Ohio Supreme Court ends judicial deference to state agencies

Columbus, Ohio; January 3, 2023: Last Thursday, December 29, the Supreme Court of Ohio issued its decision in TWISM Enterprises, siding with Shawn Alexander and TWISM and ending judicial deference in Ohio.

“We’re glad that the Ohio Supreme Court has taken this step to protect all Ohioans from overreaching state agencies,” said Oliver Dunford, a senior attorney at Pacific Legal Foundation. “The decision confirms the importance of the separation of powers in Ohio and helps ensure a level playing field for citizens and small businesses subject to regulatory enforcement. Ohio joins at least 11 other states that have banned judicial deference by court opinion, constitutional amendment, or legislation.”

Prior to this decision, as the Ohio Supreme Court acknowledged, Ohio courts had applied deference haphazardly. Sometimes, courts in Ohio were required to defer to an executive agency’s legal interpretation of ambiguous statutes, as long as that interpretation is “reasonable”—even if the best interpretation of the law would lead to a different result. But in other cases, courts in Ohio deferred to agency interpretations even when statutes were not ambiguous. The decision by the Ohio Supreme Court clarified Ohio doctrine and struck a blow for the rule of law.

“We reaffirm today that it is the role of the judiciary, not administrative agencies, to make the ultimate determination about what the law means,” wrote Justice R. Patrick DeWine in the opinion. “Thus, the judicial branch is never required to defer to an agency’s interpretation of the law.”

12 other states have ended judicial deference by court decision, legislation, or Constitutional amendment and a similar version of judicial deference at the federal level, called Chevron deference, is being challenged in several recent petitions at the U.S. Supreme Court.