¶ 39. (concurring). In State v. Klessig, 211 Wis. 2d 194, 564 N.W 2d 716 (1997), this court was asked to determine whether defendant Klessig had knowingly, intelligently, and voluntarily waived his Sixth Amendment right to counsel before he represented himself in a felony jury trial. The court noted that the trial court had not engaged the defendant in an on-the-record colloquy to assess his waiver, and it held that "the record is insufficient to determine whether Klessig's waiver of counsel was knowing, intelligent and voluntary." Klessig, 211 Wis. 2d at 197. To remedy this deficiency, the court remanded the case to the circuit court for an evidentiary hearing at which the State would be required to prove by clear and convincing evidence that Klessig's waiver of counsel was knowing, intelligent, and voluntary. Id. at 207.
¶ 40. As part of the opinion, the court mandated "the use of a colloquy in every case where a defendant seeks to proceed pro se [in order] to prove knowing and voluntary waiver of the right to counsel." Id. at 206. It then set forth the following requirements:
To prove such a valid waiver of counsel, the circuit court must conduct a colloquy designed to ensure that *329the defendant: (1) made a deliberate choice to proceed without counsel, (2) was aware of the difficulties and disadvantages of self-representation, (3) was aware of the seriousness of the charge or charges against him, and (4) was aware of the general range of penalties that could have been imposed on him. See Pickens [v. State], 96 Wis. 2d [549,] 563-64[, 292 Wis. 2d 601 (1980)]. If the circuit court fails to conduct such a colloquy, a reviewing court may not find, based on the record, that there was a valid waiver of counsel.
When an adequate colloquy is not conducted, and the defendant makes a motion for a new trial or other postconviction relief from the circuit court's judgment, the circuit court must hold an evidentiary hearing on whether the waiver of the right to counsel was knowing, intelligent, and voluntary.
Id. at 206-07 (emphasis added).
¶ 41. The court did not identify the source of its authority to mandate the above-described colloquy. It simply explained that
[conducting such an examination of the defendant is the clearest and most efficient means of insuring that the defendant has validly waived his right to the assistance of counsel, and of preserving and documenting that valid waiver for purposes of appeal and postconviction motions. [A] properly conducted colloquy serves the dual purposes of ensuring that a defendant is not deprived of his constitutional rights and of efficiently guarding our scarce judicial resources. We hope that our reaffirmation of the importance of such a colloquy will encourage the circuit courts to continue their vigilance in employing such examinations.
Id. at 206.
*330¶ 42. The Klessig decision was understandable and rational, and I have no trouble affirming the substance of it in this case, notwithstanding the Supreme Court's ruling in Iowa v. Tovar, 541 U.S. 77 (2004). I do have trouble, however, with this court's utilization of its "superintending and administrative authority" in Article VII, Section 3 of the Wisconsin Constitution as a basis for its action.
¶ 43. I expressed my concern about the misapplication of Article VII, Section 3 in State v. Jerrell C.J., 2005 WI 105, 283 Wis. 2d 145, 699 N.W.2d 110 (Prosser, J., concurring in part, dissenting in part). The present case represents at least the second time this term that the court has invoked this superintending authority. See Jerrell.
¶ 44. My concern about the court's new reliance on this provision is threefold. First, the superintending authority of the supreme court over all courts is intended to give this court broad power to protect the legal rights of a litigant when the ordinary course of litigation, such as review, is inadequate. The authority was never intended as carte blanche power to mandate "rules" of general application for the bench and bar through the vehicle of individual cases. This is the gist of my Jerrell dissent.
¶ 45. Second, the use of the court's superintending authority in the manner it is now being used can become addictive and lead to abuse. Over and over our opinions repeat the mantra that our superintending authority is "unlimited in extent" or "limited only by the necessities of justice," as though there were no bounds to the court's power to do "justice." This sort of nonsense needs to be exposed before this court does something that will provoke a crisis. By contrast, our court does have power to promulgate judicial rules through *331an orderly open process. See Wis. Stat. § 751.12 and SCR Ch. 98. This power is both inherent and delegated, but it is not unlimited. Our invocation of the court's superintending authority as justification to make rules in opinions is an indication that we don't think we have traditional rulemaking power over a particular subject or we are unwilling to take the time to go through the proscribed rulemaking process.
¶ 46. Third, the court does not necessarily do a good job when it legislates from the bench. We will see this, in time, in the Jerrell rule because the court failed to answer many important questions about its scope. We see it in this case as we attempt to apply the "rule" from Klessig.
¶ 47. Klessig involved a direct appeal. The court said: "When an adequate colloquy is not conducted, and the defendant makes a motion for a new trial or other postconviction relief from the circuit court's judgment, the circuit court must hold an evidentiary hearing on whether the waiver of the right to counsel was knowing, intelligent, and voluntary." Klessig, 211 Wis. 2d at 206-07 (emphasis added). The Klessig admonition did not draw any distinction between a direct appeal and a collateral attack, but it would have been fine if the court had not portrayed it as a "rule" for everyone. Today we are forced to "amend" that "rule" to avoid the result we dictated in the previous mandate.
¶ 48. The court should confine itself to the adoption of real "rules" through proper procedures and the pronouncement of aspirational standards and guidelines that are persuasively explained, faithfully applied, and quickly included in the Benchbook for judges. The latter course would avoid a separation of powers issue *332and allow judges some latitude in the way they manage the courts and protect statutory and constitutional rights.
¶ 49. I therefore respectfully concur.