{concurring). The district attorney functions at the juncture of the three branches of government. Listed in the administrative article of the Wisconsin Constitution, the district attorney exercises quasi-executive, quasi-legislative and quasi-judicial powers through enforcement policies.1 In practice the district attorney’s ability to *144decline to prosecute is a significant power, resembling at times the legislature’s power to repeal statutes, the judiciary’s power to acquit and the governor’s power to pardon.2 The majority’s assertions to the contrary *145notwithstanding, majority opinion at pages 129,130, the public has a legitimate and substantial interest in the prosecutor’s decision not to charge, implicating as it often does such broad concerns of an executive, legislative and judicial nature.
I agree with the majority that sec. 968.02 (3) enables the circuit court to decide de novo whether a complaint should be filed and is invalid as a delegation of unlimited "executive” discretionary power to the judiciary. I do not join the majority opinion because I do not agree with the majority’s sweeping generalizations about the powers of the district attorney and the legislature. The majority opinion ignores the history of the Wisconsin district attorney’s powers to file complaints and is based on a strained reading of the Wisconsin cases.
Sec. 968.02, the statute at issue in this case, evinces a legislative intent to give weight to the views of both the prosecutor and the victim in the charging decision. The legislature’s concern with the roles of both the prosecutor and the victim in the charging decision accords with the history of the role of the district attorney in Wisconsin, a history important to *146an understanding of the constitutional issues of delegation and separation of powers.
Twentieth century lawyers are accustomed to public prosecution, but historically the victim, not the state, was the prosecutor. In Colonial and post-Colonial America, the state began to take over the prosecuto-rial function.3 Apparently over the years the Wisconsin legislature has increased the power of the district attorney to initiate criminal proceedings. See Justice Steinmetz’s dissenting opinion passim. Indeed, according to the legislative history of sec. 968.02, this 1969 statute embodies the legislature’s intent to increase the district attorney’s role in the decision to initiate prosecution.4 Apparently the 1969 legislature recognized that sound prosecutorial judgment in the charging decision could improve the administration of justice. By placing the prosecutorial power in the hands of a public official responsible as much to the public in general as to the individual victim, the legislature hoped to promote the impartial adminis*147tration of justice free of the overreaching and over-zealousness that might result if prosecution were left solely to the aggrieved private individuals. The discretion whether to charge may enable the prosecutor to mitigate the harshness of the criminal law, individualize justice, deploy scarce resources in a pattern best suited to combatting the greatest threats to the community, resort to alternative dispositions that may better serve the victim and the suspect, protect the victim from the ordeal of a trial if the victim desires such protection, and procure the potential defendant’s help in the prosecution of a more serious offender.
Nevertheless, the 1969 legislature also recognized the legitimate interest the victim and the public have in prosecution. Along with increasing the district attorney’s powers, the 1969 legislature adopted sec. 968.02 (3), which was based on sec. 6.02 of the ALI Model Code of Pre-Arraignments Procedure (Tent. Draft # 1,1966), to provide a check on the prosecutor’s decision not to issue complaints.5 The legislature’s *148concern for the victim and the public and its concern for checking prosecutorial discretion are demonstrated in numerous other statutes that allow prosecution by persons other than the district attorney.6
*149I agree with the majority that in sec. 968.02 (3) the legislature has failed to keep within constitutional bounds in attempting to reconcile its concern for giving the victim and the public a voice in initiating prosecution with its concern for entrusting initiation of prosecution to the district attorney. The majority opinion could be read to say that sec. 968.02(3) fails because it divests the district attorney of some kind of inherent executive powers. I disagree with such a reading. This 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." State ex. rel Kurkierewicz v. Cannon, 42 Wis. 2d 368, 380, 166 N.W.2d 255 (1969). This court has also stated that although the district attorney has the duty to administer jusitce rather than to obtain convictions and has many opportunities under the statutes to exercise discretion, "there is no basis for holding that his duties in representing the state are not subordinate to legislative discretion as to the cases in which he shall proceed." State v. Coubal, 248 Wis. 247, 257, 21 N.W.2d 381 (1946). The majority would be going too far were it intimating that the legislature's power *150over the district attorney's enforcement powers may be exercised only through the legislature's definition of crimes or in other "minor matters.” Majority opinion at 131.
In my opinion the majority’s description of Coubal slides over the significance of the holding of the case. The Coubal court held that the legislature could authorize the attorney general, an officer over whose powers, duties and compensation the legislature has express constitutional authority, art. VI, sec. 3, to require the district attorney to proceed in certain cases despite the district attorney’s desire not to proceed. If the legislature may subject the district attorney to the orders of the attorney general, the legislature should be able to prescribe the duties of the district attorney in ways other than by defining crimes. Majority opinion at pages 131-134.7
While our cases have recognized both the legislature’s power to direct the district attorney and the district attorney’s broad discretion under the existing *151statutes in prosecuting offenders, our cases have not dealt directly with the difficult question of the constraints that the separation of powers doctrine may impose on the legislature’s powers to direct the district attorney in enforcing the law. Such constraints, if any, have not yet been tested, nor are they tested in this case. This decision holds merely that the separation of powers doctrine bars the legislature from delegating to the judiciary virtually unlimited "executive” discretionary power to initiate criminal proceedings.
In effect this decision remands to the legislature, sec. 13.93(2)(d), Stats. 1985-86, the decision whether to provide a forum, and if so what kind of forum, in which the prosecutor’s decision not to charge a person suspected of having committed a crime may be challenged and overturned.8
For the reasons set forth, I concur.
The majority relies on the state’s concession that the district attorney is an officer of the executive branch of government and also concludes that the district attorney is "an executive branch officer," majority opinion at pages 123,124, and "performs a function of the executive branch." Majority opinion at page 125. The district attorney, as well as the attorney general, is mentioned in the article entitled Administrative (article VI) of the Wisconsin constitution. Only the Governor is included within the Executive article (article V). Professor Christenson concludes that the attorney general occupies a unique position: he or she is not a part of either the executive or the legislative branch. Christenson, The State Attorney General, 1970 Wis. L. Rev. 298, 300. For further discussions of the Attorney General's office, see Christenson, A Look at the History of the Office of Attorney General in Wisconsin, 1970 Wis. L. Rev. 1043; Van Alstyne & Roberts, The Powers of the Attorney General in Wisconsin, 1974 Wis. L. Rev. 721.
*144I shall not pursue the issue of whether the district attorney is an executive branch officer or performs executive branch functions or the significance of such determinations. Nor do I compare the offices of district attorney and United States attorney. These issues are not relevant to my concurrence.
For discussions of prosecutorial discretion, see, e.g., Davis, Discretionary Justice (1969); Goldstein, The Passive Judiciary: Prosecutorial Discretion and the Guilty Plea (1981); Miller, Prosecution: The Decision to Charge a Suspect with a Crime (1969); National College of District Attorneys, Discretionary Authority of the Prosecutor (J.J. Douglass ed., 1977); Abrams, Prosecutorial Discretion, 3 Ency. of Crime and Justice 1271 (S.H. Kadish ed. 1983); Baker, The Prosecutor — Initiation of Prosecution, 23 J. Crim. L. & Criminology 770 (1932-33); Bubany & Skillern, Taming the Dragon: An Administrative Law for Prosecutorial Decision Making, 13 Am. Crim. L. Rev. 473,480-81 (1976); Cox, Prosecutorial Discretion: An Overview, 13 Am. Crim. L. Rev. 383 (1976); Ferguson, Formulation of Enforcement Policy: An Anatomy of the Prosecutor’s Discretion Prior to Accusation, 11 Rutg. L. Rev. 507 (1957); LaFave, The Prosecutor’s Discretion in the United States, 18 Am. J. Comp. L. 532 (1970); Sunstein, Reviewing Agency Inaction after Heckler v. Chaney, 52 U. Chi. L. Rev. 653 (1985); Vorenberg, Decent Restraint of Prosecutorial Power, 94 Harv. L. Rev. 1521 (1981); Note, Private Prosecution: A Remedy for District Attorneys’ Unwarranted Inaction, 65 Yale L.J. 209 (1955); Note, The Use of Mandamus to Control Prosecutorial Discretion, 13 Am. Crim. L. Rev. 563, 563 (1976); Note, Judicial Review of Administrative Inaction, 83 Colum. L. Rev. 627 (1983); Note, Reviewability of Prosecutorial Discretion: Failure to Prosecute, 75 Colum. L. Rev. 130, 150 (1975); Note, Prosecutor’s Discretion, 103 U. Pa. L. Rev. 1057 (1955); Note, Prosecutorial Discretion in the Initiation of Criminal Complaints, 42 S. Cal. L. Rev. 519 (1969).
For discussions of the Wisconsin district attorney see, e.g., Brown, The Wisconsin District Attorney and the Criminal Case (2d *145ed. 1977); Miller, Prosecution: The Decision to Charge a Suspect with a Crime ch. 20 (1969); Wis. Leg. Council Res. Bull. 82-5, The Office of Wisconsin District Attorney and Comparison of State Prosecutorial Systems (1982); Note, Statutory Discretion of the District Attorney in Wisconsin, 1953 Wis. L. Rev. 170.
Apparently, district attorneys in several Wisconsin counties have themselves promulgated written guidelines and procedures relating to charging decisions. A legislative council study in 1982 states that such standards exist in seven counties, including Milwaukee. Wis. Leg. Council, Staff Bull. 83-1, Profile of District Attorney Offices in Wisconsin: A Summary of Responses to 1982 Questionnaire, Table 14, p. 18.
On private prosecution and a history of the prosecutor’s office, see, e.g., Goldstein, Prosecution: History of the Public Prosecutor, in 3 Ency. of Crime and Justice 1286 (S.H. Kadish ed. 1983); Cardenas, The Crime Victim in the Prosecutorial Process, 9 Harv. J. Law and Pub. Pol. 357 (1986); Van Alstyne, The District Attorney — A Historical Puzzle, 1952 Wis. L. Rev. 125; Note, Private Prosecution: A Remedy for District Attorneys’ Unwarranted Inaction, 65 Yale L.J. 209 (1955).
The Commentary to sec. 968.02 states:
"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.” See Comments — L.1969, c. 255, Note to sec. 968.02, West’s Wis. Stats. Annot.
The Commentary to sec. 968.02(3) states:
“Sub. (3) provides a check upon the district attorney who fails to authorize the issuance of a complaint, when one should have been issued, by providing for a judge to authorize its issuance.
"Sub. (3) also provides a vehicle for the issuance of complaints when the district attorney is unavailable.” Comments — L. 1969, c. 265, Note to sec. 968.02, West’s Wis. Stats. Annot.
Sec. 6.02 of the Model Code gave the state law enforcement officer independent power to issue complaints and gave the judge the power to permit the filing of a complaint after giving the district attorney a hearing.
While the American Bar Association discourages private prosecution, it acknowledges that the victim has a legitimate claim to be heard. The ABA states that its encouragement of *148public prosecution was "not intended to discourage the adoption of a system under which a complainant may move for prosecution before a magistrate when a prosecutor has declined to prosecute.” A.B.A. Standards for Criminal Justice, The Prosecution Function, Commentary to Standard 3-2.1 (2d ed. 1980).
For the victim and the criminal justice system, see, e.g., chs. 949 and 950, Stats. 1985-86; Goldstein, Defining the Role of the Victim in Criminal Prosecution, 52 Miss. L.J. 515 (1982); McDonald, Towards a Bicentennial Revolution in Criminal Justice: The Return of the Victim, 13 Am. Crim. L. Rev. 649 (1976); Symposium, Victims’ Rights, 11 Pepperdine L. Rev. 1 (1984).
The Wisconsin legislature has expressed its concern, in numerous statutes, that a government official other than the district attorney be available to initiate a proceeding if the district attorney refuses or fails to act or is unavailable to act. The legislature has established several models for review of a district attorney’s decision not to prosecute.
Sec. 23.65 (3), Stats. 1985-86, patterned after sec. 968.02, permits a circuit court to file a complaint if the district attorney refuses or is unavailable to issue a complaint and there is probable cause to believe that the person charged has committed a violation of chs. 23 (conservation), 26 (forest lands), 27 (parks), 28 (public forests), 29 (fish and game), 30 (navigable waters, harbors and navigation), 31 (dams and bridges) and 350 (snowmobiles). This decision apparently casts doubt on the constitutionality of sec. 23.65 (3).
Sec. 59.44, Stats. 1985-86, allows the circuit court to appoint a special prosecutor to initiate a complaint under specified circumstances not involved in this case.
Sec. 979.04 (2), Stats 1985-86, takes another approach. It provides that if the district attorney refuses to order an inquest, the circuit court, upon petition of a coroner or medical examiner, may issue the order if it finds that the district attorney has abused his or her discretion in not ordering an inquest.
*149Taking still a different tack, several statutes provide that if the district attorney does not act, the Department of Justice may. See, e.g., secs. 5.08,11.61(2), 19.51(l)(a), 767.65 (12), (18) (c), (38) (b), Stats. 1985-86.
Some statutes authorize citizens to bring actions themselves. The open meeting statute provides that if the district attorney refuses or otherwise fails to commence an action to enforce the open meeting law within 20 days after receiving a verified complaint, the person making the complaint may bring an action on his or her relation in the name and on behalf of the state and may receive reasonable attorney fees if he or she prevails. Sec. 19.97 (4), Stats. 1985-86.
At slip opinion at page 132, the majority asserts, "There is no assertion in Coubal that any executive function was usurped by another branch or that there was an encroachment upon powers protected by the separation-of-powers doctrine.” The majority ignores the fact that the trial court in Coubal "held that the district attorney possesses inherent, quasi-judicial power which precludes the legislature from requiring that he proceed in a particular case contrary to what he might think best.” Coubal, 248 Wis. at 256-57. The Coubal court emphatically rejected any such notion either of the breadth of the district attorney’s powers or of the limits on the legislature’s powers, saying, "We think it would come as a great surprise to the legal profession of the state were the court to hold ... that the district attorney possesses inherent constitutional quasi judicial powers which preclude the legislature from requiring that he proceed in a particular case contrary to what he might think best.” Id. at 259.
In Dept. of Revenue v. Gordon, 127 Wis. 2d 71, 377 N.W.2d 212 (Ct. App. 1985), the court of appeals held that a judge’s refusal to allow issuance of complaint under sec. 968.02(3), Stats., was an unreviewable decision and called this to the attention of the legislature as a deficiency in the statute.