The Arizona Supreme Court made surprisingly quick work of what at first appeared to be a complex legal conundrum in Torres v. JAI Dining Services.[1] The case concerned the Arizona Constitution’s “anti-abrogation” clause, which forbids the legislature from “abrogat[ing]” any “right of action to recover damages for injuries.”[2] Does this prohibition—which was adopted in 1912—shield from legislative interference only those legal avenues of recovery that existed in 1912? Or does it block lawmakers from repealing or overriding causes of action that courts have recognized in the years since? 

The Torres case involved “dram-shop” liability—that is, the liability of a tavernkeeper for injuries caused by an intoxicated person to whom the tavernkeeper served an excessive amount of alcohol. The Arizona Supreme Court recognized this theory of liability for the first time in a 1983 case called Ontiveros v. Borak.[3] The Ontiveros court acknowledged that innkeepers were not liable for such injuries in 1912, yet it never claimed to be creating a brand-new legal theory. The court simply said that dram-shop liability is a species of negligence, and that although tavernkeepers had traditionally enjoyed immunity from that particular tort, the common law is “dynamic” and can “grow and [] tailor itself to meet changing needs within the doctrine of stare decisis.”[4] The rule immunizing barkeepers from liability was itself a judicial invention—and in light of modern circumstances, it was “impossible to imagine why, of all occupations, those who furnish liquor should be singled out for a judicially conferred blessing of immunity to respond in damages for their wrongful acts.”[5] In other words, the Ontiveros court was not writing a new law, but merely acting within the traditional judicial role of applying tort principles to new facts.

The legislature responded to Ontiveros in 1986 by codifying the principle of dram-shop liability.[6] But the new statute limited liability to cases in which a barkeeper serves someone who is “obviously intoxicated,” a higher standard than the common law version of this liability, which merely required that the drinker be so inebriated that it was “unreasonable” to serve him. 

This set the stage, decades later, for the Torres case, in which the jury found a barkeeper liable under the common-law dram-shop theory, but not the statutory theory, because the customer (who killed two people in a drunk-driving collision) was not “obviously intoxicated” when served, but drunk enough that it would create “an unreasonable risk of harm to others” to serve him.[7]

On appeal, the Arizona Supreme Court had to determine whether the statute entirely preempted the common law theory—which, in turn, required it to decide whether such preemption would violate the anti-abrogation clause. That, said the justices in a 6-1 ruling, was an easier question than it might seem, because the anti-abrogation clause applies solely to causes of action recognized by courts in 1912.  Since even Ontiveros conceded that dram-shop liability did not exist then, the clause did not bar the legislature from substituting the statute—with its more demanding evidentiary burden—for the common law action recognized in 1983.

But Vice Chief Justice Ann Timmer, writing in dissent, thought this easy answer was too easy. She argued that, “[d]espite its unique name,” dram-shop liability “is just [an action] for simple negligence,” and “a simple negligence action to recover compensation for physical injuries indisputably existed at statehood.”[8]  She conceded that the general rule in 1912 was that tavernkeepers enjoyed immunity for that type of negligence, but nothing in the constitution’s anti-abrogation clause froze such immunity in place. On the contrary, she wrote, the authors of the anti-abrogation clause were entirely comfortable with the idea of courts “develop[ing] then-existing common law causes of action, molding them to fit modern situations unimagined in 1912.”[9]

Justice Clint Bolick responded to the Vice Chief Justice in a concurrence. He argued that, under Timmer’s theory, “so long as the resulting [liability] 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”—and these new liabilities would enjoy constitutional sanctity.[10] This, he concluded, was a form of “living constitutionalism” that would contradict democratic principles.[11] But as Vice Chief Justice Timmer observed, the “progressive-minded” authors of Arizona’s Constitution expressly chose to limit democratic power in this respect—precisely because they “feared governmental interference with people’s ability to recover compensation for injuries under common law actions.”[12] What’s more, plentiful democratic checks on Arizona courts remain: the initiative process can override unpopular judicial decisions, and Arizona judges are subject to retention elections.

Although seemingly simple, Torres touches on one of the most charged of all constitutional tensions: on one hand, the fact that the principles of reason underlying the law must apply differently in different contexts, and on the other, the constitution’s role in limiting that evolution to ensure the safety and happiness of the people.

[1] 536 P.3d 790 (Ariz. 2023).

[2] Ariz. Const. art. XVIII, § 6.

[3] 667 P.2d 200 (Ariz. 1983).

[4] Id. at 204 (citations omitted).

[5] Id. at 205.

[6] A.R.S. §§ 4-311, 4-312.

[7] Torres, 536 P.3d at 792 (emphasis added).

[8] Id. at 805 (Timmer, V.C.J., dissenting).

[9] Id. at 806 (Timmer, V.C.J., dissenting).

[10] Id. at 799 (Bolick, J., concurring).

[11] Id.

[12] Id. at 809 (Timmer, V.C.J., dissenting).


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