Top NC court rejects deference in case of fired DOT worker

The North Carolina Supreme Court clearly rejected one form of judicial deference Friday in the case of a fired state Department of Transportation worker. In a 5-2 decision, justices instructed courts not to bow to a government agency’s interpretation of state law when deciding a case.

It’s not clear whether the decision will help plaintiff Thurman Savage regain his job. The high court sent the case back to the North Carolina Court of Appeals for further action.

“At its heart, this case presents a rather straightforward question of statutory interpretation,” Justice Richard Dietz wrote for the court’s majority. “Before we get there, however, we first must address who decides that question.”

“Several decades ago, parroting federal law, the Court of Appeals held it ‘a tenet of statutory construction that a reviewing court should defer to the agency’s interpretation of a statute it administers so long as the agency’s interpretation is reasonable and based on a permissible construction of the statute,’” Dietz added. He cited a 1998 state Appeals Court decision.

“We never approved this interpretive rule and it directly conflicts with our own precedent requiring courts to review questions of law de novo,” Dietz wrote.

In a “de novo” review, a court “considers the matter anew” and does not accept the judgment of a lower court or agency.

“Accordingly, we expressly disavow any rule requiring courts to defer to an agency’s interpretation of a statute, overrule any previous Court of Appeals case law to the contrary, and instruct all lower courts to apply traditional de novo review to the interpretation of state statutes,” Dietz wrote.

Savage argued to the state Supreme Court against judicial deference. His lawyers cited the US Supreme Court’s 2024 ruling in Loper Bright Enterprises v. Raimondo. That case ended so-called “Chevron” deference at the federal level.

“We are not persuaded that the Court of Appeals in this case engaged in the sort of deference Savage describes,” Dietz wrote. “But we agree with Savage that there is quite a bit of confusion on this issue at the Court of Appeals. We therefore take this opportunity to clarify the law.”

Dietz emphasized the importance of the “de novo” review. “This is not to say that a lower court’s reasoning is worthless; to the contrary, it will often be instructive,” he wrote. “The point is that, under de novo review, the reviewing court is never bound by a lower court’s interpretation of the law.”

“The same is true when a court is reviewing a state agency’s interpretation of a statute,” Dietz added. “Under de novo review, the reviewing court must ‘consider a question anew, as if not considered or decided by the agency previously … and cannot defer to the agency its duty to do so.’”

“This ‘de novo’ standard of review makes particular sense when reviewing an executive-branch agency’s interpretations of a statute,” Dietz wrote. “This Court has long held that a core part of state judicial power is the authority to say what the law is. Thus, it ‘is the exclusive right of the judiciary’ to interpret laws enacted by the General Assembly and ‘neither the executive nor the legislative department has any such power.’”

“In light of this longstanding ‘de novo’ approach to statutory interpretation, it is quite bizarre to imagine North Carolina law compelling courts to adopt the legal interpretation of executive-branch agencies,” the majority opinion added. “But over the past few decades, this notion has quietly crept into the Court of Appeals jurisprudence.”

Dietz specifically rejected the idea that the federal “Chevron” deference thrown out in the Loper Bright case ever had a place in North Carolina law.

“When this Court speaks of affording ‘due consideration’ or ‘great weight’ or any other form of ‘deference’ to the interpretation of state agencies or lower courts, this means only that we will consider and respect their reasoning,” he wrote. “After all, the view of others tasked with interpreting the law always can inform our judgment. What it cannot do is control our judgment.”

DOT fired Savage after he admitted to recertifying five North Carolina school bus drivers without performing “required ride-along observations,” Dietz explained. Friday’s decision does not guarantee an eventual legal win for Savage. The state Appeals Court must address other arguments for his dismissal that were not addressed in the appeal.

Justice Tamara Barringer wrote a separate concurring opinion “to underscore the indispensable function the judiciary serves in our constitutional framework — one that is incompatible with the doctrine of agency deference.”

“Since its inception, the judiciary has been charged with interpreting the law,” Barringer wrote. “Indeed, ‘[i]t is emphatically the province and duty of the judicial department to say what the law is.’ Deference to either the executive department or the legislative department violates this time-honored aphorism.”

“Grounded in this fundamental canon, I take this opportunity to strongly endorse this Court’s disavowal of the agency deference doctrine; it has no place in the independent decision-making authority of the judiciary,” Barringer added.

The court’s Republican justices all endorsed the majority opinion. The two Democrats agreed with a portion of the ruling. The court agreed unanimously that a particular state law did not mandate Savage’s firing.

Yet Justice Anita Earls used a partial dissent to respond to the majority’s stance on deference. “This potentially is a glass half-full, glass half-empty debate, but I think it important for the judicial branch to have appropriate respect for the work of administrative agencies, while still exercising its ‘role “to say what the law is,”’” Earls wrote.

“While ‘[d]e novo review does not blind us to context or demand unquestioned deference to an agency’s views,’ we also should not completely disregard agency expertise,” Earls explained. “The appropriate balance is struck when we weigh the ‘thoroughness evident in [the agency’s] consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.’”

Earls also disagreed with the decision to send the case back to the Appeals Court. “It is unfair to the parties to continue to drag out this litigation,” She wrote. “We have all the same facts in the record as will be before the Court of Appeals, and we are perfectly able to resolve that question in this case. We should do so.”

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