Un-bowing to Deference: Where We’re At, and Might Be Going, on Judicial Deference to Agencies in Matters of Statutory and Regulatory Interpretation By Joshua C. Ashley
L
ast spring, the Arkansas Supreme Court clarified decades of seemingly conflicting precedent on when Arkansas’ judicial branch should defer to the executive branch on the legal meaning of a statute. No longer would an administrative agency’s view of a statute be given “great deference.” No longer would it be judicially embraced unless it was “clearly wrong.” An agency’s interpretation of a statute would now be reviewed afresh, under a de novo standard of review.1 And when the agency’s view comes into play at all (such as when the statute is ambiguous), it will operate as one of many interpretive tools—a light on the text, but not the sun. This article briefly sketches the antecedents of the rule announced in Myers v. Yamoto Kogyo Co., and then offers a few thoughts about its implications and where things might go from here.
First, antecedents. It’s difficult—perhaps impossible—to isolate the seed of agency deference in Arkansas law. By 1926 a lean shoot had appeared, when the Supreme Court said that the federal Land Department’s interpretation of homestead laws was “at least highly persuasive,” though not controlling.2 That case, Moore v. Tillman, got picked up by a treatise (Crawford’s Construction of Statutes), and, on that current, blew into a 1942 case called Walnut Grove School District No. 6 v. County Board of Education, which is perhaps the earliest full treatment of deference in a majority opinion:
Joshua C. Ashley is a partner at Friday, Eldredge & Clark, LLP. His practice focuses on commercial litigation and appeals. 10
The Arkansas Lawyer
This administrative interpretation of the legislation is not, of course, conclusive; but it is not to be disregarded. At section 219 of Crawford’s Interpretation of Laws it is said that “As a general rule executive and administrative officers will be called upon to interpret certain statutes long before the courts may have an occasion to construe them. Inasmuch as the interpretation of statutes is a judicial function, naturally the www.arkbar.com
construction placed upon a statute by an executive or administrative official will not be binding upon the court. Yet where a certain contemporaneous construction has been placed upon an ambiguous statute by the executive or administrative officers, who are charged with executing the statute and especially if such construction has been observed and acted upon for a long period of time, and generally or uniformly acquiesced in, it will not be disregarded by the courts, except for the most satisfactory, cogent or impelling reasons. In other words, the administrative construction generally should be clearly wrong before it is overturned. Such a construction, commonly referred to as practical construction, although not controlling, is nevertheless entitled to considerable weight. It is highly persuasive.” Among the numerous cases cited in support of this statement of the law is our own case of Moore v. Tillman, 170 Ark. 895, 282 S.W. 9.3
