every beat of their broken hearts. Hunter’s big sister now lives her life with echoes of the screams attending Hunter’s and Odin’s deaths just a few feet from her. Our government issues condolences but admonishes Brooke, Jeromey, and CJ that while this is all terribly sad, the family must understand that the government enjoys a privilege to kill their brown-eyed boy through negligence — because … well, because so it was supposedly laid down in the time of Henry IV. A government employee’s negligence lies beyond the majesty of the law, and Hunter and his family who loved him lie beyond the protection of the law. So also, before Hunter’s death, the government said the same to Mika Scott after she was choked, beaten, and raped. So also after the Tiede women were murdered and their girls kidnapped and assaulted. And so also on and on back down the line of victims trailing into history.
The courts in such cases tend to say (as the Supplemental Authority provided in this case demonstrates) that the court’s hands are tied; it must follow the law; and the Governmental Immunity Act must prevail. But what of the supreme law of Utah — the Constitution of Utah? What commands the loyalty of the courts — a line of unreasoned ipse dixit or our Constitution?
In a lecture delivered in 1868, the British writer John Ruskin surveyed our common dreams — dreams shared by our forbears which we hope to pass down to our descendants:
“They have dreamed of mercy, and of justice; they have dreamed of peace and good-will; they have dreamed of labour undisappointed, and of rest undisturbed; they have dreamed of fulness in harvest, and overflowing in store; they have dreamed of wisdom in council, and of providence in law; of gladness of parents, and strength of children, and glory of grey hairs.”[49]
Against those dreams, Ruskin counted various failures of civilization and came then to this question: “Is it all a dream then — the desire of the eyes and the pride of life — or, if it be, might we not live in nobler dream than this?”
The answer to Ruskin’s question is, Yes. We might. Now, in this one respect, in this matter of three-year-old friends Hunter and Odin, the Court has not only the ability but the mandate to restore the Constitutional order and to invalidate the Governmental Immunity Act which proclaims the privilege of the state to commit torts against the People. Utah’s Constitution neither adopts nor permits the tyrannical doctrine of sovereign immunity. Our Constitution does not grant Wasatch and its employees a privilege to kill our children through negligence.
January 24, 2025
Respectfully submitted,
/s/ Daniel Holloway
Daniel E. Holloway
Bruce M. Pritchett
Attorneys for Plaintiffs
Certification of Word Count
This memorandum contains 14,291 words. The word limit pursuant to Utah R. Civ. P 7(q) is 9,000 words. A motion to file overlength memorandum has been submitted.
January 24, 2025
Respectfully submitted,
/s/ Bruce Pritchett
Bruce M. Pritchett
Daniel E. Holloway
Attorneys for Plaintiffs
Certificate of Service
The undersigned has served the attached foregoing document on all counsel of record, by filing the document with the Court’s efiling system (via JudiciaLink).
January 24, 2025
Respectfully submitted,
/s/ Bruce Pritchett
Bruce M. Pritchett
Daniel E. Holloway
Attorneys for Plaintiffs
[1] All citations to legal authorities are simplified, all quotations are cleaned up, and all emphasis is added unless otherwise noted.
[2] “The Path of the Law,” 10 Harv. L. Rev. 457, 469) (1897), reprinted at https://moglen.law.columbia.edu/LCS/palaw.pdf, p. 12.
[3] When we say something did not exist, we believe that to be true based on our research. But history is an ocean. We have tried to research diligently, but we apologize in advance if it turns out we have missed something material.
[4] Wilkinson cited several cases on the issue of whether a lawsuit is against the state or against an officer or agency of the state. The earliest case Wilkinson cited was from 1870 — 80 years after the US Constitution was ratified.
[5] The Governmental Immunity Act purports to forbid suits against employees. See Utah Code 63G-7-202(3). That provision is unconstitutional for the reasons discussed here.
[6] See Marie-France Fortin, The King Can Do No Wrong: Constitutional Fundamentals, Common Law History, and Crown Liability (Oxford, 2024), Ch. 2. § 2.3.2. (excerpts in Appendix C) Intro, § 1
[7] William Wade, “The Crown, ministers and officials: legal status and liability” in The Nature of the Crown: A Legal and Political Analysis (1999): 31-2 (Appendix D).
[8] See, e.g., David E. Engdahl, “Immunity and Accountability for Positive Governmental Wrongs,” Univ. Colorado Law Rev. 44, no. 1 (August 1972): 1-80.
[9] LP Hartley, The Go-Between, H. Hamilton, London (1953).
[10] Available at https://le.utah.gov/documents/conconv/38.htm.
[11] Susan Randall, Sovereign Immunity and the Uses of History, 81 Neb. Law Rev. (2002), available at:https://digitalcommons.unl.edu/nlr/vol81/iss1/2.
[12] See generally, Fortin, supra, Ch. 2. § 2.3.2 (Appendix C).
[13] Fortin, supra, Ch. 2, § 3.2 (Appendix C).
[14] Fortin, supra, Ch. 3, § 2, 6, § 2.3 (Appendix C).
[15] See generally, James E. Pfander, “Sovereign Immunity and the Right to Petition: Toward a First Amendment Right to Pursue Judicial Claims Against the Government.” Nw. Univ. Law Rev. 91 (1996): 899, pp. 907-26.
[16] Id. at 908.
[17] Antonin Scalia, “Historical Anomalies in Administrative Law,” Yearbook: Supreme Court Historical Society (1985): 103-111. (Appendix E).
[18] See the Declaration of Independence, available at https://www.archives.gov/founding-docs/declaration-transcript.
[19] See generally Pauline Maier, American Scripture: Making the Declaration of Independence. Vintage, 2012, Ch. 2.
[20] Holger Hoock, Scars of Independence: America’s Violent Birth. Crown Publishing Group (NY) 2017.
[21] Id.
[22] Randall, supra, at 51.
[23] For the details of ratification, see, e.g., https://www.archives.gov/education/lessons/constitution-day/ratification.html
[24] See https://lawlibrary.wm.edu/wythepedia/index.php/History_of_the_Virginia_Federal_Convention_of_1788
[25] Randall, supra, at 47.
[26] Id.
[27] Quoted in id. at 48.
[28] Quoted in id.
[29] Quoted in id.
[30] Quoted in id.
[31] See generally William Ewald, “The Committee of Detail.” Const. Comment. 28 (2012): 197.
[32] Jonathan Elliot, The Debates in the Several State Conventions of the Adoption of the Federal Constitution (“Elliot’s Debates”) vol. 3. All five volumes are available at https://oll.libertyfund.org/titles/elliot-the-debates-in-the-several-state-conventions-5-vols.
[33] Id. at 577.
[34] The New York convention began June 17, 1788. By that time the Constitution had been ratified by Delaware (December 7, 1787), Pennsylvania (December 12, 1787), New Jersey (December 18, 1787), Georgia (January 2, 1788), Connecticut (January 9, 1788), Massachusetts (February 6, 1788), Maryland (April 28, 1788), and South Carolina (May 23, 1788). Four days after the New York convention began, New Hampshire became the crucial ninth state to ratify on June 21, 1788, officially establishing the Constitution. See, e.g., https://en.wikipedia.org/wiki/Constitution_of_the_United_States#Ratification_by_the_states
[35] Federalist 80, available at https://avalon.law.yale.edu/18th_century/fed80.asp
[36] Federalist 81, available at https://avalon.law.yale.edu/18th_century/fed81.asp
[37] Elliot’s Debates, Vol. 2.
[38] Elliot’s Debates, Vol. 4.
[39] See Randall, supra, at 57-58.
[40] Elliot’s Debates, Vol. 3, pp. 660-61 (Virginia); Vol. 4, p. 246 (North Carolina).
[41] See generally, e.g., https://guides.loc.gov/legislative-history/presidential-communications/signing-statements.
[42] Id., Vol. 1, p. 336.
[43] See generally, e.g., Jim Celia and Farley Grubb, “Van Cleve, George William. “The Anti-Federalists’ Toughest Challenge: Paper Money, Debt Relief, and the Ratification of the Constitution.” Journal of the Early Republic 34, no. 4 (2014): 529-560.
[44] Id., Vol. 1, p. 329.
[45] John J. Gibbons, “The Eleventh Amendment and State Sovereign Immunity: A Reinterpretation,” Columbia Law Review 83, no. 8 (December 1983): 1889-2005.
[46] Gibbons, supra, p. 1990. See also Engdahl, supra.
[47] Conroy v. Aniskoff, 507 U.S. 511 (1993).
[48] Randall, supra, at 94.
[49] The Works of John Ruskin, E.T. Cook, ed., Longmans, Green, and Co. (New York) 1905, pp. 178-79.