ODNR and Attorney General Respond to Court’s Entry

The Ohio Supreme Court rejected the notion of summarily dismissing the AG’s standing in the case and instead asked that two issues to briefed prior to considering whether or not to take the entire case.  The Entry directed the parties to answer 2 questions:

1. Does the attorney general have standing to appeal a judgment against the State of Ohio if that appeal is contrary to the directive of the governor and the attorney general is not representing an administrative agency.

2. If the answer to the first question is “yes,” is the record in this matter sufficient for this Court to resolve the appeals and cross-appeal, if they are accepted, even though the State of Ohio’s assignments of error and briefs were stricken by the court of appeals?

We have received copies of the ODNR and A.G. briefs. While the ODNR is more succinct with 6 pages as compared to the A.G.’s 21 pages, both sets of briefs basically have the same spin.

In response to question 1:

ODNR states: “The only directive issued by the Governor regarding this case was a directive to ODNR that it should honor the presumptively valid real property deeds of the Lake Erie lakefront property owners unless a court determines that the deeds are limited by or subject to the public’s interest in those lands or are otherwise defective and unenforceable. In responding to this directive, ODNR made its position known to the trial court and ceased to take an active role in the litigation. ODNR indicated to the trial court that it welcomed the court’s resolution of the issues before it, based upon the able and exhaustive briefs submitted on behalf of the lakefront owners and on behalf of the State of Ohio by the Attorney General.”

“Thus, although ODNR ceased to take an active role in litigating this case, it continued to recognize that there was a significant case and controversy in need of judicial resolution. ODNR and the Governor fully expected that the Attorney General of Ohio would continue to defend the action on behalf of the State of Ohio, as a separately named party, and would continue to litigate the merits of the issues as framed in the trial court. ODNR and the Governor understood and expected that the Attorney General would continue to represent the State of Ohio in this action through the appellate process.”

The Attorney General adds that the Attorney General is independent due to the nature of his office and the nature of the State. Ohio has three branches of government that operate independently. Just as the Governor cannot direct a Court decision or the activities of the other branches including the direction of litigation when other parties in the State are sued. The Attorney General’s responsibility is to defend the State whether or not directed by the governor.

In response to question 2:

ODNR states “The court acted on its erroneous conclusion that the Attorney General did not have the authority to prosecute the action on behalf of the State of the Ohio, in the absence of ODNR taking an active role in the litigation. The Court may and should reverse this error at the outset of this case and reinstate the State of Ohio’s assignments of error. Notwithstanding the fact that it struck the State of Ohio’s brief, the court of appeals proceeded to address the merits of the issues before it, such that there is no reason to remand the case back to the court of appeals.”

The Attorney General added that although the Appeals Court erred in ejecting the Attorney General from the case, the Appeals Court did resolve the relevant issues making them ripe for the upper court review. “A remand to the appeals court would add nothing but delay, and all parties are best served by a final resolution of the important lake Erie issues now rather than later.”

To read the ODNR brief, click ODNR Support Brief

To read the Attorney General brief, click State AG Support Brief

OLG has 15 days to respond to these briefs and it will be reported at that time.


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