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Wisconsin justices wrangle with case of appointed official refusing to leave his seat

Though his term expired last year, a member of the state natural resources board refuses to leave his appointed office because he claims his seat is not technically vacant.

MADISON, Wis. (CN) — The Wisconsin Supreme Court on Thursday heard arguments in the case of an appointed officeholder who refuses to leave his seat even though his term has expired, a decision that could have lasting effects on environmental policy in the state and the extent of the governor’s appointment powers.

The tenure of Wisconsin Natural Resources Board member and onetime chair Frederick Prehn, appointed by former Republican Governor Scott Walker in 2015, has sparked controversy and raised accusations of partisan chicanery. The fracas stems from Prehn’s refusal to step down from the NRB when his six-year term ended in May 2021 so that the appointee of Democratic Governor Tony Evers, Ashland-based natural resources teacher Sandra Naas, could assume the role.

Prehn, a dentist and cranberry marsh owner from Wausau, has cited a 1964 state supreme court decision which he and his lawyers assert does not require him to step down until his replacement is confirmed by the Wisconsin Senate.

The seven-member NRB sets policy for the Wisconsin Department of Natural Resources. Members are appointed by the governor and approved by the Senate for six-year terms.

The Senate, controlled by Republicans, has not acted on Naas’ referral last summer to a Republican-majority organization committee after Evers first nominated her in April.

Prehn has reliably advocated for environmental management issues important to conservatives, such as resisting some PFAS regulations and pushing a pro-hunter agenda, including by arguing 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 called Prehn’s refusal to leave his post a cynical ploy to keep a 4-3 majority of conservative-leaning Walker appointees on the NRB that regrettably brings partisan politics into what is supposed to be a nonpartisan government agency.

Wisconsin Attorney General Josh Kaul, a Democrat, sued Prehn in Dane County Circuit Court in August of last year to remove him, asking Judge Valerie Bailey-Rihn to force Prehn out of his seat because he has no right to remain. Bailey-Rihn dismissed the petition in September, though she made clear she was bound by precedent to do so and was “not condoning Prehn’s actions.”

The GOP-majority Wisconsin Legislature intervened in Kaul’s lawsuit, and legislative Republicans and some lobbyists have given the appearance of supporting Prehn, including through some of Prehn’s texts that have come to light in another lawsuit against him.

Prehn is no longer the chair of the NRB since fellow Walker appointee Greg Kazmierski was elected to take his place through a secret vote by the board members in January, though he remains a regular board member.

Thursday’s arguments in the Wisconsin Supreme Court hearing room in Madison largely revolved around what counts as a “vacancy” in an appointed office versus an elected office, and what can be done by the governor, legislature and officeholder in terms of succession if and when, or whether, there is a vacancy.

Assistant Attorney General Gabe Johnson-Karp stated plainly that “under the statutes, [Prehn] has no authority to be in office right now,” in part because the expiration of an appointed term creates a vacancy and Prehn’s six-year term ended 10 months ago.

Justice Patience Roggensack countered that there really is no vacancy because Prehn is still in office, partially because the Senate has not confirmed Evers’ appointment, and “the governor can’t really make an appointment to a position that’s not vacant.”

If the view of the Legislature and Prehn is accepted, Johnson-Karp said, “the Legislature could stall the next appointment as long as the Legislature chooses.” But Justice Rebecca Grassl Bradley said approval of appointments is the Senate’s right and Kaul’s argument would amount to an “end-run” around the Senate’s role in official appointments in violation of separations of powers.

Mark Maciolek, an attorney for Prehn with the Murphy Desmond firm, argued that holdover in an appointed office like Prehn’s is perfectly legal and that, should the Senate choose to, the full-term appointment process can occur at any time.

Justices Rebecca Dallet and Jill Karofsky needled Maciolek on when the governor could ever appoint someone under his argument, since Prehn’s seat, according to him, is technically not vacant even though his term expired and a replacement has been appointed. The two liberal justices posited that means Prehn could essentially have a lifetime term.

“You’re talking in circles,” Karofsky said to Maciolek.

Ryan Walsh, a Madison-based partner with the Eimer Stahl firm appearing for the Legislature, similarly argued that Prehn’s remaining with the NRB is legal under high court precedent, state statutes and the Wisconsin Constitution because only confirmation of a successor formally creates an appointment and appointment ousts an incumbent, but the Legislature just has not yet done its end of the process.

Justice Ann Walsh Bradley wondered whether, “hardball politics” aside, the effect Prehn’s argument has of potentially thwarting the governor’s ability to make appointments creates an unworkable situation for state government.

Walsh maintained this is not the first time the Legislature has not confirmed an appointment on the governor’s timetable and said “this is not a constitutional crisis,” but rather a political question not for the courts.

Dallet and Karofsky jumped on Walsh when he offered that legislators have confirmed at least 40 of Evers’ appointees, pointing out that they have refused to appoint what Karofsky said was “exponentially more," though no one present could summon an exact number.

During rebuttal, Johnson-Karp reaffirmed that the state is not looking to undo or usurp the Legislature’s powers of confirmation, rather they are just waiting on it.

The justices gave no schedule for their decision at the close of arguments.

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