Kaul v. Prehn
Wisconsin is grappling with a dangerous trend: undemocratic disruptions of the executive appointment process.
The executive branch of WI’s government is made up of a variety of agencies and departments, many of which are directed by boards. Wisconsin’s governor appoints the folks who hold positions on these boards (some exceptions apply), and that appointment power is a key function of the executive branch. It’s through these appointments that our Governors actually govern Wisconsin’s public business, from boards that oversee everything from the state historical society to mental health and public safety to tourism and everything in between.
If the public would like a change of direction on how these agencies and departments are run, we can vote for a new governor. That governor, in turn, is authorized to place new individuals on the boards that oversee these agencies and departments.
However, Dr. Frederick Prehn and the Wisconsin State Senate are thwarting this process. Dr. Prehn was appointed to the Natural Resources Board in 2015 by the former governor. WI law limits Dr. Prehn’s term to six years. Dr. Prehn admits his term was up in 2021.
While Dr. Prehn’s term was ongoing, the governor who appointed him lost his re-election bid to Governor Evers. So, Governor Evers identified a replacement for Dr. Prehn, and nominated that person accordingly. Yet, Dr. Prehn refuses to leave his post, thereby thwarting the Wisconsin voters who elected Governor Evers.
How can this happen? Dr. Prehn claims that even though his term expired, he can remain in office until the state Senate confirms his replacement. But the Senate refuses to even consider or confirm any of Governor Evers’ nominees. The result of their coordinated effort is undemocratic: even though the former governor was ousted in a fair election, he now retains ghost control over the DNR through Dr. Prehn.
This is not how our government is supposed to work. By ignoring the will of the voters, the Senate and Dr. Prehn are cutting voters out of the democratic process. Their coordinated actions are setting a dangerous trend.
Our client, the American Federation of Teachers of Wisconsin (AFT-W), got involved as this trend began to infect other parts of our government. Three of the former Gov. Walker’s appointees to the state technical colleges board are now following Dr. Prehn’s lead and refusing to leave their expired terms. Appointees with expired terms are refusing to leave the Board of Regents as well.
Again, this is not how our government is supposed to work. In 2018, voters made a choice, and that choice cannot be disregarded by one party in our democracy. The Wisconsin Supreme Court must recognize this and step in to secure the will of the people and stop this undemocratic manipulation once and for all.
A strong democracy is one where both sides play by the same rules. This is a non-partisan, good government issue.
On Feb. 11, 2022, we filed an amicus brief with the Wisconsin Supreme Court laying out that the will of the voters must be vindicated and Dr. Prehn’s reign should end.
February 11, 2022
March 10, 2022
The Supreme Court of Wisconsin heard oral arguments. Several justices appeared to accept that Dr. Prehn was permitted to remain indefinitely in his position on the Natural Resources Board, even after his term expired, and that because he did so, there was no vacancy for Governor Evers to fill. Other justices questioned this state of affairs. Justice Dallet pointed out that if Dr. Prehn is correct, a stubborn appointee could keep an executive branch position for life simply by refusing to step down.
The Republican-controlled Legislature ended its spring 2022 term without confirming Governor Evers’s pick for the NRB, or any of his other appointments.
We are awaiting the court’s decision, which should come by the end of the term on June 30.
June 30, 2022
In a shocking repudiation of the will of Wisconsin voters, the Supreme Court of Wisconsin on June 29, 2022 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.
Amicus Brief, Good Governance
Wisconsin Supreme Court