State v. Horn
In State v. Horn, 226 Wis. 2d 637, 647, 594 N.W.2d 772 (1999), the court held that DOC's power to initiate probation revocation in an administrative proceeding was not unconstitutional as a violation of the separation of powers, after first concluding that probation and probation revocation are within shared powers and that administrative revocation does not unduly burden or substantially interfere with the judiciary's function to impose a criminal disposition. See Horn, 226 Wis. 2d at 648-50.
While the issue decided in Horn was one of constitutional doctrine and not statutory interpretation, the court's discussion of the roles of the three branches of government with respect to probation has some bearing on this case.
In summarizing the judicial role with respect to probation, the court stated: "In fact, like sentencing, the legislature has specifically granted the judiciary the authority to impose probation as an alternative to sentencing. Without such statutory authority, a court could not place a defendant on probation." Horn, 226 Wis. 2d at 648.
In deciding that probation and probation revocation were within shared powers, the court stated, "like sentencing, the legislature has constitutional authority to offer probation as an alternative to sentencing, the judiciary has authority to impose probation, and the executive branch has the authority to administer probation." Id.
Throughout the decision, the judiciary's function is described as "imposing criminal penalties." See, e.g., Horn, 226 Wis. 2d at 650.