On a 4-3 vote, the Wisconsin Supreme Court ruled last week that a member of the state's Natural Resources Board whose term expired more than a year ago can keep serving until the state Senate approves a replacement.
Fred Prehn was appointed to the board in 2015 by then Gov. Scott Walker; his term ended May 1, 2021. Gov. Tony Evers tapped Sandra Naas to replace him, but the Republican-controlled state Senate has declined to schedule a hearing and confirmation vote, and Prehn has refused to resign, arguing that a 1964 state Supreme Court ruling allows him to stay on the board until the Senate confirms a successor.
That prompted attorney general Josh Kaul to file a lawsuit last year to try and force Prehn off the board. Kaul lost in circuit court, and the case went straight to the Supreme Court, after Kaul asked the court to take up the case.
Evers expressed disappointment in the ruling.
"I remind the Wisconsin Supreme Court and the Republican Party of this state that we do still live in a democracy, a very basic function of which is the peaceful and respectful transfer of power, even - and most especially - when you lose," Evers said. "Since becoming governor, I've worked to appoint experienced, hardworking Wisconsinites from every corner of our state to serve in important roles in our government - just like every governor has before me, and every governor will after me. These Wisconsinites are exceptionally qualified, should be considered on their merit, and should have the opportunity to serve the people of our state, regardless of whether or not they were appointed by a Democrat or share the same ideas as Republicans in the Legislature."
Evers said the decision continues to underscore the erosion of democratic institutions at the hands of Republicans in the state.
"It's wrongheaded, it's shortsighted, and it's politics at its most dangerous," he said.
But state Sen Chris Kapenga (R-Delafield) said the decision properly confirmed the Senate's scope and power to approve gubernatorial appointees.
"Gov. Tony Evers and attorney general Josh Kaul continue to file lawsuits when they don't get their way - wasting taxpayer dollars - and losing time after time in the courts," Kapenga said. "Even a Dane County judge dismissed this case and knew the lawsuit was without merit."
Kapenga said the ruling confirmed the state's strong commitment to checks and balances and affirmed the Wisconsin state Senate's authority to confirm or not confirm the governor's nominees.
In the case, the state argued that Prehn did not legally hold office because his term expired and his office was therefore vacant. With the governor's selection of Naas as a provisional appointee to replace Prehn, pending Senate confirmation, the state asserted that Prehn had to be removed, and the governor could do so at his pleasure.
Under the law, when a vacancy occurs, the governor does not need to wait for senate advice and consent but can make a provisional appointment for the remainder of the unexpired term. However, in the decision, written by chief justice Annette Ziegler, the majority concluded that the expiration of Prehn's term on the DNR board did not create a vacancy.
"Prehn lawfully retains his position on the DNR board as a holdover," Ziegler wrote. "Therefore, the governor cannot make a provisional appointment to replace Prehn under [the statute]. Until his successor is nominated by the governor and confirmed by the senate, under [the statute], Prehn may be removed by the governor only for cause. This conclusion complies with the plain language of the Wisconsin statutes and does not raise constitutional concerns."
The justices reviewed two issues. One was whether Prehn lawfully holds office as a DNR board member; the second was whether he has "for cause" protections or could be replaced at the governor's pleasure.
Ziegler observed that the state considers the seat vacant because Prehn's term expired on May 1, 2021, but Ziegler pointed out that the DNR board is subject to carefully defined vacancy rules. The Legislature exercised its constitutional prerogative to determine when vacancies exist, the chief justice wrote, and it defined by law that a public office is vacant when the incumbent dies, or resigns, or is removed.
When a vacancy occurs in an appointed office such as the DNR board, the decision states, individuals selected to fill a vacancy must be nominated by the governor and confirmed by the senate.
"Because DNR board members have a fixed term by law, individuals selected to fill a vacancy on the DNR board step into the shoes of the prior member and serve for the remainder of the term," the decision stated. "Here, the parties accept that Prehn was properly nominated by the governor and confirmed by the senate to serve a full term on the DNR board. Once Prehn's term expired, the governor had the prerogative to nominate another individual to serve a six-year term between May 2021 and May 2027 and replace Prehn."
However, Ziegler wrote, that nomination is subject to the advice and consent of the senate.
"If the nominee is not confirmed, the nominee is not 'appointed' into office and cannot exercise the authority assigned to that position," she wrote. "While the governor can make a provisional appointment who exercises 'all of the powers and duties of the office,' subject to later confirmation by the senate, there must first be a 'vacancy' to fill."
Simply put, the decision stated, the expiration of Prehn's term did not create a vacancy and thus the governor did not have a right to make a provisional appointment.
"By the plain text of the statute, expiration of a term for an appointed office is not included as an event causing a vacancy," she wrote. "This is a straightforward application of the canon of statutory interpretation expressio unius est exclusio alterius, '[t]he expression of one thing implies the exclusion of others.' The Legislature was deliberate and specific in defining which events constitute a vacancy, and explicitly stated that the list was exclusive absent a contrary provision of law."
Not only that, Ziegler continued, another portion of the statute includes the expiration of an incumbent's term as a vacancy "if the office is elected."
"The Legislature clearly demonstrated the wherewithal and ability to include the expiration of an incumbent's term for public office in the list of vacancies under [that statue]," the decision stated. "The Legislature included term expiration in the vacancy list for elected offices, but did not for appointed offices. To read the statute to include all term expirations would render the phrase '[i]f the office is elective' ... completely superfluous."
One by one
The majority entertained and dismissed a number of the state's arguments, such as that state statutes setting the length of DNR board member's terms of office indicate that DNR board members "serve for terms prescribed by law" and their terms "shall expire" after six years.
"The state cites this language to argue that Prehn can no longer be in office because he has served his term and therefore, Prehn is now illegally holding office," Ziegler wrote. "But the state's conclusion does not follow from the statutes upon which it relies."
While it was undoubtedly true that Prehn served a defined term of office and that term expired in May 2021, Ziegler wrote, those realities said nothing about whether there is now a 'vacancy' in Prehn's DNR board position under [the statute] justifying a provisional appointment.
"Because Prehn's term expired, the governor now has the prerogative to appoint a successor who, if confirmed, may replace Prehn on the board for a full appointed term," she wrote. "Without the expiration of Prehn's term, the governor would not have the ability to appoint a replacement to complete a successive term. Further, if the governor wished to replace Prehn prior to the completion of Prehn's term, the governor would need to overcome Prehn's 'for cause' protections."
So the plain text the law establishes that the expiration of a defined term for an appointed office does not create a vacancy, Ziegler continued.
"Without a vacancy, the governor cannot make a provisional appointment and Prehn cannot be replaced with an individual whom the senate has not confirmed," she wrote.
In another argument, the state cited statutes for other offices that specify term lengths based on when a successor is appointed.
"For instance, election officials at the municipal level are appointed to 'hold office for 2 years and until their successors are appointed and qualified,'" the decision stated. "The state argues that the inclusion of this language for these offices implies that the expiration of an appointed term as a general matter creates a vacancy. In so doing, the state notes that [the statute] provides an exclusive list of vacancies '[e]xcept as otherwise provided' or 'declared by any special provision of law.'"
Ziegler wrote that the state was correct that some statutes defined terms for different offices in a different manner than the statute in question defined terms for DNR board members.
"But that does not answer whether incumbents may stay in office after their term has expired, however that term is defined, or whether the expiration of terms for appointed offices create a vacancy," she wrote.
Under state law, Ziegler wrote, absent statutory or constitutional language prohibiting a holdover period, incumbents may lawfully holdover after their statutorily prescribed term has concluded and until their successor is appointed and qualified.
"And under Wis. Stat. § 17.03, the expiration of appointed terms of office do not create vacancies justifying a provisional appointment, unless a provision of law states otherwise," she wrote. "No statute or constitutional provision has been identified that prohibits DNR board members from lawfully holding over, and no statute or constitutional provision cited to the court defines the expiration of a DNR board member's term as a vacancy."
Simply because some offices in the state have defined terms of office to end when a successor is appointed or qualified does not imply that holdover periods are prohibited for other offices such as the DNR board, after the expiration of fixed terms, Ziegler wrote.
Before the court, the state argued that Prehn did not have 'for cause' protections - that is, he could be fired at will rather than 'for cause' only - and could be removed at the pleasure of the governor, but again the majority disagreed.
They pointed to the relevant statute: "[s]tate officers serving in an office that is filled by appointment of the governor for a fixed term by and with the advice and consent of the senate . . . [may be removed] by the governor at any time, for cause."
"As alleged in the complaint, Prehn was lawfully nominated by the governor and confirmed by the senate in 2015 to a fixed, six-year term," Ziegler wrote. "As a member of the DNR board, he is therefore entitled to for cause protection. He still lawfully occupies the office of DNR board member, despite the fact that his term has expired; because there is no vacancy in his position, he cannot be replaced by provisional appointment."
That position, Ziegler wrote, was in line with the common law principle that public officers have the same rights and responsibilities when they are lawful holdovers as they do when they hold office prior to expiration of their terms.
Diminishing the governor's appointment powers
In the most critical part of the decision - because it will impact the broader issue of the governor's appointment powers - the majority handed the governor a decisive setback.
The state had argued that the statute must be read to permit Prehn's removal at the governor's pleasure because, if Prehn had for cause protection, the statute would violate the separation of powers under the Wisconsin Constitution, citing mainly federal case law.
"According to the state, providing Prehn for cause protection would improperly limit the ability of the governor to select a DNR board member who has similar views on policy," Ziegler wrote. "The state argues this would prevent the governor from 'control[ling] the execution of the law' as required by the Wisconsin Constitution."
Because of that argument, Ziegler said the justices consulted "historical evidence" such as "the practices at the time the constitution was adopted, debates over adoption of a given provision, and early legislative interpretation as evidenced by the first laws passed following the adoption.
"But the state here presents no historical research or explanation to allow us to fully interpret the Wisconsin Constitution and its original meaning," she wrote. "Given that the state is arguing that [the statute] as plainly read would be unconstitutional, this lack of fully developed argument is fatal to the state's position. We have no obligation to 'develop or construct arguments for parties' or construct a historical record in support of the state's constitutional claim.'"
The lack of a complete historical record is significant here, Ziegler wrote, because, from the court's independent research, it appeared that the power of the Wisconsin governor to control the occupancy of public offices within administrative agencies is far less robust than that of the United States President.
"Consistent with the understanding our constitutional framers had in mind, the first compilation of the Wisconsin statutes assigned the governor only modest responsibilities to control who held public offices," she wrote. "For example, the governor could appoint individuals to fill certain positions that were administrative in nature."
Those positions included notaries public; the state librarian; out-of-state land commissioners; and the state printer.. The governor could also fill vacancies, such as vacant positions on the board of regents. Those statutes, Ziegler asserted, which were enacted immediately after the 1848 constitution was ratified, reveal a circumscribed understanding of the governor's appointment power.
"In contrast, the understanding of the Wisconsin Constitution that prevailed at the time of its ratification contemplated a strong role for the Legislature in appointment decisions," she wrote. "Turning again to Wisconsin's first statutory compilation following ratification, we see both close legislative scrutiny of appointments made by the governor and direct legislative appointments. First, although the governor could remove certain officers for cause during a recess of the Legislature, his power to fill the resulting vacancy was subject to close legislative review."
Thus, Ziegler wrote, dating back to the founding of the state, the governor has never had expansive ability to control who held public offices in administrative agencies. The powers of removal and appointment were limited. Indeed, the chief justice wrote, the Legislature itself exercised the appointment power at the state's founding, including appointments to the Board of Regents.
"This reveals that the governor was never understood to wield an exclusive power over the appointment and selection of administrative offices," she wrote. "To the contrary, the Legislature retained a strong hand in most appointment decisions, both by overseeing the governor's use of his limited appointment power and by making appointments itself."
Dallet: Disorder and chaos
Just Rebecca Dallet wrote the dissenting opinion and said the decision means that a position isn't vacant until the person holding it says it is.
"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 wrote. "And even though his term is long expired, the governor can't remove him except for cause. The majority bases these nonsensical conclusions on its misguided reading of a handful of statutes and a common-law doctrine meant to avoid the 'disorder and inconvenience' that would result if incumbents were unable to continue holding office after their terms expired but before a successor was in place. The majority's decision, however, steers our state's government directly into disorder and chaos, threatening the fragile separation of powers central to its functions."
Richard Moore is the author of "Dark State" and can be reached at richardd3d.substack.com.
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