Jensen v. Cunningham et al

This opinion is subject to revision before final
publication in the Pacific Reporter
2011 UT 17
IN THE
SUPREME COURT OF THE STATE OF U TAH
P ARKER J ENSEN , a minor, by and through his parents and
natural guardians, BARBARA and DAREN J ENSEN ; BARBARA
J ENSEN , individually, and DAREN J ENSEN , individually,
Plaintiffs and Appellants,
v.
KARI CUNNINGHAM ; R ICHARD ANDERSON ; LARS M.
WAGNER; KAREN H. ALBRITTON ; SUSAN EISENMAN ; and
J ANE and J OHN DOE ,
Defendants and Appellees.
No. 20090277
Filed March 29, 2011
Third District, Salt Lake
The Honorable Joseph C. Fratto, Jr.
No. 050912502
Attorneys:
Roger P. Christensen, Karra J. Porter, Sarah E. Spencer, Salt Lake
City, for plaintiffs
Mark L. Shurtleff, Att’y Gen., Bridget K. Romano, Joni J. Jones,
Asst. Att’ys Gen., David G. Williams, Andrew M. Morse, R. Scott
Young, Salt Lake City, for defendants
JUSTICE PARRISH, opinion of the Court:
INTRODUCTION
¶1 	This appeal is the latest stage in a protracted dispute between
the State of Utah and Barbara and Daren Jensen regarding the
proper medical care of the Jensens’ son, Parker. 	In it, we must
balance the right of parents to direct the medical care of their child

J ENSEN V . C UNNINGHAM, ET AL .
Opinion of the Court
1 When reviewing a district court’s grant of summary judgment, we
consider “the facts and all reasonable inferences drawn therefrom in
the light most favorable to the nonmoving party.” Orvis v. Johnson,
2008 UT 2, ¶ 6, 177 P.3d 600 (internal quotation marks omitted). In
this case, that party is the Jensens.
2
with the State’s interest in protecting the health and safety of
children within its borders.
¶2 	A doctor who was treating Parker reported the Jensens to the
Utah Division of Child and Family Services for suspected medical
neglect after the doctor concluded the Jensens were refusing Parker
lifesaving medical care. After a months-long process in the juvenile
court, the Jensens sued the state of Utah and various state actors in
Utah State court, alleging violations of the Jensens’ state and federal
constitutional rights. 	The defendants removed the matter to the
federal district court, which entered summary judgment against the
Jensens on their claims asserting that the defendants violated their
federal constitutional rights. 	However, the federal district court
remanded the Jensens’ state law claims to the Utah district court,
noting that the claims presented “important issues of state law.”
¶3 	On remand, the state district court applied collateral estoppel
and dismissed the plaintiffs’ state claims. 	The court applied
collateral estoppel because it concluded that the Utah Constitution
provided no broader rights than the federal constitution and it
determined that the facts, the alleged harm, and the analysis of the
Jensens’ state law claims were the same as those that the federal
district court had already considered and dismissed.
¶4 We hold that the state district court erred in applying collateral
estoppel, but affirm the district court’s order on alternative grounds
that are apparent in the record. 	Specifically, we hold that two
defendants are absolutely immune from suit and that the claims
against the remaining three defendants fail because, as a matter of
law, the facts do not demonstrate a “flagrant violation” of the
Jensens’ state constitutional rights.
FACTUAL AND PROCEDURAL BACKGROUND1
¶5 This controversy began on April 30, 2003, when Barbara Jensen

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Opinion of the Court
2 Cytogenetic testing may be performed only on fresh or frozen
tissue, and is therefore not possible when tissue is placed in formalin
or paraffin. In contrast, although not optimal, molecular testing can
be performed on tissue samples that have been placed in formalin or
paraffin. Because the tissue removed from Parker’s mouth by Dr.
Christensen was placed in formalin or paraffin, cytogenetic testing
could not be performed on that specimen.
3
took her 12-year-old son Parker to an oral surgeon, Dr. Christensen,
to have a small growth under Parker’s tongue removed. 	Dr.
Christensen sent a sample of the removed tissue to Laboratory
Corporation of America (“LabCorp”) for analysis. 	The lab deter-
mined that the growth was malignant (cancerous). Dr. Christensen
then referred the Jensens to Dr. Muntz, an ear, nose, and throat
specialist at Primary Children’s Medical Center (“Primary Chil-
dren’s”) in Salt Lake City, Utah.
¶6 	After examining Parker, Dr. Muntz referred him to the
oncology department at Primary Children’s, where he met with Dr.
Wagner. 	On May 9, Dr. Wagner examined Parker, but did not
immediately 	offer 	any 	diagnosis 	because 	Primary 	Children’s
pathology department had not yet completed its own testing.
¶7 	After completing testing on May 20, the Primary Children’s
pathology department diagnosed the growth as “Ewings Sar-
coma/Peripheral Primitive Neuroectodermal Tumor,” otherwise
known as Ewing’s Sarcoma. The diagnosis from Primary Children’s
was 	based 	on 	the 	conventional 	test 	for 	Ewing’s—an
immunohistochemical staining—and the appearance of tumor cells.
Ewing’s may also be diagnosed through cytogenetic and molecular
genetic testing. 	Under either test, a positive result may be mani-
fested by a chromosomal translocation, but the absence of a
translocation does not mean it is not Ewing’s. Neither genetic nor
molecular testing was performed on Parker’s tissue sample, 2
although the pathology report contains a “comment” that reads, “In
the event of excision of additional lesional tissue from this site,
cytogenetic studies and freezing of tissue for possible molecular
ancillary studies may be informative.” 	Nonetheless, the two
pathologists who reviewed the testing were confident in the diagno-
sis. One, Dr. Lowichik, estimated her confidence in the diagnosis to

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4
be “in the high 90 percent.” The other, Dr. Coffin, testified that the
Ewing’s diagnosis was rendered with near certainty.
¶8 	After reviewing the pathology report, Dr. Wagner spoke at
length with Dr. Coffin, who was the head of the pathology depart-
ment at Primary Children’s, and asked her whether molecular
testing was indicated for Parker. Dr. Coffin said she was comfort-
able with the testing that had been conducted.
¶9 	On May 21, Dr. Wagner met with the Jensens to discuss
Parker’s care. Dr. Wagner expressed his confidence in the Ewing’s
diagnosis and his desire for prompt initiation of chemotherapy. Dr.
Wagner told the Jensens that, if left untreated, Ewing’s sarcoma was
expected to be fatal. He explained the difference between localized
and nonlocalized Ewing’s, and informed the Jensens that the cure
rate for localized disease—where there is no evidence of cancer in
places other than where it was discovered—was approximately 60
percent to 70 percent when treated with recommended chemother-
apy, but that the cure rate for nonlocalized disease was as low as 20
percent. He also explained that, if treated with surgery alone, Parker
had a low chance of survival.
¶10 	Dr. Wagner ordered radiographic examinations on Parker’s
neck, thorax, chest, and skull to determine whether the cancer had
spread. 	All of these additional tests were negative. 	Dr. Wagner
communicated to the Jensens his concern that there might be
undetectable microscopic metastatic cancer cells throughout Parker’s
body that needed to be treated with chemotherapy. 	The Jensens
were bothered by the idea that Parker could have what they termed
“invisible cancer.” In fact, Ms. Jensen testified that she thought the
notion was “crazy.”
¶11 	When the Jensens asked whether there were any other tests
that could be done to confirm the Ewing’s diagnosis, Dr. Wagner
told them there were no other tests required to confirm the diagnosis
and that he was sure it was Ewing’s. The Jensens nonetheless asked
Dr. Wagner to send a sample of Parker’s tissue to Dr. Grier, an
oncologist at the Dana-Farber Cancer Institute at Harvard University
(“Dana-Farber”), for a second opinion. Dr. Wagner complied with
the Jensens’ request and sent the tissue to Dana-Farber. The Jensens
ultimately canceled the consultation. Dr. Wagner has testified that
the Dana-Farber test was not done because the Jensens had deter-

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Opinion of the Court
5
mined their insurance company would not pay for the second
opinion and the Jensens were unwilling to pay for it. The Jensens
contend, however, that the second opinion was canceled because
they felt it would not be truly independent.
¶12 	On May 28, 2003, the Jensens consulted with Dr. Judith
Moore, a family doctor at the Modern Health Clinic (the “Clinic”) in
Bountiful, Utah. Ms. Jensen’s father had received treatment from Dr.
Moore for prostate cancer. 	Dr. Moore questioned the Ewing’s
diagnosis because “all the evidence except for the [Primary Chil-
dren’s pathology testing] were negative for cancer.”
¶13 	Dr. Moore’s treatment of Ms. Jensen’s father had included a
form of therapy called Insulin Potentiation Therapy (IPT). 	The
Jensens asked professionals at the Clinic whether IPT might be a
potential treatment if Parker had Ewing’s, and they requested
information to take to their oncologist. The Jensens were provided
some printed materials and directed to websites that contained
additional information on IPT, even though an employee of the
Clinic who had previously administered IPT later testified that she
believed IPT “was not a safe and effective treatment” for Ewing’s.
¶14 	The Jensens met again with Dr. Wagner on May 29, 2003. A
social worker was also present. At the meeting, the Jensens asked
Dr. Wagner for a Positron Emission Tomography (“PET”) scan, a
procedure that Dr. Moore had recommended “to make sure there
was no cancer throughout the body.” Dr. Wagner did not order the
PET scan, explaining that it would not be useful in Parker’s situa-
tion. Dr. Wagner explained to the Jensens that a negative PET scan
would not change the need for chemotherapy because it could not
detect microscopic cancer cells, and he again expressed the need for
immediate chemotherapy.
¶15 	The Jensens refused to allow Dr. Wagner to begin treating
Parker with chemotherapy. The Jensens again asked Dr. Wagner if
there were other tests to confirm the Ewing’s diagnosis. Dr. Wagner
said there were not. Dr. Wagner’s entry in his medical log, which
was made after the meeting, indicated that the Jensens were in
agreement with the Ewing’s Sarcoma diagnosis. He also noted that
the Jensens were “quite interested in pursuing care at an alternative
medicine clinic in Bountiful, Utah, which would provide insulin
potentiation therapy (IPT).” Dr. Wagner had informed the Jensens

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6
that IPT is not an accepted therapy and could not be given through
Primary Children’s. Nonetheless, they asked him to “look into” IPT,
and Dr. Wagner said that he would.
¶16 	On June 5, Dr. Wagner discussed with Mr. Jensen the results
of his research on IPT. Dr. Wagner communicated the following to
Mr. Jensen: IPT is not approved by federal regulatory agencies for
the treatment of any types of cancer; there is no evidence that IPT is
an effective treatment for Ewing’s; no safety information is available
for IPT; treatment with IPT would increase the likelihood of
chemotherapy resistance; and use of IPT would dramatically
increase the risk of Parker relapsing and dying from his disease. Dr.
Wagner also informed the Jensens that he was legally and ethically
bound to involve state protective services if Parker’s best medical
interests were not being addressed.
¶17 	By early June 2003, it was clear that the Jensens and Dr.
Wagner had significant differences in opinion about Parker’s
medical care. To address these differences, a meeting was held on
June 9, 2003 with the Jensens, Dr. Wagner, Dr. Lemons (head of the
oncology department at Primary Children’s), a Primary Children’s
social worker, and the head of quality assurance for the hospital. At
the meeting, Dr. Wagner again expressed the need for immediate
chemotherapy. The Jensens refused to consent to chemotherapy and
stated that they planned to begin IPT. Dr. Wagner had informed the
Jensens that IPT would interfere with traditional chemotherapy.
Therefore, the Jensens thought that saying they were going to
commence IPT would perhaps cause Primary Children’s to “back
off,” thinking that traditional chemotherapy would no longer work.
The Jensens contend they refused chemotherapy not because they
planned on commencing IPT, but because they desired confirmation
through additional tests, which Dr. Wagner had determined were
unnecessary. At some point during the meeting, the head of quality
assurance for Primary Children’s told the Jensens that a referral to
the Division of Child and Family Services (“DCFS”) might be
required. The Jensens left the meeting telling the Primary Children’s
staff that they were “fired” and that the Jensens would find another
hospital to treat Parker.
¶18 	On June 12, Dr. Wagner sought the advice of Dr. David
Corwin, the Division of Child and Family Services’ (“DCFS”) liaison
at Primary Children’s, as to whether the Jensens’ refusal to begin

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7
chemotherapy warranted a report of suspected medical neglect to
DCFS. In his written request for consultation, Dr. Wagner informed
Dr. Corwin that the Jensens were “refusing conventional therapy
and seeking unproven alternative treatment methods.”
¶19 Dr. Corwin attempted to schedule a meeting with the Jensens
and Dr. Wagner to discuss the impasse regarding Parker’s treatment,
but these attempts failed. The Jensens claim Dr. Wagner told Dr.
Corwin there was no time for a meeting because Parker could die
without immediate chemotherapy. 	Regardless, having failed to
resolve the treatment conflict, Dr. Corwin decided that the Jensens
should be reported to DCFS for refusing what the doctors consid-
ered medically necessary treatment.
¶20 	On June 16, representatives from the hospital and DCFS held
a regularly scheduled meeting at Primary Children’s. Dr. Wagner,
Dr. Corwin, and a social worker from DCFS, Kari Cunningham,
were also present. At this meeting and in a case summary submitted
to DCFS, Dr. Wagner summarized his interaction with the Jensens.
A formal referral to DCFS was made that same day.
¶21 The case was assigned to Ms. Cunningham. Based on reports
from Dr. Wagner and Dr. Corwin, and the information she obtained
from the June 16 meeting, Ms. Cunningham was under the impres-
sion that Parker’s case was a medical emergency and that something
needed to be done within a matter of hours or days. On June 18, she
filed in the Third District Juvenile Court a Verified Petition and
Motion to Transfer Custody and Guardianship. In the petition, Ms.
Cunningham alleged, in essence, that the Jensens were committing
medical neglect by refusing to treat Parker with chemotherapy. Ms.
Cunningham did not conduct an independent investigation into the
claims, nor did she meet with the Jensens to get their side of the
story. Rather, she apparently relied solely on the accounts from the
doctors at Primary Children’s.
¶22 	On June 19, Ms. Jensen took Parker to Dr. Christensen, the
oral surgeon who had performed the first excision of Parker’s tumor.
Dr. Christensen took another sample from the floor of Parker’s
mouth in the area where the original tumor had been removed. The
tissue was sent to a University of Washington Pathology Laboratory.
That lab reported on June 24, 2003 that the tissue contained Ewing’s
sarcoma.

J ENSEN V . C UNNINGHAM, ET AL .
Opinion of the Court
8
¶23 	Also on June 19, the Jensens took Parker to see Dr. John
Thompson at LDS Hospital in Salt Lake City. 	Dr. Thompson
examined Parker, and reviewed the Primary Children’s chart,
including the LabCorp and Primary Children’s pathology reports
and the radiographic tests that Primary Children’s had done as part
of the staging process for Parker’s treatment. He told the Jensens
that he concurred with the Ewing’s diagnosis and Dr. Wagner’s
recommended course of treatment.
¶24 	The Jensens first appeared before the juvenile court on June
20. 	They expressed their interest in obtaining further testing to
definitively determine Parker’s diagnosis. Susan Eisenman repre-
sented DCFS in the juvenile court proceedings and became the
primary Assistant Attorney General on Parker’s case. The juvenile
court continued the hearing until July 10, to allow the parties time to
negotiate a stipulation.
¶25 The Jensens attempted to have other doctors evaluate Parker,
but the court did not approve any of these doctors because they were
not board certified oncologists. At the July 10 hearing, the parties
stipulated to an independent evaluation and subsequent treatment
at the Children’s Hospital of Los Angeles (“Children’s Hospital”) by
Dr. Tishler. 	Genetic testing would be performed to satisfy the
Jensens’ desire for a more definitive diagnosis. But when the Jensens
arrived at the Children’s Hospital, Dr. Tishler indicated he was
recommending chemotherapy based on the pathology reports from
Primary Children’s in Utah before his own test results were
complete. 	In essence, the Jensens allege that Dr. Tishler was
deferring to the Primary Children’s diagnosis. 	Based on this
experience, the Jensens continued to look for another doctor to
perform the genetic testing and give them what they considered a
truly independent second opinion and treatment options.
¶26 	The court had set August 8, 2003 as the date for Parker to
begin chemotherapy based on the stipulated agreement and Dr.
Tishler’s orders. 	The court also set an evidentiary hearing for
August 20, 2003 to resolve DCFS’s petition for custody. According
to the Jensens, because they had lost faith in the independence of Dr.
Tishler, they did not begin chemotherapy for Parker on August 8.
They figured they could explain their reasons at the August 20
hearing, and took Parker on a boating trip in Idaho. They planned

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9
to take Parker to the Burzynski Clinic in Houston for further testing
and treatment following the trip, but when they failed to begin
chemotherapy on August 8, Ms. Eisenman sought a hearing with the
juvenile court for the purpose of seeking authorization to take Parker
into protective custody.
¶27 	A hearing was held on August 8. The Jensens’ lawyer was
present at the hearing and indicated that the Jensens had plans to
take Parker to the Burzynski Clinic for evaluation and that they
would begin treatment as directed by the Clinic. 	The Jensens’
proposal to take Parker to another doctor that had not been ap-
proved by the juvenile court prompted Ms. Cunningham to include
Dr. Albritton, who had replaced Dr. Wagner at Primary Children’s,
in the hearing. 	Ms. Eisenman asked Dr. Albritton whether the
Burzynski Clinic was qualified to treat Parker. 	Dr. Albritton
indicated that Dr. Burzynski was not a board certified oncologist,
that his clinic was known for providing extremely controversial
therapy and that for these reasons it was not an appropriate clinic to
treat Parker.
¶28 	Based on this information and the Jensens’ failure to start
chemotherapy as they had agreed in the stipulation, Ms. Eisenman
filed an Application to Take a Child into Protective Custody. The
application was supported by affidavits from Ms. Cunningham and
Dr. Wagner. The juvenile court issued an order authorizing DCFS
to take Parker into protective custody, finding that it was in Parker’s
best interest. 	But the warrant could not be served because the
Jensens were in Idaho. 	This prompted the court to issue a bench
warrant for the arrest of Mr. and Mrs. Jensen. 	And, to make the
warrant effective in Idaho, an adult arrest warrant subject to a
national database was necessary. Ms. Eisenman, Ms. Cunningham,
and Parker’s guardian ad litem informed the Salt Lake County
District Attorney’s Office of the situation. This resulted in criminal
charges being filed against the Jensens, including one count of
custodial interference and one count of kidnaping.
¶29 	On August 16, 2003, Mr. Jensen was arrested in Idaho, where
he spent four days in jail. Upon Mr. Jensen’s arrest, Ms. Jensen took
Parker to Houston to see Dr. Burzynski. But the Burzynski Clinic
refused to see Parker because the juvenile court order had granted
legal custody to the State of Utah and the Clinic did not have consent
from the State to treat Parker.

J ENSEN V . C UNNINGHAM, ET AL .
Opinion of the Court
3 The complaint also named as a defendant Intermountain Health
Care (“IHC”). 	However, the parties stipulated that none of the
defendants was an IHC employee, and IHC was voluntarily
dismissed from the case. Consequently, IHC is not part of the case
or this appeal.
10
¶30 	At this time, Richard Anderson, director of DCFS, was called
by the Governor’s office to assist in the case. Mr. Anderson flew to
Idaho to meet with Mr. Jensen to try to negotiate an agreement for
the Jensens to return to Utah and begin a treatment plan for Parker.
Ultimately, Mr. Anderson was able to reach a stipulation with the
Jensens, in which they agreed to take Parker to Dr. Johnston, a board
certified oncologist at St. Luke’s Hospital in Boise, Idaho, and to
submit to his treatment recommendations. 	However, like Dr.
Tishler, Dr. Johnston recommended chemotherapy after reviewing
Parker’s file without ordering any independent diagnostic tests. The
Jensens were again dismayed at the lack of an independent diagno-
sis and refused to work with Dr. Johnston.
¶31 DCFS ultimately conceded that the Jensens would not submit
to chemotherapy and that it was unreasonable to force an unwilling
13-year-old boy to undergo chemotherapy. 	Accordingly, DCFS
dismissed the Verified Petition and the Jensens entered a plea
agreement with the State on the custodial interference charges in
exchange for the State’s promise to dismiss the kidnaping charges.
¶32 	In 2005, the Jensens filed a complaint in Utah’s Third District
Court against the State of Utah, Ms. Cunningham, Mr. Anderson, Dr.
Wagner, Dr. Corwin, Dr. Coffin, Dr. Albritton, and Ms. Eisenman. 3
In the complaint, the Jensens asserted the following ten claims for
relief: (1) 42 U.S.C. § 1983 violation of parents’ Fourteenth Amend-
ment due process right to direct medical care of their child; (2) 42
U.S.C. § 1983 violation of First and Fourteenth Amendment right to
familial association; (3) 42 U.S.C. § 1983 violation of Fourth Amend-
ment for malicious prosecution; (4) 42 U.S.C. § 1983 violation of
Parker’s Ninth Amendment right to refuse unwanted medical
treatment; (5) violation of right to “enjoy and defend” lives under
article I, section 1 of the Utah Constitution; (6) violation of due
process under article I, section 7 of the Utah Constitution; (7)
violation of the right to be free from unreasonable searches and

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seizures under article I, section 14 of the Utah Constitution; (8)
violation of the right to familial association under article I, section 25
of the Utah Constitution; (9) state common law wrongful initiation
of civil/criminal process; and (10) state common law intentional
infliction of emotional distress.
¶33 	The defendants removed the case to federal court and
promptly filed motions to dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(6). The federal district court dismissed the fourth
and eighth claims in their entirety and various claims against specific
defendants, but allowed others to proceed. After extensive discov-
ery, the defendants filed motions for summary judgment. The court
granted defendants’ motions for summary judgment on all federal
claims. Specifically, the court held that defendants Eisenman and
Albritton were absolutely immune from the Jensens’ federal claims
because the conduct they allegedly engaged in was performed
during activities “sufficiently connected with the judicial process.”
The court also determined that defendants Wagner, Cunningham,
and Anderson were entitled to qualified immunity from the Jensens’
federal claims. The federal court declined to exercise supplemental
jurisdiction over the remaining state law claims and remanded them
to state court, finding that they “present[ed] important questions of
state law.” P.J. ex rel. Jensen v. Utah, No. 2:05-CV-739 TS, 2008 U.S.
Dist. LEXIS 72334, at *98 (D. Utah Sept. 22, 2008). On appeal, the
Court of Appeals for the Tenth Circuit upheld the dismissal of the
federal claims. P.J. ex rel. Jensen v. Wagner, 603 F.3d 1182 (10th Cir.
2010).
¶34 	On remand to Utah’s Third District Court, the defendants
again filed motions for summary judgment, arguing that the federal
court ruling required dismissal of the Jensens’ state law claims. The
court granted the motions, reasoning that the issue preclusion arm
of the doctrine of res judicata barred the Jensens from arguing that
their state constitutional rights had been violated. The court relied
on issue preclusion because it determined there was no historical or
textual basis for interpreting the Utah Constitutional provisions as
providing any broader protections than their federal counterparts.
And, because the federal courts had conclusively decided that the
Jensens had not produced evidence to form the basis of a federal
constitutional claim, they similarly could not prove state constitu-
tional claims when the federal and state constitutions provided
substantially similar protection. The Jensens appeal the state district

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Opinion of the Court
4 In their brief, the Jensens make only a passing reference to their
intentional tort claims, choosing instead to focus solely on their state
constitutional claims. For this reason, we consider the intentional
tort claims waived and affirm the district court’s dismissal of them.
Utah R. App. P. 24(a)(9); see also; State v. Wareham, 772 P.2d 960, 966
(Utah 1989) (declining to reach an issue raised by a party where the
party’s “brief totally fails to provide any reasons to support the
contention”).
12
court ruling dismissing their claims, arguing that it improperly
applied issue preclusion to bar their state constitutional claims.4
¶35 	We have jurisdiction to review the district court order under
Utah Code section 78A-3-102(3)(j) (Supp. 2010).
STANDARDS OF REVIEW
¶36 	We review a district court’s grant of summary judgment for
correctness and afford no deference to the court’s legal conclusions.
See Orvis v. Johnson, 2008 UT 2, ¶ 6, 177 P.3d 600. We affirm a grant
of summary judgment only if there are no disputed issues of
material fact and, with the facts and all reasonable inferences viewed
in the light most favorable to the nonmoving party, the moving
party is entitled to judgment as a matter of law. 	Utah R. Civ. P.
56(c). 	We may affirm a grant of summary judgment upon any
grounds apparent in the record. Bailey v. Bayles, 2002 UT 58, ¶ 10, 52
P.3d 1158.
¶37 Interpretation of the Utah Constitution and the application of
collateral estoppel are both questions of law that we review for
correctness. See Dexter v. Bosko, 2008 UT 29, ¶ 5, 184 P.3d 592; Macris
& Assocs., Inc. v. Neways, Inc., 2000 UT 93, ¶ 17, 16 P.3d 1214.
ANALYSIS
¶38 	In this case, the state district court granted summary judg-
ment in favor of all defendants because it determined that collateral
estoppel applied and precluded the Jensens from asserting their state
law claims. We first evaluate the propriety of this decision and hold
that it was in error. 	Next, we define our state judicial immunity
standard and apply it to uphold the dismissal, as a matter of law, of

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13
the claims against defendants Karen Albritton and Susan Eisenman.
We then outline the contours of the protections afforded by the Utah
Constitution regarding the right of parents to direct the medical care
of their children, the right to procedural due process, and the right
to be free from unreasonable search and seizure. 	Based on this
discussion, we affirm the summary judgment dismissing the
Jensens’ claims against the remaining three defendants, Dr. Lars
Wagner, Kari Cunningham, and Richard Anderson. We do so on the
alternative ground that monetary damages are not an appropriate
remedy for the alleged constitutional violations because, as a matter
of law, the conduct of these defendants does not constitute a
“flagrant violation” of the Jensens’ state constitutional rights.
I. THE DISTRICT COURT ERRED IN RELYING ON
COLLATERAL ESTOPPEL TO DISMISS THE JENSENS’ STATE
LAW CLAIMS ON SUMMARY JUDGMENT
¶39 	The district court erred in applying collateral estoppel in this
case because the legal standards for state and federal constitutional
violations are different. 	Because the Jensens’ state law claims
“involve important issues of Utah law,” the federal district court
declined to exercise supplemental jurisdiction over the claims and
instead remanded them to state court. P.J. ex rel. Jensen v. Utah, No.
2:05-CV-739 TS, 2008 U.S. Dist. LEXIS 72334, at * 3 (D. Utah Sept. 22,
2008). The federal district court made no findings with regard to any
of the Jensens’ state law claims but dismissed, on the merits, all of
their federal claims. Id.
¶40 	In deciding the remanded claims, the state district court
concluded that the Utah Constitution does not provide greater
protections for parental rights than the Federal Constitution. The
court ruled that the same set of undisputed facts that were material
to the federal claims was also material to the state constitutional
claims. And because the federal court determined that those material
and undisputed facts were not sufficient to establish a violation of
the Jensens’ federal constitutional rights, the Jensens were precluded
from arguing that their state constitutional rights were violated. The
state district court erred in applying collateral estoppel in this way.
¶41 	Collateral estoppel, otherwise known as issue preclusion,
“‘prevents parties or their privies from relitigating facts and issues in
the second suit that were fully litigated in the first suit.’” Oman v.

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Opinion of the Court
14
Davis Sch. Dist., 2008 UT 70, ¶ 31, 194 P.3d 956 (quoting Snyder v.
Murray City Corp., 2003 UT 13, ¶ 35, 73 P.3d 325). Issue preclusion
applies only when the following four elements are satisfied:
(i) the party against whom issue preclusion is asserted
[was] a party to or in privity with a party to the prior
adjudication; (ii) the issue decided in the prior adjudi-
cation [was] identical to the one presented in the
instant action; (iii) the issue in the first action [was]
completely, fully, and fairly litigated; and (iv) the first
suit . . . resulted in a final judgment on the merits.
Id. ¶ 29 (quoting Collins v. Sandy City Bd. of Adjustment, 2002 UT 77,
¶ 12, 52 P.3d 1267).
¶42 	To satisfy the second element of this test, the issue to be
litigated must be “identical” in both cases. The defendants rely on
Oman in support of their argument that the issue the state court
faced here is identical to the one decided by the federal court. In
Oman, we held that collateral estoppel barred the plaintiff from
litigating his breach of contract claim in state court because a federal
court had already determined that the employment contract had not
been breached. Id. ¶ 32. The “issue” precluded from re-litigation in
that case was whether the employment contract had been breached.
Id. Generally, state law governs the interpretation of contracts. See,
e.g., Summit Contractors, Inc. v. Legacy Corner, L.L.C., 147 F. App’x 798,
800 (10th Cir. 2005). The federal court in Oman did not indicate a
deviation from this norm. Therefore, because the breach of contract
issue had been decided by the federal court using the same standard
that would be applied in state court, the plaintiff was precluded
from relitigating that issue in state court. See Oman, 2008 UT 70, ¶ 32.
¶43 But Oman is distinguishable from the situation presented here.
This case is more analogous to a Maryland case, Thacker v. City of
Hyattsville, 762 A.2d 172 (Md. Ct. Spec. App. 2000). There, the state
court rejected the application of collateral estoppel after a federal
district court dismissed a plaintiff’s federal § 1983 claims based on
federal qualified immunity standards. Id. at 182–83. When faced
with the plaintiff’s state constitutional claims based on the same
series of events considered by the federal court, the state court
refused 	to 	apply 	collateral 	estoppel 	because 	“Maryland 	law
governing qualified immunity from state law claims is not ‘identical’

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Opinion of the Court
15
to federal law governing qualified immunity from section 1983
claims.” Id. at 183.
¶44 	The instant case presents a nearly identical scenario to that
considered by the Maryland court in Thacker. Here, as in Thacker, the
federal district court applied federal constitutional law and federal
immunity standards to dismiss the Jensens’ § 1983 claims on
summary judgment. P.J. ex rel. Jensen, 2008 U.S. Dist. LEXIS 72334,
at *33-99, aff’d in part, rev’d in part sub nom., P.J. ex rel. Jensen v.
Wagner, 603 F.3d 1182, 1194–1201 (10th Cir. 2010). 	And the state
district court granted summary judgment to the defendants because
it determined it was bound by the dispositive issue in federal
court—that, as a matter of law, the material and undisputed facts did
not give rise to a federal constitutional violation. 	But the state
district court was not considering a federal constitutional violation.
Rather, it was considering whether the facts gave rise to cognizable
claims of state constitutional violations under state law. 	The
determinations made by the federal judge, under federal law,
regarding the materiality of the facts or the inferences that could be
drawn from those facts were not dispositive as to questions arising
under state law. Thus, unlike the situation in Oman, where the legal
standard for analyzing a breach of contract claim was the same in
both state and federal court, the standards for determining whether
a plaintiff is entitled to damages for a state constitutional violation
differ from the standards for assessing claims under the federal
constitution.
¶45 	At the most fundamental level, the standards for state and
federal constitutional claims are different because they are based on
different constitutional language and different interpretive case law.
See, e.g., State v. Tiedemann, 2007 UT 49, ¶ 34, 162 P.3d 1106 (noting
that “Utah’s search and seizure provisions (which are identical to
those in the federal constitution) provide a greater expectation of
privacy than the Fourth Amendment as interpreted by the United
States Supreme Court” (internal quotation marks omitted)); compare,
e.g., U.S. Const. amend. V (federal “due process” clause), with Utah
Const. art. I, § 7 (state “due process” clause), and 	id. art. I, § 1
(“inherent and inalienable rights” clause).
¶46 	While some of the language of our state and federal constitu-
tions is “substantially the same,” similarity of language “does not
indicate that this court moves in ‘lockstep’ with the United States

J ENSEN V . C UNNINGHAM, ET AL .
Opinion of the Court
16
Supreme Court’s [constitutional] analysis or foreclose our ability to
decide in the future that our state constitutional provisions afford
more rights than the federal Constitution.” Bailey v. Bayles, 2002 UT
58, ¶ 11 n.2, 52 P.3d 1158; see also Tiedemann, 2007 UT 49, ¶ 33; West
v. Thomson Newspapers, 872 P.2d 999, 1006 (Utah 1994); State v. Watts,
750 P.2d 1219, 1221 n.8 (Utah 1988). 	This idea underlies our
reasoning in those cases where we have adopted the primacy
approach, which dictates an analysis of state constitutional law
before addressing any federal constitutional claims. Tiedemann, 2007
UT 49, ¶ 33; see also West, 872 P.2d at 1006. When utilizing this ap-
proach, we have stated, “[t]his court, not the United States Supreme
Court, has the authority and obligation to interpret Utah’s constitu-
tional guarantees . . . and we owe federal law no more deference in
that regard than we do sister state interpretation of identical state
language.” Tiedemann, 2007 UT 49, ¶ 33. Indeed, when a court is
confronted with a state constitutional claim, the starting point is the
language of the state constitution. Id.
¶47 	In addition to the differences in constitutional language and
interpretive case law, the framework for making out a claim for
damages for a violation of one’s constitutional rights is different
under state and federal law. To recover for a violation of the United
States Constitution under section 1983 of Title 42 of the United States
Code, a plaintiff must “show that the defendant’s actions violated a
[federal] constitutional or statutory right . . . [and] that this right was
clearly established at the time of the conduct at issue.” 	Clark v.
Edmunds, 513 F.3d 1219, 1222 (10th Cir. 2008) (internal quotation
marks omitted); see also Pearson v. Callahan, 129 S.Ct 808, 818 (2009)
(noting that courts are “permitted to exercise their sound discretion
in deciding which of the two prongs of the qualified immunity
analysis should be addressed first”). The answers to these questions
must be based on the language of the Federal Constitution.
¶48 In contrast, to recover monetary damages for a violation of the
Utah Constitution, a plaintiff must demonstrate that the provision
violated by the defendant is self-executing and then must establish
three elements: (1) the plaintiff “suffered a flagrant violation of his
or her constitutional rights;” (2) “existing remedies do not redress
his or her injuries;” and (3) “equitable relief, such as an injunction,
was and is wholly inadequate to protect the plaintiff’s rights or
redress his or her injuries.” Spackman ex rel. Spackman v. Bd. of Educ.,

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Opinion of the Court
5 For these same reasons, the law of the case doctrine is
inapplicable. 	The law of the case doctrine applies to preclude
relitigation of an issue when the identical issue was litigated earlier
in the same case. 	See IHC Health Servs., Inc. v. D & K Mgmt., Inc.,
2008 UT 73, ¶ 26, 196 P.3d 588. 	Because the issues are different
under the state and federal constitutions, the law of the case doctrine
is inapplicable here.
17
2000 UT 87, ¶¶ 18, 23–25, 16 P.3d 533. The answers to these ques-
tions must be based on the language of the Utah Constitution.
¶49 	Without an analysis of the independent protections afforded
by our state constitution, the state district court dismissed the
Jensens’ state law claims because a federal court found that the
undisputed material facts did not give rise to a federal constitutional
violation. This was error. Because the state and federal standards
for determining whether a plaintiff is entitled to damages for a
constitutional violation are different, a federal court determination
that the material undisputed facts do not give rise to a federal
constitutional violation does not preclude a state court from
deciding whether those same facts will give rise to a state constitu-
tional violation. 5 Therefore, the state district court’s grant of
summary judgment to the defendants solely on the basis of collateral
estoppel was in error.
II. THE UTAH GOVERNMENTAL IMMUNITY ACT DOES NOT
SHIELD DEFENDANTS WAGNER AND ALBRITTON, BUT
DEFENDANTS EISENMAN AND ALBRITTON ARE IMMUNE
FROM THE JENSENS’ STATE CONSTITUTIONAL CLAIMS ON
THE BASIS OF QUASI-JUDICIAL IMMUNITY
¶50 	Because we have determined that the district court errone-
ously applied collateral estoppel, we turn to the merits of the
Jensens’ claims. But first we address defendants’ argument that they
are immune from the Jensens’ state constitutional claims. 	Defen-
dants Wagner and Albritton contend that the Utah Governmental
Immunity Act shields them from liability. Defendants Albritton and
Eisenman argue that they are entitled to quasi-judicial immunity.

J ENSEN V . C UNNINGHAM, ET AL .
Opinion of the Court
6 This statute has since been revised and renumbered.
7 The United States Supreme Court has limited this federal absolute
immunity test to exclude any administrative or investigative
functions, even if they were performed as part of the judicial
process. 	See Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993). 	The
Utah Court of Appeals has recognized that we have not addressed
whether immunity would apply to administrative or investigative
functions, but it nevertheless applied this limited immunity test to
(continued...)
18
A. The Governmental Immunity Act Does Not Apply to Claims Alleg-
ing State Constitutional Violations
¶51 	Dr. Wagner and Dr. Albritton claim immunity under a
provision of the Utah Governmental Immunity Act that bars claims
against individual state actors unless they act with fraud or malice.
Utah Code Ann. § 63-30-4(3)(b)(i) (1997). 6 Their argument is without
merit and requires little analysis because the Utah Governmental
Immunity Act does not apply to claims alleging state constitutional
violations. See Spackman ex rel. Spackman v. Bd. of Educ., 2000 UT 87,
¶ 20 n.7, 16 P.3d 533; Bott v. DeLand, 922 P.2d 732, 736 (Utah 1996)
(“[G]overnmental immunity cannot apply where a claimant alleges
that the state or a state employee violated his constitutional rights.”),
overruled on other grounds by Spackman, 2000 UT 87; Colman v. Utah
State Land Bd., 795 P.2d 622, 630–31 (Utah 1990) (holding that the
Utah Governmental Immunity Act’s sovereign immunity protection
does not apply to article I, section 22 constitutional takings claims).
Thus, defendants Wagner and Albritton are not immune from the
Jensens’ claims.
B. Quasi-Judicial Immunity Bars the Jensens’ Claims against Defen-
dants Eisenman and Albritton
¶52 	Dr. Albritton and Ms. Eisenman invoke quasi-judicial
immunity. The Supreme Court of the United States has recognized
the defense of absolute immunity from section 1983 civil rights
actions. See, e.g., Kalina v. Fletcher, 522 U.S. 118, 131 (1997). Under
this doctrine, a prosecutor is entitled to absolute prosecutorial
immunity from liability arising from alleged constitutional violations
that arise out of the prosecutor’s performance of “the traditional
functions of an advocate.”7 Id. We have incorporated and expanded

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Opinion of the Court
7 (...continued)
a claim of fraud. See Cline v. State, 2005 UT App 498, ¶ 40, 142 P.3d
127. We have not had the occasion to affirm or reject the court of
appeals’ application of the state limited immunity test, but we
decline in this case to reach the issue because the record does not
support the proposition that Ms. Eisenman or Dr. Albritton were
performing administrative or investigative functions.
19
upon this functional approach to insulate advocates and others
involved in the judicial process. See Parker v. Dodgion, 971 P.2d 496,
498 (Utah 1998). Our immunity test provides protection for a state
actor committing acts “‘in the performance of an integral part of the
judicial process.’” Id. (quoting Bailey v. Utah State Bar, 846 P.2d 1278,
1280 (Utah 1993)).
¶53 	In Parker v. Dodgion, we applied this “quasi-judicial immu-
nity” standard to a psychologist who was appointed by the court to
assist in making a custody determination. 	Id. 	We held that the
psychologist was performing a function integral to the judicial
process by “conducting evaluations and making recommendations
regarding custody” and therefore was immune from the plaintiff’s
claims. 	Id. at 499. 	Applying a similar quasi-judicial immunity
standard, an Ohio appeals court dismissed a plaintiff’s civil rights
claims against a guardian ad litem because of the guardian ad
litem’s 	“role 	as 	a 	court-appointed 	functionary 	charged 	with
representing the interests of minor children in the judicial process.”
Dolan v. Kronenberg, No. 76054, 1999 Ohio App. LEXIS 3387, at *7–8
(Ohio Ct. App. July 22, 1999).
¶54 	Defendants Eisenman and Albritton were similarly filling
integral roles in the judicial process. Ms. Eisenman was the attorney
representing DCFS in the juvenile court proceedings. The Jensens
contend that Ms. Eisenman made material misrepresentations to the
juvenile court, her supervisor, the district attorney’s office, and the
Jensens. They also allege that Ms. Eisenman “performed a skewed
investigation.” But all of Ms. Eisenman’s actions that the Jensens
allege violated their state constitutional rights were performed in
Ms. Eisenman’s role as an advocate and necessarily were integral to
the judicial process. Similar to the guardian ad litem in Dolan, Ms.
Eisenman was the court appointed functionary charged with

J ENSEN V . C UNNINGHAM, ET AL .
Opinion of the Court
8 In their reply brief, the Jensens assert that it would be improper
for us to decide whether the defendants were protected by quasi-
judicial immunity because related issues of fact are in dispute. They
also 	argue 	that 	the 	defendants’ 	material 	misstatements 	and
omissions demonstrate they acted with malice and that for this
reason immunity should not apply. 	We disagree with both
assertions. 	First, our analysis focuses primarily on a defendant’s
function within the judicial process, not the manner in which that
function is performed. 	See Black v. Clegg, 938 P.2d 293, 296 (Utah
1997) (holding that the filing of an inaccurate certificate was still
protected by quasi-judicial immunity despite its errors); Spielman v.
Hildebrand, 873 F.2d 1377, 1382 (10 Cir. 1989) (indicating that the
testimony of a child welfare worker was protected by absolute
immunity even though the testimony was false). 	In this case, we
have 	concluded 	defendants 	Eisenman 	and 	Albritton 	were
performing functions integral to their role in the judicial process.
Second, even assuming they were guilty of misstatements or
omissions 	in 	carrying 	out 	their 	judicial 	functions, 	it 	cannot
reasonably be inferred from the facts that the defendants acted with
malice, or even that any of the alleged misstatements or omissions
(continued...)
20
representing the state’s interest in the case. Therefore, we hold that
her actions are protected by quasi-judicial immunity.
¶55 	For her part, defendant Dr. Albritton was asked during a
juvenile court proceeding to give her expert opinion about the
qualifications of doctors, specifically those at the Burzynski Clinic,
whom the Jensens suggested should treat Parker. 	This role was
similar to the role fulfilled by the psychologist in Dodgion, who
offered the court his opinion about the qualifications of the parties
seeking custody. Dr. Albritton’s conduct was an integral part of
the judicial process because it informed the court of the qualifica-
tions of the doctors in light of the juvenile court’s order that only a
board certified oncologist could treat Parker. Accordingly, we hold
that Dr. Albritton’s actions are also protected by quasi-judicial
immunity.
¶56 	Because defendants Eisenman and Albritton performed acts
that were integral to the judicial process, they are immune from the
Jensens’ state constitutional claims.8

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Opinion of the Court
8 (...continued)
were made intentionally.
21
III. THE JENSENS ARE NOT ENTITLED TO PURSUE
MONETARY DAMAGES FOR THE ALLEGED VIOLATIONS OF
THEIR STATE CONSTITUTIONAL RIGHTS
¶57 	We now turn to the merits of the constitutional tort claims
against the remaining defendants, Dr. Wagner, Ms. Cunningham
and Mr. Anderson. 	The Utah Constitution does not expressly
provide damage remedies for constitutional violations. 	And the
Utah Code does not include a statute akin to 42 U.S.C. § 1983. As a
result, a plaintiff’s remedy for state constitutional violation rests in
the common law. See Spackman ex rel. Spackman v. Bd. of Educ., 2000
UT 87, ¶¶ 19–20, 16 P.3d 533. In Spackman, we recognized that the
common law gives Utah courts the authority to “accord an appropri-
ate remedy to one injured from the violation of a constitutional
provision.” Id. ¶ 20.
¶58 	In order to recover damages for the violation of a constitu-
tional provision under Spackman, a plaintiff must clear two hurdles.
First, the plaintiff must prove that the constitutional provision
violated is “self- executing.” Id. ¶ 18. Next, a plaintiff must establish
the following three elements: (1) the plaintiff “suffered a ‘flagrant’
violation of his or her constitutional rights;” (2) “existing remedies
do not redress his or her injuries;” and (3) “equitable relief, such as
an injunction, was and is wholly inadequate to protect the plaintiff’s
rights or redress his or her injuries.” 	Id. ¶¶ 23–25. 	Because the
common 	law 	authority 	to 	award 	damages 	for 	constitutional
violations invokes policy considerations, a court’s discretion in
imposing monetary damages should be “cautiously and soundly”
exercised. Id. ¶ 21. As a result, the Spackman test is intended “[t]o
ensure that damage actions are permitted only ‘under appropriate
circumstances.’” Id. ¶ 22. Because the Jensens are seeking monetary
damages for alleged violations of their state constitutional rights, we
must analyze their claims under Spackman.

J ENSEN V . C UNNINGHAM, ET AL .
Opinion of the Court
22
A. Each of the Constitutional Provisions Relied Upon by the Jensens is
Self-Executing
¶59 	The Jensens must first demonstrate that the provisions they
claim defendants violated—article I, sections 1, 7, and 14—are self-
executing. 	“[A] constitutional provision is self-executing if it
articulates a rule sufficient to give effect to the underlying rights and
duties intended by the framers” or, in other words, “if no ancillary
legislation is necessary to the enjoyment of a right given, or the
enforcement of a duty imposed.” Spackman, 2000 UT 87, ¶ 7 (internal
quotation marks omitted). Constitutional provisions that prohibit
certain conduct usually are self executing. 	Id. ¶ 8. 	On the other
hand, “constitutional provisions are not self-executing if they merely
indicate a general principle or line of policy without supplying the
means for putting them into effect.” 	Id. ¶ 7 (internal quotation
marks omitted).
¶60 Prior to Spackman, we had expressly found three constitutional
provisions to be self-executing: the former version of article XII,
section 18 (providing for the liability of bank stockholders); article I,
section 22 (the Takings Clause); and article I, section 9 (the Unneces-
sary Rigor/Cruel and Unusual Punishment Clause). Id. ¶ 9.
¶61 	In Spackman, we held that article I, section 7–the due process
clause—is self executing. Id. ¶ 10. Three characteristics of the clause
supported our conclusion. First, we found the clause “inarguably
prohibitory,” id. ¶ 11, especially given the Utah Constitution’s
declaration that all of its provisions are “‘mandatory and prohibi-
tory, unless by express words they are declared to be otherwise.’”
Id. (quoting Utah. Const. art. I, § 26). Second, the due process clause
had been defined and enforced on numerous occasions in the
absence of implementing legislation, despite the fact that “the right
to due process is expressed in relatively general terms.” Id. ¶ 12.
“Finally, the context in which the clause was adopted suggest[ed]
the framers intended to constitutionalize existing concepts of due
process rather than create a new provision requiring legislative
implementation.” 	Id. ¶ 13. 	We have never considered whether
article I, sections 1 or 14 are self executing. We do so now.

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Opinion of the Court
23
1. Article I, section 1 is self-executing
¶62 	Article I, section 1 states that
[a]ll men have the inherent and inalienable right to
enjoy and defend their lives and liberties; to acquire,
possess and protect property; to worship according to
the dictates of their consciences; to assemble peace-
ably, protest against wrongs, and petition for redress
of grievances; to communicate freely their thoughts
and opinions, being responsible for the abuse of that
right.
Utah Const. art I, § 1. We hold that this provision is self-executing.
First, the provision is prohibitory. By its terms, it prohibits govern-
ment from infringing upon citizens’ “inherent and inalienable”
rights and, like the due process clause, it does not contain express
words declaring that it is not “mandatory and prohibitory.” Second,
like the due process clause, this court has on numerous occasions
defined and enforced article I, section 1 without implementing
legislation. 	See, e.g., Ritholz v. City of Salt Lake, 284 P.2d 702, 705
(Utah 1955) (invalidating city ordinance that prohibited price
advertising of eyeglasses because it unduly infringed upon adver-
tiser’s article I, section 1 right to “enjoyment of property”); Golding
v. Schubach Optical Co., 70 P.2d 871, 875 (Utah 1937) (noting that
rights guaranteed by article I, section 1 “are invaded when one is not
at liberty to contract with others respecting the use to which he may
subject his property . . . or the manner in which he may enjoy it”
(internal quotation marks omitted)).
2. Article I, section 14 is self-executing
¶63 	Article I, section 14 is also self-executing. It states:
The right of the people to be secure in their persons,
houses, 	papers 	and 	effects 	against 	unreasonable
searches and seizures shall not be violated; and no
warrant shall issue but upon probable cause sup-
ported by oath or affirmation, particularly describing
the place to be searched, and the person or thing to be
seized.

J ENSEN V . C UNNINGHAM, ET AL .
Opinion of the Court
24
Utah Const. art I, § 14. The plain language of this section directly
prohibits unreasonable searches and seizures without probable
cause for a warrant. 	Such a rule sufficiently gives effect to the
underlying rights and duties without implementing legislation. See
Spackman, 2000 UT 87, ¶ 7.
¶64 	Because all of the provisions upon which the Jensens base
their claims are self-executing, the Jensens have cleared the first
Spackman hurdle. We now consider whether money damages are an
appropriate remedy for the Jensens’ alleged constitutional violations
by applying the three-part test we enunciated in Spackman.
B. A Private Suit for Damages is not an Appropriate Remedy for the
Alleged Constitutional Violations
¶65 	Money damages are an appropriate remedy for a constitu-
tional violation only where a plaintiff establishes three elements: (1)
the plaintiff “suffered a ‘flagrant’ violation of his or her constitu-
tional rights;” (2) “existing remedies do not redress his or her
injuries;” and (3) “equitable relief, such as an injunction, was and is
wholly inadequate to protect the plaintiff’s rights or redress his or
her injuries.” Spackman, 2000 UT 87, ¶¶ 23–25.
¶66 	The first step inquires whether the defendants’ alleged
conduct constitutes a “flagrant violation” of the Jensens’ constitu-
tional rights. This element is not satisfied unless the conduct violates
“‘clearly established’ constitutional rights ‘of which a reasonable
person would have known.’” Id. ¶ 23 (quoting Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982)). A right is not clearly established unless its
contours are “‘sufficiently clear that a reasonable official would
understand that what he is doing violates that right.’” Id. (quoting
Anderson v. Creighton, 483 U.S. 635, 639-40 (1987)). The “flagrant”
requirement “ensures that a government employee is allowed the
ordinary ‘human frailties of forgetfulness, distractibility, or misjudg-
ment without rendering [him or her]self liable for a constitutional
violation.’” Id. (alteration in original) (quoting Bott, 922 P.2d at 740).
¶67 	The defendants contend that a flagrant violation cannot exist
absent clear precedent on point that specifically recognizes the
claimed right and applies it to analogous facts. But we believe the
flagrant violation standard cannot be so constrained. To be sure, it
will be easier for a plaintiff to demonstrate a flagrant violation where

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Opinion of the Court
9 The 	Jensens 	actually 	alleged 	violations 	of 	several 	rights
purportedly encompassed by article I, sections 1 and 7, including:
(1) parents’ right to direct their child’s medical care free from
governmental interference, unless such interference is narrowly
tailored and in furtherance of a compelling state interest; (2) parents’
right to follow medical recommendations of a licensed physician of
their 	choosing, 	unless 	the 	State 	can 	establish 	that 	the
recommendations are substantially below the norm; (3) parents’
right not to be reported to the State for neglect because the parents
are seeking confirmation of a diagnosis before implementing a state
actor’s medical recommendations; and (4) parents’ right to an
investigation of the reporting party’s allegations before being forced
to defend against State efforts to transfer custody in order to impose
medical procedures on a child. 	Because all of these alleged
violations ultimately arise under an asserted general right to direct
the medical care of one’s child, we consolidate our analysis of the
specific claims.
25
precedent clearly establishes that the defendant’s alleged conduct
violates a provision of the constitution. The converse is also true—in
the absence of relevant precedent recognizing the right and prohibit-
ing the alleged conduct, it will be more difficult for a plaintiff to
prevail. Nevertheless, we can conceive of instances where a defen-
dant’s conduct will be so egregious and unreasonable that it
constitutes a flagrant violation of a constitutional right even in the
absence of controlling precedent.
¶68 	With this standard in mind, we now consider the Jensens’
specific claims. 	The Jensens assert the defendants violated their
right to direct the medical care of Parker under article I, sections 1
and 7 of the Utah Constitution.9 The Jensens also allege violations
of their procedural due process rights under the same provision.
Finally, the Jensens allege a violation of their right under article I,
section 14 to be free from unreasonable custodial and non-custodial
seizures. For each alleged violation, we first review the scope of the
claimed right and then consider the facts under the summary
judgment standard to determine whether the Jensens have identified
facts or disputed issues of fact giving rise to a “flagrant violation.”
¶69 	When analyzing the rights afforded by our state constitution,
we begin the discussion “with a review of the constitutional text.”

J ENSEN V . C UNNINGHAM, ET AL .
Opinion of the Court
26
Dexter v. Bosko, 2008 UT 29, ¶ 11, 184 P.3d 592. “We also ‘inform our
textual interpretation with historical evidence of the framers’ intent.’
Finally, we may consider well-reasoned and meaningful decisions
made by courts of last resort in sister states with similar constitu-
tional provisions.” Id. (quoting Am. Bush v. City of S. Salt Lake, 2006
UT 40, ¶ 10, 140 P.3d 1235). We address each of the Jensens’ claimed
rights in turn, beginning with the asserted parental right to direct the
medical care of one’s children.
1. Article I, Sections 1 and 7 Guarantee Parents a Right to Direct the
Medical Care of Their Child, but the Right Is Not Absolute
¶70 The Jensens claim that article I, sections 1 and 7 vest in parents
a right to direct their child’s medical care free from governmental
interference, unless such governmental interference is narrowly
tailored and in furtherance of a compelling state interest. 	They
contend that defendants’ conduct constitutes a “flagrant violation”
of this “fundamental” substantive right.
¶71 	We begin with a discussion of article I, section 7, our state
constitution’s “due process clause.” 	Like its federal counterpart,
article I, section 7 provides that “[n]o person shall be deprived of life,
liberty or property, without due process of law.” Utah Const. art. I,
§ 7.
¶72 	In a long line of precedent, this court has recognized parental
rights as a fundamental component of liberty protected by article I,
section 7. For example, as early as 1907 we suggested that removal
of a child from his parent’s custody is unconstitutional unless the
parent has been found unfit. See Mill v. Brown, 88 P. 609, 613 (Utah
1907) (“Before the state can be substituted to the right of the parent
it must affirmatively be made to appear that the parent has forfeited
his natural and legal right to the custody and control of the child by
reason of his failure, inability, neglect, or incompetency to discharge
the duty and thus to enjoy the right.”). And in In re J.P., we noted
that “[a] parent has a fundamental right, protected by the Constitu-
tion, to sustain his relationship with his child.” 648 P.2d 1364, 1372
(Utah 1982) (internal quotation marks omitted). We recognized that
“[t]he integrity of the family and the parents’ inherent right and
authority to rear their own children have been recognized as
fundamental axioms of Anglo-American culture, presupposed by all
our social, political, and legal institutions.” Id. at 1373. Applying

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Opinion of the Court
27
these principles, we held unconstitutional a statute that permitted
the juvenile court to terminate established parental rights solely
upon a finding that termination would be in the child’s best
interests. Id. at 1374. In so doing, we recognized that a parent has
a due process right under article I, section 7 to maintain parental ties
to his or her child. Id. at 1375, 1377. A statute that infringes upon
this “fundamental” right is subject to heightened scrutiny and is
unconstitutional unless it (1) furthers a compelling state interest and
(2) “the means adopted are narrowly tailored to achieve the basic
statutory purpose.” 	Wells v. Children’s Aid Soc’y of Utah, 681 P.2d
199, 206 (Utah 1984) (internal quotation marks omitted).
¶73 	These cases stand primarily for the proposition that a parent
possesses a fundamental right to maintain ties to his or her child. In
re J.P, 648 P.2d at 1377; Wells, 681 P.2d at 206–07. But their holdings
do not directly embrace a broader, more encompassing fundamental
right to direct medical care. And the Jensens have not cited to any
other authority—from this or any other jurisdiction—that squarely
supports such an expansive reading of article I, section 7. Neverthe-
less, it is clear from our precedent that parents have a fundamental
right to make decisions concerning the care and control of their
children. And this general right necessarily encompasses the more
specific right to make decisions regarding the child’s medical care.
¶74 It is equally well established, however, that although “funda-
mental,” parental rights are not absolute. A parent’s rights must be
balanced against the state’s important interest in protecting children
from harm. See In re J.P., 648 P.2d at 1377 (“The principle that the
welfare of the child is the paramount consideration means that
parental rights, though inherent and retained, are not absolute . . . .”
(internal quotation marks omitted); id. at 1382 (Stewart, J., dissent-
ing) (“[T]he correlative of parental rights is parental duties. When
parents fail to, or are incapable of, performing their parental
obligations, the child’s welfare must prevail over the right of the
parent.”); Soper v. Dillon (In re Storar), 420 N.E.2d 64, 73 (N.Y. 1981)
(“[A parent] may not deprive a child of lifesaving treatment,
however well intentioned. 	Even when the parents’ decision to
decline necessary treatment is based on constitutional grounds, such
as religious beliefs, it must yield to the State’s interests, as parens
patriae, in protecting the health and welfare of the child.” (citations
omitted)). This is especially the case where a child’s life is endan-
gered.

J ENSEN V . C UNNINGHAM, ET AL .
Opinion of the Court
10 The statutes have since undergone minor revision. None of these
revisions alters our analysis.
28
¶75 	Utah statutes in effect during the events that gave rise to this
case accurately reflect the delicate balance between constitutionally
protected parental rights and the state’s interest in ensuring the
health and safety of children within its borders. For example, Utah
Code 	section 	62A-4a-201 	provided 	as 	follows: 	“Courts 	have
recognized a general presumption that it is in the best interest and
welfare of a child to be raised under the care and supervision of his
natural parents.” U TAH C ODE A NN . § 62A-4a-201(1) (Supp. 1997). 10
It added that “[t]he right of a fit, competent parent to raise his child
has long been protected by the laws and Constitution of this state
and of the United States.” Id. Counterbalanced against this express
recognition of fundamental parental rights, however,
the state, as parens patriae, has an interest in and
responsibility to protect children whose parents . . . do
not adequately provide for their welfare. 	There are
circumstances where a parent’s conduct or condition
is a substantial departure from the norm and the
parent is unable or unwilling to render safe and
proper parental care and protection. 	Under those
circumstances, the welfare of children is the consider-
ation of paramount importance.
Id. § 62A-4a-201(2). “When circumstances within the family pose a
threat to the child’s safety or welfare, the state’s interest in the child’s
welfare is paramount to the rights of a parent.” Id. § 62A-4a-201(4).
¶76 The state appropriately takes its parens patriae responsibility
seriously. In fact, any person, including a medical professional, who
has reason to believe that a child has been subjected to neglect is
required to report the abuse either to law enforcement or DCFS. Id.
§ 62A-4a-403(1). And the statutory definition of neglect includes a
parent’s failure to provide proper or necessary medical care or any
other 	care 	necessary 	for 	the 	child’s 	health. 	Id. 	§ 	62A-4a-
101(14)(a)(iv). A person required to report who “willfully fails to do
so” is subject to criminal liability. Id. § 62A-4a-411. And, any person
who “participat[es] in good faith in making a report” of neglect or

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Opinion of the Court
29
“assist[s] an investigator from [DCFS]” is immune from liability that
might otherwise arise by reason of such conduct. Id. § 62A-4a-410.
¶77 	The Jensens have not challenged the constitutionality of the
above statutory scheme, which reflects the scope of protection
afforded by article I, section 7 to a parent’s right to direct medical
care. However, the Jensens seek to buttress their article 1, section 7
argument with article 1, section 1. That provision states that
[a]ll men have the inherent and inalienable right to
enjoy and defend their lives and liberties; to acquire,
possess and protect property; to worship according to
the dictates of their consciences; to assemble peace-
ably, protest against wrongs, and petition for redress
of grievances; to communicate freely their thoughts
and opinions, being responsible for the abuse of that
right.
Utah Const. art. I, § 1. As the Jensens concede, “[t]here are no Utah
cases in which the parties have raised [article 1, section 1] in the
parent-child context.” 	Faced with this absence of authority, the
Jensens argue that, by its language, section 1 promotes the “inherent
rights of defending life and liberty” and because we have, in In re
J.P. and Wells, determined that parents possess an inherent funda-
mental liberty interest under article 1, section 7 to rear their children,
these provisions necessarily protect a parent’s fundamental right to
direct medical care. 	But the Jensens have failed to support their
argument with relevant case law, statutes, or historical evidence.
¶78 	Although the Utah Constitution protects parental rights to
direct the medical care of their children, those rights must be
balanced against the state’s responsibility to further the health and
safety of children. 	Accordingly, when a child’s life or health is
endangered by his or her parents’ decisions regarding the child’s
medical care, the state may, in some circumstances, temporarily
intervene without violating the parents’ constitutional rights. With
this framework in mind, we consider the Jensens’ specific claims
against Dr. Wagner, Ms. Cunningham, and Mr. Anderson.

J ENSEN V . C UNNINGHAM, ET AL .
Opinion of the Court
30
a. 	Dr. Wagner’s Conduct Does Not Amount to a Flagrant
Violation of the Jensens’ Right to Direct the Medical Care of Parker
¶79 	The Jensens allege Dr. Wagner committed several violations
of their constitutional right to direct Parker’s medical care. 	First,
they contend Dr. Wagner made material factual misrepresentations
and omissions to DCFS, the juvenile court, and others in order to
induce a transfer of custody. 	The Jensens also contend that Dr.
Wagner interfered with the Jensens’ request for independent
confirmation by contacting and attempting to influence the review-
ing physician at Dana-Farber. 	Finally, the Jensens allege that Dr.
Wagner reported them to the State for medical neglect because they
informed Primary Children’s that they were going elsewhere to seek
confirmation of the diagnosis.
¶80 	There is no evidence in the record from which it can be
inferred that Dr. Wagner’s conduct was motivated by anything other
than a reasonable belief that Parker was in danger of serious harm.
We agree with the federal district court that “the Jensens ask the
[c]ourt to draw a number of unreasonable inferences, which the
record plainly will not support, in order to attribute a more dubious
purpose to Dr. Wagner’s actions.” P.J. ex rel. Jensen v. Utah, No. 2:05-
CV-739 TS, 2008 U.S. Dist. LEXIS 72334, at * 55 (D. Utah Sept. 22,
2008).
¶81 	For example, the Jensens assert that Dr. Wagner was a “co-
investigator” of a clinical trial for which Parker might have been
eligible, suggesting that Dr. Wagner wanted to get Parker enrolled
into the trial, and that he was motivated by this desire rather than
Parker’s medical interests. But the Jensens have not pointed to any
evidence that Dr. Wagner was a co-investigator of the study. In fact,
the study for which Parker was possibly eligible was a Phase III
Clinical Trial. 	Dr. Wagner was involved in only one clinical trial
while he was at Primary Children’s, and it was a Phase I study.
¶82 Additionally, it is undisputed that under the study’s eligibility
criteria, a patient could be enrolled in the trial only within thirty
days of the “diagnostic biopsy.” 	Dr. Wagner had calendered the
date of Parker’s biopsy as May 2, 2003. Thus, by June 2, Parker was
no longer eligible to participate in the trial. 	If Dr. Wagner’s real
motivation was to get Parker enrolled, he almost certainly would
have ceased pressing after the June 2 deadline. But he did not. In

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Opinion of the Court
31
fact, it was not until June 16 that Parker’s case was referred to DCFS.
Seeking to avoid this conclusion, the Jensens assert that Dr. Wagner
had cited a medical article that measured the deadline for enrollment
in the study from the date of diagnosis, which would have been May
20. But like the claim that Dr. Wagner was a “co-investigator” of the
study, this assertion is unsupported in the record.
¶83 Turning to the Jensens’ specific allegations, there simply is no
evidence from which it can be reasonably inferred that Dr. Wagner
deliberately misrepresented the events and circumstances surround-
ing Parker’s medical care. 	Even assuming Dr. Wagner withheld
information or otherwise gave a less than complete picture of the
circumstances surrounding Parker’s care, there is no evidence that
he did so deliberately.
¶84 Regarding Dr. Wagner’s alleged interference with the Jensens’
request for a second opinion at Dana-Farber, we have reviewed the
alleged offending communication between Dr. Wagner and the
institute, and we conclude that it does not support a reasonable
inference that Dr. Wagner attempted to interfere with the second
opinion sought by the Jensens.
¶85 The Jensens’ final allegation—that Dr. Wagner reported them
to the State for medical neglect because they informed Primary
Children’s that they were going elsewhere to seek confirmation of
the diagnosis—is also devoid of support in the record. It is simply
a bald allegation.
¶86 In sum, there is nothing to support a reasonable inference that
Dr. Wagner was not motivated by a legitimate concern for Parker’s
care. The Jensens have not pointed to any admissible evidence from
which it can reasonably be inferred that Dr. Wagner committed a
flagrant violation of the Jensens’ constitutional rights, especially
given that neither this Court nor the Utah Court of Appeals has
previously addressed the scope of a parent’s right to direct the
medical care of his or her child.
b. 	Ms. Cunningham’s Conduct Does Not Amount to a
Flagrant Violation of the Jensens’ Right to Direct Parker’s Medical
Care
¶87 	The Jensens contend that Ms. Cunningham committed two

J ENSEN V . C UNNINGHAM, ET AL .
Opinion of the Court
32
violations of their constitutional rights. 	First, they contend Ms.
Cunningham failed to conduct any investigation of the medical
neglect allegations. Specifically, they claim she had a duty under
Utah law to investigate Parker’s referral and that had she under-
taken such an investigation, she would have discovered several
misrepresentations and omissions made by Dr. Corwin and Dr.
Wagner. But this claim fails because there is no evidence to indicate
that Ms. Cunningham had reason to question the veracity of the
information and opinions given to her by Drs. Wagner and Corwin.
Even if Ms. Cunningham had a duty to investigate, we simply are
unwilling to say that her decision to rely solely on a medical
professional’s report in what she reasonably perceived was an
emergency situation constitutes a flagrant violation of the parental
right to direct a child’s medical care.
¶88 The Jensens’ second claim is that Ms. Cunningham submitted
an affidavit to the juvenile court that contained misleading informa-
tion. 	In the affidavit, Ms. Cunningham stated that a sample of
Parker’s tissue was sent to Dana-Farber for a second opinion, but did
not state that the second opinion was never given. Additionally, the
affidavit states that Parker underwent a CT and bone scan, but omits
the fact that the test results were normal. 	It also states that the
Jensens were pursuing IPT, when Ms. Cunningham knew they were
not. Finally, Ms. Cunningham’s affidavit omitted the fact that she
had not spoken to Dr. Coffin, and in it Ms. Cunningham claimed
that Dr. Tishler had said Parker should commence chemotherapy,
when she knew he had actually said that he would not be making
final treatment recommendations until all of the testing was
complete.
¶89 	Ms. Cunningham has admitted that in hindsight some of the
information in the affidavit was potentially misleading. 	Neverthe-
less, we conclude that the omissions or misstatements were largely
immaterial to the juvenile court proceedings. And the Jensens have
offered no evidence to suggest Ms. Cunningham was motivated by
anything other than a desire to further the best interests of Parker.
Thus, the Jensens have provided no evidence from which it can
reasonably be inferred that Ms. Cunningham committed a flagrant
violation of the Jensen’s right to direct Parker’s medical care.

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Opinion of the Court
33
c. Mr. Anderson’s Conduct Does Not Amount to a Flagrant
Violation of the Jensens’ Right to Direct Parker’s Medical Care
¶90 	The Jensens contend that Mr. Anderson committed several
violations of the Jensens’ right to direct Parker’s care. First, the
Jensens claim Mr. Anderson imposed a “standard of comparative
fitness on the Jensens,” under which he took the position that, if
there were conflicting opinions between a parent’s physician and a
physician upon whom the State is relying, the parents could not
make their own choice. Second, the Jensens contend Mr. Anderson
refused to authorize the dismissal of the neglect proceedings unless
Parker was placed in the care of a board certified pediatric
oncologist.
¶91 	These two allegations lack merit. By the time Mr. Anderson
became involved in Parker’s case in late August 2003, the juvenile
court had already ordered Parker to begin chemotherapy adminis-
tered by a board certified pediatric oncologist and had placed him
in the state’s protective custody because the Jensens had missed the
court-imposed deadline. In this sense, Mr. Anderson did not impose
any standard upon the Jensens; any standard imposed was imposed
by the juvenile court, which had ordered that Parker must be treated
with chemotherapy by a board certified pediatric oncologist. Based
on these undisputed facts, the position taken by Mr. Anderson,
including his refusal to dismiss the proceedings unless the Jensens
placed Parker in the care of a board certified pediatric oncologist,
was in accord with the juvenile court order.
¶92 	The Jensens also allege that Mr. Anderson told them that he
would not include additional diagnostic testing as part of DCFS’s
pursuit of the medical neglect allegations unless the Jensens agreed
to place Parker in foster care. Given the timing of Mr. Anderson’s
involvement, even if it were true that Mr. Anderson told the Jensens
that additional testing was contingent upon Parker’s placement in
foster care, the statement was immaterial. By the time Mr. Anderson
became involved, the juvenile court had already granted protective
custody of Parker to the State. Mr. Anderson’s statement therefore
had no effect upon the juvenile court proceedings and caused the
Jensens no damage.
¶93 	The Jensens’ final claim is that Mr. Anderson had knowledge
that Dr. Johnston had decided to recommend chemotherapy before

J ENSEN V . C UNNINGHAM, ET AL .
Opinion of the Court
34
receiving the results of the genetic tests in violation of the September
5, 2003 stipulation and failed to inform the juvenile court of this fact.
This allegation is unsupported by the record. Even assuming it is
true that Dr. Johnston violated the stipulation by recommending
chemotherapy before the genetic testing results were back, the
Jensens have offered no evidence from which it can reasonably be
inferred that Mr. Anderson knew that such conduct would be a
violation of the stipulation.
¶94 Mr. Anderson became involved in this case only after the State
had been granted protective custody of Parker and the Jensens had
violated the juvenile court order requiring them to begin chemother-
apy by August 8. His role was limited to trying to bring the Jensens
into compliance with the juvenile court orders so Parker could get
what was considered medically necessary care. His actions did not
violate the Jensens’ right to direct the medical care of Parker.
2. The Right to Procedural Due Process
¶95 The Jensens also claim that their procedural due process rights
were violated by defendants Wagner and Cunningham. Article I,
section 7 of the Utah Constitution contains a procedural component.
Under it, “notice and opportunity to be heard . . . must be observed
in order to have a valid proceeding affecting life, liberty, or prop-
erty.” Wells v. Children’s Aid Soc’y of Utah, 681 P.2d 199, 204 (Utah
1984). Additionally, “[t]o be considered a meaningful hearing, the
concerns of the affected parties should be heard by an impartial
decision maker.” Chen v. Stewart, 2004 UT 82, ¶ 68, 100 P.3d 1177
(internal quotation marks omitted).
¶96 	The Jensens assert that Dr. Wagner’s and Ms. Cunningham’s
“reckless or intentional misrepresentations” rendered the juvenile
court proceedings so unfair as to violate the Jensens’ procedural due
process rights. To support their misrepresentation claim, the Jensens
cite Walker v. State, in which we noted, “It is an accepted premise in
American 	jurisprudence 	that 	any 	conviction 	obtained 	by 	the
knowing use of false testimony is fundamentally unfair and totally
incompatible with rudimentary demands of justice.” 624 P.2d 687,
690 (Utah 1981) (internal quotation marks omitted). 	But even
assuming Walker is applicable in this civil case, there is no evidence
in the record that either Dr. Wagner or Ms. Cunningham deliberately
made false statements or material omissions to the juvenile court.

Cite as: 2011 UT 17
Opinion of the Court
11 In addition, even if we were to conclude that a flagrant violation
of the Jensens’ procedural due process rights occurred, monetary
damages nonetheless would be an inappropriate remedy because the
Jensens have failed to establish the third Spackman element, “that
equitable relief . . . was and is wholly inadequate to [protect the
plaintiff’s rights or] redress [their] injuries.” Spackman, 2000 UT 87,
¶ 25. Procedural due process violations are “particularly amenable
to redress through equitable means [because] [s]uch relief can be
precisely tailored to grant the very thing a plaintiff alleges has been
wrongfully denied—due process.” Id. ¶ 25 n.11.
35
¶97 	The Jensens also claim Ms. Cunningham’s failure to investi-
gate the medical neglect allegations deprived them of an opportu-
nity to be heard in a meaningful way. This claim also fails. At the
juvenile court, the Jensens were free to challenge Ms. Cunningham’s
allegations, including the circumstances surrounding them. 	The
Jensens were provided with adequate notice and a meaningful
opportunity to be heard. Consequently, neither Ms. Cunningham
nor Dr. Wagner committed a flagrant violation of the Jensens’
procedural due process rights.11
3. The Jensens’ Right to Be Free from Unreasonable Seizures
¶98 	The Jensens’ final claim is that their rights under article I,
section 14 to be free from unreasonable seizure were violated when
Mr. Jensen was arrested in Idaho in August 2003 and when both
parents were “booked and released in Utah in September 2003.”
This court has recognized that while article I, section 14 and the
Fourth Amendment of the United States Constitution have identical
language, “we will not hesitate to give the Utah Constitution a
different construction where doing so will more appropriately
protect the rights of this state’s citizens.” State v. DeBooy, 2000 UT 32,
¶ 12, 996 P.2d 546. 	But we have also stated that, “[u]nder both
constitutions, the general rule is that [unless] ‘specific and articulable
facts 	. 	. 	. 	taken 	together 	with 	rational 	inference 	from 	those
facts . . . reasonably warrant’ the particular intrusion,” the intrusion
is unconstitutional. 	Id. ¶ 13 (third alteration in original) (quoting
Terry v. Ohio, 392 U.S. 1, 21 (1968)). Therefore, it cannot be a flagrant
violation of article I, section 14 if there was a reasonable basis to

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Opinion of the Court
36
warrant the particular intrusion or, in other words, if there was
probable cause for an arrest.
¶99 	The Jensens contend that Mr. Jensen’s seizure was unreason-
able because it resulted from “culpable material misrepresenta-
tions.” But Mr. Jensen was arrested only after the Jensens violated
the juvenile court order that required the Jensens to begin chemo-
therapy by August 8. 	With respect to defendant Dr. Wagner, the
alleged seizure took place after he left Primary Children’s and was
succeeded by Dr. Albritton. 	In fact, there is no evidence that Dr.
Wagner had any involvement in the procurement of the warrant that
led to the arrest of Mr. Jensen. 	Therefore, Dr. Wagner could not
have committed a flagrant violation of Mr. Jensen’s rights under
article I, section 14.
¶100 	Ms. Cunningham did have some involvement in the events
leading to Mr. Jensen’s arrest. She signed an affidavit supporting the
Application to Take a 	Child into Protective Custody after the
Jensens missed the deadline for Parker to begin chemotherapy.
Additionally, she informed the district attorney of the inability to
serve the court issued warrant on the Jensens because they had left
the state. 	This resulted in criminal charges against Mr. and Mrs.
Jensen and the subsequent arrest of Mr. Jensen. The fact remains,
however, that Ms. Cunningham was doing nothing more than
attempting to enforce a juvenile court order that the Jensens were
violating. A direct violation of a court order is probable cause for an
arrest or seizure and therefore is a reasonable intrusion of rights
under the Utah constitution. 	See, e.g., U TAH C ODE A NN . § 77-18-
1(12)(b)(ii) (2008) (authorizing a warrant for the arrest of a proba-
tioner in violation of court ordered probation); Goings v. Elliot, No.
C 08-2544 PJH, 2010 U.S. Dist. Lexis 26015, at *15–22 (N.D. Cal. Mar.
19, 2010) (holding that probable cause existed to arrest or detain
plaintiff for violation of a court order). Because the Jensens were in
direct violation of the juvenile court order, the actions taken by Ms.
Cunningham to effectuate their arrest were supported by probable
case. 	Thus, Ms. Cunningham’s actions were reasonable and
warranted the intrusion on the Jensens’ constitutional rights under
article I, section 14.
¶101 	The Jensens also argue that they suffered an unreasonable
noncustodial seizure in violation of article I, section 14. According
to the Jensens, a noncustodial seizure is one that results from state-

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Opinion of the Court
37
imposed conditions that significantly, but not physically, restrict
liberty. 	This court has never recognized that our Constitution
guarantees a right to be free from unreasonable noncustodial
seizure. As such, the right is not clearly established.
¶102 	The Jensens nonetheless contend that the following is
evidence of a flagrant violation of their purported right: They were
unable to return to their home state without threat of arrest and
removal of Parker; they were unable to take Parker for an evaluation
in Houston, or to other physicians of their choosing; they were
subjected to mandatory court appearances; 	they were ordered to
give up their passports; Mr. Jensen lost his job; and, finally, they
were subjected to media scrutiny and public ridicule. The Jensens
claim that all of this amounts to such a significant restriction of their
liberty that it constitutes a violation of their state constitutional
rights.
¶103 	We have already concluded that the defendants’ conduct
was motivated by a legitimate concern for Parker’s life. Thus, in the
absence of any precedent suggesting such an expansive reading of
article I, section 14, we cannot conclude that the defendants’ conduct
constitutes a flagrant violation of the Jensens’ rights.
CONCLUSION
¶104 	The state district court erred in applying collateral estoppel
because the legal standard for state and federal constitutional
violations is not identical. We nonetheless affirm the district court’s
order on alternative grounds that are apparent in the record.
Specifically, we hold that the Jensens’ claims against defendants
Eisenman and Albritton are barred under the doctrine of quasi-
judicial immunity because the claims arise out of the defendants’
roles in which they played an integral part in the judicial process.
The claims against the remaining three defendants fail because, as a
matter of law, the Jensens did not meet their burden of demonstrat-
ing that damages are an appropriate remedy for the alleged
unconstitutional conduct.
¶105 	Chief Justice Durham, Associate Chief Justice Durrant,
Justice Nehring, and Judge Orme concur in Justice Parrish’s
opinion.

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Opinion of the Court
38
¶106 	Due to his retirement, Justice Wilkins did not participate
herein. Judge Gregory K. Orme sat.
¶107 	Justice Thomas R. Lee became a member of the Court on
July 19, 2010, after oral argument in this matter, and accordingly
did not participate.