*1 Wisconsin, STATE of Plaintiff-Respondent, DEFENDANT, UNNAMED Defendant-Appellant.

Supreme Court Argued January 5, No. 87-2152-CR. Decided June 1989. 1989. (Also 696.) reported in 441 N.W.2d *3 (in defendant-appellant For the there was a brief Coffey Coffey, Coffey Dennis P. appeals) by court of Milwaukee, P. Geraghty, argument by & and oral Dennis Coffey. plaintiff-respondent argued

For the the cause was Becker, attorney David J. general, assistant with (in the brief on whom court of appeals) was Donald J. Hanaway, attorney general.

HEFFERNAN, CHIEF This per- JUSTICE. is a missive appeal of an court, order of denying the circuit a motion to dismiss a criminal complaint issued after a John Doe 968.26, proceeding under sec. Stats. The court appeals certified appeal pursuant to this court (Rule) sec. accepted 809.61. We the certification. We affirm Judge Danforth's order.

This case presents question of whether sec. 968.26, Stats.,1 the John Doe criminal proceeding provi- sion, violates the constitutional of separation doctrine powers.

This complainant case arose as alleged follows. sexually that she was county by assaulted Waukesha (hereinafter defendant) the unnamed defendant August complainant of 1985. Both the and the defendant 968.26, Stats., provides: Sec. proceeding. person complains judge John Doe If a to a that he has reason to believe that crime has been committed within his

jurisdiction, complainant shall examine the under oath and produced by may, request witnesses him and and at the shall, subpoena and examine witnesses other ascertain whether crime has been committed and whom com- judge may proceed mitted. The extent which the in such examina- may adjourned tion within his discretion. The examination may Any may be secret. witness examined under this section have present counsel at examination but such counsel shall not be *4 client, argue allowed to examine his cross-examine other witnesses or judge. appears probable testimony given before the If it the from it, complaint a crime has been and committed who committed the verified; writing signed thereupon shall be reduced to and and and a 971.23, Subject warrant shall for the the issue arrest of accused. to s. proceeding testimony the record of such and the taken shall not be inspection open by anyone attorney except to the district unless it is prosecution preliminary hearing used the the or the at trial of the only accused and then is the extent that it so used. local commu- legal to members of the were well known investi- county department nity. The Waukesha sheriffs county the district and contacted gated complaint the attorney's office. attorney's county per- office

The Waukesha district problem in the matter because potential a ethical ceived complainant and knew the of the office both members Tinker, E. an assistant district the defendant. Steven county, attorney brought therefore and for Dane was county attorney for Waukesha appointed acting district investigative file of matter. Tinker reviewed the 20, 1985, September On department. sheriffs about the criminal Tinker that he would not commence decided because he did not proceedings against defendant guilt beyond able a that he be to establish believe would reasonable doubt. charges, complain-

When Tinker refused file county pursu- circuit petitioned the Waukesha court ant 968.02(3), Stats.,2 pro- initiate criminal to sec. ant county judges of the Waukesha ceedings. Because complainant personally court knew the circuit defendant, county J. of Ozaukee Judge Walter Swietlik complainant's appointed petition. to consider the February 19,1986, Judge heard on On Swietlik evidence charg- his petition and directed Tinker to reevaluate Stats., 968.02(3), provides: Section complaints. filing

Issuance and (3) attorney If a a district refuses or is unavailable to issue complaint, may permit complaint, judge filing of a if the circuit person probable to be finds there cause to believe that conducting hearing. charged offense If the has committed an after complaint, he or has refused to she shall issue a may hearing hearing ex informed of the shall be attend. parte right without of cross-examination. *5 1986, ing 5, decision. On March Tinker Judge advised that, reconsideration, Swietlik after even he would not his not file change charges. Judge decision to Swietlik county attorney, then ordered the Waukesha or designee, his file charges against to the defendant.

Judge was stayed Swietlik's order pending appeal. ex This court's decision State rel. Unnamed Petition- Connors, 118, ers 782, 136 Wis. 2d 401 N.W.2d issued 1987, 6, 968.02(3), Stats., on March declared sec. unconstitutional because it violated the of powers unduly doctrine impinging powers on the of government. 6, May the executive branch On 1987, appeals the court of issued a enjoining Judge writ from proceeding Swietlik the matter.

The complainant avoided effect the Connors by petitioning mandate on March the Wauke- county 968.26, Stats., pursuant sha circuit court for commencement a John Doe criminal proceeding. Judge Richard T. Washington county Becker of was appointed petition. Judge to consider the Becker held a hearing 6,1987. May on the matter on Part of the hear- ing the public, was closed to defendant’s attorney. portion During hearing, closed special prosecutor elicited complainant's testimony. Judge Three weeks later com- signed Becker and filed a plaint against filing the defendant.3 With the of the com- plaint, action was instant commenced. Section 968.02(2).

Judge John county Danforth Jefferson was assigned county. the matter as Waukesha Counsel for the moved have defendant the action dismissed, arguing complaint had issued been pursuant unconstitutionally to a gave statute that execu- record, however, kept appeal. pending secret *6 was on hearing A held Octo- judiciary. tive to the powers 5, By of November 16, the motion. order ber 1987 on to defendant's motion dis- 1987, Judge Danforth denied for com- holding procedure the Doe miss, that John complaint was constitutional. of a criminal mencement permission granted was to petitioned The defendant denying the motion to Judge Danforth's order appeal then certified the matter to appeals The of dismiss. court accepted and we the certification. this court heavily on case relies the The defendant proposition in State v. Connors the that opinion or in a is exclu- charge to not criminal case discretion we power. In Connors held that the executive sively an by 968.02(3), provided sec. charging procedure procedure to the Stats., procedure somewhat similar a case, an unconstitutional vio- scrutiny in this under powers. of of separation the doctrine lation of state, however, arising this case out argues that directly controlled State proceeding of a Doe John 808, (1978), Washington, N.W.2d 597 v. 83 Wis. 2d 266 John Doe does not violate holds that the statute which powers. of The state also of doctrine urges decided and us argues incorrectly that Connors was precedent. that overrule with clash are thus confronted a between We practice that has opinion of Connors and a rationale Washington. constitutionally sound been found initia- premise Connors —that We conclude exclusively is an executive prosecution tion criminal therefore over- power in erroneous. We Wisconsin —is rule established Connors and affirm precedent in this case. order of the circuit court proceeding long has a his- The John Doe criminal tory has been used proceeding in Wisconsin. The 358 courts, statute, since 1839. State ex rel. Long pursuant Keyes, 292, Washing- (1889); 75 Wis. N.W. 13 ton, 2d 83 Wis. at 819. A John proceeding requires Doe judge to assume two functions: investigation alleged and, violations of the law upon finding probable cause, prosecution. Washington initiation of at 820. The proceedings are presumptively open, John although the may in Doe the exercise of discretion close the proceeding for compelling reasons. State ex public to the Newspapers Court, rel. v. Circuit 2dWis. (1985). N.W.2d The John Doe judge's discretion guides 968.26, inquiry. extent of the Section Stats.

The constitutionality defendant's attack on the of 968.26, Stats., sec. John the Doe criminal proceeding provision, asserts procedure provided that the by the separation statute violates the doctrine powers. of of The Washington defendant argues that the opinion is limited dependence theory its on the of judge prosecutor and Connors cooperation. opinion, In argues, the defendant authority Washington court this validated the of only insofar it cooperative blending as allowed or sharing of Connors, powers. 141, n. 136 Wis. 2d at 9. The defendant opinion Washington, points out that the in 2dWis. at 823, specifically of rejects judicial the notion orchestra- tion of an investigation. Defendant contrasts the facts of Washington. this case with the justifying in rationale In case, this the John judge prosecu- Doe orchestrated the case, not, tion. In as Wash- prosecution the in ington, joint judicial executive and undertaking: the Waukesha district even was not consulted. Washington

We recognize that the con- case was primarily cerned with investigative the role of the statute, the John under Doe charging rather than the reaffirm, role. We also recognize, and in statements Washington Cannon, and State ex rel. Kurkierewicz v. 368, 166 (1969), suggest 42 Wis. 2d that N.W.2d 255 that in preferably John carried out normally Doe is cooperation attorney. As desirable as with the however, may be, such the John Doe statute cooperation attorney. participation by itself the district requires no employed powers analysis of separation We find Washington applicable also this case. opinion separation powers express of is not doctrine of The in the of the Wisconsin is "embodied clauses but rather legislative power shall providing that Constitution (art. IV, 1), assembly sec. senate and vested governor lieutenant governor in a power executive (art. 1) power the courts (art. V, sec. and the 2)." Washington, 2d 816. VII, v. 83 Wis. at State sec. provi- implicit is an powers doctrine Constitution. sion of the Wisconsin powers prevents gov- one branch Separation of powers granted other exercising from ernment Menasha, 21 Village Wis. branches. Davis Co., Chicago Wis. M. & S.P.R. (1867); Thoe v. (1923). how- governmental powers, 195 N.W. 407 Not all ever, govern- exclusively one branch of committed to are Court Constitution. Rules ment the Wisconsin *8 (1931). Case, 501, 514, Those 236 N.W. 717 204 Wis. may be exclusively not committed powers which are In Id. areas of shared by other branches. exercised however, may exercise government one branch of power, only that does on another to an extent power conferred interfere with the substantially or unduly not burden v. powers. State role and other essential branch's 31, (1982). The 44, Holmes, 2d 315 N.W.2d 703 106 Wis. between the the balance doctrine to maintain serves integ- and branches, independence preserve three their rity, prevent and the concentration of unchecked power in the hands Washington, of one branch. 83 Wis. 2d at 826. primary

This court has three interpreta- sources for of provisions tion of the Wisconsin Constitution. State Beno, 136-37, Wis. 2d 341 N.W.2d 668 (1984). We look first to language of the constitution itself. Id. Because the of powers doctrine is expressly part not Constitution, of the Wisconsin how- ever, inquiry help. little We also look to the constitutional practices debates and as well as the earliest interpretation provision as mani- fested in the adopted by first law the legislature. Id. These latter two items highly are relevant to the deter- mination of whether initiation of criminal prosecution is an exclusive executive function. point

We every out that not constitutional contro- versy by simple can be resolved reference to the intent of job framers. court's is obviously compli- more that, cated than and judicial adaptable resources more changed conditions. As Chief Justice pointed Winslow out, the state constitution was not intended to halt the race its progress: express

Where prohibition, there is no command or only general but language policy considered, or to be prevailing conditions at adoption the time of its must social, have their weight; changed due but the economic, governmental conditions and ideals of time, problems as well as the which changes produced, have logically must also enter into the con- sideration, and become influential factors the set- problems tlement construction interpretation. *9 Co., 327, 349-350, 133

Borgnis v. Falk 147 Wis. (1911). N.W. 209 however, intent, special signifi- has framers'

The dealing which was with matter cance we are when mayWe contemplated by the framers. demonstrably with, that the framers were familiar confidently presume about, question we address earnestly concerned and for initiation of crimi- proper procedure in this case: circumstance, especially per- In we find nal actions. today procedure we review the fact that the same suasive 1848, in was considered con- presumably use and was by the themselves. State stitutionally sound framers (1946). 247, 256, Coubal, 21 381 248 Wis. N.W.2d validity of this weight to the constitutional Added use and continuous procedure given long 1848, acquiescence uniform procedure since and the constitutionality. propriety The instant attack on the its prosecution comes to of initiation of criminal nearly first time after one hundred this court now value is accorded to fifty years usage. Persuasive interpretation long-standing, uniform continuous Washington, 83 Wis. 2d at provision. a constitutional 827. state4 presents disputes a historical record that Connors, Wis. 2d at that "we statement 136 By that until showing

write on a clean slate." evidence exclusively judicial an prosecution initiation on power, argument grave the state's casts doubt forty years charging Connors conclusion that later the presented The state's thesis has also been a recent law Scrutiny Becker, Judicial Attorney review article Samuel Complaint, Not File a Prosecutorial Discretion in Decision (1988). Marq. L. Rev. *10 power was, law, as a of matter exclusively constitutional within province the of the executive. argument

The authority is that to initiate a criminal proceeding historically judicial has been a func- tion. days From the of Territory the Wisconsin until 1945, only magistrates statutes allowed to issue crim- 1969, complaints. inal From to 1945 either a magistrate or a district attorney charge. Only could in 1969 did 968.02(3) give attorneys section primary district power to charge criminal offenses. The state contends that the attorney district no power had issue criminal complaints at all until 1945. provision

The for a John criminal proceeding Doe prosecution commence criminal in has been the Wis- consin statutes since territorial times. chapter Section of (1839), Territorial Statutes Wisconsin provided:

Upon complaint any magistrate made to such that a committed, criminal offense has been he shall on complainant any examine oath the and witnesses by him, produced complaint and shall reduce the writing, and shall cause the same to be subscribed complainant; if appear it shall that such committed, has justice offence been the court or shall reciting issue a warrant the substance of the accusa- . . .. tion provision

This was force 1848 when the Wisconsin adopted. Constitution was The first legislature state the provision Although reenacted in 1849.5 it has been occasionally recodified, the John proceeding Doe has remained, substantially in our unchanged, statutes over one hundred fifty years.6 aspect The salient Stat., (1849).

5 Wis. Rev. ch. sec. (1878); See Wis. Stat. sec. 4776 Wis. Stat. sec. 361.02 purpose Doe this case— proceeding for the John never prosecution initiation of criminal —has to be with the appeared considered to inconsistent powers. doctrine of statutory hand, On the provision allowing other prosecution district criminal to commence power adopted was to commence a first 1945.7 given has to both trial criminal action been statute since attorneys Wisconsin judges and 1945, however, statutory there no date. Before *11 complaint. to a for a district issue authorization 1945, Thus, of a crimi- appears8 prior filing to the it that prerog- only judicial nal was allowable as a complaint not exclusively ative, probably was a it responsibility. 968.26, statutes, presumed is like all other

Section State, 287, 297, Mack v. 93 Wis. 2d 286 constitutional.9 (1949); (1925); sec. Stat. 354.025 Wis. Stat. sec. 954.025 Wis. (1967). 7 1945, 361.02(2), 558, creating Chapter Stats. Laws of sec. 8 County Court, 550, rel. In State ex Wis. 2d 36 Pflanz (1967), 554-555, the court that: 153 N.W.2d 559 stated magistrate practice

prior 1949 . . . the was for the to examine the to charge complainant and his on oath and reduce the witnesses complaint thought probable writing there cause. in the if he also, 1, Legislative See in Wisconsin" Vol. "Law Enforcement (at 64): 1948-1951, Reports, p. states which Council additional, discretionary duty was added to office the 1945 An the attorneys complain- legislature, which to swear authorized magistrate of the issue returnable before some ants and warrants 360.02(2), 361.02(2). they required county. But are to do so. Secs. not 9 Scalia, dissenting opinion in portion of his that is Justice — Olson, —, —, majority Morrison v. U.S. disputed the in not —2597, (1988), presump- points perhaps out that the 108 S. Ct. (1980). party N.W.2d The challenging statute's constitutionality Thus, prove. has the burden to so in case, in prevail order to this prove defendant must that statute unconstitutional. Soo Line Railroad v. Department Transportation, Co. 101 Wis. 2d (1981). N.W.2d Given strong evidence of long-standing in acquiescence the constitutionality statute, of this adoption from before the of the Wisconsin Constitution today, we conclude that imper- the statute does not missibly delegate exclusive powers of the executive judiciary. branch to the The statute does not violate of separation constitutional doctrine of powers. We also that conclude there is no for uphold- basis ing the Doe proceeding John in this continuing case and precedent to assert the A stated Connors. sub silentio spring overruling would from the mandate this case. separation powers problem that was decisive distinguished Connors cannot be from powers problem case. expect Nor can we *12 opinion easily Connors will challenged directly if it is not overruled here. of sequence Because the cumbersome necessary that would be get the Connors statute directly this again, light before court in in of our decision case, appropriate that we find it to specifically overrule in opinion. Connors constitutionality any equally

tion of attaches to the conduct of party powers in only legislature, of cases. Not the but government presumed constitutionally. all of branches are to act presumption meaningful There is some doubt whether is the v. Multnomah questions See, Brown dealing when with of law. Court, County Dist. 6, 52, 56, n. n. 280 Or. 570 P.2d 6 (1977) J.). (opinion by Linde, to an con- for which we came incorrect

The reasons in justify in not the decision reached clusion Connors do however, In One, Con- is worth mention. opinion. that position the of the state that the upon nors we relied initia- attorney is an executive officer that district power, prosecution is an executive but that tion of in execu- gone too far its allocation of legislature had not authority govern- branch charging judicial to the of tive Connors, in we presented The not as ment. court was here, that of argument with the initiation have been traditionally a judicial been considered prosecution has in Connors failed to attorney general's office power: history constitutional to our bring the relevant in accepting of our Regardless wisdom attention. case, attorney general that it is concessions of the not bind cases. clear that those concessions should other already is precedential value Connors therefore State, 657, 663-64, See Wis. 2d suspect. Wilson (1978), pointed prior wherein out a N.W.2d we that upon inappropriate an concession case rested attorney general precedential significance. without (the sec.

We note that contrast 968.26 John (which 968.02(3) was the proceeding), Doe criminal sec. Connors) provides for more discretion subject 968.02(3) operative in the function. Section charging district specific circumstances: absence attorney or a refusal of to initiate after 968.02(3) Moreover, judges sec. allows prosecution. charge John greater judge Doe "shall" discretion: cause, sec. finding under upon probable whereas 968.02(3) complaint. "may permit" filing of a history inexorably leads

Wisconsin constitutional complaint in this issued the conclusion that the case was valid, result of time-honored and constitutional as a procedure. *13 968.26, Stats.,

Section does not violate the doctrine powers of of and is constitutional. The order Moreover, of the circuit court is therefore affirmed. hav- Unnamed Petitioners ing given further consideration to v. Connors in the context of this case, we overrule the precedent there established.

By the Court. —Order affirmed.

CHIEF JUSTICE (concurring). HEFFERNAN majority opinion, agree As the author of the I with it and it; I join but cannot but feel a sense of unease over the 968.02(3) 968.26, Stats., validation secs. when from a I public policy aspect. viewed therefore write additionally in concurrence. The criminal law reform by undertaken the Criminal Rules Committee of the Judicial Council one purposes had as of its the elimina- tion of the last vestiges pernicious practice of the private prosecutions by persons allegiance who owe no statement, society public as a whole. For a general policy Scherr, see State v. 418, 426, 9 Wis. 2d 101 N.W.2d 77 (1960) ("It against public policy impartial and the administration criminal law for a court to allow attor- neys private persons prosecutors.") to appear as Peterson, State v. 351, 356, Wis. N.W. 367 (1928) ("Our scheme contemplates impartial that an man selected county prose- the electors of the shall cute all criminal county actions unbiased desires of or complaining witnesses that of defendant.").

Both of the statutes possi- validated here make it persons ble for trigger prosecutorial powers state kind action criminal "probable where cause" can prosecutorial be established. No consistent policy respect to the initiation of main- charges can be charged tained under these circumstances. What will be *14 The de complainant. can lie within whim of attorneys is, in prosecuting experi- standard for facto writer, case, exceptional ence of this but for the not to power invoke the awesome of the state unless the crime proved beyond all likelihood can be a reasonable imprimatur upon may doubt. Our these statutes give well runs gloss legislative that counter to the intent of Wis- law consin's criminal reforms. The writer is not unmind- predicament ful of the of a victim of a crime who is no relief prosecutor. afforded a recalcitrant It would however, appear, that this might situation better be alle- by legislative approval viated of a judicial limited review State ex prosecutor's See, of a prosecute. declination to Connors, rel. Unnamed Petitioners v. 136 Wis. 2d 134, 142, (1987). 401 N.W.2d 782

IWhile am uncomfortable with the validation of may 968.02(3) what policy be the unwise of secs. 968.26, Stats., as the majority opinion writer of the I nevertheless have concluded that statute at issue Connors has not been shown to be unconstitutional. majority opinion Because the writer of the in this case Connors, was also the author of it is of some comfort to judicial know that precedent. recantation is not without Judge Aldisert, Ruggero formerly J. Judge Chief Appeals Circuit, Court of for the Third provided has me following with the accompanied utterances that have thoughts: second Boys Stewart, Justice Markets concurring Potter Union, v. Clerks (1970), 398 U.S. 235 wrote: In temptation these circumstances the strong upon lengthy personal apologia. to embark ... An aphorism provides of Mr. Justice Frankfurter me ref- uge: comes, 'Wisdom too often never and so one ought reject merely not to it because it comes late.' in McGrath v. Jackson,

And Justice concurring Kristensen, (1950), 340 U.S. upon relied an English Judge, Westbury, "who, said, Lord it is rebuffed a barrister's upon opinion reliance an earlier of his Lord- ship: 'I I only say my can amazed am that a man of intelligence guilty should have of giving been such an " opinion.'

Perhaps apropos present most to the situation and quoted by also Justice Jackson is statement of Baron in Andrews v. Styrap, L.T.R.(N.S.) 704, Bramwell (1872), appear "The matter not does to me now as it appears appeared to have to me then."

I invoke all the above utterances on the occasion overruling recently of a by decision so written author of opinion, opinion an that I in believe was public interest in accordance with rational prosecutorial policy, but which has not withstood subse- quent scrutiny on a constitutional basis.

DAY, J. I (concurring). write this concurrence majority opinion in response to the concurrence written its author. That concurrence is critical of statutes, 968.02(3), both John Doe secs. 968.26 and Stats., provide which for review where a district prosecute. refuses to power concurrence refers to the "awesome in state" criminal matters. To the increasing ever victims, army of crime impotence" govern- "awesome appear ment would to be a more description. accurate recently requested President Bush has for a congress multi-billion program pris- dollar to build more federal ons, personnel increase law enforcement and "win back large thugs streets" our cities where armed terror- citizenry. ize the We D.C. win- Washington, now have ning Capitol the title of "Murder of the World."

An Abell, article Richard B. Assistant United Attorney charge General, States in of the Office of Jus- Programs, appearing tice in the March 1989 issue of appre- the Wall Street Journal shows the fact is that the imprisonment hension and of criminals for substantial periods of time "works." That is it cuts down the society amount of crime and saves billions of dollars. Building prisons utilizing good them is a invest- points Corporation ment. The article out that a Rand study shows that 1983 there were 42.5 million victim- country shocking izations. In a of 250 million that is a typical survey statistic. "We find a offender is responsible $430,000 in crime costs. The costs to imprison year $25,000. this offender for one Thus a year prison year $405,000 costs less than a of criminal activity. year expen- A of crime is seventeen times more society year prison." accompa- sive for than A chart nying the Abell article shows a direct correlation between incarceration rates and the crime In rate. (in the chance that an Crimes, i.e., offender I Part *16 rape, robbery, aggravated Homicide, assault, forceable burglary, larceny, theft) theft, motor vehicle would prison percent per receive a sentence was 6.2 100 crimes. percent per The number I of Part Crimes was less than 2 population. imprisonment In 1974 the chances for percent fell 2.1 to and the number of crimes rose to 4.8 percent per population. monetary

What all the statistics on crime costs do "misery physical index," not reflect is the the individual suffering and emotional of those crime victims and their murdered, families who have beaten, been robbed and "ripped by off the criminal element in our midst. period

In this when we see interest "victim's rights" coming certainly having fore, to the one's tor- brought justice top mentor should be near the rights program, only victim's second to the right not to place. be a victim the first not, This is majority as the author of the opinion in it, his concurrence sees as somehow a tendency direction of pernicious practice private "the prosecu- attorneys tions" nor does it "allow private persons (Chief appear prosecutors" as Justice Heffernan concur- 367). ring, p. Neither statute private allows counsel to prosecutor. act as only Prosecution can be done attorney elected district special prosecutors or appointed by the courts. permit Nowhere do our statutes private attorneys representing prosecute try victims criminal defendants. provisions

The John Doe frequently have been used attorneys district to ferret out the perpetrators of crime ordinary investigative procedures where I fail. believe it would be procedure a mistake to alter a has served us well since before statehood. Section 968.02(3), Stats., expression is a clear of legislative intent that victim's have recourse to the courts when a attorney refuses to act.1 968.02, Stats., by chapter

1 Section was established in accompanying Laws of 1969. The comments to the section part: stated in (3) provides upon attorney Sub. a check the district who fails to complaint, authorize the issuance of a when one should have been

issued, by providing for a to authorize its issuance. (3) provides complaints Sub. also vehicle for the issuance of when the district is unavailable. upon The section is based s. 6.01 of the ALI Model Code of Pre- Arraignment Procedure. 6.02(3) (Tent. 1, 1966), Section of the Model Code Draft No. provided: *17 (3) Filing by any In Order a Judicial case which a Officer.

prosecuting attorney complaint, judicial refuses to issue a officer judicial Crime victims should have recourse to the respond. branch when the executive branch fails to This keeping rights. seems to me to be with constitutional The first amendment to the United States Constitution guarantees right petition government the "to the for a grievances." redress of The Wisconsin Constitution also provides right people peacea- I, in art. sec. 4: "The of the bly good assemble, to to consult the common petition government, any department the or thereof, abridged." statutory provisions shall never be here legislative under consideration are a codification of the right petition branch for a "redress of grievances" appropriate. when that is

I would retain these statutes. (Concurring). disagree

STEINMETZ, J. I with concurring opinion the Chief Justice's statement his 968.02(3) may against 968.26, Stats., secs. may permit if, filing complaint hearing complainant of a after prosecuting attorney, and the he finds there is reasonable cause to person complaint believe that named in the has committed the charged. offense This provide subsection was included to upon a check prosecutor's decisions Id. complaints. not to issue on Note Sec- "given power permit tion 6.02. The filing of a complaint objection . . .." Id. prosecutor over the

The Criminal Procedure Code Revision Committee reviewed provisions. these Notes from meetings the committee of Novem- (year unknown), ber 17 and 18 show that the Model Code was 968.02(3), Stats., modified the Committee. Section was created by adding the words "or is unavailable" to the text and "after a discussion, general (3) it part was decided to delete the last making only: it 'In read case which a district refuses or is complaint, unavailable to judge may permit issue a " filing complaint.' of a Drafting Chapter Record of Laws 1969, Legislative Reference Bureau.

good public policy from a historical perspective. These part statutes are a public policy of this state and time, have withstood the test of and as Day Justice opinion, describes in his concurring pro- these statutes moted victims' rights popular before that term became political circles. that,

The fear charged "What will be can lie within (Chief complainant" whim of Justice Heffer- 367) nan's concurring opinion at is an unfounded one. 968.02(3), Stats., Section requires the circuit judge to find that is probable "there cause to believe that person to charged has committed an offense after conducting a hearing" judge "may" and the then issue a complaint. only requires Section 968.26 the issuance of a complaint appears probable it testimony from the "[i]f given that a crime has been committed and who commit- not, ted it. . ." The validation of these statutes does as suggests, pernicious practice concurrence revive "the private prosecutions by persons allegiance who owe no society (Chief as a whole." Justice Heffernan's con- 367.) opinion curring at

The John Doe particularly statute assists the dis- attorneys trict as well as victims. The district can ask a thereby conduct a John Doe and (1) (2) oath; force testify victims to under for wit- ask immunity develop ness investigation; (3) have an investigation conducted secret at the judge's protect development discretion to investigation. These are tools of not investigation within authority attorney. the district

I agree entirely majority with the decision. I am authorized to state that JUSTICE LOUIS J. joins concurring opinion. CECI