Merlin Lyneer CLOUSE, individually, as surviving spouse of Norma Clouse and on behalf of Guy Michael CLOUSE, surviving son of Norma Clouse; Guy Michael Clouse, individually; Lisandro Salinas and Debra Maria Salinas, individually and as husband and wife; Amber Salinas, Lissandra Salinas and Nathaniel Salinas, minor children of Lisandro Salinas, Plaintiffs-Appellants, v. STATE of Arizona, Department of Public Safety, A.E. Dobbins, Defendants-Appellees. Merlin Lyneer Clouse, individually as surviving spouse of Norma Clouse and on behalf of Guy Michael Clouse, surviving son of Norma Clouse; Guy Michael Clouse, individually; Lisandro Salinas and Debra Maria Salinas, individually and as husband and wife; Amber Salinas, Lissandra Salinas and Nathaniel Salinas, minor children of Lisandro Salinas, Plaintiffs-Appellees, v. State of Arizona, Department of Public Safety; Maricopa County; and Andrew Dobbins, Defendants-Appellants.
No. CV-99-0023-PR.
Supreme Court of Arizona, En Banc.
Feb. 1, 2001.
199 Ariz. 196 | 16 P.3d 757
Janet Napolitano, The Attorney General by John E. Birkemeier, Assistant Attorney General, and Richard F. Albrecht, Assistant Attorney General, and Thomas J. Dennis, Assistant Attorney General, and Randall M. Howe, Assistant Attorney General, Phoenix, for the State of Arizona and Dobbins.
The Langerman Law Offices, by Amy G. Langerman, Phoenix, for Amicus Curiae Arizona Trial Lawyers Association.
Jones, Skelton & Hochuli, by David C. Lewis, Phoenix, for Amicus Curiae and Intervenors City of Phoenix and Arizona County Supervisors Association.
Law Offices of David R. Merkel, by David R. Merkel, Tempa, for Amicus Curiae and Intervenor, League of Arizona Towns and Cities.
Copple, Chamberlin, Boehm & Murphy, P.C., by Scott E. Boehm, Phoenix, for Amicus Curiae City of Scottsdale.
MCGREGOR, Justice.
¶ 1 We accepted review to decide whether the legislature exceeded its constitutional authority when it adopted
I.
¶ 2 On April 29, 1995, David Van Horn stole David Oakes’ truck in Maricopa County, Arizona and fled toward Pinal County. Mr. Oakes’ son-in-law, David Ahrendt, pursued Van Horn. After they entered Pinal County, Van Horn attempted to kill Ahrendt by running him down with the stolen truck. Shortly thereafter, Department of Public Safety (DPS) Officer Andrew Dobbins arrested Van Horn in Pinal County. Meanwhile, Maricopa County Sheriff‘s Office (MCSO) Deputy Robert Judd took the theft report in Maricopa County.
¶ 3 After talking with Deputy Judd, Officer Dobbins understood that Van Horn would be prosecuted in Maricopa County. Unfortunately, neither officer filed an arrest report. On May 4, a MCSO van arrived to transport another inmate from Pinal County to Maricopa County. Officers placed Van Horn, against whom no criminal complaint had yet been filed, in the van. When the two deputies transporting Van Horn realized that he was being held unlawfully,1 they released him on the side of the highway. Van Horn then stole another vehicle, and with a companion, Diane Wilson, drove to New Mexico, where he committed several violent crimes.
¶ 4 Together, Van Horn and Wilson invaded the home of the Clouses, and abused and terrorized them. They then set fire to the home and watched it burn with the Clouses still inside. Mrs. Clouse died; Mr. Clouse
¶ 5 Mr. Clouse and his son, and Deputy Salinas and his wife and children, sued the State of Arizona and Maricopa County, alleging that their officers were negligent and grossly negligent in failing to retain Van Horn in custody. As a defense, the defendants invoked
¶ 6 The jury found against the county defendants and in favor of the state defendants.3 On review, the court of appeals agreed that
¶ 7 We exercised jurisdiction pursuant to
II.
A.
¶ 8 The doctrine of sovereign immunity precludes bringing suit against the government without its consent. It loosely reflects the ancient principle that “the King can do no wrong,” and bars holding the state or its political subdivisions liable for the torts of its officers or agents unless the government expressly waives its immunity.5 As all parties agree, at the time Arizona adopted its constitution, “the state, in consequence of its sovereignty, [was] immune from prosecution in the courts and from liability to respond in damages for negligence, except in those cases where it [had] expressly waived immunity or assumed liability by constitutional or legislative enactment.” State v. Sharp, 21 Ariz. 424, 426, 189 P. 631, 633 (1920).
¶ 9 Governmental immunity retained its place in Arizona law until 1963. In Stone v. Arizona Highway Commission, 93 Ariz. 384, 381 P.2d 107 (1963), convinced that the doctrine had become unjust and outmoded and that its application created many inequities, this court abolished the substantive defense of governmental immunity. Id. at 392, 381 P.2d at 112.
¶ 10 At that point, plaintiffs assert, negligence actions against the government gained the protection of the anti-abrogation clause,6 and any future legislative attempt to abolish an action against the state under the guise of affording immunity would violate the Arizona Constitution. The state contends, first, that the anti-abrogation clause does not apply to actions against the sovereign. Alternatively,
¶ 11 “It is an established axiom of constitutional law that where there are both general and specific constitutional provisions relating to the same subject, the specific provision will control.” de‘Sha v. Reed, 194 Colo. 367, 572 P.2d 821, 823 (1977). The language of the anti-abrogation clause applies generally to “the right of action to recover damages for injuries.” The immunity clause, on the other hand, applies only and specifically to “suits brought against the State.” Under such circumstances, the
” ‘general provision is controlled by one that is special, the latter being treated as an exception to the former. A specific provision relating to a particular subject will govern in respect to that subject, as against a general provision, although the latter, standing alone, would be broad enough to include the subject to which the more particular provision relates.’ ”
Miller v. Superior Court, 21 Cal. 4th 883, 89 Cal. Rptr. 2d 834, 986 P.2d 170, 177 (1999) (quoting San Francisco Taxpayers Ass‘n v. Board of Supervisors, 2 Cal. 4th 571, 7 Cal. Rptr. 2d 245, 828 P.2d 147 (1992)). Because the immunity clause directly addresses the authority of the legislature in relation to actions against the state, we resolve the issue before us by applying the immunity clause.
B.
¶ 12 In Ryan v. State, 134 Ariz. 308, 656 P.2d 597 (1982), we considered how to define the parameters of the state‘s immunity. We proposed “endors[ing] the use of governmental immunity as a defense only when its application is necessary to avoid a severe hampering of governmental function or [a] thwarting of established public policy.” Id. at 311, 656 P.2d at 600. We also invited the legislature to address those areas that might need the protection of absolute immunity or qualified immunity. Id. at 310, 656 P.2d at 599 (“[T]he legislature may in its wisdom wish to intervene in some aspects of this development.“).
¶ 13 In response to that invitation, in 1984 the legislature adopted the Actions Against Public Entities or Public Employees Act, which is codified at
¶ 14 The legislature‘s decision to codify the doctrine of sovereign immunity was consistent with the approach taken in other jurisdictions. Although most states have waived their sovereign immunity, either through judicial abrogation or legislative waiver, all fifty states have enacted some form of a “Tort Claims Act” to define, and sometimes to reestablish, the parameters of governmental liability. See 57 AM.JUR.2d Municipal, County, School, and State Tort Liability § 129 (1988). Similarly, the federal government waived its sovereign immunity, but then enacted a form of governmental immunity by adopting the Federal Tort Claims Act. See generally
¶ 15 If the Arizona Legislature has authority to define those areas in which absolute or qualified immunity protects public entities and employees from liability, its authority derives from the immunity provision,
¶ 16 Eighteen other state constitutions contain language identical or similar to Arizona‘s immunity provision.7 As far as we can determine, every jurisdiction that has construed such a constitutional immunity clause has held that the provision gives the legislature authority to determine the scope of governmental immunity. The majority of those states with a similar provision have concluded that this language “constitutionalizes” the doctrine of sovereign immunity and confers upon the legislature the exclusive authority to waive sovereign immunity and that, absent legislative action, suits against the state cannot proceed.8
¶ 17 Washington, for instance, adopted its constitution in 1885 and included an immunity clause identical to that later used in the Arizona Constitution. See
¶ 18 In other states, including Arizona, the court, rather than the legislature, abolished the judicially-created doctrine of sovereign immunity. In many of these states, the respective state legislatures reinstated some form of governmental immunity under the authority of constitutional language similar to
¶ 19 Until our decision in Stone, this court had refused invitations to abolish the doctrine of sovereign immunity, holding that the authority to do so rested solely with the legislature. See, e.g., Lee v. Dunklee, 84 Ariz. 260, 263-64, 326 P.2d 1117, 1119 (1958)
¶ 20 Although we have never addressed explicitly whether the immunity clause permits the legislature to define those instances in which governmental immunity prevents or limits actions against the state, we have done so implicitly. In a long line of cases handed down after Stone, we have enforced statutes that confer either absolute or qualified immunity upon public entities. Although our decisions since Stone follow a somewhat circuitous route, we have never suggested that Stone prohibits all forms of governmental immunity. To the contrary, we consistently have recognized the power of the legislature to retain or confer immunity where appropriate.
¶ 21 In our first detailed analysis of governmental immunity after Stone, we considered whether members of the Board of Pardons and Paroles should receive partial or absolute immunity for their allegedly negligent act of releasing a prisoner who, while on parole, murdered one man and shot another. See Grimm v. Arizona Bd. of Pardons & Paroles, 115 Ariz. 260, 564 P.2d 1227 (1977). Rejecting the approach earlier taken by the court of appeals,11 we held that public officials performing discretionary functions other than true judicial functions are not necessarily entitled to absolute immunity. Id. at 264, 564 P.2d at 1231. We did not, however, hold or even suggest that litigants can pursue actions alleging governmental negligence without regard to the doctrine of immunity. Rather, we recognized that the then current version of
¶ 22 Similarly, in Ryan v. State, after considering the circumstances under which this court would afford immunity, we noted that what was then
¶ 23 The Arizona Court of Appeals also frequently has considered and applied statutes affording immunity without suggesting that the legislature lacked power to adopt
C.
¶ 24 We conclude that the immunity clause, by authorizing the legislature to direct by law the manner in which suits may be brought against the state, confers upon the legislature a power to control actions against the state that it does not possess with regard to actions against or between private parties. We further hold that the legislature did not exceed the authority granted it by
¶ 25 Our conclusion does not mean, as the dissent avers, that the legislature is now “empowered to do anything it wants with regard to the grant of absolute or partial immunity to public entities (whatever that means), to public employees of those entities (whatever that includes), and to heaven knows who and what else.” Infra ¶ 79 (parentheticals in original). Rather, we recognize nothing more than the express authority the Arizona Constitution confers upon the legislature to define those instances in which public entities and employees are entitled to immunity. The legislature possesses this authority not because we say so, but because our Constitution so directs.
¶ 26 In this case, the plaintiffs’ allegations that the defendants negligently failed to retain Van Horn in custody fall directly within the language of
¶ 27 The legislative enactment of a specific statutory provision that applies to the actions and entities involved here also serves to distinguish this situation from that which we considered in cases such as Ruth v. Rhodes, 66 Ariz. 129, 185 P.2d 304 (1947) and Ryan v. State, 134 Ariz. 308, 656 P.2d 597. In those cases, we applied common law immunity principles in the absence of any statutory direction. After Ryan, however, the legislature provided the missing direction, as the constitution permits.
D.
¶ 28 Finally, we address briefly the concerns expressed by the dissent over the “unclear reach” of this opinion. See infra ¶ 71. The statutory scheme itself answers some of the dissent‘s concerns. For instance, the immunity granted by statute extends to public employees acting within the scope of their employment, not to private activities of the employee, by the terms of
III.
¶ 29 For the foregoing reasons, we conclude that the trial court correctly instructed the jury that it could return a verdict against the public defendants only if the plaintiffs established gross negligence. We therefore affirm the judgment of the trial court and vacate the opinion of the court of appeals.
CONCURRING: JONES, Vice Chief Justice, and MARTONE, Justice.
FELDMAN, Justice, dissenting.
¶ 30 The court today holds that a right of action against the state is not protected by
¶ 31 Even if I were to assume the majority‘s opinion is correct with respect to legislative power over claims against the state, the court goes much further than either the text of article IV or common law immunity allowed and excludes actions against state employees from the protection of the anti-abrogation clause. I also dissent from this because, with certain exceptions, the common law recognized and the anti-abrogation clause protected such actions. Nothing in the text of article IV mentions such actions, much less permits their abrogation.
I. THE ACTION AGAINST THE STATE
A. Sovereign immunity and article IV
¶ 32 Article IV requires the legislature to “direct by law in what manner and in what courts suits may be brought against the state.” The majority today says these sparse directions empower the legislature to institute or re-institute the doctrine of sovereign immunity and thus forbid the bringing of any action against the state. The majority is reluctant to say that, but what else is meant when it concludes that the legislature has “power to control actions against the state” and authority “to define those instances in which public entities and employees are entitled to immunity“? Ante ¶ 24 and 25. But the language of article IV says no such thing. Whether actions may be brought is not addressed in the text; if anything, it seems to direct just the opposite. It seems to contemplate and assume such suits may be brought and empowers the legislature to regulate how and where they may be brought, not to forbid them. That interpretation not only follows the text but would harmonize article IV with the anti-abrogation provision of
¶ 33 The majority, however, disregards the text of article IV and the framers’ specific concern with damage actions and interprets article IV as an empowerment provision with respect to the doctrine of sovereign immunity, though nothing in the text of the constitution or the proceedings of the Constitutional Convention supports this or indicates that the concept of sovereign immunity was men-
is well settled by the great weight of authority that the state, in consequence of its sovereignty, is immune from prosecution in the courts and from liability to respond in damages for negligence, except in those cases where it has expressly waived immunity or assumed liability by constitutional or legislative enactment.
Id. at 426, 189 P. at 631. Quoted in Sharp, 21 Ariz. at 426, 189 P. at 631 (emphasis added). If article IV conferred authority on the legislature with respect to enacting or rejecting sovereign immunity, then the statute was obviously a waiver or rejection. But we held that the effect of this statute was not to reject immunity but
merely to give a remedy to enforce a liability, the state submitting itself to the jurisdiction of the court, subject to its right to impose any lawful defense. Immunity from an action is one thing; immunity from liability is another; hence the state does not waive its immunity from liability for the negligence of its agents, servants or employees....
Id. at 428, 189 P. at 632 (emphasis added).
¶ 34 Absent from this holding is any indication that the court believed article IV left the question to the legislature. If so, of course, the legislature‘s failure to enact sovereign immunity would have meant that the doctrine was not recognized in Arizona because the only legislation implementing article IV had “authorized” suits against the state “on contract or for negligence.” See Civil Code of 1913, section 1791. But the Sharp court itself imposed the immunity doctrine as a matter of common law. In fact, the court rejected the argument that the legislature waived or rejected immunity by enacting section 1791, Civil Code of 1913, which provided:
All persons who have, or who shall hereafter have claims on contract or for negligence against the state, which have been disallowed, are hereby authorized, on the terms and conditions herein contained, to bring suit thereon against the state in any of the courts of this state of competent jurisdiction, and prosecute the same to final judgment.
¶ 35 No concern was shown about the legislature‘s authority under article IV. It was the court‘s authority under which sovereign immunity was imposed. Nor was the legislature later asked or permitted to play a part in abolishing the defense of immunity. What the court gave in Sharp it took away in Stone v. Arizona Highway Commission, holding that the “substantive defense of governmental immunity is now abolished.” 93 Ariz. 384, 392, 381 P.2d 107, 112 (1963) (emphasis added). Again, the court seemed unaware of what the majority has today discovered in article IV—legislative authority to institute, abolish, or control the doctrine of sovereign immunity. The matter was simply one of common law.16
¶ 36 Thus, the principles developed in our construction of the anti-abrogation clause of
¶ 37 Therefore, when Stone abolished the sovereign immunity defense, the common law right to recover damages for the sovereign‘s torts came under the protection of
B. Stone and its progeny—legislative participation
¶ 38 The Stone court did not have kind words for the sovereign immunity doctrine. It described the doctrine as one that “rests upon a rotten foundation,” and went on to say that it was “incredible” in modern times and “in a republic” to recognize this relic of “medieval absolutism” and to apply it to exempt government from liability for its torts and cast the entire burden of damage resulting from governmental wrongs on the individual victim rather than distributing it “among the entire community ... where it could be borne without hardship upon any individual, and where it justly belongs.” 93 Ariz. at 388 n. 1, 381 P.2d at 109 n. 1 (quoting Annotation, Rule of municipal immunity from liability for acts in performance of governmental functions as applicable in case of personal injury or death as result of a nuisance, 75 A.L.R. 1196 (1931)).
¶ 39 Those words were perhaps too broad because immunities are quite often necessary to facilitate government operations. Thus, even when absolute sovereign immunity has been abolished, as in Stone, the state must be allowed leeway in the conduct of its governmental affairs, whether through the executive, legislative, or judicial branch. Stone recognized this, saying that “the rule is liability and immunity is the exception.” Id. at 392, 381 P.2d at 112.
¶ 40 But when does the exception apply? We addressed this question in Ryan v. State, a case in which the state was sued for the Department of Corrections’ negligence in allowing the escape of a youthful offender who later attacked and injured the plaintiff. 134 Ariz. 308, 656 P.2d 597 (1982). Reversing summary judgment for the state, we held that governmental immunity from liability for the torts of executive department officers and employees would not be recognized merely because the conduct in question involved discretion. See id. at 311, 656 P.2d at 600. We also abandoned the duty to all-duty to none concept. See id. at 310, 656 P.2d at 599. We went on to state:
We are well aware that by removing the public/private duty doctrine, we have not solved all of the problems in this area. In electing to treat the state like a private litigant, we must hasten to point out that certain areas of immunity must remain. The more obvious of such immunities are legislative immunity, judicial immunity, and high-level executive immunity.
* * * * * *
We deem an ad hoc approach to be most appropriate for the further development of the law in this field. We do not recoil from the thought that the legislature may in its wisdom wish to intervene in some aspects of this development.
Id. We did not advert to article IV, again having failed to recognize the legislative power today‘s majority reads into the constitution. Instead, we talked of judicially imposed limits to legislative power on that subject.
¶ 41 Having indicated that we could not draw bright lines to define the “limited parameters of immunity in the abstract,” we undertook to define those lines and limitations on a case-by-case basis. See id. at 311, 656 P.2d at 600. We said that following the spirit of the Stone decision, we propose to endorse the use of governmental immunity as a defense only when its application is necessary to avoid a severe hampering of a
Id. (emphasis added). Ryan thus did not leave governmental immunity and its boundaries to the legislature. Nor did the case preceding it, which recognized the historical basis of the quasi-judicial immunity afforded public officials such as members of the State Board of Pardons and Paroles. See Grimm v. Arizona Bd. of Pardons & Paroles, 115 Ariz. 260, 263 and n. 1, 564 P.2d 1227, 1230 and n. 1 (1977). Neither of these cases mentions legislative power under article IV. Ryan invited legislative participation in some aspects of defining immunity but made it quite clear that the court would impose limits. Those limits, of course, are grounded in
¶ 42 Thus, given the Hazine doctrine, the true question before us is whether
¶ 43 Because the anti-abrogation clause protects Plaintiffs’ right of action, subject to the common law immunities described in Grimm and Ryan, we should resolve this case by determining whether the application of immunity fits with the boundaries set by Ryan, not by the majority‘s broad conclusion that redress for governmental wrongs is absolutely excluded from the protection of the anti-abrogation clause. I would therefore hold under
C. The effect of article IV, part 2, section 18
¶ 44 The state‘s principle argument was that
¶ 45 The majority fails to consider that the “suits against the state” described in article IV include not just tort actions but also contract claims. See
¶ 46 The majority reasons that some states have interpreted their version of article IV to give the legislature the exclusive authority to waive sovereign immunity. Ante ¶ 16 and notes 6 and 7. The majority goes on to point out that in other states in which the courts, like those in Arizona, have abolished sovereign immunity, the legislature has reinstated the doctrine in one form or another and that these reincarnations have been upheld. Ante ¶ 18, citing cases in note 9. This is correct, but while these states, or at least many of them, have open court provisions similar to the open court provision in our
¶ 47 A recent Indiana case illustrates how Arizona‘s
¶ 48 Then, in McIntosh v. Melroe Co., the Indiana Supreme Court again upheld the constitutionality of the statute, this time on a challenge that it violated the “remedy by due course of law” clause of
¶ 49 This may be good law under the open court provisions in Indiana and other states, but it is not good law in Arizona. It is, in fact, directly contrary to the text and interpretation we have given to
¶ 50 Thus, I am unable to agree with the majority that article IV authorizes the legislature to “define those instances in which public entities and employees are entitled to immunity.” Ante ¶ 25. This does not mean, of course, that the legislature has no part in the evolution of the law on this point. We invited its participation in Ryan, and the only acknowledged limits we set to that participation are those contained in Ryan:
[W]e propose to endorse the use of governmental immunity as a defense only when its application is necessary to avoid a severe hampering of a governmental function or thwarting of established public policy. Otherwise, the state and its agents will be subject to the same tort law as private citizens.
134 Ariz. at 311, 656 P.2d at 600 (emphasis added).
¶ 51 Legislative grants of immunity are therefore limited by Hazine and circumscribed by Ryan. The immunity granted by
II. THE ACTION AGAINST THE EMPLOYEE
¶ 52 The deputy who released Van Horn was joined as a defendant and is an appellee in these proceedings. The majority holds that the constitution “confers upon the legislature” the power to give immunity to “public entities and employees.” Ante ¶ 25 (emphasis added). Presumably, this includes the deputy. Because the opinion contains no separate discussion from whence the authority to confer immunity comes in the deputy‘s case, I must assume the majority concludes that because of article IV, the action against him is also outside the protection of the anti-abrogation clause. This holding, I believe, is contrary to the text of article IV and also is contrary to the common law as it existed before statehood and before and after Sharp.
A. Employee immunity under article IV
¶ 53 The majority makes no separate explanation of its conclusion that despite
¶ 54 Even if the majority is correct in holding that this gives the legislature authority to grant immunity in cases against the state, it requires a quantum leap of faith to apply this provision to a sheriff‘s custodial officer, the governor‘s chauffeur, and all other state employees. Dobbins is not the state. Why should a provision only applying specifically to suits against the state be applied to suits against individual tortfeasors employed by the state? The court does not explain. Nor, I think, can it explain.
¶ 55 And, if from some unknown source the legislature today and for the first time is given such power despite the anti-abrogation clause, why stop with state employees? Why not also immunize the state‘s agents and independent contractors? After all, do not history and common experience tell us that, just like the government, governmental employees, agents, and contractors can do no wrong?
¶ 56 I would be happy to argue against the majority analysis on this point if only it had presented one. There is no point, however, in tilting at windmills, so I can only say that I dissent from this unexplained and dangerous ipse dixit. Article IV does not apply; the common law and
B. Liability of state employees under article XVIII, section 6
¶ 57 Indeed, our law on the immunity of governmental employees issue is so muddled as to illustrate the truth of Stone‘s dictum that the entire doctrine of sovereign immunity rests on a rotten foundation. See ante
A county is the local subdivision of a state or territory. It is created by the state for the purposes of government. Its functions, political and administrative, have direct relation to the policy of the state. It is possessed of only such powers as the state chooses to give it. It can incur no liability except in pursuance of law. It cannot be made to respond for wrongs committed by its officers or agents unless the statute so declares.
Id. at 105, 68 P. at 526 (emphasis added). This comment about responding for wrongs was quite gratuitous in that Haupt had not brought a tort action or even one in eminent domain but only sought recovery in contract. The court actually noted that it did not have to deal with the question of the liability of counties for torts. See id. at 106, 68 P. at 526. Not surprisingly, the court had nothing to say about the liability of the county‘s employee, Doctor Woodruff. After all, he had not been sued.18
¶ 58 Somehow these meager beginnings gave birth to our law on the tort immunity of governmental employees. We next addressed that issue in Larsen v. County of Yuma, 26 Ariz. 367, 225 P. 1115 (1924). Larsen‘s intestate drowned when his car ran off a bridge and fell into a canal. All this, it was alleged, was the result of the county engineer‘s negligence and the board of supervisors’ failure to put and keep the road in a safe condition. Larsen sued in tort and joined the county, the supervisors, and the county engineer as defendants. The trial judge dismissed because the county could not be held liable for negligence and because the individual defendants, performing official duties and “exercising governmental functions” in “building and maintaining a public highway,” also could not be held liable. Id. at 368, 225 P. at 1116. On appeal, we affirmed judgment for the county on the authority of Sharp and the “well-settled doctrine that the state may not be sued unless it consents.” Id. at 369, 225 P. at 1116.
¶ 59 We also affirmed judgment for the individual defendants because “[a]s early as 1902, in Haupt ... the reason why neither a county nor its officers, in performing governmental functions, are liable in tort, was stated as follows....” The court then repeated Haupt‘s dictum about the non-liability of counties. See id. at 369, 225 P. at 1116. The court acknowledged that Haupt‘s statement of “the nonliability of the county and its officers for tort may be criticized as dictum” because Haupt sued on an “agreement of the county to pay.” Id. at 370, 225 P. at 1116. But, the court said, “we think it has ever since been recognized by the bench and bar as the rule” in Arizona and “we would not like to announce the minority rule of liability.” Id. Ignoring the dictum issue, the problem, of course, is that Haupt did not contain a word about the tort liability of governmental employees because, unlike Larsen and the present case, none had been joined as a defendant.
¶ 60 It is easy to criticize the court‘s analysis in Larsen, but it has been on the books for seventy-five years and has been followed
¶ 61 We next mentioned the matter of employee immunity in a case in which a school district and its trustees were sued for negligently setting fire to the plaintiff‘s house. See School Dist. No. 48 of Maricopa County v. Rivera, 30 Ariz. 1, 243 P. 609 (1926). While holding the school district, an arm of the state, was protected from liability by sovereign immunity, we said this about the liability of the individuals:
[I]f the trustees of the school district committed a trespass, since the statute neither directly nor impliedly authorizes such action on their part, the act was an individual one, and the liability, if any, is theirs, and not that of the district.
¶ 62 Some years later we reaffirmed Larsen, holding that a tort action for damages against the State Highway Commission and its members for negligent construction of a sewer line under a highway should be dismissed because the “commissioners [as officers of the state] individually only exercise governmental functions in the construction of highways.” Grande v. Casson, 50 Ariz. 397, 410, 72 P.2d 676, 681 (1937).19 There is a big difference between the deputy in this case who, without court order, released a dangerous criminal, and the state‘s officers who sat as members of the highway commission. There is also a big difference between the functions of the commissioners, whose duties include the exercise of governmental discretion in approving plans, construction contracts, and the like, and the functions of a sheriff‘s deputy, whose duties are confined to holding a prisoner in custody until a judicial officer orders the prisoner‘s release.
¶ 63 The Arizona history of this subject was next reviewed in a case in which tort damages were sought from a highway patrol officer who, while on duty, drove negligently and injured the plaintiff. See Ruth v. Rhodes, 66 Ariz. 129, 185 P.2d 304 (1947). The officer argued entitlement to summary judgment because “an officer of the State of Arizona is not liable in tort for negligence while in the performance of the governmental functions of the state.” Id. at 132-33, 185 P.2d at 306. We disagreed, citing Larsen and Grande as having held only that state and county public officers were immune in “a very limited and specific factual situation, i.e., in regard to construction defects or failure of proper upkeep of bridges and highways.” Id. at 133, 185 P.2d at 306-07 (emphasis added). We went on to state the “general rule applicable to the case at bar concerning the personal tort liability of state officers generally is quite uniformly to the contrary.” Id., 185 P.2d at 307. We then quoted with approval the following from “[a] leading case“:
We think that a sound public policy requires that public officers and employees shall be held accountable for their negligent acts in the performance of their official duties, to those who suffer injury by reason of their misconduct. Public office or employment should not be made a shield to protect careless public officials from the consequences of their misfeasances in the performance of their public duties.
Id. (quoting Florio v. Jersey City, 101 N.J.L. 535, 129 A. 470, 472 (1925)). Florio cited Nowell v. Wright, 85 Mass. 166, 1861 WL 4813 (1861), which in turn discussed prior cases for the proposition that paid public employees may be liable for damages caused by their negligence.
¶ 64 We followed that with an approving quote and illustration from
(c) Public officers. While there is no immunity by the mere fact that one is a public officer, there are many situations where a person may be protected by the command of a superior or the existence of a privilege held by him because of his official position or because of a privilege
held by another on whose account he acts.... Where, however, the other has not a privilege but has merely an immunity from civil liability, as is the case of a municipal corporation which is not liable for tortious conduct committed by its servants while in the performance of a governmental function, the person who acts does not share the immunity.
* * * * * *
Illustrations: (3) A, the fire chief, drives a municipal car to a fire at an unnecessarily dangerous rate of speed, thereby causing a collision with and harming B. A is subject to liability to B, although the municipality by whom he is employed is not liable.
Rhodes, 66 Ariz. at 133-34, 185 P.2d at 307. We held the patrol officer was not entitled to common law immunity and affirmed the judgment against him.
¶ 65 The reader may well conclude from this examination of our cases that there is some confusion as to what was the common law with regard to immunity of government employees who commit a tort in the performance of their duties. But there is no confusion, I submit, as to what was not the common law. We have never held that the legislature could confer immunity from tort on all governmental employees, no matter the position they hold and the nature of the duties they perform. Quite the opposite. The state‘s highway commissioners may have had common law immunity in deciding whether to build a freeway or ordinary highway between Phoenix and Scottsdale, but I doubt it was or is the common law that even the governor has immunity if she runs a red light while driving herself from one official meeting to another. Nor have we ever said anything that would indicate the governor‘s driver would have such immunity while driving the governor from meeting to meeting. Quite the opposite is true under pre-statehood common law principles.
C. Pre-statehood common law principles
¶ 66 The common law would not have resolved the present case by conferring absolute immunity on the deputy but by looking at the type of office he held and the type of duty he was performing when he committed the tort.
¶ 67 We reviewed the status of the common law on the subject twenty years ago and concluded that the common law rule was liability and not immunity; immunity was a late judicial erosion of the common law principle that the state‘s officers were liable:
It is generally agreed that the origin of official immunity (as well as of sovereign immunity) lies partly in the maxim “the King can do no wrong.” Later the immunity of the sovereign from suit was modified by the Anglo-American common law principle that no person is above the law; the sovereign‘s officers were liable for their misconduct. Such liability has gradually eroded in recent times until many courts formulate the rule that public officials are absolutely immune from suit at least for their discretionary acts. It is unclear why this change came about since it is a perversion of earlier reasoning.
Over the years the potential liability of public officials as it related to what are termed “discretionary” functions became associated with—almost equated with—the traditional absolute immunity of judges. Until recently, however, this so-called quasi-judicial immunity was not a general immunity. The modern trend in the United States has been to grant more and more immunity to public officials. This development has occurred in the context of logical inconsistencies and often with only cursory reasoning.
Grimm, 115 Ariz. at 264, 564 P.2d at 1231 (citations omitted) (citing DICEY, THE LAW OF THE CONSTITUTION 189 (8th ed.1915)).
¶ 68 This, of course, brings us full circle and back to Ryan, in which the plaintiff sought to impose liability not only on the state but also on the directors of the Arizona Department of Corrections and the Arizona Youth Center, both of which were held to be officers much different than the deputy here. By now, Stone had abolished the state‘s immunity. And in Ryan, in speaking of the immunity of the state, its officers, and employees, we cited Rhodes and noted that some immunity must remain for governmen-
¶ 69 Indeed, we clearly said we would “endorse the use of governmental immunity as a defense only when ... necessary to avoid a severe hampering of a governmental function or thwarting of established public policy.” Id. No governmental function is hampered and no public policy is thwarted by holding a deputy liable for releasing, without a court order, a dangerous criminal who had already attempted one murder. Quite the opposite—enforcing such liability might very well result in better training for law enforcement, more care in selecting qualified officers, and more careful thought by officers. Even if were we to adopt the majority‘s view on the state‘s immunity from vicarious liability, the majority‘s grant of immunity to the actual tortfeasor in the present case is not required by any holding this court has ever made, is contrary to the common law, and is thus an abrogation of the action for damages and forbidden by
¶ 70 As Justice Hays said in Ryan, “the underlying premise for the immunity is that it cannot be tortious conduct for a government to govern.” Id. at 311, 656 P.2d at 600 (quoting Commercial Carrier Corp. v. Indian River County, 371 So. 2d 1010 (Fla.1979)). I joined in that opinion and still believe it to be correct. This case is not about governing. Applying Ryan, I therefore dissent from the majority‘s affirmance of the judgment in the deputy‘s favor.
III. GOVERNMENTAL AND PROPRIETARY FUNCTIONS
¶ 71 The reach of the majority opinion is unclear. It evidently legitimizes legislative authorization of absolute or qualified governmental immunity for all “public entities and employees” engaged in governmental enterprises. Ante ¶ 25. But even after Sharp and before Stone, our jurisprudence rejected governmental immunity for proprietary municipal functions. Nor does it indicate whether judicial redress for municipal and proprietary torts is or is not protected by
¶ 72 But what is a “public entity“? The court tells us its opinion “does not affect the status of municipalities” but fails to define the status of municipalities and their employees. Ante ¶ 28. Here again, the law was confused and unclear and made little sense, mostly, as we said in Stone, because the whole doctrine of complete governmental tort immunity was illogical and nonsensical. See ante ¶ 38. Some things were nevertheless clear. First, the fact that proprietary governmental activities may not have been entitled to immunity was noted as early as Sharp. 21 Ariz. at 429-31, 189 P. at 632-33 (while construction of municipal auditorium was ministerial or proprietary and may not have been entitled to immunity, construction of state capitol was governmental and entitled to immunity).
¶ 73 There is no need to trace the complete evolution of the governmental-proprietary distinction in Arizona‘s common law of sovereign immunity. Suffice it to say that no case of ours ever recognized complete immunity for all governmental units no matter what the nature of the activity in which the government engaged. It was early recognized that municipal corporations were not entitled to immunity when engaged in proprietary functions. Jones v. City of Phoenix, 29 Ariz. 181, 183, 239 P. 1030, 1031 (1925). This, in fact, was described as the rule “of such almost universal acceptance ... that we accept it as the undoubted law of Arizona. The authorities are so united ... that no extensive citations are necessary.” Id. (citing 28 C.J. 1527, 1528, and note). The rule was based on the quaint distinction that cities, unlike states, were unnecessary and formed only for the “advantage and convenience” of their residents. Id. (citing Kaufman v. City of Tallahassee, 84 Fla. 634, 94 So. 697 (1922)).
¶ 74 But, as the Jones court noted, there was “utmost confusion” about what was gov-
¶ 75 The operation of a county hospital was a governmental activity and thus immune, even though those able to pay were charged a fee. See Lee v. Dunklee, 84 Ariz. 260, 262, 326 P.2d 1117, 1118 (1958). It was not for the court to doubt the wisdom of such an application of the rule of sovereign immunity. Id. at 263-64, 326 P.2d at 1119. Four years later, it was for the court to doubt the wisdom, and operation of a county hospital, which took paying patients as well as the indigent, was found to be partly proprietary in nature and therefore not immune to a suit by a paying patient. See Hernandez v. Yuma County, 91 Ariz. 35, 36-37, 369 P.2d 271, 272 (1962).
¶ 76 Salt River Project is actually two different entities, Salt River Project Agricultural Improvement and Power District and Salt River Valley Water Users’ Association. The Association is a private corporation that delivers water to its customers. As such, it has no governmental immunity. On the other hand, the District, which provides electricity to its customers, is a political subdivision of the state, organized pursuant to article XIII, section 7 of the Arizona Constitution. Thus, it is “vested with the rights, privileges, and immunities granted ... political subdivisions of the state.” Local 266, Int‘l Brotherhood of Elec. Workers v. Salt River Project Agric. Improvement & Power Dist., 78 Ariz. 30, 35, 275 P.2d 393, 396 (1954).
¶ 77 Maintenance of streets is a governmental function when performed by counties. See Larsen, 26 Ariz. at 368, 225 P. at 1116. But, surprisingly, street maintenance is a proprietary function when performed by municipalities, so the latter are not immune from vicarious liability for their employees’ negligence. Dillow v. City of Yuma, 55 Ariz. 6, 8, 97 P.2d 535, 536 (1940) (citing four early cases, at least two of which did not even discuss the issue). Irrigation districts also perform proprietary functions, so immunity is inapplicable. Taylor v. Roosevelt Irrigation Dist., 72 Ariz. 160, 164, 232 P.2d 107, 110 (1951).
¶ 78 I do not attempt to make sense out of these and the many other cases on our books and do not know if anyone can. Nor is the game worth the candle in light of the vast changes in the nature of governmental services. It is clear, I submit, that the common law immunity of the state‘s subgovernmental units was not recognized or established for all units or for all purposes. Cities, counties, and other subgovernmental entities could have been or were liable for a variety of activities, and rights of action arising from such situations existed under Hazine‘s interpretation of
CONCLUSION
¶ 79 What may come next is of serious concern. Human nature, particularly that of
CONCURRING: THOMAS A. ZLAKET, Chief Justice.