Wisconsin Supreme Court ends judicial deference to agencies
The Wisconsin Supreme Court issued a decision in Tetra Tech, Inc. v. Wisconsin Department of Revenue that ended the practice of judicial deference to the statutory interpretations made by administrative agencies in the state. Wisconsin is at least the fifth state to take action addressing judicial deference to agencies at the state level.
In the context of administrative law, judicial deference applies when a court yields to an agency's interpretation of either a statute that the agency administers or a regulation promulgated by the agency. The United States Supreme Court has established several forms of deference in reviewing federal agency actions and many states have developed their own deference practices.
Recent United States Supreme Court decisions, such as Pereira v. Sessions, have raised questions about the future of deference doctrines at the federal level. In Pereira, the court declined to apply Chevron deference—a deference doctrine that instructs federal courts to defer to a federal agency's interpretation of an ambiguous or unclear statute that Congress delegated to the agency to administer. In his concurrence, Justice Anthony Kennedy observed that “it seems necessary and appropriate to reconsider, in an appropriate case, the premises that underlie Chevron and how courts have implemented that decision.”
In his opinion for the Wisconsin Supreme Court, Judge Daniel Kelly wrote, "We have also decided to end our practice of deferring to administrative agencies' conclusions of law. However, pursuant to Wis. Stat. § 227.57(10), we will give 'due weight' to the experience, technical competence, and specialized knowledge of an administrative agency as we consider its arguments."
In addition to the Wisconsin ruling ending judicial deference, other state examples include the following:
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The Michigan Supreme Court ended judicial deference to agencies in 2008.
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Arizona ended the practice through state legislation in April 2018.
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The Mississippi Supreme Court ended judicial deference to agencies on June 7, 2018.
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Florida has proposed ending judicial deference to agency interpretations through a constitutional amendment that will appear on the November 6, 2018 ballot.
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