sovereign immunity in Arizona

2023This is a distinction without a difference. ¶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).

2014Clouse v. State, 199 Ariz. 196 , 16 P.3d 757 (2001) (3-2 decision); Stone v. Ariz. Highway Comm’n, 93 Ariz. 384, 392-93 , 381 P.2d 107, 112-13 (1963), superseded by the Act as stated in Backus v. State, 220 *311 Ariz. 101, 203 P.3d 499 (2009) (same); see also Goss v. City of Globe, 180 Ariz. 229, 232 , 883 P.2d 466, 469 (App.1994) (describing Act’s history). ¶ 14 As the Legislature declared when passing the Act, The [Legislature recognizes the inherently unfair and inequitable results which occur in the strict application of the traditional doctrine of sovereign immunity.

1994In 1963, in Stone v. Arizona Highway Commission, 93 Ariz. 384 , 381 P.2d 107 (1963), our supreme court abolished the doctrine of sovereign immunity and reaffirmed that decision nineteen years later in Ryan v. State, 134 Ariz. 308 , 656 P.2d 597 (1982).

1994In 1963, in Stone v. Arizona Highway Commission, 93 Ariz. 384 , 381 P.2d 107 (1963), our supreme court abolished the doctrine of sovereign immunity and reaffirmed that decision nineteen years later in Ryan v. State, 134 Ariz. 308 , 656 P.2d 597 (1982).

2023In 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.

2001It 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

2001Any other rule would allow those `long dead' to dictate solutions to problems of which they could not have been aware." Id. at 344 , 861 P.2d at 629 (quoting Boswell v. Phoenix Newspapers, Inc., 152 Ariz. 9, 18 , 730 P.2d 186, 195 (1986)). ¶ 37 Therefore, when Stone abolished the sovereign immunity defense, the common law right to recover damages for the sovereign's torts came under the protection of article XVIII, section 6.

2001Any other rule would allow those `long dead' to dictate solutions to problems of which they could not have been aware." Id. at 344 , 861 P.2d at 629 (quoting Boswell v. Phoenix Newspapers, Inc., 152 Ariz. 9, 18 , 730 P.2d 186, 195 (1986)). ¶ 37 Therefore, when Stone abolished the sovereign immunity defense, the common law right to recover damages for the sovereign's torts came under the protection of article XVIII, section 6.

2001See, e.g., Alaska v. O/S Lynn Kendall, 310 F.Supp. 433, 434 (D.Alaska 1970) (“The Constitution of the State of Alaska grants to the Legislature the sole and exclusive power to enact laws establishing the terms and conditions upon which the State may be sued."); Turnbull v. Fink, 668 A.2d 1370, 1374 (Del. 1995) (holding that article I, § 9 of Delaware’s Constitution provides that the only way the state’s sovereign immunity may be waived is by an act of the General Assembly); Donisi v. Trout, 415 So.2d 730, 730 (Fla.Dist.Ct.App. 1981) ("Article X, § 13 of the Florida Constitution provides that t

2001CONST. art. 1, § 8. [8] See, e.g., Alaska v. O/S Lynn Kendall, 310 F.Supp. 433, 434 (D.Alaska 1970) ("The Constitution of the State of Alaska grants to the Legislature the sole and exclusive power to enact laws establishing the terms and conditions upon which the State may be sued."); Turnbull v. Fink, 668 A.2d 1370, 1374 (Del.1995) (holding that article I, § 9 of Delaware's Constitution provides that the only way the state's sovereign immunity may be waived is by an act of the General Assembly); Donisi v. Trout, 415 So.2d 730, 730 (Fla.Dist.Ct.App.1981) ("Article X, § 13 of the Florida Consti

2001See, e.g., Alaska v. O/S Lynn Kendall, 310 F.Supp. 433, 434 (D.Alaska 1970) (“The Constitution of the State of Alaska grants to the Legislature the sole and exclusive power to enact laws establishing the terms and conditions upon which the State may be sued."); Turnbull v. Fink, 668 A.2d 1370, 1374 (Del. 1995) (holding that article I, § 9 of Delaware’s Constitution provides that the only way the state’s sovereign immunity may be waived is by an act of the General Assembly); Donisi v. Trout, 415 So.2d 730, 730 (Fla.Dist.Ct.App. 1981) ("Article X, § 13 of the Florida Constitution provides that t

2001CONST. art. 1, § 8. [8] See, e.g., Alaska v. O/S Lynn Kendall, 310 F.Supp. 433, 434 (D.Alaska 1970) ("The Constitution of the State of Alaska grants to the Legislature the sole and exclusive power to enact laws establishing the terms and conditions upon which the State may be sued."); Turnbull v. Fink, 668 A.2d 1370, 1374 (Del.1995) (holding that article I, § 9 of Delaware's Constitution provides that the only way the state's sovereign immunity may be waived is by an act of the General Assembly); Donisi v. Trout, 415 So.2d 730, 730 (Fla.Dist.Ct.App.1981) ("Article X, § 13 of the Florida Consti

2001The plaintiff’s right to sue the state for the state’s tortious conduct is therefore a matter of legislative grace.”); Vigil v. Ruettgers, 887 P.2d 521, 524 (Wyo.1994) ("We have repeatedly held that Wyo.

2001The plaintiff's right to sue the state for the state's tortious conduct is therefore a matter of legislative grace."); Vigil v. Ruettgers, 887 P.2d 521, 524 (Wyo.1994) ("We have repeatedly held that Wyo.

2001See, e.g., Alaska v. O/S Lynn Kendall, 310 F.Supp. 433, 434 (D.Alaska 1970) (“The Constitution of the State of Alaska grants to the Legislature the sole and exclusive power to enact laws establishing the terms and conditions upon which the State may be sued."); Turnbull v. Fink, 668 A.2d 1370, 1374 (Del. 1995) (holding that article I, § 9 of Delaware’s Constitution provides that the only way the state’s sovereign immunity may be waived is by an act of the General Assembly); Donisi v. Trout, 415 So.2d 730, 730 (Fla.Dist.Ct.App. 1981) ("Article X, § 13 of the Florida Constitution provides that t

2001CONST. art. 1, § 8. [8] See, e.g., Alaska v. O/S Lynn Kendall, 310 F.Supp. 433, 434 (D.Alaska 1970) ("The Constitution of the State of Alaska grants to the Legislature the sole and exclusive power to enact laws establishing the terms and conditions upon which the State may be sued."); Turnbull v. Fink, 668 A.2d 1370, 1374 (Del.1995) (holding that article I, § 9 of Delaware's Constitution provides that the only way the state's sovereign immunity may be waived is by an act of the General Assembly); Donisi v. Trout, 415 So.2d 730, 730 (Fla.Dist.Ct.App.1981) ("Article X, § 13 of the Florida Consti

2001It is not within the power of the courts to amend it."); Haddenham v. Washington, 87 Wash.2d 145 , 550 P.2d 9, 12 (1976) ("Prior to the legislature's abolition of the doctrine of sovereign immunity, tort claimants had no right to sue the state.

2001It is not within the power of the courts to amend it."); Haddenham v. Washington, 87 Wash.2d 145 , 550 P.2d 9, 12 (1976) ("Prior to the legislature's abolition of the doctrine of sovereign immunity, tort claimants had no right to sue the state.

2001Co. v. South Dakota Cement Plant, 349 N.W.2d 407, 410 (S.D. 1984) ("[W]e have consistently held that it is the exclusive province of the legislature and not the courts to. abrogate or limit the doctrine of sovereign immunity."); Austin v. City of Memphis, 684 S.W.2d 624, 637 (Tenn.Ct.App.1984) ("The rule of sovereign immunity in Tennessee is both constitutional and statutory.

2001Co. v. South Dakota Cement Plant, 349 N.W.2d 407, 410 (S.D. 1984) ("[W]e have consistently held that it is the exclusive province of the legislature and not the courts to. abrogate or limit the doctrine of sovereign immunity."); Austin v. City of Memphis, 684 S.W.2d 624, 637 (Tenn.Ct.App.1984) ("The rule of sovereign immunity in Tennessee is both constitutional and statutory.

2001See Deaconess Hosp. v. Washington State Highway Comm'n, 66 Wash.2d 378 , 403 P.2d 54 , 59 *762 (1965).

2001See Deaconess Hosp. v. Washington State Highway Comm'n, 66 Wash.2d 378 , 403 P.2d 54 , 59 *762 (1965).

2001It is only fair to assume that the 1965 Legislature reacted to that trend, and elected to waive immunity within limits and impose a ceiling upon the recovery allowable to a claimant, rather than await further judicial action upon the subject."); Krause v. Ohio, 31 Ohio St.2d 132 , 285 N.E.2d 736, 743 (1972) (Ohio courts have found that art.

2001It is only fair to assume that the 1965 Legislature reacted to that trend, and elected to waive immunity within limits and impose a ceiling upon the recovery allowable to a claimant, rather than await further judicial action upon the subject."); Krause v. Ohio, 31 Ohio St.2d 132 , 285 N.E.2d 736, 743 (1972) (Ohio courts have found that art.

2001See, e.g., Lee v. Dunklee, 84 Ariz. 260, 263-64 , 326 P.2d 1117, 1119 (1958) *763 ("[W]hether the doctrine of governmental immunity should be modified in this state is a legislative question and such policy should be declared and the extent of liability definitely fixed by that body and not by judicial fiat.").

2001See, e.g., Lee v. Dunklee, 84 Ariz. 260, 263-64 , 326 P.2d 1117, 1119 (1958) *763 ("[W]hether the doctrine of governmental immunity should be modified in this state is a legislative question and such policy should be declared and the extent of liability definitely fixed by that body and not by judicial fiat.").

2001Legislative action is necessary to waive the state's sovereign immunity."); Nevada v. Silva, 86 Nev. 911 , 478 P.2d 591, 593 (1970) ("The trend was toward the judicial abolition of that doctrine.

2001Legislative action is necessary to waive the state's sovereign immunity."); Nevada v. Silva, 86 Nev. 911 , 478 P.2d 591, 593 (1970) ("The trend was toward the judicial abolition of that doctrine.

2001Co. v. South Dakota Cement Plant, 349 N.W.2d 407, 410 (S.D. 1984) ("[W]e have consistently held that it is the exclusive province of the legislature and not the courts to. abrogate or limit the doctrine of sovereign immunity."); Austin v. City of Memphis, 684 S.W.2d 624, 637 (Tenn.Ct.App.1984) ("The rule of sovereign immunity in Tennessee is both constitutional and statutory.

2001Co. v. South Dakota Cement Plant, 349 N.W.2d 407, 410 (S.D. 1984) ("[W]e have consistently held that it is the exclusive province of the legislature and not the courts to. abrogate or limit the doctrine of sovereign immunity."); Austin v. City of Memphis, 684 S.W.2d 624, 637 (Tenn.Ct.App.1984) ("The rule of sovereign immunity in Tennessee is both constitutional and statutory.

2021Opinion of the Court states whose constitutions include immunity clauses, most have held that such a provision “‘constitutionalizes’ the doctrine of sovereign immunity and confers upon the legislature the exclusive authority to waive sovereign immunity and that, absent legislative action, suits against the state cannot proceed.” Id. at 200 ¶ 16; see also id. at 200 ¶ 16 n.8 (collecting cases). ¶16 We think New Mexico’s approach is persuasive.

2021Opinion of the Court states whose constitutions include immunity clauses, most have held that such a provision “‘constitutionalizes’ the doctrine of sovereign immunity and confers upon the legislature the exclusive authority to waive sovereign immunity and that, absent legislative action, suits against the state cannot proceed.” Id. at 200 ¶ 16; see also id. at 200 ¶ 16 n.8 (collecting cases). ¶16 We think New Mexico’s approach is persuasive.

1989In deciding the sovereign immunity issue, we necessarily examine the breadth of the “subordinate economic organization” doctrine first recognized by this court in White Mountain Apache Indian Tribe v. Shelley, 107 Ariz. 4 , 480 P.2d 654 (1971).

1989In deciding the sovereign immunity issue, we necessarily examine the breadth of the “subordinate economic organization” doctrine first recognized by this court in White Mountain Apache Indian Tribe v. Shelley, 107 Ariz. 4 , 480 P.2d 654 (1971).

2014Any waiver of an Indian tribe’s sovereign immunity “must be strictly construed in its favor.” Beltran v. Harrah’s Ariz. Corp., 220 Ariz. 29, 35-36 , 202 P.3d 494, 500-01 (App. 2008); S. Unique, Ltd. v. Gila River Pima-Maricopa Indian Cmty., 138 Ariz. 378, 383 , 674 P.2d 1376,1381 (App.1983). ¶ 29 Although the trial court did not address the issue specifically in its ruling, its implied finding that it properly could determine the issue of waiver without collecting further evidence of the board’s and Tribal Council’s actions during 2003 or other years was appropriate.

2014Any waiver of an Indian tribe’s sovereign immunity “must be strictly construed in its favor.” Beltran v. Harrah’s Ariz. Corp., 220 Ariz. 29, 35-36 , 202 P.3d 494, 500-01 (App. 2008); S. Unique, Ltd. v. Gila River Pima-Maricopa Indian Cmty., 138 Ariz. 378, 383 , 674 P.2d 1376,1381 (App.1983). ¶ 29 Although the trial court did not address the issue specifically in its ruling, its implied finding that it properly could determine the issue of waiver without collecting further evidence of the board’s and Tribal Council’s actions during 2003 or other years was appropriate.

2001See Hazine v. Montgomery Elevator Co., 176 Ariz. 340, 343-44 , 861 P.2d 625, 628-29 (1993). *767 Under the common law established in Sharp , the wrong was recognized and the right existed, but the state's liability could not be enforced because of the sovereign immunity defense.

2001See Hazine v. Montgomery Elevator Co., 176 Ariz. 340, 343-44 , 861 P.2d 625, 628-29 (1993). *767 Under the common law established in Sharp , the wrong was recognized and the right existed, but the state's liability could not be enforced because of the sovereign immunity defense.

1969There has been much discussion, by the plaintiffs, of the doctrine of sovereign immunity, and the impact thereon of our decisions in Stone v. Arizona Highway Commission, 93 Ariz. 384 , 381 P.2d 107 ; Veach v. City of Phoenix, 102 Ariz. 195 , 427 P.2d 335 ; and Patterson v. City of Phoenix, 103 Ariz. 64 , 436 P.2d 613 .

1969There has been much discussion, by the plaintiffs, of the doctrine of sovereign immunity, and the impact thereon of our decisions in Stone v. Arizona Highway Commission, 93 Ariz. 384 , 381 P.2d 107 ; Veach v. City of Phoenix, 102 Ariz. 195 , 427 P.2d 335 ; and Patterson v. City of Phoenix, 103 Ariz. 64 , 436 P.2d 613 .

2023JAI DINING VICE CHIEF JUSTICE TIMMER, Dissenting country.”); 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.

2021Not so; although it does apply to federal immunity waivers, Lane v. Pena, 518 U.S. 187, 192 (1996) (“A waiver of the Federal Government’s sovereign immunity must be unequivocally expressed in statutory text and will not be implied.” (citations omitted)), states generally enjoy the same presumption, Sossamon, 563 U.S. at 284–85 (applying identical rule to state immunity waiver). 4 MARCIE A. REDGRAVE V.

2021Not so; although it does apply to federal immunity waivers, Lane v. Pena, 518 U.S. 187, 192 (1996) (“A waiver of the Federal Government’s sovereign immunity must be unequivocally expressed in statutory text and will not be implied.” (citations omitted)), states generally enjoy the same presumption, Sossamon, 563 U.S. at 284–85 (applying identical rule to state immunity waiver). 4 MARCIE A. REDGRAVE V.

2020White Mountain Apache Indian Tribe v. Shelley, 107 Ariz. 4, 7 (1971); see also Inyo Cty. v. Paiute- Shoshone Indians of the Bishop Cmty. of the Bishop Colony, 538 U.S. 701 , 705 n.1 (2003) (“The United States maintains, and the County does not dispute, that the Corporation is an ‘arm’ of the Tribe for sovereign immunity purposes.”).

2020Id. at 259 (“Non-Indians will undoubtedly think long and hard before entering into business relationships with Indian corporations that are immune from suit.”). ¶16 Sorting through Shelley, S. Unique, Dixon, and cases outside Arizona, we identify and adopt six non-exclusive factors to examine in deciding whether an entity is a subordinate economic organization of a tribe, entitling it to share in the tribe’s sovereign immunity: ¶17 (1) The entity’s creation and business form.

2020See Lewis v. Clarke, 137 S. Ct. 1285, 1288 (2017).

2016This court has jurisdiction under Arizona Revised Statutes (“A.R.S.”) sections 12-120.21(A)(1) and -120.21(B). 2 BROWN v. ROBERTSON/YANPD Decision of the Court DISCUSSION ¶5 “Indian tribes have long been recognized as possessing the common-law immunity from suit traditionally enjoyed by sovereign powers.” Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58 (1978); see also Morgan v. Colorado River Indian Tribe, 103 Ariz. 425, 428 (1968) (recognizing tribal sovereign immunity in Arizona).

2016This court has jurisdiction under Arizona Revised Statutes (“A.R.S.”) sections 12-120.21(A)(1) and -120.21(B). 2 BROWN v. ROBERTSON/YANPD Decision of the Court DISCUSSION ¶5 “Indian tribes have long been recognized as possessing the common-law immunity from suit traditionally enjoyed by sovereign powers.” Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58 (1978); see also Morgan v. Colorado River Indian Tribe, 103 Ariz. 425, 428 (1968) (recognizing tribal sovereign immunity in Arizona).