Estate of braden/gabaldon v. State ( 2011 )

SUPREME COURT OF ARIZONA
En Banc
ESTATE OF JACOB BRADEN, by and ) Arizona Supreme Court
through its personal ) No. CV-10-0300-PR
representative, TONYA GABALDON, )
) Court of Appeals
Plaintiff/Appellant, ) Division One
) No. 1 CA-CV 08-0764
v. )
) Maricopa County
THE STATE OF ARIZONA, a body ) Superior Court
politic; and THE DIVISION OF ) No. CV2006-006902
DEVELOPMENTAL DISABILITIES OF )
THE ARIZONA DEPARTMENT OF )
ECONOMIC SECURITY, a body )
politic, ) O P I N I O N
)
Defendants/Appellees. )
)
__________________________________)
Appeal from the Superior Court in Maricopa County
The Honorable F. Pendleton Gaines, Judge
AFFIRMED
________________________________________________________________
Opinion of the Court of Appeals Division One
225 Ariz. 391, 238 P.3d 1265 (2010)
VACATED
________________________________________________________________
KNAPP & ROBERTS, P.C. Scottsdale
By Craig A. Knapp, Dana R. Roberts, and David L. Abney
And
LAW OFFICE OF SCOTT E. BOEHM, P.C. Phoenix
By Scott E. Boehm
And
WARNOCK, MACKINLAY & CARMAN, P.L.L.C. Prescott
By Krista M. Carman
Attorneys for the Estate of Jacob Braden and Tonya Gabaldon
1
THOMAS C. HORNE, ARIZONA ATTORNEY GENERAL Phoenix
By Fred M. Zeder, Assistant Attorney General
Michael G. Gaughan, Assistant Attorney General
Daniel P. Schaack, Assistant Attorney General
Attorneys for State of Arizona and Arizona Department of
Economic Security Division of Developmental Disabilities
________________________________________________________________
B R U T I N E L, Justice
¶1 The issue in this case is whether the Adult Protective
Services Act (“APSA”), A.R.S. § 46-455 (2011), subjects the
state to an action for damages under that statute. We hold that
it does not and, therefore, affirm the superior court’s summary
judgment in favor of the State.
I.
¶2 Jacob Braden, an adult with developmental
disabilities, received services from Arizona Integrated
Residential and Educational Services (“AIRES”), a licensed
private corporation that contracted with the Arizona Department
of Economic Security’s Division of Developmental Disabilities to
provide services for Jacob. In 2005, Jacob died as a result of
injuries suffered while residing at an AIRES facility. Jacob’s
estate sued the State alleging a statutory claim under APSA for
abuse and neglect.1
¶3 The State moved for summary judgment, arguing that it
was not a proper defendant under A.R.S. § 46-455, and the trial
1. The Estate also sued AIRES and the Division of
Developmental Disabilities of the Arizona Department of Economic
Security, neither of which are parties to this appeal.
2
court granted the motion. In a split decision, the court of
appeals reversed. Estate of Braden v. State, 225 Ariz. 391,
397–99 ¶¶ 24–36, 238 P.3d 1265, 1271–73 (App. 2010). The
majority concluded that the State was not exempt from liability
under § 46-455. Id. The dissent, however, would have affirmed
the trial court’s ruling, finding that “the legislature did not
intend the State to be one of the enterprises included within
A.R.S. § 46-455(B).” Id. at 399–400 ¶ 38 n.9, 238 P.3d at 1273–
74 n.9 (Hall, J., dissenting).
¶4 We granted review because this case presents a
recurring and purely legal issue of statewide importance. We
have jurisdiction under Article 6, Section 5(3) of the Arizona
Constitution and A.R.S. § 12-120.24.
II.
A.
¶5 We are not called on today to consider whether the
state may be liable under a common law negligence theory or
under Arizona’s wrongful death statute, A.R.S. § 12-611. Nor do
we consider the potential liability of individual state
employees. This case concerns only the state’s exposure to
liability under APSA.
B.
¶6 Section 46-455 is part of a statutory scheme that
protects vulnerable adults by imposing criminal penalties on and
3
providing for civil enforcement against those who violate its
terms. When first enacted in 1988, APSA provided only criminal
penalties against certain “persons” who caused an incapacitated
adult to be endangered, injured, or imperiled by neglect. 1988
Ariz. Sess. Laws, ch. 85, § 2 (2d Reg. Sess.). In 1989, the
legislature amended the statute to add a civil cause of action.
1989 Ariz. Sess. Laws, ch. 118, § 3 (1st Reg. Sess.). The
relevant provision, which is at issue here, now states:
A vulnerable adult whose life or health is
being or has been endangered or injured by
neglect, abuse or exploitation may file an
action in superior court against any person
or enterprise that has been employed to
provide care, that has assumed a legal duty
to provide care or that has been appointed
by a court to provide care to such
vulnerable adult for having caused or
permitted such conduct.
A.R.S. § 46-455(B) (emphasis added). Thus, the civil damages
provision in § 46-455 expanded the scope of potential liability
beyond “persons” to also include “enterprises” when the other
elements of subsection (B) are established.
¶7 At the same time it created a civil damages action
under APSA, the legislature broadened the statute to recognize
the state’s central role in both civil and criminal enforcement.
APSA authorizes the state to file civil actions on behalf of
vulnerable adults who are endangered or injured by neglect,
abuse, or exploitation, § 46-455(E), and to intervene in any
4
private action that is of special public importance, § 46-
455(M). Additionally, APSA requires the state to maintain an
abuse registry regarding persons and enterprises against whom
civil or criminal complaints have been filed for abuse, neglect,
or exploitation of vulnerable adults. A.R.S. § 46-457(D).
C.
¶8 Our goal “in interpreting statutes is to give effect
to the intent of the legislature.” In re Estate of Winn, 214
Ariz. 149, 151 ¶ 8, 150 P.3d 236, 238 (2007). “When the plain
text of a statute is clear and unambiguous there is no need to
resort to other methods of statutory interpretation to determine
the legislature's intent because its intent is readily
discernable from the face of the statute.” State v. Christian,
205 Ariz. 64, 66 ¶ 6, 66 P.3d 1241, 1243 (2003). Statutory
terms, however, must be considered in context. See State v.
Wise, 137 Ariz. 468, 470 n.3, 671 P.2d 909, 911 n.3 (1983).
¶9 Both the court of appeals majority and our dissenting
colleagues correctly note that because APSA is remedial in
nature, it warrants a broad interpretation. But “[a] liberal
construction is not synonymous with a generous interpretation,”
Nicholson v. Indus. Comm’n, 76 Ariz. 105, 109, 259 P.2d 547, 549
(1953), and we will not impose “[a] burden or liability not
within the terms or spirit of the law,” Goodyear Aircraft Corp.
v. Indus. Comm’n, 62 Ariz. 398, 402, 158 P.2d 511, 513 (1945).
5
¶10 We first examine APSA’s language to determine if it
has a plain meaning and clearly reflects the legislature’s
intent. As explained below, we conclude that its meaning is not
entirely clear. The text of § 46-455(B) permits an APSA action
to be filed against a person or an enterprise. APSA does not
define the term “person,” but, as the Estate acknowledges, the
general statutory definition of that word would not include the
state. See A.R.S. § 1-215(29) (defining “person” as including
“a corporation, company, partnership, firm, association, or
society, as well as a natural person”); see also State ex rel.
Dep’t of Health Services v. Cochise County, 166 Ariz. 75, 800
P.2d 578 (1990) (holding that the state is not a “person”
required to file a pre-lawsuit claim against a county under
A.R.S. § 11-622). Because the state is not a person, it can be
liable under APSA only if it is an “enterprise.”
¶11 The legislature defined “enterprise” for purposes of
APSA, stating that it “means any corporation, partnership,
association, labor union or other legal entity, or any group of
persons associated in fact although not a legal entity, that is
involved with providing care to a vulnerable adult.” § 46-
455(Q) (emphasis added). The state is not a corporation,
partnership, association, or group of associated persons that is
not a legal entity; therefore, the state is subject to suit
under APSA only if it is included in the term “other legal
6
entity.” A “legal entity” is “[a] body, other than a natural
person, that can function legally, sue or be sued, and make
decisions through agents.” Black’s Law Dictionary 976 (9th ed.
2009). Generally, and as the dissent correctly notes, the state
is thought of as a “legal entity.”2 If we were to construe the
words “legal entity” in isolation, we would readily conclude
that the state is an enterprise.
¶12 We do not, however, consider words in isolation when
interpreting statutes. See Adams v. Comm’n on Appellate Court
Appointments, 227 Ariz. 128, __ ¶ 34, 254 P.3d 367, 375 (2011)
(citing Deal v. United States, 508 U.S. 129, 132 (1993)).
Importantly, the legislature did not create “other legal entity”
as an independent and isolated category in its definition of
“enterprise.” It defined enterprise, in part, as a “labor union
or other legal entity” rather than “labor union, or other legal
entity.” The absence of a comma after the phrase “labor union”
makes a difference. Syntactically, this suggests “other legal
entity” does not function as an independent catch-all category,
2
The case the dissent cites for that general proposition,
however, is inapposite because it did not involve interpretation
of a statute containing the phrase “legal entity.” See State ex
rel. Smith v. Bohannan, 101 Ariz. 520, 523, 421 P.2d 877, 880
(1966) (finding no impermissible splitting of a cause of action
in state’s quo warranto action because the state is a separate
legal entity that has power to sue).
7
but instead relates to legal entities like labor unions.3
Because the state is not a legal entity like a labor union, we
conclude it is not the kind of “other legal entity” to which the
legislature intended to refer.
¶13 Likewise, to the extent the text of § 46-455 is not
clear, applicable canons of statutory construction support
construing “enterprise” in § 46-455(Q) as not including the
state. The phrase “other legal entity” in subsection (Q)
follows the enumeration “corporation, partnership, association,
[or] labor union” – all terms that are normally understood to
refer to business organizations. Ejusdem generis dictates that
“general words [that] follow the enumeration of particular
classes of persons or things should be interpreted as applicable
only to persons or things of the same general nature or class.”
State v. Barnett, 142 Ariz. 592, 596, 691 P.2d 683, 687 (1984).
Similarly, noscitur a sociis – a canon closely related to
ejusdem generis – dictates that a statutory term is interpreted
3
We acknowledge that the 2011-2012 Arizona Legislative Bill
Drafting Manual advises against using a comma before the
conjunction “or.” The Arizona Legislature Bill Drafting Manual
§ 5.10, at 83 (2011-2012). But we think for a couple of reasons
that the omission of this comma is substantive and not merely
stylistic. First, a comma once existed between “labor union”
and “other legal entity,” but the comma was deleted in a 2009
amendment. See 2009 Ariz. Sess. Laws 119, § 8 (1st Reg. Sess.).
Second, despite the Manual’s guidance that a comma should not
precede the word “or,” the legislature preceded the very next
“or” in this subsection with a comma. § 46-455(Q) (“labor union
or other legal entity, or any group of persons associated in
fact although not a legal entity . . .”).
8
in context of the accompanying words. See Planned Parenthood
Comm. of Phoenix, Inc. v. Maricopa Cnty., 92 Ariz. 231, 235–36,
375 P.2d 719, 722 (1962). Because the phrase “other legal
entity” follows specifically enumerated (and generally private)
business entities, the phrase is most reasonably interpreted as
applying to such entities rather than to governmental bodies.
¶14 The dissent correctly notes that the definition of
“enterprise” in § 46-455(Q) is not expressly limited to business
entities and that “the term ‘corporation’ may embrace both
private and public entities.”4 Infra ¶ 31. But the Estate does
not argue, nor does the dissent suggest, that the state is a
corporation for purposes of APSA.5 And unlike § 46-455(Q)’s
4
As the dissent points out, APSA’s definition of “enterprise”
is substantially similar to the definition used in federal
racketeering statutes (RICO), and federal courts have broadly
construed the term to include public entities. Infra ¶ 24. But
Congress apparently intended to include public bodies within the
term “enterprise” for federal RICO purposes. See United States
v. Thompson, 685 F.2d 993, 1000 (6th Cir. 1982) (discerning from
the Congressional Record a “great Congressional concern with
organized crime’s infiltration of or domination of various
aspects of national, state and local governments”). In
contrast, nothing in APSA’s legislative history indicates any
intent to subject the state to civil liability or mentions
either state or federal case law construing “enterprise” for
RICO purposes.
5
Although the word “corporation” may logically encompass
municipal, public corporations, this definitional nuance does
not give us pause. Our opinion today does not turn on the
state’s status as a “public entity,” but rather on the lack of
apparent legislative intent to include it in an express list of
potential defendants. Therefore, the possibility that a
reasonable reading of APSA might include as a potential
9
definition of “enterprise,” other statutes differentiate between
public and private entities and expressly mention both. See,
e.g., A.R.S. §§ 13-105(29), 13-1601.
¶15 Indeed, our legislature has repeatedly demonstrated
its ability to specifically mention public actors when it
intends their inclusion in a list that uses the general category
of “legal entity.” See, e.g., A.R.S. § 12-715 (excluding from
liability “[a] person, a public entity or any other legal
entity” that donates fire equipment); A.R.S. § 27-129(G)
(limiting liability of “a person, public entity or other legal
entity” that makes donations for abandoned mines); A.R.S. § 44-
140(3) (defining “person” for purposes of student loan statute
as “individual, corporation, government or governmental
subdivision or agency, business trust, estate, trust,
partnership or association, or any other legal entity”); A.R.S.
§ 45-251(3) (defining “person” for purposes of water
adjudication as “an individual, a partnership, a corporation, a
municipal corporation, the [S]tate of Arizona, or any political
subdivision, the United States of America, an Indian tribe or a
community or any other legal entity, public or private”); A.R.S.
§ 49-961(5) (defining “person” in hazardous waste prevention
statute as “an individual, the United States, this state or a
defendant a municipality, a public entity, is not instructive on
the question of whether the state is an “enterprise.”
10
public or private corporation, local government unit, public
agency, partnership, association, firm, trust or estate or any
other legal entity”).6 This consistent pattern persuades us that
if the legislature had intended to include the state within its
definition of “enterprise” in § 46-455(Q), it would have
expressly done so. Cf. Estate of McGill v. Albrecht, 203 Ariz.
525, 530-31 ¶ 20, 57 P.3d 384, 389-90 (2002) (rejecting claim
that APSA requires proof of gross negligence, noting that “[t]he
legislature surely knows how to require a showing of gross
negligence, having used that term in a great number of
statutes”).
¶16 The dissent also suggests that because governmental
immunity is the exception and not the rule in Arizona, see Stone
v. Ariz. Highway Comm’n, 93 Ariz. 384, 392, 381 P.2d 107, 112
(1963), the state should be subject to APSA liability unless the
legislature expressly excludes it. Infra ¶ 37. But when a
statute, such as APSA, “‘specifically limits those who may be
held liable for the conduct described by the statute, the courts
cannot extend liability . . . to those who do not fall within
6
If the phrase “other legal entity” in statutes such as those
cited above generally includes public entities like the state,
the legislature’s insertion of the additional phrase “public
entity” in those same statutes would be superfluous. In
interpreting statutes, however, “[e]ach word, phrase, clause,
and sentence must be given meaning so that no part will be void,
inert, redundant, or trivial.” City of Phoenix v. Yates, 69
Ariz. 68, 72, 208 P.2d 1147, 1149 (1949).
11
the categories of potential defendants described by the
statute,’” Hagert v. Glickman, Lurie, Eiger & Co., 520 F. Supp.
1028, 1034 (D. Minn. 1981) (quoting In re Equity Funding Corp.
of Amer. Sec. Litig., 457 F. Supp. 1135, 1143 (N.D. Cal. 1978));
see Pinter v. Dahl, 486 U.S. 622, 641-47 (1988) (clarifying
class of potential defendants before imposing liability under
federal securities law).
¶17 If, as we conclude, the legislature did not intend to
include the state in its expressly enumerated list of potential
APSA defendants, neither the general abrogation of governmental
immunity nor the narrow construction given to immunity
provisions has any bearing on the issue here. After all, this
case involves a statutory cause of action, not a “statute [that]
limits common-law liability.” Ward v. State, 181 Ariz. 359,
362, 890 P.2d 1144, 1147 (1995). Immunity principles cannot
create state statutory liability where none would otherwise
exist. See Turner v. Superior Court, 3 Ariz. App. 414, 417, 415
P.2d 129, 132 (1966) (“The abrogation [of governmental immunity]
does not work an automatic cancellation of specific legislative
enactments.”); cf. 3 Sutherland Statutory Construction § 62:1
(7th ed. 2011) (“Statutory provisions which are written in such
general language that they are reasonably susceptible to being
construed as applicable both to the government and to private
parties are subject to a rule of construction which exempts the
12
government from their operation in the absence of other
particular indicia supporting a contrary result in particular
instances. . . . [T]he rule has been most emphatically stated
and regularly applied in cases where it is asserted that a
statute makes the government amenable to suit.”).
¶18 Not only do we think the text fails to evidence an
intent to include the state as a defendant, construing § 46-
455(Q) as including the state within APSA’s definition of
“enterprise” results in some tension with the statute’s
enforcement scheme, which charges the state with enforcing the
act and protecting the rights of vulnerable adults. Despite
expressly obligating the state to enforce APSA, the legislature
did not mention public entities in its list of potential
defendants. See § 46-455(B). Nor does the statutory scheme
address, or seemingly contemplate, the conflict of interest that
could arise if the state, which bears the primary responsibility
for enforcing APSA, becomes a defendant under it. Rather,
APSA’s enforcement scheme suggests the legislature did not
intend to include the state as a potential defendant. See
Estate of Braden, 225 Ariz. at 401 ¶ 42, 238 P.3d at 1275 (Hall,
J., dissenting) (“[H]ad the legislature intended . . . to make
the State and its agencies liable for damages at the same time
it was granting primary enforcement power to the State, it would
have clearly stated so.”). Although we agree that the state
13
could subject itself to liability under a statutory scheme it
also enforces, when it has done so, it has made this intent
express. See, e.g., A.R.S. §§ 41-1492.01, 41-1492.06, 41-
1492.08 (expressly subjecting the state to suit under Arizona
civil rights statute, which is enforced through the attorney
general).
¶19 Finally, in the very statute at issue here, the
legislature expressly and specifically referred to the state or
its authorized agent, the attorney general, several times. See
A.R.S. § 46-455(E), (J), (M), (N). Given those explicit
references, it would be rather odd to conclude that the
legislature meant to implicitly include the state in subsection
(Q)’s general, catchall phrase “other legal entity.”
¶20 The legislature, of course, may create state liability
in APSA cases. But in light of its failure to expressly include
the state or any public actor as a potential defendant, its
specific references to the state in § 46-455 and other statutes
in which public entities’ inclusion is intended, and APSA’s
reliance on state involvement in enforcement, we cannot conclude
that the legislature intended to do so here.
III.
¶21 For the reasons stated, we vacate the opinion of the
court of appeals and affirm the superior court’s grant of
summary judgment in favor of the State.
14
_____________________________________
Robert M. Brutinel, Justice
CONCURRING:
_____________________________________
Rebecca White Berch, Chief Justice
_____________________________________
A. John Pelander, Justice
B A L E S, Justice, dissenting
¶22 I respectfully dissent. APSA imposes civil liability
on “any person or enterprise” that is employed or assumes a
legal duty, or is appointed by a court, to provide care and that
causes or permits a vulnerable adult to be endangered or injured
by neglect, abuse, or exploitation. A.R.S. § 46-455(B).
“Enterprise” includes any “legal entity,” id. § 46-455(Q), and
the state is a legal entity under Arizona law. Given APSA’s
language and remedial purpose, the Court should hold that the
state will be liable for damages if it endangers or injures a
vulnerable adult in violation of § 46-455(B).
¶23 As the majority recognizes, Op. ¶ 8, we should
interpret statutes to give effect to the legislature’s intent.
Before APSA’s enactment, care providers that abused vulnerable
adults faced common law tort liability and possibly criminal
penalties for offenses such as assault. Concluding that these
15
sanctions were insufficient, the legislature adopted APSA in
1988 but originally provided only criminal penalties for any
“person” who violated the statute. 1988 Ariz. Sess. Laws, ch.
85, § 2. The very next year, the legislature amended APSA to
also recognize a civil cause of action against “any person or
enterprise.” The statute provides:
A vulnerable adult whose life or health is
being or has been endangered or injured by
neglect, abuse or exploitation may file an
action in superior court against any person
or enterprise that has been employed to
provide care, that has assumed a legal duty
to provide care or that has been appointed
by a court to provide care to such
vulnerable adult for having caused or
permitted such conduct.
A.R.S. § 46-455(B) (emphasis added).
¶24 Underscoring that civil liability under APSA extends
broadly, the legislature defined enterprise to mean “any
corporation, partnership, association, labor union or other
legal entity, or any group of persons associated in fact
although not a legal entity, which is involved with providing
care to an incapacitated or vulnerable adult.” A.R.S. § 46-
455(Q) (emphasis added). APSA’s definition of “enterprise”
echoes the definition used in the federal racketeering statutes,
a definition that federal courts had broadly construed to
include public entities. United States v. Long, 651 F.2d 239,
241 (4th Cir. 1981); United States v. Angelilli, 660 F.2d 23, 33
16
(2d Cir. 1981).
¶25 There is no doubt that the state is a “legal entity”
under Arizona law. See State ex rel. Smith v. Bohannan, 101
Ariz. 520, 523, 421 P.2d 877, 880 (1966) (describing the state
as a legal entity). This fact, combined with APSA’s broad
language, indicates that the state can be liable under the
statute. Although conceding that the state generally is a legal
entity, the majority concludes that the state is not a legal
entity for purposes of APSA. Op. ¶ 11-12.
¶26 Observing that statutory words cannot be read in
isolation, Op. ¶ 12, the majority first contends that the phrase
“any corporation, partnership, association, labor union or other
legal entity” suggests that the term “legal entity relates to
entities like labor unions.” Id. But this reasoning does not
construe “legal entity” in light of APSA’s surrounding language
– which, after all, provides that “any enterprise” may be liable
and that “enterprise” encompasses not only any legal entity but
also any other group of people associated in fact. A.R.S. § 46-
455(Q). Instead, the majority seeks to narrow the scope of
“legal entity” by relying on the absence of a serial comma after
“labor union.”
¶27 The absence of a comma sheds no light on the meaning
of “legal entity” under APSA. The majority evidently believes
that because a serial comma distinguishes items in a series, see
17
e.g. William Strunk, Jr. & E.B. White, The Elements of Style 2
(4th ed. 1999) (“In a series of three or more terms with a
single conjunction, use a comma after each term except the
last.”), the omission of a comma allows the final entries (here
“labor union” and “other legal entity”) to be read as one
category. Cf. Bryan A. Garner, The Oxford Dictionary of
American Usage and Style 70 (2000) (advising that the omission
of a serial comma allows the final entries to be “joined” or
“read as one category”). Whatever force this argument may have
in other contexts, it is singularly unconvincing with respect to
APSA’s definition of “enterprise.”
¶28 Although the use of a serial comma may desirably avoid
ambiguity, grammarians disagree whether the penultimate entry in
a series should be followed by a comma. See Bryan A. Garner,
Garner's Modern American Usage 654 (2003). Cf. Bill Walsh,
Lapsing into a Comma 81 (2000) (noting newspaper convention of
omitting serial commas). More importantly, the style manual for
Arizona’s legislature expressly advises that a comma should not
be inserted before the conjunction “or” at the end of a series
of items. See The Arizona Legislative Bill Drafting Manual
2011-12 at 83; The Arizona Legislative Bill Drafting Manual 2009
at 81. Discounting the legislature’s own style conventions, the
majority asserts that the omission of a serial comma here “is
substantive and not merely stylistic.” Op. ¶ 12 n.2. (Contrary
18
to the majority’s suggestion, id., the comma preceding “or any
group of persons associated in fact although not a legal entity”
is not a serial comma; it does not come before the last item in
the series of legal entities.)
¶29 The history of the amendments to APSA confirms that
the omission of a comma before “or other legal entity” has no
substantive import. From 1989 until 2009, the definition of
“enterprise” included a comma after “labor union” and before “or
other legal entity.” In 2009, the legislature amended APSA,
primarily to expand civil liability for the financial
exploitation of vulnerable adults or theft, but also to make
certain technical and conforming changes. Arizona State Senate,
Fact Sheet for H.B. 2344, 49th Leg., 1st Reg. Sess. (June 24,
2009). For example, the legislature defined “vulnerable adults”
to include certain “incapacitated persons” and changed previous
references to “incapacitated or vulnerable adults” to instead
say “vulnerable adults.” See 2009 Ariz. Sess. Laws 119, § 4
(1st Reg. Sess.). Apart from this change, the 2009 amendments
changed the definition of “enterprise” in two ways: substituting
a “that” for a “which” and omitting the comma after “labor
union.” See id. § 8.
¶30 The change in the comma was obviously non-substantive.
To conclude otherwise implausibly suggests that when the
legislature expressly expanded civil liability under APSA, it
19
also silently narrowed the field of potential “other legal
entity” defendants to only those somehow related to labor
unions. Cf. Op. ¶ 12 n.2 (recognizing that 2009 amendments
deleted comma). We should not infer that the legislature
“hide[s] elephants in mouseholes,” Whitman v. American Trucking
Ass’ns, 531 U.S. 457, 468 (2001), much less in the deletion of a
comma.
¶31 In determining that the state is not a legal entity
for purposes of APSA, the majority also resorts to ejusdem
generis, reasoning that “because the phrase ‘other legal entity’
follows specifically enumerated (and generally private) business
entities, the phrase is most reasonably interpreted as applying
to such entities rather than to governmental bodies.” Op. ¶ 13.
This argument fails, however, because the entities specifically
enumerated in the statute are not limited to business entities,
whether private or public, but include, among other things, any
corporation or association. See A.R.S. § 46-455(Q). Under
Arizona law, the term “corporation” may embrace both private and
public entities. See Sumid v. City of Prescott, 27 Ariz. 111,
114-16, 230 P. 1103, 1105 (1924) (holding that “corporation”
under Employers’ Liability Law includes municipal corporations).
Indeed, under long-settled case law, State v. Stone, 104 Ariz.
339, 452 P.2d 513 (1969), the state may be liable in wrongful
death actions, even though the underlying statute imposes
20
liability only on “persons” and “corporations.” See A.R.S. §
12-611 (providing that “the person who or the corporation which
would have been liable if death had not ensued shall be liable
to an action for damages, notwithstanding the death of the
person injured”).
¶32 Construing “legal entity” under APSA to include public
entities like the state is also consistent with the statutory
provisions imposing liability broadly on “any person or
enterprise” and defining “enterprise” to include any group of
persons associated in fact, whether or not a legal entity. This
interpretation also comports with federal case law concluding
that public entities may be “enterprises” under the federal
racketeering statute, which defines “enterprise” in language
similar to A.R.S. § 46-455(Q). See, e.g., Long, 651 F.2d at 241(holding in accord with majority of the federal courts that
“RICO should be construed to include public entities as
enterprises”).
¶33 In short, neither ejusdem generis nor the principle
that statutes should be construed in light of their surrounding
words suggests that APSA’s reference to legal entities excludes
the state.
¶34 The majority also observes that the legislature has
sometimes specifically listed the state or other public entities
in statutes that refer to legal entities more generally. Op. ¶
21
14. This fact, however, does not imply that the state is only a
legal entity if it is expressly so identified by statute. See
Bohannon, 101 Ariz. at 523, 421 P.2d at 880 (noting, in a
contractual dispute, that the state is a distinct legal entity
with the power to sue and be sued). Instead, the statutory
language cited by the majority suggests the legislature
recognizes that public entities are included in but do not
exhaust the class of legal entities. See, e.g., A.R.S. § 12-
715(A)-(B) (excluding from liability “[a] person, a public
entity or any other legal entity” that donates fire equipment);
A.R.S. § 27-129(F) (allowing donations from “any person, public
entity or other legal entity”); A.R.S. § 45-251(3) (defining
“person” for purposes of water adjudication to include “the
state . . . or any other legal entity, public or private”).
¶35 The majority also observes that “APSA’s enforcement
scheme suggests the legislature did not intend to include the
state as a potential defendant.” Op. ¶ 16. I disagree. There
is nothing anomalous about subjecting the state to liability
under a statutory scheme the state also enforces. See, e.g.,
Arizona Disabilities Act, A.R.S. § 41-1492.01; A.R.S. § 49-
961(5) (defining “person” in environmental statutory scheme to
mean “an individual, the United States, this state or a public
or private corporation, local government unit, public agency,
partnership, association, firm, trust or estate or any other
22
legal entity”). The fact that the legislature assigned the
state or the attorney general particular enforcement
responsibilities or a right to intervene in private actions,
e.g., A.R.S. § 46-455(E), (J), (M), (N), also does not logically
imply that the state cannot be civilly liable as a legal entity.
¶36 APSA provides for various remedies, some of which
admittedly may not apply to the state. See A.R.S. § 46-
455(H)(3) (providing for “dissolution or reorganization” of an
enterprise in appropriate cases). But the fact that a
particular defendant, whether the state or otherwise, may not be
subject to every remedy does not suggest the defendant cannot be
sued for damages. Cf. United States v. Turkette, 452 U.S. 576,
585 (1981) (declining to limit scope of “enterprise” in federal
RICO statute based on potential unavailability of civil remedies
as to certain entities). After all, a group of persons that is
not a legal entity could not be dissolved or reorganized, but
APSA subjects such a group to civil damage liability. APSA
affords a menu of civil remedies allowing courts to tailor
relief appropriate to the particular case.
¶37 The majority concludes by noting that the legislature
could expressly subject the state to liability under APSA. Op.
¶ 18. Neither APSA nor Arizona law requires the legislature to
specifically declare its intent to impose liability on
governmental entities. Instead, Arizona governmental liability
23
is the rule and not the exception, reflecting our state’s
“overarching policy of holding a public entity responsible for
its conduct.” Backus v. State, 220 Ariz. 101, 104, ¶ 9, 203 P.3d
499, 502 (2009). In Backus, we declined to impose restrictions
on state liability under A.R.S. § 12-820.01(A) greater than
those compelled by the statutory language. Id. at 107, ¶ 23,
203 P.3d at 505. We observed that if the legislature had
intended to impose such restrictions, it would have said so. A
similar observation applies here: if the legislature had
intended to exclude the state from the legal entities
potentially liable under APSA, it could have said so.
¶38 This Court has recognized that APSA should be broadly
construed in light of the legislature’s remedial purpose of
providing civil remedies to protect vulnerable adults. See In
re Estate of Winn, 214 Ariz. 149, 150 ¶ 5, 150 P.3d 236, 237
(2007). Absent a clear indication that the legislature intended
to shield the state from liability, we should hold that the
state can be liable, because that interpretation comports with
the statutory language, APSA’s purpose, and our case law
recognizing that the state is a legal entity.
¶39 Because I also agree with the court of appeals
regarding the other issues presented, I would affirm that
court’s opinion reversing the summary judgment for the State and
remanding to the trial court for further proceedings.
24
_____________________________________
W. Scott Bales, Justice
CONCURRING:
_____________________________________
Andrew D. Hurwitz, Vice Chief Justice
25