dissenting.
¶25 The court today concludes that because of the doctrine of sovereign immunity, the “right of action for simple negligence, against a municipality engaged in a govemmental function [did not exist] at common law.” Opinion at ¶ 9; see also ¶ 17. The court goes on to adopt a rule of municipal sovereign immunity for simple negligence when performing governmental functions. Thus, the court holds the recreational use statute, A.R.S. § 33-1551, does not violate the anti-abrogation clause contained in Article 18, Section 6 of the Arizona Constitution when applied to such municipalities. I dissent from these conclusions for several reasons.
¶26 First, I do not agree that the anti-abrogation clause is inapplicable to actions for negligence against governmental entities. This issue was addressed in my dissent in Clouse ex rel. Clouse v. State, 199 Ariz. 196, 204-15 ¶¶ 30-79, 16 P.3d 757, 765-76 ¶¶ 30-79 (2001) (Feldman, J., dissenting). The reasons given there need not be repeated here.
¶ 27 Next, the majority holds that the protection of Article 18, Section 6 does not apply because at common law there was no right of action in Arizona “for simple negligence!] against a municipality engaged in a governmental function.” Opinion at ¶ 9, relying primarily on Morrell v. City of Phoenix, 16 Ariz. 511, 147 P. 732 (1915). But Morrell does not support that conclusion. The doctrine of sovereign immunity is not mentioned in Morrell; the basis for the holding that Morrell had no cause of action against the City of Phoenix was that prior to adoption of our constitution and its anti-abrogation clause, the Phoenix city charter contained an immunity provision that had been approved by the legislature in the 1881 grant of the charter. Thus, no right of action against the City of Phoenix existed at common law prior to or at the time our constitution went into effect. Id. at 512-13, 147 P. at 733. Thus, I disagree with the majority’s conclusion that Morrell “demonstrates that municipalities were immune from civil suits for ordinary negligence at common law.” Opinion at ¶ 12.5 Morrell demonstrates only that the City of Phoenix was immune by charter provision, so that no action could have been maintained against it when Article 18, Section 6 was adopted. Article 18 protects only those “rights already cognizable by law” at *7the time our constitution was adopted. Morrell, 16 Ariz. at 517, 147 P. at 735.
¶ 28 No ease in Arizona has ever explicitly addressed the question of whether the anti-abrogation clause was applicable to actions against a municipality. It is notable that in Clouse the majority did not adopt the state’s argument that actions against governmental entities were outside the protection of Article 18, Section 6 but instead based the state’s immunity on the specific provisions of the claims clause of Article 4 of the constitution. The court held that Article 4 provided independent and particularized grounds for the conclusion that the legislative branch might reinstate sovereign immunity as to claims against the state should it desire to do so. Clouse, 199 Ariz. at 207 ¶ 24, 16 P.3d at 768 ¶ 24. But Article 4 is inapplicable to municipalities because it provides only that the legislature may regulate suits against the state. Ariz. Const. art. IV, pt. 2, § 18. The suit that is the subject of the present case is not against the state but against the City of Flagstaff. Municipalities have always been considered entities separate from the state.
¶ 29 Finally, I disagree with the court’s decision that running an admission-free park is a governmental function. Opinion at ¶¶ 22-23. Arizona’s law on the question of govemmental/proprietary functions is, to put it tactfully, a morass. See Clouse, 199 Ariz. at 213-14 ¶¶ 74-77, 16 P.3d at 774-75 ¶¶ 74-77 (Feldman, J., dissenting). There was, in fact, “utmost confusion” about what was governmental and what was proprietary. Jones v. City of Phoenix, 29 Ariz. 181, 183, 239 P. 1030, 1031 (1925). Today’s opinion will do little to cure that problem.
. Indeed, the Phoenix ordinance was later repealed. See opinion at ¶ 12 n. 3.