Wis. Stat. § 757.69(1)(b), giving circuit court commissioners authority to issue search warrants, is constitutional.
¶3 Throughout Wisconsin’s history, including before the ratification of the Wisconsin Constitution, non-judges have been authorized by statute to issue search warrants. Therefore, we conclude that the issuance of a search warrant is not an exercise of “[t]he judicial power,” as that phrase is employed in Article VII, Section 2 of the Wisconsin Constitution. Instead, issuance of a valid search warrant requires that the individual be authorized by law to issue the warrant, that he or she be neutral and detached, and that the warrant be issued only upon a showing of probable cause.
¶4 Because we also conclude that Wis. Stat. § 757.69(1)(b), which allocates the power to issue search warrants to circuit court commissioners, does not impermissibly intrude upon “[t]he judicial power” granted to the courts by Article VII, Section 2 of the Wisconsin Constitution, we hold that § 757.69(1)(b) is constitutional. Therefore, the circuit court commissioner’s search warrant was validly issued. Accordingly, we affirm the circuit court’s denial of Williams’ motion to suppress.
The immediate question is whether issuing a search warrant involves the exercise of “judicial power” under Wis. Const. art. VII, § 2, which power is assigned to judges serving as “courts,” and therefore not to commissioners. If so, the statute would be unconstitutional; but, as just seen, it is not. The court undertakes a “review of the history underlying search warrants,” pausing to remark that “early warrants often were issued by magistrates, such as justices of the peace, who were responsible for a variety of executive and quasi-judicial functions. … These magistrates were distinct from judges of courts of record in that magistrates generally did not possess formal legal training.” In other words, such “powers did not historically require the exercise of ‘[t]he judicial power’ conferred on courts by Article VII, Section 2.” The important characteristic is that the magistrate be “neutral and detached,” not that he or she be a “judicial officer.”
¶25 Although Shadwick dealt specifically with an arrest warrant and the Fourth Amendment, rather than a search warrant and an alleged unconstitutional exercise of the judicial power, the Court’s reasoning is equally applicable in the context of Article I, Section 11 of the Wisconsin Constitution. At the time of the adoption of the Wisconsin Constitution, the legal norms prevailing across the nation were well-known to the delegates to the convention. See generally Journal of the Convention to Form a Constitution for the State of Wisconsin (1848) [hereinafter Journal of the Convention]. It is evident from the debates that the adoption of Article I, Section 11 was relatively uncontroversial, and its parallel with the Fourth Amendment has been affirmed by this court numerous times. See, e.g., State v. Arias, 2008 WI 84, ¶20, 311 Wis. 2d 358, 752 N.W.2d 748. By construing Article I, Section 11 as imposing requirements parallel to the protections afforded by the Fourth Amendment, we promote clarity in the law of search and seizure and provide straightforward guidelines to governmental officers who must apply our holdings. See id., ¶¶20-21.
¶26 Therefore, we recognize that Article I, Section 11’s warrant requirement has not mandated a determination of probable cause by a judge or a court of record. Non-judges who are “neutral and detached” and are able to ascertain whether probable cause exists have been expected to issue search warrants in the past, provided that they are authorized by statute to do so. Accordingly, issuance of a search warrant does not require an exercise of the judicial power that is vested exclusively in courts under Article VII, Section 2. Although issuing a search warrant may require some exercise of quasi-judicial power, it is something less than and distinguishable from the power vested in courts and elected judges.
Detailed discussion of the history and meaning of “the judicial power” follows, leading the court to conclude:
¶55 … Provisions enacted by the 1977–78 legislature expanded the powers of court commissioners to include duties not previously described. For example, chapter 323, section 13, Laws of 1977, created Wis. Stat. § 757.69, which included authorization for commissioners to preside at initial appearances, hear petitions for mental health commitments, and conduct uncontested probate proceedings, in addition to many other duties. We have recognized that early legislative enactments following the passage of a constitutional provision provide guidance in interpreting the meaning of that provision. See Buse, 74 Wis. 2d at 568. Therefore, this near-simultaneous expansion of court commissioner powers lends support to the validity of the continuing exercise of those powers.
¶56 Accordingly, in light of the widely recognized need for court reform leading up to the 1977 amendments, the people’s adoption thereof, and the legislature’s near-immediate vesting of broad efficiency-promoting duties in court commissioners, we conclude that the repeal of Article VII, Section 23 did not diminish the role or authority of court commissioners. Therefore, we construe the 1977 amendments and the subsequent legislative enactments to give effect to the expressed will of the people in repealing Section 23. See Cole, 264 Wis. 2d 520, ¶10. To that end, we conclude that Wis. Stat. § 757.69(1)(b)’s vesting in court commissioners of the authority to issue search warrants did not contravene provisions of the Wisconsin Constitution at the time of the 1977 amendments, and it does not do so today.
¶57 Stated otherwise, the legislative empowerment of court commissioners pursuant to Wis. Stat. § 757.69(1)(b) does not constitute an unconstitutional delegation of “[t]he judicial power” of the courts. As discussed previously, there are many quasi-judicial functions that bear on the efficient administration of justice, and those duties may by legislative assignment be undertaken by court commissioners.
The Certification asserted potentially large implications to the outcome: “Although this case involves the specific power to issue search warrants, it is apparent that Williams’ argument calls into question several other powers authorized by Wis. Stat. § 757.69(1). In the criminal arena alone, this includes conducting initial appearances and preliminary hearings. While the parties do not address whether Williams’ arguments implicate the duties of court commissioners in other areas, such as family law, it appears to us that, under Williams’ view of judicial power, many court commissioner activities are implicated.” But the Chief Justice’s concurrence points out, without contradiction by the majority, “The court is not asked to decide, and does not decide, whether all the powers of court commissioners set forth in Wis. Stat. § 757.69(1)(b) or in § 757.69 are constitutional,” ¶62.