Kentucky’s three branches of government are equal. They should stay that way | Opinion

Pending before the Kentucky House is Senate Bill 84, a bill that seeks to tell Kentucky courts their business. It would dictate to Kentucky’s courts what level of scrutiny to apply to questions of law. It would prohibit the courts from giving any consideration to the views of the agencies who implement those laws on a day to day and year to year basis. It would mandate that the courts, after using all tools to parse what an ambiguous law or regulation meant, choose the meaning that works to minimize the power of the agencies entrusted to apply that law.

Why should you care?

Because the independence of the judiciary and the judicial function as a check and balance to the power of both the legislature and executive branch has never been more important. It should be free from encroachment by a legislative branch of Kentucky government that has tended in recent years to invade that province and cross that street to skew the process and outcome of some cases before the courts. And where protection of workers in the workplace, and of the public health, safety, and quality of life are concerned, the interference reflected in Senate Bill 84 could tip the scales of justice against worker, public, and environmental protection.

Kentucky has what is known as a “hard” separation of powers in our state Constitution. We have three branches of government intended to be coequal, and the construction of statutes, regulations, and agency orders, and the rules governing that task, are firmly entrusted to the judiciary by our Commonwealth’s constitution.

The General Assembly cannot dictate to the Courts the scope of review of questions of fact or of law in an appeal from agency action. Since the de novo standard for review of matters of law that is in Senate Bill 84 is the standard already applied by Kentucky courts, this unconstitutional intrusion into the judicial function may be tolerated by Kentucky’s courts as a matter of comity, since it adds and removes nothing from current court decisions and practice. Yet there neither reason nor need to provoke a constitutional conflict for no effect.

By seeking to prohibit the court from giving any consideration to an agency interpretation of any statute, regulation, or order, Senate Bill 84 intrudes yet again on the judicial function. While some claim that giving no deference to the views of those agencies that have been entrusted to implement the laws is consistent with recent U.S. Supreme Court decisions, it is not. In the 2024 case of Loper Bright Enterprises v. Raimondo, the U.S. Supreme Court rejected its prior Chevron doctrine that had accorded controlling deference to any reasonable construction of an ambiguous law by an agency.

The Loper Bright Court returned to an earlier standard, known as the Skidmore standard, that recognizes that agency expertise and experience can provide important guidance in construction of statutes and regulations, but that courts should not abdicate responsibility for determining what the law requires. In Kentucky, the courts have never considered themselves bound by an administrative body’s interpretation of a statute. Long before Chevron and after, Kentucky law has been that in matters of statutory construction, the courts have the ultimate responsibility. Yet Kentucky courts acknowledge that agency interpretations of laws and their own regulations do constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance. Prohibiting any deference to agency interpretations of law, or its own or other agency regulations, and of agency orders, as proposed in SB 84, is inconsistent both with Loper Bright, and with Kentucky court decisions, and intrudes on the judicial function by barring use of one of many tools for judicial construction of laws and regulations.

While a certain tension among coequal branches of state government is inevitable and healthy, encroachment into essential functions of the judiciary borne out of a hostility towards the agencies created by the General Assembly to implement the laws and the programs they enact, is not. And where public and workplace health, safety, and environmental quality are concerned, mandating that courts ignore the expertise and viewpoint of those agencies who toil daily at short pay and with little appreciation to implement those protections, is short-sighted as well as unconstitutional. The courts, and the public who are the constituents of the legislators, all benefit from the experience and expertise of those who implement the laws and regulations.

Finally, Senate Bill 84 tells the courts how to resolve ambiguities, reaching back in time to direct that in any case where the intent of a law is still unclear, after applying the usual tools to interpret it, the choice should always be that which leans against agency authority. The judicial function is always to give full effect to laws as enacted, unvarnished by some later broad recasting of the history, intent, and purpose of such laws where an agency’s actions are at issue.

The independence of the judiciary has never been more essential than in our troubled times, and it should be free of encroachment into the judicial function of interpretation of laws, regulations, and executive branch orders. That judicial function should be guided by the expertise and viewpoint of those charged daily with implementing those laws, and mindful of the purposes of those laws as announced by the General Assembly when the laws are passed. There is plenty of work to be done on its own side of the street, and the General Assembly should not cross the street in order to hamstring the courts in their independent role, nor the agencies charged with implementing the public, worker, and environmental protection goals that the General Assembly set in years passed.

Tom “Fitz” FitzGerald is former director and currently of counsel to the Kentucky Resources Council, a non-profit Kentucky organization providing legal and technical assistance without charge on a range of environmental and energy issues affecting Kentuckians.