dissenting. This is an important case. It has now become vastly easier, in light of the majority opinion, for this court to rule an act of the General Assembly unconstitutional. I would follow existing law and require Gulf Rice to prove a “clear incompatibility” between the legislative act and the State Constitution before we strike down Act 344 of 1995. See Boyd v. Weiss, 333 Ark. 684, 971 S.W.2d 237 (1998); McCutcheon v. Huckabee, 328 Ark. 202, 943 S.W.2d 225 (1997); Stratton v. Priest, 326 Ark. 469, 932 S.W.2d 321 (1996); Fayetteville Sch. Dt. No. 1 v. Arkansas State Bd. of Educ., 313 Ark. 1, 852 S.W.2d 122 (1993). Because we presume acts of the General Assembly to be constitutional, and because Gulf Rice clearly did not sufficiently develop its novel theory of due process before the chancery court, either factually or legally, I would reverse and remand the matter to the chancery court for trial. This would not foreclose Gulf Rice from further developing its due-process claim.
The grounds for attacking the Rice Assessment Act (Act 344 of 1995) before the chancery court were (1) unlawful delegation of legislative authority, and (2) illegal exaction in the form of an illegal assessment. Nowhere in the complaint brought by Gulf Rice was a violation of the Due Process Clause mentioned. Nor was it mentioned in Gulf Rice’s motion for summary judgment. (A passing reference was made to due process in its brief supporting the motion, but it is certainly a stretch to say that this was a ground for relief in the motion.) Nor was due process mentioned in the chancery court’s letter opinion or in the court’s order granting summary judgment. Counsel for Gulf Rice candidly admitted this at oral argument. He further admitted that he did not argue to the chancery court that fundamental due process was an essential underpinning of any claim that the General Assembly has unlawfully delegated its legislative authority to another entity. Yet, the majority seizes on due process, which clearly was not developed as an issue before the chancery court, and catapults it into the basis for voiding the Rice Assessment Act. Because this seems particularly unfair to the Rice Board, which, understandably thought the issue before the chancery court was unlawful delegation of authority, I would reverse and remand.
Whether the General Assembly can fix an assessment on first buyers of rice and then authorize a state board — the Arkansas Rice Research and Promotion Board — to call a referendum on that assessment with only rice producers voting is a new issue, not only in Arkansas but nationwide. It is, quite simply, an issue of national significance. That makes summary judgment a particularly dubious procedure to follow when a major issue of first impression is involved and this is especially true when a new ground — due process — was given short shrift by Gulf Rice before the chancery court. The majority, in a footnote, says the due-process issue was skillfully briefed. It was briefed only on appeal to this court after Gulf Rice had switched strategies and asserted a new constitutional basis for affirmance.
What the majority has overlooked is that the General Assembly developed a complete plan with Act 344. It set the promotion fee at 1.35 cents and then empowered the Rice Board to call a referendum. Counsel for Gulf Rice did not dispute the completeness of the assessment plan in oral argument before this court. This court has previously held that an act does not constitute an unlawful delegation of legislative authority when the act presents a complete plan of what will occur after the referendum. See, e.g., Boyd v. Weiss, supra; Swanberg v. Tart, 300 Ark. 304, 778 S.W.2d 931 (1989). Thus, this situation is totally different from Carter v. Carter Coal Co., 298 U.S. 238 (1936), where Congress delegated to coal producers the authority to set wages and hours for the coal industry. Yet, Carter Coal is the only case cited by the majority in support of its conclusion.
The reasons why affirmance of summary judgment on a new ground is premature and inappropriate in this case are numerous:
• It is still unclear what brand of due process is being endorsed here. The majority cites as its keystone case a substantive due process case from the thirties, (Carter v. Carter Coal Co., supra), which is factually distinguishable. The Carter Coal case has also been called into question. See also Knight v. Minnesota Community College Faculty Assoc., 571 F. Supp. 1, 4 (D.C. Minn. 1982) (“the continuing vitality of Carter Coal is doubtful at best.”) Counsel for Gulf Rice, however, contended at oral argument that what he is really claiming is a procedural-due-process violation. Which is it?
• Where is the caselaw to support this theory of procedural due process?
• Is the due-process claim a separate basis for relief or is it an integral part of Gulf Rice’s unlawful delegation claim?
• If due process is the basis for voiding Act 344, should the Rice Board not have the opportunity to argue that there is a legitimate government interest or rational basis at stake here? See, e.g., Johnson v. Sunray Services, Inc., 306 Ark. 497, 816 S.W.2d 582 (1991).
• Does rice promotion benefit first buyers of rice who resell their rice to the same extent as it benefits rice producers?
• Does Gulf Rice, as a first buyer of rice, pass the assessment cost back to rice producers by reducing the price paid for the rice? Roger Gilmore, general manager for Gulf Rice Arkansas, was ambivalent on this point in his deposition.
• Though the Rice Board is made up of nine rice producers, to what extent are the producers also first buyers? It was contended that in many cases, a rice concern may be both.
• Act 344 limits rice producers to producers in Arkansas. Can first buyers, who are global in scope, be identified for referendum purposes?
The reason why acts of the General Assembly are presumed constitutional is grounded in the bedrock principle of separation of powers between the legislative and judicial branches of government. The General Assembly fixes policy, and it is presumed to have considered the ramifications of its legislation. The majority, however, appears to presume unconstitutionality. We should not rush to void a legislative enactment on some vague notion of unfairness without full development of the issue before the chancery court and with both sides knowing what the issues are. I would hold Gulf Rice to its burden of proof.
I respectfully dissent.
Special Justice Ted H. Sanders joins. Special Justice Steven B. Davis joins.