*1 STATE of Wisconsin EX REL. UNNAMED
PETITIONERS, Petitioners,
v. CONNORS, The Honorable Arlene D. Circuit Judge 37, of Milwaukee Branch County,
Respondent. Supreme Court Argued September No. 86-0290-W. 1986. Decided March
1987. (Also reported 782.) in 401 N.W.2d *2 petitioners joint by For the there were briefs Glynn, Stephen Shellow, M. James A. Walrath and Glynn, Coffey S.C., P. Shellow & and William Geraghty, Coffey, Coffey Milwaukee, all and oral & argument by Coffey. James A. Walrath and William P. respondent argued by
For the the cause was attorney general, Balistreri, with Thomas J. assistant whom on the LaFollette, briefs was Bronson C. attor- ney general. opinion
HEFFERNAN, CHIEF JUSTICE. This 968.02(3), Stats.,1 considers whether sec. which autho- upon judge, finding probable rizes a circuit cause, permit filing complaint aof criminal if the refuses is unavailable to issue a complaint, is unconstitutional because allows an judiciary upon encroachment the executive charges branch’s to decide whether criminal should be filed.
We conclude that the statute is unconstitutional *3 beyond separation- a reasonable doubt.2It violates the 1 "Ifa district refuses is unavailable to issue a complaint, may permit judge filing complaint, a circuit the of a probable the finds person there is cause to believe that the charged conducting to be has committed an offense after
hearing.
If the
complaint,
has refused to issue a
hearing
he or she shall be informed of the
and
attend. The
hearing
parte
right
shall be ex
without the
of cross-examination.”
County
614, 629-30,
Proegler,
2 InMilwaukee
v.
85 Wis. 2d
291
(Ct.
1980),
App.
appeals
N.W.2d 608
the court of
discussed the
proof
of
by
challenging
burden
to be borne
one
the constitutionali
ty of a statute:
presumed
"The rule has been
often-stated
a statute is
heavy
placed
be constitutional
party
and that a
burden is
on the
challenging
constitutionality.
58, 64,
its
State v.
89 Wis. 2d
Hart.
(1979).
843,
277 N.W.2d
challenges
constitutionality
“One who
a statute’s
carries a
heavy
persuasion.
of
presumption
burden
He must overcome the
constitutionality
of
Paper
in
described
State ex rel. Hammermill
Plante,
32, 46,
(1973):
Co. Lav.
58 Wis. 2d
205 N.W.2d 784
enough
respondent
"'...
It is not
establish doubt as to
constitutionality
respondent
the act’s
nor is it sufficient that
unconstitutionality
probability.
establish the
of the act as a
of-powers principle of the Wisconsin Constitution that
prohibits
by
a substantial encroachment
one branch
delegated province
on
a function that within the
of
A
another branch.3
transfer of substantial
from
government
one
of
branch
to another
violates
separation-of-powers
Lehtola,
doctrine.
v.
State
(1972).
494, 498,
Wis. 2d
3The state of our form of government 15.001, provides: found Stats. which (1) policy. "15.001 Declaration of THREE BRANCHES 'republican government’ guar- OF GOVERNMENT. The form of contemplates separation anteed S.U. constitution
powers
government among
legislative,
within state
*4
judicial
government.
executive and the
branches of the
legislative
objective
determining policies
branch has the broad
of
programs
program performance
programs
and
review of
and
for
authorized,
previously
the executive branch carries out
the
programs
policies
judicial
responsibil-
and the
branch has the
ity
adjudicating any
might
for
conflicts which
arise
the
from
interpretation
application
or
is a
of
laws. It
traditional
concept
government
of American
the 3 branches are
separately,
intermingling
authority, except
function
without
provided
specifically
by law.”
121
Employment
Commission,
324,
Relations
82
2dWis.
(1978).
separa
348,
Thus,
N.W.2d
issue
tion-of-powers
question
cases whether the statute in
impairs
"materially
practically
proper
defeats”
particular
function of a
branch and the exercise
powers delegated
See,
E.B.,
to it.
In Matter
111 Wis.
(1983).
175, 185,
2d
The case is before this court on a writ of prohibit Judge tion, which the relators seek to holding hearing contemplated by Connors from 968.02(3), grant sec. Stats. We the writ. prior proceedings arising
In
this
before
court
out
constitutionality
incident,
of the same
of sec.
968.02(3),
challenged.
Stats., was not
We held that the
968.02(3) proceedings
presumptively
were
to be
open
public.
Newspapers,
See,
State ex rel.
Inc. v.
County,
Court
Circuit
Milwaukee
Wis. 2d
(1985).
Upon the district refusal attorney’s prosecute upon petition of the complainant, the matter assigned Judge was to Circuit D. Arlene Connors for 968.02(3), Stats., sec. proceedings. When Judge Con- nors proceedings closed, directed that action for the writ considered in Newspapers, supra, brought was Upon to this court. the remand Judge Connors, challenged the relators have the constitu- 968.02(3) tionality grounds sec. on the violated the Wisconsin separation-of- Constitution’s powers doctrine and petitioned prohibi- for the writ of issue, tion. Pending resolution of this we stayed have proceedings. consequence As a of our conclusion 968.02(3) permits unconstitutionally exercise of power executive branch judicial branch which constitutes a substantial encroachment branch, upon grant executive we of prohibition. writ
We first consider
the role and function of the
Wisconsin
law. The attorney
general
concedes
is an
government,
officer of the executive branch of state
*6
aegis
governor,
branch,
which
under the
of the
has the
duty
under
constitution to "take care that the laws
faithfully
V,
executed.” Wis. Const. Art.
4.
sec. The
merely
attorney
district
is not
an administrative
only
(Application
officer with
ministerial duties
of
(1923)),
579,
Bentine, 181 Wis.
196
213
N.W.
but a
public
public
prosecu-
officer "retained
for the
persons
crime,
tion of
accused of
in the exercise of
distinguish
guilty
sound discretion to
between the
and
certainly
doubtfully
innocent, between the
and the
(1877).
guilty.” Wight Rindskopf,
344,
v.
43 Wis.
354
supra
points
587,
Bentine,
at
out that:
"The office of district attorney is a constitu-
trust,
office. It
held
public
tional
is
as a
and the
charged
grave
responsibilities
incumbent
with
calling
learning
for the exercise of
in the
and
law
judgment....
filing
sound
Before
the information it
duty
is the
of
attorney
the district
to make full
examination of all
and
facts
circumstances
connected with the case.
...”
beyond
attorney,
It doubt that
light
they
of his
law,
functions
involve the criminal
is an executive
branch officer.
role of the government
system
paral-
under the state
of
Attorney’s
represen-
lels the United States
role in the
See,
tation of the United States.
United States v.
(1974);
Nixon,
418 U.S.
Inmates
Attica
of
(2d
Facility
Correctional
v.
We the status and the district pletely under Wisconsin law are com- congruent with those of the United States Attorney, attorney, duty but his prosecute performs violations, criminal a function of the executive branch.
In the exercise of this executive function to
charge
offense,
a criminal
has
State,
357, 368,
broad discretion.
78
Harris v.
Wis. 2d
(1977);
Johnson,
254
291
N.W.2d
State v.
74 Wis. 2d
(1976);
169, 173,
Peterson,
In State ex rel. Kurkierewicz v. Wis. 2d (1969), general 368, 166 N.W.2d we addressed the attorney’s nature of the district discretion in deter- mining prosecute. whether to Kurkierewicz involved duty the inquest. of the district to convene a coroner’s upon
Our conclusion in that case was based the nature and of the attorney’s function district office in our of government. scheme Accordingly, princi- in ples determining utilized attorney’s obligation inquest to call for coroner’s are applicable in this prosecutor’s function case. in We said Kurkierewicz, pp. 378-79:
"It prosecutor is clear in his functions as a great he has determining discretion in whether or prosecute. not to obligation There is no duty or upon prosecute a district attorney complaints all filed with him. duty While it is his criminals, prosecute great it is obvious that a' portion placed the state has been in his hands him to use in the furtherance of justice, per require prosecution and this does not se in appears all cases where there to be a violation of the law general, no matter how In trivial. any answerable to other respect officer the state in to the manner in powers. True, which he exercises those he is people, answerable for if he fails his trust he can be recalled polls. defeated at the In perform event he willfully fails to his duties or is crime, suspended involved he bemay from office *8 governor These, removed cause. however, political are go remedies that not to directing performance specific duties but go question rather of fitness for office.” We also quoted approval, 2, with p. n. language of Justice H. Charles Crownhart this court emphasized which the discretion of the district attor- ney respect to which offenders were to be prosecut- ed and in naming the charged. offense to be Justice Crownhart stated: public having
"The
officials
to deal with crime
must winnow and sift from the offenders those who
are the
guilty
having
most
guilty
in-
—those
vigorous prosecution.”
tent —for
Building upon
general
principles
restated
Kurkierewicz,
State,
this court in
Thompson v.
61 Wis.
(1973),
that,
2d
"For a limited time is the [the public’s trustee of the law enforcement conscience. It duty is his to refrain instituting from criminal charges unconscionably or unnecessarily. In the public exercise of that conscience he is neither the puppet of the law enforcement authorities nor of the courts.” v. Karpinski,
State 599, 285 Wis. 2d N.W.2d 729 (1979), elaborated on these concepts of broad prosecu- torial discretion in bringing charges, stating:
"This court repeatedly emphasized has prosecutor great has determining discretion in prosecution. whether to commence prose- ... The required cutor prosecute is not all cases in which appears that the law has been violated. We have prosecutor’s charging characterized the discretion 'quasi-judicial’ in the sense that it is his duty to justice administer rather than to obtain convic- tions.” P. 607.4
4 Karpinski, recognizing sweep extremely while broad discretion, prosecutorial significant additionally recogni for its approach charging tion of the need for a reasoned and stated to a *9 127 many respects, Thus, in is envisaged justice, prosecutor as a minister of not a obligated charge every every who is to offense and possible malefactor to the maximum extent respect, concept too, under the law. In this this court’s of the function is akin to the concept Supreme of the United States Court of Attorney function of the United States when it said (1935): Berger States, v. United 295 U.S. Attorney represen- "The United States an ordinary party tative not of to controversy, a sovereignty obligation of a govern but whose to impartially compelling obligation is as as its all; interest, therefore, govern at whose a case, prosecution is criminal it shall win a justice shall done.” but repeatedly Wisconsin decisional law has held that charge charge, the discretion to or not to and the charge, solely discretion of how to rests with the attorney. Only where there has been an aura of discrimination has this court indicated that checks placed upon prosecutor’s charging to be were deci- sion. Kenyon,
In State v. 85 Wis. 2d N.W.2d (1978), prosecutorial we confronted a different facet prosecutor discretion —the discretion dismiss a such decisions are to be with consistent each other and consonant equal protection. prosecutors with the standards It invited guidance establish rules for their internal to achieve such consis citing tency, A. Relating the A.B. Standards Criminal Justice See, Karpinski, p. again Prosecution Function. 608. It also prosecutors called attention to the discretion available to appropriate in the them diversion of defendants to a noncriminal disposition.
prosecution oncé In approaching commenced. this problem, court recognized this discretion "[t]he resting with district attorney determining whether to commence prosecution a is almost limi- held, 45. however, tless. ...” P. It prosecution that a sponte sua once commenced could not be dismissed by it because had become subject to court A control. district attorney’s dismissal motion would not granted be to do public unless so was "in the 45. interest.” P. We not explore need in this opinion required the findings permit to a trial court to dismiss prosecution a once brought. It is sufficient to note that Kenyon, interest,” "public as explained encom- passes legitimate defendant, concerns public concern of the prosecutions brought once in respect 47) actually to "crimes (p. committed” fairly prosecuted, and the concern rights of third parties be considered.
The of a right court refuse to accept prosecuto- rial as discretion the final word a where case has vastly commenced is different from a situation where no It charged. crime has been is obviously factually addition, different. In it is jurisprudentially different. A prosecutor who an dismisses initiated already claim is free to it reprosecute on-again, later. To allow off- again prosecutions that cease before a defendant has been permit would subjected jeopardy be to court to be system used for harassment and would expose a defendant to some of the hazards attach- i.e., ment damage jeopardy, reputation, expense, sanctions, and threat criminal protec- without tion that the constitutional prohibition against double Cox, See, United States v. jeopardy affords. 342 F.2d (1965). addition, "public In interest” and that (see,Kenyon, supra 47) parties implicated of third at by pending prosecution present a situation not —a prosecution a where has been commenced. general, who in this case claims that discretionary power prosecutors properly 968.02(3), Kenyon Stats., limited authority relies on proposition that, for the because court may, violating separation-of-powers without doc- permit trine, refuse to discontin- pending prosecution, power, ue a therefore has the *11 968.02(3), using by procedures compel of sec. to permit complainant attorney district charge to to file a which the district has to refused file. separate Given the functions of the court and the prosecutor, Kenyon the fact that this case and involve stages prosecutorial sequence, different and given protected that different values must be at each stages, of these we consider the state’s conclusion in respect sequitur analogy this a non and its irrelevant.
Kenyon resounding recapitulation stands for a prosecutor the near-limitless discretion of the to charge only or not. The limit that Wisconsin has recognized attorney’s charging on a district initial charging demonstrably discretion is that violates the general protection. equal standards general’s erroneously brief asserts Kenyon suggest that "should not be misconstrued to that a in Wisconsin can be authorized to oversight regarding attorney’s exercise a deci- prosecution, sion to dismiss a but not a decision to Kenyon However, to decline commence one.” does exactly attorney general that. While the asserts Kenyon approves sharing of the executive to charge checking prosecutorial as a means for discre- nothing Kenyon tion, see it Rather, protect we of the kind. system’s power ratifies the court to its own repetitious, integrity unwarranted, from the salvos of prosecutions that or frivolous would redound public impair detriment of the defendant and the respect judiciary. for the
Thus, decisions, under this court’s attorney, as branch, an officer of the executive has the power to make the initial determination of whether or charge a not to criminal offense. attorney’s asserted, however,
It is that the district charge jurisdiction essentially dependent upon legislature. certainly the direction of the This is legislature correct the extent alone define and delineate what constitutes a crime. isIt duty "[p]rosecute of the district all crimi- 59.47(2), Clearly, nal actions.” Sec. Stats. "criminal only actions” are those denominated as criminal legislature, undisputably and their definition purview legislative within the branch. But the legislature fact can define the criminal jurisdiction attorney by of the district no stretch of logic means that it can an direct executive officer to substantially abandon his executive function or direct *12 judicial way usurp officer to act in such a to the bring charges. function of the executive to criminal recognized that, matters, Kurkierewicz in minor attorney subject the district could to the will the legislature. expressly stated, It however, that, when a legislative require- direction violates constitutional attorney’s prerogatives ment, the district as an officer paramount. problem of the executive branch are The by facilely by raised case this cannot be resolved the legislative paramount. assertion that the direction is clearly It is if in a direction results substan- upon separate powers tial encroachment the executive branch. Coubal,
State v. Wis. N.W.2d 381 (1946), upon by is also relied the state for the proposition attorney required the district prosecute legislature. as directed cases the Even interpreted wishes, Coubal were as the state the case analogous case, is not to this one. In the instant the attorney charge. has declined to initiate a In attorney charge, Coubal, the district did initiate a but argued that, the defendant because the statute re- quired attorney charge so, the district to do was jurisdiction proceed. void and the court had no any There is no assertion Coubal that executive usurped by function was another branch or that there upon powers protected by was an encroachment separation-of-powers complaint Rather, doctrine. general attorney was that could override the attorney’s prosecute. district attorney general, decision not The generally
an officer who is conceded to be the state, chief law enforcement officer of the an officer of the question Coubal, executive branch. In appropriate
was whether executive exercising prosecutorial power. branch officer was p. provided See, 255. The statute under consideration prosecu- that, unless the district commenced liquor days tion for certain violations within ten of a report, attorney general certain shall direct him to legislative act. While Coubal allowed allocation of responsibility general between the and the attorney, it neither discussed nor decided legislature deprive whether the could the executive branch of its discretion. provides statute Coubal proceeding; shall not, institute a if he does he give prosecute
shall the reasons for his failure to attorney general. provides merely This for review *13 branch; within the executive one executive officer to prosecute. reviews another’s discretion Upon direc- general, of the attorney tion the district attorney must not, If prosecute. he does the attorney general is to proceedings. authorized commence the Coubal, informative, while is not dispositive. It problem resulting confronts a from a defense strategy based, that was a upon separation powers branches, between a upon challenge but the alloca- tion of responsibility within the executive branch. Whether Coubal was correct even in that posture we decide. Coubal do not is only peripheral relevance. Neither Kurkierewicz nor Coubal support assertion attorney’s discretion prosecute by a crime declared legislature subject legislative to a direction that mandates prosecution prosecutorial when the discretion is to the contrary. Thus, upon we write a clean slate. This is the first in jurisdiction case this it is which asserted that a legislative permits direction which a filing of complaint criminal by someone other than an execu- tive officer is unconstitutional on the basis i.e., doctrine, separation-of-powers the acknowl- edged executive a discretionary commence prosecution lodged legislative unconstitutionally officer, fiat a a judicial non-executive branch officer.
In concluding judicial issuance i.e., complaint, "permit filing of a complaint” by proceeding under envisaged by sec. Stats., 968.02(3), violates the separation-of-powers doc- trine, we do not on rely policy reasons which have been asserted initial why prosecute ought discretion to be vested in the solely prosecutorial arm executive branch. Nor we do examine reasons *14 vesting complete
asserted for not discretion prosecutor. Neither do we conclude that there may not prosecutorial be a of judicial charging review discre- question presented tion. That is not proceeding. this question The before us is whether the statute permits a de novo determination by the judge (and complaint whether a shall issue if so whether judge acts or whether constitutionally), requires the prosecutor’s prior to examine the judge decision and to review that decision for abuse of discretion.
None of the numerous commentators5 who have decried unlimited discretion placed traditionally prosecutor in the in respect original charging that, suggest upon decision the refusal of the prosecu- to issue a complaint, tor it is appropriate for a court to make a novo de determination prose- whether cute. general does suggest 968.02(3), Stats.,
judge, under sec. could properly ab prosecution. initio authorize The state in fact ac- knowledges in its brief that: precedent
"Well-settled compels the conclu- any judicial sion that complaint decision to issue a pay appropriate which did not deference to the refusal of prosecu- the district to initiate a tion, and in which the acted as a substitute for, on, rather than a check attorney, would be a clear abuse of discretion.” 5 See, Davis, Discretionary Preliminary K. Inquiry Justice: A (1969); Frase, 225-29 The Decision to File Federal Criminal Charges: Quantitative Study Discretion, A Prosecutorial 47 U. Note, (1980); Chi. L. Rev. Reviewability of Prosecutorial Prosecute, (1975). 130, 139 Discretion: Failure to 75 Colum. L. Rev. Although argument, representative at oral general equivocated when asked whether the statute fail would unless we construed it charging authorize review of the discretion of the argument attorney, premised his entire was assumption contemplated on the the statute judicial review.6 *15 attorney general’s argument
The that the statute sketchy not does authorize a de novo determination is argues Essentially, public policy at best. the state supports allowing judge the to review the district attorney’s judge discretion. The can make sure that attorney the district has not his abused discretion and public "snubbed the interests." policy questions before, As stated such as whether charging solely the discretion should vested in the by judicial prosecu- executive shared review of the tor’s discretion are irrelevant in the context of this light existing case in and of the statute. provides, alia,
The statute "[i]f inter a district attorney complaint, ... is unavailable to a issue the judge may Thus, circuit ....” the statute on its face permits, judge authorizes, indeed a to make the question argument The court’s at oral and the assistant attorney general’s response were as follows! Balistreri, interpreted “JUSTICE CALLOW: Mr. unless it is suggest you by does the statute fail if is an ab initio act
judge? go say "MR. BALISTRERI: I wouldn’t so far as to statute has to fail. I’ve What said in the brief and what I would repeat judge pay proper here is that does not deference to judge the discretion of the district abuses her determining in discretion then whether issue a criminal complaint.” prosecutor charging has when no ab initio decision clearly not an enunciation of review This acted. usurp an essential authorization to function. It is an important function.7 executive general, case, In the instant language brief, in his with the used accordance filing power power permit this concedes —the complaint is unavail- when power only of executive a de novo exercise able—is blatantly judiciary, by unconstitution- but is also a power by judiciary. It al exercise of executive light unnecessary of the an exercise of also authority judge, Stats., 59.44, under sec. of the circuit acting appoint attorney. an portion clearly unconstitutional Is this not, conclude severable from the balance? We statute contemplates a determi- for the entire statute de novo' judge. The statute does not authorize or nation permit a review function. statutory mindset that allows the *16 per- attorney for an "unavailable” district
substitute plain statute. It is clear from the meates the entire language judge, that in case of of the statute the unavailability, performs the exact function of the prosecutor, i.e., he makes the determination whether nothing complaint the There is in the to let be filed. 59.44, provision inexplicable, it is for sec. 7This is as bizarre as Stats., acting permits judge appoint attorney a to an district for problem any clearly encompass number of reasons which the of that, appear attorney unavailability. It would if a district is "unavailable,” acting constitutionally, judge, a would reasonable himself, aegis arrogate powers the executive even under the not 968.02(3), appoint lawyer of sec. but would a suitable to act to process complaint. person appointed any so shall have all "[T]he 59.44(1). acting.” powers attorney Sec. the of the district while so any procedure statute to indicate that different is to attorney be when used has refused issue complaint. guidance only case, the In each the fur- by permit "judge may nished the statute is that the filing complaint, judge the probable of if the finds there is person
cause to believe the to be charged has committed an offense.” finding probable judge cause is the only prerequisite for the to act instead of an supersede unavailable district or to refusing attorney. decision of the aNot word judge’s in the statute leads to the conclusion that the function to review the exercise of discretion prosecuting attorney. Ordinarily, exercise dis- contemplates cretion that a decision will be made on applicable the basis of the law and in consideration of pertinent guidelines But, all the charging facts. as the point Karpinski appro- out,
set forth in priate guidelines accepted discretionary factors charging to be considered in the decision within are peculiar knowledge prosecutor, of the not of the judge. suggest The statute does not that the action of a prosecutor person should ratified a reasonable acting prosecutor as the could have reached the charge. judge may Instead, not decision allow filing complaint upon finding judge’s probable finding upon cause, a be based new presented prosecutor. facts never It is obvious 968.02(3) hearing purports whatever procedure. require- be, it a review There is no ment that the district amake record of the although determination, his basis for the Milwaukee press in this case did set forth in a *17 prosecuting. his release reasons for not Even with judge volunteered, such a record in this case the would discretionary pay no to the factors. The need attention finding probable judge’s cause would be de novo carefully reasoned discretion sufficient to vitiate prosecutor. provision no The statute makes for the district declining prosecu- attorney defend his decision for give any tion or to reason for his action. mere fact provides the statute the district hearing suggests "may way attend” the in no an right obligation or the of the district judge defend his action or that is to review the impelled discretionary factors that the district attor- prior ney’s only speaks prae- action. The statute in 968.02(3)hearing by the sec. sente: Does conducted produce judge probable facts from which cause can be particular judge? complaint may so, If found issue. attorney general repeatedly
The assistant assert- argument right in ed oral to attend was purpose "obviously” explaining for the his exercise purpose discretion —that was not for the 968.02(3) "sleeping” during the course of the sec. hearing. just reasonable, however, It is to conclude because, that the district should be there probable cause, finds it will be the district attorney’s prosecute. pointed Moreover, case to we out 968.02(3) Newspapers, supra, hearing that the sec. presumptively open public was to be and could compelling only be closed circumstances. Under sec. 968.02(3), hearing however, the could not be closed to attorney. points excep- The statute out an might tion to closure under circumstances that other- confidentiality. implication wise warrant We find no purpose in the statute that of the district attor- *18 ney’s presence is to submit his exercise of to discretion reviewing scrutiny judge. the of the 968.02(3), permits judge Stats.,
Sec. on its face the complaint to act to issue a when the district (although judge was not available to act has power plenary appoint, acting 59.44, under sec. an to consider the issuance aof com- plaint). complete Thus, it allows and direct substitu- judge’s duly tion aof decision for the action of a appointed prosecutor. or elected egregious, similar,
A and a even more affront to principles separation powers of the occurs when judge naught can override at and set attorney’s discretionary prosecute. declination judge need have no better reason his action than probable the fact that he has found cause that offender has committed a crime. upon
This ais substantial encroachment power discretionary prosecute executive or not. It usurpation discretionary constitutes the power executive places judicial in its stead a decision based upon discretionary upon legal factors but probable standard of cause. acting procedure
A under the set forth 968.02(3), simply prosecutor Stats., becomes only substantially and not encroaches on the execu- stage proceeding function, tive at but this of the entirely ousts the executive officer from his constitu- tional duties. republican government Under our form of —de- (sec. powers government separation
fined as a Stats.), imposed upon judicia- 15.001, the function ry the statute one that without perform. Accordingly, hearing could scheduled only complaint by judicial result in a issued officer proceeding to do who is not authorized so. The would grant Accordingly, petition be void. we the circuit relators and direct that court for Milwau- prohibited conducting county kee from further *19 proceedings captioned in the matter In re Petition of K.M., Criminal Division Cáse L 002-C. that,
It should be noted because find we that sec. 968.02(3), contemplate Stats., does not or countenance prosecutor’s charging discretion, a review of the we do constitutionality not consider of a statute that provide might for such a review. Nor do we in this opinion position have occasion to take a on the prosecutors establishing desirability guide- internal prosecutorial lines for the exercise of discretion. We reiterate, however, the reference to the A.B.A. Stan- Relating dards Criminal Justice to the Prosecution for appears Karpinski Function, 3.9, Standard in v. supra, State, 92 Wis. 2d at and the articles cited in Karpinski explanatory as of the methods and the need "encouraging prosecutorial for flexibility discretion to achieve sensitivity and the need for circum- scribing prosecutorial arbitrary, discretion to avoid discriminatory oppressive p. Karpinski, or results.” 608. charging prosecutor is,
The discretion of a how- although only ever, not limits. It is without tested — sufficiency by judge upon evidence, to the holding preliminary by require- of a examination — judge probable ment that the find cause before bind- 970.03(7)-(10), ing See, a defendant over for trial. sec. probable Stats. Absent evidence of cause to believe by defendant, that a crime was committed discharged. must order the defendant Sec. 970.03(9). prosecutor Wisconsin, the necessi- ty people election, is answerable to the at least 4(4); every years. VI, two Wis. Art. Const. sec. sec. 17.09(3). subject Moreover, he is to recall. Wis. Const. XIII, Art. eventually prove 12. As an elected official who must good public forum,
his faith in the he subject press. scrutiny to the constant of the subject Additionally, charging direction is to the protection equal discriminatory strictures of charging to avoid discriminatory leniency. prosecutor or Also a charges his abuses discretion when he for coercive overcharges plea bargains. reasons to induce Such subject scrutiny generally conduct is of the bar specifically. and the courts The Standards for Profes- Responsibility sional can be invoked event prosecutorial misconduct. Prosecutors are held expected play standards conduct and fair of all lawyers.8 upon prosecu-
None of these efficacious checks *20 tor’s discretion amount to a direct of substitution the attorney. infringe views the of None of them separation upon powers.9 the flexible doctrine of of
8 See,
Servantez,
example,
for
State v. Ruiz and State v.
118
5,
(1984);
Wis. 2d
203 n.
347
352
Disciplinary
N.W.2d
Proceedings Against Zapf,
(1985).
126
2dWis.
9 As been of or a sharing powers, proceedings, as in such occurs a John Doe is See, 808, 825-27, acceptable. Washington, v. 83 State Wis. 2d 266 (1978). Here, above, powers 597 N.W.2d as the are not stated 968.02(3), Stats., and, Under shared. sec. executive is voided legislature, judicial power supersedes at the siren call of the the executive discretion. given any thought question
We have not extended to the impingement upon judicial required by the the function if we are 968.02(3) disgruntled hearings complainants and to hold making purpose the ab initio decisions reserved executive however, noted, It branch. should be that this court held has delegation unconstitutional a the courts of the determination of
141
meaning
968.02(3),
Because we find the
of sec.
dp
upon
explore
Stats.,
face, we
clear
its
herein
the
legislative history
Denter,
statute.
of that
State v.
121
(1984),Aparacor,
118, 123, 357
Wis. 2d
N.W.2d
Inc.
Dept.,
399, 403,
2d
v. I.L.H.R.
Wis.
N.W.2d
(1980).
general
interpret
would
The
permit
statutory language,
judge may
filing
"the
complaint,”
imply,
mean,
at
of a
or
least to
prosecutor’s
there shall be a review of the
discretion.
very
The
general’s argument
best
can be said for
language,
that,
under
although
judge
probable
should conclude there is
judge
cause,
has discretion not
to issue the
complaint.
undoubtedly true,
This is
but irrelevant.
question
The
is not whether
exercises
issuing
complaint.
question
discretion
posed by
attorney general
prosecutorial
is whether
being
judge may
discretion is
reviewed. Whether the
nothing
exercise his discretion has
to do with what the
general
important
considers
review of
—the
prosecutor’s discretionary
the
phrase,
decision. Whether the
judge may permit
filing
"the
of a com-
plaint,”
finding
probable
means that a
cause
judge permits
complaint
obligates
him to file a
him
meanings imply
so,
to do
both
decision,
an ab initio
is therein that
the vice of the statute lies.
any way
Because the
statute
material
to this
controversy
unambiguous,
we do no more than to
*21
apparent
read the statute and examine its
and clear
that,
policy
doctrine,
separation-of-powers
matters
under
ought
See,
legislature.
City
to be reserved for the
In re
Fond du
Lac,
323,
(1969). See, also,
42 Wis. 2d
225
N.W.2d
Illinois v.
(1986).
Joseph, 113 Ill. 2d
Because the without authorizes complete usurpation impor- or substitution of an judiciary, tant executive function the statute is beyond grant unconstitutional a reasonable doubt. We prohibition the writ of and direct that the circuit court prohibited county conducting for Milwaukee from proceedings further in the matter.
By granted. the Court.—Writ {concurring). ABRAHAMSON, SHIRLEY S. J. attorney juncture The district functions at the government. three branches of Listed in the adminis- trative article of Constitution, the Wisconsin quasi-executive, quasi-legis- exercises quasi-judicial powers through lative and enforcement policies.1 practice attorney’s ability In the district majority
1 The relies on the state’s concession that the district government is an officer of the executive branch of and also concludes that is "an executive branch officer," majority opinion 123,124, pages "performs at a function Majority opinion of the executive page branch." at 125. The district attorney, attorney general, as well as the is mentioned in the article (article VI) entitled Administrative of the Wisconsin constitution. Only (article the Governor is included within the Executive article V). Professor attorney general Christenson concludes that occupies unique position: part he or she is not a of either the legislative Christenson, executive or the Attorney branch. The State General, L.Wis. Rev. 300. For further discussions of the Attorney office, Christenson, History General's see A Look at the Attorney Wisconsin, 1043; General in 1970 Wis. L. Rev. Office of Alstyne Roberts, Attorney Van & The Powers General in Wisconsin, 1974 Wis. L. Rev. 721. *22 prosecute significant power,
decline to is a resembling statutes, at legislature’s power repeal times to acquit governor’s and the judiciary’s power to pardon.2 majority’s assertions to the contrary pursue of I shall not the issue whether the district performs an executive branch officer or executive branch func- significance compare of tions or such determinations. Nor do I attorney. the offices of district and United States These my issues are not relevant concurrence. discretion, prosecutorial see, Davis, e.g.,
2 For discussions of (1969); Goldstein, Discretionary Judiciary: Justice The Passive Miller, (1981); Guilty Prosecutorial Discretion Plea Prose (1969); Charge Suspect cution: The Decision with Crime College Attorneys, Discretionary Authority National of District of (J.J. ed., Douglass 1977); Abrams, the Prosecutor Prosecutorial (S.H. Discretion, Ency. 3 of Crime and Justice 1271 Kadish ed. 1983); Baker, Prosecution, The Prosecutor —Initiation 23 J. of (1932-33); Skillern, Criminology Crim. & Bubany L. 770 & Taming Dragon: An Administrative Law Prosecutorial Decision for 473,480-81 Cox, (1976); 13 Am. Crim. L. Rev. Making, Prosecutori (1976); Overview, 13 Am. Crim. L. Rev. 383 al Discretion: An Ferguson, Policy: Anatomy Formulation An of Enforcement of Rutg. Accusation, 11 L. Rev. 507 Prosecutor’s Discretion Prior to (1957);LaFave, States, The Prosecutor’s Discretion in the United 18 Sunstein, Comp. (1970); Am. J. 532 L. Reviewing Agency Inaction (1985); 52 U. L. Chaney, Vorenberg, Chi. Rev. 653 Heckler v. after Power, 94 Harv. L. Rev. 1521 Decent Restraint Prosecutorial Note, (1981); Remedy Private A Attorneys’ Prosecution: District Note, Inaction, (1955); 65 Yale L.J. 209 Unwarranted The Use of Discretion, 13 Am. Crim. L. Mandamus to Control Prosecutorial Note, (1976); Rev. 563 Judicial Review Administrative Inaction, (1983); Note, 83 Colum. L. Rev. 627 Reviewability Prosecute, 75 Colum. L. Rev. Prosecutorial Discretion: Failure (1975); Note, Discretion, 103 U. L. Pa. Rev. Prosecutor’s (1955); Note, Prosecutorial Discretion in the Initiation (1969). 42 S. Cal. L. Complaints, Rev. Criminal see, For discussions of the Wisconsin district e.g., Brown, (2d Attorney The Wisconsin District and the Criminal Case 129,130, opinion pages at notwithstanding, majority *23 in and substantial interest public legitimate has a charge, implicating decision not to prosecutor’s executive, of an often does such broad concerns nature. legislative and judicial (3) I sec. 968.02 agree majority with the circuit court to decide de novo whether a enables delegation complaint should be filed and is invalid as a power to the discretionary of unlimited "executive” I opinion I do not because join majority judiciary. agree majority’s sweeping generaliza- do not with the of and the powers tions about the ignores the legislature. majority opinion history The attorney’s powers the Wisconsin district to file of complaints reading and is based on a strained Wisconsin cases. 968.02, case, at issue in this
Sec. statute legislative give weight a intent to to the views evinces charging and the victim in the prosecutor of both the the roles of legislature’s decision. The concern with charging victim in the prosecutor and the both with the of the role of the history decision accords Wisconsin, important to history district attorney 1977); Miller, Charge Suspect to ed. Prosecution: The Decision 82-5, (1969); Leg. Council Res. Bull. with a Crime ch. Wis. Attorney Comparison and Wisconsin District State of Office (1982); Note, Statutory Systems Discretion Prosecutorial Wisconsin, Attorney L. 170. Wis. Rev. District Apparently, attorneys in several Wisconsin counties guidelines procedures promulgated have themselves written and relating charging legislative study in 1982 A council to decisions. counties, including exist in seven states that such standards 83-1, Council, Leg. Staff Bull. District Milwaukee. Wis. Profile of Attorney Summary Responses A to 1982 in Wisconsin: Offices Questionnaire, p. Table 18. an understanding of the constitutional issues of dele- gation separation powers. century are lawyers
Twentieth accustomed victim, public prosecution, historically but not the state, prosecutor. In post-Coloni- was the Colonial and America, began al the state prosecuto- take over the Apparently rial function.3 over the years the Wiscon- legislature has sin increased the of the district attorney to initiate criminal proceedings. See Justice dissenting opinion Indeed, Steinmetz’s passim. accord- ing legislative 968.02, of sec. history this legislature’s statute embodies the intent increase role attorney’s in the decision to initiate prosecution.4 Apparently the 1969 legislature recog- *24 prosecutorial nized that sound in judgment charg- the ing improve decision could the administration justice. placing the By prosecutorial in the of a public hands official responsible as much the to public in general as to victim, the individual legislature hoped promote the impartial adminis- private prosecution history prosecutor’s 3 On and a office, see, Goldstein, e.g., History Prosecution: Public Prosecutor, (S.H. Ency. in 3 of Crime and Justice 1286 ed. Kadish 1983); Cardenas, Process, The Crime Victim in the Prosecutorial (1986); Harv. J. Law and Alstyne, Pub. Pol. Van The District Attorney Puzzle, 125; Note, Historical L.Wis. Rev. Private —A Remedy Attorneys’ A Prosecution: District Unwarranted Inac tion, (1955). 65 Yale L.J. 209 Commentary 4The to sec. 968.02 states: change present designed give "This is a from the law greater initiating voice in the of criminal proceedings. obligation conducting prosecu- Since his is the tion it is screening believed that he should have a voice in out complaints determining of unfounded and if there was suffi- prosecution.” L.1969, cient evidence to warrant See c. Comments — 968.02, Note to sec. West’s Wis. Stats. Annot. justice overreaching tration of free of the and over- might prosecution zealousness that result if were left private solely aggrieved to the individuals. The discre- charge may prosecutor tion whether to enable the mitigate law, the harshness the criminal individual- justice, deploy pattern ize scarce resources in a best combatting greatest suited to threats community, dispositions resort to alternative suspect, protect better serve the victim and the the victim from the ordeal of a trial if the victim protection, procure potential desires such help prosecution defendant’s of a more serious offender. legislature recognized
Nevertheless, the 1969 also legitimate public interest the victim and the have prosecution. Along increasing in attorney’s with the district
powers, legislature adopted the 1969 (3), 968.02 which was based on sec. 6.02 of the ALI (Tent. Pre-Arraignments Model Code of Procedure 1,1966), provide prosecutor’s Draft # check on the complaints.5 legislature’s decision not to issue 968.02(3) Commentary 5 The to sec. states: (3) provides upon “Sub. a check who complaint, fails to authorize the issuance of a when one should issued, by providing have been for a to authorize its issuance. (3) provides "Sub. also a vehicle for the issuance of com- *25 plaints attorney when the district is unavailable.” Comments —L. 1969, 968.02, c. Note to sec. West’s Wis. Stats. Annot. gave Sec. 6.02 of the Model Code the state law enforcement independent power complaints gave officer to issue and the permit filing complaint giving the of a after the attorney hearing. a discourages private
While the American Bar Association prosecution, acknowledges legitimate that the victim has a encouragement claim to be ABA of heard. The states that its 147 public concern for the victim and the and its concern checking prosecutorial discretion are demon- strated in numerous other statutes that prosecu- allow other than the by persons tion district attorney.6 public prosecution discourage adoption was "not intended to of complainant system prosecution a under which a move for magistrate prosecutor prosecute.” a when before a has declined to Justice, Function, A.B.A. Standards for Criminal The Prosecution 1980). (2d Commentary to 3-2.1 ed. Standard see, justice system, For e.g., the victim and the criminal chs. Goldstein, 1985-86; Defining 949 and Stats. Role Prosecution, (1982); Victim in Criminal 52 Miss. L.J. 515 McDon- ald, Towards a Bicentennial Revolution in Criminal Justice: The Victim, (1976);Symposium, 13 Return Am. Crim. L. Rev. 649 (1984). Rights, Pepperdine Victims’ 11 L. Rev. 1 legislature concern, expressed 6The Wisconsin has its statutes, government numerous that a official other than attorney proceeding be available initiate a if the district attorney act refuses or fails to or is unavailable act. The legislature has established several models for review a district attorney’s prosecute. decision not to (3), 1985-86, 968.02, patterned Sec. 23.65 Stats. after sec. permits complaint a circuit court to a file if the district complaint probable refuses or is unavailable to a issue and there person charged cause to believe has a committed violation (forest (conservation), lands), (parks), (public chs. 23 26 27 28 (fish forests), game), (navigable waters, and harbors and (dams (snowmobiles). navigation), bridges) and 350 This apparently constitutionality decision casts doubt on of sec. (3). 23.65 59.44, 1985-86, appoint Sec. Stats. allows the circuit court to special prosecutor complaint specified to initiate under circum- stances not involved in this case. (2), 1985-86, Sec. approach. 979.04 Stats takes another It
provides
inquest,
the district
an
refuses to order
court, upon petition
examiner,
circuit
of a coroner or medical
may issue the order if it
finds
has abused
ordering
his or her
inquest.
discretion in
an
*26
I agree with
(3)
the
that
in
majority
sec. 968.02
legislature
the
has failed to
within
keep
constitutional
bounds
in attempting
to reconcile
its
for
concern
giving the victim
public
and the
in
voice
initiating
prosecution with its concern
entrusting
initiation
prosecution
to the district attorney. The majority
opinion
968.02(3)
could
say
be read to
that
fails
because it divests the district
of some kind of
attorney
inherent
powers.
disagree
executive
I
with such a
reading.
position
This court has
that
stated
"the
attorney,
constitutional,
not
though
was
one
powers,
specific
inherent
but was answerable to
direc-
State ex. rel
v.
Kurkierewicz
legislature."
tions of
Cannon,
368, 380,
(1969).
42 Wis. 2d
Some statutes authorize citizens actions themselves. open meeting provides statute if the district refuses or otherwise fails commence an action to enforce open meeting days receiving law within after a verified complaint, person making complaint bring may an action on his or her relation the name and on behalf of the state prevails. receive reasonable he or fees she Sec. (4), 19.97 Stats. 1985-86. *27 may be attorney's powers enforcement the district over legislature's definition the only through exercised opinion Majority at in "minor matters.” other crimes or 131.
In opinion the majority’s description of Coubal my significance slides the over of the holding of the case. Coubal court held that legislature the could general, authorize the attorney an officer over whose powers, compensation duties and legislature the has express VI, constitutional authority, art. to require the district to attorney proceed in certain despite cases the district attorney’s desire not If proceed. legislature the may subject the district attorney the orders of the attorney general, the legislature should be prescribe able to the duties of the district in attorney ways other than by defining crimes. Majority opinion at pages 131-134.7
While our recognized cases have both the legisla- power ture’s to direct the district attorney and the district attorney’s broad discretion under existing slip opinion page asserts, majority at At "There is no any assertion in Coubal that usurped by executive function was upon another branch or that there powers was an encroachment protected by separation-of-powers majority doctrine.” The ignores the fact that the trial court in Coubal "held that inherent, possesses district quasi-judicial power which precludes legislature requiring proceed from that he in a particular contrary might Coubal, case to what he think best.” atWis. 256-57. emphatically rejected The Coubal court any such notion either of attorney’s powers the breadth ofor legislature’s powers, the limits on the saying, "We think it would great surprise profession come as legal of the state were possesses the court to hold ... that the inherent quasi judicial powers preclude constitutional legislature which requiring proceed particular from that he in contrary case might he what think best.” Id. at 259. prosecuting offenders, in statutes our cases have not directly question dealt with the difficult of the con- separation powers straints that doctrine impose legislature’s powers on the to direct enforcing the law. Such con- any, yet straints, they tested, have not been nor are merely tested this case. This decision holds that the separation powers legislature doctrine bars the delegating judiciary virtually from unlimited discretionary "executive” to initiate criminal proceedings. *28 legislature,
In effect this decision remands to the 13.93(2)(d), 1985-86, Stats. the decision whether to provide forum, a and if forum, so what kind of prosecutor’s charge person which the decision not to a suspected having of committed a crime be chal- lenged and overturned.8 forth,
For the reasons set I concur. (dissenting). question STEINMETZ, J. I do not integrity, ability, intelligence professional judg- or Attorney ment of District E. Michael McCann or the county attorneys However, Milwaukee office. qualities specific the fine of a or his justify nullifying being office do not a law as unconsti- independent tutional that would allow an review of Judge the decisions of such an Since office. Arlene yet finding, Connors has not made a no one could Gordon, In Dept. v. Revenue Wis. 2d 377 N.W.2d of (Ct. 1985), App. appeals judge’s the court of held that a refusal 968.02(3), Stats., complaint to allow issuance of under sec. was an unreviewable decision and called this to the attention of the legislature deficiency as a in the statute. stage at proceedings Judge
know this Connors finding would make a of probable cause and order the complaint issuance of a and that is irrelevant issue constitutionality.
After investigation, his District McCann Attorney issued a probable statement cause existed but prove there not enough was evidence a beyond reasonable doubt the individuals involved com- McCann, a Attorney therefore, mitted crime. District declined to prosecute the individuals. Whatever his declining, I acknowledge reasons that these actions well prosecutorial were within his discretion. However, actions, District Attorney McCann’s evidence, sufficiency of the Judge how Connors is to rule not likely are issues this case. The sole issue 968.02(3), Stats., whether sec. simply is constitution- al. 968.02(3), Stats.,
The majority believes that sec. usurpation discretionary executive because it replaces a judicial with decision not based on prosecutorial factors discretionary personnel used but a legal probable on standard of cause. Majority opinion at page 139.1 disagree. 968.02(3) Section states the judge permit "may” filing complaint but require a filing probable does on a finding of cause. *29 968.02(3), The majority decision states Stats., is unconstitutional beyond a reasonable doubt. I am not convinced by arguments majority’s this arduous burden has been met. Will the district attorney now only be reviewed by judge a and jury bring charges, when he does but there will be no charges review when not brought? are The "review” by cited in majority preliminary a examination occur prosecutor would after a charge; filed this prosecutorial would involve no check on discretion to charge. majority not The other "checks” the *30 either the assault cases involve identification of the the of assailant or consent the victim. Both situations credibility around the revolve the victim and the "Credibility” quantity prosecutor accused. is a a that pressed say always be would hard would convince a "beyond jury a reasonable doubt” a that crime had continually been committed.1 Yet sexual assaults are being charged. necessity prosecutor Either the that a prove "beyond believes he can a crime was committed charging a reasonable doubt” before ais convenient legal prosecutors charging selective fiction or are lofty policy violation of these standards. That can apply justice unevenly discriminatorily, and since the prosecutor jury. takes the role majority part finds with fault of sec. 968.02(3), permits Stats., that to act to issue Attorney declining
1 District
McCann’s reasons for
to file
charges
Court,
were
forth in
Newspapers
set
State ex rel.
v. Circuit
499, 502,
(1985).
part,
124 Wis. 2d
that a will find men not would not be in the justice.... presented interests of be evidence would [0]n jury, jury beyond we will not able to convince a a ” added.) given.’ (Emphasis reasonable doubt consent was not reading A careful of the A.B.A. Standards Criminal for Relating Function, 3-3.9, Justice the Prosecution Standard 140), opinion page (majority at majority endorses which provides prosecutor charges should not file "in the conviction,” support absence sufficient admissible evidence to a prosecutor when has reasonable doubt that the accused is guilty. Attorney gave From the reasons District McCann prosecuting, appears apply he did not these standards. District Attorney only prosecute McCann would jury he was sure the verdict, guilty urge prosecution would return a but the standards when, verdict, assuming guilty support will evidence verdict. *31 complaint
a
when the district attorney is not avail-
able. It
the judge
finds
has plenary power under
sec. 59.44 to
an
appoint
acting district
attorney
consider
complaint. However,
the issuance of a
59.44 has its basis for authority when there is no
district
for the
county, or the district attor-
county,
is absent from the
or has a
ney
relationship to
accused,
serving
or is
in the armed forces of the
States,
if the
United
or
district attorney himself
is
charged. The court
finds
the problem with sec.
968.02(3)
to be a direct
substitution
of a judge’s
for
decision
the action of a duly appointed or elected
However,
prosecutor.
ignores
court
the fact that
some district
in
attorneys
this state are not full-time
officeholders and their salaries are commensurate
such offices. Section 59.48 states: "It is unlawful
any district
of
any
having
county
popula-
a
40,000
tion of
or more to hold the office of or act as city
in
any
city
county of which he is
district
...”
attorney.
practice
No other
prohibited.
is
That
is the real world in Wisconsin outside of heavily
populated
counties
recognized
where
it
is
attorneys may not be full-time officeholders. E.g.,
State v. Hanson,
136 Wis. 2d
Section
proper,
is a
realistic
help
enactment
move criminal cases through the
court system
being
without
a challenge
usurpa-
or
tion of district
attorneys’
prosecutorial
discretion.
968.02(3),
Under sec.
a
can
act
to review
directly
a complaint. Without
this
in
authority,
the absence of
might
attorney,
policy
required
be
suspect
hold a
until
the elected
appointed
attorney becomes available or
process
appoint-
ment of
substitute
If
accomplished.
that were to
happen,
the claim would
complaint
was not
in a reasonable
of time.
period
issued
This court
found
blending
powers
"a
or a
sharing
powers,
such as
occurs
a John Doe
See State v.
proceeding,
acceptable.
Washington,
808, 825-27,
(1978).”
2dWis.
"To the extent the statute be viewed as judicial granting quasi-executive both powers and judge, John Doe we believe witnesses persons protected and accused can be by appellate proceedings of court review John Doe and of the court which an outgrowth orders are of those added.) proceedings.” (Emphasis Regarding the of principle separation of powers, Washington court added: separation "The of powers doctrine of must general principle viewed as a applied to be maintain the balance between the three branches government, preserve respective of their inde- pendence integrity, prevent and and to concentra- tion power unchecked in the any hands one of of ” added.) (Emphasis branch. Id. at 825-26. attempting distinguish In proceed- John Doe ings 968.02(3), Stats., from sec. the majority goes on to "Here, above, say: as stated the powers are not shared. 968.02(3), Under sec. and, executive power is voided at the siren call legislature, of the judicial power super- sedes executive opinion discretion.” Slip page at 26, n. ignores 9. This State ex rel. underlying facts Jackson v. 18 Wis. 2d Coffey, N.W.2d 939 (1963). In the court upheld the Coffey, Depart- Justice ment’s assistance then circuit court John Judge conducting proceeding. Coffey in a John Doe The John investigating proceeding was the conduct and Doe Department Police interaction of the Milwaukee and County Attorneys Milwaukee District office. The Coffey that the facts of equal show John Doe statute had an "usurping” probability attorney’s prosecutorial executive discretion. statute, 968.26, Stats., Doe sec. John states part: judge may proceed "The extent to which the such examination is within his discretion.” That language does not foreclose an examination before the possibly himself, tribunal district against greater his will. What intrusion into the attorney’s executive discretion could there be involuntary than an examination of the attor- ney? interpreted applied However, this court sec. majority 968.26. It is interpret inconceivable would 968.02(3) to be unconstitutional as a prosecutorial usurpation authority. The treatment of the two statutes is inconsistent and demonstrates 968.02(3) beyond that sec. is not unconstitutional *33 majority reasonable doubt. The has not followed its repeated by so often this court: own standard a statute possible if should be saved at all and the court should apply reasoning preserve seek out and an act of the legislature. majority partly 15.001, Stats., on sec. relies separation powers authority; however,
for of its concept states: "It of American section is traditional government the 3 are to function branches intermingling except separately, authority, without of specifically provided by This is not a law.” constitu- opinion provides majority’s tional basis for the legislature provide by within the section that the 157 law for the intermingling within authority three branches. Quinn v. Town As we stated in Dodgeville, 122 577, 570, (1985):
2dWis.
149
N.W.2d
"It
is well settled that
the law in this
state
presumes
legislative
constitutional,
all
acts are
petitioner
and the
prevail
in order to
prove
must
opposite
by a
beyond
standard
a reasonable
ex
Foley,
State
rel. McCormack v.
doubt.
18 Wis. 2d
174, 279, 118
(1962).
N.W.2d 211
It is insufficient
merely establish doubt as to an act’s constitutional
ity nor
is
sufficient
to establish
the act
probably
unconstitutional.
This
indulges
court
every presumption and will sustain the
law at all
possible. If any doubt exists as to a law’s unconsti
tutionality,
it will be resolved in favor of its
validity. State ex rel.
Paper
Hammermill
Co. v. La
Plante,
32, 46,
58 Wis. 2d
(1973);
N.W.2d 784
and,
If
any
there
reasonable basis
legislative
exercise of
power,
we
obliged
are
uphold the enactment.’ Watchmaking Examining
Husar,
Bd. v.
526, 531,
49 Wis. 2d
In State ex rel. Deisinger v.
Treffert, Wis. 2d
257, 267-68,
(1978)
scribed the constitutionality aof statute as follows: 971.14(5)
"However,
not
we do
find sec.
unconstitu
obligated
tional.
uphold
This court
the consti
possible
tutionality
statute
whenever
and in
past
supplied statutory
has
deficiencies by
court rule in
to save
a statute. State ex rel.
order
Chobot v.
County,
Circuit Court Milwaukee
(1973).
354, 367, 212
Wis. 2d
Huebner v.
N.W.2d 690
State,
(1967).”
33 Wis. 2d
Not only does search for majority reasons to find the challenged sections of the statute unconstitu- tional, it refuses to sever the balance. The majority opinion states: this "Is clearly por- unconstitutional tion of the statute severable from the balance? We not, conclude for the entire contemplates statute dea novo determination the judge. The statute does permit authorize or a review function.” Majority at the statute opinion page disagree 136.1 contem- only determination, therefore, de plates novo should statute be severed.
If judge procedure follows the statutory in the absence the district it is attorney, de novo action. However, if the district refuses to issue complaint, then the judge’s consideration of the cir- cumstances is a review of attorney’s determination. The review is whether a complaint have should been issued and whether was It correct. does not matter whether judge considers the identical or additional evidence places weight whether a different on same evidence. The additional evidence would obvi- ously have been attorney. available *35 Such a decision is not de novo.2 It a review of the complaint same issue: should a be issued? Although the majority the denies statute con- templates prosecutor’s "review discretion” and issue, asserts the court will not rule on that it states at 139 of slip similar, opinion: "A and even a more egregious, affront principles separation powers occurs the judge when can override and set at naught the district attorney’s declina- discretionary prosecute.” disclaimer, tion to In spite of the the court with this statement on certainly rules review authori- ty which the majority present does not even find the statute. The statement is not necessary, volun- teered and is incorrect.
Even if majority part fails, finds of the statute it does not the rules of apply severability previously determined this court. Since the statute contemp- circumstances, is, lates two different a judge acting in the absence of a district attorney and a judge reviewing the discretion of a district attorney, the de novo section can be severed from the review section. Noll, Briggs
State ex rel. & Stratton v. 100 Wis. 2d 650, 659, (1981), N.W.2d states the law for determining whether statute should be severed:
"'A part statute be unconstitutional yet part omitted, with offending sustained paramount intent or purpose chief will not be destroyed thereby, legislative purpose substantially impaired, affected or if the stat- [or] capáble ute is still fulfilling apparent legislative 93(a) ...”’ 82 intent. C.J.S. Statutes (1953).
2De novo meaning "anew; afresh.” Dictionary. Black’s Law adopted
"This court has
this rule. In Bence v.
Milwaukee,
224, 233,
84 Wis. 2d
"'There is
permit
a court
legislative
sever
from an ordinance or
enact-
portion
ment
of an act which is unconstitu-
tional and to declare that
the remaining portion is
*36
matter,
general
valid. As a
the determination
of
portion
whether an invalid
so infects the remain-
legislation
require
der of the
as to
the entire law to
question
legislative
invalidated
is a
intent.
Nickel,
City
Madison v.
66 Wis. 2d
(1974);
State ex rel.
N.W.2d 865
County
Milwaukee
Boos,
v.
(1959).’”
8 Wis. 2d
196 N.W. 213
the court discussed the attorney’s authority
choosing complaint
in terms of
variously
statutory
between
available
offenses and
citing
opinion
stated,
Justice Marshall’s
in Loose v.
(1903):
State,
115, 130,
120 Wis.
Also in
the court stated:
public prosecutor
"'A
gwasi-judicial
is a
offi-
cer,
public
retained
prosecution
for the
persons
crime,
accused of
in the exercise of a sound
*37
discretion
distinguish
to
between the guilty and
innocent,
between the certainly and the doubt-
fully guilty.’ Wight
v. Rindskopf,
354;
43 Wis.
Ekern,
Rock v.
291, 294,
162 Wis.
The fails to between the attorney constitutional role of the district and the attorney given "traditional” role the has been legislature both the and this court. Whatever power attorney the district has can come from three precedence: sources, in order of constitution, their legislature Previously, and this court. this court only has considered cases where there was a conflict power gave between either the level of this court attorney previous the district in a case and a con- proposed by appellant, straint or a constraint proposed powers given by that would violate legislature. case, however, The current is the first time court has considered a conflict between a legislative power clear mandate and whatever was given constitutionally attorney. to the district legislative While the clear, mandate is what power given attorney by is the district the constitu- majority tion is not. The finds the source of the district attorney’s power discretionary in the constitution because it insists is he member the executive However, V, branch. under Article sec. entitled duty ... "Executive Powers and Duties” the to "take faithfully belongs care that the laws be executed” governor. only attorney, mention as well general, attorney as the VI, occurs in Article entitled powers, "Administrative.” Section 3 states: "The du- attorney ties and comensation the treasurer and general prescribed by shall be law.” The district attorney VI, mentioned twice Article 4: in regard two-year to his term and that vacancies of attorneys by appointment. are be filled principles
Two can be drawn from this section. accepted commonly all, First of it is that the district general analogous and the fulfill county legisla- roles on the and state levels. Since the powers ture defines the and duties of the general legislative require judicial and could either power, review of his limit decisions or his say legislature ludicrous to has no powers under the constitution to define the of *38 attorney, VI, district an unnamed office Article sec. 4.
163 accept attorney majority the the cannot If attorney, generis general as a it the district same sui accept the fact the authors the also must powers the the described constitution (as emanating legislature) general and from the did powers of the within the district not describe statutory principle expressio section. The the same apply. should In fact alterius the unius est exclusio attorney’s powers were not mentioned and powers attorney were the of the district not therefore granted by constitution, the but are to be conferred through legislature. limited the and by supported by the cited the This is cases Legislative majority. the enactments been touch- have rights the of what and stone of determination duties These between the district has. were conflicts legislature the if the court court and determine powers right to interfere with conferred on had legislature. attorney by the legislature regulat- merely Here, however, ing power initially conferred attorney by it metes out the statute as county VI, in Article other officers are described 4. by stated 27 C.J.S. sec. District As (as Prosecuting Attorneys cited ex rel. Kurk State Cannon, 368, 379, 2d ierewicz v. Wis. N.W.2d (1969)):` prosecuting attorney "If the official duties of a constitution, prescribed by they are cannot be Where, increased or diminished how- statute. ever, prescribe duties constitution does prosecuting legisla-:.. attorney, of the district or duties, regulate performance ture of such *39 statute, by they if and fixed or may increased diminished pleasure legislature. at the of the .. To what the determine authors of our constitution thought powers were, of the district useful to determine if the district attorney’s prosecuto- rial discretion was ever limited mandated by when passed.3 statute the constitution was Since the office of district was never discussed during conventions, the constitutional such an analysis only way prosecutorial to determine autocracy solely vested in the district was contemplated by authors. 1849,
In 145, the statutes of ch. provides: apprehension "SECTION 1. For the per- charged offences, sons with judges of the record, several courts of in vacation in as well as time, term justices and all peace of the are process carry authorized to issue into effect the provisions of this statute. previously analysis 3 "We have articulated the which a court employ interpreting provisions should in of the Wisconsin Consti Smith, 550, 568, (1976); tution. Buse v. Wis. 74 2d 247 141 N.W.2d Sinclair, 179,
Board
Education v.
65 Wis. 2d
222
143
N.W.2d
(1974). We have said that
the court will examine:
"'(1)
plain meaning
used;
The
in
words
the context
"'(2)
analysis
historical
the constitutional debates
practices
1848,
and of what
were in
existence
which the court
presume
reasonably
were also known to the framers of the
constitution,
(1930)
1848
see State ex rel. Zimmerman v. Dammann
84, 88, 89,
593;
201 Wis.
228 N.W.
and
ex
State
rel. Comstock [v.
District,
(1886)];
Joint School
65 Wis.
829
N.W.
"'(3)
interpretation
The earliest
this
section
legislature
passed following
manifested
the first
law
adoption
Payne
(1935),
of the constitution.
v. Racine
217 Wis.
Smith,
550, 568,
"SECTION 7. cases, may, in all issue prosecuting officers other appear testify and on subpoenas for witnesses state; subpoenas, under the and the behalf of the force, officer, and shall have the same hand of such manner and under the same obeyed the same be default, by as if issued penalties in case clerk.” the time the constitu- show that at
These statutes magis- shortly very thereafter the or tion was ratified complaint person and to draft trate was "prosecution.” 16 and 18 deal with Sections initiate a magistrate the duties of the when he has heard the evidence: 16. If it appear shall
“SECTION magistrate upon the whole examination that no committed, offence has been that there is not probable charging prisoner for cause with the offence, discharged.” he be shall appear
"SECTION 18. If it shall an committed, has offence been and there probable prisoner cause believe the guilty, if the offence be by magistrate, bailable and the bail, prisoner offer sufficient it shall be taken and prisoner discharged; but no sufficient bail be offered, or the offence bailable magistrate, prisoner shall be committed trial.”
It clear then that prisoner gone would have through equivalent arrest, jail, hearing bond *41 arraignment and without or constitution- statutorily ally required involvement or of exercise discretion by Indeed, the district attorney. period statutes of the of the constitution make it unclear when the district will in attorney get involved process. the criminal These were changed statutes not until 1889 when the entire statutes were revised. Section 4653 then described the duties of the district attorney:
"Duty attorney offenses; of district as to to if report to court he does not file informa- tion. SECTION 4653. The proper county inquire shall into and make full examination all facts and circumstances con- any nected with case of preliminary examination law, provided touching any the commission of offense whereon offender have shall been jail, recognized committed to or become or held bail, setting forth the an information and to file committed, according the facts ascer- crime and from the written on such examination tained thereon, it be the offense testimony taken whether charged complaint on which the examina- in the not; but the district had or tion was if any in such case that an shall determine informa- make, subscribe ought filed, tion not to be he shall in and with the clerk the court statement file law, and in writing, containing his reasons in fact case; such filing not an in such information shall be filed at or before the term of the statement the defendant shall be held for court at which and in such case the court or trial; appearance for statement, presiding judge shall examine such case, together with the evidence there filed if therein, upon and such exami- be evidence if filed judge presiding nation the court or shall statement, with such satisfied shall bring and proper the case file information trial; satisfactory if the said statement but presiding judge, said court or the court statement, approval upon shall indorse said approval, the defendant in said at the time such in jail case be confined under commitment for trial case, the clerk of the court shall forthwith said having upon jailer serve the sheriff or such defend- in custody ant his certificate under the seal of the filing that reasons for not an court effect approved by information in said case have been be; whereupon judge, court or as the case such discharge jailer sheriff or shall forthwith said *42 added.) custody.” (Emphasis defendant from in Even 1889 then the district was attorney review of his decision subject judicial some form It prosecute. is not clear these statutes whether magistrate attorney the or the district would make complaint. decision to issue history
The constitutional of the office of the attorney district it was mentioned in Article power spelled VI, sec. with no In duties out. entity grand jury constitution, the was estab- grand jury II, lished in Article sec. 8 and assent was process satisfy proceedings. needed to due for criminal The district had no discretion as to what prosecuted required causes were to be but was pursue grand jury all indictments. requirement grand jury
The constitutional for a system was eliminated amendment in 1870. How- charge persons ever, it is obvious the decision to constitutionally with criminal behavior was exclu- sively attorney. that of the If discretionary did not have this exclusive power legislature constitution, under the is free to delegate power necessary such wherever it deems "prevent power concentration of unchecked any Washington, hands of one branch.” 83 Wis. 2d at challenged judiciary 825-26. Under the statute concurrently prosecution along able to initiate with a district which reinstates the "check” lost grand system. jury with abolishment Just as grand jury system was abolished because too much power delegated judicial branch, had been so power must some of that be reinstated with the judiciary, form, in a controlled to balance the "ac- quired” power attorney. of the The district attorney’s acquired through legis- current was acquiescence lative rather than man- constitutional legislature date. The has made its will known and acquiescence. withdrawn its Since the district attor- ney never had an exclusive constitutional control over *43 legislative regarding charging decision, acts
charging cannot be a "substantial encroach- decision constitutionally delegated power. ment” on a (1877) Leicham, 565, 41 Wis. v. is State placing the another historical case attorney role of the district constitutionally in less than a autocratic government, branch officer of executive but potential recognizing having office rather "a dangerous very very discretion.” In wide Leicham, the court described the involvement of the determining magistrate in whether a criminal action brought recognize and does not will be the exclusive authority attorney of the district to make that deter- mination.
It is clear then that the historic role of the district century in 19th Wisconsin law was much less significant today. than support This is as it does not- majority the exalted constitutional flowing in finds Article VI from the mere mention of the office. Coubal,
In State v. Wis. 21 N.W.2d (1946) the court stated: quasi- "It is true is a judicial officer. This court has so held in the sense duty it is his justice to administer rather than to obtain convictions. one deny No would many performance there are in instances of his duty upon in which he be called to exercise All his duties are not ministerial. There discretion. is, however, holding no basis that his duties representing the state are not legisla- subordinate to tive direction as to the cases in which he shall added.) proceed.” (Emphasis recognized We in Coubal therefore the limitations being of the office of district subordinate to proceed, though he the cases which shall even we negative stated it in a fashion. clear, It at least in *44 case, 1946 in the Coubal that this court did not believe attorney constitutionally had unlimited authority complaints. in the issuance of How can the changed completely forty constitution be in the last years. totally
I would find the statute is constitutional; confusing opinion majority however, if the is correct judge acting about the de novo character of a attorney, absence of the district then the review portion of the statute can be severed and is constitu- ignore tional. For the court to find otherwise is to principle place stated of the statute and unchecked attorney’s regard in the district office in prosecutorial decision-making.
I am authorized to state that Mr. JUSTICE joins dissenting opinion. B. DAY ROLAND in this notes (including two-year summary by terms, removal governor, press scrutiny, recall, and the Standards of Codes) Responsibility nothing Professional have to do attorney’s charge with the district decision to or not to charge particular person particular a with a crime. pattern All would tend to be if invoked there were a questionable unlikely conduct that was but to be specific invoked in a instance. These methods would upon prosecutor’s not be "efficacious checks 140) (majority opinion they page discretion" at are bringing in ineffective limiting about the intended result: prosecutor’s best, discretion. At these are particular apply generally limitations in cases but attorney. the conduct or decisions of a district The "checks” are or little no solace to the victim protec- vindication, of criminal actions who desires punishment, only tion, or retribution. For the victim opportunity by jury heard or who judgment guilty guilty make a or not will allow legal process provides. Although what little solace the encourages the law victims come forward and report assault, such acts as sexual if this statute is they down, struck victims will know that the chance coming report take forward to the crime be a could pointless solely single risk, due to the discretion of a person, Allowing attorney. a review of decision, affirmed, such a even the decision is judiciary promotes legal member system. trust Is there a district who would claim he charges probable never issues on the basis of cause proof beyond than rather any a reasonable doubt? Would taking attorney deny ever the attitude guilt? judges juries decide Sexual should