Legal Memorandum: Application of the Deference Principle

Issue: What deference is due the Department of Health’s interpretation of its own regulation, and/or its action in approving a blood alcohol breath testing device?

Vermont courts have long applied a deferential standard of review to administrative decisions both out of respect for agency expertise and to preserve the appropriate separation of judicial and executive powers.  Town of Victory v. State, 2004 VT 110, ¶ 16, 177 Vt. 383.  Consequently, “absent a clear and convincing showing to the contrary, decisions made within the expertise of administrative agencies are presumed to be correct, valid, and reasonable.”  Gasoline Marketers, Inc. v. Agency of Natural Res., 169 Vt. 504, 508 (1999).

More specifically deference is also accorded to an agency’s interpretation of its own regulations.  See, e.g., Judicial Watch, Inc. v. State, 2005 VT 108, ¶ 10, 179 Vt. 214 (“Absent compelling indications of error, interpretations of administrative regulations or statutes by the agency responsible for their execution will be sustained on appeal.”).  However, such deference does not equate to rubberstamping an agency’s interpretation of either statutes or regulations.  The courts “must endeavor to ensure that such deference does not result in ‘unjust, unreasonable or absurd’ consequences.”  In re Verburg, 159 Vt. 161, 165 (1992) (quoting O’Brien v. Island Corp., 157 Vt. 135, 139 (1991)).  And, “[w]hile some deference may be given to an administrative agency’s construction of its own enabling legislation or regulations, an agency has no discretion to ignore statutory policy.”  In re Petition of Town of Sherburne, 154 Vt. 596, 607 (1990).

Whenever the deference principle is applied, “the level of deference will often depend […]