dissenting. While I share Justice Glaze’s strong disagreement with the result reached by the majority, I believe the solution is for this court to grant rehearing rather than for the General Assembly to attempt to place the remedies and procedures provided in the Domestic Abuse Act under circuit or municipal court jurisdiction, jurisdiction which does not readily lend itself to the objectives of the act.
The Domestic Abuse Act groups together equitable remedies to form a unitary approach for combating the overwhelming problem of domestic violence. The forms of relief granted by the act are distinctly equitable remedies traditionally exercised by courts of equity, thus the powers of chancery courts are not expanded. The act prescribes a simplified form enabling victims to promptly seek protective relief and provides for the deferment of filing costs and fees enabling the destitute victim to gain access to the courts. Historically, chancery has been the tribunal wherein the conduct cognizable under the act has been addressed and chancery is the appropriate forum to deal with such problems.
Until a domestic abuser inflicts serious physical injury or death on the victim, criminal justice procedures are, for all practical purposes, unavailing. The remedy sought by victims of domestic abuse is not after-the-fact punishment, but prevention. A perpetrator of domestic violence may indeed be arrested pursuant to our criminal laws, but after posting bond he can return home to resume the abuse. Often the abuser is the primary if not sole supporter of the family, therefore, jailing the spouse or demanding a high bond accomplishes very little.1 Typically, the victim may also be intimidated into dropping any criminal charges filed against the abusive mate. In addition to these problems with the criminal process, evidentiary problems arise from the unique arena of the home.
Yet without factual development at the trial level, or any challenge to its constitutionality by the defendant (now the appellee), the Domestic Abuse Act was declared unconstitutional in its entirety by the chancellor, essentially on the theory that an adequate remedy at law is already available to the victims of domestic violence. That holding on a record wholly devoid of factual development, and notwithstanding the “heavy burden” that rests on one who challenges the unconstitutionality of an enactment, [Gay v. Rabon, 280 Ark. 5, 652 S.W.2d 863 (1983)] is palpably suspect.
This remedial legislation was designed to meet a compelling societal need and intended to correct an acute and pervasive problem involving violence and abuse within the family, the victims of which are invariably women and children. It was overwhelmingly enacted by the General Assembly, that branch of government most responsive to, and representative of, the general public. Before such enactments are struck down by the judicial branch of government, which is in no sense a representative body, nor intended to be, the constitutional infirmity must be clear and convincing beyond a doubt. Indeed, that is the rhetoric to which a legion of our cases subscribe. Love v. Hill, 297 Ark. 96, 759 S.W.2d 550 (1988); Streight v. Ragland, Commissioner, 280 Ark. 206, 655 S.W.2d 459 (1983); Buzbee v. Hutton, 186 Ark. 134, 52 S.W.2d 647 (1932) (“The conflict with the constitution must be unmistakable”); Board of Commissioners of Red River Bridge District v. Wood, 183 Ark. 1082, 405 S.W.2d 435 (1931) (“Statutes must be upheld unless clearly prohibited”); Beaty v. Humphrey, 195 Ark. 1008, 115 S.W.2d 559 (1938) (“The conflict with the constitution must be clear and palpable”); Dobbs v. Holland, 140 Ark. 398, 215 S.W. 709 (1919) (“Any doubt must be resolved in favor of a statute’s validity”); Poole v. State, 244 Ark. 1222, 498 S.W.2d 628 (1968) (“Unconstitutionality must be obvious.”). There has been no attempt in this case to show that any of the remedies provided in the act have not traditionally been exercised by courts of equity and I am unable to say that the Domestic Abuse Act is unconstitutional beyond doubt. I would grant rehearing.
The monetary concern also rules out divorce and personal injury suits.