¶ 95. (dissenting). From time to time, the Wisconsin Supreme Court is required to address the proper role of the judiciary in our system of government. The issue may arise in cases or rules. When it does, the court may face profound questions about the separation of powers.
¶ 96. It should come as no surprise that the court, operating without an effective check, has often decided these questions by expanding the power of the judiciary at the expense of other branches of government. This case is the latest example of that phenomenon.
¶ 97. In my view, the present decision crosses an indistinct, but well understood, line separating a core power of the executive branch — the power to prosecute criminal actions — from the power of the judicial branch to adjudicate those actions. I fear that what today may *716be viewed as a popular pronouncement that is "tough on crime," will tomorrow lead to consequences that compromise the impartiality of circuit courts. For these and other reasons, I respectfully dissent.
I
¶ 98. The court reaches the following conclusions:
(A) "[A] circuit court must review a plea agreement independently and may, if it appropriately exercises its discretion, reject any plea agreement that does not, in its view, serve the public interest." Majority op., ¶¶ 3, 48.
(B) "[Djeciding whether to reject a plea agreement is squarely within the court's authority; to hold otherwise would permit encroachment by the executive branch into the realm that has historically, in Wisconsin, been that of the judicial branch." Id., ¶ 24.
(C) "Our approach vests authority in the circuit court to determine what pleas are in the public interest without permitting the court to intrude on the authority of the prosecutor to decide what charges to file or whether to file charges in the first instance." Id., ¶ 26.
(D) "We . . . hold that a circuit court may, in an appropriate exercise of discretion, reject a plea agreement that it deems not to be in the public interest." Id., ¶ 27.
¶ 99. The court bases these conclusions on Wis. Stat. § 971.29 and "the circuit court's inherent authority to reject a plea that is not in the public interest." Id., ¶ 3.
¶ 100. These bases should be carefully examined, beginning with the court's "inherent authority."
*717II
¶ 101. On September 27, 1933, Dr. Hans Luther, the German ambassador to the United States, was scheduled to appear at the Milwaukee Club on North Jefferson Street in downtown Milwaukee, directly across from the Pfister Hotel.1 Luther, who had recently been named to his post by German Chancellor Adolf Hitler, was expected to arrive at the Club at 1:00 pm.
¶ 102. Several hours before the ambassador's arrival, groups of people representing various organizations opposed to German Fascism began to gather near the entrance to the Club. The organizations included The German United Front Against Fascism, The Jewish Committee Against Fascism, the International Defense, The John Reed Club, the Communist Party, and the Young Communist League. A number of persons in the crowd carried signs, one bearing the inscription, "Luther, agent of the bloody Hitler." Another read: "Roosevelt, where is the unemployment insurance you promised the workers?"
¶ 103. The assemblage was called to order by Lillian Husa, who introduced Ivan Koss, Frederick Bassett, and Harry Yaris, who spoke to the crowd of approximately 200 that had spilled into the street and effectively obstructed entry to the Club. All four were later prosecuted criminally for unlawful assembly and riot. See Koss v. State, 217 Wis. 325, 327-28, 258 N.W. 860 (1935).
*718¶ 104. In time, police officers began efforts to disperse the crowd. They met with resistance. According to one account, the crowd formed a tight circle, with interlocked arms, to protect the speakers. After one of the speakers was arrested, a fight broke out that lasted about 25 minutes. Police arrested at least 16 additional persons, including Walter Guinther, who were engaged in the commotion and melee. The 16 were taken into custody, charged with disorderly conduct under a city ordinance, and brought before the district court the following day. Upon motion of the defendants, the case was continued until October 5.
¶ 105. On that day, the assistant city attorney, Max Raskin, moved to dismiss the action and discharge the defendants. A "friend of the court," Attorney Walter Bender, asked the court to adjourn the case for two weeks to enable the Milwaukee Common Council to decide whether the action should be prosecuted or dismissed.2
¶ 106. The district court denied Raskin's motion and set a trial for October 19. When that date arrived, the city attorney's office declined to participate, whereupon the district court asked Attorney George Affeldt to prosecute the action in place of the city attorney. The case proceeded to trial. The defendants refused to take part and were convicted.
¶ 107. The defendants then appealed to municipal court. Circuit Judge G.N. Risjord of Ashland3 was brought in to preside. On the day of trial, an assistant city attorney moved to dismiss the case and discharge the defendants. After the court denied the motion, Attorney Affeldt was again called upon to prosecute the *719case. The court impaneled a jury, which convicted all 16 defendants of disorderly conduct. After unsuccessful post-conviction motions, the defendants appealed.
¶ 108. In this court, the city and the defendants were aligned against Attorney Affeldt, amicus curiae, whom Judge Risjord had described as, "in a sense ... a representative of the court." "It may be irregular," the judge added, "but we will thresh that out afterwards."
¶ 109. On appeal, the parties agreed that the disorderly conduct prosecution was a civil case. They also agreed that dismissal of the case could not be effected without an order of the court. The pivotal issues were whether a court could carry forward a prosecution that the city attorney had not started and had moved to dismiss, and whether the court had authority to appoint its own counsel to prosecute the case in lieu of a city attorney who refused to act.
¶ 110. This court said the following:
The city attorney is an important official, but the people, through their representatives in the legislature and the common council, have not placed the fate of efforts to maintain law and order entirely in his hands. Where a public interest is involved, or the interest of a third party, it is the duty of the court to consider those interests in determining whether or not to dismiss an action. In this particular, and for the purpose of the accomplishment of peace and safety, the people have placed upon the police department a considerable responsibility as well as upon the city attorney. Each have a duty. The history of the affairs of the city, as disclosed by the record in the court, shows that ordinarily the different departments coincide in their views, have a common purpose, and that each has a due appreciation of its responsibilities. When it does happen that a prosecution begun by the police department is sought to *720be terminated by the city attorney, the law places upon the court the duty of deciding whether or not the welfare of the people, the public interest, will be served by sustaining a motion on the part of the city attorney to dismiss, or whether the court should retain jurisdiction and proceed with the trial.
The district court is a court of record. It is vested with exclusive jurisdiction to examine, try, and sentence all offenders against the ordinances of the city. When the people placed this exclusive jurisdiction in the court for the purposes referred to, they necessarily and certainly included with the responsibility, the full and complete power to take all steps necessary to make their requirement effective. This would seem to answer the contentions of the city attorney and the attorney for the plaintiffs in error. But in this connection it may be well to point out a little more specifically that in the enforcement of the city ordinances the police official is required by the people "to cause the public peace to be preserved, and to see that all the laws and ordinances of the city are enforced, and whenever any violation thereof shall come to his knowledge, he shall cause the requisite complaint to be made, and see that the evidence is procured for the successful prosecution of the offender or offenders." Sec. 9771, Milwaukee Code (1914).
The district court as well as the municipal court complied with the requirements exacted of them by the people as expressed in their legislation. The denial of the motion to dismiss is sustained.
Guinther v. City of Milwaukee, 217 Wis. 334, 339-40, 258 N.W. 865 (1935) (emphasis added) (citations omitted).
¶ 111. In his argument to the court, the Milwaukee city attorney conceded that in Wisconsin the "plaintiff has no absolute right to the discontinuance of an action once begun." Nonetheless, he explained, Wiscon*721sin developed a rule contrary to common law to meet three well defined situations: (1) cases in which the defendant objected to the dismissal; (2) cases in which the defendant and plaintiff agreed to the dismissal but the rights of third parties would be foreclosed; and (3) cases in which the plaintiff moved for dismissal after a trial had been held and the court was fully apprised in the premises.
¶ 112. Upon examination, it is clear that in Guinther, the city attorney did not initiate the civil prosecution; it was commenced by the police. In addition, the dismissal motion was not one objected to by any defendant or considered after a trial.
¶ 113. Thus, the case was one, at best, in which the rights of third parties [the people] would be foreclosed, although the state could have sought criminal charges against the 16 defendants, as it did against others.
¶ 114. In reality, the district court, the municipal court, and the supreme court substituted their view of the "public interest" for the view of the elected socialist government of Milwaukee. The court did not rely on statute for its authority.4 By the circuit court's own words, the court's appointed prosecutor became "the representative of the court."
¶ 115. The city attorney contended that:
The people of the city of Milwaukee elect the officers to conduct their business. These officers have certain specified duties. The acts of these officers are always subject to criticism and their policies to disagreement. The differences that arise from such disagreements are properly determined on the political field.
*722The Guinther court rejected this contention. It is Guinther upon which the majority builds its doctrine of inherent authority.
¶ 116. In 1969 this court decided State ex rel. Kurkierewicz v. Cannon, 42 Wis. 2d 368, 166 N.W.2d 255 (1969). The court was asked to review a circuit court writ of mandamus directing Milwaukee County District Attorney David Cannon to conduct an inquest, as provided in Wis. Stat. § 966.01 (1967-68). The court ultimately ruled that Cannon had acted within the bounds of his discretion in not ordering an inquest, and it reversed the circuit court. The court, in an opinion by Justice Heffernan, made these observations:
The district attorney in Wisconsin is a constitutional officer and is endowed with a discretion that approaches the quasi-judicial.
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 wilfully 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.
*723The district attorney's function, in general, is of a discretionary type, the performance of which is not compellable in mandamus. 27 C.J.S., p. 648, sec. 10, District and Prosecuting Attorneys, summarizes, correctly we believe, the broad nature of the discretion conferred upon the district attorney:
"The prosecuting attorney has wide discretion in the manner in which his duty shall be performed, and such discretion cannot be interfered with by the courts unless he is proceeding, or is about to proceed, without or in excess of jurisdiction. Thus, except as ordained by law, in the performance of official acts he may use his own discretion without obligation to follow the judgment of others who may offer suggestions; and his conclusions in the discharge of his official liabilities and responsibilities are not in any wise subservient to the views of the judge as to the handling of the state's case."
Kurkierewicz, 42 Wis. 2d at 378-79 (emphasis added) (citation omitted).
¶ 117. The court identified an exception to the district attorney's broad discretion, namely, "where the legislature has spoken and directed the performance of duties under particular facts." Id. at 379 (emphasis added). The court said that Wis. Stat. § 966.01 provided one of those directives. Id. at 380. Nonetheless, the court recognized discretion in a district attorney's application of the statute — discretion that District Attorney Cannon had exercised. Consequently, the court reversed, remanding the case to the circuit court with direction to quash the writ. Id. at 385.
¶ 118. Kurkierewicz did not cite Guinther. State v. Kenyon, 85 Wis. 2d 36, 270 N.W.2d 160 (1978), did. Kenyon involved a felony prosecution for criminal damage to property. The defendant was accused of deliberately driving his car in such manner as to hit and *724damage two groups of motorcycles parked on opposite sides of the street. Id. at 38.
¶ 119. At the time the complaint was filed, the defendant was in Texas. He voluntarily returned to Wisconsin for a combined initial appearance and preliminary examination. At the hearing, the court sustained objections to testimony by four motorcycle owners as to the dollar value of the damage. Id. at 39. The effect of the court's ruling — in the absence of other witnesses who could testify authoritatively as to the value of the damage — was to jeopardize the felony prosecution, and eventually the court reduced the charge to a misdemeanor. Thus, the district attorney moved to dismiss the complaint without prejudice. Id.
¶ 120. The court denied the motion, contending that a dismissal, permitting a new charge to be filed after additional witnesses could be rounded up, would be inconvenient and unfair to the Texas defendant. Id. at 40.
¶ 121. In reviewing these facts, this court quoted extensively from Kurkierewicz. It also wrote:
The general rule regarding nolle prosequi has been summarized as follows:
"Sec. 514. Power of prosecuting attorney.
In the absence of a controlling statute or rule of court, the power to enter a nolle prosequi before the jury is impaneled and sworn lies in the sole discretion of the prosecuting officer. This is true regardless of the attitude of the court." 21 Am. Jur.2d, Criminal Law, p. 504, sec. 514 (1965).
Kenyon, 85 Wis. 2d at 43.
¶ 122. The court then observed that Wisconsin has "departed from the general rule and has retained in the courts some limitation on the discretion of the *725district attorney in nolle prosequi" cases.5 The court cited Guinther and quoted several passages including the statement that "the law places upon the court the duty of deciding whether or not the welfare of the people, the public interest, will be served by sustaining a motion... to dismiss, or whether the court should retain jurisdiction and proceed with this trial." Kenyon, 85 Wis. 2d at 44 (emphasis added).
¶ 123. The court summed up the law as follows: "[W]e believe the holding in Guinther is clear and conclusive. Prosecutorial discretion to terminate a pending prosecution in Wisconsin is subject to the independent authority of the trial court to grant or refuse a motion to dismiss 'in the public interest.'" Id. at 45 (emphasis added).
¶ 124. In a footnote, the Kenyon court withdrew its once enthusiastic citation of 27 C.J.S., p. 648, sec. 10, explaining that it was "dicta." Id. at 45 n.4. Nonetheless, the Kenyon court vacated the decision of the circuit court, remanding the case for an explanation of "the public interest." Id. at 47, 52-53.
¶ 125. These three cases are cited by the majority as precedent for the court's decision. Guinther and Kenyon involve requests by prosecutors to dismiss cases, albeit for different reasons. The city attorney in Guinther did not wish to pursue a prosecution, perhaps for ideological reasons, after the defendants had spent time in jail. The district attorney in Kenyon clearly wished to continue a felony prosecution and sought dismissal without prejudice in order to do so. As written, Guinther represents nearly open-ended authority *726for courts to pursue prosecution over the opposition of executive branch officials. Neither Guinther nor Kenyon relied on a statutory directive to support its analysis. In fact, these cases place very little reliance on statutes as authority for the court's actions.
¶ 126. The concurrence written by Chief Justice Abrahamson attempts to bolster the majority opinion by asserting that the charging function in criminal cases has always been a power shared by the judicial branch. Although there is historical basis for this assertion, the judicial role in charging decisions has traditionally been grounded in statute,6 not in a court's "inherent authority." That is why the Guinther decision represented a significant break from past precedent.
¶ 127. Before the adoption of the Wisconsin Constitution in 1848 and in the years following adoption until 1945, local judges were vested by statute with the exclusive authority to file complaints in criminal cases after examining complainants. See Wis. Stat. ch. 369, § 1-2 (1839); Wis. Stat. ch. 145, § 1-2 (1849).
¶ 128. The law was codified, in part, in section 4776 of Sandborn & Berryman Annotated Statutes of Wisconsin 1889:
Complaint and warrant. Section 4776. Upon complaint made to any such magistrate that a criminal offense has been committed, he shall examine, on oath, the complainant, and any witness produced by him, and shall reduce the complaint to writing, and shall cause the same to be subscribed by the complainant; and if it *727shall appear that any such offense has been committed, the magistrate shall issue a warrant, reciting the substance of the accusation, and requiring the officer to whom it shall be directed forthwith to take the person accused, and bring him before the said magistrate, or before some other magistrate of the county, to be dealt with according to law; and in the same warrant may require the officer to summon such witnesses as shall be therein named, to appear and give evidence on the examination.7
Wis. Stat. ch. 195, § 4776 (1889).
¶ 129. Under section 4776, a complainant such as a police officer or constable would bring a complaint to a magistrate, seeking approval for the filing of a criminal complaint and the issuance of an arrest warrant for the accused. This was conceptually similar to a present-day request that a judge issue a warrant for a person's arrest. Although courts unquestionably played a much greater role in the past in the filing of criminal complaints, this fact does not mean that courts had "inherent authority" to perform a truly prosecutorial function. Rather, courts had statutory authority to approve the formal initiation of criminal cases.
¶ 130. The judicial role in prior times is illuminated by section 4809 of the 1889 statutes:
Change of venue. Section 4809. Whenever any person, charged with having committed any offense, shall be brought before any justice of the peace, or other magistrate, for examination, in accordance with the provisions of this chapter, if such person, before the commencement of the examination, shall make oath that, from prejudice or other cause, he believes that such justice or other magistrate will not decide impar*728tially in the matter, then said justice or other magistrate shall transmit all the papers in the case to the nearest justice or other magistrate, qualified by law to conduct the examination, who shall proceed with the examination in the same manner as though said defendant had first been brought before him; but no case shall be so removed after a second adjournment had therein, and only one removal shall be allowed in the same case; but the provisions of this section shall not apply to cities where police justices have exclusive criminal jurisdiction.
Wis. Stat. ch. 195, § 4809 (1889).
¶ 131. Section 4809 signaled that the court was expected to decide probable cause impartially. This expected impartiality was inconsistent with the adversarial role of the prosecutor, and it shows why magistrates were not performing a real prosecutorial function. Nonetheless, section 4809 was a precursor of Wis. Stat. § 971.20, the substitution of judge statute. More than a century ago the legislature recognized that a court's initial involvement in authorizing a complaint could compromise the court's impartiality.
¶ 132. Whatever role courts played in the past in the initiation of criminal proceedings, that role was significantly changed by the 1969 legislature. See § 63, ch. 255, Laws of 1969.
¶ 133. In 1969 Wis. Stat. § 968.02(1) was created to read:
Issuance and Filing of Complaints. (1) Except as otherwise provided in this section, a complaint charging a person with an offense shall be issued only by a district attorney of the county where the crime is alleged to have been committed. A complaint is issued when it is approved for filing by the district attorney. The approval shall be in the form of a written indorsement on the complaint. (Emphasis added.)
*729The Judicial Council Note to the section read in part:
Note: This is a change from the present law designed to give the district attorney a greater voice in the initiating of criminal proceedings. Since his is the obligation of conducting the prosecution it is believed that he should have a voice in the screening out of unfounded complaints and in determining if there was sufficient evidence to warrant prosecution.
Judicial Council Committee Note, 1969, Wis. Stat. § 968.02.
¶ 134. Subsection (3) of Wis. Stat. § 968.02 reads:
If a district attorney refuses or is unavailable to issue a complaint, a county judge may permit the filing of a complaint, if he finds there is probable cause to believe that the person to be charged has committed an offense after conducting a hearing. Where the district attorney has refused to issue a complaint, he shall be informed of the hearing and may attend. The hearing shall be ex parte without the right of cross-examination.
Wis. Stat. ch. 255, § 968.02(3) (1969).
¶ 135. Subsection (3) authorizes the judiciary to check the district attorney in specific circumstances and, in a sense, its present existence validates the assertion that the charging decision is a power the judiciary continues to share with the executive. However, the concurrence misses the larger point that this shared power is (1) grounded in statute; and (2) limited by statute. If the judiciary had "inherent authority" to initiate prosecutions, the limiting statutes that have been in place since 1969 would invade judicial power and might be unconstitutional.
*730Ill
¶ 136. The majority points to Wis. Stat. § 971.29(1) as statutory authority for a circuit court to "reject any plea agreement that does not, in its view, serve the public interest." Majority op., ¶ 3. Section 971.29(1) reads as follows: "(1) A complaint or information may be amended at any time prior to arraignment without leave of the court."
¶ 137. Section 971.29 contains two additional subsections which give subsection (1) context. Subsections (2) and (3) read:
(2) At the trial, the court may allow amendment of the complaint, indictment or information to conform to the proof where such amendment is not prejudicial to the defendant. After verdict the pleading shall be deemed amended to conform to the proof if no objection to the relevance of the evidence was timely raised upon the trial.
(3) Upon allowing an amendment to the complaint or indictment or information, the court may direct other amendments thereby rendered necessary and may proceed with or postpone the trial.
Wis. Stat. § 971.29(2), (3) (1969).
¶ 138. Section 971.29 was enacted as part of the comprehensive revision of the criminal procedure code in 1969. See § 63, ch. 255, Laws of 1969 (effective July 1, 1970). The Judicial Council Note to the section reads:
NOTE: This section is a restatement of existing law except that it provides that prior to arraignment the district attorney may amend a complaint or information without leave of the court or notice to the other party. Since the district attorney is in charge of the *731prosecution he should be permitted to amend his pleadings prior to the time that the defendant has been required to plead.
Judicial Council Committee Note, 1969, Wis. Stat. § 971.29.8
¶ 139. "Existing law" was embodied in Wis. Stat. §§ 955.14(4), 955.37, and 957.16(1) and (2).9 These provisions deal with amendments to correct technical deficiencies in the complaint or subsequent documents, or amendments to reflect "the proofs in all cases where the variance is not material to the merits of the action." Wis. Stat. § 957.16(1) (1967-68).
*732¶ 140. The Judicial Council Note does not explain the import of subsection (1) of § 971.29, but the purpose of the subsection was addressed in Wagner v. State, 60 Wis. 2d 722, 211 N.W.2d 449 (1973):
Wisconsin has adopted a more flexible approach to the amending of informations prior to arraignment without leave of the court, and by the court at the trial and even after verdict. In this state no information is to be invalid by reason of any defect or imperfection in matters of form which do not prejudice the defendant. As to even errors or mistakes in an information, the trial court is given authority to order an amendment to cure such defects. The rule in this state is then that the trial court may allow amendment of an information at any time in the absence of prejudice to the defendant. It follows that the trial court may reject a proposed amendment to an information.
Id. at 726 (emphasis added).
¶ 141. The court's ability to reject an amendment to an information has been explained historically as a means to protect the defendant from prejudice. See State v. Duda, 60 Wis. 2d 431, 440-42, 210 N.W.2d 763 (1973); Whitaker v. State, 83 Wis. 2d 368, 374, 265 N.W.2d 575 (1978); State v. Gerard, 189 Wis. 2d 505, 517 n.9, 525 N.W.2d 718 (1995) ("Prejudice has always been a consideration with regard to amending a charging document."); State v. Koeppen, 195 Wis. 2d 117, 123, 536 N.W.2d 386 (Ct. App. 1995).
¶ 142. The majority opinion puts a different spin on § 971.29, changing subsection (1) from a shield to protect defendants to a sword that may be used against them. In truth, subsection (1) says nothing about "the public interest." It was never intended as potent statutory authority for circuit judges to inject themselves into plea agreements.
*733IV
¶ 143. The present case presents important issues about the separation of powers, but it also exposes an inconsistency in the court's view of the judicial role.
¶ 144. Plea bargaining is an essential component of the administration of criminal justice. State v. Hampton, 2004 WI 107, ¶ 26, 274 Wis. 2d 379, 683 N.W.2d 14 (citing Santobello v. New York, 404 U.S. 257, 260 (1971)). "Plea bargaining is an accepted and necessary part of the process whereby a good many criminal prosecutions are terminated as a result of a guilty plea." State ex rel. White v. Gray, 57 Wis. 2d 17, 21, 203 N.W.2d 638 (1973) (citing Brady v. United States, 397 U.S. 742 (1970)).
¶ 145. "A trial judge should not participate in plea bargaining." State v. Wolfe, 46 Wis. 2d 478, 487, 175 N.W.2d 216 (1970) (citing American Bar Association Project on Minimum Standards for Criminal Justice— Pleas of Guilty (approved draft, 1968), p. 71, sec. 3.3). In Rahhal v. State, 52 Wis. 2d 144, 150, 187 N.W.2d 800 (1971), the court observed that "if a trial judge interjects himself into plea bargaining he may become a material witness or otherwise disqualify himself."
¶ 146. The judge cannot be a witness and a finder of fact, too. Id. "Trial judges should be careful to abstain from injecting themselves into plea bargaining or influencing the making of a plea. A trial judge may accept a plea bargain, but he should not do the bargaining." Id.
¶ 147. In State v. Erickson, 53 Wis. 2d 474, 481, 192 N.W.2d 872 (1972), the court said:
Whatever may be the policies or procedures elsewhere, this court has firmly stated that a trial judge is not to participate in plea bargaining. Without repeating the *734reasons for this court banning what it termed "[t]he vice of judicial participation in the plea bargaining," it is by now crystal clear that... "this state has rejected the suggestion that plea bargaining can invade or affect the sentencing process ...."
Id. (quoting Farrar v. State, 52 Wis. 2d 651, 655, 191 N.W.2d 214 (1971)).
¶ 148. The majority opinion emphasizes a different, arguably inconsistent, theme in Wisconsin decisions, namely, the power of a trial judge to refuse to accept a proposed plea bargain that involves a reduction or dismissal of charges.
¶ 149. In State v. Comstock, 168 Wis. 2d 915, 927, 485 N.W.2d 354 (1992), the court said:
Circuit courts in this state may not involve themselves in the plea agreement process and are not bound by any plea agreement between a prosecutor and a defendant. Before permitting a prosecutor to amend charges to allege a less serious offense and before accepting a defendant's guilty or no contest plea to the amended charges, the circuit court must satisfy itself that the amended charges fit the crime and that the amendments 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.
¶ 150. The court added: "A circuit court has the power to accept or reject a plea agreement reducing or amending charges; it should consider the public interest in making its decision about the plea agreement and should make a complete record of the plea agreement." Id. at 927 n.11.
¶ 151. In a plea colloquy, the court must: "Establish personally that the defendant understands that the *735court is not bound by the terms of any plea agreement, including recommendations from the district attorney, in every case where there has been a plea agreement." State v. Brown, 2006 WI 100, ¶ 35, 293 Wis. 2d 594, 716 N.W.2d 906 (citing Hampton, 274 Wis. 2d 379, ¶¶ 20, 69, and White, 57 Wis. 2d at 24).
¶ 152. When the court accepts a defendant's plea to a reduced charge or charges but retains complete authority to determine an appropriate sentence for the defendant on the charges, the court is not participating in the plea bargaining process in any sense. When, however, a court rejects on policy grounds a plea agreement that involves the reduction or dismissal of a charge or charges, the court necessarily becomes involved in the prosecution. It is no longer a neutral and detached magistrate. It tips its hand — and the scales of justice — by taking on some of the role of the district attorney in prosecuting the case.
¶ 153. The majority quotes a passage in United States v. Ammidown, 497 F.2d 615, 622 (D.C. Cir. 1973): "[T]rial judges are not free to withhold approval of guilty pleas on [public interest grounds] merely because their conception of the public interest differs from that of the prosecuting attorney." Majority op., ¶ 24 n.21. The majority then rejects this principle. Id., ¶ 24. If this dialectic produces an accurate statement of Wisconsin law, the result is not consistent with our ardent proscriptions against judicial participation in plea bargaining.
¶ 154. The majority's decision appears to be a complete vindication of State v. Lloyd, 104 Wis. 2d 49, 310 N.W.2d 617 (Ct. App. 1981). In Lloyd, the court of appeals applauded Guinther and Kenyon, approved the circuit court's rejection of a joint motion by the prosecutor and defendant to dismiss the information, ap*736proved the circuit court's appointment of a special prosecutor under inherent authority to prosecute the case, and approved the circuit court's continued participation in the trial and in sentencing. So much for separation of powers. Id. at 56-65.
V
¶ 155. Against this background, I look again at the majority's conclusions.
(A) "[A] circuit court must review a plea agreement independently and may, if it appropriately exercises its discretion, reject any plea agreement that does not, in its view, serve the public interest." Majority op., ¶¶ 3, 48.
COMMENT: The majority's use of the word "must" imposes a duty upon the circuit court to evaluate proposed plea agreements, especially those involving a charge reduction or dismissal, in light of the circuit court's conception of the public interest. This is grounded on the Guinther court's references to a court's "duty." Guinther, 217 Wis. at 339. This revised formulation of a circuit court's authority and duty is quite different from the court’s comment in Salters v. State, 52 Wis. 2d 708, 715, 191 N.W.2d 19 (1971): "In cases in which the prosecutor has moved to reduce the charge in the complaint it is . . . proper, although not mandatory, for the court to ascertain why the charge was reduced." (Emphasis added.)
¶ 156. The imposition of this new duty upon the circuit court is likely to lead to several adverse consequences.
¶ 157. First, independent review of negotiated plea agreements may become normative judicial behavior. This court's use of the adverb "independently" to *737modify "review" signals de novo review. The majority's allusions to judicial "consideration of the views of the prosecutor" and giving "weight to the prosecutor's recommendation" are a fig leaf hiding the real import of the court's decision.
¶ 158. Second, if circuit courts have inherent power to reject proposed reduction or dismissal of the prosecutor's charges, there is reason to believe that circuit courts may also claim the power to reduce or dismiss charges with prejudice in "the public interest." A circuit court's power to dismiss charges with prejudice was rejected by only one vote in State v. Braunsdorf 98 Wis. 2d 569, 569, 297 N.W.2d 808 (1980).
¶ 159. Third, the new duty imposed upon circuit courts will expose judges to criticism from third parties when plea agreements are controversial or do not play out as expected. After all, the court now has a "duty" to evaluate each plea agreement in terms of "the public interest." This is a virtual invitation for third parties to second-guess the circuit court's approval after an unsatisfactory outcome.
¶ 160. Fourth, the majority's opinion will put circuit judges in the middle of disputes between district attorneys and law enforcement. Law enforcement agencies may seek to turn circuit judges into allies against district attorneys they don't like.
(B) "[Djeciding whether to reject a plea agreement is squarely within the court's authority; to hold otherwise would permit encroachment by the executive branch into the realm that has historically, in Wisconsin, been that of the judicial branch." Majority op., ¶ 24.
COMMENT: Deciding whether to reject a plea agreement goes well beyond "deciding whether or not the... public interest, will be served by sustaining a motion on the part of the city attorney to dismiss." *738Guinther, 217 Wis. at 339 (emphasis added). By this decision the court expands its "inherent authority."
(C) "Our approach vests authority in the circuit court to determine what pleas are in the public interest without permitting the court to intrude on the authority of the prosecutor to decide what charges to file or whether to file charges in the first instance." Majority op., ¶ 26.
COMMENT: The historical fact is that the prosecution in Guinther was initiated by police, not the Milwaukee city attorney. The court's appointment of a private attorney to prosecute the case permitted the action to go forward. The effect of the decision in this case is to order the district attorney to prosecute the original charges or withdraw in favor of a court-appointed special prosecutor.
¶ 161. This decision, like Guinther, cannot reasonably rely on any statutory directive to the court. Compare State v. Unnamed Defendant, 150 Wis. 2d 352, 363-64, 441 N.W.2d 696 (1989). It relies solely upon judicial power.
(D) "We .. . hold that a circuit court may, in an appropriate exercise of discretion, reject a plea agreement that it deems not to be in the public interest." Majority op., ¶ 27.
COMMENT: The court first establishes de novo review of plea agreements and then affords circuit courts "discretion" to "reject a plea agreement that it deems not to be in the public interest." Id. The majority's standard of review will make it difficult to overturn a circuit court's decision to reject a plea agreement. This result will systematically undermine the authority of district attorneys.
*739CONCLUSION
¶ 162. The majority's decision is foreshadowed in previous cases, but it makes new law. I believe the change is not desirable and will undermine the authority of district attorneys and compromise the impartiality of circuit courts. For the reasons stated, I respectfully dissent.
The facts set out in paragraphs 101-115 are taken from Koss v. State, 217 Wis. 325, 258 N.W. 860 (1935); Guinther v. City of Milwaukee, 217 Wis. 334, 258 N.W. 865 (1935); and the briefs in both cases located at the Wisconsin State Law Library, Madison, Wisconsin.
The Council did not act.
State of Wisconsin Blue Book, p. 402 (1933).
Wisconsin Stat. § 355.17 (1933) required a district attorney to prosecute a criminal case if the court did not approve the district attorney's motion to dismiss.
Black's defines "nolle prosequi" as "To abandon (a suit or prosecution); to have (a case) dismissed by a nolle prosequi." Black's Law Dictionary 1070 (7th ed. 1999).
In State ex rel. Long v. Keyes, 75 Wis. 288, 292, 44 N.W. 13 (1889), the court said: "the powers and duties of said judge in the matter of... examination are exclusively statutory, and . .. the statute must be pursued with the utmost strictness." See Wis. Stat. § 4776 (1889).
See also Wis. Stat. ch. 194, § 4740 (1889), dealing specifically with justices of the peace.
The Council's extensive introductory comment on the revisions did not touch on this section.
Wisconsin Stat. § 955.14(4) (1967-68) reads:
The indictment, information or complaint is sufficient after verdict if it describes the crime in the words of the statute, but other words conveying the same meaning may be used.
Wisconsin Stat. § 955.37 (1967-68) reads:
Mistake in charging crime. When it appears before judgment that a mistake has been made in charging the proper crime, the defendant shall not be discharged if there appears to be good cause to detain him in custody to answer to the crime, and the district attorney may forthwith file an information charging said crime. If the defendant has been charged or arraigned on a complaint, the complaint may be amended.
Wisconsin Stat. § 957.16 (1967-68) reads:
Variances disregarded; amendment. (1) The trial court may allow amendments in case of variance between the complaint or indictment or information and the proofs in all cases where the variance is not material to the merits of the action. After verdict the pleading shall be deemed amended to conform to the proof if no objection based on such variance was timely raised upon the trial.
(2) Upon allowing an amendment to the complaint or indictment or information, the court may direct other amendments thereby rendered necessary and may proceed with or postpone the trial.