Kentucky courts would not be allowed to automatically defer to a government agency’s expertise when addressing ambiguities in state law under a bill that passed a House committee Wednesday.
It’s based on a federal court ruling last year that overturned a decades-old judicial doctrine. Some judicial experts question if the bill oversteps constitutional boundaries between the legislative and judicial branches of government.
Senate Bill 84 passed through committee on a party line vote. The bill has already passed through the state Senate, and is now waiting on approval from the full state House.
The bill seeks to assert into Kentucky courts a 2024 ruling that overturned federal “Chevron deference,” a judicial doctrine set out by the Supreme Court in 1984 that held the court should defer to the agency’s interpretation of the law, as long as that answer is not unreasonable and Congress had not spoken on that exact issue. The ruling was specific to federal law, but Rawling’s bill would apply the same logic to state judicial decisions.
The bill’s sponsor GOP Sen. Steve Rawlings from Burlington said in the committee hearing that his legislation reaffirms, rather than violates, the separation of powers between government branches.
“By limiting agency overreach, we are reaffirming the constitutional separation of powers and protecting the rights of Kentuckians,” Rawlings said. “The repudiation of Chevron deference stabilizes state law and ends this arbitrary and undemocratic scheme”
Rep. Nima Kulkarni, a Louisville Democrat, voted against the bill, saying she believes the legislation is “dangerous.”
“We may all think we know exactly what is going on in a specific regulation or statute, but that does not mean that we have the technical expertise or the subject matter expertise to actually justify that feeling of empowerment,” Kulkarni said.
The key difference is that the Supreme Court overturned its own judicial doctrine, versus legislators attempting to assert themselves into judicial review, says Jonathan Shaub, professors of law and public policy at the University of Kentucky. Shaub said it's not necessarily settled in case law how far legislatures can go in that direction.
“It's dictating the way that the court should approach [agency decision] and the deference it should give, but it raises a lot of separation of powers concerns,” Shaub said. “These doctrines about deference and how you should decide a particular case go in many ways to the heart of the judicial role.”
Shaub said there is a great deal of trickle down from federal rulings into state judicial doctrine, but that those decisions are generally left up to the courts. He said it is very possible state courts would, on their own, adopt the Supreme Court’s recent take on agency deference. If the bill does pass, he said state courts may feel compelled to assert their independence.
“But if they're worried about this sort of legislative incursion into judicial power, then they might take it on and decide whether or not this is permissible,” Shaub said.
Kentucky courts have previously deferred to administrative agencies in cases of ambiguity. According to State Court Report, about half of all states “employ robust deference” to agency interpretations. In a 2017 case, the Kentucky Supreme Court stated that courts defer to an agency’s interpretation so long as it is consistent with state laws and regulations. The bill would appear to be at odds with this existing Kentucky judicial precedent.
The legislation itself names two Supreme Court cases it says show such deference, stating “the General Assembly does not create state agencies with an expectation that those agencies will possess a proficiency in interpreting a statute that is superior to that of the Court of Justice.”
Michael Abate, a constitutional lawyer in Kentucky, said he believes the bill is very likely unconstitutional on its face. He said there is a long history of Kentucky courts ensuring and defending their independence from intrusion from other branches of government.
“The legislature can't tell the court how to analyze statutes and how to conduct judicial review,” Abate said. “It strikes me as a pretty clear invasion of the separation of powers, and the courts’ ability to declare what the law means.”
Abate said the way to avoid the judiciary deferring to agencies, is to remove ambiguities from state law.
“It only happened when the court found that a law was not clear on its face. If the law is clear on its face that answers it,” Abate said.
State government and politics reporting is supported in part by the Corporation for Public Broadcasting.
