AUTHORITY OF DIRECTOR OF AGRICULTURE TO REVISE PRODUCERS' LISTS AFTER CLOSING DATE OF REFERENDUM

AGRICULTURAL MARKETING ORDER ‑- WHEAT REFERENDUM ‑- AUTHORITY OF DIRECTOR OF AGRICULTURE TO REVISE PRODUCERS' LISTS AFTER CLOSING DATE OF REFERENDUM

After the closing date of a referendum the director of agriculture may not revise the existing producer list for the purpose of determining whether or not the requisite number of affected producers participated in the referendum.

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                                                                   May 31, 1956

Honorable Sverre N. Omdahl, Director
Department of Agriculture
Old Capitol Building
Olympia, Washington                                                                                                              Cite as:  AGO 55-57 No. 281

Dear Sir:

            In your letter of April 27, 1956, you requested our opinion relative to the referendum recently conducted among the wheat producers of the twenty counties in Eastern Washington under the provisions of the Washington Agricultural Enabling Act, chapter 191, Laws of 1955.

            Your specific question is:

            After the closing date of a referendum may the director revise the existing producer list for the purpose of determining whether or not the requisite number of affected producers participated in the referendum?

            We answer your inquiry in the negative.

                                                                     ANALYSIS

             [[Orig. Op. Page 2]]                                                                      

            Chapter 191, Laws of 1955, is an act relating to agricultural production.  It authorizes the issuance, amendment and termination of marketing orders and agreements by the director of agriculture upon the assent of the affected producers after compliance with certain procedural requirements set out in the act.                                                                    

            RCW 15.66.060 (1955 Supp.) provides in part as follows:

            "Upon receipt of a petition for the issuance, amendment, or termination of a marketing order, the director shall establish a list of producers of the agricultural commodity affected or make any such existing list current.  In establishing or making current such a list of producers, the director shall publish a notice to producers of the commodity to be affected requiring them to file with the director a certified report showing the producer's name, mailing address, and the yearly average quantity of the affected commodity produced by him in the five years preceding the date of the notice or in such lesser time as the producer has produced the commodity in question.  The notice shall be published once a week for four consecutive weeks in such newspaper or newspapers, including a newspaper or newspapers of general circulation within the affected areas, as the director may prescribe, and shall be mailed to all affected producers on record with the director.  All reports shall be filed with the director within twenty days from the last date of publication of the notice or within thirty days after the mailing of the notice to affected producers, whichever is the later.  The director shall keep such lists at all times as current as possible and may require information from affected producers at various times in accordance with rules and regulations prescribed by the director.

            "Such producer list shall be final and conclusive in making determinations relative to the assent by producers upon the issuance, amendment or termination of a marketing order and in elections under the provisions of this chapter."

             [[Orig. Op. Page 3]]

            RCW 15.66.090 (1955 Supp.) provides for a determination of assent of the affected producers by a referendum conducted by the director.  This section states in part as follows:

            ". . . The director shall conduct the referendum among the affected producersbased on the list as provided for in RCW 15.66.060, . . . The determination by volume shall be made on the basis of volume as determined in the list of affected producers created under provisions of RCW 15.66.060, subject to rules and regulations of the director for such determination. . . ." (Emphasis supplied.)

            The director is required by RCW 15.66.060 (1955 Supp.) to keep affected producer lists at all times as current as possible.  He is further authorized to prescribe rules and regulations to accomplish this purpose.  We are of the opinion that he may, in his regulatory capacity, set down the times and methods of revision.  This is an administrative matter for the director's determination.  There is nothing in the law preventing a revision of the list following a referendum.

            It is clear, however, that the results of the referendum are directly linked with the affected producer's list.  The wording of RCW 15.66.060 (1955 Supp.) that

            "Such producer list shall be final and conclusive in making determinations relative to the assent by producers . . ."

            is mandatory.  It seems obvious then that, as to a particular referendum, the producer's list must be established and closed by the closing date of the referendum.  To hold otherwise would destroy any intelligent tabulation of ballots determining assent of the producers.  We conclude, therefore, that the director may not proceed to count the returned ballots based upon a list revised after the closing date of the referendum.

            We feel that it should be pointed out that there is nothing in chapter 15.66 of the Revised Code of Washington which precludes a subsequent referendum, the results of which may be based upon the revised list.

             [[Orig. Op. Page 4]]

            We hope this opinion will prove of service to you.

Very truly yours,

DON EASTVOLD
Attorney General

CLYDE A. BARNARD
Assistant Attorney General