978.05 Duties of the district attorney.
978.06 Restriction on district attorney.
978.07 Obsolete district attorney records.
978.08 Preservation of certain evidence.
978.12 Salaries and benefits of district attorney and state employees in office of district attorney.
978.13 Operational expenses of district attorney offices.
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, Pepin, Trempealeau or Vernon county.
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.
978.02 Annotation
An entity characterized as the "office of the district attorney" or "district attorney", separate from the elected official, does not have authority to sue or be sued. Buchanan v. City of Kenosha,
57 F. Supp. 2d 675 (1999).
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 5 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, except as provided in
ss. 978.043 and
978.044, 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.
978.04
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, except as provided in
s. 978.043, may perform any duty required by law to be performed by the district attorney.
978.04 History
History: 1989 a. 31;
1999 a. 9.
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.
978.043
978.043
Assistants for prosecution of sexually violent person commitment cases. The district attorney of the prosecutorial unit that consists of Brown County and the district attorney of the prosecutorial unit that consists of Milwaukee County shall each assign one assistant district attorney in his or her prosecutorial unit to be a sexually violent person commitment prosecutor. An assistant district attorney assigned under this section to be a sexually violent person commitment prosecutor may engage only in the prosecution of sexually violent person commitment proceedings under
ch. 980 and, at the request of the district attorney of the prosecutorial unit, may file and prosecute sexually violent person commitment proceedings under
ch. 980 in any prosecutorial unit in this state.
978.043 History
History: 1999 a. 9.
978.044
978.044
Assistants to perform restorative justice services. 978.044(1)(b)
(b) "Offender" means an individual who is, or could be, charged with committing a crime or who is, or could be, the subject of a petition under
ch. 938 alleging that he or she has committed a crime.
978.044(2)
(2) Duties. The district attorneys of Milwaukee county and the county selected under
sub. (4) shall each assign one assistant district attorney in his or her prosecutorial unit to be a restorative justice coordinator. An assistant district attorney assigned under this subsection to be a restorative justice coordinator shall do all the following:
978.044(2)(a)
(a) Establish restorative justice programs that provide support to the victim, help reintegrate the victim into community life, and provide a forum where an offender may meet with the victim or engage in other activities to do all of the following:
978.044(2)(a)1.
1. Discuss the impact of the offender's crime on the victim or on the community.
978.044(2)(a)2.
2. Explore potential restorative responses by the offender.
978.044(2)(a)3.
3. Provide methods for reintegrating the offender into community life.
978.044(2)(b)
(b) Provide assistance to the district attorney in other counties relating to the establishment of restorative justice programs, as described in
par. (a).
978.044(2)(c)2.
2. The number of victims and offenders served by programs established under
par. (a).
978.044(2)(c)3.
3. The types of offenses addressed by programs established under
par. (a).
978.044(2)(c)4.
4. The rate of recidivism among offenders served by programs established under
par. (a) compared to the rate of recidivism by offenders not served by such programs.
978.044(3)
(3) Report to department of administration. Annually, on a date specified by the department of administration, the district attorneys of Milwaukee county and the county selected under
sub. (4) shall each submit to the department of administration a report summarizing the records under
sub. (2) (c) covering the preceding 12-month period. The department of administration shall maintain the information submitted under this subsection by the district attorney.
978.044(4)
(4) Selection of 2nd county. The department of corrections shall select a county other than Milwaukee county in which restorative justice services are to be provided under
sub. (2).
978.044(5)
(5) Expiration. This section does not apply after June 30, 2005.
978.044 History
History: 2001 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 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).
978.045 Annotation
A court may appoint a special prosecutor on request of a district attorney or upon its own motion. Any restrictions on the appointment under this section is triggered only when the appointment is made at the request of a district attorney, not when made by the court on its own motion. State v. Carlson, 2002 WI App 44,
250 Wis. 2d 562,
641 N.W.2d 451.
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.
