Today in Kaul v. Prehn, the Supreme Court of Wisconsin chose to empower partisan political electors and ignore the will of the people. This absurd decision incentivizes the corruption of state agencies while consolidating additional power to our outrageously gerrymandered legislature. This is a sad day for anyone who believes in the most fundamental workings of democracy.
In 2015, former Governor Walker appointed Dr. Fred Prehn to the Natural Resources Board for a term ending May 1, 2021. In 2020, Wisconsin voters chose to replace Walker with Governor Tony Evers. When Dr. Prehn’s term expired, he refused to step down to allow Governor Evers to appoint his replacement. Dr. Prehn did this while secretly coordinating with the WI State Senate, ensuring that the Senate would not act on Governor Evers’ nominee and would support Dr. Prehn in insisting that he could remain in power indefinitely until the Senate confirmed his replacement. This is not how government works. When the people choose a new Governor, they choose to give that person the power to make new appointments. This is a natural function of our electoral process. When voters select a governor, part of their choice is expressing their preference for how our state agencies should be constituted.
Even though Prehn’s term is indisputably over, Prehn insists he can remain in power so long as the state Senate refuses to confirm a replacement appointed by Governor Evers. This is the lynchpin to Prehn’s ploy. Our gerrymandered state legislature refuses even to hold a discussion about Governor Evers’ appointees. As a result, Dr. Prehn and the Legislature are holding our state government hostage, extending the policies of Governor Walker, who the voters removed from office nearly four years ago, by allowing his appointees to continue overseeing key state agencies.
Law Forward represented the American Federation of Teachers-Wisconsin (AFT-W) in amicus briefing before the Supreme Court in this case. AFT-W saw first-hand how Dr. Prehn’s refusal to step down when his term ended was setting a dangerous precedent for other agencies. For example, members of Wisconsin’s Technical Colleges Board attempted the same manipulative tactics that Dr. Prehn tried at DNR. We asked the Court to hold that such efforts trampled upon a bedrock principle of our democracy: separation of powers. The Court turned its back on practical realities and instead engaged in a game of semantics. As Justice Dallet correctly noted in dissent, “One unelected official should not be able to dictate his term in office over the will of the people’s elected representatives.”
In a shocking repudiation of the will of Wisconsin voters, the Supreme Court of Wisconsin validated the cynical, anti-democratic behavior that Dr. Prehn and the Legislature have pursued. The Court ruled that he may remain in office, potentially forever, until our gerrymandered legislature sees fit to confirm his replacement. This extreme result flies in the face of elementary principles that support our democracy: justice, fairness, and common sense. The Court’s ruling today not only holds hostage the vital work of the DNR in protecting our natural resources, but it also nearly guarantees that every other political appointee chosen by Governor Walker will follow suit and refuse to leave office as their lawful terms of office conclude.