State v. City of Oak Creek

• Citation: 2000 WI 9,605 N.W.2d 526,232 Wis.2d 612
• Decision Date: 10 February 2000
• Docket Number: No. 97-2188.,97-2188.
• Parties: STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. CITY OF OAK CREEK, Defendant-Appellant.
• Court: United States State Supreme Court of Wisconsin

232 Wis.2d 612

2000 WI 9

605 N.W.2d 526

STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. CITY OF OAK CREEK, Defendant-Appellant.

No. 97-2188.

Supreme Court of Wisconsin.

Oral argument October 6, 1999.

Decided February 10, 2000.

For the plaintiff-respondent-petitioner the cause was argued by Joanne F. Kloppenburg, assistant attorney general with whom on the briefs was James E. Doyle, attorney general.

For the defendant-appellant there was a brief by Lawrence J. Haskin, City Attorney and Lawrie J. Kobza, Richard L. Bolton, M. Tess O'Brien-Heinzen and Boardman, Suhr, Curry & Field, LLP, Madison and oral argument by Lawrence J. Haskin.

? 1. N. PATRICK CROOKS, J.

The attorney general, claiming to be acting on behalf of the State of Wisconsin, brought an action for injunctive relief under Wis. Stat. ?? 30.294, 823.01, and 832.02 (1995-96)¹ to require the city of Oak Creek to remove a concrete channel from a quarter mile length of Crawfish Creek, a tributary that flows through the city. The attorney general alleged that Wis. Stat. ? 30.056, which exempts the city of Oak Creek from certain permit requirements related to the concrete channel, is unconstitutional. The attorney general also alleged that the concrete channel creates a public nuisance under both Wis. Stat. ? 30.294 and the common law. The Milwaukee County Circuit Court, the Honorable Christopher R. Foley presiding, agreed that the statute is unconstitutional and ordered the concrete channel's removal. The city of Oak Creek appealed. The court of appeals reversed in a published decision, State v. City of Oak Creek, 223 Wis. 2d 219, 223, 558 N.W.2d 380 (Ct. App. 1998), holding that the attorney general may not challenge the constitutionality of ? 30.056. We affirm the court of appeals. The legislature has not granted the attorney general the statutory authority to attack the constitutionality of ? 30.056. Further, no other constitutional or common law doctrine gives the attorney general such authority. Therefore, the attorney general lacks standing to bring this challenge.

I.

? 2. Crawfish Creek is a navigable waterway that flows through Oak Creek. The west branch of Crawfish Creek is an intermittent tributary of the Root River System. In 1985, the city of Oak Creek (Oak Creek) lined one-quarter mile of the west branch with a concrete channel. Oak Creek created the concrete channel in an effort to prevent local flooding and drainage problems that had damaged the area in the past, especially after the development of a nearby subdivision. ? 3. However, Oak Creek did not notify, or request a permit from, the DNR before the channel was built. The DNR had previously warned Oak Creek that it must receive a permit to build any structure in the creek that would alter the creek's course because the creek is a navigable waterway. When the DNR learned that the creek had been lined with a concrete channel that alters the creek's course, it filed a petition with the Division of Hearings and Appeals of the Department of Administration seeking to restore the creek to its natural state. The DNR alleged violations of Wis. Stat. ?? 30.12,² 30.195,³ and 30.294.⁴

? 4. In 1991, the hearing examiner found, after a contested hearing, that Oak Creek violated Wis. Stat. ?? 30.12, 30.195, and 30.294 in lining the creek bed with concrete. A number of findings of fact were made regarding the significance of the creek as a wildlife habitat and the concrete channel's adverse effects on that habitat. The hearing examiner ordered Oak Creek to take out the concrete and restore the creek bed.

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

? 6. In response to the creation of Wis. Stat. ? 30.055, the state public intervenor⁶ moved to intervene in the ongoing circuit court case to challenge the statute's constitutionality. The Milwaukee County Circuit Court granted the public intervenor's motion. In a decision dated March 2, 1993, the circuit court, the Honorable George A. Burns presiding, concluded that the method by which the statute was created violated Wis. Const. art. IV, ? 18.⁷ Moreover, the circuit court found that as a navigable waterway, the creek needed to be restored. Finally, the court concluded that the statute violated equal protection under Wis. Const. art. I, ? 1 and the Public Trust Doctrine under Wis. Const. art. IX, ? 1.

? 7. Oak Creek appealed the decision. The court of appeals affirmed. The court of appeals held that Wis. Stat. ? 30.055 was unconstitutional according to the two-part "methodology for determining whether a bill or statute violates Wis. Const. art. IV, ? 18."⁸ City of Oak Creek v. DNR, 185 Wis. 2d 424, 442, 518 N.W.2d 276 (Ct. App. 1994). The court of appeals also held that credible and substantial evidence supported the hearing examiner's findings that the creek is navigable and in need of restoration. Id. at 433-434.

? 8. In its 1994 decision, the court of appeals determined that Wis. Stat. ? 30.055 did not deserve a presumption of constitutionality. Id. at 437-39. The court of appeals also found that the legislation was a private or local law, because it was "geographically specific and entity specific." Id. at 440 (quoting Soo Line R.R. Co. v. DOT, 101 Wis. 2d 64, 75, 303 N.W.2d 626 (1981), for the proposition that "[a] private law is generally viewed as one applying to or affecting a particular individual or entity"). Therefore, as a private or local law, the legislation was subject to Wis. Const. art. IV, ? 18, which requires private or local laws to be passed in single-subject bills. Id. at 442. The court of appeals concluded that under art. IV, ? 18, the statute was unconstitutional because it was not passed in a single-subject bill.⁹Id. at 442-43.

? 9. In 1996 the legislature passed another bill that created an exemption for the channel. This time, the bill was not enacted as part of a budget bill. Assembly Bill 424 was introduced in the Assembly on June 1, 1995, as a bill pertaining to the destruction or damage of nonconforming structures in disasters unrelated to floods. A later amendment to Assembly Bill 424 in the State Senate repealed Wis. Stat. ? 30.055 and created Wis. Stat. ? 30.056. Senate amendment 1 stated in part:

30.056 Exemption from certain permit requirements. Notwithstanding ss. 30.12, 30.19, 30.195 and 30.294, the city of Oak Creek may not be required to remove any structure or concrete or other deposit that was placed in Crayfish [sic] Creek in the city of Oak Creek before June 1, 1991, and may continue to maintain the structure, concrete or deposit without having a permit or other approval from the department.

The Senate adopted the amendment and passed the amended bill. The Assembly also concurred in the bill as it was amended. Governor Thompson signed the amended bill, and it was published in 1996 as 1995 Wisconsin Act 455.

? 10. In response, the attorney general commenced an action against the statutory exemption, claiming that the new statute was also unconstitutional. The attorney general further claimed that the channel constituted a statutory public nuisance and a common law public nuisance. The attorney general moved for summary judgment, and Oak Creek moved to dismiss the statutory public nuisance claim. In a decision dated April 7, 1997, Circuit Court Judge Christopher R. Foley ruled in favor of the attorney general. The circuit court found that the attorney general had standing to bring the action, that the statute was unconstitutional, and that the channel created a nuisance.

? 11. On a second appeal by Oak Creek, the court of appeals reversed. State v. City of Oak Creek, 223 Wis. 2d at 227. The court of appeals held that the attorney general lacked standing to challenge the statute's constitutionality. Id. at 227. It based its reasoning on this court's decision in Public Intervenor v. DNR, 115 Wis. 2d 28, 339 N.W.2d 324 (1983). Public Intervenor held that legislative authority must support the actions of both the attorney general and his assistants, and that no such authority exists for any person from the attorney general's office to challenge the constitutionality of a law or rule. 115 Wis. 2d at 36-37. The court of appeals reiterated "Public Intervenor's recognition that the attorney general in Wisconsin has limited powers and, accordingly, the `duty to defend'?€”not attack?€”`the constitutionality of state statutes.'" Oak Creek, 223 Wis. 2d at 227. On that basis, the court of appeals concluded that the attorney general lacked the necessary statutory authority to challenge the constitutionality of the statute in this case.

II.

? 12. We begin by briefly relating the history of the attorney general's office in Wisconsin, because that history plays a significant role in our holding in the present case. The position of attorney general, as it now exists in the United States, had its genesis in England. Scott Van Alstyne & Larry J. Roberts, The Powers of the Attorney General in Wisconsin, 1974 Wis. L. Rev. 721, 723. The kings of England appointed attorneys to represent them in court because they could not appear personally. Id. Of those attorneys, "the attorney general had become the only person who could take legal action in the name of the crown without special authorization." Id. at 724. Essentially, "the attorney general became the legal advisor to the crown." Id. at 724 n.17.

? 13. Colonial governments preserved the position in America. Id. at 726. In approximately 1643, the first attorney general in the colonies appeared in Virginia. Id.

? 14....