Full Text of the Brief

SUPREME COURT

STATE OF UTAH

Joseph Petito and Nichole Schmidt, individually and on behalf of their daughter, Gabrielle Petito (deceased),

Appellants/Plaintiffs,

— versus —

Moab City Police Department,

Appellees/Defendants.

Amicus Brief of Brooke and Jeromey Jackson

In Support of Appellants/Plaintiffs and

Reversal of the Trial Court Order

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 Amici Brooke & Jeromey Jackson

TABLE OF CONTENTS

TABLE OF AUTHORITIES 4

RULE 25(E) STATEMENTS 6

Identity of Amici Curiae 6

Notice & Consent 6

Responsibility for Amicus Brief 6

SUMMARY OF ARGUMENT 7

ARGUMENT 13

1. The Utah Constitution preserves tort claims that existed in 1895 — including claims against any government entity or employee. 13

1.1. The Open Courts & wrongful death clauses preserves tort claims that existed in 1895 — without limitation. 13

1.2. At the Founding, governmental entities and employees were subject to tort claims. 14

1.3. The Constitutional Convention rejected even a limited sovereign immunity clause that applied only to the State. 22

2. Sovereign immunity is an extra-constitutional notion that cannot limit or override the Open Courts clause. 23

2.1. No answer to the Great Conundrum has been offered, much less shown convincingly. 23

2.2. The argument from the federal constitution is wrong. 24

2.3. The argument from English common law is wrong. 26

3. The Governmental Immunity Act is unconstitutional insofar as it purports to confer immunities that did not exist in 1895. 28

4. Two Provisos 29

4.1. With the 1992 repeal of Article VII, § 13, the Board of Examiners no longer has exclusive jurisdiction over claims against the State. Claims against the State are now properly brought in Article VIII courts. 29

4.2. The Constitution permits measures to address the practical concerns unique to litigation against the government. 30

5. Sovereign immunity does not survive a stare decisis analysis. 30

CONCLUSION 33

TABLE OF AUTHORITIES

Cases

Bingham v. Board of Education, 118 Utah 582 (1950) 11, 34

Bingham v. Gourley, 2024 UT 38 14

Chisholm v. Georgia, 2 US 419 (1793) 9, 27

Cohens v. Virginia, 19 US 264 (1821) 26

Fenton v. Salt Lake County, 3 Utah 423 (Sup. Ct. 1884) 17

Fritsch v. Board of Commissioners of Salt Lake County, 15 Utah 83 (1897) 18

GeoMetWatch Corp. v. Utah State, 2018 UT 50 31

Marbury v. Madison, 5 US (1 Cranch) 137 (1803) 9, 30

Scott v. Utah County, 2015 UT 64 11

SH v. State, 865 P.2d 1363 (1993) 11

State v. Labrum, 2025 UT 12 33

Taylor v. County Court, 2 Utah 405 (1877) 16

Tiede v. State, 915 P.2d 500 (Utah 1996) 11, 14

Tiede v. Utah, 915 P.2d 500 (Utah Sup. Ct. 1996) 14

Wilkinson v. State, 42 Utah 483 (1913) 10, 20, 24, 32

Statutes

Utah Territorial Code (1888), carious sections 14–24

Utah Governmental Immunity Act, Utah Code Ann. §§ 63G-7-101 et seq. 4, 31

Poland Bill 21

Constitutional Provisions

Utah Constitution, Art. I, § 11 7-9, 13-14, 25, 31, 34

Utah Constitution, Art. VII, § 13 8, 24, 32

Utah Constitution, Art. XVI, § 5 13-14, 25, 31

U.S. Constitution, Art. III 27

U.S. Constitution, 11th Amendment 9, 26-27

Other Legal Authorities/Documents

State of Utah Constitutional Convention, Day 38 8, 24-25

SJR8 1992 General Session (Repeal of Art. VII, § 13) 32

Books & Articles

Engdahl. David E., “Immunity and Accountability for Positive Governmental Wrongs,” Univ. Colorado Law Rev. 44, no. 1 (August 1972): 1-80 21

Fortin, Marie-France, The King Can Do No Wrong, Ch. 2. § 2.3.2. 20, 29

Gibbons, John J., “The Eleventh Amendment and State Sovereign Immunity: A Reinterpretation,” Columbia Law Review 83, no. 8 (December 1983): 1889-2005 26

Holmes, Oliver Wendell, “The Path of the Law,” 10 Harv. L. Rev. 457, 469) (1897) 12.

Pfander, James E., “Sovereign Immunity and the Right to Petition,” Nw. Univ. Law Rev. 91 (1996): 899, pp. 907-26 29

Randall, Susan, “Sovereign immunity and the uses of history” Neb. L. Rev. 81 (2002): 1 10, 26

Scalia, Antonin, “Historical Anomalies in Administrative Law,” Yearbook: Supreme Court Historical Society (1985): 103-111 30

Wade, William, “The Crown, ministers and officials: legal status and liability” in The Nature of the Crown: A Legal and Political Analysis (1999): 31-2 20, 29

RULE 25(E) STATEMENTS

Identity of Amici Curiae

Brooke and Jeromey Jackson are the parents of two children — one killed, one injured by the negligence of government actors. The Jacksons have a case pending in the Third Judicial District Court in Salt Lake County, Civil No. 240903471. The Jackson case raises some of the same issues raised in the present appeal. The decision here will likely affect Brooke & Jeromey Jackson in their case.

Notice & Consent

On April 1, 2025, counsel for the parties received timely notice of the intention of these Amici Curiae to file this brief. Counsel for all parties consented to the filing of this brief.

Responsibility for Amicus Brief

No party or party’s counsel authored this brief in whole or in part. No party or party’s counsel contributed money that was intended to fund preparing or submitting the brief. No person — other than counsel for the amici curiae — contributed money that was intended to fund preparing or submitting the brief.

SUMMARY OF ARGUMENT

This brief addresses a limited set of issues relevant to the Petito case. This brief asks the Court to hold that:

1. The Open Courts clause creates a presumption that any person, including any government entity or employee, is liable for committing any tort recognized in Utah law in 1895.

2. The Utah Constitution neither includes nor permits a general doctrine of sovereign immunity.

3. The Utah Governmental Immunity Act is unconstitutional to the extent it purports to confer any immunity that did not exist in Utah law in 1895.

4. Any person claiming immunity under the Act has the burden of showing that the immunity existed in Utah law in 1895.

———

The Utah Constitutional Convention of 1895 considered and rejected a limited sovereign-immunity clause. It would have applied to the State but not to other government entities or to employees. On Day 38 of the 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.

The Constitution did not (and still does not) contain any provision for sovereign immunity. To the contrary, Article I, § 11 of the Constitution guarantees redress for every injury: “every person, for an injury done to the person in his or her person, property, or reputation, shall have remedy by due course of law….” The Constitution makes no exception for injuries committed by government entities or their employees. The Constitution was adopted by people whose parents, or they themselves, had been harassed, sometimes murdered, and driven from their homes by government-sponsored actors.

The Constitution recognized claims against the State. Article VII, Section 13 gave jurisdiction over such claims to a Board of Examiners. (That jurisdictional provision was repealed by Constitutional amendment in 1992.)

Looking beyond the Constitution itself: The territorial laws before adoption of the Constitution, and the State laws shortly after, also contain no provision for sovereign immunity. To the contrary, in a multitude of ways, the statutes confirm the State, other government entities, and their employees could be sued for torts.

If the Constitution includes a sovereign-immunity clause, it is unwritten, a ghost-clause. Advocates have supposed sovereign immunity was such a basic part of federal law and English common law that the drafters of the Constitution took it for granted and forgot to write it in. That would be odd, since the drafters remembered other basic things — e.g., “All men have the inherent and inalienable right to enjoy and defend their lives and liberties,” “All political power is inherent in the people,” etc.

In any event, sovereign immunity was not a basic part of the background that could be forgotten. As to English common law: In the 1700’s it, too, provided for government actors to be sued for their torts. John Marshall, born in 1755 and later Chief Justice of the United States Supreme Court, knew English common law from direct experience. In Marbury v. Madison, 5 US 137 (1803), he wrote, “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.”

Early federal law was the same: In 1793, the US Supreme Court decided Chisholm v. Georgia, 2 US 419. Chisholm concerned debt that Georgia had incurred during the Revolutionary War. Chisholm was decided by a court of Founders. Each of the five Justices was a practicing lawyer before the Revolutionary War. Each had participated in the adoption of the US Constitution. By a vote of 4-1, the Court ruled against sovereign immunity. Even after the 11th Amendment was passed, the Court applied it narrowly until after the Civil War.

The belief that sovereign immunity was baked into English common law and the federal constitution is historically wrong. As the legal historian Susan Randall puts it, “The history of sovereign immunity in the United States is a history of mistakes.”

In 1913, this Court decided Wilkinson v. State, 42 Utah 483. Wilkinson became the fountainhead of sovereign immunity in Utah. Even Wilkinson acknowledged that government employees were liable for their torts. Wilkinson reversed a judgment finding a state engineer liable — not because the engineer was immune, but because he was not negligent. See 42 Utah at 488-92. After dicta suggesting sovereign immunity for the State, the Court added, “we do not mean that state officers, or state boards, or state agencies may not, under certain circumstances, be sued in the courts.”

Over time, sovereign immunity expanded. In 1966, the Governmental Immunity Act purported to grant immunity to every governmental entity and all their employees. Today, among the hundreds of thousands of government employees, there is none so humble but they can claim a privilege to commit torts against the people.

In the century since Wilkinson, no one has shown how the Utah Constitution contains an unwritten sovereign immunity clause that would override the Open Courts clause. Nor has anyone answered the obvious question: What would have motivated the settlers of Utah to grant their new government a privilege to commit torts against them? How could that happen without a public debate? Where did Brigham Young advocate for such a privilege? Where did anyone?

In the century since Wilkinson, this Court has repeatedly endorsed the doctrine of sovereign immunity, sometimes on 3-2 split decisions — usually based on precedent, not reasoning. In 1950, for example, in Bingham v. Board of Education, 118 Utah 582, on a 3-2 split, the Court majority “prefer[red] not to disregard a principle so well established without statutory authority.” Justice Oliver Wendell Holmes thought it “revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV.” In 1950, Wilkinson had only 37 years behind it.

With the notion of sovereign immunity, the Court has created a de facto Constitutional amendment. But the power to amend the Constitution is reserved ultimately to the People. The de facto amendment violates the separation of powers. Insofar as the Governmental Immunity Act overrides the Open Courts clause, the legislature and governor also violated the separation of powers, by encroaching on the power reserved to the People.

As it has coursed through Utah law, sovereign immunity has left a trail of human wreckage in its wake. In Bingham, a three-year-old girl was severely burned by an incinerator that a school put by a playground. In SH v. State, 865 P.2d 1363 (1993), the government negligently hired a driver who then raped a deaf child. In Tiede v. State, 915 P.2d 500 (Utah 1996), the government negligently supervised a pair of felons who then killed two mothers and assaulted their daughters. In Scott v. Utah County, 2015 UT 64, county workers negligently let a prisoner escape. He approached Mika Scott on the Provo River Trail and beat and assaulted her in the bushes. In the present case, police officers ignored clear signs of danger to Gabrielle Petito, and it cost Gabby her life. Not a year later, in amici’s case, three-year-old Hunter Jackson was decapitated by a car driven by a felon high on methamphetamine. The felon was on the streets because of negligence by the government. Hunter was killed along with his best friend, Odin, also three years old, in front of Hunter’s 12-year-old sister.

In these cases down the long line of years, the government offers regrets but insists mournfully that the government has a privilege to commit torts that lead to the burning, raping, or killing of our children, and therefore, sadly, the victims have no recourse, no redress.

Enough. We have a Constitution. It neither creates nor permits sovereign immunity. Neither the legislature nor the courts have authority to grant the government and its employees a privilege to commit torts. That authority is reserved to the People. This Court should no longer declare the law too weak to give recourse for parents of children killed by government negligence. It is past time to restore the Constitutional order.

ARGUMENT

1. The Utah Constitution preserves tort claims that existed in 1895 — including claims against any government entity or employee.

1.1. The Open Courts & wrongful death clauses preserves tort claims that existed in 1895 — without limitation.

The Open Courts clause preserves causes of action that existed in 1895, when the Constitution was adopted. Art. I, § 11 (“every person, for an injury done to the person in his or her person, property, or reputation, shall have remedy by due course of law, which shall be administered without denial or unnecessary delay….”).

Similarly, the Constitution guarantees all citizens the right to bring a wrongful death claim. Art. XVI, § 5 (“The right of action to recover damages for injuries resulting in death, shall never be abrogated, and the amount recoverable shall not be subject to any statutory limitation, except in cases where compensation for injuries resulting in death is provided for by law.”)

Neither clause excludes claims against government entities or employees. This Court has interpreted these provisions as preserving causes of action that existed when the Constitution was first enacted, unless a substantive alternative is provided or the complete abrogation was necessary to cure an important public evil. See, e.g., Bingham v. Gourley, 2024 UT 38, ¶ 16 (open courts clause); Tiede v. Utah, 915 P.2d 500, 503-04 (Utah Sup. Ct. 1996) (wrongful death clause).

As to claims against government entities or employees, the question is whether Utah law as of 1895 permitted them. The answer is Yes. So the Constitution prevents the legislature from eliminating the claims.

1.2. At the Founding, governmental entities and employees were subject to tort claims.

As to the ability to sue, the 1888 Territorial Code put the State, counties, cities, and towns, and various Territorial bodies on the same footing as private corporations. All had power to “sue and be sued.” The Code endowed them with no general immunity.

The State

The 1888 Laws of Utah refer to civil lawsuits against various governmental entities, including the Territorial Government itself. As to the Territory itself, § 1876 provided for the librarian of the Utah Library to act as a legal plaintiff or defendant on behalf of the Territory where the interests of the library were concerned. More generally, § 3714 recognized civil actions in which a Territorial officer was a defendant on behalf of the Territory:

So far as we have found, nothing in the 1888 Laws of Utah suggests the Territorial government was immune from civil suit.

As noted above, the 1895 Constitution provided for claims against the State. Art. VII, § 13. That clause refutes the doctrine of sovereign immunity.

Cities & Private Corporations

Private Corporations: 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: 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

In this respect, the 1888 Code treats counties the same as private corporations and cities: counties have 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 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, the court wrote, “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.” (Appendix B, p. 18.)

The 1888 Code did not limit the claims that could be sued for. The 1888 Code included procedural requirements, 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 counties enjoy a privilege to commit torts. The Code makes no mention of immunity for counties.

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 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. Fenton v. Salt Lake County, 3 Utah 423 (1884). So far as the trial judge and the Supreme Court knew — a decade before ratification — the law did not endow counties with immunity.

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.” Despite the absence of any statute specific to tort lawsuits against counties, the parties and the Supreme Court assumed a county was liable for torts:

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.

15 Utah 83 (1897).

The Supreme Court around the time of ratification was in a position to know whether the law 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.

Other Public Bodies

The 1888 Code addressed other public bodies and made them, too, capable of suing and being sued, the same as private corporations. 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).

Government Employees

By way of background: Even under English law, 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.” “[I]mmunity [did] not extend to ministers and Crown officers, who were liable personally in law for anything unlawful that they did.”

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.”

At the ratification of the Utah Constitution, government officers and employees were personally liable for torts. 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 negligence. Federal law — not just Territorial statutes — required such bonds. 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.). This was not just individual liability, but vicarious liability. 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 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 two-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 one-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). 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. 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 escaped, the officer was liable up to the amount required for bail. §§ 3283-84 (p. 76). The 1888 Civil Code 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.” § 3712 (p. 84). In an action against any Territorial officer in his official capacity no bond 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.

As noted above, even the Wilkinson court acknowledged that government employees were liable for their negligence on the job. Wilkinson v. State exonerated the State’s engineer not because he was immune, but because he was not negligent. See 42 Utah 483, 487-92 (1913).

———

Sovereign immunity was foreign to the 1888 Code. It did not exist for the State, for other government bodies, or for government employees. Sovereign immunity was not a background concept assumed by the drafters of the 1895 Constitution.

1.3. The Constitutional Convention rejected even a limited sovereign immunity clause that applied only to the State.

As noted above, 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. ) To the contrary, the Constitution expressly recognized a right to make claims against the State and conferred jurisdiction on the Board of Examiners to hear such claims.

—————

The Open Courts and Wrongful Death clauses of the Utah Constitution preserve tort claims recognized by Utah law in 1895. That included claims against government entities and employees.

2. Sovereign immunity is an extra-constitutional notion that cannot limit or override the Open Courts clause.

For sovereign immunity (or the Governmental Immunity Act) to eliminate claims that existed in 1895, someone would have to show that the Utah Constitution contains an unwritten sovereign immunity clause. No one has ever shown that.

2.1. No answer to the Great Conundrum has been offered, much less shown convincingly.

To our knowledge, no one has ever tried to answer the Great Conundrum: What would have motivated the founders — of Utah, or of the United States — to grant their new governments a privilege to commit torts against them? Nor has anyone found any historical evidence to suggest the founders even debated that, much less actually did it. For Utah, to our knowledge there is zero historical evidence for sovereign immunity in the Constitution. For the United States, there is more than zero evidence, barely.

2.2. The argument from the federal constitution is wrong.

Given the direct evidence from Utah legal history, the evidence concerning federal law is only marginally relevant. The historical evidence for sovereign immunity in federal law is too big a subject to address meaningfully here. We only give an overview of the key points refer to the following for a fuller discussion of the historical evidence:

• Randall, Susan. “Sovereign immunity and the uses of history.” Neb. L. Rev. 81 (2002): 1, available at: https://digitalcommons.unl.edu/nlr/vol81/iss1/2.

• Gibbons, John J, “The Eleventh Amendment and State Sovereign Immunity: A Reinterpretation,” Columbia Law Review 83, no. 8 (December 1983): 1889-2005.

• Cohens v. Virginia, 19 US 264 (1821) (Marshall, CJ) (re. the history of the 11th Amendment).

Proponents of sovereign immunity as inherent in federal law must prove three implausible claims: that the Founders believed sovereign immunity was compatible with the new government; that this belief was so universal it went unmentioned in the heavily debated Constitution; and that the Founders overlooked the clear language of Article III contradicting sovereign immunity. The historical evidence for these claims is paltry. It amounts to three quotations by federalists trying to persuade anti-federalists to ratify the Constitution despite fears that the states could be sued to collect on their debt from the Revolutionary war. Three quotations in a historical record containing many thousands of pages of public debates.

The textual argument that sovereign immunity is embedded in the original US Constitution is not serious. The original text, in Article III, granted federal courts jurisdiction over cases “between a State and Citizens of another State.” That directly contradicts the doctrine of sovereign immunity that requires a sovereign entity above the people. We know the Founders did not overlook this text or its implications: It was a major concern for the anti-federalists.

After the US Supreme Court’s decision in Chisholm v. Georgia, 2 US 419 (1793), the 11th Amendment was adopted to prevent states from being sued by out-of-state creditors. The Amendment conspicuously did not prevent states from being sued in federal court by their own residents on federal questions. Until after the Civil War, the US Supreme Court interpreted the 11th Amendment according to its language, without reading into it a general principle of sovereign immunity.

Debates at state ratifying conventions further undermine the case for sovereign immunity. For example, in Virginia, nearly all delegates, Federalist and Anti-Federalist alike, read Article III as allowing individuals to sue states. Patrick Henry, for example, warned that Article III would leave states “bound hand and foot” to creditors, rejecting James Madison’s strained assurances to the contrary as a “perversion” of clear language. No one — including fellow Federalists — found Madison and John Marshall’s counterarguments convincing. In fact, even Federalist Edmund Randolph conceded that the Constitution precluded state sovereign immunity.

The first nine states to ratify the Constitution proposed no amendments to preserve sovereign immunity, and only some late-ratifying states sought amendments or signing statements to clarify their opposition — further evidence that sovereign immunity was not a foundational constitutional principle.

The doctrine of sovereign immunity is alive and well in current federal law, but it does not survive on textualist or originalist credentials. The historical evidence from federal law does nothing to support the claim that sovereign immunity is part of Utah’s Constitution.

2.3. The argument from English common law is wrong.

The relevance of English common law is even more marginal here. Again we refer the Court to other sources and give only a summary. 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

• 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).

• 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.

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. Over the centuries, power shifted between nobles, monarch, and commoners. In the 1600s, the Stuarts tried to assert an absolute monarchy in which the king was above the law and beyond accountability. The Stuarts’ dreams of absolute power died abruptly in 1649 when Parliament cut off Charles I’s head. As a compromise after the beheading, the king was deemed not personally liable for the acts of the “crown,” but the king’s ministers were to be liable for their wrongs. By a decorous fiction, just as the king would eventually be removed from any meaningful role in government, the person of the king was removed from governmental liability.

By the mid 1700s, claims could be made against the government (the “king”) through a variety of mechanisms. We have quoted Chief Justice Marshall’s description in Marbury v. Madison. Similarly, 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).

In short, any effort to legitimize sovereign immunity on the basis of English common law as it existed at the Founding of America fails.

———

Utah’s Constitution and legal history do not support a doctrine of sovereign immunity, and no evidence from outside Utah supports the doctrine in Utah law. In Utah, sovereign immunity is an extra-constitutional doctrine that cannot limit or override the Open Courts and Wrongful Death clauses of the Utah Constitution.

3. The Governmental Immunity Act is unconstitutional insofar as it purports to confer immunities that did not exist in 1895.

Without support from a doctrine of sovereign immunity, the Governmental Immunity Act cannot override the Open Courts or Wrongful Death clauses of the Utah Constitution. That does not mean the Act is unconstitutional in all respects. There may be limitations on the liability of government actors that are truly valid. It is unnecessary and imprudent to attempt in this case to catalogue every legitimate limitation on liability.

What can and should be done, however, is to declare that the only limitations on liability for government actors that can be sustained under the Open Courts and Wrongful Death clauses are those limitations that existed in 1895.

Furthermore, since immunity is an affirmative defense, the burden of proving that the limitation existed in 1895 should be on the party asserting it. See GeoMetWatch Corp. v. Utah State, 2018 UT 50, ¶ 68.

4. Two Provisos

4.1. With the 1992 repeal of Article VII, § 13, the Board of Examiners no longer has exclusive jurisdiction over claims against the State. Claims against the State are now properly brought in Article VIII courts.

We have emphasized the 1895 Constitution’s grant of jurisdiction over claims against the State, providing for those claims to be heard by the Board of Examiners. Lest there be any confusion: In 1992, that grant of jurisdiction was repealed by Constitutional amendment. See SJR8 1992 General Session.

The Board of Examiners never had jurisdiction over claims against other government entities or employees (unless under a now-moot doctrine of concurrent jurisdiction). The Board still exists as a creature of statute, but the Board no longer has exclusive jurisdiction over claims against the State as a matter of constitutional law. There is no longer any impediment to suing the State in Article VIII courts.

4.2. The Constitution permits measures to address the practical concerns unique to litigation against the government.

There may be legitimate practical concerns and legitimate means to address them — special courts, special procedures, etc. The invalidity of the sovereign immunity doctrine does not imply otherwise. But those practical concerns and their potential solutions are not now before the Court.

5. Sovereign immunity does not survive a stare decisis analysis.

We are asking the Court to overrule a century-old line of precedent. Faced with such a request, the Court considers the two Eldridge factors. See State v. Labrum, 2025 UT 12, ¶ 19.

As to the first factor — the strength of the reasoning on which the original precedent rests — the preceding discussion shows the sovereign-immunity decisions are fundamentally flawed.

The second Eldridge factor is the relative entrenchment of the precedent in the law — taking account of the precedent’s age, workability, and consistency with other legal principles, as well as the extent to which overturning the precedent would create hardship or injustice. We take these in turn:

The precedent’s age: This weighs in favor of keeping the doctrine of sovereign immunity.

Workability: As for administrability, the existing system works well. It is easy to dismiss cases. It is easy to tell tortfeasors they are immunized from liability.

But as for serving the purposes of the Utah Constitution — including that “every person, for an injury done to the person in his or her person, property, or reputation, shall have remedy by due course of law” — the existing doctrine is unworkable. Seventy-five years ago in Bingham, the three-member majority, upholding the doctrine, conceded that “law writers, editors and judges have criticized and disapproved the foregoing doctrine of governmental immunity as illogical and unjust.” 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.” 118 Utah 582 (1950). The workability factor weighs in favor of overturning the doctrine of sovereign immunity.

Consistency with other legal principles: As discussed above, the sovereign immunity doctrine is inconsistent with the Utah Constitution’s Open Courts and Wrongful Death clauses. It is inconsistent with the power of the People to have the final say on whether to change the Constitution. Permitting the Governmental Immunity Act to override the Constitution violates the separation of powers at least as seriously as when a court improperly strikes down a legislative act. The consistency factor weighs in favor of overturning the doctrine of sovereign immunity.

Hardship or injustice from overturning precedent: The greater hardship comes from maintaining the precedent, not from overturning it. The greater hardship is to the victims of negligence who are told there can be no remedy, no redress, no recompense, because government enjoys a privilege to commit torts. Since people and organizations are less incentivized to be careful when they cannot be held liable for negligence or other misconduct, the current system likely leads to more misconduct and greater harm than in a regime of responsibility for torts.

Like any tortfeasor, the government would feel it a hardship to be held responsible for their torts. First, it’s not a “hardship” to be put on an equal footing with everyone else. It’s not a “hardship” for the government to be responsible for its torts just as Wal-Mart is responsible for its own torts. Second, uniquely among tortfeasors, the government has the ability to mitigate the hardship of litigation by creating special courts, special discovery procedures, etc. to allow for streamlined litigation.

The hardship or injustice factor weighs in favor of overturning the doctrine of sovereign immunity.

On the Court’s stare decisis analysis, the doctrine of sovereign immunity should be rejected, and the precedents establishing it should be overturned to that extent.

CONCLUSION

The doctrine of sovereign immunity in America sprang largely from the political difficulties of lawsuits against southern states after the Civil War. The legal, intellectual, and moral basis for the doctrine is a wisp. The textualist or originalist foundation for the doctrine is vapor. The doctrine represents a violation of the separation of powers — the intrusion of the government into the ultimate prerogative of the People to decide on Constitutional amendments. The doctrine does not express the sovereignty of the People. It expresses the arrogance of government that refuses to take responsibility for its wrongs and to provide redress.

Too many times, this Court has stood before the parents of a deaf child who was raped, or the daughters of murdered mothers, only to say, “Our hands are tied, the law will do nothing for you, the government may do as it pleases.” Now, Gabby Petito’s parents stand before the Court. Brooke and Jeromey Jackson stand here grieving their little boy and their traumatized daughter with every beat of their broken hearts. On their behalf, we ask the Court to restore the Constitutional order and to permit the measure of justice the Utah Constitution allows.

June 11, 2025

Respectfully submitted,

/s/ Daniel E. Holloway

Daniel E. Holloway

Bruce M. Pritchett

Attorneys for Amici Brooke & Jeromey Jackson

Certificate of Compliance

This memorandum complies with Utah R. App. Proc. 24(g) (length of briefs). The applicable word limit pursuant to Rule 25(f) is 7,000 words. This memorandum also complies with Rule 21, governing public and private records.

June 11, 2025

Respectfully submitted,

/s/ Bruce Pritchett

Bruce M. Pritchett

Daniel E. Holloway

Attorneys for Amici Brook & Jeromey Jackson

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).

June 10, 2025

Respectfully submitted,

/s/ Bruce Pritchett

Bruce M. Pritchett

Daniel E. Holloway

Attorneys for Plaintiffs