(dissenting). I conclude that this court errs in declining to exercise the powers set forth in chapter 371 of the 1983 Laws. I further conclude that the court has erred in failing to hold a public hearing and in failing to solicit communications from interested persons before reaching its decision.
In 1983 a majority of the justices refused to adopt experimental court-mandated sentencing guidelines and left the issue to the legislature. See In the Matter of Implementation of Felony Sentencing Guidelines, 113 Wis. 2d 689, 711, 335 N.W.2d 868 (1983).1 In 1984 *215the legislature has mandated sentencing guidelines and related procedures. The per curiam and concurring opinions do not really address the issue presented to this court by chapter 371 of the 1983 Laws. Rather they again address issues that were decided in response to the 1983 sentencing guidelines petition.
The issue that chapter 371 presents to us is this: Who should perform the sentencing tasks mandated by the legislature, this court or an administrative agency attached to the executive branch? Under chapter 371, either this court (with the advice of a sentencing council) or a sentencing commission shall formulate sentencing guidelines and shall conduct and coordinate other functions, such as collecting, developing, and maintaining statistical information relating to sentencing practices and other dispositions of criminal complaints, developing instructional programs for judges, and explaining sentencing practices and rules to the public.
While the sentencing council or the sentencing commission would be of similar composition, that is, certain described persons appointed by the same designated appointing agency, there is a significant difference in the level of responsibility of each entity. If we exercise the authority granted us, this court, not the sentencing council, would make the ultimate decisions on the sentencing guidelines and on the other functions; the sentencing council would act as an advisory board to this court. In contrast, if the court does not elect to exercise the authority granted under chapter 371, the sentencing commission formulates the guidelines and performs the other sentencing tasks.
*216The implications of deciding whether this court shall play a major role in formulating sentencing guidelines and in performing the other functions prescribed by the legislature are far reaching. The legislature has given the guidelines entity leeway in deciding how to perform the tasks within the general standards and limitations set forth by the legislature on the formulation of guidelines. See sec. 14, ch. 371, sec. 973.011, Stats.2 The choice of the entity may therefore significantly affect the type of guidelines ultimately adopted and their acceptance by the public and the trial courts.
Furthermore, the choice of entity raises issues such as the separation of powers, the administration of the judicial system, and the proper balance in allocating discretionary power among the legislative, executive, and judicial branches which share responsibilities in the sentencing process.
I.
This court’s decision affects litigants, trial and appellate courts, the bar, and the public. An issue of this import should not be decided without the benefit of public discussion and without soliciting the widest possible variety of viewpoints.3 Unfortunately the court held no *217public hearing and did not solicit written communications before reaching its decision. In last year’s public hearing the persons appearing did not have the opportunity to address the issue presented by chapter 371, and the membership of the court has changed since that hearing. There was time to hold a hearing. I think the court should have done so.
I received a few letters in connection with chapter 371. All favored the court’s exercise of the powers under the legislation. Some persons inquired whether a formal or informal meeting with the court was possible to discuss the issue. No such meeting was held. Apparently communications about chapter 371 were sent to some individual justices. Apparently no communications were sent to the clerk of court and accordingly there is no court file relating to chapter 371 and sentencing guidelines.
I believe many persons were interested in communicating with the court about chapter 371 but did not do so. Some were unsure of the propriety of discussing the merits of this matter with the court as a whole or with individual justices. Others were unsure of the propriety of discussing even the possibility of the court scheduling a public hearing. Had there been an opportunity for oral or written communication with the court, numerous persons might have become involved — trial judges, lawyers (including the attorney general, prosecutors, public defenders, lawyers in private practice, and law professors), legislators, police officers, members of the parole board, persons working in corrections and related fields, and lay persons (including victims, witnesses, and jurors) who are experienced or interested in the criminal justice system.
Our handling of the matter presently before the court illustrates a serious defect in this court’s operating pro*218cedures. While the statutes and Supreme Court Rules set forth a procedure for initiation of and participation in adjudicative matters and in sec. 751.12 rule-making proceedings, no procedure is established in the statutes, Supreme Court Rules, or in the court’s recently issued internal operating procedures to enable the court to inform itself as to the merits of a nonadjudicative matter (outside sec. 751.12, Stats. 1981-82) and to enable interested persons to initiate court consideration of such nonadjudicative matters and make their views known to the court.4
This court, which has written so eloquently on the need for open government, ought to make its own processes as readily accessible to the public as circumstances permit. I urge this court, on its own motion or on petition of an interested party and after public hearing, to adopt and publish a procedure allowing public participation in non-adjudicative matters.5
*219II.
That the choice of the entity for sentencing guidelines is significant is apparent in the substantial body of scholarly writings and studies discussing this question.6 There is, however, no consensus on a model entity to *220promulgate sentencing guidelines. The choice of entity-in each jurisdiction depends on consideration of the existing sentencing process in the jurisdiction, on the constitutional powers of the legislature and the judiciary in the jurisdiction, and on balancing the advantages and disadvantages of various alternatives.
When the legislature establishes a system for sentencing guidelines, it has basically three choices: It can create guidelines itself by statutory enactment; it can delegate authority to the judicial branch to promulgate guidelines under general legislative standards; or it can create a specialized agency attached to the executive or judicial branch to which it delegates the authority under general legislative standards.
Under chapter 371 the Wisconsin legislature does not promulgate the guidelines by statutory enactment. The per curiam and concurring opinions imply that when the legislature delegates authority to formulate guidelines to the court or an administrative agency, it fails to live up to its obligation to fix penalties. I disagree. Legislative adoption of guidelines by statute is uniformly criticized. The legislature is not equipped to do the initial job of formulating guidelines and has little or no mechanism to monitor and modify a guideline system.7
The legislative preference, expressed in chapter 371, is to delegate the authority to this court.8 The governor *221also urges this court to use the authority granted by chapter 371.9 The legislature’s and governor’s fail-back position is that the authority be vested in an agency attached to the executive branch and subject to chapter 227, the Administrative Procedure Act.
The decision for this court is not an easy one. Formulating sentencing guidelines and performing the other functions set forth in chapter 371 will be a time-consuming, difficult, often controversial, and generally thankless job. Nevertheless, on the basis of my analysis of the existing Wisconsin sentencing procedure, the theoretical underpinnings of advisory sentencing guidelines, the published studies of experiments with sentencing guidelines, and this court’s powers and duties under the judiciary article (article VII) of the Wisconsin Constitution, I conclude that the court ought to undertake the tasks in conjunction with the sentencing council.
While I am not saying that this court is uniquely qualified to establish guidelines and perform the additional tasks mandated by chapter 371, I do believe that the court’s qualifications, when considered in the context of the legislature’s and the governor’s preference, and issues of institutional structure, comity, and efficiency make it the better choice. Furthermore, if the court exercised the powers under chapter 371 and, after further study, concluded that it should not promulgate sentencing guidelines, the court could relinquish its powers under chapter 371 without jeopardizing the legislature’s objectives.10
*222If this court is to adhere to the principle that “sentencing is a matter of legislative policy,” per curiam slip op. p. 7, and to the principle of comity, it should give great weight to the legislature’s and the governor’s preference that this court undertake the tasks set forth in chapter 371.11
If this court is to act consistently with principles of indeterminate sentencing, separation of powers, and accountability, it should undertake the tasks set forth in chapter 371.
In adopting advisory guidelines the legislature has retained this state’s traditional indeterminate sentencing process whereby the ultimate sentencing decision is in the hands of the trial judge, with the trial judge’s decision reviewable on appeal for abuse of discretion. Since sentencing remains a matter of judicial discretion, it is appropriate that the guidelines be promulgated by this court rather than by an independent agency attached to the executive branch.
The legislature’s purpose in establishing sentencing guidelines is to assist the trial judge in exercising her or his discretion to ensure that sentencing of criminal de*223fendants will be “even-handed,” “consistent,” and “appropriate in a particular case.” Sec. 10, ch. 371, sec. 751.13 (1), Stats. Implicit in the statement of legislative purpose is the realization that appellate judicial review alone has not proved adequate to structure judicial discretion and to avoid disparate, inconsistent, or unreasonably light or severe sentences in particular cases. Others have similarly concluded. See, e.g., ABA, Standards for Criminal Justice ch. 20 (2d ed. 1980). In a recent case in the court of appeals, each of the three judges expressly or implicitly suggested that if there were to be meaningful appellate review of trial court sentencing decisions, the supreme court must reexamine the existing standards to be applied on appellate review. State v. Lazaro Curbello-Rodriguez, 119 Wis. 2d 414, 351 N.W.2d 758 (1984), pet. for rev. denied (Abrahamson, J., dissenting).
If this court formulates guidelines giving due deference to the advice of the sentencing council, the legislative objective of maintaining the existing distribution and balance of power among the executive, legislative, and judicial branches in the sentencing process would be achieved. The legislature wisely mandated that the council be composed of persons appointed by the governor, the legislature, and the court and representative of various agencies and persons who have an interest in sentencing. Both the council and the court should, of course, encourage public participation in their formulation of guidelines.
The court’s exercise of the powers under chapter 371 comports with this court’s interpretation of its constitutional powers and duties to exercise superintending authority and exclusive administrative authority over all courts independent of the executive and legislative branches. See Art. VII, sec. 3(1), sec. 4(3), Wis. Const.; In re Grady, 118 Wis. 2d 762, 348 N.W.2d 559 (1984); Governor’s Veto Message, J. of the Assembly, April 25, 1984, p. 1209.
*224Unless the court exercises the powers under chapter 371 an agency which is not elected by the citizens and which is not accountable to the citizens will be making final policy decisions.
This court’s experience and current administrative structure make it the most economical and efficient body to perform the tasks which the legislature has mandated.
First, this court has recently had experience with sentencing guidelines. We can build on the previous efforts of the trial courts, our administrative staff, and the Wisconsin Felony Sentencing Guidelines Advisory Committee in the use of an experimental system of sentencing guidelines.12
Second, this court has had experience in structuring the trial court’s exercise of discretion, generally. A significant part of this court’s appellate work is to establish guidelines giving effect to statutory standards to structure the exercise of trial court discretion.13 Sentencing guidelines bring to the sentencing process a principle well established in various other parts of our legal system, namely, that discretion can be structured without being *225eliminated. See Davis, Discretionary Justice: A Preliminary Inquiry (1977).
Third, the supplemental tasks of data collection and judicial and public education mandated by the legislature are simply an extension of functions already performed by the court.
The court presently requires trial courts to collect and transmit statistical data. The court’s exercise of the authority granted in chapter 371 relating to data collection would localize data collection in one agency and avoid potentially duplicative or unreasonable requests on the already overburdened trial courts and clerk of courts.
The court requires judges to participate in judicial education programs, and the court’s judicial education office develops and sponsors educational programs. The per curiam and concurring opinions demonstrate this court’s interest in, and commitment to, helping the public understand the sentencing process. Yet the court is unwilling to accept the responsibility for public education set forth in chapter 371.
Furthermore, if the court supervised the operation of the guidelines, periodic formal and informal review and evaluation of the system could be undertaken easily through the court’s existing communication system with the trial judges. The system includes the annual judicial conference, educational programs, mailings, and monthly meetings with the chief judges of the administrative districts.
Finally, I believe the court is the preferable entity because the court is best able to formulate sentencing guidelines with due consideration to the overall working of the criminal justice system and the connection between sentencing by the trial court and the larger system of discretionary powers in the criminal justice system.14 *226I regret that this court is foregoing the opportunity that chapter 371 presents for this court and the trial courts to work more closely with other agencies in the criminal justice system which play a role in sentencing.
Although for the reasons I have stated I prefer that the court exercise the authority granted it under chapter 371, my preference for the court does not mean that I have concluded that the public interest cannot be served by the sentencing commission. I believe that the commission can successfully promulgate guidelines and that this court, the trial courts, and court personnel across the state will cooperate with the sentencing commission fully to give the guidelines a chance to accomplish the legislature’s purposes in establishing a guidelines system.
The 1983 petition had asked the court to promulgate a rule adopting, for an 18-month trial period, guidelines developed by the Advisory Committee for the Wisconsin Felony Sentencing Guidelines Project. The petition presented two principal issues: whether any sentencing guidelines should be adopted by the court in the absence of legislation and, if so, what the sentencing guidelines should be.
Chapter 371 has settled both issues. The legislature decided that the court should, if it is willing, adopt guidelines. The legislature decided that indeterminate sentencing should be retained and that guidelines should be adopted to structure — not eliminate — judicial discretion and to aid trial judges in reaching a fair and equitable sentencing decision in each case.
In 1983 the majority of the court was concerned with a conceptual and practical problem it perceived in the proposed guide*215lines, namely, that the guidelines had been constructed solely from an empirical perspective based on past sentencing decisions rather than from a normative perspective. See In the Matter of the Implementation of Felony Sentencing Guidelines, 113 Wis. 2d 689, 690, quoted at p. 199 of the per curiam opinion. See note 2, infra, for an explanation of the legislature’s decision on this issue.
The legislature has stated that the guidelines shall be based primarily but not solely on empirical data. Other considerations set forth by the legislature include the felon’s previous criminal history and mitigating and aggravating factors. Sec. 14, ch. 371, sec. 973.011, Stats. The legislature relies on the sentencing guidelines entity to weigh the criteria.
The legislature contemplates that the court will, in preparing the guidelines, continue its initial sentencing study, but the legislature does not contemplate that the court will necessarily adopt the sentencing guidelines proposed to the court in 1983. If the court were to promulgate guidelines it would have more than 2 years to do so. Sec. 10, ch. 371, sec. 751.13, Stats.
For a discussion of the values of access and accountability in a court’s nonadjudicative functions, see Grau, Judicial Bulemak-*217ing: Administration, Access and Accountability (American Judicature Society 1978).
Lawyers have pointed out that the court has not provided a vehicle for amendment of the Supreme Court Rules that are not sec. 751.12 rules. See Communication to the Court from Frank L. Nikolay, President of the Clark County Bar Association, dated May 7,1984.
Nor are there any published or unpublished rules to guide the Justices in their own conduct when nonadjudicative matters are pending before the court. During my eight years on this court, I have discussed the question of the role of a judge in nonadjudica-tive matters with several of my colleagues on this court and with judges from other jurisdictions. Although I have not found a unanimity of opinion or practice among judges, I think there is a consensus that when a nonadjudicative issue is pending before the court a judge is permitted to listen to or read communications from persons who wish to address the issue, but a judge should not reveal either the views of the individual justices or the court’s tentative or final vote on the matter before the court announces its ruling.
For a procedure see sec. 37 of the Rules of Judicial Administration submitted to this court on October 2, 1978 by the Judicial Council by petition entitled In the Matter of the Promulgation of Rules of Judicial Administration for the State of Wisconsin. Un*219fortunately sec. 37 was not adopted by this court; it provided a procedure for initiation of local judicial administrative rules by the chief judge or any other person and for solicitation of comments in writing or at a hearing.
See, e.g., Frankel, Criminal Sentences: Law Without Order 55, 118-123 (1973); III ABA Standards for Criminal Justice, ch. 18, 18-3.1-18-3.5 Sentencing Alternatives and Procedures (2d ed. 1980); Uniform Law Commissioners, Model Sentencing and Corrections Act sec. 3-110, 10 Uniform Laws Annot. Suppi. Pamphlet 1980-1983, p. 280 (1984); Senate Comm. on the Judiciary, Sentencing Reform Act of 1983, S. Rep. No. 223, 98th Cong., 1st sess. (1983), pp. 60-62; Rich, Sutton, Clear and Saks, Sentencing by Ma,theina,tics: An Evaluation of the Early Attempts to Develop and Implement Sentencing Guidelines 206-207 (Nati Center for State Courts 1982); Singer, In Favor of "Presumptive Sentences" Set by a Sentencing Comanission, 24 Crime and Delinquency 401 (1978); Coffee, The Repressed Issues of Sentencing: Accountability, Predictability, and Equality in the Era of the Sentencing Commission, 66 Geo. L.J. 975 (1978); Tonry, The Sentencing Commission in Sentencing Reform, 7 Hofstra L. Rev. 315 (1979); Crump, Determinate Sentencing: The Promises and Perils of Sentence Guidelines, 68 Ky. L.J. 1 (1979-80) ; Ozanne, Bringing the Rule of Law to Criminal Sentencing: Judicial Review, Sentencing Guidelines and a. Policy of Just Desserts, 13 Loyola U.L.J. 721 (1982); Zalman, A Commission Model of Sentencing, 53 Notre Dame Law 266 (1977); Spader, Criminal Sentencing and Punishment: The Search for the Golden Zigzag, 28 S.D.L. Rev. 1 (1982); Schwartz, Options in Constructing A Sentencing System: Sentencing Guidelines Under Legislative or Judicial Hegemony, 67 Va. L. Rev. 637 (1981).
For an extensive bibliography on sentencing guidelines, see Appendix B of the Report of the Wisconsin Felony Sentencing Guidelines Advisory Committee (Jan. 31, 1983), pp. 445-62, on file with the Clerk of the Supreme Court, State Capitol, Madison, Wis.
As originally adopted, chapter 371 provided that the legislature must approve each rule adopting guidelines. The governor vetoed this language, explaining that legislative enactment of each guideline would be inappropriate and “would delay indefinitely the implementation of sentencing guidelines. . . Governor’s Veto Message, J. of the Assembly, April 25, 1984, pp. 1208-1209.
See sec. 10, ch. 371, sec. 751.13(1), Stats. This delegation is similar to sec. 751.12, Stats. 1981-82, which has been approved by this court. The formulation of guidelines does not affect the substance of legislatively mandated maximum or minimum penalties but provides a procedure by which trial judges can formulate their sentencing decisions. Promulgation of procedural rules is *221traditionally the province of this court. This court has said, “[T]here is no constitutional objection to the delegation of [the power to adopt procedural rules] to the courts by the legislature.” In re Rules of Court, 204 Wis. 501, 510, 236 N.W. 717 (1931).
Governor’s Veto Message, J. of the Assembly, April 25, 1984, p. 1208.
The legislature provided that the members of the sentencing council would automatically become the members of the sentencing *222commission if the court did not complete the tasks; all rules or orders promulgated by the court relating to guidelines would remain in effect until modified or rescinded by the commission; all contracts the court entered into relating to the guidelines would remain in effect and be transferred to the commission. Consequently all the work and effort of the council and the court would not be wasted but rather would be continued by the commission without significant interruption. Sec. 15(2) (3), ch. 371.
Although the majority opinions give lip service to the doctrine that the sentencing is a matter of legislative policy, the opinions are not willing to accept the legislative decision that there be guidelines. The opinions appear to conclude that the court should not play any role in the process of imposing sentencing guidelines, because sentencing guidelines would unreasonably interfere with the trial judge’s exercise of discretion, because appellate review is adequate, and because the parole system undermines judicial discretion and confuses the public.
The Advisory Committee was established by the governor, funded by the Wisconsin Council on Criminal Justice, and endorsed by the judicial planning committee of this court. It operated from approximately October 1, 1980, through December 31, 1982. With the aid and assistance of administrative personnel of this court and the trial courts and Chief Justice Bruce Beilfuss, the Advisory Committee engaged in research, analysis, and system development work necessary to develop sentencing guidelines for certain felonies and then reviewed the operation of the guidelines. From July 15, 1981, through December 31, 1982, circuit judges in eight counties used the experimental sentencing guideline system distributed by the Advisory Committee.
See, e.g., McCleary v. State, 49 Wis. 2d 263, 274-282, 289-90, 182 N.W.2d 512 (1971), and State v. Macemon, 113 Wis. 2d 662, 667-68, 335 N.W.2d 402 (1983) (guidelines as to exercise of sentencing discretion); Haugan v. Haugan, 117 Wis. 2d 200, 211-15, 343 N.W.2d 796 (1984) (guidelines as to maintenance and property division upon divorce).
Although the trial judge fixes and pronounces the sentence (subject to appellate review) within the legislatively established minimum and maximum sentences, other parties in the criminal *226justice system exercise discretion which affects the real sentence: police, prosecutors, the parole board, and the division of corrections. The roles of these agencies and the courts are interdependent. Imposition of guidelines must consider the workings of all entities and the criminal justice system as a whole. The objectives of retaining trial court discretion structured by guidelines can be thwarted if the guidelines cause shifts of power in the system as to the exercise of the sentencing discretion. See Ohlin and Remington, Sentencing Structure: Its Effect Upon Systems for the Administration of Criminal Justice, 23 L. & Contemp. Prob. 495 (1958).