Chapter 978

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.

978.05(8)(a) (a) Establish such offices throughout the prosecutorial unit as are necessary to carry out the duties of the office of district attorney.

978.05(8)(b) (b) Hire, employ, and supervise his or her staff and, subject to s. 978.043 (1), make appropriate assignments of the staff throughout the prosecutorial unit. The district attorney may request the assistance of district attorneys, deputy district attorneys, or assistant district attorneys from other prosecutorial units or assistant attorneys general who then may appear and assist in the investigation and prosecution of any matter for which a district attorney is responsible under this chapter in like manner as assistants in the prosecutorial unit and with the same authority as the district attorney in the unit in which the action is brought. Nothing in this paragraph limits the authority of counties to regulate the hiring, employment, and supervision of county employees.

978.05(8)(c) (c) Supervise all expenditures of the district attorney’s office.

978.05(9) (9) Budget. Prepare a biennial budget request for submission to the department under s. 978.11 by September 1 of each even-numbered year.

978.05 History History: 1989 a. 31, 117, 336; 1991 a. 16, 32, 39; 1993 a. 98; 1995 a. 27 ss. 7291, 7292, 9116 (5), 9130 (4); 1995 a. 77, 201, 448; Sup. Ct. Order No. 96-08, 207 Wis. 2d xv (1997); 1997 a. 3, 35, 73; 1999 a. 9; 2001 a. 16; 2005 a. 25, 434; 2007 a. 1; 2007 a. 20 ss. 3927, 9121 (6) (a); 2011 a. 32; 2015 a. 55, 118; 2017 a. 59; 2021 a. 238 s. 45; 2023 a. 12.

978.05 Annotation District attorneys and their assistants when acting within the scope of their prosecutorial functions are absolutely immune from damages. Ford v. Kenosha County, 160 Wis. 2d 485, 466 N.W.2d 646 (1991).

978.05 Annotation Inclusion of employees hired under sub. (8) (b) in a bargaining unit subject to the county’s collective bargaining agreement does not impermissibly restrict the district attorney’s statutory hiring authority. Crawford County v. WERC, 177 Wis. 2d 66, 501 N.W.2d 836 (Ct. App. 1993).

978.05 Annotation It is within the discretionary power of a district attorney to enter nonprosecution agreements prior to filing charges in exchange for information in a criminal investigation. State v. Jones, 217 Wis. 2d 57, 576 N.W.2d 580 (Ct. App. 1998), 97-1806.

978.05 Annotation Prosecutors have authority to enter into agreements related to criminal matters that bind the state. Nonprosecution agreements are legal, and prosecutors have inherent discretionary authority to enter into them when, in the prosecutor’s discretion, doing so will further the interests of justice. A district attorney has the authority to enter into precharging nonprosecution agreements without court approval. State v. Rippentrop, 2023 WI App 15, 406 Wis. 2d 692, 987 N.W.2d 801, 22-0092.

978.05 Annotation Discussing county and district attorney responsibilities in staffing district attorney offices. 80 Atty. Gen. 19.

978.05 Annotation Unless otherwise stated in a specific statute, criminal and civil forfeiture provisions of the election, lobby, and ethics laws can be enforced by a district attorney independently of the Government Accountability Board (GAB). A referral following an investigation by GAB is not required. A district attorney may request prosecutorial or investigative assistance from the attorney general in connection with any duty of the district attorney under those laws. If there has been a referral to the district attorney by GAB under s. 5.05 (2m) (c) 11., 14., or 15., the district attorney must retain ultimate supervisory authority over the matter referred unless a special prosecutor has been appointed to serve in lieu of the district attorney. OAG 10-08.

978.05 Annotation The Government Accountability Board (GAB) and district attorneys possess joint and co-equal authority to investigate possible violations of the election, lobby, and ethics laws and to prosecute civil forfeiture actions under those laws. Unless otherwise stated in a specific statutory provision, the district attorney possesses the authority to prosecute criminal proceedings under those laws. GAB has no statutory authority to prosecute criminal proceedings under those laws except as stated in s. 5.05 (2m) (i). OAG 10-08.

978.06 978.06 Restriction on district attorney.

978.06(1) (1) No district attorney, deputy district attorney or assistant district attorney may receive any fee or reward from or on behalf of any prosecutor or any other individual for services in any prosecution or business to which it is the district attorney’s official duty to attend.

978.06(2) (2) No district attorney, deputy district attorney or assistant district attorney may be concerned as attorney or counsel for either party, other than for the state or county, in any civil action depending upon the same state of facts upon which any criminal prosecution commenced but undetermined depends.

978.06(3) (3) 

978.06(3)(a) (a) No district attorney, deputy district attorney or assistant district attorney while in office may hold any judicial office. No full-time district attorney, deputy district attorney or assistant district attorney may hold the office of or act as corporation counsel or city, village or town attorney. A part-time district attorney, deputy district attorney or assistant district attorney may hold the office of or act as corporation counsel or city, village or town attorney or otherwise serve as legal counsel to any governmental unit.

978.06(3)(b) (b) Notwithstanding par. (a), if a district attorney, deputy district attorney or assistant district attorney holds a judicial office on January 1, 1990, he or she may continue to hold that office until January 1, 1993.

978.06(4) (4) No person who acted as district attorney, deputy district attorney or assistant district attorney, or special prosecutor under s. 978.045, for a county at the time of an arrest, examination or indictment of any person charged with a crime in that county may thereafter appear for, or defend that person against the crime charged in the complaint, information or indictment.

978.06(5) (5) 

978.06(5)(a) (a) No full-time district attorney, deputy district attorney or assistant district attorney may engage in a private practice of law, but he or she is authorized to complete all civil cases, not in conflict with the interest of the county or counties of his or her prosecutorial unit, in which he or she is counsel, pending in court before he or she takes office. A part-time district attorney, deputy district attorney or assistant district attorney may engage in a private practice of law.

978.06(5)(b) (b) Notwithstanding par. (a), if a full-time district attorney, deputy district attorney or assistant district attorney has a contractual obligation on January 1, 1990, to provide legal services, he or she may continue to provide those services until January 1, 1993. The services provided may not be in conflict with the interest of the county or counties of his or her prosecutorial unit.

978.06(6) (6) No district attorney, deputy district attorney or assistant district attorney may appear in a civil action or proceeding under s. 49.22 (7), 59.53 (5), 767.205 (2), 767.501 or 767.80 or ch. 769.

978.06 History History: 1989 a. 31, 117; 1991 a. 39; 1993 a. 326; 1995 a. 201, 404; 1997 a. 35; 2005 a. 443 s. 265.

978.07 978.07 Obsolete district attorney records.

978.07(1) (1) Whenever necessary to gain needed vault and filing space, a district attorney may destroy, subject to sub. (2), obsolete records in his or her custody as follows:

978.07(1)(a) (a) Any district attorney record, after it has first been microfilmed or transferred to optical disc or electronic storage and preserved in accordance with s. 16.61.

978.07(1)(b) (b) Any case record of a traffic, misdemeanor, civil or related case, 3 years after commencement of the action.

978.07(1)(c) (c)

978.07(1)(c)1. 1. Any case record of a felony punishable by life imprisonment or a related case, after the defendant’s parole eligibility date under s. 304.06 (1) or 973.014 (1) or date of eligibility for release to extended supervision under s. 973.014 (1g) (a) 1. or 2., whichever is applicable, or 50 years after the commencement of the action, whichever occurs later. If there is no parole eligibility date or no date for release to extended supervision, the district attorney may destroy the case record after the defendant’s death.

978.07(1)(c)2. 2. Any case record of a felony punishable by a maximum period of imprisonment equal to at least 20 years or a related case, after the mandatory release date established under s. 302.11 (1) or the presumptive mandatory release date established under s. 302.11 (1g), if applicable, of any person convicted of that felony or 20 years after commencement of the action, whichever is later.

978.07(1)(c)3. 3. Except as provided in subds. 1. and 2., any case record of a felony or related case, after the mandatory release date established under s. 302.11 (1) or the presumptive mandatory release date established under s. 302.11 (1g), if applicable, of any person convicted of that felony or 10 years after the commencement of the action, whichever is later.

978.07(1)(d) (d) Any other district attorney record not included under pars. (a) to (c) made or received in connection with a transaction as evidence of a district attorney’s activities or functions, after 6 years.

978.07(2) (2) Prior to destruction of records under sub. (1), the district attorney for a prosecutorial unit with a population of less than 750,000 shall make a written offer to the historical society under s. 44.09. If the offer is accepted by the society within 60 days after the day the offer is made, the district attorney shall transfer the title to those records to the historical society. If the offer is not accepted within 60 days after the day the offer is made, the district attorney may destroy the records.

978.07 History History: 1991 a. 39 ss. 1618 to 1621, 3678 to 3682; 1993 a. 172, 194, 289; 1995 a. 27; 1997 a. 283; 2015 a. 196; 2017 a. 207 s. 5.

978.08 978.08 Preservation of certain evidence.

978.08(1) (1) In this section:

978.08(1)(a) (a) “Custody” has the meaning given in s. 968.205 (1) (a).

978.08(1)(b) (b) “Discharge date” has the meaning given in s. 968.205 (1) (b).

978.08(2) (2) Except as provided in sub. (3), if physical evidence that is in the possession of a district attorney includes any biological material that was collected in connection with a criminal investigation that resulted in a criminal conviction, delinquency adjudication, or commitment under s. 971.17 or 980.06 and the biological material is from a victim of the offense that was the subject of the criminal investigation or may reasonably be used to incriminate or exculpate any person for the offense, the district attorney shall preserve the physical evidence until every person in custody as a result of the conviction, adjudication, or commitment has reached his or her discharge date.

978.08(2m) (2m) A district attorney shall retain evidence to which sub. (2) applies in an amount and manner sufficient to develop a deoxyribonucleic acid profile, as defined in s. 939.74 (2d) (a), from the biological material contained in or included on the evidence.

978.08(3) (3) Subject to sub. (5), a district attorney may destroy evidence that includes biological material before the expiration of the time period specified in sub. (2) if all of the following apply:

978.08(3)(a) (a) The district attorney sends a notice of its intent to destroy the evidence to all persons who remain in custody as a result of the criminal conviction, delinquency adjudication, or commitment and to either the attorney of record for each person in custody or the state public defender.

978.08(3)(b) (b) No person who is notified under par. (a) does either of the following within 90 days after the date on which the person received the notice:

978.08(3)(b)1. 1. Files a motion for testing of the evidence under s. 974.07 (2).

978.08(3)(b)2. 2. Submits a written request for retention of the evidence to the district attorney.

978.08(3)(c) (c) No other provision of federal or state law requires the district attorney to retain the evidence.

978.08(4) (4) A notice provided under sub. (3) (a) shall clearly inform the recipient that the evidence will be destroyed unless, within 90 days after the date on which the person receives the notice, either a motion for testing of the evidence is filed under s. 974.07 (2) or a written request for retention of the evidence is submitted to the district attorney.

978.08(5) (5) If, after providing notice under sub. (3) (a) of its intent to destroy evidence, a district attorney receives a written request for retention of the evidence, the district attorney shall retain the evidence until the discharge date of the person who made the request or on whose behalf the request was made, subject to a court order issued under s. 974.07 (7), (9) (a), or (10) (a) 5., unless the court orders destruction or transfer of the evidence under s. 974.07 (9) (b) or (10) (a) 5.

978.08 History History: 2001 a. 16; 2005 a. 60.

978.11 978.11 Budget. The department of administration shall prepare the budget of the prosecution system and submit it in accordance with s. 16.42.

978.11 History History: 1989 a. 31; 1991 a. 39.

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

978.12(1) (1) Salaries.

978.12(1)(a) (a) District attorneys.

978.12(1)(a)1. 1. The annual salary of each district attorney shall be reviewed and established in the same manner as provided for positions in the classified service under s. 230.12 (3), except that no district attorney may receive a salary that is greater than the salary established for the office of attorney general under s. 20.923 (2). Except as provided in subd. 2., the salary of each district attorney shall be established at the rate that is in effect for his or her office on the 2nd Tuesday of July preceding the commencement of his or her term of office. The compensation plan shall include separate salary rates for district attorneys in the following categories based on the population of the prosecutorial units in which they serve, as determined under s. 16.96 on October 10 of the year prior to commencement of their terms of office:

978.12(1)(a)1.a. a. Prosecutorial units having a population of more than 750,000.

978.12(1)(a)1.b. b. Prosecutorial units having a population of more than 250,000 but not more than 750,000.

978.12(1)(a)1.c. c. Prosecutorial units having a population of more than 100,000 but not more than 250,000.

978.12(1)(a)1.d. d. Prosecutorial units having a population of more than 75,000 but not more than 100,000.

978.12(1)(a)1.e. e. Prosecutorial units having a population of more than 50,000 but not more than 75,000.

978.12(1)(a)1.f. f. Prosecutorial units having a population of more than 35,000 but not more than 50,000.