MADISON, Wis. (AP) — A conservative member of the state Department of Natural Resources policy board can remain on the panel indefinitely even though his term ended more than a year ago, a divided Wisconsin Supreme Court decided Wednesday.
The justices ruled 4-3 that Fred Prehn can stay on the board until the state Senate confirms his successor and Democratic Gov. Tony Evers can’t remove him without cause. Prehn’s Republican allies in the Senate have refused to hold a confirmation vote on his replacement.
The majority found that the governor can appoint an officer and the Senate can confirm that person only if a vacancy in the office exists. A vacancy can occur only if the officeholder dies, resigns or is removed, the majority concluded. Therefore, the justices said, Prehn still holds the position and the governor can remove him only for misconduct or malfeasance in office.
“Prehn lawfully retains his position on the DNR board as a holdover,” Chief Justice Annette Ziegler wrote for the majority. “Therefore, the Governor cannot make a provisional appointment to replace Prehn under (state law).”
The decision helps clear the way for gubernatorial appointees to hold their positions indefinitely until the Senate confirms their successors. The decision means by not voting, Senate Republicans can keep their allies in place in the executive branch even under a Democratic governor.
Evers spokeswoman Britt Cudaback didn’t immediately respond to a message seeking comment.
Liberal-leaning Justice Rebecca Dallet called the ruling “absurd” in a dissent.
“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 wrote.
Former Republican Gov. Scott Walker appointed Prehn, a Wausau dentist, to the DNR board in 2015. Prehn’s six-year term ended May 1, 2021. Evers appointed Sandra Naas to replace him but Prehn refused to step aside. He argued that the state Supreme Court ruled in 1964 that gubernatorial appointees don’t have to resign until the Senate confirms their successors. Republicans who control the Senate have refused to hold a hearing on Naas’ confirmation.
Democratic Attorney General Josh Kaul sued in August to force Prehn off the board. Dane County Circuit Judge Valerie Bailey-Rihn sided with Prehn in September and dismissed the case. Kaul asked the state Supreme Court to take the case directly without waiting for an appellate ruling.
Prehn’s refusal to budge has ensured that Walker appointees maintain a one-person majority on the seven-member board and can control environmental and hunting policy until at least May 2023, when three other Walker appointees’ terms end. If Republicans maintain their majority in the Senate in the November elections — which they almost certainly will — they likely won’t vote on those appointees successors and conservative control will continue.
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.
State Justice Department spokeswoman Gillian Drummond didn’t immediately respond to a message seeking comment on the decision.
Prehn issued a statement saying he intends to stay on the DNR board until the Senate confirms his successor. He accused Kaul and Evers’ administration of wasting money on legal fees for a “political stunt to satisfy their liberal donor base.”
“Their lack of understanding of case law is obvious and that lack of understanding caused many losses, including hours of time, emotion and cost on this issue,” he said.
Midwest Environmental Advocates, an environmental law firm, obtained Prehn emails through an open records request that show he consulted with Republican lawmakers and lobbyists about staying on the board.
“Today’s decision is a blow to the health of the environment and the health of our democracy,” the firm said in a statement.