Page:Jegley v. Picado, 349 Ark. 600 (2002).pdf/17

616 37, 42, 91 S. Ct. 746, 749, 27 L. Ed. 2d 669 (1971); Golden v. Zwickler, 394 U.S. 103, 89 S. Ct. 956, 22 L. Ed. 2d 113 (1969).

Id. at 298. Also, in 1977, the Court found injunctive and declaratory remedies to be appropriate prior to the enforcement of certain food and drug regulations where the plaintiff demonstrated that the impact of the regulations on them was sufficiently direct and immediate. Abbott Laboratories v. Gardner, 387 U.S. 136 (1967), overruled on other grounds, 430 U.S. 99 (1977). The Fifth Circuit Court of Appeals has said the fact that a statute has not been enforced and that there is no certainty it will be enforced does not establish a lack of case or controversy where the state has not disavowed enforcement. See KVUE, Inc. v. Austin Broadcasting Corp., 709 F.2d 922 (5th Cir. 1983).

Both Poe and Babbitt involved the question of whether the plaintiffs had established a case or controversy within the meaning of Article III of the U.S. Constitution, as opposed to abstract questions not justiciable by a federal court. See Babbitt v. United Farm Workers Nat'l Union, 442 U.S. at 297. Thus, neither case is binding on this court's determination of whether a justiciable controversy exists in the case now before us. In analyzing these cases, we must recognize that Poe held only that the federal judicial power would not allow the Court to produce an abstract opinion on the constitutionality of a state law unless the law was brought into actual or threatened operation. The Court also indicated that eighty years of nonenforcement under a state statute deprived it of the immediacy necessary to invoke the Court's power of constitutional adjudication. Babbitt appears to show a relaxing of the standard set forth in Poe by finding questions of a statute's constitutionality to be justiciable while conceding that the statute had not been and might never be enforced. Babbitt also lessens the federal standard by requiring only impending injury and by acknowledging that plaintiffs are not without fear of prosecution where a state refuses to disavow any intention of utilizing a statute.

Statements by this court on the existence of a justiciable controversy can be found in Donovan v. Priest, supra, and Cummings v. City of Fayetteville, 294 Ark. 151, 741 S.W.2d 638 (1987). The Donovan case involved a taxpayer who brought an action to enjoin the Secretary of State from placing a proposed amendment to the