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.