Morales v. Hon coffey/state

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

DAVID MORALES, surviving husband of Cathy Morales, on his own
behalf and on behalf of statutory beneficiaries including GAVIN
CARPENTER, the surviving natural son of Cathy Morales,
Petitioner,

v.

THE HONORABLE RODRICK COFFEY, Judge of the SUPERIOR COURT
OF THE STATE OF ARIZONA, in and for the County of MARICOPA,
Respondent Judge,

STATE OF ARIZONA,
Real Party in Interest,

No. 1 CA-SA 23-0040
FILED 8-10-2023

Petition for Special Action from the Superior Court in Maricopa County
No. CV2019-094321
The Honorable Rodrick J. Coffey, Judge

REVIEW ACCEPTED; RELIEF DENIED

COUNSEL

Ahwatukee Legal Office PC, Phoenix
By David L. Abney
Co-Counsel for Petitioner
The Leader Law Firm PC, Tucson
By John P. Leader
Co-Counsel for Petitioner

Wieneke Law Group PLC, Tempe
By Kathleen L. Wieneke, Tara Zoellner
Counsel for Real Party in Interest

OPINION

Presiding Judge Jennifer M. Perkins delivered the opinion of the Court, in
which Judge Angela K. Paton and Judge D. Steven Williams joined.

P E R K I N S, Judge:

¶1 In July 2018, Cathy Morales lost control of her car while
driving west on Interstate 10 in Pima County. She crossed over the median
strip, collided with an oncoming semi-truck, and died. David Morales, her
husband, and Gavin Carpenter, her son, (collectively, “Morales”), acting as
Cathy’s statutory beneficiaries, sued the State for wrongful death, alleging
it negligently designed the highway and failed to maintain adequate
median separation and median-barrier protection. In this special action,
Morales appeals the superior court’s order bifurcating the trial into Phase I,
addressing the State’s affirmative defense, and Phase II, addressing liability
and damages. The court ordered bifurcation under Section 12-820.03(B).
Morales argues Section 12-820.03(B) is unconstitutional and infringes on
our supreme court’s authority to create rules of procedure.

¶2 We previously issued an order accepting jurisdiction but
denying relief, thereby affirming the superior court’s bifurcation order. This
opinion explains that ruling.

FACTS AND PROCEDURAL BACKGROUND

¶3 By statute, if certain conditions are met, a public entity or
employee may assert an affirmative defense that, if successful, precludes
liability “for an injury arising out of a plan or design for construction or
maintenance of or improvement to transportation facilities[.]” A.R.S. §
12-820.03(A) (“affirmative defense provision”). If there is a genuine issue of
material fact as to whether the public entity or employee met the
requirements for this affirmative defense, subsection B requires the
superior court to resolve that dispute “by a trial before and separate and

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apart from a trial on damages.” A.R.S. § 12-820.03(B) (“bifurcation
provision”).

¶4 Here, the State argued that it was entitled to summary
judgment on Morales’ claims. But if the superior court disagreed, the State
argued, then the court must bifurcate the trial to determine first whether
the State may rely on the affirmative defense provision before conducting
the trial on damages. See A.R.S. § 12-820.03(B). Morales asked the superior
court to find the bifurcation provision unconstitutional.

¶5 The superior court determined that it lacked discretion over
whether to bifurcate the trial, but that it had discretion over how to
accomplish bifurcation. It ordered the first phase on whether the State met
the affirmative defense requirements to begin, with the second phase on
Morales’ claims to follow, if needed. Morales petitioned this Court for
special action relief.

JURISDICTION

¶6 Accepting special action jurisdiction is discretionary, State v.
Hutt, 195 Ariz. 256, 259, ¶ 5 (App. 1999), but appropriate when a party lacks
“an equally plain, speedy, and adequate remedy by appeal,” Ariz. R.P.
Spec. Act. 1(a). This special action presents a pure legal question and an
issue of first impression, two factors that make exercising special action
jurisdiction appropriate. Callan v. Bernini, 213 Ariz. 257, 258, ¶¶ 2, 4 (App.
2006). And Morales’ petition questions the constitutionality of the
bifurcation provision, an issue particularly appropriate for special action
review. Arizonans for Second Chances, Rehab., & Pub. Safety v. Hobbs, 249 Ariz.
396, 404, ¶ 20 (2020).

DISCUSSION

¶7 “We review the constitutionality of a statute de novo,
construing it, if possible, to uphold its constitutionality.” Stanwitz v. Reagan, 245 Ariz. 344, 348, ¶ 13 (2018) (quotation omitted). “The presumption of
constitutionality may require us to interpret a statute to give it a
constitutional construction if possible, but we will not rewrite a statute to
save it.” State v. Arevalo, 249 Ariz. 370, 373, ¶ 9 (2020).

I. The Immunity Clause of Arizona’s Constitution

¶8 Arizona’s Constitution directs that “[t]he legislature shall
direct by law in what manner and in what courts suits may be brought
against the state.” Ariz. Const. art. 4, pt. 2, § 18 (“immunity clause”). The

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State argues that the bifurcation provision falls within the legislature’s
power under the immunity clause. We agree.

¶9 A prominent dictionary in use when the immunity clause was
adopted defines “manner” as “method; mode of action.” Manner, New
Websterian Dictionary (1912); see also Matthews v. Indus. Comm’n of Ariz., 254
Ariz. 157, 175, ¶ 36 (2022) (citing the New Websterian Dictionary with
approval). The Black’s Law Dictionary from that time explains that
“[manner] is a word of large signification, but cannot exceed the subject to
which it belongs.” Manner, Black’s Law Dictionary (2d ed. 1910); see also
State ex. rel. Brnovich v. Ariz. Bd. of Regents, 250 Ariz. 127, 131–32, ¶ 15 (2020)
(approving of the use of Black’s Law Dictionary to interpret statutes). The
term “suit” is defined as “petition or prayer” and “an action or process at
law for the recovery of a right to a claim.” Suit, New Websterian Dictionary
(1912). The plain language of the statute indicates that the legislature’s
power under the immunity clause extends to directing the trial procedure
after a petitioner brings an action against the state.

¶10 Early Arizona cases addressing the immunity clause focused
on the legislature’s power to abrogate sovereign immunity and permit suits
against the state. See, e.g., State v. Miser, 50 Ariz. 244, 256 (1937) (noting that
the legislature allowed claimants to bring suits against the state only after
specified “terms and conditions” had been satisfied); State v. Angle, 56 Ariz.
46, 50 (1940) (observing that the legislature authorized persons to bring
contract and negligence-based claims against the state). But we have
seldom analyzed statutes that guide how “suits may be brought against the
state” after a complaint has been filed. Ariz. Const. art. 4, pt. 2, § 18.

¶11 The immunity clause “confers [express authority] upon the
legislature to define those instances in which public entities and employees
are entitled to immunity.” Clouse ex rel. Clouse v. State, 199 Ariz. 196, 203,
¶ 25 (2001). And we have endorsed the legislature’s exercise of that
authority in directing “the time within which suits against the state must be
commenced,” Rogers v. Bd. of Regents of Univ. of Ariz., 233 Ariz. 262, 269, ¶ 25
(App. 2013) (quotation omitted), and the venue where the suit must be
litigated, Landry v. Superior Court, 125 Ariz. 337, 338 (App. 1980). The change
of venue statute, like the bifurcation provision, removes discretion from the
superior court and sets forth the procedural rules that must be followed
when a complaint is filed against the state. Compare A.R.S. § 12-822(B), with
A.R.S. § 12-820.03(B). See also State v. Superior Court (Hooley), 120 Ariz. 273,
274 (1978) (change of venue statute is mandatory); Dunn v. Carruth, 162
Ariz. 478, 480 (1989) (the immunity clause phrase “in what courts” relates
to the legislature’s power to designate venue).

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¶12 Morales argues that, even if the immunity clause granted the
legislature power to make procedural rules governing “suits against the
state,” the people abrogated that legislative authority by adopting Article
6, § 5(5), which gave our supreme court procedural rulemaking authority
(“rulemaking clause”). See Ariz. Const. art. 6, § 5(5) (adopted via initiative
in 1960). But “[i]t 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.” Clouse, 199 Ariz. at 199,
¶ 11 (quotation omitted).

¶13 The rulemaking clause grants our supreme court authority to
create procedural rules for courts generally. Ariz. Const. art. 6, § 5(5) (“The
supreme court shall have . . . [p]ower to make rules relative to all procedural
matters in any court.”). The immunity clause grants the legislature
authority to direct the manner in which suits can be brought in a specific
and limited circumstance; namely, when they are brought against the
government. See Ariz. Const. art. 4, pt. 2, § 18. And our supreme court
recognizes that the legislature can enact statutes implementing procedural
rules that do not conflict with the supreme court’s rules. Duff v. Lee, 250
Ariz. 135, 138, ¶ 12 (2020).

¶14 The text of the immunity clause does not prohibit the
legislature from directing the trial process for suits brought against the
state. The bifurcation provision is a proper exercise of the legislature’s
authority to direct the “manner” in which “suits may be brought against
the state.”

II. Conflict Between the Statute and the Rule

¶15 Morales argues that the bifurcation provision in Section
12-820.03(B) engulfs Arizona Rule of Civil Procedure (“Rule”) 42 and
infringes on our supreme court’s procedural rulemaking authority. Because
the legislature has special authority to “direct by law in what manner . . .
suits may be brought against the state,” a conflict between the statute and
rule would not invalidate the bifurcation provision. But even if the
legislature lacked that special authority, the statute and rule do not conflict.

¶16 To determine whether a statute infringes on our supreme
court’s procedural rulemaking authority, we evaluate whether (1) there is a
conflict between the statute and the rule, and (2) the statute is a substantive
or a procedural law. State v. Brearcliffe, 254 Ariz. 579, 585, ¶ 21 (2023). “We
do not hastily find a clash between a statute and court rule,” Graf v.
Whitaker, 192 Ariz. 403, 406, ¶ 11 (App. 1988), and where possible we “avoid

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interpretations that unnecessarily implicate constitutional concerns,”
Scheehle v. Justices of the Sup. Ct. of Ariz., 211 Ariz. 282, 288, ¶ 16 (2005). “[I]n
the event of irreconcilable conflict between a procedural statute and a rule,
the rule prevails.” Duff, 250 Ariz. at 138, ¶ 12 (quotation omitted).

¶17 According to the bifurcation provision, “the issue [of whether
the affirmative defense applies] shall be resolved by a trial before and
separate and apart from a trial on damages.” A.R.S. § 12-820.03(B). The
applicable rule for bifurcation states that, “[f]or convenience, to avoid
prejudice, or to expedite and economize, the court may order a separate
trial of one or more separate issues, claims, crossclaims, counterclaims, or
third-party claims.” Rule 42(b).

¶18 As noted above, the legislature has specific authority to guide
the procedural manner in which suits are brought against the state. And the
legislature “may properly enact statutory procedures that supplement,
rather than conflict with,” our supreme court’s procedural rules. Brearcliffe,
254 Ariz. at 584–85, ¶ 21.

¶19 The bifurcation provision and Rule 42 do not conflict. The
former is a more specific procedural direction within the broader
framework of the latter. And both advance the same purposes. The plain
language of Rule 42 specifies that one of the purposes of providing the court
with discretion to bifurcate a trial is “to expedite and economize” litigation
and preserve both judicial and litigant resources. Rule 42(b). In Swofford v.
B & W, Inc., a federal district court considered the propriety of a separate
trial under Fed. R. Civ. P. 42(b)—which Arizona’s current Rule 42 mirrors,
although not identically—and observed that “[a] preliminary finding on the
question of liability may well make unnecessary the damages inquiry, and
thus result in substantial saving of time of the Court and counsel and
reduction of expense to the parties.” 34 F.R.D. 15, 20 (S.D. Tex. 1963). The
court also noted that a separate trial on liability may offer parties the
opportunity to settle without having reached the often-arduous question of
damages. Id.

¶20 The bifurcation provision similarly serves the interests of
judicial economy and efficiency by directing the earliest possible
determination of the State’s protection under the affirmative defense
provision. The legislature’s command that the superior court must proceed
most efficiently in suits against the State does not conflict with the court’s
general authority and discretion to bifurcate trials for the sake of efficiency.

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CONCLUSION

¶21 We accept special action jurisdiction and deny relief. We
affirm the superior court’s bifurcation order.

AMY M. WOOD • Clerk of the Court
FILED: AA

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