¶ 121. {concurring in part and dissenting in part). Here, it is necessary to construe "shall" as directory and permissive, in order to save the constitutionality of the statute. I agree with the concurrence/dissent of Chief Justice Abrahamson that the statute, if interpreted as mandatory, is unconstitutional. If we interpret "shall" as mandatory, such *548interpretation "invades the exclusive core constitutional power of the judiciary to impose a criminal penalty." Chief Justice Abrahamson's concurrence/dissent, ¶ 83. If the circuit court is left with no discretion other than to deny an inmate's petition for sentence adjustment when the district attorney objects, such an interpretation interferes with the circuit court's inherent power to modify a sentence. I also agree with the Abrahamson concurrence/dissent that a district attorney's exercise of a core judicial function would be a clear violation of the separation of powers doctrine. See id., ¶¶ 3, 18-22; State v. Olson, 325 N.W.2d 13, 18 (Minn. 1982); Joni B. v. State, 202 Wis. 2d 1, 8, 549 N.W.2d 411 (1996); In Matter of E.B., 111 Wis. 2d 175, 186, 330 N.W.2d 584 (1983); Thoe v. Chicago, Milwaukee & St. Paul Ry. Co., 181 Wis. 456, 195 N.W. 407 (1923); City of Janesville v. Carpenter, 77 Wis. 288, 46 N.W.2d 128 (1890); Davis v. Vill. of Menasha, 21 Wis. 497 (1867).
¶ 122. If at all possible, we should construe a statute in a way that will save it as constitutional. When this court decided In re Hezzie, 219 Wis. 2d 848, 580 N.W.2d 660 (1998), we concluded that "[statutes are presumed to be constitutional; therefore, 'every presumption must be indulged to uphold the law if at all possible.'" Id. at 862 (quoting Norquist v. Zeuske, 211 Wis. 2d 241, 250, 564 N.W.2d 748 (1997); see also State ex rel. Fort Howard Paper Co. v. Lake Dist. Bd., 82 Wis. 2d 491, 505, 263 N.W.2d 178 (1978) ("The cardinal rule of statutory construction is to preserve a statute and find it constitutional if it is at all possible to do so."); White House Milk Co. v. Reynolds, 12 Wis. 2d 143, 150-51, 106 N.W.2d 441 (1960) ("It is an elementary principle of law in this state that this court will search *549for a means to sustain a statute.... In fact, this court has in the past and will continue to sustain the constitutionality of a statute if any facts can be reasonably conceived which will support its constitutionality."). In this case, the lead opinion makes no effort to interpret the so-called veto provision in a way that will save the constitutionality of the statute. Instead, the lead opinion simply states: "While some may argue that we could avoid addressing the constitutionality of § 973.195 by reading limiting language into the statute, this is not the case." Lead op., ¶ 43. The lead opinion then proceeds to ignore much of our case law, and relies only on State v. Sprosty, 227 Wis. 2d 316, 595 N.W.2d 692 (1999).
¶ 123. I concur with the mandate of the lead opinion to reverse, but I would decide this case by holding that the apparent veto given to a district attorney by the Wisconsin Legislature in Wis. Stat. §§ 973.195(lr)(c) and (f) (2003-04)1 is one where a circuit court has discretion to accept or reject the objection of a district attorney on a sentence adjustment petition. The use of the word "shall" is, I believe, not mandatory, but rather was intended by the legislature to be directory and permissive. I do not believe that the legislature intended to enact a statute that would interfere with a circuit court's inherent power and run afoul of the separation of powers doctrine.
¶ 124. This court has, in several instances, considered whether the use of the word "shall" was directory, rather than mandatory. See State ex rel. Marberry v. Macht, 2003 WI 79, ¶ 15, 262 Wis. 2d 720, 665 N.W.2d *550155; Eby v. Kozarek, 153 Wis. 2d 75, 79, 450 N.W.2d 249 (1990); Karow v. Milwaukee County Civil Serv. Comm., 82 Wis. 2d 565, 571, 263 N.W.2d 214 (1978); Merkley v. Schramm, 31 Wis. 2d 134, 138, 142 N.W.2d 173 (1966); Kamuchey v. Trzesniewski, 8 Wis. 2d 94, 100, 98 N.W.2d 403 (1959); Galewski v. Noe, 266 Wis. 7, 16, 62 N.W.2d 703 (1954); Wallis v. First Nat'l Bank, 155 Wis. 533, 536, 145 N.W.2d 195 (1914). In order to determine whether "shall" is mandatory or directory, "we must consider several factors, including 'the existence of penalties for failure to comply with the limitation, the statute's nature, the legislative objective for the statute, and the potential consequences to the parties, such as injuries or wrongs.'" Fond du Lac County v. Elizabeth M.P., 2003 WI App 232, ¶ 22, 267 Wis. 2d 739, 672 N.W.2d 88 (quoting Macht, 262 Wis. 2d 720, ¶ 15). "Thus, 'the determination of whether "shall" is mandatory or directory is not governed by a per se rule.'" Macht, 262 Wis. 2d 720, ¶ 15 (quoting State v. R.R.E, 162 Wis. 2d 698, 707, 470 N.W.2d 283 (1991)). The lead opinion fails to analyze and apply these factors and fails to probe legislative intent and history. See GMAC Mortgage Corp. v. Gisvold, 215 Wis. 2d 459, 479, 572 N.W.2d 466 (1998); Wauwatosa v. Milwaukee County, 22 Wis. 2d 184, 191, 125 N.W.2d 386 (1963).
¶ 125. In light of the above cases, I take issue with the lead opinion's conclusion that the language cannot be read in Wis. Stat. §§ 973.195(lr)(c) and (f), in order to find that "shall" is directory. Lead op., ¶¶ 43-46. While I agree with the mandate to reverse and agree with the lead opinion's assertion that the legislature's use of the word "shall" in a statute is presumably mandatory, I strongly disagree with its attempt to make this presumption, in effect, a per se rule. It is not. If *551"shall" and "may" are used by the legislature in the same statutory provision, a court should consider the other factors noted above before determining whether the use of the word "shall" was intended to he mandatory or directory, especially where such determination involves the question of whether the statute is constitutional. Here the most significant factor is the one that acknowledges the legislative objective and furthers it by construing the statute in a manner that preserves its constitutionality.
¶ 126. If the statutes at issue were to be interpreted as containing a directory and permissive "shall," then the record of the proceedings must clearly demonstrate that the circuit court exercised its discretion and weighed the appropriate factors when the court reached its decision on sentence adjustment. An example of such balancing would be a record that showed that the circuit court considered the nature of the crime, character of the defendant, protection of the public, positions of the State and of the victim, and other relevant factors such as "[t]he inmate's conduct, efforts at and progress in rehabilitation, or participation and progress in education, treatment, or other correctional programs. . . ." Wis. Stat. § 973.195(lr)(b)l. Here, the record does not show that the circuit court weighed all of the appropriate factors when the court reached the decision to grant sentence adjustment.2 Therefore, the *552decision of the circuit court should be reversed, and I would remand this matter for a full consideration of the factors listed above. The lead opinion would remand for the circuit court to deny the petition for sentence adjustment, because the district attorney exercised the veto provision of § 973.195, which the lead opinion claims is mandatory and not directory. I dissent from that conclusion, and from the purpose for which the lead opinion would remand this matter.3
¶ 127. Additionally, if the provisions of the statute at issue are interpreted as being directory, then there is no need to address the issue of severability, as discussed in the briefs of counsel. Also, I do not address mootness, since no question in that regard was raised, argued or briefed by counsel.
¶ 128. In summary, in order to preserve the statute and find it constitutional, it must be construed as giving the circuit court discretion to accept or reject an objection from the district attorney on a petition for sentence adjustment. The use of "shall" here is directory, not mandatory.
¶ 129. For the reasons discussed herein, I respectfully concur in part and dissent in part.
*553¶ 130. I am authorized to state that Chief Justice SHIRLEY S. ABRAHAMSON and Justices ANN WALSH BRADLEY and LOUIS B. BUTLER, JR. join this concurrence/dissent.
Unless otherwise indicated all references to the Wisconsin Statutes are to the 2003-04 edition.
While the circuit court considered some of these factors in the motion hearings for sentence adjustment and for reconsideration, the court did not make a sufficient record demonstrating an exercise of discretion in light of all of the appropriate factors. The circuit court did discuss the need for balancing, but only in regard to the incentive for rehabilitation of the defendant against the harm suffered by the victim and the victim's desire for punishment. The circuit court was correct when the *552court expressed concern over whether the absolute veto given to the district attorney would stand up, but stopped short of finding such a veto unconstitutional, stating that "I'm not reaching those issues today."
Since Chief Justice Shirley S. Abrahamson, Justices Ann Walsh Bradley, and Louis B. Butler, Jr. join this concurrence/dissent, and since I join the concurrence/dissent of Chief Justice Abrahamson, we form a majority on the directory nature of the statute and the reason for remand to the circuit court.