Omaha World-Herald: End judicial bias in Nebraska, support LB 43

Outside of many Nebraska courthouses stands Lady Justice, blindfolded and holding a set of evenly balanced scales. Both the blindfold and scales symbolize the importance of fairness and even-handedness in court proceedings.

Unfortunately, in court proceedings involving state administrative agencies, what’s known as “judicial deference” requires that the scales of justice tilt toward the government and away from individuals and private businesses.

As classic cartoons like “Schoolhouse Rock” taught us, it’s the legislature’s job to enact laws and the executive’s job to enforce laws. In real life, that process is a bit more complicated. Often the agencies enforcing the laws need to enact rules that explain how they will implement the legislature’s commands. Sometimes the legislature’s command is straightforward. Other times, laws are ambiguous, and agencies have to do more interpretive work.

Once the agency has adopted rules based on its interpretation of the law, it sets about enforcing them. And that’s where controversy starts. What happens when the agency brings a case against someone, and the affected party argues that the agency’s interpretation of the law is just wrong?

Should Nebraska’s courts evaluate the claims of both sides and require the agency to adopt the best interpretation of the statute? Or should Nebraska’s courts defer to the government just because it is the government?

A 1984 Supreme Court opinion, Chevron v. NRDC, requires the federal courts to show deference to the government by rubber stamping the agency’s interpretation if a law is ambiguous. Even though state courts aren’t bound by this opinion, some states have nevertheless adopted a similar rule requiring judicial bias in favor of state agencies.

Chevron and its state clones require judges to abandon their traditional role as umpires who call balls and strikes. Instead, they require judges to put a thumb — and in some cases, more like an anvil — on the scales in favor of the government.

Nebraska’s courts have never adopted Chevron’s rule of judicial bias, though they have never clearly rejected it either. In the interest of making sure that the scales of justice stay balanced toward Nebraska citizens, Nebraska Legislative Bill 43 would prohibit judicial bias and end this fundamental unfairness.

The bill would forbid courts from reflexively deferring to government agencies and instead requires courts to look at statutes with fresh eyes, using traditional tools of legal interpretation. In cases where it is not clear whether the government or individual Nebraskan has the better interpretation of the statute, Legislative Bill 43 also requires courts to adopt the interpretation that limits government power and maximizes individual liberty. In a country that values limited government, it is only appropriate in such cases that the tie goes to freedom.

This “tie goes to freedom” rule resembles a deeply rooted principle of contract law, which requires that vague provisions are construed against the drafter. Usually, the drafter is the more powerful party to the contract, and so it makes sense to have a tiebreaker rule that mitigates that imbalance. In disputes between government and individual Nebraskans, when the government has the power to order costly investigations and levy huge fines, government agencies are similarly the more powerful parties.

Construing vague contract provisions against the drafter also gives drafters an incentive to write clearly. Legislators should similarly be incentivized to write clear laws. It’s unfair to expect Nebraskans to comply with a law when nobody can be sure what the law is.

In the criminal context, the “rule of lenity” requires courts to interpret vague laws against the government. The rule of lenity exists because it would be wrong to send someone to prison when it isn’t clear that the person’s acts are criminal at the time committed.

Jail time generally isn’t on the table in regulatory cases involving government agencies. But hefty fines often are. It makes sense to apply a similar tiebreaker rule in favor of lenity in these regulatory cases.

Every individual appearing before a court deserves an opportunity to be heard by an unbiased court. Legislative Bill 43 will help ensure that all Nebraskans get a fair shot at justice.

This op-ed was originally published in the Omaha World-Herald on March 23, 2023.