State v. City of Oak Creek
605 N.W.2d 526, 2000 WI 9, 232 Wis. 2d 612 (2000)
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Rule of Law:
The Wisconsin Attorney General's powers are strictly limited by the state constitution to those expressly granted by statute, and the office lacks any inherent or common-law authority to challenge the constitutionality of a state law.
Facts:
- Crawfish Creek, a navigable waterway, flows through the City of Oak Creek.
- In 1985, to mitigate local flooding and drainage issues, the City of Oak Creek lined a quarter-mile section of the creek with a concrete channel.
- Oak Creek built the channel without notifying or obtaining a permit from the Department of Natural Resources (DNR), despite prior warnings from the DNR that a permit was required for such alterations.
- In 1991, the Wisconsin Legislature enacted Wis. Stat. § 30.055, a statute specifically exempting Oak Creek from permit requirements for the existing concrete channel.
- After a court found the 1991 statute unconstitutional, the legislature enacted a new, similar exemption in 1996, codified as Wis. Stat. § 30.056.
- The attorney general alleged that the concrete channel constituted a public nuisance.
Procedural Posture:
- The Department of Natural Resources (DNR) filed a petition with the Division of Hearings and Appeals against the City of Oak Creek.
- A hearing examiner found Oak Creek in violation of state statutes and ordered the removal of the concrete channel.
- Oak Creek sought judicial review of the order in Milwaukee County Circuit Court.
- While that case was pending, the state public intervenor intervened to challenge the constitutionality of a newly-enacted statute, Wis. Stat. § 30.055, which exempted the channel.
- The circuit court (Judge Burns) found § 30.055 unconstitutional, and the Court of Appeals affirmed.
- Following the legislature's enactment of a new exemption, Wis. Stat. § 30.056, the Attorney General commenced a new action in Milwaukee County Circuit Court against Oak Creek.
- The circuit court (Judge Foley) granted summary judgment for the Attorney General, finding the AG had standing and that § 30.056 was unconstitutional.
- The City of Oak Creek, as appellant, appealed to the Wisconsin Court of Appeals.
- The Court of Appeals reversed the circuit court, holding that the Attorney General, as appellee, lacked standing to bring the constitutional challenge.
- The Attorney General, now as petitioner, sought review from the Supreme Court of Wisconsin.
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Issue:
Does the Wisconsin Attorney General have standing to challenge the constitutionality of a state statute without express legislative authorization?
Opinions:
Majority - Justice N. Patrick Crooks
No. The Wisconsin Attorney General lacks standing to challenge the constitutionality of a state statute because no statute grants the office that power. The Wisconsin Constitution, Article VI, § 3, states that the Attorney General's powers 'shall be prescribed by law,' which this court has consistently interpreted for nearly a century to mean prescribed by statutory law only. This interpretation is supported by the constitutional debates and the earliest legislative acts, which meticulously enumerated the Attorney General's duties, thereby precluding any residual common-law powers. Furthermore, the Attorney General's duty is to defend, not attack, the constitutionality of state statutes. The common-law doctrines of 'great public concern,' 'state as polity,' and 'core function' cannot override this explicit constitutional limitation on the Attorney General's authority.
Dissenting - Chief Justice Shirley S. Abrahamson
Yes. The Attorney General has standing because the majority asks the wrong question. The proper question is whether the Attorney General has statutory authority to bring the underlying action to abate a public nuisance, not whether a separate statute authorizes a constitutional challenge. Wisconsin statutes expressly authorize the Attorney General to sue to enjoin public nuisances. Once validly in court, the Attorney General should be permitted to make all relevant legal arguments, including that the statute raised as a defense (Wis. Stat. § 30.056) is unconstitutional. The majority's holding rests on a 'dubious' and unpersuasive line of precedent and improperly restricts the state's chief legal officer from fulfilling their duty to uphold the constitution.
Analysis:
This decision solidifies a restrictive view of the Wisconsin Attorney General's power, cementing the principle that the office has no authority beyond what is explicitly granted by the legislature. It establishes that the AG's role is primarily to defend, not attack, state statutes, creating a significant barrier for the executive branch to challenge legislative acts it believes are unconstitutional. The ruling places the responsibility for initiating such constitutional challenges on private citizens, other state agencies with standing, or through requests from the governor or legislature, potentially leaving some unconstitutional laws unchallenged if no other party is able or willing to sue.
