• Judicial deference to administrative agencies undermines North Carolinians’ right to a fair trial
  • The North Carolina Supreme Court has agreed to hear a case that challenges administrative deference
  • In a recently filed brief, the John Locke Foundation urges the court to end or restrict administrative deference and restore the right to a fair trial

“No man is allowed to be a judge in his own cause; because his interest would certainly bias his judgment.”

James Madison, Federalist No. 10

In 2019, after almost two years of disciplinary proceedings, Alvin Mitchell was dismissed from his position as a tenured professor at Winston-Salem State University (WSSU). Following his dismissal, Mitchell filed a lawsuit challenging the decision. He claimed, among other things, that the university had failed to follow correctly the disciplinary procedures specified by the UNC Code. In 2023, the North Carolina Court of Appeals dismissed Mitchell’s entire complaint, including his procedural claim.

The John Locke Foundation took an interest in the case at that point, not because we believed Mitchell had been wrongfully dismissed, but because we disapproved of the way the Court of Appeals had reached its decision. Instead of reviewing the UNC Code and the facts of the disciplinary proceedings and reaching its own, independent decision regarding Mitchell’s claim, the court applied a doctrine called “administrative deference.” Referring to the UNC administrators, it said, “The agency’s decision is presumed to be made in good faith and in accordance to governing law.” Moreover, said the court, “It is well established that an agency’s construction of its own regulations is entitled to substantial deference.”

In applying the doctrine of administrative deference in this way, the Court of Appeals was merely following precedent established by the North Carolina Supreme Court; however, that does not make it right. For a court to defer to one party in a dispute is tantamount to allowing that party to be judge in its own cause, an evil that James Madison warned us about 240 years ago. For that reason, administrative deference clearly violates the disfavored party’s right to a fair trial before an impartial judge.

At Locke, we think the Supreme Court should eliminate or substantially restrict administrative deference doctrine. We filed a brief last year urging the court to hear Mitchell’s motion for discretionary review on the specific question of administrative deference. We were delighted when the court agreed to review the question, and we recently filed another brief urging the court to take this opportunity to revisit and revise administrative deference doctrine.

In our brief we emphasize that administrative deference is not only unfair, it also violates the separation of powers mandated by the North Carolina and United States constitutions:

Beginning early in the 20th century, “progressive” scholars, jurists, and politicians sought to replace the American system of government, with its separation of powers and its checks and balances, with a unified regulatory state in which all governmental power was assigned to wise and beneficent technocrats in the executive branch. “Progressive” legislators at the federal and state levels did their part by delegating their power to make legally binding rules to administrative agencies. As a result, most of the legally binding rules governing the conduct of Americans in general and North Carolinians in particular consist, not of statutes enacted by their elected representatives in Congress or in their state legislatures, but of executive orders and regulations promulgated and enforced by federal and state administrative agencies. …

[A]llowing administrative agencies to acquire legislative as well as executive power … seriously eroded the separation of powers, but worse was to come. When disputes over the meaning of delegating statutes and of administrative rules promulgated under those statutes arose, the courts should have evenhandedly adjudicated those disputes. Instead, the federal courts and most state courts began to defer to the agencies themselves regarding the meaning of those statutes and rules.

The result of this “administrative deference” was that all three functions of government became concentrated in the executive branch. That clearly violates the separation of powers guaranteed by the relevant constitutional provisions, [and] it also … violates the right to a fair trial. [A] tribunal that defers to one of the parties to a dispute can hardly be said to be impartial.

In our brief we also note that the situation regarding administrative deference is beginning to change, and we summarize nine recent instances in which state supreme courts have eliminated or restricted administrative deference. The most recent of these was handed down by the Ohio Supreme Court in 2022. Here are some excerpts that are included in the brief:

We reaffirm today that it is the role of the judiciary, not administrative agencies to make the ultimate determination about what the law means. Thus, the judicial branch is never required to defer to an agency’s interpretation of the law. …

In a case like this one, a court is charged with adjudicating a dispute between a government agency and a private party. But how can the judiciary fairly decide the case when it turns over to one party the conclusive authority to say what the law means? To do so would fly in the face of the foundational principle that no man ought to be a judge in his own cause. For this reason, it has been said that mandatory deference creates systematically biased judgment in cases where a government agency is a party. [Quotation marks and citations omitted.]

We conclude our brief by urging the Supreme Court to follow the example of Ohio and the other states:

The movement to restrict or eliminate all forms of administrative deference is clearly gaining momentum, and it is not too late for North Carolina to become a leader rather than a follower in that movement. This case provides the Court an opportunity to do just that.

Read the whole thing here.