Graves v. Utah County Government

2024 UT App 80

THE UTAH COURT OF APPEALS

GREG GRAVES,

Appellant,

v.

UTAH COUNTY GOVERNMENT, NATHAN IVIE, CAMMIE TAYLOR, AND

WILLIAM LEE,

Appellees.

Amended Opinion*

No. 20200296-CA

Filed May 23, 2024

Fourth District Court, American Fork Department

The Honorable Robert C. Lunnen

No. 190100114

Ryan J. Schriever, Attorney for Appellant

Andrew M. Morse and Andrew L. Roth, Attorneys

for Appellees

JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion,

in which JUSTICE JILL M. POHLMAN and SENIOR JUDGE KATE

APPLEBY concurred. 1

* The Appellees filed a petition for rehearing after we published

our original opinion. The points made in the petition were well

taken, and we granted the petition. As a result, our previous

Opinion dated July 6, 2023, is withdrawn, and we issue this

Amended Opinion in its place.

1. Justice Jill M. Pohlman began her work on this case as a member

of the Utah Court of Appeals. She became a member of the Utah

Supreme Court thereafter and completed her work on the case

sitting by special assignment as authorized by law. See generally

Utah R. Jud. Admin. 3‑108(4). Senior Judge Kate Appleby sat by

special assignment as authorized by law. See generally id. R. 11-

201(7).

Graves v. Utah County

CHRISTIANSEN FORSTER, Judge:

¶1 Cammie Taylor lodged a complaint against then-county

commissioner Greg Graves, alleging that he sexually harassed

and retaliated against her while she was employed as the human

resources director for Utah County (the County). The County

hired an independent investigator, who produced an internal

report (the report) to address Taylor’s allegations. In response to

public records requests from two media outlets, the other two

county commissioners voted to disclose redacted copies of

Taylor’s complaint and the report. After the vote, the two

commissioners communicated with the press and the public

regarding the accusations and the investigation, publicly named

Graves as the subject of the report, and called on him to resign.

¶2 Graves sued the County, the two commissioners, and

Taylor, bringing causes of action for false light invasion of

privacy, defamation, slander/libel per se, intentional infliction of

emotional distress, and negligent infliction of emotional distress.

The district court granted a motion to dismiss Graves’s complaint,

and Graves appealed. We affirm.

BACKGROUND

¶3 We recite here the relevant allegations Graves made in his

civil complaint filed in the district court.

¶4 Graves served as a county commissioner for three years,

from 2015 to 2018. In October 2017, Taylor, a county employee,

filed a “Notice of Charge of Discrimination” with the Utah

Antidiscrimination and Labor Division of the Utah Labor

Commission (UALD complaint) alleging Graves had sexually

harassed and discriminated against her. Taylor also sent a notice

of claim to the County. In response, Graves asserted that “Taylor

fabricated allegations of sexual harassment against [him] for

malicious and improper purposes, including . . . retaliation,

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Graves v. Utah County

leverage to avoid termination, and/or leverage to force a

settlement with [the] County when she was terminated from her

job.”

¶5 The County hired an investigator to conduct a factual

inquiry into Taylor’s allegations of sexual harassment and gender

discrimination and prepare the report. The investigator did not

conduct a legal analysis of the merits of the harassment and

retaliation claims made in Taylor’s UALD complaint. But based

upon the report, Graves asserted that the investigator was

“unable to conclude” that Graves had “engaged in any

unwelcome sexual or suggestive behavior or conduct toward”

Taylor.

¶6 Graves’s district court complaint alleged that around this

time, Taylor contacted media reporters to inform them of the

UALD complaint. Subsequently, two media outlets made public

records requests under the Government Records Access and

Management Act (GRAMA), see generally Utah Code §§ 63G-2-101

to -901, for “the complaint against Commissioner Graves,” “[a]ll

emails sent between Utah County Commissioner Greg Graves

and Cammie Taylor, the Utah County personnel director,” and

“any complaint of sexual harassment against Utah County

Commissioner Greg Graves.” The County initially denied the

GRAMA requests because it had not yet received the UALD

complaint and “there were no documents to produce.” Once the

County received the UALD complaint, it continued to deny the

requests pending an investigation.

¶7 County commissioners Nathan Ivie and William Lee (the

Commissioners) later held a GRAMA appeal hearing regarding

the documents that had been requested related to Graves’s

alleged misconduct. The Commissioners voted to release the

requested documents but to redact personal identification

information from them. Immediately after the hearing, however,

Ivie addressed the media, announcing that the report was about

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Graves v. Utah County

Graves and that Ivie would release a prepared statement on his

official social media page. Lee reposted Ivie’s prepared statement

to his own official social media page.

¶8 The County released a partially redacted UALD complaint,

but Graves’s name was included in it. The next day, the County

released the report, in which all the names—including Graves’s—

and identifying information were redacted. Graves alleged that

the Commissioners “knew or should have known” that

publishing the UALD complaint (with his name included)

“without simultaneously releasing the [report] would portray

Graves in a false light in that people would falsely believe he was

guilty of sexual harassment.” Following the release of the UALD

complaint, the media reported extensively about the allegations

of Graves’s sexual harassment, leading to calls for his resignation.

¶9 Graves’s lawsuit against the Commissioners, Taylor, and

the County alleged that Taylor’s accusations against him were

false and that she acted with malice in asserting claims of sexual

harassment and gender discrimination. Graves also claimed that

the Commissioners “acted with malice in publishing the false

statements.” He asserted that this conduct “irreparably damaged”

his reputation, resulting in loss of employment opportunities,

marital problems, bullying of his children, and exacerbation of a

preexisting traumatic brain injury. He sought economic and non-

economic damages.

¶10 In response, the County, the Commissioners, and Taylor

filed a motion to dismiss for failure to state a claim on which relief

could be granted, see Utah R. Civ. P. 12(b)(6), arguing that

Graves’s claims were barred by the Governmental Immunity Act

of Utah (UGIA), see generally Utah Code §§ 63G-7-101 to -904; that

Graves did not and could not properly plead that the

Commissioners or Taylor acted with actual malice; and that

Graves’s infliction of emotional distress claims failed as a matter

of law.

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Graves v. Utah County

¶11 The district court orally granted the motion to dismiss. Its

subsequent written order explained that, under GRAMA and

Deseret News Publishing Co. v. Salt Lake County, 2008 UT 26, 182

P.3d 372, the Commissioners and the County were required to

disclose the report because it was not a protected record, and that,

accordingly, “as a matter of law,” Graves could not “prove they

acted with actual malice.” As to Taylor’s conduct—including

lodging the UALD complaint and allegedly surreptitiously

disclosing to the media her claims of sexual harassment and

gender discrimination—the court concluded that Graves’s claims

were barred by the UGIA because reporting and investigating

sexual harassment allegations were mandatory and both actions

were governmental functions. Moreover, the district court

concluded that Taylor’s intentional acts, including her alleged

leaking of the sexual harassment allegations to the media, were

activities for which immunity was not waived. Accordingly, the

court dismissed with prejudice Graves’s claims of false light

invasion of privacy, defamation, and slander/libel per se. The

parties stipulated to the dismissal with prejudice of the emotional

distress claims. Graves appeals the district court’s decision.

ISSUE AND STANDARD OF REVIEW

¶12 Graves asserts that the district court erred in dismissing his

claims. “A motion to dismiss should be granted only if, assuming

the truth of the allegations in the complaint . . . , it is clear that the

plaintiff is not entitled to relief.” Hudgens v. Prosper, Inc., 2010 UT

68, ¶ 14, 243 P.3d 1275 (quotation simplified). We generally

review a district court’s decision to dismiss claims under rule

12(b)(6) for correctness. Blanch v. Farrell, 2018 UT App 172, ¶ 14,

436 P.3d 285. 2

2. On appeal, Graves articulated the issues in a different fashion.

To the extent that we have not addressed those issues, “we have

(continued…)

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Graves v. Utah County

ANALYSIS

I. Claims Against the Commissioners and Taylor

¶13 The district court relied on Deseret News Publishing Co. v.

Salt Lake County, 2008 UT 26, 182 P.3d 372, in reaching its

conclusion that the Commissioners were required to release the

report. Regarding Taylor, the district court turned to Utah Code

section 63G-7-201(4) in determining that Taylor was protected by

the UGIA. We agree with the district court’s decision dismissing

Graves’s claims against the Commissioners and Taylor, but for a

different reason. See Okelberry v. West Daniels Land Ass’n, 2005 UT

App 327, ¶ 11, 120 P.3d 34 (“It is well established that we may

affirm the judgment appealed from if it is sustainable on any legal

ground or theory apparent on the record, even though such

ground or theory differs from that stated by the trial court to be

the basis of its ruling or action, and this is true even though such

ground or theory is not urged or argued on appeal by appellee,

was not raised in the lower court, and was not considered or

passed on by the lower court.” (quotation simplified)).

¶14 Governmental immunity shields the State and its

employees acting in their official capacities from suit unless the

State expressly consents to being sued. The UGIA states that “each

governmental entity and each employee of a governmental entity

are immune from suit for any injury that results from the exercise

of a governmental function.” Utah Code § 63G-7-201(1); see also

Wheeler v. McPherson, 2002 UT 16, ¶ 10, 40 P.3d 632 (“The [UGIA]

grants the state and its political subdivisions broad, background

immunity from injuries that result due to the exercise of a

governmental function.” (quotation simplified)). To determine if

an employee of a “governmental entity is immune from suit

under the [UGIA], we apply a three-part test, which assesses

determined that they are foreclosed” by the ensuing analysis. See

State v. Pullman, 2013 UT App 168, ¶ 46 n.11, 306 P.3d 827.

20200296-CA 6 2024 UT App 80

Graves v. Utah County

(1) whether the activity undertaken is a governmental function;

(2) whether governmental immunity was waived for the

particular activity; and (3) whether there is an exception to that

waiver.” Van de Grift v. State, 2013 UT 11, ¶ 8, 299 P.3d 1043

(quotation simplified).

¶15 First, the actions of the Commissioners and Taylor

were exercises of a governmental function. A governmental

function is broadly defined as “each activity, undertaking,

or operation performed by a department, agency, employee,

agent, or officer of a governmental entity.” Utah Code § 63G-7-

102(5)(b); see also id. § 63G-7-101(2) (stating that the “scope of

the waivers and retentions of immunity” found in the

UGIA “applies to all functions of government, no matter how

labeled . . . and governs all claims against governmental . . .

employees or agents arising out of the performance of the

employee’s duties, within the scope of employment, or under

color of authority”); Scott v. Universal Sales, Inc., 2015 UT 64, ¶ 58,

356 P.3d 1172 (noting that the legislature has “restricted

governmental liability . . . by expanding the [UGIA’s] definition

of ‘governmental function’” and that “the statute currently

defines that term as encompassing anything the government

decides to do”). Under this standard, all the complained-of

actions of the Commissioners and Taylor were governmental

functions.

¶16 Indeed, the Commissioners were acting in their official

capacities when they communicated publicly about Taylor’s

complaints against Graves; after all, the Commissioners held a

press conference about a governmental complaint and

investigation immediately after an official meeting and later

posted a prepared statement about the same to their official social

media accounts. Thus, these were “activit[ies] . . . performed by

. . . [an] officer of a governmental entity.” See Utah Code § 63G-7-

102(5)(b).

20200296-CA 7 2024 UT App 80

Graves v. Utah County

¶17 Graves does not resist this conclusion directly; instead, he

contends that the first prong of the three-part governmental

immunity test is not met because the Commissioners’ actions

were not “essential to the core of governmental function.” But in

making this argument, Graves relies on an outdated definition of

“governmental function.” In Standiford v. Salt Lake City Corp., 605

P.2d 1230 (Utah 1980), the Utah Supreme Court adopted a

common law definition for governmental function, concluding

that to qualify for immunity, “the activity under consideration

[must be] of such a unique nature that it can only be performed

by a governmental agency or that it is essential to the core of

governmental activity.” Id. at 1236–37. But that definition was

superseded by statute decades ago, GeoMetWatch Corp. v. Utah

State Univ. Rsch. Found., 2018 UT 50, ¶ 18 n.3, 428 P.3d 1064

(explaining that the Standiford definition was statutorily changed

in 1987), and we now apply the legislature’s broad statutory

definition that “encompass[es] anything the government decides

to do,” Scott, 2015 UT 64, ¶ 58. 3 Graves does not contend that this

statutory definition is unmet.

¶18 Similarly, Graves relies on the same outdated Standiford

definition to argue that Taylor’s alleged disclosure of the report to

the media was “not a governmental function.” 4 Specifically,

Graves does not contend that Taylor’s alleged leaking of the

report to the media was not a governmental function under the

3. The Standiford definition of governmental function that Graves

relies on is relevant only in certain challenges under the open

courts clause of the Utah Constitution. See Scott v. Universal Sales,

Inc., 2015 UT 64, ¶¶ 59–60, 356 P.3d 1172. As we explain, see infra

¶¶ 24–25, Graves has not preserved a constitutional challenge.

4. Graves does not challenge the assertion that Taylor’s acts of

filing a sexual harassment complaint arising out of her

employment or participating in the internal investigation of that

complaint are governmental functions.

20200296-CA 8 2024 UT App 80

Graves v. Utah County

statutory definition, nor does he suggest that her alleged contact

with the press did not arise out of the performance of her duties.

To the contrary, Graves alleged in his complaint that “at all times

relevant to the allegations in [the] Complaint,” Taylor was “an

employee of [the] County,” acting as “manager of the human

resources department” for the County. Thus, Graves is left to

contend that because allegedly releasing the report to the media

did not “materially advance the core functions of the government”

(emphasis added), the district court was wrong to conclude that

the UGIA applies. But, as shown above, Graves applies the wrong

standard. Accordingly, we conclude that the first prong of the

three-part test has been met.

¶19 Next, the UGIA is clear that a “governmental entity and an

employee of a governmental entity retain immunity from suit

unless that immunity has been expressly waived in [the UGIA].”

See Utah Code § 63G-7-101(3); see also id. § 63G-7-201(1) (“Except

as otherwise provided in [the UGIA], each governmental entity

and each employee of a governmental entity are immune from

suit for any injury that results from the exercise of a governmental

function.”); Cunningham v. Weber County, 2022 UT 8, ¶ 28, 506 P.3d

575 (“[A] governmental entity enjoys immunity from suit unless

the [UGIA] waives that immunity.”). And as applicable here, the

UGIA contains no waiver of immunity applicable to Graves’s

claims for false light invasion of privacy, defamation, and

slander/libel per se. Section 63G-7-301 of the UGIA lists the

express waivers of immunity, and Graves has not pointed to any

that apply. Instead, he argues that he “has pleaded intentional acts

and the immunity granted” in subsection 63G-7-201(4) “does not

apply.” We agree with Graves, but only in part.

¶20 Subsection 63G-7-201(4) states, as relevant here, that a

“governmental entity, its officers, and its employees are immune

from suit, and immunity is not waived, for any injury proximately

caused by a negligent act or omission of an employee committed

within the scope of employment, if the injury arises out of or in

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Graves v. Utah County

connection with, or results from . . . libel, slander, deceit . . . [or] a

misrepresentation by an employee whether or not the

misrepresentation is negligent or intentional.” Utah Code § 63G-

7-201(4)(b), (f). This provision operates in conjunction with

subsection 63G-7-301(2)(i), which states, “Immunity from suit of

each governmental entity is waived . . . subject to Subsections 63G-

7-101(4) and 63G-7-201(4), as to any injury proximately caused by

a negligent act or omission of an employee committed within the

scope of employment.” Id. § 63G-7-301(2)(i). In other words,

subsection 63G-7-301(2)(i) reflects an express waiver of immunity

for negligent acts, but that otherwise broad waiver comes with

exceptions. And one of those exceptions is found in subsection

63G-7-201(4), which excludes from the waiver injuries caused by

a negligent act of a governmental employee if that injury arose out

of the enumerated intentional acts. See id. § 63G-7-201(4).

¶21 We agree with Graves that the exception to the waiver of

immunity referenced in subsection 63G-7-201(4) does not apply.

Graves does not allege that he was injured by a negligent act, and

thus the exception to the waiver for immunity for negligence has

no application here. But it does not follow that the State has

waived its immunity for the intentional torts Graves asserts. As

explained above, the UGIA makes clear that governmental

entities and their employees are immune from suit unless

immunity is expressly waived. See supra ¶ 19. There is no express

waiver in the UGIA for the intentional torts Graves claims. The

fact that subsection 63G-7-201(4) does not apply here does not

mean that the Commissioners and Taylor are not immune from

suit. Their immunity derives from subsections 63G-7-101(3) and

63G-7-201(1). 5 See supra ¶ 19.

5. In our previously issued opinion, we concluded that subsection

63G-7-202(3)(c)(i) of the UGIA waived immunity for the

Commissioner’s and Taylor’s alleged intentional conduct.

(continued…)

20200296-CA 10 2024 UT App 80

Graves v. Utah County

¶22 Accordingly, we conclude that Graves’s claims against the

Commissioners and Taylor were properly dismissed because

their actions were exercises of a governmental function that enjoy

immunity.

II. Graves’s Constitutional Claims

¶23 Graves’s briefing focuses on his claims against the

Commissioners and Taylor and does not separately address

whether the County is immune from his claims. But he argues

generally that none of the Appellees (including the County) are

immune from suit for an additional reason to the one discussed

above. Graves argues that this court should “consider whether

immunity [for intentional acts] existed or was granted in the first

place,” asserting that “[w]ithout a specific grant of immunity,

there is no immunity to consider.” He points to the use of the

word “retain” in the UGIA: “A governmental entity and an

employee of a governmental entity retain immunity from suit

unless that immunity has been expressly waived in [the UGIA].”

Subsection 63G-7-202(3) provides that “an action under [the

UGIA] against a governmental entity for an injury caused by an

act or omission that occurs during the performance of an

employee’s duties, within the scope of employment . . . is a

plaintiff’s exclusive remedy” and precludes “any civil action or

proceeding based upon the same subject matter against the

employee . . . whose act or omission gave rise to the claim.” Utah

Code § 63G-7-202(3)(a), (c). The provision then lists exceptions to

this general rule, including cases where “the employee acted or

failed to act through fraud or willful misconduct.” Id. § 63G-7-

202(3)(c)(i). The Appellees asked us to reconsider our conclusion,

and, after hearing from both sides, we conclude that we

misapprehended the nature and function of this subsection of the

UGIA. Properly understood, this provision reflects an exception

to a statutory exclusive remedy, not a blanket waiver of immunity

for governmental employees for any fraud or willful misconduct.

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Graves v. Utah County

Utah Code § 63G-7-101(3). Graves argues that in passing the UGIA,

“the legislature attempted to retain something that did not exist

in the first place.”

¶24 We understand this to be a constitutional challenge, which

Graves did not preserve before the district court. “As a general

rule, claims not raised before the trial court may not be raised on

appeal. A party cannot circumvent that rule by merely

mentioning an issue without introducing supporting evidence or

relevant legal authority; such a mere mention does not preserve

that issue for appeal.” State v. Cruz, 2005 UT 45, ¶ 33, 122 P.3d 543

(quotation simplified). Rather, “for an issue to be sufficiently

raised, even if indirectly, it must at least be raised to a level of

consciousness such that the trial judge can consider it.” State v.

Brown, 856 P.2d 358, 361 (Utah Ct. App. 1993) (quotation

simplified). Graves did not do that here. He did not argue to the

district court that the UGIA somehow abrogated a remedy against

the Appellees that was once available. Indeed, his arguments

before the district court were limited to whether the

Commissioners and Taylor committed personal acts essential to

core governmental functions and whether subsection 63G-7-

201(4) applied. Although Graves mentioned in passing that an

expansive understanding of governmental function that included

intentional torts could violate the open courts clause, see Scott v.

Universal Sales, Inc., 2015 UT 64, ¶¶ 57–59, 356 P.3d 1172 (noting

that an expanded definition of “governmental function” could

violate the open courts clause of Article I, Section 11 of the Utah

Constitution (quotation simplified)), he did not raise a specific

constitutional challenge to the immunity of governmental entities

to a degree that the district court had an opportunity to consider

it.

¶25 Moreover, Graves did not notify the Utah Attorney

General of his constitutional challenge to the UGIA, as he was

required to do. See Utah Code § 78B-6-403(3) (“If a statute . . . is

alleged to be invalid, the attorney general shall be served with a

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Graves v. Utah County

copy of the proceeding and be entitled to be heard.”); see also Utah

R. Civ. P. 24(d)(1) (“If a party challenges the constitutionality of a

statute in an action in which the Attorney General has not

appeared, the party raising the question of constitutionality shall

notify the Attorney General of such fact by serving the notice on

the Attorney General by email or, if circumstances prevent service

by email, by mail . . . . The party shall then file proof of service

with the court.”); Utah R. App. P. 25A(a)(1) (“When a party

challenges the constitutionality of a statute in an appeal or

petition for review in which the Attorney General has not

appeared, every party must serve its principal brief and any

subsequent brief on the Attorney General on or before the date the

brief is filed.”). Accordingly, we decline to further address this

issue.

CONCLUSION

¶26 Graves’s claims against the Commissioners and Taylor

were properly dismissed because they involved the exercise of a

governmental function that enjoys immunity. Graves’s

constitutional challenge to the applicability of the UGIA relative

to all the Appellees fails because it was unpreserved and because

Graves did not give proper notice to the Attorney General.

Affirmed.

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