Pending before the House Licensing and Occupations Committee is a bill that seeks to tell Kentucky courts their business.??

Senate Bill 84 would dictate to Kentucky 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 that 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. The judiciary should be free from encroachment by a Kentucky legislature that has tended in recent years to invade that province and cross that street to skew the process and outcome of some cases. And where protection of workers in the workplace, public health, safety and quality of life are concerned, the interference reflected in SB 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. 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 in SB 84 is the standard already applied by Kentucky courts, this unconstitutional intrusion may be tolerated by the courts as a matter of comity, since it adds and removes nothing from current court decisions and practice. Yet there is 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, SB? 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. The bill 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 born out of a hostility towards the agencies created by the General Assembly to implement the laws and the programs it enacts is not. And where public and workplace health, safety and environmental quality are concerned, mandating that courts ignore the expertise and viewpoint of agencies who toil daily at short pay and with little appreciation to implement those protections is shortsighted as well as unconstitutional. The courts and the public who are legislators’ constituents all benefit from the experience and expertise of those who implement the laws and regulations.

Finally, SB 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 when 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 interpreting? 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.?

The General Assembly has plenty of work to do on its own side of the street. The legislature should not cross the street in order to hamstring the courts in their independent role, nor the agencies charged with implementing public, worker and environmental protection goals the General Assembly set in years past.