New law on Plant Board draws suit

A Little Rock attorney who won a lawsuit this spring challenging the composition of the state Plant Board has joined three farmers in contesting the latest law establishing how the board’s next members are selected.

Act 361 of 2021 “did not cure the constitutional violations” of the 1917 law overturned by the Arkansas Supreme Court in May, Grant Ballard, a Little Rock attorney, said in a lawsuit filed late Friday in Pulaski County Circuit Court against the Plant Board and director Scott Bray. Nine Plant Board members lost their positions after the ruling.

The plaintiffs are farmers Timothy Pirani and Adam Henard, both of Wilson (Mississippi County), Jarred Hopperof Blytheville, and FarmVoice Inc., a group formed, at least in part, to push for the expanded use of the weedkiller dicamba.

The law, overturned by the Supreme Court, had allowed private agriculture trade groups to name members to the board. The court said the General Assembly had unconstitutionally delegated its appointment powers to groups not accountable to the public.

At the time of the court’s ruling, nine of the board’s 16 members with voting privileges represented trade groups for farmers, seed dealers, seed growers, pesticide manufacturers, aerial applicators and other facets of Arkansas agriculture. Seven other members who are directly appointed by the governor remain on the board. Two other members represent the University of Arkansas System Division of Agriculture but don’t have

voting privileges.

While the case was pending, the General Assembly passed Act 361, allowing the trade groups to submit two names of members to the governor for possible appointment to the board. The governor would then select one member to represent the group. More than one legislator testified during committee hearings that the bill, if passed, would solve problems posed by the 1917 law.

“Private entities were given the exclusive right to nominate half of the seats on the [board], ” Ballard wrote. “Put simply, the Governor is bound by statute to appoint those nominated by private industry associations.”

The new law gives the governor no recourse if he objects to both names submitted by a group. Selections by the governor are subject to Senate confirmation.

While having no comment Monday on the lawsuit, Gov. Asa Hutchinson said through a spokeswoman he is proceeding with appointments to the board. “I have received a list of names from associations designated in Act 361 and will be reviewing the nominees,” Hutchinson said.

“[G]iving the same private interests the exclusive power to nominate the appointees to the Governor provides the same result — that the appointment is made by unaccountable private entities,” according to the lawsuit. “Act 361, at best, provides a thin illusion of constitutional legitimacy to the statute but does not provide a constitutional appointment process.”

The lawsuit asks that Act 361 be held unconstitutional and for an injunction against unconstitutionally appointed members acting on the board’s behalf.

A competing bill that would have placed appointment powers entirely with the governor failed to get out of a Senate committee.

The Plant Board hasn’t met since May 3, three days before the Supreme Court’s ruling, because it can no longer muster a quorum with only seven members who have voting privileges.

The office of Attorney General Leslie Rutledge on Monday declined to comment, saying it hasn’t yet seen the lawsuit. Rutledge’s office advised the Plant Board in 2019 to appeal a circuit court ruling a few months earlier that held the 1917 law unconstitutional and argued this year before the Supreme Court that the composition of the Plant Board was valid. The office didn’t petition the court for a rehearing.

The lawsuit noted that the Supreme Court cited in its May ruling case law from Georgia, where that state’s high court ruled unconstitutional a state law that allowed a private group, the Medical Association of Georgia, to nominate to the governor the names of doctors for possible appointment to the Georgia Board of Medical Examiners. That ruling, however, didn’t remove such appointees from their positions.

The case is 60CV-21-5113. It was assigned to Circuit Judge Morgan “Chip” Welch.