The right to a fair trial before an impartial tribunal is one of the oldest and most fundamental principles of natural justice. That’s why, in addition to carrying a pair of scales, Justice is usually depicted wearing a blindfold. In disputes between citizens and administrative agencies, however, a legal doctrine called judicial deference strips off the blindfold and puts a thumb on the scales by requiring courts to “defer” to administrative agencies’ own, self-interested interpretation of the relevant laws and regulations. The doctrine was initially adopted by the federal courts to clear the way for the creation and expansion of the administrative state. The courts in many states — including in North Carolina — soon adopted it as well and for the same reason.
A movement to reform judicial deference doctrine has been gaining momentum for several years. Earlier this month, Kansas became the 14th state to join the movement by enacting a law that forbids its courts from deferring to administrative agencies:
- In interpreting a state statute, rule and regulation or document that has the force and effect of law, a state court or an administrative hearing officer hearing an administrative action may consider but shall not defer to a state agency’s interpretation of such statute, rule and regulation or document and shall interpret the meaning and effect of such statute, rule and regulation or document de novo.
- In an action brought by or against a state agency, after applying all customary tools of interpretation and rules of statutory construction pursuant to law, a state court or an administrative hearing officer hearing an administrative action shall exercise any remaining doubt in a way that is consistent with an individual’s fundamental constitutional rights.
While Kansas is not the first state to enact such a law, it has enacted a particularly well-crafted version, and North Carolina would do well to follow its example.
To its credit, last year the North Carolina Supreme Court repudiated deference to administrative agencies as a matter of judicial doctrine. In Savage v. NC DOT, the court expressly repudiated the doctrine with regard to administrative agencies’ interpretation of statutory law:
[W]e expressly disavow the use of … agency deference when interpreting state statutes, overrule any previous … case law to the contrary, and instruct all lower courts to apply traditional de novo review to the interpretation of state statutes.
And in Mitchell v. UNC Board of Governors, it did the same with regard to agencies’ interpretation of their own rules and regulations:
North Carolina courts have a constitutional duty to interpret the law and cannot defer in that role to the other branches of government. … [C]ourts interpreting state administrative regulations must freely substitute their judgment for that of the agency and employ de novo review. [Quotation marks and citations omitted.]
This is a huge victory for the rule of law, and Justice Richard Dietz, who wrote both opinions, and the other justices who joined them deserve our gratitude and support.
Judicial doctrine can change, however. In the second half of the 20th century, a majority of justices on the NC Supreme Court thought the expansion of the administrative state was more important than the provisions in the North Carolina Constitution that guarantee the separation of powers and the right to a fair trial. It is all too easy to imagine that that might happen again in the future. To ensure it doesn’t, the Judicial Deference Reform section of Locke’s Policy Solutions guide recommends that North Carolina proscribe administrative deference as a matter of law by enacting a suitable statute and by ratifying a suitable constitutional amendment. If and when the General Assembly decides to consider such measures, it would do well to look to Kansas’s new law as a model.
For more information see:
Why North Carolina should eliminate judicial deference to state agencies
Restoring the separation of powers in North Carolina
Restoring the right to a fair trial in North Carolina
Locke’s brief in Mitchell v. UNC Bd. of Governors (listing judicial deference reform efforts by state courts and legislatures)
Text of Kansas’s new law proscribing administrative deference
NC Supreme Court affirms North Carolinians’ right to a fair trial
Jucicial Deference Reform section from Locke’s Policy So;lutions guide
