Mississippi Advisory Opinions January 25, 1996: AGO 96-0037 (January 25, 1996)

Advisory Opinion Text

Representative D. Ted Foster

Mississippi House of Representatives

District 15

Route 4, Box 99A

Pontotoc, MS 38863

Re: Boll Weevil Management Act

Dear Representative Foster:

You have asked for our opinion as follows:

(1) Ref. 69-37-17 Par. 5

Ref. 69-37-21 Par. 2

Ref. attached petition

On a petitioned referendum to discontinue the program, does it require a 2/3 majority to continue the program or a 2/3 majority to discontinue the program?

In response, Section 69-37-21(2), Mississippi Code 1972 (Supp. 1995) provides:

After the passage of any referendum, the eligible voters shall be allowed, by subsequent referenda to be held at least every five (5) years or upon recommendation of the certified growers committee, to vote on whether to continue with the program and/or to modify the assessment fee . Upon petition by twenty percent (20%) of the voting cotton growers within a designated region, the Certified Cotton Growers Organization shall be required to conduct a subsequent referendum on the question called in the petition, provided that the Certified Cotton Growers organization is required to hold no more than one (1) petitioned referendum for each designated management region during any given calendar year. All the requirements for an initial referendum must be met in any subsequent referenda .

(emphasis added). As stated in the above quoted section the question to be voted upon will be “whether to continue with the program”. Based on the above statute our opinion is that in a subsequent referendum, two thirds of the voters must vote in favor of continuing the program in order for it to continue.

(2) Ref. 69-37-17 Par. 1

According to this paragraph, the growers assessment cannot exceed $40.00 per acre. On the 1994 ballot, it states our assessment will not exceed $101.70 per acre. Which one is correct?

You are correct that subsection (1) of this Code section provides for the conducting of a referendum in designated regions on whether or not to assess a maximum of Forty Dollars per acre for boll weevil suppression, pre-eradication, or eradication programs. Subsection (2) states as follows:

The assessment levied under this chapter shall be based upon the level of boll weevil infestation and the anticipated cost of conducting the proposed program, as determined by scientists on the Technical Advisory Committee of the Certified Cotton Growers Organization, and the number of acres of cotton planted in the specified management zone. The amount of the assessment, the period of time for which it shall be levied, how it shall be levied, when it shall be paid and the geographical area to be covered by the assessment shall be determined by the bureau and the board of the Certified Cotton Growers Organization and established by regulations according to this section. The amount of any such assessment, the period of time for which it shall be levied, and when the payment is due shall appear on all ballots for the referendum.

Such assessment is defined in 69-37-5 as follows:

“Assessment” means the amount per acre to be charged each cotton grower to finance, and hold apart, a boll weevil suppression, pre-eradication or eradication program when there is cotton growing regions within this state. Such assessments would be based on scientifically sound data regarding the level of boll weevil infestation within each region and the anticipated the cost of conducting the proposed program.

Our opinion is that the amount of any one assessment cannot exceed Forty Dollars per acre as provided in this code section for suppression, pre-eradication or eradication programs. However, as stated above it is up to regulations established by the Commissioner of Agriculture to determine for what period of time the assessment shall be levied, how it shall be levied and when it shall be paid. On whether the 1994 assessment was correct we do not issue an opinion; official opinions cannot validate or invalidate past actions. See section 7-5-25 of the Code .

(3) If a subsequent referendum is held and it is voted to discontinue the program, can the growers be liable for any other expenses or overruns that occurred other than the 1994 and 1995 assessments as stated on the original ballot?

In response, we are unable to give an official opinion on questions of potential liability where the factual circumstances are unknown. However, the statute does appear to contemplate that individual cotton growers shall only be liable for assessments, penalties and fees as provided in the statute. The Certified Cotton Growers Organization could be liable for its debts. All employees and agents of the Organization who handle funds must be adequately bonded. See Miss. Code Ann. section 69-37-13 .

(4) Ref. 69-37-5(H), 69-37-17 Par. 5

According to definition, a cotton grower is determined by USDA as actively engaged, which under USDA-ASCS - (FSA) is a person having a share of the cotton. This includes farmers and landlords being eligible voters. Only the farmers are assessed for payment. Why is not everyone who was eligible to vote not being assessed accordingly?

In response, Section 69-37-5(h) defines cotton grower as “any person who under the rules and regulations of the United States Department of Agriculture is actively engaged in cotton farming.” Section 69-37-17 provides for referenda on the question of whether to make the maximum forty dollar per acre assessment, and provides in pertinent part as follows at subsection 3:

All affected cotton growers shall be entitled to vote in any such referendum and the bureau, after consultation with the Certified Cotton Growers Organization, shall determine any questions of eligibility to vote. A cotton grower must be growing cotton within a specified region in order to be eligible to vote in elections and referenda concerning that region.

It is our opinion that the bureau may limit those eligible to vote to those who are actually growing cotton, i.e. farmers, and may limit the assessment to those eligible voters. In addition, the assessment is made on a per acre basis. The same assessment for each acre cannot be payable twice; for example, by both the farmer and the landlord who owns the land and has a lien on the growing cotton.

(5) Should pro or con literature be attached to the ballots as the pro literature was on the 1994 ballot.

Section 69-37-19 provides:

The arrangements for and management of any referendum held under this chapter shall be under the direction of the Certified Cotton Growers Organization. The Organization shall bear all expenses incurred in conducting the referendum, to include furnishing the ballots and arranging for the necessary poll holders.

Section 69-37-3 of the Code provides that “this chapter shall be construed liberally to achieve these purposes.”

It is our opinion that the Cotton Growers Organization may direct that both pro and con literature be attached to the ballots, but literature in favor of only one side of the issue may not be included.

Very truly yours,

Mike Moore Attorney General

Mike Lanford Assistant Attorney General.