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 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 Annotation
A defect in an appointment under sub. (1r) that was not central to the statutory scheme of s. 978.045 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).
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, subject to
s. 978.043, 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.
978.05 Annotation
Discussion of immunity afforded district attorney and assistants. 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).
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 employees 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 employees 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 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)(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 500,000 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 500,000 or more. The district attorney and state employees 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 employees 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 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.
