E.B., Matter of

• Citation: 111 Wis.2d 175,330 N.W.2d 584
• Decision Date: 01 March 1983
• Docket Number: No. 81-2020,81-2020
• Parties: In the Matter of E.B., a child under the age of 18 years. E.B., Appellant, v. STATE of Wisconsin, Respondent-Petitioner.
• Court: United States State Supreme Court of Wisconsin

Page 584

330 N.W.2d 584

111 Wis.2d 175

In the Matter of E.B., a child under the age of 18 years.

E.B., Appellant, v. STATE of Wisconsin, Respondent-Petitioner.

No. 81-2020.

Supreme Court of Wisconsin.

Argued Feb. 4, 1983.

Decided March 1, 1983.

Daniel J. O'Brien, Asst. Atty. Gen., argued, for respondent-petitioner; Bronson C. La Follette, Atty. Gen., on brief.

Louis B. Butler, Jr., Asst. State Public Defender, for appellant.

CALLOW, Justice.

This is a review of a decision ¹ of the court of appeals which reversed a dispositional order of the circuit court for Milwaukee county, Judge William J. Haese, finding a juvenile, E.B., delinquent for committing burglary in violation of sec. 943.10(1)(a), Stats. ² On May 27, 1981, a petition alleging that E.B. was delinquent was filed in the Milwaukee County Circuit Court, Children's Division. The petition charged E.B. with two counts of burglary in violation of sec. 943.10(1)(a), Stats. Prior to trial defense counsel moved to suppress certain inculpatory statements E.B. had given to the police on the ground that they were not voluntarily made. Defense counsel offered no evidence in support of the motion and informed the court that contrary to her advice E.B. refused to testify. However, defense counsel said that, if E.B. were to testify, he would say that the police officers promised to drop the burglary charges in exchange for his confession. The trial court denied the motion to suppress and defense counsel's request to argue the matter, stating:

"The court is appalled at the fact that to imagine for an instant that there's a case here under Miranda is a misreading of Miranda and abuse of a court function. The uncontroverted testimony from a witness which is certainly beyond dispute indicated that he read the Miranda rights to the juvenile. The young man was interrogated for a total of 15 minutes in the presence of three officers in plain clothes, was given the right to make and did in fact make a phone call which was abortive, was given every conceivable right. To imagine this was procured in anything other than ideal circumstances to be not only approved but applauded by the court based upon the record made in this courtroom this morning. I would indicate if the court ruled in any other way the country would be committing suicide and I don't believe that we are obligated to commit suicide."

In a written request for jury instructions, defense counsel asked that several instructions, in addition to those eventually approved by the court, be given to the jury. The court denied this request. Defense counsel also requested that the instructions for burglary, burden of proof and presumption of innocence, and identification be submitted to the jury in written form. Following the testimony and arguments, the court read these instructions along with several others to the jury. The court, however, gave the jury a written copy of only the burglary instruction, stating:

"Now, I am going to send with you to the jury room, because I am obligated to by the Supreme Court of the State of Wisconsin, the written instruction, which I have read to you concerning the charge of burglary. The fact that I'm sending it to your jury room in writing doesn't make it any more important or less important than the other instructions, which I have given you. I'm also sending with you to the jury room the two written verdicts. You will have those three documents with you in the jury room."

Immediately after the jury retired for its deliberations, defense counsel again requested--this time orally--that the burden of proof and presumption of innocence instruction be given to the jury in written form. Defense counsel argued that the jury should have this instruction in writing because it represented the theory of defense in this case. The trial court denied the request.

On June 16, 1981, the jury found E.B. guilty of burglary as charged in count two of the petition. Pursuant to the verdict, the trial court entered a dispositional order on June 22, 1981, finding E.B. delinquent. The order transferred legal custody of E.B. to the Wisconsin Department of Health and Social Services, Division of Corrections, placing him in the Ethan Allen School for Boys at Wales, Wisconsin, until his eighteenth birthday.

E.B. filed a notice of appeal on October 21, 1981. On appeal E.B. contended that the trial court erred in the following respects: refusing to give the jury a written copy of the jury instruction relating to burden of proof and presumption of innocence, denying E.B.'s motion to suppress and refusing argument thereon, failing to inquire further into defense counsel's allegations that E.B. was promised the charges would be dropped in exchange for his confession, and refusing to give Wis. JI--Criminal 180 on confessions and admissions against interest. The court of appeals vacated the circuit court's dispositional order and remanded the cause, finding that it was error under secs. 805.13(4) and 972.10(5), Stats., for the circuit court to refuse to provide the jury with a written copy of the burden of proof and presumption of innocence instruction. The other issues raised by E.B. were not addressed by the court of appeals. We granted the state's petition for review.

Secs. 805.13(4) ³ and 972.10(5), STATS⁴., both state in pertinent part: "The court shall provide the jury with one complete set of written instructions providing the substantive law to be applied to the case to be decided." The threshold question on this review is whether these statutes are unconstitutional exercises of legislative power under the separation of powers doctrine. It is a basic principle of law that statutes are presumed to be constitutional. Thus the party attacking a statute has the burden of proving its unconstitutionality beyond a reasonable doubt. State v. Holmes, 106 Wis.2d 31, 41, 315 N.W.2d 703 (1982).

The Wisconsin Constitution establishes three branches of government: legislative, executive, and judicial. Although not expressly stated, the separation of powers doctrine is created by the following constitutional provisions:

"The legislative power shall be vested in a senate and assembly." Wis. Const. art. IV, sec. 1.

"The executive power shall be vested in a governor...." Wis. Const. art. V, sec. 1.

"The judicial power of this state shall be vested in a unified court system consisting of one supreme court, a court of appeals, a circuit court, such trial courts of general uniform statewide jurisdiction as the legislature may create by law, and a municipal court if authorized by the legislature...." Wis. Const. art. VII, sec. 2.

"The supreme court shall have superintending and administrative authority over all courts." Wis. Const. art. VII, sec. 3(1).

"The chief justice of the supreme court shall be the administrative head of the judicial system and shall exercise this administrative authority pursuant to procedures adopted by the supreme court. The chief justice may assign any judge of a court of record to aid in the proper disposition of judicial business in any court of record except the supreme court." Wis. Const. art. VII, sec. 4(3).

In State v. Holmes, supra, we discussed the separation of powers doctrine at great length. We recognized that, while the three governmental branches are coordinate and separate, each deriving its own power from the constitution, the constitution does not define legislative, executive, or judicial power. Thus "it is neither possible nor practicable 'to classify accurately all the various governmental powers and to say that this power belongs exclusively to one department and that power belongs exclusively to another.' Integration of Bar Case, 244 Wis. 8, 45, 11 N.W.2d 604 (1943)." Id. at 42-43, 11 N.W.2d 604. Indeed, the separation of powers doctrine does not require a scientific, absolute division of power without overlap. Rather, the doctrine contemplates a government of three separate branches which share certain powers. Id. at 43, 11 N.W.2d 604.

We have consistently recognized that the legislature and the judiciary share the power to regulate practice and procedure in the judicial system. The supreme court has inherent constitutional power to regulate matters related to adjudication and adopt measures necessary for the due administration of justice. Id. at 44, 11 N.W.2d 604; In re Charles E. Kading, 70 Wis.2d 508, 518, 235 N.W.2d 409, 238 N.W.2d 63, 239 N.W.2d 297 (1975). The legislature is also empowered to enact laws to assure fair trial. State v. Holmes, 106 Wis.2d at 46, 11 N.W.2d 604.

In Rules of Court Case, 204 Wis. 501, 236 N.W. 717 (1931), this court examined the constitutionality of sec. 251.18, Stats. 1929 ⁵ (now sec. 751.12, Stats.), which created rulemaking authority for the Wisconsin supreme court in the area of practice and procedure. The statute also reserved to the legislature the authority to enact, modify, or repeal statutes or rules in this area. After discussing several authorities, the court stated:

"From the foregoing it is concluded that the power to regulate procedure, at the time of the adoption of the constitution, was considered to be essentially a judicial power, or at least not a strictly legislative power, and that there is no constitutional objection to the delegation of it to the courts by the legislature." Id. at 510, 236 N.W. 717.

The court further reasoned that, since the legislature could delegate power, it could also take it back. Therefore, the legislature did not offend the separation of powers doctrine by delegating and, at the same time, retaining the authority to regulate practice and procedure. Accordingly, the court held the statute constitutional. In a subsequent case this court stated that, at least when there is no conflicting legislation, it "has equal power with the legislature to improve practice and procedure, and should not hesitate to do so in the interest of justice and law enforcement." Spoo v. State...