Clouse Ex Rel. Clouse v. State

16 P.3d 757, 199 Ariz. 196, 340 Ariz. Adv. Rep. 25, 2001 Ariz. LEXIS 19

• Court: Arizona Supreme Court
• Decided: February 1, 2001
• Docket: CV-99-0023-PR
• Status: Published

Opinions

AMENDED OPINION

MCGREGOR, Justice.

¶ 1 We accepted review to decide whether the legislature exceeded its constitutional authority when it adopted Arizona Revised Statutes Annotated (A.R.S.) section 12-820.02.A.1, which provides qualified immunity to public entities and employees for an employee’s failure to retain an arrested person in custody. We conclude that the legislature acted within the power granted it by article IV, part 2, section 18 of the Arizona Constitution.

I.

¶2 On April 29, 1995, David Van Horn stole David Oakes’ truck in Maricopa County, Arizona and fled toward Pinal County. Mr. Oakes’ son-in-law, David Ahrendt, pursued Van Horn. After they entered Pinal County, Van Horn attempted to kill Ahrendt by running him down with the stolen truck. Shortly thereafter, Department of Public Safety (DPS) Officer Andrew Dobbins arrested Van Horn in Pinal County. Meanwhile, Maricopa County Sheriffs Office (MCSO) Deputy Robert Judd took the theft report in Maricopa County.

¶ 3 After talking with Deputy Judd, Officer Dobbins understood that Van Horn would be prosecuted in Maricopa County. Unfortunately, neither officer filed an arrest report. On May 4, a MCSO van arrived to transport another inmate from Pinal County to Maricopa County. Officers placed Van Horn, against whom no criminal complaint had yet been filed, in the van. When the two deputies transporting Van Horn realized that he was being held unlawfully,¹ they released him on the side of the highway. Van Horn then stole another vehicle, and with a companion, Diane Wilson, drove to New Mexico, where he committed several violent crimes.

¶ 4 Together, Van Horn and Wilson invaded the home of the Clouses, and abused and terrorized them. They then set fire to the home and watched it burn with the Clouses still inside. Mrs. Clouse died; Mr. Clouse survived. In the ensuing manhunt, Van Horn shot Deputy Lisandro Salinas, a New Mexico peace officer, who survived.

¶5 Mr. Clouse and his son, and Deputy Salinas and his wife and children, sued the State of Arizona and Maricopa County, alleging that their officers were negligent and grossly negligent in failing to retain Van Horn in custody. As a defense, the defendants invoked A.R.S. section 12-820.02.A.1, which requires proof of gross negligence on this claim.² Plaintiffs then moved for partial summary judgment, arguing that because the statute eliminates simple negligence claims, it violates the anti-abrogation clause of the Arizona Constitution. See Aeiz. Const, art. XVIII, § 6. The trial judge denied the motion. At the close of evidence, the court submitted the claims against the county and state defendants to the jury with only a gross negligence instruction.

¶ 6 The jury found against the county defendants and in favor of the state defendants.³ On review, the court of appeals agreed that A.R.S. section 12-820.02.A.I does not violate the anti-abrogation clause. Plaintiffs then petitioned this court for review.

¶ 7 We exercised jurisdiction pursuant to article VI, section 5.3 of the Arizona Constitution, Rule 23 of the Arizona Rules of Civil Appellate Procedure, and A.R.S. section 12-120.24. After publishing our opinion, we granted motions to intervene and for clarification filed by amicus curiae, vacated our earlier opinion by order, and filed this amended opinion.⁴

II.

A.

¶ 8 The doctrine of sovereign immunity precludes bringing suit against the government without its consent. It 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 Ariz. 424, 426,189 P. 631, 633 (1920).

¶ 9 Governmental immunity retained its place in Arizona law until 1963. In Stone v. Arizona Highway Commission, 93 Ariz. 384, 381 P.2d 107 (1963), convinced that the doctrine had become unjust and outmoded and that its application created many inequities, this court abolished the substantive defense of governmental immunity. Id. at 392, 381 P.2d at 112.

¶ 10 At that point, plaintiffs assert, negligence actions against the government gained the protection of the anti-abrogation clause,⁶ and any future legislative attempt to abolish an action against the state under the guise of affording immunity would violate the Arizona Constitution. The state contends, first, that the anti-abrogation clause does not apply to actions against the sovereign. Alternatively, the state argues, a more specific provision of the constitution, article IV, part 2, section 18 (the immunity clause) empowers the legislature to enact the challenged statute.

¶ 11 “It 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.” de’Sha v. Reed, 194 Colo. 367, 572 P.2d 821, 823 (1977). The language of the anti-abrogation clause applies generally to “the right of action to recover damages for injuries.” The immunity clause, on the other hand, applies only and specifically to “suits brought against the State.” Under such circumstances, the

“ ‘general provision is controlled by one that is special, the latter being treated as an exception to the former. A specific provision relating to a particular subject will govern in respect to that subject, as against a general provision, although the latter, standing alone, would be broad enough to include the subject to which the more particular provision relates.’ ”

Miller v. Superior Court, 21 Cal.4th 883, 89 Cal.Rptr.2d 834, 986 P.2d 170, 177 (1999) (quoting San Francisco Taxpayers Ass’n v. Board of Supervisors, 2 Cal.4th 571, 7 Cal. Rptr.2d 245, 828 P.2d 147 (1992)). Because the immunity clause directly addresses the. authority of the legislature in relation to actions against the state, we resolve the issue before us by applying the immunity clause.

B.

¶ 12 In Ryan v. State, 134 Ariz. 308, 656 P.2d 597 (1982), we considered how to define the parameters of the state’s immunity. We proposed “endorsing] the use of governmental immunity as a defense only when its application is necessary to avoid a severe hampering of governmental function or [a] thwarting of established public policy.” Id. at 311, 656 P.2d at 600. We also invited the legislature to address those areas that might need the protection of absolute immunity or qualified immunity. Id. at 310, 656 P.2d at 599 (“[T]he legislature may in its wisdom wish to intervene in some aspects of this development.”).

¶ 13 In response to that invitation, in 1984 the legislature adopted the Actions Against Public Entities or Public Employees Act, which is codified at A.R.S. sections 12-820 to 12-826. “The legislation provides for absolute immunity, qualified immunity, and affirmative defenses in favor of public entities and public employees. The level of immunity or affirmative defense available to a public employee in a particular action depends upon the nature of the activity giving rise to the potential liability.” James L. Conlogue, Note, A Separation of Powers Analysis of the Absolute Immunity of Public Entities, 28 ArizL.Rev. 49, 49 (1986).

¶ 14 The legislature’s decision to codify the doctrine of sovereign immunity was consistent with the approach taken in other jurisdictions. Although most states have waived their sovereign immunity, either through judicial abrogation or legislative waiver, all fifty states have enacted some form of a “Tort Claims Act” to define, and sometimes to reestablish, the parameters of governmental liability. See 57 Am.JuR.2d Municipal, County, School, and State Tort Liability § 129 (1988). Similarly, the federal government waived its sovereign immunity, but then enacted a form of governmental immunity by adopting the Federal Tort Claims Act. See generally 28 U.S.C.A. §§ 1291, 1346, 1402, 2401, 2402, 2411, 2412, 2671 to 2680. In all these instances, the legislative branch reenacted some form of governmental immunity after the doctrine was “abolished,” either judicially or legislatively.

¶ 15 If the Arizona Legislature has authority to define those areas in which absolute or qualified immunity protects public entities and employees from liability, its authority derives from the immunity provision, article IV, part 2, section 18, of the Arizona Constitution. That provision states: “The Legislature shall direct by law in what manner and in what courts suits may be brought against the state.” We have not had reason to consider the extent of the legislature’s authority under the immunity provision, and because the drafters, of the constitution did not debate this provision, we have no history to guide us. See generally The Records of the Arizona Constitution of 1910 (John S. Goff ed., n.d .) Decisions from our sister jurisdictions, however, provide guidance.

¶ 16 Eighteen other state constitutions contain language identical or similar to Arizona’s immunity provision.⁷ As far as we can determine, every jurisdiction that has construed such a constitutional immunity clause has held that the provision gives the legislature authority to determine the scope of governmental immunity. The majority of those states with a similar provision have concluded that this language “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.⁸

¶ 17 Washington, for instance, adopted its constitution in 1895 and included an immunity clause identical to that later used in the Arizona Constitution. See Wash. Const. art. II, § 26. Washington has construed its immunity provision on several occasions and, because we adopted many of our provisions from the Washington Constitution, the judicial decisions of that state can be persuasive, although not controlling.⁹ Like Arizona, Washington followed the common law doctrine of sovereign immunity. See Deaconess Hosp. v. Washington State Highway Comm’n, 66 Wash.2d 378, 403 P.2d 54, 59 (1965). The Washington Supreme Court explicitly recognized the power over sovereign immunity conferred upon the legislature by its constitution: “ ‘This state has by its Constitution (art. II, § 26) empowered the Legislature to direct by law in what manner and in what courts suits may be brought against it ____Id. at 60 (quoting State ex rel. Pierce County v. Superior Court, 86 Wash. 685, 151 P. 108 (1915)). Relying upon article II, section 26 of the Washington Constitution, the Washington court held that the right to sue the state is a matter of legislative grace. See Haddenham v. Washington, 87 Wash.2d 145, 550 P.2d 9,12 (1976); see also, e.g., Cook v. Washington, 83 Wash.2d 599, 521 P.2d 725, 727 (1974) (referring to the legislative obligation to control and condition suits against the state as commanded by article II, section 26 of the Washington Constitution); Andrews v. Washington, 65 Wash.App. 734, 829 P.2d 250, 251-52 (1992) (“[W]e start with the proposition that the abolition of sovereign immunity is a matter within the legislature’s determination. This is not because the court says so, but because the constitution so states.”).

¶ 18 In other states, including Arizona, the court, rather than the legislature, abolished the judicially-created doctrine of sovereign immunity. In many of these states, the respective state legislatures reinstated some form of governmental immunity under the authority of constitutional language similar to article IV, part 2, section 18 of the Arizona Constitution.¹⁰ In each instance, the state court concluded that the immunity clause granted the legislature authority over the scope of the state’s immunity, and upheld the statute adopted by the legislature.

¶ 19 Until our decision in Stone, this court had refused invitations to abolish the doctrine of sovereign immunity, holding that the authority to do so rested solely with the legislature. See, e.g., Lee v. Dunklee, 84 Ariz. 260, 263-64, 326 P.2d 1117, 1119 (1958) (“[Wjhether 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.”). Our decision in Stone gives no indication that the parties asked us to consider whether article IV, part 2, section 18 limited our authority to abolish sovereign immunity, although we did consider the actions of other jurisdictions that had judicially abolished the doctrine. See Stone, 93 Ariz. at 390-92, 381 P.2d at 113-15. Neither in Stone nor in any other decision did we address the issue we consider today.

¶ 20 Although we have never addressed explicitly whether the immunity clause permits the legislature to define those instances in which governmental immunity prevents or limits actions against the state, we have done so implicitly. In a long line of cases handed down after Stone, we have enforced statutes that confer either absolute or qualified immunity upon public entities. Although our decisions since Stone follow a somewhat circuitous route, we have never suggested that Stone prohibits all forms of governmental immunity. To the contrary, we consistently have recognized the power of the legislature to retain or confer immunity where appropriate.

¶21 In our first detailed analysis of governmental immunity after Stone, we considered whether members of the Board of Pardons and Paroles should receive partial or absolute immunity for their allegedly negligent act of releasing a prisoner who, while on parole, murdered one man and shot another. See Grimm v. Arizona Bd. of Pardons & Paroles, 115 Ariz. 260, 564 P.2d 1227 (1977). Rejecting the approach earlier taken by the court of appeals,¹¹ we held that public officials performing discretionary functions other than true judicial functions are not necessarily entitled to absolute immunity. Id. at. 264, 564 P.2d at 1231. We did not, however, hold or even suggest that litigants can pursue actions alleging governmental negligence without regard to the doctrine of immunity. Rather, we recognized that the then current version of A.R .S. section 31^112 provided support for awarding partial immunity. See id. at 265, 564 P.2d at 1232 (“The board members should not bear liability for taking the risk allocated to them as a statutory duty.”). We then established a new test for determining whether public officials would benefit from immunity and adopted what became known as the public/private duty distinction.¹² We also held, however, that while the members of the Board of Pardons and Paroles would receive only partial immunity from suit, they could be held liable “only for grossly negligent or reckless acts.” Id. at 267, 564 P.2d at 1234. In other words, we approved a standard for liability comparable to that which the plaintiffs challenge here, as established by the legislature in A.R.S. section 12-820.02.

¶ 22 Similarly, in Ryan v. State, after considering the circumstances under which this court would afford immunity, we noted that what was then A.R.S. section 41-621.G should allay any fear that people would be afraid to operate in their official capacities, because the statute gave “state officers, agents and employees immunity from personal liability for discretionary acts done ‘in good faith without wanton disregard of his statutory duties.’ ” 134 Ariz. at 310, 656 P.2d at 599. We did not suggest that the legislature acted improperly in granting partial immunity under the circumstan'ces defined in the statute or that future attempts by the legislature to act similarly would be invalid. In fact, as noted above, we expressly invited the legislature to address those areas that might need the protection of absolute or qualified immunity. Id.

¶23 The Arizona Court of Appeals also frequently has considered and applied statutes affording immunity without suggesting that the legislature lacked power to adopt such statutes.¹³ All these decisions implicitly support the view we make explicit today.

C.

¶ 24 We conclude that the immunity clause, by authorizing the legislature to direct by law the manner in which suits may be brought against the state, confers upon the legislature a power to control actions against the state that it does not possess with regard to actions against or between private parties. We further hold that the legislature did not exceed the authority granted it by article IV, part 2, section 18 when it adopted A.R.S. section 12-820 .02.A.

¶ 25 Our conclusion does not mean, as the dissent avers, that the legislature is now “empowered to do anything it wants with regard to the grant of absolute or partial immunity to public entities (whatever that means), to public employees of those entities (whatever that includes), and to heaven knows who and what else.” Infra ¶ 79 (parenthetical in original). Rather, we recognize nothing more than the express authority the Arizona Constitution confers upon the legislature to define those instances in which public entities and employees are entitled to immunity. The legislature possesses this authority not because we say so, but because our Constitution so directs.

¶ 26 In this case, the plaintiffs’ allegations that the defendants negligently failed to retain Van Horn in custody fall directly within the language of A.R.S. section 12-820.02.-A.l. The statute explicitly confers qualified, not absolute, immunity for the failure to retain an arrested person in custody, and this specific statutory grant of partial immunity controls the degree of immunity afforded these defendants. While the dissent disagrees with the legislative decision that A.R.S. section 12-820.02 furthers a valid public policy, infra ¶42, our constitution instructs that, in this instance, the decision is for the legislature, not for the court.

¶ 27 The legislative enactment of a specific statutory provision that applies to the actions and entities involved here also serves to distinguish this situation from that which we considered in cases such as Ruth v. Rhodes, 66 Ariz. 129, 185 P.2d 304 (1947) and Ryan, 134 Ariz. 308, 656 P.2d 597. In those cases, we applied common law immunity principles in the absence of any statutory direction. After Ryan, however, the legislature provided the missing direction, as the constitution permits.

D.

¶28 Finally, we address briefly the concerns expressed by the dissent over the “unclear reach” of this opinion. See infra ¶ 71. The statutory scheme itself answers some of the dissent’s concerns. For instance, the immunity granted by statute extends to public employees acting within the scope of their employment, not to private activities of the employee, by the terms of A.R.S. section 12-820.02.A.¹⁴ A public employee’s failure to retain an arrested person in custody involves clearly governmental activity. Accordingly, our holding today does not address the liability of public entities for proprietary activity. Although future actions may involve this and other questions, they are not before us today. See San Carlos Apache Tribe v. Superior Court, 193 Ariz. 195, 203, 972 P.2d 179, 187 (1999) (“We ... confine ourselves to determining those issues properly raised by the parties and necessary to our determination of the validity of the challenged legislation.”); J.D.S. v. Franks, 182 Ariz. 81, 95, 893 P.2d 732, 746 (1995) (“[W]e need not decide this issue to resolve this case, we will leave it to another day.”).

III.

¶29 For the foregoing reasons, we conclude that the trial court correctly instructed the jury that it could return a verdict against the public defendants only if the plaintiffs established gross negligence. We therefore affirm the judgment of the trial court and vacate the opinion of the court of appeals.

CONCURRING: JONES, Vice Chief Justice, and MARTONE, Justice.

1 . See Ariz R.Crim.P. 4.1(b) ("If a complaint is not filed within 48 hours from the time of the initial appearance before the magistrate, the defendant shall be released.... ”).

2 . A.R.S. § 12-820.02.A. 1 (West Supp.1999) provides:

A. Unless a public employee acting within the scope of the public employee’s employment intended to cause injury or was grossly negligent, neither a public entity nor a public employee is liable for:

1. The failure to make an arrest or the failure to retain an arrested person in custody.

3 . The jury apportioned no fault to the state; 15 percent to the county; 50 percent to Van Horn; and 35 percent to Van Horn's companion.

4 . This amended opinion clarifies the original opinion by removing dicta from paragraph 28.

5 . For a complete discussion of the background of the doctrine of sovereign immunity and its use in Arizona, see Stone v. Arizona- Highway Comm'n, 93 Ariz. 384, 381 P.2d 107 (1963).

6 . Arizona’s anti-abrogation clause, also referred to as an “open courts" provision, 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.” Ariz Const, art. XVIII, § 6. See also Ariz. Const, art. II, § 11 ("Justice in all cases shall be administered openly, and without unnecessary delay.”). Article II, section 11, has also been characterized as an "open courts” and "speedy trial” provision. See State v. Ramirez, 178 Ariz. 116, 127, 871 P.2d 237, 248 (19941

7 . See Alaska Const. art. II, § 21; Del. Const art. I, § 9; Fla. Const. art. X, § 13; Ga Const. art. I, § II, P. IX; Ind. Const. art. 4, § 24; Ky. Const. § 231; Neb Const. art. V, § 22; Nev. Const art. 4, § 22; N.Y. Const art. VI, § 18.b; Ohio Const. art. I, § 16; Or. Const. art. IV, § 24; Pa. Const. art. I, § 11; S.C. Const. art. X, § 10; S.C. Const. art. XVII, § 2; S.D. Const. art. III, § 27; Tenn. Const. art. I, § 17; Wa. Const. art. II, § 26; Wis. Const art. IV, § 27; Wyo. Const. 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 Constitution provides that the sovereign immunity of the state may be waived only by general law. Since the power to waive the state’s immunity is vested exclusively in the Legislature, a city may not waive sovereign immunity by local law.”); Porter v. Home Indem. Co., 168 Ga.App. 799, 310 S.E.2d 546, 547 (1983) ("Governmental immunity from suit is waived only when so provided by the Constitution or by the express act of the General Assembly."); Kentucky Center for the Arts, Corp. v. Berns, 801 S.W.2d 327, 329 (Ky.1990) (Section 231 has been "interpreted through the years to constitutionalize the common law doctrine of sovereign immunity in suits brought against the Commonwealth.’’); Schrader v. Veatch, 216 Or. 105, 337 P.2d 814, 816 (1959) (immunity from suit is a sovereign right subject to waiver only by legislative determination); Arcon Constr. Co. 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. It 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. The 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. Const, art. 1, § 8 requires explicit legislative authorization before a suit can be maintained against the state.”).

9 . See Solana Land Co. v. Murphey, 69 Ariz. 117, 124, 210 P.2d 593, 597 (1949) ("While the opinion from the Supreme Court of Washington is not controlling, it is peculiarly persuasive both by reason of its sound reasoning as well as the fact that our constitutional provision on eminent domain was obviously copied from the constitution of that state.”); see also State v. Reinhold, 123 Ariz. 50, 56, 597 P.2d 532, 538 (1979) (construing article VI, section 27, of the Arizona Constitution and according deference to recent cases from the State of Washington interpreting an identical provision of its state constitution); Faires v. Frohmiller, 49 Ariz. 366, 371-72, 67 P.2d 470, 472 (1937) (construing article VI, the court held that the decisions from Washington and California, so far as they declare or indicate the views in those jurisdictions on the question at issue, are very persuasive), superseded by statute as stated in Ward v. Stevens, 86 Ariz. 222, 344 P.2d 491 (1959); Bickel v. Hansen, 169 Ariz. 371, 374, 819 P.2d 957, 960 (App.1991) (noting that decisions from the State of Washington are persuasive while construing article II, section 17 of the Arizona Constitution); Gulotta v. Triano, 125 Ariz. 144, 146, 608 P.2d 81, 83 (App.1980) (same).

10 . See, e.g., City of Wilmington v. Spencer, 391 A.2d 199 (Del.1978), superseded by statute and rule as stated in Porter v. Delmarva Power & Light Co., 488 A.2d 899, 901-02 (Del.Super.Ct.1984); Hargrove v. Town of Cocoa Beach, 96 So.2d 130 (Fla. 1957), superseded by statute as stated in Cauley v. City of Jacksonville, 403 So.2d 379, 383-84 (Fla.1981); Campbell v. Indiana, 259 Ind. 55, 284 N.E.2d 733 (1972), superseded by statute as stated in Holtz v. Board of Comm’rs of Elkhart County, 548 N.E.2d 1220, 1220 (Ind.Ct.App. 1990) (“The Tort Claims Act was enacted by the legislature in 1974, in response to the [judicial] abrogation of the defense of sovereign immunity.”), overruled on other grounds by 560 N.E.2d 645 (Ind. 1990); Brown v. City of Omaha, 183 Neb. 430, 160 N.W.2d 805, 808 (1968) (stating that both the court and the legislature have the authority to waive sovereign immunity); Concerned Citizens of Kimball County, Inc. v. Department of Envtl. Control, 244 Neb. 152, 505 N.W.2d 654, 658 (1993) ("Article V, § 22, is not self-executing. Legislative 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. It 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. I, § 16, is not self-executing, and statutory consent is a prerequisite to such suits. It does not authorize actions against the state, but empowers the legislature to enact legislation providing for suits against the state.); Tabernacle Prayer Church v. City of Columbus, 114 Ohio App.3d 673, 683 N.E.2d 873, 874 (1996) ("Appellant is correct that [Ohio courts] abolished, to a large extent, the defense of sovereign immunity as applied to municipal corporations; however, subsequent to those decisions the legislature enacted R.C. Chapter 2744, which restored governmental immunity to municipal corporations subject to certain exceptions."); Ayala v. Philadelphia Bd. of Pub. Educ., 453 Pa. 584, 305 A.2d 877 (1973) superseded by statute as recognized in Michel v. City of Bethlehem, 84 Pa.Cmwlth. 43, 478 A.2d 164, 165 (1984) ("[T]he Pennsylvania Supreme Court abrogated the doctrine of governmental immunity in Pennsylvania. In response, the Pennsylvania Legislature, pursuant to Article I, Section 11 of the Pennsylvania Constitution, enacted the Political Subdivisions Tort Claims Act.”); McCall v. Batson, 285 S.C. 243, 329 S.E.2d 741 (1985), superseded by statute as recognized in Murphy v. Richland Mem. Hasp., 317 S.C. 560, 455 S.E.2d 688, 690 (1995) ("In response to our decision in McCall, the legislature implemented a comprehensive act providing for the logical disposition of governmental liability.”); Holytz v. Milwaukee, 17 Wis.2d 26, 115 N.W.2d 618 (1962), superseded by statute as recognized by Nielsen v. Town of Silver Cliff, 112 Wis.2d 574, 334 N.W.2d 242, 244 (1983) ("Shortly after the Holytz decision, the legislature enacted [a tort claims act, which] established liability limitations and notice requirements for tort actions against local units of government.”); see also 57 Am.Jur.2d Municipal, County, School, and State Tort Liability §§ 19, 29 & 129 (1988).

11 . See Industrial Comm'n v. Superior Court, 5 Ariz.App. 100, 423 P.2d 375 (1967) (holding that administrative officials are immune from suit for activities performed while acting in a discretionary, quasi-judicial capacity).

12 . Under that approach, a public entity could be sued if it violated a duty owed to an individual member of the public, but not if it violated a duty owed to the general public. Grimm v. Arizona Bd. of Pardons & Paroles, 115 Ariz. 260, 267, 564 P.2d 1227, 1234(1977).

13 . See, e.g., Link v. Pima County, 193 Ariz. 336, 972 P.2d 669 (App.1998) (applying A.R.S. section 12-820.01); Luchanski v. Congrove, 193 Ariz. 176, 971 P.2d 636 (App.1998) (upholding qualified immunity statute in the context of self-injured arrestee); de la Cruz v. State, 192 Ariz. 122, 961 P.2d 1070 (App.1998) (discussing, but not applying, absolute and qualified immunity under A.R.S. section 12-820); Diaz v. Magma Copper Co., 190 Ariz. 544, 950 P.2d 1165 (App.1997) (rejecting the state's argument for absolute immunity under A.R.S. section 12-820.01.A without considering the validity of the immunity statute); Galati v. Lake Havasu City, 186 Ariz. 131, 920 P.2d 11 (App.1996) (discussing absolute immunity under section 12-820.01.A but no discussion regarding validity of statute); Bird. v. State, 170 Ariz. 20, 821 P.2d 287 (App.1991) (discussing absolute and qualified immunity under A.R.S. sections 12-820.01 and 12-820.02).

14 . The dissent takes the majority to task for failing to separately discuss the immunity the statute affords to public employees, with particular reference to Deputy Dobbins, infra ¶¶ 52 to 65, and states the dissent would respond to the "majority analysis on this point if only it had presented one.” Infra V 55. What the dissent ignores is that no party either raised or argued this issue. The plaintiffs never asserted, in the trial court, in the court of appeals, or before this court, that a different rule of immunity must apply to the deputy than to his employer. Moreover, the record makes clear that plaintiffs did not name the deputy in his individual capacity. This court traditionally does not address issues not presented by the parties, see San Carlos Apache Tribe v. Superior Court, 193 Ariz. 195, 203, 972 P.2d 179, 187 (1999), and the majority does not do so in this case.