This is a dramshop case, and we have discussed the case’s history in prior posts. Arizona has a unique anti-abrogation clause in its constitution. The anti-abrogation clause Art. 18 sec. 6 states: “The right of action to recover damages for injuries shall never be abrogated, and the amount recovered shall not be subject to any statutory limitation.”

Chief Justice Brutinel writes this second opinion in Torres. Justice Bolick concurs, and Justice Timmer dissents. The Court’s holding is unless a cause of action was recognized in 1912, it is not protected by the anti-abrogation clause. Reading an opinion by Chief Justice Brutinel gives us the locker room feeling coming off the football field. We know who won, but we feel sweaty and dirty. Nothing elegant about his writing.  “Incognizable” is not a word. Long compounded sentences interspersed with citations or prepositional phrases is, to borrow the football game analogy, running the same play up the middle again and again.

Let’s talk about Justice Bolick’s concurring opinion. Justice Bolick chastises the dissent which he sees “greatly aggrandizes judicial policymaking power.” He tells Justice Timmer she should understand what the word “plenary” means and cites Webster’s College Dictionary. “Even beyond this,” Justice Bolick writes, “through an overly expansive application of article 18, section 6, the dissent takes this vision of constitutionalism: once the judiciary has ratcheted up tort exposure, it can never be ratcheted down – not by the legislature, the people acting in their legislative capacity, or even the judiciary itself.” He then gives a lesson on constitutional law and sets in concrete his view on judicial restraint.

In Justice Timmer’s dissent, she emphasizes stare decisis and what rights of action are “constitutionalized” under the anti-abrogation clause. If she is guilty of being a visionary, she does a poor job of retelling her vision and spends too much time arguing. Justice Timmer emphasizes a line of cases holding the anti-abrogation clause includes tort actions that either existed at the common or evolved from such rights. This may be a very small crack, as Justice Timmer suggests at the end, in what otherwise is now a closed door. 

link to opinion