GEORGIA JUDICIAL DEFERENCE TO EXECUTIVE BRANCH AGENCY LEGAL INTERPRETATIONS.

• Author: Peterson, Nels S.D.

INTRODUCTION

As with many legal subjects, it may be tempting to think of "administrative law" only in terms of federal law. (1) But because state law often differs from federal law in important ways, (2) and because state agencies often escape federal oversight, (3) state administrative law merits consideration. In Georgia, recent appellate decisions may indicate increasing skepticism of judicial deference to executive branch agency legal interpretations. But rather than changing course on deference, the principal impact of these decisions so far has been to reaffirm that deference is permissible only after a court has exhausted all interpretive tools and still found a legal text ambiguous. (4) This renewed high bar for finding ambiguity may lower the stakes of future deference debates; deference that applies only rarely is deference that matters less. (5)

1. GEORGIA-SPECIFIC CONSTITUTIONAL INTERPRETIVE PRINCIPLES INFORM ENGAGEMENT WITH AGENCY DEFERENCE.

   Unlike the United States Constitution, the Georgia Constitution has an explicit Separation of Powers provision. (6) This provision is implicated when we consider whether the judiciary should defer to executive agency legal interpretations. (7) For this reason, we must begin with a brief summary of Georgia-specific constitutional considerations.

   Unlike the United States, Georgia has had multiple constitutions, (8) adopting the current one only four decades ago. (9) Many provisions of the current constitution existed in materially equivalent form in previous constitutions, (10) and this has interpretive implications for the original public meaning of those provisions. Two presumptions are particularly significant. First, Georgia courts presume that a provision that was carried forward from a previous constitution into the 1983 Constitution without material change carries with it the same original public meaning the provision had when it first entered a Georgia constitution. (11) And second, Georgia courts presume that a provision that was carried forward from a previous constitution into the 1983 Constitution without material change carries with it any definitive and consistent construction that the Georgia Supreme Court has afforded it. (12) Both of these presumptions are rebuttable and may sometimes operate in tension with each other. (13)

   A Separation of Powers provision first entered a Georgia constitution in the Constitution of 1777, (14) has been in every constitution since then except for one, (15) and the current language has been unchanged since 1877. (16) The original meaning of that provision as it appears in the 1983 Constitution, therefore, is informed by legal context (including prior similar provisions (17)), the original meaning of its 1877 predecessor, and by whatever consistent and definitive constructions the Georgia Supreme Court handed down between 1877 and 1983.

   Also relevant may be a provision in the 1983 Georgia Constitution that vests the judicial power in state courts. (18) The initial sentence of this paragraph vests the judicial power "exclusively" in the "magistrate courts, probate courts, juvenile courts, state courts, superior courts, state-wide business court, Court of Appeals, and Supreme Court." (19) Four sentences later, the Constitution goes on to provide that, "[i]n addition, the General Assembly ... may authorize administrative agencies to exercise quasi-judicial powers." (20) While this language may appear permissive, the Georgia Supreme Court has pointed out that it actually is more restrictive than a previous version, (21) which vested the judicial powers in the various classes of courts and in "such other courts as have been or may be established by law." (22) And the Supreme Court has held that the "quasi-judicial power" that the General Assembly may vest in administrative agencies is essentially just the power to decide a particular contested matter after a hearing with certain procedural requirements; (23) in other words, a power inferior to the judicial power vested exclusively in the courts. (24) The Georgia Supreme Court has not cited the judicial vesting provision as support for deference; (25) in fact, it has explicitly rejected an argument that this language authorizes conferring judicial power on administrative agencies. (26)

2. JUDICIAL DEFERENCE UNDER GEORGIA'S CONSTITUTION.

   Some forms of judicial deference to agency interpretations may be consistent with the original meaning of the 1983 Constitution, but others that more closely resemble federal approaches to deference have recently been the subject of question.

   1. Georgia courts have a long tradition of affording some deference to agency statutory construction.

      Deference to executive branch legal interpretations has a long history in Georgia, but the nature of the deference afforded has been inconsistent. It was not until 2014 that Georgia Supreme Court precedent made explicit that Georgia courts apply Chevron (27)-style deference to agencies' interpretations of statutes that the agency is charged with administering. (28) The court's recent articulation of the Georgia version of Chevron goes like this:

      [I]t usually is for the courts to resolve [statutory] ambiguity by ascertaining the most natural and reasonable understanding of the text. But when it appears that the General Assembly has committed the resolution of such an ambiguity to the discretion and expertise of an agency of the Executive Branch that is charged with the administration of the statute, the usual rule may not apply. In those instances, the courts must defer to the way in which the agency has resolved the ambiguity in question, so long as the agency has resolved the ambiguity in the proper exercise of its lawful discretion, and so long as the agency has resolved it upon terms that are reasonable in light of the statutory text. (29) This rule that courts must defer to a reasonable agency interpretation of ambiguous statutory text makes failure to do so reversible error. (30)

      Taken literally, the court's articulation of this rule suggests that a statute that has one most natural and reasonable understanding may nevertheless still be considered ambiguous if an inferior (but still reasonable) interpretation exists. Not only that, this articulation also suggests that if an agency charged with administering the statute adopts the inferior interpretation, it is reversible error for a court to refuse to adopt that inferior...