Torres v. Jai Dining ServicesTorres v. Jai Dining Services
COUNSEL:
David L. Abney (argued), Ahwatukee Legal Office P.C., Phoenix; Robert F. Clarke, Clarke Law Offices, Phoenix; and Matthew D. Koglmeier, Koglmeier Law Group PLC, Mesa, Attorneys for Roberto Torres, Orlenda Guillen, Hernan Gastelum Rosas, and Maria Suarez
Eric M. Fraser (argued), Andrew G. Pappas, Osborn Maledon P.A., Phoenix; and Dominique Barrett, Quintairos, Prieto, Wood & Boyer P.A., Scottsdale, Attorneys for JAI Dining Services (Phoenix), Inc.
Daniel Rubinov, Rafat H. Abdeljaber, RAJ Law PLLC, Phoenix, Attorneys for Amici Curiae Arizona Association for Justice/Arizona Trial Lawyers Association
Amanda Heitz, Lauren Walter, Bowman and Brooke LLP, Phoenix, Attorneys for Amicus Curiae Arizona Association of Defense Counsel
Camila Alarcon, Alarcon Law & Policy, P.L.L.C., Phoenix, Attorney for Amicus Curiae Arizona Restaurant and Hospitality Association
Peter H. Schelstraete, Schelstraete Law Office, Tempe, Attorney for Amicus Curiae Arizona Licensed Beverage Association
Richard P. Traulsen, Begam Marks & Traulsen P.A., Phoenix, Attorney for Amicus Curiae Mothers Against Drunk Driving (MADD Arizona Chapter)
Mick Levin, Alexandra Van Duffelen, Mick Levin P.L.C., Phoenix; and Noah J. Van Amburg, Van Amburg Law Firm, P.L.L.C., Tucson, Attorneys for Amicus Curiae Homicide Survivors, Inc.
CHIEF JUSTICE BRUTINEL authored the Opinion of the Court, in which JUSTICES BOLICK, LOPEZ, and BEENE joined. JUSTICE BOLICK issued a concurring opinion. VICE CHIEF JUSTICE TIMMER dissented.*
CHIEF JUSTICE BRUTINEL, Opinion of the Court:
¶1 The Arizona Constitution guarantees that “[t]he right of action to recover damages for injuries shall never be abrogated.”
* Justice William G. Montgomery and Justice Kathryn H. King have recused themselves from this case.
I. BACKGROUND
¶2 After a night of heavy drinking at the Jaguars Club in Phoenix, Cesar Aguilera Villanueva drove away heavily intoxicated. Torres v. JAI Dining Servs. (Phx.) Inc. (Torres I), 252 Ariz. 28, 29 ¶¶ 1-2 (2021). After going to a friend‘s house to “sober up” and sleeping for a short time at his own house, Villanueva again drove and crashed into a car stopped at a red light, killing its two occupants, Guadalupe Gastelum Suarez and Jesus O. Torres Guillen. Id. ¶¶ 3-4.
¶3 The victims’ families, Roberto Torres et al. (“Plaintiffs“), sued Villanueva for negligence and sued JAI Dining Services (“JAI“), the owner of Jaguars Club, under theories of statutory and common law dram-shop liability.1 Id. at 30 ¶ 5. At trial, the jury found Villanueva liable for negligence but rendered a split verdict on the dram-shop claims against JAI. Id. ¶ 6. The jury found JAI was liable under the common law dram-shop action recognized by this Court in Ontiveros, which imposes liability on a liquor licensee that serves alcohol to an intoxicated patron if it “know[s] or should know that such conduct creates an unreasonable risk of harm to others.” Id.; Ontiveros, 136 Ariz. at 513. However, the jury found JAI was not liable under the dram-shop cause of action codified at
¶4 When this case was previously before us, we vacated the court of appeals’ decision, which had found that an intervening and superseding cause—Villanueva‘s “decision to resume driving after reaching home“—had broken the chain of proximate causation and relieved JAI from liability for Villanueva‘s actions. Id. ¶¶ 1, 20. We disagreed and found the jury “could have reasonably concluded that Villanueva‘s act in driving while intoxicated, even after he reached home . . . was nevertheless foreseeable by someone in [JAI‘s] position and not extraordinary in hindsight.” Id. at 32 ¶ 18. We remanded and instructed the court of appeals to consider whether JAI had waived its separate argument that
shop action recognized in Ontiveros. Torres I, 252 Ariz. at 32-33 ¶¶ 19-20. If not waived, we instructed the court to decide the preemption question. Id.
¶5 On remand, the court of appeals found that, although JAI did not make its preemption argument to the trial court, both parties “had ample notice and multiple opportunities”
¶6 On the merits, the court of appeals found that
¶7 Plaintiffs timely petitioned for review. JAI also asked us to review the issue and settle the conflict between Young and Torres II. We granted review, asking the parties to address whether the anti-abrogation
clause only extends to common law rights of action that could have been brought at the time of statehood, or if it instead covers all common law rights of action regardless of when they were recognized. We have jurisdiction under
II. DISCUSSION
¶8 Our caselaw squarely answers the question at hand. Because the anti-abrogation clause only applies to rights of action that either “existed at common law” or find their “basis in the common law at the time the constitution was adopted,” Dickey, 205 Ariz. at 3 ¶ 9, the clause does not preserve the dram-shop action first recognized in Ontiveros. Although contradictory dicta can be found in a few of this Court‘s cases—namely, Boswell v. Phoenix Newspapers, Inc., 152 Ariz. 9, 17-18 (1986) and Hazine v. Montgomery Elevator Co., 176 Ariz. 340, 343-44 (1993)—this Court has never extended the anti-abrogation clause to rights of action not recognized at statehood, and we will not do so now. Below, we first discuss our caselaw interpreting the clause and the standard guiding an anti-abrogation analysis, and then analyze whether dram-shop actions are protected by the anti-abrogation clause.
A. The Anti-Abrogation Clause.
¶9 Throughout over a century of jurisprudence, this Court has never extended the anti-abrogation clause‘s protections to rights of action incognizable at statehood. Rather, we have consistently rejected arguments asking us to do so. For instance, in Morrell v. City of Phoenix, 16 Ariz. 511 (1915), we found that a city charter immunizing the City of Phoenix from certain tort liability did not violate the anti-abrogation clause, stating the clause “only undertakes to
¶10 One particularly instructive case is Industrial Commission v. Frohmiller, 60 Ariz. 464 (1943), where this Court held that a statutory limitation on the damages recoverable for injuries caused by occupational diseases was not prohibited by the anti-abrogation clause because “there was no common law right of action for occupational disease” at statehood. Id. at 471. The Court acknowledged that, “[i]f the right to recover damages or compensation under the common law for injury caused by occupational disease existed at the time [the anti-abrogation clause was] adopted,” the defendant‘s argument that the challenged law violated the anti-abrogation clause “would have some force.” Id. at 468. But based upon the Court‘s review of pre-statehood common law decisions and the fact that “no case [had] ever come to this [Court] asking for damages solely upon the ground of occupational disease,” we concluded the anti-abrogation clause did not extend to the right of action to sue for injuries caused by occupational disease. Id. at 470-71.
¶11 Our older caselaw accords with our most recent cases on this topic, Cronin and Dickey, in which we emphasized that the anti-abrogation clause does not “extend constitutional protection to all tort causes of action, whenever or however they may have arisen.” Cronin, 195 Ariz. at 539 ¶ 36. In Cronin, we found that an action for wrongful discharge in violation of public policy—a right of action created by statute in 1965, id. at 533 ¶ 1—was unprotected by the anti-abrogation clause because it “originate[d] exclusively within the statute, would not otherwise exist, and cannot trace its antecedents to a common law right of action.” Id. at 539 ¶ 39.
¶12 Similarly, in Dickey, we found that “to fall within the protection of the anti-abrogation provision of the Arizona Constitution,” a right of action “must have existed at common law or have found its basis in the common law at the time the constitution was adopted.” 205 Ariz. at 3 ¶ 9. The Dickey Court examined whether a recreational-use statute (which limited tort liability for cities that allowed the public to use land for recreational purposes) violated the anti-abrogation clause. Id. at 2 ¶ 5. The Court found that, at statehood, “cities engaged in governmental functions were not subject to liability for negligence,” id. at 3 ¶ 10, and that the defendant city was performing a governmental function by holding the land “open to the public for recreational use.” Id. at 6 ¶ 23. Thus, because the city “would have been immune at common law [in 1912] from tort liability for acts of ordinary negligence” pertaining to public uses of
recreational land, the recreational-use statute‘s limitation on tort liability did not violate the anti-abrogation clause. Id.
¶13 As such, consistent with our duty to faithfully apply precedent unless “the reasons for it” no longer exist or it is “clearly erroneous or manifestly wrong,” State v. Agueda, 253 Ariz. 388, 392 ¶ 20 (2022) (quoting Lowing v. Allstate Ins., 176 Ariz. 101, 107 (1993)), we reaffirm the rule stated in Dickey: The anti-abrogation clause only prohibits abrogation of rights of action that existed at statehood or that are based in rights of action existing at statehood. See Dickey, 205 Ariz. at 3 ¶ 9. This rule does not render the anti-abrogation clause toothless: “[w]ithout limitation it confers the right to recover damages for injuries as existing under the common law.” Kilpatrick v. Superior Court, 105 Ariz. 413, 419 (1970). The clause generally protects from abrogation a wide swath of actions for which recovery was possible in 1912, such as negligence actions, intentional torts, and product liability claims. However, this Court has never held that the clause insulates from legislative action rights of action that were barred at common law at the time the constitution was enacted.
¶14 We acknowledge that two of our cases, Boswell and Hazine, contain dicta implying that the anti-abrogation clause extends to all rights of action regardless of when those rights were recognized. The Court first employed this language in Boswell, stating that “[a]lthough [the anti-abrogation clause] preserves common law rights, our common law is not frozen as of 1912.” 152 Ariz. at 17. The Boswell Court thus opined that the anti-abrogation clause could cover newly created common law rights of action and “eliminate the legislature‘s power to control the existence of tort law.” Id. at 18. Hazine contained similar language, claiming the “evolution of common law causes of action—whether in duty, standard of care, or damages—falls within the broad coverage of [the anti-abrogation clause].” 176 Ariz. at 344. But this language is dicta because, despite their expansive language, Boswell and Hazine only applied the anti-abrogation clause to rights of action recognized by pre-statehood common law, rather than to rights that would not have been recognized at common law in 1912. See Boswell, 152 Ariz. at 11 (“The common law imposed strict liability on the publisher of defamatory statements.“); id. at 17 n.20 (finding “[r]ecovery for emotional distress in a defamation action” was cognizable at common law pre-statehood); Hazine, 176 Ariz. at 344 (“[T]he right of action to recover damages for injuries caused by defective products was recognized at common law long before Arizona became a territory.” (quoting Bryant v.
Cont‘l Conveyor & Equip. Co., 156 Ariz. 193, 198-99 (1988) (Feldman, V.C.J., dissenting))). Although the dissent argues that disapproval of this dicta offends “principles of stare decisis,” infra ¶ 69, both cases were correctly decided under the rule we reiterate today, which recognizes that the clause protects rights of action cognizable at statehood. We do not overrule either case—stare decisis is not implicated.
¶15 We reject the dicta from Boswell and Hazine because it undermines the legislature‘s role in developing and restricting tort causes of action that are unprotected by the anti-abrogation clause. The Arizona Constitution does not vest the power to develop tort law solely in the judiciary. See generally
¶16 When deciding whether a specific right of action is “based in” a right cognizable at the time of statehood, courts should consider whether a plaintiff alleging the same harm could have recovered damages against the
same type of defendant at statehood. This inquiry is consistent with the anti-abrogation clause‘s language, which does not limit itself to protecting specific “causes of action” but rather protects “the right of action.” Because a right of action is “merely the right to pursue a remedy,” see Morgan v. Hays, 102 Ariz. 150, 159 (1967) (Struckmeyer, J., dissenting) (quoting United States v. Standard Oil Co., 21 F. Supp. 645, 660 (S.D. Cal. 1937)), the anti-abrogation clause extends to all injuries remediable at the time of statehood. Unlike the wide net of “simple negligence” that the dissent casts, this narrow inquiry into whether a specific harm allowed damages against a specific type of defendant in 1912 is also consistent with our caselaw.
¶17 For example, in Boswell we determined that a plaintiff could have alleged a specific harm (defamation) against a specific tortfeasor (a newspaper) at the time of statehood, and therefore defamation actions were encompassed by the anti-abrogation clause. See 152 Ariz. at 11. And in Hazine the outcome was correct because the specific harm (an injury caused by a defective product) was cognizable at the time of statehood, as was the theory of strict liability. Hazine, 176 Ariz. at 344; Cronin, 195 Ariz. at 539 ¶ 36 (stating the Hazine Court found strict-products-liability actions were protected by the anti-abrogation clause “because a right of action for injuries caused by defective products was recognized at common law, long before Arizona‘s constitution was established“). Conversely, in Cronin we found the clause did not apply because the specific harm (wrongful termination of employment in violation of public policy) was incognizable at statehood. 195 Ariz. at 539 ¶ 39. In Dickey, we found the clause did not apply to a negligence action that could not have been raised against a specific type of defendant (a city allowing the public to use land for recreational purposes) at the time of statehood. 205 Ariz. at 6 ¶ 23.
¶18 Having reaffirmed that the anti-abrogation clause only applies to rights of action that existed at common law in 1912 or that are based in such rights, we turn to whether the clause insulates dram-shop actions from legislative control.
B. Dram-Shop Liability.
¶19 In 1983, this Court held in Ontiveros “that the common law doctrine of tavern owner nonliability is abolished in Arizona” and recognized a common law dram-shop action. 136 Ariz. at 513. In so doing, the Court examined “[t]he seminal cases in Arizona” on dram-shop liability
and concluded that “the rule of nonliability for tavern owners has been the common law in Arizona.” Id. at 504; see also Pratt v. Daly, 55 Ariz. 535, 537-44, 546 (1940) (surveying pre-statehood caselaw on the subject and creating a narrow exception to dram-shop nonliability), overruled by Ontiveros, 136 Ariz. at 507-08; Collier v. Stamatis, 63 Ariz. 285, 290 (1945) (“[I]t has been held by all the courts and by every commentator that the proximate cause . . . of . . . voluntary intoxication is the act of the drinker, and not the act of the seller of the beverage. The principle is epitomized in the truism that there may be sales without intoxication, but no intoxication without drinking.“), overruled by Ontiveros, 136 Ariz. at 507-08. The Court then overruled caselaw standing “for the proposition that the negligence of a tavern owner in continuing to serve liquor to a patron who is or has become intoxicated can never be the legal cause of a subsequent accident.” Ontiveros, 136 Ariz. at 507-08 (overruling, among others, Pratt and Collier).
¶20 After overruling Arizona‘s common law doctrine of dram-shop nonliability, the Ontiveros Court recognized a common law dram-shop action: “Tavern owners . . . may be held liable when they sell liquor to an intoxicated patron or customer under circumstances where the licensee or his employees know or should know that such conduct creates
¶21 The legislature responded by enacting
¶22 In 1995, the court of appeals considered whether
¶23 By contrast, the court of appeals in this case disagreed with the Young court and held that the anti-abrogation clause does not extend to dram-shop actions. Torres II, 253 Ariz. at 77 ¶ 39. It decided that “[e]ven if Young was correct in determining
¶24 We agree with the court below and overrule Young‘s contrary holding. Ontiveros explicitly found that dram-shop liability was rejected by pre-statehood common law and overruled Arizona precedents recognizing the common law rule of dram-shop nonliability. 136 Ariz. at 507-08. Plaintiffs here do not argue that Ontiveros‘s analysis was incorrect, and we see no reason to depart from it. An injured person at statehood could not sue this specific type of defendant—a liquor licensee—for damages caused by an overserved patron.3
¶25 Dram-shop actions are sui generis. Despite common elements of proof, they are not, as the dissent argues, simple negligence actions. The right of action hinges on the nature of the injury and the defendant—a nuance that this Court has discerned in other contexts. See, e.g., Frohmiller, 60 Ariz. at 468-69 (“[S]ome of the states have held that an occupational disease falls within the common law liability of an employer who is guilty of negligence, but when the constitution of this state was adopted occupational diseases had neither a common law
¶26 The doctrine of sovereign immunity is not sacrosanct: just as dram-shop nonliability was a judicially created common law rule, “the doctrine of sovereign immunity was originally judicially created” and “having been engrafted upon Arizona law by judicial enunciation may properly be changed or abrogated by the same process.” Stone v. Ariz. Highway Comm‘n, 93 Ariz. 384, 393 (1963). In overturning the doctrine, the Court in Stone noted that State v. Sharp, 21 Ariz. 424 (1920), was “[t]he first case in Arizona” to hold a sovereign immune from tort liability and did so “[w]ithout examining any real basis or reason for sustaining the doctrine” beyond its historical use. Stone, 93 Ariz. at 389. Subsequent decisions in the period between Sharp and Stone “followed the rule without arriving at any basis other than that of stare decisis.” Id. The dissent references a comparison to Washington state constitutional law, but this Court has acknowledged that “[i]n other states, including Arizona, the court, rather
nonliability for tavern owners [was] the common law in Arizona,” id. at 504, and (2) that Court‘s decision, in light of evolving standards of causation, to overrule numerous cases establishing the common law rule of dram-shop nonliability, id. at 507-08.
than the legislature, abolished the judicially-created doctrine of sovereign immunity.” Clouse ex rel. Clouse v. State, 199 Ariz. 196, 201 ¶ 18 (2001).
¶27 A plaintiff could sue a city-defendant for negligence in 1912, but governmental immunity would ultimately bar the plaintiff‘s recovery as a matter of law. See, e.g., Morrell, 16 Ariz. at 512 (involving this scenario). Similarly, a 1912 plaintiff could sue a dram shop for injuries caused by a patron who was overserved—however, the doctrine of dram-shop nonliability would ultimately bar the plaintiff‘s recovery as a matter of law. If the anti-abrogation clause does not extend to the city-defendants in Morrell and Dickey because they would have been immune from tort liability at the time of statehood, see Morrell, 16 Ariz. at 517; Dickey, 205 Ariz. at 6 ¶ 23, it makes little sense to extend it to liquor licensees who also would have not been liable in 1912 for injuries caused by overserved patrons.
¶28 In sum, dram-shop actions are not based in a right of action recognized by our pre-statehood common law and are outside the scope of the anti-abrogation clause. Consequently, the legislature‘s limitation of dram-shop liability to actions brought under
III. CONCLUSION
¶29 We vacate the court of appeals’ decision but affirm its ruling and remand to the trial court for entry of judgment in favor of JAI.
BOLICK, J., concurring:
¶30 I concur fully in the Court‘s well-reasoned decision. I write separately to further address the dissent, which urges us to assert expansive policymaking powers that are reserved by the Arizona Constitution to the people and their elected representatives. See Cave Creek Unified Sch. Dist. v. Ducey, 233 Ariz. 1, 4 ¶ 8 (2013) (“The legislature and electorate ‘share lawmaking power under Arizona‘s system of
¶31 The dissent relies heavily on stare decisis, thus implying excess on the part of the majority in upholding a statute grounded in the state‘s police power. But even to the extent it finds support in precedent, the dissent greatly aggrandizes judicial policymaking power. It proceeds from the premise that the judiciary‘s power to “evolve” common law is “plenary.” Infra ¶ 63. See Plenary, Random House Webster‘s College Dictionary (2nd ed. 1997) (“full; complete; entire; absolute; unqualified“). Thus, in the dissent‘s view, so long as the resulting rule derives from a generic tort recognized at statehood (here, negligence), the judiciary possesses unbounded power to create new duties, liabilities, and damages; not only those that did not exist when our state was established, but even those that were actually prohibited. Even beyond that, through an overly expansive application of
¶32 The dissent is correct that proper development of the common law is inherent in the judicial power. For hundreds of years, the English common law developed gradually, based on discovery of rules necessary to govern human affairs. See Gamble v. United States, 139 S. Ct. 1960, 1983-84 (2019) (Thomas, J., concurring) (“Common law doctrines, as articulated by judges, were seen as principles that had been discovered rather than new laws that were being made. It was the application of the dictates of natural justice, and of cultivated reason, to particular cases.” (cleaned up)). But the unfettered judicial development of common law, as the late Justice Antonin Scalia observed, was eventually constrained by “a trend in government that has developed in recent centuries, called democracy.” Antonin Scalia, A Matter of Interpretation 7 (1997) (hereinafter Matter of Interpretation). In a
democracy, judges no longer enjoyed unalloyed power to develop common law, because “judges are no longer agents of the king, for there are no kings.” Id.
¶33 Along with American republican democracy came a constitutional separation of powers. In Arizona, that separation is explicit, and so central to our system of government that an entire constitutional article is dedicated to the clear one-sentence command: “The powers of the government of the state of Arizona shall be divided into three separate departments, the legislative, the executive, and the judicial; and, except as provided in this constitution, . . . no one of such departments shall exercise the powers properly belonging to either of the others.”
¶34 In both the federal and state constitutional settings, the primary policymaking power resides, unquestionably, in the legislature (although in Arizona, the people are also empowered to exercise legislative power). See State v. Hansen, 215 Ariz. 287, 289 ¶ 9 (2007) (“Under the Arizona Constitution, the legislature possesses those powers ‘not expressly prohibited or granted to another branch of government.‘” (quoting Adams v. Bolin, 74 Ariz. 269, 283 (1952))); State v. Ariz. Mines Supply Co., 107 Ariz. 199, 204 (1971) (observing that the legislature exercises the state‘s police power).
¶35 Our Constitution does not expressly invest the judiciary with the power to create
law only so far as it is . . . not repugnant to or inconsistent with . . . the constitution or laws of this state.”
¶36 In an opinion joined by the dissenting justice, we recently applied this appropriately modest approach to judicial policymaking in the common law context. In Quiroz v. ALCOA Inc., 243 Ariz. 560 (2018), we observed that “[i]n Arizona, our primary source for identifying a duty based on public policy is our state statutes.” Id. at 566 ¶ 18. We cited approvingly the following principle demarcating the respective policymaking roles of the legislature and judiciary:
The declaration of “public policy” is primarily a legislative function. The courts unquestionably have authority to declare a public policy which already exists and to base its decisions upon that ground. But in the absence of a legislative declaration of what that public policy is, before courts are justified in declaring its existence such public policy should be so thoroughly established as a state of public mind, so united and so definite and fixed that its existence is not subject to any substantial doubt.
Id. at 566 ¶ 19 (quoting Ray v. Tucson Med. Ctr., 72 Ariz. 22, 35-36 (1951)). By contrast, the decisions cited by the dissent that purportedly invoke open-ended judicial power to “evolve” common law do not even pause to consider the separation of powers ramifications of usurping, displacing, or subjugating the legislature‘s policymaking role. Although we should always accord due deference to past decisions, our oath as judges is to the Constitution, not to the stare decisis doctrine. Thus, as an opinion by my dissenting colleague observes, we should overturn prior cases if they are clearly erroneous or manifestly wrong. Laurence v. Salt River Project Agric. Improvement & Power Dist., 255 Ariz. 95, ___ ¶¶ 17-20 (2023) (overturning
multiple past opinions in the tort law context). Indeed, I cannot think of a more “compelling reason” for doing so, id. ¶ 20, than when the prior decisions transgress the constitutional boundaries of our own power.
¶37 The dissent, relying on past opinions to that effect, asserts that what up-ends legislative hegemony in favor of vast and immutable judicial policymaking power is
¶38 But this provision, while important, does not carry the freight the dissent or prior opinions load upon it. If the Constitution‘s framers wanted to divest the legislature of significant authority, locate it instead in the judiciary, and render it largely unchangeable, they chose a curious place and odd verbiage to do so.
¶39 The dissent asserts this provision was so important that the framers “repeated it when declaring individual rights.” Infra ¶ 55. Not so.
¶40 Similar language appears in
¶41 “When construing a constitutional provision, we seek to give terms the original public meaning understood by those who used and approved them,” read in their overall context. Matthews v. Indus. Comm‘n, 254 Ariz. 157, 174 ¶ 29 (2022). One would think that a companion to
¶42 The positioning of section 6 within
¶43 It turns out that was exactly what the framers intended. In a definitive law review article addressing this precise topic, University of Arizona law professor Roger C. Henderson accomplished what this Court has never even attempted: a deep historical analysis of the aims and sequence of events that led to the adoption of
¶44 Professor Henderson recounts that the “main concern” at the time of constitutional ratification “was the plight of the worker who, when injured on the job, was faced with a formidable trilogy of defenses—fellow-servant doctrine, assumption of risk, and contributory negligence—when a tort action was brought against the employer.” Id. at 608; see also
servant, so far as it affects the liability of a master for injuries to his servant resulting from the acts or omissions of any other servant or servants“). What became
¶46 Stare decisis may support a broader scope for
slip op. at 20-21 ¶ 39 (Ariz. Oct. 16, 2023). By allowing such rulings to stand, we would continue to license ourselves to exercise legislative powers that we do not possess.
¶47 In addition to preventing any branch of government from accreting too much power, separating legislative and judicial powers reflects the lesson that each branch is manifestly unsuited to exercise the powers of the other except in narrowly specified instances (such as legislative impeachment powers or judicial rulemaking powers). In particular, the judicial forum is especially inappropriate for rendering major policy decisions. In a typical case, we have before us only two parties, who seek their own ends and cannot possibly represent the vast range of interests implicated by most major policy decisions. We are unequipped to weigh such competing interests, and in fact should insulate ourselves from considerations outside the dispute before us and the governing law. Our decisions are typically fact-bound, they cannot and do not anticipate all possible applications.
¶48 By contrast, the legislative process is designed to take all interests into account, to weigh them and make necessary trade-offs, and to produce rules to govern a wide range of situations. See Ariz. Minority Coal. for Fair Redistricting v. Ariz. Indep. Redistricting Comm‘n, 220 Ariz. 587, 595 ¶ 20 (2009) (stating that we exercise legislative deference “not only because legislative enactments originate with a coequal branch of government, but also because that institution is far better equipped than the judiciary to amass and evaluate the vast amounts of data bearing upon legislative questions” (internal quotation marks omitted) (quoting Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180, 195-96 (1997))). And those rules are apt to be altered based on subsequent experience, whereas correcting flawed jurisprudence requires costly and time-consuming litigation and is bound by stare decisis.
¶49 Thus, when my dissenting colleague laments the possible ramifications of our decision, infra ¶ 82, she may be entirely right; but those concerns are properly directed to the legislature, not to us. Far worse than judicial restraint in these circumstances is a judiciary that makes sweeping public-policy pronouncements that, by the dissent‘s reckoning,
¶50 How then do we appropriately reconcile the judiciary‘s residual common law powers and duty to enforce constitutional provisions with the legislature‘s policymaking authority? In the first instance, as the dissent suggests, we must apply
¶51 Beyond that, the courts have authority to apply the common law to new circumstances and to adopt new rules, but in so doing we are subject to legislative authority to modify our handiwork.
¶52 Justice Scalia reminded that “once we have taken this realistic view of what common-law courts do, the uncomfortable relationship of common-law lawmaking to democracy (if not to the technical doctrine of separation of powers) becomes apparent.” Matter of Interpretation, supra, at 10. The dissent would subordinate our express separation of powers to an overly expansive view of the judiciary‘s implied powers. With great respect to my dissenting colleague, I think the Court today strikes the right and necessary balance.
TIMMER, V.C.J., dissenting:
¶53 The majority errs, in my view, by equating nonliability for tavern owners under a pre-statehood negligence cause of action with the absence of a “right of action” protected by
A. A Common Law Dram-Shop Action Is Protected By The Anti-Abrogation Clause.
¶54 The anti-abrogation clause provides that “[t]he right of action to recover damages for injuries shall never be abrogated,” thereby guaranteeing that people will have unhindered access to courts to adjudicate injury claims.
¶56 In short, the anti-abrogation clause “constitutionalize[d] the right to obtain access to the courts and a remedy for damages sustained.” Boswell, 152 Ariz. at 13; see also Ruth v. Indus. Comm‘n, 107 Ariz. 572, 575 (1971) (“The case law is replete with the history of the [anti-abrogation clause]” and reveals that the clause “was enacted to elevate the common law action of negligence to constitutional stature to preserve the rightinviolate.“); Moseley v. Lily Ice Cream Co., 38 Ariz. 417, 420 (1931) (finding “no question” that the common law action for negligence is a constitutional action that “cannot be abrogated by the Legislature“); Alabam‘s Freight Co. v. Hunt, 29 Ariz. 419, 443 (1926) (recognizing that “the common-law action of negligence” is “imbedded in the Constitution“). Arizonans have jealously guarded the anti-abrogation clause and its article 2 companion clause, defeating proposals in 1986, 1990, and 1994 to amend the constitution to give the legislature authority to curb the clauses’ effects, including “limit[ing] damage awards and causes of action in ordinary negligence cases (the 1986 amendment).”5 Leshy at 387.
¶57 The pivotal issue here involves determining which rights of action are “constitutionalized” under the anti-abrogation clause. We do not write on a blank slate, because we have confronted the topic many times. See, e.g., Cronin v. Sheldon, 195 Ariz. 531, 538–39 ¶¶ 33–39 (1999); Hazine v. Montgomery Elevator Co., 176 Ariz. 340, 343–44 (1993); Bryant v. Cont‘l Conveyor & Equip. Co., 156 Ariz. 193, 195 (1988), overruled by Hazine, 176 Ariz. at 344; Boswell, 152 Ariz. at 13.
¶58 This Court interprets the anti-abrogation clause “broadly and unrestrictively,” Cronin, 195 Ariz. at 538 ¶ 35, and we have repeatedly recognized that the “right of action” protected by the anti-abrogation clause “is not limited to those elements and concepts of particular actions which were defined in our pre-statehood case law.” Boswell, 152 Ariz. at 17–18 (extending anti-abrogation clause protection to emotional distress damages, although such damages were first recognized post-statehood); see also Hazine, 176 Ariz. at 344–45 (recognizing that although a strict products liability action did not exist at statehood, the anti-abrogation clause protected the right to bring it); Humana Hosp. Desert Valley v. Superior Court, 154 Ariz. 396, 399 (App. 1987) (concluding that a negligent supervision cause of action is protected by the anti-abrogation clause even though the action was first recognized in 1972); Franks v. U.S. Fid. & Guar. Co., 149 Ariz. 291, 299–300 (App. 1985) (extending anti-abrogation clause protection to the tort of bad faith, although this cause of action was not recognized until 1981). Thus, the majority overstates matters, in my view, by asserting that for “over a century of jurisprudence, this Court has never extended theanti-abrogation clause‘s protections to rights of action incognizable at statehood.” See supra ¶ 9.
¶59 Importantly, however, the protected “right of action” does not envelop all tort causes of action existing today. See Cronin, 195 Ariz. at 538–39 ¶¶ 35–36. Instead, it includes only “tort actions that ‘either existed at common law or evolved from rights recognized at common law.‘” Dickey ex rel. Dickey v. City of Flagstaff, 205 Ariz. 1, 3 ¶ 9 (2003) (quoting Cronin, 195 Ariz. at 539 ¶ 39).
¶60 I disagree with my colleagues that the common law dram-shop cause of action this Court recognized in Ontiveros v. Borak, 136 Ariz. 500, 513 (1983), is not a “right of action” protected by the anti-abrogation clause. Despite its unique name, the action is just one for simple negligence. It seeks compensation from a liquor licensee who creates a dangerous situation by overserving an already intoxicated patron who then drives and injures or kills someone. See id. Success depends on proving negligence elements memorized by all first-year law school students: duty, breach, causation, damages. See id. A simple negligence action to recover compensation for physical injuries indisputably existed at statehood. See, e.g., S. Pac. Co. v. Hogan, 13 Ariz. 34 (1910); see also Bryan v. S. Pac. Co., 79 Ariz. 253, 256 (1955) (describing simple negligence as “involv[ing] the creation of an unreasonable risk of bodily harm to another“); cf. Indus. Comm‘n v. Frohmiller, 60 Ariz. 464, 468–69 (1943) (disallowing constitutional protection for recovering damages due solely to an occupational disease rather than physical injury because no such right of action existed at statehood). Consequently, a claim that a liquor licensee owed a duty to the traveling public and breached that duty by overserving alcohol to a customer who, as a result, drove while impaired and struck and injured or killed another person is a right of action protected by the anti-abrogation clause. See Dickey, 205 Ariz. at 3 ¶ 9.
¶61 The majority concludes that a common law dram-shop cause of action is not a protected right of action because it was newly created in 1983 when Ontiveros recognized its viability, and, therefore it cannot be based on a pre-1912 cause of action. See supra ¶ 24. As support, the majority points to the Ontiveros Court‘s acknowledgment that at common law a tavern owner could not be found liable for injuries caused by an intoxicated patron. See id.; Ontiveros, 136 Ariz. at 504. The majority finds that a common law dram-shop cause of action falls outside the anti-abrogationclause‘s guarantee because “[a]n injured person at statehood could not sue this specific type of defendant—a liquor licensee—for damages caused by an overserved patron.” See supra ¶ 24.
¶62 Respectfully, I believe the majority is mistaken for several reasons. First, nonliability is not the same as the absence of a right of action. The negligence cause of action existed before 1912. But as the Ontiveros Court explained, “concepts of causation” insulated
¶63 Second, the majority‘s view fails to credit the Court‘s ability to develop elements underlying a common law negligence action “when changed conditions and circumstances establish that it is unjust or has become bad public policy.” See id. at 504. As we stated in Cronin, a case the majority cites repeatedly: “The common law is and has been a product of the courts for hundreds of years. To adopt the common law is, by definition, to adopt the plenary role of the judiciary in its continuing development. Courts also participate in the development of public policy.” 195 Ariz. at 537 ¶¶ 26–27; see also Boswell, 152 Ariz. at 17 (“Although [the anti-abrogation clause] preserves common law rights, our common law is not frozen as of 1912.“).
¶64 Thus, at statehood, the framers fully expected the Court to develop then-existing common law causes of action, molding them to fit modern situations unimagined in 1912. Boswell, 152 Ariz. at 17. There was no need for the framers to explicitly “vest[] in this Court the power to develop common law,” as the majority suggests, see supra ¶ 15, just as there was no need to explicitly vest this Court with the power to declare acts of other branches unconstitutional (judicial review). See Leshy at 18 (stating that the “power of judicial review . . . was assumed by the framers to exist, although it was not expressly provided for in the constitution itself“). It was a given. Significantly, the anti-abrogation clause contains no language limiting its application to rights of action only as evolved in 1912. See Boswell, 152 Ariz. at 13 (“The constitutional text being unrestricted, it would be inappropriate for this court to restrict the guarantee by adding words oflimitation ‘contrary to the plain language used.‘” (quoting Kilpatrick, 105 Ariz. at 419–20)).
¶65 Ontiveros found that causation concepts had evolved to a rule allowing a liquor licensee to be held liable in appropriate circumstances for overserving a patron who later injures someone due to impairment.6 136 Ariz. at 506. Applying this evolved understanding of causation to overturn the rule of nonliability neither created a new cause of action nor removed negligence claims against tavern owners from the anti-abrogation clause‘s protection. See Hazine, 176 Ariz. at 343–44 (“The evolution of common law causes of action—whether in duty, standard of care, or damages—falls within the broad coverage of [article 18, section 6].“); see also Cronin, 195 Ariz. at 539 ¶ 39 (“[T]he anti-abrogation clause applies only to tort causes of action that either existed at common law or evolved from rights recognized at common law.“).
¶66 The majority dismisses Boswell‘s and Hazine‘s conclusions that the anti-abrogation clause applies to pre-statehood causes of action as evolved after 1912 as incorrect dicta. See supra ¶ 14. I disagree. Despite the majority‘s characterization, neither case held that the anti-abrogation clause extends to protect all tort causes of action, whatever their origins. See Cronin, 195 Ariz. at 539 ¶ 36 (“What we did not do in Hazine, however, is extend constitutional
¶67 My colleagues’ snub of Boswell and Hazine also confuses me, as the majority relies on Dickey to conclude that the anti-abrogation clause protects rights of action that “find their ‘basis in the common law at the time the constitution was adopted.‘” See supra ¶ 8 (quoting Dickey, 205 Ariz. at 3 ¶ 9). But Dickey equated actions based in the common law at statehood with those that “evolved from rights recognized at common law.” Dickey, 205 Ariz. at 3 ¶ 9 (quoting Cronin, 195 Ariz. at 539 ¶ 39). Notably, Dickey also relied on Boswell for this principle. See id. Despite the majority‘s professed adherence to Dickey, its rejection of Boswell and Hazine, and its conclusion that an action is only based on a pre-statehood right of action if “a plaintiff alleging the same harm could have recovered damages against the same type of defendant at statehood,” see supra ¶ 16, leaves me skeptical whether any causes of action that are based in pre-1912 causes of action are constitutionally protected as the framers intended.
¶68 I also disagree with the majority that Boswell‘s and Hazine‘s conclusions that the anti-abrogation clause applies to causes of action evolved from pre-statehood actions is dicta. See supra ¶ 14. “Statements and comments in an opinion concerning some rule of law or legal proposition not necessarily involved nor essential to [the] determination of the case in hand are obiter dicta, and lack the force of an adjudication.” Barrows v. Garvey, 67 Ariz. 202, 206 (1948) (quoting Obiter Dicta, Black‘s Law Dictionary (3d ed. 1933)). The statements in Boswell and Hazine concerning evolution formed the basis for their holdings that the anti-abrogation clause protected the plaintiffs’ rights of action in those cases. Thus, in Hazine, the Court concluded that the anti-abrogation clause protected a strict liability products liability action, even though that cause of action did not exist at statehood. See Hazine, 176 Ariz. at 344–45. And in Boswell, the Court foundthat the plaintiff‘s action to recover for emotional distress in a defamation case was protected, even though Arizona courts did not permit this damages remedy until 1922. See Boswell, 152 Ariz. at 17–18.
¶69 Importantly, even if I disagreed with Hazine and Boswell, because they were not “clearly erroneous or manifestly wrong,” I would adhere to the reasoning in these cases under principles of stare decisis. See Laurence v. Salt River Project Agric. Improvement & Power Dist., 255 Ariz. 95, — ¶ 17 (2023) (quoting State v. Agueda, 253 Ariz. 388, 391–92 ¶ 20 (2022)). This is particularly so as many cases over several decades have relied on these cases for the contested principle. See, e.g., Dickey, 205 Ariz. at 3 ¶ 9; Cronin, 195 Ariz. at 538–39 ¶ 35; Goodman v. Samaritan Health Sys., 195 Ariz. 502, 506 ¶ 17 (1999); Humana Hosp. Desert Valley, 154 Ariz. at 399.
¶70 The majority contends that stare decisis is not implicated because it agrees with the ultimate outcomes in Hazine and Boswell and therefore does not overrule either case. See supra ¶ 14. With respect, it is difficult to comprehend how the majority can refrain from overruling these cases, at least in part, as they concerned a cause of action (Hazine)
¶71 Third, the majority unpersuasively analogizes common law dram-shop actions to the negligence actions at issue in Dickey and Morrell v. City of Phoenix, 16 Ariz. 511 (1915), superseded by statute as stated in City of Phoenix v. Williams, 89 Ariz. 299, 33 (1961), which this Court determined fell outside the anti-abrogation clause‘s guarantee. See supra ¶ 25. Both Dickey and Morrell concerned tort actions filed against cities, not a private entity like JAI. See Dickey, 205 Ariz. at 2 ¶ 4; Morrell, 16 Ariz. at 512. The Court in both cases found that the negligence actions were not protected by the anti-abrogation clause because people did not have a right of action against cities at statehood under any tort cause of action. See Dickey, 205 Ariz. at 3 ¶ 9; Morrell, 16 Ariz. at 517. In short, the cities were immune from suit. See Dickey, 205 Ariz. at 3 ¶ 9 n.3 (“Although negligence suits certainly have their basis in common law, governments generally enjoyed sovereign immunity from suits sounding in tort, a tradition that carried over to thiscountry.“); see also Ashton-Blair v. Merrill, 187 Ariz. 315, 318 (App. 1996) (“Common law immunities . . . do not abrogate a cause of action but are longstanding public policy determinations that causes of action do not exist in certain privileged situations.“).
¶72 Dickey and Morrell are distinguishable from our case as they turn on the sovereign immunity enjoyed by the city-defendants at statehood rather than the nature of the particular negligence actions. Because in 1912 there was no right of action available to people injured by a city‘s negligence, there was no cause of action in those cases that could evolve and find refuge in the anti-abrogation clause. See Dickey, 205 Ariz. at 5 ¶ 18; Morrell, 16 Ariz. at 513. But the common law rule of nonliability for tavern owners at statehood “was not a rule of immunity.” Ontiveros, 136 Ariz. at 505. A right of action for negligence against non-governmental defendants existed at statehood, so that action, along with its evolved causation element, is constitutionally protected. Dickey and Morrell do not support a contrary conclusion.
¶73 The majority states that this distinction is one “without a difference” because “the doctrine of sovereign immunity was originally judicially created,” so no reason exists why Dickey and Morrell could not have abrogated sovereign immunity so the negligence actions in those cases could be included within the anti-abrogation clause‘s protection. See supra ¶¶ 25–26 (quoting Stone v. Ariz. Highway Comm‘n, 93 Ariz. 384, 393 (1963)). I disagree. In Morrell, the source of the City of Phoenix‘s immunity in territorial days was a legislative directive, not a judicial creation that courts could alter. See Morrell, 16 Ariz. at 512–13, 517 (stating that when the constitution was adopted, the city charter in effect served as a territorial law exempting the city from negligence liability). Dickey did not identify a specific legislative source for the City of Flagstaff‘s pre-statehood immunity but instead relied on Morrell and a treatise recognizing that a city cannot be civilly liable for negligent performance of duties “unless a right of action is given by statute.” Dickey, 205 Ariz. at 3–4 ¶¶ 10–12 (quoting 6 Eugene McQuillin, A Treatise on the Law of Municipal Corporations § 2623 (1913)).
¶74 Also, the Morrell and Dickey Courts could not have abrogated sovereign immunity contrary to the statutory immunities at issue in those cases, as the majority suggests. The constitution‘s “immunity clause” empowers the legislature to “direct by law in what manner and in what courts suits may be brought against the state.”
¶75 My colleagues fear constitutionalizing the evolution of tort common law by appellate courts, contending it would “wrest control” from the legislature and violate our separation of powers. See supra ¶¶ 15, 36. Justice Bolick, in particular, contends I seek to “aggrandize[] judicial policymaking” and “subordinate our express separation of powers” all while giving too much deference to stare decisis. See supra ¶¶ 31, 52. Not so. I simply seek to fulfill the framers’ intent in defining and limiting the powers given to each branch.
¶76 I have not crafted some expansive new principle out of whole cloth. All of us acknowledge that this Court has held many times that the anti-abrogation clause protects rights of action either existing at statehood or that have evolved from such rights of action. The majority and I disagree with the application of this principle here. Justice Bolick goes further by stating we should disregard the cases I rely on to decide that a dram-shop action is protected by the anti-abrogation clause. See supra ¶ 36. He recognizes that “[s]tare decisis may support a broader scope for article 18, section 6 recognized by prior cases,” see supra ¶ 46, yet he chides me for following that important doctrine. But this Court should not readily disregard long-adhered-to cases. As we said earlier this year, “[the] [stare decisis] doctrine is rooted in the public policy that people should be able to rely on judicial precedent to know their rights and order their conduct accordingly.” See Laurence, 255 Ariz. at — ¶ 17. Our prior cases interpreting the anti-abrogation clause should stand unless they are clearly erroneous or manifestly wrong. In my view, my colleagues have not demonstrated this circumstance. See id.
¶77 Justice Bolick also generally describes the judiciary‘s place in our democracy, and then concludes that my interpretation of the anti-abrogation clause violates our constitutional separation of powers. See supra ¶¶ 32, 52. But the Arizona Constitution, unlike the federal constitution, contains a uniquely strong anti-abrogation clause, which limits the powers exercised by all branches, including the judicial branch. Although I agree with Justice Bolick that the common law must generally yield to legislative directives, that is not so for common law tort actions based on pre-statehood rights of action. Our progressive-minded constitutional framers so feared governmental interference with people‘s ability to recover compensation for injuries under common law actions, that they unrestrictedly guaranteed open access to our courts to redress injuries not once but twice. If that was a poor idea, we should leave it to the people to change the constitution.
¶78 In sum, I conclude that the common law dram-shop action is a right of action protected by the anti-abrogation clause. I therefore address whether
B. A.R.S. § 4-312(B) Violates The Anti-Abrogation Clause.
¶79 The legislature may regulate a tort cause of action protected by the anti-abrogation clause if a claimant is left with “reasonable alternatives or choices” to bring the action. See Barrio v. San Manuel Div. Hosp., 143 Ariz. 101, 106 (1984). But the legislature cannot, “under the guise of ‘regulation,’ so affect the fundamental right to sue for damages as to effectively deprive the claimant of the ability to bring the action.” Id. This Court said it best in Barrio: “The intent of our unique constitutional provisions was to enact a ‘different and more advanced’ policy . . . ‘which made it possible to enforce in court a claim for personal injury or death without the necessity of
¶80 I conclude that
¶81 In sum, because
CONCLUSION
¶82 Today‘s decision has significant and regrettable judicial and real-world consequences, not only for the plaintiffs here but for future drunk driving victims and other tort claimants who cannot trace their recovery rights to 1912 under the majority‘s restrictive view of the anti-abrogation clause. As amicus MADD suggests, abrogating the common law dram-shop action “[e]liminat[es] an important, powerful, and longstanding deterrent to businesses pushing last-call pre-closing alcoholic drinks on patrons who have yet to appear intoxicated and are about to leave and get behind the wheel.” And a future legislature may now abolish even the statutory dram-shop action while simultaneously prohibiting renewal of a common law action. The courthouse doors would be closed and locked to the injured seeking compensation. To me, this seems precisely what the framers intended to prevent.
¶83 For all these reasons, and with great respect to my colleagues, I would vacate the court of appeals’ opinion and affirm the superior court‘s judgment in favor of the accident victims’ families.