dissenting.
I respectfully dissent. The single issue presented on appeal is whether the circuit court erred in finding that the statute establishing the Professional Bail Bondsman Licensing Board violates the separation of powers doctrine set out in article 4, | ^sections 1 and 2, of the Arkansas Constitution. Therefore, this case presents an appeal from the circuit court’s decision on constitutionality. The decision reached by the Board under the Arkansas Administrative Procedure Act (APA) is not at issue and is wholly irrelevant to this appeal. The substantial-evidence standard used to review decisions of boards and commissions under the APA is inapplicable. Where issues decided by an administrative agency are appealed, which is not the case in the present matter, this court reviews the decision of the administrative agency rather than the circuit court. See, e.g., Arkansas Tobacco Control Bd. v. Sitton, 357 Ark. 357, 166 S.W.3d 550 (2004). Where an issue of constitutionality has been raised before the administrative agency, and, as we require, has been subsequently decided by the circuit court, this court reviews the decision of the circuit court. See id. Both the administrative agency’s decision on administrative matters and the circuit court’s decision on any constitutional issues may be reviewed by this court on the same appeal. Id. There is no need for a separate action to bring a constitutional challenge.
Aside from noting that the issue of constitutionality was raised before the Board, the majority errs in referring to the APA. The Board is without authority to decide the constitutionality of a statute. AT & T Commc’ns of the Sw., Inc. v. Arkansas Pub. Serv. Comm’n, 344 Ark. 188, 196, 40 S.W.3d 273, 279 (2001). However, as already noted, the issue must be raised and developed at the administrative level. Id. This was done, and, because the circuit court considered and ruled on the issue of the constitutionality of the statute, it is the circuit court’s decision on this issue that is properly before this court.
|iSThe circuit court found a constitutional violation in the statute’s requirement that one member of the Board be a municipal or circuit judge. Arkansas Code Annotated section 17-19-106(b)(3)(A) (Repl.2001) provides that a municipal or circuit judge, a member of the judicial branch of government, is to sit on the Board, which was created by the legislative branch of government. Members of the Board are appointed by the Governor, and the Board both creates its own rules and executes them, duties that are both those of the legislative and the executive branches of government.
In considering the decision of the circuit court, every statute is presumed constitutional. Cato v. Craighead County Circuit Court, 2009 Ark. 334, at 7-8, 322 S.W.3d 484, 489. Before a statute may be found unconstitutional, the incompatibility between the statute and the constitution must be clear. Id. Any doubt is resolved in favor of constitutionality. Id. In reviewing the decision, we look to the rules of statutory construction. Id.
Contrary to the majority’s conclusion, State Board of Workforce Education & Career Opportunities v. King, 336 Ark. 409, 985 S.W.2d 731 (1999), is applicable and dispositive. In King, the senator at issue was a member of the legislative branch and was being asked to carry out duties of the executive branch by way of being on an administrative board. In the present matter, a member of the judiciary is being asked to carry out duties of the legislative and executive branches. As the court in King declared, approval of such would “make a travesty of the separation of powers.” King, 336 Ark. at 420, 985 S.W.2d at 736. The circuit |ucourt correctly concluded that the statute violates the separation-of-powers doctrine. I would affirm the circuit court.