Fired professor’s case could help state high court clarify ‘deference’

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  • The state Supreme Court could use the case of a fired Winston-Salem State University professor to clarify legal standards regarding "administrative deference."
  • The court rejected one appeal in Professor Alvin Mitchell's case on March 22. It granted a second appeal on a single issue: When should courts defer to an agency's interpretation of its own rules and regulations?
  • Mitchell's lawyers argue that North Carolina's deference law "is in dissaray." They accuse the state Court of Appeals of applying "extreme and unwarranted deference."

The case of a fired Winston-Salem State University professor could help North Carolina’s highest court clarify the legal issue of “administrative deference.”

It’s an issue that prompted a friend-of-the-court brief from the John Locke Foundation supporting the professor’s legal arguments.

The state Supreme Court issued a March 22 order indicating that it would take up Professor Alvin Mitchell’s case. The order signaled that justices would address a single issue: “Under North Carolina law, when, if ever, should a court defer to an agency’s interpretation of the rules and regulations that the agency has promulgated?”

Attorneys representing Mitchell filed an appeal in May 2023. They asked the high court to reverse a 2-1 state Court of Appeals decision from April 2023. Appellate judges affirmed a 2021 trial court ruling upholding the university’s decision to fire Mitchell.

Mitchell’s lawyers cited three possible reasons for the high court to take the case. Justices issued an order rejecting an appeal based on the claim that Mitchell’s case involved “substantial constitutional questions.” They took no action on a second appeal based on the Appeals Court dissent. That appeal would have focused on alleged violations of Mitchell’s free-speech rights.

Justices granted the third appeal tied to the deference issue.

When seeking the appeal, Mitchell’s lawyers quoted Justice Richard Dietz’s questions about deference during an April 2023 oral argument.

“[W]hy do we defer to the agency’s interpretation?” Dietz asked. “What I’m asking is why, if the agency interpreted those [regulations], would we defer to that over just saying everyone impacted should be able to look at those conditions and decide what they mean, and no one person looking at them should be given any greater deference than anyone else?”

“I’m just wondering doctrinally why that agency deference exists in our case law at all in this context,” Dietz added.

Lawyers in that case “had no answer to these questions,” Mitchell’s lawyers argued.

“This petition lets the Court answer those questions directly. The judiciary’s deference to agency interpretations has significant public interest and involves legal principles of major significance to the jurisprudence of the State,” according to Mitchell’s lawyers.

Mitchell’s appeal contends that state deference law “is in disarray,” deference is “unlawful and unwise,” and the Appeals Court “applied extreme and unwarranted deference.” Mitchell’s lawyers argued that courts should not have deferred to UNC’s interpretation of the rules related to his dismissal.

Locke’s friend-of-the-court brief in the case also focused on administrative deference.

“Locke has always opposed all forms of extreme judicial deference, not just because they are unfair and unconstitutional, but also because they undermine the judiciary’s role in upholding the rule of law and create perverse incentives for legislatures and executive officers and agencies,” wrote Jon Guze, Locke senior fellow in legal studies.

“Relying on vaguely worded enabling statutes, executive branch officers and agencies have promulgated countless legally binding rules of conduct that they, themselves, have then gone on to enforce,” Guze added

“That clearly violates the separation of power between the legislative and executive branches,” he wrote. “Making matters worse, when disputes over the meaning of laws and administrative rules have arisen, the federal courts and most state courts have generally refused to act as independent adjudicators. Instead, citing various judge-made doctrines as justification, they have simply ‘deferred’ to agency interpretations of the relevant enabling statutes and the administrative rules promulgated pursuant to those statutes.”

“That clearly violates the separation of power between the judiciary and the other two
branches of government,” Guze argued.

The Appeals Court, in a 2-1 decision, affirmed the University of North Carolina System’s decision to fire Mitchell in 2019. Mitchell’s dismissal followed “three alleged acts of misconduct” between fall 2015 and fall 2017, according to the majority opinion authored by Judge Toby Hampson.

The university’s Board of Governors upheld Mitchell’s dismissal. A trial judge also supported the decision in July 2021. At the Appeals Court, Hampson and Judge Valerie Zachary voted to affirm the trial court’s ruling.

Judge Hunter Murphy agreed that Mitchell had received due process. He dissented from the majority opinion on the issue of a potential First Amendment violation linked to a letter Mitchell sent to a supervisor.

No date has been set for oral arguments in Mitchell v. The University of NC Board of Governors.

Editor’s note: Carolina Journal published an article on March 22 indicating that the state Supreme Court had dismissed Mitchell’s appeal. The article failed to note that the court had issued two orders in the case. The first order dismissed one of three appeals filed in the case. The second order granted an appeal based on the narrow issue of administrative deference. CJ regrets the error.