Case Details


Attorney General Does Not Have Common Law Powers. Attorney General May Not Challenge Constitutionality Of State Statute

Filing State



Wisconsin Supreme Court




State v. City of Oak Creek, 2000 WI 9; 232 Wis. 2d 612; 605 N.W.2d 526 (Wis. 2000)


Attorney general of Wisconsin has only statutorily-granted powers, no common law powers. The attorney general cannot challenge the constitutionality of a state statute because it is not within his statutorily granted powers.

Case Description

The city of Oak Creek, Wisconsin built a concrete channel in Crawfish Creek, a navigable waterway which flows through the city. The city’s action was found to have violated state laws relating to navigable waterways. The legislature then passed another bill providing that Oak Creek may not be required to remove any structure from Crawfish Creek that was placed there before June 1, 1991. The Attorney General sued, claiming that the channel was a statutory and common law nuisance and that the statute was unconstitutional. The Wisconsin Supreme Court held that the Attorney General did not have standing to attack the constitutionality of the statute. The court found that the state constitution provides that the powers, duties and compensation of the attorney general “shall be prescribed by law.” The court analyzed the state constitutional debates and the state’s first statutes and concluded that the Attorney General’s actions must be authorized by statute, and they were not so authorized in this case. The court elaborated, “any challenge to the statute on his part would conflict with his duty to defend [the constitutionality of state laws], unless specifically authorized by statute.” The court also held that the Attorney General did not have standing to sue under the public nuisance statutes because the legislation at issue here expressly negates the effect of those statutes.