MICHAEL MCCARTY, PERRY GALLOWAY, MATT SMITH, GREG HART, ROSS BELL, AND BECTON BELL v. Arkansas State Plant Board AND TERRY WALKER, IN HIS OFFICIAL CAPACITY AS DIRECTOR OF THE ARKANSAS STATE PLANT BOARD, 622 S.W.3d 162

Plaintiffs (McCarty and others) challenged Arkansas Code Annotated § 2-16-206(a), which allows numerous private trade associations and two University of Arkansas nonvoting members to appoint nine of the eighteen members of the Arkansas State Plant Board (ASPB).
The underlying dispute also involved the ASPB’s 2018 dicamba cutoff rule and a denied petition for rulemaking, but the dispositive legal question on remand was the statute’s constitutionality.
On initial appeal this Court found the delegation challenge was not moot and remanded for further proceedings limited to whether § 2-16-206(a) unconstitutionally delegated appointment power. Ark. State Plant Bd. v. McCarty, 576 S.W.3d 473 (Ark. 2019).
On remand the Pulaski County Circuit Court declared § 2-16-206(a) constitutional; McCarty appealed that ruling to the Arkansas Supreme Court.
The Supreme Court reversed, holding the statute unconstitutionally delegates legislative appointment power to private organizations and directed the circuit court to remove board members appointed under that statutory scheme.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether § 2-16-206(a) unlawfully delegates legislative appointment power to private entities	§ 2-16-206(a) gives private associations control over appointment of half the ASPB, an unconstitutional delegation of legislative authority	Statute is presumptively constitutional; appointment scheme permissible and within legislature’s power to structure board appointments	The statute is an unconstitutional delegation to private entities; reversal granted
Appropriate remedy for unconstitutional delegation	Remove unconstitutionally appointed board members and restore constitutionally appointed membership	Preserve board membership or apply a different remedy short of wholesale removal	Remedy: remove members appointed under the unconstitutional private-selection provisions; remand with instructions to remove them

Leathers v. Gulf Rice Ark., Inc., 994 S.W.2d 481 (1999) (explaining limits on delegation of legislative power)
Currin v. Wallace, 306 U.S. 1 (1939) (legislation may be adapted to practical details but cannot abdicate essential legislative functions)
Carter v. Carter Coal Co., 298 U.S. 238 (1936) (principles limiting delegation of governmental powers)
Ark. State Plant Bd. v. McCarty, 576 S.W.3d 473 (Ark. 2019) (prior appeal holding delegation claim not moot and remanding)
Ark. Dep’t of Corr. v. Bailey, 247 S.W.3d 851 (Ark. 2007) (presumption of constitutionality and standard of review for statute challenges)
Delay v. Sutton, 818 S.E.2d 659 (Ga. 2018) (private organizations may not have exclusive power to nominate government board members)
Gamel v. Veterans Memorial Auditorium Comm’n, 272 N.W.2d 472 (Iowa 1978) (private individuals cannot be empowered to select boards to spend public funds)
Sedlak v. Dick, 887 P.2d 1119 (Kan. 1995) (selection by private organizations can constitute unconstitutional delegation)