State Codes and Statutes

Statutes > Wisconsin > 978 > 978.045

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 for it, 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 proceedings or John Doe proceedings under s. 968.26, in proceedings under ch. 980, or in investigations. The judge may appoint an attorney as a special prosecutor if any of the following conditions exists:

978.045(1r)(a)

(a) There is no district attorney for the county.

978.045(1r)(b)

(b) The district attorney is absent from the county.

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(1r)(i)

(i) A judge determines that a complaint received under s. 968.26 (2) (am) relates to the conduct of the district attorney to whom the judge otherwise would refer the complaint.

978.045(2)

(2)

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)

(3)

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 - ANNOT.

History: 1989 a. 117; 1991 a. 39, 188; 1993 a. 16; 1995 a. 27; 1997 a. 27; 2005 a. 434; 2009 a. 24.

978.045 - ANNOT.

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 - ANNOT.

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.

State Codes and Statutes

Statutes > Wisconsin > 978 > 978.045

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 for it, 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 proceedings or John Doe proceedings under s. 968.26, in proceedings under ch. 980, or in investigations. The judge may appoint an attorney as a special prosecutor if any of the following conditions exists:

978.045(1r)(a)

(a) There is no district attorney for the county.

978.045(1r)(b)

(b) The district attorney is absent from the county.

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(1r)(i)

(i) A judge determines that a complaint received under s. 968.26 (2) (am) relates to the conduct of the district attorney to whom the judge otherwise would refer the complaint.

978.045(2)

(2)

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)

(3)

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 - ANNOT.

History: 1989 a. 117; 1991 a. 39, 188; 1993 a. 16; 1995 a. 27; 1997 a. 27; 2005 a. 434; 2009 a. 24.

978.045 - ANNOT.

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 - ANNOT.

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.

State Codes and Statutes

State Codes and Statutes

Statutes > Wisconsin > 978 > 978.045

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 for it, 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 proceedings or John Doe proceedings under s. 968.26, in proceedings under ch. 980, or in investigations. The judge may appoint an attorney as a special prosecutor if any of the following conditions exists:

978.045(1r)(a)

(a) There is no district attorney for the county.

978.045(1r)(b)

(b) The district attorney is absent from the county.

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(1r)(i)

(i) A judge determines that a complaint received under s. 968.26 (2) (am) relates to the conduct of the district attorney to whom the judge otherwise would refer the complaint.

978.045(2)

(2)

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)

(3)

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 - ANNOT.

History: 1989 a. 117; 1991 a. 39, 188; 1993 a. 16; 1995 a. 27; 1997 a. 27; 2005 a. 434; 2009 a. 24.

978.045 - ANNOT.

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 - ANNOT.

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.