SUPREME COURT OF GEORGIA
Case No. S22C0513
January 27, 2023
The Honorable Supreme Court met pursuant to adjournment.
The following order was passed:
AMY N. CAZIER et al. v. GEORGIA POWER COMPANY.
The Supreme Court today denied the petition for certiorari in this case.
Peterson, P.J., Bethel and LaGrua, JJ., and Judges Jeffrey
O. Monroe and Shondeana Morris concur. Boggs, C.J., Warren, Ellington, McMillian, and Pinson, JJ., disqualified, and Colvin, J., not participating.
SUPREME COURT OF THE STATE OF GEORGIA
Clerk’s Office, Atlanta
I certify that the above is a true extract from the
minutes of the Supreme Court of Georgia.
Witness my signature and the seal of said court hereto
affixed the day and year last above written.
, Clerk
PETERSON, Presiding Justice, concurring.
I concur in the Court’s denial of certiorari in this case. The
issues here have gravity, and Cazier makes a number of good points:
interpreting the law is the role of courts; judicial deference to
executive branch legal interpretations poses a risk to the separation
of powers; and, in any event, whatever permissible role there might
be for such deference, a law is not “ambiguous” simply because
interpreting it is hard. See City of Guyton v. Barrow, 305 Ga. 799,
803-04 (2) (828 SE2d 366) (2019). But the law of the case doctrine
prevents us from reaching those important issues here, and so the
Court correctly declines to do so. Nevertheless, I write separately to
express my growing doubt about our recent precedents requiring
judicial deference to executive branch agencies’ interpretation of
legal text.
My doubt has a constitutional origin: judicial deference to
executive branch legal interpretations implicates the Separation of
2
Powers Provision of the Georgia Constitution. See Ga. Const. of
1983, Art. I, Sec. II, Par. III (“The legislative, judicial, and executive
powers shall forever remain separate and distinct; and no person
discharging the duties of one shall at the same time exercise the
functions of either of the others except as herein provided.”); see also
Ga. Const. of 1983, Art. VI, Sec. I, Par. I (“The judicial power of the
state shall be vested exclusively in the following classes of courts:
magistrate courts, probate courts, juvenile courts, state courts,
superior courts, state-wide business court, Court of Appeals, and
Supreme Court.”); City of Guyton, 305 Ga. at 799 (“At the core of the
judicial power is the authority and responsibility to interpret legal
text.”). Because the Separation of Powers Provision has been carried
forward unchanged through every Georgia Constitution since 1877,
and every previous Georgia Constitution contained a similar
provision, our historical understanding of judicial deference to the
legal interpretations of other branches informs our understanding
of whatever limitations our current Constitution may place on the
subject. Cf. Black Voters Matter Fund, Inc. et al. v. Kemp, et al., 313
3
Ga. 375, 396 & n.27 (870 SE2d 430) (2022) (Peterson, J., concurring)
(detailing the history of the Provision and suggesting that a century
of pre-1983 standing precedent may be “baked into the 1983
Constitution[’s]” Provision). 1
But our history of deference is messy; our precedent is all over
the place, and has been for nearly the entire existence of our Court.
Eight years ago, we announced for the first time in our state’s
history that our precedent on judicial deference to executive branch
legal interpretations is best understood through the federal lens of
Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467
U.S. 837 (104 SCt 2778, 81 LE2d 694) (1984). That recency poses a
problem. If — as it appears to me — our post-1983 decisions
pronounced deference principles without proper grounding in our
cases interpreting the earlier versions of the Constitution, then
1 Following my concurrence in Black Voters Matter Fund, we held that at least some Georgia standing rules do arise from the Georgia Constitution — but we found those particular rules arose instead from the provision that vests the “judicial power” in Georgia courts. See Sons of Confederate Veterans v. Henry Cnty. Bd. of Comm’rs. et. al, ___ SE2d ___ , S22G0039, S22G0045 at *15 (Ga. Oct. 25, 2022). We left open the possibility that the Separation of Powers Provision may inform the scope and nature other standing rules, however. See id. at *10 n.13, 19.
4
those post-1983 decisions do not shed light on the original public
meaning of the current Separation of Powers Provision. And as I
explain below, our pre-1983 precedent does not appear to support a
Chevron-style regime. So, in an appropriate case, I think we should
reconsider the matter.
1. Our recent discovery of Chevron-style deference in our precedent was ill-founded.
In Chevron, the United States Supreme Court held that courts
should defer to a federal agency’s reasonable interpretation of
ambiguous federal statutes, reasoning that such ambiguity
represents an implicit delegation from Congress for the agency to
decide that question. See 467 U.S. at 843-44, 865-67. Under
Chevron, courts must first ask “whether Congress has directly
spoken to the precise question at issue.” Id. at 842-43. “[I]f the
statute is silent or ambiguous with respect to the specific issue, the
question for the court is whether the agency’s answer is based on a
permissible construction of the statute.” Id. at 843.
5
Eight years ago, we asserted for the first time that our
deference precedent was properly understood as “in accord with that
identified by the United States Supreme Court in Chevron.” See
Cook et al. v. Glover, 295 Ga. 495, 500 (761 SE2d 267) (2014). We
were wrong. Nothing we cited in Cook supported that view. And
Georgia deference precedent historically had different rationales
from Chevron, was less binding, and principally applied to longstanding interpretations (again, unlike Chevron).
a. None of the cases cited in Cook support its claim about our deference precedent.
Cook’s novel assertion about Chevron and our own precedent
came in a case involving the application by a state agency of a legal
interpretation of federal law by a federal agency (to which Chevron
would apply anyway as a matter of federal law), and came over the
disagreement of two justices. 295 Ga. at 497-98, 502-03. But on
closer examination, none of the cases Cook cited for the idea that
Georgia law resembles Chevron actually support it — and certainly
not in any way that reveals a consistent and definitive construction
6
of our Separation of Powers Provision. 2 See id. at 499-501 (citing
Handel v. Powell, 284 Ga. 550, 553 (670 SE2d 62) (2008); Schrenko
v. DeKalb County School District. See 276 Ga. 786, 791 (2) (582 SE2d
109) (2003); Center for a Sustainable Coast v. Coastal Marshlands
Protection Committee, 284 Ga. 736, 741 (2) (761 SE2d 267) (2014);
Ga. Real Estate Comm’n. v. Accelerated Courses in Real Estate, 234
Ga. 30, 32 (2) (214 SE2d 495) (1975); Ga. Dept. of Community Health
v. Medders, 292 Ga. App. 439, 440 (664 SE2d 832) (2008)).
In Handel, the Secretary of State argued that the courts were
required to defer to the Secretary’s interpretation of the statute
governing the residency requirement for a PSC candidate. 284 Ga.
2 By this I mean that these cases do not explain the meaning of our Separation of Powers Provision with such consistency and clarity that, by reenacting the provision into later Constitutions without material change, the legislature is presumed to have baked those interpretations into the original public meaning of our current Constitution. See Elliott v. State, 305 Ga. 179, 184-85 (II) (B) (824 SE2d 265) (2019) (“A constitutional clause that is readopted into a new constitution and that has received a consistent and definitive construction is presumed to carry the same meaning as that consistent construction” because, when the framers of a new constitution “’adopt provisions contained in a former Constitution, to which a certain construction has been given, [they] are presumed as a general rule to have intended that these provisions should have the meaning attributed to them under the earlier instrument’”) (quoting Thompson v. Talmadge, 201 Ga. 867, 885 (2) (41 SE2d 883) (1947)).
7
at 553. We rejected that argument, pointing out that “[an] agency’s
interpretation is not binding on the courts, which have the ultimate
authority to construe statutes.” Id. Although we did say that
“judicial deference is [generally] afforded an agency’s interpretation
of statutes it is charged with enforcing or administering,” id., we
made clear that the role of the judicial branch is to make “an
independent determination as to whether the interpretation of the
administrative agency correctly reflects the plain language of the
statute[.]” Id. (quoting Sawnee Elec. Membership Corp. v. Ga. Pub.
Svc. Comm., 273 Ga. 702, 706 (544 SE2d 158) (2001)). Courts
independently determining whether an agency’s interpretation is
correct is not Chevron-style deference.
In the next case, Schrenko, we cited our 1939 decision State v.
Camp, 189 Ga. 209, 216-17 (6 SE2d 299) (1939), and a Court of
Appeals case following the Camp line, for the proposition that
“[w]here statutory provisions are ambiguous, courts should give
great weight to the interpretation adopted by the administrative
agency charged with enforcing the statute.” Schrenko, 276 Ga. at
8
791 (citing). But Camp itself did not defer to the State Revenue
Commissioner’s interpretation in that case — it applied (among
other interpretive principles) the longstanding canon of construction
that “ambiguous tax statutes . . . should be construed most strongly
in favor of the citizen.” 189 Ga. at 216-17. And in the very next
sentence, our opinion in Schrenko cited Sawnee for the proposition
that “this Court is ‘not bound to blindly follow’ an agency’s
interpretation,” and we defer to an agency’s interpretation only
when it reflects the meaning of the statute. Schrenko, 276 Ga. at 791
(2). Indeed, Sawnee went further and explained that
“[a]dministrative rulings are not binding on this Court, and will only
be adopted when they conform to the meaning which the appellate
court deems should properly be given[.]” 273 Ga. at 706 (emphasis
added). Again, this does not sound anything like Chevron.
The next case Cook relied on, Sustainable Coast, relied on
Schrenko and Georgia Department of Revenue v. Owens Corning, 283
Ga. 489, 490 (660 SE2d 719) (2008). See Sustainable Coast, 284 Ga.
at 741. Schrenko, as I just explained, cannot support a state version
9
of Chevron. Owens Corning, in turn, relied on Kelly v. Lloyd’s of
London, 255 Ga. 291, 293 (336 SE2d 772) (1985), which relied on a
Court of Appeals case grounded in the unquestioning application of
federal deference cases. See id. This sort of unreasoned precedent
tells us little about how properly to think about judicial deference to
executive branch legal interpretation, much less anything about the
original meaning of the Georgia Constitution’s Separation of Powers
Provision and its implications for this question (especially when that
precedent is from the Court of Appeals, which lacks jurisdiction to
decide unsettled questions of constitutional law).
The only pre-1983 case Cook cited on the subject was Georgia
Real Estate Commission, which purported to find a generallyapplicable two-part test for the validity of agency action: “(1) Is it
authorized by statute, and (2) is it reasonable?” 234 Ga. at 32 (2)
(citation omitted). But the case it cited for that proposition, Eason v.
Morrison, did not announce a general requirement of deference to
reasonable agency interpretations; instead, it interpreted a statute
that gave the agency “power to adopt all reasonable rules and
10
regulations” required to implement the statute. 181 Ga. 322, 322
(182 SE 163) (1935). We held there that the statute’s textual
requirement of reasonableness meant that an otherwise statutorilyauthorized rule must also be reasonable in order to pass muster. Id.
at 323. That holding — based on the specific statutory text at issue
in that case — was necessarily limited to statutory contexts with
similar textual requirements. So if later cases like Georgia Real
Estate Commission took that to establish a broader rule of deference
to any agency rules that were reasonable, then they grossly misread
Eason. See 234 Ga. at 30.
In any event, Georgia Real Estate Commission itself did not
invoke reasonableness as a sufficient threshold for deference — it
purported to say that regulations must be substantively reasonable
as well as authorized by statute. See id. at 32 (1) (“An agency rule
might be reasonable but unauthorized by statute, or authorized by
statute but unreasonable. In either event, it could not stand.”). Even
if that conclusion had been correct as applied to statutory schemes
without a textual reasonableness requirement, it still was wholly
11
inconsistent with a Chevron-style deference regime, in which
reasonableness replaces a de novo judicial determination of whether
a rule is authorized by statute.
Finally, Cook cited a Court of Appeals case, Medders, which
(through a series of earlier Court of Appeals decisions) finds its roots
in three of our cases. See 292 Ga. App. at 440. The first is Camp,
which, as discussed above, did not defer at all. The second is
Solomon v. Commissioners of Cartersville, 41 Ga. 157, 161 (1870),
which appeared to defer to the longstanding practice of the executive
branch as a prudential reason not to rule otherwise. See id. (“If this
was an original question, independent of any construction heretofore
given by the Executive Department . . . we should be inclined to hold,
that the Governor could not approve and sign any bill after the
adjournment of the General Assembly; but on looking into the past
history of our legislation, we find that it has been the practice for
many years . . . and that a large number of the most important Acts
now upon the statute books of the State have been so approved and
signed, which usage and practice of the Executive Department of the
12
State Government, should not now, in our judgment, be disturbed or
set aside.”).3 And the third is Wilson v. Pollard, which essentially
confirmed a prior interpretation of a statute based on a theory of
legislative acquiescence. 190 Ga. 74, 79 (4) (8 SE2d 380) (1940) (“the
legislature has met many times during the half century that has
passed since the [prior] decision was rendered . . . . During this long
period the legislature has at no time indicated dissatisfaction or
disagreement with the construction placed upon that act . . . . By
such silence the conclusion is inevitable that the legislature is in
agreement with this court’s interpretation of that act.”).
Simply put, Cook did not cite anything that actually justified
its statement that our deference precedents align with Chevron —
and certainly nothing of an age or stature to show a consistent and
definitive construction of our Separation of Powers Provision.
3 It’s also important to understand Solomon in the context of the enormous implications if the Court had gone the other way. As the Court noted, a contrary ruling would have voided “a large number of the most important Acts now upon the statute books of the State.” Solomon, 41 Ga. at 161. If bad facts make bad law, we should perhaps recognize that cases in which the Court strains to avoid a government-shattering conclusion may not be the best cases around which to build new legal doctrines.
13
b. Our decision in Tibbles similarly failed to show that we have applied this Chevron-style approach for a long time.
And yet, the year after Cook, we doubled down and said that
this Chevron-style approach “is not a new one” in Georgia. Tibbles v.
Teachers Retirement System of Ga., 297 Ga. 557, 559 (1) & n.1 (775
SE2d 527) (2015) (citing David E. Shipley, “The Chevron Two-Step
in Georgia’s Administrative Law,” 46 Ga. L. Rev. 871, 888-916 (III)
(2012)). We relied on largely the same cases for that notion. See id.
(citing, among other things, Cook, 295 Ga. at 500 and Sustainable
Coast, 284 Ga. at 741).4
4 In Tibbles, we also cited Pruitt Corp. v. Ga. Dept. of Community Health, 284 Ga. 158, 159-160 (2) (664 SE2d 223) (2008), for the proposition that a duly enacted regulation may be entitled to deference. 297 Ga. at 565 (2) (b). We appeared to assume in Pruitt that “judicial deference is to be afforded [an] agency’s interpretation of statutes it is charged with enforcing or administering” (as well as rules it promulgates). 284 Ga. at 159 (2). But we did so based only on a statement in Atlanta Journal v. Babush, 257 Ga. 790, 792 (2) (364 SE2d 560) (1988), which adopted “the view expressed in United States v. Larinoff, 431 U.S. 864, 872 (1977) that[,] in construing administrative rules, ‘the ultimate criterion is the administrative interpretation, which becomes of controlling weight unless it is plainly erroneous or inconsistent with the [rule].’” Needless to say, uncritically importing federal precedent years after the adoption of the 1983 Constitution, as Atlanta Journal did, tells us little about a proper understanding of Georgia deference law, much less the original meaning of the Separation of Powers Provision and any implications that meaning may have for deference. And we have questioned whether Atlanta
14
We also elaborated that “the General Assembly properly may
leave some matters to the discretion of the Executive Branch,”
Tibbles, 297 at 559 (1) (citing Dept. of Transp. v. City of Atlanta, 260
Ga. 699, 703 (1) (398 SE2d 567) (1990) (“DOT”)), and suggested “that
some ambiguities may be better resolved by officers and agencies of
the Executive Branch,” id. (citing Bentley v. Chastain, 242 Ga. 348,
350-51 (1) (249 SE2d 38) (1978)). But those are just potential
rationales for deference — they are not indications of a consistent
and definitive Chevron-style approach to deference. DOT decided
that the exercise of the eminent domain power by an executive
agency was not an unconstitutional delegation of legislative power.
260 Ga. at 703-04 (1). It said nothing about whether deference to
executive branch legal interpretations posed a separation of powers
problem. See id.5
Journal was rightly decided on this point. See City of Guyton, 305 Ga. at 799, 801-02 (noting that we granted certiorari to reconsider Atlanta Journal’s adoption of federal deference precedent, but not reaching issue); Premier Health Care Invs., LLC v. UHS of Anchor, L.P., 310 Ga. 32, 38 (3) (a) n.5 (849 SE2d 441) (2020) (noting question remains open).
5 We also have since questioned the soundness of DOT’s non-delegation
holding. See Premier Health Care Invs., LLC, 310 Ga. at 49 n.18.
15
And while Bentley discussed rationalizations for deference to
agency decisions, it was not itself a deference case at all. 242 Ga. at
350-51 (1). The issue there was whether the General Assembly could
expand judicial review of agency action beyond “[asking] whether
the agency acted beyond the discretionary powers conferred upon it”
— i.e., whether the agency acted within the bounds of its statutory
authority — into “a de novo jury trial” on the appropriateness of the
agency’s decisions. Id. at 352 (1). We held (rightly or wrongly) that
it could not. 6 Id. In any event, nothing in Bentley established or
revealed any general rule of deferring to an agency’s reasonable
interpretation of its statute.7
6 Our holding in Bentley was that a statute and ordinance permitting such judicial review of a decision of a county board of zoning appeals violated separation of powers. Id. That holding strikes me as questionable; as I have previously explained, we have a substantial line of case law holding that the Georgia Constitution’s Separation of Powers Provision applies only to the state, and not to city or county governments. See City of Union Point v. Greene County, 303 Ga. 449, 461-463 (812 SE2d 278) (2018) (Peterson, J., concurring).
7 It’s also worth noting that the lion’s share of Bentley’s limited
constitutional analysis was a block quote of a Maryland court interpreting the Maryland Constitution. See Bentley, 242 Ga. at 350 (quoting Dept. of Natural Resources v. Linchester Sand &c. Corp., 274 Md. 211, 222 (334 A2d 514, 522) (1975)).
16
In short, our recent discovery of longstanding Chevron-type
deference within our precedents appears wrong. The few pre-1983
cases cited in support of deference don’t offer sufficient support for
Cook or Tibbles, and only four of our post-1983 cases in this line even
held that deference was appropriate. This is little basis for a state
version of Chevron, let alone one consistent with the original public
meaning of our Separation of Powers Provision. And as we’ll see in
the next division, our pre-1983 case law — the cases most relevant
to the original public meaning of the 1983 Constitution — simply
cannot be read as consistent with Chevron.
2. Viewed as a whole, our historic deference precedents diverge from each other and the federal regime many times over.
Looking beyond the few cases we’ve cited in support of a state
version of Chevron, we see that our case law is far more diverse than
we have acknowledged. Our cases diverge from each other — and
from the federal regime — in numerous and important ways.
17
a. The justifications for deference vary.
First among the many points on which our precedents diverge
is the justification for deference to executive branch legal
interpretation. Most recently, as the United States Supreme Court
has done in Chevron and its progeny, we have focused on the notion
that the General Assembly purports to delegate to the executive
branch some authority to resolve ambiguity in the statutes it
administers. See, e.g., Tibbles, 297 Ga. at 563-64 (2) (b) (relying on
United States v. Mead Corp, 533 U.S. 218, 226-27 (121 SCt 2164, 150
LE2d 292) (2001)); Cook, 295 Ga. at 500. But I see little evidence of
this justification in our earlier cases.
At least one of our earliest deference cases, for example,
justified deference to a long-standing legal interpretation by county
officials as a particularly strong form of legislative acquiescence. In
Rice v. Johnson, we noted that county tax collectors had for decades
acted under a particular understanding of tax law. 20 Ga. 639, 644
(1856). We held that this long-standing practice was not merely
evidence of the county officials’ understanding, but also of the
18
General Assembly’s approval of it: “for if the Legislature had not
thought so, they would have passed a law to authorize a change of
the practice.” Id. We thus concluded that the General Assembly
intended the law to be as the county officials understood it, and we
applied that construction. See id. We then cited Rice two decades
later as authority for the proposition that “the usage of the executive
department may be invoked properly and legally to throw light upon
words used in the statutes of the state.” Miller v. Wilson, 60 Ga. 505,
507-08 (1879). And that principle re-appeared in later deference
cases. See Camp, 189 Ga. at 217 (adding, in support of the rule that
tax statutes be construed in favor of the taxpayer, that the trial
court’s ruling was correct because it was “in accord with the [prior]
interpretation which ha[d] been given by the State administrative
authorities for a number of years, during which time there ha[d]
been several sessions of the General Assembly without any
disturbance of such administrative interpretation”); Schrenko, 276
Ga. at 791 (2) (relying on Camp for the proposition that courts
19
should give great weight to the interpretation adopted by the
administrative agency charged with enforcing the statute).
Since that time, though, we have become critical of applying
the principle of legislative acquiescence to our own decisions, let
alone those of executive branch agencies:
Legislative silence is a poor beacon to follow in discerning
the proper statutory route. Legislative inaction
frequently betokens unawareness, preoccupation, or
paralysis. It is at best treacherous to find in legislative
silence alone the adoption of a controlling rule of law.
Where, as in the case before us, there is no indication that
a subsequent General Assembly has addressed itself to
the particular problem, we are unpersuaded that silence
is tantamount to acquiescence, let alone approval[.]
State v. Jackson, 287 Ga. 646, 659 (5) n.8 (697 SE2d 757) (2010)
(cleaned up) (quoting Zuber v. Allen, 396 U.S. 168, 185 & n.21 (90
SCt 314, 24 LE2d 345) (1969) (citations and punctuation omitted)).
b. The force or strength of deference is inconsistent.
A second point on which our precedents have been inconsistent
is the force with which deference applies. Recently, mimicking
federal law, we have held that courts are bound to follow an
executive branch legal interpretation when the principles of
20
Chevron would so require. See Cook, 295 Ga. at 501 (reversing Court
of Appeals for substituting its own plausible construction for the
reasonable construction of the relevant agency). But although some
language in our older opinions might be read as supporting such a
result, our actual historical practice does not.
A substantial portion of our deference precedent has held that
executive branch legal interpretations are persuasive authority,
entitled only to “consideration” (and “weight,” if weight and
consideration are different things). See, e.g., Howell v. State, 71 Ga.
224, 229 (1883) (“The practice of the various departments of the
government, as a means of collateral interpretation, is not to be
rejected by the courts, in passing upon the constitutionality of a law.
It is entitled to consideration and weight, especially in view of
another settled rule, that a law is not to be set aside unless its
conflict with the provisions of the constitution is plain and
obvious.”); Miller v. Wilson, 60 Ga. 505, 507-08 (1878) (“[T]he usage
of the executive department may be invoked properly and legally to
throw light upon words used in the statutes of the state.”); Blount v
21
Monroe, 60 Ga. 61, 66 (1878) (“[T]he meaning of a tax act may be
gathered from the custom of the executive department.”);
McClendon v. Frost & Crenshaw, 59 Ga. 350, 351 (1877) (“The
uniform course of practice is evidence of the law.”). In fact, we’ve
even framed the persuasiveness of such authority in these terms.
See Elder v. Home Bldg. & Loan Assn., 188 Ga. 113, 116 (2) (3 SE2d
75) (1939) (“We recognize the rule entitling such collateral
interpretation to consideration by the court in passing on the
constitutionality of a law; and where the invalidity of a statute is
doubtful, it has much weight with the court in determining its
validity; but, after all, the responsibility for determining the
constitutionality of an act is . . . imposed upon the courts.”). At least
on its own terms, this strikes me as much more like the “power to
persuade” deference the federal system affords under Skidmore
than the controlling force Chevron requires. See Skidmore v. Swift
& Co., 323 U.S. 134 (65 SCt 161, 89 LE 124) (1944).
22
c. Some of our cases suggest we defer only to longstanding
interpretations.
There’s at least one more point on which the inconsistency of
our precedent undermines the conclusion that we have long applied
a version of Chevron. Namely, Chevron defers to a particular legal
interpretation contained in a particular agency rule or policy. See
467 U.S. at 842-45. And that’s (sort of) how we’ve recently applied
the Georgia version. See Tibbles, 297 Ga. at 563-65 (2) (b) (deferring
to interpretation in agency rules); Cook, 295 Ga. at 500-01 (deferring
to interpretation in policy manual). 8 But much of our historic
precedent focused instead on whether there was a long-standing
practice, not merely a single, one-time interpretation. See, e.g.,
Standard Oil Co. of Ky. v. State Revenue Commission, 179 Ga. 371,
376 (176 SE 1) (1934) (“Long-continued practice and the approval of
8 I note the concurrence in Cook rightly pointed out that the interpretation to which the majority was deferring was contained not in a rule or regulation, but in a policy manual, which (at least under federal law) should be afforded only Skidmore deference. See Cook, 295 Ga. at 502-04 (Nahmias, J., concurring specially). The concurrence did not analyze whether Skidmore deference itself was consistent with Georgia law, noting only that we reserved the state law question of what — if any — deference should be afford such interpretations. See id. at 502 (citing Pruitt, 284 Ga. at 160).
23
administrative authorities may be persuasive in the interpretation
of doubtful provisions of a statute, but [they] cannot alter provisions
that are clear and explicit when related to the facts disclosed.”);
Southern Ry. Co. v. Melton, 133 Ga. 277, 283 (3) (65 SE 665) (1909)
(“It is, however, legitimate, as new problems arise, to draw light
from contemporaneous construction, or long-continued practice of
the departments of government, in reference to matters somewhat
analogous to the creation of such commissions and the conferring of
powers upon them.”); Temple Baptist Church v. Ga. Terminal Co.,
128 Ga. 669, 680 (58 SE 157) (1907) (“The long-continued practice of
the executive or the legislative department will be treated as
persuasive authority by the courts, and has, in numerous cases, been
followed, although the individuals composing the court at the time
would have doubt as to the true construction if the question were
left unaffected by the construction placed upon it by another
department of government.”); Epping v. City of Columbus et al., 117
Ga. 263, 273 (43 SE 803) (1903) (“the long-continued practice of co[-]ordinate departments of the government may well be resorted to by
24
the judicial department as an aid in determining what is the true
meaning of words contained in the instrument”), overruled on other
grounds by Harrell et al. v. Town of Whigham, 141 Ga. 322 (80 SE
1010) (1914).
**
So even within our deference precedent — regardless of the
strength of its foundation — there are numerous, important rifts
between our own cases and between our cases and Chevron
deference.
3. The law of the case prevents us from revisiting our deference precedents here.
In the end, though, this is not the case to explore these issues.
Here, relying on our binding precedent in Tibbles (and other cases
approving judicial deference to administrative interpretations), the
Court of Appeals held that the trial court did not abuse its discretion
in deferring to the Public Service Commission’s view that the terms
“usage revenue” and “total revenue” are synonymous. Cazier v. Ga.
Power Co., 362 Ga. App. 112, 118 (1) (a) (866 SE2d 827) (2021). For
25
the reasons just discussed, I have grown increasingly skeptical that
our precedent — which the Court of Appeals relied upon below9 —
was rightly decided.
But in the previous appeal in this case, we held (citing only
federal precedent) that if the words requiring interpretation were
“used in a . . . technical sense,” necessitating extrinsic evidence “to
determine their meaning,” then the “inquiry is essentially one of fact
and discretion in technical matters[.]” Ga. Power Co. v. Cazier, 303
Ga. 820, 826 (3) (815 SE2d 922) (2018) (quoting United States v.
Western Pacific R. Co., 352 U.S. 59, 65-66 (77 SCt 161, 1 LE2d 126)
9 The Court of Appeals cited Tibbles for the proposition that the trial court’s deference was proper, so I focus my attention there. See Cazier, 362 Ga. App. at 117. But I note that Tibbles was about Chevron-style deference to an agency’s interpretation of the statute the agency was charged to administer. 297 Ga. at 557-58. And yet here, the trial court deferred to an agency’s view of what its administrative order meant. Tibbles offers no direct insight into whatever deference federal precedent would assign to that sort of agency “interpretation,” much less what Georgia law might provide — though it does refer to deference to an agency’s interpretations of its own rules and regulations that have been subject to notice-and-comment requirements, see 297 Ga. at 565 (citing Pruitt Corp., 284 Ga. at 159-60), and we do have a related line of cases (also cribbing federal precedent) dealing with deference to an Agency’s interpretation of its own regulations, see City of Guyton, 305 Ga. at 801-02 (citing Atlanta Journal, 257 Ga. 790), which, as discussed above in footnote 4, has been questioned on similar grounds.
26
(1956)). Although I joined that holding four years ago, I am not
nearly as confident today that it was correct. But the law of the case
doctrine precludes our reconsideration of our holding. OCGA § 9-11-60 (h) (“any ruling by the Supreme Court or the Court of Appeals in
a case shall be binding in all subsequent proceedings in that case in
the lower court and in the Supreme Court or the Court of Appeals
as the case may be”). And absent that reconsideration, we have little
ability to reach what strikes me as the legitimate points in Cazier’s
cert petition. Accordingly, I concur in the denial of that petition.
27