State v. City of Oak Creek

2000 WI 9, 605 N.W.2d 526, 232 Wis. 2d 612, 2000 Wisc. LEXIS 11

• Court: Wisconsin Supreme Court
• Decided: February 10, 2000
• Docket: 97-2188
• Status: Published

Opinions

N. PATRICK CROOKS, J.

¶ 1. 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 decisión, 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.

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¶ 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.⁹ Id. 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. . 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.

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

¶ 15. The attorney general's office was proposed in a draft article at the first state constitutional convention in 1846. Van Alstyne & Roberts, 1974 Wis. L. Rev. at 731 (citing Wis. Const, art. TV, § 3 (1846)(pro-posed)). The proposed article specified that the attorney general's powers and duties "shall be prescribed by law." Id. (quoting Wis. Const, art. IV, § 3 (1846)(proposed)). Wisconsin had two constitutional conventions because the first constitution was not ratified. State v. Hansford, 219 Wis. 2d 226, 235 n.11, 580 N.W.2d 171 (1998). Although the proposed 1846 constitution was rejected, the article pertaining to the attorney general was included in the 1848 constitution, the constitution that was adopted. Van Alstyne & Roberts, 1974 Wis. L. Rev. at 732.

¶ 16. The territorial statutes and later the state statutes constituted the only law prescribing the attorney general's duties in 1848. Id. (citing An Act Concerning the Attorney General, Wis. Laws 1848). A revision of certain statutes in 1849, as well as other miscellaneous references in the statutes to the attorney general, further defined those powers. Id. at 733. Significantly, the statutes made no reference to any common-law powers. Id. at 735-36.

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¶ 17. With this brief history in mind, we now address the issue presented before us: whether the attorney general has standing to attack the constitutionality of Wis. Stat. § 30.056. A party has standing to challenge a statute's constitutionality if the party has a sufficient interest in the outcome of a justiciable controversy " 'to obtain judicial resolution of that controversy.'" Norquist v. Zeuske, 211 Wis. 2d 241, , 564 N.W.2d 748 (1997)(quoting State ex rel. First Nat'l Bank of Wis. Rapids v. M&I Peoples Bank of Coloma, 95 Wis. 2d 303, 307-08, 290 N.W.2d 321 (1980)). Standing is determined by a two-step analysis. Id. A court must determine "(1) whether the plaintiff has suffered a threatened or actual injury, and (2) whether the interest asserted is recognized by law." Id. at 247-48 (citations omitted).

¶ 18. We examine the second question in the standing analysis first because it is dispositive in this case. Determining whether the attorney general's asserted interest is recognized by law requires us to interpret Wis. Const, art. VI, § 3.¹¹ Interpretation of a constitutional provision is subject to de novo review. Hansford, 219 Wis. 2d at 234; Thompson v. Craney, 199 Wis. 2d 674, 680, 546 N.W.2d 123 (1996)(citing Polk County v. State Pub. Defender, 188 Wis. 2d 665, 674, 524 N.W.2d 389 (1994)). This court examines three sources in determining a constitutional provision's meaning: "the plain meaning of the words in the context used; the constitutional debates and the practices in existence at the time of the writing of the constitution; and the earliest interpretation of the provision by the legislature as manifested in the first law passed following adoption." Thompson, 199 Wis. 2d at 680.

¶ 19. We begin with the plain meaning of Wis. Const, art. VI, § 3. As stated above, art. VI, § 3 defines the scope of the attorney general's powers: "[t]he powers, duties and compensation of the.. .attorney general shall be prescribed by law." This court has consistently stated that the phrase "prescribed by law" in art. VI, § 3 plainly means prescribed by statutory law.

¶ 20. The first case that examined this phrase was State v. Milwaukee Elec. Ry. & Light Co., 136 Wis. 179, 190, 116 N.W. 900 (1908).¹² This court very clearly stated:

In Wisconsin, otherwise than in many if not most states, the powers of the attorney general are strictly limited. He is a constitutional officer, but by the constitution he is given only such powers as "shall be prescribed by law." Sec. 3, art. VI, Const. It is therefore essential to the maintenance of an action brought by the attorney general ex officio and sua sponte that we should find some statute authorizing it.

Id. The court held that the attorney general could not bring an action in circuit court to reclaim a corporation's assets and suspend or remove the corporation's officers, because the legislature had not "assert[ed] a public interest in some such situation sufficiently direct to warrant the state to bring suit." Id. at 185.

¶ 21. Similarly, this court held in State ex rel. Haven v. Sayle, 168 Wis. 159, 163, 169 N.W. 310 (1918), that the attorney general "must find authority in the statute when he sues in the circuit court in the name of the state or in his official capacity." In State v. Snyder, 172 Wis. 415, 417, 179 N.W. 579 (1920), we reiterated that "[i]n this state the attorney general has no common-law powers or duties." See also State ex rel. Jackson v. Coffey, 18 Wis. 2d 529, 538, 118 N.W.2d 939 (1963); State ex rel. Reynolds v. Smith, 19 Wis. 2d 577, 584, 120 N.W.2d 664 (1963); State ex rel. Beck v. Duffy, 38 Wis. 2d 159, 163, 156 N.W.2d 368 (1968)(abrogated on other grounds by State v. Antes, 74 Wis. 2d 317, 246 N.W.2d 671 (1976)).

¶ 22. This court has further stated that "[t]he attorney general is devoid of the inherent power to initiate and prosecute litigation intended to protect or promote the interests of the state or its citizens and cannot act for the state as parens patriae." In re Estate of Sharp, 63 Wis. 2d 254, 261, 217 N.W.2d 258 (1974)(citing Arlen C. Christenson,¹³ The State Attorney General, 1970 Wis. L. Rev. 298). This is because the Wisconsin Constitution removed all of the attorney general's "powers and duties which were found in that office under common law." Id. Therefore, "[u]nless the power to [bring] a specific action is granted by law, the office of the attorney general is powerless to act." Id. Accordingly, this court held that the attorney general lacked statutory authority to intervene in estate proceedings, and as such, he was not an interested party and had no standing in the litigation. Id.

¶ 23. The most recent case in which we examined the attorney general's powers was Public Intervenor v. DNR, 115 Wis. 2d 28, 339 N.W.2d 324 (1983). In Public Intervenor, we held that the public intervenor lacked standing to challenge the constitutionality of an administrative code rule. 115 Wis. 2d at 41. The court noted that not only was there no "statutory provision giving the attorney general or his assistants the power to challenge the constitutionality of a law or rule of this state or one of its agencies," but, "[t]o the contrary, it is the attorney general's duty to defend the constitutionality of state statutes."¹⁴ Id. at 36-37 (citation omitted). The court explained that the rules applicable to the attorney general applied to the public inter-venor, who was an assistant attorney general at the time. Id. at 37.

¶ 24. In sum, it is well established by case law that according to the plain meaning of Wis. Const, art. VI, § 3, the attorney general's powers are prescribed only by statutory law.

¶ 25. Underlying the long-settled decisions regarding the attorney general's powers and duties is the history of art. VI, § 3. The history of art. VI, § 3 suggests that the drafters of the Wisconsin Constitution intended the Wisconsin statutes to be the sole authority for the attorney general's powers.

¶ 26. The first convention did not preserve a record of its debates. Alice E. Smith, 1 The Hist, of Wis. at 656 (1985). However, the provision as stated in the rejected 1846 constitution is still helpful. It stated: "[t]he powers, duties, and compensation of the. . .attorney general, shall be prescribed by law. Each of said officers shall receive as a compensation for his services yearly, a sum to be prescribed by law." Wis. Const, art. IV, sec. 3 (1846). The statement concerning compensation clearly refers to statutory law, since a salary cannot be determined by the common law. This point was borne out in the 1848 statutes, which set the attorney general's salary at 800 dollars per year. An Act Concerning the Att'y Gen., Sec. 8. Laws of Wis., 1848 St. Approved June 21,1848.

¶ 27. A debate from the second constitutional convention further illustrates that the drafters meant statutory law when they used the phrase, "provided by law." Administrative Article sec. 3 was submitted in the same form as it was ultimately ratified. Journal and Debates of the 1848 Const. Convention, Wednesday, Dec. 22, 1847. A debate ensued, however, over a proposed amendment to the section that would "empower the governor to remove the treasurer from office in case of malfeasance." Journal at 91. Mr. Esta-brook, a drafter, responded that he

thought they were encroaching too much upon the business of ordinary legislation. The convention could not provide in detail how, by whom, and for what causes officers should be removed; and he gave notice that if this amendment should not prevail, he would offer one to the effect that officers might be removed in such maimer as might be provided by law.

Journal at 91 (emphasis added). This passage, while discussing the state treasurer, exemplifies the drafters' intent that the law they referred to in this constitutional provision meant statutory law. Mr. Estabrook's comment is also instructive because it explains why the drafters did not further detail the powers and duties of the attorney general or the treasurer. They carefully refrained from specifying the nature of these offices because they wanted the legislature to provide that detail.

¶ 28. Smith likewise explained the attitude prevailing at the second constitutional convention toward the relationship of the state constitution and legislation:

What [Marshall M. Strong — a drafter] found pleasing in the work of the second convention was a confidence in the discretionary ability of the people. Rather than attempting to embody reform measures in the constitution, the convention was willing to leave decision-making to the people's elected representatives. Time and again the permissive phrases appeared in the document: "the Legislature may confer," "the Legislature shall provide for," "as the Legislature shall direct," "shall be fixed bylaw."

Smith, 1 The Hist, of Wis. at 675. In short, the drafters intended the constitution's phrase, "prescribed by law," to leave the decision-making regarding the attorney general's powers and duties to the legislature.

¶ 29. Finally, we examine the early legislation interpreting art. VI, § 3. We conclude that the legislature's codification of the attorney general's powers in specific statutes has precluded any common-law powers.

¶ 30. The legislature manifested its interpretation of Wis. Const, art. VI, § 3 by prescribing the attorney general's powers in statutes. Two weeks after the first elected attorney general took office in 1848, the state legislature passed An Act Concerning the Att'y Gen., Wis. Laws 1848, which precisely defined his powers and duties.¹⁵ Van AJstyne & Roberts, 1974 Wis. L. Rev. at 732 n.64. A number of statutes further defined the attorney general's powers in 1849.¹⁶ Id. at 733-34.

¶ 31. Significantly, the chief revisor of the 1849 statutes, Charles M. Baker, relied primarily on New York law in drafting the statutory sections relating to the powers and duties of the attorney general. Charles M. Baker Papers, Ms. Wis. State Historical Library, Box 10. See also Van Alstyne & Roberts, 1974 Wis. L. Rev. at 733 n.67. His handwritten draft, "Of the Attorney General," cites to 1 N.Y. R.S. 165 in the margins. New York's 1846 constitution describes the attorney general's powers and duties almost exactly as Wisconsin does: "the powers and duties of the attorney-general shall be such as now are or hereafter may be prescribed by law." People v. Dorsey, 29 N.Y.S.2d 637, 642 (Queens County Ct. 1941). In Dorsey, the court looked to that constitutional language to hold that the New York attorney general does not have any common law powers, and that the only powers the attorney general has are those specifically prescribed in the New York statutes. Id. at 643. Therefore, Baker relied on laws that had similarly precluded the attorney general's common-law powers.

¶ 32. Essentially, as the legislature's conception of the attorney general's office grew, the legislature granted him more statutory powers. Van Alstyne & Roberts, 1974 Wis. L. Rev. at 734-35. This evidence indicates that the legislature intended to prescribe specifically the attorney general's powers: by defining what the attorney general's powers are in the statutes, the legislature demonstrated its intent to create a limited set of powers and duties for the attorney general.

¶ 33. Therefore, in accord with almost 100 years of precedent and with constitutional history, we conclude that the attorney general's actions must be authorized by statute. The attorney general is barred from challenging the constitutionality of Wis. Stat. § 30.056 because no statute grants him that authority.

¶ 34. In this case, the attorney general lacks the statutory authority to bring suit for several reasons. Wisconsin Stat. § 165.25 sets forth the attorney general's powers and duties. Although § 165.25(1) grants the attorney general the authority to represent the state as a party in civil cases in circuit court, that authority is not equivalent to authority to challenge the constitutionality of state statutes. Public Inter - venor, 115 Wis. 2d at 36 (noting that even though § 165.25 includes "representing the state" as one of the attorney general's duties, that duty does not give rise to the power to challenge a statute's constitutionality). See also Sharp, 63 Wis. 2d at 261. Public Intervenor, 115 Wis. 2d at 36-37, expressly stated that the attorney general's duty is to defend, not challenge the state statutes' constitutionality.

¶ 35. Furthermore, the attorney general has recognized that he has a statutory duty to defend the state statutes’ constitutionality. 80 Op. Att’y Gen. 124, 128 (1991). This court has similarly acknowledged the attorney general's duty to defend the state statutes. In O'Connell v. Board of Educ., Jt. Dist. #10, 82 Wis. 2d 728, 733, 264 N.W.2d 561 (1978), we stated that Wis. Stat. § 806.04(11) "recognizes that it is the duty of the attorney general to appear on behalf of the people of this state to show why [a] statute is constitutional." See also Public Intervenor, 115 Wis. 2d at 37, Chicago & N. W. R. Co. v. La Follette, 27 Wis. 2d 505, 523, 135 N.W.2d 269 (1965); White House Milk Co. v. Thomson, 275 Wis. 243, 247, 81 N.W.2d 725 (1957). We therefore agree with Oak Creek's argument that because the attorney general must defend the constitutionality of the statutes, any challenge to the statutes on his part would conflict with his duty to defend, unless specifically authorized by statute. (Resp. Br. at 13.)

¶ 36. Finally, the attorney general attempts to find statutory authority to challenge the constitutionality of Wis. Stat. § 30.056, by claiming that if he has "specific statutory authority to sue," he can attack the constitutionality of the statute in that suit. (Pet. Br. at 20.) We find this argument unpersuasive. The attorney general appears to argue that Wis. Stat. §§ 30.294, 823.01, and 832.02¹⁷ provide the necessary statutory authority to abate a public nuisance under Wis. Stat. § 30.056. However, those statutes do not provide specific authority to sue in this case because § 30.056 expressly negates the effect of §30.294.¹⁸ Therefore, none of the statutory sections the attorney general cites give him the specific authority to challenge § 30.056.

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¶ 37. The attorney general additionally argues the he has the authority to challenge the constitutionality of Wis. Stat. § 30.056 without further statutory authority under other constitutional and common law principles. The attorney general claims that several doctrines give him this power: the great public concern doctrine, the state as polity doctrine, and the core function doctrine. These doctrines are more fully defined later in this opinion. For the reasons that are discussed hereinafter, we reject the attorney general's use of these doctrines in this case.¹⁹

¶ 38. The attorney general first argues that according to the great public concern doctrine, he can challenge the constitutionality of a statute. The great public concern doctrine is an exception to the general rule that "state agencies or public officers cannot question the constitutionality of a statute unless it is their official duty to do so, or they will be personally affected if they fail to do so and the statute is held invalid." Fulton Found, v. Dep't of Taxation, 13 Wis. 2d 1, 11, 108 N.W.2d 312 (1961).²⁰ "[N]o one can question in the courts the constitutionality of a statute already enacted except one whose rights are impaired... . This rule extends to public officers whose private rights are not involved." Id. at 11-12. However, when an issue is of great public concern, a state agency can challenge a statute's constitutionality. Id. at 13. This court appeared to define an issue of great public concern as a "matter of great public interest." Id.

¶ 39. The attorney general argues that the great public concern exception applies in this case because he is a state officer. In support of that argument, the attorney general notes that Fulton did not expressly limit the exception to state agencies. Fulton, 13 Wis. 2d at 13.

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

¶ 41. Moreover, the great public concern exception does not apply "to suits between two creatures of the state." City of Madison v. Town of Fitchburg, 112 Wis. 2d 224, 240, 332 N.W.2d 782 (1983)(citing Kenosha v. State, 35 Wis. 2d 317, 331, 151 N.W.2d 36 (1967)). In Columbia County v. Board of Trustees of the Wisconsin Retirement Fund, 17 Wis. 2d 310, 318, 116 N.W.2d 142 (1962), we declined to extend the exception to "suits between two agencies of the state government or between an arm of the government and the state itself."²¹ See also City of Eau Claire v. DNR, 60 Wis. 2d , 210 N.W.2d 771 (1973)(per curiam)(stating that the exception does not apply between a state agency and a municipality). Because the attorney general's office and Oak Creek are both "creatures of the state," the great public concern exception does not apply.

¶ 42. It is true that the attorney general can petition to invoke this court's original jurisdiction without the governor or the legislature's authorization, but even so, it is this court's prerogative to accept or deny such a petition.²² However, the attorney general did not petition this court to invoke its original jurisdiction in this case.

¶ 43. The attorney general next argues that he has authority to attack Wis. Stat. § 30.056's constitutionality under the "state as polity" doctrine. He cites State ex rel. Reynolds v. Zimmerman, 22 Wis. 2d 544, 553, 126 N.W.2d 551 (1964), and State ex rel. Attorney Gen. v. Cunningham, 81 Wis. 440, 500-01 (1892), claiming that those cases stand for the proposition that "the public injury that results from.. .unconstitutional legislation can only adequately be redressed by the attorney general." (Pet. Br. at 16.) The attorney general appears to define "state as a polity" as a public injury, as opposed to an individual injury.²³ (Pet. Br. at 16.) He cites The Attorney Gen. v. The City of Eau Claire, 37 Wis. 400, 447 (1875), in support of his argument that a violation of the public trust is "a violation of the duty assumed by the state, in its aggregate and sovereign character." The attorney general argues that a violation of the public trust is therefore a violation to the state as polity because it constitutes a public injury. (Pet. Br. at 16.) It is difficult to separate this claim from the attorney general's argument involving the great public concern doctrine.

¶ 44. The attorney general's argument is only partially correct. The attorney general may in certain instances bring suit against a perceived violation of the public trust. City of Eau Claire, 37 Wis. at 447. However, the attorney general does not have the authority to bring suit every time a public injury occurs. If the attorney general lacks specific statutory authority, he must meet one of two additional conditions to act. He may act if the governor or legislature directs him to do so. Wisconsin Stat. § 165.25(1) permits the attorney general to bring suit in "any cause or matter.. .if [he is] requested by the governor or either house of the legislature." It appears to be an anomaly, but he may also act if the case results in the granting of a petition for original jurisdiction. State ex. rel. Haven v. Sayle, 168 Wis. 159, 163, 169 N.W. 310 (1918).²⁴

¶ 45. In all of the cases the attorney general cites, at least one of these additional conditions was met. Zimmerman was an original jurisdiction action, in which special counsel for the governor challenged the constitutionality of a state reapportionment plan. 22 Wis. 2d at 552. This court recognized that either the governor or the attorney general could challenge the constitutionality of a state reapportionment plan. Id. at 552-53. Cunningham was also a case involving a reapportionment of state senate and assembly districts.

¶ 46. In Cunningham, the court quoted with approval from City of Eau Claire in explaining why granting a petition for original jurisdiction was important in cases where the subject matter was of public right — publici juris:

To warrant the assertion of original jurisdiction here, the interest of the state should be primary and proximate, not indirect or remote; peculiar, perhaps, to some subdivisions of the state, but affecting the state at large in some of its prerogatives; raising a contingency requiring the interposition of this court to preserve the prerogatives and franchises of the state in its sovereign character, this court judging of the contingency in each case for itself.

Cunningham, 81 Wis. at 473 (quoting Eau Claire, 37 Wis. at 444). As explained in paragraph 42, City of Eau Claire and Cunningham were both cases in which the anomaly is demonstrated, since this court accepted original jurisdiction and, therefore, permitted the attorney general to attack the constitutionality of legislative action.

¶ 47. The case before us now was not commenced in this court on a petition for original jurisdiction, and the attorney general did not bring this action at the request of the governor or the legislature. Therefore, the attorney general's "state as a polity" argument must fail.

¶ 48. Finally, the attorney general argues that he is able to bring suit in this case because doing so is one of his core functions as attorney general. He claims that his core function is to "enforce the law and uphold the constitution." (Pet. Br. at 17.) Two statutes, he asserts, evince the legislature's recognition of his authority to uphold the constitution. First, under Wis. Stat. § 806.04(11), the attorney general must be served when a claim is made that a statute is unconstitutional. Second, under Wis. Stat. § 14.11(2)(a)4, the attorney general may use "his opinion as to the validity of any law" in deciding which side to take in a case. (Pet. Br. at 18.) The attorney general also points to Arizona case law, which permits the Arizona attorney general to attack an Arizona statute's constitutionality in attempting to defend the state constitution. Fund Manager v. Corbin, 778 P.2d 1244, 1250 (Ariz. App. 1988). The attorney general appears to reason that he may attack the constitutionality of Wis. Stat. § 30.056 in attempting to defend the public trust doctrine, which emanates from Wis. Const, art. IV, § 1.

¶ 49. The attorney general must cite to another state's case law to support his core function theory because no Wisconsin case supports it.²⁵ Instead, as stated in Part III of this opinion, in Wisconsin, any authority the attorney general has is found in the statutes. There is no "core function" derived from the constitution that is superior to the attorney general's statutorily-provided powers because the constitution provides that the attorney general's "core functions" are to be defined by the statutes. The attorney general's constitutional powers are equivalent to his statutory powers — they are one and the same. That is precisely why the history of art. VI, § 3 is so important: it demonstrates conclusively that the framers intended the attorney general not to have any core function except as defined in the statutes.

¶ 50. Moreover, this court has already rejected the attorney general's core function argument. As noted earlier, this court previously stated that "[t]he attorney general is devoid of the inherent power to initiate and prosecute litigation intended to protect or promote the interests of the state or its citizens. ..." Sharp, 63 Wis. 2d at 261 (emphasis added). Sharp's language referring to "inherent power" is the same as the attorney general's "core function" terminology. Public Intervenor likewise addressed this issue and found that the attorney general cannot attack a statute's constitutionality in attempting to uphold the public trust doctrine. 115 Wis. 2d at 38-40. Public Intervenor explained that

[t]he public intervenor is not the state, but is an office created by the legislature with stated and limited authority to intervene in proceedings. He does not have authority to bring direct court actions challenging the constitutionality of rules adopted by the DNR, an agency created also by the legislature.

Id. at 38. In the same manner, the position of attorney general and the authority of the state are not synonymous — the attorney general's office is a constitutional office with authority defined and limited by the legislature. While the state, or any person suing in the name of the state, may use the public trust doctrine to attempt to establish standing, id. (citing State v. Deetz, 66 Wis. 2d 1, 13, 224 N.W.2d 407 (1974)), the attorney general may not use the doctrine in this case because the attorney general is not the state, as was explained in Public Intervenor, and because he lacks statutory authority to sue in this case. Moreover, we reiterate Public Intervenor's point that the DNR is dominant to the attorney general in protecting state waters, and as such, it is the DNR's duty to protect Crawfish Creek. Id. at 38-39 (citing Wis. Envtl. Decade, Inc. v. DNR, 85 Wis. 2d 518, 527-28, 271 N.W.2d 69 (1978)).

¶ 51. We also note that the attorney general's reliance on Wis. Stat. §§ 14.11(2)(a)4 and 806.04(11) is misguided. The former statute permits the governor to employ special counsel "[t]o institute and prosecute an action or proceeding which the attorney general, by reason of the attorney general's opinion as to the validity of any law, or for any other reason, deems it the duty of the attorney general to defend rather than prosecute." Wis. Stat. § 14.11(2)(a)4. This provision does not apply to the present case because here the attorney general is attempting to prosecute, not defend in the action. Moreover, the provision deals with the employment of special counsel, which also renders it inapplicable to this case. The latter statute deals with the attorney general's ability to defend the state statutes, not his ability to defend the state constitution.

¶ 52. In sum, none of the theories that the attorney general advances supplant the necessity that he derive his authority from the statutes to bring suit in this case.

¶ 53. We hold that the attorney general lacks the necessary statutory authority to attack the constitutionality of Wis. Stat. § 30.056, and therefore, we do not address whether the statute is constitutional.

V.

¶ 54. In this case the attorney general brought both a statutory public nuisance claim and a common law public nuisance claim. The circuit court granted summary judgment to the attorney general on the common law public nuisance claim. Because we hold that the attorney general lacks standing to attack the underlying statute's constitutionality, the presumption of the statute's constitutionality remains. County of Kenosha v.C&S Management, Inc., 223 Wis. 2d 373, 383, 588 N.W.2d 236 (1998). Since the statute is presumptively constitutional, the court of appeals properly reversed the circuit court's grant of summary judgment.²⁶

VI.

¶ 55. We conclude that the attorney general lacks standing to bring this action because the legislature has not granted him the statutory authority to attack the constitutionality of Wis. Stat. § 30.056. Our conclusion rests on a strong foundation of precedent and constitutional history.²⁷ We also conclude that the great public concern doctrine, the state as polity doctrine, and the core function doctrine do not give the attorney general such authority. We accordingly affirm the decision of the court of appeals.

By the Court. — The decision of the court of appeals is affirmed.

1 All subsequent references to the Wisconsin Statutes are to the 1995-96 text unless otherwise noted.

2 Wisconsin Stat. § 30.12(1) provides, in part:

[U]nless a permit has been granted by the department pursuant to statute or the legislature has otherwise authorized structures or deposits in navigable waters, it is unlawful:

(a) To deposit any material or to place any structure upon the bed of any navigable water where no bulkhead line has been established; or

(b) To deposit any material or to place any structure upon the bed of any navigable water beyond a lawfully established bulkhead line.

The DNR apparently relied upon the statutory provisions from 1987-88, which are essentially the same as the 1995-96 provisions quoted here.

3 Wisconsin Stat. § 30.195(1) provides: "No person may change the course of or straighten a navigable stream without a permit issued under this section or without otherwise being expressly authorized by statute to do so."

4 Wisconsin Stat. § 30.294 provides: "Every violation of this chapter is declared to be a public nuisance and may be prohibited by injunction and may be abated by legal action brought by any person."

5 Wisconsin Stat. § 30.055 provided:

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 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.

6 The state public intervenor formally intervenes in administrative proceedings "to protect public rights in water and other natural resources, with the approval of the public intervenor board." Wis. Stat. § 23.39(2)(a)-(b). The public intervenor used to be an assistant attorney general, Wis. Stat. § 165.07 (1981-82), but the position now exists in the Department of Natural Resources. Wis. Stat. § 23.39.

7 Wisconsin Const, art. IV, § 18 provides: "No private or local bill which may be passed by the legislature shall embrace more than one subject, and that shall be expressed in the title."

8 That methodology was set forth by this court in Davis v. Grover, 166 Wis. 2d 501, 520, 480 N.W.2d 460 (1992), which stated that the first inquiry involves "whether the process in which the bill was enacted deserves a presumption of constitutionality." The second inquiry involves "whether the bill is private or local." Id.

9 Since the court determined that Wis. Stat. § 30.055 was unconstitutional under Wis. Const, art. IV, § 18, it did not address the circuit court's conclusions that § 30.055 violated equal protection or the Public Trust Doctrine. City of Oak Creek v. DNR, 185 Wis. 2d 424, 434 n.3, 518 N.W.2d 276 (1994)(citing Martinez v. DILHR, 160 Wis. 2d 272, 275 n.1, 466 N.W.2d 189 (Ct. App. 1991), rev'd on other grounds, 165 Wis. 2d 687, 478 N.W.2d 582 (1992)).

10 The attorney general later became an elected office. See Scott Van Alstyne & Larry J. Roberts, The Powers of the Attorney General in Wisconsin, 1974 Wis. L. Rev. 721, 732.

11 The 1848 constitution moved the article pertaining to administrative officers to Article VI from its previous position in Article IV in the 1846 constitution.

12 The dissent suggests at ¶ 84 that State v. Milwaukee Elec. Ry. & Light Co., 136 Wis. 179, 116 N.W. 900 (1908), is "unpersuasive" precedent. We recognize that Milwaukee Electric does not delve into an extensive exploration of the constitutional history underlying its decision. However, that does not mean that Milwaukee Electric's holding is incorrect. State constitutional history strongly supports Milwaukee Electric's holding, as will be discussed later in this opinion. Moreover, the rationale in Milwaukee Electric is logical. The court examined the language in Wis. Const, art. VI, § 3 and appeared to base its holding on the plain meaning of the phrase, "prescribed by law." Id. at 190. As we stated in Thompson v. Craney, 199 Wis. 2d 674, 680, 546 N.W.2d 123 (1996), "the plain meaning of the words in the context used" is a valid method for interpreting a constitutional provision.

13 Arlen C. Christenson was the Deputy Attorney General of Wisconsin from 1966-68, and he was the Executive Assistant Attorney General from 1968-69. Arlen C. Christenson, The State Attorney General, 1970 Wis. L. Rev. 298.

14 The attorney general has similarly recognized his duty to defend the constitutionality of the statutes stating, "[o]nce legislation is enacted it becomes the affirmative duty of the Attorney General to defend its constitutionality." 71 Op. Att'y Gen. 195, 196 (1982).

15 The act is quoted in full:

The people of the State of Wisconsin, represented in Senate and Assembly, do enact as follows:

Section 1. The attorney general shall appear for the state in the supreme court in all prosecutions for crime, and also in the trial and argument in said court of all causes criminal or civil in which the state may be a party or interested.

Sec. 2. The attorney general shall also when required by the governor or either branch of the legislature, appear for the state in any court or tribunal in any other causes criminal or civil in which the state may be a party or be interested.

Sec. 3. The attorney General [sic] shall consult with and advise the district attornies of the several counties of the state whenever requested by them or any or either of them in all matters appertaining to the duties of their offices, and shall make and submit to the legislature at the commencement of the annual session thereof a report of all the official business done by him during the preceding year: specifying the suits and prosecutions to which he may have so attended: the number of persons prosecuted: the crime for which, and the counties where such prosecutions were had: the result thereof: and the punishment awarded therefor.

Sec. 4. The attorney general shall when required attend the legislature during their session: and shall give his opinion upon all questions of law submitted to him by either branch of the legislature; or by the governor; and shall give his aid and advice in the arrangement and preparation of legislative documents and business when required by either branch of the legislature.

Sec. 5. Whenever any demand shall be made of the executive of this state conformably to law for the delivery over any person charged with any crime committed in any other state or territory, it shall be the duty of the attorney general upon request of the governor, to give his opinion in writing upon all matters appertaining to such demand; and upon an arrest of such person so charged, shall when required appear in any court of this state to sustain the executive authority in ordering such arrest.

Sec. 6. The attorney general, before he enters upon the duties of his office shall execute unto the state of Wisconsin, a bond in duplicate, in the penal sum of ten thousand dollars, with not less than three sureties to he approved by the governor conditioned faithfully to perform and discharge the duties of attorney general for the state of Wisconsin, and to discharge the duties of one of the board of commissioners for the sale of the school and university lands and for the investment of the funds arising therefrom con-formably to law, one of which bonds so executed in duplicate shall be filed in the office of the secretary of state, and the other in the office of the clerk of the supreme court.

Sec. 7. The legislature may from time to time require the attorney general to give additional security whenever it may be deemed expedient or necessary.

Sec. 8. The attorney general shall receive a salary of eight hundred dollars per annum to be paid to him out of the treasury of the state in equal quarterly payments which shall.be in full for all services by him rendered both as attorney general, and as one of the board of commissioners for the sale of the school and university lands.

Laws of Wis., 1848 St. Approved June 21,1848. •

16 The following 1849 statutory provisions relating to the attorney general were similar to the 1848 provisions: the attorney general was to represent the state in all civil and criminal matters before the supreme court, and at the request of the governor or legislature at the circuit court; he was to represent the state in bond or contract actions if requested by the governor or other state officer; he was to advise the district attorneys, as well as render legal opinions to the legislature, executive officers, and state superintendent; he was to prepare legal forms for certain state officers and report to them on his cases; he was to pay all state funds that had been deposited into the state treasury; he was to record the actions he had been involved in; he was to take a constitutional oath and file hond; and he would be paid a salary of 800 dollars per year. Van Alstyne & Roberts, 1974 Wis. L. Rev. at 733 (citing Wis. Rev. Stat., ch. 9, §§ 36-43 (1849). The legislature further expanded the attorney general's duties in other chapters. He was ex officio member of the Board of Canvassers. Wis. Rev. Stat. ch. 6 (1849). At the governor's request, he was to investigate corporations and examine its records and officers. Wis. Rev. Stat. ch. 54, § 22 (1849). He also could bring quo warranto actions. Wis. Rev. Stat. ch. 126, § 1 (1849). Finally, he could prosecute visitorial powers over corporations, Wis. Rev. Stat. ch. 114, § 5 (1849), and subpoena witnesses without a fee and prosecute for contempt, Wis. Rev. Stat. ch. 131, § 57 (1849). Van Alstyne & Roberts, 1974 Wis. L. Rev. at 733.

17 The attorney general's brief appears to differ from the record as to the statutory provisions under which the attorney general brought this action. The attorney general claims that he brought the action pursuant to Wis. Stat. §§ 30.294 and 821.01-.02 (Pet. Br. at 11), but the complaint actually refers to the statutory provisions stated above. (R. at 1:3.)

18 The dissent asserts in ¶¶ 67-78 that the attorney general has the statutory authority to bring a public nuisance claim and can argue the unconstitutionality of Wis. Stat. § 30.056 as part of that claim. We agree that the attorney general has the statutory authority to bring a claim for public nuisance under Wis. Stat. §§ 30.294, 823.01, and 823.02, but he cannot bring a claim that depends on § 30.056 for its validity. All that the nuisance statutes permit him to bring is a nuisance claim, not an attack on a statute's constitutionality. The attorney general attempted to bury his claim of unconstitutionality within his statutory public nuisance claim. (R. at 9.) Simply attempting to combine those two claims does not mean that the attorney general has statutory authority under § 30.294 to bring the unconstitutionality claim. The claims are separate, and therefore he needs different statutory authority to bring both claims. See Public Intervenor v. DNR, 115 Wis. 2d 28, 35, 339 N.W.2d 324 (1983) (stating that the public intervenor's enabling legislation only permits him or her to intervene in proceedings, not to challenge a rule's constitutionality).

19 At ¶ 94, the dissent discusses these doctrines being "read separately and read together" in order to find for the attorney general. We suggest that these three doctrines are no more persuasive for the attorney general in this case when "read together" than when they are analyzed separately.

20 In the Fulton case, this court noted in a footnote that it was not deciding the question of the attorney general's right to raise an issue concerning the constitutionality of a state statute. Fulton Found, v. Dep't of Taxation, 13 Wis. 2d 1, 13 n.3, 108 N.W.2d 312 (1961) (stating that "[w]e have no issue present in the instant case of the attorney general's right to question the constitutionality of a state statute. This is because the attorney general is not a party in the instant case and only appears as counsel for the department.")

21 See also Employe Trust Funds Board, et al. v. Lightbourn, et al., Case No. 99-3297, Order dated of even date (properly applying Columbia County to deny the Employe Trust Funds Board standing to commence a suit against the Department of Administration, challenging the constitutionality of recent legislation concerning public employee pensions).

22 We emphasize that this court accepts original jurisdiction actions only in rare instances. The specific and limited circumstances in which this court will accept original jurisdiction are detailed in the Supreme Court Internal Operating Procedures II(B)(3)(citing to Petition ofHeil, 230 Wis. 428 (1939)). Wis. S. Ct. IOP II(B)(3)(May 24, 1984). See also Christenson, who states:

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

Christenson, 1970 Wis. L. Rev. at 303.

23 Black's Dictionary defines "polity" as "[t]he total governmental organization as based on its goals and policies." Black's Law Dictionary 1179 (7th ed. 1999).

24 Specifically, this court stated in State ex. rel. Haven v. Sayle, that

[w]ere the case within the original jurisdiction of the supreme court, i.e. were state officers charged with violation of law, and were the attorney general filing an information in equity in this court to restrain such act, the suit might be entertained simply by obtaining leave of court, but this results from the grant of prerogative jurisdiction to this court by the constitution, as explained in the case of Att'y Gen. v. Railroad Cos. 35 Wis. 425. See, also, Income Tax Cases, 148 Wis. 456, 134 N.W. 673, 135 N.W. 164.

168 Wis. 159, 163-64, 169 N.W. 310 (1918). We recognize that arguably, the attorney general has statutory authority to petition this court for original jurisdiction in a matter. See Wis. Stat. § 165.25(1). However, we caution that his authority to petition for original jurisdiction does not mean that this court will automatically accept original jurisdiction in any case.

25 In note four of his brief, the petitioner attempts to set forth a number of Wisconsin cases in which "attorneys general have challenged the constitutionality of legislative acts." (Pet. Br. at 19, n.4.) These cases can all be differentiated because in each instance, a legally prescribed condition was met. The governor, legislature, state agencies and departments, or public officers requested the attorney general to challenge the constitutionality of a statute according to Wis. Stat. § 165.25(1), or it was an original action, or it was a quo warranto action. Quo warranto is a proceeding that the attorney general was first authorized to bring by the statutes enacted in 1849. He continues to have such statutory authorization in the present statutes. See Wis. Stat. § 784.04(1). In the following actions the attorney general was requested by a state department or a public officer to bring suit: Martinez v. DILHR, 165 Wis. 2d 687, 478 N.W.2d 582 (1992)(on behalf of the Department of Industry, Labor, and Human Relations — DILHR); Fulton Found, v. Dep't of Taxation) 13 Wis. 2d 1, 108 N.W.2d 312 (1961)(on behalf of the Department of Taxation); State ex rel. Jones v. Froehlich, 115 Wis. 32, 91 N.W. 115 (1902)(on behalf of the Secretary of State, a public official). The following cases were original actions: Thompson v. Craney, 199 Wis. 2d 674, 546 N.W.2d 123 (1996); State ex rel. Reynolds v. Zimmerman, 22 Wis. 2d 544, 126 N.W.2d 551 (1964); State ex rel. Larson v. Giessel, 266 Wis. 547, 64 N.W.2d 421 (1954); State ex rel. Martin v. Zimmerman, 249 Wis. 101, 23 N.W.2d 610 (1946); State ex rel. Raymer v. Cunningham, 82 Wis. 39, 51 N.W. 1133 (1892); State ex rel. Attorney Gen. v. Cunningham, 81 Wis. 440, 51 N.W. 724 (1892); Attorney Gen. v. City of Eau Claire, 37 Wis. 400 (1875). The following cases were quo warranto actions: State ex rel. Hicks v. Stevens, 112 Wis. 170, 88 N.W. 48 (1901); State ex rel. Brayton and another v. Merriman, 6 Wis. 17 (1857); Attorney Gen. v. McDonald, 3 Wis. 703 (1854).

26 Oak Creek's motion to strike portions of the attorney general's brief, filed in this court, is denied, since the matters argued therein have been considered.

27 It does not rest on a "rickety and unsteady" basis, as alleged in the dissent. Nor does it lead to "an absurd result," as claimed in the concurrence in Employe Trust Funds Board, et al. v. Lightbourn, et al., Case No. 99-3297, Order dated of even date. With this decision, we continue to recognize the pre-emi-nence of precedent. For, as we have stated earlier:

Fidelity to precedent, the doctrine of stare decisis 'stand by things decided', is fundamental to 'a society governed by the rule of law.' Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416, 420 (1983). When legal standards 'are open to revision in every case, deciding cases becomes a mere exercise of judicial will, with arbitrary and unpredictable results.' Appeal of Concerned Corporators of Portsmouth Savings Bank, 129 N.H. 183, 227, 525 A.2d 671 (1987) (Souter, J. dissenting, quoting Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747, 786-87 (1986), White, J. dissenting).

State v. Stevens, 181 Wis. 2d 410, 441-42, 511 N.W.2d 591 (1994)(Abrahamson, J., concurring) (overruled on other grounds, Richards v. Wisconsin, 520 U.S. 385 (1997)).