Later this week, I will be part of a panel at the Ohio State Bar Association’s administrative law seminar. And you would think that an Ohio State Supreme Court Justice would be able to articulate Ohio’s doctrine on administrative law deference. But I am not sure I will be able to.

It’s not that I haven’t tried to synthesize our case law on the topic. The problem is that our Court has never systematically outlined what deference looks like in Ohio—and what the Court has said on the topic is far from consistent. 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.[1]

A Haphazard Approach to Administrative Deference

Prior to the United States Supreme Court’s 1984 decision in Chevron,[2] our Court seemed to see little need for agency deference. There are only a couple of pre-Chevron cases in which the Ohio Supreme Court directly addressed deference to agency determinations, and both those cases dealt with deference to a federal agency’s interpretation of federal law.[3]

Post-Chevron, though, things changed. In the 36 years since the Chevron decision, the Ohio Supreme Court has issued more than three dozen opinions that applied some form of deference to agencies’ interpretations of either the statutory framework that they administer or to the agencies’ own regulations. And in at least 20 other cases, we have mentioned deference principles but ultimately have decided an agency’s interpretation was not entitled to deference. (We tend to get a good number of administrative law cases because, by statute, decisions from certain administrative bodies are directly appealable to the Ohio Supreme Court.)

Interestingly, though, the Court has never explicitly adopted the Chevron framework. Nor has it otherwise articulated any real framework for the application of deference to an agency’s interpretation of its own regulations. Most often, the Court has simply said that where an agency possesses specialized expertise, we will defer to its interpretation as long as it is reasonable.[4]

Under this standard, deference in Ohio looks even more deferential than the standard used in federal courts. Under Chevron, “Deference is not due unless a ‘court, employing traditional tools of statutory construction,’ is left with an unresolved ambiguity.”[5] But, in Ohio, the Supreme Court has more often than not skipped the ambiguity step and proceeded directly to whether the agency’s interpretation is reasonable. The Court has not been completely consistent in this regard. One can find a few cases where Ohio has applied a Chevron-type analysis and first asked if the statute was ambiguous.[6] But those cases are the exceptions.[7]

Further, for Chevron deference to apply, a federal court must find that Congress has delegated to an agency the authority to promulgate rules with the force of law and that “the agency interpretation claiming deference was promulgated in the exercise of that authority.”[8] The Ohio Supreme Court, though, has never announced a similar requirement. Indeed, in the deference context the Court has never even found it necessary to ask whether the legislature intended to delegate the claimed-interpretative authority to the administrative agency.

Our caselaw is almost equally inconsistent when it comes to deference to an agency’s interpretation of its own rules. Ohio bumbled into, more than adopted, Auer-style[9] deference. The first instance that I can find of our Court deferring to an agency’s interpretation of its own rules came in a 1994 case. To justify this treatment, the Court said it was “conscious of the long-accepted principle that considerable deference should be accorded to an agency’s interpretation of rules the agency is required to administer.”[10] Remarkably, though, the only authority for the Court offered for this “long-standing principle” was citation to two cases dealing with deference to agency interpretations of statute.[11]

Since then, the Court has sometimes deferred to agencies’ interpretations of their own rules;[12] other times it has not.[13] Sometimes the Court has required a rule to be ambiguous before applying such deference;[14] other times it has skipped right past that step.[15] And when the Court has deferred to an agency’s interpretation, it has done so with little, if any, analysis. Never has the Court set forth any justification—legal, practical, or theoretical—for a doctrine of deference to agency-rule interpretation.

Time to Revisit Our Approach to Administrative Deference

In published opinions, I have been critical of the Court’s deference jurisprudence. In a recent case, I criticized the lead opinion’s decision to afford deference to the Public Utility Commission’s interpretation of the word “incentive” in construing a statutory scheme administered by the commission.[16] I explained that the only question before the court revolved “around the meaning of a widely used and commonly understood word.”[17] Because “no particular expertise” was required to understand the meaning of the word “incentive” and because “nothing about the surrounding statutory context raise[d] any doubt that the word is being used in its ordinary sense,” I would have decided the question without deference to the agency’s interpretation.[18]

In another case, a plurality of the court chose to defer to the Ohio Secretary of State’s interpretation of an election statute, without first concluding that the statute was ambiguous. I wrote a concurring opinion[19] relying on the plain language of the statute and repeating familiar criticisms of judicial deference:

The Ohio Constitution, like the federal Constitution, allocates power among three distinct branches of government. “The judicial power of the state is vested in a supreme court, courts of appeals, courts of common pleas and divisions thereof, and such other courts inferior to the supreme court as may from time to time be established by law.” Ohio Constitution, Article IV, Section 1.

Deference to an administrative agency’s interpretation of the law, however, “wrests from Courts the ultimate interpretative authority to ‘say what the law is,’ * * * and hands it over to the Executive.” Michigan v. Environmental Protection Agency, [576 U.S. 743], 135 S.Ct. 2699, 2712, 192 L.Ed.2d. 674 (2015) (Thomas, J., concurring), quoting Marbury [v. Madison, 5 U.S. 137,] 177[, 2 L.Ed. 60 (1803)]. * * * In addition, judicial deference to administrative agencies on matters of legislative interpretation aggrandizes the power of the administrative state at the expense of the judiciary and officials directly accountable to the people.[20]

My opinion, which was joined by one other member of the Court, suggested that we ought to revisit our deference doctrine in an appropriate case.[21] A dissenting opinion, joined by one other member of the court, noted that “it would leave for another day the issue of whether the judicial branch truly owes deference to administrative agencies’ interpretation of statutes.[22] (So if you are counting, that is four members of the seven-member Ohio Supreme Court who have signaled at least some willingness to take a look at our doctrine.)

A Few Thoughts on What Ought to Be

So, what should deference in Ohio look like? I am not going to propose here a doctrine that I believe the court should adopt. I’m still thinking about the issue. And it is almost always better for judges to formulate doctrine in the context of a specific case with the benefit of adversarial briefing and feedback from one’s colleagues. But I will throw out a few things for consideration.

First, as I have outlined in opinions, I share the separation-of-powers concerns leveled at deference doctrines. In addition, Ohio’s constitutional and regulatory structure is similar to its federal counterpart but also differs in significant respects. Thus, I start from the premise that the Court ought to abandon the practice of plucking bits and pieces of federal doctrine and haphazardly applying them in particular cases.

When an agency gives a controlling interpretation of the law, it performs an act that, under separation of powers principles, belongs within the realm of the judiciary. The principal constitutional justification for allowing an agency to do so has been that by leaving a regulatory gap, the legislature intended to confer on the agency the authority to resolve the disputed question.[23]

One thing that has been overlooked in our previous discussions on deference is what our state legislature has directly said on the topic. The Ohio General Assembly has enacted a statute that tells courts what they ought to do when confronted by ambiguity. R.C. 1.49 sets forth six items a court “may consider among other matters” “[i]f a statute is ambiguous.” These include things like “the object sought to be attained,” the circumstances of enactment, the common law, and “[t]he administrative construction of the statute.” Thus, by the plain provisions of the Ohio Revised Code, a finding of ambiguity must come before a court is even permitted to consider an agency’s interpretation. Remarkably, though, the Ohio Supreme Court has never discussed R.C. 1.49 in its discussion of agency deference. It is almost as if the statute doesn’t exist.

Moreover, R.C. 1.49 is written in discretionary terms: where a statute is ambiguous a court “may consider” the administrative construction of the statute. It doesn’t require that a court “shall defer” to an agency construction of an ambiguous statute—only that it is permissible for it to do so. Thus, even for an ambiguous statute, deference is not mandatory. Rather, where a statute is ambiguous, examination of an agency construction is a possible tool a court may use in interpreting the statute’s meaning.

That deference is discretionary suggests that a court’s decision to defer to the agency should be an individualized determination based on the persuasiveness of the agency rationale, and whether, under the circumstances of the case, the agency has specialized competence in the matter. In this respect, deference in Ohio might look something like that employed in the State Up North: “An agency’s interpretation is entitled to ‘respectful consideration’ but courts may not abdicate their judicial responsibility to interpret statute by giving unfettered deference to an agency’s interpretation.”[24] Or it might look like the formulation employed by the United States Supreme Court in Skidmore v. Swift & Co., with the weight afforded to an agency depending upon “the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade.”[25] Or maybe it would look like the approach employed in Wisconsin: de novo review of agency interpretations of law while giving “due weight” to agency interpretations based on expertise, technical competence and the specialized knowledge of the agency as applicable to the matter at hand.[26]

In making the decision whether to defer to an agency interpretation, we also ought to distinguish more carefully between cases where the parties dispute the meaning of a statute from cases where the parties dispute the agency’s implementation of a statutory meaning.[27] Sometimes we are confronted with a statute that uses broad terms that allow for agency flexibility in how to implement it—R.C. 4909.15, for example vests the Public Utilities Commission with the authority to establish “reasonable rates.” In such a situation, the idea that the legislature intended to leave resolution of the issue to the agency has the most bite. But where there is a dispute about what the language of the statute means, it should be the role of courts to resolve that issue.

These are just a few thoughts. At this juncture, I am not advocating for the explicit adoption of any of the standards mentioned above, but they certainly bear consideration. I do think that it is past time that we revisit our caselaw on deference to an agency interpretation of a statute and take a systematic look at the doctrine. And when we do, we ought to be mindful of both separation-of-powers principles and the legislative directive provided in R.C. 1.49.

We should also question the unreasoned assumption (found in at least some of our caselaw) that we owe deference to an agency’s interpretation of its own regulations. R.C. 1.49 is of no help here, as it only applies “if a statute is ambiguous.” But separation of powers principles certainly counsel for a hard look at our practices in this area.[28] And the need to do so is particularly compelling in light of our backhanded adoption of the doctrine and failure to articulate a theoretical basis for the deference we have given.

Conclusion

The bottom line is that it is past time for the Ohio Supreme Court to revisit our administrative deference doctrines. Practitioners, agencies and lower courts could all benefit from additional clarity about exactly what our doctrine is and when it applies. I look forward to a case that presents that opportunity.

Justice R. Patrick DeWine has served on the Ohio Supreme Court since 2017.

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[1] Dobby, J. K. Rowling, Harry Potter and the Order of the Phoenix 343 (2003).

[2] Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2788, 81 L.Ed.2d 694 (1984).

[3] See Jones Metal Prods. Co. v. Walker, 29 Ohio St.2d 173, 180–82, 281 N.E.2d (1972) (deferring to EEOC guidelines in determination of whether federal statute preempted state law); State ex rel. Brown v. Dayton Malleable, Inc., 1 Ohio St.3d 151, 155–56, 438 N.E.2d 120 (1982) (looking to United States EPA’s interpretation of discharge permits in interpreting Ohio law that implemented Federal Water Pollution Control Act).

[4] See, e.g., In re Application of Ohio Edison Co., 157 Ohio St.3d 73, 2019-Ohio-2401, 131 N.E.3d 906, ¶ 9, 19.

[5] Epic Systems Corp. v. Lewis, ___ U.S. ___, 138 S.Ct. 1612, 1630, 200 L.Ed.2d 889 (2018), quoting Chevron, U.S.A., Inc. at 843, n.9.

[6] See, e.g., Cleveland Clinic Found. v. Bd. of Zoning Appeals, 141 Ohio St.3d 318, 2014-Ohio-4809, 23 N.E.3d 1161, ¶ 29; Lang v. Dir., Ohio Dept. of Job & Family Servs., 134 Ohio St.3d 296, 2012-Ohio-5366, 982 N.E.2d 636, ¶ 12 (concluding that because federal statute was ambiguous, the court would defer to the Ohio agency’s interpretation of the statute).

[7] The extent to which the Ohio practice differs from Chevron depends at least in part on a judge’s assessment as to what counts as ambiguity. In my view, a judge ought only to find an ambiguity when he has applied all the traditional interpretive tools and is still unable to determine that one reading is better than the other. Under this approach, the Ohio rule is far more deferential than Chevron. At the other end of the spectrum, though, a judge might find an ambiguity whenever the statutory language can bear two competing interpretations. In that instance, the two rules would not be all that different, since an interpretation the language can’t bear is likely to be unreasonable.

[8] United States v. Mead Corp., 533 U.S. 218, 227, 121 S.Ct 2164, 150 L.Ed.2d 292 (2001).

[9] Auer v. Robbins, 519 U.S. 452, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997).

[10] State ex rel. Celebrezze v. Nat’l Lime & Stone Co., 68 Ohio St. 3d 377, 382, 627 N.E.2d 538 (1994).

[11] Id., citing State ex rel. Brown v. Dayton Malleable, Inc., 1 Ohio St.3d 151, 155, 438 N.E.2d 120 (1982); and Jones Metal Products Co. v. Walker, 29 Ohio St.2d 173, 181, 281 N.E.2d 1 (1972).

[12] See, e.g., State ex rel. Richmond v. Indus. Comm., 139 Ohio St.3d 157, 2014 Ohio-1604, 10 N.E.3d 683, ¶ 28.

[13] See, e.g., State ex rel. Baroni v. Colletti, 130 Ohio St.3d 208, 2011-Ohio-5351, 957 N.E.2d 13, ¶ 18-24.

[14] See, e.g., Columbus & Franklin Cty. Metro. Park Dist. v. Shank, 65 Ohio St.3d 86, 102-103, 600 N.E.2d 1042 (1992).

[15] See, e.g., In re Columbus S. Power Co., 138 Ohio St.3d 448, 2014-Ohio 462, 8 N.E.3d 863.

[16] In re Application of Ohio Edison Co., 157 Ohio St.3d 73, 2019-Ohio-2401, 131 N.E.3d 906, ¶ 58–63 (DeWine, J., dissenting).

[17] Id. at ¶ 62.

[18] Id.

[19] State ex rel. McCann v. Del. Cty. Bd. of Elections, 155 Ohio St. 3d 14, 2018-Ohio-3342, 118 N.E.3d 224., ¶ 31-32, 231-232.

[20] Id. at ¶ 30–31.

[21] Id. at ¶ 34.

[22] See id. at ¶ 44, n.2 (Kennedy, J., dissenting); see also In re Application of 6011 Greenwich Windpark, L.L.C., 157 Ohio St.3d 235, 2019-Ohio-2406, 134 N.E.3d 1157, ¶ 74 (Kennedy, J. dissenting) (stating deference to the board’s construction of statutory scheme abdicates court’s responsibility to say what the law is and abandons court’s role to act as an independent check on the judiciary).

[23] See Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984); City of Arlington, Texas v. Fed. Communications Comm., 569 U.S. 290, 296, 133 S.Ct. 1863, 185 L.Ed.2d 941 (quoting Smiley v. Citibank (South Dakota), N.A., 517 U.S. 735, 740–41, 116 S.Ct. 1730, 135 L.Ed.2d 25 (1996) (“Chevron is rooted in a background presumption of congressional intent: namely, ‘that Congress, when it left ambiguity in a statute’ administered by an agency, understood that the ambiguity would be resolved, first and foremost, by the agency, and desired the agency (rather than the courts) to possess whatever degree of discretion the ambiguity allows.”).

[24] In re Complaint of Rovas against SBS Michigan, 482 Mich. 90, 93, 754 N.W.2d 259 (2008).

[25] 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944).

[26] Tetra Tech EC, Inc. v. Wisconsin Dept. of Revenue, 2018 WI 75, ¶ 77, 382 Wis. 2d 496, 914 N.W.2d 21 (2018).

[27] See generally, Lawrence B. Solum and Cass R. Sunstein, Chevron as Construction, 105 Cornell L. Rev. 1465 (2020).

[28] See John F. Manning, Constitutional Structure and Judicial Deference to Agency in Interpretations of Agency Rules, 96 Colum. L. Rev. 612, 631–54 (1996).