¶ 64. 0dissenting). I dissent. The majority opinion errs in two important respects. First, the majority mistakenly concludes that the power to bump a circuit court employee, despite the terms of a collective bargaining agreement, is an exclusive power of the circuit court and not a power shared with the legislative branch. Second, the majority purports to state a narrow rule, but the true impact of this rule will be hard to contain.
¶ 65. Based upon the Wisconsin Constitution and our constitutional case law interpreting shared powers, I would conclude that a circuit court shares power with the legislative branch in the realm of court staff employment. This conclusion realistically embraces all circuit court staff, and does not artificially distinguish between judicial assistants and other court employees. Had the majority fully engaged in a shared powers analysis, it would have concluded that a circuit court has inherent constitutional authority to prevent a court staff member from being unilaterally removed and replaced, despite the terms of a collective bargaining agreement, if such removal and replacement unduly burdens or substantially interferes with the court's ability to conduct its constitutional functions and responsibilities. In this case the circuit court did not undertake the factually intensive shared powers analysis to determine whether replacing Ms. Melland with another qualified member of the bargaining unit would unduly burden or substantially interfere with *598the circuit court of Eau Claire County.1 I conclude that the circuit court applied the wrong standard of law and in doing so, failed to examine the relevant facts.
¶ 66. The majority begins its analysis by describing the inherent powers of the courts. There is no dispute that circuit court power over staff employment is not an express power conferred by the constitution, but derives from the inherent power of the courts. This court has previously described the nature of inherent powers possessed by each branch of government:
In order that any human agency may accomplish its purposes, it is necessary that it possess power. The executive must have power to direct and control his business. The superintendent of the works must have power to direct his men. In order to accomplish the purposes for which they are created, courts must also possess powers. From time immemorial, certain powers have been conceded to courts because they are courts. Such powers have been conceded because without them they could neither maintain their dignity, transact their business, nor accomplish the purposes of their existence. These powers are called inherent powers.
State v. Cannon, 196 Wis. 534, 536, 221 N.W. 603 (1928). Inherent powers are those powers that the particular governmental branch requires to get its *599constitutional job done. In this case, the circuit court clearly has inherent power to assure that it has staff available to get its constitutional job done. The question is, does the circuit court have exclusive power2 to say which of several qualified persons will aid the court in getting the job done?
¶ 67. The majority opinion offers a blurred analysis in answering that question. It correctly acknowledges that many inherent court powers are shared with one of the other branches of government. I agree with the majority that most governmental powers lie within the "great borderlands" of shared authority. Majority op. at 572. In that large realm, "it is neither possible nor practical to categorize governmental action as exclusively legislative, executive or judicial." Majority op. at 572, citing State ex rel. Friedrich v. Circuit Court for Dane County, 192 Wis. 2d 1, 14, 531 N.W.2d 32 (1995).
¶ 68. In contrast, inherent powers exclusive to courts are few in number.3 Under our system of separation of powers, those finite exclusive powers should be "jealously guarded." See Arneson v. Jezwinski, 206 Wis. 2d 217, 228, 556 N.W.2d 721 (1996), citing Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) and Friedrich, 192 Wis. 2d at 14. Under our system the " 'subtle balancing of shared powers, coupled with the *600sparing demarcation of exclusive powers, has enabled a deliberately unwieldy system of government to endure successfully for nearly 150 years.'" Arneson, 206 Wis. 2d at 228 (citation omitted) (emphasis added).
¶ 69. The majority neatly lays out the constitutional and statutory powers of the legislative and executive branches over county employees and then identifies the circuit court's constitutional and statutory powers in this arena. The majority concludes that "the subject matter of the (collective bargaining) agreement also falls within the judiciary's constitutionally-based sphere of inherent powers to 'protect itself against any action that would unreasonably curtail its powers or materially impair its efficiency,'" citing In re Court Room. Majority op. at 582. The majority continues, "[w]e are somewhat more persuaded by AFSCME's argument that the power to remove a judicial assistant is shared with the legislative branch, and not exclusive to the judiciary." Having brought us to the junction of shared powers, the majority hesitates. Why? The "general powers of the legislature provides imprecise guidance in this case." Majority op. at 583.
¶ 70. Unfortunately, imprecise guidance drives the majority's conclusion. Citing statutes from early this century that gave county boards the power to fix or change the number and salary of court employees, the majority deduces that the failure to assign removal power means that the county boards never had it. This is only wishful deduction. The power to change the number of employees includes the power to reduce that number. The power to remove is shared.
¶ 71. After concluding that the bumping provision impermissibly intrudes on an exclusive power of the court, see majority op. at 588-89, the majority could have rested. Instead, it engages in a lengthy discus*601sion, albeit dicta, of the Janitor decision and the "unique" relationship between a judge and his or her assistant. Had that discussion been placed elsewhere in the opinion, it would be no more persuasive. For instance, the majority essentially elevates a Supreme Court Rule and Comment to the status of evidence sufficient to prove the value or "uniqueness" of a particular judicial assistant. Neither of those documents has any bearing on whether the power to appoint and remove court employees is shared or exclusive. The Rule is only a recommendation for the creation of the judicial assistant position in courts that currently lack them. Those documents might have meaning on remand, but without specific factual determinations we are only left with speculation and rosy ideals.
¶ 72. Remand for fact-finding could have solidified other aspects of the majority's opinion. Again in dicta the majority follows Janitor to rely on a historical "custom"4 of exclusive circuit court authority in employment decisions. While the historical perspective *602can assist courts in identifying the core zone of exclusive circuit court function, see Friedrich, 192 Wis. 2d 14, vague references to "custom" are not determinative of this constitutional question.5 If anything, the record here demonstrates a "custom" of shared authority. In Eau Claire County circuit court judges do not have exclusive decision-making authority in the employment realm. Eau Claire judges only have input in the employment of judicial assistants if the normal posting procedures under the collective bargaining agreement do not result in any interested and qualified candidates.6
*603¶ 73. Dicta again, the majority cites Iowa County v. Iowa County Courthouse, 166 Wis. 2d 614, 480 N.W.2d 499 (1992), to assert that a court's inherent authority to appoint staff cannot be modified by a collective bargaining agreement. "In essence, the judge's statutory authority to appoint a register in probate was held to be exclusive." Majority op. at 594. However, the Iowa County court expressly declined to consider whether a circuit court judge's power to appoint a register in probate was an inherent constitutional power. Instead the opinion measured only the court's statutory powers against the terms of a collective bargaining agreement. See 166 Wis. 2d at 618. Consequently Iowa County adds nothing to a determination of whether that power was exclusive or shared; nor did it apply the undue burden/substantial interference test.7
*604¶ 74. The majority's own analysis, as described above, demonstrates that for court staff employment decisions it is neither possible nor practical to categorize that governmental action as exclusively legislative, executive, or judicial. See Friedrich, 192 Wis. 2d at 14; see also In re Appointment of Revisor, 141 Wis. 592, 598, 124 N.W. 670 (1910). The constitutional authority for legislative delegation of employment decisions to the counties has already been described quite fully by the majority, see majority op. at 574-76. The judiciary's inherent constitutional authority to perform its administrative functions is also demonstrated by the majority. Based on both lines of authority, I would conclude that regulation of employment of court staff falls within an area where legislative and judicial responsibilities overlap.
¶ 75. The next step in the analysis is whether that overlap unconstitutionally burdens or substantially interferes with the constitutional functions and responsibilities of the circuit court. See State v. Unnamed Defendant, 150 Wis. 2d 352, 360, 441 N.W.2d 696 (1989). The county argued that that there are no facts in this record to prove that enforcement of the bumping provision is unconstitutional. The county emphasized that the plaintiffs have not alleged an insufficient number of court staff and that because the collective bargaining agreement provides that bumping will occur only when there is a senior employee with the necessary qualifications, there is no undue burden or substantial interference with the function of the circuit court. The effect of the bumping, according to the county, is only a "temporary inconvenience" to the court. AFSCME asserts that because there is no loss of court efficiency, the bumping provision can be harmonized with the court's inherent power.
*605¶ 76. AFSCME's counsel also contended at oral argument that there is no difference in the operation of the circuit court when a permanent employee is bumped than when accommodations are made for personnel situations such as maternity leave or sick leave. AFSCME predicted that the likelihood that a circuit court judicial assistant would be bumped is much less than the likelihood that such an employee would become pregnant or leave for his or her own reasons. While AFSCME's assertions may be true they are not dispositive. The proper focus in a shared powers analysis is on neither the particular person who occupies the judicial assistant desk nor the frequency of potential personnel changes.
¶ 77. The proper focus is on the degree of the threat to the independence and efficient functioning of the judicial branch. Certainly no one asserts that the separation of powers doctrine is violated whenever a judicial employee decides to resign and seek other work. When another branch of government, albeit pursuant to a collective bargaining agreement, acts unilaterally to remove and replace a permanent, experienced circuit court staff member, that unilateral act may infringe on the inherent authority of the court to maintain its dignity, transact its business and accomplish the purposes of its existence. See Breier v. E.C., 130 Wis. 2d 376, 386, 387 N.W.2d 72 (1986).
¶ 78. At oral argument counsel for the county agreed that all three circuit court judicial assistants could be bumped in the event of a county employee reduction in force. The Janitor court contemplated such a possibility. Were the court not empowered to prevent unilateral ouster of its employees, "[i]t would be impossible to foresee when or how often such changes would be made, and they might be rendered *606intolerable by their very frequency." 35 Wis. at 417-18. Then again changes might not be intolerable, but only inconvenient. And therein lies the utility of the fact-specific undue burden/substantial interference test.
¶ 79. AESCME contends that the Holmes decision prohibits the use of inherent judicial authority to avoid mere inconvenience. I do not read Holmes so broadly. Holmes is an example of the application of the undue burden/substantial interference test where the alleged unconstitutional interference is interruption of court routine.
¶ 80. The Holmes court addressed the effect of a judicial substitution statute upon the circuit court's constitutional exercise of jurisdiction. See 106 Wis. 2d at 52. The court acknowledged that while the statute resulted in a decrease in productive judicial time because of increased travel and an increase in judicial system operating costs to the state, the legislature must have decided that the inefficiencies, inconveniences and higher costs caused by peremptory substitution were an acceptable price for the benefits gained. See id. at 62.
¶ 81. The Holmes court upheld the substitution statute because its purpose was to ensure a fair trial before an impartial judge and the court could harmonize the legislative balancing with the need to avoid significant interference with administration of the court's work. See id. at 64, 66-67. Holmes also noted that similar statutes had been upheld in other jurisdictions despite the resulting burden on state courts. That increased burden included court calendaring and scheduling problems as well as interference with the normal and routine operation of the trial courts. See id. at 63-64. Ultimately the court recognized that even if substitution prevented a particular judge from hearing *607the case, cases were nevertheless heard and resolved. See id. at 69-70. The court also observed that the legislature was making efforts to diminish the inefficiencies arising from the statute.
¶ 82. In concluding that peremptory substitution of judges did not rise to the level of substantial interference or undue burden on the constitutional functions and responsibilities of the court system, the Holmes court considered statistical evidence offered to show the frequency of requests for substitution. Substitution requests were filed in less than two percent of the total cases, and in less than five percent of the criminal cases. See id. at 70. The plaintiff judges were not able to prove that the volume of substitution requests materially impaired the operation of the judicial system. See id. at 71. Instead the judges were only able to offer common sense perceptions of delay and inefficiency. This court considered the potential for abuse of the substitution statute but concluded that such a criticism could not be gauged quantitatively. See id. at 73.
¶ 83. In this case, by contrast, the circuit court never undertook the factual weighing required by Holmes. Instead the circuit court, and now the majority, erred by concluding that the power to appoint judicial staff is not a shared power, but an exclusive power of the court. In my view the employment related power in this case is shared, but the current state of the record prevents this court from determining as a matter of law whether bumping Ms. Melland would substantially interfere with the constitutional functions and responsibilities of the Eau Claire County Circuit Court. Remand is therefore appropriate.
¶ 84. On remand, the circuit court could have analyzed the specific functions of the staff position, the actual responsibilities of the employee, and the impact *608bumping would have on the constitutional functions and responsibilities of the circuit court. By examining these factors, the circuit court could have assessed whether the removal of Ms. Melland from her position as assistant to a judge and to a court commissioner would result in an undue burden or substantial interference with the functions and responsibilities of the Eau Claire County Circuit Court.
¶ 85. This court has held that "appointment to office, while generally called an executive function, cannot under our constitution be classed as exclusively a function of either of the three great departments," which may explain the majority's desire to cleave "bumping" from other employment related powers like appointment. See Revisor, 141 Wis. at 598.8 Those other employment related powers, by virtue of the majority's rationale, are now inescapably added to the expanding "core functions" of the judicial branch. Case law upon which the majority relies address appointment and removal in tandem. See, e.g., majority op. at 586 n.18 and 588-89 n.22. The majority also relies upon industry recommendations and treatises to reach its conclusion on exclusive power. These sources diverge from the majority's narrow approach because they would broadly reserve to the courts the rights to hire, administer, discipline, and supervise court staff. The majority cannot deny that its decision, relying in *609part on these sources, will have broad application to all circuit court employment decisions.
¶ 86. The majority's rationale also cannot be limited to an exclusive power over the employment of "judicial assistants." Its rationale, based on the "trust and confidence" involved in this "unique" relationship, will be applied to the employment of all circuit court staff.9 Indeed it appears that the Janitor decision, cited by the majority at length, recognized the trust and confidence reposed in many government employees.
"In all the affairs and transactions of life, even down to those which are strictly private and domestic in their nature, where the services or agency of others are necessary, the fiduciary or confidential relation, more or less clearly marked and defined, and constituting in part the consideration of the engagement and the value of the services, between employer and employed, or master and servant, is well known, and its existence recognized and respected. This principle of trust and confidence pervading every department of active life, both public and private, the law also recognizes and acts upon and will enforce and protect."
35 Wis. at 415.
*610¶ 87. I would declare that a circuit court has inherent authority to prevent its staff member from being unilaterally removed and replaced despite the terms of a collective bargaining agreement if that removal and replacement unduly burdens or substantially interferes with the court's constitutional functions and responsibilities. This conclusion is consistent with the inherent authority of the court recognized as far back as the Janitor case, but also considers the legislature's delegation of power to counties to enter into collective bargaining agreements with representatives of county employees, including those employed as court staff. My conclusion would not affect the validity of any collective bargaining agreement provisions that do not unduly burden or substantially interfere with a court's constitutional functions. See Kewaunee County v. WERC, 141 Wis. 2d 347, 358-59, 415 N.W.2d 839 (Ct. App. 1987).
¶ 88. I respectfully dissent. I am authorized to state that Chief Justice Shirley S. Abrahamson and Justice Ann Walsh Bradley join in this dissent.
The circuit court failed even to consider whether the employment decision here was within the legislature's constitutional grant of authority presumably because the court concluded that Eau Claire County is not an equal branch of government with the state judiciary. The court concluded alternatively that even if the county had joint authority to appoint and remove, enforcement of the bumping provision would irreparably harm the courts and the public, and such enforcement would also diminish the inherent authority of the judges.
See, for example, the majority's historical analysis concluding that "the legislature has historically had only the limited power to set the number and salaries of assistants." Maj. op. at 586 (emphasis added).
See, e.g., State v. Cannon, 196 Wis. 534, 221 N.W. 603 (1928) (power to admit and disbar attorneys); State ex rel. Fiedler v. Wisconsin Senate, 155 Wis. 2d 94, 454 N.W.2d 770 (1990) (ability to impose legal education requirement on attorneys desiring to be appointed as guardians ad litem).
Under the laws of England, Blackstone identified seven requisites for every custom:
1. It must have been used so long, that the memory of man run-neth not to the contrary.
2. It must have been continued. There must have been no interruption of the right, though there may have been of the possession.
3. It must have been peaceable and acquiesced in.
4. It must be reasonable, or at least no good reason can be assigned against it.
5. It ought to be certain.
6. It ought to be compulsory, although originally established by consent. It ought to be left to the option of every man, whether he will use it or not.
7. Customs must be consistent with each other, and must be construed strictly and submit to the king's prerogative.
*602Blackstone's Commentaries on the Law (Bernard C. Gavit ed., Washington Law Book 1941) 43-44.
For criticism of reliance on custom in a property rights case, when the appellate court draws a fact-intensive conclusion without benefit of trial court analysis, see Stevens v. City of Cannon Beach, 510 U.S. 1207, 114 S. Ct. 1332, 1335 (1994) (mem.) denying cert. to 317 Or. 131, 854 P.2d 449 (1993), (Scalia, J. and O'Connor, J. dissenting):
"The requirements (of custom) set forth by Blackstone included, inter alia, that the public right of access be exercised without interruption, and that the custom be obligatory, i.e., in the present context that it not be left to the option of each landowner whether he will recognize the public's right to go on the dry-sand area for recreational purposes. In Thornton, however, the Supreme Court of Oregon determined the historical existence of these fact-intensive criteria (as well as five others) in a discussion that took less than one full page of the Pacific Reporter. That is all the more remarkable a feat since the Supreme Court of Oregon was investigating these criteria in the first instance', the trial court had not rested its decision on the basis of custom and the State did not argue that theory to the Supreme Court.”
In this case I note that Ms. Melland is not even under the sole supervision of Judge Lenz. The record indicates that Ms. Melland also reports to the family court commissioner.
Other iterations of this test exist. In State v. Holmes, 106 Wis. 2d 31, 69, 315 N.W.2d 703 (1982), the court considered whether the operation of a judicial substitution statute "materially impaired] or practically defeat[ed]" the circuit court's exercise of jurisdiction so as to constitute a violation of the separation of powers doctrine. In Integration of Bar Case, 244 Wis. 8, 49, 11 N.W.2d 604, 12 N.W.2d 699 (1943), this court said that the separation of powers doctrine would be violated if the legislative conduct in regulating attorneys had "so far invaded the judicial field as to embarrass the court and impair its proper functioning." While each of these articulations bear some ambiguity, see Holmes, 106 Wis. 2d at 70, they are essentially interchangeable. Each seeks to measure the intrusion on the court's ability to conduct its constitutional functions and responsibilities. Each of these tests resembles the test adopted in In re Court Room, 148 Wis. 109, 134 N.W. 490 (1912), upon which the majority frequently relies to support its identification of an exclusive power: "actions that would unreasonably curtail their powers or materially impair their efficiency" in conducting judicial business". See majority op. at 578, 580, and 582.
The holding of In Re Appointment of Revisor, 141 Wis. 592, 124 N.W. 670 (1910), is valid, despite the recognition in Stevenson v. Milwaukee County, 140 Wis. 14, 17, 121 N.W.654 (1909), that "the power to appoint necessary attendants upon the court is inherent in the court in order to enable it to properly perform the duties delegated to it by the constitution." Stevenson recognized an appointment power in the courts but did not determine whether this inherent power is exclusive or shared.
At oral argument counsel for the plaintiff judges broadly asserted that the power to appoint and remove court staff, including bailiffs, is an exclusive judicial function. Counsel did argue that other provisions of the collective bargaining agreement would still apply even if the court determined that the circuit court had exclusive authority over appointment and removal decisions. Along that line counsel agreed it was possible that this court would subsequently handle grievances brought by employees of the circuit court although circuit court judges could, as a matter of comity, submit grievances to collective bargaining.