dissenting. My differences with the majority do not lie with the case law or statutes cited in its opinion. I also agree with the majority that the main issue bearing on the Arkansas Domestic Abuse Act’s constitutional validity depends upon whether the remedies provided by the Act are already adequately provided in courts of law, such as circuit court. If they are, the Act’s attempt to provide the same remedies in chancery (equity) court is unconstitutional.
My strong objection with the majority is its conclusion that battered housemates and children have an adequate remedy under the state’s criminal statutes which must be enforced in circuit court. The majority does a good job in listing criminal statutes that, indeed, cover a multitude of sins and aggressions. However, none of those laws provide for the removal of the abuser or perpetrator from the residence so as to prevent future violence.
At this point, I should mention that, in divorce cases filed in chancery court, parties routinely request and are given restraining orders or injunctions to prevent their spouses from (1) committing violence, (2) committing harassing acts, (3) going into or about the premises, (4) destroying property and (5) communicating by telephone or otherwise—just to name a few examples. Most importantly, this court, in James v. James, 237 Ark. 764, 375 S.W.2d 793 (1964), recognized that the fact an act enjoined also happens to be a criminal offense does not affect the power of a court of equity to enforce its order and the aspects of an act neither give nor oust equity of jurisdiction. The James court continued as follows:
If it should be held that the imposition of a criminal penalty for violation of a law would deprive a court of equity of jurisdiction to enforce its orders then a person desiring to proceed or continue in violation of the law might be able to pay a maximum fine and, thus, make himself immune from a valid chancery court injunction. This is not and should not be the law.
The majority ignores the well-settled principles set out in James. Instead, it divests chancery court of its jurisdiction over matters involving the same type violence and harassment as existed in James, and in doing so, states there are criminal statutes under which the victim can seek protection. This reasoning is not only contrary to longstanding equity principles just discussed, but also it has been my experience as an attorney and trial judge that obtaining relief in criminal court from family abuse or violence problems is wholly ineffective. The paramount relief family or household members seek in these matters is to remove the perpetrator from the residence and to restrain him or her from returning in an effort to avoid further contact. No criminal law is designed to achieve this type remedy.
Contrary to the majority court’s suggestion. Arkansas’s peace bond laws do not encompass such relief, but instead provide for the arrest of a person who threatens an offense against another and for a security (bond) by the person to insure his or her future good behavior. Ark. Code Ann. § 12-11-105 (1987). While a judge in the criminal division of circuit court may prove to be innovative and reach out for more authority, the peace bond provisions are solely implemented to require the posting of security and the forfeiting of the bond and punishing of the violator if he or she fails to keep the peace. No provision provides for the person’s removal from the premises of the victim’s residence or business.
After today’s discussion, only married people, who file for absolute or limited divorce or separate maintenance, will be able to obtain the type relief that the General Assembly attempted to provide for all family or household members by enacting the Domestic Abuse Act of 1989. Such disparate treatment of family or household members seems, to me, to be constitutionally suspect.
I acknowledge the legal issues presented in this matter are not easy ones, and the majority court has done a good job in setting out the other side, leading to the view that the Act is unconstitutional. But I strongly disagree. Perhaps, the value of this litigation is that it underscores the major problems than can arise by having separate courts of equity and law. In most states, a general jurisdiction trial court has both equity and law powers. As a consequence, the legal mind twisting antics we have gone through in this case would be unnecessary because the trial judge in those states would not only have jurisdiction over criminal offenses, but also he or she would possess the power to enjoin or restrain acts to prevent domestic violence.
In conclusion, I note that, after it sets out its rationale for holding the Domestic Abuse Act unconstitutional, the majority adds two paragraphs of what I would call hyperbole in justification of its position. In my view, the majority is more cavalier than thoughtful when it says, “If we were to perceive the issue, and take the steps the appellant and some of the amici briefs suggest, the jurisdiction of chancery court could be extended almost beyond imagination.” Soon after those remarks, it laments, “We cannot subvert the Constitution of Arkansas and allow the creation of a cause of action totally foreign to the equity jurisdiction of the chancery court just because we perceive and abhor a particular social ill. We are pledged to support the Constitution of Arkansas, and our duty is to follow it in this case as in any other.”
The appellant and amici are hardly asking this court not to uphold the Arkansas Constitution. While the majority finds no merit in the arguments made by those parties, it is “beyond my imagination” how the majority can conclude the cause of action and injunctive-type relief they ask enforced under the Domestic Abuse Act can be called, “totally foreign to the equity jurisdiction of chancery court.” Chancery court has exercised, and continues to exercise, such powers, as I have already discussed above. The court can only ignore its duty to support the constitution by failing to recognize the powers the constitution gives to chancery courts in this state. Instead, the appellant and other family members will be denied access to those powers and left only to possible criminal actions in circuit court, where no such preventive remedies are available. In my judgment, appellant’s and amici’s arguments are legitimate, meritorious and, at least in part, should be adopted by this court. While there may be some other problems with the Act’s implementation, the Act is not deficient because abused or harassed household members can get adequate relief in the criminal division of circuit court. They cannot.
In any event, I remain of the view that Arkansas courts of equity have the power to enforce the provisions of the state’s new Domestic Abuse Act. Therefore, I would reverse the trial court’s holding to the contrary.
Hays, J., joins this dissent.