ROBIN ROEBUCK v. MAYO CLINIC, ET AL.
No. CV-23-0262-PR
Supreme Court of Arizona
September 12, 2025
Aрpeal from the Superior Court in Maricopa County, The Honorable Rodrick J. Coffey, Judge, No. CV2021-090429, REVERSED AND REMANDED. Opinion of the Court of Appeals, Division One, 256 Ariz. 161 (App. 2023), VACATED IN PART.
Robert M. Gregory (argued), Law Office of Robert M. Gregory, P.C., Gilbert, Attorney for Robin Roebuck
Rita J. Bustos (argued), Jones, Skelton & Hochuli, P.L.C., Phoenix; Vincent J. Montell, Quintairos, Prieto, Wood & Boyer, P.A., Scottsdale, Attorneys for Mayo Clinic, Mayo Clinic Arizona, Mayo Clinic Hospital, Nicole Secrest and Robert Scott
Joshua D. Bendor, Hayleigh S. Crawford (argued), Office of the Attorney General, Phoenix, Attorneys for the State of Arizona
Eileen Dennis GilBride, Jones, Skelton & Hochuli P.L.C., Phoenix, Attorneys for Amici Curiae American Medical Association, Arizona Medical Association, Phoenix Children’s Hospital, HonorHealth, and Mutual Insurance Company of Arizona
D. Andrew Gaona, Austin C. Yost, Coppersmith Brockelman PLC, Phoenix, Attorneys for Amicus Curiae Arizona Hospital and Healthcare Association
Brett W. Johnson, Tracy A. Olson, Claudia E. Stedman, Snell & Wilmer L.L.P., Phoenix, Attorneys for Amicus Curiae Health System Alliance of Arizona
Michael G. Bailey, Arizona Chamber of Cоmmerce, Phoenix, Attorneys for Amicus Curiae Arizona Chamber of Commerce and Industry
JUSTICE BEENE authored the Opinion of the Court, in which CHIEF JUSTICE TIMMER, VICE CHIEF JUSTICE LOPEZ and JUSTICE MONTGOMERY joined.* JUSTICE BOLICK dissented in part, dissented from the judgment, and concurred in part with which JUSTICE MONTGOMERY joined.
JUSTICE BEENE, Opinion of the Court:
¶1 This case requires us to determine whether
BACKGROUND
¶2 In April 2020, Robin Roebuck was hospitalized for COVID-19 at the Mayo Clinic in Arizona. Because Roebuck had previously received a heart transplant, he was placed under the care of the Mayo Clinic’s congestive heart failure team. During his hospitalization, a doctor ordered an arterial blood gas (“ABG”) test as part of Roebuck’s treatment for COVID-19. Roebuck developed complications from the ABG test and underwent surgery that resulted in significant scarring and diminished use of his right arm and hand.
¶3 In January 2021, Roebuck filеd a medical negligence suit against the Mayo Clinic, Mayo Clinic Arizona, Nicole Secrest, N.P., and Robert Scott, M.D. (collectively, “Mayo Clinic”). In his complaint, Roebuck alleged that the ABG test was negligently performed, but he did not allege that Mayo Clinic’s conduct was grossly negligent. Mayo Clinic moved to dismiss, arguing that
¶4 After conducting discovery regarding the purpose of the ABG test, Mayo Clinic moved for summary judgment. Finding that the ABG test was administered as part of Roebuck’s COVID-19 treatment, the superior court concluded that
¶5 The court of appeals reversed, concluding that “
DISCUSSION
¶7 “We review de novo a grant of summary judgment, ‘viewing the evidence in the light most favorable to the party against whom summary judgment was entered.’” S. Ariz. Home Builders Ass‘n v. Town of Marana, 254 Ariz. 281, 284 ¶ 16 (2023) (quoting Dabush v. Seacret Direct LLC, 250 Ariz. 264, 267 ¶ 10 (2021)). Summary judgment is appropriate “if the moving party shows that there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law.”
I.
¶8
¶9 The anti-abrogation clause provides that “[t]he right of action to recover damages for injuries shall never be abrogated, and the amount recovered shall not be subject to any statutory limitation . . . .”
¶10 To determine whether a statute violates the anti-abrogation clause, this Court performs a two-part analysis. Duncan v. Scottsdale Med. Imaging, Ltd., 205 Ariz. 306, 313 ¶ 28 (2003). The first inquiry is whether the right of action at issue falls within the protection of
A.
¶11 We start by determining whether
¶12 We recently reiterated that the anti-abrogation clause “prohibits the ‘abrogation of all common law actions for negligence,’ including medical malpractice.” Francisco v. Affiliated Urologists Ltd., 258 Ariz. 95, 104 ¶ 39 (2024) (emphasis added) (quoting Baker v. Univ. Physicians Healthcare, 231 Ariz. 379, 388 ¶ 34 (2013)). This holding is consistent with our longstanding jurisprudence, which since statehood has allowed a patient to recover damages against a health care provider for injuries caused by that health care provider’s negligence. See Seisinger v. Siebel, 220 Ariz. 85, 94 ¶¶ 32–33 (2009); Rice v. Tissaw, 57 Ariz. 230, 237–38 (1941); Butler v. Rule, 29 Ariz. 405, 407 (1926); McCarthy v. Pamsetgaff, Inc., 20 Ariz. 460, 461–62 (1919); Kain v. Ariz. Copper Co., 14 Ariz. 566, 567 (1913). The parties do not dispute that the first part of this analysis is met.
B.
¶13 We turn next to the second part of the analysis. Because the anti-abrogation clause precludes abrogation but not regulation, the second inquiry requires us to determine whether
¶14
¶15 While we agree with the court of appeals that gross negligence is not a reasonable alternative to ordinary negligence, resolving this inquiry does not turn on the question of whether ordinary negligence and gross negligence are distinct “torts” or “theories of liability” or “causes of action.” Focusing on that question loses sight of the proper inquiry. Indeed, gross negligence and ordinary negligence may very well be classified as the same tort. See DeElena v. S. Pac. Co., 121 Ariz. 563, 566 (1979) (“Appellant argues that [gross negligence] is a tort wholly separate from negligence. But it is settled that [gross negligence] is aggravated negligence.”); Williams v. Thude, 188 Ariz. 257, 259 (1997) (noting that gross negligence is an aggravated form of negligence); see also Garibay v. Johnson ex rel. Cnty. of Pima, 259 Ariz. 248, 258 ¶ 38 (2025) (acknowledging that “defining ‘negligence’ and ‘gross negligence’ ‘is, at best, inexact’” (quoting
¶16 As we recently emphasized in Torres, the language of the anti-abrogation clause protects rights of action, not causes of action. Id. at 218 ¶ 16. A right of action is “merely the right to pursue a remedy.” Id. (quoting Morgan v. Hays, 102 Ariz. 150, 159 (1967) (Struckmeyer, J., dissenting)). Identifying the right of action at issue “hinges on the nature of the injury and the defendant.” Id. at 219 ¶ 25. The dissent asserts that classifying ordinary negligence and gross negligence as the same tort ends the inquiry because “the right of action for negligence continues.” Infra ¶ 55. However, we have explicitly rejected framing the right of action in such broad terms. In Torres, we explained that although dram-shop actions may be classified as negligence actions, the right of action was not “simple negligence,” but rather the ability to bring a suit against a dram shop for injuries caused by an overserved patrоn. See Torres, 256 Ariz. at 218 ¶ 16, 219 ¶ 25, 220 ¶ 27. Likewise, the right of action at issue here is not, as the dissent suggests, the broad umbrella of “negligence.” Rather, as we identified in step one of the anti-abrogation analysis, supra ¶ 12, the right of action at issue here is the ability to bring a suit against a health care provider for injuries caused by that health care provider’s negligence. Thus, the proper inquiry here is whether
¶17 “In medical malpractice actions, as in all negligence actions, the plaintiff must prove the existence of a duty, a breach of that duty, causation, and damages.” Seisinger, 220 Ariz. at 94 ¶ 32; see Quiroz v. ALCOA Inc., 243 Ariz. 560, 563–64 ¶ 7 (2018) (laying out the common law elements of negligence). As set forth in
¶19 In sum, gross negligence adds a quasi-intent element by requiring a showing that the defendant acted with reckless indifference. While ordinary negligence “consists in mere inadvertence, incompetence, unskillfulness, or a failure to take precautions,” gross negligence “requires a conscious choice of a course of action, either with knowledge of the serious danger to others involved in it or with knowledge of facts which would disclose this danger to any reasonable man.” Williams v. Wise, 106 Ariz. 335, 341 (1970) (quoting Restatement § 500, cmt. g); see Scott, 75 Ariz. at 122 (“[Gross] negligence is highly potent, and when it is present it fairly proclaims itself in no uncertain terms. It is ‘in the air’, so to speak. It is flagrant and evinces a lawless and destructive spirit.”).
¶20 We turn now to whether gross negligence is a reasonable alternative to ordinary negligence in light of this quasi-intent element. We have previously explained that “a regulation that limits the theories of liability under which a plaintiff may sue is nonetheless an abrogation when
¶21 As between ordinary negligence and gross negligence, ordinary negligence focuses solely on the defendant’s conduct, while the quasi-intent element of gross negligence additionally considers the defendant’s mental state. In Duncan, we determined that negligence and intentional torts protect different interests. See Duncan, 205 Ariz. at 314 ¶¶ 32, 34. We noted that the elements of negligence “have no application in the field of intentional torts,” and that requiring a battery claimant to prove the elements of negligence “dramatically transforms the nature of the battery claim.” Id. ¶ 33. Likewise, the mental state element of intentional torts has no application in the field of negligence. See Ryan v. Napier, 245 Ariz. 54, 59 ¶ 17 (2018) (“A negligence claim focuses on the defendant’s conduct; intent is immaterial.”); Dan B. Dobbs et al., The Law of Torts § 31 (2d ed. 2011) (“[N]egligence does not require a state of mind at all but focuses instead on outward conduct.”); id. § 126 (“A bad state of mind is neither necessary nor sufficient to show negligence; conduct is everything.” (internal footnote omitted)); 65 C.J.S. Negligence § 16 (2025) (“The words ‘negligence’ and ‘intentional’ are contradictory and mutually exclusive.” (internal footnote omitted)). Though gross negligence falls short of intentional wrongdoing, Garibay, 259 Ariz. at 258 ¶¶ 38–39, “it is a cousin to the intentional tort even while it is at home in the negligence family,” Dan B. Dobbs et al., The Law of Torts § 32 (2d ed. 2011). While sоme cases of gross negligence may look only to a defendant’s conduct, the focus is not the conduct in and of itself, but rather whether the conduct is of such a nature so as to evince the defendant’s reckless indifference. See id. (“As the
¶22 Not every instance of medical negligence will involve reckless indifference on the part of the health care provider. See Kemp v. Pinal County, 13 Ariz. App. 121, 124–25 (1970) (“A person can be very negligent and still not be guilty of gross negligence.”); Noriega, 243 Ariz. at 329 ¶ 41 (“We recognize that proving gross negligence is no easy task.” (quoting Luchanski v. Congrove, 193 Ariz. 176, 180 ¶ 19 (App. 1998))). Indeed, as
¶23 The dissent is concerned that “little is left of the Legislature’s police power to ‘regulate’ torts” after our decision today. Infra ¶ 56. However, the Legislature remains free to enact statutes that may have the effect of making it more difficult for plaintiffs to prevail. See Franklin v. Clemett, 240 Ariz. 587, 594 ¶ 20 (App. 2016) (“A statute does not ‘effectively’ abrogate a claim, however, by making it more difficult for the claimant to obtain a recovery or even when, in the claimant’s view, it may weaken the claimant’s case.”); Barrio, 143 Ariz. at 106 (noting that “reasonable regulation of the manner and time for bringing the action” is permissible). The Legislature has done so in several instances without running afoul of the anti-abrogation clause. See State Farm Ins. Co. v. Premier Mfg. Sys., Inc., 217 Ariz. 222, 229 ¶¶ 34–37 (2007) (explaining that a statute abolishing joint and several liability in strict products liability cases did not violate the anti-abrogation clause because “the claimant remains entirely free to bring his claim against all responsible parties”); Baker, 231 Ariz. at 388 ¶ 35
¶24 Importantly, the Legislature may modify or clarify the standard of care. St. George v. Plimpton, 241 Ariz. 163, 166 ¶ 18 (App. 2016) (“The standard of care may be ‘established by a legislative enactment.’” (quoting Tellez v. Saban, 188 Ariz. 165, 169 (App. 1996))); see Restatement § 285. For example, the Legislature codified the ordinary standard of care in medical malpractice cases in
¶25 We conclude that
II.
A.
¶26 At oral argument bеfore us, amicus Attorney General argued that when considering whether a statute enacted by the Legislature to address a public emergency violates the anti-abrogation clause, courts
¶27 No Arizona court has applied judicial balancing to the anti-abrogation clause analysis, and we decline to do so today. The plain language of the anti-abrogation clause is unequivocal: “The right of action to recover damages for injuries shall never be abrogated.”
¶28 The Attorney General additionally argues that construing the anti-abrogation clause to prevent the Legislature from temporarily limiting the liability of health care providers during a public рandemic would undermine its police powers under
¶29 Undoubtedly, the Legislature has the authority to enact legislation during a declared state of emergency pursuant to its inherent police powers under
B.
¶30 We also reject the argument advanced by amicus Arizona Chamber of Commerce and Industry (the “Chamber”) that
¶31 In Yearsley v. W.A. Ross Construction Co., 309 U.S. 18 (1940), the United States Supreme Court concluded that when a private company carries out its duties pursuant to its contract with the federal government, “there is no liability on the part of the contractor” who simply performed as the government directed. Id. at 20–21 (emphasis added). In Yearsley, the Court extended governmental immunity “[w]here an agent or officer of the Government” was acting on its behalf. Id. at 21 (emрhasis added). Here, the contractual or agency components that are essential to establishing a derivative grant of immunity between the state government and Mayo Clinic do not exist.
¶33 In Patterson v. City of Danville, 875 S.E.2d 65, 69 (Va. 2022), the Virginia Supreme Court examined the application of derivative sovereign immunity to a physician employed by the government who allegedly failed to provide appropriate medical care to an individual incarcerated in a government-owned detention center. In extending derivative sovereign immunity to the physician, the Patterson court emphasized that the physician was an employеe of an immune governmental entity and thereby a “servant” through which the government acts. Id. at 70. Once again, because the facts in Patterson are distinguishable from circumstances in this case, the Chamber’s reliance on its holding is misplaced.
¶34 The Chamber asserts that extending derivative sovereign immunity is appropriate when a private party is acting on behalf of the state, but it offers no Arizona authority or any other controlling authority for its belief that a private party acting without a contractual or agency relationship with the government acquires the government’s comprehensive immunity for performing government work. For this reason, its claim regarding derivative sovereign immunity fails.
III.
¶35 Having determined that
¶36 Courts generally give effect to severability clauses in statutes when possible. Selective Life Ins. Co. v. Equitable Life Assurance Soc‘y, 101
¶37 The Legislature may limit a plaintiff’s right of action by regulating matters such as how causes of action must be brought, the relevant standards of pleading, and other procedural and evidentiary matters. See Duncan, 205 Ariz. at 313 ¶ 30; Francisco, 258 Ariz. at 104 ¶ 40 (stating that the Legislature may create a statutory framework that imposes “a stricter standard of pleading and setting deadlines for the early involvеment of the plaintiff’s expert witness” (quoting Gorney v. Meaney, 214 Ariz. 226, 229 ¶ 8 (App. 2007))). This Court has previously explained that “[i]t is one thing to hold that the right to bring a cause of action is guaranteed in the [C]onstitution, free from legislative control, but entirely different to hold that the [C]onstitution also requires that we continue to follow the same rules of pleading, procedure and evidence that existed in 1912.” Kenyon, 142 Ariz. at 83 (internal citation omitted). As part of this power to regulate causes of action, the Legislature may establish or heighten burdens of proof. See, e.g., Valerie M. v. Ariz. Dep‘t of Econ. Sec., 219 Ariz. 331, 336 ¶ 21 (2009) (“Because the [L]egislature is empowered to set burdens of proof as a matter of substantive law, a valid statute specifying the burden of proof prevails over common law or court rules adopting a different standard.”); Seisinger, 220 Ariz. at 93 ¶ 30.
¶38 We conclude that the portion of
CONCLUSION
¶39 Although we agree with the court of appeals’ holding, we vacate paragraphs 17–29 of the court of appeals’ opinion to replace its reasoning with our own. We reverse the superior court’s entry of summary judgment in favor of Mayo Clinic and remand to the superior court for further proceedings consistent with this Opinion.
¶40 I disagree with my colleagues thаt the anti-abrogation clause,
A.
¶41 As the majority aptly explains, supra Part I(B) ¶¶ 23–24, in our federalist republic, the police power—that is, the power to regulate public health, safety, and welfare—reposes in the states, except where the states delegated limited authority to the national government. Thus, when we examine whether the national government possesses a police power, we look for an express grant of аuthority to that effect. Whereas with the states, we look to see whether their organic police power is constrained by an express reservation of individual rights or a structural constraint on government power. See, e.g., Nat‘l Fed. of Indep. Bus. v. Sebelius, 567 U.S. 519, 535–36 (2012); Johnson Utils., L.L.C. v. Ariz. Corp. Comm‘n, 249 Ariz. 215, 234 ¶ 95 (2020) (Bolick, J., concurring in part and dissenting in part).
¶42 Unquestionably, the statute at issue here is an exercise of the state’s police power. The state’s power to protect public health is broad and does not depend on an emergency. See, e.g., Maricopa Cnty. Health Dep‘t v. Harmon, 156 Ariz. 161, 167 (1987).
¶43 COVID-19 presented public policy challenges that were nearly unprecedented, certainly in modern times. The ubiquitous image of masks, ventilation intubation units, tents outside of hospitals, hospital ships, closed government schools, forced human distancing, closure of
¶44 The parties agree that the statute and executive order that preceded it were intended to encourage physicians to take the risk of treating COVID-19 patients without the benefit of full knowledge about the interaction of the virus with ordinary medical procedures. Unlike the national government, which in some instances gave full immunity to those addressing the crisis, see, e.g.,
¶45 Here, the majority concludes that the constitutional provision that prohibits this exercise of the police power is
¶46 As the majority observes, the Court has read this provision to constitute a prophylactic limitation on the Legislature’s power to regulate torts. But that is a matter of this Court’s invention rather than commanded by the Constitution. Superficially, the provision’s words in isolation would imply such meaning. But closer inspection demonstrates that the provision was written and intended to have a much narrower impact.
¶47 In Torres v. JAI Dining Servs. (Phoenix), Inc., 256 Ariz. 212 (2023), the Court reined in an expansive interpretation of the anti-abrogation clause that would essentially freeze forever tort protections, even those manufactured by the judiciary, against legislative modification. Specifically, the Court held that legislative modification of judicially decreed dram-shop liability rules was permissible because such actions
¶48 In light of past opinions that established such parameters for the anti-abrogation clause—that is, that the clause рrohibits abrogation of rights of action recognized at common law—I joined the opinion. However, I also wrote a concurring opinion explaining that the clause was not written or meant to have such broad effect, raising points that are relevant to the disposition of the matter today. See id. at 220–25 ¶¶ 30–52 (Bolick, J., concurring).
¶49 To start, the superficial reading of the provision’s language that the Court has consistently applied is belied by its context. And as the Court has consistently admonished, constitutional and statutory provisions must always be read in context. See Roundtree v. City of Page, ___ Ariz. ___, ___, 573 P.3d 65, 69 ¶ 13 (2025) (“We interpret statutory and constitutional provisions not in isolation, but in context with other provisions covering the same subject matter, to ensure that the provisions’ meaning is effectuated.” (citing In re Chalmers, ___ Ariz. ___, ___, 571 P.3d 885, 889 ¶ 18 (2025))).
¶50 The Arizona Constitution is chock-full of express reservations of rights and structural limitations on the power of government. Clint Bolick, Principles of State Constitutional Interpretation, 53 Ariz. St. L.J. 771, 787–89 (2022). Most of the protections of individual rights are found in our extensive Declaration of Rights. See
¶51 The majority here and prior Court decisions treat the anti-abrogation clause as if it is a similarly broad protection of individual rights. Notably, however, the framers did not place it along with dozens of such rights in the Declaration of Rights, but rather in
¶52 It turns out that is exactly what the framers meant and wrote. The words themselves provide further basis. The framers did not use “causes of action,” or even “rights” of action. Rather, thеy chose the right of action. In the context of the labor article, that pertained to a specific right of action. In a definitive law review article that traces both the legislative history and intent behind the anti-abrogation clause, University of Arizona Law Professor (and former dean) Roger C. Henderson established that the provision was exclusively aimed at preserving specific tort actions by employees against employers that were in jeopardy at the time. Roger C. Henderson, Tort Reform, Separation of Powers, and the Arizona Constitutional Convention of 1910, 35 Ariz. L. Rev. 535 passim (1993). As Professor Henderson concludes, “there does not appear on the basis of the evidence available today to be any real justification for holding that the guarantees under section 6 of article XVIII were ever intended for the ‘benefit of all.’” Id. at 617. To my knowledge, this Court has never engaged, much less rebutted, Prof. Henderson’s scholarship.
¶53 Given that I am generally content to accept the Court’s expansive reading of the anti-abrogation clause as a matter of stare decisis, see Francisco v. Affiliated Urologists Ltd, 258 Ariz. 95, 105–09 ¶¶ 44–61 (2024) (Bоlick, J., concurring in part, dissenting in part), why am I going into such detail on this issue apart from my ongoing annoyance over judicial adventurism in the common law context? See Clint Bolick, Setting Boundaries: State Courts, Common Law, and Separation of Powers, 57 Ariz. St. L.J. 422 (2025). I do so to demonstrate again that the anti-abrogation clause is not intended to freeze torts in place for all time, and that the majority’s
¶54 Indeed, the majority’s attempt to define this central term further churns already muddied waters. It construes the “right of action” that is protected against abrogation both narrowly and expansively. It acknowledges that ordinary negligence and gross negligence “may very well be classified as the same tort.” Supra at Part I(B) ¶ 15 (citations omitted). “A right of action is considered abrogated if no reasonable election remains, resulting in the right of action being ‘completely abolished.’” Id. ¶ 13 (citations omitted). “However, the Legislature remains free to enact statutes that may have the effect of making it more difficult for plaintiffs to prevail.” Id. ¶ 23.
¶55 The statute would seem to satisfy these requirements. Ordinary negligence and gross negligence arise from the same tort: negligence. The right of action for negligence continues. The heightened standards make it more difficult, but not impossible, to prevail in a negligence action. But the majority drills down by insisting that, in reality, the cause of action cannot be modified in a way that makes it more difficult for some plaintiffs to prevail. “Not every instance of medical negligence will involve reckless indifference on the part of the healthcare provider.” Id. ¶ 22. The majority focuses on this “quasi-intent element” as distinguishing the tort from common law so as to amount to abrogation. Id.
¶56 This is a broad expansion of
¶57 In my view, “right of action,” even conceding that it is not limited to the specific right of action contemplated by the framers, is a term
¶58 Had the Legislature clothed doctors and hospitals with complete immunity, I would have joined my colleagues in finding it a violation of the anti-abrogation clause. Instead, the Legislature chose a middle ground, raising standards for medical negligence during an emergency without abolishing the right of action. I regret that judicially abrogating this policy tool may force hospitals, physicians, and other healthcare providers to make very difficult decisions in the next healthcare crisis, not necessarily to the benefit of people needing treatment.
¶59 For the foregoing reasons and with great respect to my colleagues, I dissent from Part I of the Court’s decision and from the disposition.
B.
¶60 Given that the State’s authority to pass
¶61 At oral argument, Mayo ceded its opening time to amicus State, which used it to argue that the anti-abrogation clause should be construed in light of the COVID-19 emergency. The State argued that “emergency powers are inherent in government” and “[e]ven fundamental constitutional rights may be subject to limitation for a temporary period in
¶62 The State’s position finds support in some U.S. Supreme Court precedents. See, e.g., Jacobson v. Massachusetts, 197 U.S. 11 (1905); Home Bldg. & Loan Ass‘n v. Blaisdell, 290 U.S. 398 (1934)2; Korematsu v. United States, 323 U.S. 214 (1944), overruled by Trump v. Hawaii, 585 U.S. 667, 710 (2018). More recently, the Supreme Court has rejected the argument that the government’s powers to infringe constitutional rights expand during an emergency. Roman Cath. Diocese of Brooklyn v. Cuomo, 592 U.S. 14, 19 (2020) (“Members of this Court are not public health experts, and we should respect the judgment of those with special expertise and responsibility in this area. But even in a pandemic, the Cоnstitution cannot be put away and forgotten.”); accord id. at 21 (Gorsuch, J., concurring) (“Government is not free to disregard the First Amendment in times of crisis.”). Regardless, in my view, the State’s position finds no support in the Arizona Constitution.
¶63 Presumably, the reason the State relies on “inherent” emergency powers is that no express provision in the Constitution supports that proposition. Within its constitutional authority, the Legislature does possess express emergency powers in two discrete circumstances, neither of which is remotely applicable here. First,
¶65 The same Constitution that omits any broad grant of emergency power explicitly and abundantly protects individual rights. When we interpret the Constitution, a statute, or a contract, we generally apply the plain language as commonly understood when it was adopted. Matthews v. Indus. Comm‘n of Ariz., 254 Ariz. 157, 163 ¶¶ 29–33 (2022). But where the document we are interpreting contains an express statement of purpose, we are obligated to construe its provisions to effectuate that purpose. Planned Parenthood Ariz., Inc. v. Mayes, 257 Ariz. 137, 144 ¶ 25 (2024).
¶66 Helpfully, the framers of the Arizona Constitution provided exactly that. In
¶67 Among the many provisions of the Arizona Constitution that I wish were present in its national counterpart is
¶68 Similarly, the first section of our Declaration of Rights instructs that “[a] frequent recurrence to fundamental principles is essential to the security of individual rights аnd the perpetuity of free government.”
¶69 The State assures that we need not worry about a wholesale violation of individual rights during a declared emergency because such powers imply a “limiting principle,” namely that “emergency powers terminate when there’s no longer any necessity and there’s no emergency.” The most eloquent response to that argument of which I am aware was made by the great Justice Robert H. Jackson in his Korematsu dissent, voting to strike down an emergency military order requiring the internment of Japanese-Americans. The passage is lengthy but worth quoting in full:
[A] judicial construction of the due process clause that will sustain this order is a far more subtle blow to liberty than the order itself. A military order, however unconstitutional, is not apt to last longer than the military emergency. . . . But once a judicial opinion rationalizes such an order to show that it conforms to the Constitution, . . . the Court for all time has validated the principle of racial discrimination in criminal procedure and of transplanting Americans. The principle then lies around like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need. Every repetition imbeds that principle more deeply in our law and thinking and expands it to new purposes.
323 U.S. at 245-46 (Jackson, J., dissenting).
¶70 Just as the U.S. Supreme Court eventually consigned Korematsu to its overdue demise, so too is it fitting fоr this Court to repudiate the notion of inherent emergency powers under the Arizona Constitution. The hallmark of a healthy constitutional republic is not only that it protects individual rights against the majority, but that it does so even (and perhaps especially) during proclaimed emergencies. Ex parte Milligan, 71 U.S. 2, 121 (1866) (“No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government.”). That is the vital principle this Court vindicates today.
C.
¶71 I also agree with my colleagues in rejecting the Arizona Chamber of Commerce’s argument that the challenged statute confers derivative sovereign immunity on those it seeks to protect. I write only to emphasize that if this argument were to succeed, it would expose private entities to liability for acting under “color of state law” under