State v. City of Oak Creek

Plaintiff-Respondent-Petitioner, Wisconsin, State Defendant-Appellant. City Creek, of Oak Court Supreme 6,1999. argument No. 97-2188. Oral October —Decided February 2000 WI (Also 526.) reported in 605 N.W.2d the cause For the plaintiff-respondent-petitioner F. Kloppenburg, Joanne assistant attor- argued by was E. on the briefs was James ney general with whom Doyle, attorney general. by

For the there was a brief defendant-appellant Haskin, J. Lawrence J. Lawrie and City Attorney Kobza, Bolton, L. M. Tess O'Brien-Heinzen Richard Suhr, Field, Boardman, LLP, & Curry Madison Lawrence J. Haskin. oral argument CROOKS, PATRICK J. N. on of the State of general, claiming acting be behalf Wisconsin, an action for relief under brought injunctive (1995-96)1 30.294, 823.01, and Wis. Stat. 832.02 §§ remove a concrete city Oak Creek to require are to subsequent All references to Wisconsin Statutes the 1995-96 unless noted. text otherwise quarter length from a Creek,

channel mile of Crawfish tributary through city. attorney a that flows The general alleged exempts § 30.056, that Wis. Stat. which city permit requirements of Oak Creek from certain related to the channel, concrete is unconstitutional. attorney general alleged The also the concrete channel creates a nuisance under both Wis. § Stat. County 30.294 and the common law. The Milwaukee Christopher Court,

Circuit the Honorable R. Foley presiding, agreed that the statute is unconstitu- tional and ordered the concrete channel's removal. The city appealed. appeals of Oak Creek The court of published City decisión, reversed a State Oak (Ct. App. Creek, 223 219, 223, Wis. 2d 558 N.W.2d 380 1998), holding attorney general may that the not chal- lenge constitutionality of 30.056. We affirm the appeals. legislature granted court of has not statutory authority to attack the Further, of 30.056. no other consti- gives tutional or common law doctrine general authority. Therefore, such standing challenge. lacks

rH navigable waterway Creek Crawfish through that flows Oak Creek. The west branch of tributary Crawfish Creek is an intermittent theof Root (Oak System. city River In of Oak Creek Creek) one-quarter lined mile of the west branch with a concrete channel. Oak Creek created the concrete prevent flooding channel in an effort to local drain- age problems damaged past, that had the area especially nearby development after of a subdivision. notify, did not However, Oak Creek

request permit the channel from, the DNR before was previously Creek that warned Oak The DNR had built. any permit in the to build structure receive a it must the creek's course that would alter because creek waterway. navigable the DNR learned is a When creek a channel lined with concrete the creek had been petition course, it filed a with the the creek's that alters Hearings Appeals Department of Division seeking the creek to its natu- to restore Administration alleged Stat. of Wis. state. The DNR violations ral §§ 30.195,3 and 30.294.4 30.12,2 hearing found, after a In examiner 4. hearing, Stat. that Oak Creek violated Wis. contested lining the creek bed 30.195, and 30.294 in §§30.12, 30.12(1) part: provides, in Wisconsin Stat. § by department pursuant permit granted [U]nless has a been legislature structures or has otherwise authorized statute or the waters, deposits navigable it is unlawful: (a) any place any upon deposit material or to structure To any navigable no line has been estab- water where bulkhead bed lished; or (b) any place any upon deposit material or to structure To beyond lawfully any navigable a established bulkhead bed of water line. statutory provisions upon relied apparently

The DNR 1987-88, essentially the 1995-96 are the same as from which provisions quoted here. 30.195(1) may person "No provides: Stat. §

3Wisconsin straighten navigable a change the of or stream without course being otherwise permit under this section or without issued authorized statute to do so." expressly "Every of this provides: 30.294 violation Wisconsin Stat. § may prohib chapter public to be a nuisance and be is declared brought by may by legal action by injunction and be abated ited any person." findings

with concrete. A number of regarding of fact were made significance of the creek as a wildlife and the concrete habitat channel's adverse effects on hearing habitat. examiner ordered Oak Creek to take out the concrete and restore the creek bed. pursued judicial

¶ 5. Oak Creek review of the decision and order in time, circuit court. At the same Legislature § the Wisconsin enacted Wis. Stat. 30.055 (1991-92),5 exempted which Oak Creek from the necessity acquiring permit for the concrete channel permitted and also the concrete channel to remain in legislature passed part the creek. The 30.055 as ofthe budget state bill. The effect of 30.055 was to override requirements §§30.12, of Wis. Stat. 30.195, and 30.294. response In to the creation of Wis. Stat.

§ 30.055, the state intervenor6 moved to inter- ongoing vene in the circuit court case to constitutionality. County statute's The Milwaukee Cir- granted public cuit Court intervenor's motion. In a 2, 1993, decision dated March court, the circuit 5 provided: Wisconsin Stat. 30.055 § Exemption permit requirements. from certain Notwithstand- ing 30.12, 30.19, 30.294, city may ss. 30.195 and of Oak Creek required any deposit not be to remove structure or concrete or other placed Crayfish city that was Creek in the of Oak Creek before 1,1991, may structure, June continue to maintain the concrete deposit having permit approval or without a or other from the department. 6 public formally The state intervenor intervenes in admin proceedings protect public rights istrative "to in water and other resources, natural with the public intervenor approval 23.39(2)(a)-(b). board." Wis. Stat. § intervenor used attorney general, be assistant Wis. Stat. 165.07 § (1981-82), position Department but the now exists in the of Natural Resources. Stat. 23.39. Wis. § George presiding, concluded that Burns A. Honorable by created violated the statute was method which Const, § Moreover, the circuit court IV, 18.7 art. Wis. waterway, navigable the creek needed that as a found Finally, court concluded that to be restored. Const, violated, equal protection under art. Wis. statute Const, § Trust Doctrine under Wis. 1 and the Public I, §IX, 1. art. appealed The court the decision. 7. Oak Creek appeals appeals held that Wis. The court of affirmed. according to the unconstitutional

Stat. 30.055 was "methodology determining two-part whether bill Const, City § 18."8 IV, art. violates Wis. statute 424, 442, appeals DNR, 185 2d 518 N.W.2d Oak Creek v. 1994). (Ct. App. also held that The court of supported the hear- and substantial evidence credible navigable ing findings creek that the is examiner's Id. at 433-434. in need of restoration. appeals decision, In its 1994 the court § 30.055 did not deserve a

determined that Wis. Stat. constitutionality. presumption Id. at 437-39. The legislation appeals also found that the was court of "geographically spe- private law, it or local because was entity (quoting specific." Id. at 440 Soo Line cific and DOT, 64, 75, 101 Wis. 2d 303 N.W.2d R.R. Co. (1981), private gen- "[a] proposition for the law Const, IV, private or provides: art. "No

7Wisconsin may by legislature shall embrace passed local which be bill subject, expressed in the title." than one and that shall be more methodology forth this court in Davis v. That was set 501, 520, (1992), Grover, which 166 Wis. 2d 480 N.W.2d inquiry process "whether the in stated that the first involves presumption a of constitu which the bill was enacted deserves the bill is tionality." inquiry The second involves "whether private Id. or local."

620 affecting erally applying as one to or viewed entity"). pri- particular Therefore, as a individual or legislation subject law, or local was to Wis. vate Const, requires private § 18, IV, art. which or local laws single-subject passed in bills. Id. at 442. The court to be appeals § IV, 18, concluded that under art. the stat- passed unconstitutional it not in a ute was because was single-subject bill.9 Id. at 442-43. legislature passed In 1996 the another bill exemption time,

that created an for the channel. This part budget not enacted as of a Assem- bill was bill. bly Assembly 1, Bill 424 introduced in the on June was pertaining damage 1995, as a to the destruction or bill nonconforming structures in disasters unrelated to Assembly floods. A later amendment to Bill 424 in the repealed § State Senate Stat. 30.055 and created Wis. § amendment 1 stated in

Wis. Stat. 30.056. Senate part: Exemption permit

30.056 from certain 30.12, 30.19, requirements. Notwithstanding ss. 30.294, city may 30.195 and of Oak Creek not be any to remove structure or concrete or required deposit placed Crayfish [sic] other that was 1, 1991, city Oak Creek June Creek before structure, may continue to maintain the con- having permit crete or without or other deposit approval department. from the 9 determined that Wis. Stat. 30.055 was § Since the court Const, IV, 18, art. it did not unconstitutional under Wis. circuit court's conclusions that 30.055 violated address the City Oak Creek equal protection or the Public Trust Doctrine. 424, n.3, DNR, (1994)(citing 276 185 Wis. 2d 518 N.W.2d DILHR, n.1, 2d 466 N.W.2d 189 Martinez v. (Ct. 1991), App. grounds, on other 165 Wis. 2d rev'd (1992)). N.W.2d passed adopted the amendment and

The Senate Assembly in the also concurred bill amended bill. The signed Thompson as it was amended. Governor published in 1996 as 1995 bill, and it was amended Act 455. Wisconsin attorney general response, In com- statutory exemption, against

menced an action claiming unconstitu- that the new statute was also attorney general further claimed that the tional. The statutory public nuisance and a channel constituted a Attorney general common law nuisance. summary judgment, Oak Creek moved moved for statutory public nuisance claim. In a to dismiss the Judge April 7, 1997, Circuit Court decision dated Foley attorney Christopher R. ruled in favor of the attorney gen- general. The circuit court found that the standing action, eral had that the statute unconstitutional, and that the channel created a was nuisance. appeal Creek, 11. On a second Oak the court City appeals Creek, 223 reversed. State v. Oak Wis. appeals 2d at 227. The court of held that the challenge

general standing lacked the statute's con- stitutionality. reasoning It its on this Id. at 227. based DNR, court's decision in Public Intervenor v. (1983). Public Intervenor

2d 339 N.W.2d held legislative authority support must the actions of assistants, and his and that both authority any person from the no such exists for attor- challenge constitutionality ney general's officeto appeals a law or rule. 115 Wis. 2d at 36-37. The court of recognition reiterated "Public Intervenor's attorney general powers and, in Wisconsin has limited 'duty accordingly, con- to defend'—not attack —'the stitutionality Creek, of state statutes.'" Oak 223 Wis. appeals basis, the court of

2d at 227. On that concluded necessary lacked the statu- that the tory

statute this case.

hHhH begin by briefly relating history We attorney general's in Wisconsin, the history office because that significant holding

plays a role in in our attorney general, present position as it case. The now genesis England. States, exists in the United had its in Alstyne Larry Roberts, Scott Van & J. The Powers of L. Wisconsin, General in 1974 Wis. Rev. kings England attorneys appointed 721, 723. The represent they appear them in court because could not attorney gen- personally. attorneys, Id. Of those "the only person legal eral had become the who could take special action in the name of the crown without author- Essentially, attorney general "the ization." Id. at 724. legal at 724 n.17. became the advisor to the crown." Id. governments preserved posi- 13. Colonial approximately 1643, In tion America. Id. at 726. attorney general appeared in the colonies in Vir- first ginia. Id.

¶ 14. The office of in Wisconsin territory beginning ofthe existed from the Wisconsin Organic The Act created the terri- 1836. Id. at 731. attorney10 tory provided appointment for the of an territory. (citing April 20,1836, ch. Id. Act of serve the 10.) §54, 10, 5 Stat.

10 attorney general later an elected office. See became Roberts, the Attor Alstyne Larry & J. The Powers Scott Van Wisconsin, ney General in 1974 Wis. L. Rev. attorney general's proposed office was 15. The state constitutional con in a draft article at the first Alstyne Roberts, & 1974 Wis. L. vention in 1846. Van Const, (citing (1846)(pro- §TV, art. Rev. at 731 Wis. proposed specified posed)). The article attorney general's powers pre and duties "shall be Const, (quoting IV, Id. art. scribed law." (1846)(proposed)). Wisconsin had two constitutional the first constitution was not rati conventions because n.11, fied. State v. 219 Wis. 2d Hansford, (1998). Although proposed 1846 consti N.W.2d rejected, pertaining the article to the tution was constitution, included in the 1848 was Alstyne adopted. the constitution that was Van & Rob erts, L. at 732. 1974 Wis. Rev.

¶ 16. The territorial statutes and later the state only prescribing statutes constituted the law the attor- ney general's (citing duties in 1848. Id. An Act 1848). Concerning General, Wis. Laws A 1849, revision of certain statutes in as as other well miscellaneous references in the statutes to the attor- ney general, powers. defined

further those Id. at 733. Significantly, any the statutes made no reference to powers. Id. at common-law 735-36.

h-H HH I—I history mind, in 17. With this brief we now presented address the issue before us: whether the standing has to attack constitu- tionality party standing § Stat. 30.056. A has Wis. party a statute's if the ahas justiciable sufficient interest in the outcome of a con- " troversy judicial 'to obtain resolution of that controversy.'" Norquist Zeuske, 241, v. 211 Wis. 2d

624 (1997)(quoting 247, 564 State N.W.2d 748 ex rel. First Rapids Peoples Bank Wis. v. M&I Nat'l Bank Coloma, 303, 2d 307-08, 95 Wis. N.W.2d 321 (1980)). by Standing two-step analysis. is determined a "(1) plaintiff AId. court must determine whether the (2) injury, has suffered a threatened or actual recognized by asserted whether interest is law." Id. (citations omitted). at 247-48 question ¶ 18. We examine the second in the standing analysis dispositive first because it is Determining attorney general's case. whether recognized by requires is asserted interest law us to Const, interpret Interpretation art. VI, Wis. 3.11 provision subject constitutional de novo review. Craney, Thompson 234; 2d at Hansford, Wis. (1996)(citing 2d N.W.2d 123 Polk County 665, 674, v. State Pub. Wis. 2d Defender, 188 (1994)). N.W.2d This court examines three determining provision's sources constitutional meaning: meaning plain "the words in of the the con- practices used; text and the constitutional debates writing in existence time of of the at the constitu- interpretation provision by tion; and the of the earliest legislature passed manifested in first law following adoption." Thompson, 199 Wis. 2d at 680. begin plain meaning

¶ 19. We with the of Wis. Const, §VI, above, VI, art. 3. As stated art. 3 defines attorney general's "[t]he scope powers: pow- .attorney compensation general ers, duties and of the.. prescribed consistently This has shall be law." court 11 pertaining The 1848 constitution moved the article previous position to Article VI its in administrative officers from Article IV in the 1846 constitution. VI, by law" in art. "prescribed that the phrase

stated statutory means law. prescribed by 3 plainly case examined this phrase 20. The first that Light Co., v. Elec. & Ry. State Milwaukee 136 Wis. was (1908).12 clearly This court 179, 190, 116 very N.W. stated: Wisconsin, many in if most

In otherwise than not states, general are of the powers officer, by strictly He is a constitutional but limited. given only he is such powers the constitution VI, art. It prescribed by "shall be law." Sec. Const. is therefore essential the maintenance of ex by action brought officio we should find some statute author- sponte sua izing it. not

Id. The court held that could reclaim in circuit a corpora- an action court tion's assets and or remove suspend corporation's officers, "assert[ed] had not legislature because suggests at The dissent 84 that State v. Milwaukee (1908), Ry. Light Co., Elec. & 136 Wis. 116 N.W. 900 is Elec "unpersuasive" precedent. recognize We that Milwaukee exploration does not into an extensive tric delve However, history underlying its decision. constitutional holding not mean that Milwaukee Electric's is incorrect. does history Elec strongly supports Milwaukee State constitutional holding, opinion. be later in tric's as will discussed Moreover, logical. Electric rationale Milwaukee Const, VI, language court examined the in Wis. art. holding phrase, plain meaning to base on ofthe appeared its Thompson at stated "prescribed law." Id. 190. As we 674, 680, (1996), Craney, plain 199Wis. 2d 546 N.W.2d "the meaning of the in the used" is a method for words context valid provision. interpreting constitutional sufficiently interest in some such situation direct warrant the state to suit." Id. at 185. Similarly, this court held in State ex rel. Sayle, (1918), Haven v. 159, 163, 169 Wis. N.W. 310 attorney general authority that the "must find in the statute when he sues in the circuit court the name of capacity." Snyder, the state or in his official In State v. (1920), 415, 172 Wis. 417, 179 N.W. 579 we reiterated "[i]n attorney general this state the has no com powers mon-law or duties." See also State ex rel. Coffey, Jackson v. 529, 538, 118 Wis. 2d N.W.2d 939 (1963); Reynolds State ex rel. Smith, v. 19 Wis. 2d (1963); 584, 120 Duffy, N.W.2d 664 State ex rel. Beck v. (1968)(abrogated 38 Wis. 2d 159, 163, 156 N.W.2d 368 grounds by on other State Antes, Wis. 2d (1976)). N.W.2d 671 "[t]he 22. This court has further stated that power is devoid of the inherent prosecute litigation protect initiate and intended to promote the interests of the state or its citizens and parens patriae." cannot act for the state as In re Estate Sharp, 2d 254, 261, 217 N.W.2d 258 (1974)(citing Christenson,13 Arlen C. The State Attor- 298). ney General, 1970 Wis. L. Rev. This is because the Wisconsin Constitution removed all of the general's "powers and duties which were found in that "[u]nless office under common Therefore, law." Id. power [bring] specific granted action law, is attorney general powerless office of the to act." Id. 13Arlen C. Deputy Attorney Christenson was the 1966-68, of Wisconsin from and he was the Executive Assistant Attorney General Christenson, from 1968-69. Arlen C. Attorney General, State 1970 Wis. L. Rev. 298.

Accordingly, court held that the statutory pro- intervene in estate lacked party ceedings, such, he was not interested standing litigation. had no in the Id. ¶ 23. recent in which examined The most case we attorney general's powers Public the was Intervenor (1983). 28, 339 In Public DNR, 115 Wis. 2d N.W.2d public Intervenor, lacked held that the intervenor we standing challenge constitutionality to the of rule. 2d at 41. The court administrative code 115 Wis. only "statutory provision no noted that not was there attorney general power giving the his assistants the constitutionality a law or rule of this the of contrary, "[t]o agencies," but, or one the it is state of its attorney duty general's the to defend constitution (citation ality omitted). at of state statutes."14 Id. 36-37 explained applicable The court rules attorney general applied inter- to the venor, an assistant at the who was time. Id. at 37. by sum, 24. it is case law In well established Const, plain meaning according of art. to the Wis. attorney general's powers prescribed § 3,

VI, are by only statutory law. Underlying long-settled decisions

regarding general's powers and duties is history history § VI, VI, art. The of art. of suggests that the drafters the Wisconsin Constitu- of recognized duty similarly has his stating, legis "[o]nce defend the statutes duty lation is enacted it becomes affirmative constitutionality." Op. Att'y defend its Gen. (1982). tion intended the Wisconsin statutes to be the sole attorney general's powers. for the preserve 26. The first convention did not Hist, record of its debates. Alice Smith, E. 1 The (1985). provision However, at 656 as stated in the rejected helpful. 1846 constitution is still It stated: "[t]he powers, compensation duties, .attorney general, prescribed by the. . shall be law. compensation Each of said officers shall receive as a yearly, prescribed by his services a sum to be law." Wis. Const, (1846). concerning IV, art. sec. 3 The statement compensation clearly statutory refers to law, since a salary cannot be determined the common law. This point was borne out in the 1848 statutes, which set the attorney general's salary per year. at 800 dollars An Concerning Att'y Act Gen., Sec. 8. Laws Wis., Approved 1848 St. 21,1848. June ¶ 27. A debate from the second constitutional convention further illustrates that the drafters meant statutory they phrase, "provided by law when used the law." Administrative Article sec. 3 was in submitted ultimately the same form as it was ratified. Journal and Debates of the 1848 Convention, Const. Wednes- day, Dec. 1847. A ensued, debate however, a over proposed amendment to the section that would "empower governor the to remove the treasurer from office in case of malfeasance." Journal at 91. Mr. Esta- responded brook, drafter, that he thought they encroaching were upon too much the ordinary business of legislation. The convention provide how, whom, could not by detail and for removed; what causes officers should be and he gave notice that if this amendment should not pre- vail, he would offer one to the effect that officers might

might pro- be removed in such maimer be vided law. added). passage, (emphasis This while at 91

Journal exemplifies discussing drafters' treasurer, the state the they to in constitu- intent that the law referred statutory provision law. Mr. tional meant Estabrook's explains why the it comment also instructive because powers did the duties of drafters not further detail and attorney They carefully general the or the treasurer. specifying offices refrained the nature legislature these from they provide the wanted because detail. explained pre- likewise the attitude Smith

vailing at the second constitutional convention toward legisla- relationship the constitution state tion: drafter] M. Strong pleas- [Marshall

What found —a ing work of second convention was ability of discretionary people. confidence in the embody mea- attempting Rather than reform constitution, sures in was convention willing decision-making people's to leave Time again elected representatives. permis- phrases appeared sive in the document: "the confer," Legislature may Legislature pro- "the shall direct," for," Legislature vide "as the shall "shall be bylaw." fixed Hist, short, Smith, 1 675. In the drafters at "prescribed by phrase, law,"

intended constitution's regarding decision-making to leave legislature. general's powers and duties to the legislation Finally, early we examine the interpreting legisla- §VI, 3. art. We conclude that the attorney general's powers of the in ture's codification specific statutes has precluded any common-law powers. 30. The legislature manifested its interpreta- Const,

tion VI, of Wis. art. 3 by prescribing attorney general's in powers statutes. Two weeks after the first elected attorney general took office in 1848, the state legislature An passed Act Concerning the Gen., Att'y Laws which precisely defined his and powers duties.15 Van AJstyne & Roberts, 1974 Wis. quoted The act is in full: people Wisconsin, represented of the State of in Senate Assembly, and do enact as follows: attorney general Section appear 1. The shall for the state in supreme prosecutions crime, court in all and in also the trial argument in said court of all causes criminal or civil which may party the state be a or interested. attorney general Sec. 2. The required by shall also when governor legislature, or appear either branch of the for the state in any any court or tribunal in other causes criminal or civil in which may party the state abe or be interested. Sec. 3. The [sic] shall consult with and advise the district attornies of the several counties of the state requested by any whenever them or or either ofthem in all matters appertaining offices, to the duties of their and shall make and legislature submit at the commencement of the annual ses- report by sion thereof a during of all the officialbusiness done him preceding year: specifying prosecutions the suits and to which may he persons prosecuted: have so attended: the number of which, crime for prosecutions and the counties where such were punishment had: the result thereof: and the awarded therefor. required Sec. 4. The shall when attend the legislature during give opinion upon their session: and shall his all questions by legisla- law submitted to him either branch of the ture; governor; give and shall his aid and advice arrangement preparation legislative documents and busi- required by legislature. ness when either branch of the any Sec. 5. Whenever demand shall be made of the executive conformably delivery any person this state to law for the over charged any any territory, with crime committed in other state or it duty shall upon request gover- be the of the further A of statutes Rev. at 732 n.64. number L. in 1849.16 Id. at attorney general's the powers defined 733-34. nor, writing appertaining give opinion upon matters to to in all his demand; person charged, upon an arrest so shall such and of such any required appear in of this state to sustain when court ordering authority in such arrest. executive attorney general, upon he enters the duties Sec. 6. The before Wisconsin, in office execute unto the state of a bond of his shall dollars, duplicate, penal sum of ten thousand with not less approved by governor than three sureties to he conditioned faithfully perform attorney general discharge to and the duties of Wisconsin, discharge and to the duties of one of the for the state of university for the of the school and board of commissioners sale arising of the funds therefrom con- lands and the investment law, formably duplicate to of executed in shall one which bonds so state, secretary filed in the of the of and the other in the be office supreme of the office clerk of court. legislature may require time to Sec. 7. The from time general security may attorney give additional it be to whenever expedient necessary. deemed salary eight Sec. 8. shall receive of The treasury paid per to be him out of

hundred dollars annum to payments equal quarterly all the state in which in full for shall.be attorney general, as one of services him rendered both as and university for the sale of the school and the board commissioners lands. (cid:127) Wis., 21,1848. Approved Laws 1848 St. June statutory provisions relating to the following provisions: the attor were similar to the in all criminal ney general represent to the state civil and was court, supreme request and at the matters before the legislature court; represent he governor or at the circuit was to requested by governor if the state bond or contract actions officer; attorneys, to state he was advise the district or other opinions legislature, legal as render to the executive well officers, legal superintendent; prepare he was state cases; report his forms for certain state officers and them on pay deposited funds that had been into he was all state treasury; had he was to record the actions he been state Significantly, the chief revisor of the 1849 primarily statutes, Baker, Charles M. relied on New drafting statutory relating York law in sections powers general. duties Charles Papers, Library, M. Ms. Baker Wis. State Historical Alstyne 10. Van Roberts, Box See also & 1974 Wis. L. draft, Rev. at 733 His n.67. handwritten "Of the Attor- ney margins. General," 1 cites to N.Y. R.S. in the attorney New York's 1846 constitution describes the general's powers exactly and almost duties as Wiscon- powers attorney- sin does: "the general and duties of the may shall such are be as now or hereafter be prescribed by People Dorsey, 637, law." 29 N.Y.S.2d 1941). (Queens County Dorsey, In Ct. the court language looked that constitutional to hold that the any York New does not have common only powers, powers attorney gen- law and that the the specifically prescribed eral has are those the New York at Therefore, statutes. Id. 643. Baker relied on similarly precluded attorney gen- laws that had powers. eral's common-law in; hond; involved he was to take a oath and file constitutional year. would paid salary per he be of 800 dollars Van Roberts, Alstyne (citing & 1974 Wis. L. Rev. at 733 Wis. Rev. (1849). Stat., 9, legislature expanded ch. 36-43 further §§ attorney general's chapters. duties in other He was ex officio (1849). member of the Board of Wis. Rev. Stat. ch. Canvassers. governor's request, investigate At corporations he was to 54, 22 and examine its records and officers. Wis. Rev. Stat. ch. § (1849). bring He quo also could warranto actions. Wis. Rev. (1849). 126, Finally, prosecute Stat. ch. he could visitorial § (1849), powers corporations, over Wis. Rev. Stat. ch. 5§ prosecute subpoena witnesses without a fee and for con- (1849). Alstyne tempt, Wis. Rev. ch. Van & Stat. Roberts, 1974 Wis. L. Rev. at 733. Essentially, legislature's conception

¶ as the 32. legislature grew, attorney general's office statutory Alstyne granted powers. & Van him more This L. at 734-35. evidence Roberts, 1974 Wis. Rev. prescribe spe- legislature intended indicates that the defining general's powers: by attorney cifically the general's powers attorney statutes, in the are what legislature lim- its intent to create a demonstrated attorney general. powers ited set and duties for years Therefore, in with almost 100 accord 33. precedent history, con- and with constitutional we attorney general's actions must be clude that general is The constitutionality statute. barred authorized challenging Stat. from authority. grants him that 30.056 because no statute case, In this lacks statutory authority suit several reasons. attorney gen- § forth Stat. 165.25 sets the Wisconsin 165.25(1) Although grants powers § duties. eral's attorney general authority represent the to party court, that a in civil cases circuit state as authority authority challenge equivalent to is not to - constitutionality of state statutes. Public Inter though (noting venor, 2d at 36 that even 115 Wis. "representing § the state" as one of the 165.25 includes give duty attorney general's duties, not rise to that does constitutionality). power challenge to statute's Sharp, Intervenor, 261. See 63 Wis. 2d at Public also expressly 36-37, that 115 Wis. 2d at stated the attor- ney general's challenge duty defend, to not the state constitutionality. statutes' attorney general Furthermore, has rec- duty statutory

ognized he defend the state that has a to 634 constitutionality. Op. Att’y 124, 80 statutes’ Gen. 128 (1991). similarly acknowledged This court has attorney general's duty to defend the state statutes. In Educ., #10, O'Connell v. Jt. 82 2d Board Dist. Wis. of (1978), 733, 728, 264 561 N.W.2d we stated that Wis. 806.04(11) "recognizes duty § Stat. that it is appear people to on behalf why [a] this state to show statute is constitutional." See Chicago Intervenor, 37, also Public & 115 Wis. 2d at N. Follette, W. R. Co. v. 27 La Wis. 2d (1965); Thomson, N.W.2d White House Milk Co. v. (1957). 243, 247, N.W.2d We therefore agree argument with Oak Creek's that because the must defend the any challenge part statutes, to the on statutes his duty specifi- defend, conflict to would cally with his unless 13.) (Resp. authorized at statute. Br. attorney Finally, general attempts to statutory authority find to the constitution- ality by claiming § 30.056, Wis. Stat. that if he has statutory "specific authority sue," can he attack the (Pet. constitutionality of the statute suit. Br. at 20.) argument unpersuasive. attorney find We The general appears argue §§ 30.294, Wis. Stat. provide necessary statutory 823.01, and 832.0217 authority Stat. abate nuisance under Wis. provide spe- However, 30.056. those statutes do not cific to sue in this case because 30.056 general's attorney appears brief differ from the statutory provisions record as to the under which the general brought attorney general this action. The claims that he brought pursuant the action Stat. to Wis. 30.294 and 821.01- §§ (Pet. 11), complaint actually .02 Br. at but the refers to the (R. 1:3.) statutory provisions stated above. at Therefore, effect expressly negates §30.294.18 statutory attorney general none of the sections authority challenge him the to specific cites give 30.056. §

rv. attorney general additionally argues The the constitution- authority challenge the he has the to further ality statutory of Wis. Stat. 30.056 without § and common law authority under other constitutional claims that several attorney general The principles. him this concern give power: great public doctrines doctrine, doctrine, and the core func- polity state fully tion These are more defined doctrine. doctrines that later in this For the reasons are discussed opinion. attorney general The asserts in 67-78 that dissent ¶¶ statutory authority bring public claim and has the to a nuisance unconstitutionality argue part can of Wis. Stat. 30.056 as § agree claim. that the has statu We tory bring public for under Wis. to claim nuisance 823.01, 823.02, 30.294, bring a but he cannot claim Stat. §§ validity. All depends on 30.056 its that the nuisance claim, permit bring not an attack statutes him is nuisance constitutionality. attorney general attempted on a statute's statutory bury unconstitutionality within his his claim of (R. 9.) public Simply attempting to combine nuisance claim. at does not mean that the has those two claims statutory authority bring the under 30.294 to unconstitution ality separate, he claims are and therefore needs claim. The statutory authority See different both claims. Public (1983) DNR, 2d Intervenor N.W.2d enabling legislation only (stating that the intervenor's proceedings, permits him or her to intervene not constitutionality). a rule's general's reject attorney

hereinafter, we of use these doctrines in this case.19 argues

¶ 38. The first that according great public to the doctrine, concern he can challenge constitutionality great of a statute. public general exception concern doctrine is an to the agencies public ques- rule that "state or officers cannot constitutionality tion of a it statute unless is their duty they personally so, official will do be affected they if fail to do so and the statute is held invalid." Found, Dep't 11, Fulton v. 13 2d Taxation, 1, (1961).20"[N]o question 312 can N.W.2d one in the constitutionality already courts the of a statute except rights impaired... enacted one whose are . This public private rights rule extends to officers whose are However, not involved." Id. at 11-12. when an is issue great public agency concern, a state can a constitutionality. statute's Id. at 13. This court great public appeared to define an issue concern as great public "matter of interest." Id. being At the dissent discusses these doctrines "read together" attorney

separately and read in order find for the general. suggest We three no these doctrines are more persuasive for the in this case when "read together" they analyzed when separately. than are case, In the Fulton this court in a it noted footnote that deciding attorney general's right was not question of concerning constitutionality raise issue of a state statute. Found, Taxation, n.3, Dep't Fulton 2d 13 Wis. (1961) (stating present "[w]e N.W.2d 312 have no issue general's attorney right question instant case of the attorney of a state statute. This because the is general party only appears is not the instant case department.") counsel for the great general argues that the 39. The exception applies he in this case because concern argument, support the attor- In of that a state officer.

ney expressly general did limit notes that Fulton not exception agencies. Fulton, 13 at to state Wis. 2d 13. argument attorney general's

¶ 40. The lacks attorney First, it is reasons. not the constitutionality merit general's several duty challenge to the official expressly did not of Stat. 30.056. While Fulton Wis. concerning reject exception in the use of the cases the attorney general, doctrine cannot this common-law requirement supersede VI, § 3, of under which art. statutory general authority have to must constitutionality. The constitution attack a statute's attorney general's places actions that are limits on the agencies, placed even on other not on state or attorney general person- not also will be officers. ally if not the statute's affected he does constitutionality. great public excep Moreover, concern apply "to of

tion does not suits between two creatures Fitchburg, City 112 v. Town state." Madison (1983)(citing Keno 224, 240, 2d 332 N.W.2d 782 State, 317, 331, 151 36 v. Wis. 2d N.W.2d sha (1967)). County In v. Board Columbia Trustees Fund, 318, Retirement 17 Wis. 2d Wisconsin (1962), exception we declined to extend N.W.2d government agencies to of the state "suits between two government or an arm of the and the state between City DNR, also Claire v. 60 Wis. 2d itself."21See of Eau Board, Employe Lightbourn, al. v. See also Trust Funds et 99-3297, al., (properly et Case No. Order dated of even date County deny applying Employe Trust Funds Columbia (1973)(per curiam)(stating 751, 752, 210 N.W.2d 771 exception apply does not a between state agency municipality). attorney gen- and Because Creek are eral's office Oak both "creatures of the great public exception state," the concern does not apply. attorney general peti- It is that the true can original jurisdiction

tion invoke this court's without governor legislature's or the authorization, but accept deny prerogative so, it is this even court's petition.22 However, such did petition original jurisdiction not court to invoke its in this case. argues

¶ 43. The next he has attack Wis. Stat. 30.056's constitu- tionality polity" under the "state as doctrine. He cites Reynolds Zimmerman, State ex rel. Wis. 2d (1964), 553, 126 N.W.2d 551 State ex rel. (1892), Cunningham, Gen. v. 81 Wis. 500-01 standing against Department to Board commence a suit the of Administration, challenging leg- the of recent concerning public employee pensions). islation jurisdiction We emphasize accepts original that this court only specific actions in rare The and limited instances. circum original accept jurisdiction stances in which this court will are Supreme Operating detailed in the Court Internal Procedures (1939)). ofHeil, to II(B)(3)(citing Petition 230 Wis. 428 Wis. S. 1984). Christenson, II(B)(3)(May Ct. IOP See also who states: Supreme original jurisdiction through

The Court exercises prohibition, as traditional writs such mandamus and the exercise courts, superintending powers of its in over inferior and certain great public urgency. other of If cases moment jurisdiction Supreme through General can invoke the Court means, may litigation. of one these he himself initiate Christenson, 1970 L. Wis. Rev. at proposition

claiming that those cases stand for the public injury from.. .unconstitutional "the that results by only adequately legislation redressed can be (Pet. 16.) gen- attorney attorney general." The Br. at public polity" appears as as to define "state a a eral (Pet. opposed injury.23 injury, Br. to an individual at as 16.) City Eau cites The Gen. v. The He of (1875), support argu- Claire, 400, 447 in of his 37 Wis. public "a a violation of the trust is ment that violation by duty aggregate in its state, assumed argues sovereign character." public trust is therefore a violation to a violation polity public it constitutes a the state because 16.) (Pet. separate injury. It Br. at is difficult to attorney general's argument involving claim from the great public concern doctrine. attorney argument only general's ¶ 44. The attorney general may partially correct. The certain against perceived bring instances suit a violation of the City public Claire, trust. Eau 37 Wis. at 447. How- ever, the does have the not every injury bring If suit time occurs. general specific statutory authority, attorney he lacks must meet one of may additional conditions act. He two governor legislature act if the directs him to do 165.25(1) permits Stat. so. Wisconsin general "any [he is] suit in cause or matter.. .if requested governor legisla- house ofthe or either may appears anomaly, also ture." It be but he act granting origi- petition if the results case 23 Dictionary "polity" govern "[t]he as total Black's defines organization goals as and policies." mental based on its Black's (7th 1999). Dictionary Law ed. jurisdiction. Sayle,

nal State ex. rel. Haven v. 168 Wis. (1918).24 159, 163, 169 N.W.

¶ 45. In all of the cases the cites, these at least one of additional conditions was met. jurisdiction original action, Zimmerman was in special governor challenged which for counsel constitutionality reapportionment plan. of a state recognized 2d at This Wis. 552. court either governor or the could reapportionment plan. of a state Id. Cunningham involving at 552-53. was also a case reapportionment assembly of state senate districts. Cunningham, quoted In 46. the court with City approval why explaining from Eau Claire in

granting petition original jurisdiction impor- for was subject tant in cases where the right publici juris: matter was of —

24Specifically, this court in ex. stated State rel. Haven v. Sayle, that original jurisdiction supreme [w]ere the case within the

court, charged law, i.e. were officers state with violation of attorney general filing equity were an information in in this act, might by simply court restrain such the suit be entertained court, obtaining grant preroga leave of but results from this jurisdiction constitution, explained tive court Att'y See, also, the case of Gen. Railroad Cos. Wis. 425. Income Cases, 456, 134 673, 135 Tax 148 Wis. N.W. N.W. (1918). 159, 163-64, recognize that 168 Wis. 169 N.W. 310 We arguably, general statutory authority peti- has original jurisdiction tion this court for in a matter. See 165.25(1). However, Stat. we caution that his petition original jurisdiction court does not mean that this automatically accept original jurisdiction any will case. jurisdiction original the of

To warrant assertion primary and here, the ofthe state should be interest remote; per- peculiar, indirect or not proximate, state, affecting of the but haps, to some subdivisions its raising in of large prerogatives; the state at some interposition of this contingency requiring and franchises preserve prerogatives court to character, judg- this court sovereign the state in its each for itself. contingency in case ing of Cunningham, (quoting Claire, Eau 81 Wis. at 444). City explained paragraph 42, in Eau Wis. at As Cunningham cases in which the were both Claire anomaly accepted demonstrated,

is since this court permitted jurisdiction original therefore, and, constitutionality attorney general legis- to attack the lative action. case us was not commenced 47. The before now jurisdiction, original petition

in this court on a attorney bring general not this action at the the request did governor legislature. Therefore, or the attorney argument general's polity" "state as a fail. must Finally, attorney general argues

¶ doing he suit in this is is able case because so attorney general. his He one of core functions as claims uphold core that his function is to "enforce law and (Pet. 17.) Br. at he statutes, constitution." Two recognition legislature's asserts, evince the of his uphold First, under the constitution. Wis. 806.04(11), must Stat. be served a claim is made that a statute unconstitu- when 14.11(2)(a)4, Second, tional. under Stat. attorney general may validity opinion "his use to the any deciding in a law" which side take case. (Pet. 18.) points Br. at also law, permits Arizona case which Arizona to attack an Arizona statute's general to defend the state constitution. Fund attempting (Ariz. Corbin, Manager v. P.2d App. 1988). The to reason attorney general appears that he attack the of Wis. Stat. may constitutionality 30.056 § doctrine, to defend the trust attempting public which Const, IV, emanates from Wis. art. 1.§ attorney 49. The general must cite to another state's case to support theory law his core function Instead, because no case supports Wisconsin it.25 brief, In petitioner attempts note of his set four a "attorneys general forth of cases in which number Wisconsin (Pet. challenged legislative have acts." n.4.) 19, Br. at These can all cases be differentiated because in instance, legally prescribed gov each a condition was met. The ernor, legislature, agencies departments, state public requested attorney general officers the consti tutionality according 165.25(1), of a statute to Wis. Stat. or it original action, Quo quo was an or it awas warranto action. proceeding attorney general is a warranto was first bring by authorized to the statutes enacted in 1849. He contin statutory present ues to have such authorization in the 784.04(1). following statutes. See Wis. Stat. In the actions attorney general by department was requested state or a public DILHR, 687, officer to suit: Martinez v. Wis. 2d (1992)(on Industry, Department 478 N.W.2d 582 behalf of the Found, Labor, DILHR); Dep't and Human Fulton v. Relations — (1961)(on Taxation) 1, 13 Wis. 2d N.W.2d behalf of of the Department Taxation); Froehlich, State rel. v. ex Jones (1902)(on 32, Secretary 115 Wis. 91 N.W. 115 behalf of the official). State, following original The were cases 674, Thompson Craney, v. actions: 199 Wis. 2d 546 N.W.2d 123 (1996); Zimmerman, Reynolds State ex rel. v. 22 Wis. 2d (1964); Giessel, ex 126 N.W.2d 551 State rel. Larson v. 266 Wis. (1954); Zimmerman, N.W.2d 421 State Martin ex rel. any opinion, Wisconsin, III in Part of this stated in the has is found stat- from the There is no "core function" derived utes. attorney general's superior to that is constitution powers statutorily-provided the constitution because attorney general's provides "core functions" gen- are the statutes. to be defined powers equivalent to his constitutional are eral's statutory powers they are one and the same. That — history why important: precisely §VI, of art. 3 is so conclusively intended it that the framers demonstrates any not have core function except in the statutes. as defined rejected already Moreover, court has attorney general's argument. As function core previously "[t]he earlier, this stated that noted court general power attorney to initi- is devoid the inherent prosecute litigation protect or ate and intended to promote its the interests of the state or citizens. ..." added). (emphasis Sharp's Sharp, 63 2d 261 at Wis. referring language power" is to "inherent the same as attorney general's terminology. the "core function" issue Intervenor likewise addressed this Public attorney general found that the cannot attack stat- constitutionality attempting uphold in ute's the Raymer ex v. (1946); State rel. 101, 249 23 610 Wis. N.W.2d 39, Cunningham, 82 State ex rel. (1892); 51 N.W. 1133 Wis. (1892); Cunningham, Gen. v. 81 Wis. 51 724 N.W. (1875). City Claire, v. Eau Gen. 37 Wis. 400 v. quo warranto actions: State ex rel. Hicks following cases were Stevens, Brayton State ex rel. (1901); 112 Wis. 88 N.W. 48 Merriman, (1857); and another Gen. v. Wis. McDonald, (1854). 703Wis.

public 2d trust doctrine. at 38-40. Public explained Intervenor state,

[t]he is public intervenor not the is an but by legislature office created the with lim- stated and authority ited to intervene in proceedings. He does authority not have direct court actions chal- the lenging adopted by of rules the DNR, agency an created the by legislature. also position attorney Id. manner, at 38. In the same general authority synony and the state are not attorney general's mous—the office is a constitutional legisla officewith defined and limited any person suing state, ture. or While in the name may state, use the trust doctrine to attempt standing, (citing to establish id. v. Deetz, State (1974)), 1, 13, 66 Wis. 2d 224 N.W.2d 407 general may in not use the doctrine this case because explained state, is not the as was statutory Intervenor, and Public because he lacks authority to Moreover, sue in this case. we reiterate point Public Intervenor's that the DNR is dominant to protecting waters, state and as duty protect such, it is DNR's Crawfish Creek. (citing Decade, DNR, Id. at 38-39 Wis. Envtl. Inc. v. (1978)). 518, 527-28, 271 Wis. 2d N.W.2d 69 attorney general's ¶ 51. We also note that 806.04(11) 14.11(2)(a)4 §§ reliance Wis. on Stat. misguided. permits governor The former statute employ "[t]o special prosecute counsel institute and proceeding attorney general, by action which general's attorney opinion reason of the the valid- ity any any duty law, reason, other it the deems attorney general prose- of the to defend rather than 14.11(2)(a)4. provision cute." Wis. Stat. This does not attorney apply present because here the to the case attempting prosecute, general not defend is employ- provision Moreover, deals with the action. special counsel, renders it which also ment of inapplicable The latter statute deals

to this case. with attorney ability general's defend the state stat- ability his the state constitution. utes, not defend sum, In none of the theories that attor- 52. necessity ney supplant general that he advances bring suit in his from the statutes to derive this case. We hold that the lacks the statutory authority

necessary to attack the constitu- tionality § 30.056, therefore, ofWis. Stat. we do not is address whether statute constitutional.

V. attorney general brought In this case the statutory public both a nuisance claim and a common granted public circuit law nuisance claim. The court summary judgment to on the com- claim. Because hold that mon law nuisance we attorney standing general lacks to attack the underlying constitutionality, presump- statute's County tion of the statute's remains. Management, Inc., 2d Kenosha v.C&S 223 Wis. (1998). pre- Since the statute is 383, 588 N.W.2d sumptively appeals constitutional, court grant summary properly the circuit court's reversed judgment.26 portions Oak Creek's motion to strike brief, court, denied,

general's filed since the matters argued therein have been considered.

VI. ¶ 55. We conclude that standing bring legisla- lacks this action because the granted statutory authority ture has not him the of attack Wis. Stat. Our 30.056. strong precedent on a conclusion rests of foundation history.27 and constitutional We also conclude that the great public polity doctrine, concern as state doc- give trine, and the do core function doctrine not authority. accordingly such We affirm appeals. the decision of court By appeals the Court.—The decision of the court of affirmed. ABRAHAMSON, SHIRLEY S. CHIEF (dissenting). majority JUSTICE I dissent from the 27 basis, "rickety unsteady" It does not rest on a and as alleged result," in the dissent. Nor it lead does to "an absurd Board, Employe claimed the concurrence in Trust Funds et al. al., Lightbourn, 99-3297, et Case No. Order dated of even decision, recognize pre-emi- date. With this we continue to For, precedent. nence of as we have stated earlier: Fidelity precedent, things the doctrine of stare 'stand decisis decided', society governed by is fundamental to 'a the rule of law.' Health, Inc., 416, Reproductive v. Akron Akron Center 462 U.S. for (1983). legal every open 420 When standards 'are to revision in case, deciding judicial will, becomes a mere cases exercise of with arbitrary unpredictable Appeal Corpora results.' Concerned Bank, 227, Savings 183, tors Portsmouth N.H. 525 A.2d (1987) (Souter, dissenting, quoting Thornburgh v. J. American Col lege Gynecologists, U.S. Obstetricians 786-87 (1986), White, dissenting). J. 441-42, Stevens, State v. 181 Wis. 2d N.W.2d (overruled (1994)(Abrahamson, J., concurring) other on (1997)). grounds, Wisconsin, Richards v. 520 U.S. 385 holding opinion's lacks standing this action. opinion gives many lengthy majority

¶ 57. The wrong reaching persuasive, reasons, none my points. six I shall limit dissent to result. major majority opinion

¶ I. A reason the 58. begs question wrong the is that it the reaches result Specifically, majority presented in the asks the case. statutory Attorney specific whether the General has constitutionality challenge of to the presented question properly § 30.056. But the Stat. Attorney has statu- this case is tory the General whether bring to the action to abate this authorization alleged public I common nuisance. conclude law Attorney clearly statutory authority has to the General may challenge bring he the this action therefore constitutionality of Wis. Stat. 30.056 as one the arguments support litigation. ¶¶ the See 64-78 to below. answering questions poses, In it 59. II. the regardless majority opinion implying in

the errs that Attorney statutory powers the to initiate an General's Attorney specific the must also have action statutory authority constitutionality the ¶¶ Wis. Stat. 30.056. See 79-83 below. reaching beyond In case to limit III. Attorney majority opin- powers General, (and progeny).

ion rests on a 1908 case its Wisconsin scholars characterize the 1908 state constitutional law progeny ¶¶ its case and as "dubious." See 84-85 below. majority simple opinion's The recita- IV. history support its tion of state constitutional history really simpler decision makes the than it is. story supports position part omitted Attorney powers. General has common law See ¶¶ 86-93 below. important great

¶ 62. V. Three doctrines —the public power doctrine, concern General's bring original challenging action the court statute, of a and the doc- trust together, support position trine —read standing General has the action in present ¶¶ case.-See 94-113 below. majority opinion compel- ¶ 63. VI. The offers no ling justification reading General's powers ¶¶ such a restrictive manner. See 114-118 below.

HH majority opinion ¶ 64. The fails to ask and question presented determinative answer the in this majority Attorney case. The asks does the General statutory authority constitutionality have to the attack Majority op. majority § ¶¶ of 30.056. opinion correctly 1 and 55. The negative. question in

answers the agree majority opinion I with the that statute no Attorney expressly authorizes the General to attack (1995-96). constitutionality § the of Wis. Stat. 30.056 majority opinion implicitly ¶ asks, 65. The also Attorney does the General have to attack the constitutionality of a statute in a the lawsuit that bring? Attorney statutory authority General has to The opinion correctly majority suggests question that this op. Majority in affirmative. should the be answered agree majority ¶¶ 42, 44-46, I 49 and n.25.1 with the majority opinion 1 1n the apparently accepts n.25 that the Attorney power challenge General has the to the constitutional ity quo of in statutes warranto actions because Wis. Stat. 784.04(1) Attorney quo bring authorizes the General to war- expressly opinion authorizes the when a statute that bring Attorney Attorney lawsuit, a the Gen- General to constitutionality may a statute in attack the of eral majority pursuing opinion, however, The that lawsuit. Attorney express implies General needs also that the constitutionality statutory authority challenge the to particular a statute.2 majority opinion to The fails ask 66. present question posed by the case: Does

answer the any Attorney expressly the authorize General statute question bring present I in the lawsuit? answer this §§ affirmative. Stat. 30.924 and 823.01-.02 the (1995-96)3 expressly provide statutory a basis for the Attorney power to initiate this lawsuit General's public enjoin statutory and law nuisance. a common Attorney In General initiated this 1996 the enjoin in circuit court to nuisance lawsuit nuisance) (whether statutory or a cre- common law (a.k.a. by City in ated Crayfish) the of Oak Creek Crawfish correctly majority opinion As the Creek. Attorney Similarly, majority opinion accepts the ranto. constitutionality of statutes at power General's legislature governor or Stat. the behest of because Wis. General, 165.25(1), "if which states governor legislature, or requested either house of represent any .[in matter] appear state. . which may people state state be interested." majority recognizes also opinion may origi- General attack the a statute despite authorizing the nal action in this court no statute original action. I will address this V, in Part 94-113 ¶¶ issue below. II, aspect majority opinion

2 1will discuss of the in Part this 79-83 below. ¶¶ subsequent All Statutes are to references to Wisconsin the 1995-96 version unless otherwise stated.

acknowledges, Attorney this case is about Gen- public Majority op. a eral's action to abate nuisance. ¶ 1. The to the of Wis. Stat. part underlying litigation brought § 30.056 is enjoin against public Oak Creek to nuisance. Attorney sought injunctive ¶ 68. The General §§ relief under Wis. and Stat. 30.294 823.01-.02 to City require the of Oak Creek to remove a concrete claiming Creek, channel from Crawfish that con- public Majority op. ¶ crete awas nuisance. 1. These by express language their statutes authorize the Attor- ney injunctive against to seek General relief what alleges public General is a nuisance. governing chapter

¶ 69. Section 30.294 statu- tory provides public "[ejvery nuisances that violation chapter ^[30] is declared to be a public nuisance may by injunction prohibited may by be be abated legal brought by any person." action governing 823.01, 70. Section law nui- common expressly any person bring sances, authorizes enjoin public parties action to a nuisance.4 The do not dispute qualifies "any that person" § under these 823.02 statutes. Furthermore specifically authorizes the General to enjoin public an action to nuisance.5 "any .may provides person.. Stat. 823.01 main Wis. damages tain an action to recover or to abate a nuisance injuries complainant from are peculiar which to the suf fered. ..." provides enjoin Stat. "an 823.02 action to may prosecuted public nuisance in the name be commenced and state, by either on information department justice, upon of a obtained relation private individual...." majority opinion Attor-

¶ dismisses the 71. The express statutory powers ney claim these General's enjoin public a nuisance in one initiate this action to conclusory majority opinion states sentence. specific authority provide not to sue statutes do "those negates expressly § 30.056 in this case because Majority op. § ¶ effect of 30.294." 36. begs question in 72. This sentence raised present question in the case is case. The whether

this §§ § 823.01-.02 authorize the Stat. 30.294 or Wis. injunction against action is Creek for what the General concludes Oak question nuisance. The answer to a clearly yes. clearly yes, though It is even 30.056 required Oak Creek cannot be to remove declares that any deposit placed it in Crawfish Creek before June provides that "notwith- 73. Section 30.056 standing 30.12,6 30.294," Oak 30.19,7 ss. 30.1958 and 30.12(1) provides, part: Stat. § by granted department pursuant permit [Ulnless a has been legislature or otherwise structures or statute has authorized waters,

deposits navigable it is unlawful: (a) any upon deposit place any To material or to structure the bed any navigable no line has water where bulkhead been estab- lished; or (b) any place any upon deposit To material or to structure the bed any beyond navigable lawfully water established bulkhead line. 30.19(l)(a) provides:

7Wis. Stat. § (1) granted required... permit Permits .Unless has been legislature, department granted by it or authorization has been is unlawful: (a) construct, canal, dredge enlarge any waterway, To artificial or channel, ditch, waterway lagoon, pond, lake similar where the may required any Creek not be to remove concrete placed in Crawfish Creek before June 1991. The statutory power to General's initiate this against enjoin action Óak Creek under 30.294 to he is a nuisance in what thinks remains effect § § after enactment 30.056. If 30.056 is a consti- might grant enactment, a tutional court not Attorney injunction General the he seeks. disagree Although may a court with the

Attorney General that Oak conduct Creek's constitutes legislature nuisance, a has not vitiated in Wis. Attorney statutory express § 30.056 Stat. authority General's enjoin action to what an the Attor- ney legislature General a considers nuisance. The expressly person § have in could may bring stated 30.056 that no against §

an under action 30.294 Oak Creek pre-1991 regarding for its legislature conduct Crawfish Creek. legis- Rather,

did not enact such a law. remedy adopting § in lature 30.056 eliminated one against namely ordering Creek, available Oak removal adoption any per- § 30.056, of the concrete. After may § conduct, 30.056, sue if son Oak Creek for its but applicable, may remedy. valid and bar one ¶ § Furthermore, 30.056 Wis. Stat. is silent Attorney powers about General's under relating §§ 823.01-.02 to common law nuisances. The existing navigable stream, purpose is ultimate connection with an waters, part navigable any lake or other where artificial waterway ordinary high-water is located 500 feet of within navigable stream, existing navigable mark of an lake or other waters. 30.195(1) provides person may "[n]o

8Wis. Stat. that § change straighten a navigable the course of or stream without being permit issued section or under this without otherwise expressly by authorized statute to do so." Attorney alleges litigation con- in that the General this constitutes a common channel in Crawfish Creek crete nuisance. law refer 30.056 does not 76. Section any way

§§ does not in address 823.01-.02 and enjoin alleged power common General's Creek's nuisance under these sections. Oak law any injunction brought sec- under these defense suit retroactively might legislature has tions be that not that Oak Creek's conduct does declared 30.056 statutory chapter provisions in 30 and the listed violate public nuisance. One of is therefore not a common law might responses General's be is 30.056 unconstitutional. forth, I conclude 77. For the reasons set three statutes to the bring authorized maintaining against Oak Creek for action upon public Christenson, whom nuisance.9 Professor majority power opinion the to relies, describes the impor- enjoin public "perhaps nuisances as the most Attorney powers" of all the initiative tant General's 9 appeals majority opinions' court and reliance on The 35, DNR, 115 2d 339 N.W.2d 324 Public Intervenor v. Wis. (1983), powers a on the of the limitation misplaced. opinion, As at the that the court was noted outset of official, considering legislatively the a created not the power of constitutionally Attorney office Public created of the General. Furthermore, Intervenor, public 2d at 29. inter- Wis. the only authority in the Public statutory that case allowed venor's action, existing to in an initiate a Intervenor intervene not to Intervenor, Public 2d at 34-35. In the case at lawsuit. Wis. expressly give the attor Wis. Stat. 30.294 823.01-.02 bar §§ ney general to actions power initiate to abate nuisances. Attorney play important

and allows the General to protection in the role environment.10 majority opinion's ¶ 78. The cavalier dismissal in authorizing expressly one sentence of three statutes Attorney regarding to an action a General contrary logic. holding public nuisance is In law and Attorney standing General have that bring does not against public nuisance, action this court is fundamentally restricting Attorney General's express statutory powers.

H-1 J—i Although I have shown above that majority opinion acknowledges Attorney that Gen- authority constitutionality eral has to attack in a that the statute lawsuit has stat- utory authority bring, majority op. ¶¶ 42, 44-46, majority opinion suggests n.25, the also the con- trary position. majority opinion states regardless statutory powers of the General's action, to initiate an General must also specific statutory have the con- stitutionality Stat. 30.056.11 majority opinion ¶ 80. The states at example, must "because any statutes, chal- defend lenge part on to the statutes his would conflict with his duty specifically to defend, unless authorized stat- Christenson, Attorney General, Arlen C. The State 280.02, 298,317-18 (citing Wis. L. Rev. Wis. Stat. renumbered 823.02). Roberts, Alstyne Larry Scott See also Van J. Wisconsin, Attorney 1974 The Powers the General in Wis. L. 721, power general the (noting Rev. 743 of the to abate nuisances). 11 position Oak Creek in brief. takes its 655 ¶ of the 36 that "none states at further ute." It gives statutory him cites the sections challenge authority specific See also 30.056." to the majority opinion majority op. no author- ¶ cites powers limiting ity sentences for these expressly conducting litigation Attorney in General by These I could find none.12 statute, and authorized opinion majority positions are in the inconsistent puzzling. supporting or case law is no statute 81. There majority's position General that when authority statutory express a cause of has challenge specific the con- he needs action stitutionality Prohibiting the state's chief of a statute. constitutionality challenging legal of a from officer enforcing statutory author- his in the course statute statutory ity Indeed the basis. or constitutional has no appears has inher- General that the rule be litigation in of lawful to act furtherance ent discretion illegal.13 palpably his action is unless 12 saying majority at that cited The cases duty a statute's constitution has a to defend General Attorney General conclusion that ality support do not of a statute. may not Smith, Reynolds 19 Wis. 2d rel. v. See State ex discretion (1963)(Attorney General has inherent N.W.2d direc litigation at the Governor's respect prosecuting with incurring propriety of tion; Attorney could determine showing that the action was particular expense in absence of palpably illegal). (Ariz. Corbin, Manager 778 P.2d

See Fund 1988), part on other part and dismissed App. affirmed (Ariz. 1989), in the court stated grounds, 942 P.2d 428 which attorney general does not have common law although "nothing statutory powers, there is powers and is limited to attacking attorney general from the constitu- would disable Attorney ¶ 82. In numerous cases which the appear, Attorney General was authorized to Gen- challenged constitutionality legislative eral has majority op. ¶ acts. See prohibits 49 n.25. No statute or case law Attorney challenging General from constitutionality of a statute in an action that he has authority bring. to agree Attorney I with the

holding Attorney specific that the General needs statu- tory authority significantly to sue is distinct from the majority opinion holding Attorney that when the Gen- express statutory authority bring eral has action, to an express statutory authority he or she needs additional challenge constitutionality to of a statute. The law Attorney is clear that if the General has to bring express action, he or she does not need author- ity challenge of a statute.

rH HH reaching beyond In the facts of case powers majority limit General, opinion Railway case, rests on a 1908 State Electric (1908). Light Co., & 136 116 N.W. 900 This was the first case in which the court declared that the power General is without to initiate a suit express statutory authority. without Professors Scott Alstyne Larry Roberts, Van and J. in their article enti- tled The Wisconsin, Powers General in upon majority L. 736-37, Wis. Rev. which the tionality process of an Arizona exercising statute in the his specific statutory powers." language quoted This was with (Ariz. Block, approval in State ex rel. Woods v. P.2d 428 1997) (en banc), holding that the can raise a constitutional statutory to a statute if he has author- ity the lawsuit. Railway unper-

opinion Electric relies, characterize analysis lacking and in basic in historical suasive logic. They is "dubious." Van that the case concluded subsequent Alstyne the cases criticize Roberts by Railway, the are cited several of which Electric unpersua- nothing adding majority opinion, to the holding.14 analysis original of the sive majority opinion's of the ¶ discussion 85. The history relating pow- judicial to the and constitutional unfortunately Attorney fails to the General ers of acknowledge early in our cases. correct the errors why explain majority importantly, does not the More persuasive. not mean Stare decisis does are these cases to unex- continue to adhere the court should that plained prior unpersuasive of this statements court.

IV majority opinion's ¶ recitation of state The 86. history support its decision makes to constitutional part history simpler than it is. The omitted and clearer story supports position that of the powers. common law General has majority opinion M. relies on Charles The 87. support of the Wisconsin laws Baker's 1849 revision interpretation constitution that the Wisconsin its powers. common law denies the persuade majority opinion attempts [New York] that relied on laws reader that "Baker attorney general's similarly precluded common had Nothing Majority op. powers." ¶ 31. in the New law upon relied declared that the which Baker York laws power. attorney general common law had no 14 1974Wis. L. Rev. at 738. majority opinion's authority

¶ 89. The sole that does New York not have common powers People Dorsey, case, law York New (Queens 1941), County N.Y.S.2d Ct. years was decided almost 100 after Charles Baker con- sulted the York New statutes. Dorsey poses problems majority two

opinion opinion ignore. First, which chooses to Dorsey a 1941 itself, case, New York court wrote rights, "[a]s powers Dorsey, General, the decisions are in conflict." Dorsey explain 29 N.Y.S.2d 641. The on at court went that in earlier some cases New York courts held attorney general possesses pow- that the common law Dorsey ers. The ultimate conclusion was that court's only powers the New York had those granted legislature. that are the constitution and Dorsey, 29 N.Y.S.2d at 643-44. This statement does not help majority opinion long because it comes after pow- Charles Baker looked York to New law about attorney general. Apparently ers of the whether the attorney general powers New York had common law question was not a settled when Baker examined New York law. Dorsey

¶ Second, 91. is of value in limited this Dorsey relating case because is a criminal case to the prosecution powers attorney criminal York New Dorsey general. was concerned with the attorney general power the New York versus the of county attorneys investiga- district to conduct criminal Dorsey tions. Most New York cases that cite to do so for general holding its that the York lacks New power prosecute the common law criminal

659 Dorsey purely This criminal context renders offenses.15 in of limited value the case before court. law, Charles Third, in to New York addition drafting relied of Missouri

Baker also on the laws regarding the Gene the 1849 Wisconsin laws Missouri constitution, Like the ral.16 Wisconsin grants Missouri constitution to the (Missouri Const, powers "prescribed by V, art. law" 1).§ However, held that its the Missouri courts have powers at com retains available by specifically law, unless mon excluded legislature. Comm., v. Missouri Serv. McKittrick Pub. 1943) (en (Mo. banc)(relying 857, on 175 S.W.2d 861 Const, § 13, XIV, art. which statute similar Wis. with retains the common that is not inconsistent law statutes). Alstyne Van and Roberts the constitution carefully discuss Baker's work and assert Charles ignored possibility that the Wisconsin cases have might incorporated by drafted Baker have statutes the common law.17 majority opinion's con- 93. The recitation of the history, although superficially persuasive,

stitutional DiFalco, (NY e.g., People See, v. 732, N.E.2d Goldwater, (Schoharie People v. 1978); 358 N.Y.S.2d (N.Y. People Hopkins, 1974); Cty. Ct. N.Y.S.2d 1944). Cty. legis-

The basic scheme the 1849 established Wisconsin attorneys The are the lature is like that New York. district General, lawyers appel- state's trial and the the state's General, State Christenson, lawyer. C. late Arlen 298, 1970 Wis. L. Rev. 301. The Powers Alstyne Larry Roberts, Scott Van and J. of Wisconsin, Attorney General 721, 1974 Wis. L. Rev. 733. The Powers Alstyne Larry Roberts, J. Scott Van and Wisconsin, Attorney General in 1974 Wis. L. Rev. 736. oversimplification. history is an biguously support The not does unam- majority's position Attorney powers, General has no common law as the majority opinion us would have believe.

V important great pub- Three 94. doctrines —the power lic bring doctrine, concern General's original challenging action in the court constitutionality public statute, trust doc- separately together, support trine —read position and read standing General has present the action case. A, The Great Public Concern Doctrine general agencies, pub ¶ 95. The rule is that state municipalities standing officers, lic have no challenge the Fulton statutes. Department v. Taxation, Foundation Wis. 2d (1961). exception 11, 108 N.W.2d 312 One this rule governmental may challenge that these entities consti tutionality great public of a statute when issue is of great pub concern. In Fulton Foundation we described great public lic concern as a "matter of interest." Fulton Foundation, 13 Wis. 2d at 13. As was made clear in The (1875), protecting City Claire, 37 Wis. 400 of Eau exactly rivers,

Wisconsin which is what case is great public about, the state is a matter of interest to navigable a whole. This case involves stream and the I doctrines, "forever free" and which dis trust easily greater It cuss in detail below. falls within our "great public prior determining cases what constitutes concern." great majority opinion

¶ holds that the 97. The apply public case for doctrine does not this concern "it is not the First, reasons. it states that two duty challenge constitutionality general's to question Majority op. ¶ 30.056." 40. The is not Stat. duty at authority. previously dis- in this I have case but authority challenge General's cussed constitutionality of a when statute statutory express has to initiate action. majority opinion says Second, that apply

"great doctrine does not "to suits concern" majority op. ¶ 41, state," two of the between creatures Creek are creatures and the General and Oak great cases stated of the state. Several have only exception applies public concern a state between agency municipality private litigant, and a not two "creatures" of the state.18 between explain, however, fail 99. These cases how judicially question relates to created limitation great public an issue is of concern. Further- whether give any compelling more, the fail to for cases reason excluding government disputes of the between arms great public from the concern doctrine. great public exception This on the limitation concern Cty. have

seems to been first established in Columbia v. Board Fund, 310, 318, Retirement 17 Wis. 2d Trustees Wis. (1962). merely stated, "[w]e In that case court N.W.2d disposed [great public exception concern] not extend the are general agencies govern to the rule between two of state explanation ." Id. There is ment. . . at 318. no further being disposed" subsequent court's "not in that case or the cases See, rely e.g., City DNR, on it. 2d Claire 60 Wis. of Eau (1973). 751, 752, 210 N.W.2d 771 ignored Indeed this court has its own cre- ated bar allowed suits between arms of the government. example, This has, court allowed a municipality of a col- bargaining against lective statute its suit a state agency. Cty. See 1 S.D. No. Racine WERC, Unified of (1977). 89, 81 Wis. 2d 259 N.W.2d 724 The cases are application thus inconsistent about the of the rule. ¶ 101. Furthermore, several of this court's hold- ings, including Foundation, Fulton the case that first recognized great public exception, concern have suggested great public concern doctrine is private apt bring most needed when citizens are not to Attorney plays an action.19 In this case the General litigant likely critical role because no individual to challenge Oak Creek's conduct or 30.056. apparent

¶ 102. As is from our own cases, the judicially excluding created rule suits between arms of government great public from the concern doctrine has logical consistently applied. no foundation and is not A judicially doctrine that has been created should be overturned when the rationale for the doctrine is not application evident and the of the doctrine has not been judi- coherent consistent.20 I would overturn the 19 Foundation, 1, See 14b, Fulton 13 2dWis. 108 N.W.2d (1961) (motion 312 rehearing) (noting for that a further reason allowing department challenge taxation to the consti tutionality aof statute is that "there is any little likelihood that will"). taxpayer City Ayers, See also Madison v. 85 2dWis. 540, 545, (1978); 271 N.W.2d 101 S.C. Johnson & Son Inc. v. (Ct. Caledonia, 292, 304, Town 206 Wis. 2d N.W.2d 1996). App. 20For an informative discussion about the Columbia County case, progeny Wis. 2d and its and how these any cases fail to excluding disputes establish reason for between excluding daily between arms of created rule suits great government I concern doctrine. from the present it falls suit to continue because allow the would great public concern doctrine. within Original Attorney General's B. The Action

Jurisdiction majority recognizes, opinion as it 103. The years per- must, that has for more than this court challenge mitted the original constitutionality in this of statutes actions authority statutory bring specific court without the statute. action Majority op. ¶¶ n.22. Arlen 42,45, See also C. Christen- son, General, 1970 Wis. L. Rev. State (noting question that the General's original action has been assumed); Stark, The Constitu- Jack Wisconsin State (1998) (noting A at 132 that the tion: power Guide Reference original example is an of this to actions expanding powers Attorney the an court of General constitution). reading beyond a strict of the by Attorney Original action cases the Gen- constitutionality challenging not eral the of statutes do see Silver great public exception, state entities from the concern (Ct. Sanitary DNR, WL1125252, 9,1999 Lake Dist. Dee. (Verger ont, concurring). urges App.) Verger ont this court to J. J. great public on re-examine this limitation the concern doctrine clarify Id. existing the case law. County The Columbia recently most an applied case was denying Employe Funds Board to com- order the Trust leave Department original against an action of mence standing. Employe Trust Funds lack of Administration Board, 99-3297, Lightbourn, et al. v. Case Order dated of No. even date.

square today's holding. majority opinion with shrugs by writing Attorney these cases off that bring original "appears power General's to actions to be anomaly." Majority op. Anomaly ¶ an 44. means devia- majority position tion. But since the takes the that the Attorney constitutionally prohibited is General from bringing challenging actions or Attorney specific statutes unless the General has stat- (¶ utory 35), majority do authorization to so opinion's allowing a deviation from this constitution- impermissible. Simply based rule because court power accept Attorney has the or decline the Gen- petition original eral's for an action does not mean that agreement permit of four members of this court can what an would otherwise be uniconstitutional exercise authority by Attorney General. original I 105. believe that action cases are great public best as a understood subset concern A line of brief of several will cases. review cases demon- original brought by strate that actions only important General if are allowed the matter is state as whole. City In The General v. The of Eau (1875), Claire, 37 Wis. 400 brought original action to the constitu tionality delegating authority city aof statute to the navigable In case, Eau Claire obstruct a river. remarkably bar, similar to the one at the court con allowing city navigable cluded dam a river granting violated the trust merited original jurisdiction. 37 at See also Peti Wis. 446-47. (1939) Heil, 428, 440, tion 230 42 Wis. 284 N.W. of (obstruction navigable supreme of river invokes court's original jurisdiction).

665 Attorney v. Cun In State ex rel. General (1892), ningham, court 440, 51 N.W. 724 the 81 Wis. original brought the action considered an against secretary challenging the of state General constitutionality to of a statute order enforce Wis government. equal representation in citizens' consin preju rights protected "{T]he from and vindicated of an unconstitutional act of dicial effect rights sovereignty legislature.. which the state .were of guard political capacity held and was bound to in its Cunningham, protect...." 81 at 500-501. Wis. right equal representation analogized the court City right rights Claire, discussed in ofEau trust doctrine enforced citizens have Cunningham, protected. Wis. at 500-01. In State ex 81 Reynolds 552, 22 2d 126 Zimmerman, v. Wis. rel. (1964), similarly that it the court stated N.W.2d consistently acting state, either "has held that may through General, the Governor or the reapportion a state plan... ment ."21 These and other cases demonstrate original proceed an action to

the court allows when (of publici juris importance is for the as a matter whole). state publici juris are other than But there criteria original granting for this court leave action: speedy adequate one; the need for resolution no rem- disputed edy in the circuit court or facts are others. Heil, at Thus if a Petition Wis. 440-41. even Zimmerman, See ex also State rel. Martin (1946) (noting 111, 23 the issue N.W.2d that because sovereign capacity court have affected state would original jurisdiction granted and allowed the proceed underlying cause of would have been if the action valid). juris publici might grant origi-

matter is this court not jurisdiction example, dispute. if, nal for facts are in According majority decision, then, if the court granted Attorney would have General leave to original bring Attorney action in this case then the might challenge General majority op. ¶ 42, 30.056. See But n.22. since the facts dispute, case, are in as Oak Creek claims in this we original majority not would take action and the opinion Attorney bringing would bar the General from publici juris If lawsuit circuit court. this court original jurisdiction would refuse and remand the case Attorney court, to the circuit General would have express statutory power appear. See Wis. Stat. 165.25(1). merely petition If this court dismisses the original majority opinion action, under the bring juris- could not the suit. This prudence Judicially makes no sense. created law try If doesn't, should make sense. it court should again. continuing recognition

¶ 109. This court's of the power past years, General for the preceding Railway case, cases the 1908 Electric squared ¶¶ above, see 84^85 cannot be with today's original holding. These are not action cases they precedent anomalies; are sound this court should follow and hold standing General has this action. C. Trust Public Doctrine importance ¶ 110. The third doctrine of here is public recognizes the state trust doctrine. This doctrine underlying navigable that the state holds beds waters for all Public trust Wisconsin citizens. Muench v. 501-02, Comm’n, 53 N.W.2d Serv. 261 Wis. (1952). primary legislature Although has the public trust, the to administer the Attorney person, including the

trust a doctrine allows in name of, of, and the the General, to sue on behalf " vindicating public purpose the State 'for the of City 822, 806, v. 219 2d ofNeenah, trust.'" Wis. Gillen (1998) (quoting Deetz, State v. 66 Wis. 580 628 N.W.2d (1974)). importance the 1, 13, 224 2d public N.W.2d 407 enforcing in state's doctrine and the role trust emphasized for over 100 that have been doctrine years.22 clearly impli- public

¶ 112. The trust doctrine is Attorney in this case. The General claims that cated public nuisance Oak Creek's concrete channel creates legalize legisla- trying the and to that nuisance § 1, EX, "forever free" clause of art. ture has violated the public and the trust doc- of the Constitution Wisconsin legislature has abdicated the trine.23 Whether the 22See, v. e.g., Depart Decade Wisconsin's Environmental Resources, 518, 526, ment 85 2d 271 N.W.2d 69 Natural Wis. (1978) ("[t]he protecting responsibility [of in the state's area long acknowledged"); navigable waters] been Muench has (1952) Comm'n, 261 Wis. 53 N.W.2d 514 Public Serv. (when may navigable damaged by the waters be erection of clearly appear duty "it of the in behalf of the dam is state Claire, City Wis. public proceedings"); in the at of Eau state, charge rivers] are of the and the state cannot ("[public them"). charge abdicate its Const., IX, provides: art. lakes; navigable on and waters. The state shall Jurisdiction rivers jurisdiction bordering on all rivers and lakes on have concurrent so far as such rivers or lakes shall form a common bound- state ary territory any and or hereafter to to the state other state or now formed, same; Mississippi be and bounded river and navigable is, trust waters of the state question, great public

without issue concern. history ¶ 113. The state's constitutional and our setting cases forth the I three doctrines have discussed support proposition Attorney that the has standing bring this action.24

VI Finally, majority provides compel- no ling justification reading General's powers majority in such a restrictive manner. The why explain offers two rationales Gen- standing eral lacks this action. are Both weak unpersuasive. argues majority First, it duty General to defend the constitu- cases). tionality Majority op. (citing of statutes. at 806.04(11) majority opinion The to refers Wis. Stat. setting duty. says nothing forth as That statute of merely requires Attorney the It kind. the that General given constitutionality be notice the when of a statute navigable leading Mississippi

the waters into the St. Law- rence, places same, carrying and the between the shall be common highways free, as of forever well to the inhabitants the state States, tax, any impost as to the citizens of the United without or duty therefor. Christenson, upon majority- Professor whose the article relies, opinion power delegated by legis concludes that the the Attorney litigation lature to the General to in initiate a broad range protect gives ability of to cases interest him the litigation any to "initiate in in almost civil case which his English predecessors pos counterparts or his in other states authority powers' may sessed of inherent or 'common law act." Christenson, Attorney General, Arlen C. The L. State Rev. 320-21. challenged Attorney General to be

is and allows the heard on the issue. requirement, in the statutes 116. There is no or Attorney consti-

otherwise, General defend the that duty tutionality Indeed, all statutes. such a would be original completely in which odds action cases at with Attorney has the constitutional- the ity General attacked constitutionality dutyA to defend the

of statutes.25 Attorney General's oath of all statutes contravenes judges take, office, to defend the Wis- the same oath Defending Constitution. the constitution consin unconstitutionality duty leg- includes assert or executive acts.26 islative properly is of a statute located constitutionally created state law enforcement directly by officer elected the citizens. majority's

¶ 117. The second rationale restricting powers is General Department Resources is dominant to Natural protecting state waters and it General Department's duty protect is Crawfish therefore the (citing majority op. ¶at Inter- Creek. See Public 25See, City Claire, (1875); e.g., 37 Wis. 440 State ex of Eau Zimmerman, Reynolds 2d rel. 22 Wis. N.W.2d 551 (1964). Stark, The A See also Jack Wisconsin State Constitution: Guide, ("occasionally at 132 has Reference he declined defend a statute she thinks unconstitutional.11) 14.11(2)(a)4, provides that

See also Wis. Stat. which employ may special apparently counsel. This statute Governor may positions oppo- anticipates take site the Governor about the of statute. 26 (Tenn. 1994) (con Chastain, 871 S.W.2d State v. 663 recognize cluding general that the has most states only authority, duty. "not but the . .to seek to have certain unconstitutional"). legislation declared DNR, 28, 38-39, venor v. 115 Wis. 2d 339 N.W.2d (1983)). very argument, province This that it is sole public of the DNR decide when a trust violation has handily addressed, occurred and how it should be was rejected by City this court Gillen v. of Neenah, (1998). 831-32, Wis. 2d N.W.2d 628 In that adopt interpretation case we declined to such an ofWis. noting legislature § 30.294, Stat. any person that the authorized years to abate nuisances before the DNR was created and even retained this statute after Gillen, it created the DNR. 219 Wis. 2d at 832. ¶ 118. Both rationales offered majority opinion justify pass its result do not muster. Essentially, majority strung opinion together has statements taken A out context from various cases. reading opinion careful and on the materials which it relies demonstrates that the decision rests on rickety unsteady and foundations.

[*] ^{[*] [*]} years ago Alstyne ¶ 119. More than Van and suggested Roberts in their article reex- that this court judicial placed amine the limitation it has on the powers.27 majority Wisconsin General's opinion questionable is the latest in a series cases relating powers to the of the General. The jurisprudence result is that Wisconsin's about power unduly General is restrictive intellectually confusing inconsistent. Our task clarify the confusion, not continue the We confusion. I failed in this case. therefore have dissent.

27 1974 L. Wis. Rev. at 721-722. I am authorized state that Justices WILLIAM A. BABLITCH and WALSH BRAD- ANN join LEY this dissent.

Case Details

Case Name: State v. City of Oak Creek

Court Name: Wisconsin Supreme Court

Date Published: Feb 10, 2000

Citation: 605 N.W.2d 526

Docket Number: 97-2188

Court Abbreviation: Wis.