The case of a fired Winston-Salem State University professor offers North Carolina’s highest court an interesting opportunity. The court could use Alvin Mitchell’s lawsuit to help set limits on judicial deference to government’s administrative agencies.

The issue of administrative deference attracted attention from the John Locke Foundation’s top legal expert. He submitted a friend-of-the-court brief last month urging the state Supreme Court to consider Mitchell’s case.

“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’s senior fellow in legal studies.

“A movement to reform administrative deference doctrine is currently sweeping the country,” Guze added. Mitchell’s case “provides this Court with an opportunity to join and possibly lead that movement.”

Guze focused on problems linked to a legal system that offers excessive deference to government agencies.

“Despite the separation of powers implied by the United States Constitution and explicitly guaranteed by the North Carolina Constitution, most of the laws governing the conduct of North Carolinians — and Americans in general — consist, not of statutes enacted by their elected representatives in Congress or their state legislature, but of executive orders and rules promulgated by federal and state administrative agencies,” Guze wrote. “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.”

“That clearly violates the separation of power between the legislative and executive branches,” Guze added. “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,” he wrote.

The situation “is beginning to change,” Guze added, with action at both the federal and state level.

Florida, Arizona, and Wisconsin “recently eliminated administrative deference altogether,” Guze wrote. Meanwhile, state Supreme Courts in Arkansas, Delaware, Kansas, Michigan, Mississippi, Utah, Wisconsin, and Wyoming “curtailed or eliminated” administrative deference. A case decided last December in Ohio “makes a rigorous and compelling case against administrative deference.”

“The movement to reform administrative deference doctrine is clearly gaining momentum, and it is not too late for North Carolina to become a leader rather than a follower in that movement,” Guze concluded. Taking Mitchell’s case “will give this Court an opportunity to clarify the level of deference that should be afforded to administrative agencies, ideally in a way that ensures such deference is never mandatory and that the courts have the ultimate say regarding the meaning of both the statutes that delegate rule-making power to those agencies and the rules those agencies promulgate pursuant to those statutes.”

The N.C. Supreme Court should “seize that opportunity” to address the issue, Guze wrote. Justices could offer lower courts a “clear and well-reasoned rule specifying what level of deference — if any — should be afforded to administrative agencies.”

Mitchell’s lawyers also focused on “deference” in their latest brief to the high court.

“Sometimes the loudest sound is silence,” they wrote. “[T]he University doesn’t dispute that the deference issue in this appeal is substantial. The University doesn’t dispute that our state’s case law is in disarray.”

“It doesn’t dispute that deference violates the North Carolina Constitution or that deference encourages agencies to misbehave.”

“Professor Mitchell was a tenured professor, having a contract that limited the University’s right to terminate him,” the professor’s lawyers wrote. “When the University terminated Professor Mitchell without following the limitations on its termination authority, it violated multiple provisions of the federal and state constitutions.”

The state Supreme Court has a chance to fix an error from the intermediate state Court of Appeals, Mitchell’s lawyers wrote. “Because the Court of Appeals deferred to the University’s interpretation of its own rules, it held that the University followed its own procedures,” the brief continued. “Based on that deference-induced misinterpretation, the court held that no constitutional violations occurred. That analysis was erroneous from beginning to end.”

It’s unclear whether justices on North Carolina’s highest court will take up Mitchell’s appeal. If not, fans of limited constitutional government will have to wait for another chance to limit administrative deference in the years ahead.

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