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.
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 500,000 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.
978.11
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 employes in office of district attorney. 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 500,000.
978.12(1)(a)1.b.
b. Prosecutorial units having a population of more than 250,000 but not more than 500,000.
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 pay a salary to deputy district attorneys which shall not exceed the maximum of any pay range to which assistant district attorney positions are assigned, except that a deputy district attorney may receive additional compensation for supervisory duties in accordance with supplementary provisions for supervisory and managerial employes in 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 secretary of employment relations 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
s. 111.93 (3), 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 secretary of employment relations.
978.12(2)
(2) State seniority. A county employe who is transferred to state employment under
1989 Wisconsin Act 31 shall have his or her seniority with the state computed by treating the employe'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 employe 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 employe's unused balance of sick leave accrued with the county by which the employe 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 employe would have accrued in state service for the same period, if the employe 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 employe shall have his or her sick leave accrued with the state computed on the basis of the employe'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 employe or the employe'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 employes of the office of district attorney shall be accrued at the rate provided in
s. 230.35 using the employe's state service computed under
sub. (2). Annual leave shall be earned on a calendar year basis prorated from the effective date of the employe's transfer for the balance of the calendar year.
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 employe 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 employes shall be determined separately when the calculations are actuarially available from the Wisconsin retirement system and adopted by the employe trust funds board and other respective retirement systems.
978.12(5)(b)
(b)
Employes generally. District attorneys and state employes of the office of district attorney shall be included within the provisions of the Wisconsin retirement system under
ch. 40 as a participating employe of that office, except that the district attorney and state employes of the office of district attorney in a county having a population of 500,000 or more have the option provided under
par. (c).
978.12(5)(c)
(c)
District attorney employes in counties having a population of 500,000 or more. The district attorney and state employes of the office of district attorney in a county having a population of 500,000 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 employes of the office of district attorney shall be paid by the state treasurer 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 employes 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 employes 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 employes of the office of district attorney shall be given the same consideration as other elected county officials and county employes 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 employe 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(5)(c)5.
5. Notwithstanding any other provisions of the retirement system established under
chapter 201, laws of 1937, if a district attorney or state employe of the office of district attorney in a county having a population of 500,000 or more who does not have vested benefit rights under the retirement system established under
chapter 201, laws of 1937, becomes a participating employe under the Wisconsin retirement system under
ch. 40 as provided in this subsection, the participating employe may, on a form developed by the department of employe trust funds in consultation with that county, elect to transfer from the retirement system established under
chapter 201, laws of 1937, an amount equal to all employer contributions made on his or her behalf, not including any employer contributions for unfunded prior service liability made on the basis of his or her earnings, to the retirement system established under
chapter 201, laws of 1937, together with all interest actually accrued on those contributions, to the employer required contribution account provided for by
s. 40.05 (2). An election under this subdivision constitutes a full and complete waiver of any right to any benefit from the retirement system established under
chapter 201, laws of 1937, for any benefit accrued or service rendered under that retirement system prior to the election. Any provision in the retirement system established under
chapter 201, laws of 1937, for repurchasing benefits or service forfeited shall not apply to the benefits and service transferred under this subdivision.
978.12(6)
(6) Other fringe benefits. District attorneys and state employes of the office of district attorney shall be included within all insurance benefit plans under
ch. 40, except as authorized in this subsection. Alternatively, the state shall provide insurance benefit plans for district attorneys and state employes in the office of district attorney in the manner provided in this subsection. A district attorney or other employe of the office of district attorney who was employed in that office as a county employe on December 31, 1989, and who received any form of fringe benefits other than a retirement, deferred compensation or employe-funded reimbursement account plan as a county employe, 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 employes 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 employe. In a county having a population of 500,000 or more, the fringe benefit plans shall include health insurance benefits fully paid by the county for each retired employe 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 employe, for the duration of the employe's life. An employe may make an election under this subsection no later than January 31, 1990, except that an employe who serves as an assistant district attorney in a county having a population of 500,000 or more may make an election under this subsection no later than March 1, 1990. An election under this subsection shall be for the duration of the employe's employment in the office of district attorney for the same county by which the employe was employed or until the employe terminates the election under this subsection, at the same cost to the county as the county incurs for a similarly situated county employe. If the employer's cost for such fringe benefits for any such employe 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. If the employer's cost for such fringe benefits for any such employe 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 employes 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. An employe who makes the election under this subsection may terminate that election, and shall then be included within all insurance benefit plans under
ch. 40, except that the department of employe trust funds may require prior written notice, not exceeding one year's duration, of an employe's intent to be included under any insurance benefit plan under
ch. 40.
978.12 Annotation
District attorneys are not "public officer[s]" within meaning of term in article IV, section 26 of Wisconsin Constitution, and Legislature may increase or diminish salaries of district attorneys during terms of office.
79 Atty. Gen. 149.
978.12 Annotation
Discussion of what items constitute "fringe benefits" under sub. (6). Brown County Attys. Ass'n v. Brown County, 169 W (2d) 737, 487 NW (2d) 312 (Ct. App. 1992).
978.12 Annotation
Sub. (5) (c) 5. is unconstitutional. The transfer of funds from the Milwaukee County pension plan to the state pension plan contemplated by this provision results in a taking of property without due process of law. Association of State Prosecutors v. Milwaukee, 199 W (2d) 549, 544 NW (2d) 888 (1996).
978.13
978.13
Operational expenses of district attorney offices. 978.13(1)(1) The state shall assume financial responsibility for all of the following:
978.13(1)(b)
(b) In counties having a population of 500,000 or more, the salary and fringe benefit costs of 2 clerk positions providing clerical services to the prosecutors in the district attorney's office handling cases involving felony violations under
ch. 961. The state treasurer shall pay the amount authorized under this paragraph to the county treasurer pursuant to a voucher submitted by the district attorney to the department of administration from the appropriation under
s. 20.475 (1) (i). The amount paid under this paragraph may not exceed $70,500 in the 1997-98 fiscal year and $73,000 in the 1998-99 fiscal year.
978.13(1)(c)
(c) In counties having a population of 500,000 or more, the salary and fringe benefit costs of clerk positions in the district attorney's office necessary for the prosecution of violent crime cases primarily involving felony violations under
s. 939.63, if a felony is committed while armed, and under
ss. 940.01 to
940.03,
940.05,
940.06,
940.225,
943.23 (1g),
(1m) and
(1r) and
943.32 (2). The state treasurer shall pay the amount authorized under this paragraph to the county treasurer pursuant to a voucher submitted by the district attorney to the secretary of administration from the appropriation under
s. 20.475 (1) (i). The amount paid under this paragraph may not exceed $88,500 in the 1997-98 fiscal year and $91,600 in the 1998-99 fiscal year.
978.13(2)
(2) Except as provided in
sub. (1), each county in a district attorney's prosecutorial unit has financial responsibility for all costs related to the operation of the district attorney's office, other than the salaries of the district attorney and other state employes in the district attorney's office, the compensation of special prosecutors and the cost of benefits under the Wisconsin retirement system and the insurance benefit plans under
ch. 40 for which the district attorney and other state employes in the district attorney's office are eligible. The nature and level of materials, supplies, equipment, services and facilities provided for the district attorney's office by the county shall be adequate and sufficient to fulfill the responsibilities of that office.
