State ex rel. Unnamed Petitioners v. Connors, 86-0290-W

• Decision Date: 06 March 1987
• Docket Number: No. 86-0290-W,86-0290-W
• Citation: 401 N.W.2d 782,136 Wis.2d 118
• Parties: STATE of Wisconsin ex rel. UNNAMED PETITIONERS, Petitioners, v. The Honorable Arlene D. CONNORS, Circuit Judge of Milwaukee County, Branch 37, Respondent.
• Court: Wisconsin Supreme Court

Page 782

401 N.W.2d 782

136 Wis.2d 118

STATE of Wisconsin ex rel. UNNAMED PETITIONERS, Petitioners, v. The Honorable Arlene D. CONNORS, Circuit Judge of Milwaukee County, Branch 37, Respondent.

No. 86-0290-W.

Supreme Court of Wisconsin.

Argued Sept. 4, 1986.

Decided March 6, 1987.

James A. Walrath and William M. Coffey, Milwaukee, argued, for petitioners; Stephen M. Glynn, and Shellow, Shellow & Glynn, S.C., and Coffey, Coffey & Geraghty, Milwaukee, on brief.

Thomas J. Balistreri, Asst. Atty. Gen., argued, for respondent; Bronson C. LaFollette, Atty. Gen., on brief.

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, 330 N.W.2d 584. 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, 370 N.W.2d 209. 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 the innocent, between the certainly and the doubtfully guilty." Wight v. Rindskopf, 43 Wis. 344, 354 (1877). Bentine, supra 181 Wis. at 587, 196 N.W. 213, 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, 94 S.Ct. 3090, 3100, 41 L.Ed.2d 1039 (1974); Inmates of Attica Correctional Facility v. Rockefeller, 477 F.2d 375 (2d Cir.1973). United States v. Cox, 342 F.2d 167, 171 (5th Cir.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 74 Wis.2d at 174, 246 N.W.2d 503, "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, 6 S.Ct. 1064, 30 L.Ed. 220 (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, 166 N.W.2d 255:

"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...