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County of Milwaukee v. Baumgartner5/7/2002
ise of authority. Governmental branches nevertheless may share similar powers without interfering with another branch's exercise of authority.
....
After prosecution is commenced, the trial court under its own power may refuse a prosecutor's motion to dismiss or amend the charge if it determines the motion was not in the public interest. In Wisconsin, it is equally clear that the legislature may, if it desires, spell out the limits of the prosecutor's discretion and can define the limits of that discretion. Thus, a trial court may review the exercise of prosecutorial discretion to terminate or amend pending prosecution pursuant either to its own power or to a legislative standard for limited judicial supervision of prosecutorial motions to dismiss or amend.
... By enacting sec. 967.055(2), the statute in question, the legislature mandated judicial supervision of prosecutorial motions to dismiss or amend OWI charges to ensure the vigorous prosecution of drunk driving offenses. Thus, when the court scrutinizes the district attorney's application to amend or dismiss the charge, it is merely executing both its and the legislature's permitted shared power with the executive branch under the separation-of-powers doctrine. Id. at 320-22 (footnote and citations omitted).
. Thus, according to Dums, a trial court's review and supervision of a prosecutor's discretion to dismiss or amend charges does not violate separation of powers. Dums illustrates that the power to dismiss or amend charges for operating while intoxicated is a shared power - the prosecutor has the power to seek a dismissal or amend the charges and the court has the power to approve or reject said request. However, this court concludes that a trial court's absolute usurpation of the prosecutor's discretion under Wis. Stat. § 967.055(2), as occurred in the instant case, is a violation of separation of powers. The legislature's permitted shared power pursuant to § 967.055(2) does not include the trial court's direct dismissal or amendment because such actions would directly interfere with a prosecutor's exercise of authority.
. Additionally, this court concludes that the trial court may not amend a party's pleading sua sponte under Wis. Stat. § 802.09(1). Section 802.09(1) states, in relevant part:
Amendments. A party may amend the party's pleading once as a matter of course at any time within 6 months after the summons and complaint are filed or within the time set in a scheduling order under s. 802.10. Otherwise a party may amend the pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given at any stage of the action when justice so requires. (Emphasis added.)
Section 802.09(1) only applies to a party's amendment of his or her own pleadings. The trial court's only role in the process pursuant to § 802.09(1) is to either grant or deny the party's motion to amend. Thus, a trial court may not amend pleadings sua sponte under § 802.09(1).
. Finally, while Wis. Stat. § 802.09(2) provides that a trial court may amend pleadings sua sponte to conform to the proof presented at trial, see Peterson, 104 Wis. 2d at 626-27, here, the essential requirement of § 802.09(2) has not been satisfied. Namely, there was no trial. Accordingly, no issues were tried either expressly or implicitly, and the trial court erred in amending the charges.
. Based on the foregoing, the trial court is reversed and the cause remanded with directions to reinstate the original charges against the defendant.
By the Court. -- Orders reversed and cause remanded with directions.
This opinion will not
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