PATIENCE DRAKE ROGGENSACK, J.
¶ 1 This is an appeal of a decision of the Circuit Court for Rock County that the court of appeals has certified to us. The certification asks us to determine whether circuit court commissioners are prohibited from issuing warrants because doing so involves the exercise of judicial power, which Douglas Meier Williams argues is vested solely in courts and elected judges by Article VII, Section 2 of the Wisconsin Constitution. Williams asserts that the search warrant that was issued for his home by a circuit court commissioner was invalid as beyond the lawful authority of court commissioners, and that the evidence obtained upon the execution of the warrant should be suppressed. Williams' argument focuses on the 1977 repeal of Article VII, Section 23, of the Wisconsin Constitution, which specifically referred to the assignment of certain judicial powers to "persons," which he asserts included court commissioners. Williams asserts that by repealing Section 23 and adopting other sweeping changes to the court system in 1977, the voters of Wisconsin chose to vest "the judicial power" solely in elected judges and therefore, any exercise of such power by unelected persons, such as circuit court commissioners, violates the Wisconsin Constitution.
¶ 2 Under Wis. Stat. § 757.69(1)(b) (2007-08),
¶ 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
¶ 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.
¶ 5 This matter began when officers from the Beloit Police Department, the Rock County Sheriff's Department, and the Wisconsin Department of Justice responded to a drug complaint at 2181 Shopiere Road in Beloit. The home was owned and occupied by Williams. Two Beloit police officers, Andrew G. Arnold and Rafael De La Rosa, made contact with Williams at his home, after which Williams granted verbal consent to the officers to view a marijuana growing operation inside the house.
¶ 6 While viewing the interior of the house, the officers observed numerous marijuana plants throughout the living area and the basement. However, when the officers sought written consent to search the premises, Williams refused. Officer Arnold then swore out an affidavit in support of a search warrant for Williams' residence, specifying the particular structures to be searched and the intended objects of the search.
¶ 7 Upon review of Officer Arnold's affidavit, a Rock County Circuit Court Commissioner issued a search warrant for Williams' residence and associated out-buildings and vehicles.
¶ 8 Subsequently, Williams challenged the constitutionality of Wis. Stat. § 757.69(1)(b), which grants circuit court commissioners the power to issue search warrants. He asserted that issuing the search warrant was an invalid exercise of the judicial power under Article VII, Section 2 of the Wisconsin Constitution. Williams also filed a motion to suppress the evidence obtained upon execution of the search warrant. Williams alleged, in support of his earlier motion to suppress, that the issuance of the warrant was unconstitutional and that the evidence was therefore inadmissible. The Rock County Circuit Court heard argument and denied Williams' motions. The court held that the constitutional provisions at issue did not bar court commissioners from issuing search warrants, and that their issuance is a properly delegated ministerial task. The court also concluded that even if constitutional
¶ 9 In accordance with a subsequently negotiated plea agreement, Williams pled no contest to the charge of manufacturing THC; the other two charges were dismissed. The court sentenced Williams to four years probation with six months conditional jail time, as well as forfeitures and costs. The court stayed Williams' incarceration pending appeal. Williams timely appealed. The court of appeals certified the appeal, and we accepted the certification.
¶ 10 We are asked to interpret the meaning of "[t]he judicial power" under Article VII, Section 2 of the Wisconsin Constitution and to decide whether Wis. Stat. § 757.69 delineating court commissioners' powers is an unconstitutional vesting of the judicial power in court commissioners. The interpretation of the Wisconsin Constitution and the determination of the constitutionality of statutes are questions of law that we review independently of the circuit court. Milwaukee Journal Sentinel v. Wis. Dep't of Admin., 2009 WI 79, ¶ 14, 319 Wis.2d 439, 768 N.W.2d 700.
¶ 11 In addition, statutes are presumed to be constitutional. See State v. Cole, 2003 WI 112, ¶ 11, 264 Wis.2d 520, 665 N.W.2d 328. Therefore, when presented with a challenge to a statute's constitutionality, we will indulge every presumption to sustain the law and will resolve any doubt in favor of constitutionality. See Soc'y Ins. v. LIRC, 2010 WI 68, ¶ 27, 326 Wis.2d 444, 786 N.W.2d 385. Accordingly, a party challenging the constitutionality of a statute faces a heavy burden and must show beyond a reasonable doubt that the statute violates the constitution in order to prevail. See id.
¶ 12 When interpreting statutes, we typically begin with the language chosen and "[i]f the meaning of the statute is plain, we ordinarily stop the inquiry." State ex rel. Kalal v. Circuit Court for Dane Cnty., 2004 WI 58, ¶ 45, 271 Wis.2d 633, 681 N.W.2d 110; see Buse v. Smith, 74 Wis.2d 550, 568, 247 N.W.2d 141 (1976). Where statutory language is ambiguous, we may turn to extrinsic sources to aid our interpretation. Kalal, 271 Wis.2d 633, ¶¶ 46-47, 681 N.W.2d 110.
¶ 13 We begin with the statutory provision that sets out the authority of circuit court commissioners, Wis. Stat. § 757.69. The relevant portion of that statute, § 757.69(1)(b), provides in part:
Upon examination of the words of the statute, we conclude that the language used is plain and that the statutory language provides for the issuance of search warrants by circuit court commissioners.
¶ 15 When interpreting constitutional provisions and amendments, we look to intrinsic as well as extrinsic sources. See Buse, 74 Wis.2d at 568, 247 N.W.2d 141. In particular, we will look to the "plain meaning of the words in the context used"; the "historical analysis of the constitutional debates" relative to the constitutional provision under review; the prevailing practices in 1848 when the provision was adopted; and the earliest legislative interpretations of the provision as manifested in the first laws passed that bear on the provision. Id.; see also Cole, 264 Wis.2d 520, ¶ 10, 665 N.W.2d 328. We also seek to ascertain what the people understood the purpose of the amendment to be. See Cole, 264 Wis.2d 520, ¶ 10, 665 N.W.2d 328. In so doing, we give effect to the apparent understanding of the drafters and the people who adopted the constitutional provision under consideration. See id.
¶ 16 Our review of the history underlying search warrants begins with Article I, Section 11 of the Wisconsin Constitution,
¶ 17 We have previously examined the historical underpinnings of the warrant requirement of the Fourth Amendment of the United States Constitution, which demonstrate that the primary evil to which the warrant requirement was addressed was the issuance of general warrants. See Custodian of Records for the Legislative Tech. Servs. Bureau v. State, 2004 WI 65, ¶ 36, 272 Wis.2d 208, 680 N.W.2d 792 (citing Boyd v. United States, 116 U.S. 616, 625, 6 S.Ct. 524, 29 L.Ed. 746 (1886)). General warrants were broad grants of investigative discretion to executive officers, and permitted nearly unrestrained searches of homes and persons, often by overly forceful means. See id. The adoption
¶ 18 As commentators on the Fourth Amendment warrant requirement have noted, 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.
¶ 19 In the early days of statehood, Wisconsin also had magistrates, such as justices of the peace, who were granted statutory authority to issue search warrants. See Edwin E. Bryant, A Treatise on the Civil and Criminal Jurisdiction of Justices of the Peace, and the Powers and Duties of Constables in Executing Process in the State of Wisconsin 939-42 (1884). This practice had prevailed prior to the adoption of the constitution and it continued by statute in post-constitutional enactments. See id. at 2. The primary limitations on these officers were that such officers could not issue warrants if the authority to do so was assigned exclusively to the local municipal courts, and that officers could issue warrants only upon a showing of "reasonable cause." See id. at 940.
¶ 20 Moreover, where the constitution granted these officers authority to exercise "judicial powers," the constitution also required that the legislature define and specify which powers the officers could exercise. See id. at 874-75, 939. Also relevant to the present inquiry, the history of justices of the peace in Wisconsin suggests that, like their historical counterparts, these magistrates were neither required nor expected to possess legal training. See id. at 1-7.
¶ 21 Accordingly, justices of the peace were not understood to exercise the same type of judicial power that judges, who were trained in the law and who sat as courts of record, could exercise. See id. at 28. Therefore, although the original Wisconsin Constitution provided that some judicial power was to be vested in justices of the peace, see Wis. Const. art. VII, § 2 (1848), such power was of a different sort than that vested in the judicial institutions of the state.
¶ 22 The issuance of warrants by non-judges also was addressed by the United States Supreme Court in Shadwick v. City of Tampa, 407 U.S. 345, 92 S.Ct. 2119, 32 L.Ed.2d 783 (1972). In Shadwick, the Court examined a challenge to an arrest warrant issued by a municipal court clerk. The challenger asserted that issuance by someone other than a judge violated the Fourth Amendment's requirement that such warrants be issued by "judicial officers." Id. at 347-48, 92 S.Ct. 2119. The Court concluded that the Fourth Amendment does not require that warrants be issued by a judge, or even someone trained in the law. Id. at 349-50, 92 S.Ct. 2119. In so concluding, the Court examined the historical use of the term "magistrate" in the context of issuing warrants and determined that nothing in the Fourth Amendment or prevailing practice dictated that warrant-issuing officials be judges or even judicial officers. See id.
¶ 23 Instead, the Court held that the warrant requirement was intended to provide "an independent assurance that a search and arrest will not proceed without probable cause to believe that a crime has been committed and that the person or place named in the warrant is involved in the crime." Id. at 350, 92 S.Ct. 2119. The requirement is not focused as much on whether the warrant is issued by a judge as it is on whether the issuer is "neutral and detached . . . and . . . capable of determining whether probable cause exists for the requested arrest or search." Id.
¶ 24 The Court emphasized that the purpose of warrants typically has not been to invoke the authority of the judicial branch so much as it has been to serve as a restraint on the executive power. See id. at 350-51, 92 S.Ct. 2119. Accordingly, the neutral and detached determination of probable cause was a means of preventing unreasonable searches or seizures, rather than an end in and of itself. See id. Whether the officer issuing the warrant is denominated a "judicial officer," therefore, was not dispositive of his or her ability to issue a search warrant, which required only that the issuer be able to provide a neutral and detached determination that probable cause exists for the search at issue. See id. at 351, 92 S.Ct. 2119; see also 2 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 4.2(c), at 493 (4th ed.2004) (quoting Illinois v. Gates, 462 U.S. 213, 235-36, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) ("[M]any warrants are—quite properly—issued on the basis of nontechnical, common-sense judgments of laymen.") (internal quotation marks omitted)).
¶ 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
¶ 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.
¶ 27 Having determined that the issuance of search warrants historically did not require the actions of a judge, we turn to an examination of the vesting of the judicial power in courts, and whether such vesting precludes the exercise of quasi-judicial functions by unelected officials, such as circuit court commissioners. As with our other inquiries here, our examination begins with the relevant text, Article VII, Sections 2 and 23 of the Wisconsin Constitution. Article VII, Section 2 provides:
The provision in the Wisconsin Constitution pertaining to court commissioners' powers, Article VII, Section 23, was repealed in 1977. Prior to its repeal, Section 23 provided:
Wis. Const. art. VII, § 23 (repealed, 1977).
¶ 28 Williams points to the previous existence of Section 23 as proof that, subsequent to that section's repeal, court commissioners lack "such judicial powers" that Section 23 previously granted. He argues that circuit court commissioners who now issue search warrants impermissibly exercise "[t]he judicial power," which Article VII, Section 2 vests exclusively in courts and elected judges. See Wis. Const. art. VII, §§ 4(1), 5(2), 7. Therefore, Williams maintains, the search warrant issued for
¶ 29 Beginning with the plain language of the relevant constitutional provisions, we note the different phrasings of the term "judicial power" in Article VII, Sections 2 and 23. Section 2 refers to "The judicial power," which is vested in courts, whereas repealed Section 23 referred to "such judicial powers" that could be exercised by individuals other than courts. Therefore, on the face of the two provisions, there is a difference in the language used. We will construe the provisions so as to give reasonable meaning to those distinctions.
¶ 30 Next, we note that former Section 23's grant of authority was no greater than "such judicial powers" as could be exercised by a "judge of a circuit court at chambers." This provision is relevant to our present inquiry because the power of a judge at chambers was a limited power. As demonstrated by our early cases, discussed below, judges at chambers were not authorized to exercise the full extent of "[t]he judicial power" under Section 2.
¶ 31 The power of circuit court judges at chambers (and by implication, commissioners) was subject to legislative prescription. Accordingly, Section 23's judicial power could not have been equivalent to "[t]he judicial power" of Section 2 because equating the two would place the courts, and the people's access to the adjudication of disputes, at the discretion of the legislature. This result is not supported by the language or subsequent history of the relevant constitutional provisions, and must be rejected as anathema to the separation of powers implicit in our constitutional structure. See State v. Washington, 83 Wis.2d 808, 825-26, 266 N.W.2d 597 (1978). Our interpretation is supported by records of the constitutional convention, contemporaneous understandings of the judicial power, legislative enactments immediately following the adoption of the constitution, and our early cases interpreting the relevant constitutional and statutory provisions.
¶ 32 Persons other than judges have been authorized to perform quasi-judicial functions since before the enactment of the Wisconsin Constitution. See Bryant, supra, at 1; see also Faust v. State, 45 Wis. 273, 276 (1878). During the convention of 1846, where delegates began the process of drafting the State's constitution, a provision similar to what would become Article VII, Section 23 was considered for inclusion. That provision read:
Milo M. Quaife, The Convention of 1846 295 (1919). Although this provision was altered before its inclusion in the final draft of the constitution, its presence in the draft demonstrates that the delegates were cognizant of the need for persons other than judges who could exercise certain powers of the judicial branch. Additionally, the discussions at the early convention illustrate that there existed a need for non-judge officers to expedite the business of the courts. For example, the initial draft of the constitution would have provided merely five circuit court judges, see id. at 502, so the clerks contemplated by the provision above could have performed quasi-judicial functions in the absence of a judge of a court of record.
¶ 33 In 1848, the constitutional convention at Madison adopted the first constitution of the State of Wisconsin. It appears from the limited records of the convention
¶ 34 Although the records of the debates of the convention are limited, it is evident from those records that the delegates to the convention and the respective committees were well-versed in the prevailing norms and the relevant terms of art at the time. See generally Journal of the Convention. Accordingly, in interpreting the use of the term "[t]he judicial power" in Article VII, Section 2, we look to common understandings of the term at the time of the adoption of the Wisconsin Constitution.
¶ 35 An obvious source to examine is the United States Constitution, which also explicitly vests "[t]he judicial power" in the Supreme Court, as well as in other inferior courts that Congress may establish. U.S. Const. Art. III, § 1; see State v. Beno, 116 Wis.2d 122, 135-37, 341 N.W.2d 668 (1984) (acknowledging that the framers of the Wisconsin Constitution sought guidance from the federal Constitution).
¶ 36 If we apply this concept to the Wisconsin Constitution, we see that Article VII, Section 2 vests "jurisdiction" in a unified court system. Jurisdiction has been interpreted to mean "the power to hear and determine the subject-matter in controversy in [a] suit before [a] court." Riggs v. Johnson Cnty., 73 U.S. 166, 187, 6 Wall. 166, 18 L.Ed. 768 (1867). In this sense, analogy to the federal Constitution suggests that the judicial power is the power to hear and determine controversies between parties before courts.
¶ 38 Our cases construing judicial powers and their exercise by persons other than judges demonstrate that just ten years after the adoption of Article VII, Section 23, it was established law that commissioners' powers were subject to modification by the legislature, In re Kindling, 39 Wis. 35, 49-51 (1875), and that powers not specifically granted would not be imputed to commissioners, Perry, 71 Wis.2d at 106, 237 N.W.2d 678. Therefore, the authorization for "persons," here, court commissioners, to exercise "such judicial powers" under Article VII, Section 23 was not intended to invest in commissioners the same type of authority as "[t]he judicial power" set out in Article VII, Section 2, which is not subject to legislative prescription.
¶ 39 Later, in Faust, we again reaffirmed the statutory foundation required for commissioners' authority.
¶ 40 We also emphasized that before the adoption of our state constitution, the 1839 statutes "conferred this power [to issue a warrant] upon the judges of the courts of record in the territory, to be exercised both in term time and in vacation. This power of arrest and examination of offenders by process issued by the judges of the courts of record in vacation, was a known power. . . ." Id. at 276. Recognizing that the constitution had not withdrawn this authority, we held that the provision of those powers of judges at chambers to court commissioners was valid, as was the commissioner's exercise of the assigned powers. Id.
¶ 41 Two subsequent cases provide substantial guidance in our understanding of the nature of judicial power and the exercise of such powers by persons other than judges. First, in State v. Kriegbaum, 194 Wis. 229, 215 N.W. 896 (1927), we were called upon to examine the validity of a search warrant issued by a justice of the peace and executed upon the person of the defendant. Id. at 231, 215 N.W. 896. As with court commissioners, the authority of justices of the peace was grounded in statute and, therefore, they did not possess any powers not expressly granted by statute. Id. at 231-32, 215 N.W. 896. The statutes at that time authorized justices of the peace to issue warrants for searches of houses or other places, but not for searches of persons. Id. at 232, 215 N.W. 896. From that exclusive statutory enumeration, we concluded that the statutory authority of justices of the peace did not extend to issuing warrants for the search of persons. See id.
¶ 42 The same year we decided Kriegbaum, we also decided Van Brocklin, which involved a challenge to the authority of a clerk of court to issue a search warrant. In holding that clerks were authorized to issue search warrants, we relied on the statutory grant of power, as well as the distinction between different uses of the phrase "judicial power" in the constitution and statutes. See Van Brocklin, 194 Wis. at 443-47, 217 N.W. 277. We related a definition of the judicial power that is vested exclusively in courts as "the power of a court to decide and pronounce a judgment and carry it into effect between persons and parties who bring a case before it for decision." Id. at 443, 217 N.W. 277 (internal quotation and citation omitted). This power was distinguished from quasi-judicial power that was not vested solely in courts and could be exercised by individual judges and other officials when a statute permitted it. Id. at 444, 217 N.W. 277. The power to issue search warrants, which the clerk of court was permitted to employ due to legislative enactment, fell within the class of quasi-judicial functions that could be exercised by individuals, including non-judges. Id. at 447, 217 N.W. 277. Accordingly, we held that the search warrant was valid. Id. at 448, 217 N.W. 277.
¶ 44 The constitutional vesting of the judicial power in the courts of the State does not exhaust all powers that may appear judicial, nor require that they be exercised by an elected official. For example, while the constitution vests the judicial power in specified courts, the constitution also contemplates unelected officers exercising a type of judicial power. Specifically, Article VII, Section 2 provides that the judicial power shall be vested in municipal courts "if authorized by the legislature."
¶ 45 Chapter 755 of the statutes authorizes the creation of municipal courts. Wisconsin Stat. § 755.02 requires that municipal judges be elected. However, no constitutional provision requires the election of municipal judges. See Wis. Const. art. VII, §§ 2, 14. Therefore, were it not for § 755.02, municipal judges could exercise "[t]he judicial power" granted under Article VII, Section 2 without being elected. Stated otherwise, the constitutional authority to exercise the judicial power in a municipal court is not dependent upon being an elected judge. Accordingly, the nonelected status of circuit court commissioners does not create a constitutional impediment to their statutory authority to issue warrants.
¶ 46 Prior to the adoption of the 1977 constitutional amendments, Article VII, Section 23 circumscribed the authority of the legislature, so that the legislature could not assign to court commissioners more power than was allowed to a circuit court judge at chambers under the common law at the time of the constitution's ratification. In the absence of such prescriptions, however, it could be argued that the legislative power is more broad; indeed, "the power of the state legislature, unlike that of the federal congress, is plenary in nature." State ex rel. McCormack v. Foley, 18 Wis.2d 274, 277, 118 N.W.2d 211 (1962). Therefore, provisions in the Wisconsin Constitution serve mainly as brakes on the power of the legislature, which may otherwise "exercise all legislative power not forbidden by the constitution or delegated to the general government, or prohibited by the constitution of the United States." Id. (quoting Bushnell v. Beloit, 10 Wis. 155 (*195), 168-69 (*225) (1860)). Further restriction on the legislature's authority to act may be implied from the separation of powers between the branches of government. See Washington, 83 Wis.2d at 826 n. 13, 266 N.W.2d 597. With these principles in mind, we turn to the constitutional amendments of 1977 and, in particular, the repeal of Article VII, Section 23.
¶ 47 In 1977, after many years
¶ 48 In the early 1970s, when the legislature seriously began to consider amending the constitutional provisions relating to the courts, the primary concerns had been the efficiency of the State's courts and the promotion of uniformity within the court system. See Robert J. Martineau, "Judicial Reform in Wisconsin: Some More Lessons for Reformers," in Court Reform in Seven States 87, 88 (Lee Powell ed.1980). In 1971, in response to urgings by Chief Justice Hallows, Governor Lucey created the Citizens Study Committee on Judicial Organization, to study the court system's most pressing needs. Id. at 88-89. After nearly two years of meetings, hearings, and research, the Committee submitted a final report to the governor. See id. at 89. That report made numerous recommendations regarding court structure, administration, and efficiency. See id.
¶ 49 Relevant to our present inquiry, the Citizens Study Committee recommended that the use of personnel other than judges be expanded in any judicial structure that would be developed. See Citizens Study Committee on Judicial Organization, Report to Governor Patrick J. Lucey 216-21 (1973). The report focused on the wide array of tasks performed by judges on a daily basis that "do not require performance by an individual with full judicial training." Id. at 217. Noting the prevalence of "lay judges" throughout the development of the common law, the report discussed the roles of these nonlawyer officials who had long been vested with authority to issue search and arrest warrants, set bail, and conduct preliminary hearings, among other duties. Id.
¶ 50 The Citizens Study Committee report concluded that court commissioners, who, in Wisconsin, are required to be licensed attorneys, were not being utilized to their full potential. For certain duties, the committee envisioned court commissioners as off-hours judicial substitutes, especially in the context of pre-trial criminal procedure. See id. at 220. As a means of expanding the use of court commissioners, the report recommended that commissioners be placed under the authority of the State (rather than counties) and that their duties be expanded beyond what was then authorized, to the greatest extent allowed by the supreme court, which would oversee court commissioners. See id. at 219.
¶ 51 The Report of the Citizens Study Committee became the blueprint for the legislative plans for court reorganization. See Martineau, supra at 89. In the early stages of proposed court reorganization, the committee's recommendations regarding court commissioners did not suggest repeal of the constitutional provision relating to court commissioners' powers. For example, an initial 1975 version of the proposed amendments did not contemplate any change to Article VII, Section 23. See Drafting File for 1975 A.J.R. 11, Analysis by the Legislative Reference Bureau, Legislative Reference Bureau, Madison, Wis.
¶ 52 Soon after the initial drafts, however, Article VII, Section 23 was slated for repeal in every subsequent draft of the resolution that would become the basis for the 1977 judicial reorganization amendments. In each draft, the drafter's note accompanying Section 23 remained the same, providing that "[t]he section authorizes the legislature to create an appointive office of county court commissioner. The constitutional authorization is repealed; the office continues under statute law (e.g.
¶ 53 Although the questions presented to voters focused on the broader issues of court unification and reform without asking specifically about the repeal of Article VII, Section 23, relating to court commissioners' powers, contemporaneous legislative and media reports provide insight into the concerns and considerations facing voters. These sources support the conclusion that the amendments were intended to maintain the validity of court commissioners' exercise of their statutory powers. For example, many newspaper reports during the amendment process focused on the congestion of the courts and the need for measures to improve administrative efficiency, with some reports noting the beneficial effect that expanded use of court commissioners could have. See, e.g., Anita Clark, County Courts Bogged Down, Wis. State J., April 17, 1977, at 8.
¶ 54 Similarly, informational memoranda relating to the proposed amendments and published by the Wisconsin Legislative Council recommended that commissioners' powers should continue undiminished, or even be expanded, after repeal of Article VII, Section 23. One memorandum notes that the repeal of certain obsolete provisions, including Section 23, would have the effect of "allowing the Legislature and Supreme Court greater flexibility to deal with the issues of court finance, calendaring of actions and parajudicial personnel in the future." Wisconsin Legislative Council, Summary and Analysis of 1975 Enrolled Joint Resolution 13 Relating to the State Court System 6 (1976). Another later memorandum reaffirmed the broad powers that court commissioners held, even in light of the people's repeal of the constitutional provision relating to commissioners' exercise of "such judicial powers." See Wisconsin Legislative Council, Information Memorandum 78-8, Powers and Duties of Family Court Commissioners 2 (April 13, 1978).
¶ 55 Although these reports provide a glimpse into the legislative and public conceptions of the effect of the 1977 amendments, an even clearer picture of how those amendments were understood can be found in the legislative enactments immediately following adoption of the amendments. 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, 247 N.W.2d 141. 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
¶ 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.
¶ 58 From the forgoing, we conclude that the search warrant issued for Williams' home was valid. Williams has not asserted that the search warrant was deficient in any aspect, except that it was issued by a court commissioner. Because we conclude that commissioners have been validly authorized to issue such warrants under Wis. Stat. § 757.69(1)(b), we find no reason to overturn the warrant. As we have noted, Williams faced a substantial burden in asserting that § 757.69(1)(b) is an unconstitutional exercise of legislative authority, and he has failed to meet that burden.
¶ 59 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 in 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.
¶ 60 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 judgment and order of the circuit court is affirmed.
¶ 61 ANN WALSH BRADLEY, J., and DAVID T. PROSSER, J., did not participate.
¶ 62 SHIRLEY S. ABRAHAMSON, C.J. (concurring).
The instant case requires the court to determine whether one aspect of Wis. Stat. § 757.69(1)(b), namely the language that grants court commissioners authority to issue search warrants, is an unconstitutional delegation of judicial power violating
¶ 63 The question before the court is whether a court commissioner's issuance of a search warrant is the exercise of judicial power in violation of the Wisconsin Constitution.
¶ 64 Article VII, Section 2 vests judicial power in specified courts, not in court commissioners. To determine the constitutionality of the legislature's authorizing court commissioners to issue search warrants under Wis. Stat. § 757.69(1)(b), we must interpret the meaning of the phrase "judicial power" used in Article VII, Section 2 of the Wisconsin Constitution.
¶ 65 In interpreting a constitutional provision, the court ordinarily turns to three sources: the words in the constitutional provision in the context used; the constitutional debates and practices in existence at the time of the adoption of the constitutional provision; and the earliest interpretation of the constitutional provision by the legislature as manifested in the first law passed following adoption.
¶ 66 To answer the question presented I look to the three sources and turn first to the text of the Wisconsin Constitution. Article VII, Section 2, as revised in 1978, provides:
¶ 67 A court commissioner is not one of the entities in which the judicial power of this state vests under Article VII, Section 2. Court commissioners do, however, appear in legislation as early as 1849. Wis. Stat. ch. 10, § 75 (1849). "Judicial power" is not defined in the constitution.
¶ 68 Prior iterations of Article VII, Section 2 similarly did not define "judicial power" or vest it in court commissioners. From 1848 until 1966, Article VII, Section 2 provided in relevant part as follows:
¶ 69 In 1966, Article VII, Section 2 was amended to delete justices of the peace
¶ 70 "Judicial power," as used in any version of the Wisconsin Constitution, has not been clearly defined. Nothing in any of the versions of the Wisconsin Constitution or in the drafting history of the 1848, 1966, or 1978 iterations of Article VII, Section 2 sheds light on the meaning of "judicial power" or on whether the meaning of "judicial power" has changed with the amendments to Article VII, Section 2.
¶ 71 While the text and history of Article VII, Section 2 provide little insight into whether issuing a search warrant is part of the constitutional concept of "judicial power," other constitutional provisions are more availing. It is difficult to define "judicial power," but determining, on the basis of other constitutional provisions and historically accepted practices, that certain acts are not part of the constitutional concept of "judicial power" may be a more manageable task.
¶ 72 I agree with the majority that the history of the warrant requirement found in Article I, Section 11 and the closely analogous Fourth Amendment of the federal constitution is relevant to deciding the present case. Nothing on the face of Article I, Section 11 or the Fourth Amendment or the history of these provisions requires a search warrant to be issued by a decision maker vested with "judicial power" as that phrase is used in Article VII, Section 2.
¶ 73 The Wisconsin Supreme Court and the United States Supreme Court have both concluded that an arrest warrant may be issued by a non-judge, provided the issuer is neutral and detached and capable of determining the existence of probable cause.
¶ 74 With regard to search warrants, Wisconsin statutes provided that magistrates may issue search warrants, without defining the word "magistrate."
¶ 75 Prior to the 1978 constitutional amendments, Article VII, Section 23 authorized the legislature to vest persons in each county with such judicial powers as do not exceed that of a judge of a circuit court at chambers. Article VII, Section 23 provided as follows:
¶ 76 This constitutional provision does not explicitly mention court commissioners. The original version of Section 23 did not contain the caption "Court Commissioners." This caption was later added by the Reviser of Statutes. See 1889 Statutes Annotated.
¶ 77 Regardless of whether Section 23 is directed to court commissioners, it is not clear what are (or were) the powers of "a judge of a circuit court at chambers," as that phrase is used in Section 23.
¶ 78 In other words, according to the State, a judge of a circuit court at chambers exercised some but not all constitutional "judicial power." Thus, the text of Article VII, Section 23 might lead one to conclude that the legislature was authorized to vest some judicial powers in one or more persons who were not judges, and accordingly vested certain powers in court commissioners. The statutes empowering court commissioners do not refer to the Wisconsin Constitution. I therefore do not know whether the legislature considered these statutes as governed by Article VII, Section 23 of the Wisconsin Constitution.
¶ 79 I get some guidance from State v. Van Brocklin, 194 Wis. 441, 447, 217 N.W. 277 (1927), in which the court determined that "the authorities . . . indicate that it is not generally considered that the issuance of a criminal warrant involves the exercise of that judicial power which the Constitution commits to the exclusive jurisdiction of courts. . . ." Although the Van Brocklin court ultimately rested its decision to uphold the issuance of the search warrant by the clerk of a municipal court on Article VII, Section 23, the court's reasoning suggests that even in the absence of Article VII, Section 23, the court might have upheld the power of a municipal court clerk to issue a search warrant.
¶ 80 In 1978, Article VII, Section 23 was repealed. No full, ready explanation for the repeal of Article VII, Section 23 can be found in the history of the 1978 amendment
¶ 81 I therefore turn to a third source for interpreting the constitution, namely, the earliest interpretation of the constitutional provision by the legislature as manifested in the first law enacted following adoption of the 1978 constitutional amendments. The legislative enactments at the time of the adoption of the 1978 constitutional amendment of Article VII included Wis. Stat. § 757.69(1)(b). Rather than reduce the power of court commissioners in light of the repeal of Article VII, Section 23, the legislature expanded the powers of court commissioners and explicitly included the power to issue search warrants.
¶ 82 While not determinative of the interpretation of the constitution or the constitutionality of a statute, the legislative interpretation of an amended constitutional provision through a contemporaneous statutory enactment is instructive. In the present case, the combination of the historically accepted practice of non-judges issuing search warrants and the contemporaneous legislative enactment Wis. Stat. § 757.69(1)(b) following the repeal of Article VII, Section 23, persuades me that the majority reaches the correct result.
¶ 83 Relying too heavily on contemporaneous legislative action would be ill-advised in all instances because this court, not the legislature, is the final arbiter of the meaning of the Wisconsin Constitution. Nevertheless, in the present case dealing specifically with the power of court commissioners to issue search warrants under Wis. Stat. § 757.69(1)(b), there is more to support the court's conclusion about this power of court commissioners than just a contemporaneous legislative enactment.
¶ 84 After examining the history of the texts of Article VII, Sections 2 and 23; Article I, Section 11; the numerous cases in which non-judges issued warrants;
¶ 85 I appreciate the majority's attempt to research constitutional history to answer the question presented. History is relevant in constitutional interpretation. However, its use poses challenges. We have relatively little historical study of state constitutional provisions and state courts generally or of Wisconsin constitutional provisions.
¶ 86 While I concur in the result reached by the majority, I do not join the majority opinion because I have reservations about its analysis of Wisconsin constitutional history.
¶ 87 For example, the majority opinion relies heavily on the historical role of justices of the peace for its conclusion that certain actors may exercise some judicial power without exercising the constitutional concept of "judicial power." The majority opinion reads the pre-1966 constitution as providing that only "some judicial power" and judicial power "of a different sort" were vested in justices of the peace. Majority op., ¶ 21. Yet the pre-1966 constitution, quoted above, vested judicial power in justices of the peace in the same sentence as it vested judicial power in named courts.
¶ 88 The majority opinion seems to rely on the fact that the legislature determined the jurisdiction of justices of the peace to distinguish "judicial power" vested in justices of the peace from judicial power vested in courts. But the legislature determined the jurisdiction of courts, as well.
¶ 89 The majority opinion also looks to the historical powers of justices of the peace in other jurisdictions. Majority op., ¶ 18. The majority opinion describes the justice of the peace as being "responsible for a variety of executive and quasi-judicial functions."
¶ 90 Additionally, the majority's emphasis on the legal training of judges and justices of the peace in the 19th century and the method of selection also seems to be selective about what we know. Majority op., ¶ 20. Few lawyers went to law school in the 19th century. Legal training took place predominantly in law offices and therefore would be highly varied. That some persons had legal training or were elected does not, in my opinion, answer the question of the authority of court commissioners to issue search warrants.
¶ 91 For these reasons, I am not persuaded that the history of the powers of justices of the peace in Wisconsin or elsewhere as set forth in the majority opinion assists us in determining whether court commissioners may issue search warrants.
¶ 92 I am also concerned by the majority's analogy to the United States Constitution to bolster its conclusion that court commissioners may issue search warrants. See majority op., ¶¶ 34-36. The United States and Wisconsin constitutions are different with regard to the power of the courts. There is a significant body of law interpreting the phrase "judicial power" in the federal Constitution, and interpretation is continuing.
¶ 93 For the reasons set forth, I write separately.
Another early Wisconsin case, In re Kindling, 39 Wis. 35, 46-50 (1875), provides substantial support for an understanding of judicial power as having different meanings under different circumstances. The court distinguished between the judicial power, which is vested solely in constitutionally established courts, and those judicial powers that could be legislatively conferred on other officers or on judges when they were not acting as a court. See id. at 58-59.
Also, in Kindling, counsel for the petitioner stated that the power of a judge at chambers was understood at common law to extend to "the making of such rules or orders as are necessary to speed the causes pending in court, clear away the technical obstacles, and thus enable the court to come more speedily to a hearing of the merits of the causes." Id. at 47-48. Specifically, counsel noted that, at common law, the power of a judge at chambers was "preparatory to an exercise of judicial power, that is, the determination of the rights of the parties on the merits of the case." Id. at 48. This understanding seemed to be confirmed by the court. Id. at 60-61.
The amicus curiae brief of the Wisconsin Association of Judicial Court Commissioners and the Wisconsin Family Court Commissioners' Association, Inc., asserts that court commissioners do not perform "core judicial functions because their acts are subject to de novo review by circuit court judges." The defendant counters, saying that the very nature of a search warrant precludes pre-deprivation review.
In a relatively recent case, the Supreme Court of Utah agreed with the dissent in Van Brocklin rather than with the majority. See State v. Thomas, 961 P.2d 299, 303 (Utah 1998) ("[B]ecause a search warrant is an order and the issuer possesses the authority to enforce the order, the issuance of a search warrant is a core judicial function, which commissioners lack the authority to perform.").
Prior to 1978, Article VII, Section 8 of the Wisconsin Constitution provided as follows:
Article VII, Section 8 of the present constitution provides:
Another article cited by the majority claims it is "likely that . . . non-elite judges, like justices of the peace" issued search warrants. See Fabio Arcila, Jr., In the Trenches: Searches and the Misunderstood Common-Law History of Suspicion and Probable Cause, 10 U. Pa. J. Const. L. 1, 6 (2007).
