The Wisconsin Supreme Court heard arguments on Thursday in a lawsuit seeking to remove Wausau dentist Frederick Prehn from the Natural Resources Board.
Prehn, an appointee of former Gov. Scott Walker, has refused to give up his post on the Department of Natural Resource’s (DNR) policy-making body for nearly a year after his term expired on May 1, 2021 and Gov. Tony Evers nominated his replacement. Democratic Attorney General Josh Kaul filed a lawsuit last year seeking to remove Prehn from the board but a Dane County Circuit Court judge denied the request and on Thursday the Supreme Court heard Kaul’s appeal.
Prehn’s refusal to leave the board has entrenched a majority of Republican appointees, allowing them to influence important policy decisions such as hunting quotas and the regulation of contaminants in state water sources.
Prehn has said he will only leave his seat once his successor, Ashland educator Sandra Nass, is confirmed by the Senate, but Senate Majority Leader Devin LeMahieu has said there won’t be any more confirmation votes of Evers appointees until after the November election. The Legislature has also intervened in the case on behalf of Prehn.
On Thursday, attorneys for the Department of Justice, Prehn and the Republican-held Legislature argued about what constitutes a vacant seat on a state board and how governors can put their own nominees on a board if the previous office-holder refuses to leave and the Senate refuses to consider the nomination.
Current law does allow provisional appointments of nominees before confirmation in order to make sure the state government keeps working if the Senate is out of session.
Department of Justice attorney Gabe Johnson-Karp said that if the court follows the arguments of the Legislature and Prehn, appointees with expired terms could hold onto their seats indefinitely.
“If we accept the Legislature’s and Prehn’s view, that’s indefinite,” Johnson-Karp said. “The Legislature, with an agreeable former appointee, could stall the next appointment as long as the Legislature chooses.”
Prehn’s attorney, Mark Maciolek, argued that protecting a board member from being replaced by a governor — even if that board member’s term has expired — prevents the governor from being able to politically influence the board, despite the fact that Prehn’s refusal to leave is itself an attempt to politically influence the board.
“I think that’s exactly the point of the fixed term,” Maciolek said. “It prevents the opposite, call it a problem, of a friendly governor and a friendly Senate coming in and remaking the Natural Resources Board overnight, as they see fit.”
For much of his argument, Maciolek was arguing the governor has the power to make provisional appointments, but only if a seat is vacant and Prehn’s seat isn’t vacant because he hasn’t left it and his replacement hasn’t been confirmed. This line of argument repeatedly confused liberal-leaning Justices Rebecca Dallet and Jill Karofsky.
“This seems like a circle and I’m lost in the circle,” Dallet said.
Maciolek did say that he thought it was unlikely that an appointee refusing to leave his seat would remain in that seat indefinitely because it’s unlikely the governor and Legislature will remain in disagreement indefinitely.
“In theory, the holdover incumbent could continue for the rest of the natural life,” Maciolek said. “But that supposes that the governor and the Senate will continue to sort of give each other the cold shoulder and the governor will refuse to nominate someone the Senate will confirm and the Senate will continue to refuse to take up the nomination. And it just doesn’t seem likely that that condition that we have right now will continue into perpetuity.”
Ryan Walsh, the attorney for the Legislature, argued that the Senate frequently doesn’t confirm gubernatorial appointees and that shows Prehn’s refusal to leave isn’t causing a breakdown in government functioning.
“This isn’t the first time in the history of our republic that the Senate has not held a hearing on a nominee on the governor’s schedule,” Walsh said. “The Senate has confirmed north of 40 of the governor’s nominees. This is not a constitutional crisis.”
“The framers of the Wisconsin constitution, in their wisdom, entrusted these inter-branch disputes to the political branches, this is a quintessentially political question,” he continued. “It is not a question for the court. There are times where there are impasses between governors and Legislatures, and they often work them out. And sometimes they don’t. And the government continues to work as it is working now, which is part of the reason there is a holdover rule and has been since the beginning.”
Karofsky and Dallet were again confused by this argument, pointing to the large number of Evers appointees, including in cabinet positions who haven’t been confirmed three years into his term.
Liberal leaning Justice Ann Walsh Bradley said that the argument put forward by Prehn and the Legislature is beyond “hardball politics” but creating a dysfunctional government.
“There is something that causes me to say this just isn’t workable,” she said.
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