Cite as 2021 Ark. 105 Digitally signed by Susan Williams Reason: I attest to the accuracy SUPREME COURT OF ARKANSAS and integrity of this document No. CV-20-164 Date: 2023.06.20 14:38:20 -05'00'
Opinion Delivered: May 6, 2021 MICHAEL MCCARTY, PERRY GALLOWAY, MATT SMITH, GREG HART, ROSS BELL, AND BECTON APPEAL FROM THE PULASKI BELL COUNTY CIRCUIT COURT APPELLANTS [60CV-17-6539]
V. HONORABLE TIMOTHY DAVIS FOX, JUDGE ARKANSAS STATE PLANT BOARD AND TERRY WALKER, IN HIS OFFICIAL CAPACITY AS DIRECTOR OF THE ARKANSAS STATE PLANT BOARD REVERSED AND REMANDED WITH APPELLEES INSTRUCTIONS.
BARBARA W. WEBB, Justice
The Pulaski County Circuit Court found Arkansas Code Annotated section 2-16-
206(a) (Supp. 2019), which sets forth the appointment process for members of the Arkansas
State Plant Board (ASPB), constitutional. McCarty appeals the constitutionality finding. We
reverse and remand with instructions.
I. Background
In 2017, McCarty filed a complaint and an amended complaint for declaratory
judgment, injunctive relief, and judicial review of administrative actions, generally
challenging the ASPB’s April 15, 2018, dicamba cutoff rule and the denial of a petition for
rulemaking submitted by the appellants. McCarty also sought a declaration that Arkansas Code Annotated section 2-16-206(a) is unconstitutional. The ASPB moved to dismiss
McCarty’s amended complaint and the circuit court declared that the April 15 “cutoff” rule
was “void ab initio” and “null and void” as to the individual appellants before dismissing
the case on the basis of sovereign immunity.
The ASPB appealed the circuit court’s ruling that the challenged rule was “void ab
initio” and “null and void” as to McCarty. McCarty cross-appealed the dismissal of their
complaint and allegations of constitutional violations. We dismissed the ASPB’s appeal as
moot and found McCarty’s cross-appeal partially moot. Ark. State Plant Bd. v. McCarty,
2019 Ark. 214, 576 S.W.3d 473. We held that McCarty’s claim that Arkansas Code
Annotated section 2-16-206 was an unconstitutional delegation of legislative appointment
power was not moot. Id. We reversed and remanded for further proceedings on that issue.
Id. On remand, the circuit court found that Arkansas Code Annotated section 2-16-206(a)
was constitutional and never reached McCarty’s requested relief. McCarty now appeals the
circuit court’s finding that the statute was constitutional.
II. Standard of Review
This court reviews issues of statutory construction under a de novo standard. Bullock’s
Kentucky Fried Chicken, Inc. v. City of Bryant, 2019 Ark. 249, 582 S.W.3d 8. In considering
any constitutional challenge to a statute, this court “begins with the axiom that every act
carries a strong presumption of constitutionality.” Ark. Dep’t of Corr. v. Bailey, 368 Ark.
518, 523, 247 S.W.3d 851, 855 (2007). This presumption places the burden of proof
squarely on the party challenging a statute to prove its unconstitutionality, and this court
resolves “all doubts” in favor of upholding the constitutionality of the statute, if possible.
2 Id.; City of Cave Springs v. City of Rogers, 343 Ark. 652, 658–59, 37 S.W.3d 607, 611 (2001).
This Court will only strike down a statute when there is a “clear and unmistakable” conflict
between the statute and the constitution. Bailey, 368 Ark. at 523–24, 247 S.W.3d at 855.
III. Constitutional Challenge
Within our state constitution is a specific separation-of-powers provision, providing:
§ 1. The powers of the government of the State of Arkansas shall be divided into three distinct departments, each of them to be confided to a separate body of magistracy, to-wit: Those which are legislative, to one, those which are executive, to another, and those which are judicial, to another.
§ 2. No person or collection of persons, being of one of these departments, shall exercise any power belonging to either of the others, except in the instances hereinafter expressly directed or permitted.
Hobbs v. Jones, 2012 Ark. 293, at 8, 412 S.W.3d 844, 850 (citing Ark. Const. art. 4, §§ 1,
2). In Department of Human Services v. Howard, we explained the specific powers delegated
to each branch. Id. (citing 367 Ark. 55, 238 S.W.3d 1 (2006)). The legislative branch of the
state government has the power and responsibility to proclaim the law through statutory
enactments. Id. The judicial branch has the power and responsibility to interpret the
legislative enactments. Id. The executive branch has the power and responsibility to enforce
the laws as enacted and interpreted by the other two branches. Id. The doctrine of separation
of powers is a basic principle upon which our government is founded and should not be
violated or abridged. Id.
The doctrine prohibiting delegation of legislative power has long been recognized in
Arkansas. Leathers v. Gulf Rice Ark., Inc., 338 Ark. 425, 429, 994 S.W.2d 481, 483 (1999).
In determining whether an unconstitutional delegation has been made, we consider whether
the legislature “has attempted to abdicate, or to transfer to others, the essential legislative
3 functions with which it is vested by the Constitution,” noting that “legislation must often
be adapted to conditions involving details with which it is impracticable for the legislature
to deal directly.” Id., 994 S.W.2d at 483 (citing Currin v. Wallace, 306 U.S. 1, 15 (1939)).
Arkansas Code Annotated section 2-16-206(a) permits the appointment of a Plant
Board member by the Arkansas State Horticultural Society, the Arkansas Green Industry
Association, the Arkansas Seed Growers Association, the Arkansas Pest Management
Association, the Arkansas Seed Dealers’ Association, the Arkansas Oil Marketers Association,
the Arkansas Crop Protection Association, Inc., the Arkansas Agricultural Aviation
Association, the Arkansas Forestry Association, and two nonvoting members from the
University of Arkansas. This means there are nine seats on the eighteen-member board
appointed solely by private industry. “This is legislative delegation in its most obnoxious
form; for it is not even delegation to an official or an official body, presumably disinterested,
but to private persons whose interests may be and often are adverse to the interests of
others in the same business.” Leathers, 338 Ark. at 430, 994 S.W.2d at 484.
The power conferred upon the majority is, in effect, the power to regulate the affairs
of an unwilling minority. Leathers, 338 Ark. at 430, 994 S.W.2d at 484 (citing Carter v.
Carter Coal Co., 298 U.S. 238 (1936)). We have held that in Arkansas, legislative powers
cannot be delegated, even to other branches of state government, except within “certain
limits.” Id.
Similar cases from other states have held that private entities may not appoint
members to a governmental board without offending the constitution as it is an
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Cite as 2021 Ark. 105 Digitally signed by Susan Williams Reason: I attest to the accuracy SUPREME COURT OF ARKANSAS and integrity of this document No. CV-20-164 Date: 2023.06.20 14:38:20 -05'00'
Opinion Delivered: May 6, 2021 MICHAEL MCCARTY, PERRY GALLOWAY, MATT SMITH, GREG HART, ROSS BELL, AND BECTON APPEAL FROM THE PULASKI BELL COUNTY CIRCUIT COURT APPELLANTS [60CV-17-6539]
V. HONORABLE TIMOTHY DAVIS FOX, JUDGE ARKANSAS STATE PLANT BOARD AND TERRY WALKER, IN HIS OFFICIAL CAPACITY AS DIRECTOR OF THE ARKANSAS STATE PLANT BOARD REVERSED AND REMANDED WITH APPELLEES INSTRUCTIONS.
BARBARA W. WEBB, Justice
The Pulaski County Circuit Court found Arkansas Code Annotated section 2-16-
206(a) (Supp. 2019), which sets forth the appointment process for members of the Arkansas
State Plant Board (ASPB), constitutional. McCarty appeals the constitutionality finding. We
reverse and remand with instructions.
I. Background
In 2017, McCarty filed a complaint and an amended complaint for declaratory
judgment, injunctive relief, and judicial review of administrative actions, generally
challenging the ASPB’s April 15, 2018, dicamba cutoff rule and the denial of a petition for
rulemaking submitted by the appellants. McCarty also sought a declaration that Arkansas Code Annotated section 2-16-206(a) is unconstitutional. The ASPB moved to dismiss
McCarty’s amended complaint and the circuit court declared that the April 15 “cutoff” rule
was “void ab initio” and “null and void” as to the individual appellants before dismissing
the case on the basis of sovereign immunity.
The ASPB appealed the circuit court’s ruling that the challenged rule was “void ab
initio” and “null and void” as to McCarty. McCarty cross-appealed the dismissal of their
complaint and allegations of constitutional violations. We dismissed the ASPB’s appeal as
moot and found McCarty’s cross-appeal partially moot. Ark. State Plant Bd. v. McCarty,
2019 Ark. 214, 576 S.W.3d 473. We held that McCarty’s claim that Arkansas Code
Annotated section 2-16-206 was an unconstitutional delegation of legislative appointment
power was not moot. Id. We reversed and remanded for further proceedings on that issue.
Id. On remand, the circuit court found that Arkansas Code Annotated section 2-16-206(a)
was constitutional and never reached McCarty’s requested relief. McCarty now appeals the
circuit court’s finding that the statute was constitutional.
II. Standard of Review
This court reviews issues of statutory construction under a de novo standard. Bullock’s
Kentucky Fried Chicken, Inc. v. City of Bryant, 2019 Ark. 249, 582 S.W.3d 8. In considering
any constitutional challenge to a statute, this court “begins with the axiom that every act
carries a strong presumption of constitutionality.” Ark. Dep’t of Corr. v. Bailey, 368 Ark.
518, 523, 247 S.W.3d 851, 855 (2007). This presumption places the burden of proof
squarely on the party challenging a statute to prove its unconstitutionality, and this court
resolves “all doubts” in favor of upholding the constitutionality of the statute, if possible.
2 Id.; City of Cave Springs v. City of Rogers, 343 Ark. 652, 658–59, 37 S.W.3d 607, 611 (2001).
This Court will only strike down a statute when there is a “clear and unmistakable” conflict
between the statute and the constitution. Bailey, 368 Ark. at 523–24, 247 S.W.3d at 855.
III. Constitutional Challenge
Within our state constitution is a specific separation-of-powers provision, providing:
§ 1. The powers of the government of the State of Arkansas shall be divided into three distinct departments, each of them to be confided to a separate body of magistracy, to-wit: Those which are legislative, to one, those which are executive, to another, and those which are judicial, to another.
§ 2. No person or collection of persons, being of one of these departments, shall exercise any power belonging to either of the others, except in the instances hereinafter expressly directed or permitted.
Hobbs v. Jones, 2012 Ark. 293, at 8, 412 S.W.3d 844, 850 (citing Ark. Const. art. 4, §§ 1,
2). In Department of Human Services v. Howard, we explained the specific powers delegated
to each branch. Id. (citing 367 Ark. 55, 238 S.W.3d 1 (2006)). The legislative branch of the
state government has the power and responsibility to proclaim the law through statutory
enactments. Id. The judicial branch has the power and responsibility to interpret the
legislative enactments. Id. The executive branch has the power and responsibility to enforce
the laws as enacted and interpreted by the other two branches. Id. The doctrine of separation
of powers is a basic principle upon which our government is founded and should not be
violated or abridged. Id.
The doctrine prohibiting delegation of legislative power has long been recognized in
Arkansas. Leathers v. Gulf Rice Ark., Inc., 338 Ark. 425, 429, 994 S.W.2d 481, 483 (1999).
In determining whether an unconstitutional delegation has been made, we consider whether
the legislature “has attempted to abdicate, or to transfer to others, the essential legislative
3 functions with which it is vested by the Constitution,” noting that “legislation must often
be adapted to conditions involving details with which it is impracticable for the legislature
to deal directly.” Id., 994 S.W.2d at 483 (citing Currin v. Wallace, 306 U.S. 1, 15 (1939)).
Arkansas Code Annotated section 2-16-206(a) permits the appointment of a Plant
Board member by the Arkansas State Horticultural Society, the Arkansas Green Industry
Association, the Arkansas Seed Growers Association, the Arkansas Pest Management
Association, the Arkansas Seed Dealers’ Association, the Arkansas Oil Marketers Association,
the Arkansas Crop Protection Association, Inc., the Arkansas Agricultural Aviation
Association, the Arkansas Forestry Association, and two nonvoting members from the
University of Arkansas. This means there are nine seats on the eighteen-member board
appointed solely by private industry. “This is legislative delegation in its most obnoxious
form; for it is not even delegation to an official or an official body, presumably disinterested,
but to private persons whose interests may be and often are adverse to the interests of
others in the same business.” Leathers, 338 Ark. at 430, 994 S.W.2d at 484.
The power conferred upon the majority is, in effect, the power to regulate the affairs
of an unwilling minority. Leathers, 338 Ark. at 430, 994 S.W.2d at 484 (citing Carter v.
Carter Coal Co., 298 U.S. 238 (1936)). We have held that in Arkansas, legislative powers
cannot be delegated, even to other branches of state government, except within “certain
limits.” Id.
Similar cases from other states have held that private entities may not appoint
members to a governmental board without offending the constitution as it is an
unconstitutional delegation of legislative power to a nongovernmental entity. Delay v.
4 Sutton, 818 S.E.2d 659, 661–62 (Ga. 2018) (citing Rogers v. Medical Ass’n of Ga., 259 S.E.2d
85, 87 (Ga. 1979) (it is an unconstitutional delegation of legislative appointment power
when private industry has the exclusive right to nominate board members because it places
power in private organizations that are not accountable to the people as required by the
constitution)); Gamel v. Veterans Memorial Auditorium Comm’n, 272 N.W.2d 472, 476 (Iowa
1978) (“[P]rivate individuals cannot be empowered to select boards to spend public funds,
no matter how well qualified they may be.”); Hetherington v. McHale, 329 A.2d 250, 253
(Pa. 1974) (“A fundamental precept of the democratic form of government imbedded in our
Constitution is that people are to be governed only by their elected representatives.”); and
Sedlak v. Dick, 887 P.2d 1119 (Kan. 1995) (provision requiring selection of Workers
Compensation Board members by committee consisting of representatives chosen by labor
union and business association was unconstitutional delegation of legislative power to
private organizations notwithstanding government oversight).
Thus, we hold that the circuit court erred in ruling that Arkansas Code Annotated
section 2-16-206(a) is constitutional. In a case where there is an unconstitutional delegation
of legislative power to a private entity, there can only be one remedy––the removal of
unconstitutionally appointed board members. Accordingly, we reverse and remand with
specific instructions for the circuit court to remove the unconstitutionally appointed Board
members.
Reversed and remanded with instructions.
BAKER, J., dissents
5 KAREN R. BAKER, Justice, dissenting. I dissent from the majority opinion for
the reasons explained in my opinion in Arkansas State Plant Board v. McCarty, 2019 Ark.
214, at 8, 576 S.W.3d 473, 477 (Baker, J., concurring in part; dissenting in part), and would
affirm the circuit court.
ARK AG LAW, PLLC, by: J. Grant Ballard; and Davidson Law Firm, by: David L.
Gershner, for appellants.
Leslie Rutledge, Att’y Gen., by: Jennifer L. Merritt, Sr. Ass’t Att’y Gen., for appellees.