Attorneys at odds over judge’s Plant Board ruling

stalemate between attorneys for Bayer and the attorney general’s office has delayed the state Plant Board’s appeal of a circuit court’s ruling against how the board’s members are selected.

The attorney general’s office, which represents the Plant Board, believes Pulaski County Circuit Judge Chris Piazza ruled against only the part of state law that allows agriculture trade groups to name representatives to the board.

Attorneys for Bayer believe Piazza struck the entire statute, including the section allowing the governor to appoint some board members.

The lawsuit was first filed in 2017 by Monsanto, now owned by Bayer, as part of its long-running dispute with the Plant Board’s various decisions regarding Monsanto’s dicamba-tolerant crops and use in Arkansas of the company’s dicamba herbicide.

Both sides sent letters to the court last week outlining their positions. Both proposed orders also asked that Piazza’s Dec. 19 ruling be stayed — or to have no effect — pending a decision on appeal.

Piazza said allowing trade groups to name members to the Plant Board was an unconstitutional delegation of powers by the legislature.

The Plant Board voted 13-0 Dec. 30 to appeal the ruling to the Arkansas Supreme Court.

Assistant Attorney General Jennifer Merritt told the board that day she expected Piazza’s ruling to be filed and entered that week, kicking off the state’s effort to appeal.

Because circuit judges lack staff to write their rulings, the Arkansas Rules of Civil Procedure allow judges to have attorneys for the prevailing side write the orders for the judge to sign. Opposing counsel has the right to approve the proposed order before it is filed with the court.

Piazza ruled in Monsanto’s favor on the question of the board’s appointment process but in favor of the state on another issue. The split decision, under the civil procedure rules, would have both

sides working cooperatively on an order for Piazza to sign and enter.

“Unfortunately, the parties have reached an impasse,” Merritt wrote Piazza last week.

“Although the parties agreed on most of the order, one sentence continues to be a point of contention,” Brett Watson of Searcy, an attorney for Monsanto, wrote.

Both sides also sent Piazza their preferred order.

Merritt also filed a transcript of the Dec. 19 hearing, with an emphasis placed on a quote from Elizabeth Blackwell, a St. Louis-based attorney for Monsanto. “So, the focus of our argument as counsel indicated is the provisions that permit nine of the Plant Board members to be appointed by private interest groups rather than some elected official.”

The transcript also quotes Piazza as saying during oral arguments, “Well, so, but if the governor appoints, then all of this is ok,” and provides Blackwell’s immediate response, “If the governor appoints, we’re not challenging that provision.”

The transcript, however, also quotes Blackwell as asking Piazza to “declare the statute unconstitutional.” Blackwell also said Monsanto isn’t challenging the legality of decisions made by the board under its current composition.

In ruling from the bench, Piazza said, “Well, what I’m saying is that the people that are on the board that vote need to be appointed by the governor. You know, the legislature, can, can make all the different groupings that they think need to be, but I think to make this comport with constitutional law, that this governor needs to appoint. And that way it cleanses the system so to speak.”

Wade Hodge, the staff attorney for the state Department of Agriculture, told the Plant Board late last month that if the board loses on appeal, the General Assembly could write a new appointments law that goes beyond just the governor. Appointments, he said, also could be made by the top leaders of the House or Senate. The department is the board’s parent agency.

The Arkansas Ethics Commission, for example, has members appointed by the governor as well as by the top leadership of the General Assembly.

The Plant Board was established in 1917 by the General Assembly, primarily to respond to an outbreak of plant diseases that threatened the state’s apple industry. Its composition since then has been a mix of members appointed by the governor and others by industry.

The current composition is nine members appointed by trade groups and seven members appointed by the governor. Two members, representing the University of Arkansas System’s Division of Agriculture, don’t have voting privileges.