Chapter 978

CHAPTER 978

DISTRICT ATTORNEYS

978.001   Definitions.

978.01   Number of district attorneys; election; term.

978.02   Eligibility for office.

978.03   Deputies and assistants in certain prosecutorial units.

978.04   Assistants in certain prosecutorial units.

978.041   Population estimates of prosecutorial units.

978.043   Assistants for prosecution of sexually violent person commitment cases.

978.045   Special prosecutors.

978.047   Investigators; police powers.

978.05   Duties of the district attorney.

978.06   Restriction on district attorney.

978.07   Obsolete district attorney records.

978.08   Preservation of certain evidence.

978.11   Budget.

978.12   Salaries and benefits of district attorney and state employees in office of district attorney.

978.13   Operational expenses of district attorney offices.

Ch. 978 Cross-reference Cross-reference: See definitions in s. 967.02.

978.001 978.001 Definitions. In this chapter:

978.001(1g) (1g) “Law firm” means a private firm of attorneys, the legal department of a governmental unit or agency, a corporation or another organization or a legal services organization.

978.001(1p) (1p) “Prosecution system” means all of the prosecutorial units.

978.001(2) (2) “Prosecutorial unit” means a prosecutorial unit described in s. 978.01 (1).

978.001 History History: 1989 a. 31; 1991 a. 188.

978.01 978.01 Number of district attorneys; election; term.

978.01(1) (1) There shall be 71 district attorneys elected for full terms at the general election held in 2008 and quadrennially thereafter. The regular term of office for each district attorney is 4 years, commencing on the first Monday of January next succeeding his or her election. Each county is a prosecutorial unit and shall elect a district attorney, except that Shawano and Menominee counties form one 2-county prosecutorial unit and shall elect a single district attorney by the combined electorate of the 2 counties.

978.01(2) (2) 

978.01(2)(a) (a) Except as provided in par. (b), each district attorney serves on a full-time basis.

978.01(2)(b) (b) A district attorney serves on a part-time basis if his or her prosecutorial unit consists of Buffalo, Florence, or Pepin county.

978.01 History History: 1989 a. 31 ss. 2900, 2900c; 1991 a. 39; 1999 a. 9; 2007 a. 20, 158.

978.02 978.02 Eligibility for office. No person is eligible to hold the office of district attorney unless he or she is licensed to practice law in this state and resides in the prosecutorial unit from which he or she was elected.

978.02 History History: 1989 a. 31.

978.02 Annotation An entity characterized as the “office of the district attorney” or “district attorney,” separate from the elected official, does not have authority to sue or be sued. Buchanan v. City of Kenosha, 57 F. Supp. 2d 675 (1999).

978.03 978.03 Deputies and assistants in certain prosecutorial units.

978.03(1) (1) The district attorney of any prosecutorial unit having a population of 750,000 or more may appoint 7 deputy district attorneys and such assistant district attorneys as may be requested by the department of administration and authorized in accordance with s. 16.505. The district attorney shall rank the deputy district attorneys for purposes of carrying out duties under this section. The deputies, according to rank, may perform any duty of the district attorney, under the district attorney’s direction. In the absence or disability of the district attorney, the deputies, according to rank, may perform any act required by law to be performed by the district attorney. Any such deputy must have practiced law in this state for at least 2 years prior to appointment under this section.

978.03(1m) (1m) The district attorney of any prosecutorial unit having a population of 200,000 or more but less than 750,000 may appoint 3 deputy district attorneys and such assistant district attorneys as may be requested by the department of administration and authorized in accordance with s. 16.505. The district attorney shall rank the deputy district attorneys for purposes of carrying out duties under this section. The deputies, according to rank, may perform any duty of the district attorney, under the district attorney’s direction. In the absence or disability of the district attorney, the deputies, according to rank, may perform any act required by law to be performed by the district attorney. Any such deputy must have practiced law in this state for at least 2 years prior to appointment under this section.

978.03(2) (2) The district attorney of any prosecutorial unit having a population of 100,000 or more but not more than 199,999 may appoint one deputy district attorney and such assistant district attorneys as may be requested by the department of administration and authorized in accordance with s. 16.505. The deputy may perform any duty of the district attorney, under the district attorney’s direction. In the absence or disability of the district attorney, the deputy may perform any act required by law to be performed by the district attorney. The deputy must have practiced law in this state for at least 2 years prior to appointment under this section.

978.03(3) (3) Any assistant district attorney under sub. (1), (1m), or (2) must be an attorney admitted to practice law in this state and, except as provided in s. 978.043 (1), may perform any duty required by law to be performed by the district attorney. The district attorney of the prosecutorial unit under sub. (1), (1m), or (2) may appoint such temporary counsel as may be authorized by the department of administration.

978.03 History History: 1989 a. 31; 1991 a. 39; 1999 a. 9; 2001 a. 16; 2005 a. 25, 434; 2015 a. 55; 2017 a. 207 ss. 4, 5.

978.04 978.04 Assistants in certain prosecutorial units. The district attorney of any prosecutorial unit having a population of less than 100,000 may appoint one or more assistant district attorneys as necessary to carry out the duties of his or her office and as may be requested by the department of administration authorized in accordance with s. 16.505. Any such assistant district attorney must be an attorney admitted to practice law in this state and, except as provided in s. 978.043 (1), may perform any duty required by law to be performed by the district attorney.

978.04 History History: 1989 a. 31; 1999 a. 9; 2005 a. 434.

978.041 978.041 Population estimates of prosecutorial units. In ss. 978.03 and 978.04, the population of a prosecutorial unit is the population estimate for the unit as last determined by the department of administration under s. 16.96.

978.041 History History: 1993 a. 16.

978.043 978.043 Assistants for prosecution of sexually violent person commitment cases.

978.043(1) (1) The district attorney of the prosecutorial unit that consists of Brown County and the district attorney of the prosecutorial unit that consists of Milwaukee County shall each assign one assistant district attorney in his or her prosecutorial unit to be a sexually violent person commitment prosecutor. An assistant district attorney assigned under this subsection to be a sexually violent person commitment prosecutor may engage only in the prosecution of sexually violent person commitment proceedings under ch. 980 and, at the request of the district attorney of the prosecutorial unit, may file and prosecute sexually violent person commitment proceedings under ch. 980 in any prosecutorial unit in this state.

978.043(2) (2) If an assistant district attorney assigned under sub. (1) prosecutes or assists in the prosecution of a case under ch. 980 in a prosecutorial unit other than his or her own, the prosecutorial unit in which the case is heard shall reimburse the assistant district attorney’s own prosecutorial unit for his or her reasonable costs associated with the prosecution, including transportation, lodging, and meals. Unless otherwise agreed upon by the prosecutorial units involved, the court hearing the case shall determine the amount of money to be reimbursed for expert witness fees under this subsection.

978.043 History History: 1999 a. 9; 2005 a. 434.

978.045 978.045 Special prosecutors.

978.045(1g) (1g) A court on its own motion may appoint a special prosecutor under sub. (1r) or a district attorney may request a court to appoint a special prosecutor under that subsection. Before a court appoints a special prosecutor on its own motion or at the request of a district attorney for an appointment that exceeds 6 hours per case, the court or district attorney shall request assistance from a district attorney, deputy district attorney or assistant district attorney from other prosecutorial units or an assistant attorney general. A district attorney requesting the appointment of a special prosecutor, or a court if the court is appointing a special prosecutor on its own motion, shall notify the department of administration, on a form provided by that department, of the district attorney’s or the court’s inability to obtain assistance from another prosecutorial unit or from an assistant attorney general.

978.045(1r) (1r) 

978.045(1r)(am) (am) Any judge of a court of record, by an order entered in the record stating the cause for it, may appoint an attorney as a special prosecutor to perform, for the time being, or for the trial of the accused person, the duties of the district attorney. An attorney appointed under this subsection shall have all of the powers of the district attorney.

978.045(1r)(bm) (bm) The judge may appoint an attorney as a special prosecutor at the request of a district attorney to assist the district attorney in the prosecution of persons charged with a crime, in grand jury proceedings, in proceedings under ch. 980, or in investigations. Except as provided under par. (bp), the judge may appoint an attorney as a special prosecutor only if the judge or the requesting district attorney submits an affidavit to the department of administration attesting that any of the following conditions exists:

978.045(1r)(bm)1. 1. There is no district attorney for the county.

978.045(1r)(bm)2. 2. The district attorney is absent from the county.

978.045(1r)(bm)2m. 2m. The district attorney, or a deputy or assistant district attorney for the district attorney office, is on parental leave.

978.045(1r)(bm)3. 3. The district attorney has acted as the attorney for a party accused in relation to the matter of which the accused stands charged and for which the accused is to be tried.

978.045(1r)(bm)4. 4. The district attorney is near of kin to the party to be tried on a criminal charge.

978.045(1r)(bm)5. 5. The district attorney is unable to attend to his or her duties due to a health issue or has a mental incapacity that impairs his or her ability to substantially perform his or her duties.