MADISON, Wis. - 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 state Supreme Court decided Wednesday.
The justices ruled 4-3 that gubernatorial appointees can hold their positions indefinitely until the state Senate confirms their successors. The decision means by not voting the Senate can ensure Republican appointees can hold their spots under a Democratic governor, giving the party at least partial control over executive branch functions.
Liberal-leaning Justice Rebecca Dallet called the ruling "absurd" in a dissent.
The case centers on Fred Prehn, a Wausau dentist appointed to the DNR board in 2015 by former Republican Gov. Scott Walker.
His six-year term ended May 1, 2021. Democratic Gov. Tony 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 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.
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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.
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.
Reaction
Wisconsin Governor Tony Evers
"Today, 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.
"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. They should've been confirmed a long time ago now.
"Today’s decision continues to underscore the erosion of democratic institutions at the hands of Republicans in this state. It’s wrongheaded, it’s shortsighted, and it’s politics at its most dangerous."
Wisconsin Attorney General Josh Kaul
"The people of Wisconsin selected Tony Evers to serve as Governor, yet almost 3 1/2 years into his term, the Natural Resources Board remains controlled by Walker appointees. Today’s decision allows that antidemocratic situation to continue indefinitely—taking power away from Wisconsin voters, and instead leaving it to the whims of appointees of an administration that was voted out of office," said AG Kaul. "Our system of government is premised on consent of the governed. This decision departs from that fundamental principle and further erodes democracy in Wisconsin."