For the past year, there have been few major changes on the state deference front. That’s not to say that 2020 was completely uneventful. 2020 did see a few notable dissents, concurrences, and separate opinions critiquing deference. See Woodford v. Ins. Dep’t, 243 A.3d 60, 79 (Pa. 2020) (Donohue, J., concurring) (“When a reviewing court finds that a statute is ambiguous, in my view an agency’s interpretation is entitled to deference only in the sense of a recognition that the agency’s view should be considered for its persuasive value. This position is distinct from deferring to the agency’s view as a matter of law.”); Vasquez v. State, 468 P.3d 886 (Nev. Ct. App. 2020) (declaring that the state’s deference doctrine was a “Pandora’s box of complications”). And in October 2020, Justice DeWine wrote a significant post on this blog critiquing administrative deference. But since Arkansas moved away from deference last year, no other state had followed suit.
But last week a new decision came out of the Mississippi Supreme Court which completes that Court’s several-year transition to a complete rejection of deference. This decision was not surprising at all. In fact, it is more surprising that it took as long as it did to issue.
In 2018, the Mississippi Supreme Court rejected deference, concluding that deference was incompatible with “Mississippi’s strict constitutional separation of powers.” King v. Mississippi Military Dep’t, 245 So. 3d 404, 407 (Miss. 2018). And in May 2020, the Court went further than any other in the country by declaring that not only would it not defer to an agency’s statutory interpretation, but that any attempt by the legislature to require deference was incompatible with the Mississippi Constitution because “interpreting statutes is reserved exclusively for courts.” HWCC-Tunica, Inc. v. Mississippi Dep’t of Revenue, 296 So. 3d 668 ¶¶ 33-34 (Miss. 2020); Daniel Ortner, State Court Docket Watch: HWCC-Tunica Inc. v. Mississippi Dep’t of Revenue, Federalist Society (Aug. 28, 2020), https://fedsoc.org/commentary/publications/state-court-docket-watch-hwcc-tunica-inc-v-mississippi-dep-t-of-revenue.
Surprisingly, the Court nevertheless reiterated in a February 2020 decision that it gave “great deference to the agency’s interpretation” of its own regulations. Cent. Mississippi Med. Ctr. v. Mississippi Div. of Medicaid, No. 2018-SA-01410-SCT, 2020 WL 728806, at *6 (Miss. Feb. 13, 2020). But at least two Justices wrote separately to voice their disagreement with deference. Justice Kitchens wrote a brief concurrence stating that he “would end the practice of extending judicial deference to an executive agency’s interpretation of its rules and regulations.” Justice Coleman dissented and emphasized that the standard of deference was “inherently self-contradicting” and that just as the Court ended Chevron-like deference, so too “the practice of the courts deferring to an executive-branch interpretation of agency regulations should likewise end.” Justice Coleman expressed his concern that deference to agency interpretations would “put all or part of all three functions of government—rule making, rule enforcement, and rule interpretation—in the hands of one branch.” And in May 2020, Justice Coleman once again voiced his concern over the continued application of Auer-like deference. Mississippi Div. of Medicaid v. Windsor Place Nursing Ctr., Inc., No. 2018-SA-01263-SCT, 2020 WL 2487330, at *5 (Miss. May 14, 2020) (Coleman J., concurring joined by King, J. and Griffis, J.).
In light of these strong votes against deference, it was only a matter of time before the Mississippi Supreme Court was bound to confront the issue. Last week in Mississippi Methodist Hosp. & Rehab. Ctr., Inc. v. Mississippi Div. of Medicaid, No. 2019-SA-01558-SCT, 2021 WL 2373493, at *4 (Miss. June 10, 2021), the Court did so and took the long-expected step of ending Auer-like deference for regulatory interpretations. Writing for the Court, Justice King concluded that “the same reasons that applied to ending deference for an agency’s statutory interpretations apply equally to ending deference for an agency’s interpretation of rules and regulations.” The Court provided a brief overview of all of the reasons that it had already abandoned Chevron-like deference. And it explained that “[d]eferring to agency interpretations of rules and regulations is inconsistent with the standard of review for statutory interpretation, causes confusion, causes inconsistencies in application and within our own caselaw, and violates article 1, section 2, of Mississippi’s Constitution.” Justice Griffis wrote a dissenting opinion but offered no pushback on Justice King’s analysis regarding deference.
Although it was expected, the Mississippi Supreme Court’s decision still represents a powerful repudiation of deference and another significant step towards the rejection of deference at the state level.
Daniel Ortner is an attorney with the Pacific Legal Foundation.