The Tennessean: Tennessee will end government agency favor in courts with new judicial bias law

April 11, 2022 | By ALISON SOMIN

The Tennessee legislature recently struck a blow for the individual freedoms of Tennesseans by approving SB2285, which Governor Lee is expected to sign.

Though Governor Lee has admirably scaled back bureaucracy on many fronts, Tennesseans still must deal with government agencies from time to time. In these interactions, sometimes the individual and the government agency will disagree on what a law means.

When that happens, they should get a fair hearing from an unbiased judge who will consider both the citizen’s and the government’s interpretation of the law and determine which is the better interpretation.

But all too often, that’s not what happens.

What is judicial deference?

Tennessee courts exercise what is called judicial deference to the government agency, choosing the government’s interpretation of an unclear law over the individual’s even when the individual’s would make more sense. That amounts to the court putting a thumb — or in some cases, an anvil — on the scale for the government.

Judicial deference is sometimes defended on the grounds that agencies have more specialized expertise than generalist judges. But judges routinely show deference in non-technical contexts, where it is far from clear that the agency has more expertise than the judge.

Judicial deference erodes the adversarial system of adjudication that is central to our legal tradition. When showing deference, judges abdicate their duty to say what the law is. They also fail to render independent, impartial judgments if they are putting weight on the scale in favor of the government.

It should come as no surprise that agencies tend to favor interpretations of unclear statutes that expand the agency’s power. Judicial deference entrenches government power and encourages growth in the size and scope of government.

11 states have prohibited judicial deference entirely, and 20 others prohibit some forms of it or have judicial opinions questioning it. Still others are considering legislation similar to SB2285.

Tennessee courts have been inconsistent in their application of deference.

Enacting SB2285 will ensure that the courts take the same approach across cases and protect individual liberty and property rights.

SB2285 also requires that “After applying all customary tools of interpretation, the court shall resolve any remaining ambiguity against increased agency authority.” This provision is an important safeguard that protects individual liberty. It resembles the well-established rule of lenity in criminal statutory interpretation that requires courts, when interpreting any unclear law, to adopt the interpretation most favorable to a criminal defendant.

The principle undergirding the rule of lenity is that it is fundamentally unfair to punish a person for conduct unless it is clear that their actions were illegal when committed.

Less is at stake in civil proceedings but the basic principle is the same: it is wrong for agencies to punish conduct when the individual lacked clear notice that their behavior violated the law.

By ending judicial deference to state agencies, Tennessee is taking an important step toward ending systematic bias favoring government agencies that work against private individuals and toward protecting the individual’s right to a fair day in court.

This op-ed was originally published by The Tennessean on April 11, 2022.