State v. Conger

SHIRLEY S. ABRAHAMSON, C.J.

¶ 52. (concurring). I join the majority opinion. I write separately for two reasons:

¶ 53. First, to underscore that although the majority opinion affirms a circuit court's de novo determination whether to reject a plea agreement involving amendment or dismissal of initial charges, the majority opinion appropriately stresses the significant weight a circuit court should give to the district attorney's recommendation and evaluation of the public interest, as encompassed in the plea agreement.

*702¶ 54. Second, to respond to the dissent, which laments that the court has expanded the power of the judiciary and has crossed "a well understood[] line separating a core power of the executive branch — the power to prosecute criminal actions — from the power of the judiciary to adjudicate those actions." Dissent, ¶ 97. Somewhat contradictorily, the dissent acknowledges that the line separating judicial and executive powers is "indistinct." Id.

¶ 55. The dissent acknowledges that courts may review amendments to initial charges to protect defendants from prejudice. Dissent, ¶ 141. Beyond this, the dissent offers no standard of review to guide circuit courts in deciding whether to reject a proposed plea agreement involving the amendment or dismissal of charges. The only answer that can be deciphered from the dissent is that there is no court review of a district attorney's decision to amend or dismiss a charge. According to the dissent, district attorneys have the exclusive authority to determine whether a plea agreement involving amendment or dismissal of initial charges is in the public interest.

¶ 56. How can that be? Once charges are filed in court, the district attorney is the attorney for the State, which is a party to the criminal proceedings.1 Placing unlimited, non-reviewable, exclusive power in the district attorney to amend or discharge charges, as the dissent proposes, undermines the deliberative process of the circuit court in deciding cases and circumvents the judiciary's duty to administer justice impartially and independently.

*703¶ 57. Wisconsin's constitutional history, the statutory history, and long-standing precedents of this court demonstrate that a circuit court's evaluation of a plea agreement involving amendment or dismissal of initial charges is not in derogation of the separation of powers doctrine but rather maintains proper checks and balances between government branches and protects the public interest.

I

¶ 58. I conclude, like the majority opinion and in contrast to the dissent, that courts have the power to review the discretion of district attorneys in amending or dismissing a charge. Indeed no one disputes this rule of law — not the State, not the defendant, not the amicus.2 Only the dissent disputes the rule of law. Yet judicial review is a safety valve needed to assure fairness and to promote trust in the legal system.

¶ 59. The question before the court is what standard a circuit court should use in deciding whether to reject a proposed plea agreement involving the amendment or dismissal of charges.3

¶ 60. My initial view was that the circuit court should review the plea agreement to determine whether the prosecutor erroneously exercised his or her discretion.4 In other words, I thought that the circuit court *704should review the prosecutor's decision about changing the charges in a plea agreement by asking whether the prosecutor erroneously exercised his or her discretion. Allowing the prosecutor substantial independence in amending or dismissing charges once the case is before the court is proper because the prosecutor has investigated the offense and has more information than the circuit court.

¶ 61. Nevertheless, I join the majority opinion because although the majority opinion does not adopt the erroneous exercise of discretion standard, the majority stresses the significant weight a circuit court should give to the prosecutor's recommendations as encompassed in a plea agreement.

¶ 62. Wisconsin law has long recognized, and the majority opinion here maintains, that district attorneys are "quasi-judicial" officers, engaged in sharing responsibility with the courts to assure that justice is done. Majority op., ¶ 19 (quoting State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶ 28, 271 Wis. 2d 633, 681 N.W.2d 110). The majority opinion calls attention to the fact that "prosecutor[s] .. . are afforded necessarily wide deference to do their jobs." Majority op., ¶ 19. The majority opinion underscores "the public interest in allowing the prosecutor sufficient freedom to exercise his [or her] legitimate discretion, to employ to the best effect his [or her] experience and training, and to make the subjective judgment implicit in the broad *705grant of authority under sec. 59.47, Stats." Majority op., ¶ 26 (quoting State v. Kenyon, 85 Wis. 2d 36, 47, 270 N.W.2d 160 (1978)).

¶ 63. Thus the majority opinion is sufficiently deferential to the district attorney to preserve the office's necessary autonomy and is flexible enough to allow a circuit court to reject a plea agreement that is not in the public interest. The majority recognizes that the prosecutor's free exercise of authorized discretion is in itself a valuable public interest.5

¶ 64. Thus, contrary to the dissent's anxiety that the majority opinion will lead to second-guessing of circuit courts' approval of plea agreements by unspecified "third parties,"6 and that the majority's weighting of the prosecutor's recommendation is a "fig leaf,"7 I take the majority seriously and at its word when it credits the recommendation and reasoning of prosecutors entering into plea agreements.8 Today's decision maintains the circuit court's established and constitutional role.

*706II

¶ 65. Simply put, it is peculiarly the province of all Wisconsin courts, and especially this Court, to interpret our state constitution and to "say what the law is."9 The majority decision in this case preserves the respective roles of the courts and the district attorney. The dissent's anxiety about a violation of the separation of powers is unfounded.10

¶ 66. The present case involves the power of a circuit court to reject a district attorney's request to amend or dismiss a charge that has been filed.

¶ 67. Stridently objecting to the majority opinion as a judicial usurpation of executive power, the dissent spins a long, winding tale about the powers of district attorneys and courts, citing constitutional, statutory, *707and case law. And where does the dissent wind up? Agreeing with the majority!

¶ 68. The dissent concludes that "the majority decision is foreshadowed in previous cases." Dissent, ¶ 162.

¶ 69. The dissent takes several approaches (explicit and implicit) in an attempt to refute the majority opinion and the numerous Wisconsin decisions that recognize the power of a trial judge to refuse to accept a proposed plea agreement that involves a reduction or dismissal of charges. None of the dissent's approaches is persuasive.

1. The dissent asserts that there exists an "indistinct" hut "well understood line separating a core power in the executive branch — the power to prosecute criminal actions from the power of the judiciary to adjudicate those actions." Dissent, II 97.

¶ 70. Response: The dissent fails to cite to any authority establishing this "well understood line" or establishing a "core executive power to prosecute criminal actions." Indeed, the well-accepted law is that the district attorney has no "core" powers, or any other powers, other than what the statutes provide.

¶ 71. The district attorney is mentioned in the Wisconsin Constitution in Article VI, Section 4, (1)(a), (1)(c), and (5). The method of selection (election), term of office, and procedures to fill vacancies are set forth; nothing more. Absent constitutional provisions, the powers of the office of district attorney have been set forth by the legislature and have evolved over the years. *708¶ 72. The court has stated that "the position of district attorney, though constitutional, was not one of inherent powers, but was answerable to specific directions of the legislature."11

¶ 73. Circuit courts, on the other hand, have the power to adjudicate and have inherent and implicit power in performing their functions.12

2. The dissent asserts that the district attorney has broad discretion to determine whether to file charges, that is, to initiate a prosecution. Dissent, ¶¶ 116, 132-35.

¶ 74. Response: True. See dissent, ¶¶ 116-17 (describing State ex rel. Kurkierewicz v. Cannon, 42 Wis. 2d 368, 166 N.W.2d 255 (1969) (no writ of mandamus lies to compel district attorney to conduct an inquest)).

¶ 75. But this case does not involve the district attorney's power to decide whether to file a charge. The majority opinion does not interfere with the district attorney's decisionmaking regarding whether and what to charge.

*709¶ 76. The present case involves the power of the court and district attorney once the district attorney has decided whether and what to charge. When charges are filed, the State is a party to the action and is represented before the court by the district attorney.

¶ 77. More importantly, however, the power to file charges, to initiate prosecution, is not the exclusive power of the district attorney. Rather, it is a power shared by the district attorney and the judiciary, as the dissent must concede. Dissent, ¶ 135.

¶ 78. When the Wisconsin Constitution was adopted, and until the present day, the district attorney did not have exclusive power to determine whether to file charges, that is, whether to initiate prosecution. A trial court has power to initiate a charge when the district attorney does not.

¶ 79. Twenty-first century lawyers view the district attorney as the public prosecutor, but historically the victim, not the state, was the prosecutor.13 Before the adoption of the Constitution (and thereafter),14 judges were authorized to initiate criminal prosecu*710tions.15 "Doubtless, at the time of the state's origin ... magistrates played a central role in initiating prosecutions, in contrast to the ambiguous role of district attorneys."16

*711¶ 80. It was not until 1945 that district attorneys were given explicit statutory authority, coextensive with the powers of the courts, to issue criminal complaints.17 Only in 1969 did the legislature give district attorneys the primary (but not exclusive) statutory authority to charge criminal offenses.18

¶ 81. While the 1969 revision of the criminal code gave the district attorney "a greater voice in the initiating of criminal proceedings,"19 circuit courts retained a role in the charging function. Wisconsin Stat. § 968.02(3) (1969)20 permits circuit court judges to initiate prosecutions if the district attorney is unavail*712able or refuses to issue a complaint. Similarly, Wis. Stat. § 968.26 (1969) permits circuit court judges to issue criminal complaints.21

¶ 82. During the nineteenth and twentieth centuries the powers of the district attorney increased, but the power of the courts in initiating prosecutions has continued to be recognized by the legislature and the courts as a judicial function.22

¶ 83. Thus initiating criminal charges is not an exclusive function of the district attorney. The district attorney shares the power to initiate criminal charges with the judiciary.

3. The dissent discounts our prior cases that conclude a trial court may reject a plea and may reject a plea agreement that does not serve the public interest.

¶ 84. Response: Case law recognizes that a trial court has inherent and statutory power to reject a plea and in particular to reject a plea agreement that does not serve the public interest. The dissent asks this court to overturn precedent.

¶ 85. At least as early as 1945, the Wisconsin Supreme Court has declared that "[t]he right of the court to refuse to accept a plea is an inherent power of all criminal courts." State v. La Pean, 247 Wis. 302, 308, 19 N.W.2d 289 (1945).

*713¶ 86. A recurring theme of Wisconsin cases is that a trial judge may refuse to accept a proposed plea agreement that involves a reduction or dismissal of charges.

¶ 87. The dissent urges that the court not abide by these cases. The dissent at ¶ 125 objects that "Guinther23 represents nearly open-ended authority for courts to pursue prosecution over the opposition of executive branch officials." The dissent further seeks to marginalize and avoid the law of Guinther on historical and ideological bases. See dissent, ¶¶ 101-115, 125.

¶ 88. The dissent does not want to follow State v. Kenyon, 85 Wis. 2d 36, 44-45, 270 N.W.2d 160 (1978). See dissent, ¶¶ 118-125. The Kenyon court, after examining prior cases (including Guinther), concluded that once a case is filed, the trial court has the duty to consider the public interest in determining whether to grant or deny a district attorney's motion to dismiss the case. The district attorney's determination whether to initiate a criminal prosecution is "almost limitless," but once the "jurisdiction of the court is invoked by the commencement of a criminal proceeding, the court can exercise the discretion described in Guinther, supra."24 If, as Kenyon holds, a trial court has the power to deny a district attorney's motion to dismiss a case, the trial court surely has the lesser power to deny a district attorney's motion to amend or dismiss a charge.

¶ 89. The dissent is dismissive of State v. Comstock, 168 Wis. 2d 915, 927 & n.11, 485 N.W.2d 354 (1992). See dissent, ¶¶ 149-50. The Comstock court stated that a circuit court must satisfy itself that the *714amendments to a charge are in the public interest: "A circuit court may, as this court has written, ask sufficient questions, including the prosecutor's reasons for entering the plea agreement, to satisfy itself of the wisdom of accepting the plea to reduced charges. This is the law of longstanding in this state" (citations omitted). Comstock, 168 Wis. 2d at 927.

¶ 90. The dissent is critical of the majority's adhering to State v. Lloyd, 104 Wis. 2d 49, 310 N.W.2d 617 (Ct. App. 1981). See dissent, ¶ 154. In Lloyd, the court of appeals approved the circuit court's rejection of a joint motion by the prosecutor and defendant to dismiss the information; the circuit court appointed a special prosecutor to prosecute the case.

¶ 91. The dissent's examination of Wis. Stat. § 971.29(1) and related statutes yields no plain text interpretation or legislative history that contravenes the majority opinion's interpretation of § 971.29(1) as requiring court approval for a prosecutor's amendment or dismissal of a charge. See dissent, ¶¶ 136-142. So, the dissent resorts to conclusory statements about the statutes to support its view. See dissent, ¶ 142. An underlying premise of Wis. Stat. § 971.29, which the majority identifies, is that the circuit court retains authority to approve or disapprove amendments, limited by Wis. Stat. § 971.29(1), which allows amendments without leave of the court when they are brought "prior to arraignment."25

¶ 92. Even a brief review of the history of the relative powers of the district attorney and trial court in criminal cases thus demonstrates the basic point that *715there are historically shared powers between the executive and judicial branch relating to charging and amending or dismissing charges. The present decision does not, as the dissent claims, embody a novel departure from past cases, impose a new balance of power between prosecutors and trial courts, or cross an "indistinct," unidentified threshold altering the well-established allocation of powers and duties of the district attorney and judiciary.

¶ 93. In light of the constitutional and legislative histories and the precedents of this court interpreting the respective powers of the district attorney and the trial court, the majority opinion's conclusion that a circuit court may reject a district attorney's amendment or dismissal of a charge does not violate the separation of powers doctrine as it has existed in this state for over 162 years.

¶ 94. For the reasons set forth, I write separately.

See State v. Stenklyft, 2005 WI 71, ¶ 106, 281 Wis. 2d 484, 697 N.W.2d 769 (Abrahamson, C.J., concurring in part & dissenting in part) (citations omitted).

Non-party brief of Ben Kempinen, Clinical Professor and Director, Prosecution Project, Frank J. Remington Center, University of Wisconsin Law School, Madison, Wisconsin.

As stated by the court of appeals certification, the first issue presented for review is 'What is the trial court's scope of review when deciding whether to accept or reject a plea agreement?"

As this court has explained, prosecutors have great discretion in determining whether to commence a prosecution and *704are generally accountable to the people, and not to courts, for how they exercise that power, but that power has bounds; the power must be balanced against the need to avoid arbitrary, discriminatory, or oppressive results. State v. Karpinski, 92 Wis. 2d 599, 607-08, 285 N.W.2d 729 (1979).

See majority op., ¶ 31 (proper weighting of the prosecutor's recommendation and reasoning "reflects the court's interest in honoring the public interest in providing a prosecutor freedom to exercise the discretion that his or her position authorizes.").

Dissent, ¶ 158.

Id., ¶ 157.

In addition to the American Bar Association's Standard 14—1.8, which the majority cites with approval at ¶ 34 for its discussion of factors bearing on the circuit court's evaluation of the public interest, the majority's determination is in keeping with the ABA's Standard 14-1.1(b), regarding receiving and acting on a plea: "[A]ppropriate consideration should be given to the views of the parties, the interests of the victims and the interest of the public in the effective administration of justice."

State ex rel. Wis. Senate v. Thompson, 144 Wis. 2d 429, 436, 424 N.W.2d 385 (1988) ("We deem it to be this court's duty to resolve disputes regarding the constitutional functions of different branches of state government; we may not avoid this duty simply because one or both parties are coordinate branches of government.").

The Wisconsin Constitution vests executive power in the governor and legislative power in the two houses of the legislature. The judicial power rests in a unified court system. This division of responsibility evinces the separation of powers doctrine in our government. Stenklyft, 281 Wis. 2d 484, ¶ 88 (Abrahamson, C.J., concurring in part & dissenting in part).

Although the principles of the separation of powers are easily stated, "the boundaries that separate the powers of the three branches are shadowy and not well defined. It is the duty of the court to define them, and see that they are respected." Stenklyft, 281 Wis. 2d 484, ¶ 88 (Abrahamson, C.J., concurring in part & dissenting in part) (citing Thoe v. Chicago, Milwaukee & St. Paul Ry. Co., 181 Wis. 456, 195 N.W. 407 (1923) (internal quotation marks omitted)).

State ex rel. Kurkierewicz v. Cannon, 42 Wis. 2d 368, 380, 166 N.W.2d 255 (1969).

Similarly, the powers of the attorney general are circumscribed by statute, although he or she is a constitutional officer. State of Wisconsin v. City of Oak Creek, 2000 WI 9, ¶¶ 15-16, 20, 232 Wis. 2d 612, 605 N.W.2d 526. "[U]nless the power to [bring] a specific action is granted by law, the office of the attorney general is powerless to act." Id. at ¶ 22 (second brackets in original). This is settled law that does not gravely undermine the separation of powers; neither does maintaining long-established checks and balances on the discretionary authority of district attorneys around the state.

See State v. Cannon, 196 Wis. 534, 221 N.W. 603 (1928).

For a history of district attorneys and their powers in Wisconsin, see State ex rel. Unnamed Petitioners v. Connors, 136 Wis. 2d 118, 401 N.W.2d 782 (1987) (overruled by State v. Unnamed Defendant, 150 Wis. 2d 352, 365-67, 441 N.W.2d 696 (1989)); State v. Unnamed Defendant, 150 Wis. 2d 352, 441 N.W.2d 696 (1989); Frank J. Remington & Wayne A. Logan, Frank Miller and the Decision to Prosecute, 69 Wash. U.L.Q. 159 (1991); Wayne A. Logan, Comment, A Proposed Check on the Charging Discretion of Wisconsin Prosecutors, 1990 Wis. L. Rev. 1695; Samuel Becker, Judicial Scrutiny of Prosecutorial Discretion in the Decision Not to File a Complaint, 71 Marq. L. Rev. 749 (1988).

The early statutory history is relevant because in interpreting the Wisconsin constitution courts examine (1) the plain meaning of the words in the context used; (2) the. historical *710analysis of the constitutional debates and the practices in existence in 1848; and (3) the earliest interpretations of the section by the legislature as manifested in the first law passed following adoption of the constitution. State v. Beno, 116 Wis. 2d 122, 136-37, 341 N.W.2d 668 (1984).

For state constitutional interpretation, see also Borgnis v. Falk Co., 147 Wis. 327, 349-50, 133 N.W. 209 (1911) ("Where there is no express command or prohibition, but only general language or policy to be considered, the conditions prevailing at the time of [the constitution's] adoption must have their due weight; but the changed social, economic, and governmental constitutions and ideals of the time, as well as the problems which the changes have produced, must also logically enter into the consideration, and become influential factors in the settlement of problems of construction and interpretation."). See also B.F. Sturtevant Co. v. Indus. Comm'n, 186 Wis. 10, 19, 202 N.W. 324 (1927); In re Village of Chenequa, 197 Wis. 163, 171, 221 N.W. 856 (1928).

Unnamed Defendant, 150 Wis. 2d at 363.

Wayne A. Logan, Comment, A Proposed Check on the Charging Discretion ofWisconsin Prosecutors, 1990 Wis. L. Rev. 1695, 1710.

1878 Rev. Stat. Section 4653 granted the district attorney the power not to file an information, but the power was subject to the trial court's approval. The trial court could direct the district attorney to file the proper information and bring the case to trial:

The district attorney of the proper county shall inquire into and make full examination of all facts and circumstances connected with any case of preliminary examination, as provided by law, touching the commission of any offense whereon the offender shall have been committed to jail, or become recognized or held to bail, and to file an information setting forth the crime committed, according to the facts ascertained on such examination, and from *711the written testimony taken thereon, whether it be the offense charged in the complaint on which the examination was had or not; but if the district attorney shall determine in any such case that an information ought not to be filed, he shall make, subscribe and file with the clerk of the court, a statement in writing, containing his reasons, in fact and in law, for not filing an information in such case; such statement shall be filed at and during the term of the court at which the offender shall be held for appearance for trial; and in such case the court shall examine such statement, together with the evidence filed in the case, and if, upon such examination, the court shall not be satisfied with such statement, the district attorney shall be directed by the court to file the proper information and bring the case to trial (emphasis added).

For a discussion of the origin and early history of magistrates issuing criminal complaints and exercising a judicial, rather than an administrative or ministerial function, see State ex rel. Long v. Keyes, 75 Wis. 288, 44 N.W. 13 (1889).

Wis. Stat. § 361.02(1) (1945); see also Samuel Becker, Judicial Scrutiny of Prosecutorial Discretion in the Decision Not to File a Complaint, 71 Marq. L. Rev. 749, 756, 766.

Unnamed Defendant, 150 Wis. 2d at 363.

Wis. Stat. Ann. § 968.02, Comments—L. 1969, c. 255 (West 2007).

See also Wis. Stat. § 968.02(3) (2007-08).

See also Wis. Stat. § 968.26 (2007-08). See also § 2, ch. 369, Territorial Stats. of Wis. (1839).

The "John Doe" statute authorizing courts to issue a complaint upon finding probable cause has been in force since 1849. See Wis. Stat. § 968.26 (2007-08); Unnamed Defendant, 150 Wis. 2d at 363; Frank Remington & Wayne A. Logan, Frank Miller and the Decision to Prosecute, 69 Wash. U.L.Q. 159, 164 (1991).

Guinther v. City of Milwaukee, 217 Wis. 334, 339-40, 258 N.W. 865 (1935).

State v. Kenyon, 85 Wis. 2d 36, 45, 270 N.W.2d 160 (1978).

Wagner v. State, 60 Wis. 2d 722, 726, 211 N.W.2d 449 (1973), which the dissent cites, supports this proposition: "the trial court may allow amendment" or "may reject a proposed amendment."