Florida’s Zombie Chevron Problem
Florida’s Zombie Chevron Problem: An analysis of DHSMV v. Chakrin, binding precedent, and administrative agency deference in light of Art. V, § 21, Fla. Const.
On October 14, 2020, the Florida Second District Court of Appeal issued its opinion in DHSMV v. Chakrin reinstating the suspension of petitioner’s driver’s license. In so doing, the Second District continued to shape and define the role of courts, particularly circuit courts sitting in their appellate capacity, when it comes to administrative agency deference and whether deferential jurisprudence written prior to Art. V, § 21 being added to the Florida Constitution still binds the circuit courts.
In understanding the implications of this decision, a review of Chevron deference and Art. V, § 21, Fla. Const. is important.
- A. Chevron Primer.
As administrative law practitioners are well aware, the Chevron doctrine describes the manner by which courts “defer” to administrative agencies’ interpretations of ambiguous statutes over which each respective agency has been delegated rulemaking authority by the legislature. The doctrine gets its name from Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837 (1984) in which the United States Supreme Court ruled that in instances where a law passed by Congress is silent or ambiguous with regard to an issue, the courts must defer to an agency’s interpretation of the law it is in charge of implementing unless that interpretation is unreasonable. In the intervening years, Chevron has become a broad sweeping rule of construction which requires deference to the agency’s interpretation even if the court finds that other interpretations of the statute are reasonable or believes that the agency’s interpretation is not the most reasonable among competing interpretations. As explained in Chevron,
When a court reviews an agency’s construction of the statute which it administers, it is confronted with two questions. First, always is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issues, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.
476 U.S. at 842-843.
- B. Art. V, § 21 Fla. Const.
Although the Chevron doctrine is a creature of federal case law, until 2018 the doctrine was applied with equal force by Florida courts when considering state administrative agencies’ interpretations of ambiguous Florida laws. However, in 2018, Florida voters passed an amendment to the Florida Constitution which states:
Art. V., SECTION 21. Judicial interpretation of statutes and rules.—In interpreting a state statute or rule, a state court or an officer hearing an administrative action pursuant to general law may not defer to an administrative agency’s interpretation of such statute or rule, and must instead interpret such statute or rule de novo.
Art. V, § 21 thus reshaped the deference afforded by courts to administrative agency interpretations of statutes and rules over which they have jurisdiction. However, an unanswered question is whether the plain language of Art V, § 21 displaced existing case law, i.e. jurisprudence written prior to the 2018 amendment to the Florida Constitution. DHSMV v. Chakrin helps shed light on this issue.
- C. The Chakrin Decision.
Chakrin involved a petition for the reinstatement of Chakrin’s driver’s license after it was permanently revoked by DHSMV following Chakrin’s DUI manslaughter conviction. Under the relevant law at issue, even if a party’s license is “permanently” revoked, the party may later have his license reinstated if he meets certain factors, including, as relevant here, being “drug-free” for at least five years prior to the hearing. At Chakrin’s hearing, he admitted to consuming one beer during this period. As a result of this admission, the DHSMV denied reinstatement finding that, due to the consumption of alcohol, Chakrin had not been “drug-free” within the past five years.
Chakrin filed a petition for certiorari in the circuit court arguing that the agency erred in denying the reinstatement of his license because the statute does not specifically reference alcohol use; therefore, the agency’s interpretation of “drug-free” as including “alcohol-free” was a departure from the essential requirements of law. The circuit court agreed and quashed the agency’s decision. As part of its findings, the circuit court found that “the court is no longer required to defer to the Department’s interpretation of the word ‘drug’ and [that it] is not bound by case law relying on such interpretations.” (emphasis added). It was this latter finding that the Second District took issue with when the agency sought second-tier certiorari review.
In quashing the circuit court’s decision and reinstating the agency’s decision to deny reinstatement, the Second District found that the circuit court failed to apply the correct law because it ignored binding precedent which had previously interpreted the statute to include alcohol consumption within the meaning of drug use. In so finding, the Second District clarified that the circuit court’s determination that it was not bound by pre-amendment cases was incorrect. In short, according to the Second District, district courts of appeal decisions represent the law of the land in Florida unless and until they are overruled. The Court noted that there were two potential bases for ignoring such precedent: i) if the plain language of the statute conflicts with prior precedent; or ii) if Art. V, § 21 changed the precedential value of prior cases interpreting the statute under the Chevron standard of deference. However, the Court found neither circumstance existed to allow the circuit court, within the limited scope of its review on certiorari, to disregard prior precedent.
With regard to Art. V, § 21, the Second District found that the constitutional amendment’s language does not address the precedential value of past cases which were based on Chevron deference. While the Court recognized that the amendment begged the question of whether such precedent was outdated, the Court was quick to explain that the decision to overturn precedent is the proper function of the courts which actually make precedent, i.e. the District Courts or the Florida Supreme Court, as opposed to circuit courts even when ruling in a limited appellate capacity. Thus, the circuit court was required to apply the precedent of the district court and could not simply ignore it and substitute its own statutory interpretation.
In its opinion, the Second District also opined on a gap in the appellate rules which distinguish reviews of administrative proceedings in the circuit courts from reviews of county court proceedings which can be heard in either circuit courts or the district courts. Under the current rules, a county court can certify a question of great public importance to the district court. Fla. R. App. P. 9.030(b)(4)(A); Fla. R. App. P. 9.160. The Court explained that in situations where a question exists on whether prior precedent controls, the County to District Court certification process (wherein the district court decides the appellate issue rather than the circuit court) provides an avenue for the precedent-making court to directly address the issue. However, no such certification process exists under statute or the rules of appellate procedure to allow for a certification of great public importance in instances where a circuit court is hearing an appeal of an administrative decision. Whether this gap in the rules is ultimately rectified by future changes remains to be seen.
The practical effect of the Second District’s opinion is that although Chevron deference may now be unconstitutional in Florida, precedent based upon the Chevron doctrine continues to govern unless and until overruled by the court that issued it in the first instance. Thus, agency deference – for the time being – remains a jurisprudential revenant practitioners must be aware of.
The impacts of Art. V, § 21 on administrative/government agency litigation continue to evolve. The administrative law and appellate attorneys of FIDJ have represented clients in administrative litigation and appeals in state and federal courts across the country. For more information on our administrative law and appellate practice groups, you can email us at firstname.lastname@example.org or call us at 305.350.5690.