§ 1.1.6 THE PRIVACY CLAUSE.

• Jurisdiction: Arizona

§ 1.1.6 The Privacy Clause. Article II of the Arizona Constitution is the Arizona Bill of Rights. Section 8 of Article II, entitled "Right to Privacy," provides that "[n]o person shall be disturbed in his private affairs, or his home invaded, without authority of law."⁹⁴

Arizona has no search and seizure provision per se in its constitution. The reported Arizona cases relying on this clause have involved government actions.⁹⁵ However, Section 8, by its wording, does not limit itself to state action.⁹⁶ The striking dissimilarity of Article II, § 8 with the Fourth Amendment of the United States Constitution causes one to give thought as to why this particularly broad clause was adopted (as opposed to the provisions found in constitutional Propositions Nos. 98, 104, and 116,⁹⁷ in other state constitutions,⁹⁸ or the Fourth Amendment) if the privacy provision was only intended to apply to government action.

Unfortunately, the convention records give little background on debates other than the convention minutes of the Committee of the Whole. Four versions of the bill of rights were introduced.⁹⁹ The convention adopted Proposition 94,¹⁰⁰ the Bill of Rights taken from the Washington State Constitution. The privacy clauses in the other propositions were patterned after the Fourth Amendment of the United States Constitution.¹⁰¹

One thing is clear: the delegates meant to adopt a bill of rights for Arizona and not rely on the federal Bill of Rights. Mr. Ingraham, an attorney delegate, stated:

Gentlemen may say these principles are all in the Constitution of the United States, and therefore are absolutely unnecessary here now. That is a mistake; that is not the law, and I want to state it is so mainly that the mistake will not occur again, that the first ten amendments to the United States Constitution, which is the Bill of Rights, have no application to state law; they are restrictions upon the power of the United States; they are not restrictions upon the states, and they are not aimed to affect state affairs.¹⁰²

The practices of mining companies may have influenced the adoption of Proposition 94. It was not unusual in the late 1800s and early 1900s for mining companies, looking for evidence of union sympathy or complicity, to invade and search miners' homes without legal authority.¹⁰³ The vast majority of those who met to write the Arizona Constitution were there to confront the "cruel yoke of corporate control."¹⁰⁴ Clearly, those who wrote the Arizona Constitution strongly believed that protection from private corporations was an important purpose of the document they were writing.

Another influence may have been the then recent development of the concept of privacy in purely private relationships. Many of the convention delegates were lawyers or judges. Mr. Cunniff, a Harvard graduate, may have been influenced by Samuel Warren and Louis Brandeis' article, "The Right to Privacy,"¹⁰⁵ published in the Harvard Law Review in 1890. This article is the basis of the common-law right of privacy in the United States.¹⁰⁶

From the wording of Section 8, and from the rejection of narrower privacy clauses, it has been suggested that the intent of the delegates may have been to protect privacy from all intrusions, private and governmental.¹⁰⁷ California construes its constitution to apply to infringements by private individuals as well as public officials,¹⁰⁸ as does Alaska.¹⁰⁹ Montana construed its constitution's right of privacy to apply to infringements by private individuals and state officials until around 1980.¹¹⁰

Notwithstanding these interpretations and the documented history of the constitutional right to privacy, Arizona's Supreme Court has held that Arizona's constitutional privacy clause applies only to governmental action. The court of appeals, in Hart v. Seven Resorts, Inc.,¹¹¹ addressed the issue whether article II, section 8 applies to other than governmental actions. The underlying facts in Hart relate to the employer's requirement of drug testing of employees after a report that four employees had illegally used drugs and had discussed ways to defeat drug-testing procedures.¹¹²

The Hart court reviewed the two Arizona Court of Appeals cases that had discussed the Arizona constitutional right of privacy. In Cluff v. Farmers Insurance Exchange,¹¹³ a non-employment case that arose prior to the Arizona cases recognizing a cause of action for termination of employment in violation of public policy,¹¹⁴ the court held that the Arizona constitutional privacy clause did not provide a cause of action by one private party against another. Cluff was later overruled in Godbebere v. Phoenix Newspapers, Inc.¹¹⁵ on an issue unrelated to its discussion regarding a private right of action based upon the constitutional right of privacy. In Weller v. Arizona Department of Economic Security,¹¹⁶ on the other hand, the court cited the Arizona constitutional privacy clause "as evidence of Arizona's public policy to protect individual privacy" in a case that granted unemployment insurance benefits to an employee who had been terminated for alleged off-duty drug usage.

The Hart court concluded that the only cases where the right of privacy has been applied beyond search and seizure were cases involving the government or "state action."¹¹⁷ Discussing In re Rasmussen,¹¹⁸ where the Arizona Supreme Court held there was only a limited right to refuse medical treatment under the federal right of privacy, the Hart court quoted from a footnote in Rasmussen,¹¹⁹ which stated that "[a]n individual successfully can assert his or her constitutional right of privacy only against governmental acts and not against acts of a private defendant unless 'state action' exists"; the footnote tied the right to refuse medical treatment with state action, namely the authority to license and regulate health care...