July 1, 2022 – A member of the Wisconsin Board of Natural Resources (DNR Board) is entitled to remain on the board although his term ended on May 1, 2021, the Wisconsin Supreme Court has ruled in a 4-3 decision.

In State ex rel Kaul v. Prehn, 2022 WI 50 (June 29, 2022), the court held that the expiration of DNR Board member Frederick Prehn’s term did not create a vacancy in his position. Consequently, he remained a lawful member of the board and Governor Tony Evers has no authority to replace him, the majority ruled.

Chief Justice Annette Ziegler wrote the opinion for the majority, joined by Justice Patience Roggensack, Justice Rebecca Grassl Bradley, and Justice Brian Hagedorn.

Justice Rebecca Dallet wrote a dissenting opinion, joined by Justice Ann Walsh Bradley and Justice Jill Karofsky.

Intra-branch Impasse

Former Wisconsin Gov. Scott Walker, a Republican, nominated Frederick Prehn to the DNR Board in May 2015. Under state law, the seven-member board directs and supervises the state Department of Natural Resources and its members serve staggered six-year terms.

The Wisconsin Senate confirmed Prehn in November 2015. His term was set to expire on May 1, 2021.

Gov. Tony Evers, a Democrat, announced on April 30, 2021, that he would appoint Sandra Dee E. Naas to replace Prehn. But the Republican-controlled Senate has not confirmed Naas, and Prehn has decided not to step down from the board.

Prehn continues to attend DNR Board meetings and vote on DNR policies and positions, according to the court’s accounting of facts in the case.

Complaint Dismissed

In August 2021, Wisconsin Attorney General Josh Kaul filed a quo warranto action on behalf of the state in Dane County Circuit Court.

The state argued that Prehn was unlawfully holding office because his term expired on May 1, 2021. Kaul also argued that the governor had the authority to remove Prehn without cause.

The state asked the court to order Prehn removed from office or, alternatively, to declare that the governor could remove Prehn without cause.

Prehn moved to dismiss the lawsuit for failure to state a claim and the circuit court dismissed the complaint with prejudice.

The state appealed; shortly after filing his appeal, Kaul petitioned the supreme court to bypass the court of appeals. The supreme court granted the petition.

Majority: Vacancy Statute is Clear

In her opinion for the majority, Chief Justice Ziegler explained that the legislature exercised the authority granted it by Article XIII, Section 10 of the Wisconsin Constitution to establish rules for when state offices are deemed vacant.

Under Wis. Stat. section 17.03, Ziegler pointed out, “except as otherwise provided,” a public office becomes vacant when 1) the incumbent either dies, resigns, or is removed, or 2) another event “declared by any special provision of law to create a vacancy occurs.”

Additionally, Chief Justice Ziegler noted, if the state office is an elective one, the office becomes vacant when the term expires except for the office of sheriff, coroner, register of deeds, or district attorney.

“By the plain text of the statute, expiration of a term for an appointed office is not included [in section 17.03] as an event causing a vacancy,” Chief Justice Ziegler wrote.

It was also plain, Ziegler explained, that the legislature knew to specify that the expiation of a term created a vacancy in an office.

“The Legislature included term expiration in the vacancy list for elected offices, but did not for appointed offices,” Chief Justice Ziegler wrote. “To read the statute to include all term expirations would render the phrase ‘[if] the office is elective’ … completely superfluous.”

Chief Justice Ziegler pointed out that the supreme court had reached the same conclusion in State ex rel Thompson v. Gibson, 22 Wis. 275, 125 N.W.2d. 636 (1964).

In that case, Ziegler wrote, the supreme court held that an appointed officeholder whose term had expired but for whom no successor had been appointed and confirmed “lawfully retain[ed] office as holdover until a successor is legally appointed.”

End of Term is Immaterial

The state argued that Wis. Stat. section 15.07(1)(a) and (1)(c) mandate that the term of a DNR Board member expires after six years.

But while it was true that Prehn served a specified term of office, Chief Justice Ziegler explained, “those realities say nothing about whether there is now a ‘vacancy’ in Prehn’s DNR Board position under Wis. Stat. section 17.03 justifying a provisional appointment under Wis. Stat. section 17.20(2)(a), which the state in this case seeks.”

Governor’s Appointment Power in 1848 Was Limited

Chief Justice Ziegler pointed out that under section 17.07(3), Prehn could only be removed for cause because under that section, officers appointed by the governor for a fixed term and confirmed by the senate may only be removed for cause.

That protection didn’t expire along with Prehn’s term, Ziegler noted, because he was a lawful holdover. That conclusion, Chief Justice Ziegler explained, was congruent with the common law principle that lawful holdovers enjoy the same rights and responsibilities as holdovers that they did during their terms.

The state argued that such a conclusion raised a separation of powers issue.

But Ziegler pointed out that records from the conventions that led to creation of the 1846 and 1848 Wisconsin constitutions “reveal that the authority to appoint those whom the Governor supported was limited.”

Additionally, Chief Justice Ziegler wrote, “the first compilation of the Wisconsin statutes assigned the Governor only modest responsibilities to control who held public office.”

Dissent: Majority Steers State into ‘Disorder and Chaos’

In her dissent, Justice Dallet argued that the majority’s holding was based on a misreading of precedent and common law.

“The majority’s decision … steers our state government directly into disorder and chaos, threatening the fragile separation of powers central to its functions,” Dallet wrote.

Justice Dallet pointed out that the common law rule that officers whose terms have expired are entitled to lawfully hold over was adopted “to avoid the ‘disorder and inconvenience’ that might result if officials were required to leave their office immediately at the expiration of their term even if no one was ready to replace them.”

Such concerns were pressing before modern modes of communication were invented, Dallet explained – a reality evidenced by the fact that most of the cases that involve holdover officers date from the late 1800s and early 1900s.

“There would be no disruption to the work of the DNR or the Board if Prehn were removed from office tomorrow,” Justice Dallet wrote.

“And despite having numerous opportunities over more than a year to confirm or reject the governor’s nominee, the senate has refused to even act on that nomination … One unelected official should not be able to dictate his term of office over the will of the people’s elected representatives.”

Majority Grants Prehn ‘Life Tenure’

Justice Dallet also argued that even if Prehn’s office wasn’t vacant, he was no longer entitled to the for-cause removal protection.

Dallet pointed out that Section 17.07(3) extends for-cause removal protection to officers “serving in an office that is filled by appointment … for a fixed term.”

The use of the present tense in that sentence fragment, Justice Dallet argued, means that for-cause removal protection only applies during the officer’s fixed term. Because Prehn’s term expired, Dallet noted, Prehn was now serving an indefinite term.

“The majority’s incomplete and consequences-be-damned interpretation of the removal statutes effectively grants Prehn life tenure,” Justice Dallet wrote.

“If the only way Prehn can be removed from office is for cause by the governor, then the majority does not explain why he can be replaced even if the senate confirms the governor’s nominee … it leads to the absurd result that Prehn’s expired six-year term has somehow transformed into life tenure with for-cause removal protection.”