Robin Roebuck v. Mayo Clinic

IN THE

SUPREME COURT OF THE STATE OF ARIZONA

ROBIN ROEBUCK,
Plaintiff/Appellant,

v.

MAYO CLINIC, ET AL.,
Defendants/Appellees.

No. CV-23-0262-PR
Filed September 12, 2025

Appeal from the Superior Court in Maricopa County
The Honorable Rodrick J. Coffey, Judge
No. CV2021-090429
REVERSED AND REMANDED

Opinion of the Court of Appeals, Division One
256 Ariz. 161 (App. 2023)
VACATED IN PART

COUNSEL:

Robert M. Gregory (argued), Law Office of Robert M. Gregory, P.C., Gilbert,
Attorney for Robin Roebuck

Rita J. Bustos (argued), Jones, Skelton & Hochuli, P.L.C., Phoenix; Vincent
J. Montell, Quintairos, Prieto, Wood & Boyer, P.A., Scottsdale, Attorneys for
Mayo Clinic, Mayo Clinic Arizona, Mayo Clinic Hospital, Nicole Secrest
and Robert Scott

Joshua D. Bendor, Hayleigh S. Crawford (argued), Office of the Attorney
General, Phoenix, Attorneys for the State of Arizona

ROBIN ROEBUCK v. MAYO CLINIC, ET AL.
Opinion of the Court

David L. Abney (argued), Ahwatukee Legal Office, P.C., Phoenix,
Attorneys for Amici Curiae Arizona Association for Justice, Arizona Trial
Lawyers Association

Eileen Dennis GilBride, Jones, Skelton & Hochuli P.L.C., Phoenix,
Attorneys for Amici Curiae American Medical Association, Arizona
Medical Association, Phoenix Children’s Hospital, HonorHealth, and
Mutual Insurance Company of Arizona

D. Andrew Gaona, Austin C. Yost, Coppersmith Brockelman PLC, Phoenix,
Attorneys for Amicus Curiae Arizona Hospital and Healthcare Association

Brett W. Johnson, Tracy A. Olson, Claudia E. Stedman, Snell & Wilmer
L.L.P., Phoenix, Attorneys for Amicus Curiae Health System Alliance of
Arizona

Michael G. Bailey, Arizona Chamber of Commerce, Phoenix, Attorneys for
Amicus Curiae Arizona Chamber of Commerce and Industry

JUSTICE BEENE authored the Opinion of the Court, in which CHIEF
JUSTICE TIMMER, VICE CHIEF JUSTICE LOPEZ and JUSTICE
MONTGOMERY joined. * JUSTICE BOLICK dissented in part, dissented
from the judgment, and concurred in part with which JUSTICE
MONTGOMERY joined.

JUSTICE BEENE, Opinion of the Court:

¶1 This case requires us to determine whether A.R.S. § 12-516(A)
violates the Arizona Constitution’s anti-abrogation clause by barring claims
for ordinary negligence but allowing claims for wilful misconduct or gross
negligence against health care providers delivering pandemic-related
medical treatment. Because § 12-516(A) eliminates a patient’s right to

∗
Justice Kathyrn H. King has recused herself from this case. Because Justice
Robert M. Brutinel retired before oral argument and Justice Maria Elena
Cruz had not yet been appointed to fill the vacancy, only five justices
participated in this decision.
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recover damages for ordinary negligence, we hold that it violates the
Arizona Constitution’s anti-abrogation clause.

BACKGROUND

¶2 In April 2020, Robin Roebuck was hospitalized for COVID-19
at the Mayo Clinic in Arizona. Because Roebuck had previously received a
heart transplant, he was placed under the care of the Mayo Clinic’s
congestive heart failure team. During his hospitalization, a doctor ordered
an arterial blood gas (“ABG”) test as part of Roebuck’s treatment for
COVID-19. Roebuck developed complications from the ABG test and
underwent surgery that resulted in significant scarring and diminished use
of his right arm and hand.

¶3 In January 2021, Roebuck filed a medical negligence suit
against the Mayo Clinic, Mayo Clinic Arizona, Nicole Secrest, N.P., and
Robert Scott, M.D. (collectively, “Mayo Clinic”). In his complaint, Roebuck
alleged that the ABG test was negligently performed, but he did not allege
that Mayo Clinic’s conduct was grossly negligent. Mayo Clinic moved to
dismiss, arguing that § 12-516 and other laws provide them with immunity
for negligence arising out of their treatment of COVID-19. The superior
court denied the motion because Roebuck adequately alleged that the ABG
test was part of his heart treatment rather than his COVID-19 treatment.

¶4 After conducting discovery regarding the purpose of the ABG
test, Mayo Clinic moved for summary judgment. Finding that the ABG test
was administered as part of Roebuck’s COVID-19 treatment, the superior
court concluded that § 12-516 was applicable and thus that Mayo Clinic was
immune from Roebuck’s ordinary negligence claim. In reaching this
conclusion, the court explained that § 12-516 does not abrogate Roebuck’s
right of action, but instead merely imposes a higher evidentiary standard
that requires Roebuck to prove by clear and convincing evidence that Mayo
Clinic acted with wilful misconduct or gross negligence. Accordingly, the
court entered summary judgment in favor of Mayo Clinic.

¶5 The court of appeals reversed, concluding that “§ 12-516’s
prohibition on the assertion of ordinary negligence claims in providing
COVID-related medical treatment constitutes an abrogation of a common
law right of action in violation of [a]rticle 18, [s]ection 6.” Roebuck v. Mayo
Clinic, 256 Ariz. 161, 168 ¶ 27 (App. 2023).

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¶6 We granted review because whether § 12-516 violates the
anti-abrogation clause of the Arizona Constitution is an issue of statewide
importance and likely to recur. We have jurisdiction pursuant to article 6,
section 5(3) of the Arizona Constitution.

DISCUSSION

¶7 “We review de novo a grant of summary judgment, ‘viewing
the evidence in the light most favorable to the party against whom
summary judgment was entered.’” S. Ariz. Home Builders Ass’n v. Town of
Marana, 254 Ariz. 281, 284 ¶ 16 (2023) (quoting Dabush v. Seacret Direct LLC, 250 Ariz. 264, 267 ¶ 10 (2021)). Summary judgment is appropriate “if the
moving party shows that there is no genuine dispute as to any material fact
and the moving party is entitled to judgment as a matter of law.” Ariz. R.
Civ. P. 56(a). We interpret constitutional provisions and statutes de novo.
State v. Anderson, 257 Ariz. 226, 230 ¶ 13 (2024).

I.

¶8 Section 12-516(A) provides that during a state of emergency
for a public health pandemic, a health professional or health care institution
that is “providing health care services in support of” that emergency “is not
liable for damages in any civil action for an injury or death” allegedly
caused by the health care provider unless the plaintiff proves “by clear and
convincing evidence” that the health care provider acted with “wilful
misconduct or gross negligence.” Mayo Clinic argues that the court of
appeals erred in concluding that § 12-516 violates the anti-abrogation clause
in article 18, section 6 of the Arizona Constitution.

¶9 The anti-abrogation clause provides that “[t]he right of action
to recover damages for injuries shall never be abrogated, and the amount
recovered shall not be subject to any statutory limitation . . . .” Ariz. Const.
art. 18, § 6. We have previously explained that “article 18, [section] 6 is an
‘open court’ guarantee intended to constitutionalize the right to obtain
access to courts.” Cronin v. Sheldon, 195 Ariz. 531, 538 ¶ 35 (1999) (citation
modified).

¶10 To determine whether a statute violates the anti-abrogation
clause, this Court performs a two-part analysis. Duncan v. Scottsdale Med.

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Imaging, Ltd., 205 Ariz. 306, 313 ¶ 28 (2003). The first inquiry is whether the
right of action at issue falls within the protection of article 18, section 6. Id.
If not, the inquiry ends. If so, the second inquiry is whether the statute
abrogates or merely regulates that right of action. Id. ¶ 29.

A.

¶11 We start by determining whether article 18, section 6 protects
the right of action at issue here. In Torres v. JAI Dining Servs. (Phoenix), Inc.,
256 Ariz. 212, 218 ¶ 18 (2023), we “reaffirmed that the anti-abrogation
clause only applies to rights of action that existed at common law in 1912
or that are based in such rights.” While “[t]he clause generally protects
from abrogation a wide swath of actions for which recovery was possible
in 1912, such as negligence actions, intentional torts, and product liability
claims,” id. at 217 ¶ 13, we clarified that when determining whether a right
of action was a cognizable right at the time of statehood, “courts should
consider whether a plaintiff alleging the same harm could have recovered
damages against the same type of defendant at statehood,” id. at 218 ¶ 16
(emphasis in original). Accordingly, here we must consider whether a
plaintiff alleging a personal injury could have recovered damages against a
health care provider at statehood.

¶12 We recently reiterated that the anti-abrogation clause
“prohibits the ‘abrogation of all common law actions for negligence,’
including medical malpractice.” Francisco v. Affiliated Urologists Ltd., 258 Ariz.
95, 104 ¶ 39 (2024) (emphasis added) (quoting Baker v. Univ. Physicians
Healthcare, 231 Ariz. 379, 388 ¶ 34 (2013)). This holding is consistent with
our longstanding jurisprudence, which since statehood has allowed a
patient to recover damages against a health care provider for injuries
caused by that health care provider’s negligence. See Seisinger v. Siebel, 220
Ariz. 85, 94 ¶¶ 32–33 (2009); Rice v. Tissaw, 57 Ariz. 230, 237–38 (1941); Butler
v. Rule, 29 Ariz. 405, 407 (1926); McCarthy v. Pamsetgaff, Inc., 20 Ariz. 460,
461–62 (1919); Kain v. Ariz. Copper Co., 14 Ariz. 566, 567 (1913). The parties
do not dispute that the first part of this analysis is met.

B.

¶13 We turn next to the second part of the analysis. Because the
anti-abrogation clause precludes abrogation but not regulation, the second
inquiry requires us to determine whether § 12-516(A) abrogates the right of

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action for negligence or merely regulates it. See Duncan, 205 Ariz. at 313
¶ 29. To distinguish between regulation and abrogation, we apply the
“reasonable election” test. Id. Under this test, “the [L]egislature may
regulate a right of action protected by article 18, section 6, but it must ‘leave
a claimant reasonable alternatives or choices which will enable him or her
to bring the action.’” Id. ¶ 30 (citation modified) (quoting Barrio v. San
Manuel Div. Hosp. for Magma Copper Co., 143 Ariz. 101, 106 (1984)). The
Legislature may not “under the guise of ‘regulation,’ so affect the
fundamental right to sue for damages as to effectively deprive the claimant
of the ability to bring the action.” Id. (quoting Barrio, 143 Ariz. at 106). A
right of action is considered abrogated if no reasonable election remains,
resulting in the right of action being “completely abolished.” Barrio, 143
Ariz. at 106 (quoting Ruth v. Indus. Comm’n, 107 Ariz. 572, 575 (1971)).

¶14 Section 12-516(A) bars ordinary negligence claims but allows
claims for gross negligence, so the question here is whether gross
negligence is a reasonable alternative to ordinary negligence. The court of
appeals concluded that ordinary negligence and gross negligence are
“distinct theories of liability,” and thus “the availability of relief for gross
negligence is not a reasonable alternative to a claim for ordinary
negligence.” Roebuck, 256 Ariz. at 168 ¶ 24. Mayo Clinic and supporting
amici argue that the court of appeals erred in concluding that ordinary
negligence and gross negligence are separate and distinct torts. Instead,
they assert that ordinary negligence and gross negligence are not separate
rights of action, but rather points along the continuum of the broad right of
action for negligence.

¶15 While we agree with the court of appeals that gross
negligence is not a reasonable alternative to ordinary negligence, resolving
this inquiry does not turn on the question of whether ordinary negligence
and gross negligence are distinct “torts” or “theories of liability” or “causes
of action.” Focusing on that question loses sight of the proper inquiry.
Indeed, gross negligence and ordinary negligence may very well be
classified as the same tort. See DeElena v. S. Pac. Co., 121 Ariz. 563, 566 (1979)
(“Appellant argues that [gross negligence] is a tort wholly separate from
negligence. But it is settled that [gross negligence] is aggravated
negligence.”); Williams v. Thude, 188 Ariz. 257, 259 (1997) (noting that gross
negligence is an aggravated form of negligence); see also Garibay v. Johnson
ex rel. Cnty. of Pima, 259 Ariz. 248, 258 ¶ 38 (2025) (acknowledging that
“defining ‘negligence’ and ‘gross negligence’ ‘is, at best, inexact’” (quoting

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Weatherford ex rel. Michael L. v. State, 206 Ariz. 529, 535 ¶ 20 n.4 (2003))). But
this classification has no impact on whether gross negligence is a reasonable
alternative to ordinary negligence.

¶16 As we recently emphasized in Torres, the language of the
anti-abrogation clause protects rights of action, not causes of action. Torres,
256 Ariz. at 218 ¶ 16. A right of action is “merely the right to pursue a
remedy.” Id. (quoting Morgan v. Hays, 102 Ariz. 150, 159 (1967)
(Struckmeyer, J., dissenting)). Identifying the right of action at issue
“hinges on the nature of the injury and the defendant.” Id. at 219 ¶ 25. The
dissent asserts that classifying ordinary negligence and gross negligence as
the same tort ends the inquiry because “the right of action for negligence
continues.” Infra ¶ 55. However, we have explicitly rejected framing the
right of action in such broad terms. In Torres, we explained that although
dram-shop actions may be classified as negligence actions, the right of
action was not “simple negligence,” but rather the ability to bring a suit
against a dram shop for injuries caused by an overserved patron. See Torres,
256 Ariz. at 218 ¶ 16, 219 ¶ 25, 220 ¶ 27. Likewise, the right of action at issue
here is not, as the dissent suggests, the broad umbrella of “negligence.”
Rather, as we identified in step one of the anti-abrogation analysis, supra
¶ 12, the right of action at issue here is the ability to bring a suit against a
health care provider for injuries caused by that health care provider’s
negligence. Thus, the proper inquiry here is whether § 12-516 completely
abolishes a patient’s ability to bring a suit against a health care provider for
injuries caused by that health care provider’s negligence, or if gross
negligence is a reasonable alternative that would still allow those patients
to bring an action. To answer this question, we begin by identifying how
gross negligence differs from ordinary negligence.

¶17 “In medical malpractice actions, as in all negligence actions,
the plaintiff must prove the existence of a duty, a breach of that duty,
causation, and damages.” Seisinger, 220 Ariz. at 94 ¶ 32; see Quiroz v.
ALCOA Inc., 243 Ariz. 560, 563–64 ¶ 7 (2018) (laying out the common law
elements of negligence). As set forth in A.R.S. § 12-563, in a medical
malpractice action against a health care provider, a plaintiff must prove that
the provider failed to follow the standard of care—defined as “that degree
of care, skill and learning expected of a reasonable, prudent health care
provider in the profession or class to which he belongs within the state
acting in the same or similar circumstances”—and that such failure
proximately caused the injury.

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¶18 Gross negligence, however, requires an additional showing
that the defendant acted with reckless indifference. See Womack v. Preach, 63 Ariz. 390, 396 (1945); Scott v. Scott, 75 Ariz. 116, 122 (1953); Noriega v.
Town of Miami, 243 Ariz. 320, 326 ¶ 23 (App. 2017); DeElena, 121 Ariz. at 566
(explaining that gross negligence “involves the creation of an unreasonable
risk of bodily harm to another (simple negligence) together with a high
degree of probability that substantial harm will result (wantonness)”
(quoting Bryan v. S. Pac. Co., 79 Ariz. 253, 256 (1955))); Nichols v. Baker, 101
Ariz. 151, 153 (1966) (“Wantonness implies a reckless indifference to the
results of an act.”); Restatement (Second) of Torts § 501 (Am. L. Inst. 1965).
“A person is recklessly indifferent if he or she knows, or a reasonable
person in his or her position ought to know: (1) that his action or inaction
creates an unreasonable risk of harm; and (2) the risk is so great that it is
highly probable that harm will result.” Williams v. Thude, 180 Ariz. 531, 537
(App. 1994), aff’d, 188 Ariz. 257 (1997); Armenta v. City of Casa Grande, 205
Ariz. 367, 372–73 ¶ 20 (App. 2003); Womack, 63 Ariz. at 398; see also
Restatement § 500. Thus, as we recently explained, “[a] party is grossly
negligent if they know, or have reason to know, facts that would lead a
reasonable person to recognize their conduct created an unreasonable risk
of bodily harm and involved a high probability of substantial harm.”
Garibay, 259 Ariz. at 258 ¶ 38; Nichols, 101 Ariz. at 153; Walls v. Ariz. Dep’t of
Pub. Safety, 170 Ariz. 591, 595 (App. 1991).

¶19 In sum, gross negligence adds a quasi-intent element by
requiring a showing that the defendant acted with reckless indifference.
While ordinary negligence “consists in mere inadvertence, incompetence,
unskillfulness, or a failure to take precautions,” gross negligence “requires
a conscious choice of a course of action, either with knowledge of the
serious danger to others involved in it or with knowledge of facts which
would disclose this danger to any reasonable man.” Williams v. Wise, 106
Ariz. 335, 341 (1970) (quoting Restatement § 500, cmt. g); see Scott, 75 Ariz.
at 122 (“[Gross] negligence is highly potent, and when it is present it fairly
proclaims itself in no uncertain terms. It is ‘in the air’, so to speak. It is
flagrant and evinces a lawless and destructive spirit.”).

¶20 We turn now to whether gross negligence is a reasonable
alternative to ordinary negligence in light of this quasi-intent element. We
have previously explained that “a regulation that limits the theories of
liability under which a plaintiff may sue is nonetheless an abrogation when

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the ‘alternative’ theory of recovery protects different interests.” Duncan,
205 Ariz. at 313 ¶ 31; Hazine v. Montgomery Elevator Co., 176 Ariz. 340, 343
(1993), disapproved of on other grounds by Torres, 256 Ariz. 212. In Hazine, we
determined that strict products liability actions protect different interests
than negligence actions and thus “a right to sue in negligence . . . is not a
reasonable alternative to a products liability action.” Hazine, 176 Ariz.
at 343; see Torres, 256 Ariz. at 218 ¶ 17 (acknowledging that the outcome of
Hazine was correct). We relied on McLaughlin v. Michelin Tire Corp., 778 P.2d
59, 64 (Wyo. 1989), which explained that negligence actions focus on “the
conduct” of the defendant while strict products liability actions focus on
“the product itself,” and strict products liability applies when “traditional
theories of negligence are inadequate or where it is practicably impossible
to prove negligence.” See also 65 C.J.S. Negligence § 14 (2025) (“[W]here
negligence claims focus is on the conduct of the actor, whereas in products
liability cases, the focus is on the condition of the product.”).

¶21 As between ordinary negligence and gross negligence,
ordinary negligence focuses solely on the defendant’s conduct, while the
quasi-intent element of gross negligence additionally considers the
defendant’s mental state. In Duncan, we determined that negligence and
intentional torts protect different interests. See Duncan, 205 Ariz. at 314
¶¶ 32, 34. We noted that the elements of negligence “have no application
in the field of intentional torts,” and that requiring a battery claimant to
prove the elements of negligence “dramatically transforms the nature of the
battery claim.” Id. ¶ 33. Likewise, the mental state element of intentional
torts has no application in the field of negligence. See Ryan v. Napier, 245 Ariz. 54, 59 ¶ 17 (2018) (“A negligence claim focuses on the defendant’s
conduct; intent is immaterial.”); Dan B. Dobbs et al., The Law of Torts § 31
(2d ed. 2011) (“[N]egligence does not require a state of mind at all but
focuses instead on outward conduct.”); id. § 126 (“A bad state of mind is
neither necessary nor sufficient to show negligence; conduct is everything.”
(internal footnote omitted)); 65 C.J.S. Negligence § 16 (2025) (“The words
‘negligence’ and ‘intentional’ are contradictory and mutually exclusive.”
(internal footnote omitted)). Though gross negligence falls short of
intentional wrongdoing, Garibay, 259 Ariz. at 258 ¶¶ 38–39, “it is a cousin
to the intentional tort even while it is at home in the negligence family,”
Dan B. Dobbs et al., The Law of Torts § 32 (2d ed. 2011). While some cases of
gross negligence may look only to a defendant’s conduct, the focus is not
the conduct in and of itself, but rather whether the conduct is of such a
nature so as to evince the defendant’s reckless indifference. See id. (“As the

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risk [of harm to others] becomes greater it may tend to approach virtual
certainty [that harm will occur] and thus become a species of intent.”).

¶22 Not every instance of medical negligence will involve reckless
indifference on the part of the health care provider. See Kemp v. Pinal
County, 13 Ariz. App. 121, 124–25 (1970) (“A person can be very negligent
and still not be guilty of gross negligence.”); Noriega, 243 Ariz. at 329 ¶ 41
(“We recognize that proving gross negligence is no easy task.” (quoting
Luchanski v. Congrove, 193 Ariz. 176, 180 ¶ 19 (App. 1998))). Indeed, as
§ 12-516 applies to health professionals or health care institutions—which
involves extensive licensing and regulation—the expectation is that
medical negligence involving reckless indifference would be rare under any
circumstance. Accordingly, there exists a substantial class of plaintiffs
injured by a provider’s ordinary negligence that cannot in good faith plead
that the provider acted with reckless indifference. Ordinary negligence
protects the right of injured patients to recover when gross negligence is not
present or when gross negligence is “practicably impossible to prove.” See
McLaughlin, 778 P.2d at 64. The quasi-intent element of reckless
indifference transforms the nature of a negligence claim such that
negligence as known at common law would no longer exist. See Duncan,
205 Ariz. at 314 ¶ 33 & n.2. We conclude that gross negligence is not a
reasonable alternative to ordinary negligence, and therefore § 12-516(A)
completely bars recovery for plaintiffs injured by ordinary negligence in
relation to a pandemic.

¶23 The dissent is concerned that “little is left of the Legislature’s
police power to ‘regulate’ torts” after our decision today. Infra ¶ 56.
However, the Legislature remains free to enact statutes that may have the
effect of making it more difficult for plaintiffs to prevail. See Franklin v.
Clemett, 240 Ariz. 587, 594 ¶ 20 (App. 2016) (“A statute does not ‘effectively’
abrogate a claim, however, by making it more difficult for the claimant to
obtain a recovery or even when, in the claimant’s view, it may weaken the
claimant’s case.”); Barrio, 143 Ariz. at 106 (noting that “reasonable
regulation of the manner and time for bringing the action” is permissible).
The Legislature has done so in several instances without running afoul of
the anti-abrogation clause. See State Farm Ins. Co. v. Premier Mfg. Sys., Inc.,
217 Ariz. 222, 229 ¶¶ 34–37 (2007) (explaining that a statute abolishing joint
and several liability in strict products liability cases did not violate the
anti-abrogation clause because “the claimant remains entirely free to bring
his claim against all responsible parties”); Baker, 231 Ariz. at 388 ¶ 35

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(concluding that “[a]lthough the statute might deny a plaintiff his expert of
choice” in a medical malpractice action, the statute nonetheless was a
regulation because he could still bring the action).

¶24 Importantly, the Legislature may modify or clarify the
standard of care. St. George v. Plimpton, 241 Ariz. 163, 166 ¶ 18 (App. 2016)
(“The standard of care may be ‘established by a legislative enactment.’”
(quoting Tellez v. Saban, 188 Ariz. 165, 169 (App. 1996))); see Restatement
§ 285. For example, the Legislature codified the ordinary standard of care
in medical malpractice cases in § 12-563(1). See Nunez v. Prof. Transit Mgmt.
of Tucson, Inc., 229 Ariz. 117, 121 ¶ 19 n.3 (2012); Baker, 231 Ariz. at 384 ¶ 12.
Then in § 12-516(C), the Legislature essentially clarified that the standard
of care in relation to the pandemic was to follow the “applicable published
guidance relating to the public health pandemic.” But a statute goes
beyond merely making it more difficult for plaintiffs to prevail when the
statute “creates insurmountable hurdles for large and foreseeable classes of
victims.” Boswell v. Phx. Newspapers, Inc., 152 Ariz. 9, 18–19 (1986). At
bottom, the Legislature may regulate what constitutes negligence—for
example, by modifying or clarifying the standard of care—but the
Legislature may not abolish a patient’s right to bring an ordinary
negligence action for injuries caused by a physician’s negligence.

¶25 We conclude that § 12-516(A) abolishes the right to bring
ordinary negligence actions against health care providers that furnished
medical treatment during a public health pandemic. The statute does more
than simply make it more difficult for an ordinary negligence plaintiff to
prevail under these circumstances. Rather, it “creates insurmountable
hurdles” for an entire class of plaintiffs injured by ordinary negligence,
making it impossible for that class of plaintiffs to prevail. Accordingly, we
conclude that § 12-516(A) is an unconstitutional abrogation of a plaintiff’s
right to sue for ordinary negligence under article 18, section 6 of the
Arizona Constitution.

II.

A.

¶26 At oral argument before us, amicus Attorney General argued
that when considering whether a statute enacted by the Legislature to
address a public emergency violates the anti-abrogation clause, courts

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should incorporate a balancing of governmental interests into the
reasonable elections test. Specifically, the Attorney General asserts that if
we determine § 12-516(A) abrogates a fundamental right, the statute is
nonetheless subject to additional judicial scrutiny because other
fundamental rights are not absolute but are instead subject to some level of
judicial balancing. We disagree.

¶27 No Arizona court has applied judicial balancing to the
anti-abrogation clause analysis, and we decline to do so today. The plain
language of the anti-abrogation clause is unequivocal: “The right of action
to recover damages for injuries shall never be abrogated.” Ariz. Const.
art. 18, § 6 (emphasis added). Our state Constitution expressly states that
the government derives its power from the people, and the purpose of the
government is “to protect and maintain individual rights.” Id. art. 2, § 2.
While other fundamental rights may be subject to a balancing of interests,
few other constitutional provisions are couched in such absolute terms as
article 18, section 6. The plain language of the anti-abrogation clause
creates a categorical prohibition that leaves no room for judicial discretion.
Once we determine that a statute abrogates a constitutionally protected
right of action, the inquiry ends. See id. art. 2, § 32 (“The provisions of this
Constitution are mandatory, unless by express words they are declared to
be otherwise.”); State v. Osborne, 14 Ariz. 185, 204 (1912) (“‘Mandatory’ is
defined as a command, hence obligatory. That which we must implicitly
follow and obey.”); State ex rel. Morrison v. Nabours, 79 Ariz. 240, 243 (1955).
It would be antithetical to the anti-abrogation clause to subject its
protections to judicial discretion to determine whether abrogation is
nonetheless permitted if reasonable or justified under the circumstances.
“Our [C]onstitution has spoken, and it is our duty to listen.” Kenyon v.
Hammer, 142 Ariz. 69, 74 (1984) (quoting Daugaard v. Baltic Coop. Bldg. Supply
Ass’n, 349 N.W.2d 419, 425 (S.D. 1984)).

¶28 The Attorney General additionally argues that construing the
anti-abrogation clause to prevent the Legislature from temporarily limiting
the liability of health care providers during a public pandemic would
undermine its police powers under article 4, part 1, section 1 of the Arizona
Constitution. Not so.

¶29 Undoubtedly, the Legislature has the authority to enact
legislation during a declared state of emergency pursuant to its inherent
police powers under article 4, part 1, section 1. See State v. Harold, 74 Ariz.

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210, 216 (1952); Torres, 256 Ariz. at 217 ¶ 15. But that legislation shall never
abrogate a right of action protected by article 18, section 6. Interpreting the
anti-abrogation clause as an absolute prohibition does not, as the Attorney
General argues, undermine the Legislature’s police powers. The Arizona
Constitution, unlike the Federal Constitution, is not “a grant of power or
enabling act to the Legislature, but rather is a limitation upon the powers
of that body.” Earhart v. Frohmiller, 65 Ariz. 221, 224 (1947). As such, we
look to our Constitution not “to determine whether the Legislature is
authorized to do an act, but only to see if it is prohibited.” Id. at 225 (citation
omitted). “The [L]egislature has plenary power to deal with any topic
unless otherwise restrained by the Constitution.” Seisinger, 220 Ariz. at 92 ¶ 26
(emphasis added). The anti-abrogation clause is a constitutional restraint
on the Legislature’s power. Furthermore, the Legislature has no shortage
of constitutionally permissible means to protect health care providers
during a time of emergency. And as noted earlier, the Legislature can
exercise this power by choosing to regulate a right of action so long as it
leaves a plaintiff with “reasonable alternatives or choices” that will
preserve the ability to bring the action. Barrio, 143 Ariz. at 106.

B.

¶30 We also reject the argument advanced by amicus Arizona
Chamber of Commerce and Industry (the “Chamber”) that § 12-516(A)
constitutes a derivative grant of sovereign immunity to health care
providers, such as Mayo Clinic, that provide medical services during a
public health pandemic. While derivative sovereign immunity has been
recognized by federal case law, Arizona has not adopted this doctrine, and
the case law relied on by the Chamber, which we address below, belies its
application in this case.

¶31 In Yearsley v. W.A. Ross Construction Co., 309 U.S. 18 (1940), the
United States Supreme Court concluded that when a private company
carries out its duties pursuant to its contract with the federal government,
“there is no liability on the part of the contractor” who simply performed as the
government directed. Id. at 20–21 (emphasis added). In Yearsley, the Court
extended governmental immunity “[w]here an agent or officer of the
Government” was acting on its behalf. Id. at 21 (emphasis added). Here, the
contractual or agency components that are essential to establishing a
derivative grant of immunity between the state government and Mayo
Clinic do not exist.

13

ROBIN ROEBUCK v. MAYO CLINIC, ET AL.
Opinion of the Court

¶32 Similarly, in Campbell-Ewald Co. v. Gomez, 577 U.S. 153, 157,
159–60 (2016), the United States Supreme Court considered whether an
individual’s status as a federal contractor rendered him immune from suit
for violating federal law. Unremarkably, the Court reiterated that
“[g]overnment contractors obtain certain immunity in connection with
work which they do pursuant to their contractual undertakings with the
United States.” Id. at 166 (quoting Brady v. Roosevelt S.S. Co., 317 U.S. 575,
583 (1943)). Again, the necessary contractual relationship between the
individual or entity seeking immunity and the government that is needed
for the extension of immunity is absent in this case.

¶33 In Patterson v. City of Danville, 875 S.E.2d 65, 69 (Va. 2022), the
Virginia Supreme Court examined the application of derivative sovereign
immunity to a physician employed by the government who allegedly failed
to provide appropriate medical care to an individual incarcerated in a
government-owned detention center. In extending derivative sovereign
immunity to the physician, the Patterson court emphasized that the
physician was an employee of an immune governmental entity and thereby
a “servant” through which the government acts. Id. at 70. Once again,
because the facts in Patterson are distinguishable from circumstances in this
case, the Chamber’s reliance on its holding is misplaced.

¶34 The Chamber asserts that extending derivative sovereign
immunity is appropriate when a private party is acting on behalf of the
state, but it offers no Arizona authority or any other controlling authority
for its belief that a private party acting without a contractual or agency
relationship with the government acquires the government’s
comprehensive immunity for performing government work. For this
reason, its claim regarding derivative sovereign immunity fails.

III.

¶35 Having determined that § 12-516(A)’s provision referring to
wilful misconduct and gross negligence is unconstitutional, we turn to
whether the portion of § 12-516(A) raising the burden of proof to clear and
convincing evidence is severable from the invalid portion.

¶36 Courts generally give effect to severability clauses in statutes
when possible. Selective Life Ins. Co. v. Equitable Life Assurance Soc’y, 101

14

ROBIN ROEBUCK v. MAYO CLINIC, ET AL.
Opinion of the Court

Ariz. 594, 599 (1967). When considering the severability of legislative acts,
we uphold the constitutional portion of the statute “where the valid and
invalid parts are so separate and distinct that it is clear” that the
constitutional portion may stand. Fann v. State, 251 Ariz. 425, 436 ¶ 37
(2021) (citing Millett v. Frohmiller, 66 Ariz. 339, 342–43 (1948)). If, however,
we find that “the valid and invalid portions are . . . so intimately connected
as to raise the presumption the [L]egislature would not have enacted one
without the other, and the invalid portion was . . . the inducement of the
act,” the entire statute will be invalidated. Selective Life Ins. Co., 101 Ariz.
at 599. “To be capable of separate enforcement, the valid portion of an act
must be independent of the invalid portion and must form a complete act
within itself.” Millett, 66 Ariz. at 343 (quoting 2 Sutherland, Statutory
Construction § 2404 (3d ed. Horack 1943)). Courts consider whether “the
[L]egislature would have passed the statute had it been presented with the
invalid features removed.” Id. (quoting 2 Sutherland, Statutory Construction
§ 2404 (3d ed. Horack 1943)).

¶37 The Legislature may limit a plaintiff’s right of action by
regulating matters such as how causes of action must be brought, the
relevant standards of pleading, and other procedural and evidentiary
matters. See Duncan, 205 Ariz. at 313 ¶ 30; Francisco, 258 Ariz. at 104 ¶ 40
(stating that the Legislature may create a statutory framework that imposes
“a stricter standard of pleading and setting deadlines for the early
involvement of the plaintiff’s expert witness” (quoting Gorney v. Meaney, 214 Ariz. 226, 229 ¶ 8 (App. 2007))). This Court has previously explained
that “[i]t is one thing to hold that the right to bring a cause of action is
guaranteed in the [C]onstitution, free from legislative control, but entirely
different to hold that the [C]onstitution also requires that we continue to
follow the same rules of pleading, procedure and evidence that existed in
1912.” Kenyon, 142 Ariz. at 83 (internal citation omitted). As part of this
power to regulate causes of action, the Legislature may establish or
heighten burdens of proof. See, e.g., Valerie M. v. Ariz. Dep’t of Econ. Sec., 219
Ariz. 331, 336 ¶ 21 (2009) (“Because the [L]egislature is empowered to set
burdens of proof as a matter of substantive law, a valid statute specifying
the burden of proof prevails over common law or court rules adopting a
different standard.”); Seisinger, 220 Ariz. at 93 ¶ 30.

¶38 We conclude that the portion of § 12-516(A) raising the
burden of proof to clear and convincing evidence is constitutional and
severable from the invalid portion requiring proof of wilful misconduct or

15

ROBIN ROEBUCK v. MAYO CLINIC, ET AL.
Opinion of the Court

gross negligence. The apparent purpose of § 12-516 is to mitigate the
liability risk for health care providers responding to the unusually
challenging emergency circumstances during a pandemic. See Guerrero v.
Copper Queen Hosp., 112 Ariz. 104, 106 (1975) (noting that “[t]he apparent
purpose” of A.R.S. § 32-1471, which requires gross negligence in claims
against individuals gratuitously rendering emergency care, was “to relieve
the burden of liability” on those individuals). To that end, both the gross
negligence and clear and convincing evidence portions of the statute
advance this purpose. Further, the Legislature has previously enacted
statutes heightening the burden of proof to clear and convincing evidence
in cases against health professionals providing emergency medical
treatment without also requiring gross negligence. See A.R.S. § 12-572.
Accordingly, we conclude that the Legislature would have enacted
§ 12-516(A) even if the invalid portion relating to wilful misconduct and
gross negligence had been removed.

CONCLUSION
¶39 Although we agree with the court of appeals’ holding, we
vacate paragraphs 17–29 of the court of appeals’ opinion to replace its
reasoning with our own. We reverse the superior court’s entry of summary
judgment in favor of Mayo Clinic and remand to the superior court for
further proceedings consistent with this Opinion.

16

ROBIN ROEBUCK v. MAYO CLINIC, ET AL.
Justice Bolick, Dissenting in part, Dissenting from the judgment, and
Concurring in part with which Justice Montgomery joins

BOLICK, J., dissenting in part, dissenting from the judgment, and
concurring in part with which MONTGOMERY, J., joins :

¶40 I disagree with my colleagues that the anti-abrogation clause,
Ariz. Const. art. 18, § 6, invalidates the statute that increases the standard
for proving negligence in COVID 19-related cases, and therefore would rule
in favor of Mayo. However, I agree strongly with my colleagues that
alternative arguments made by amici State and Arizona Chamber of
Commerce—respectively, that the state’s powers expand during an
emergency and that hospitals should have been clothed by sovereign
immunity in these circumstances—are profoundly wrong, and I therefore
concur in Parts II and III of the opinion and add some additional points.
My dissenting views are set forth in Part A and my concurring views (joined
by Justice Montgomery) in Parts B and C below.

A.

¶41 As the majority aptly explains, supra Part I(B) ¶¶ 23–24, in our
federalist republic, the police power—that is, the power to regulate public
health, safety, and welfare—reposes in the states, except where the states
delegated limited authority to the national government. Thus, when we
examine whether the national government possesses a police power, we
look for an express grant of authority to that effect. Whereas with the states,
we look to see whether their organic police power is constrained by an
express reservation of individual rights or a structural constraint on
government power. See, e.g., Nat’l Fed. of Indep. Bus. v. Sebelius, 567 U.S. 519,
535–36 (2012); Johnson Utils., L.L.C. v. Ariz. Corp. Comm’n, 249 Ariz. 215, 234
¶ 95 (2020) (Bolick, J., concurring in part and dissenting in part).

¶42 Unquestionably, the statute at issue here is an exercise of the
state’s police power. The state’s power to protect public health is broad and
does not depend on an emergency. See, e.g., Maricopa Cnty. Health Dep’t v.
Harmon, 156 Ariz. 161, 167 (1987).

¶43 COVID-19 presented public policy challenges that were
nearly unprecedented, certainly in modern times. The ubiquitous image of
masks, ventilation intubation units, tents outside of hospitals, hospital
ships, closed government schools, forced human distancing, closure of

17

ROBIN ROEBUCK v. MAYO CLINIC, ET AL.
Justice Bolick, Dissenting in part, Dissenting from the judgment, and
Concurring in part with which Justice Montgomery joins

businesses and churches, and the like will long endure in the public
memory no matter how merciful the passage of time. What public officials
knew about the disease was far exceeded by what they didn’t know.

¶44 The parties agree that the statute and executive order that
preceded it were intended to encourage physicians to take the risk of
treating COVID-19 patients without the benefit of full knowledge about the
interaction of the virus with ordinary medical procedures. Unlike the
national government, which in some instances gave full immunity to those
addressing the crisis, see, e.g., 42 U.S.C. § 247d-6d (providing immunity
from liability for claims related to use of medical countermeasures during
a public health emergency); 42 U.S.C. §§ 300aa-1 to 300aa-34 (providing
immunity from liability for claims caused by or arising from vaccine
manufacturing and administration), Arizona chose not to extend immunity
but simply to limit liability for treating physicians in certain circumstances.
There is no doubt this type of regulation would constitute a classic lawful
exercise of the police power absent an express constitutional constraint.

¶45 Here, the majority concludes that the constitutional provision
that prohibits this exercise of the police power is Arizona Constitution
article 18, section 6, which provides in relevant part: “The right of action to
recover damages for injuries shall never be abrogated . . . .” I concede that
under this Court’s precedents this is a close question, but only because
those precedents are unmoored from the limited intended scope of this
provision.

¶46 As the majority observes, the Court has read this provision to
constitute a prophylactic limitation on the Legislature’s power to regulate
torts. But that is a matter of this Court’s invention rather than commanded
by the Constitution. Superficially, the provision’s words in isolation would
imply such meaning. But closer inspection demonstrates that the provision
was written and intended to have a much narrower impact.

¶47 In Torres v. JAI Dining Servs. (Phoenix), Inc., 256 Ariz. 212
(2023), the Court reined in an expansive interpretation of the
anti-abrogation clause that would essentially freeze forever tort protections,
even those manufactured by the judiciary, against legislative modification.
Specifically, the Court held that legislative modification of judicially
decreed dram-shop liability rules was permissible because such actions

18

ROBIN ROEBUCK v. MAYO CLINIC, ET AL.
Justice Bolick, Dissenting in part, Dissenting from the judgment, and
Concurring in part with which Justice Montgomery joins

were “not based in a right of action recognized by our pre-statehood
common law and [therefore] are outside the scope of the anti-abrogation
clause.” Id. at 220 ¶ 28.

¶48 In light of past opinions that established such parameters for
the anti-abrogation clause—that is, that the clause prohibits abrogation of
rights of action recognized at common law—I joined the opinion. However,
I also wrote a concurring opinion explaining that the clause was not written
or meant to have such broad effect, raising points that are relevant to the
disposition of the matter today. See id. at 220–25 ¶¶ 30–52 (Bolick, J.,
concurring).

¶49 To start, the superficial reading of the provision’s language
that the Court has consistently applied is belied by its context. And as the
Court has consistently admonished, constitutional and statutory provisions
must always be read in context. See Roundtree v. City of Page, ___ Ariz. ___,
___, 573 P.3d 65, 69 ¶ 13 (2025) (“We interpret statutory and constitutional
provisions not in isolation, but in context with other provisions covering
the same subject matter, to ensure that the provisions’ meaning is
effectuated.” (citing In re Chalmers, ___ Ariz. ___, ___, 571 P.3d 885, 889 ¶ 18
(2025))).

¶50 The Arizona Constitution is chock-full of express reservations
of rights and structural limitations on the power of government. Clint
Bolick, Principles of State Constitutional Interpretation, 53 Ariz. St. L.J. 771,
787–89 (2022). Most of the protections of individual rights are found in our
extensive Declaration of Rights. See Ariz. Const. art. 2. Indeed, one of those
express rights provides that the amount of damages for injuries may never
be restricted. Id. art. 2, § 31. For that reason, had the Legislature here opted
to cap damages instead of modifying liability, I would have had no problem
voting to strike down such a provision.

¶51 The majority here and prior Court decisions treat the
anti-abrogation clause as if it is a similarly broad protection of individual
rights. Notably, however, the framers did not place it along with dozens of
such rights in the Declaration of Rights, but rather in article 18, which
covers “Labor.” As I noted in Torres, “[i]f article 18, section 6 speaks to all
circumstances and all causes of action, . . . it is a strange coupling with
sections in the same article dealing with an eight-hour workday (section 1),

19

ROBIN ROEBUCK v. MAYO CLINIC, ET AL.
Justice Bolick, Dissenting in part, Dissenting from the judgment, and
Concurring in part with which Justice Montgomery joins

child labor (section 2), contractual immunity of employer from liability for
negligence (section 3), employer’s liability (section 7), and workmen’s
compensation (section 8).” 1 Torres, 256 Ariz. at 223 ¶ 41 (Bolick, J.,
concurring). Had the Court not subsequently magnified its meaning, see
cases cited supra ¶¶ 9–12, one might almost think that Section 6 was meant
to confer a labor right rather than a right for all tort plaintiffs.

¶52 It turns out that is exactly what the framers meant and wrote.
The words themselves provide further basis. The framers did not use
“causes of action,” or even “rights” of action. Rather, they chose the right of
action. In the context of the labor article, that pertained to a specific right of
action. In a definitive law review article that traces both the legislative
history and intent behind the anti-abrogation clause, University of Arizona
Law Professor (and former dean) Roger C. Henderson established that the
provision was exclusively aimed at preserving specific tort actions by
employees against employers that were in jeopardy at the time. Roger C.
Henderson, Tort Reform, Separation of Powers, and the Arizona Constitutional
Convention of 1910, 35 Ariz. L. Rev. 535 passim (1993). As Professor
Henderson concludes, “there does not appear on the basis of the evidence
available today to be any real justification for holding that the guarantees
under section 6 of article XVIII were ever intended for the ‘benefit of all.’”
Id. at 617. To my knowledge, this Court has never engaged, much less
rebutted, Prof. Henderson’s scholarship.

¶53 Given that I am generally content to accept the Court’s
expansive reading of the anti-abrogation clause as a matter of stare decisis,
see Francisco v. Affiliated Urologists Ltd, 258 Ariz. 95, 105–09 ¶¶ 44–61 (2024)
(Bolick, J., concurring in part, dissenting in part), why am I going into such
detail on this issue apart from my ongoing annoyance over judicial
adventurism in the common law context? See Clint Bolick, Setting
Boundaries: State Courts, Common Law, and Separation of Powers, 57 Ariz. St.
L.J. 422 (2025). I do so to demonstrate again that the anti-abrogation clause
is not intended to freeze torts in place for all time, and that the majority’s

1
Indeed, if article 18, section 6 protects negligence claims for all persons in
all circumstances, it would render unnecessary a separate protection for
employees against employers as provided in article 18, section 3. We do
not read constitutional provisions in a way that renders others superfluous.
See Burns v. Ariz. Pub. Serv. Co., 254 Ariz. 24, 30 ¶ 23 (2022).
20

ROBIN ROEBUCK v. MAYO CLINIC, ET AL.
Justice Bolick, Dissenting in part, Dissenting from the judgment, and
Concurring in part with which Justice Montgomery joins

broad interpretation of the term “right of action” is inconsistent with the
provision’s text and meaning.

¶54 Indeed, the majority’s attempt to define this central term
further churns already muddied waters. It construes the “right of action”
that is protected against abrogation both narrowly and expansively. It
acknowledges that ordinary negligence and gross negligence “may very
well be classified as the same tort.” Supra at Part I(B) ¶ 15 (citations
omitted). “A right of action is considered abrogated if no reasonable
election remains, resulting in the right of action being ‘completely
abolished.’” Id. ¶ 13 (citations omitted). “However, the Legislature
remains free to enact statutes that may have the effect of making it more
difficult for plaintiffs to prevail.” Id. ¶ 23.

¶55 The statute would seem to satisfy these requirements.
Ordinary negligence and gross negligence arise from the same tort:
negligence. The right of action for negligence continues. The heightened
standards make it more difficult, but not impossible, to prevail in a
negligence action. But the majority drills down by insisting that, in reality,
the cause of action cannot be modified in a way that makes it more difficult
for some plaintiffs to prevail. “Not every instance of medical negligence
will involve reckless indifference on the part of the healthcare provider.”
Id. ¶ 22. The majority focuses on this “quasi-intent element” as
distinguishing the tort from common law so as to amount to abrogation. Id.

¶56 This is a broad expansion of article 18, section 6, from
prohibiting abrogation of a right of action to prohibiting alteration of an
element of a particular cause of action. For if the right of action is construed
as the right of the same plaintiffs to sue the same defendants for damages
for the same injury, then the right is not abrogated at all. See Nunez v. Prof’l
Transit Mgmt. of Tucson, Inc., 229 Ariz. 117, 122–23 ¶¶ 25–26 (2017) (holding
that the anti-abrogation clause does not prohibit regulation of torts but
protects access to the courts). But if the right of action is defined broadly to
preserve the “same elements,” then the tort is frozen, the legislative
modification does amount to abrogation, and little is left of the Legislature’s
police power to “regulate” torts.

¶57 In my view, “right of action,” even conceding that it is not
limited to the specific right of action contemplated by the framers, is a term

21

ROBIN ROEBUCK v. MAYO CLINIC, ET AL.
Justice Bolick, Dissenting in part, Dissenting from the judgment, and
Concurring in part with which Justice Montgomery joins

of art. At statehood, and today, it means “[t]he right to bring suit; a legal
right to maintain an action, growing out of a given transaction or state of
facts and based thereon.” Right of action, Black’s Law Dictionary (2d ed.
1910); accord Right of action, Black’s Law Dictionary (12th ed. 2024) (“The
right to bring a specific case to court.”). Raising the standards for proving
negligence does not abrogate the right of action. Abrogation means erasure.
Abrogate, Black’s Law Dictionary (2d ed. 1910) (“To annul, repeal, or
destroy; to annul or repeal an order or rule issued by a subordinate
authority; to repeal a former law by legislative act, or by usage.”). Anything
short of abrogation is regulation; and regulation of torts is permissible, even
under the Court’s expansive application of the anti-abrogation clause.

¶58 Had the Legislature clothed doctors and hospitals with
complete immunity, I would have joined my colleagues in finding it a
violation of the anti-abrogation clause. Instead, the Legislature chose a
middle ground, raising standards for medical negligence during an
emergency without abolishing the right of action. I regret that judicially
abrogating this policy tool may force hospitals, physicians, and other
healthcare providers to make very difficult decisions in the next healthcare
crisis, not necessarily to the benefit of people needing treatment.

¶59 For the foregoing reasons and with great respect to my
colleagues, I dissent from Part I of the Court’s decision and from the
disposition.

B.

¶60 Given that the State’s authority to pass § 12-516 fits
comfortably within its broad, ordinary police powers, unconstrained by the
anti-abrogation clause, it was unnecessary—and in light of the result,
probably unwise—for the State to invoke sweeping emergency powers to
defend such legislation. I join my colleagues in rejecting that argument.
Under the Arizona Constitution, such powers do not exist.

¶61 At oral argument, Mayo ceded its opening time to amicus
State, which used it to argue that the anti-abrogation clause should be
construed in light of the COVID-19 emergency. The State argued that
“emergency powers are inherent in government” and “[e]ven fundamental
constitutional rights may be subject to limitation for a temporary period in

22

ROBIN ROEBUCK v. MAYO CLINIC, ET AL.
Justice Bolick, Dissenting in part, Dissenting from the judgment, and
Concurring in part with which Justice Montgomery joins

times of emergency.” I do not want to overstate its position, but the State
clearly presented an aggrandized vision of police power that expands
during emergencies while constitutional rights and constraints
concomitantly contract. I join my colleagues in disabusing that notion.

¶62 The State’s position finds support in some U.S. Supreme
Court precedents. See, e.g., Jacobson v. Massachusetts, 197 U.S. 11 (1905);
Home Bldg. & Loan Ass’n v. Blaisdell, 290 U.S. 398 (1934) 2; Korematsu v. United
States, 323 U.S. 214 (1944), overruled by Trump v. Hawaii, 585 U.S. 667, 710
(2018). More recently, the Supreme Court has rejected the argument that
the government’s powers to infringe constitutional rights expand during an
emergency. Roman Cath. Diocese of Brooklyn v. Cuomo, 592 U.S. 14, 19 (2020)
(“Members of this Court are not public health experts, and we should
respect the judgment of those with special expertise and responsibility in
this area. But even in a pandemic, the Constitution cannot be put away and
forgotten.”); accord id. at 21 (Gorsuch, J., concurring) (“Government is not
free to disregard the First Amendment in times of crisis.”). Regardless, in
my view, the State’s position finds no support in the Arizona Constitution.

¶63 Presumably, the reason the State relies on “inherent”
emergency powers is that no express provision in the Constitution supports
that proposition. Within its constitutional authority, the Legislature does
possess express emergency powers in two discrete circumstances, neither
of which is remotely applicable here. First, article 4, part 1, section 1(3)
authorizes the Legislature to accelerate the effective date of laws upon
declaration of an emergency by two-thirds of the members. Second,
article 4, part 2, section 25 confers power upon the Legislature to take
certain actions to “insure continuity of state and local governmental
operations in periods of emergency resulting from disasters caused by
enemy attack.” Even in these narrow circumstances, “the [L]egislature shall
in all respects conform to the requirements of this constitution except to the
extent that in the judgment of the [L]egislature so to do would be
impracticable or would admit of undue delay.”

2 Even in Blaisdell, the Court admonished that “[w]hile emergency does not

create power, emergency may furnish the occasion for the exercise of
power.” 290 U.S. at 426.
23

ROBIN ROEBUCK v. MAYO CLINIC, ET AL.
Justice Bolick, Dissenting in part, Dissenting from the judgment, and
Concurring in part with which Justice Montgomery joins

¶64 If the State possesses vast “inherent” emergency powers,
these very limited emergency authorizations would be redundant and
unnecessary. The rule of construction that the listing of specific things
implies the exclusion of others, City of Surprise v. Ariz. Corp. Comm’n, 246
Ariz. 206, 211 ¶ 13 (2019) (applying canon); see also Antonin Scalia & Bryan
A. Garner, Reading Law: The Interpretation of Legal Texts 107 (2012), applies
here with special force when we are searching for an extraordinary grant of
government power. I find none. 3

¶65 The same Constitution that omits any broad grant of
emergency power explicitly and abundantly protects individual rights.
When we interpret the Constitution, a statute, or a contract, we generally
apply the plain language as commonly understood when it was adopted.
Matthews v. Indus. Comm’n of Ariz., 254 Ariz. 157, 163 ¶¶ 29–33 (2022). But
where the document we are interpreting contains an express statement of
purpose, we are obligated to construe its provisions to effectuate that
purpose. Planned Parenthood Ariz., Inc. v. Mayes, 257 Ariz. 137, 144 ¶ 25
(2024).

¶66 Helpfully, the framers of the Arizona Constitution provided
exactly that. In article 2, section 2, they declared that “governments derive
their just powers from the consent of the governed, and are established to
protect and maintain individual rights.” Given that the Constitution was
adopted only seven years after Jacobson, which found no federal
constitutional violation from a state’s exercise of emergency powers during

3 So too with the national Constitution. See Youngstown Sheet & Tube Co. v.
Sawyer, 343 U.S. 579, 649–50 (1952) (Jackson, J., concurring) (“The appeal,
however, that we declare the existence of inherent powers ex necessitate to
meet an emergency asks us to do what many think would be wise, although
it is something the forefathers omitted. They knew what emergencies were,
knew the pressures they engender for authoritative action, knew, too, how
they afford a ready pretext for usurpation. We may also suspect that they
suspected that emergency powers would tend to kindle emergencies.
Aside from suspension of the privilege of the writ of habeas corpus in time
of rebellion or invasion, when the public safety may require it, they made
no express provision for exercise of extraordinary authority because of a
crisis. I do not think we rightfully may so amend their work. . . .” (footnotes
omitted)).
24

ROBIN ROEBUCK v. MAYO CLINIC, ET AL.
Justice Bolick, Dissenting in part, Dissenting from the judgment, and
Concurring in part with which Justice Montgomery joins

an epidemic, this provision appears as an emphatic rejection of the
principles announced in that decision.

¶67 Among the many provisions of the Arizona Constitution that
I wish were present in its national counterpart is article 2, section 32, which
provides in simple declarative language that “[t]he provisions of this
Constitution are mandatory, unless by express words they are declared to
be otherwise.” As judges who take an oath to the Arizona Constitution, we
are not free to disregard or adulterate its guarantees. That emphatically
includes the individual rights guaranteed by our Constitution that could be
eviscerated by an invocation of emergency powers.

¶68 Similarly, the first section of our Declaration of Rights
instructs that “[a] frequent recurrence to fundamental principles is essential
to the security of individual rights and the perpetuity of free government.”
Ariz. Const. art. 2, § 1. That directive is deeply embedded in our
constitutional heritage. As this Court recently observed, Arizona’s
enabling act required that our state constitution “shall not be repugnant to
the Constitution of the United States and the principles of the Declaration
of Independence.” Beck v. Neville, 256 Ariz. 415, 423 (2024) (citing A.R.S.,
Enab. Act, Sec. 20). The preamble of the Declaration of Independence, in
turn, proclaimed the unalienable rights of life, liberty, and the pursuit of
happiness, and declared “[t]hat to secure these rights, Governments are
instituted among Men, deriving their just powers from the consent of the
governed.” The Declaration of Independence para. 2 (U.S. 1776). Which
brings us full circle to the exact same purpose of government established in
article 2, section 2 of the Arizona Constitution. Our constitution is
manifestly inconsistent with an inchoate concept of government powers
that expand in an emergency.

¶69 The State assures that we need not worry about a wholesale
violation of individual rights during a declared emergency because such
powers imply a “limiting principle,” namely that “emergency powers
terminate when there’s no longer any necessity and there’s no emergency.”
The most eloquent response to that argument of which I am aware was
made by the great Justice Robert H. Jackson in his Korematsu dissent, voting
to strike down an emergency military order requiring the internment of
Japanese-Americans. The passage is lengthy but worth quoting in full:

25

ROBIN ROEBUCK v. MAYO CLINIC, ET AL.
Justice Bolick, Dissenting in part, Dissenting from the judgment, and
Concurring in part with which Justice Montgomery joins

[A] judicial construction of the due process clause that will
sustain this order is a far more subtle blow to liberty than the
order itself. A military order, however unconstitutional, is
not apt to last longer than the military emergency. . . . But
once a judicial opinion rationalizes such an order to show that
it conforms to the Constitution, . . . the Court for all time has
validated the principle of racial discrimination in criminal
procedure and of transplanting Americans. The principle
then lies around like a loaded weapon ready for the hand of
any authority that can bring forward a plausible claim of an
urgent need. Every repetition imbeds that principle more
deeply in our law and thinking and expands it to new
purposes.

323 U.S. at 245-46 (Jackson, J., dissenting).

¶70 Just as the U.S. Supreme Court eventually consigned
Korematsu to its overdue demise, so too is it fitting for this Court to
repudiate the notion of inherent emergency powers under the Arizona
Constitution. The hallmark of a healthy constitutional republic is not only
that it protects individual rights against the majority, but that it does so
even (and perhaps especially) during proclaimed emergencies. Ex parte
Milligan, 71 U.S. 2, 121 (1866) (“No doctrine, involving more pernicious
consequences, was ever invented by the wit of man than that any of its
provisions can be suspended during any of the great exigencies of
government.”). That is the vital principle this Court vindicates today.

C.

¶71 I also agree with my colleagues in rejecting the Arizona
Chamber of Commerce’s argument that the challenged statute confers
derivative sovereign immunity on those it seeks to protect. I write only to
emphasize that if this argument were to succeed, it would expose private
entities to liability for acting under “color of state law” under 42 U.S.C.
§ 1983, as well as potentially making them state actors for purposes of
constitutional actions against them. See, e.g., Manhattan Comm. Access Corp.
v. Halleck, 587 U.S. 802 (2019).

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ROBIN ROEBUCK v. MAYO CLINIC, ET AL.
Justice Bolick, Dissenting in part, Dissenting from the judgment, and
Concurring in part with which Justice Montgomery joins

¶72 The U.S. Constitution textually demarcates private from state
action, and exposes only the latter to constitutional proscriptions. See, e.g.,
Civil Rights Cases, 109 U.S. 3, 11 (1883) (“It is State action of a particular
character that is prohibited. Individual invasion of individual rights is not
the subject-matter of the amendment.”); Halleck, 587 U.S. at 804 (“The First
Amendment constrains governmental actors and protects private actors.”).
That line may be eroding. Compare Blum v. Yaretsky, 457 U.S. 991, 1004
(1982) (explaining that state action exists where government exerts
“coercive power” or provides “significant encouragement” so that “the
choice must in law be deemed to be that of the State”); and Norwood v.
Harrison, 413 U.S. 455, 465 (1973) (“It is also axiomatic that a state may not
induce, encourage or promote private persons to accomplish what it is
constitutionally forbidden to accomplish.” (citation omitted)), with Murthy
v. Missouri, 603 U.S. 43, 76–81 (2024) (Alito, J., dissenting) (characterizing
the government’s campaign of pressure and threats against online
platforms’ exercise of editorial discretion as “jawboning” that transforms
private moderation into state action); and Nat’l Rifle Ass’n of Am. v. Vullo, 602 U.S. 175, 198 (2024) (holding that the NRA’s allegations that a regulator
coerced banks and insurers to cut ties with the NRA because of its views
stated a First Amendment claim); see also Moody v. NetChoice, LLC, 603 U.S.
707, 794 (2024) (Alito, J., concurring in the judgment) (suggesting that
whether platforms like YouTube and Facebook—“the 21st-century
equivalent of the old ‘public square’”—“should be viewed as common
carriers” is an argument that “deserves serious treatment”); and Halleck, 587
U.S. at 828 (Sotomayor, J., dissenting) (arguing that public-access channel
operators performed a quintessentially public function and should be
treated as state actors). For a business association to attempt to invoke
sovereign immunity for the momentary gain of limiting liability in personal
injury cases, while thereby potentially exposing businesses to broad
liability for constitutional and statutory violations that ordinarily apply
only to the government, strikes me as shortsighted. I agree with my
colleagues that it fails as a matter of law.

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