Notice & Comment

The End of Deference: The States that Cannot Make Up Their Mind, by Daniel M. Ortner

In a recent post, I wrote about the states that have abandoned Chevron and Auer like deference in recent years.

I want to now turn my attention to a much less praiseworthy set of states, those who simply cannot make up their mind about whether or not to defer to agencies. In my article, The End of Deference: How States Are Leading a (Sometimes Quiet) Revolution Against Administrative Deference Doctrines, I label these states as “inconsistent.” But really, inconsistent is a pretty dramatic understatement. Indeed, some of these states have veered back and forth from deference and non-deference so quickly that it makes my head spin.

The winner of the “so close but yet so far away” prize goes to Indiana. If I were writing this article last year, I would have counted Indiana as a state that had abandoned deference. In 2018, the Court explained that “Separation-of-powers principles do not contemplate a ‘tie-goes-to-the-agency’ standard for reviewing administrative decisions on questions of law” and that “[i]n discharging our constitutional duty, we pronounce the statutory interpretation that is best and do not acquiesce in the interpretations of others.” Surprisingly, despite that strong rebuke, the Court walked this back the next year and explained that deference was still in vogue in Indiana. Justice Slaughter, the author of the 2018 decision, shot back with a sharply worded dissent. He expressed his frustrating that he “had thought this discredited standard, which the Court resurrects today, had been laid to rest for goodand that “there is no principled reason, consistent with separation of powers, for according fundamentally different treatment to the statutory interpretations of different agencies within the executive branch of state government.” So it appears that Indiana courts are once more applying deference as before.

The runner up is Kentucky. Kentucky is a state with a pretty robust tradition of deference, and so a 2013 decision declaring that “[i]ssues of statutory construction are matters of law for the courts to resolve, and the reviewing court is not bound by an administrative body’s interpretation of a statute” seemed path breaking. But then a 2017 decision once again stated that “Kentucky courts give substantial deference to an administrative agency’s construction of applicable statutes and regulations as long as that interpretation is consistent with the statutory or regulatory language at issue.” Then, a 2018 decision appeared to once again zag in the other direction, declaring that while “deference extends to agency fact-finding … the interpretation and constitution of statutes are … within the province of the judicial branch of government.”

Some states like Maryland cannot seem to make up their mind about how deferential they should be. In one recent decision, the Maryland Court of Appeals emphasized that “some weight” is given to an agency’s interpretations, something akin to Skidmore like deference. In another recent decision the Court explained that “considerable weight” is to be given, something more akin to Chevron like deference. The same is true in Rhode Island, where a recent decision strongly implied that only Skidmore like deference was extended. (“[T]he true measure of a court’s willingness to defer to an agency’s interpretation of a statute ‘depends, in the last analysis, on the persuasiveness of the interpretation, given all the attendant circumstances”). But the following year the Court declared that “[i]t is well settled that Rhode Island courts accord great deference to an agency’s interpretation of its rules and regulations and its governing statutes, provided that the agency’s construction is neither clearly erroneous nor unauthorized.” Suffice to say nothing about this appears particularly ‘well settled.”

Montana seems to want to have its deference cake and it eat it too. The Montana Supreme Court has declared that agencies are entitled to deference when interpreting a statute and to “great deference” when interpreting their own regulations. But then in one decision a few years ago the Court sharply distinguished between federal Chevron deference and the state’s deference doctrine, emphasizing that deference in the state is narrower than Chevron and that all statutes would be strictly construed with any even somewhat incompatible regulations invalidated.

And South Dakota appears to want it all. South Dakota has declared that it grants no deference to agency interpretations. But in one recent decision the South Dakota Supreme Court cited Chevron and stated that the “same analysis applies here.” And one decision goes so far as to suggest that an agency’s interpretation must be upheld if the interpretation is reasonable. Another seems to apply deference only to regulatory interpretations rather than statutory interpretations. About the only conclusion I can safely draw is that South Dakota rarely defers to administrative agencies, except when it does.

But the award for the most incoherent and incompatible body of precedent has to go to Nevada. Within the past few years the Nevada Supreme Court has issued decisions expressly saying that agencies are entitled to no deference at all, and other decisions stating that agencies are entitled to “great deference.” I cannot reconcile these decisions and I challenge the reader to come up with any kind of a standard to determine when the Nevada Supreme Court will or won’t defer to agency interpretations. I was not able to do so.

This inconsistency is troubling. I suspect that both defenders and critics of deference would agree that there is nothing worse than deference inconsistently applied. Inconsistent deference means that neither the regulated parties nor the agency can know whether an agency interpretation will be given controlling authority or cursory examination. Defenders of Chevron argue that the doctrine leads to uniformity and predictability, but inconsistent deference offers none of those benefits. Litigators in these states should draw these inconsistencies to their high court’s attention in order to get needed clarity.

Daniel M. Ortner is an attorney at the Pacific Legal Foundation, a public interest law firm that litigates for individual liberty and the separation of powers. He previously clerked for Justice Thomas R. Lee of the Utah Supreme Court and Judge Kent A. Jordan of the Third Circuit Court of Appeals.

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