Ohio Supreme Court Justice R. Patrick DeWine

Ohio Supreme Court Justice R. Patrick DeWine

The Ohio Supreme Court should  develop a more consistent method of determining when, if ever, it will defer to an administrative agency’s interpretation of a law or rule, Justice R. Patrick DeWine wrote in a national online journal.

Justice DeWine urged the Court to revisit “our administrative deference doctrines” in a recent posting for “Notice & Comment,” a blog from the Yale Journal on Regulation.

The journal is published by the Yale Law School and the American Bar Association’s Section of Administrative Law & Regulatory Practice.

In his post, Justice DeWine explained that the Court has not followed a consistent practice when deciding whether to defer to the expertise of state and local administrative agencies for their interpretations of the laws and rules they implement. The Court regularly hears challenges from those who believe an agency misinterpreted a law or rule.

“Our deference ‘doctrine’ is not really a doctrine at all; it is more like Hogwart’s Room of Requirement, where a judge or practitioner truly in need can always find some bit of law equipped for the seeker’s purpose,” Justice DeWine wrote, referring to the popular novel “Harry Potter and the Order of the Phoenix.”

Justice DeWine explained that Ohio’s deference practices are in some ways even more deferential than the oft-criticized approach articulated by the U.S.  Supreme Court in its 1984 Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc. decision.

Under Chevron, “[d]eference is not due unless a ‘court, employing traditional tools of statutory construction,’ is left with an unresolved ambiguity,” he wrote. But, in Ohio, the Court has more often than not skipped the ambiguity step and proceeded directly to whether the agency’s interpretation is reasonable.

Most often, the Court has simply said that where an agency possesses specialized expertise, the Court will defer to its interpretation as long as it is reasonable, he wrote.

Justice DeWine said deference to an administrative agency’s interpretation of the law poses constitutional separation of powers concerns because it removes from the Court the authority to say what the law is, and cedes that authority to an administrative agency.

Further, judicial deference increases the power of the administrative state at the expense of the judiciary and officials directly accountable to the people.

Justice DeWine concluded that Ohio legal practitioners, agencies, and lower courts could all benefit from additional clarity about exactly what the Court’s doctrine is and when it applies.