72-1-207 - Department may sue and be sued -- Legal adviser of department -- Partial waiver of 11th Amendment immunity. - Utah Statutes

72-1-207. Department may sue and be sued -- Legal adviser of department --Partial waiver of 11th Amendment immunity.
(1) The department may sue, and it may be sued only on written contracts made by it orunder its authority.
(2) The department may sue in the name of the state.
(3) In all matters requiring legal advice in the performance of its duties and in theprosecution or defense of any action growing out of the performance of its duties, the attorneygeneral is the legal adviser of the commission, and the department, and shall perform any and alllegal services required by the commission and the department without other compensation thanhis salary.
(4) Upon request of the department, the attorney general shall aid in any investigation,hearing, or trial under the provisions of Chapter 9, Motor Carrier Safety Act, and institute andprosecute actions or proceedings for the enforcement of the provisions of the Constitution andstatutes of this state or any rule or order of the department affecting motor carriers of persons andproperty.
(5) (a) The state waives its immunity under the 11th Amendment of the United StatesConstitution and consents to suit in a federal court for lawsuits arising out of the department'scompliance, discharge, or enforcement of responsibilities assumed pursuant to 23 U.S.C. Sec.326.
(b) The waiver of immunity under this Subsection (5) is valid only if:
(i) the executive director or the executive director's designee executes a memorandum ofunderstanding with the United States Department of Transportation accepting the jurisdiction ofthe federal courts as required by 23 U.S.C. Sec. 326(c);
(ii) before execution of the memorandum of understanding under Subsection (5)(b)(i),the attorney general has issued an opinion letter to the executive director and the administrator ofthe Federal Highway Administration that the memorandum of understanding and the waiver ofimmunity are valid and binding upon the state;
(iii) the act or omission that is the subject of the lawsuit arises out of or relates tocompliance, discharge, or enforcement of responsibilities assumed by the department pursuant to23 U.S.C. Sec. 326; and
(iv) the memorandum of understanding is in effect when the act or omission that is thesubject of the federal lawsuit occurred.

Amended by Chapter 333, 2007 General Session