§ 5.3.1 Actual or Justiciable Controversy.

• Jurisdiction: Arizona

§ 5.3.1 Actual or Justiciable Controversy. An actual and justiciable controversy is a prerequisite to both federal and state actions for declaratory judgment. The federal requirement of an actual or justiciable controversy stems from the Federal Constitution’s limitation of the jurisdiction of the federal courts to cases or controversies, U.S. Const. art. III, § 2; Aetna Life Insurance Co. v. Haworth, 300 U.S. 227, 239-40, 57 S. Ct. 461, 463, 81 L. Ed. 617, 620-21 (1937), and the federal statute’s concomitant limitation on the availability of the remedy. 28 U.S.C. § 2201 (1994 & Supp. III 1997); Aetna Life Insurance Co., 300 U.S. 227, 57 S. Ct. 461, 81 L. Ed. 617 (1937). Thus, the federal statute provides that any federal court may entertain a declaratory judgment action “[i]n a case of actual controversy within its jurisdiction . . . .” 28 U.S.C. § 2201.

Although the state statute lacks any similar express limitation, the Arizona Supreme Court, responding to one of the first attacks on the constitutionality of the Arizona Uniform Declaratory Judgments Act, placed a judicial gloss on the statute, limiting its application to cases involving a “real” question raised by a person having “a real interest” in its solution and another “having a real interest in the question who may oppose the declaration sought.” Morton v. Pacific Construction Co., 36 Ariz. 97, 102, 283 P. 281, 282 (1929) ( quoting Miller v. Miller, 149 Tenn. 463, 489, 261 S.W. 965, 972 (1924)). Subsequent Arizona cases have used the federal terminology “actual” or “justiciable” to describe the kind of controversy that must be present. See, e.g., Board of Supervisors v. Woodall, 120 Ariz. 379, 380, 586 P.2d 628, 629 (1978); Arizona State Board of Directors v. Phoenix Union High School District, 102 Ariz. 69, 73, 424 P.2d 819, 823 (1967) . Indeed, the Arizona courts have stated that the remedy is available only “when the relief sought comes within the language of the statute and the parties and circumstances before the court insure an adequate and thoroughly contested presentation of the issues involved.” McMann v. City of Tucson, 202 Ariz. 468 at ¶ 20, 47 P.3d 672 (Ct. App. 2002), rev. den. (2002) (quoting Western Savings & Loan Ass’n v. Robinson, 14 Ariz. App. 393, 398, 483 P.2d 806, 811 (Ct. App. 1971) . Thus, the necessity of demonstrating the presence of a justiciable controversy is firmly established in Arizona jurisprudence.

Nevertheless, even though the Arizona and federal cases use similar terminology to describe the requirement and reach similar results in cases in which its existence is questioned, the Arizona state courts, mindful of the source of the federal requirement, do not view the federal cases as persuasive authority on that question. Pena v. Fullinwider, 124 Ariz. 42, 44, 601 P.2d 1326, 1328 (1979). See § 5.1.3, supra.

The requirement of a “justiciable controversy” involves three separate factors: (1) an actual controversy; (2) a plaintiff with a real stake in the outcome; and (3) a defendant with a position adverse to the plaintiff’s and the practical power to affect the plaintiff adversely.

The controversy must be actual and not merely a difference of opinion. Compare Woodward v. Fox West Coast Theatres, 36 Ariz. 251, 257, 284 P.2d 350, 352 (1930) (private lessee of city property was entitled to declaratory judgment on lease’s validity when lease was challenged by city taxpayer’s formal written protest), and Arizona State Board of Directors v. Phoenix Union High School District, 102 Ariz. 69, 75, 424 P.2d 819, 823 (1967)( actual controversy present when high school district’s claim for state funds was formally denied), with Moore v. Bolin, 70 Ariz. 354, 220 P.2d 850 (1950) (member of state tax commission not entitled to declaration that statute forbidding him from running for another state office without resigning from first office was unconstitutional, because Arizona Secretary of State merely indicated position the Secretary of State would take if commissioner presented nominating petition). In other words, the controversy must be real, must not be abstract and must arise from a set of facts that exists at the time the action is commenced. Compare John Hancock Mutual Life Insurance Co. v. Webcor, Inc., 311 F.2d 701 (7th Cir. 1962) (actual controversy over whether letter was an enforceable contract arose when lender’s request that borrower execute documents to comply with letter was rejected); Planned Parenthood Center of Tucson, Inc. v. Marks, 17 Ariz. App. 308, 497 P.2d 534 (1972) (suit against attorney general and county attorney to test constitutionality of abortion statutes allowed where physicians and Planned Parenthood were threatened with prosecution); Secrist v. Diedrich, 6 Ariz. App. 102, 430 P.2d 448 (1967) (controversy between taxpayers and board of supervisors over procedure for the awarding of contracts for public works), with International Society for Krishna Consciousness v. Enz, 495 F. Supp. 373 (D. Ariz. 1979) (Tucson airport solicitation regulations challenged by Krishna devotee who might never go to the airport); Town of Wickenburg v. State, 115 Ariz. 465, 565 P.2d 1326 (1977) (suit challenging constitutionality of statute requiring municipalities to enact financial disclosure ordinances did not present real controversy, because no ordinance had yet been passed, and the plaintiffs, the mayor, and city councilman, had not yet been required to make any disclosure)...