March 9, 2007
Interesting Chevron Deference Type Case Splits Wisconsin Supreme Court
In Wisconsin Dept. of Revenue v. River City Refuse, Inc., ___ N.W.2d __ (Wis. 2007), the Wisconsin Supreme Court disagreed on a question fundamental to Chevron deference: does a court look at the statute, first, and decide whether it's ambiguous, and if it's not, not even look at the agency's interpretation (treating it as an extrinsic source) or, instead, considering the question of deference to the interpretation first.
The majority held that if the statute was unambiguous, then the agency interpretation was irrelevant, "plain meaning" controlled, and the agency's interpretation was an "extrinsic source" that was irrelevant. A dissenting judge reasoned:
The majority opinion explains its approach as follows:"As a point of emphasis, the court will review the § 77.60(3) issue de novo because the statute lacks ambiguity. We will give the Commission's interpretation of § 77.60(3) no deference because of the lack of ambiguity, not because the Commissionlacks experience or has previously been inconsistent." Majority op., ¶35 n.6.
I believe this approach to deference to an agency's interpretation of a statute is problematic.
Traditionally, this court has not considered, as a threshold inquiry, whether a statute is ambiguous before examining whether to accord deference to an agency's statutory interpretation.
The court instead has stated that it decides questions of law but under some circumstances may accord deference to an agency's interpretation.
Rather than analyzing such questions as the experience an agency has with a certain statute, its specialized knowledge in a field, and whether it has been specially charged by the legislature to administer the statute to determine whether a certain level of deference should be afforded to an agency's interpretation, the majority opinion today allows courts to bypass this analysis by simply declaring the statute "unambiguous" and offering the court's interpretation of the statute. Whether deference is given to an agency's statutory interpretation should not fall prey to the easily manipulated test of "ambiguity."
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