Wisconsin Supreme Court to Address Constitutionality of Agency Deference

Last week, the Wisconsin Supreme Court accepted several new cases for review, among them: Tetra Tech v. Wisconsin Dep’t of Rev. This case is interesting, not because of the underlying dispute, but because the Court asked the parties to prepare arguments related to a topic that has been trending in the Court of late: whether the practice of deferring to agency interpretations of statutes comports with the judicial power vested in the Court by the Wisconsin Constitution.

This issue was raised recently in the Court’s opinion in Operton v. Labor and Industry Review Comm’n, where the LIRC argued that its interpretation of a law was entitled to “great weight” deference, even though the commission had no previous experience interpreting that law. Although the majority opinion declined to opine as to that issue, three of the seven justices filed a concurring opinion asking the Court to end its longstanding practice of deferring to an agency’s interpretation of a law, unless clearly erroneous. In the coming weeks, look for updates to this story, as I will be delving further into this issue and will provide additional analysis.