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In middle school or high school civics class, many of you will have learned that the three branches of government serve separate purposes. The legislative branch writes the law. The judicial branch interprets the law. And the executive branch enforces the law.

However, as bureaucracy grew and the regulatory reach of government extended beyond simple criminal enforcement–for example, into regulating various parts of the economy–the lines between the branches of government blurred. This is especially true on the federal level where Congress routinely charges executive agencies to draft regulations to accomplish a legislative goal; the premise being that Congress does not have the expertise to draft a law that would address an issue as effectively as an agency with subject-matter expertise could draft regulations to do so.

This expansion of executive power has led the federal courts to, in some circumstances, defer to agency interpretations of law. This deference is often referred to as Chevron deference. Its details and arguments for and against it have filled countless legal journals. Since, at least, the Chevron decision almost forty years ago, the Ohio Supreme Court had grappled with what deference Ohio agencies were due when interpreting Ohio law.

Until late last year, the Court had been inconsistent in what, if any, deference was due. At various points, it had determined that courts must defer to agency interpretations, that courts must defer to agency interpretations if the statute is ambiguous (i.e., Chevron deference), and that courts may rely on agency interpretations.

Late last year, the Ohio Supreme Court finally resolved its contradictory prior holdings. In TWISM Ents., L.L.C. v. State Bd. of Registration for Professional Engineers & Surveyors, the Court defined precisely what deference is due state agency interpretations of Ohio law. Now, Ohio courts may consider an agency interpretation of ambiguous statutes. In other words, Ohio courts are no longer required to give any weight to proposed agency interpretations of statutes. They may choose to do so, but only for ambiguous statutes and only to the extent the agency interpretation is persuasive.

This is a fairly significant blow to the authority of agencies in Ohio and may permit an additional argument to be raised in many appeals of agency orders. If you have been the subject of an agency adjudication and want to explore your appeal options, you should consider contacting one of the experienced attorneys at Graff & McGovern, LPA. Attorney Brandon Smith is available at (614) 228-5800, x. 7 and brandon@grafflaw.com.