Case Details


Attorney General Control Of Litigation, Common Law Powers, Status In State Government

Filing State



Ohio Supreme Court




State ex rel. Merrill v. State Department of Natural Resources,130 Ohio St. 3d 30; 2011-Ohio-4612; 955 N.E.2d 935 (Ohio 2011)


Attoney General had standing to pursue appeal, even if state agency (separately represented) did not pursue appeal. Attorney General of Ohio has common law powers that have not been abrogated by the legislature.

Case Description

Landowners on the south shore of Lake Erie sued the state, the Ohio Department of Natural Resources and its director, disputing the rights asserted by ODNR to land up to the high-water mark. The Attorney General’s office, representing the state, decided to litigate the case separately from ODNR, and the Attorney General retained outside counsel for ODNR. The court of common pleas ruled that the limit of the territory regulated by ODNR was the water’s edge, wherever that boundary may be at any given time on any given property. The Attorney General appealed that ruling, ODNR did not. The court of appeals held that the Attorney General (representing the state) no longer had standing to participate in the case, because the Attorney General may only act at the behest of the Governor or the General Assembly. Because ODNR had not appealed, the Attorney General had no authority to do so. The Attorney General appealed the decision to the Ohio Supreme Court. The Ohio Supreme Court held that the Attorney General had standing to participate in the case and appeal the judgment, even in the absence of ODNR. First, the state, as well as ODNR, had been sued by the plaintiffs. The state was thus an aggrieved party, because the appellate court’s decision was adverse to its position. The state could litigate its interests in the public trust. Turning to the common law powers of the Attorney General, the court held that the Ohio Constitution did not repudiate the established common law principles that existed at the time of its adoption. Long-settled Ohio law requires that “the General Assembly will not be presumed to have intended to abrogate a settled rule of the common law unless the language used in a statute clearly imports such intention.” The court held that hold that nothing in the Ohio statutes appears to abrogate the attorney general’s “common law power to appeal on behalf of the state from an adverse judgment.”