concurring.
I agree with the majority that the Administrative Procedure Act (APA) governs this appeal from the Arkansas Professional Bail Bond Company and Professional Bail Bondsman Licensing Board (the Board). However, I do not agree that section 25-15-212(h) of the APA fails to provide appropriate grounds to challenge the Board’s action under the Arkansas Constitution.
Ark.Code Ann. § 25-15-212(h) provides as follows:
(h) ... [the] court may reverse or modify the decision if the substantial rights of the petitioner have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
(1) In violation of constitutional or statutory provisions;
(2) In excess of the agency’s statutory authority;
(3) Made upon unlawful procedure;
(4) Affected by other error or law;
(5) Not supported by substantial evidence of record; or
(6) Arbitrary, capricious, or characterized by abuse of discretion.
Appellees challenge the constitutionality of the placement of a judge on the Board. The statute at issue in this case is Ark. Code Ann. § 17-19-106, which sets out the guidelines for Board membership and the authority of the Board. It further requires that one member of that Board be a municipal or circuit judge. Appellees argue that this is a violation of the separation-of-powers doctrine set out in article 4, sections 1 and 2 of the Arkansas | constitution,1 and that the Board’s action to suspend the licenses of appellees is tainted by this constitutional violation. I agree.
Section 25 — 15—212(h)(4) authorizes a court to reverse or modify the decision of an agency if the petitioner has been prejudiced because the administrative decision is affected by other error or law. The constitutional violation alleged by the ap-pellees, which entails suspect Board membership, can most certainly be considered an error or law that would have a prejudicial effect on the Board’s decision. I believe, accordingly, that the appellees’ constitutional challenge to the Board’s action is appropriate for consideration in this appeal.
This court has recognized that while it can be difficult in some instances to determine whether a particular board or commission is a part of the legislative or executive branch, there can be no doubt that they are not a part of the judicial branch. Spradlin v. Arkansas Ethics Comm’n, 314 Ark. 108, 113-14, 858 S.W.2d 684, 686 (1993). Further, when faced with a separation-of-powers issue, which also concerned the Professional Bail Bond Company and Professional Bail Bondsman Licensing Board, this court said “state licensing boards, such as the one here, are created by the General Assembly and exercise legislative functions.” Tomerlin v. Nickolich, 342 Ark. 325, 27 S.W.3d 746 (2000). It seems clear that a statute requiring a judge to serve on a board that has been specifically designated by this court as one |10that exercises legislative functions is in violation of the separation-of-powers doctrine set out in article 4, sections 1 and 2.
It is further clear to me that Arvis Harper Bail Bonds’ attack regarding Judge Wayland Parker’s service on the Board was not a direct attack or a collateral attack on his particular status. Rather, it was a challenge to the Board’s action occasioned by the participation of a patently ineligible board member. In such circumstances, the solution is to remove the ineligible member from the Board but not invalidate the Board’s action. That was what this court did in State Board of Workforce Education and Career Opportunities v. King, 336 Ark. 409, 985 S.W.2d 731 (1999). The same principle , should govern this case. We should rule Judge Parker ineligible to serve but uphold the action of the Board in deciding the Arvis Harper matter.
The majority holds that a challenge to the Board’s decision is not available under the APA and can only be brought by declaratory judgment as a direct attack on Judge Parker’s authority. But it is the Board’s action that is called into question and not whether Judge Parker is a valid judge. In Bell v. State, 334 Ark. 285, 973 S.W.2d 806 (1998), which the majority relies on, the issue was whether a deputy prosecutor had been appointed and was authorized to act in the proceeding. That is not the issue in the instant case, which concerns whether the Board is duly constituted.
The majority cites no case law to the effect that the issue raised in this case can only be done by a petition for declaratory judgment and not at an APA hearing. What was the|nbond company to do at the administrative hearing? Remain mute and not even contest the unconstitutional Board membership? That seems unreasonable.
In short, I would not deny the ability of the appellees to challenge Board action due to Judge Parker’s status at the administrative level and then in circuit court on judicial review, as the majority has done. The constitutional issue, in my judgment, was appropriately developed at the administrative level and then decided by the circuit court. See Arkansas Tobacco Control Bd. v. Sitton, 357 Ark. 357, 361-62, 166 S.W.3d 550, 553 (2004).
Because I would find that the Board’s enacting statute violates the separation-of-powers doctrine in that it requires a judge to sit on the Board and because this is an error that tainted the Board’s decision even though Judge Parker did not participate in the final vote, I would find that section 25-15-212(h)(4) provides sufficient grounds for this court to consider appel-lees’ constitutional challenge. Based on our decision in King, the appropriate solution under these circumstances is to remove the ineligible member from the Board but allow the decision of the Board to stand. I would, therefore, affirm the Board but do so under the authority of the King case.
For these reasons, I concur.
. Article 4, section 1 states that "[t]he powers of the government of the State of Arkansas shall be divided into three distinct departments ... [tjhose which are legislative, to one, those which are executive, to another, and those which are judicial, to another.” Section 2 states that "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.”