Conservative State Justices Side with GOP Legislators on Blocking a Governor from Making Appointments

Former Gov. Scott Walker’s appointees still have a majority on the state Natural Resources Board after the state Supreme Court said a board member can refuse to step down—more than a year after his term expired.

Siding with state Senate Republicans who have treated gubernatorial appointments as partisan games, conservative justices on the Wisconsin Supreme Court ruled Wednesday that Fred Prehn, an appointee of former Gov. Scott Walker, can remain on the state Natural Resource Board—more than a year after his term expired—so long as the Legislature continues to obstruct Gov. Tony Evers’ appointments.

The 4-3 ruling against state Attorney General Josh Kaul saw swing Justice Brian Hagedorn siding with right-wing justices who interpreted state law as saying a vacancy isn’t really a vacancy—that a board member refusing to leave a post can stay until the state Senate ratifies a new appointee.

“Under Wis. Stat. 17.03, the expiration of Prehn’s term on the DNR Board does not create a vacancy,” the justices wrote. “Prehn lawfully retains his position on the DNR Board as a holdover.  Therefore, the Governor cannot make a provisional appointment to replace [until] his successor is nominated by the Governor and confirmed by the senate.” 

“Prehn may be removed by the Governor only for cause,” reads the decision from Hagedorn, Chief Justice Annette Ziegler, and Justices Rebecca Bradley and Patience Roggensack. 

The court did not seem troubled that it is effectively blocking the will of the voters by conspiring to block the appointments of a governor from the opposing political party.

A gun store owner and dentist in the Wausau area, Prehn’s plot to stay on the board that oversees the Department of Natural Resources (DNR) were made public via uncovered text messages and emails, dating back months before the end of his term in May 2021.

“I heard from legislators they do not intend on confirming anybody soon. And of course the chance of Evers reappointing me are slim to none,” Prehn texted Walker in November 2020, as first reported by the Milwaukee Journal Sentinel. “I’m wondering if you think it’s improper for me to stay on until somebody’s confirmed. If I stay on, your appointees [will] hold majority for a while longer.”

Walker encouraged Prehn to be a squatter on the board once his term expired. Prehn had similar communications with legislators and lobbyists.

The three progressive justices called the majority opinion in favor of Prehn’s holdout “absurd.”

“The majority’s decision,” they wrote, “steers our state’s government directly into disorder and chaos, threatening the fragile separation of powers central to its functions. Allowing Prehn to continue serving in office indefinitely makes him the final authority on whether he remains in office—not the legislature, which specified by statute that his term expired over 13 months ago, and not the governor, who the legislature gave the authority to nominate a replacement. One unelected official should not be able to dictate his term in office over the will of the people’s elected representatives.”

Justices Rebecca Dallet, Ann Walsh Bradley, and Jill Karofsky go on to note that while Prehn could only be removed by a governor for cause, that protection expired with the end of his term—and Evers’ provisional appointment to replace him, Sandra Dee Nass of Ashland, should be able to begin her service.

Evers said of the decision, “It’s wrongheaded, it’s shortsighted, and it’s politics at its most dangerous.” 

“Today,” he said in a release, “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.” 

Senate Republicans have refused to confirm several Evers nominations and even went so far as to essentially fire one cabinet officer almost a year into his service by finally scheduling a long-delayed confirmation vote and rejecting the appointment. Brad Pfaff left the post as secretary-designate of the Department of Agriculture, Trade, and Consumer Protection and was later elected to the same state Senate that fired him.

With Prehn still refusing to leave, the Natural Resources Board has authorized a reckless wolf hunt recognized widely as a catastrophe and slow-walked regulation of industrial chemicals known as PFAS that continue to be found in Wisconsin drinking water supplies.