*1 thе trial to intervene. on account of court’s failure Such a reversal would be an rare to our basicrule. necessarily extremely exception State, Wicksv. 786-87 added). (emphasis failed has tо demonstrate that the State’s
Appellant cross-examination of either or Keith was so fla appellant Vaughan and so in character as to make it the grant highly prejudicial duty motion, on its own to have instructed the not to jury same, consider the without the anof necessity objection by appel sum, lant. In because of failure to these appellant’s preserve points on the triаl court will be affirmed. appeal,
IV. Rule 4-3 (h) Compliance. error, The record has been reviewed for prejudicial pursuant Ct. R. 4-3 and no reversible errors were Sup. (h), found. Affirmed. BRYANT, General,
Winston Larry Jegley, for Pulaski Sixth Prosecuting Attorney District v. County, Judicial PICADO, McCain, White, Elena Manire, Robin Randy Bryan Vernon Charlotte Stokay, Townsand Downey, George 98-1223 Court of Arkansas
Supreme delivered Opinion June *2 Gen., Mark Pryor, Att’y Ass’t by: Timothy Att’y G. Gauger, Gen., for appellant. by: Inc., Lamda and Fund, Education Legal Suzanne B. Defense Harlow; Mitchell, Ruth E. Blackstock, Barnes, Goldberg Wagoner Ivers, Sneddon; Sullivan, & David Ivers and L. by: Emily Gary for appellees. Donald L. This an is interlocutory Corbin, Justice. a claim of from suit
appeal involving immunity pursuant 5, 20, to Article of the Arkansas Constitution. Our jurisdiction § Picado, to Ark. Ct. R. Elena pursuant Sup. l-2(a)(l). Appellees McCain, Maniré, White, Robin Randy Vernon Bryan Stokay, Charlotte Townsand filеd in the Downey, George complaint Pulaski Court to have County Ark. Code Ann. Chancery seeking unconstitutional, 5-14-122 declared 1997) as it insofar (Repl. § criminalizes acts consensual sexual specific betweеn intimacy of the same sex. also seek an persons They injunction preventing *3 enforcement of the statute. is based on four Appellees’ complaint of causes action the to involving right еqual privacy protec tion the of laws under both the United States and Arkansas Con stitutions. Winston in Appellants his official Bryant, as capacity General1, and Attorney in his official Larry Jegley, as capacity District, for the Sixth Prosecuting Attorney filed a motion Judicial to dismiss the to ARCP Rule complaint pursuant asserting that are immune from suit they and that the court lacks to hear claims. The chancellor denied Appellees’ motion, and this Appellants’ followed. appeal are and lesbian residents of Appellees Arkansas who gay alleg- 5-14-122, fear under section edly provides: A(a) commits person if such sodomy person performs any act of sexual gratification involving:
(1) The penetration, however of the slight, anus or mouth of an animal aor the of a person by of the penis person same sex animal; or an or The penetration, however of the slight, vagina or anus of an animal aor person by any member of a body person same sex or an animal.
(b) Sodomy is a ClassA misdemeanor. January As Pryor of Mark is the General of Arkansas. to a sentence not exceed are A misdemeanors punishable by Class $1,000. Ann. 5- not to exceed Code one and fine year §§ 1997). 4-201 and 5-4-401 (Repl. havе in the each assert that they their Appellees complaint, 5-14-122, that section in conduct by prohibited
past engaged each in such conduct in the future. to They intend they engage concrete fear” also state that suffer “genuine, they specific, under section. con- that will be that Appellees they prosecuted violates their to guaran- tend that section 5-14-122 rights privacy Amendment to the Bill and the Fourteenth teed the of Rights by 2 of the Arkansas Consti- and Article United States Constitution tution, consensual acts of insofar as it criminalizes sodomy private, the contend further that between two adults of same sex. They acts of 5-14-122 does sodomy because section prohibit sex, the it violates their between of rights opposite persons laws, as found in the Fourteenth Amend- equal protection ment, well Article 3 and Arkansas as as §§ Constitution. First, five for reversal. they argue raise points
Appellants claims are barred the doctrine of state-law sovereign Appellees’ 20, of Arkansas in Article seсtion Con- immunity provided fails next to state stitution. Appellants argue complaint *4 under 42 U.S.C. 1983 facts which relief can be granted upon § not amenable to suit under because are Appellants “persons” that the chan- last three assert statute. For their Appellants points, there no lacks of this case because is (1) cery jurisdiction have an case or controversy, adequate justiciable Appellees law, not courts at and (3) chancery may prose- remedy that the court lacks cution of criminal statutes. We agree chancery case, we to hear this reverse. jurisdiction rule, a exists when jurisdiction only As general equity v. State Townsend Arkansas law High inadequate. Comm’n, 389 More (1996). Ark. 933 S.W.2d 326 way par over the of a will entertain contest validity ticularly, “equity the determination of statute nor restrain pending prosecutions
231 where an thereof at law exists.” S & validity S adequate remedy Freeze, 1078, 1081, News Inc. Agency, Leatherman, Rider Ark. (1970) (citing Here, S.W. (1908)). Appellants argue Appellees’ remedy at law is of section challenge 5-14-122 in defеnse of under that statute. We with disagree assertion that constitutional Appellants’ must Appellees’ challenge be until one or of more them is arrested and postponed charged howevеr, with the statute. We that the violating agree, court lacks to hear jurisdiction Appellees’ complaint. act,
Under our
courts of rec
declaratory judgment
ord within their
have the
respective jurisdictions
to declare
power
status, and other
relations whether or not
rights,
legal
further relief
is or could be claimed. Ark. Code Ann.
16—111—103(a)(1987).
§
The act
thus,
itself does not confer subject-matter jurisdiction;
there
be
must
an
basis for the
independent
court’s jurisdiction
it
before
render a
Ark.,
declaratory
UHS
Inc. v.
judgment.
of
Inc.,
Rock,
Charter
Little
Hosp.
(1988). Courts of
do not have
equity
to render
jurisdiction
where the
matter is not
dеclaratory judgments
subject
cognizable
in a court of
City Garland v. Miller
equity.
County,
981, 606
The
(1980).
is whether
pertinent inquiry
exclusive
jurisdiction
matter is vested in a
subject
particular
tribunal
the Arkansas
Constitution.
Daley Digby,
267,
Here, seek a declaration that the Appellees criminal statute, 5-14-122, section sodomy is unconstitutional. Circuit courts have exclusive over See prosecutions. Const, art. Accordingly, Appellees’ declaratory- §11. action be judgment may only in the circuit court. Once pursued the circuit court jurisdiсtion to declare acquires such it rights may *5 267, also issue relief. 272 injunctive Ark. 613 S.W.2d 589. Digby, Thus, at law is Appellees’ complete.
232 it the as the order of chancery
We thus reverse case. the circuit court to hear the Only does have jurisdiction deсlara under our a criminal statute unconstitutional declare may this case to the chan we remand act. Accordingly, tory judgment to the to with directions transfer Appellees’ complaint cеry circuit court. concur. JJ., Imber,
Brown I with Robert L. Justice, concurring. agree Brown, write to what the majority emphasize opinion that court cannot chancery does. All today’s agree holding partiеs /Dot, Inc. v. See, a e.g., Billy prosecution. pending Fields, News S & S (1995); Agency 908 S.W.2d Freeze, deci 404 (1970). Today’s v. 449 S.W.2d when no or makes it clear that even criminal prosecution sion no to court has jurisdiction chancery investigation pending, this of criminal statute. reaching decide the constitutionality conclusion, relies on Daley majority Digby, we said (1) declaratory where (1981), judg in with juris are resolved courts subject-matter ments underlying diction, if has to circuit court jurisdiction grant Neither it also issue an injunction. declaratory judgment, that the this cites which attests to fact in case Daley, party General, least, was unaware prece jurisdictional dent set that decision. for juris-
I have some
attorneys researching
sympathy
proper
for a declaration of a criminal statute’s constitutionality.
diction
which,
cases
on the surface at
Those
would find several
attorneys
least,
See,
in
court.
to sanction jurisdiction
chancery
e.g.,
appear
Adams,
Dan
Tr.
Handy
Improvement
of the
court decided
constitutionality
(1982) (chancery
laws,
carried criminal
for violation
Sunday closing
penalties
no
was
Arkansas State Bd.
but where
pending);
Troilett,
decisions, but that is effect of our decision certainly today. court has been the
Chancery traditionally proper jurisdiction for where there protecting personal is no ade- property rights Bates, at law. See Bates quate remedy State, see also Union (1990); Pac. R.R. Co. v. Here, (1994). personal right privacy asserted who that the threat of appellees аrgue over their like a prosecution hangs heads sword of Damocles. Cir- cuit court is the criminal, for and under proper things circuit court Daley Digby, resolve the supra, con- only stitutional but also question enforcement of an unconstitu- tional statute. The reason, at law is For that I adequate. with the transfer to agree circuit court.
Imber, J., joins.