The Demise of Agency Deference: Florida Takes the Lead.

Author:Shepherd, Frank
 
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The year 2018 was a banner year for amendments to the Florida Constitution. Twelve proposed amendments appeared on the general election ballot in November 2018, (1) and all but one obtained the 60% passage rate required by the Florida Constitution. (2) Seven were proposed by a 37-member Florida Constitution Revision Commission, which convenes by constitutional command every 20 years and has plenary authority to submit proposals to amend the constitution directly to the voters. (3)

One of the more obscure, but most significant amendments proposed by the commission and approved by the voters, was an amendment to prohibit all Florida state court justices, judges, and administrative law judges from deferring to administrative agencies in the interpretation of the statutes and rules they are charged to administer. (4) At the federal level, this concept is commonly known as "Chevron deference." The federal doctrine originates from the landmark 1984 case of Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), which held that a court and agency must give effect to the expressed intent of Congress when analyzing an unambiguous statute. (5) If, however, the statute is unclear, the court's determination is limited to whether the agency's interpretation of the statute is based on a permissible construction of the statute. (6) Until abolished by the voters in the last general election, the Florida analog to "Chevron deference" was known simply as "agency deference."

The Florida prohibition of agency deference applies at every level of the courts of the state and to every officer who hears an administrative action under general law, prominently including actions arising under the Florida Administrative Procedure Act. (7) It appears in a new Fla. Const. art. V, [section] 21, and reads as follows:

In interpreting a state statute or rule, a state court or an officer hearing an administrative action pursuant to general law may not defer to an administrative agency's interpretation of such statute or rule, and must instead interpret such statute or rule de novo.

Although Chevron remains the law at the federal level, at least for now, there is a national insurgency, including among several members of the U.S. Supreme Court, directed to abandoning the practice of deferring to an agency's interpretation of the statutes and rules it is charged with administering. Florida is leading the way in the movement to abandon the practice with the passage of art. V, [section] 21, by the voters in the last general election. This article describes how Florida became a leading force in the movement.

The Rise of Agency Deference in Florida

In Florida, agency deference first appeared in the 1941 case of Lee v. Gulf Oil Corp., 4 So. 2d 868, 870 (Fla. 1941), where the Florida Supreme Court wrote, "[w]e recognize the rule to be too well settled to require citation of authorities that administrative and departmental constructions of statutes, the duty of enforcement of which rests upon such departmental or administrative office, is persuasive but it is not controlling." Although the court stated as much, no reported authority in Florida supported the contention that courts employed agency deference in Florida before Lee.

Eight years later, in City of St. Petersburg v. Carter, 39 So. 2d 804, 806 (Fla. 1949), the Florida Supreme Court held that "[t]he construction placed actually or by conduct upon a statute by an administrative board or commission is, of course, not binding upon the courts. However, it is often persuasive and great weight should be given it." Although the Florida Supreme Court's pre-1950 dispositions teased the idea of agency deference, the court did not fully endorse the concept until the 1952 decision of Gay v. Canada Dry Bottling Co. of Florida, 59 So. 2d 788, 790 (Fla. 1952):

Although not necessarily controlling, as where made without the authority of or repugnant to the provisions of a statute, the contemporaneous administrative construction of the enactment by those charged with its enforcement and interpretation is entitled to great weight, and courts generally will not depart from such construction unless it is clearly erroneous or unauthorized. (8)

Thereafter, the doctrine idled through the 1950s, with only six cases considering its application: three applied Gay's clearly erroneous standard, (9) while the other three appeared to be persuaded by the agency's interpretation, but did not outright employ or endorse the clearly erroneous standard. (10) The doctrine's slow unfurling continued through the 1960s (11) and 1970s, (12) where it was applied four and five times, respectively.

The 1980s brought an outbreak of cases that applied the agency deference doctrine after Chevron was decided. In fact, Florida courts repeatedly clung to it, as its use more than tripled from the 1970s to the 1980s with more than 20 (13) reported appellate decisions. The trend continued in the 1990s with greater than 45 (14) reported appellate decisions applying agency deference, and it showed no signs of stopping with nearly 100 (15) reported appellate decisions since 2000. Time and time again, the agency's interpretation of a statute or rule was affirmed in its favor. (16)

The advent of the agency deference doctrine in Florida mirrored its federal counterpart, but its effect on Florida decisions was far more draconian. Unlike at the federal level, Florida courts paid little, if any, attention to whether an agency interpretation claiming deference was promulgated in accordance with the agency's rulemaking authority. In addition, deference was routinely given to any interpretation that was not clearly erroneous. (17) The "clearly erroneous" standard is a higher burden than the "preponderance of the evidence" standard and even more arduous than the "clear and convincing" standard that litigants must satisfy to overturn judicial fact finding. (18) It sits just below the "beyond a reasonable doubt" standard, the hallmark burden of proof needed to sustain a criminal conviction. As Chevron deference began to reach an apogee in federal courts, deference to agency interpretations of statutes and rules was seemingly unassailable in Florida.

Mounting Criticism

Supreme Court observers and academics have found no evidence from what is known about the internal deliberations of the Court that any of the participating justices viewed Chevron as a decision of significance at the time. (19) As the Chevron decision itself recognized, agency deference at the federal level existed before Chevron. (20) Nor, according to at least one scholar who knew Justice John Paul Stevens, is there any evidence that Justice Stevens himself, the author of the opinion, regarded Chevron as having inaugurated any change in the way courts were to approach agency interpretation. (21) Nevertheless...

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