Justices Hear Arguments on the Squatter Who Won’t Leave the State Natural Resources Board

Scott Walker appointee’s term ended last year, but he’s refused to leave since Republicans in the state Senate won’t confirm a replacement nominated by Evers.

The Wisconsin Supreme Court heard arguments Thursday about whether to remove a conservative Department of Natural Resources board member who refuses to step down even though his term ended almost a year ago.

Democratic Attorney General Josh Kaul sued in August to oust Fred Prehn, a 2015 appointee of former Gov. Scott Walker, from the board. The case could determine environmental policy for at least the next several years and raises broad questions about whether gubernatorial appointees can hold onto their positions indefinitely if the state Senate refuses to confirm their successors.

It’s also an example of the partisanship that grips the Capitol. The Republican-controlled Senate just adjourned its two-year session without holding a hearing on Democratic Gov. Tony Evers’ appointee, effectively preserving the DNR board’s one-vote conservative majority. Numerous other nominations have been held up, even now in Evers’ fourth year as governor.

The six-year term for Prehn, a Wausau dentist, ended on May 1, 2021. Evers appointed Sandra Naas to replace him. But without Senate action to confirm her, Prehn has argued that a 1964 state Supreme Court decision established that gubernatorial appointees don’t have to vacate their positions until the state Senate has confirmed their successors. 

In oral arguments Thursday, three conservative justices seemed to side with Prehn, while the court’s three liberal justices countered that under the conservatives’ interpretation, thousands of appointees wouldn’t have to leave office until the Senate confirms their successors—effectively giving them lifetime appointments. Justice Ann Walsh Bradley said that would leave state government unable to function.

The key to the case is Justice Brian Hagedorn, a conservative who has frequently been a swing vote. It’s difficult to draw conclusions about justices’ stances based on remarks they make during oral arguments, but Hagedorn seemed to signal that the Senate must confirm Naas before Prehn has to step down.

Prehn’s presence on the board ensures that Evers’ progressive appointees can’t determine environmental policy for the state even though Evers was elected by voters over Walker in 2018. 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. 

The conservation group Midwest Environmental Advocates filed its own lawsuit in October seeking access to Prehn’s text messages about his term on the board. Dane County Judge Everett Mitchell refused to dismiss that lawsuit Tuesday, ruling that Prehn is a state officer and his texts qualify as records. MEA has already obtained Prehn emails through an open records request that show Prehn consulted with Republican lawmakers and lobbyists about staying on the board.

The Associated Press contributed to this story.