UNC lawyers offer state Supreme Court a clear decision in a recusal case

Two months after the U.S. Supreme Court overturned a 40-year-old precedent on a legal issue called “deference,” North Carolina’s highest court is preparing to address the same issue.

A recent court filing by the University of North Carolina System helps give the state Supreme Court a clear ruling — if the justices seek such a decision.

In its June 28 decision in Loper Bright Enterprises v. Raimondo, the U.S. Supreme Court rejected the “Chevron deference.” Based on a 1984 case, federal courts had accepted government agencies' interpretations of the law in court disputes. Critics had argued that the deference prevented judges from fulfilling their assigned roles.

A 6-2 Supreme Court majority in Loper Bright agreed that the Administrative Procedure Act requires federal judges to exercise “independent judgment” when deciding whether a government agency is complying with the law.

The decision marked a major shift for the federal courts. It did not necessarily change the way North Carolina judges will handle restraint.

For this reason, the case of Mitchell v. UNC Board of Governors could prove important.

Alvin Mitchell is fighting his 2019 firing as a tenured professor at Winston-Salem State University. He is not a particularly sympathetic plaintiff. Among the reasons WSSU cited for the firing was a nasty, racially motivated letter Mitchell sent to a university colleague.

However, Mitchell claims the university violated his constitutional rights in two ways. First, he describes the controversial letter as an expression of free speech. Second, he claims the university failed to follow proper procedures. Mitchell complained that the courts have deferred to the UNC system's interpretation of rules for firing a faculty member.

Lower courts have ruled against Mitchell, but a state appeals court judge who dissented would have allowed the free speech suit to proceed.

No court has ruled in Mitchell's favor on the issue. But his motion to vacate the penalty has drawn the attention of the NC Chamber, the NC Farm Bureau and the John Locke Foundation. The business and agriculture groups and the free-market think tank all hope the state Supreme Court will use Mitchell's case to clarify state courts' vacating standards.

Supreme Court judges have expressed interest in this issue.

In their appeal to the Supreme Court, Mitchell's lawyers cited comments made by Judge Richard Dietz in April 2023.

“[W]Why do we bow to the agency’s interpretation?” Dietz asked during an oral hearing. “I ask why, if the agency [regulations]would we agree with that, rather than simply saying that everyone affected should have the opportunity to look at those terms and decide what they mean, and that no person looking at them should be given more respect than anyone else?”

A March 22 Supreme Court ruling suggests the Mitchell case could take up Dietz's questions. The justices say they will address the question: “Under North Carolina law, when, if ever, should a court defer to the interpretation of rules and regulations adopted by an agency?”

The university's August 14 brief in the Mitchell case contained a strong defense of respect.

The WSSU chancellor fired Mitchell despite a faculty committee's recommendation not to do so. Mitchell's firing “consistent with clear and unambiguous procedures” set forth in a faculty handbook and university regulations, UNC's lawyers wrote.

“Even if these procedures were ambiguous, it would still be appropriate to take into account the consistent and long-standing interpretation of university regulations and read them in a way that gives university chancellors authority in these matters,” UNC's lawyers wrote.

“[I]”It would be appropriate for this Court to show some deference to the University's interpretation of those regulations under the circumstances of this case,” the brief continues. “This Court has long recognized that some deference should be shown to a state agency's interpretation of its own regulations when the agency's reasoning is thorough and valid and has remained consistent over time.”

In contrast, a brief from the Locke Foundation in that case condemned the restraint as violating an “ancient principle”: “It is unjust for a man to be a judge in his own affairs.”

The NC Chamber and NC Farm Bureau argued that restraint could hurt the economy and agriculture.”[T]There is always a risk that an agency will interpret a law or regulation in a way that imposes unlawful regulatory burdens on its members,” the groups wrote.[T]The application of agency jurisdiction unfairly tilts the balance of justice in favor of the agency.”

State Supreme Court justices face two opposing approaches to subordination. They could support the UNC's view. They could instead address critics' concerns.

The Court's direction will have significant implications for future litigation involving state authorities.

Mitch Kokai is a senior policy analyst at the John Locke Foundation.