# Jegley v. Picado/Dissent Thornton

* Court Documents
* Case Syllabus
* Opinion of the Court
* Concurring Opinion Brown
* Dissenting Opinion Thornton
​RAY THORNTON, Justice, dissenting. In my view, the majority has issued an advisory opinion declaring ​unconstitutional a law passed by the legislature and signed into law by the governor. I respectfully dissent on the grounds that there was no justiciable case before us for decision, and because I believe we should heed the principles articulated by Justice Felix Frankfurter, writing for the United States Supreme Court, in Poe v. Ullman, 367 U.S. 497 (1961). Justice Frankfurter cautioned courts that they should use their powers to overturn legislative acts only when a case is properly before the court, when he wrote:
   Whenever, in pursuance of an honest and actual antagonistic assertion of rights by one individual against another, there is presented a question involving the validity of any act of any legislature, State or Federal, and the decision necessarily rests on the competency of the legislature to so enact, the court must, in the exercise of its solemn duties, determine whether the act be constitutional or not; but such an exercise of power is the ultimate and supreme function of courts. It is legitimate only in the last resort, and as a necessity in the determination of real, earnest and vital controversy between individuals. It never was the thought that, by means of a friendly suit, a party beaten in the legislature could transfer to the courts an inquiry as to the constitutionality of the legislative act.
Id. (quoting Chicago & Grand Trunk R. Co. v. Wellman, 143 U.S. 339 (1892)).
When this court previously reviewed the constitutionality of the statute that preceded Ark. Code Ann. § 5-14-122, we recognized the role of the legislative branch in adoption and changing of laws. See Carter & Burkhead v. State, 255 Ark. 225, 500 S.W.2d 368 (1973). In Carter, which held Arkansas's previous sodomy statute constitutional, the court expressed a recognition that the responsibility of changing unsuitable statutory provisions is delegated to the legislative branch. We explained:
   If social changes have rendered our sodomy statutes unsuitable to the society in which we now live, we need not be concerned about the matter because there is a branch of our government within whose purview the making of appropriate adjustment and changes peculiarly lies.
Id.
​It is no small matter that our constitution separates the responsibility of governance into three branches: the legislative branch, the executive branch, and the judicial branch. I believe we should respect that separation of powers, and declare a legislative act unconstitutional only when, in justice Frankfurter's words, the exercise of such powers "is legitimate only in the last resort, and as a necessity in the determination of real, earnest, and vital controversy between individuals." Poe, supra. Because I think that appellees have failed to present a justiciable case or controversy, and because I think that deciding the constitutionality of a statute in a case that fails to comply with our standing requirements violates principles of separation of powers, I must respectfully dissent.
While there are differing views among members of the court on the question whether the case before us presents a justiciable issue, all of us agree that our earlier decision in Bryant v. Picado, 338 Ark. 227, 996 S.W.2d 17 (1999), did not establish justiciability as part of the law of the case, and that the trial court's finding on this issue was an incorrect interpretation of our opinion. For that reason, I want to specifically outline my analysis of the issue of justiciability and my conclusion that no justiciable case or controversy was presented in the case before us.
Appellees' complaint was brought pursuant to Ark. Code Ann. § 16-111-104 (1987). The statute provides:
   Any person interested under a deed, will, written contract, or other writings constituting a contract or whose rights, status or other legal relations are affected by a statute, municipal ordinance, contract, or franchise may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract, or franchise and obtain a declaration of rights, status, or other legal relations thereunder.
Id.
We have noted that actual litigation is not required for relief under our declaratory-judgment statute. Jessup v. Carmichael, 224 Ark. 230, 272 S.W.2d 438 (1954). However, the statue does require that litigation be pending or threatened. Id. We have also noted that while Ark. Code Ann. § 16-111-104 recognizes a party's right to a declaratory judgment, a justiciable controversy is ​required. Mastin v. Mastin, 316 Ark. 327, 871 S.W.2d 585 (1994) (holding that the case presented no justiciable controversy and that a review of the matter would render an improper advisory opinion). The justiciability requirement was discussed in Andres v. First Ark. Development Finance Corp., 230 Ark. 594, 324 S.W.2d 97 (1959). In that case, we explained:
   Our declaratory judgment act was not intended to allow any question to be presented by any person: the matters must be justiciable.
   Since the purpose of the declaratory relief is to liquidate uncertainties and interpretations which might result in future litigation it may be maintained when these purposes may be subserved. The requisite precedent facts or conditions, which the courts generally hold must exist in order that declaratory relief may be obtained, may be summarized as follows: (1) There must exist a justiciable controversy; that is to say, a controversy in which a claim of right is asserted against one who has an interest in contesting it; (2) the controversy must be between persons whose interests are adverse; (3) the party seeking declaratory relief must have a legal interest in the controversy; in other words, a legally protectable interest; and (4) the issue involved in the controversy must be ripe for judicial determination.
   The Declaratory Judgment Statute is applicable only where there is a present actual controversy, and all interested persons are made parties, and only where justiciable issues are presented. It does not undertake to. decide the legal effect of laws upon a state of facts which is future, contingent or uncertain. A declaratory judgment will not be granted unless the danger or dilemma of the plaintiff is present, not contingent on the happening of hypothetical future events; the prejudice to his position must be actual and genuine and not merely possible, speculative, contingent, or remote.
Id. (quoting Anderson on Declaratory Judgments (2d. ed. 1951)); see also Cummings v. City of Fayetteville, 294 Ark. 151, 741 S.W.2d 638 (1987) (holding that there was no justiciable controversy and that while many laws may be easily subject to challenge we may only review such matters in a proper law suit).
​In the case brought to us for decision, I cannot find that appellees have suffered any actual threat of prosecution for violating Ark. Code Ann. § 5-14-122 (Repl. 1997). In fact, none of the members of the class that appellant represents have prosecuted or have threatened to prosecute any of the appellees for violation of Ark. Code Ann. § 5-14-122. Moreover, appellant notes that there has been no prosecution under this statute or its predecessor challenging adult consensual sex occurring in a private setting for at least fifty years. This lack of prosecution for a prolonged period of time establishes a record of nonenforcement of the statute. Here, appellees have not been prosecuted for violation of a statute that they admittedly violate. Appellees have failed to establish that they suffer the threat of actual prosecution for violation of Ark. Code Ann. § 5-14-122. The only fear of prosecution appellees assert is hypothetical and contingent upon the happening of future events.
The facts of this case are indistinguishable from those considered by the Nevada Supreme Court in Doe v. Bryan, 102 Nev. 523, 728 P.2d 443 (1986). The Nevada Court determined that a group of homosexuals had failed to establish standing to challenge a statute prohibiting sodomy. In Doe, four adult homosexuals brought a declaratory judgment action seeking to challenge Nevada's "infamous sexual offenses" statute. Id. The appellants had not been arrested or prosecuted under the statute. The appellee argued that because the appellants had not been arrested or prosecuted for violation of the statute, they lacked standing to challenge the statute. Id. The court explained:
   Nevada has a long history of requiring an actual justiciable controversy as a predicate to judicial relief. Moreover, litigated matters must present an existing controversy, not merely the prospect of a future problem.
Id. In affirming the trial court's granting of a motion to dismiss, the Nevada Court held:
   Appellants here allege that they have never been arrested for violating NRS 201.190 and the record does not reflect any enforcement efforts by the State against appellants or others.
   There is no indication that appellants are facing an immediate threat of arrest for violation of NRS 201.190 or that the risk ​of prosecution is, to any degree, more than imaginary or speculative. Therefore, this court affirms the dismissal of appellants' complaint by the district court because appellants lacked standing to seek declaratory relief.
Id.
Doe is indistinguishable from the case now before us. We can look to our sister state for guidance in determining that the appellees' claims in this case are nonjusticiable.
However, the fact that appellees have not been prosecuted or suffered an actual threat of arrest is not the end of our justiciability analysis. Appellees may also establish a justiciable controversy if they can establish that they have suffered actual harm caused by the statute. To determine whether appellees have established that they suffered actual harms based upon Ark. Code Ann. § 5-14-122, it is useful to look to the pleadings. In their complaint, appellees alleged: (1) that they have a genuine, specific, and concrete fear of prosecution under the statute; (2) that they fear that they will lose parental rights based on violation of this statute; (3) that they fear that they will lose their housing based on violation of the statute; and (4) that they fear that they will lose their jobs based on violation of the statute.
In the affidavits which were filed in support of their motion for summary judgment, appellees alleged: (1) that they are harmed because the statute condemns homosexual sex without condemning heterosexual sex; (2) that they suffer a stigmatic harm because they know that by violating the statute they are engaging in criminal behavior; (3) that they suffer a heightened risk of additional discrimination if the statute is not declared unconstitutional because the statute is used as justification for other forms of discrimination; (4) that they fear prosecution because police officers are free to arrest appellees for violating the statute; (5) that they fear prosecution because in Texas the sodomy law is enforced; (6) that they fear arrest because some police officers are hostile towards gay people; and (7) that they fear prosecution because neither appellant nor the other members of his class have repudiated enforcement of the statute.
A review of appellees' allegations demonstrates that appellees have failed to establish a justiciable controversy. While appellees ​allege harms which they may suffer, there is no allegation that these harms have occurred and no connection has been established between the possibility of the alleged harms and the existence of Ark. Code Ann. § 5-14-122. First, appellees are concerned about a possible loss of housing. There is no allegation that the appellee fearing a loss of her lease has lost her lease. Second, appellees state a fear of loss of professional licenses, but cite no instances where this has occurred. Additionally, there is no showing that the appellee who contends that he failed to get a promotion because the statute is on the books actually suffered the harm of loss of employment. Third, appellees fear the loss of parental rights, and possible adverse actions taken by discriminatory police officers. While these feared consequences are dire, they have yet to occur. I would further note that appellees' allegations of harms focus primarily on a societal bias against their sexual preferences, but fail to establish that such bias results from the existence of Ark. Code Ann. § 5-14-122. Because appellees have failed to establish that there is an actual threat of prosecution or that they have suffered actual harm resulting from the existence of the statute, I would conclude that they have not presented a justiciable controversy.
Because appellees have failed to establish a justiciable controversy, any opinion delivered by this court can only be advisory. It has been well settled that this court does not render advisory opinions nor answer academic questions. See, Saunders v. Neuse, 320 Ark. 547, 898 S.W.2d 43 (1995); Walker v. McCuen, 318 Ark. 508, 886 S.W.2d 577 (1994); Dougan v. Gray, 318 Ark. 6, 884 S.W.2d 239 (1994); Gladden v. Bucy, 299 Ark. 523, 772 S.W.2d 612 (1989); and Neeley v. Barber, 288 Ark. 384, 706 S.W.2d 358 (1986).
By embarking upon a path of writing advisory opinions declaring statues unconstitutional in a response to a petition for declaratory judgment without requiring that a justiciable controversy be presented, we step away from our responsibilities in the judicial branch and act as a super-legislative body with an assumed authority to correct mistakes that the court from time to time may believe have been made by our General Assembly.
I am authorized to state that Chief Justice ARNOLD joins in this dissent.