- Because it favors one side over the other in disputes between administrative agencies and citizens, judicial deference violates North Carolinians’ right to a fair trial
- Twelve states have already banned the practice, and Alabama is poised to do so as well
- North Carolina should follow their example
When there is a dispute between a citizen and an administrative agency, a legal doctrine known as judicial deference requires courts to “defer” to the latter’s interpretation of the law rather than interpret the law for themselves. The doctrine was initially adopted by the federal courts in the middle of the 20th century to clear the way for the creation of the modern administrative state. During the second half of the century, state courts in North Carolina — and throughout the country — adopted it, too.
The doctrine clearly violates what has been called “the first and most fundamental principle of natural justice”; namely, that justice should be blind and that courts should be impartial and not favor one party to a dispute over another. That it was nevertheless adopted throughout the country with hardly a murmur of protest demonstrates how determined America’s ruling class was to replace our traditional system of limited government, with its checks and balances, with a unified regulatory state in which ostensibly wise and beneficent technocrats in the executive branch wield unlimited power.
The right to a fair trial: a brief account of a long history
That a fair trial requires an impartial tribunal is not just self-evident, it is also supported by common sense and reason. It should come as no surprise, therefore, that it has been explicitly acknowledged to be a fundamental principle of law by diverse legal authorities for many, many years.
It was already a well-established principle of Roman law by the time the Emperor Justinian arranged for its codification in the 6th century:
“[N]o one shall act as judge in his own case, or interpret the law for himself, as it would be very unjust to give anyone the right to render a decision in an affair which is his own.”
— Justinian Code 3.5.1
Thanks to the enduring influence of Roman law in general and of the Justinian Code in particular, the principle was recognized by canon law and by the civil law of most European countries during the Middle Ages. By the early modern period, leading English jurists acknowledged it as an integral part of both natural and common law:
“[I]t is unjust for someone to be judge in his own case; and one cannot be judge and attorney for any of the parties.”
— Edward Coke’s report of Doctor Bonham’s Case
The Founding Fathers, who were steeped in Roman law as well as natural and common law, endorsed it:
“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 our day, the North Carolina State Constitution declares it to be one of “the great, general, and essential principles of liberty and free government”:
“All courts shall be open … and right and justice shall be administered without favor, denial, or delay.” [Emphasis added.]
— North Carolina Constitution, Article I, Section 18
Judicial deference in action in North Carolina
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 claiming, 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 rejected Mitchell’s complaint, including his procedural claim. Instead of reviewing the UNC Code and the facts of the disciplinary proceedings and reaching its own, independent decision regarding that claim, the court said, “The agency’s decision is presumed to be made in good faith and in accordance to governing law. … It is well established that an agency’s construction of its own regulations is entitled to substantial deference.”
For a court to defer to one party’s self-interested interpretation of the law is precisely what legal authorities of all kinds have been warning us not to do for 1,500 years. In North Carolina it clearly violates the constitutional guarantee that “justice shall be administered without favor.” That is why the John Locke Foundation filed a brief urging the North Carolina Supreme Court to declare that “the power and the duty to interpret laws and regulations rest with the courts rather than with regulatory agencies.”
North Carolina should follow other states’ lead and get rid of judicial deference
A movement to reform judicial deference doctrine has been gaining momentum for several years. Last year, in Loper Bright v. Raimondo, the United States Supreme Court expressly rejected judicial deference to federal agencies’ interpretations of federal statutes. However, reforms at the state level began long before that, and many states’ reforms have gone further.
Since 1987, nine state supreme courts have issued opinions restricting or eliminating administrative deference. Arizona and Wisconsin have recently enacted statutes eliminating judicial deference, and Alabama is poised to do so as well. In 2018, Florida ratified a constitutional amendment that bans judicial deference. North Carolina should follow the example set by these states.
The North Carolina Supreme Court should take its cue from the Ohio Supreme Court, which affirmed in 2022 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.
The North Carolina General Assembly should pass a bill similar to the one recently approved by Alabama’s Senate, which states:
[W]hen interpreting any statute or rule, the court may consider but shall not defer to an agency’s interpretation and shall instead interpret its meaning and effect de novo. In an action brought by or against an agency, after applying all customary tools of interpretation, the court shall exercise any remaining doubt in favor of a reasonable interpretation which limits agency power and maximizes individual liberty.
Finally, the General Assembly should submit to our voters a constitutional amendment similar to the one ratified by Florida’s voters, which provides that:
In interpreting a state statute or rule, a state court or an officer hearing an administrative action pursuant to general law may not defer to an administrative agency’s interpretation of such statute or rule, and must instead interpret such statute or rule de novo.
For more information see:
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
