Wisconsin judge will resign, won’t face criminal charges for jailing cement contractor

Editor’s note: this article comes courtesy of Wisconsin Watch – view the original article here.

An Appleton-area judge won’t face criminal charges for jailing a man during a probation hearing over an unrelated financial dispute, but he will resign in February before his term expires, a special prosecutor assigned to the case said Thursday.

Outagamie County Judge Mark McGinnis had jailed cement contractor Tyler Barth in December 2021 over a private money dispute that was not a matter before the court. McGinnis accused Barth of theft, but Barth had not been arrested or charged with a crime. Wisconsin Watch first reported the case in January 2024.

La Crosse County District Attorney Tim Gruenke was appointed as a special prosecutor in the case in March 2024, more than a year after the Wisconsin Department of Justice opened a criminal investigation.

“That’s crazy, the fact that nobody’s going to prosecute him for it, that’s insane,” Barth said in an interview Thursday. “If he’s retiring, I guess that’s good, he can’t do that to nobody else,” but “it’s just bullshit, in my opinion.”

Gruenke said several factors led him not to charge: McGinnis had acknowledged through his attorney that he could have handled the matter differently; McGinnis’ decision to retire; and concerns about the separation of powers between the executive and judicial branches of government over charging a judge for a “mistake” made on the bench.

“This isn’t a case to test those parameters, especially since he acknowledged that he should have done it differently,” Gruenke said in an interview.

Gruenke said McGinnis informed Gov. Tony Evers on Wednesday of his retirement effective Feb. 1, which McGinnis indicated would follow his 55th birthday and make him eligible for retirement benefits.

McGinnis and his attorney Michelle Jacobs, the former top federal prosecutor in Milwaukee, did not reply immediately to calls and emails requesting comment.

Barth had 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’s spouse 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.

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

Barth said Thursday he would seek an attorney in hopes of filing a lawsuit.

McGinnis was first elected in 2005, at age 34, and has been re-elected every six years 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.

Wisconsin legal experts said they weren’t aware of any instance in which a sitting Wisconsin judge was charged with a crime for actions taken as a judge.

Experts also had said they did not expect criminal charges against McGinnis, but that a referral to the state Judicial Commission would be possible. 

With McGinnis’ announced retirement, it’s unclear if the commission, which could take up the matter on its own, would do so.

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.

Wisconsin Watch is a nonprofit, nonpartisan newsroom. Subscribe to our newsletters for original stories and our Friday news roundup.

This story was produced as part of the NEW (Northeast Wisconsin) News Lab, a consortium of six news outlets.