Justice’s questions could pave way for new NC deference standard

We’re supposed to learn in school that government’s legislative branch writes laws. The executive branch enforces laws. The judicial branch interprets laws.

That sounds clear.

But the simple formula doesn’t explain every scenario. It fails to explain the judiciary’s role when government agencies write their own rules.

Over the years, courts often have deferred to agencies’ interpretations of their rules’ meaning.

In April 2023, four months into his new job on the state Supreme Court, Justice Richard Dietz questioned that arrangement.

“[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.

Less than two weeks later, Dietz’s comments featured prominently in a petition to his court. Lawyers for fired Winston-Salem State University professor Alvin Mitchell quoted Dietz. Mitchell’s legal team asked Dietz’s court to tackle deference in the context of the professor’s dismissal.

Lawyers in the case that prompted Dietz’s comments “had no answer” to his questions. “This petition lets the Court answer those questions directly,” Mitchell’s lawyers explained. “The judiciary’s deference to agency interpretations has significant public interest and involves legal principles of major significance to the jurisprudence of the State.”

Mitchell argued that Winston-Salem State failed to follow proper procedures when it fired him. He was accused of making “derogatory and racially charged communications,” but a faculty committee ruled “unanimously” that the university had failed to make its case.

Yet the chancellor still fired Mitchell. University oversight boards upheld that decision. So did a trial court.

Mitchell argued at the state Court of Appeals that the university ignored procedures spelled out in a faculty handbook. “[T]he Court of Appeals applied a ‘substantial deference’ standard, meaning it would defer to the university’s interpretation of its own procedures unless its interpretation was ‘plainly erroneous,’” the professor’s lawyers wrote.

Applying “substantial” deference, appellate judges sided with the university.

“This petition presents a question of North Carolina law: what level of deference, if any, should be given to an agency’s interpretations of its rules?” Mitchell’s lawyers wrote.

Mitchell claims current state deference law “is in disarray.” Past Appeals Court panels have treated deference differently. Some have supported varying degrees of deference. Others “have resisted deference as inappropriate because ‘it is ultimately the duty of courts to construe administrative statutes; courts cannot defer that responsibility to the agency charged with administering those statutes,’” the petition argued.

Federal courts have scaled back support for agency deference, Mitchell’s lawyers wrote. “Umpires in games at Wrigley Field do not defer to the Cubs manager’s in-game interpretation of Wrigley’s ground rules,” US Supreme Court Justice Brett Kavanaugh wrote in 2019.

“Given the inconsistent standards in the Court of Appeals and the evolution of federal law, this case is an appropriate vehicle to clarify, under North Carolina law, the role of judicial deference to agencies when they interpret administrative rules and regulations,” according to Mitchell’s petition.

Mitchell’s lawyers also argued that deference is “unlawful and unwise.”

“Deference is an abdication of the judicial authority to the administrative state, in violation of the guarantee of separation of powers,” the petition claimed. Deference violates the General Assembly’s clear guidance in the state Administrative Procedure Act. The APA requires courts to use their own judgment when reviewing agency decisions.

Deference invites “administrative mischief,” Mitchell’s lawyers added. It “creates a risk that agencies will promulgate vague and open-ended regulations that they can later interpret as they see fit.”

The state Supreme Court “should clarify what role, if any, an agency’s interpretation should play when a court is asked to interpret an agency’s regulation,” the petition urged. “The answer to that question is significant to members of the public, who are regulated by a vast number of administrative agencies.”

Even if justices accept some degree of deference, the Appeals Court in Mitchell’s case “applied extreme and unwarranted deference,” the petition claimed. Appellate judges agreed to defer to the university chancellor unless his interpretation was “plainly erroneous.”

“That is, the university wins unless its interpretation is crazy. That is not recognizable as a deference doctrine applied by courts today,” Mitchell’s lawyers argued.

Dietz and his colleagues have accepted Mitchell’s case. It’s not crazy to think that North Carolina’s highest court will clarify judges’ role in interpreting government agency rules and regulations.

Mitch Kokai is senior political analyst for the John Locke Foundation.