5K Farms, Inc. v. Miss. Dep't of Revenue
| Docket Number: | 2009-CT-01787-SCT Linked Case(s): 2009-CA-01787-COA ; 2009-CA-01787-COA ; 2009-CT-01787-SCT ; 2009-CT-01787-SCT |
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| Supreme Court: | Opinion Link Opinion Date: 05-10-2012 Opinion Author: Carlson, P.J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Pretrial bond requirement - Section 27-77-5 - Section 27-77-7 - Constitutionality of statutes - M.R.A.P. 44(a) - M.R.A.P. 44(c) - Appellate jurisdiction Judge(s) Concurring: Waller, C.J., Dickinson, P.J., Randolph, Lamar, Kitchens, Chandler and Pierce, JJ. Non Participating Judge(s): King, J. Procedural History: Admin or Agency Judgment Nature of the Case: CIVIL - OTHER Writ of Certiorari: Granted Appealed from Court of Appeals |
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| Trial Court: |
Date of Trial Judgment: 07-21-2009 Appealed from: Hinds County Chancery Court Judge: William H. Singletary Disposition: Appellant was required to post bond in order to appeal. Case Number: G2009-599S/2 |
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| Note: | Affirmed the Court of Appeals, and its decision can be found at http://courts.ms.gov/Images/Opinions/CO68792.pdf . | |
| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | 5K Farms, Inc. |
CHRISTOPHER THOMAS GRAHAM
MICHAEL A. HEILMAN |
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| Appellee: | Mississippi Department of Revenue f/k/a Mississippi State Tax Commission | GARY WOOD STRINGER JAMES L. POWELL | ||
Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Pretrial bond requirement - Section 27-77-5 - Section 27-77-7 - Constitutionality of statutes - M.R.A.P. 44(a) - M.R.A.P. 44(c) - Appellate jurisdiction |
| Summary of the Facts: | 5K Farms, Inc. is a newly formed blueberry farm, which produced its first saleable crop in 2009. On October 5, 2005, following Hurricane Katrina, the Mississippi Department of Environmental Quality granted emergency authorization to 5K Farms to accept and dispose of vegetative debris generated as a result of that storm. 5K Farms used this vegetative debris for agricultural development. On February 8, 2006, the MDEQ notified 5K Farms by means of a memorandum that all sites for which emergency authorization was granted for the disposal of vegetative debris would be considered commercial disposal sites subject to reporting requirements on solid waste-disposal activities. In the same memorandum, 5K Farms was notified that it was required to file a report with the Mississippi State Tax Commission, now known as the Mississippi Department of Revenue, showing the total amount of vegetative debris it had received. 5K Farms was ordered to pay a fee on the debris in the amount of one dollar per ton. In June, 2007, 5K Farms filed a solid-waste-fee annual report for the period between February 10, 2006, and May 4, 2006. 5K Farms reported, in total, the disposal of 133,133 tons of solid waste. In March 2008, the MSTC notified 5K Farms that it had been assessed $157,096.94, a sum which included the fee of one dollar per ton on 133,133 tons of waste, as well as interest and penalties. 5K Farms appealed this assessment to the MSTC Board of Review. The Board of Review found that 5K Farms was notified in February 2006 of its potential liability and upheld the MSTC’s assessment. 5K Farms then appealed this ruling to the full Commission. The Commission determined that 5K Farms was indeed a commercial nonhazardous solid-waste-management facility, and that it was thus subject to the fee of one dollar per ton. The Commission upheld the assessment of fees incurred during 2006. But the assessment was reduced to $133,133, equivalent to the rate of one dollar per ton of waste used, without an assessment for interest or penalties. 5K Farms filed an appeal in the Chancery Court for the First Judicial District of Hinds County. At the same time, 5K Farms filed a motion for supersedeas, requesting that the chancery court enter an order allowing 5K Farms to proceed without posting a bond as required under sections 27-77-5 and 27-77-7. The motion also requested that the chancellor prevent any collection proceedings against 5K Farms during the pendency of the case. 5K Farms attached to its motion a pauper's affidavit signed by its vice president, David Kittrell. The MSTC filed a motion to dismiss the appeal and objected to 5K Farms' motion for supersedeas. After a hearing on the matter, the chancellor determined that 5K Farms could not proceed with the appeal as an indigent party. 5K Farms was granted no relief from the requirement to post the proper bond. The chancellor entered an order dismissing the case for lack of subject-matter jurisdiction. 5K Farms appealed, and the Court of Appeals affirmed the judgment of the chancery court. The Supreme Court granted certiorari solely to review whether the pretrial bond requirement found in sections 27-77-5 and 27-77-7 relates to appellate jurisdiction and is constitutional, or is procedural and unconstitutional. |
| Summary of Opinion Analysis: | Since 5K Farms did not provide notice to the Attorney General that it was challenging the constitutionality of the statute, as required under M.R.A.P. 44(a), the Court of Appeals took an appropriate course of action in not addressing the issue. Viewing this jurisdictional issue as worthy of consideration, the Supreme Court proceeded by issuing a special order as allowed under M.R.A.P. 44(c). The pretrial bond requirement derived from sections 27-77-5 and 27-77-7 is a requirement governing appellate jurisdiction rather than a procedural requirement. Thus, its enactment was properly within the province of the Legislature. This requirement does not violate the separation of powers, and is therefore constitutional. |
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