MADISON, Wis. (CN) — An appointee to the board that controls Wisconsin’s natural resource management policy who refused to leave office when his term expired cannot be removed from his seat without cause or confirmation of a new appointee, the Wisconsin Supreme Court decided on Wednesday.
Frederick Prehn, a dentist and cranberry marsh owner from Wausau, Wisconsin, was appointed to the Wisconsin Department of Natural Resources’ Natural Resources Board by former Republican Governor Scott Walker in May 2015. His six-year term expired in May 2021, but he has refused to step down so the appointee of Democratic Governor Tony Evers, Ashland-based natural resources teacher Sandra Naas, can assume the role.
The seven-member NRB sets policy for the DNR and, under normal circumstances, its members are appointed by the governor and approved by the Wisconsin Senate for staggered six-year terms.
But there has been no orderly transition of officeholders this time around. Republicans who control the state Senate have refused to give Naas so much as a preliminary hearing in her appointment process, and Prehn and his lawyers have cited a 1964 state supreme court decision they claim does not require him to step down until his replacement is confirmed by the Senate.
Badger State Republicans have a track record of sandbagging Evers' appointees. Politifact, supported by stats from Wisconsin's Legislative Reference Bureau, tallied more than 150 last September.
Prehn has reliably advocated for environmental issues important to conservatives, such as resisting some PFAS regulations and pushing a pro-hunter agenda, including by calling for controversially high wolf hunt kill quotas before the most recent gray wolf hunting and trapping season was scrapped by a Madison judge in the fall.
Critics have cried foul over the tactics used by Prehn and Republican allies to keep him in office, calling it a cynically partisan ploy to maintain a 4-3 majority of conservative-leaning Walker appointees on the NRB.
Wisconsin Attorney General Josh Kaul, a Democrat, tried suing Prehn in Dane County Circuit Court to boot him out of office but Judge Valerie Bailey-Rihn dismissed the petition in September, though she made clear she was bound by precedent and was “not condoning Prehn’s actions.”
The GOP-majority Wisconsin Legislature, meanwhile, intervened in Kaul’s lawsuit and, along with some lobbyists, have given the appearance of supporting Prehn and his cause, including through some of Prehn’s texts that have come to light in another lawsuit against him.
On a petition for bypass, the Wisconsin Supreme Court took up Kaul’s lawsuit and heard arguments in March, during which Prehn’s rationale seemed sound to the court’s conservative majority and absurd to its liberal minority.
That divide extended to Wednesday’s 4-3 decision written by Chief Justice Annette Ziegler, who echoed Prehn’s lawyers' arguments that “by the plain text of the statute, expiration of a term for an appointed office is not included as an event causing a vacancy,” making appointed offices distinct from how elected offices work, where expiration of a term does, in fact, create a vacancy.
Until the Senate decides to act on Evers’ appointment, the governor can only remove Prehn for cause, a conclusion that “complies with the plain language of the Wisconsin statutes and does not raise constitutional concerns,” Ziegler said, dismissing Kaul’s complaint with prejudice.
According to the court's ruling, the relevant statutory scheme defines "cause" as "inefficiency, neglect of duty, official misconduct, or malfeasance in office," and it says a vacancy is created only if an incumbent dies, resigns or is removed from office.
The chief justice further explained that, unlike the powers the president has under the U.S. Constitution, the Wisconsin Constitution has more limits on the governor’s ability to control who holds public offices and affords a stronger role for the Legislature in appointment decisions.
“As has been true since the enactment of the Wisconsin Constitution, the governor may of course work with the Senate to obtain a mutually satisfactory outcome on appointments and selections for administrative offices,” Ziegler said, implying that Evers could always pick someone else for the job if the Senate is dragging its feet on his appointment while Prehn’s 13-month holdover continues.
Evers took umbrage with the court’s decision on Wednesday, issuing a statement accusing the high court and the state Republican Party of disrespecting the basic democratic function of the peaceful transfer of power and denying his qualified appointees the opportunity to serve the state out of partisan gamesmanship.
“Today’s decision continues to underscore the erosion of democratic institutions at the hands of Republicans in this state,” Evers said. “It’s wrongheaded, it’s shortsighted, and it’s politics at its most dangerous.”
A statement from Kaul lamented that the NRB is still controlled by Walker appointees nearly four years after Evers was elected to replace him. The attorney general said that "antidemocratic situation" takes power from voters and puts it in the hands of unelected appointees from an administration the voters rejected.
A dissent from the supreme court’s liberal wing, penned by Justice Rebecca Dallet and joined by Justices Jill Karofsky and Ann Walsh Bradley, voiced similar outrage.
“The majority’s absurd holding allows Prehn’s six-year term on the Board of Natural Resources—which expired over a year ago—to last for as long as Prehn wants it to, so long as he refuses to leave and the Senate doesn’t confirm a successor nominated by the governor,” Dallet said, calling the majority’s conclusions “nonsensical.”
Far removed from maintaining the status quo, “the majority’s decision…steers our state’s government directly into disorder and chaos, threatening the fragile separation of powers central to its functions,” Dallet said.
Ultimately, Dallet said, “allowing Prehn to continue serving in office indefinitely makes him the final authority on whether he remains in office,” not the Legislature, and “one unelected official should not be able to dictate his term in office over the will of the people’s elected representatives.”
Some of this absurdity could be avoided, Dallet proposed, if Prehn’s for-cause removal protections ended when his fixed term ended, contrary to the majority’s position that Prehn still has those protections while he holds over in his seat, perhaps indefinitely.
Ziegler was joined in her majority opinion by Justices Brian Hagedorn, Rebecca Grassl Bradley and Patience Roggensack.
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