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Ramirez v. Health Partners of Southern Arizona6/23/1998
shed general negligence cause of action that Arizona courts previously had expressly recognized, thereby totally depriving a foreseeable class of plaintiffs of that established tort claim. See, e.g., Little (holding § 36-517.02 unconstitutionally abrogates the common law cause of action established in Hamman v. County of Maricopa, 161 Ariz. 58, 775 P.2d 1122 (1989)); Young (holding § 4-312(B) unconstitutionally abrogates general negligence cause of action recognized in Ontiveros). As noted above, the statutes challenged here do not completely abolish the common law cause of action for interference with dead bodies, as recognized in Tomasits; and as the Perry case illustrates, claimants who have been injured by bad faith actions of persons involved in the organ donation process may sue and recover against them.
In sum, Arizona courts have not recognized a common law action for negligence in the organ donation context and, without retreating from our holdings in Tomasits and Morton, we see no good reason for doing so now. The parties have cited no cases, nor have we found any, in which such a claim has been upheld. The Act's qualified immunity provisions are consistent with the majority (if not unanimous) rule of other jurisdictions, the UAGA, and public policy. Accordingly, because the Act does not abrogate any viable "right of action to recover damages," it does not violate article 18, § 6. See Evenstad; Ashton-Blair; cf. Williams, 223 N.W.2d at 847, 847 n.4 (rejecting plaintiff's claim that the Act's good faith immunity provision "is unconstitutional because it abrogates rights of injured persons in violation of art. I, sec. 9 of the Wisconsin Constitution," which entitles every person "to a certain remedy in the laws for all injuries, or wrongs which he may receive in his person . . . .").
Plaintiffs finally contend the Act's qualified immunity provisions violate Arizona's equal protection clause, Ariz. Const. art. 2, § 13, which provides: "No law shall be enacted granting to any citizen, class of citizens, or corporation other than municipal, privileges or immunities which, upon the same terms, shall not equally belong to all citizens or corporations." According to the plaintiffs, the immunity provisions impinge on their fundamental right to bring a common law claim for negligence. See Kenyon, 142 Ariz. at 83, 688 P.2d at 975 (holding "the right to bring and pursue action is a 'fundamental right' guaranteed by Article 18, § 6 of the constitution and the [equal protection clause]"); Lerma v. Keck, 186 Ariz. 228, 232, 921 P.2d 28, 32 (App. 1996) ("Under the Arizona Constitution, claimants have a fundamental right to bring and pursue an action for damages."). Thus, plaintiffs argue, the Act must be subjected to a strict scrutiny test, and its immunity provisions may be upheld only if they are necessary to accomplish a compelling governmental interest and further that interest by the least restrictive means practically available. Kenyon, 142 Ariz. at 86-87, 688 P.2d at 978-79.
Having concluded that the Act does not unconstitutionally abrogate any fundamental right to bring a lawsuit for negligence in the organ donation context, we likewise conclude that it does not interfere with a fundamental right so as to require application of the strict scrutiny test. Because we are not dealing here with a fundamental right or suspect class, the rational basis test applies to plaintiffs' challenge. Evenstad; Pike v. Arizona Dep't of Transp., 261 Ariz. Adv. Rep. 29 (Ct. App. January 29, 1998). Under that test, we will uphold legislation if it serves a legitimate state interest and the legislative classification rationally furthers that interest. Kenyon; Lerma. "We must presume that the legisl
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