State Ex Rel. Unnamed v. Connors

401 N.W.2d 782, 136 Wis. 2d 118, 1987 Wisc. LEXIS 565

• Court: Wisconsin Supreme Court
• Decided: March 6, 1987
• Docket: 86-0290-W
• Status: Published

Opinions

HEFFERNAN, CHIEF JUSTICE.

This opinion considers whether sec. 968.02(3), Stats.,¹ which authorizes a circuit judge, upon a finding of probable cause, to permit the filing of a criminal complaint if the district attorney refuses or is unavailable to issue a complaint, is unconstitutional because it allows an encroachment by the judiciary upon the executive branch’s power to decide whether criminal charges should be filed.

We conclude that the statute is unconstitutional beyond a reasonable doubt.² It violates the separation-of-powers principle of the Wisconsin Constitution that prohibits a substantial encroachment by one branch on a function that is within the delegated province of another branch.³ A transfer of substantial power from one branch of government to another violates the separation-of-powers doctrine. State v. Lehtola, 55 Wis. 2d 494, 498, 198 N.W.2d 354 (1972). Balance between the three branches must be maintained in order to preserve their respective independence and integrity. Layton School of Art & Design v. Wisconsin Employment Relations Commission, 82 Wis. 2d 324, 348, 262 N.W.2d 218 (1978). Thus, the issue in separation-of-powers cases is whether the statute in question "materially impairs or practically defeats” the proper function of a particular branch and the exercise of powers delegated to it. See, In Matter of E.B., 111 Wis. 2d 175, 185, 330 N.W.2d 584 (1983). A statute may not allow one branch to unduly burden or substantially interfere with another branch’s exercise of authority. Id. at 184. See also, State v. Holmes, 106 Wis. 2d 31, 41-43, 315 N.W.2d 703 (1982). The statute with which this court is presently concerned permits an encroachment which is not only substantial, but total.

In the case before us, the statute would allow the circuit judge to permit the filing of a complaint after the district attorney, in the exercise of his discretion, determined that no criminal charge should issue. Under the statute, the judge can commence the action after completely substituting her judgment for that of the prosecutor. The statute provides no guidelines for the action except for the legal standard of "probable cause.”

The case is before this court on a writ of prohibition, by which the relators seek to prohibit Judge Connors from holding the hearing contemplated by sec. 968.02(3), Stats. We grant the writ.

In prior proceedings before this court arising out of the same incident, the constitutionality of sec. 968.02(3), Stats., was not challenged. We held that the sec. 968.02(3) proceedings were presumptively to be open to the public. See, State ex rel. Newspapers, Inc. v. Circuit Court for Milwaukee County, 124 Wis. 2d 499, 370 N.W.2d 209 (1985).

The facts pertinent to both proceedings reveal that two professional football players (the relators herein) allegedly assaulted a female dancer (the complainant in the underlying action) in a dressing room of a Milwaukee night club. The district attorney for Milwaukee county, after an investigation, decided not to issue a criminal complaint. He did so "not on the basis of a lack of probable cause but upon his perceived inability to prove guilt [beyond a reasonable doubt] at trial.” Newspapers, supra at 502. It was conceded during the course of oral argument in this case that the district attorney’s statement setting forth his decision to decline prosecution gave 19 reasons for his action.

Upon the district attorney’s refusal to prosecute and upon the petition of the complainant, the matter was assigned to Circuit Judge Arlene D. Connors for sec. 968.02(3), Stats., proceedings. When Judge Connors directed that the proceedings be closed, the action for the writ considered in Newspapers, supra, was brought to this court. Upon the remand to Judge Connors, the relators have challenged the constitutionality of sec. 968.02(3) on the grounds that it violated the Wisconsin Constitution’s separation-of-powers doctrine and petitioned for the writ of prohibition. Pending resolution of this issue, we have stayed the proceedings. As a consequence of our conclusion that sec. 968.02(3) unconstitutionally permits the exercise of executive branch power by the judicial branch which constitutes a substantial encroachment upon the power of the executive branch, we grant the writ of prohibition.

We first consider the role and function of the district attorney in Wisconsin law. The attorney general concedes that the district attorney is an officer of the executive branch of state government, which branch, under the aegis of the governor, has the duty under the constitution to "take care that the laws be faithfully executed.” Wis. Const. Art. V, sec. 4. The district attorney is not merely an administrative officer with only ministerial duties (Application of Bentine, 181 Wis. 579, 196 N.W. 213 (1923)), but a public officer "retained by the public for the prosecution of persons accused of crime, in the exercise of sound discretion to distinguish between the guilty and innocent, between the certainly and the doubtfully guilty.” Wight v. Rindskopf, 43 Wis. 344, 354 (1877). Bentine, supra at 587, points out that:

"The office of district attorney is a constitutional office. It is held as a public trust, and the incumbent is charged with grave responsibilities calling for the exercise of learning in the law and sound judgment.... Before filing the information it is the duty of the district attorney to make full examination of all the facts and circumstances connected with the case. ...”

It is beyond doubt that the district attorney, in light of his functions as they involve the criminal law, is an executive branch officer. The role of the district attorney under the state system of government parallels the United States Attorney’s role in the representation of the United States. See, United States v. Nixon, 418 U.S. 683, 693 (1974); Inmates of Attica Correctional Facility v. Rockefeller, 477 F.2d 375 (2d Cir. 1973). United States v. Cox, 342 F.2d 167, 171 (1965), points out that the attorney for the United States is "an executive official of the Government, and it is as an officer of the executive department that he exercises a discretion as to whether or not there shall be a prosecution in a particular case. It follows, as an incident of the constitutional separation of powers, that the courts are not to interfere with the free exercise of the discretionary powers of the attorneys of the United States in their control over criminal prosecutions.”

We do not conclude that the status and powers of the district attorney under Wisconsin law are completely congruent with those of the United States Attorney, but the district attorney, in his duty to prosecute criminal violations, performs a function of the executive branch.

In the exercise of this executive function to charge a criminal offense, the district attorney has broad discretion. Harris v. State, 78 Wis. 2d 357, 368, 254 N.W.2d 291 (1977); State v. Johnson, 74 Wis. 2d 169, 173, 246 N.W.2d 503 (1976); State v. Peterson, 195 Wis. 351, 359, 218 N.W. 367 (1928). He may select among related crimes and determine which of them will be charged. Johnson, supra, He may charge selectively; only if there is a showing of a denial of equal protection in a persistent pattern of charging will the courts intervene. As stated in Johnson, supra at 174, "To avoid prosecution for a criminal offense upon equal protection grounds it must be shown that the failure to prosecute was selective, persistent, discriminatory and without justifiable prosecutorial discretion.” See, Yick Wo v. Hopkins, 118 U.S. 356 (1886).

In State ex rel. Kurkierewicz v. Cannon, 42 Wis. 2d 368, 166 N.W.2d 255 (1969), we addressed the general nature of the district attorney’s discretion in determining whether to prosecute. Kurkierewicz involved the duty of the district attorney to convene a coroner’s inquest. Our conclusion in that case was based upon the nature and function of the district attorney’s office in our scheme of government. Accordingly, the principles utilized in determining the district attorney’s obligation to call for a coroner’s inquest are applicable to the prosecutor’s function in this case. We said in Kurkierewicz, pp. 378-79:

"It is clear that in his functions as a prosecutor he has great discretion in determining whether or not to prosecute. There is no obligation or duty upon a district attorney to prosecute all complaints that may be filed with him. While it is his duty to prosecute criminals, it is obvious that a' great portion of the power of the state has been placed in his hands for him to use in the furtherance of justice, and this does not per se require prosecution in all cases where there appears to be a violation of the law no matter how trivial. In general, the district attorney is not answerable to any other officer of the state in respect to the manner in which he exercises those powers. True, he is answerable to the people, for if he fails in his trust he can be recalled or defeated at the polls. In the event he willfully fails to perform his duties or is involved in crime, he may be suspended from office by the governor and removed for cause. These, however, are political remedies that go not to directing the performance of specific duties but rather go to the question of fitness for office.”

We also quoted with approval, p. 378, n. 2, the language of Justice Charles H. Crownhart of this court which emphasized the discretion of the district attorney in respect to which offenders were to be prosecuted and in naming the offense to be charged. Justice Crownhart stated:

"The public officials having to deal with crime must winnow and sift from the offenders those who are the most guilty — those having the guilty intent — for vigorous prosecution.”

Building upon the general principles restated in Kurkierewicz, this court in Thompson v. State, 61 Wis. 2d 325, 212 N.W.2d 109 (1973), wrote that, even when there is sufficient evidence not only to charge a crime but to convict for the violation, it is not beyond the prosecutorial discretion of a district attorney to divert a possible criminal defendant to noncriminal rehabilitative channels. We stated at page 332:

"For a limited time [the prosecutor] is the trustee of the public’s law enforcement conscience. It is his duty to refrain from instituting criminal charges unconscionably or unnecessarily. In the exercise of that public conscience he is neither the puppet of the law enforcement authorities nor of the courts.”

State v. Karpinski, 92 Wis. 2d 599, 285 N.W.2d 729 (1979), elaborated on these concepts of broad prosecu-torial discretion in bringing charges, stating:

"This court has repeatedly emphasized that the prosecutor has great discretion in determining whether to commence a prosecution. ... The prosecutor is not required to prosecute all cases in which it appears that the law has been violated. We have characterized the prosecutor’s charging discretion as 'quasi-judicial’ in the sense that it is his duty to administer justice rather than to obtain convictions.” P. 607.⁴

Thus, in many respects, the district attorney is envisaged as a minister of justice, not as a prosecutor who is obligated to charge every offense and every malefactor to the maximum extent that is possible under the law. In this respect, too, this court’s concept of the function of the district attorney is akin to the concept of the United States Supreme Court of the function of the United States Attorney when it said in Berger v. United States, 295 U.S. 78, 88 (1935):

"The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.”

Wisconsin decisional law has repeatedly held that the discretion to charge or not to charge, and the discretion of how to charge, rests solely with the district attorney. Only where there has been an aura of discrimination has this court indicated that checks were to be placed upon a prosecutor’s charging decision.

In State v. Kenyon, 85 Wis. 2d 36, 270 N.W.2d 160 (1978), we confronted a different facet of prosecutorial discretion — the discretion of a prosecutor to dismiss a prosecution oncé commenced. In approaching this problem, this court recognized that "[t]he discretion resting with the district attorney in determining whether to commence a prosecution is almost limitless. ...” P. 45. It held, however, that a prosecution once commenced could not be dismissed sua sponte by the district attorney because it had become subject to court control. A district attorney’s dismissal motion would not be granted unless to do so was "in the public interest.” P. 45. We need not explore in this opinion the findings required to permit a trial court to dismiss a prosecution once brought. It is sufficient to note that "public interest,” as explained in Kenyon, encompasses legitimate concerns for the defendant, the concern of the public that prosecutions once brought in respect to "crimes actually committed” (p. 47) be fairly prosecuted, and the concern that rights of third parties be considered.

The right of a court to refuse to accept prosecuto-rial discretion as the final word where a case has commenced is vastly different from a situation where no crime has been charged. It is obviously factually different. In addition, it is jurisprudentially different. A prosecutor who dismisses an already initiated claim is free to reprosecute it later. To allow on-again, off-again prosecutions that cease before a defendant has been subjected to jeopardy would be to permit the court system to be used for harassment and would expose a defendant to some of the hazards of attachment of jeopardy, i.e., damage to reputation, expense, and threat of criminal sanctions, without the protection that the constitutional prohibition against double jeopardy affords. See, United States v. Cox, 342 F.2d 167 (1965). In addition, the "public interest” and that of third parties (see, Kenyon, supra at 47) is implicated by a pending prosecution — a situation not present where a prosecution has not been commenced.

The attorney general, who in this case claims that the discretionary power of prosecutors is properly limited by sec. 968.02(3), Stats., relies on Kenyon as authority for the proposition that, because a court may, without violating the separation-of-powers doctrine, refuse to permit a district attorney to discontinue a pending prosecution, it therefore has the power, by using the procedures of sec. 968.02(3), to compel a district attorney to permit a complainant to file a charge which the district attorney has refused to file.

Given the separate functions of the court and the prosecutor, the fact that this case and Kenyon involve different stages in the prosecutorial sequence, and given that different values must be protected at each of these stages, we consider the state’s conclusion in this respect a non sequitur and its analogy irrelevant.

Kenyon stands for a resounding recapitulation of the near-limitless discretion of the prosecutor to charge or not. The only limit that Wisconsin has recognized on a district attorney’s initial charging discretion is charging that demonstrably violates the general standards of equal protection.

The attorney general’s brief erroneously asserts that Kenyon "should not be misconstrued to suggest that a judge in Wisconsin can be authorized to exercise oversight regarding a district attorney’s decision to dismiss a prosecution, but not a decision to decline to commence one.” However, Kenyon does exactly that. While the attorney general asserts that Kenyon approves the sharing of the executive power to charge as a means for checking prosecutorial discretion, we see it as nothing of the kind. Rather, Kenyon ratifies the court system’s power to protect its own integrity from the salvos of repetitious, unwarranted, or frivolous prosecutions that would redound to the detriment of the defendant and the public and impair respect for the judiciary.

Thus, under this court’s decisions, the district attorney, as an officer of the executive branch, has the power to make the initial determination of whether or not to charge a criminal offense.

It is asserted, however, that the district attorney’s jurisdiction to charge is essentially dependent upon the direction of the legislature. This is certainly correct to the extent that the legislature alone may define and delineate what constitutes a crime. It is the duty of the district attorney to "[p]rosecute all criminal actions.” Sec. 59.47(2), Stats. Clearly, "criminal actions” are only those denominated as criminal by the legislature, and their definition undisputably is within the purview of the legislative branch. But the fact that the legislature can define the criminal jurisdiction of the district attorney by no stretch of logic means that it can direct an executive officer to substantially abandon his executive function or direct a judicial officer to act in such a way as to usurp the function of the executive to bring criminal charges.

Kurkierewicz recognized that, in minor matters, the district attorney could be subject to the will of the legislature. It expressly stated, however, that, when a legislative direction violates a constitutional requirement, the district attorney’s prerogatives as an officer of the executive branch are paramount. The problem raised by this case cannot facilely be resolved by the assertion that the legislative direction is paramount. It clearly is not if that direction results in a substantial encroachment upon the separate powers of the executive branch.

State v. Coubal, 248 Wis. 247, 21 N.W.2d 381 (1946), is also relied upon by the state for the proposition that the district attorney is required to prosecute cases as directed by the legislature. Even if Coubal were interpreted as the state wishes, the case is not analogous to this one. In the instant case, the district attorney has declined to initiate a charge. In Coubal, the district attorney did initiate a charge, but the defendant argued that, because the statute required the district attorney to do so, the charge was void and the court had no jurisdiction to proceed. There is no assertion in Coubal that any executive function was usurped by another branch or that there was an encroachment upon powers protected by the separation-of-powers doctrine. Rather, the complaint was that the attorney general could override the district attorney’s decision not to prosecute. The attorney general, an officer who is generally conceded to be the chief law enforcement officer of the state, is an officer of the executive branch. In Coubal, the question was whether the appropriate executive branch officer was exercising the prosecutorial power. See, p. 255. The statute under consideration provided that, unless the district attorney commenced prosecution for certain liquor violations within ten days of a certain report, the attorney general shall direct him to act. While Coubal allowed legislative allocation of responsibility between the attorney general and the district attorney, it neither discussed nor decided whether the legislature could deprive the executive branch of its discretion.

The statute in Coubal provides that the district attorney shall institute a proceeding; if he does not, he shall give the reasons for his failure to prosecute to the attorney general. This merely provides for review within the executive branch; one executive officer reviews another’s discretion to prosecute. Upon direction of the attorney general, the district attorney must prosecute. If he does not, the attorney general is authorized to commence the proceedings.

Coubal, while informative, is not dispositive. It confronts a problem resulting from a defense strategy that was based, not upon a separation of powers between branches, but upon a challenge to the allocation of responsibility within the executive branch. Whether Coubal was correct even in that posture we do not decide. Coubal is only of peripheral relevance.

Neither Kurkierewicz nor Coubal support the assertion that the district attorney’s discretion to prosecute a crime declared by the legislature is subject to a legislative direction that mandates prosecution when the prosecutorial discretion is to the contrary.

Thus, we write upon a clean slate. This is the first case in this jurisdiction in which it is asserted that a legislative direction which permits the filing of a criminal complaint by someone other than an executive officer is unconstitutional on the basis of the separation-of-powers doctrine, i.e., that the acknowledged discretionary executive power to commence a prosecution is unconstitutionally lodged by legislative fiat in a judicial officer, a non-executive branch officer.

In concluding that the issuance of a judicial complaint, i.e., to "permit the filing of a complaint” by a judge under the proceeding envisaged by sec. 968.02(3), Stats., violates the separation-of-powers doctrine, we do not rely on the policy reasons which have been asserted why initial discretion to prosecute ought be vested solely in the prosecutorial arm of the executive branch. Nor do we examine the reasons asserted for not vesting complete discretion in the prosecutor. Neither do we conclude that there may not be a judicial review of prosecutorial charging discretion. That question is not presented in this proceeding.

The question before us is whether the statute permits a de novo determination by the judge of whether a complaint shall issue (and if so whether the judge acts constitutionally), or whether it requires the judge to examine the prosecutor’s prior decision and to review that decision for abuse of discretion.

None of the numerous commentators⁵ who have decried the unlimited discretion traditionally placed in the prosecutor in respect to the original charging decision suggest that, upon the refusal of the prosecutor to issue a complaint, it is appropriate for a court to make a de novo determination of whether to prosecute.

The attorney general does not suggest that the judge, under sec. 968.02(3), Stats., could properly ab initio authorize prosecution. The state in fact acknowledges in its brief that:

"Well-settled precedent compels the conclusion that any judicial decision to issue a complaint which did not pay appropriate deference to the refusal of the district attorney to initiate a prosecution, and in which the judge acted as a substitute for, rather than a check on, the district attorney, would be a clear abuse of discretion.”

Although at oral argument, the representative of the attorney general equivocated when asked whether the statute would fail unless we construed it to authorize review of the charging discretion of the district attorney, his entire argument was premised on the assumption that the statute contemplated judicial review.⁶

The attorney general’s argument that the statute does not authorize a de novo determination is sketchy at best. Essentially, the state argues that public policy supports allowing the judge to review the district attorney’s discretion. The judge can make sure that the district attorney has not abused his discretion and "snubbed the public interests."

As stated before, such policy questions as whether the charging discretion should be solely vested in the executive or shared by judicial review of the prosecutor’s discretion are irrelevant in the context of this case and in light of the existing statute.

The statute provides, inter alia, that "[i]f a district attorney ... is unavailable to issue a complaint, the circuit judge may ....” Thus, the statute on its face permits, indeed authorizes, a judge to make the charging decision ab initio when no prosecutor has acted. This clearly is not an enunciation of a review function. It is an authorization to usurp an essential and important executive function.⁷

In the instant case, the attorney general, in accordance with the language used in his brief, concedes this power — the power to permit the filing of a complaint when the district attorney is unavailable — is not only a de novo exercise of executive power by the judiciary, but is also a blatantly unconstitutional exercise of executive power by the judiciary. It is also an unnecessary exercise of power in light of the authority of the circuit judge, under sec. 59.44, Stats., to appoint an acting district attorney.

Is this clearly unconstitutional portion of the statute severable from the balance? We conclude not, for the entire statute contemplates a de novo' determination by the judge. The statute does not authorize or permit a review function.

The statutory mindset that allows the judge to substitute for an "unavailable” district attorney permeates the entire statute. It is clear from the plain language of the statute that the judge, in case of unavailability, performs the exact function of the prosecutor, i.e., he makes the determination whether to let the complaint be filed. There is nothing in the statute to indicate that any different procedure is to be used when the district attorney has refused to issue the complaint. In each case, the only guidance furnished by the statute is that the "judge may permit the filing of a complaint, if the judge finds there is probable cause to believe that the person to be charged has committed an offense.”

The finding of probable cause by the judge is the only prerequisite for the judge to act instead of an unavailable district attorney or to supersede the decision of the refusing district attorney. Not a word in the statute leads to the conclusion that the judge’s function is to review the exercise of discretion of the prosecuting attorney. Ordinarily, the exercise of discretion contemplates that a decision will be made on the basis of the applicable law and in consideration of all the pertinent facts. But, as the guidelines for charging set forth in Karpinski point out, the appropriate and accepted guidelines or discretionary factors to be considered in the charging decision are within the peculiar knowledge of the prosecutor, not of the judge. The statute does not suggest that the action of a prosecutor should be ratified if a reasonable person acting as the prosecutor could have reached the decision not to charge. Instead, a judge may allow the filing of the complaint upon the judge’s finding of probable cause, a finding that may be based upon new facts never presented to the prosecutor. It is obvious that whatever the sec. 968.02(3) hearing purports to be, it is not a review procedure. There is no requirement that the district attorney make a record of the basis for his determination, although the Milwaukee district attorney in this case did set forth in a press release his reasons for not prosecuting. Even with such a record volunteered, in this case the judge would need pay no attention to the discretionary factors. The judge’s de novo finding of probable cause would be sufficient to vitiate the carefully reasoned discretion of the prosecutor.

The statute makes no provision for the district attorney to defend his decision for declining prosecution or to give any reason for his action. The mere fact that the statute provides that the district attorney "may attend” the hearing in no way suggests an obligation or the right of the district attorney to defend his action or that the judge is to review the discretionary factors that impelled the district attorney’s prior action. The statute only speaks in prae-sente: Does the sec. 968.02(3) hearing conducted by the judge produce facts from which probable cause can be found by the particular judge? If so, a complaint may issue.

The assistant attorney general repeatedly asserted in oral argument that the right to attend was "obviously” for the purpose of explaining his exercise of discretion — that it was not for the purpose of "sleeping” during the course of the sec. 968.02(3) hearing. It is just as reasonable, however, to conclude that the district attorney should be there because, if the judge finds probable cause, it will be the district attorney’s case to prosecute. Moreover, we pointed out in Newspapers, supra, that the sec. 968.02(3) hearing was presumptively to be open to the public and could be closed only in compelling circumstances. Under sec. 968.02(3), however, the hearing could not be closed to the district attorney. The statute points out an exception to closure under circumstances that might otherwise warrant confidentiality. We find no implication in the statute that the purpose of the district attorney’s presence is to submit his exercise of discretion to the reviewing scrutiny of the judge.

Sec. 968.02(3), Stats., on its face permits the judge to act to issue a complaint when the district attorney was not available to act (although the judge has plenary power to appoint, under sec. 59.44, an acting district attorney to consider the issuance of a complaint). Thus, it allows complete and direct substitution of a judge’s decision for the action of a duly appointed or elected prosecutor.

A similar, and even a more egregious, affront to the principles of the separation of powers occurs when the judge can override and set at naught the district attorney’s discretionary declination to prosecute. The judge need have no better reason for his action than the fact that he has found probable cause that the offender has committed a crime.

This is a substantial encroachment upon the discretionary executive power to prosecute or not. It constitutes the usurpation of discretionary executive power and places in its stead a judicial decision based not upon discretionary factors but upon a legal standard of probable cause.

A judge acting under the procedure set forth in sec. 968.02(3), Stats., simply becomes the prosecutor and not only substantially encroaches on the executive function, but at this stage of the proceeding entirely ousts the executive officer from his constitutional duties.

Under our republican form of government — defined as a government of separation of powers (sec. 15.001, Stats.), the function imposed upon the judiciary by the statute is one that it is without power to perform. Accordingly, the hearing scheduled could only result in a complaint issued by a judicial officer who is not authorized to do so. The proceeding would be void. Accordingly, we grant the petition of the relators and direct that the circuit court for Milwaukee county be prohibited from conducting further proceedings in the matter captioned In re Petition of K.M., Criminal Division Cáse L 002-C.

It should be noted that, because we find that sec. 968.02(3), Stats., does not contemplate or countenance a review of the prosecutor’s charging discretion, we do not consider the constitutionality of a statute that might provide for such a review. Nor do we in this opinion have occasion to take a position on the desirability of prosecutors establishing internal guidelines for the exercise of prosecutorial discretion. We reiterate, however, the reference to the A.B.A. Standards for Criminal Justice Relating to the Prosecution Function, Standard 3.9, that appears in Karpinski v. State, supra, 92 Wis. 2d at 608, and the articles cited in Karpinski as explanatory of the methods and the need for "encouraging prosecutorial discretion to achieve flexibility and sensitivity and the need for circumscribing prosecutorial discretion to avoid arbitrary, discriminatory or oppressive results.” Karpinski, p. 608.

The charging discretion of a prosecutor is, however, not without limits. It is tested — although only as to the sufficiency of the evidence, by a judge upon the holding of a preliminary examination — by the requirement that the judge find probable cause before binding a defendant over for trial. See, sec. 970.03(7)-(10), Stats. Absent evidence of probable cause to believe that a crime was committed by the defendant, the judge must order the defendant discharged. Sec. 970.03(9). The prosecutor in Wisconsin, by the necessity for election, is answerable to the people at least every two years. Wis. Const. Art. VI, sec. 4(4); sec. 17.09(3). Moreover, he is subject to recall. Wis. Const. Art. XIII, sec. 12. As an elected official who must eventually prove his good faith in the public forum, he is subject to the constant scrutiny of the press. Additionally, the charging direction is subject to the strictures of equal protection to avoid discriminatory charging or discriminatory leniency. Also a prosecutor abuses his discretion when he charges for coercive reasons or overcharges to induce plea bargains. Such conduct is subject to the scrutiny of the bar generally and the courts specifically. The Standards for Professional Responsibility can be invoked in the event of prosecutorial misconduct. Prosecutors are held to the standards of conduct and fair play expected of all lawyers.⁸

None of these efficacious checks upon the prosecutor’s discretion amount to a direct substitution of the views of the district attorney. None of them infringe upon the flexible doctrine of separation of powers.⁹

Because we find the meaning of sec. 968.02(3), Stats., clear upon its face, we dp not herein explore the legislative history of that statute. State v. Denter, 121 Wis. 2d 118, 123, 357 N.W.2d 555 (1984), Aparacor, Inc. v. I.L.H.R. Dept., 97 Wis. 2d 399, 403, 293 N.W.2d 545 (1980). The attorney general would interpret the statutory language, "the judge may permit the filing of a complaint,” to mean, or at least to imply, that there shall be a review of the prosecutor’s discretion. The very best that can be said for the attorney general’s argument is that, under that language, although the judge should conclude there is probable cause, the judge has discretion not to issue the complaint. This is undoubtedly true, but irrelevant. The question is not whether the judge exercises discretion in issuing a complaint. The question as posed by the attorney general is whether prosecutorial discretion is being reviewed. Whether the judge may exercise his discretion has nothing to do with what the attorney general considers important — the review of the prosecutor’s discretionary decision. Whether the phrase, "the judge may permit the filing of a complaint,” means that a finding of probable cause by the judge permits him to file a complaint or obligates him to do so, both meanings imply an ab initio decision, and it is therein that the vice of the statute lies. Because the statute in any way material to this controversy is unambiguous, we do no more than to read the statute and examine its apparent and clear import. We have no need to explore its legislative history.

Because the statute, without question, authorizes the complete usurpation or substitution of an important executive function by the judiciary, the statute is unconstitutional beyond a reasonable doubt. We grant the writ of prohibition and direct that the circuit court for Milwaukee county be prohibited from conducting further proceedings in the matter.

By the Court. — Writ granted.

1 "If a district attorney refuses or is unavailable to issue a complaint, a circuit judge may permit the filing of a complaint, if the judge finds there is probable cause to believe that the person to be charged has committed an offense after conducting a hearing. If the district attorney has refused to issue a complaint, he or she shall be informed of the hearing and may attend. The hearing shall be ex parte without the right of cross-examination.”

2 In Milwaukee County v. Proegler, 85 Wis. 2d 614, 629-30, 291 N.W.2d 608 (Ct. App. 1980), the court of appeals discussed the burden of proof to be borne by one challenging the constitutionality of a statute:

"The rule has been often-stated that a statute is presumed to be constitutional and that a heavy burden is placed on the party challenging its constitutionality. State v. Hart. 89 Wis. 2d 58, 64, 277 N.W.2d 843, 846 (1979).

“One who challenges a statute’s constitutionality carries a heavy burden of persuasion. He must overcome the presumption of constitutionality described in State ex rel. Hammermill Paper Co. v. La Plante, 58 Wis. 2d 32, 46, 205 N.W.2d 784 (1973):

"'... It is not enough that respondent establish doubt as to the act’s constitutionality nor is it sufficient that respondent establish the unconstitutionality of the act as a probability. Unconstitutionality of the act must be demonstrated beyond a reasonable doubt. Every presumption must be indulged to sustain the law if at all possible and, wherever doubt exists as to a legislative enactment’s constitutionality, it must be resolved in favor of constitutionality. This court has often affirmed the well-established presumption of constitutionality that attaches itself to all legislative acts_’

"The court cannot reweigh the facts as found by the legislature. If the court can conceive any facts on which the legislation could reasonably be based, it must hold the legislation constitutional. [Citation omitted.] State ex rel. Strykowski v. Wilkie, 81 Wis. 2d 491, 506, 261 N.W.2d 434, 441 (1978).”

3 The state legislature’s interpretation of our tripartite form of government is found in sec. 15.001, Stats. 1983, which provides:

"15.001 Declaration of policy. (1) THREE BRANCHES OF GOVERNMENT. The 'republican form of government’ guaranteed by the U. S. constitution contemplates the separation of powers within state government among the legislative, the executive and the judicial branches of the government. The legislative branch has the broad objective of determining policies and programs and review of program performance for programs previously authorized, the executive branch carries out the programs and policies and the judicial branch has the responsibility for adjudicating any conflicts which might arise from the interpretation or application of the laws. It is a traditional concept of American government that the 3 branches are to function separately, without intermingling of authority, except as specifically provided by law.”

4 Karpinski, while recognizing the extremely broad sweep of prosecutorial discretion, is additionally significant for its recognition of the need for a reasoned and stated approach to a charging if such decisions are to be consistent with each other and consonant with the standards of equal protection. It invited prosecutors to establish rules for their internal guidance to achieve such consistency, citing the A.B. A. Standards for Criminal Justice Relating to the Prosecution Function. See, Karpinski, p. 608. It also again called the attention of prosecutors to the discretion available to them in the diversion of appropriate defendants to a noncriminal disposition.

5 See, K. Davis, Discretionary Justice: A Preliminary Inquiry 225-29 (1969); Frase, The Decision to File Federal Criminal Charges: A Quantitative Study of Prosecutorial Discretion, 47 U. Chi. L. Rev. 246, 303 (1980); Note, Reviewability of Prosecutorial Discretion: Failure to Prosecute, 75 Colum. L. Rev. 130, 139 (1975).

6 The court’s question at oral argument and the assistant attorney general’s response were as follows!

“JUSTICE CALLOW: Mr. Balistreri, unless it is interpreted as you suggest does the statute fail if it is an ab initio act by the judge?

"MR. BALISTRERI: I wouldn’t go so far as to say the statute has to fail. What I’ve said in the brief and what I would repeat here is that if the judge does not pay proper deference to the discretion of the district attorney that the judge abuses her discretion then in determining whether to issue a criminal complaint.”

7 This provision is as bizarre as it is inexplicable, for sec. 59.44, Stats., permits a judge to appoint an acting district attorney for any number of reasons which clearly encompass the problem of unavailability. It would appear that, if a district attorney is "unavailable,” a reasonable judge, acting constitutionally, would not arrogate the executive powers to himself, even under the aegis of sec. 968.02(3), but would appoint a suitable lawyer to act to process any complaint. "[T]he person so appointed shall have all the powers of the district attorney while so acting.” Sec. 59.44(1).

8 See, for example, State v. Ruiz and State v. Servantez, 118 Wis. 2d 177, 203 n. 5, 347 N.W.2d 352 (1984); Disciplinary Proceedings Against Zapf, 126 Wis. 2d 123, 375 N.W.2d 654 (1985).

9 As have been repeatedly stated, a blending of powers or a sharing of powers, such as occurs in a John Doe proceedings, is acceptable. See, State v. Washington, 83 Wis. 2d 808, 825-27, 266 N.W.2d 597 (1978). Here, as stated above, the powers are not shared. Under sec. 968.02(3), Stats., executive power is voided and, at the siren call of the legislature, judicial power supersedes the executive discretion.

We have not given any extended thought to the question of the impingement upon the judicial function if we are required by disgruntled complainants and sec. 968.02(3) to hold hearings for the purpose of making ab initio decisions reserved to the executive branch. It should be noted, however, that this court has held unconstitutional a delegation to the courts of the determination of policy matters that, under the separation-of-powers doctrine, ought to be reserved for the legislature. See, In re City of Fond du Lac, 42 Wis. 2d 323, 166 N.W.2d 225 (1969). See, also, Illinois v. Joseph, 113 Ill. 2d 36, 495 N.E.2d 501 (1986).