State v. Horn

• Decision Date: 11 June 1999
• Docket Number: No. 97-2751-CR,97-2751-CR
• Citation: 594 N.W.2d 772,226 Wis.2d 637
• Parties: STATE of Wisconsin, Plaintiff-Appellant, v. Robert V. HORN, Defendant-Respondent.
• Court: Wisconsin Supreme Court

Page 772

594 N.W.2d 772

226 Wis.2d 637

STATE of Wisconsin, Plaintiff-Appellant, v. Robert V. HORN, Defendant-Respondent.

No. 97-2751-CR.

Supreme Court of Wisconsin.

Argued March 4, 1999.

Decided June 11, 1999.

For the plaintiff-appellant the cause was argued by Thomas J. Balistreri, assistant attorney general, with whom on the brief (in the Court of Appeals) was Pamela Magee, assistant attorney general, and James E. Doyle, attorney general.

For the defendant-respondent there was a brief (in the Court of Appeals) and oral argument by Martha K. Askins, assistant state public defender.

¶1 WILLIAM A. BABLITCH, J

Defendant, Robert V. Horn (Horn) challenged the constitutionality of Wis. Stat. § 973.10(2) requiring administrative, rather than judicial, revocation of probation. The circuit court agreed with Horn and declared the statute unconstitutional as a violation of the separation of powers doctrine. The issue presented by this case is whether it is within the exclusive power of the judiciary to determine whether a defendant has violated the court-imposed conditions of probation and whether probation should be revoked and the defendant sent to prison. We conclude that disposition of a criminal case, including imposing and revoking probation, is within powers shared among the branches of government. Because the legislative delegation of probation revocation to the executive branch does not unduly burden or substantially interfere with the judiciary's constitutional function to impose criminal penalties, we determine that § 973.10(2) is constitutional. Accordingly, we reverse the order of the circuit court.

¶2 The facts for purposes of this appeal are limited and not in dispute. Horn pleaded guilty to two felony counts of delivery of cocaine, contrary to Wis. Stat. §§ 161.16(2)(b)1 and 161.41(1)(cm) (1992-93). ¹ The Kenosha County Circuit Court, the Honorable Bruce E. Schroeder presiding, adjudged Horn guilty and ordered a presentence investigation report. On March 9, 1995, the circuit court withheld Horn's sentence, placed him on probation for four years, and ordered him to pay restitution.

¶3 In July 1997, the Wisconsin Department of Corrections initiated probation revocation proceedings against Horn, pursuant to Wis. Stat. § 973.10(2) (1995-96). ² The Department of Corrections asserted that Horn violated several conditions of his probation. He also faced new charges of obstructing as a repeater and stalking as a repeater. On August 14, 1997, Horn filed a motion with the circuit court, requesting that the court determine § 973.10(2) unconstitutional as violating the separation of powers doctrine. Horn served this motion on the Attorney General, pursuant to Wis. Stat. § 806.04(11), who filed a response in opposition to the motion.

¶4 The circuit court granted Horn's motion and declared Wis. Stat. § 973.10(2) unconstitutional concluding it violates the separation of powers doctrine. The circuit court determined that the statute impermissibly infringes on the judiciary's exclusive sentencing function. Accordingly, the circuit court enjoined the Department of Corrections from further proceedings with the probation revocation process and set a date for a probation revocation hearing before the circuit court.

¶5 The circuit court based its decision on its conclusion that probation is a stay in an ongoing criminal proceeding. The circuit court determined that not only does probation stay execution of a sentence, see Wis. Stat. § 973.09(1)(a), but the circuit court continues to have power to modify the terms of probation, see § 973.09(3)(a). The circuit court concluded that Wis. Stat. § 973.10(2), requiring administrative probation revocation, allows the executive branch to administratively lift the judicially-imposed stay, and violates the separation of powers doctrine in that only a court should be able to lift a judicially-imposed stay.

¶6 The State of Wisconsin (State) petitioned the court of appeals for leave to appeal a nonfinal order. The court of appeals granted the State's petition. After hearing oral arguments, the court of appeals certified the case to this court pursuant to Wis. Stat. § (Rule) 809.61, which we accepted.

¶7 The issue presented by this case and as certified by the court of appeals is whether it is within the exclusive power of the judiciary to determine whether a defendant has violated the court-imposed conditions of probation and whether probation should be revoked and the defendant sent to prison. In other words, we must determine whether Wis. Stat. § 973.10(2) (reprinted below), ³ which provides for administrative revocation of probation, unconstitutionally violates the separation of powers doctrine. Whether a statute is constitutional is a question of law which this court reviews de novo. State v. Borrell, 167 Wis.2d 749, 762, 482 N.W.2d 883 (1992).

¶8 When a party challenges the constitutionality of a statute, we begin with the presumption that the statute is constitutional. State ex rel. Friedrich v. Dane County Cir. Ct., 192 Wis.2d 1, 13, 531 N.W.2d 32 (1995). The party challenging the constitutionality of a statute has the burden to show beyond a reasonable doubt that the statute is unconstitutional. Id. (citing State v. Holmes, 106 Wis.2d 31, 41, 315 N.W.2d 703 (1982)). Any doubts about the constitutionality of a statute are resolved in favor of the statute. Chappy v. LIRC, 136 Wis.2d 172, 185, 401 N.W.2d 568 (1987).

¶9 This court has frequently expounded the separation of powers doctrine. "The doctrine of separation of powers, while not explicitly set forth in the Wisconsin constitution, is implicit in the division of governmental powers among the judicial, legislative and executive branches." Friedrich, 192 Wis.2d at 13, 531 N.W.2d 32 (citing Holmes, 106 Wis.2d at 42, 315 N.W.2d 703). Wisconsin Const. Art. VII, §§ 2, 3, and 4 govern the judicial branch; Article IV, § 1 governs the legislative branch; and Article V, § 1 governs the executive branch. Each branch, separate but co-equal, is not subordinate to another, no branch to arrogate to itself control the other. Friedrich, 192 Wis.2d at 13, 531 N.W.2d 32 (citing Holmes, 106 Wis.2d at 42, 315 N.W.2d 703).

¶10 The constitutional powers of each branch of government fall into two categories: exclusive powers and shared powers. Each branch has exclusive core constitutional powers into which other branches may not intrude. Friedrich, 192 Wis.2d at 13, 531 N.W.2d 32 (citing State ex rel. Fiedler v. Wisconsin Senate, 155 Wis.2d 94, 100, 454 N.W.2d 770 (1990)).

¶11 Shared powers lie at the intersections of these exclusive core constitutional powers. These " '[g]reat borderlands of power' " are not exclusive to any one branch. Friedrich, 192 Wis.2d at 14, 531 N.W.2d 32 (citing In re Appointment of Revisor, 141 Wis. 592, 597, 124 N.W. 670 (1910)). "While each branch jealously guards its exclusive powers, our system of government envisions the branches sharing the powers found in these great borderlands. (Citation omitted). Ours is a system of ' "separateness but interdependence, autonomy but reciprocity." ' " Flynn v. Department of Administration, 216 Wis.2d 521, 546, 576 N.W.2d 245 (1998) (citing Friedrich, 192 Wis.2d at 14, 531 N.W.2d 32 (quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635, 72 S.Ct. 863, 96 L.Ed. 1153 (1952))). The branches may exercise power within these borderlands but no branch may unduly burden or substantially interfere with another branch. Friedrich, 192 Wis.2d at 14, 531 N.W.2d 32 (citing State v. Unnamed Defendant, 150 Wis.2d 352, 360, 441 N.W.2d 696 (1989)). "This subtle balancing of shared powers, coupled with the sparing demarcation of exclusive powers, has enabled a deliberately unwieldy system of government to endure successfully for nearly 150 years." Friedrich, 192 Wis.2d at 14, 531 N.W.2d 32.

¶12 In the present case, Horn argues that Wis. Stat. § 973.10(2), requiring administrative revocation of probation, impermissibly intrudes upon the judiciary's constitutional power to sentence criminal defendants. To determine whether legislation unconstitutionally intrudes upon judicial power and therefore violates the separation of powers doctrine, this court developed a three-part test. Flynn, 216 Wis.2d at 546-47, 576 N.W.2d 245. We must first determine whether the subject matter of the statute is within powers constitutionally granted to the legislature. Id. at 546, 576 N.W.2d 245 (citing Friedrich, 192 Wis.2d at 14, 531 N.W.2d 32). The second inquiry is whether the subject matter of the statute falls within powers constitutionally granted to the judiciary. Flynn, 216 Wis.2d at 546, 576 N.W.2d 245 (citing Friedrich, 192 Wis.2d at 14-15, 531 N.W.2d 32). If the subject matter of the statute is within the judiciary's constitutional powers but not within powers constitutionally granted to either the legislature or executive branch, the subject matter is within the judiciary's core zone of exclusive power. Flynn, 216 Wis.2d at 546, 576 N.W.2d 245. Any exercise of power by the legislature or executive branch within such an area is an unconstitutional violation of the separation of powers doctrine. Id. (citing In Matter of Complaint Against Grady, 118 Wis.2d 762, 776, 348 N.W.2d 559 (1984)). The judiciary may recognize such an exercise of power but only as a matter of comity and courtesy, not as an acknowledgment of power. Flynn, 216 Wis.2d at 546, 576 N.W.2d 245 (citing Friedrich, 192 Wis.2d at 15, 531 N.W.2d 32).

¶13 If the subject matter of the statute is within the powers constitutionally granted to the judiciary and the legislature, the statute is within an area of shared powers. Flynn, 216 Wis.2d at 547, 576 N.W.2d 245. Such a statute is constitutional if it does not unduly burden or substantially interfere with either branch. Id. (citing Friedrich, 192 Wis.2d at 15, 531 N.W.2d 32). "The focus of this evaluation is on whether one branch's exercise of power has impermissibly...