(dissenting). I do not question the integrity, ability, intelligence or professional judgment of District Attorney E. Michael McCann or the Milwaukee county district attorneys office. However, the fine qualities of a specific district attorney or his office do not justify nullifying a law as being unconstitutional that would allow an independent review of the decisions of such an office. Since Judge Arlene Connors has not yet made a finding, no one could *152know at this stage of the proceedings if Judge Connors would make a finding of probable cause and order the issuance of a complaint and that is irrelevant to the issue of constitutionality.
After his investigation, District Attorney McCann issued a statement that probable cause existed but that there was not enough evidence to prove beyond a reasonable doubt that the individuals involved committed a crime. District Attorney McCann, therefore, declined to prosecute the individuals. Whatever his reasons for declining, I acknowledge that these actions were well within his prosecutorial discretion.
However, District Attorney McCann’s actions, the sufficiency of the evidence, or how Judge Connors is likely to rule are not issues in this case. The sole issue is simply whether sec. 968.02(3), Stats., is constitutional.
The majority believes that sec. 968.02(3), Stats., is a usurpation of discretionary executive power because it replaces it with a judicial decision not based on discretionary factors used by prosecutorial personnel but on a legal standard of probable cause. Majority opinion at page 139.1 disagree. Section 968.02(3) states the judge "may” permit the filing of a complaint but does not require a filing on a finding of probable cause.
The majority decision states that sec. 968.02(3), Stats., is unconstitutional beyond a reasonable doubt. I am not convinced by the majority’s arguments that this arduous burden has been met. Will the district attorney now only be reviewed by a judge and jury when he does bring charges, but there will be no review when charges are not brought? The "review” cited by the majority in a preliminary examination would occur after the prosecutor filed a charge; this would involve no check on prosecutorial discretion to *153not charge. The other "checks” the majority notes (including two-year terms, summary removal by the governor, recall, press scrutiny, and the Standards of Professional Responsibility Codes) have nothing to do with the district attorney’s decision to charge or not to charge a particular person with a particular crime. All would tend to be invoked if there were a pattern of conduct that was questionable but unlikely to be invoked in a specific instance. These methods would not be "efficacious checks upon the prosecutor’s discretion" (majority opinion at page 140) as they are ineffective in bringing about the intended result: limiting the prosecutor’s discretion. At best, these are not limitations in particular cases but apply generally to the conduct or decisions of a district attorney.
The "checks” are little or no solace to the victim of criminal actions who desires vindication, protection, punishment, or retribution. For the victim only the opportunity to be heard by a judge or jury who make a judgment of guilty or not guilty will allow what little solace the legal process provides. Although the law encourages victims to come forward and report such acts as sexual assault, if this statute is struck down, victims will know that the chance they take in coming forward to report the crime could be a pointless risk, solely due to the discretion of a single person, the district attorney. Allowing a review of such a decision, even if the decision is affirmed, by a member of the judiciary promotes trust in the legal system.
Is there a district attorney who would claim he never issues charges on the basis of probable cause rather than proof beyond a reasonable doubt? Would any district attorney deny ever taking the attitude that judges or juries should decide guilt? Sexual *154assault cases involve either the identification of the assailant or the consent of the victim. Both situations revolve around the credibility of the victim and the accused. "Credibility” is a quantity that a prosecutor would be hard pressed to say would always convince a jury "beyond a reasonable doubt” that a crime had been committed.1 Yet sexual assaults are continually being charged. Either the necessity that a prosecutor believes he can prove a crime was committed "beyond a reasonable doubt” before charging is a convenient selective legal fiction or prosecutors are charging in violation of these lofty standards. That policy can apply justice unevenly and discriminatorily, since the district attorney takes the role of prosecutor and jury.
The majority finds fault with the part of sec. 968.02(3), Stats., that permits the judge to act to issue *155a complaint when the district attorney is not available. It finds that the judge has plenary power under sec. 59.44 to appoint an acting district attorney to consider the issuance of a complaint. However, sec. 59.44 has its basis for authority when there is no district attorney for the county, or the district attorney is absent from the county, or has a relationship to the accused, or is serving in the armed forces of the United States, or if the district attorney himself is charged. The court finds the problem with sec. 968.02(3) to be a direct substitution of a judge’s decision for the action of a duly appointed or elected prosecutor. However, the court ignores the fact that some district attorneys in this state are not full-time officeholders and their salaries are commensurate to such offices. Section 59.48 states: "It is unlawful for any district attorney of any county having a population of 40,000 or more to hold the office of or act as city attorney of any city in the county of which he is district attorney. ...” No other practice is prohibited. That is the real world in Wisconsin outside of heavily populated counties where it is recognized district attorneys may not be full-time officeholders. E.g., State v. Hanson, 136 Wis. 2d 195, 401 N.W.2d 771 (1987), filed this same date.
Section 968.02(3), Stats., is a proper, realistic enactment to help move criminal cases through the court system without it being a challenge or usurpation of district attorneys’ prosecutorial discretion. Under sec. 968.02(3), a judge can act directly to review a complaint. Without this authority, in the absence of the district attorney, the policy might be required to hold a suspect until the elected or appointed district attorney becomes available or the process of appointment of a substitute is accomplished. If that were to *156happen, the claim would be that a complaint was not issued in a reasonable period of time.
This court found "a blending of powers or a sharing of powers, such as occurs in a John Doe proceeding, is acceptable. See State v. Washington, 83 Wis. 2d 808, 825-27, 266 N.W.2d 597 (1978).” Opinion at page 141, n. 9. In fact, the court stated in Washington, 83 Wis. 2d 828:
"To the extent that the statute may be viewed as granting both judicial and quasi-executive powers to the John Doe judge, we believe that witnesses and persons accused can be protected by appellate court review of John Doe proceedings and of the court orders which are an outgrowth of those proceedings.” (Emphasis added.)
Regarding the principle of separation of powers, the Washington court added:
"The doctrine of separation of powers must be viewed as a general principle to be applied to maintain the balance between the three branches of government, to preserve their respective independence and integrity, and to prevent concentration of unchecked power in the hands of any one branch. ” Id. at 825-26. (Emphasis added.)
In attempting to distinguish John Doe proceedings from sec. 968.02(3), Stats., the majority goes on to say: "Here, as stated above, the powers are not shared. Under sec. 968.02(3), executive power is voided and, at the siren call of the legislature, judicial power supersedes the executive discretion.” Slip opinion at page 26, n. 9. This ignores the facts underlying State ex rel. Jackson v. Coffey, 18 Wis. 2d 529, 118 N.W.2d 939 (1963). In Coffey, the court upheld the Justice Department’s assistance of then circuit court Judge John *157Coffey in conducting a John Doe proceeding. The John Doe proceeding was investigating the conduct and interaction of the Milwaukee Police Department and the Milwaukee County District Attorneys office. The facts of Coffey show that the John Doe statute had an equal probability of "usurping” the district attorney’s executive power of prosecutorial discretion.
The John Doe statute, sec. 968.26, Stats., states in part: "The extent to which the judge may proceed in such examination is within his discretion.” That language does not foreclose an examination before the tribunal of the district attorney himself, possibly against his will. What greater intrusion into the district attorney’s executive discretion could there be than an involuntary examination of the district attorney? However, this court interpreted and applied sec. 968.26. It is inconceivable that the majority would interpret sec. 968.02(3) to be unconstitutional as a usurpation of prosecutorial authority. The treatment of the two statutes is inconsistent and demonstrates that sec. 968.02(3) is not unconstitutional beyond a reasonable doubt. The majority has not followed its own standard so often repeated by this court: a statute should be saved if at all possible and the court should seek out and apply reasoning to preserve an act of the legislature.
The majority relies partly on sec. 15.001, Stats., for its separation of powers authority; however, that section states: "It is a traditional concept of American government that the 3 branches are to function separately, without intermingling of authority, except as specifically provided by law.” This is not a constitutional basis for the majority’s opinion and provides within the section that the legislature may provide by *158law for the intermingling of authority within the three branches.
As we stated in Quinn v. Town of Dodgeville, 122 Wis. 2d 570, 577, 364 N.W.2d 149 (1985):
"It is well settled that the law in this state presumes all legislative acts are constitutional, and the petitioner in order to prevail must prove the opposite by a standard beyond a reasonable doubt. State ex rel. McCormack v. Foley, 18 Wis. 2d 174, 279, 118 N.W.2d 211 (1962). It is insufficient to merely establish doubt as to an act’s constitutionality nor is it sufficient to establish the act is probably unconstitutional. This court indulges every presumption and will sustain the law if at all possible. If any doubt exists as to a law’s unconstitutionality, it will be resolved in favor of its validity. State ex rel. Hammermill Paper Co. v. La Plante, 58 Wis. 2d 32, 46, 205 N.W.2d 784 (1973); and, If there is any reasonable basis for the exercise of the legislative power, we are obliged to uphold the enactment.’ Watchmaking Examining Bd. v. Husar, 49 Wis. 2d 526, 531, 182 N.W.2d 257 (1971). We are not concerned with the merits of the legislation under attack nor we are concerned with the wisdom of what the legislature has done. Gottlieb v. Milwaukee, 33 Wis. 2d 408, 415, 147 N.W.2d 633 (1967), see also Chicago & N. W. R. Co. v. La Follette, 27 Wis. 2d 505, 521, 135 N.W.2d 269 (1965).” (Emphasis added.)
Instead, the majority has looked only for ways of upsetting the statute rather than saving it. At best, the evidence relied upon by the majority is barely on the palpable side of evanescence.
In State ex rel. Deisinger v. Treffert, 85 Wis. 2d 257, 267-68, 270 N.W.2d 402 (1978) this court de*159scribed our obligation to uphold the constitutionality of a statute as follows:
"However, we do not find sec. 971.14(5) unconstitutional. This court is obligated to uphold the constitutionality of a statute whenever possible and in the past has supplied statutory deficiencies by court rule in order to save a statute. State ex rel. Chobot v. Circuit Court for Milwaukee County, 61 Wis. 2d 354, 367, 212 N.W.2d 690 (1973). Huebner v. State, 33 Wis. 2d 505, 147 N.W.2d 646 (1967).” (Footnotes omitted.)
Not only does the majority search for reasons to find the challenged sections of the statute unconstitutional, it refuses to sever the balance. The majority opinion states: "Is this clearly unconstitutional portion of the statute severable from the balance? We conclude not, for the entire statute contemplates a de novo determination by the judge. The statute does not authorize or permit a review function.” Majority opinion at page 136.1 disagree that the statute contemplates only de novo determination, and therefore, the statute should be severed.
If the judge follows the statutory procedure in the absence of the district attorney, it is de novo action. However, if the district attorney refuses to issue a complaint, then the judge’s consideration of the circumstances is a review of the district attorney’s determination. The review is whether a complaint should have been issued and whether the district attorney was correct. It does not matter whether the judge considers the identical or additional evidence or whether the judge places a different weight on the same evidence. The additional evidence would obviously have been available to the district attorney. *160Such a decision is not de novo.2 It is a review of the same issue: should a complaint be issued?
Although the majority denies the statute contemplates "review of the prosecutor’s discretion” and asserts the court will not rule on that issue, it states at 139 of the slip opinion: "A similar, and even a more egregious, affront to the principles of the separation of powers occurs when the judge can override and set at naught the district attorney’s discretionary declination to prosecute.” In spite of the disclaimer, the court with this statement certainly rules on review authority which the majority does not even find present in the statute. The statement is not necessary, is volunteered and is incorrect.
Even if the majority finds part of the statute fails, it does not apply the rules of severability as previously determined by this court. Since the statute contemplates two different circumstances, that is, a judge acting in the absence of a district attorney and a judge reviewing the discretion of a district attorney, the de novo section can be severed from the review section.
State ex rel. Briggs & Stratton v. Noll, 100 Wis. 2d 650, 659, 302 N.W.2d 487 (1981), states the law for determining whether the statute should be severed:
"'A statute may be unconstitutional in part and yet be sustained with the offending part omitted, if the paramount intent or chief purpose will not be destroyed thereby, or the legislative purpose not substantially affected or impaired, [or] if the statute is still capáble of fulfilling the apparent legislative intent. ...”’ 82 C.J.S. Statutes sec. 93(a) (1953).
*161"This court has adopted this rule. In Bence v. Milwaukee, 84 Wis. 2d 224, 233, 267 N.W.2d 25 (1978), we said:
"'There is ample precedent to permit a court to sever from an ordinance or legislative enactment that portion of an act which is unconstitutional and to declare that the remaining portion is valid. As a general matter, the determination of whether an invalid portion so infects the remainder of the legislation as to require the entire law to be invalidated is a question of legislative intent. City of Madison v. Nickel, 66 Wis. 2d 71, 223 N.W.2d 865 (1974); State ex rel. Milwaukee County v. Boos, 8 Wis. 2d 215, 99 N.W.2d 139 (1959).’”
The legislature obviously had two intents in adopting this section. The first is a de novo determination in the absence of a district attorney, and the second is a review of the ultimate decision of the district attorney not to issue a complaint. While the trial court should give deference to the district attorney’s decision, that decision need not be controlling. Since these two portions have separate legislative intent, even if the de novo portion is unconstitutional, the second review portion is a proper constitutional check on the district attorney having exclusive jurisdiction to issue or deny issuance of a complaint.
An historical look at the role of the district attorney during the nineteenth century shows the majority is in error when it finds the district attorney has constitutionally granted exclusive control over the charging decision.
In Application of Bentine, 181 Wis. 579, 585-86, 196 N.W. 213 (1923), the court discussed the district attorney’s authority in terms of choosing a complaint between variously available statutory offenses and *162stated, citing Justice Marshall’s opinion in Loose v. State, 120 Wis. 115, 130, 97 N.W. 526 (1903):
"'Facing those situations, the legislature, presumably with full knowledge of all this court had said on the subject, in its own and superior wisdom has spoken intending to leave the prosecuting officer to exercise the administrative authority mentioned, since this court has held that such must be the result of leaving the statutes in regard to the matter as they were in 1888. They have been so left. That authority is doubtless not unlimited. It cannot be arbitrarily exercised. The trial court must necessarily have supervisory control over it so as to prevent any manifest abuse thereof."1 (Emphasis added.)
Also in Bentine, the court stated:
"'A public prosecutor is a gwasi-judicial officer, retained by the public for the prosecution of persons accused of crime, in the exercise of a sound discretion to distinguish between the guilty and the innocent, between the certainly and the doubtfully guilty.’ Wight v. Rindskopf, 43 Wis. 344, 354; Rock v. Ekern, 162 Wis. 291, 294, 156 N.W. 197.” Bentine, 181 Wis. at 587.
The majority fails to distinguish between the constitutional role of the district attorney and the "traditional” role the district attorney has been given by both the legislature and this court. Whatever power the district attorney has can come from three sources, in order of their precedence: the constitution, the legislature and this court. Previously, this court has only considered cases where there was a conflict between either the level of power this court gave to the district attorney in a previous case and a con*163straint proposed by the appellant, or a constraint proposed that would violate powers given by the legislature. The current case, however, is the first time the court has considered a conflict between a clear legislative mandate and whatever power was constitutionally given to the district attorney.
While the legislative mandate is clear, what power is given to the district attorney by the constitution is not. The majority finds the source of the district attorney’s discretionary power in the constitution because it insists he is a member of the executive branch. However, under Article V, sec. 4, entitled "Executive ... Powers and Duties” the duty to "take care that the laws be faithfully executed” belongs to the governor.
The only mention of the district attorney, as well as the attorney general, occurs in Article VI, entitled "Administrative.” Section 3 states: "The powers, duties and comensation of the treasurer and attorney general shall be prescribed by law.” The district attorney is mentioned twice in Article VI, sec. 4: in regard to his two-year term and that vacancies of district attorneys are to be filled by appointment.
Two principles can be drawn from this section. First of all, it is commonly accepted that the district attorney and the attorney general fulfill analogous roles on the county and state levels. Since the legislature defines the powers and duties of the attorney general and could require either legislative or judicial review of his decisions or limit his power, it is ludicrous to say that the legislature has no power under the constitution to define the powers of the district attorney, an unnamed office in Article VI, sec. 4.
*164If the majority cannot accept that the attorney general is the same sui generis as a district attorney, it must also accept the fact that the authors of the constitution described the powers of the attorney general (as emanating from the legislature) and did not describe the powers of the district attorney within the same section. The statutory principle of expressio unius est exclusio alterius should apply. In fact the district attorney’s powers were not mentioned and therefore the powers of the district attorney were not conferred by the constitution, but are to be granted and limited through the legislature.
This is supported by the cases cited by the majority. Legislative enactments have been the touchstone of the determination of what rights and duties the district attorney has. These were conflicts between the court and the legislature to determine if the court had a right to interfere with the powers conferred on the district attorney by the legislature.
Here, however, the legislature is merely regulating the power it initially conferred to the district attorney by statute as it metes out the power of the other county officers that are described in Article VI, sec. 4.
As stated by 27 C.J.S. sec. 10, District and Prosecuting Attorneys (as cited in State ex rel. Kurkierewicz v. Cannon, 42 Wis. 2d 368, 379, 166 N.W.2d 255 (1969)):`
"If the official duties of a prosecuting attorney are prescribed by the constitution, they cannot be increased or diminished by statute. Where, however, the constitution does not prescribe the duties of the district or prosecuting attorney, the legisla-:.. ture may regulate the performance of such duties, *165and if fixed by statute, they may be increased or diminished at the pleasure of the legislature. ..
To determine what the authors of our constitution thought the powers of the district attorney were, it is useful to determine if the district attorney’s prosecuto-rial discretion was ever limited or mandated by statute when the constitution was passed.3 Since the office of district attorney was never discussed during the constitutional conventions, such an analysis is the only way to determine if prosecutorial autocracy vested solely in the district attorney was contemplated by the authors.
In the statutes of 1849, ch. 145, provides:
"SECTION 1. For the apprehension of persons charged with offences, the judges of the several courts of record, in vacation as well as in term time, and all justices of the peace are authorized to issue process to carry into effect the provisions of this statute.
*166"SECTION 2. Upon complaint made to any such magistrate that a criminal offence has been committed, he shall examine on oath the complainant and any witnesses produced by him, and shall reduce the complaint to writing, and shall cause the same to be subscribed by the complainant; and if it shall appear that any such offence has been committed, the court or justice 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 court or justice, or before some other court or 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.”
Chapters 145 and 146 constitute most of the criminal procedure statutes of the time covering the time before arrest to actual trial. The district attorney is mentioned only once in these chapters, at ch. 146, sec. 7:
"SECTION 7. The district attorney and all other prosecuting officers may, in all cases, issue subpoenas for witnesses to appear and testify on behalf of the state; and the subpoenas, under the hand of such officer, shall have the same force, and be obeyed in the same manner and under the same penalties in case of default, as if issued by the clerk.”
These statutes show that at the time the constitution was ratified or very shortly thereafter the magistrate was the person to draft the complaint and initiate a "prosecution.” Sections 16 and 18 deal with *167the duties of the magistrate when he has heard the evidence:
“SECTION 16. If it shall appear to the magistrate upon the whole examination that no offence has been committed, or that there is not probable cause for charging the prisoner with the offence, he shall be discharged.”
"SECTION 18. If it shall appear that an offence has been committed, and that there is probable cause to believe the prisoner guilty, and if the offence be bailable by the magistrate, and the prisoner offer sufficient bail, it shall be taken and the prisoner discharged; but if no sufficient bail be offered, or the offence be not bailable by the magistrate, the prisoner shall be committed for trial.”
It is clear then that a prisoner would have gone through the equivalent of arrest, jail, bond hearing and arraignment without statutorily or constitutionally required involvement or exercise of discretion by the district attorney. Indeed, the statutes of the period of the constitution make it unclear when the district attorney will get involved in the criminal process.
These statutes were not changed until 1889 when the entire statutes were revised. Section 4653 then described the duties of the district attorney:
"Duty of district attorney as to offenses; to report to court if he does not file information. SECTION 4653. The district attorney of the proper county shall inquire into and make full examination of all facts and circumstances connected with any case of preliminary examination as provided by law, touching the commission of any offense whereon the offender shall have been committed to jail, or become recognized or held to *168bail, and to file an information setting forth the crime committed, according to the facts ascertained on such examination and from the written testimony taken thereon, whether it be the offense charged in the complaint on which the examination was had or not; but if the district attorney shall determine in any such case that an information ought not to be filed, he shall make, subscribe and file with the clerk of the court a statement in writing, containing his reasons in fact and in law, for not filing an information in such case; such statement shall be filed at or before the term of the court at which the defendant shall be held for appearance for trial; and in such case the court or presiding judge shall examine such statement, together with the evidence filed in the case, if there be evidence filed therein, and if upon such examination the court or presiding judge shall not be satisfied with such statement, the district attorney shall file the proper information and bring the case to trial; but if the said statement is satisfactory to the court or presiding judge, said court or judge shall indorse approval upon said statement, and if at the time of such approval, the defendant in said case be confined in jail under commitment for trial in said case, the clerk of the court shall forthwith serve upon the sheriff or jailer having such defendant in custody his certificate under the seal of the court to the effect that reasons for not filing an information in said case have been approved by the court or judge, as the case may be; whereupon such sheriff or jailer shall forthwith discharge said defendant from custody.” (Emphasis added.)
Even in 1889 then the district attorney was subject to some form of judicial review of his decision to prosecute. It is not clear in these statutes whether *169the magistrate or the district attorney would make the decision to issue the complaint.
The constitutional history of the office of the district attorney is that it was mentioned in Article VI, sec. 4 with no power or duties spelled out. In the 1848 constitution, the entity of grand jury was established in Article II, sec. 8 and grand jury assent was needed to satisfy due process for criminal proceedings. The district attorney had no discretion as to what causes were to be prosecuted but was required to pursue all grand jury indictments.
The constitutional requirement for a grand jury system was eliminated by amendment in 1870. However, it is obvious that the decision to charge persons with criminal behavior was not constitutionally exclusively that of the district attorney. If the district attorney did not have this exclusive discretionary power under the constitution, the legislature is free to delegate such power wherever it deems necessary to "prevent concentration of unchecked power in the hands of any one branch.” Washington, 83 Wis. 2d at 825-26. Under the challenged statute the judiciary is concurrently able to initiate a prosecution along with a district attorney which reinstates the "check” lost with the abolishment of the grand jury system. Just as the grand jury system was abolished because too much power had been delegated to the judicial branch, so must some of that power be reinstated with the judiciary, in a controlled form, to balance the "acquired” power of the district attorney. The district attorney’s current power was acquired through legislative acquiescence rather than constitutional mandate. The legislature has made its will known and withdrawn its acquiescence. Since the district attorney never had an exclusive constitutional control over *170the charging decision, legislative acts regarding the charging decision cannot be a "substantial encroachment” on a constitutionally delegated power.
State v. Leicham, 41 Wis. 565, 568 (1877) is another historical case placing the role of the district attorney in less than a constitutionally autocratic officer of the executive branch of government, but rather recognizing the potential of the office having "a very wide and very dangerous discretion.” In Leicham, the court described the involvement of the magistrate in determining whether a criminal action will be brought and does not recognize the exclusive authority of the district attorney to make that determination.
It is clear then that the historic role of the district attorney in 19th century Wisconsin law was much less than it is today. This is significant as it does not-support the exalted constitutional power the majority finds in Article VI flowing from the mere mention of the office.
In State v. Coubal, 248 Wis. 247, 257, 21 N.W.2d 381 (1946) the court stated:
"It is true that the district attorney is a quasi-judicial officer. This court has so held in the sense that it is his duty to administer justice rather than to obtain convictions. No one would deny that there are many instances in the performance of his duty in which he may be called upon to exercise discretion. All his duties are not ministerial. There is, however, no basis for holding that his duties in representing the state are not subordinate to legislative direction as to the cases in which he shall proceed.” (Emphasis added.)
We recognized in Coubal therefore the limitations of the office of district attorney being subordinate to *171the cases in which he shall proceed, even though we stated it in a negative fashion. It is clear, at least in 1946 in the Coubal case, that this court did not believe the district attorney constitutionally had unlimited authority in the issuance of complaints. How can the constitution be changed completely in the last forty years.
I would find the statute is totally constitutional; however, if the confusing majority opinion is correct about the de novo character of a judge acting in absence of the district attorney, then the review portion of the statute can be severed and is constitutional. For the court to find otherwise is to ignore the stated principle of the statute and place unchecked power in the district attorney’s office in regard to prosecutorial decision-making.
I am authorized to state that Mr. JUSTICE ROLAND B. DAY joins in this dissenting opinion.
District Attorney McCann’s reasons for declining to file charges were set forth in State ex rel. Newspapers v. Circuit Court, 124 Wis. 2d 499, 502, 370 N.W.2d 209 (1985). In part, he stated:
'"To file charges of third-degree sexual assault when we believe that a jury will find the men not guilty would not be in the interests of justice.... [0]n the evidence that would be presented to the jury, we will not be able to convince a jury beyond a reasonable doubt that consent was not given.’ ” (Emphasis added.)
A careful reading of the A.B.A. Standards for Criminal Justice Relating to the Prosecution Function, Standard 3-3.9, which the majority endorses (majority opinion at page 140), provides that the prosecutor should not file charges "in the absence of sufficient admissible evidence to support a conviction,” or when the prosecutor has a reasonable doubt that the accused is guilty. From the reasons District Attorney McCann gave for not prosecuting, it appears he did not apply these standards. District Attorney McCann would only prosecute if he was sure the jury would return a guilty verdict, but the standards urge prosecution when, assuming a guilty verdict, the evidence will support the verdict.
De novo meaning "anew; afresh.” Black’s Law Dictionary.
"We have previously articulated the analysis which a court should employ in interpreting provisions of the Wisconsin Constitution. Buse v. Smith, 74 Wis. 2d 550, 568, 247 N.W.2d 141 (1976); Board of Education v. Sinclair, 65 Wis. 2d 179, 222 N.W.2d 143 (1974). We have said that the court will examine:
"'(1) The plain meaning of the words in the context used;
"'(2) The historical analysis of the constitutional debates and of what practices were in existence in 1848, which the court may reasonably presume were also known to the framers of the 1848 constitution, see State ex rel. Zimmerman v. Dammann (1930) 201 Wis. 84, 88, 89, 228 N.W. 593; and State ex rel. Comstock [v. Joint School District, 65 Wis. 631, 27 N.W. 829 (1886)]; and
"'(3) The earliest interpretation of this section by the legislature as manifested in the first law passed following the adoption of the constitution. Payne v. Racine (1935), 217 Wis. 550, 259 N.W. 437.’ Buse v. Smith, 74 Wis. 2d 550, 568, 247 N.W.2d 141 (1976).” State v. Beno, 116 Wis. 2d 122, 136, 341 N.W.2d 668 (1984).