Cite as 349 Ark. 600 (2002)
is present, not contingent on the happening of hypothetical future events: the prejudice to his position must be actual and genuine and not merely possible, speculative, contingent, or remote.
Cummings v. City of Fayetteville, 294 Ark. at 154-55, 741 S.W.2d at 639-40 (quoting Anderson, Anderson on Declaratory Judgments § 187 (2d ed. 1951)). We concluded in Cummings that, while the appellant had demonstrated he had an argument with the legislature, it was not one that yet amounted to a controversy that this court should decide. Id.
Here, none of the appellees have been prosecuted under Ark. Code Ann. § 5-14-122; nor have they alleged a specific prosecutorial threat made under the statute. However, distinguishable from the situation in Cummings, the appellees in this case do claim that they presently engage in conduct prohibited by the statute. The facts regarding the prohibited conduct are not future or uncertain, but, by appellees' own admissions, are present and ongoing. These appellees face a daily dilemma due to the existence of the statute.
[12] Though this court clearly requires the existence of a justiciable controversy prior to granting a declaratory judgment, we have heard challenges to the constitutionality of statutes and regulations by persons who did not allege that they had been penalized under the statutes or regulations. We have not always required prosecution or a specific threat of prosecution as a prerequisite for challenging a statute. In Epperson v. Arkansas, 393 U.S. 97 (1968), and State v. Epperson, 242 Ark. 922, 416 S.W.2d 322 (1967), rev'd, 393 U.S. 97 (1968), both this court and the United States Supreme Court considered a challenge to an Arkansas criminal statute that violated constitutional rights but had not triggered an actual prosecution during its forty-year history.[1] Likewise, in
- ↑ In Epperson, a high school biology teacher challenged the constitutionality of an Arkansas law adopted in 1928 that made it illegal for a teacher in any state-supported school or university to teach Darwin's theory of evolution. Epperson v. Arkansas, 393 U.S. 97 (1968). For the academic year 1965-1966, the school administration adopted and prescribed a biology textbook that contained a chapter setting forth the theory of evolution. Id. at 102. See Doe v. Bolton, 410 U.S. 179 (1973) (physicians presented justiciable controversy despite fact that record did not disclose any of them had been prosecuted or threatened with prosecution for violation of the state's abortion statutes, citing Epperson v. Arkansas, supra).
