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Duarte v. State of Arizona11/25/1998
a substantial sum. Because the statute limits the amount the state is entitled to set off, it does not operate as a de facto immunity statute or violate the constitution's anti-abrogation provisions.
"We differentiate between abrogation and regulation by determining whether a purported legislative regulation leaves those claiming injury a reasonable possibility of obtaining legal redress." Boswell v. Phoenix Newspapers, Inc., 152 Ariz. 9, 18, 730 P.2d 186, 195 (1986). A statute does not violate the anti-abrogation provisions if it does "not affect the essence of the fundamental right to bring a lawsuit . . . merely regulate what is done with the action after it is brought . . . ." Kenyon, 142 Ariz. at 83, 688 P.2d at 975. The setoff provision does not violate the anti-abrogation provisions because it preserves the reasonable possibility of obtaining redress without eliminating the fundamental right of recovery. It affects the action only after it is brought by creating a reciprocal remedy in favor of the state to recover a lawful obligation owed to it that ultimately may reduce the damages actually recovered. Therefore, the statute as applied in this case is constitutional, and the trial court correctly set off the state's costs of incarceration against appellants' recoveries.
The trial court's judgment is affirmed.
M. JAN FLOREZ, Judge
CONCURRING: WILLIAM E. DRUKE, Chief Judge JOHN PELANDER, Presiding Judge
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