A special prosecutor has been appointed to review whether Outagamie County Circuit Court Judge Mark McGinnis should face criminal charges for actions taken from the bench in December 2021, when he jailed a cement contractor over a private money dispute tied to a courthouse employee. The prosecutor, Tim Gruenke, who serves as the district attorney in La Crosse County, said he plans to decide around Labor Day whether to pursue charges, a step considered extraordinary and unlikely by many legal experts.
The investigation centers on McGinnis’s decision to jail Tyler Barth for 90 days during a probation review hearing connected to Barth’s felony conviction for fleeing an officer. Barth had been told he would be released only after he repaid a customer, despite not being charged with theft at the time. Barth, a Fremont resident who works as a cement contractor, says he spent three days in jail before an attorney intervened to secure his release. The dispute concerned money owed to a customer who also worked in the courthouse.
Researchers and advocates say judges have broad latitude to detain individuals on probation, but using criminal penalties to compel action in an unrelated private dispute may exceed a judge’s lawful authority. The investigation also entails discussions about whether a referral to the Judicial Commission, the body that handles complaints against judges, is more appropriate than moving forward with criminal charges. Since 1978, the commission has reviewed complaints and referred matters to the state Supreme Court, which ultimately imposes penalties.
A number of experts and historians note that criminal charges against a sitting judge for actions taken while on the bench are exceedingly rare in Wisconsin. While a criminal charge is possible in theory, precedent for such action is limited, and many cases end up at the Judicial Commission for discipline or at the Supreme Court for sanctions.
The case has drawn attention to how judges balance authority with accountability, especially in matters involving probation and civil disputes. If Grunenke pursues charges, it would be a notable departure from recent practice and would place McGinnis’s actions under a much tighter criminal lens. If not, the process could still yield a reprimand or other discipline through the Judicial Commission.
McGinnis, first elected in 2005 and most recently reelected in 2023 for a term through 2029, has not publicly commented on the matter. Wisconsin judges are elected in nonpartisan races.
What to watch next: The timing of Gruenke’s decision around Labor Day, the potential for a referral to the Judicial Commission, and any new details that might emerge about the circumstances surrounding Barth’s jail time and the private money dispute.
Summary: An ongoing investigation into a Wisconsin judge’s decision to jail a private-money defendant during a probation review could lead to criminal charges or disciplinary action, highlighting the tension between judicial discretion and accountability. A formal decision is anticipated in the coming weeks, with public interest focused on how the judiciary addresses potential overreach and preserves constitutional protections.
Additional context and potential implications:
– The process underscores the checks and balances in Wisconsin’s judicial system, with multiple bodies that can respond to alleged misconduct.
– Possible outcomes range from no action to a discipline finding by the Judicial Commission, or, in an extraordinary scenario, criminal charges.
– The case could influence future discussions about how judges handle private disputes that touch on criminal or civil matters outside of a formal case.
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