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),
97-2231.
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,
01-1088.
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 and have sole responsibility for prosecution of all criminal actions arising from violations of
chs. 5 to
12,
subch. III of ch. 13, or
subch. III of ch. 19 and from violations of other laws arising from or in relation to the official functions of the subject of the investigation or any matter that involves elections, ethics, or lobbying regulation under
chs. 5 to
12,
subch. III of ch. 13, or
subch. III of ch. 19, that are alleged to be committed by a resident of his or her prosecutorial unit, or if alleged to be committed by a nonresident of this state, that are alleged to occur in his or her prosecutorial unit unless another prosecutor is substituted under
s. 5.05 (2m) (i) or this chapter or by referral of the government accountability board under
s. 5.05 (2m) (c) 15. or
16. For purposes of this subsection, a person other than a natural person is a resident of a prosecutorial unit if the person's principal place of operation is located in that 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 and have joint responsibility, together with the government accountability board, for prosecution of all forfeiture actions arising from violations of
chs. 5 to
12,
subch. III of ch. 13, or
subch. III of ch. 19 and from violations of other laws arising from or in relation to the official functions of the subject of the investigation or any matter that involves elections, ethics, or lobbying regulation under
chs. 5 to
12,
subch. III of ch. 13, or
subch. III of ch. 19 that are alleged to be committed by a resident of his or her prosecutorial unit, or if alleged to be committed by a nonresident of this state, that are alleged to occur within his or her prosecutorial unit unless another prosecutor is substituted under
s. 5.05 (2m) (h) or this chapter or by referral of the government accountability board under
s. 5.05 (2m) (c) 15. or
16. For purposes of this subsection, a person other than a natural person is a resident of a prosecutorial unit if the person's principal place of operation is located in that 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 departments of children and families and health services regarding the fraud investigation programs under
ss. 49.197 (1m) and
49.845 (1).
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
ch. 980 and
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 (1), 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;
2001 a. 16;
2005 a. 25,
434;
2007 a. 1;
2007 a. 20 ss.
3927,
9121 (6) (a).
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
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.
978.08
978.08
Preservation of certain evidence. 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)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)(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 establish and adjust the salaries of deputy district attorneys in accordance with 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 director of the office of state 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 director of the office of state 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.
