# State v. Herndon

> Supreme Court of Arkansas · February 2, 2006 · 365 Ark. 185

URL: https://www.frixlaw.com/law-library/cases/9729071

## Case

- **Full name:** STATE of Arkansas v. Brian HERNDON
- **Court:** Supreme Court of Arkansas
- **Decided:** February 2, 2006
- **Citations:** 365 Ark. 185; 226 S.W.3d 771
- **Precedential status:** Published
- **Opinion:** Dissent by Brown
- **Judges:** Annabelle Clinton Imber
- **Cited by:** 6 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9729071

## How later opinions describe it (automated extraction)

- noting a distinction between “jurisdiction to determine jurisdiction” and “jurisdiction to hear the merits of the case”

## Opinion text

Robert L. Brown, Justice, dissenting. I dissent because the majority has handed down an advisory opinion solely to overrule a case, State v. Bickerstaff, 320 Ark. 641 , 899 S.W.2d 68 (1995), without resolving the duck hunting dispute at issue. The opinion simply overrules Bickerstaff for purposes of deciding our jurisdiction in future cases — not for purposes of deciding the case at hand. Overruling a case that does not decide a pending case is clearly advisory on an academic issue. We have never done that before. We enter troubled waters when we engage in issuing legal edicts apart from deciding the case before us.
This court’s staunch position against advisory opinions was stated succinctly in 1995, when we said, “. . . this court does not anticipate future litigation and does not issue advisory opinions.” Wright v. Keffer, 319 Ark. 201, 203-04 , 890 S.W.2d 271, 272 (1995). See also State v. Fudge, 361 Ark. 412 , 206 S.W.3d 850 (2005); Allen v. Titsworth, 279 Ark. 138 , 649 S.W.2d 185 (1983) (issue of certification for non-law enforcement administrative act not justiciable; court refused to issue advisory opinion on academic issue). More than forty years ago, Justice George Rose Smith handed down two seminal cases which stand for the bedrock principle that this court does not decide academic questions that do not bind the parties. See Countz v. Roe, 231 Ark. 108 , 328 S.W.2d 353 (1959); Hogan v. Bright, 214 Ark. 691 , 218 S.W.2d 80 (1949). But that is precisely what we are doing in this case.
The majority, however, maintains that it is not resolving an academic question by merely overruling Bickerstaff but that it is taking jurisdiction to decide jurisdiction. It cites Merez v. Squire Court Ltd. P’ship, 353 Ark. 174 , 114 S.W.3d 184 (2003), for this proposition. But that case does not solve the advisory-opinion problem. In Merez, we reversed and remanded a case because the Workers’ Compensation Commission, not the circuit court, had exclusive jurisdiction over the applicability of the Workers’ Compensation Act. We did this so the injured workers could pursue their claims before the commission. In the case before us, the majority’s overruling of Bickerstaff does nothing to resolve the Herndon/Game & Fish dispute. It is purely an advisory opinion, something this court should avoid at all costs.
No party in this matter has asked only that Bickerstaff be overruled. Game and Fish wants the merits addressed by means of a writ of certiorari, and Herndon prefers that Bickerstaff remain intact or, in any event, that the circuit court’s opinion in favor of the federal preemption of state hunting laws be affirmed. I would review this case, using the vehicle that Game and Fish has invoked, which is the petition for writ of certiorari. I would then overrule Bickerstaff, address the preemption issue, and resolve it.
The majority contends that we are in a strait jacket. It laments that we cannot review this matter because a gross abuse of discretion by the circuit court is not at issue but only an alleged erroneous interpretation of statutes by that court. I disagree. We can accomplish our review by extraordinary writ. Amendment 80 to the Arkansas Constitution gives this court plenary power to issue writs in aid of our jurisdiction. Ark. Const, amend. 80, § 2(E).
The majority takes the much less desirable course of issuing an advisory opinion for future cases. This, I repeat, we have never done. For this reason, I respectfully dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9729071. Public record. Not legal advice.