Page:Jegley v. Picado, 349 Ark. 600 (2002).pdf/13

612 [8] Appellant claims the trial court erred in its law-of-the-case ruling because the issue of justiciability was not squarely addressed or resolved by this court; rather, the Picado I appeal was resolved solely on the issue of the chancery court's jurisdiction. We agree. The Picado I opinion related solely to the issue of whether the chancery court was the proper court in which appellees should present their claims. Clemmons v. Office of Child Support Enforcement, 345 Ark. 330, 47 S.W.3d 227 (2001) (holding that, while a decision of the court will not be disturbed because it is law of the case under res judicata, the court is not bound by a conclusion stated as obiter dictum). In addition, we point out that appellant does not disagree with our statement in Picado I that appellees are not required to suffer prosecution before they can challenge the statute. In fact, appellant argued below and now maintains on appeal that either an actual prosecution or a credible threat of prosecution is required in order for a justiciable controversy to exist. We must, therefore, conclude that the trial court's law-of-the-case ruling was in error. However, we will affirm the trial court if it reached the right result, even though the court may have announced the wrong reason. Norman v. Norman, 347 Ark. 682, 66 S.W.3d 635 (2002); ''Ouchita Trek and Develop. Co. v. Rowe'', 341 Ark. 456, 17 S.W.3d 491 (2000); Summers Chevrolet, Inc. v. Yell County, 310 Ark. 1, 832 S.W.2d 486 (1992).

As to the merits of the justiciable-controversy issue, appellant contends that the mere existence of Ark. Code Ann. § 5-14-122 is insufficient to support this court's adjudication of its constitutionality. He claims that, given the prosecutorial discretion in the enforcement of statutes, it is possible that the sodomy statute may never be enforced against private, consensual behavior. In support thereof, appellant references the history of nonenforcement under the statute to refute appellees' alleged fear of prosecution. He also points out that no reported Arkansas case in the past "50+ years" reveals a prosecution under the sodomy statute for private, consensual conduct violating the statute. In sharp contrast, appellees dispute these claims. Because they engage in and will continue in the future to engage in behavior criminalized by the statute, appellees take the position that they face a real and ongoing threat that they will be prosecuted as members of a class specifically