State v. David S. Stenklyft, 2005 WI 71, on bypass
For Stenklyft: Suzanne L. Hagopian, SPD, Madison Appellate
Issue/Holding: The prosecutorial veto written into the TIS sentence-adjustment provision, § 973.195, is unconstitutional:
¶83 … “[S]hall” is interpreted as directory, thereby giving a circuit court discretion to accept or reject an objection from a district attorney on a petition for sentence adjustment under Wis. Stat. § 973.195. …
¶84 We conclude that the judicial power is compromised when the district attorney is given the unilateral power to end a circuit court’s consideration of an inmate’s petition for sentence adjustment. A district attorney’s exercise of a core judicial function is barred by the separation of powers doctrine. 
¶85 Wisconsin Stat. § 973.195(1r)(c) is unconstitutional if read to grant a district attorney veto power over a petition for sentence adjustment. A district attorney’s veto power invades the exclusive core constitutional power of the judiciary to impose a criminal penalty. It empowers an executive branch officer to direct a court decision on the merits of a case, thereby violating the doctrine of separation of powers under the state constitution. 
¶86 Even if we were to conclude that the statute does not invade the exclusive core constitutional powers of the judiciary, the elimination of a circuit court’s power to decide an inmate’s petition without the approval of the district attorney is an impermissible burden and substantial interference with the judicial branch’s authority.  The statute interferes with the impartial administration of justice by delegating judicial power to one of the parties in the litigation.
¶105 Because deciding the merits of a case is the essence of a court’s function, and because the statute delegates to a district attorney the power to mandate the denial of a petition in each case, we conclude that the legislation in question is an unconstitutional violation of the doctrine of separation of powers.
The holdings are contained in two separate, 4-vote concurrence/dissents; see ¶82. The misleadingly referred-to “lead opinion” – a mere 80 ¶¶ – is written as if it were the majority, replete with “we hold” and “we conclude” but it garners only 3 votes. In reality, it is not the lead opinion, or the plurality, or anything other than, quite simply, the dissent. Indeed, the “lead opinion’s” recognition of its dissent-status is coy, not to say grudging, ¶6 fn. 2. We here at Case Summaries strive to be above the fray, but would be remiss if we failed to draw attention to the majority’s dismissive criticism of the dissent, ¶85 n. 18: “The lead opinion goes to great length, making numerous arguments to uphold the statute. I do not undertake an analytical critique of each argument, although I could. The lead opinion builds its case on weak underpinnings, supported by quotations taken out of context. Very little research by a reader will quickly reveal the weaknesses that permeate the lead opinion.” Ouch! And we won’t even mention ¶94 fn. 34, which instructs the “lead opinion” on the need to actually consult a dictionary when tossing around definitions.
If all this indicated was trouble in paradise, then it would be mere distraction. But it must be said that the majority’s spare, elegant analysis strikes just the right tone, making the necessary point efficiently and clearly: although sentencing may be a shared power (that is, shared among governmental branches), a statute simply may not compel a court to decide a case in a particular way; yet, the veto provision does just that, by allowing the prosecution to trench on judicial exercise of discretion. Indeed, the court says that it’s more than separation of powers at stake, it’s “the judiciary’s duty to administer justice impartially,” which would be impaired by unilateral, prosecutorial authority to decide whether a sentence may be adjusted, ¶106. In a sense, this is akin to the circuit court’s reservation of authority to determine dismissal of a pending prosecution at prosecutorial request, e.g.,State v. Kenyon, 85 Wis.2d 36, 45, 270 N.W.2d 160 (1978) (“Prosecutorial discretion to terminate a pending prosecution in Wisconsin is subject to the independent authority of the trial court to grant or refuse a motion to dismiss ‘in the public interest.’”). The prosecution can no more unilaterally determine the outcome of sentence adjustment then it can unilaterally terminate a pending case. Like all bureaucracies, the judiciary jealously guards its powers; and because it derives much of its power from the respect accorded its independence, it is likely to be especially vigilant against such encroachments. At least on this particular occasion it is, by a razor-thin one-vote margin.