dissenting. While I strongly disagree with the result reached by the majority, I understand and respect my colleagues’ views in deciding this case as they did, and ordinarily I would not write because the court chooses to deny rehearing. However, because this court holds the Domestic Abuse Act unconstitutional, this subject matter appears destined for the General Assembly once again. For that reason, I believe it might be helpful to point out at least one problem that body must consider if it attempts remedial action which merely places the remedies and procedures provided in the Act under circuit or municipal court jurisdiction.
One primary and vital object of the Domestic Abuse Act, as I understand it, is to remove the abuser or perpetrator from the residence or premises so as to prevent future violence towards housemates and children. As I noted in my earlier dissent, none of the state’s criminal laws or procedures provide for the removal of the abuser — unless, of course, the person is convicted and incarcerated for his or her threatened or committed violent acts. It is primarily this reason why I disagree with the majority concerning its holding that the violated or abused person has an adequate remedy at law, i.e., in circuit court — which:leads me to the point I wish to make.
Our court has previously held that circuit courts lack jurisdiction to grant and enforce equitable relief. Cummings v. Fingers, 296 Ark. 276, 753 S.W.2d 865 (1988); see also id. at 281 (Newbern, J., concurring); Monette Road Improvement Dist. v. Dudley, 144 Ark. 169, 222 S.W. 59 (1920); contra Daley v. Digby, 272 Ark. 267, 613 S.W.2d 589 (1981); cf. Ark. Const. art. 7, §§ 15, 37; Ark. Code Ann. §§ 16-13-321 and 16-113-301 (1987). That being so, the General Assembly, I submit, cannot implement the equitable and necessary provisions of the Act merely by giving circuit courts (in place of chancery courts as the Act now provides) the authority to hear and enforce the Act. Stated in other terms, circuit courts, under the state’s present judicial structure and this court’s prior cases defining the powers of the state’s respective general jurisdiction courts, do not, in my view, have the authority to remove or enjoin an abuser from family residences so as to prevent or correct the violent acts that are covered under the Domestic Abuse Act.
Other troublesome issues surrounding the Act’s future implementation no doubt will surface. Nonetheless, I feel obligated to mention the one I have because the legal obstacle it poses is serious, and since it has not yet been discussed or briefed, I am hopeful my mentioning it might be helpful to the General Assembly when it reconsiders re-enactment of the Act my colleagues have declared unconstitutional.
The foregoing leads me to my final observation. In the forty-eight states where a trial court has both equity and law powers, the court has authority to remove abusers of housemates and children from the home. That being so, where does that court’s authority go when a state, like Arkansas, splits its trial court into separate equity (chancery) and law (circuit) courts? Does that authority disappear? Or does that authority still exist and reside in equity courts, as it has existed in divorce cases for nearly a century? I believe the latter is true and, in my view, therein lies the greatest flaw in the majority’s rationale and holding.