Wisconsin Statutes
Wis. Stat. § 968.02 (2026)
Issuance and filing of complaints
✓ current as of July 2026
Find cases:
SyfertCases citing this section
WI-LEGdocs.legis.wisconsin.gov
JustiaChapter on Justia
CornellLII Search
CasesGoogle Scholar
968.02(1)(1) Except as otherwise provided in this section, a complaint charging a person with an offense shall be issued only by a district attorney of the county where the crime is alleged to have been committed. A complaint is issued when it is approved for filing by the district attorney. The approval shall be in the form of a written endorsement on the complaint or the electronic signature of the district attorney as provided in s. 801.18 (12).
968.02(2)(2) After a complaint has been issued, it shall be filed with a judge and either a warrant or summons shall be issued or the complaint shall be dismissed, pursuant to s. 968.03. Such filing commences the action.
968.02(3)(3) If a district attorney refuses or is unavailable to issue a complaint, a circuit judge may permit the filing of a complaint, if the judge finds there is probable cause to believe that the person to be charged has committed an offense after conducting a hearing. If the district attorney has refused to issue a complaint, he or she shall be informed of the hearing and may attend. The hearing shall be ex parte without the right of cross-examination.
968.02(4)(4) If the alleged violator under s. 948.55 (2) or 948.60 (2) (c) is or was the parent or guardian of a child who is injured or dies as a result of an accidental shooting, the district attorney may consider, among other factors, the impact of the injury or death on the alleged violator when deciding whether to issue a complaint regarding the alleged violation. This subsection does not restrict the factors that a district attorney may consider in deciding whether to issue a complaint regarding any alleged violation.
968.02 HistoryHistory: 1977 c. 449; 1991 a. 139; 1999 a. 185; Sup. Ct. Order No. 14-03, 2016 WI 29, 368 Wis. 2d xiii.
968.02 AnnotationA judge abused the judge’s discretion in barring the public from a hearing under sub. (3). State ex rel. Newspapers, Inc. v. Circuit Court, 124 Wis. 2d 499, 370 N.W.2d 209 (1985).
968.02 AnnotationA judge’s order under sub. (3) is not appealable. Gavcus v. Maroney, 127 Wis. 2d 69, 377 N.W.2d 201 (Ct. App. 1985).
968.02 AnnotationSub. (3) does not give a trial court authority to order a district attorney to file different or additional charges than those already brought. State ex rel. Unnamed Petitioner v. Circuit Court, 157 Wis. 2d 157, 458 N.W.2d 575 (Ct. App. 1990).
968.02 AnnotationSub. (3) does not confer upon the person who is the subject of a proposed prosecution the right to participate in any way or to obtain reconsideration of the ultimate decision reached. A defendant named in a complaint issued pursuant to sub. (3) has the same opportunity to challenge in circuit court the legal and factual sufficiency of that complaint as a defendant named in a complaint issued pursuant to sub. (1). State ex rel. Kalal v. Circuit Court, 2004 WI 58, 271 Wis. 2d 633, 681 N.W.2d 110, 02-2490.
968.02 AnnotationA refusal to issue a complaint under sub. (3) may be proven directly or circumstantially, by inferences reasonably drawn from words and conduct. The refusal can be open and explicit or indirect and inferred. Inaction alone will ordinarily not support an inference of a refusal to prosecute. State ex rel. Kalal v. Circuit Court, 2004 WI 58, 271 Wis. 2d 633, 681 N.W.2d 110, 02-2490.
968.02 AnnotationForms similar to the uniform traffic citation that are used as complaints to initiate criminal prosecutions in certain misdemeanor cases are sufficient to confer subject matter jurisdiction on the court, but any conviction that results from their use in the manner described in the opinion is null and void. Discussing this section and ss. 968.01, 968.04, 971.01, 971.04, 971.05, and 971.08. 63 Atty. Gen. 540.
968.02 AnnotationJudicial Scrutiny of Prosecutorial Discretion in the Decision Not to File a Complaint. Becker. 71 MLR 749 (1988).
Notes of Decisions
Cited in 46
cases (7 in the last 5 years), 1977–2026 · leading case: State Ex Rel. Kalal v. Circuit Court for Dane Cnty., 2004 WI 58 (Wis. 2004).
State Ex Rel. Kalal v. Circuit Court for Dane Cnty., 2004 WI 58 (Wis. 2004). “Subsection (3) of Wis. Stat. § 968.02 provides that "[i]f a district attorney refuses or is unavailable to issue a complaint, a circuit judge may permit the filing of a complaint, if the judge finds there is probable cause to believe that the person *643 to be charged has…”
State v. Unnamed, 441 N.W.2d 696 (Wis. 1989). “(3) provides a check upon the district attorney who fails to authorize the issuance of a complaint, when one should have been issued, by providing for a judge to authorize its issuance.”
State Ex Rel. Unnamed v. Connors, 401 N.W.2d 782 (Wis. 1987). “This opinion considers whether sec. 968.02(3), Stats., [1] which authorizes a circuit judge, upon a finding of probable cause, to permit the filing of a criminal complaint if the district attorney refuses or is unavailable to issue a complaint, is unconstitutional because it…”
State v. Jennings, 2003 WI 10 (Wis. 2003). “" Similarly, under Wis. Stat. § 968.02 (2), "[a]fter a complaint has been issued, it shall be filed with a judge.”
State Ex Rel. Two Unnamed v. Peterson, 2015 WI 85 (Wis. 2015). “"To the extent that a circuit judge's decision to permit the filing of a complaint under Wis. Stat. § 968.02 (3) is legally or factually unsupported, the defendant .”
State v. Cummings, 546 N.W.2d 406 (Wis. 1996). “There are four issues regarding the John Doe proceeding before this court: (1) does a John Doe judge have the power to issue a search warrant; (2) does a John Doe judge have the power to seal a search warrant; (3) may a district attorney, pursuant to Wis. Stat. § 968.02…”
State Ex Rel. Newspapers, Inc. v. Circuit Court for Milwaukee Cnty., 370 N.W.2d 209 (Wis. 1985). “I agree with the majority that a presumption of openness attaches to a hearing under sec. 968.02, Stats. Open government is a significant and powerful check on the potential for abuse of power by any branch of government, including the judiciary.”
State v. Conger, 2010 WI 56 (Wis. 2010). “Wis. Stat. Ann. § 968.02 , Comments—L. 1969, c.”
State v. Folk, 342 N.W.2d 761 (Wis. Ct. App. 1983). “Thus, the background of sec. 968.02, Stats., suggests that the legislature had only criminal complaints in mind, and not traffic citations, when it created sec.”
Leeke v. Timmerman, 454 U.S. 83 (1982). “§ 23A-2-2 (1979); Wis. Stat. § 968.02 (3) (1977).”
State v. Perez, 2001 WI 79 (Wis. 2001). “The majority notes that "[t]he forfeiture statute does not distinguish between `good' lawbreakers and `bad' ones.”
Guzman v. St. Francis Hosp., Inc., 2001 WI App 21 (Wis. Ct. App. 2000). “§ 968.02(3)], without question, authorizes the complete usurpation or substitution of an important executive function by the judiciary, the statute is unconstitutional beyond a reasonable doubt.”
— Wis. Stat. § 968.02(1) — 9 cases
State Ex Rel. Kalal v. Circuit Court for Dane Cnty., 2004 WI 58 (Wis. 2004). “Subsection (3) of Wis. Stat. § 968.02 provides that "[i]f a district attorney refuses or is unavailable to issue a complaint, a circuit judge may permit the filing of a complaint, if the judge finds there is probable cause to believe that the person *643 to be charged has…”
Thompson v. Cnty. of Rock, 648 F. Supp. 861 (W.D. Wis. 1986).
State v. Folk, 342 N.W.2d 761 (Wis. Ct. App. 1983). “Thus, the background of sec. 968.02, Stats., suggests that the legislature had only criminal complaints in mind, and not traffic citations, when it created sec.”
State v. McKinney, 483 N.W.2d 595 (Wis. Ct. App. 1992).
State v. Gilmore, 535 N.W.2d 21 (Wis. Ct. App. 1995).
— Wis. Stat. § 968.02(2) — 7 cases
State v. Unnamed, 441 N.W.2d 696 (Wis. 1989). “(3) provides a check upon the district attorney who fails to authorize the issuance of a complaint, when one should have been issued, by providing for a judge to authorize its issuance.”
State v. Jennings, 2003 WI 10 (Wis. 2003). “" Similarly, under Wis. Stat. § 968.02 (2), "[a]fter a complaint has been issued, it shall be filed with a judge.”
State v. Brady, 388 N.W.2d 151 (Wis. 1986).
Thompson v. Cnty. of Rock, 648 F. Supp. 861 (W.D. Wis. 1986).
State v. Avery, 259 N.W.2d 63 (Wis. 1977).
— Wis. Stat. § 968.02(3) — 17 cases
State Ex Rel. Unnamed v. Connors, 401 N.W.2d 782 (Wis. 1987). “This opinion considers whether sec. 968.02(3), Stats., [1] which authorizes a circuit judge, upon a finding of probable cause, to permit the filing of a criminal complaint if the district attorney refuses or is unavailable to issue a complaint, is unconstitutional because it…”
State Ex Rel. Kalal v. Circuit Court for Dane Cnty., 2004 WI 58 (Wis. 2004). “Subsection (3) of Wis. Stat. § 968.02 provides that "[i]f a district attorney refuses or is unavailable to issue a complaint, a circuit judge may permit the filing of a complaint, if the judge finds there is probable cause to believe that the person *643 to be charged has…”
State v. Unnamed, 441 N.W.2d 696 (Wis. 1989). “(3) provides a check upon the district attorney who fails to authorize the issuance of a complaint, when one should have been issued, by providing for a judge to authorize its issuance.”
State Ex Rel. Newspapers, Inc. v. Circuit Court for Milwaukee Cnty., 370 N.W.2d 209 (Wis. 1985). “I agree with the majority that a presumption of openness attaches to a hearing under sec. 968.02, Stats. Open government is a significant and powerful check on the potential for abuse of power by any branch of government, including the judiciary.”
Guzman v. St. Francis Hosp., Inc., 2001 WI App 21 (Wis. Ct. App. 2000). “§ 968.02(3)], without question, authorizes the complete usurpation or substitution of an important executive function by the judiciary, the statute is unconstitutional beyond a reasonable doubt.”
Annotations are extracted automatically from the opinions in the
Syfert caselaw corpus and ranked by authority, recency, and
treatment. Dots show Syfertize treatment of the citing case itself.