Initial thoughts on Ohio Grocers Assn. v. Levin, Ohio Tax Commr.

Following up on yesterday's post, I've read through the Supreme Court of Ohio's Ohio Grocers Assn. opinion (click here), issued yesterday, and the case is as much about the question whether the Court should presume that statutes are constitutional as about the relevant constitutional language (Ohio Constitution, Article XII, Sections 3(C) and 13) itself. The majority presumes that the statutes implementing the Commercial Activity Tax ("CAT") are constitutional and relies heavily on that presumption in its opinion.

In contrast, the dissent (Pfeifer, J.) states, "[t]his court in answering the question before us is burdened by a questionable legal principle, which requires us to presume that any statute enacted by the General Assembly is constitutional. This court has not seriously looked at this presumption in decades. The presumption has taken on a life of its own apart from whatever merits ever precipitated its institution." (¶69). The dissent also states, "[g]iven the obvious supremacy of the Constitution, a better rule of construction would be to resolve all doubts in favor of the applicability of the Constitution." (¶75).

My own conclusion is that the constitutional language at issue was open to more than one interpretation and simply wasn't clear, as applied to the CAT. In such cases, courts will sometimes employ rules of construction, to "break the tie." In this case, in the Court's majority opinion, the rule that statutes are presumed to be constitutional tilted the balance toward holding that the CAT is constitutional. The dissent raises an important question, however, as to whether that presumption still makes sense.