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 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 each even-numbered year. The regular term of office for each district attorney is 2 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)(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, Forest, Pepin, Richland, Rusk, Trempealeau or Vernon county.
978.01 History
History: 1989 a. 31 ss.
2900,
2900c;
1991 a. 39.
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.
978.03
978.03
Deputies and assistants in certain prosecutorial units. 978.03(1)(1) The district attorney of any prosecutorial unit having a population of 500,000 or more may appoint 4 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 not more than 499,999 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 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.
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 may perform any duty required by law to be performed by the district attorney.
978.04 History
History: 1989 a. 31.
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.
978.045
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) Any judge of a court of record, by an order entered in the record stating the cause therefor, 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. 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 or John Doe proceedings or in investigations. The judge may appoint an attorney as a special prosecutor if any of the following conditions exists:
978.045(1r)(c)
(c) 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)(d)
(d) The district attorney is near of kin to the party to be tried on a criminal charge.
978.045(1r)(e)
(e) The district attorney is physically unable to attend to his or her duties or has a mental incapacity that impairs his or her ability to substantially perform his or her duties.
978.045(1r)(f)
(f) The district attorney is serving in the U.S. armed forces.
978.045(1r)(g)
(g) The district attorney stands charged with a crime and the governor has not acted under
s. 17.11.
978.045(1r)(h)
(h) The district attorney determines that a conflict of interest exists regarding the district attorney or the district attorney staff.
978.045(2)(a)(a) The court shall fix the amount of compensation for any attorney appointed as a special prosecutor under
sub. (1r) according to the rates specified in
s. 977.08 (4m) (b).
978.045(2)(b)
(b) The department of administration shall pay the compensation ordered by the court from the appropriation under
s. 20.475 (1) (d).
978.045(2)(c)
(c) The court, district attorney and the special prosecutor shall provide any information regarding a payment under
par. (b) that the department requests.
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 employe 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 employe 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).
978.047
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.
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.
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 department of workforce development regarding the fraud investigation program under
s. 49.197 (1m).
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
ss. 17.14,
30.03 (2),
48.09 (5),
59.55 (1),
59.64 (1),
70.36,
103.50 (8),
103.92 (4),
109.09,
343.305 (9) (a),
453.08,
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 commerce 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)(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 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 employes.
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 W (2d) xv (1997);
1997 a. 3,
35,
73.
978.05 Annotation
Discussion of immunity afforded district attorney and assistants. Ford v. Kenosha County, 160 W (2d) 485, 466 NW (2d) 646 (1991).
978.05 Annotation
Inclusion of employes 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 W (2d) 66, 501 NW (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 W (2d) 57, 576 NW (2d) 580 (Ct. App. 1998).
978.05 Annotation
County and district attorney responsibilities in staffing district attorney offices discussed.
80 Atty. Gen. 19.
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)(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)(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.
978.07
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 disk 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)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.
