Page:Jegley v. Picado, 349 Ark. 600 (2002).pdf/44

Rh 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