Page:Jegley v. Picado, 349 Ark. 600 (2002).pdf/15

614 hand. Id. (citing Adams v. Atlantic City, 26 N.J. Misc. 259, 59 A.2d 825 (1948)).

Appellant counters that appellees can show no real, nonspeculative, impending threat of prosecution and, as such, their claims are not justiciable. They cite the court to Poe v. Ullman, 367 U.S. 497 (1961), wherein the United States Supreme Court dismissed a declaratory-judgment action seeking to invalidate certain Connecticut statutes prohibiting the use of contraceptives. The appellants' complaint alleged that the prosecutor intended to prosecute any offense against Connecticut law and that the prosecutor claimed the use of and advice concerning contraceptives would constitute offenses. Id. The law prohibiting the use of contraceptives had been on the state's books since 1879 with only one recorded prosecution under the statute, despite the fact that contraceptives were commonly and notoriously sold in Connecticut drug stores. Id. In determining that the record disclosed no justiciable controversy because it failed to show that the challenged statutes would be enforced against the appellants, the Court stated:

The various doctrines of "standing," "ripeness," and "mootness," which this Court has evolved with particular, though not exclusive, reference to such cases are but several manifestations — each having its own "varied application" — of the primary conception that federal judicial power is to be exercised to strike down legislation, whether state or federal, only at the instance of one who is himself immediately harmed, or immediately threatened with harm, by the challenged action. "This court can have no right to pronounce an abstract opinion upon the constitutionality of a State law. Such law must be brought into actual or threatened operation upon rights properly falling under judicial cognizance, or a remedy is not to be had here." "The party who invokes the power (to annul legislation on grounds of its unconstitutionality) must be able to show not only that the statute is invalid, but that he has sustained or is immediately in danger of sustaining some direct injury as the result of its enforcement" [Citations omitted.]

It is clear that the mere existence of a state penal statute would constitute insufficient grounds to support a federal court's adjudication of its constitutionality in proceedings brought against the State's prosecuting officials