(concurring). As the author of the majority opinion, I agree with it and join it; but I cannot but feel a sense of unease over the validation of secs. 968.02(3) and 968.26, Stats., when viewed from a public policy aspect. I therefore write additionally in concurrence. The criminal law reform undertaken by the Criminal Rules Committee of the Judicial Council had as one of its purposes the elimination of the last vestiges of the pernicious practice of private prosecutions by persons who owe no allegiance to society as a whole. For a general public policy statement, see State v. Scherr, 9 Wis. 2d 418, 426, 101 N.W.2d 77 (1960) ("It is against public policy and the impartial administration of criminal law for a court to allow attorneys for private persons to appear as prosecutors.") and State v. Peterson, 195 Wis. 351, 356, 218 N.W. 367 (1928) ("Our scheme contemplates that an impartial man selected by the electors of the county shall prosecute all criminal actions in the county unbiased by desires of complaining witnesses or that of the defendant.").
Both of the statutes validated here in make it possible for persons to trigger the prosecutorial powers of the state in any kind of criminal action where "probable cause" can be established. No consistent prosecutorial policy in respect to the initiation of charges can be maintained under these circumstances. What will be charged *368can lie within the whim of any complainant. The de facto standard for prosecuting attorneys is, in the experience of this writer, but for the exceptional case, not to invoke the awesome power of the state unless the crime in all likelihood can be proved beyond a reasonable doubt. Our imprimatur upon these statutes may well give a gloss that runs counter to the legislative intent of Wisconsin's criminal law reforms. The writer is not unmindful of the predicament of a victim of a crime who is afforded no relief by a recalcitrant prosecutor. It would appear, however, that this situation might better be alleviated by legislative approval of a limited judicial review of a prosecutor's declination to prosecute. See, State ex rel. Unnamed Petitioners v. Connors, 136 Wis. 2d 118, 134, 142, 401 N.W.2d 782 (1987).
While I am uncomfortable with the validation of what may be the unwise policy of secs. 968.02(3) and 968.26, Stats., as the writer of the majority opinion I nevertheless have concluded that the statute at issue in Connors has not been shown to be unconstitutional. Because the writer of the majority opinion in this case was also the author of Connors, it is of some comfort to know that judicial recantation is not without precedent. Judge Ruggero J. Aldisert, formerly Chief Judge of the Court of Appeals for the Third Circuit, has provided me with the following utterances that have accompanied judicial second thoughts:
Justice Potter Stewart, concurring in Boys Markets v. Clerks Union, 398 U.S. 235 (1970), wrote:
In these circumstances the temptation is strong to embark upon a lengthy personal apologia. ... An aphorism of Mr. Justice Frankfurter provides me refuge: 'Wisdom too often never comes, and so one ought not to reject it merely because it comes late.'
*369And Justice Jackson, concurring in McGrath v. Kristensen, 340 U.S. 162, 178 (1950), relied upon an English Judge, Lord Westbury, "who, it is said, rebuffed a barrister's reliance upon an earlier opinion of his Lordship: 'I can only say that I am amazed that a man of my intelligence should have been guilty of giving such an opinion.' "
Perhaps most apropos to the present situation and also quoted by Justice Jackson is the statement of Baron Bramwell in Andrews v. Styrap, 26 L.T.R.(N.S.) 704, 706 (1872), "The matter does not appear to me now as it appears to have appeared to me then."
I invoke all of the above utterances on the occasion of the overruling of a decision so recently written by the author of this opinion, an opinion that I believe was in the public interest and in accordance with rational prosecutorial policy, but which has not withstood subsequent scrutiny on a constitutional basis.