By Todd Richmond, Associated Press
MADISON, Wis. (AP) — The Wisconsin Supreme Court’s swing justice appeared skeptical Thursday about whether to remove a conservative Department of Natural Resources board member who refuses to step down even though his term ended almost a year ago.
Democratic Attorney General Josh Kaul sued in August to oust Fred Prehn from the board. The case could determine environmental policy for at least the next several years and raises broad questions about whether gubernatorial appointees can hold onto their positions indefinitely if the state Senate refuses to confirm their successors.
It’s also an example of the partisanship that grips the Capitol. The Republican-controlled Senate just adjourned its two-year session without holding a hearing on Democratic Gov. Tony Evers’ appointee, effectively preserving the DNR board’s one-vote conservative majority.
Former GOP Gov. Scott Walker appointed Prehn, a Wausau dentist, to the DNR board in 2015. His six-year term ended on May 1, 2021.
Evers appointed Sandra Naas to replace him. Without Senate action to confirm her, Prehn has argued that a 1964 state Supreme Court decision established that gubernatorial appointees don’t have to vacate their positions until the state Senate has confirmed their successors. Kaul contends that state law allows the governor to fill positions with provisional appointments without Senate confirmation.
In oral arguments Thursday, three conservative justices seemed to side with Prehn. Justice Patience Roggensack said she believes that in order for Naas to be appointed a vacancy on the board must exist and nothing in state law establishes that the end of an incumbent’s term creates a vacancy.
The court’s three liberal justices countered that under the conservatives’ interpretation, thousands of appointees wouldn’t have to leave office until the Senate confirms their successors. Ann Walsh Bradley said that would leave state government unable to function.
The key to the case is Justice Brian Hagedorn, a conservative who has frequently been a swing vote. He questioned attorneys from both sides about the historical origins of the governor’s appointment powers, concluding that most appointment authority has resided with the Legislature since Wisconsin’s beginnings.
It’s difficult to draw conclusions about justices’ stances based on remarks they make during oral arguments, but Hagedorn seemed to signal that the Senate must confirm Naas before she can take Prehn’s place.
Kaul has already lost the case once. Dane County Circuit Judge Valerie Bailey-Rihn sided with Prehn in September and dismissed the lawsuit. Kaul asked the state Supreme Court to take the case directly and bypass lower appellate courts to address “time-sensitive issues” that Prehn’s refusal to step down has created.
Prehn’s presence on the board ensures that Evers’ liberal appointees can’t determine environmental policy for the state until at least May 2023, when three other Walker appointees’ terms end. If Evers survives reelection this fall, he will get to appoint their successors.
If the Senate remains under Republican control and won’t confirm the replacements, the incumbents may not leave, either, making the Supreme Court’s decision in Prehn’s case that much more pivotal for environmental and outdoor policy moving forward.
Since his term expired Prehn has voted with the conservative majority to scale back restrictions on PFAS chemicals in state waters and increase the quota for the fall wolf season. A Dane County judge ultimately put the season on hold and it was canceled outright after a federal judge in February put wolves back on the endangered species list.
Prehn also will play a pivotal role in revising and approving the DNR’s new wolf management plan later this spring. That plan could contain key population goals that will govern hunting quotas should wolves lose their federal protections again.
With the future of the state’s environmental and hunting policies at stake, conservatives and environmentalists alike are closely watching Kaul’s lawsuit. Republican legislators have joined Prehn as defendants in the case. The Humane Society of the United States and the Center for Biological Diversity has filed friend-of-the-court briefs supporting Kaul’s position.
Midwest Environmental Advocates, another conservation group, filed its own lawsuit in October seeking access to Prehn’s text messages about his term on the board. Dane County Judge Everett Mitchell refused to dismiss the lawsuit Tuesday, ruling that Prehn is a state officer and his texts qualify as records.
MEA has already obtained Prehn emails through an open records request that show Prehn consulted with Republican lawmakers and lobbyists about staying on the board.
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Featured image: In this Dec. 10, 2019, photo is Fred Prehn of Wausau, Wis., who is facing increasing calls to vacate his seat on the Natural Resources Board. The Wisconsin Supreme Court is set to consider whether to remove Prehn, a Department of Natural Resources board member who refuses to step down even though his term ended almost a year ago. The justices will hear oral arguments Thursday, March 10, 2022. (Paul A. Smith/Milwaukee Journal-Sentinel via AP)