Duane Gonder v. Tim Griffin, Arkansas Attorney General

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April 23, 2026 Get Citation Alerts Download PDF Add Note

Duane Gonder v. Tim Griffin, Arkansas Attorney General

Supreme Court of Arkansas

• Citations: 2026 Ark. 74

• Docket Number: Unknown

• Opinion

• Authorities (12)

• Cited By (0)

• Summaries (0)

• Similar Cases (165)

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Combined Opinion

Cite as 2026 Ark. 74
SUPREME COURT OF ARKANSAS
No. CV-25-549

Opinion Delivered: April 23, 2026
DUANE GONDER
APPELLANT PRO SE APPEAL FROM THE
PULASKI COUNTY CIRCUIT
COURT, THIRD DIVISION;
V. MOTION FOR DECISION ON
APPELLANT’S BRIEF ALONE
TIM GRIFFIN, ARKANSAS [NO. 60CV-24-5377]
ATTORNEY GENERAL
HONORABLE CATHLEEN V.
APPELLEE
COMPTON, JUDGE

AFFIRMED; MOTION MOOT.

COURTNEY RAE HUDSON, Associate Justice

Duane Gonder appeals from the dismissal without prejudice of his petition for

declaratory and injunctive relief filed against Arkansas Attorney General Tim Griffin. In the

circuit court, Gonder alleged that Arkansas Code Annotated section 15-54-119(a) (Supp.

2009) is unconstitutional as applied to him and his fellow inmates. The circuit court granted

the appellee’s motion to dismiss, finding that Gonder lacked standing and had failed to raise

a justiciable controversy; the circuit court imposed a strike. Also pending before this court

is Gonder’s motion for a decision based on his brief alone.1 We affirm, which renders

Gonder’s motion moot.

1
In the motion, Gonder alleged that appellee had failed to file a timely responsive
brief, and therefore, the appellee’s brief should be excluded from consideration. However,
appellee was granted an extension and the response brief was timely.
In a 2010 negotiated plea, Gonder pleaded guilty to first-degree murder, aggravated

assault, and attempting to furnish a prohibited article in a correctional facility;2 he was

sentenced to an aggregate term of 552 months’ imprisonment. Gonder v. State, 2022 Ark.

67, 641 S.W.3d 626. On appeal, Gonder contends, as he did in the circuit court, that section

5-54-119(a) is unconstitutional as applied to him and other inmates who are incarcerated

and never leave the prison unit. According to Gonder, the statutory provision criminalizing

the introduction of prohibited articles in a correctional facility violates due process and equal

protection as applied to him and inmates like himself.3 Gonder asserts that because the court

of appeals in Laster v. State, 76 Ark. App. 324, 64 S.W.3d 800 (2002), interpreted

“introduction” to mean bringing in prohibited articles from outside a prison facility, the

statute is unconstitutional as applied to inmates who never leave the prison facility.4 Gonder

argues that he has standing to assert this constitutional claim because he and other inmates

2
Arkansas Code Annotated section 5-54-119(a) provides:

(a) A person commits the offense of furnishing a prohibited article if he or she
knowingly:
(1) Introduces a prohibited article into a correctional facility, the Arkansas State
Hospital, or a youth services program; or
(2) Provides a person confined in a correctional facility, the Arkansas State
Hospital, or a youth services program with a prohibited article.
3
In his supplemental motion for declaratory judgment and injunctive relief, Gonder
argued that section 5-54-119 is also unconstitutionally vague.
4
When Gonder pleaded guilty to attempting to commit the crime set forth in section
5-54-119(a) in 2010, Laster had already been decided. Gonder failed to raise the issue
addressed in Laster before his plea but instead relies on that decision to challenge the statute’s
constitutionality sixteen years after his plea hearing.

2
face the threat of prosecution if found in possession of prohibited articles that could not

have been introduced into the prison unit by inmates who never leave the premises.

When a declaratory action is dismissed for failure to state a claim, the standard of

review is whether the circuit court abused its discretion. Schuldheisz v. Felts, 2024 Ark. 137,

696 S.W.3d 817. An abuse of discretion occurs when the court has acted improvidently,

thoughtlessly, or without due consideration. Id. In testing the sufficiency of a petition for

declaratory relief, all reasonable inferences must be resolved in favor of the petition, and the

pleadings are to be liberally construed. Id. However, our procedural rules require fact

pleading, and a complaint must state facts, not mere conclusions, to entitle the pleader to

relief. Id. We treat only the facts alleged in the complaint as true––not theories, speculation,

or statutory interpretation. Id. Finally, the question of standing is a matter of law for this

court to decide, and this court reviews questions of law de novo. Cherokee Nation Businesses,

LLC v. Gulfside Casino P’ship, 2023 Ark. 153, 676 S.W.3d 368. Likewise, the question

whether there was a complete absence of a justiciable issue shall be reviewed de novo on

the record of the circuit court. Baptist Health Sys. v. Rutledge, 2016 Ark. 121, 488 S.W.3d

507.

In addition, we note the standards applicable to a constitutional challenge of a statute.

Statutes are presumed to be constitutional, and all doubts are resolved in favor of

constitutionality. Blackburn v. Lonoke Cnty. Bd. of Election Comm’rs, 2022 Ark. 176, 652

S.W.3d 574. The party challenging a statute’s constitutionality has the heavy burden of

proving that it is unconstitutional. Id. For a litigant to have standing to challenge the

constitutionality of a law, it must be unconstitutional as applied to him or her. Toland v.

3
Robinson, 2019 Ark. 368, 590 S.W.3d 146. Constitutional rights are personal rights and may

not be raised by a third party. Id. Appellants may not raise vague, speculative, and

hypothetical allegations regarding how their constitutional rights have been violated but

rather must plead facts sufficient to establish an actual, present controversy. See Palade v. Bd.

of Trs. of Univ. of Ark. Sys., 2022 Ark. 119, 645 S.W.3d 1.

Here, Gonder lacks standing to assert a constitutional claim under section 5-54-

119(a). Taking into consideration the particular facts of his case, Gonder does not assert that

he personally suffered a present injury but instead speculates that he could be prosecuted

under section 5-54-119(a). Furthermore, as stated above, constitutional rights are personal

and cannot be raised by third parties. Toland, 2019 Ark. 368, 590 S.W.3d 146. Gonder’s

hypothetical allegation of a future prosecution does not show that he presently suffers an

injury from the application of an unconstitutional statute. See Palade, 2022 Ark. 119, 645

S.W.3d 1. Gonder states that he and other prisoners face an ongoing threat of prosecution

for furnishing prohibited articles because they will possess a prohibited article during their

incarceration, and he insists that this fact presently renders him in danger of prosecution

under section 5-54-119(a). However, Gonder overlooks section 5-54-119(c)(1), which

prohibits possession of prohibited articles and might present a current danger of prosecution.

Gonder’s action is based on the hypothetical scenario of being charged and convicted under

section 5-54-119(a), but such hypotheticals do not rise to the level of injury or prejudice.

Medlock v. Fort Smith Serv. Fin. Corp., 304 Ark. 652, 654, 803 S.W.2d 930, 931 (1991)

(stating the general rule that one must have suffered injury or belong to a class that is

4
prejudiced in order to have standing to challenge the validity of a law). In sum, Gonder has

failed to state sufficient facts that he has standing to bring a constitutional claim.

Next, we turn to a related issue—whether the circuit court erred in finding that

Gonder failed to allege a justiciable controversy. Declaratory relief may be granted if the

petitioner establishes that (1) there is a justiciable controversy; (2) the controversy is between

persons whose interests are adverse; (3) the party seeking relief has a legal interest in the

controversy; and (4) the issue involved in the controversy is ripe for judicial determination.

Howerton v. McCastlain, 2025 Ark. 144. A case is nonjusticiable when any judgment rendered

would have no practical legal effect upon a then-existing legal controversy. Id. A controversy

is justiciable when a claim of right is asserted against one who has an interest in contesting

it. Williamson v. Shue, 2025 Ark. 76. A legal interest in the controversy means that the party

seeking declaratory relief must have a legally protectable interest. Id. Gonder’s reliance on

Jegley v. Picado, 349 Ark. 600, 80 S.W.3d 332 (2002), is misplaced. In that case, this court

found a justiciable controversy in the constitutional challenge to a criminal sodomy statute

based on the plaintiffs’ claim of present and ongoing engagement in conduct prohibited by

the statute and the State’s refusal to disavow enforcement of it. This court was concerned

that to hold otherwise would mean that the discretionary acts of the State’s prosecutors

could effectively bar shut the courthouse doors and protect the sodomy statute from

constitutional challenge. Id. at 622, 80 S.W.3d at 343. The present case is distinguishable

because Gonder has not shown any present harm. He alleges that he and others have

possessed prohibited articles, and he hypothesizes that he and others will be wrongfully

prosecuted under the “furnishing” section instead of another, more applicable offense under

5
section 5-54-119. This is entirely speculative. We hold that Gonder has failed to present a

justiciable controversy, and the circuit court did not err in dismissing his petition on that

basis.

As set out above, Gonder has failed to state a claim upon which relief may be granted.

Although the petitions were dismissed without prejudice, when an action has been dismissed

without prejudice, a party may either appeal the dismissal or elect to plead further. Griffin

v. Ark. Bd. of Corr., 2025 Ark. 81, 711 S.W.3d 784. If the party chooses the former and the

appeal is affirmed, then the dismissal without prejudice converts to a dismissal with

prejudice. Id. Accordingly, Gonder’s dismissal is now with prejudice. Finally, because

Gonder failed to state a cause of action for declaratory and injunctive relief, the circuit court

did not err when it imposed a strike. See Ark. Code Ann. § 16-68-607 (Repl. 2016).

Affirmed; motion moot.

WOMACK, J., concurs.

SHAWN A. WOMACK, Justice, concurring. Although the circuit court was

correct to dismiss Gonder’s lawsuit, it did so for the wrong reasons, and it improperly

dismissed the claims without prejudice. First, instead of dismissing Gonder’s lawsuit for lack

of standing or failure to raise a justiciable controversy, the circuit court should have dismissed

the case as barred by sovereign immunity.1 Second, because sovereign immunity bars

1
Thurston v. League of Women Voters of Ark., 2022 Ark. 32, at 17, 639 S.W.3d 319,
327 (Womack, J., dissenting). Although Gonder has a stray reference to a Fourteenth
Amendment claim, that argument is not developed. Jones v. Pro. Background Screening Ass’n,
Inc., 2020 Ark. 362, at 11, 610 S.W.3d 640, 646.

6
Gonder’s lawsuit, the circuit court’s order should have dismissed the case with prejudice.2

Nevertheless, because a dismissal without prejudice converts to a dismissal with prejudice

when a party elects to appeal, I agree with the majority’s decision to affirm.3

Therefore, I respectfully concur in the judgment.

Duane Gonder, pro se appellant.

Tim Griffin, Att’y Gen., by: Chelsea Harvey, Ass’t Att’y Gen., for appellee.

2
Griffin v. Ark. Bd. of Corrs., 2025 Ark. 81, at 11, 711 S.W.3d 784, 792 (Womack,
J., dissenting).
3
Id. at 5, 711 S.W.3d at 788.

7