KMK Law Complex Litigation Blog

Just before the end of 2022, the Ohio Supreme Court decided the case TWISM Ents., L.L.C. v. State Bd. of Registration for Professional Engineers & Surveyors. In TWISM, the Court took steps similar to those taken by the United States Supreme Court when chipping away at the Chevron doctrine by limiting the scope and power of the rule that courts should defer to an administrative agency’s interpretation of a statute when the administrative agency is tasked with enforcing that statute.

The Ohio Supreme Court explained that Ohio’s courts had not carefully fashioned a deference doctrine and the doctrine had fractured into three dueling standards. The Court overruled the lesser-cited cases holding that courts will uphold an agency’s reasonable interpretation of a statute regardless of ambiguity, and the high Court also overruled the more commonly cited precedent that courts will uphold an agency’s reasonable interpretation of an ambiguous statute.

Having rejected those iterations of the deference doctrine that afford greater weight to an administrative agency’s interpretation of a statute, the Court held that an administrative agency’s interpretation should remain one tool in a court’s interpretive toolbox, but no more than that. The Court thereby removed the elevated status that agency interpretations have enjoyed in the statutory-interpretation realm.

The downside of this precedent is that companies and individuals bound by laws interpreted by agencies now have less certainty in how to go about their business—after all, they can no longer rely on the agency’s interpretation as final; the upside is that companies previously governed by an agency’s restrictive but reasonable interpretation of a statutory scheme now have a greater chance of success in challenging the agency’s interpretation.

Given this change in the landscape, one would expect a greater number of challenges to agency interpretations of statutes in the coming months and years. And the stakes are higher now that courts have returned to their pre-Chevron role of deciding what the law is without deference to agencies.

Should you have any questions or need assistance, please contact a member of KMK Law’s litigation team.