City Hall and Chevron: Administrative Deference at the Local Government Level

[Music]

 

Chayila Kleist:  Hello and welcome to The Federalist Society’s webinar call. Today, June 14, 2023, we discuss “City Hall and Chevron: Administrative Deference at the Local Government Level.” My name is Chayila Kleist, and I’m Assistant Director of Practice Groups here at The Federalist Society. As always, please note that all expressions of opinion are those of the experts on today’s call as The Federalist Society takes no position on particular legal or public policy issues. In the interest of time, I’ll keep our introductions brief, but if you’d like to know more about any of our panelists, you can access their impressive full bios at fedsoc.org.

 

Today we are fortunate to have with us as our moderator the Honorable Judge Alexander Bokor, who serves at Florida’s Third District Court of Appeal where he has served since 2020. Previously, Judge Bokor served as a trial judge for 40 years, most recently as a circuit judge in the civil division of the Eleventh Judicial Circuit in 2018 and before that as a county judge for Miami-Dade County since 2016. Prior to taking the bench, Judge Bokor served in both the private and public sectors. From 2008 to 2016 he served as an assistant Miami Dade County attorney, focusing on transportation issues, public-private partnership, transit oriented developments, complex commercial litigation, and property tax issues. And from 2002 to 2008 he was a commercial litigator in private practice at prominent state and national firms in both New York and Florida.

 

And I’ll leave it to him to introduce our panel. One last note, throughout the panel if you have any questions, please submit them via the question and answer feature, which can likely be found at the bottom of your Zoom screen so we will have access to them when we get to that portion of today’s webinar. With that, thank you all for being with us today. Judge Bokor, the floor is yours.

 

Hon. Alexander S. Bokor:  Thank you very much and welcome, everyone. And welcome to my wonderful panelists. I’m going to get to the introductions in a second, but I just want to say a follow up that these are our personal opinions and they do not reflect our various offices or positions. So we’ll take it from there. Let’s get to fighting city hall.

 

I’d like to introduce first in the square below me Craig Leen. He’s a partner in the Washington, D.C., office of K&L Gates. And he’s a professorial lecturer in law at George Washington University Law School where he teaches local government law, among other subjects. He previously led a federal civil rights agency while serving as OFCCP director at the United States Department of Labor. Before moving to Washington, D.C., Craig gained extensive experience as a local government attorney in Florida, previously serving as the city attorney for the city of Coral Gables and before that as the chief of the federal litigation section at the Miami-Dade County Attorney’s Office. Craig is also board certified by the Florida bar in city, county, and local government law. Welcome, Craig.

 

Craig E. Leen:  Thank you, judge.

 

Hon. Alexander S. Bokor:  Michael Murawski was appointed executive director of the Commission on Ethics and Governmental Integrity in June 2021. As the very first executive director of the Ethic Commission, Mr. Murawski is responsible for establishing the framework for how the office operates including drafting the ethics code and any amendments thereto. He developed administrative policies and procedures, conducts ethics training for public officials, employees, and lobbyists, and runs the day-to-day operations of the office.

 

Prior to becoming the executive director, he served as the advocate for the Miami-Dade County Commission on Ethics and Public Trust for over 20 years. In that position, Michael created and oversaw the enforcement unit, prosecuted ethics complaints, and conducted investigations. He also delivered ethics trainings to elected officials, county employees, and lobbyists and provided opinions and advice on the ethics code to county and municipal officers and employees. Born and raised in Queens, New York, Mr. Murawski graduated from St. John’s School of Law and served as Assistant District Attorney in Kings County, New York, for five years.

 

In 1992, he moved to Florida and served as an assistant state attorney in Broward County. He was in private practice as a criminal defense attorney until he joined the Miami-Dade Commission on Ethics as their very first advocate. In addition to his law degree, Mr. Murawski has a master’s degree in public administration from Florida International University and has been a certified fraud examiner since 2007. He’s admitted to practice in New York and Florida.

 

Amanda Conn—there you are—is the general counsel to WSSC Water, the eighth largest water and sewer utility in the country, serving over 1.8 million customers. Amanda’s held a variety of legal, policy, legislative, and management positions over the past 30 years in Maryland, in state and local government. And during her career, she’s represented municipalities, counties, and specially created governmental entities.

 

She’s appeared in front of the Maryland general assembly for close to three decades, drafting numerous complex bills that have been enacted into law. Ms. Conn serves as a professorial lecturer in law at the George Washington University Law School where she teaches local government law. She’s been an adjunct professor of law at both the University of Maryland School of Law and the University of Baltimore School of Law where she co-taught a course on legislation for many years. She’s admitted to the Maryland Supreme Court, the U.S. District Court for the District of Maryland, and the U.S. Court of Appeals for the Fourth Circuit, along with the United States Supreme Court.

 

She’s currently the chair of the state and local government law sections of the Maryland State Bar Association and the coauthor of “The Court of Appeals at the Cocktail Party”—that sounds interesting—"The Use and Misuse of Legislative History” and “Battling the Voices of Unreason: HUD Plays Foul in Its Fight to Uphold the FHA.” And you’ve already heard my bio, so I won’t repeat it.

 

And we will dive right into this. I thought it would be nice if each person gave about a minute or two to sort of set the stage for -- whet the appetite for what you’d like to talk about. And we’ll just go in the order that I introduced you, so Mr. Leen, could you take it away?

 

Craig E. Leen:  Thank you, judge. It’s such a pleasure to be here today with all of you talking about a subject that really probably does not get enough attention considering the amount of authority and power that local governments have over the daily lives of their residents. The reason I’m interested in being in this panel today and what I wanted to reflect on in this one or two minutes is throughout my career at OFCCP, which was a federal civil rights agency; at Coral Gables, which is a city; at Miami-Dade County, which was a county, I always was very interested in checks on government power because at the federal level you have separation of powers. You have the three branches of government. You have checks that are built in.

 

And so yes, administrative deference does cause some concern sometimes that you’re giving too much authority to the Executive Branch vis-à-vis the Judiciary or the Legislative Branch. But at least there are checks and balances, and there’s a statute that addresses that, the Administrative Procedure Act. At the local level, you don’t always have that at the state and local level. And administrative deference can cause a significant impact.

 

So when I was city attorney of Coral Gables, one of my goals was to take the administrative law of the city and to make it something that would be accessible to residents where they could go online and look up a city attorney opinion that I issued or where there was a complex issue of law, I’d bring it to the commission so they could clarify it. That to me was extraordinarily important because as the law becomes clearer and as there’s less need to defer to the local government, in my view it makes it fairer for residents.

 

It could be a land use matter. It could be a code enforcement issue. It could be a variety of ways that you interact with your local government. But what’s important is that you have an equal right as the government to present your position and that the rules that the government is enforcing are presented in a way that’s fair so that it’s not ambiguous because when it’s ambiguous and the government says, well, you know what, it’s this way because I say it’s this way, that can cause a lot of harm at the local level.

 

And so even though -- you’ll see today sort of my views on administrative deference at the local level. I’m sort of on both sides of the issue to some extent, although I’m very concerned about administrative overreach. So I tend to come in more about clarity and less reliance on administrative deference. So you’ll see that today. But having said that, my goal and my hope for the discussion today is that we talk about how administrative deference impacts the ability of residents to bring issues up to local government and, if they’re not resolved, bring them to the judiciary and get a fair hearing. And that really is my hope today.

 

 

Hon. Alexander S. Bokor:  Well, sounds like a lot and we’ll hopefully get to most if not all of that. Mr. Murawski, could you take the floor, please?

 

Michael Murawski:  Yes. Thank you, judge. Thank you for that introduction and I want to thank Craig Leen for inviting me to participate in this panel and thank The Federalist Society for sponsoring it. As you mentioned, judge, I did start working here in the city of Naples, by the way. It’s the commission in the city of Naples. So I’m their first executive director.

 

But in the year 2000, I started as the first advocate in Miami-Dade County for their Ethics Commission. And Craig, it’s interesting that you mentioned checks and balances because we were an independent agency that was created by the voters in Miami-Dade County. And as an independent agency, a lot of people as the question, well, who’s the check and balance on you? Where do you get to do what you get to do?

 

So it’s interesting that in the ordinance that created the Miami-Dade County Ethics Commission—I’ll just read it to you real quick—it says “The Ethics Commission shall be empowered to review, interpret, and enforce the county and municipal code of ethics, conflict of interest ordinance, lobbyist registration, and ethical campaign practices ordinance.” So it was written into our enabling ordinance that we had the authority to interpret the ethics code. So what happens to people who disagree with us, especially people in the municipalities who just saw things a different way than the Ethics Commission did?

 

Now, luckily I spent the bulk of my career in Miami-Dade County from 2000 to 2021. That was prior to the 2018 amendment in the Florida Constitution that sort of did away with this deference issue. But I was happy it was around because it was a good thing if you’re a government agency to be able to tell a judge, your honor, not only is our interpretation a reasonable one, but you should defer to it. I think people probably still make that argument, but now we don’t have the law to sort of back us up on that. But I guess we’ll talk about these things a little bit more as we go on.

 

Hon. Alexander S. Bokor:  Great. And Ms. Conn, please.

 

Amanda Conn:  So thanks to The Federalist Society for inviting me. This is my first time at The Federalist Society, so I appreciate the honor. And thanks to my co-professor, Craig Leen, for I’m going to say roping me into this because he’s the reason I’m here.

 

So I come to this debate in a very practical way. And I will say that I do not share Professor Leen’s concerns about applying deference at a local government level because I think there are adequate checks. And when we talk later, I’m going to give you a recent example out of Maryland how the general assembly checked a bad interpretation of a county government. And I come to this debate because I’ve been a drafter of many ordinances, many statutes, many regulations. Then, as a lawyer I have helped an agency interpret them and then defended that interpretation in court.

 

And occasionally, I’ve hit what I’ll call the trifecta, which I drafted, then later in time I had to interpret it, probably sometimes to my embarrassment because I missed something, and then defended that interpretation and had agency officials like raise their eyebrow at me, like, Amanda, did you really miss something? Why are we in the interpretation stage? But I try to think of this in a practical way as to the good that comes out of deference from both an outside point of view and a government point of view. So I’ll talk more about that later.

 

Hon. Alexander S. Bokor:  Great. And I think you all raised some interesting points and I think something that we really need to focus on here. Just from a sort of survey, 10,000 foot view level, Chevron deference, Auer deference, Seminole Rock, whatever you want to call it, it really applies differently in the states. There’s some states that really follow the federal rules and the federal decisions almost lockstep. There’s other states -- and Amanda, I want to explore that with you and Maryland a little bit later, how you do deference in Maryland.

 

In Florida, as Michael alluded to, in 2018 we had a constitutional amendment, Amendment VI to Florida’s constitution, that explicitly rejected Chevron deference in all interpretations, and the court does not have to rely on agency interpretation of the state or local level. And that’s now codified in Florida’s constitution. I was looking around, and there are many other states that have either legislatively or through initiatives, mostly legislatively, ended judicial deference practice and generally in the late 20 teens. But for example, the Delaware Supreme Court in 1998 through judicial action ended judicial deference. So we have a wide array. Pennsylvania, for example, recently reaffirmed judicial deference and specifically in their state supreme court adopted the Chevron standard or reaffirmed the use of the Chevron standard, citing to the federal cases.

 

So we do have a wide array in the state level of what Chevron deference is. But one thing I want to talk about and explore with our panelists here is what does that really mean because you can have no deference, or no official deference like you do in Florida, but yet where an agency has expertise or where it’s very hard to challenge an agency’s decision or as Craig alluded to where sometimes you don’t even know what the agency’s interpretation is if it’s not posted anywhere, do we have de facto Chevron deference or what I call shadow Chevron in a lot of these local municipal decisions? And what does that mean for someone trying to fight city hall?

 

For example, as a trial level judge I was often presented with an agency, a local government’s interpretation of a rule, a regulation. And even if I’m not giving official weight to it, this is someone that has some expertise with it. What am I supposed to do with that as a reviewing body, even if I don’t have Chevron deference? Same question, if there is Chevron deference in a state or it’s a modified Chevron deference like what’s happening even in the United States Supreme Court where Chevron deference and Auer deference is getting shaped and formed, Kisor, West Virginia v. EPA -- we have a lot of decisions that have modified, shaped, put in multistep tests for Chevron deference that sort of seem to limit the deference in certain -- whether it’s major questions or whether it’s a clear delegation doctrine.

 

Chevron seems to be at least in some form receding. It doesn’t mean it’s eliminated, but it’s being contoured and tailored. So what does that mean for a party? What does it even mean for a reviewing court? At some point in Florida -- and we’re going to talk about some of the peculiarities here with our review of certiorari standard or second tier certiorari standard if you’re reviewing an agency decision. You might have de facto deference just because of the standard of review as opposed to any constitutional standard. So does anyone want to comment on any of that broad stuff that I just spewed forth? Craig?

 

Craig E. Leen:  I’ll start. So when I was at the federal level just briefly, I was the head of OFCCP, and that’s a federal civil rights agency that audits companies. And those audits and reviews could sometimes take several years. And then finally -- and you may disagree with the agency. Finally, when you’re done with that audit, you get to go to an administrative law judge. That could take quite a bit of time. You go through the administrative process, up through the Secretary of Labor.

 

And then finally, sometimes after eight, nine, ten years, you get to a federal judge under the APA. And that federal judge is providing a deferential standard of review. So one point I would raise here is do we really need Chevron and Auer deference when there’s so many structural reasons why the administrative agency typically is able to get its way? So if finally you get to an adjudicator at the end, and that adjudicator also has to put their thumb on the scale a little bit in favor of the agency, can you really ever get a fair hearing?

 

Hon. Alexander S. Bokor:  Well, let me ask a follow up to that, Craig.

 

Craig E. Leen:  Sure.

 

Hon. Alexander S. Bokor:  What does Chevron deference really mean now when you can fight over whether it’s a major question, if you can fight over whether it’s a clear delegation? It seems like we’re circling the drain here on Chevron deference when you’re even fighting over whether you have Chevron deference.

 

Craig E. Leen:  Judge, I think most people view Chevron -- if you’re not like really into this area, I think most people think, well, yeah, if an administrative agency is determining what the appropriate standard for water is here or the appropriate standard for a building, you should defer -- like in terms of building safety or structure, you would defer to them. And I think courts should defer to them. No one debates that, if it’s a delegation and they’re acting within their authority.

 

Chevron relates to when there’s ambiguities in the law itself and whether you should defer to the agency in those regards, too. And I don’t know if there’s so much place for it anymore because the point is it takes so long to get to a judge. Don’t you want the judge to be able to actually say what the law is at that point? That will help everyone in the future as opposed to just saying, you know what? I’m not going to say what the law is because I’m just going to defer to the agency. And you know what? That agency may change its view in a year when a new administration comes in.

 

And what I would say, judge, and to our panelists, is at the local level I think that that can be even compounded because you don’t have the same checks and balances. Sometimes it can take a really long time to get through the whole administrative process and get to a judge. And then we’re going to talk about this in a bit. But if the standard of review is very deferential, like certiorari review or second tier cert, and you can’t really say what the law is and then it just gets sent back to the local government, are you really able to get a fair hearing? And don’t we want at some point the judges to say what the law is?

 

Hon. Alexander S. Bokor:  Well, that’s a great question. Like I said, in Florida, we don’t have Chevron, but most of the time it gets to us on a cert or second tier cert standard where unless the law is clearly established it’s hard to grant cert on those issues unless we do. And that goes to the consistency issue that you’re talking about and sort of a fairness issue. It’s almost an eye of the beholder. A panel thinks it’s important enough.

 

It’s almost like the major questions doctrine. What’s a major question? Well, to the litigant probably everything’s a major question. Who determined -- obviously, the court’s determining what a major question is. And that could be in the eye of the beholder. So it begs all these questions.

 

Amanda, I know you take a slightly different view. And I want to hear first before we get into your local government view, could you tell us a little bit about how Maryland does deference?

 

Amanda Conn:  So the Maryland Supreme Court has never adopted Chevron. And they said we don’t adopt Chevron. They have adopted a different standard to the point they don’t even call it deference. They call it weight. And that standard is they may apply a degree of weight to an agency’s interpretation of statutes that the agency administers and the regulations adopted by the agency for that purpose. And they’re always quick to say that they maintain the prerogative to determine whether an agency’s conclusions of law are correct.

 

So there’s what I call the escape hatch. And what they’ve done with weight is they say weight is a sliding scale. And there’s three factors in that sliding scale to determine how much weight because some agencies that may act within these considerations I’ll explain, they get more weight than agencies that don’t.

 

And that sliding scale looks at sort of is the interpretation contemporaneous and consistent and the length of time of that interpretation. Did they engage in a reasoned process to formulate that interpretation? And finally, what was the nature of the process? Was it rulemaking? Was it a contested case process they came to that interpretation?

 

And you get to present those factors as a local government attorney or state government attorney to say we did all those things; therefore, we’re entitled to the most weight. And the court can say no, you didn’t. We’re going to give you little weight. And just from my perspective here in Maryland, I like this scale because it encourages local governments to go through a reasoned process to get to that interpretation and to maybe have outreach to people that are affected by that to get to that. And I think it provides the transparency in government -- I think the standard that Professor Leen was talking about, people get to see how that interpretation happens.

 

Hon. Alexander S. Bokor:  It sounds a lot like that’s basically almost echoing like a rulemaking procedure under the APA as far as how a rule is made. But it’s kind of interesting because we’re kind of talking about interpreting a rule or applying a rule. So it’s almost like those Russian nesting dolls. It’s like you’re doing the same procedure in miniature for the interpretation of a rule that you did for the rule itself. And it’s sort of kind of spins back on itself, but that is a way to do it.

 

But I wonder often and I guess, Amanda, my question would be a lot of times, I mean, isn’t an interpretation just that, like someone sitting down at a computer interpreting the rule because someone has to and applying it? I mean, do they really go through this sort of notice and feedback procedure if a general counsel is sitting there saying, well, heck, what does this rule mean in this context at the water authority? I have to apply it. Do you really go through that sort of almost mini rulemaking procedure?

 

Amanda Conn:  I think it depends. It depends on the nature of what’s in front of them in interpretation. I have advised agencies that were interpreting a controversial statute. And they go through an extensive process putting those interpretations in draft guidance and then letting people look at that draft guidance and comment on it. And I think that’s a good thing. And to me, deference and weight encourages and the standard encourages state and local agencies to do exactly that. But yeah, not on everything.

 

Hon. Alexander S. Bokor:  Interesting. Michael, I want to hear a little bit about Florida, and you’ve had the interesting perspective -- you’re also the ethics guru, too. And everyone defers to the ethics guy, at least tries to. So tell me how it works in your world when you make an interpretation. A lot of times at least in the Miami-Dade County Commission on Ethics, if I recall, your word was sort of the bible for anyone that had to live by the ethics code. Your interpretation was binding on a lot of folks, I think even -- I’m going to let you talk about it but I think even folks outside of the county. So why don’t you tell me a little bit about deference and how it worked and when you interpreted a statute or when you applied a statute or a code to a certain situation.

 

Michael Murawski:  Thank you, judge. So actually my question really -- and I don’t know if anybody’s done any study of this, but since that 2018 constitutional amendment, has there been any study to show that regulatory agencies now in the state of Florida are all of a sudden getting crushed because of what their interpretation of a particular statute was? I don’t think that’s happening. I haven’t heard anything about that that’s going on, so I don’t know that just officially doing away with this deference really makes much of a difference.

 

And just to touch on something that Craig mentioned, you said something about let’s say a judge is interpreting some sort of a statute and says okay, I’m going to defer to the agency’s interpretation. And then that essentially becomes the law. So the agency has made the law. But by the judge making that ruling, isn’t the judge sort of making that law in that case?

 

I was looking at something just doing a little research here. The current case that’s pending in front of the Supreme Court now that they’re going to decide where Judge Gorsuch had mentioned that the Court should acknowledge that Chevron did not undo and could not have undone the judicial duty to provide independent judgment. And I think that makes a lot of sense. Neil Gorsuch is a smart guy.

 

And it’s like what Amanda is saying. If a regulatory agency goes to court and there’s going to be somebody on the other side, well, the agency’s going to argue that their interpretation is the most reasonable one and should be followed. And the other side’s going to argue that no, it’s not the most reasonable one. And I think a court is going to decide. So I’m not sure that we’re not really splitting hairs here with saying okay, well, yes, we’re going to keep this deference when you can just call it weight instead. And you’re essentially getting to the same result without calling it deference.

 

Craig E. Leen:  Okay. But could I counter that with one thing? So yes. Already in the Administrative or Executive Branch, those interpretations are typically binding. And typically the government gets it way, be it the local government, the state, or the federal. So it’s only when someone challenges it, is able to go through all the administrative steps, and then finally gets to the judiciary where the question really comes up is the judiciary going to tell us what the boundaries are of agency discretion? Or if those boundaries are unclear, are they going to let the agency determine those boundaries by deferring to them?

 

And I think that’s the ultimate question. And it seems to me that in the long run it’s better to have the courts come in and give an opinion that has the force of law that’s not just saying, well, the agency can say X now and maybe in three years when an administration changes, there’s a new governor, there’s a new mayor, they’re going to say why. And you know what? We’re not going to get into that. I think it might be better in those instances and more respectful of the legislature for the judiciary to come in and say you know what? This is what the statute means. Now it’s clear. Everyone knows.

 

You can still exercise your discretion within those boundaries. But if you have Chevron or Auer deference, then it does allow the judges to say, you know what? We’re not going to look at it. We’ll just defer. And that may mean after ten years of raising this issue you don’t actually get a final judicial pronouncement on what the law is.

 

Hon. Alexander S. Bokor:  I mean, I think a lot of the problem with Chevron and the way it sort of metastasized is it became something it was never intended to be. I think at first Chevron was supposed to be look, if an agency is clearly acting in the bullseye of what was designated, delegated to it for its authority, maybe we should defer to their expertise. But then it became this sort of shield for agencies to do exactly what you said, Craig, to sort of move the strike zone a little bit, expand the strike zone and sort of take swings outside of where they should be, where they’ve been delegated authority.

 

But I guess from a simple caveman judge point of view, it makes my life a lot easier to know that if I see -- and this goes to Michael’s question, too. Whether you call it deference, no deference, review, weight, whatever, if I can look at something and say hey, what the agencies did under the statute makes sense, that’s right, it’s just easier not to have to jump through a bunch of Justice Breyer style multipart test hoops to get to that point. And this kind of goes to Craig’s issue of fairness and transparency. Did the agency get it right, or am I just not allowed to review it even though they got it wrong because of some test, because Part 3B I couldn’t check the box on the multipart test? And now I can’t get to it and tell you -- so I have to write some sort of concurrence that the agency got it wrong, but I can’t tell you that because I’m not allowed to. So from a judicial point of view it does make life easier.

 

But I think to your point, Michael, I don’t think it’s made a grand deal of difference really because at the end of the day our task as a court is to interpret a statute, to look at the plain language. And that doesn’t really change that much as long as we’re allowed to get into it. And that’s sort of the problem with some of these esoteric readings of Chevron and other deferences. We can’t even get into the meat and bones of it. But once we can, we kind of do the same thing no matter what.

 

So I think maybe that’s what we see, this sort of pendulum shift with Chevron sort of being scaled back to its original intent at the federal level or what the Court I guess is saying the original intent was of Chevron because they haven’t gotten rid of it yet. Maybe that’s the next step. But maybe finding this balance of allowing agencies to have expertise in the areas they have expertise is something that the Court -- but not allowing them to really expand the strike zone or if they do, they don’t get really any deference. Maybe that’s something the Court is trying to do with the -- or trying to triangulate to with these decisions. And maybe that’s something like what Maryland has attempted to do by not adopting Chevron wholesale to begin with.

 

So who knows? It’s just interesting how it works. I know at the municipal level when I was at the county attorney’s office our -- and I’m sure this is the same, Amanda, Michael, and Craig, at any agency. Your own general counsel -- usually your interpretation of a statute or ordinance or rule that hasn’t been ruled on by a court of competent jurisdiction is usually binding at least over yourself. So your own employees, officers, and agents have to follow your interpretation of a rule, statute, or procedure unless a court tells you otherwise. And I kind of want to get to the practical side a little bit, the what I call shadow Chevron or what Craig called transparency and fairness at the local level, because if I as a local government attorney am telling my agency that they have to interpret a statute a certain way and these are multiple decisions, multiple inflection points, it’s expensive to challenge government to fight city hall. So don’t I by having that authority ultimately kind of put my finger on the scale to begin with before we even get to judicial review at the local level at least where you might now have the big interest that can fight a federal lawsuit? So how does the practicality of it affect the standard of review?

 

Michael Murawski:  Judge, if I could just go back and actually answer part of what your original question was to me. At the Miami-Dade County Ethics, we did have the authority to interpret the ethics code of not only the county but of all the 35 municipalities and all the people that that affected. So there were many, many city attorneys who would come to me and say, listen, I just don’t agree with that what you’re saying here is the way this should be read. And the practicality was, like Craig said, that yeah, it cost too much money to go to court and to try to duke this out. And in all the times that I’ve been at the Miami-Dade County Commission I think we were challenged in court maybe three or four times out of hundreds and hundreds of cases.

 

So I think that weighs very heavily in terms of practicality. But again, I did do a little bit of research before I sat for this panel. And I was looking up the case that was prevalent prior to Chevron, something called Skidmore v. Swift. And essentially, that case said that you should consider the agency interpretation, although it’s not controlling, which essentially is what Amanda is saying that they do in Maryland. So if we just slide into that instead of this I’m going to defer to the agency, again, for me I’m not an academic here. But I don’t see all that much of a difference.

 

And judge, like you said, I don’t know a single judge -- and I know a lot of judges. I don’t know a single judge who is ever going to look at something and say what this agency’s doing is wrong. And it’s just the wrong interpretation, but I’m just going to let it slide because I’m going to defer to them. I don’t think that happens in reality.

 

Hon. Alexander S. Bokor:  Well, it certainly makes it easier that we don’t even have to do lip service to Chevron deference in Florida, so we at least have that flexibility here. Like I said, it gets a little murky based on the standard of review by the time it gets to us. For example, a zoning decision in Florida still gets appealed to the circuit court, which is our trial court, sitting in its appellate capacity. And that eventually will come to the appellate court, my court, on a second tier cert standard. And as you go up the ladder, it gets progressively narrower and harder to challenge. Although, there’s some decisions out there that say misinterpretation of clearly established law is reviewable on second tier cert. But then it gets into the questions, and I think we talked about it a little.

 

What’s clearly established -- a lot of these things -- and this goes to my practicality concern. A lot of these issues are never challenged because in the first instance they’re too expensive or because of administrative exhaustion like Craig talked about it takes years. So by the time you’re ready to challenge it, it’s too late. So these have never come up to the court. So we’re sitting here twiddling our thumbs at the second tier cert level because we’d like to get it right. We really would. But because there hasn’t been any clearly established law on it yet, it makes it difficult. So we sort of have this Chevron deference without having Chevron deference because of the standard of review. And it hasn’t been clearly established.

 

So that’s another thing. If you really what to eliminate Chevron deference altogether, you have to look at the standard of review the reviewing court is looking at. But to your point, Michael, I think there’s an interesting thing about the ethics commission, too. You don’t necessarily want the people subject to the -- I mean, one could make an argument you don’t want the people that are subject to the ethics code and maybe not living up to its obligations to be their own interpretation officers, saying yup, I’m good. So it sort of makes sense to have some practical level deference to an officer who’s tasked with it but then the ability to challenge it.

 

And I think what you’re saying is impractical effect, if someone wants to challenge it, they still can. It might not be reasonable for them to. But in an extreme abuse, they can. And we have the level of review now to allow that challenge to happen. So maybe that’s a good balance. I don’t know. I take no position on that. I just work here.

 

Amanda Conn:  Judge, can I comment on a different way to think about challenging an interpretation? And it’s an example that just happened in Maryland. We had medical cannabis that was allowed. We had three counties who interpreted their zoning code to say that retail medical cannabis was simply not allowed under their zoning code. Well, this past session the general assembly moved to total cannabis sales. They had heard about these three counties that interpreted their zoning code as not allowing even medical cannabis shops.

 

And they said we don’t like that interpretation. Guess what they did? They put in state law that no local government can prohibit cannabis shops completely in their jurisdiction, and local government, you now have to have a reasonableness standard -- look at reasonableness when you’re adopting a zoning ordinance that affects the sale of cannabis. There’s your check that doesn’t take necessarily ten years in litigation. And that’s exactly what happened here. The people that were upset in those counties, they didn’t go the court route. They went to the general assembly and got a different interpretation.

 

Hon. Alexander S. Bokor:  Well, isn’t that the gold standard to have the legislature that originally enacted the statute or is ultimately charged with the legislative scheme to tell you exactly what they want? Isn’t that what we’re all trying to get to? So that’s great when it happens.

 

But as we all know -- I’d be out of a job if the legislature spoke on everything every time so clearly. And I’ll go find something else to do. Maybe you need another adjunct professor in your local government class up there. But I really think that’s great.

 

But how does that apply? I mean, there’s many areas -- that’s a big issue, a big ticket issue, and it deals with a lot of people. I think the issue with most local government issues is they don’t rise to that level of really captivating the public’s attention. There might be a lot of money involved with the zoning issue. Real estate prices in Miami are crazy. But for everyday issues, mom and pop issues, the government still has an awful lot of power. I’m not saying it’s right or wrong. You want some sort of consistency, but we have an awful lot of deference still to the local level.

 

Craig E. Leen:  Well, if I could add something to that because in Florida it does happen, Amanda. Like the judge said, you do have the state legislature coming in and preempting the field. I’d say as local government attorneys you have sort of a mixed feeling about that. On the one hand, if it’s a local issue, you really want to have the home rule ability. And I know you do too -- but the home rule ability to be able to act on those issues. If it’s an issue of more statewide concern, sometimes the clarity is extremely helpful.

 

So I agree. That probably is the gold standard. The legislature has spoken. But I think the underlying issue, which I don’t think we’re that far apart on but we may disagree a little bit, is where the legislature has spoken and let’s say for whatever reason at the federal level there may be political reasons why they can’t go back to that issue -- maybe the filibuster, maybe they just can’t get the political consensus to act. At the local or state level in some states they may be able to. In others they may not. But the question is if you do have a statute, do you want the judiciary ultimately interpreting that, or do you want to defer to the executive in its interpretation?

 

And in my view a lot of it ties to your view on textualism versus sort of purposivism. And if you’re comfortable with looking at the purpose of a statute and allowing that to be interpreted by an administrative agency consistent with the purpose of the statute -- and they’re probably the most knowledgeable as to their area -- then Chevron deference makes a lot of sense. If you take a more textualist approach though and you really want to confine -- and I tend to be more of a textualist -- and you want to confine government to the specific text of the statute or rule, Chevron deference is not necessarily compatible with that. That’s what judges do. They read statutes, and they interpret the meaning.

 

So I think that there’s probably some underlying philosophical differences in how we approach the law. And I know you’re an expert on that with having written about legislative history and interpreting laws. But I feel like that may be the underlying point. But for me, I’m very practical. When I was city attorney, I issued over 450 city attorney opinions. The judge knows this because I like to brag about it.

 

So I issued over 450 city attorney opinions. How many of them came up in a court proceeding? Maybe two. Most of them whatever it was my interpretation was the ultimate outcome on those issues. And I knew that, and that was a lot of power. So the one thing I did was I made sure to publish them. And I tried my best to make them as clear as possible and so people could contest them if they wanted to, like by bringing it up with the commission or with me. I feel like that transparency is extremely important.

 

But I was very aware that already because of the practicalities the judge mentioned if I issued this opinion the chances it’s going to get challenged are about this small. And I would issue opinions on all sorts of things where there was no case law, on beekeeping in Coral Gables, on how do we approach pigeons and controlling pigeons in a bird sanctuary. I issued a lot of opinions -- on tree canopies. And a lot of this will never go to court.

 

So my one point that I -- and I know we’ve addressed this. But when it finally does get to court and we have Judge Bokor on the Third District Court of Appeal and they’re going to give an opinion that as a city attorney I could follow in the future that could be binding, wouldn’t we want them to issue that opinion so that then I can refer to that case in the future as opposed to trying to cobble together an opinion based on lots of different secondary sources or opinions from judges that are not binding in the sense they don’t determine the merits of the issue. They just say we’re going to defer.

 

Michael Murawski:  Judge, would you mind if I direct a question to Amanda? Because I know the other day she was -- and I would ask her if she can expound on this legislative acquiescence that she talked about the other day.

 

Hon. Alexander S. Bokor:  I had some notes for that. Please do. You don’t have to stand on any formality here. Shoot.

 

Michael Murawski:  When she mentioned it, I thought to myself, my god, that’s a great argument to make if you ever have to go to court as an agency. So Amanda, would you?

 

Amanda Conn:  Yeah. So this is a doctrine I’ve seen in Maryland where if you have an agency interpretation and you can show that the interpretation—maybe it’s through a reg or through a guidance or an opinion—was in front of the legislative and they didn’t overturn it, you can argue the legislature has acquiesced in that interpretation. It’s a hard route to go because I think you really have to show they knew about it in some context because you can’t just say legislative acquiescence and just hope that they heard about it. You have to show it. But I’ve argued that and been successful in it maybe one or two cases on the legislative acquiescence doctrine. But again, it goes to what Craig said. Is that too much power too in a legislative acquiescence doctrine to an agency?

 

Hon. Alexander S. Bokor:  Well, I guess that’s a little bit of a different doctrine. I was thinking about what you said earlier about the Maryland general assembly knew about what was going on in the zoning codes and came up and actually affirmatively did something. And help me and the listeners and watchers understand. Under your logic or under that doctrine, if the Maryland general assembly knew about that and then just chose not to pass a bill, that would mean something too. That seems like a very tough road. And it creates a sort of -- a really interesting wrinkle of almost a super Chevron deference to the agency interpretation through the legislative acquiescence, which kind of blows my mind a little bit. It’s an interesting doctrine.

 

Craig E. Leen:  Nice job, Amanda.

 

Michael Murawski:  It excited me so much because in Miami-Dade County probably the big issue with the Miami-Dade County Ethics Commission was that they had the supposedly legislative authority to initiate investigations. We didn’t have to sit around and wait for somebody to file a complaint. We could start our own investigation, and from that investigation we could issue a complaint ourselves. And we got challenged on that quite a bit because people would read the ordinance and say where does it say in here that you’re allowed to do that. It wasn’t the clearest ordinance in the world.

 

But it’s been 25 years or more that the Miami-Dade County Ethics Commission has been doing that. And no one’s really challenged us in court. But I thought that that’s a good argument to make, to say the county commission who passed the ordinance, they themselves have been victims of having complaints filed against them and investigations. And if they thought, hey, you guys are doing this wrong, they could’ve changed the law. And they never did. So I’m going to make a note of that, Amanda. It’s a good thing to do.

 

Hon. Alexander S. Bokor:  As a court, I find it a little bit -- just and having been a litigator, too, one can easily poke some holes in that analysis and see that legislatures are busy. They have a lot of things going on. They pass a lot of things. And there may be consensus, or they cobble together consensus to pass something.

 

Let me take it out of this hot button area so I don’t look like I’m speaking out of school. But when you’re drafting a contract with someone else, a real estate deal in the corporate sense, sometimes you paper over differences because that’s the only thing the two of you can agree on. It doesn’t necessarily mean you both agree on how it should be interpreted. It’s almost like using legislative history. This could be a very dangerous road to go down if you subscribe to the theory that one should rely on the plain language and not really on some sort of divination of intent of the parties in legislation.

 

So it’s a little bit different. When you’re looking at a statute, you assume the legislature knows everything that happened before they passed that statute. They’re aware of all other statutes and previous statutes and amendments and versions of that statute. We know that. But we almost have to prove a negative here. This almost short circuits Chevron to become a super deference issue or at least an argument for super deference if you can say, look, the legislature could have done something and they didn’t.

 

That’s a really tough pill to swallow for a reviewing court that sees plain language and thinks that someone got something wrong in interpreting it. And then someone comes in and argues, well, the legislature saw this supposedly horribly erroneous interpretation and chose not to act. That’s tough. That might be another seminar which is who cares about Chevron deference. The legislature saw it. We don’t even get to review it as a court. So that might be a little tough for a lot of folks to swallow.

 

Craig E. Leen:  Well, and I’m looking at some of the questions that we got, and one of them was about --

 

Hon. Alexander S. Bokor:  Yeah. I was just going to get to them, but if you’d like to take some of them, Craig, that’d be great.

 

Craig E. Leen:  One was about Chevron deference as it related to sort of emergencies and looking back at the COVID vaccine and some other issues where major questions came up by the court. Another one was about the specificity, like maybe in questions where you really need expertise there’d be more deference. But in more general issues, there wouldn’t be. I would raise one point to think about.

 

I think a lot of these doctrines -- and you touched on this, major questions, the delegation doctrine, nondelegation doctrine, Chevron, Auer, Skidmore. I think a lot of them and why you’re seeing the judiciary push back a little bit at least at the federal level and from what I’ve seen also at the state level to some extent and through this constitutional amendment, for example, in Florida is a desire to get the Legislative Branch to take more action, to empower it more because of the concern -- I think there used to be a view that the Legislative Branch is the most democratic. The second most democratic is the Executive Branch, and the Judiciary is not democratic by design.

 

And so yeah, we want the legislature making the law. But if someone has to interpret that law, wouldn’t we want the more democratic branch doing that, which is the Executive Branch? And I think that there’s been sort of a retreat from that out of the concern that, well, wait. Now the Administrative or Executive Branch, it seems like their interpretations and their rules -- and you often will see people pile up all the rules. That’s becoming the law and that really it’s the Executive Branch is sort of dominating in this area now through rulemaking and interpretations which are easy for them to do.

 

When I was at OFCCP, I could issue a directive pretty quickly, which was a form of guidance, a form of sub-regulatory guidance. I think that there’s this view that wait, maybe because of our constitutional design, we need the legislature to speak on these issues more clearly and not defer to the Executive Branch. And I tend to agree with that. And I think that the judiciary has a role there in interpreting the law, in interpreting statutes. And that’s why I tend to view this effort to get the legislature to be more active as very democratic.

 

But I see the other side, and I’ve represented local governments. And they put a lot of time -- I want to agree with Amanda and Michael that we put a lot of time into putting these regulations together and go through notice and comment for the rulemaking. So we don’t want to just abandon that either. There’s a benefit to doing that if it’s followed. So it is a tough issue. But that’s my thinking. I tend to be on the side that I want the judiciary coming in and enforcing major questions, asking for the legislature to be clearer in their statute.

 

Hon. Alexander S. Bokor:  Practically, I think Michael maybe made the point especially at the local government level is 97 percent of the time if not more if you’ve done the things right, if you’ve really looked at it with an even hand and gone through some sort of rigorous analysis, regardless of what the standard of review is in the court, you’re probably going to be affirmed in your interpretation if you got it right. And if you didn’t get it right, don’t you want the court -- and this is what you said, Craig. Don’t you want the courts to say no, you got it wrong?

 

And the more hoops you have to jump through to get the courts to finally say you got it right or you got it wrong I’m not sure -- like I said, I think we’ve seen a clear trend in federal courts and certainly in Florida and a lot of other states to say, no, we really want the courts to weigh in on clear interpretive questions like that. But I think, Michael, you said it earlier. Does it really matter? If you’ve got it right, you’re interpreting the ethics code for a city official outside -- you’re a county authority, but you’re interpreting it for a city official. If that’s just a crazy interpretation, of course they should be able to challenge it I think is what you’re saying. But on the other hand, you’re going to give a reasoned interpretation. This is your expertise. It’s going to be very hard for them to win if you’ve got it right. So what difference does it make what the standard of review is of the court?

 

From a practical point of view at the local level, I think we’re all -- there’s not a huge deal of difference between deference and de novo in this context. But I think some of the points we raised -- Craig, you talked about just openness, knowing what the rule is because I think the difference is the federal level you either attack as a major question or it’s clear. There’s a big notice and comment section. Lots of people reviewing it, which might not always be the case at the local level. You might not even know what the rule is you’re being subject to. So I think this raises a whole host of issues at the local level that may not be present at the federal level.

 

For example, in the context of pandemic regulations, at the federal level you at least know what’s going on and have the opportunity to challenge. And even under Chevron deference or whatever exists of it today, for example, the judge I clerked for, Judge Merryday, struck down a bunch of CDC regulations regarding cruise ships even under that standard. So if you get it wrong, you get it wrong. But at the local level, you might not even know there’s a regulation until you’ve already been subject to it.

 

So I think openness and these other practical things come into effect so that you don’t have what I call the shadow Chevron deference, which is basically deference by obfuscation or ignorance. So I think Craig’s website and his 8,400 city attorney opinions are a good thing for the public. But anyway, we have a couple minutes left. I just wanted to give everyone a last word, so we can maybe do it in reverse order here. And I’ll start this time with Amanda.

 

Amanda Conn:  So thanks again, judge, for moderating. I want to make clear I do support going to court and having the court make a final rule because I do agree with Craig that it benefits everyone. But I think weight as the Maryland court has defined it promotes better government, specifically at the local level. When local agencies know if they go through a reasoned process, they’re going to get weight. So they are more transparent. They do things the right way, and they don’t have -- it’s not a shadow thing.

 

And one thing I want to point out is that one thing I always heard at the local government level businesses often may disagree with an agency decision, but they want consistency. And sometimes that’s more important than getting it the way they want. They want to know what -- they don’t want shifting sands. They want to know what the rules are. Thank you.

 

Hon. Alexander S. Bokor:  Thank you very much. Michael.

 

Michael Murawski:  Thank you, judge, for moderating this panel. Thank you again, Craig and Amanda, for being part of it and for having me here. I think I agree a lot with what Amanda said. And I tried to enunciate for the guy who’s going to go to court and argue in front of the judge, does it make that much of a difference to me whether they use the words “deference” or whether they use the words “weight”? I think I’m going to make the same arguments either way.

 

So if I can hold up my ordinance and say, your honor, the people who created this ordinance said we have the authority to interpret it, and so they gave us that authority. And our interpretation is reasonable, and you ought to go along with it as opposed to what the other side is arguing. Again, I don’t think there’s been earth-shattering results since the 2018 amendment. I don’t see that regulatory agencies are all of a sudden getting crushed. I don’t know that it’s going to happen on the federal level either because I will make the prediction that they will overturn Chevron this session. And we’ll see how it plays out.

 

Hon. Alexander S. Bokor: Thank you. Craig, I’ll give you the second to last word.

 

Craig E. Leen:  Thank you, judge. This has been so much fun. I’ve really enjoyed having this discussion with all of you today. The one point I would emphasize is that administrative agencies, including cities, combine quasi-judicial, quasi-legislative, and quasi-executive power and in many ways affect daily life more than Congress or the President or the governor or the legislature. You’re interacting with them directly. And it’s so incredibly important that those administrative agencies have checks because they combine those three powers.

 

So in my view, I think in the end when that case gets up to the judiciary, which sometimes takes years—and I think that needs to be looked at, too. It should be quicker—when it gets up to the judiciary and a legal opinion can be given that is binding that the judges should give it. And I think that in the end will benefit our system more, including the local governments themselves.

 

Hon. Alexander S. Bokor:  All right. Well, thank you all. And I think in Florida the voters determined that it’s tough to fight city hall to go back to our topic. But Chevron deference isn’t something that the city needs to have in their quiver. And it gives the people one more chance to make sure the government and the courts get it right. But there’s many ways to do it. And I think at the end of the day we’ve had a really interesting discussion, and there’s much more to talk about. And I want to thank The Federalist Society and my panelists for this lively discussion. And I turn it back over to you.

 

Chayila Kleist:  Absolutely. On behalf of The Federalist Society and myself thank you to our experts for the benefit of your valuable time and expertise today and thank you to our audience for joining and participating. We welcome listener feedback by email at [email protected]. And as always, keep an eye on our website and your emails for announcements about other upcoming virtual events. With that, thank you all for joining us today. We are adjourned.