Page:Jegley v. Picado, 349 Ark. 600 (2002).pdf/46

Rh In the case brought to us for decision, I cannot find that appellees have suffered any actual threat of prosecution for violating Ark. Code Ann. § 5-14-122 (Repl. 1997). In fact, none of the members of the class that appellant represents have prosecuted or have threatened to prosecute any of the appellees for violation of Ark. Code Ann. § 5-14-122. Moreover, appellant notes that there has been no prosecution under this statute or its predecessor challenging adult consensual sex occurring in a private setting for at least fifty years. This lack of prosecution for a prolonged period of time establishes a record of nonenforcement of the statute. Here, appellees have not been prosecuted for violation of a statute that they admittedly violate. Appellees have failed to establish that they suffer the threat of actual prosecution for violation of Ark. Code Ann. § 5-14-122. The only fear of prosecution appellees assert is hypothetical and contingent upon the happening of future events.

The facts of this case are indistinguishable from those considered by the Nevada Supreme Court in Doe v. Bryan, 102 Nev. 523, 728 P.2d 443 (1986). The Nevada Court determined that a group of homosexuals had failed to establish standing to challenge a statute prohibiting sodomy. In Doe, four adult homosexuals brought a declaratory judgment action seeking to challenge Nevada's "infamous sexual offenses" statute. Id. The appellants had not been arrested or prosecuted under the statute. The appellee argued that because the appellants had not been arrested or prosecuted for violation of the statute, they lacked standing to challenge the statute. Id. The court explained:

Nevada has a long history of requiring an actual justiciable controversy as a predicate to judicial relief. Moreover, litigated matters must present an existing controversy, not merely the prospect of a future problem.

Id. In affirming the trial court's granting of a motion to dismiss, the Nevada Court held:

Appellants here allege that they have never been arrested for violating NRS 201.190 and the record does not reflect any enforcement efforts by the State against appellants or others.

There is no indication that appellants are facing an immediate threat of arrest for violation of NRS 201.190 or that the risk