Chapter 978

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.

978.12(1)(a)1.g. g. Prosecutorial units having a population of more than 20,000 but not more than 35,000.

978.12(1)(a)1.h. h. Prosecutorial units having a population of not more than 20,000.

978.12(1)(a)2. 2. If an individual is appointed to fill a vacancy in the office of district attorney, the appointee shall be compensated for the residue of the unexpired term at the same rate that applied to the individual who vacates the office filled by the appointee on the date the vacancy occurs.

978.12(1)(b) (b) Deputy district attorneys. Deputy district attorneys shall be employed outside the classified service. The state shall establish and adjust the salaries of deputy district attorneys in accordance with s. 230.12 (10) and the state compensation plan.

978.12(1)(c) (c) Assistant district attorneys. Assistant district attorneys shall be employed outside the classified service. For purposes of salary administration, the administrator of the division of personnel management in the department of administration shall establish one or more classifications for assistant district attorneys in accordance with the classification or classifications allocated to assistant attorneys general. Except as provided in ss. 111.93 (3) (b) and 230.12 (10), the salaries of assistant district attorneys shall be established and adjusted in accordance with the state compensation plan for assistant attorneys general whose positions are allocated to the classification or classifications established by the administrator of the division of personnel management in the department of administration.

978.12(2) (2) State seniority. A county employee who is transferred to state employment under 1989 Wisconsin Act 31 shall have his or her seniority with the state computed by treating the employee’s total service with any county in the position of district attorney, deputy district attorney or assistant district attorney as state service.

978.12(3) (3) Sick leave. A county employee who is transferred to state employment under 1989 Wisconsin Act 31 shall have his or her sick leave accrued with the state computed by treating the employee’s unused balance of sick leave accrued with the county by which the employee was most recently employed in the position or positions of district attorney, deputy district attorney or assistant district attorney as sick leave accrued in state service, but not to exceed the amount of sick leave the employee would have accrued in state service for the same period, if the employee is able to provide adequate documentation in accounting for sick leave used during the accrual period with the county. If there is a formal plan of sick leave in county service but no adequate documentation in accounting, the employee shall have his or her sick leave accrued with the state computed on the basis of the employee’s total service times one-half the rate for accrual of sick leave in state service. Sick leave which transfers under this subsection is not subject to a right of conversion, under s. 40.05 (4) or otherwise, upon death or termination of creditable service for payment of health insurance benefits on behalf of the employee or the employee’s dependents.

978.12(4) (4) Annual leave. Annual leave for the district attorney is governed by s. 230.35 (1r). Annual leave for other state employees of the office of district attorney shall be accrued at the rate provided in s. 230.35 using the employee’s state service computed under sub. (2). Annual leave shall be earned on a calendar year basis prorated from the effective date of the employee’s transfer for the balance of the calendar year.

978.12(5) (5) Retirement.

978.12(5)(a) (a) Definition. In this subsection, “required employer contribution rate” means the total amount paid to the Wisconsin retirement fund for similar participants, including actuarially determined current costs, any prior service amortization costs and any amount of employee contributions presently paid by the employer. These required employer contribution rates are subject to annual redetermination by the actuaries of the respective retirement systems; however, the contribution rates for elected public officials and other employees shall be determined separately when the calculations are actuarially available from the Wisconsin retirement system and adopted by the employee trust funds board and other respective retirement systems.

978.12(5)(b) (b) Employees generally. District attorneys and state employees of the office of district attorney shall be included within the provisions of the Wisconsin retirement system under ch. 40 as a participating employee of that office, except that the district attorney and state employees of the office of district attorney in a county having a population of 750,000 or more have the option provided under s. 978.12 (5) (c), 1997 stats.

978.12(5)(c) (c) District attorney employees in counties having a population of 750,000 or more. The district attorney and state employees of the office of district attorney in a county having a population of 750,000 or more shall have the option of continuing as participants in the retirement system established under chapter 201, laws of 1937, as follows:

978.12(5)(c)1. 1. The salaries authorized under this section for the district attorney and the state employees of the office of district attorney shall be paid by the secretary of administration to the county treasurer pursuant to a voucher submitted by the district attorney to the department of administration. The county treasurer shall pay the amounts directly to the district attorney and state employees of the office of district attorney and the amounts paid shall be subject to the retirement system established under chapter 201, laws of 1937.

978.12(5)(c)2. 2. The state shall pay to the county treasurer in the manner specified in subd. 1. on behalf of the district attorney and state employees of the office of the district attorney the required employer contribution rate as provided under ch. 40 or the required employer contribution rate under chapter 201, laws of 1937, whichever rate is less. The county shall pay any portion of the required employer contribution rate not covered by the state payment. For future retirement benefits, the district attorney and state employees of the office of district attorney shall be given the same consideration as other elected county officials and county employees under the county’s retirement system.

978.12(5)(c)3. 3. The option under this paragraph to remain under a county program shall be exercised in writing, on forms provided by the department of administration, not later than March 1, 1990, and the action shall apply retrospectively to January 1, 1990.

978.12(5)(c)4. 4. If the district attorney or a state employee of the office of district attorney does not elect to continue as a participant in the retirement system established under chapter 201, laws of 1937, he or she may not receive retirement benefits under that system during his or her employment with the state.

978.12(6) (6) Other fringe benefits.

978.12(6)(a) (a)

978.12(6)(a)1. 1. District attorneys and state employees of the office of district attorney shall be included within all insurance benefit plans under ch. 40, except as authorized in this paragraph. Alternatively, the state shall provide insurance benefit plans for district attorneys and state employees in the office of district attorney in the manner provided in this paragraph.

978.12(6)(a)2. 2. A district attorney or other employee of the office of district attorney who was employed in that office as a county employee on December 31, 1989, and who received any form of fringe benefits other than a retirement, deferred compensation or employee-funded reimbursement account plan as a county employee, as defined by that county pursuant to the county’s personnel policies, or pursuant to a collective bargaining agreement in effect on January 1, 1990, or the most recent collective bargaining agreement covering represented employees who are not covered by such an agreement, may elect to continue to be covered under all such fringe benefit plans provided by the county after becoming a state employee. In a county having a population of 750,000 or more, the fringe benefit plans shall include health insurance benefits fully paid by the county for each retired employee who, on or after December 31, 1989, attains at least 15 years of service in the office of district attorney of that county, whether or not the service is as a county employee, for the duration of the employee’s life. An employee may make an election under this subdivision no later than January 31, 1990, except that an employee who serves as an assistant district attorney in a county having a population of 750,000 or more may make an election under this subdivision no later than March 1, 1990. An election under this subdivision shall be for the duration of the employee’s employment in the office of district attorney for the same county by which the employee was employed or until the employee terminates the election under subd. 4., at the same cost to the county as the county incurs for a similarly situated county employee.

978.12(6)(a)3. 3. Subject to par. (b), if the employer’s cost for fringe benefits described in subd. 2. for any employee described in subd. 2. is less than or equal to the cost for comparable coverage under ch. 40, if any, the state shall reimburse the county for that cost. Subject to par. (b), if the employer’s cost for such fringe benefits for any such employee is greater than the cost for comparable coverage under ch. 40, the state shall reimburse the county for the cost of comparable coverage under ch. 40 and the county shall pay the remainder of the cost. The cost of comparable coverage under ch. 40 shall equal the average cost of comparable coverage under ch. 40 for employees in the office of the state public defender, as contained in budget determinations approved by the joint committee on finance or the legislature under the biennial budget act for the period during which the costs are incurred.

978.12(6)(a)4. 4. An employee who makes the election under subd. 2. may terminate that election, and shall then be included within all insurance benefit plans under ch. 40, except that the department of employee trust funds may require prior written notice, not exceeding one year’s duration, of an employee’s intent to be included under any insurance benefit plan under ch. 40.

978.12(6)(b) (b) Beginning in the 1999-2000 fiscal year and ending in the 2003-04 fiscal year, the state shall in each fiscal year reduce its reimbursement of the employer’s cost for fringe benefits under par. (a) by $80,000.

978.12 History History: 1989 a. 31, 117, 336; 1991 a. 32, 39; 1993 a. 294; 1999 a. 9, 85; 2003 a. 33 ss. 2798, 2800, 9160; 2007 a. 78, 224; 2011 a. 10, 238; 2013 a. 20; 2015 a. 55; 2017 a. 207 s. 5.

978.12 Annotation Continuing legal education fees and bar dues, mileage reimbursements, beeper pay, and cash payment for unused “casual days” were “fringe benefits” under sub. (6). Brown County Attorneys Ass’n v. Brown County, 169 Wis. 2d 737, 487 N.W.2d 312 (Ct. App. 1992).

978.12 Annotation District attorneys are not “public officer[s]” within the meaning of the term in article IV, section 26, of the Wisconsin Constitution, and the legislature may increase or diminish salaries of district attorneys during terms of office. 79 Atty. Gen. 149.

978.12 Annotation An assistant district attorney on furlough pursuant to executive order is entitled to representation and indemnification if the assistant district attorney is carrying out duties within the scope of employment. OAG 9-09.

978.13 978.13 Operational expenses of district attorney offices.

978.13(1) (1) Subject to sub. (1m), the state shall assume financial responsibility for all of the following: