Author's note. The questions discussed here are under review by the Utah Supreme Court in Petito v. Moab City Police Department; the author served as amicus counsel. This piece has a dual purpose: to lay out the Utah historical record relevant to the constitutional question, and to indicate the shape of the argument under analogous Open Courts and wrongful-death clauses in other state constitutions. The Utah-specific analysis below should be read with that broader transferability in view — the methodology of identifying a ratification-year baseline, inventorying the contemporaneous statutes and decisions, and shifting the historical burden to the party asserting immunity is portable to most state-constitutional systems that preserve causes of action existing at adoption.
The controlling rule: 1895 as the constitutional baseline
The Utah Constitution's Open Courts clause, Art. I, § 11, guarantees 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, which shall be administered without denial or unnecessary delay." The Wrongful Death clause, Art. XVI, § 5, declares that "[t]he right of action to recover damages for injuries resulting in death, shall never be abrogated." Neither clause carves out a class of defendants. Neither permits the legislature to extinguish a class of plaintiffs.
The Court has long read both clauses as preservation provisions — they fix in place the causes of action that existed when the Constitution was ratified, subject to narrow exceptions that require either a substantive substitute or an important public evil to justify abrogation. Bingham v. Gourley, 2024 UT 38, ¶ 16, sets out the rule for the Open Courts clause. Tiede v. Utah, 915 P.2d 500, 503-04 (Utah 1996), sets out the parallel rule for the Wrongful Death clause. The doctrinal question is empirical: what causes of action did Utah law permit in 1895?
For tort claims against government entities and employees, the answer in 1895 was broad. The 1888 Territorial Code subjected the Territory, counties, cities, and a range of public bodies to suit on the same footing as private corporations, and it provided extensive grounds for personal liability of government officers and employees. The Constitutional Convention, given a chance to grant the State even a limited sovereign immunity, declined to do so. That body of evidence sets the constitutional ceiling. Whatever the Governmental Immunity Act says, it cannot reach below that line.
A century of precedent is a serious consideration, and the question is the Court's to answer. But the affirmative case for treating sovereign immunity as a constitutional doctrine has not been made. The Constitution contains no sovereign-immunity clause. The 1895 record contains no general immunity. The federal and English common-law sources sometimes invoked do not say what defendants assume. The doctrine has been carried forward by a long line of precedent without the kind of historical examination the Open Courts clause invites — a tension acknowledged inside the Court itself. The dissent in Bingham v. Board of Education, 118 Utah 582 (1950), described "the entire doctrine of sovereign immunity" as "inconsistent with justice."
The 1888 Territorial Code: government entities and employees were broadly subject to suit
The empirical work the Open Courts inquiry requires is straightforward — read the territorial statutes that governed Utah law immediately before ratification, and read the contemporaneous cases. The result is a record without sovereign immunity.
The State and the territorial bodies
The 1888 Code provided for civil actions in which a Territorial officer was a defendant on behalf of the Territory. § 3714. It made the librarian of the Utah Library a legal plaintiff or defendant on behalf of the Territory in matters concerning the library. § 1876. It contained no general immunity for the Territory. And the 1895 Constitution itself recognized claims against the State by giving jurisdiction over them to the Board of Examiners. Art. VII, § 13. (That clause was repealed by amendment in 1992; jurisdiction over State claims now sits in the Article VIII courts.) A constitution that provides for claims against the State cannot simultaneously assume sovereign immunity for the State.
Counties, cities, and other public bodies
The 1888 Code treated counties, cities, irrigation districts, the University of the State of Deseret, the Territorial insane asylum, and other public bodies the same as private corporations: each had power "to sue and be sued." See, e.g., § 169 (counties); § 1719 (cities); § 2272 (private corporations); §§ 2403, 2413 (irrigation districts); § 1832 (University). The Code prescribed procedural requirements — claim presentation to the county court, for example — but no substantive immunity. § 199.
The contemporaneous cases confirm the practice. Fenton v. Salt Lake County, 3 Utah 423 (1884), reversed a judgment against Salt Lake County only because the plaintiff had not presented the claim before suit, not because the county was immune. Fritsch v. Board of Commissioners of Salt Lake County, 15 Utah 83 (1897), decided two years after ratification, took for granted that counties were liable for "damages in consequence of torts" and discussed the practical question of how counties should budget for them. The courts at the time of ratification operated in a system without sovereign immunity for public bodies.
Government officers and employees
The 1888 Code treated government officers and employees as personally liable for negligence and other wrongs in the course of their duties. The federal Poland Bill required court marshals to post bonds available "in actions brought against said marshal for the misfeasance or nonfeasance of any deputy" — vicarious as well as individual liability. The Territorial statutes required bonds of surveyors general, sealers of weights and measures, and a long list of other officers.
The substantive provisions are striking in their specificity. Sheriffs were liable for failing to make service of process and for failing to deliver legal papers to a prisoner. §§ 106, 112, 163. Recorders and deputy recorders were liable for damages caused by negligent performance of duties. §§ 141, 148, 153. Custodians of insane persons were liable for cruel treatment. § 1990. Officers arresting witnesses without authority owed double damages. §§ 3960-62. The Code of Civil Procedure carried specific limitations periods for actions against marshals, sheriffs, coroners, and constables on official-capacity liabilities. § 3145(2). Whatever immunity defendants claim today, it did not exist at the relevant baseline. Even Wilkinson v. State, 42 Utah 483 (1913) — the case usually cited as the fountainhead of Utah sovereign immunity — exonerated the State engineer not on immunity grounds, but because he was not negligent. 42 Utah at 487-92.
The Convention rejected the limited immunity clause that was actually proposed
The defense's usual move in Open Courts cases is to argue that the Founders assumed sovereign immunity as a background concept — so universal it went without saying. The historical record forecloses that argument in Utah. On Day 38 of the 1895 Constitutional Convention, Mr. Eichnor proposed the clause, "The Legislature shall not pass any law authorizing suits to be brought against the State." That is a narrow clause: it would have applied to the State only, and only to forward-looking statutory permissions. The Convention rejected it. In the discussion immediately preceding the rejection, one delegate observed that "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."
Two implications follow. First, sovereign immunity was not a background assumption. It was on the table, debated, and rejected. Second, the Convention understood that in the absence of an immunity clause, ordinary courts would hear claims against the State. The defense cannot recover by inference what the drafters declined to write.
Immunity is an affirmative defense — the defendant carries the 1895 burden
The procedural framing matters. Immunity is not a pleading element the plaintiff must negate; it is an affirmative defense the defendant must establish. GeoMetWatch Corp. v. Utah State, 2018 UT 50, ¶ 68. Under the Open Courts inquiry, that allocation extends to the historical question. The party asserting an immunity defense bears the burden of showing that the immunity existed in Utah law at the constitutional baseline.
That allocation matters for brief-writing. The defense will try to frame the question as whether the plaintiff has rebutted a presumption of immunity. The Open Courts framework inverts the presumption. The cause of action carries the constitutional presumption; the immunity defense must affirmatively show its 1895 pedigree. A response brief should make that allocation explicit and force the defense to do the historical work — work the typical immunity motion does not even attempt.
The arguments from federal law and English common law do not supply what the text withholds
Defendants sometimes look outside the Utah record for support — to federal sovereign-immunity doctrine, or to English common law as it stood at the Founding. Neither source supplies what Utah's text and history withhold, and the historical case for either source as a foundation for sovereign immunity is itself thin.
On the federal side: the U.S. Supreme Court in Chisholm v. Georgia, 2 U.S. 419 (1793), rejected sovereign immunity 4-1 in a court composed of Founders. The Eleventh Amendment that followed conspicuously did not foreclose federal-question suits by in-state plaintiffs against their own states, and was applied narrowly until well after the Civil War. Chief Justice Marshall, in Marbury v. Madison, observed that "[i]n 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." Justice Scalia, in a 1985 article written before he joined the Court, wrote that "[a]t the time of Marbury v. Madison there was no doctrine of domestic sovereign immunity, as there never had been in English law." That last point closes the English common-law argument on its own terms.
Even if these external sources gave defendants more than they actually do, they could not override the Utah Open Courts and Wrongful Death clauses. The constitutional question is what Utah law permitted in 1895. The answer comes from Utah statutes and Utah cases — not from federal doctrine that did not yet exist in its current form, and not from English common law that does not say what defendants assume it says.
Stare decisis is not a bar — and "workability" cuts the other way
A century of post-Wilkinson precedent has built up around the doctrine. A response brief that asks the Court to revisit the doctrine — or to limit its reach in a particular application — must engage stare decisis directly. The framework is the two-factor test in State v. Labrum, 2025 UT 12, ¶ 19: the strength of the original reasoning, and the entrenchment of the precedent (age, workability, consistency, hardship).
Concede age. It is the only entrenchment factor that runs unambiguously against overturning, and treating it as decisive would foreclose any constitutional revisitation. The other factors cut differently than the defense will frame them.
Workability is the factor most often misframed. The doctrine is workable in the narrow sense that courts can easily dismiss cases under it. But workability under the Open Courts clause means workability for the constitutional purpose — providing a remedy by due course of law for every injury. By that measure the doctrine is unworkable: it forecloses the very cases the clause was written to preserve. Reframe the question as workability for the constitutional purpose, and the factor flips.
Hardship runs the same way. The defense will argue hardship from overturning — uncertainty, fiscal exposure, administrative complexity. The greater hardship runs the other direction. It falls on the plaintiffs who, under the doctrine, are told the Constitution affords no remedy because the negligent actor wore a uniform. And the government, uniquely among tortfeasors, has tools to mitigate the practical burden — special courts, special procedures, streamlined discovery. That mitigation capacity does not exist for any private defendant.
For the brief-writer
A structured response to a sovereign-immunity defense in Utah civil litigation should:
- Anchor on the Open Courts and Wrongful Death clauses. Lead with Article I, § 11 and Article XVI, § 5. Quote the operative language. Frame the constitutional ceiling as 1895, and frame the inquiry as empirical: what did Utah law permit at ratification?
- Build the 1888 record. The 1888 Territorial Code is the single best source. The "sue and be sued" provisions for the Territory, counties, cities, and other public bodies — together with the personal-liability provisions for officers and employees — establish that government tort defendants were broadly subject to suit at the relevant baseline. Fenton and Fritsch confirm the practice. The defense's burden is to overcome that record; the typical immunity motion does not even attempt it.
- Cite the Convention's rejection of the immunity proposal. Day 38 of the Constitutional Convention forecloses the "background assumption" framing. The drafters considered a limited immunity clause and declined to adopt it. Inference cannot recover what was deliberately rejected.
- Allocate the burden. Immunity is an affirmative defense. The party asserting it carries the burden of showing the immunity existed in 1895. Insist on that allocation, and the defense usually has nothing to offer for the historical inquiry.
- Park the federal and English common-law arguments. The Open Courts inquiry turns on Utah text and Utah history. External sources are at best secondary — and on examination, those sources cut against the defense more often than for it. Do not let the brief get pulled into a long historical detour the doctrine does not require.
- Reframe stare decisis. Concede age. Argue workability under the constitutional purpose, not under the convenience of the trial courts. Argue hardship from maintaining the doctrine, not from overturning it. The original-reasoning factor — Wilkinson's sovereign-immunity language was dicta, and the State engineer there was exonerated on the merits — does substantial work on its own.
The doctrinal terrain favors the plaintiff who treats the Open Courts inquiry as primarily historical. The defense often does not engage the historical record at all, relying instead on the inertia of post-Wilkinson precedent and on background assumptions about sovereign immunity that the Utah record will not support. The brief-writer's job is to insist on the empirical inquiry the constitutional text actually requires.
