UNC lawyers offer high court a clear choice in deference case

Two months after the U.S. Supreme Court overturned a 40-year-old precedent dealing with a legal issue known as deference, North Carolina’s highest court prepares to tackle the same topic.

A recent court filing from the University of North Carolina System helps spell out a clear choice for the state Supreme Court — if justices seek a choice.

The June 28 decision in Loper Bright Enterprises v. Raimondo represented the U.S. Supreme Court’s rejection of “Chevron deference.” Based on a 1984 case, federal courts had accepted government agencies’ interpretations of laws during courtroom disputes. Critics had argued that deference prevented judges from playing their assigned roles.

A 6-2 high court majority agreed in Loper Bright that the federal Administrative Procedure Act requires federal judges to exercise “independent judgment” when deciding whether a government agency complied with the law.

The decision marked a major shift for federal courts. It didn’t necessarily change the way North Carolina’s judges will approach deference.

That’s why the case Mitchell v. Board of Governors of UNC could prove important.

Alvin Mitchell challenges his dismissal in 2019 as a tenured professor from Winston-Salem State University. He is not a particularly likeable plaintiff. Among the reasons WSSU cited for the firing was a nasty, racially charged letter Mitchell sent to a university colleague.

Yet Mitchell contends the university violated his constitutional rights in two ways. First, he labels the controversial letter free speech. Second, he contends that the university failed to follow proper procedures. Mitchell faulted courts for deferring to the UNC System’s interpretation of rules governing a faculty member’s dismissal.

Lower courts have ruled against Mitchell, though a dissenting state Appeals Court judge would have allowed the free speech claim to move forward.

No court has ruled in Mitchell’s favor on the deference issue. But his deference claim has attracted attention from the North Carolina Chamber, N.C. Farm Bureau and John Locke Foundation. The business and agriculture groups, along with the free-market think tank, all hope the state Supreme Court will use Mitchell’s case to clarify state courts’ deference standards.

Supreme Court justices have signaled an interest in the topic.

When appealing to the high court, Mitchell’s lawyers cited comments from Justice Richard Dietz in April 2023.

“(W)hy do we defer to the agency’s interpretation?” Dietz asked during an oral argument. “What I’m asking is why, if the agency interpreted those (regulations), would we defer to that over just saying everyone impacted should be able to look at those conditions and decide what they mean, and no one person looking at them should be given any greater deference than anyone else?”

A March 22 Supreme Court order suggests the Mitchell case could address Dietz’s questions. Justices say they will tackle the question: “Under North Carolina law, when, if ever, should a court defer to an agency’s interpretation of the rules and regulations that the agency has promulgated?”

The university’s Aug. 14 brief in the Mitchell case offered a firm defense of deference.

WSSU’s chancellor fired Mitchell despite a faculty committee’s recommendation against the action. Mitchell’s termination “was consistent with the clear and unambiguous procedures” spelled out in a faculty handbook and the university’s code, UNC lawyers wrote.

“Even if those procedures were ambiguous, however, it would be appropriate to afford some deference to the University’s consistent and longstanding reading of its regulations and read them to give authority to university chancellors over these matters,” UNC lawyers wrote.

“(I)t would be appropriate for this Court to afford some deference to the University’s reading of those regulations in the circumstances of this case,” the brief added. “This Court has long recognized that a state agency’s readings of its own rules are owed some deference if the agency’s reasoning is thorough, valid and has remained consistent over time.”

By contrast, a Locke Foundation brief in the case blasted deference as violating an “ancient principle”: “It is unfair for someone to be a judge in his own affairs.”

The N.C. Chamber and N.C. Farm Bureau argued that deference can hurt business and agriculture. “(T)here is always a risk that an agency will interpret a statute or a rule in a way that imposes unlawful regulatory burdens on their members,” the groups wrote. “(T)he application of agency deference unfairly tilts the scales of justice in favor of the agency.”

State Supreme Court justices face two contrasting approaches to deference. They could endorse UNC’s view. They could respond instead to critics’ concerns.

The direction the court takes will have a significant impact on future legal battles involving state government agencies.

Mitch Kokai is senior political analyst for the John Locke Foundation.

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