Do your courts cheat for state agencies?

Inconsistent – The Alabama Administrative Procedure Act establishes full judicial deference in the state.¹Code of Ala. § 41-22-20. However, in 2016, the Alabama Supreme Court made clear that it will not “blindly follow an administrative agency’s interpretation” and that “the deference given an administrative agency’s interpretation of its own rule or regulation is not boundless.”²Chesnut v. Bd. of Zoning Adjustment, 208 So. 3d 624, 640 (2016). The Court stated that this means when the agency’s interpretation is “unreasonable or unsupported by law, deference is no longer due.”³Id. The Court explained that it defers to an agency’s interpretation to “ensure uniformity of decisions in light of the agency’s specialized competence in the field of operation entrusted to it by the legislature.”⁴Id. The Court said that it has made clear that the agency must show some reasonableness in its interpretation that warrants assuming specialized competence.⁵Id. In the 2016 case, the Court did not defer to the Huntsville Board of Zoning Adjustment’s ruling on a challenge to a housing permit because the board’s “interpretation [of the applicable rule] was [not] based on any long-standing interpretation by the BZA of the ordinances governing front-yard setbacks.”⁶Id. Furthermore, the Court decided that the agency’s interpretation of the rule was at odds with the plain meaning of the rule and that the agency did not provide sufficient justification.⁷Id.

Inconsistent – Alaska uses two standards to review agency interpretations of statutes.¹Marathon Oil Co. v. Dep’t of Nat’l Resources, 254 P.3d 1078, 1082 (2011).
If the interpretation at issue involves agency expertise or “the determination of fundamental policies within the scope of the agency’s statutory functions,” the Court defers to the agency’s interpretation as long as it is reasonable.²Id. If the agency’s specialized knowledge or experience is not necessary to interpret the statute, the Court will then make its own interpretation of the statute.³Id. But in either of these cases, the Court will give more deference to agency interpretations that are “longstanding and continuous.”⁴Id.

Reformed – Arizona eliminated judicial deference on April 11, 2018, with the signing of House Bill 2238 by Governor Doug Ducey.¹Ballotpedia, “State responses to judicial deference,” Ballotpedia.org, Ballotpedia, 2024, https://ballotpedia.org/State_responses_to_judicial_deference. This bill instructs courts to decide all questions of law without deference to government agencies, including on matters of constitutional, statutory, and regulatory interpretation.²Id.; See also A.R.S. § 12–910.  This law was the first of its kind at the state and federal levels.³Id.  However, the Arizona Supreme Court’s first decision applying the new law relied on the canon of prior-construction, which presumes that the legislature adopts the definition of words or phrases defined by the agency prior to the enactment of a statute.⁴Silver v. Pueblo Del Sol Water Co., 423 P.3d 348, 355 (2018).  Three dissenters in that case described that canon as “combin[ing] deference and delegation with a vengeance.”⁵Id. at 363.  Subsequent decisions have not applied this canon.⁶Jonathan Riches, “Deference Doctrines and State Legislative Solutions,” Pacific Legal Foundation Research Paper Series Research Paper, (2021): 3, https://pacificlegal.org/wp-content/uploads/2022/01/Deference-Doctrines-and-a-State-Legislative-Solution.pdf.

Reformed – In 2020, the Arkansas Supreme Court ended deference to agency statutory interpretations.¹Riches, “Deference Doctrines,” 8. The Court held that “by giving deference to agencies’ interpretations of statutes, the court effectively transfers the job of interpreting the law from the judiciary to the executive. This we cannot do.”²Myers v. Yamato Kogyo Co., 597 S.W.3d 613, 616 (2020).   The Court also instituted the review of statutory interpretations anew and without bias to administrative agencies because “it is the province and duty of this Court to determine what a statute means.”³Id.  In a case later that year, the Court reiterated its rejection of deference and held that Arkansas’ courts must review statutes anew because “it is the province and duty of this Court to determine what a statute means.”⁴Am. Honda Motor v. Walther, 610 S.W.3d 633, 636 (2020).   The Court elaborated that “in considering the meaning and effect of a statute, [it] construe[s] [a statute] just as it reads, giving the words their ordinary and usually accepted meaning in common language.”⁵Id.   Additionally, the Court stated that “[a]n unambiguous statute will be interpreted based solely on the clear meaning of the text. But where ambiguity exists, the agency’s interpretation will be one of…many tools used to provide guidance.”⁶Id.   However, it is unclear how this decision affected deference to agency interpretations of their own rules. While the Arkansas Supreme Court has not specifically addressed the question, the Court of Appeals has stated as late as 2023 that they will not overturn an agency’s interpretation of its own regulation unless it is “clearly wrong” or “irreconcilably contrary” to the plain meaning of the regulation.⁷Flywheel Energy Prod., LLC v. Ark. Oil & Gas Comm’n, 678 S.W.3d 851 (2023).   Administrative law scholar Daniel Ortner conjectured that “[a]lthough the decision” ending deference to agency statutory interpretations did not touch on agency rule interpretations, “it seems likely that the reasoning of the decision would apply to that type of deference as well.”⁸Daniel Ortner, “The End of Deference: An Update from Arkansas,” Yalejreg.com, Yale Journal on Regulation, April 11, 2020, https://www.yalejreg.com/nc/the-end-of-deference-an-update-from-arkansas-by-daniel-m-ortner/.

Inconsistent – The degree of deference that an agency receives is uncertain and complicated in California.¹Daniel Ortner, “The End of Deference: How States (and Territories and Tribes) Are Leading a (Sometimes Quiet) Revolution Against Administrative Deference Doctrines,” CSAS Working Paper, no. 21–23 (2021): 33, https://administrativestate.gmu.edu/wp-content/uploads/2021/04/Ortner-the-End-of-Deference.pdf.   California accords “great weight and respect” to agency interpretations of a statute.²American Coatings Assn. v. South Coast Air Quality Management Dist., 278 P.3d 838, 853 (2012).   In order to determine how much they will defer to an agency, the Court considers both the nature of the statutory issue and the characteristics of the agency.³Association of California Ins. Companies v. Jones, 386 P.3d 1188, 1196 (2017).  Broadly, the California Supreme Court distinguishes between two standards: “quasi-legislative regulations adopted by an agency to which the Legislature has confided the power to ‘make law,’” which “bind this and other courts as firmly as statutes themselves” and “an agency’s interpretation of statute or regulation” whose “power to persuade is both circumstantial and dependent on the presence or absence of factors that support the merit of the interpretation.” ⁴Yamaha Corp. of America v. State Bd. of Equalization, P.2d 1031, 1043 (1998).  Ortner writes that it is not clear in practice what the meaningful difference between these two standards is, and the California Supreme Court has refused to directly answer the question.⁵Ortner, “The End of Deference,” 29. Additionally, the Court still has ultimate responsibility to decide whether the regulations fall under the agency’s “broad discretion to adopt rules and regulations as necessary to promote the public welfare.”⁶State Farm Mutual Automobile Ins. Co. v. Garamendi, 88 P.3d 71, 82 (2004).

Inconsistent – The Colorado Supreme Court is unwilling to adopt a rigid approach to agency deference.¹Nieto v. Clark’s Mkt., Inc., 488 P.3d 1140, 1149 (2021).  Recently, the Court has refused to apply any specific deference standard, noting that while they “have made clear that … agency interpretations should be given due consideration, they are ‘not binding on the court.’”²Id.   The Court has also asserted that it will defer to an agency’s interpretation of their regulation in cases where the regulation is ambiguous.³Gomez v. JP Trucking, Inc., 509 P.3d 429, 436–437 (2022). In cases where the regulation is not ambiguous, the Court will give the agency’s interpretation “respect” if it has the “power to persuade.”⁴Id. at 437.

Inconsistent – Connecticut’s courts defer to agency interpretations that have “been subjected to judicial scrutiny” or “been time tested.”¹Christopher R. v. Commissioner of Mental Retardation, 893 A.2d 431, 440 (2006).   They also “generally defer to an agency with expertise in matters requiring such a technical, case-by-case determination.”²Id.  If a case involves an agency’s interpretation of a federal statute, the agency’s reading is given full deference so long as it “fills a gap” in the statute.³Crandle v. Conn. State Emps. Ret. Comm’n, 269 A.3d 72, 79 (2022).   In regard to other types of interpretations, the Connecticut Supreme Court has stated that courts should examine “whether, in light of the evidence, the agency has acted unreasonably, arbitrarily, illegally or in abuse of its discretion.”⁴Vitti v. City of Milford, 249 A.3d 726, 729 (2020).  One legal scholar noted that the “formulation in Connecticut is particularly unlikely to lead to deference, as if an interpretation has ‘been subjected to judicial scrutiny’ then there will likely already be an authoritative judicial construction.”⁵Ortner, “The End of Deference,” 39.

Reformed – The Delaware Supreme Court eliminated deference in 1999 when they held that statutory interpretation is ultimately the responsibility of the courts.¹Public Water Supply Co. v. DiPasquale, 735 A.2d 378, 382–383 (1999).   The Court further elaborated that while a reviewing court may accord due weight to an agency’s interpretation of a statute or regulation, they must not defer to it “merely because it is rational and not clearly erroneous.”²Id.

Reformed– Florida eliminated deference in 2018 with the passage of Florida Amendment 6—Marsy’s Law, the Crime Victims Rights, Judicial Retirement Age, and Judicial Interpretation of Laws and Rules Amendment.¹Ballotpedia, “State responses.”   This ballot measure prohibits state courts from deferring to an administrative agency’s interpretation of a statute or regulation and requires state courts to interpret statutes or rules de novo.²Art. V, § 21, Fla. Const.   But in a number of cases, lower courts in the state will still defer to agency fact-finding in specialized proceedings.³Evans Rowing Club, LLC v. City of Jacksonville, 300 So. 3d 1249, 1250–1251 (2020).   In those cases, the court will determine whether the administrative decision “was founded on competent, substantial evidence” by looking only for “facts in the record that support the agency fact-finder’s conclusion.”⁴Id.

Inconsistent – Georgia has limited deference but not eliminated it. The Court defers to an agency’s interpretation of an ambiguous statute.¹City of Guyton v. Barrow, 305 Ga. 799, 804, 828 S.E.2d 366, 370 (2019).   However, the Court has explained that “after using all tools of construction, there are few statutes or regulations that are truly ambiguous” and because of this, deference will almost never apply.²Id.   Additionally, in 2021, Georgia lawmakers limited judicial deference when Governor Brian Kemp signed into law Senate Bill 185.³Ballotpedia, “State responses.”   This bill ended deference to certain tax regulations by requiring state courts and the Georgia Tax Tribunal to decide all questions of law without deference to the regulations or policy interpretations of the state’s Department of Revenue.⁴Ballotpedia, “State responses.”

Full Deference – Hawaii courts defer to agency interpretations of statutes and rules.¹Ortner, “The End of Deference,” 61.  The Hawaii Supreme Court has stated that the need to defer is “particularly true where the law to be applied is not a statute but an administrative rule promulgated by the same agency interpreting it.”²Camara v. Agsalud, 67 Haw. 212, 216, 685 P.2d 794, 797 (1984).   The Court has stated that they will only reverse an agency’s decision if there is an error of law.³Id.   However, it has also made clear that in cases where there is a mixed question of both law and fact, the agency should be deferred to.⁴Id.

Reformed – In March of 2024, Idaho eliminated deference when Governor Brad Little signed into law House Bill 626, which was inspired by model legislation developed by Pacific Legal Foundation and the Goldwater Institute.¹Ballotpedia, “State responses.”   The legislation also requires courts to consider statutes and rules anew and without bias to executive agencies.²Ballotpedia, “State responses.”

Full Deference – Illinois’s courts go beyond the former federal standard of deferring to agency interpretations of statutes.¹Ortner, “The End of Deference,” 63.   Not only are agency interpretations entitled to “substantial weight and deference,” but “a reasonable construction of an ambiguous statute by the agency charged with that statute’s enforcement, if contemporaneous, consistent, long-continued, and in concurrence with legislative acquiescence, creates a presumption of correctness that is only slightly less persuasive than a judicial construction of the same act.”²Citibank, N.A. v. Illinois Dep’t of Revenue, 2017 IL 121634, ¶ 39, 104 N.E.3d 400, 410.   Additionally, an interpretation is entitled to deference “even where no ambiguity is found if the interpretation is consistent with the general statutory scheme established by the legislature.”³In re Cty. Treasurer & ex officio Cty. Collector of Cook Cty., 2020 IL App (1st) 190722, ¶ 22.

Reformed – In March of 2024, Indiana eliminated deference to agency interpretation of constitutional provisions, statutes, and regulations when Governor Eric Holcomb signed into law House Bill 1003.¹Ballotpedia, “State responses.”   The bill was inspired by model legislation developed by Pacific Legal Foundation and the Goldwater Institute.²Ballotpedia, “State responses.”

Inconsistent – In Iowa, Iowa Code section 17A.19 governs deference.¹Iowa Code § 17A.19.   Based on this statute, the courts defer to an agency if discretion is vested in the agency by the legislature.²Id.   When discretion is vested in the agency, the Court will only reverse the interpretation if it is “irrational, illogical, or wholly unjustifiable.”³Am. Home Assur. v. Liberty Mut. Fire Ins. Co., 975 N.W.2d 427, 430 (2022).   If discretion to interpret a statute is not vested in the agency, Iowa courts defer to agency interpretations involving agency expertise and complicated terms “alien to the legal lexicon.”⁴Banilla Games, Inc. v. Iowa Dep’t of Inspections & Appeals, 919 N.W.2d 6, 14 (Iowa 2018)   In such cases where discretion is not granted to an agency, the Court will reverse the agency interpretation if it is an “erroneous interpretation of the law.”⁵Id. at 13; See also Mosher v. Dep’t of Inspections & Appeals, 671 N.W.2d 501, 509 (2003).

Reformed – In 2013, the Kansas Supreme Court ended judicial deference in the state when it held that deference “has been abandoned, abrogated, disallowed, disapproved, ousted, overruled, and permanently relegated to the history books where it will never again affect the outcome of an appeal.”¹Douglas v. Ad Astra Info. Sys., 293 P.3d 723, 728 (2013).   However, Kansas courts still “recognize that an agency ruling within its area of expertise is entitled to some deference.”²Hanson v. Kan. Corp. Comm’n, 490 P.3d 1216, 1224 (2021).

Inconsistent – Kentucky courts have not been able to decide on a deference standard. In 2013, the Kentucky Supreme Court seemed to reject deference when it stated: “Issues of statutory construction are matters of law for the courts to resolve, and the reviewing court is not bound by an administrative body’s interpretation of a statute.”¹Bd. of Educ. of Fayette Cty. v. Hurley-Richards, 396 S.W.3d 879, 885–886 (2013).   In 2018, the Court followed this up by saying that agency deference extends only to fact-finding and that all interpretation and construction of statutes is entirely within the purview of the Court.²Id.; See also Roach v. Kentucky Parole Bd., 553 S.W.3d 791, 793 (2018).   However, in a 2017 case, the Court stated that “substantial deference to an administrative agency’s construction of applicable statutes and regulations” if that “interpretation is consistent with the statutory or regulatory language at issue.”³Louisville Gas & Elec. Co. v. Kentucky Waterways All., 517 S.W.3d 479, 489–490 (2017).   When examining the conflicting deference decisions in Kentucky, Administrative law scholar Daniel Ortner concluded that because there is a long history of deference in Kentucky, it is likely “that these deference skeptical decisions are merely rhetorical departures from the norm of deference.”⁴Ortner

Inconsistent – Louisiana courts defer to an agency’s interpretation of its own regulations so long as it is pursuant to the agency’s statutory grant of authority and the procedures of the Louisiana Administrative Procedure Act.¹Davis v. State Bd. of Certified Pub. Accountants of Louisiana, 131 So. 3d 391, 399 (2013).   This is because the courts consider an agency to be “an expert within its own specialized field and its interpretation and application of its own General Orders” and that “the [agency] is in the best position to apply its own General Orders.”²Dixie Elec. Membership Corp. v. Louisiana Pub. Serv. Comm’n, 441 So. 2d 1208, 1211 (1983).

Full Deference – Maine courts defer to agency interpretations of statutes and regulations.¹Ortner, “The End of Deference,” 52.   The standard currently used and cited in modern cases has been in place since 1978 and quotes a 1933 case, which states that “administrative interpretations…are entitled to great deference…especially where that interpretation involves a reasonably ‘contemporaneous construction of a statute by the men charged with the responsibility of setting its machinery in motion; of making the parts work efficiently and smoothly while they are yet untried and new.’”²Maine Human Rights Comm’n v. Local 1361, United Paperworkers Int’l Union AFL-CIO, 383 A.2d 369, 378 (1978) (quoting Norwegian Nitrogen Products Co. v. United States, 288 U.S. 294, 315 (1933)).

Inconsistent – Maryland courts defer to an agency interpretation depending on whether it is an interpretation of one of the agency’s own regulations or a statute.¹Ortner, “The End of Deference,” 54.   The Court applies a “sliding scale” approach to how much they defer to an agency’s interpretation of their own regulations.²Md. Dep’t of the Env’t v. Assateague Coastal Trust, 299 A.3d 619, 650 (2023).   More weight is given to interpretations that result from a process of “reasoned elaboration by the agency, when the agency has applied that interpretation consistently over time, or when the interpretation is the product of contested adversarial proceedings or formal rule making.”³Id.   When an agency interprets a statute, the Court considers this to be a conclusion of law and will not uphold an agency interpretation if they find it to be based on an erroneous legal conclusion.⁴Id.

Full Deference – Massachusetts courts defer to agency interpretations of statutes and regulations. The Massachusetts Supreme Court is extremely generous with their deference to an agency and will only overrule an agency interpretation if it is unreasonable.¹Massachusetts Fine Wines & Spirits, LLC v. Alcoholic Beverages Control Comm’n, 126 N.E.3d 970, 975 (2019).   The standard used to determine if the interpretation is unreasonable is simply if there is an error of law.²Craft Beer Guild, LLC v. Alcoholic Beverages Control Commission, 117 N.E.3d 676, 694 (2019).

Inconsistent – In 2008, the Michigan Supreme Court rejected deference to agency interpretations of statutes.¹SBC Mich. v. PSC (In re Complaint of Rovas), 482 Mich. 90, 111–112 (2008).   The Court held that while agency interpretations of statutes are entitled to “respectful consideration,” they are not binding on the courts and cannot conflict with the plain language of the statutes.²Id.   However, this standard also requires “cogent reasons” for overruling an agency’s interpretation.³TES Filer City Station L.P. v. Mich. Pub. Serv. Comm’n (In re Consumers Energy), 310 Mich. App. 614, 620 (2015).   Additionally, when the law is “doubtful or obscure,” the agency’s interpretation is considered an aid for discerning the legislature’s intent.⁴Id.   Nevertheless, the agency’s interpretation is not binding on the courts, and it cannot conflict with the legislature’s intent as expressed in the language of the statute at issue.⁵Id.   But the level of deference in Michigan is additionally difficult to gauge because the court has asserted that agency interpretations are “taken note of by the courts as an aiding element to be given weight in construing…laws and…sometimes deferred to when not in conflict with the indicated spirit and purpose of the legislature.”⁶Id.   In a 2021 concurring opinion, Chief Judge Swartzle wrote that he would “admit to a certain confusion regarding the ‘respectful consideration’ directive aimed specifically at agency interpretations.”⁷See W. Michigan Ann. Conf. of the United Methodist Church v. City of Grand Rapids, 336 Mich. App. 132, 158–159 (2021) (Swartzle, P.J., concurring).

Full Deference – Minnesota defers to agency interpretations of both statutes and regulations. The Minnesota Supreme Court has specified that deference to an agency interpretation of a statute is particularly critical “when the administrative practice at stake ‘involves a contemporaneous construction of a statute by the [people] charged with the responsibility of setting its machinery in motion; of making the parts work efficiently and smoothly while they are yet untried and new.’”¹In re City of Annandale, 731 N.W.2d 502, 512 (2007) (quoting Power Reactor Dev. Co. v. Int’l Union of Elec., Radio & Mach. Workers, 367 U.S. 396, 396 (1960)).

Reformed – In 2018, the Mississippi Supreme Court ended deference to agency interpretations of statutes by stating that deference is problematic “under Mississippi’s strict constitutional separation of powers.”¹King v. Mississippi Military Dep’t, 245 So. 3d 404, 407 (Miss. 2018).   Accordingly, they ended deference in order to “step fully into the role the[ir] Constitution…provides for the courts and the courts alone, to interpret statutes.”²Id.   The decision also implemented judicial review of all statutes anew.³Ballotpedia, “State responses.”   In 2020, the Court reaffirmed this decision in a case involving a state tax statute that required courts to defer to agency interpretations of unclear tax statutes.⁴HWCC-Tunica, Inc. v. Mississippi Dep’t of Revenue, 296 So. 3d 668 ¶¶ 33–34 (2020).   The Court held that any attempt by the legislature to require deference is unconstitutional in Mississippi because “interpreting statutes is reserved exclusively for courts.”⁵Id.   In 2021, the Court ended deference to agency interpretations of rules by proclaiming that “Deferring to agency interpretations of rules and regulations is inconsistent with the standard of review for statutory interpretation, causes confusion, causes inconsistencies in application and within our own caselaw, and violates article 1, section 2, of Mississippi’s Constitution.”⁶Miss. Methodist Hosp. & Rehab. Ctr., Inc. v. Miss. Div. of Medicaid, 319 So. 3d 1049, 1055 (2021).

Inconsistent – Missouri has a very convoluted standard for deference because the Missouri Supreme Court has gone back and forth on the standard.¹Ortner, “The End of Deference,” 56.   In 1990, the Court rejected deference, holding that “when an administrative agency’s decision is based on the agency’s interpretations of law, the reviewing court must exercise unrestricted, independent judgment and correct erroneous interpretations.”²Burlington N. R.R. v. Dir. of Revenue, 785 S.W.2d 272, 273 (1990).   However, in later cases, the Court has deferred to agency interpretations of rules and regulations unless they are unreasonable and plainly inconsistent with the act and will not overrule an agency interpretation except for weighty reasons.³Pen-Yan Inv., Inc. v. Boyd Kansas City, Inc., 952 S.W.2d 299, 303 (1997); State ex rel. Pub. Counsel v. Pub. Serv. Comm’n of State, 397 S.W.3d 441, 450 (2013).   Additionally, in more recent cases, the Court has held firm that they will also defer to an agency on all matters of fact in a contested case.⁴Hallam v. Mo. Dep’t of Soc. Servs., 564 S.W.3d 703, 707 (2018).

Inconsistent. Montana courts defer to agency interpretations that have stood for a substantial amount of time while also deferring to agencies’ statutory interpretations when the agency can provide sound reasoning for its interpretation.¹Ortner, “The End of Deference,” 39–40.   In a 2001 case, the Montana Supreme Court said that it only defers to interpretations that have “stood unchallenged for a considerable length of time.”²Montana Power Co. v. Montana Pub. Serv. Comm’n, 26 P.3d 91, 94 (2001).   However, the Court also noted that “reliance may nevertheless yield to a judicial determination that construction is nevertheless wrong, based on compelling indications.”³Id.   In a 2019 case, the Court further explained when to defer and not to defer by stating that “We defer to an agency’s interpretation of its rule unless it is plainly inconsistent with the spirit of the rule; however, neither this Court nor the district court must defer to an incorrect agency decision.”⁴Upper Missouri Waterkeeper v. Montana Dep’t of Envtl. Quality, 438 P.3d 792, 797 (2019).   Montana courts have not consistently applied these principles.⁵Ortner, “The End of Deference,” 39–40.

Reformed – Nebraska ended deference in March 2024 with LB 43.¹L.B. 43, 108th Leg., 1st Sess. (Neb. 2023).   The legislation forbids courts from deferring to agency statutory and rule interpretations and requires that the courts must consider the interpretations of statutes and rules anew without bias to executive agencies.²Ballotpedia, “State responses.”   The bill was inspired by legislation developed by Pacific Legal Foundation, the Goldwater Institute, and the Platte Institute.³Ballotpedia, “State responses.”

Inconsistent – Nevada courts have had an incredibly inconsistent approach to deference, with one Nevada judge labeling the approach a “Pandora’s box of complications” and one legal scholar declaring in a survey of deference practices in all 50 states that “the award for the most incoherent and incompatible body of precedent has to go to Nevada.”¹Vasquez v. State, 2020 Nev. App. Unpub. LEXIS 657, *24 (2020); Ortner, “The End of Deference,” 57.   Confusingly, some Nevada cases have rejected deference, whereas there are other cases that seem to fully embrace deference to agency statutory interpretations.²Ortner, “The End of Deference,” 57–58.   In 1992, the Nevada Supreme Court held that Nevada courts are “free to decide purely legal questions, however, without deference to the agency’s decision.”³Town of Eureka v. Office of State Eng’r of State of Nev., Div. of Water Res., 826 P.2d 948, 949 (1992).   On the other hand, the Court has said that “great deference should be given to the agency’s interpretation when it is within the language of the statute.”⁴Clark Cty. Sch. Dist. v. Local Gov’t Emp. Mgmt. Relations Bd., 530 P.2d 114, 117 (1974).   Furthermore, the Court has stated that agency interpretations are “persuasive” when they are “supported by substantial evidence” but that such interpretations are “not controlling” because Nevada courts consider review interpretations anew.⁵Pub. Emps. Ret. Bd. v. Smith, P.3d 560, 565 (2013).

Inconsistent – Like in the former federal standard, New Hampshire courts defer to both agency statutory and rule interpretations.¹Ortner, “The End of Deference,” 60.   Although New Hampshire courts are typically quite deferential, they sometimes push back against agency interpretations.²Ortner, “The End of Deference,” 60.   For example, in a 2003 New Hampshire Supreme Court case involving workers’ compensation, the Court did not defer to the agency’s interpretation against the worker’s compensation claim and instead awarded worker compensation based on statutory interpretation.³Ortner, “The End of Deference,” 60.   The Court expressed that statutory interpretations are “entitled to substantial deference” but that “the interpretation of a statute is to be decided ultimately” by the courts.⁴In re Weaver, 837 A.2d 294, 296 (2003).

Full Deference. New Jersey courts defer to agency interpretations of both statutes and rules.¹Ortner, “The End of Deference,” 72.   In 2019, the New Jersey Supreme Court explained that “judicial deference to administrative agencies stems from the recognition that agencies have the specialized expertise necessary to enact regulations dealing with technical matters and are ‘particularly well equipped to read and understand the massive documents and to evaluate the factual and technical issues that … rulemaking would invite.’”²J.H. v. R&M Tagliareni, LLC, 239 N.J. 198, 216, 216 A.3d 169, 179 (2019); See also In re Election Law Enf’t Comm’n Advisory Opinion No. 01-2008, 989 A.2d 1254, 1258 (2017).

Inconsistent. New Mexico’s courts generally defer when agencies present reasonable statutory interpretations.¹Ortner, “The End of Deference,” 36.   New Mexico’s courts are especially deferential in cases that involve very technical questions that they believe are beyond the ability of the courts to decide.²Ortner, “The End of Deference,” 36.   In 1995, the New Mexico Supreme Court declared that there is increased deference in cases involving “legal questions that ‘implicate special agency expertise or the determination of fundamental policies within the scope of the agency’s statutory function.’”³Morningstar Water Users Ass’n v. New Mexico Pub. Util. Comm’n, 904 P.2d 28, 32 (1995).   However, the Court also noted that courts “should reverse if the agency’s interpretation of a law is unreasonable or unlawful.”⁴Id.

Inconsistent. New York courts defer to agency statutory interpretations in cases invoking agency expertise.¹Ortner, “The End of Deference,” 72.   The courts do not defer in questions of pure statutory interpretation because “where the question is one of pure statutory reading and analysis, dependent only on accurate apprehension of legislative intent, there is little basis to rely on any special competence or expertise of the administrative agency.”²Claim of Gruber, 674 N.E.2d 1354, 1360 (1996).   Some judges have argued that the current deference standard is not deferential enough by claiming that deference is appropriate when the legislature leaves an “interpretative gap” in a statute.³Id.   On the other hand, in a 2019 decision, one justice spoke out against the courts tipping the scales in favor of agency interpretations by stating that “it would be an error of constitutional dimension for us to delegate our statutory construction role to any agency under the guise of deference.”⁴Wegmans Food Markets, Inc. v. Tax Appeals Tribunal of State, 131 N.E.3d 876, 888–890 (2019).

Inconsistent. In North Carolina, the courts defer when agencies provide a persuasive statutory interpretation.¹Ortner, “The End of Deference,” 71. In 2005, the North Carolina Court of Appeals walked through when North Carolina courts should defer to agencies: “Although the interpretation of a statute by an agency created to administer that statute is traditionally accorded some deference by appellate courts, those interpretations are not binding. ‘The weight of such [an interpretation] in a particular case will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.’”²Total Renal Care of N. Carolina, LLC v. N. Carolina Dep’t of Health & Human Servs., Div. of Facility Servs., Certificate of Need Section, 615 S.E.2d 81, 85 (2005).

Inconsistent. North Dakota’s courts typically defer to agencies in cases involving agency expertise or “reasonable interpretations.”¹Nat’l Parks Conservation Ass’n v. N. Dakota Dep’t of Envtl. Quality, 945 N.W.2d 318, 323 (2020); See also Ortner, “The End of Deference,” 37.   When statutory interpretation invokes agency expertise, the North Dakota Supreme Court has held that such interpretations are “entitled to ‘appreciable deference.’”²Nat’l Parks Conservation Ass’n, 945 N.W.2d at 323.   Unfortunately, this standard results in courts deferring in cases involving whether people may be able to practice medicine.³See generally N.D. State Bd. of Med. Exam’rs v. Hsu, 726 N.W.2d 216 (2007).   Regarding pure statutory interpretation questions, the Court stated in 2002 that “an administrative agency’s construction of a statute is accorded much less weight when the only issue to be resolved by a court is a nontechnical question of law.”⁴State ex rel. Clayburgh v. Am. W. Cmty. Promotions, Inc., 645 N.W.2d 196, 200 (2002).   However, the courts have not provided any clear standard for deferring in “nontechnical” cases.⁵Ortner, “The End of Deference,” 37; State ex rel. Clayburgh, 645 N.W.2d 196, 200 (2002).

Reformed – In 2022, the Ohio Supreme Court ended deference to agency statutory interpretations in a case involving the Ohio Board of Registration for Professional Engineers and Surveyors denying a small engineering company’s application to provide engineering services.¹Pacific Legal Foundation, “Supreme Court of Ohio rules that judges are not required to defer to agency interpretations of statute,” Pacificlegal.org, Pacific Legal Foundation, December 29, 2022, https://pacificlegal.org/case/twism-judicial-deference/.   The board denied the application on the basis that the company’s engineer was an independent contractor and not a full-time employee despite the fact that the licensing law does not mention the term “employee.”²Pacific Legal Foundation, “Supreme Court of Ohio.”   In the decision, Justice Pat DeWine wrote: “We reaffirm today that it is the role of the judiciary, not administrative agencies, to make the ultimate determination about what the law means.”³TWISM Enters., LLC v. State Bd. of Registration for Prof’l Eng’rs & Surveyors, 223 N.E.3d 371, 374 (2022).   The Ohio Supreme Court followed up on this decision in 2023 by ending the practice of courts deferring to agency interpretations of rules.⁴Ballotpedia, “State responses.”   Writing again for the majority, DeWine opined: “When a court defers to an agency’s interpretation of its own regulation, it allows the agency to assume the legislative power (the rule drafter), the judicial power (the rule interpreter), and the executive power (the rule enforcer). Doing so violates the fundamental precept that the power of lawmaking and law exposition should not be concentrated in the same hands.”⁵In re Alamo Solar I, LLC, 2023-Ohio-3778, P14 (2023).

Full Deference – In Oklahoma, the courts defer to both agency interpretations of statutes and rules.¹Ortner, “The End of Deference,” 72.   In fact, even before the Supreme Court established a federal standard for deferring to agency statutory interpretations, Oklahoma already had its own doctrine.²Martha Kinsella and Benjamin Lerude, “Judicial Deference to Agency Expertise in the States,” Statecourtreport.org, Brennan Center for Justice at NYU Law, June 28, 2024, https://statecourtreport.org/our-work/analysis-opinion/judicial-deference-agency-expertise-states.   One Oklahoma Court of Appeals decision in 1992 expressed skepticism about deferring to agencies, but that was an anomaly.³Ortner, “The End of Deference,” 4.

Inconsistent. When deciding whether to defer to agencies, Oregon courts consider whether the words in statutes are “exact,” “inexact,” or “delegative.”¹Ortner, “The End of Deference,” 33.   Because exact terms are to the point, agencies do not receive deference for their interpretations of statutes with such terms.²Ortner, “The End of Deference,” 33.   The courts also do not grant deference in cases involving inexact terms because they “express a complete legislative meaning but with less precision.”³Oregon Occupational Safety & Health Div. v. CBI Servs., Inc., 341 P.3d 701, 706 (2014).   The courts do however defer when confronted with delegative terms because, as the Oregon Supreme Court explained in a 2014 case, such terms “express incomplete legislative meaning that the agency is authorized to complete.”⁴Id.

Inconsistent. Traditionally, Pennsylvania courts have been very deferential to agency interpretations.¹Ortner, “The End of Deference,” 46.   In 1994, the Pennsylvania Supreme Court stated that it had “long held that the ‘contemporaneous construction of a statute by those charged with its execution and application, especially when it has long prevailed, is entitled to great weight and should not be disregarded or overturned except for cogent reasons and unless it is clear that such construction is erroneous.’”²lpha Auto Sales, Inc. v. Dep’t of State, Bureau of Prof’l & Occupational Affairs, 644 A.2d 153, 155 (1994).   This particular case involved the court deferring to a Pennsylvania Department of State ruling that placed a fine and suspended the used dealer’s license of an automobile dealer for selling cars as “used” that the board defined as “new.”³Id.   In the dissent, one justice attacked the majority for not properly applying “established principles of statutory construction” by simply deferring to the agency’s definition of “new.”⁴Id.   Channeling this dissatisfaction with deference, the Pennsylvania Supreme Court has begun to place at least some limitations on deference in recent years.⁵Ortner, “The End of Deference,” 47.   In a 2019 case, the Court affirmed itself as the final authority for statutory interpretation while also noting its respect for certain agency interpretations: “the principle of deference applies with greater force to longstanding agency interpretations, only when the language of a statute is ambiguous, and only within the range of agency authority and expertise. In all events, this Court has maintained its role as the final arbiter in matters of statutory construction.”⁶lpha Auto Sales, Inc., 644 A.2d at 155.

Inconsistent – Rhode Island courts have not been able to make up their mind on deference.¹Ortner, “The End of Deference,” 55.   Some decisions suggest that the courts defer to justifiable agency statutory interpretations.²Id.   In 2017, the Rhode Island Supreme Court declared that courts defer based “on the persuasiveness of the interpretation, given all the attendant circumstances.”³Mancini v. City of Providence, 155 A.3d 159, 167–168 (2017).   Confoundingly, in the following year, the Court seemed to change its mind by asserting that “It is well settled that Rhode Island courts accord great deference to an agency’s interpretation of its rules and regulations and its governing statutes, provided that the agency’s construction is neither clearly erroneous nor unauthorized.”⁴See Endoscopy Assocs., Inc. v. Rhode Island Dep’t of Health, 183 A.3d 528, 533–534 (2018).   Further muddying the waters, the Court followed these cases in 2020 by saying that it “always has the final say in construing a statute,” which is “especially true when we are ‘considering a pure question of law, which does not require special expertise beyond what the members of this Court possess.’”⁵Id.   As one administrative law scholar put it, “Rhode Island seems to be trapped in the contradiction of claiming to engage in de novo but also deferential review, and it isn’t clear how Rhode Island courts will navigable this quagmire.”⁶Ortner, “The End of Deference,” 55.

Full Deference. South Carolina judges defer to both agency statutory and rule interpretations.¹Ortner, “The End of Deference,” 48.   The South Carolina Supreme Court explained when it deferred in a 2014 case: “As repeatedly stated in our decisions, our deference doctrine provides that courts defer to an administrative agency’s interpretations with respect to the statutes entrusted to its administration or its own regulations unless there is a compelling reason to differ.”²Kiawah Dev. Partners, II v. S.C. Dep’t of Health & Envtl. Control, 766 S.E.2d 707, 718 (2014).   However, there is at least some skepticism about the doctrine in the South Carolina Supreme Court.³Ortner, “The End of Deference,” 48.   In the same 2014 case, former Supreme Court Justice Jean Toal expressed that “bureaucratic interpretations serve as a snare to judicial and administrative courts in their ability to review agency decisions using all constitutionally and statutorily conferred powers.”⁴Kiawah Dev. Partners, II, 766 S.E.2d at 718.

Inconsistent. South Dakota courts have declared that they do not defer while also issuing extremely deferential decisions.¹Ortner, “The End of Deference,” 55–56.   As one legal scholar put it, “South Dakota rarely defers to administrative agencies, except when it does.”²Ortner, “The End of Deference,” 56.   One 2015 decision from the South Dakota Supreme Court states: “Conclusions of law are given no deference. Questions of statutory interpretation are reviewed de novo.”³Midwest Railcar Repair, Inc. v. S. Dakota Dep’t of Revenue, 872 N.W.2d 79, 85 (2015).   Yet in a 2017 case involving a zoning law, the Court contradicted itself by saying that when considering the “meaning of a zoning ordinance, the courts will consider and give weight to the construction of the ordinance by those administering the ordinance. However, an administrative construction is not binding on the Court, which is free to overrule the construction if it is deemed to be wrong or erroneous.”⁵Croell Redi-Mix, Inc. v. Pennington Cty. Bd. of Commissioners, 905 N.W.2d 344, 350 (2017).  In the decision, the Court also seemingly embraced the former federal standard of deferring to agency interpretations of ambiguous statutes.⁴Ortner, “The End of Deference,” 56.   The Court has also ruled that “so long as the agency’s interpretation is a reasonable one, it must be upheld.”⁶Mulder v. S. Dakota Dep’t of Soc. Servs., 675 N.W.2d 212, 214 (2003).   Further complicating matters, there are cases that seem to imply that courts must defer “when the agency charged with its administration is given express statutory authority to interpret a statute necessary for its efficient administration.”⁷Matter of Change of Bed Category of Tieszen Mem’l Home, Inc., Marion, 343 N.W.2d 97, 98 (1984).

Reformed – In 2022, the Tennessee legislature ended deference by passing Senate Bill 2285.¹S.B. 2285, 112th Gen. Assemb., 2022 Reg. Sess. (Tenn. 2022).   The law mandates that courts must consider the interpretations of statutes and rules anew without bias to executive agencies.²Daniel Dew, “Tennessee Gov. Lee Signs Historic Bill Ending Wrongful Judicial Deference,” Pacificlegal.org, Pacific Legal Foundation, April 19, 2022, https://pacificlegal.org/tennessee-signs-bill-ending-judicial-deference/.   The law further requires that after conducting judicial review, courts must resolve any remaining ambiguities in the statute against government agencies.³Dew, “Tennessee Gov. Lee Signs Historic Bill.”   The bill was inspired by model legislation developed by Pacific Legal Foundation and the Goldwater Institute.⁴Ballotpedia, “State responses.”

Inconsistent –Texas courts “defer to the agency’s interpretation unless it is plainly erroneous or inconsistent with the language of the statute.”¹TGS–NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 438 (Tex. 2011).   Unfortunately, this leads to cases such as that of Hermenia Jenkins, who in 2011 found that despite her term contract as principal of a Houston school, the superintendent had demoted her to assistant principal and was moving her to a different school.²Jenkins v. Crosby Indep. Sch. Dist., 537 S.W.3d 142, 145 (2017).   She took the school to court and argued that her contract shielded her from this reassignment because the new job was not in the “same professional capacity” as a principal under the Texas Education Code.³Id.   The Texas Court of Appeals deferred to the school’s interpretation that “same” meant generally the same, not exactly the same.⁴Id.

Reformed – The Utah Supreme Court ended the practice of judicial deference in the state in the 2013 Murray v. Utah Labor Commission case.¹Murray v. Utah Labor Comm’n, 308 P.3d 461, 472 (2013).   The Court rejected deference on the basis that the courts can best handle matters of statutory interpretation because statutory interpretation “has a single ‘right’ answer in terms of the trajectory of the law.”²Id.   In a 2016 case, the Court rejected deference to agency rule interpretations on the basis that deferring to such interpretations “would place the power to write the law and the power to authoritatively interpret it into the same hands.”³Ellis-Hall Consultants v. Pub. Serv. Comm’n, 379 P.3d 1270, 1275 (2016).   However, Utah courts still practice deference to agency fact-finding based on whether the “question presented is more fact-like or more law-like.”⁴Nielsen v. Labor Comm’n, 456 P.3d 1167, 1170 (2020).   In such cases, the courts will not defer to an agency’s fact-finding determination “if it is not supported by substantial evidence.”⁵Id.   Utah courts have defined the “substantial evidence” threshold by stating that a “finding is supported by substantial evidence when a reasonable mind might accept as adequate the evidence supporting the decision.”⁶Id.

Inconsistent – Vermont courts defer to both agency interpretations of statutes and rules.¹Ortner, “The End of Deference,” 61.   Vermont courts are generous in their deference to agency rule interpretations and have declared that such interpretations “may be overcome only by compelling indications of error.”²In re Musto Wastewater Sys., 106 A.3d 929, 934 (2014).   Vermont courts are more hesitant to defer to agency statutory interpretations and only do so in certain instances.³Ortner, “The End of Deference,” 61.  In 2018, the Vermont Supreme Court outlined that Vermont courts should defer to agency statutory interpretations when statutes authorize agencies to interpret, when interpreting the statute is difficult, or when the interpretation involves an area of agency expertise.⁴In re Korrow Real Estate, LLC Act 250 Permit Amendment Application, 187 A.3d 1125, 1132 (2018).

Inconsistent. Virginia courts distinguish between deference and giving agency interpretations “weight.”¹Ortner, “The End of Deference,” 24.   In 2015, the Virginia Supreme Court characterized deference as “acquiescence to an agency’s position without stringent, independent evaluation of the issue.”²Nielsen Co. (US), LLC v. Cty. Bd. of Arlington Cty., 767 S.E.2d 1, 4 (2015).   In a 2018 case, the Virginia Supreme Court further stated that it would “not defer to an agency’s construction of a statute because the interpretation of statutory language always falls within a court’s judicial expertise.”³Jones v. Commonwealth ex rel. Von Moll, 814 S.E.2d 192, 194 (2018).   The Court has described “weight” as the “degree of consideration a court will give an agency’s position in the course of the Court’s wholly independent assessment of an issue.”⁴Nielsen Co. (US), LLC, 767 S.E.2d at 4.   The Virginia Supreme Court has declared that agency interpretations involving an agency’s “specialized competence” must be granted “great weight.”⁵Jones, 814 S.E.2d at 194.

Inconsistent – Washington courts defer in cases involving agency expertise.¹Ortner, “The End of Deference,” 36.   The Washington Supreme Court has stated that “where a statute is within the agency’s special expertise, the agency’s interpretation is accorded great weight, provided that the statute is ambiguous.”²Postema v. Pollution Control Hearings Bd., 11 P.3d 726, 733 (2000).   In a case involving water quality standards and the state’s Pollution Control Hearings Board, the Court has explained that “Because the legislature entrusted Ecology with administration of water quality standards, we conclude, in accordance with our prior case law, that we must give great weight to Ecology’s interpretation of the laws that it administers.”³Port of Seattle v. Pollution Control Hearings Bd., 90 P.3d 659, 672 (2004).   Interestingly, in that same case, the court added: “This court interprets the meaning of statutes de novo; we may substitute our interpretation of the law for that of the agency.”⁴Id.

Inconsistent – West Virginia courts have traditionally been very deferential to agency interpretations of legislative rules, which the West Virginia Supreme Court has defined as rules “affecting private rights, privileges or interests” of West Virginians.¹Appalachian Power Co. v. State Tax Dep’t of W. Virginia, 466 S.E.2d 424, 432–433 (1995).   Legislative rules go through a unique process in West Virginia, as all proposed legislative rules are reviewed by the legislature’s “Legislative Rule-Making Review Committee.”²W. Va. Code § 29A-3-10.   The committee makes recommendations about the rules to the legislature, which can then approve or strike down the proposed rules.³W. Va. Code § 29A-3-11; W. Va. Code § 29A-3-12.   Ortner explains that this process makes West Virginia unique, as “the body being deferred to is actually the West Virginia legislature rather than the executive.”⁴Ortner, “The End of Deference,” 25.   Indeed, the state’s Supreme Court has explained that “Being an act of the West Virginia Legislative,” a legislative rule “is entitled to more than mere deference; it is entitled to controlling weight. As authorized by legislation, a legislative rule should be ignored only if the agency has exceeded its constitutional or statutory authority or it is arbitrary or capricious.”⁵Appalachian Power Co., 466 S.E.2d at 432–433.   On the other hand, West Virginia courts have been less deferential to “interpretative rules,” which the West Virginia Supreme Court has said “do not create rights but merely clarify an existing statute or regulation.”⁶Id.   Regarding these rules, the Court has stated that “Although they are entitled to some deference from the courts, interpretive rules do not have the force of law nor are they irrevocably binding on the agency or the Court. They are entitled on judicial review only to the weight that their inherent persuasiveness commands.”⁷Id.   West Virginia courts do not defer to agency litigation position interpretations.⁸Virginia Health Care Cost Review Auth. v. Boone Mem’l Hosp., 472 S.E.2d 411, 419 (1996).

Reformed – Wisconsin has both judicially and legislatively rejected deference.¹Ballotpedia, “State responses.”   In 2018, the Wisconsin Supreme Court ended deference in their state with the caveat that pursuant to Wis. Stat. § 227.57(10), the Court will still give due weight to “the experience, technical competence, and specialized competence of an administrative agency.”²Id.   In December of 2018, the Wisconsin legislature codified this decision.³Ballotpedia, “State responses.”   This reform means that there will be no more decisions such as Xerox Corp. v. Wisconsin Dept. of Revenue, a 2001 case where based on deference to the Wisconsin Department of Revenue, the Wisconsin Supreme Court allowed the agency to levy a property tax on printers.⁴Duncan Schroeder, “How can courts fulfill their duty to interpret the law? Stop ceding their power to unelected bureaucrats,” Pacificlegal.org, Pacific Legal Foundation, January 12, 2022, https://pacificlegal.org/how-can-courts-fulfill-their-duty-to-interpret-the-law-stop-ceding-their-power-to-unelected-bureaucrats/.

Inconsistent – Wyoming courts generally do not defer to agency interpretations.¹Ortner, “The End of Deference,” 53.   Ortner found that between 1998 and October 2020, there were 47 decisions in which the Wyoming Supreme Court declared that it “do[es] not afford any deference to the agency’s determination of the meaning of a law.”²Id. (quoting Camacho v. State ex rel. Dep’t of Workforce Servs., Workers’ Comp. Div., 2019 WY 92, 448 P.3d 834 (2019); Wright v. State ex rel. Wyoming Workers’ Safety & Comp. Div., 952 P.2d 209 (1998)).   However, multiple cases within that same timeframe also suggested that some deference is due in matters of statutory interpretation.³Ortner, “The End of Deference,” 53.   For example, in 2009, the Court stated that “while [they] generally defer to an agency’s interpretation of the statutes it administers, an agency’s statutory interpretation is entitled to little when it is contrary to prior practice and precedent.”⁴Exxon Mobil Corp. v. State, Dep’t of Revenue, 219 P.3d 128, 140 (2009).   Then, in 2013, the Court asserted that “one measure of a statute’s meaning is the interpretation placed on it by the agency charged with its administration” and that the Court “will defer to that interpretation when it does not conflict with legislative intent.”⁵Pub. Serv. Comm’n of Wyoming v. Qwest Corp., 299 P.3d 1176, 1182 (2013).