Key justice skeptical of removal of DNR board member | Recent news

By TODD RICHMOND – Associated Press

MADISON, Wis. (AP) — The Wisconsin Supreme Court 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 a while ago. almost a year.

Democratic Attorney General Josh Kaul filed a lawsuit in August seeking to oust Fred Prehn from the board. The case could determine environmental policy for at least the next few years and raises broad questions about whether nominee governors can retain their posts indefinitely if the state Senate refuses to confirm their successors.

Former GOP Governor Scott Walker appointed Prehn, a dentist from Wausau, to the DNR board in 2015. His six-year term ended May 1, 2021.

Democratic Governor Tony Evers nominated Sandra Naas to replace him, but the Republican-controlled Senate did nothing to confirm her. Prehn has refused to resign in the meantime, arguing that a 1964 state Supreme Court ruling established that appointed governors do not have to leave their posts until the state Senate has confirmed their successors. Kaul argues that state law allows the governor to fill positions with provisional appointments without Senate confirmation.

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The Supreme Court heard oral arguments in the case Thursday morning. The court’s three conservative justices appeared to side with Prehn. Judge Patience Roggensack said she believes that for Naas to be nominated, 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 would not have to leave office until the Senate confirmed their successors. Ann Walsh Bradley said it would prevent the state government from functioning.

Key to the deal is Brian Hagedorn’s swing vote. He questioned lawyers on both sides about the historical origins of the governor’s appointing powers, concluding that most appointing powers had belonged to the Legislature from Wisconsin’s earliest days.

It’s hard to draw conclusions about the justices’ positions based on the remarks they make during oral argument, but Hagedorn appears to be signaling 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 appeals courts to address the “pressing issues” that Prehn’s refusal to step down has created.

Prehn’s presence on the board ensures that Evers’ liberal appointees won’t be able to determine state environmental policy until at least May 2023, when the terms of three other Walker appointees end. If Evers survives his re-election this fall, he will be able to name their successors.

If the Senate remains under Republican control and does not confirm replacements, the incumbents may not leave either, which would make the Supreme Court’s decision in the Prehn case all the more crucial for the future of environmental policy. and exterior.

Since his term expired, Prehn has voted with the conservative majority to reduce restrictions on PFAS chemicals in state waters and increase the quota for the fall wolf season. A Dane County judge ultimately suspended the season and it was canceled outright after a federal judge in February put the wolves back on the endangered species list.

Prehn will also play a central role in reviewing and approving MNR’s new wolf management plan later this spring. This plan could contain key population goals that will govern hunting quotas if wolves lose their federal protections again.

With the future of the state’s environmental and hunting policies at stake, conservatives and environmentalists are watching Kaul’s trial closely. Republican lawmakers joined Prehn as defendants in the case. The Humane Society of the United States and the Center for Biological Diversity filed amicus curiae briefs supporting Kaul’s position.

Midwest Environmental Advocates, another conservation group, filed its own lawsuit in October for access to Prehn’s text messages regarding his tenure on the council. Dane County Judge Everett Mitchell declined to dismiss the lawsuit Tuesday, ruling that Prehn is an officer of the state and his texts are considered documents.

The MEA has previously obtained emails from Prehn through an open records request that show Prehn consulted with Republican lawmakers and lobbyists to stay on the board.

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Elna M. Lemons