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.

978.045(1r)(bm)6. 6. The district attorney is serving in the U.S. armed forces.

978.045(1r)(bm)7. 7. The district attorney stands charged with a crime and the governor has not acted under s. 17.11.

978.045(1r)(bm)8. 8. The district attorney determines that a conflict of interest exists regarding the district attorney or the district attorney staff.

978.045(1r)(bp) (bp) The judge may appoint an attorney as a special prosecutor to assist the district attorney in counties with a population of less than 45,000 if the department of administration certifies that the county has a significant case backlog and if a petition for such an appointment is approved by the affected county board. This paragraph does not apply after December 31, 2019.

978.045(1r)(cm) (cm) The judge may not appoint an attorney as a special prosecutor to assist the district attorney in John Doe proceedings under s. 968.26 unless a condition under par. (bm) 1. to 8. exists, par. (bp) applies, or the judge determines that a complaint received under s. 968.26 (2) (am) relates to the conduct of the district attorney to whom the judge otherwise would refer the complaint. This paragraph does not prohibit assistance authorized by s. 978.05 (8).

978.045(2) (2) If the department of administration approves the appointment of a special prosecutor under sub. (1r), the court shall fix the amount of compensation for the attorney appointed according to the rates specified in s. 977.08 (4m) (b). The department of administration shall pay the compensation ordered by the court from the appropriation under s. 20.475 (1) (d). The court, district attorney, and the special prosecutor shall provide any information regarding a payment of compensation that the department requests. Any payment under this subsection earns interest on the balance due from the 121st day after receipt of a properly completed invoice or receipt and acceptance of the property or service under the order or contract, whichever is later, at the rate specified in s. 71.82 (1) (a) compounded monthly.

978.045(3) (3) 

978.045(3)(a) (a) If an attorney is available and willing to serve as a special prosecutor without state compensation, the district attorney may appoint the attorney as a public service special prosecutor to serve at the pleasure of the district attorney. The public service special prosecutor may perform the duties and has the powers of the district attorney while acting under such an appointment, but is not subject to the appointment procedure under subs. (1g) and (1r) or to the compensation under sub. (2). A full-time public service special prosecutor may not engage in a private practice of law while serving under this paragraph. A part-time public service special prosecutor may engage in a private practice of law while serving under this paragraph.

978.045(3)(b) (b) A law firm or other employer employing an attorney who is appointed as a public service special prosecutor may continue to pay, for a period of not more than 4 months, the salary and fringe benefits of the attorney while he or she serves under par. (a). If the public service special prosecutor receives any such payments, the prosecutor’s law firm and the prosecutor are subject to the following restrictions:

978.045(3)(b)1. 1. The law firm may not participate in any of the cases in which the public service special prosecutor participates.

978.045(3)(b)2. 2. The public service special prosecutor may not consult with any attorney in or employee of the law firm about any criminal case in which the public service special prosecutor participates except as necessary to ensure compliance with this subsection.

978.045(3)(c) (c) An attorney serving as a public service special prosecutor under par. (a) is considered to be a public employee for purposes of s. 895.46. A law firm or employer described under par. (b) is not liable for any acts or omissions of a public service special prosecutor while acting in his or her official capacity or performing duties or exercising powers under par. (a).

978.045 History History: 1989 a. 117; 1991 a. 39, 188; 1993 a. 16; 1995 a. 27; 1997 a. 27; 2005 a. 434; 2009 a. 24; 2015 a. 55, 64; 2017 a. 59, 366.

978.045 Annotation A defect in an appointment under sub. (1r) that was not central to the statutory scheme of this section was cured by a subsequent court order entered nunc pro tunc. The court did not lose competence to proceed in a matter brought by the special prosecutor. State v. Bollig, 222 Wis. 2d 558, 587 N.W.2d 908 (Ct. App. 1998), 97-2231.

978.045 Annotation A court may appoint a special prosecutor on request of a district attorney or upon its own motion. Any restrictions on the appointment under this section is triggered only when the appointment is made at the request of a district attorney, not when made by the court on its own motion. State v. Carlson, 2002 WI App 44, 250 Wis. 2d 562, 641 N.W.2d 451, 01-1088.

978.045 Annotation The authority of someone who is appointed as a special prosecutor ends at the point in time when a court makes a legal ruling that the appointment is invalid and orders as a matter of law that the individual’s authority is terminated. State ex rel. Three Unnamed Petitioners v. Peterson, 2015 WI 103, 365 Wis. 2d 351, 875 N.W.2d 49, 13-2504.

978.047 978.047 Investigators; police powers. The district attorney of any county may appoint such investigators as are authorized by the county board, and the county board may abolish the positions at its pleasure. The investigators when so appointed have general police powers within the county.

978.047 History History: 1989 a. 117; 1993 a. 51.

978.05 978.05 Duties of the district attorney. The district attorney shall:

978.05(1) (1) Criminal actions. Except as otherwise provided by law, prosecute all criminal actions before any court within his or her prosecutorial unit and have sole responsibility for prosecution of all criminal actions arising from violations of chs. 5 to 12, subch. III of ch. 13, or subch. III of ch. 19 and from violations of other laws arising from or in relation to the official functions of the subject of the investigation or any matter that involves elections, ethics, or lobbying regulation under chs. 5 to 12, subch. III of ch. 13, or subch. III of ch. 19, that are alleged to be committed by a resident of his or her prosecutorial unit, or if alleged to be committed by a nonresident of this state, that are alleged to occur in his or her prosecutorial unit unless another prosecutor is substituted under s. 5.05 (2m) (i) or 19.49 (2) (h) or this chapter or by referral of the elections commission under s. 5.05 (2m) (c) 15. or 16. or the ethics commission under s. 19.49 (2) (b) 13. or 14. For purposes of this subsection, a person other than an individual is a resident of a prosecutorial unit if the person’s principal place of operation is located in that prosecutorial unit.

978.05(2) (2) Forfeitures. Except as otherwise provided by law, prosecute all state forfeiture actions, county traffic actions and actions concerning violations of county ordinances which are in conformity with state criminal laws in the courts within his or her prosecutorial unit and have joint responsibility, together with the elections commission and the ethics commission, for prosecution of all forfeiture actions arising from violations of chs. 5 to 12, subch. III of ch. 13, or subch. III of ch. 19 and from violations of other laws arising from or in relation to the official functions of the subject of the investigation or any matter that involves elections, ethics, or lobbying regulation under chs. 5 to 12, subch. III of ch. 13, or subch. III of ch. 19 that are alleged to be committed by a resident of his or her prosecutorial unit, or if alleged to be committed by a nonresident of this state, that are alleged to occur within his or her prosecutorial unit unless another prosecutor is substituted under s. 5.05 (2m) (h) or 19.49 (2) (g) or this chapter or by referral of the elections commission under s. 5.05 (2m) (c) 15. or 16. or the ethics commission under s. 19.49 (2) (b) 13. or 14. For purposes of this subsection, a person other than an individual is a resident of a prosecutorial unit if the person’s principal place of operation is located in that prosecutorial unit.

978.05(3) (3) John Doe proceedings. Participate in investigatory proceedings under s. 968.26.

978.05(4) (4) Grand jury. When requested by a grand jury under s. 968.47, attend the grand jury for the purpose of examining witnesses in their presence; give the grand jury advice in any legal matter; draw bills of indictment; and issue subpoenas and other processes to compel the attendance of witnesses.

978.05(4m) (4m) Welfare fraud investigations. Cooperate with the departments of children and families and health services regarding the fraud investigation programs under ss. 49.197 (1m) and 49.845 (1).

978.05(5) (5) Criminal appeals. Upon the request and under the supervision and direction of the attorney general, brief and argue all criminal cases brought by appeal or writ of error or certified from a county within his or her prosecutorial unit to the court of appeals or supreme court. The district attorney for the prosecutorial unit in which the case was filed shall represent the state in any appeal or other proceeding if the case is decided by a single court of appeals judge, as specified in s. 752.31 (3).

978.05(6) (6) Civil actions or special proceedings.

978.05(6)(a) (a) Institute, commence or appear in all civil actions or special proceedings under and perform the duties set forth for the district attorney under ch. 980 and ss. 17.14, 30.03 (2), 48.09 (5), 59.55 (1), 59.64 (1), 89.08, 103.92 (4), 109.09, 343.305 (9) (a), 806.05, 938.09, 938.18, 938.355 (6) (b) and (6g) (a), 946.86, 946.87, 961.55 (5), 971.14 and 973.075 to 973.077, perform any duties in connection with court proceedings in a court assigned to exercise jurisdiction under chs. 48 and 938 as the judge may request and perform all appropriate duties and appear if the district attorney is designated in specific statutes, including matters within chs. 782, 976 and 979 and ss. 51.81 to 51.85. Nothing in this paragraph limits the authority of the county board to designate, under s. 48.09 (5), that the corporation counsel provide representation as specified in s. 48.09 (5) or to designate, under s. 48.09 (6) or 938.09 (6), the district attorney as an appropriate person to represent the interests of the public under s. 48.14 or 938.14.

978.05(6)(b) (b) Enforce the provisions of all general orders of the department of safety and professional services relating to the sale, transportation and storage of explosives.

978.05(7) (7) Actions transferred to another county. If the place of trial is changed in any action or proceeding under this section to another county within or outside his or her prosecutorial unit, prosecute or defend the action or proceeding in that county.

978.05(8) (8) Administration.