Wis. Stat. » CHAPTER 978 — DISTRICT ATTORNEYS
Wisconsin Statutes

Wis. Stat. § 978.045 (2026)

Special prosecutors

✓ current as of July 2026
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978.045978.045 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) 
978.045(1r)(am)(am) 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.
978.045(1r)(bm)(bm) 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, in proceedings under ch. 980, or in investigations. Except as provided under par. (bp), the judge may appoint an attorney as a special prosecutor only if the judge or the requesting district attorney submits an affidavit to the department of administration attesting that any of the following conditions exists:
978.045(1r)(bm)1.1. There is no district attorney for the county.
978.045(1r)(bm)2.2. The district attorney is absent from the county.
978.045(1r)(bm)2m.2m. The district attorney, or a deputy or assistant district attorney for the district attorney office, is on parental leave.
978.045(1r)(bm)3.3. 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)(bm)4.4. The district attorney is near of kin to the party to be tried on a criminal charge.
978.045(1r)(bm)5.5. The district attorney is unable to attend to his or her duties due to a health issue or has a mental incapacity that impairs his or her ability to substantially perform his or her duties.
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978.045(1r)(bm)6.6. The district attorney is serving in the U.S. armed forces.
978.045(1r)(bm)7.7. The district attorney stands charged with a crime and the governor has not acted under s. 17.11.
978.045(1r)(bm)8.8. The district attorney determines that a conflict of interest exists regarding the district attorney or the district attorney staff.
978.045(1r)(bp)(bp) The judge may appoint an attorney as a special prosecutor to assist the district attorney in counties with a population of less than 45,000 if the department of administration certifies that the county has a significant case backlog and if a petition for such an appointment is approved by the affected county board. This paragraph does not apply after December 31, 2019.
978.045(1r)(cm)(cm) The judge may not appoint an attorney as a special prosecutor to assist the district attorney in John Doe proceedings under s. 968.26 unless a condition under par. (bm) 1. to 8. exists, par. (bp) applies, or the 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. This paragraph does not prohibit assistance authorized by s. 978.05 (8).
978.045(2)(2) If the department of administration approves the appointment of a special prosecutor under sub. (1r), the court shall fix the amount of compensation for the attorney appointed according to the rates specified in s. 977.08 (4m) (b). The department of administration shall pay the compensation ordered by the court from the appropriation under s. 20.475 (1) (d). The court, district attorney, and the special prosecutor shall provide any information regarding a payment of compensation that the department requests. Any payment under this subsection earns interest on the balance due from the 121st day after receipt of a properly completed invoice or receipt and acceptance of the property or service under the order or contract, whichever is later, at the rate specified in s. 71.82 (1) (a) compounded monthly.
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 HistoryHistory: 1989 a. 117; 1991 a. 39, 188; 1993 a. 16; 1995 a. 27; 1997 a. 27; 2005 a. 434; 2009 a. 24; 2015 a. 55, 64; 2017 a. 59, 366.
978.045 AnnotationA defect in an appointment under sub. (1r) that was not central to the statutory scheme of this section 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 AnnotationA 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.
978.045 AnnotationThe authority of someone who is appointed as a special prosecutor ends at the point in time when a court makes a legal ruling that the appointment is invalid and orders as a matter of law that the individual’s authority is terminated. State ex rel. Three Unnamed Petitioners v. Peterson, 2015 WI 103, 365 Wis. 2d 351, 875 N.W.2d 49, 13-2504.
Notes of Decisions
Cited in 22 cases (3 in the last 5 years), 1995–2026 · leading case: State Ex Rel. Two Unnamed v. Peterson, 2015 WI 85 (Wis. 2015).
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State Ex Rel. Two Unnamed v. Peterson, 2015 WI 85 (Wis. 2015). · cites it 118× “the district attorney of one of the counties; (4) Whether a John Doe judge violated a plain legal duty by appointing a special prosecutor to perform the functions of a district attorney in multiple counties in a John Doe proceeding when (a) the district attorney in each county…”
State Ex Rel. Three Unnamed v. Peterson, 2015 WI 103 (Wis. 2015). · cites it 14× “Wis. Stat. § 978.045 (cm) ("The judge may not appoint an attorney as a special prosecutor to assist the district attorney in John Doe proceedings under s.”
State v. Carlson, 2002 WI App 44 (Wis. Ct. App. 2001). · cites it 14× “Carlson is incorrect. He calls to our attention only a part of the statute and, in so doing, he ignores that a complete reading gives the court almost unfettered authority to appoint a special prosecutor to perform "the duties of the district attorney.”
State Ex Rel. Friedrich v. Circuit Court for Dane Cnty., 531 N.W.2d 32 (Wis. 1995). · cites it 4× “See also sec. 978.045, Stats. 1989-90. Thereafter the legislature enacted two provisions relating to compensation for court-appointed special prosecutors.”
State v. Bolling, 587 N.W.2d 908 (Wis. Ct. App. 1998). · cites it 25× “To assist us in this determination, we examine the statutory scheme set out in § 978.045. There are three subsections under which a practicing attorney may be appointed as a special prosecutor: (1g), (1r) and (3)(a).”
State v. Bollig, 587 N.W.2d 908 (Wis. Ct. App. 1998). · cites it 36× “7 The subsections of § 978.045, Stats., control the State's costs in regard to using special prosecutors, either by requiring prior *571 DOA approval and a subsequent court order, as in § 978.”
State v. Dylan S., 2012 WI App 25 (Wis. 2012). · cites it 4× “See Wis. Stat. § 978.045 . As in Dylan's case, the circuit court granted the district attorney's request to appoint the city attorney as a special prosecutor for the purpose of pursuing sanctions against Renee.”
State v. Alan S. Johnson, 2020 WI App 73 (Wis. Ct. App. 2020). · cites it 2× “¶17 On appeal, this court affirmed, concluding that only those attorneys authorized by law to prosecute the charged crime on behalf of the State, the district attorney or an appointed special prosecutor, and of course counsel for each defendant, may take positions before the…”
Three Unnamed v. Gregory A. Peterson (Wis. 2015). · cites it 51× “the district attorney of one of the counties; (4) Whether a John Doe judge violated a plain legal duty by appointing a special prosecutor to perform the functions of a district attorney in multiple counties in a John Doe proceeding when (a) the district attorney in each county…”
Francis D. Schmitz v. Honorable Gregory A. Peterson (Wis. 2015). · cites it 51× “the district attorney of one of the counties; (4) Whether a John Doe judge violated a plain legal duty by appointing a special prosecutor to perform the functions of a district attorney in multiple counties in a John Doe proceeding when (a) the district attorney in each county…”
State v. Dustin J. Vandergalien, 2024 WI App 4 (Wis. Ct. App. 2023). “Rather, VanderGalien cites the Wisconsin statute regarding special prosecutors, which provides that a “judge may appoint an attorney as a special prosecutor only if the judge or the requesting district attorney submits an affidavit to the department of administration attesting…”
Jessica J. L. v. Olson, 589 N.W.2d 660 (Wis. Ct. App. 1998). · cites it 2× “Furthermore, the only attorneys who may prosecute a sexual assault on behalf of the State in circuit court are a district attorney or a special prosecutor appointed pursuant to § 978.045, Stats. State v. Braun, 152 Wis.”
Show all 22 citing cases →
— Wis. Stat. § 978.045(1g) — 1 case
State v. Bolling, 587 N.W.2d 908 (Wis. Ct. App. 1998). “To assist us in this determination, we examine the statutory scheme set out in § 978.045. There are three subsections under which a practicing attorney may be appointed as a special prosecutor: (1g), (1r) and (3)(a).”
— Wis. Stat. § 978.045(1r) — 5 cases
State Ex Rel. Two Unnamed v. Peterson, 2015 WI 85 (Wis. 2015). “the district attorney of one of the counties; (4) Whether a John Doe judge violated a plain legal duty by appointing a special prosecutor to perform the functions of a district attorney in multiple counties in a John Doe proceeding when (a) the district attorney in each county…”
State v. Bolling, 587 N.W.2d 908 (Wis. Ct. App. 1998). “To assist us in this determination, we examine the statutory scheme set out in § 978.045. There are three subsections under which a practicing attorney may be appointed as a special prosecutor: (1g), (1r) and (3)(a).”
State v. Bollig, 587 N.W.2d 908 (Wis. Ct. App. 1998). “7 The subsections of § 978.045, Stats., control the State's costs in regard to using special prosecutors, either by requiring prior *571 DOA approval and a subsequent court order, as in § 978.”
Three Unnamed v. Gregory A. Peterson (Wis. 2015). “the district attorney of one of the counties; (4) Whether a John Doe judge violated a plain legal duty by appointing a special prosecutor to perform the functions of a district attorney in multiple counties in a John Doe proceeding when (a) the district attorney in each county…”
Francis D. Schmitz v. Honorable Gregory A. Peterson (Wis. 2015). “the district attorney of one of the counties; (4) Whether a John Doe judge violated a plain legal duty by appointing a special prosecutor to perform the functions of a district attorney in multiple counties in a John Doe proceeding when (a) the district attorney in each county…”
— Wis. Stat. § 978.045(1r)(bm) — 2 cases
State v. Dustin J. Vandergalien, 2024 WI App 4 (Wis. Ct. App. 2023). “Rather, VanderGalien cites the Wisconsin statute regarding special prosecutors, which provides that a “judge may appoint an attorney as a special prosecutor only if the judge or the requesting district attorney submits an affidavit to the department of administration attesting…”
Leanne Wied v. Scott Wheeler (Wis. Ct. App. 2025).
— Wis. Stat. § 978.045(2)(a) — 1 case
State Ex Rel. Friedrich v. Circuit Court for Dane Cnty., 531 N.W.2d 32 (Wis. 1995). “See also sec. 978.045, Stats. 1989-90. Thereafter the legislature enacted two provisions relating to compensation for court-appointed special prosecutors.”
— Wis. Stat. § 978.045(3)(a) — 2 cases
State v. Bollig, 587 N.W.2d 908 (Wis. Ct. App. 1998). “7 The subsections of § 978.045, Stats., control the State's costs in regard to using special prosecutors, either by requiring prior *571 DOA approval and a subsequent court order, as in § 978.”
State v. Bolling, 587 N.W.2d 908 (Wis. Ct. App. 1998). “To assist us in this determination, we examine the statutory scheme set out in § 978.045. There are three subsections under which a practicing attorney may be appointed as a special prosecutor: (1g), (1r) and (3)(a).”
— Wis. Stat. § 978.045(lg) — 2 cases
State Ex Rel. Two Unnamed v. Peterson, 2015 WI 85 (Wis. 2015). “the district attorney of one of the counties; (4) Whether a John Doe judge violated a plain legal duty by appointing a special prosecutor to perform the functions of a district attorney in multiple counties in a John Doe proceeding when (a) the district attorney in each county…”
State v. Bollig, 587 N.W.2d 908 (Wis. Ct. App. 1998). “7 The subsections of § 978.045, Stats., control the State's costs in regard to using special prosecutors, either by requiring prior *571 DOA approval and a subsequent court order, as in § 978.”
— Wis. Stat. § 978.045(lr) — 2 cases
State v. Carlson, 2002 WI App 44 (Wis. Ct. App. 2001). “Carlson is incorrect. He calls to our attention only a part of the statute and, in so doing, he ignores that a complete reading gives the court almost unfettered authority to appoint a special prosecutor to perform "the duties of the district attorney.”
State v. Bollig, 587 N.W.2d 908 (Wis. Ct. App. 1998). “7 The subsections of § 978.045, Stats., control the State's costs in regard to using special prosecutors, either by requiring prior *571 DOA approval and a subsequent court order, as in § 978.”
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.