Clouse ex rel. Clouse v. State

Citation199 Ariz. 196,16 P.3d 757
Decision Date01 February 2001
Docket NumberNo. CV-99-0023-PR.,CV-99-0023-PR.
PartiesMerlin 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.
CourtSupreme Court of Arizona

Coppersmith, Gordon, Schermer, Owens & Nelson, P.L.C. by Andrew S. Gordon and Kristen B. Rosati, Phoenix, for plaintiffs Clouse and Salinas.

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 Arizona Revised Statutes Annotated (A.R.S.) section 12-820.02.A.1, which provides qualified immunity to public entities and employees for an employee's failure to retain an arrested person in custody. We conclude that the legislature acted within the power granted it by article IV, part 2, section 18 of the Arizona Constitution.


¶ 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 survived. In the ensuing manhunt, Van Horn shot Deputy Lisandro Salinas, a New Mexico peace officer, who survived.

¶ 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 A.R.S. section 12-820.02.A.1, which requires proof of gross negligence on this claim.2 Plaintiffs then moved for partial summary judgment, arguing that because the statute eliminates simple negligence claims, it violates the anti-abrogation clause of the Arizona Constitution. See ARIZ. CONST. art. XVIII, § 6. The trial judge denied the motion. At the close of evidence, the court submitted the claims against the county and state defendants to the jury with only a gross negligence instruction.

¶ 6 The jury found against the county defendants and in favor of the state defendants.3 On review, the court of appeals agreed that A.R.S. section 12-820.02.A.1 does not violate the anti-abrogation clause. Plaintiffs then petitioned this court for review.

¶ 7 We exercised jurisdiction pursuant to article VI, section 5.3 of the Arizona Constitution, Rule 23 of the Arizona Rules of Civil Appellate Procedure, and A.R.S. section 12-120.24. After publishing our opinion, we granted motions to intervene and for clarification filed by amicus curiae, vacated our earlier opinion by order, and filed this amended opinion.4


¶ 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, the state argues, a more specific provision of the constitution, article IV, part 2, section 18 (the immunity clause) empowers the legislature to enact the challenged statute.

¶ 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.


¶ 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 A.R.S. sections 12-820 to 12-826. "The legislation provides for absolute immunity, qualified immunity, and affirmative defenses in favor of public entities and public employees. The level of immunity or affirmative defense available to a public employee in a particular action depends upon the nature of the activity giving rise to the potential liability." James L. Conlogue, Note, A Separation of Powers Analysis of the Absolute Immunity of Public Entities, 28 ARIZ.L.REV. 49, 49 (1986).

¶ 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 re-establish, the parameters of governmental liability. See 57 AM.JUR.2d Municipal, County,...

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