Arkansas Supreme Court: Remove Nine Plant Board members now

Arkansas Supreme Court has ordered a new trial for a death row inmate who was convicted in the...
Arkansas Supreme Court has ordered a new trial for a death row inmate who was convicted in the death of his 6-year-old son.((Source: KAIT-TV))
Published: May. 6, 2021 at 5:44 PM CDT
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LITTLE ROCK, Ark. (KAIT) - Saying there was a major separation of powers issue involved, the Arkansas Supreme Court on Thursday reversed a decision by a Pulaski County circuit judge, saying members of the state Plant Board who were unconstitutionally appointed must be removed now.

In the eight-page ruling, justices ruled 6-1 in the case, which involved Michael McCarty, Perry Galloway, Matt Smith, Greg Hart, Ross Bell and Becton Bell v. the Arkansas State Plant Board and Terry Walker, in his official capacity as plant board director.

The case stemmed from a 2017 case and a 2019 ruling from Pulaski County Circuit Judge Tim Fox, who said the appointment process for Arkansas State Plant Board members was constitutional.

“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,” justices said.

The plant board moved to dismiss the complaint and the circuit judge ruled that the cutoff date was “null and void” and dismissed the case, citing sovereign immunity.

McCarty then filed an appeal on the issue, alleging constitutional violations.

Justices said in the ruling that current state law allows nine of the 18 plant board members to be appointed by the Arkansas State Horticultural Society, the Arkansas Green Industry Association, the Arkansas Seed Growers Association, Arkansas Pest Management Association, Arkansas Seed Dealers Association, Arkansas Oil Marketers Association, Arkansas Crop Protection Association, Arkansas Agricultural Aviation Association, Arkansas Forestry Association and two non-voting members from the University of Arkansas.

The current appointment process creates a difficult constitutional situation, justices said.

“This is legislative delegation in its most obnoxious form; for it is 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,” justices said in the ruling.

However, the state’s three branches of government - executive, legislative and judicial - have key roles in the government, justices said.

“The legislative branch of the state government has the power and responsibility to proclaim the law through statutory enactments. The judicial branch has the power and responsibility to interpret the legislative enactments. The executive branch has the power and responsibility to enforce the laws as enacted and interpreted by the other two branches,” justices said. “The doctrine of separation of powers is a basic principle upon which our government is founded and should not be violated or abridged.”

In the ruling, justices ordered the case to be sent back to Pulaski County Circuit Court for the “unconstitutionally appointed board members” to be removed.

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