Jegley v Picado

• Decision Date: 05 July 2002
• Docket Number: 01-815
• Citation: 80 S.W.3d 332
• Parties: LARRY JEGLEY, IN HIS OFFICIAL CAPACITY, AND ON BEHALF OF HIMSELF AND ALL OTHERS SIMILARLY SITUATED, APPELLANT, VS. ELENA PICADO, ET AL, APPELLEES,SUPREME COURT OF ARKANSAS Opinion Delivered APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, NO. 01-815, HON. DAVID B. BOGARD, JUDGE ANNABELLE CLINTON IMBER, Associate Justice This appeal involves a constitutional challenge to the Arkansas sodomy statute at Ark. Code Ann. § 5-14-122 (Repl. 1997). Appellant Larry Jegley, acting in his official capacity as prosecuting attorney for the Sixth Judicial District, on behalf of himself and all others similarly situated, was sued by appellee Elena Picado and six other gay and lesbian Arkansas citizens. Appellees seek a declaratory judgment that this state's sodomy statute is unconstitutional and an injunction against future enforcement of the statute. They assert that the statute violates their fundamental right to privacy and their equal protection rights under both federal and state constitutional law. We agree with appellees and hold that Ark. Code Ann. § 5-14-122 is unconstitutional under the Arkansas Constitution. The statute at issue specifically provides: (a) A person commits sodomy if such person performs any act of sexual gratification involving: (1) The penetration, however slight, of the anus or mouth of an animal or a person by the penis of a person of the same sex or an animal; or (2) The penetration, however slight, of the vagina or anus of an animal or a person by any body member of a person of the same sex or an animal. (b) Sodomy is a Class A misdemeanor. Ark. Code Ann. § 5-14-122. The criminal penalty range for a conviction under the statute is a sentence not to exceed one year in jail and a fine of up to $1,000. See Ark. Code Ann. §§ 5-4-201 and 5-4-401 (Repl. 1997). Appellees Elena Picado, Randy McCain, Robin White, Bryan Manire, Vernon Stokay, Charlotte Downey and George Townsand filed a declaratory judgment action seeking to have Ark. Cod
• Court: Arkansas Supreme Court

LARRY JEGLEY, IN HIS OFFICIAL CAPACITY, AND ON BEHALF OF HIMSELF AND ALL OTHERS SIMILARLY SITUATED, APPELLANT VS ELENA PICADO, ET AL, APPELLEES

No. 01-815

SUPREME COURT OF ARKANSAS

Opinion Delivered

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, NO. 01-815, HON. DAVID B. BOGARD, JUDGE

ANNABELLE CLINTON IMBER, Associate Justice

This appeal involves a constitutional challenge to the Arkansas sodomy statute at Ark. Code Ann. § 5-14-122 (Repl. 1997). Appellant Larry Jegley, acting in his official capacity as prosecuting attorney for the Sixth Judicial District, on behalf of himself and all others similarly situated, was sued by appellee Elena Picado and six other gay and lesbian Arkansas citizens. Appellees seek a declaratory judgment that this state's sodomy statute is unconstitutional and an injunction against future enforcement of the statute. They assert that the statute violates their fundamental right to privacy and their equal protection rights under both federal and state constitutional law. We agree with appellees and hold that Ark. Code Ann. § 5-14-122 is unconstitutional under the Arkansas Constitution.

The statute at issue specifically provides:

(a) A person commits sodomy if such person performs any act of sexual gratification involving:

(1) The penetration, however slight, of the anus or mouth of an animal or a person by the penis of a person of the same sex or an animal; or

(2) The penetration, however slight, of the vagina or anus of an animal or a person by any body member of a person of the same sex or an animal.

(b) Sodomy is a Class A misdemeanor.

Ark. Code Ann. § 5-14-122. The criminal penalty range for a conviction under the statute is a sentence not to exceed one year in jail and a fine of up to $1,000. See Ark. Code Ann. §§ 5-4-201 and 5-4-401 (Repl. 1997).

Appellees Elena Picado, Randy McCain, Robin White, Bryan Manire, Vernon Stokay, Charlotte Downey and George Townsand filed a declaratory judgment action seeking to have Ark. Code Ann. § 5-14-122 declared unconstitutional insofar as it criminalizes specific acts of private, consensual sexual intimacy between persons of the same sex. Appellees are long-time gay and lesbian residents of Arkansas, several of whom live with partners in long-term, committed relationships. They include a teacher, a minister, a nurse, a school guidance counselor, a small-business owner, and computer-industry employees. One is the mother of two children. All admit that they have violated the statute in the past and allege that they intend to engage in conduct prohibited by the statute in the future. As members of the class targeted by the statute, appellees contend that they are harmed by the law because it criminalizes their private, intimate conduct. They also fear prosecution for violations of the statute and claim that such prosecution could result in their loss of jobs, professional licenses, housing, and child custody. According to appellees, the statute brands them and other gay and lesbian Arkansans as criminals, singling them out for condemnation and stigma.

Appellant maintains that the sodomy statute is constitutional. He filed a motion to dismiss appellees' complaint, but the chancellor entered an order denying that motion. An interlocutory appeal to this court followed. By opinion entered June 24, 1999, we reversed and remanded the case with directions that the case be transferred to circuit court. See Bryant v. Picado, 338 Ark. 227, 996 S.W.2d 17 (1999)(Picado I). The original defendants were prosecutor Larry Jegley and then-Attorney General Winston Bryant, sued in their "official" capacities only. Mark Pryor was later substituted in place of Bryant when he assumed the office of Attorney General. The circuit court later granted Pryor's motion to dismiss, finding that Pryor did not have a nexus with enforcement of the sodomy statute. On June 12, 2000, the circuit court granted appellees' unopposed motion to certify Jegley as representative of a class of all state prosecuting attorneys sued in their official capacities.

Upon consideration of the parties' cross-motions for summary judgment, the circuit court found: (1) that appellees' claims were justiciable; (2) that the guarantees of individual liberty provided in the Arkansas Constitution offer greater protection of the right to privacy than those provided by the federal constitution as interpreted by the United States Supreme Court; (3) that Arkansas's fundamental right to privacy encompasses the right of appellees to engage in consensual, private, non-commercial, sexual conduct; (4) that Ark. Code Ann. § 5-14-122 is in violation of such rights as afforded by Article 2, Section 2 of the Arkansas Constitution; and (5) that Ark. Code Ann. § 5-14-122 violates rights of equal protection as guaranteed by the Arkansas Constitution at Article 2, Section 18. Appellant now appeals from that order, filed on March 23, 2001, granting appellees' motion for summary judgment and denying appellant's motion for summary judgment.

On appeal, appellant claims the circuit court erred in holding that appellees claims establish a justiciable controversy and that, even if a justiciable controversy exists, appellees cannot overcome the presumption of the statute's constitutionality. Appellant further contends the circuit court erred in finding that the Arkansas Constitution guarantees a fundamental right to privacy encompassing homosexual sodomy; the circuit court erred in finding that the sodomy statute reflects impermissible gender-based discrimination; and the protection of public morality provides a rational basis for Arkansas's sodomy statute. Our jurisdiction is proper pursuant to Ark. Sup. Ct. R. 1-2(a)(1).

This case is before us pursuant to the circuit court's grant of summary judgment to the appellees. Summary judgment should only be granted when it is clear that there are no genuine issues of material fact to be litigated, and the moving party is entitled to judgment as a matter of law. Hall v. Tucker, 336 Ark. 112, 983 S.W.2d 432 (1999); McCutchen v. Huckabee, 328 Ark. 202, 943 S.W.2d 225 (1997). On appellate review, this court determines if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion leave a material fact unanswered. Id. The burden of sustaining the motion for summary judgment is always on the moving party and this court views the evidence in a light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Id. Summary judgment is proper when the party opposing the motion fails to show that there is a genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Id. Our review focuses not only on the pleadings, but also on the affidavits and other documents filed by the parties. Id. See Ark. R. Civ. P. 56 (2002).

I. Justiciable Controversy

For his first point on appeal, appellant argues that appellees cannot seek a declaratory judgment on the constitutionality of the sodomy statute because they have not shown the existence of a justiciable controversy by way of a credible threat of imminent prosecution. In response, appellees contend they have abundantly demonstrated that they are faced with a credible threat of prosecution under the statute. They further assert that the statute's unequal treatment alone, and the stigma and collateral harms it triggers for lesbians and gay men, inflict ongoing, serious injuries long recognized as judicially cognizable. On appeal, the question as to whether there was a complete absence of a justiciable issue shall be reviewed de novo on the record of the trial court. Stilley v. Hubbs, 344 Ark. 1, 40 S.W.3d 209 (2001).

In Picado I, this court alluded to the justiciable controversy requirement:

As a general rule, equity jurisdiction exists only when the remedy at law is inadequate. More particularly, "equity will not entertain a contest over the validity of a statute nor restrain prosecutions pending the determination of the validity thereof where an adequate remedy at law exists." Here, Appellants argue that Appellees' remedy at law is to challenge the constitutionality of section 5-14-122 in defense of a prosecution under that statute. We disagree with Appellants' assertion that Appellees' constitutional challenge must be postponed until one or more of them is arrested and charged with violating the statute. We agree, however, that the chancery court lacks jurisdiction to hear Appellees' complaint. [Citations and emphasis omitted.]

338 Ark. at 230-31, 996 S.W.2d at 18-19. Based upon the quoted language, the circuit court found on remand that we ruled in Picado I that appellees' constitutional challenge did not have to be postponed until one or more of them was arrested and charged with violating the statute.

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,...