Special prosecutor weighing whether to criminally charge Outagamie County judge

A special prosecutor expects to decide in early September whether to take the extraordinary step of filing criminal charges against an Appleton-area judge over his actions from the bench.

The special prosecutor, La Crosse County District Attorney Tim Gruenke, declined further comment to Wisconsin Watch on his investigation of Outagamie County Circuit Court Judge Mark McGinnis.

Wisconsin Watch reported in January 2024 that McGinnis’ actions were the focus of a Wisconsin Department of Justice criminal investigation that had been ongoing for more than a year. The March 2024 appointment of the special prosecutor has not previously been reported.

McGinnis had jailed cement contractor Tyler Barth in December 2021 over a private dispute that was not a matter before the court. 

When Barth appeared before McGinnis for a probation review hearing, on a felony conviction for fleeing an officer, McGinnis accused him of stealing several thousand dollars from a cement contracting customer.

The customer worked in the same courthouse for another Outagamie County judge. 

Even though Barth had not been arrested or charged with theft, McGinnis ordered him jailed for 90 days, saying he would release Barth as soon as he repaid the customer.

“I think it’s definitely crazy, just lock a guy up with no charge, no pending charge, no nothing and then get away with it,” Barth told Wisconsin Watch in a recent interview.

The 32-year-old Fremont resident said he spent three days in jail before Fond du Lac attorney Kirk Evenson intervened and persuaded McGinnis to release him.

“I just don’t think the guy should be able to do this to anyone else,” Barth said.

Barth later settled the money dispute with his customer. An attorney advised him it would be difficult to win civil damages against McGinnis because of judicial immunity, but Barth is waiting to see what happens with the criminal case before deciding whether to pursue a federal civil rights lawsuit.

McGinnis did not reply to requests seeking comment.

McGinnis was first elected in 2005, at age 34, and has been re-elected each time, without opposition. Most recently he was re-elected in April 2023 for a term that runs through July 2029.

Wisconsin judgeships are nonpartisan.

Gruenke, a Democrat, is a 30-year prosecutor, including the past 18 years as the La Crosse County district attorney. 

Gruenke was appointed as special prosecutor by the Outagamie County Circuit Court in March 2024 after Outagamie County District Attorney Melinda Tempelis determined it would be a conflict of interest for her office to handle the case.

Legal experts agree judges have unparalleled latitude for taking away someone’s liberty, especially if the person is on probation. But invoking criminal penalties to compel action in an unrelated dispute arguably goes beyond a judge’s lawful authority.

Judicial historian Joseph Ranney, an adjunct professor at Marquette University Law School, said he is not aware of any instance in which a sitting Wisconsin judge was charged with a crime for actions taken as a judge.

Jeremiah Van Hecke, executive director of the Wisconsin Judicial Commission, also said he was not aware of such a case.

Since 1978, the Judicial Commission has been the body responsible for investigating complaints against judges, which are then referred to the state Supreme Court. The Supreme Court has published 31 decisions that carried some form of punishment, often a reprimand, including several for actions taken from the bench.

In 1980, Milwaukee County Judge Christ Seraphim was suspended for three years without pay for a number of violations, including “retaliatory use of bail.” In 1985, retaliatory use of bail was one of the charges brought against Rusk County Judge Donald Sterlinske, who was ordered removed from office even though he had resigned.

Former state Supreme Court Justice Michael Gableman has agreed to a three-year suspension of his law license, but is awaiting formal action in that case. It centers on his work as a special counsel investigating the 2020 presidential election, not his work as a judge.

Marquette University law professor Chad Oldfather said, though it’s unlikely, McGinnis could be charged with misconduct in public office. That state law prohibits, among other things, officials from knowingly exceeding their lawful authority. 

But a referral to the Judicial Commission seems much more likely than a criminal charge, Oldfather said.

The commission could also initiate an investigation on its own.

A special prosecutor, Sauk County District Attorney Patricia Barrett, decided not to file criminal charges following a 2011 incident in which state Supreme Court Justice Ann Walsh Bradley accused Justice David Prosser of choking her during an argument in a justice’s office.  

The Judicial Commission recommended that the Supreme Court discipline Prosser for misconduct, but the court took no action for lack of a quorum of four of the seven justices. Three justices recused themselves because they were witnesses to the incident. 

Any matters before the Judicial Commission are generally confidential. They become public only if the commission files a complaint against a judge or if the judge being investigated waives confidentiality.

There have been criminal charges filed in connection with a judge’s role as a judge, though they were not in response to official actions taken by a judge. 

In April, federal prosecutors charged Milwaukee County Circuit Court Judge Hannah Dugan with two crimes for allegedly obstructing Immigration and Customs Enforcement from arresting a criminal defendant in her courtroom. Her case is pending.

In 2019, a Winnebago County jury found Leonard Kachinsky, a municipal court judge, guilty of misdemeanor violation of a harassment restraining order involving his court manager.

This article first appeared on Wisconsin Watch and is republished here under a Creative Commons Attribution-NoDerivatives 4.0 International License.