976 N.W.2d 821
Wis.2022Background:
- DNR Board has seven members nominated by the Governor and confirmed by the Senate to staggered six-year terms; the DNR Secretary is separately nominated and serves at the Governor's pleasure.
- Frederick Prehn was confirmed to a DNR Board term that statutorily expired on May 1, 2021; Governor Evers nominated Sandra Naas to replace him but the Senate has not acted; Prehn continued to serve and vote on the Board.
- The Attorney General filed quo warranto and declaratory-judgment claims seeking removal of Prehn or a declaration that the Governor may remove him without cause and/or provisionally appoint Naas.
- The circuit court dismissed the complaint with prejudice, holding expiration of Prehn's term did not create a vacancy and that Prehn, as a confirmed appointee holding over, could be removed only for cause.
- The Supreme Court granted bypass and affirmed: under Wis. Stat. § 17.03, expiration of an appointed term does not create a vacancy; Prehn lawfully remains as a holdover and is removable only for cause under § 17.07(3) until a successor is nominated and confirmed.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Vacancy created by term expiration | Expiration on May 1, 2021 created a vacancy and allowed the Governor to make a provisional appointment under § 17.20(2)(a) | Expiration does not create a vacancy; common law and § 17.03 permit holdover until successor is nominated and confirmed | Expiration of an appointed term does not create a vacancy under § 17.03; Prehn lawfully holds over and the Governor may not provisionally appoint Naas |
| Removal authority after term expiration | Prehn no longer has for-cause protection and is removable at the Governor's pleasure once term expired | As a confirmed appointee holding over, Prehn remains an officer appointed with Senate advice and consent and is removable only for cause under § 17.07(3) | Prehn remains removable only for cause under § 17.07(3) until successor is nominated and confirmed; declaratory and quo warranto relief denied |
Key Cases Cited
- State ex rel. Thompson v. Gibson, 22 Wis. 2d 275 (1964) (recognized appointed incumbents may hold over until successors are appointed and confirmed)
- Moses v. Bd. of Veterans Affairs, 80 Wis. 2d 411 (1977) (an incumbent appointed and confirmed retains prior removal protections despite statutory changes)
- DeBruin v. St. Patrick Congregation, 343 Wis. 2d 83 (2012) (motion-to-dismiss pleading standard)
- Kalal v. Cir. Ct. for Dane Cnty., 271 Wis. 2d 633 (2004) (statutory-interpretation principles; give effect to plain statutory text)
- State ex rel. Martin v. Heil, 242 Wis. 41 (1942) (precedent recognizing holdover practice for appointed officials)
- State ex rel. Pluntz v. Johnson, 176 Wis. 107 (1920) (common-law tendency that incumbents hold over until successor qualified)
- State ex rel. Shroble v. Prusener, 185 Wis. 2d 102 (1994) (quo warranto is the vehicle to test a person's legal right to hold office)