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Phelps v. Firebird Raceway5/18/2005
too broadly the prohibition against express contractual liability waivers would violate Lochner [v. New York, 198 U.S. 45 (1905)]." See infra 60. Lochner overturned a statute because it "necessarily interfer with the right of contract between the employer and employees, concerning the number of hours in which the latter may labor in the bakery of the employer." 198 U.S. at 53. The Court concluded that the general right to contract in relation to a person's business was "part of the liberty of the individual protected by the 14th Amendment of the Federal Constitution." Id.
The dissent argues that statements made by three delegates during the convention prove that the framers were "clearly concerned" that an overly broad prohibition of express contractual waivers would violate Lochner. As the dissent points out, Delegate Baker said the following about Proposition 50: "I confess on the spur of the moment that I am in doubt as to whether you can limit all contracts or not." Goff at 152. Delegate Jones, moreover, later raised a similar concern with respect to Proposition 50, questioning whether the provision "would be nullified anyway." Id. at 548. Delegate Cunningham responded that " f we here intend to write in this constitution that a man who is injured cannot have the right to contract, then we are taking from him one of his constitutional rights -- that of equal protection of the law." Id. However, two delegates expressly disagreed with Delegate Cunningham during the debate, and Cunningham's faction lost the vote on the issue. See id. at 548.
We disagree that the three statements cited by the dissent prove that the framers were concerned that an overly broad prohibition of express contractual waivers would violate Lochner. First, although the statements do suggest that at least some delegates were concerned with Lochner, the position of those delegates was defeated when the convention voted on the issue. Second, the adoption of Article 18, Section 3 makes it difficult to conclude that the majority of framers were concerned about violating Lochner. Lochner, after all, protected the freedom of contract with respect to employment. And Article 18, Section 3 makes all contractual waivers in the employment context void. We cannot conclude from the "legislative history," therefore, that the framers of the Arizona Constitution were concerned that a prohibition of express contractual waivers would violate Lochner.
V.
In the end we return to where we began -- the plain language of Article 18, Section 5. The clear, broad language of that provision compels the result we reach. The Arizona Constitution provides that assumption of risk is a question of fact for the jury "in all cases whatsoever" and "at all times." The decision below effectively amended the constitution to provide that assumption of risk is a question of fact for the jury only "in some cases" and "at some times." As judges, we are not free to rewrite our fundamental document in this fashion. See Nixon v. Mo. Mun. League, 541 U.S. 125, 141 (2004) (Scalia, J., concurring in judgment) ("avoidance of unhappy consequences" is an inadequate basis for interpreting a text).
Although in today's world Article 18, Section 5 may seem impractical or a questionable policy choice, the framers of our constitution thought otherwise. It is not our role to determine public policy. The framers of our constitution and the Arizona voters who ratified it mandated that the defense of assumption of risk shall, at all times, be left to the jury. We are bound to follow that mandate.
We do not anticipate that this opinion will subject a whole new cadre of cases to jury consideration. Arizona opinions al
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