Doing away with deference?

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Category: Environmental Law, Public, Water Law, Wisconsin Law & Legal System

Legislative bodies often delegate significant authority to administrative agencies.  In the course of its work, an agency must reach legal conclusions about how to interpret and apply a statute it administers.  Most agencies employ attorneys for just that purpose.  When an agency’s legal interpretation is challenged, federal and state courts commonly defer to the agency in recognition to the agency’s subject-matter expertise and experience.  gavelFederal courts use the well-known Chevron[1]standard, analyzing first whether Congress has “directly spoken to the precise question at issue”; if it has, the court must give effect to that Congressional intent.  But if the statute is silent or ambiguous, the court defers to the agency interpretation if it is “based on a permissible construction of the statute,” even if the court would have reached a different outcome.  Wisconsin courts take a similarly deferential approach to reviewing agency legal interpretations.

Without the benefit of reliance on an agency’s interpretation of such specialized questions, courts would have to overcome “lack of training and expertise, lack of time, [and] lack of staff assistance. . . .”[2]  In the environmental context, federal courts have therefore resisted calls to inject themselves into the day to day management of natural resources, and have avoided becoming “forestmasters,” “roadmasters,” “fishmasters,” “watermasters,” and “rangemasters;” instead, they have deferred to the agencies created for those purposes.[3]

Over the years, however, some jurists have questioned whether this deferential approach straitjackets reviewing courts, sapping their power in favor of unelected administrative agency representatives.  Inspired by those concerns, a bill currently pending in the Wisconsin Legislature, A.B. 582, would eliminate judicial deference to agency legal interpretations in particular contexts.  To put it mildly, this would be a major development in Wisconsin administrative law and would deeply change the relationship and relative balance of power between agencies and reviewing courts in the state.

In Wisconsin, courts currently accord agency legal interpretations one of three potential levels of deference: great weight deference, due weight deference and no deference.[4]  Great weight deference applies when the agency is charged by the legislature with administering the statute; when the agency’s interpretation is longstanding; when the agency applied its expertise or specialized knowledge in forming its interpretation; and when the agency’s interpretation will provide uniformity and consistency in applying the statute.[5]  Due weight deference applies when an agency has some experience with a statute but not enough to put it in a better position than courts.[6]  No deference is given when an agency completely lacks experience or expertise in deciding the particular legal issue, or when the agency’s position has been “so inconsistent as to provide no real guidance.”[7]

This well-established framework is generally in accord with Wis. Stat. § 227.57, which governs the scope of judicial review of administrative provisions and provides in part that “the court shall not substitute its judgment for that of the agency on an issue of discretion.”

Assembly Bill 582 would change that approach in some contexts.  On January 26, the Assembly Committee on Housing and Real Estate recommended passage by a 5-2 vote and advanced the bill to the Assembly Rules Committee.  In its current form, the bill would create Wis. Stat. § 227.57(11)(a) to read:

“Upon review of an agency action or decision affecting a property owner’s use of the property owner’s property, the court shall accord no deference to the agency’s interpretation of law if the agency action or decision restricts the property owner’s free use of the property owner’s property.”

Both supporters and critics of the bill have raised concerns related to the constitutional separation of powers.  The bill’s author, Rep. Adam Jarchow, says that the bill addresses the “problem [of] state agencies that write, interpret and enforce the laws in a system under which the courts then ‘rubberstamp’ decisions.” Yet some legal observers have questioned whether the Legislature is overstepping its role by dictating the standard of review to courts.  Critics also contend that the provision would violate equal protection on the grounds that it applies only to property owners, and not other entities challenging agency actions. Whatever the outcome, the bill will certainly generate discussion as to the appropriate roles of the three branches in our governmental structure.


[1] Chevron U.S.A. v. NRDC, 467 U.S. 837 (1984).  Over the years, federal courts have moderately scaled back the types of agency actions to which Chevron applies.  See, e.g., United States v. Mead Corp., 533 U.S. 218 (2001); Iowa League of Cities v. EPA, 711 F.3d 844 (8th Cir. 2013).

[2] NRDC v. Hodel, 624 F. Supp. 1045, 1062-63 (D. Nev. 1985).

[3] Id. at 1062.

[4] Racine Harley-Davidson, Inc. v. State Div. of Hearings and Appeals, 2006 WI 86, ¶¶ 12-20, 292 Wis. 2d 549, 717 N.W.2d 184.

[5] Id., ¶ 16.

[6] Id., ¶ 18.

[7] Id., ¶ 19; Jamerson v. Dep’t of Children and Families, 2013 WI 7, ¶¶ 41-44.

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3 Responses to “Doing away with deference?”

  1. Tom Kamenick Says:

    I’ve hoped that some jurists would start questioning the propriety of giving deference to bureaucrats with little-to-no accountability. This is a start, but I too am concerned that it doesn’t apply to all agency actions. However, I don’t see a real separation of powers issue. This is no different than RFRA statutes, or the current 227.57. Agencies exist at the sufferance of the legislature, and this is just another way of cabining their authority.

  2. On February 9, the Assembly passed AB 582 by a 56-39 vote. It now moves to the state Senate.

  3. On February 16, the Senate concurred in the bill by a 19-13 vote. It now moves to Governor Walker.

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