The separation of powers among the branches of government is at the core of a case to be heard by the Supreme Court of Ohio next week.

The appeal asks the Supreme Court to rule on how courts are required to consider decisions made by administrative agencies in the executive branch. An amicus brief from the Ohio attorney general recommends that the Court join several other state supreme courts by rejecting the judicial branch practice of deferring to administrative agency interpretations of the law. The brief maintains that the people gave specific powers to the government in the Ohio and U.S. constitutions and spread those powers across three branches to prevent tyranny.

The legislature passes laws, and it also authorizes agencies within the executive branch to adopt rules to administer specific programs. These administrative agencies execute their mission through the enforcement power of the executive branch. Disputes that arise from agency decisions can be appealed to the judicial branch. The role of interpreting the law is reserved for the courts, the attorney general’s brief contends.

“‘If men were angels, no government would be necessary,’” the brief argues, quoting James Madison, one of the U.S. Constitution’s drafters. “Government officials, if left unfettered, will tend to exceed the powers they are granted.”

Small Business Owner Hires Independent Contractor for Engineering
The current dispute reached the Court in an appeal from a Cincinnati business owner, Shawn Alexander, who applied to State Board of Registration for Professional Engineers and Surveyors for a certificate of authorization. The certificate would enable his company, TWISM Enterprises, to provide engineering services in Ohio.

In the application, Alexander listed James Cooper, a licensed professional engineer, as the engineering manager overseeing TWISM’s projects. Cooper works as an independent contractor for TWISM.

In 2019, the board declined to issue a certificate to Alexander. The board stated the company had not designated a full-time engineering manager for its projects as required by state law. TWISM appealed to the Hamilton County Common Pleas Court, which overturned the board decision. The court concluded that nothing in state law requires a company’s engineering manager to be a W-2 employee of the company, and that Cooper met all other criteria in the law.

The board appealed to the First District Court of Appeals, which reversed the trial court. The First District wrote that it deferred to the board’s interpretation of the law in denying the certificate.

TWISM appealed to the Supreme Court of Ohio.

Company Contends Courts Must Not Defer to Another Branch of Government
TWISM argues the engineering board is authorized to assess whether an engineering application meets the requirements described in the statute and related rules. However, when a board decision is appealed, courts must not defer to the agency’s interpretation of the law, the company contends. It maintains that such deference to an administrative agency improperly turns judicial power over to the executive branch.

The purpose of distributing powers across the judicial, executive, and legislative branches is to avoid the concentration of power in too few hands in order to safeguard the liberty and security of the people, TWISM argues. Courts must not abandon their crucial duty to make independent judgments as a separate branch of government, the company concludes.

Board Argues Courts May Consider Agency Reasoning
On the separation-of-powers claim, the board responds that it has adjusted its position that courts must defer to agency views of state law. The board, which is represented in court by the Ohio Attorney General’s Office, now argues that courts can consider, but don’t need to defer to, administrative agency interpretations.

The board also notes that TWISM, as a one-person company with no engineer, outsources for its engineering needs. The law requires the person in charge of a company’s engineering to have direct control and supervision over the work and be legally responsible for the work, the board maintains. It asserts that these directives can’t be met with an independent contractor, who can’t be held liable if something goes wrong.

Additional Groups File Briefs on Deference
The Buckeye Institute and New Civil Liberties Alliance also submitted amicus briefs arguing the judicial branch doesn’t owe deference to statutory interpretations made by executive agencies.

Oral Argument Details
On July 12, the Court will hear TWISM Enterprises v. State Board of Registration for Professional Engineers and Surveyors and three other cases. The Court will consider four more appeals on July 13. Oral arguments begin each day at 9 a.m. The arguments will be streamed live online at sc.ohio.gov and broadcast live on the Ohio Channel, where they are archived.

In addition to these highlights, the Court’s Office of Public Information released preview articles today about each case, available through the case-name links.

Tuesday, July 12
Restitution for Victims
In State v. Fisk, a Montgomery County man was attacked in 2019 by the son of his fiancé. The son was convicted of felonious assault, and the man requested reimbursement for more than $177,000 in medical bills. The trial court denied restitution for the man, concluding that more information was needed about why the victim’s medical care wasn’t covered by his insurance. The county prosecutor argues that under Marsy’s Law, which Ohio voters approved as part of the state constitution to ensure victims’ rights, the state can appeal the trial court’s decision on the victim’s behalf. The offender counters that the prosecutor doesn’t have the right to appeal, because only the victim can pursue an appeal about restitution.

Juvenile Sentencing
A 17-year-old from Ashland County was tried as an adult for his role in the 2019 shooting of a couple that left a man dead. The teen was sentenced to life in prison with eligibility for parole in 38 years. The offender argues the trial judge violated his constitutional rights by failing to consider his youth as a mitigating factor during sentencing. In State v. Morris, the Court will consider whether a trial judge must explain on the record how age was factored into the sentence.

Utility Charges
State lawmakers created a “solar generation fund” in 2021. Under the new law, companies could apply to receive annual payments for generating electricity through solar power. The Public Utilities Commission of Ohio (PUCO) established a rider to collect customer fees for the fund. The law requires the PUCO to collect a charge from all Ohio electric utility customers “sufficient to produce $20 million annually” to pay the solar generators. An association representing manufacturers challenged how the PUCO is implementing the new initiative. In In re Establishing the Solar Generation Fund Rider, the manufacturers maintain the commission is overcharging customers, particularly commercial customers, to raise money for the fund.

Wednesday, July 13

Allied Offenses
An employee of a Powell assisted living facility was convicted in 2020 of burglary, theft, and identity fraud for stealing personal items from the rooms of six residents. The trial court determined that the burglaries and thefts couldn’t be considered one crime for sentencing purposes, because they had separate motivations and harms. The Delaware County prosecutor in State v. Ramunas agrees, contending that burglaries and thefts should never merge because they always involve distinct harms of differing severities. The burglaries invaded the residents’ privacy, and the thefts caused an economic loss, the prosecutor maintains. The woman argues however, that the crimes were “allied offenses” – closely related and causing the same harm – because her singular purpose in entering the rooms was to steal. The offenses can’t be considered one crime for sentencing, the woman concludes.

Criminal Sentencing
In September 2019, a Cincinnati man approached a woman and two men near a homeless encampment He attempted to rob the woman, who had no items of value, then forced her to walk about a city block to a deserted parking garage. At the garage, he raped her. The man was convicted of abduction, robbery, kidnapping, and two counts of rape. He was sentenced to 41 to 46.5 years in prison. In State v. Bailey, the man argues he is entitled to a reduced sentence because the rape and kidnapping convictions were allied offenses, and the trial court should have merged them for sentencing.

Sentencing Procedures
A man who was classified as a sex offender in 2013 had a duty to register with law enforcement. In 2020, he pled guilty in Knox County to failure to provide an address change. Because he had an earlier conviction for violating his registration requirements, he was sentenced to three years and nine months in prison. In State v. Ashcraft, the man maintains that he was improperly sentenced to three years under one state law and nine months under a different statute. He contends that courts can’t impose both penalties. The county prosecutor argues the language of one statute dictates the three-year term in addition to the nine-month sentence for his felony offense.

Parental Rights
A 17-year-old in Van Wert County informed her ex-boyfriend that she was pregnant and was going to place her child up for adoption. The young man objected and consulted an attorney, who advised him that he could be notified of any adoption attempts if he registered with the Ohio Putative Father Registry. The father registered 17 days after the child was born. A probate court ruled he waited too long to register and lost his right to object to the adoption. In In re Adoption of H.P., the father argues the rules of the registry don’t apply if the biological father of the child establishes paternity before the probate court holds a hearing on the adoption.