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."
March 7, 2007
Virginia Court Splits: Textualism versus Purposivism Dispositive
In Travelers Property Casualty Co. of Am. v. Ely, 640 S.E.2d 520 (Va. App. 2007), an employer failed to pay a premium to renew its workers' compensation insurance. A statute provided that notice to the Workers' Compensation Commission had to be given notice if the policy was "cancelled or non-renewed by the insurer issuing such policy..." Va. Code 65.2-804(B). The carrier didn't provide any notice, and then a worker was injured. The carrier declined coverage, but the Workers' Compensation Commission ordered coverage be allowed.
The Carrier appealed. The Court of Appeals split. The majority relied on the purpose of the statute, holding that even though the renewal was due to the insured's failure to pay, the renewal was "by the insurer" and so, because notice had not been provided, coverage persisted. In part relying on in pari materia and context from amendments, the majority held that "non-renewed by eh insurer" included all non-renewals, not just insurer-initiated non-renewals. It rejected the carrier's interpretation as failing "to acknowledge the purpose of the notice provisions."
In contrast, the dissent concluded that the statute meant what it said: "An insurer must notify the employer and commission only whent he policy has been cancelled or nonrenewed 'by the insurer.'" The dissent rejected the majority's approach, stating that there was no need to engage the question of whether the purpose of the statute was undermined because "when a statutory text speaks clearly on a subject, effect must be given to it regardless of what courts think of its wisdom or policy."
March 5, 2007
(Sorry for the absence. I can testify that a flu shot is no guarantee!)
NYC Enforcing Statute Held Unconstitutional 15 Years Ago. The judge in the case isn't happy; ever heard of contempt? If not, read here.
Tax Statute on Insurance Payouts to be Interpreted. Those involved in this case say it's critically important and could result in a lot of refunds. I'm all for that interpretation, whether purposive, intentionalist, textualist, or just plain wrong!
Suit Involving SS Cole and Death on the High Seas Set for Trial March 13. Apparently the families of the murdered sailors have sued the government of Sudan for aiding the terrorists in the attack, as this story explains.
Real ID Act not Really Moving Quickly. States are opposed to it, privacy concerns abound, and this article discusses a proposed two year delay in implementing this controversial statute.
Hug a Thug Dallas Prosecutor? Maybe even Texas will try to free the innocent? Can't be true, but it's in this article.