Speculative Threats of Prosecution Do Not Create Standing or a Justiciable Controversy for Declaratory Relief Challenging a Criminal Statute

Introduction

In Duane Gonder v. Tim Griffin, Arkansas Attorney General, 2026 Ark. 74, the Arkansas Supreme Court addressed whether an incarcerated, pro se plaintiff could obtain declaratory and injunctive relief against the Attorney General by alleging that Ark. Code Ann. § 5-54-119(a) (furnishing a prohibited article) is unconstitutional “as applied” to inmates who never leave the prison unit.

The case arose after Duane Gonder—who pleaded guilty in 2010 to multiple offenses including attempting to furnish a prohibited article—filed a civil petition asserting due process and equal protection defects (and, in a supplemental motion, vagueness) based largely on Laster v. State, 76 Ark. App. 324, 64 S.W.3d 800 (2002), which construed “introduces” to mean bringing contraband from outside the facility.

The circuit court dismissed without prejudice for lack of standing and absence of a justiciable controversy, and imposed a “strike” under Ark. Code Ann. § 16-68-607. The Supreme Court affirmed, held the dismissal became with prejudice due to the appeal, and declared Gonder’s motion about briefing moot.

Summary of the Opinion

• Standing: Gonder lacked standing because he alleged no present injury; he only speculated about potential future prosecution under § 5-54-119(a).
• Justiciability/Ripeness: The petition failed to present a ripe, justiciable controversy because the asserted harm was hypothetical and any ruling would not resolve a concrete, existing legal dispute.
• Procedural consequence: Although the circuit court dismissed without prejudice, Gonder’s decision to appeal—and the affirmance—converted the dismissal to one with prejudice under Griffin v. Ark. Bd. of Corr., 2025 Ark. 81, 711 S.W.3d 784.
• Strike: The strike was affirmed because Gonder failed to state a cause of action for declaratory/injunctive relief. Ark. Code Ann. § 16-68-607.
• Concurrence: Justice Womack agreed with affirmance but would have dismissed on sovereign immunity grounds and would have required a with-prejudice dismissal in the first instance.

Analysis

Precedents Cited

1) Pleading standards and review in declaratory actions

The court relied on Schuldheisz v. Felts, 2024 Ark. 137, 696 S.W.3d 817, for (i) abuse-of-discretion review of a dismissal for failure to state a claim in a declaratory action, and (ii) the rule that Arkansas is a fact-pleading jurisdiction: courts accept well-pleaded facts, not speculation, theories, or statutory interpretations.

2) Standing and the “as-applied” requirement

The opinion reaffirmed that standing is reviewed de novo (Cherokee Nation Businesses, LLC v. Gulfside Casino P'ship, 2023 Ark. 153, 676 S.W.3d 368) and that to challenge a statute’s constitutionality a litigant must show it is unconstitutional as applied to him (Toland v. Robinson, 2019 Ark. 368, 590 S.W.3d 146). It also applied Palade v. Bd. of Trs. of Univ. of Ark. Sys., 2022 Ark. 119, 645 S.W.3d 1, to reject “vague, speculative, and hypothetical allegations” as insufficient to establish a present controversy.

For the general standing principle that one must have suffered injury or belong to a prejudiced class, the court cited Medlock v. Fort Smith Serv. Fin. Corp., 304 Ark. 652, 803 S.W.2d 930 (1991).

3) Justiciability and ripeness in declaratory judgment

The court applied its four-part framework for declaratory relief from Howerton v. McCastlain, 2025 Ark. 144, and explained that a claim is nonjusticiable when a judgment would have no practical legal effect on an existing controversy. It also cited Williamson v. Shue, 2025 Ark. 76, for the concepts of “adverse interests” and “legally protectable interest.”

The court contrasted this case with Jegley v. Picado, 349 Ark. 600, 80 S.W.3d 332 (2002), where plaintiffs alleged present, ongoing conduct prohibited by the challenged statute and the State refused to disavow enforcement—creating a concrete, live controversy. Here, by contrast, Gonder alleged no present enforcement action and offered only a speculative charging scenario.

4) Presumption of constitutionality

Citing Blackburn v. Lonoke Cnty. Bd. of Election Comm'rs, 2022 Ark. 176, 652 S.W.3d 574, the court reiterated that statutes are presumed constitutional and challengers bear a heavy burden—underscoring why speculative allegations cannot carry an as-applied constitutional attack.

5) De novo review of “absence of justiciable issue”

The court relied on Baptist Health Sys. v. Rutledge, 2016 Ark. 121, 488 S.W.3d 507, for de novo review of whether the record shows a complete absence of a justiciable issue.

6) Effect of appealing a dismissal without prejudice

The opinion applied Griffin v. Ark. Bd. of Corr., 2025 Ark. 81, 711 S.W.3d 784, holding that when a plaintiff appeals a dismissal without prejudice (instead of pleading further) and the appellate court affirms, the dismissal converts to one with prejudice. This procedural doctrine materially changed the outcome’s finality: Gonder’s case ended with prejudice.

7) Concurrence: sovereign immunity as the proper ground

Justice Womack’s concurrence argued the suit should have been dismissed on sovereign immunity grounds, citing Thurston v. League of Women Voters of Ark., 2022 Ark. 32, 639 S.W.3d 319 (Womack, J., dissenting), and also referenced Jones v. Pro. Background Screening Ass'n, Inc., 2020 Ark. 362, 610 S.W.3d 640, to note that an undeveloped Fourteenth Amendment reference does not preserve an argument.

The concurrence also cited Griffin v. Ark. Bd. of Corrs., 2025 Ark. 81, 711 S.W.3d 784 (Womack, J., dissenting), to emphasize that a sovereign-immunity dismissal should be with prejudice.

Legal Reasoning

1. Gonder framed an “as-applied” challenge but pleaded no application to him. The court treated as dispositive that Gonder did not allege a present or imminent prosecution under § 5-54-119(a), but only the possibility that prison officials or prosecutors might choose that subsection in the future.
2. The alleged injury depended on a hypothetical chain of events. Gonder’s theory required multiple contingencies: possession of an item, a decision to charge, selection of subsection (a) instead of other provisions, and a prosecution. The court held such hypotheticals “do not rise to the level of injury or prejudice.” (Medlock).
3. The court highlighted an internal statutory mismatch in Gonder’s theory. Gonder focused on “introduction” under § 5-54-119(a) as interpreted in Laster v. State, but the court pointed out § 5-54-119(c)(1) (possession of prohibited articles) as a provision that “might present a current danger of prosecution”—undercutting his claim that the furnishing/introducing theory uniquely threatened inmates who never leave the unit.
4. Third-party constitutional claims were rejected. To the extent Gonder sought relief on behalf of “fellow inmates,” the court reiterated that constitutional rights are personal and may not be raised by third parties (Toland v. Robinson).
5. Declaratory relief was unavailable because the controversy was not ripe. Applying Howerton v. McCastlain and Williamson v. Shue, the court held there was no concrete dispute with practical effect to resolve; unlike Jegley v. Picado, there was no present enforcement posture or ongoing conduct coupled with a credible enforcement refusal-to-disavow context.
6. Finality consequences flowed from the choice to appeal. By electing to appeal rather than replead, Gonder triggered the Griffin v. Ark. Bd. of Corr. rule converting the affirmed “without prejudice” dismissal into a with-prejudice dismissal.

Impact

• Higher bar for pre-enforcement inmate challenges framed as declaratory actions: Inmates cannot obtain advisory rulings on charging discretion under contraband statutes absent a pleaded, concrete, present injury or a credible, imminent enforcement posture.
• Clarifies the boundary of Jegley v. Picado: The decision limits reliance on Jegley to situations with present, ongoing conduct and a credible enforcement controversy—not generalized fear of prosecution.
• Reinforces fact pleading in constitutional litigation: Assertions about how a statute “could” be used, without well-pleaded facts showing it “is” being used against the plaintiff, will fail at the threshold.
• Procedural finality warning: The conversion rule from Griffin v. Ark. Bd. of Corr. makes an appeal from a without-prejudice dismissal a high-stakes choice; affirmance forecloses repleading by converting the case to a with-prejudice dismissal.
• Prisoner-litigation consequences: The affirmance of a “strike” under Ark. Code Ann. § 16-68-607 signals continued willingness to impose strike consequences where pleadings fail to state a cognizable claim for declaratory/injunctive relief.
• Sovereign-immunity uncertainty persists: Because sovereign immunity was raised only in concurrence, the majority leaves the doctrinal battleground unchanged while indicating an alternative ground that may be pressed more directly in future suits against state officials.

Complex Concepts Simplified

Standing

A plaintiff must show a personal, concrete injury (not just disagreement with the law) that is caused by the challenged action and is redressable by the court. Here, fear of a hypothetical future prosecution was not enough.

As-applied constitutional challenge

A claim that a statute is unconstitutional in the particular way it affects the plaintiff’s real situation—requiring facts showing the statute’s actual application to that plaintiff.

Justiciable controversy / Ripeness

Courts decide real disputes, not abstract questions. A claim is “ripe” when it has developed into a concrete conflict with practical consequences, not a prediction about what might happen.

Declaratory judgment

A civil remedy where the court declares the parties’ legal rights. It requires an actual, ripe dispute; it cannot be used to obtain an advisory opinion about possible future charging decisions.

Presumption of constitutionality

Courts begin with the assumption that statutes are valid. The challenger bears a heavy burden and must support claims with concrete facts and developed argument.

Sovereign immunity

A doctrine that can bar lawsuits against the State (and sometimes state officials) unless an exception applies. The concurrence would have dismissed on this ground, but the majority did not reach it.

“Strike” under Ark. Code Ann. § 16-68-607

A statutory consequence in certain prisoner litigation for filing actions that fail to state a claim (and other qualifying defects). Accumulated strikes can restrict future filings.

Dismissal without prejudice vs. with prejudice

“Without prejudice” typically permits refiling or amending; “with prejudice” ends the case permanently. Under Griffin v. Ark. Bd. of Corr., affirmance on appeal can convert a without-prejudice dismissal into one with prejudice.

Conclusion

Gonder v. Griffin, 2026 Ark. 74, reinforces a strict threshold for declaratory and injunctive challenges to criminal statutes: a plaintiff must plead concrete, present injury and a ripe controversy, not a speculative fear about how prosecutors might apply a statute in the future. It also underscores the strategic risk of appealing a dismissal without prejudice—because affirmance converts it to a with-prejudice dismissal—while affirming that deficient pleadings in prisoner declaratory actions can warrant a strike under Ark. Code Ann. § 16-68-607.