Stаte of Wisconsin ex rel. Joshua L. Kaul, Plaintiff-Appellant, v. Frederick Prehn, Defendant-Respondent, Wisconsin Legislature, Intervenor-Defendant-Respondent.
No. 2021AP1673
Supreme Court of Wisconsin
June 29, 2022
2022 WI 50
Valerie Bailey-Rihn, Judge.
ON BYPASS FROM THE COURT OF APPEALS (No Cite); SUBMITTED ON BRIEFS: June 29, 2022; ORAL ARGUMENT: March 10, 2022; SOURCE OF APPEAL: Circuit, Dane.
JUSTICES: ZIEGLER, C.J., delivered the majority opinion of the Court, in which ROGGENSACK, REBECCA GRASSL BRADLEY, and HAGEDORN, JJ., joined. DALLET, J., filed a dissenting opinion in which ANN WALSH BRADLEY and KAROFSKY, JJ., joined.
NOT PARTICIPATING:
ATTORNEYS:
For the plaintiff-appellant, there were briefs by Gabe Johnson-Karp, Anthony D. Russomanno, and Colin A. Hector, assistants attorney general, with whom on the brief was Joshua L. Kaul, attorney general. There was an oral argument by Gabe Johnson-Karp.
For the defendant-respondent, there was a brief filed by Mark P. Maciolek and Murphy Desmond, S.C., Madison. There was an oral argument by Mark P. Maciolek.
For the intervenor-defendant-respondent, there was a brief filed by Ryan J. Walsh, John K. Adams and Eimer Stahl LLP, Madison. There was an oral argument by Ryan J. Walsh.
An amicus curiae brief was filed by Christa O. Westerberg and Pines Bach LLP, Madison, for the Humane Society of the United States and the Center for Biological Diversity.
An amicus curiae brief was filed by Scott B. Thompson, Jeffrey A. Mandell, Rachel E. Snyder, and Carly Gerads and Law Forward, Inc., Madison and Stafford Rosenbaum LLP, Madison and Summer H. Murshid and Hawks Quindel S.C., of counsel, Milwaukee for the America Federation of Teachers-Wisconsin.
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin ex rel. Joshua L. Kaul, Plaintiff-Appellant, v. Frederick Prehn, Defendant-Respondent, Wisconsin Legislature, Intervenor-Defendant-Respondent.
NOTICE: This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports.
FILED JUN 29, 2022 Sheila T. Reiff Clerk of Supreme Court
ZIEGLER, C.J., delivered the majority opinion of the Court, in which ROGGENSACK, REBECCA GRASSL BRADLEY, and HAGEDORN, JJ., joined. DALLET, J., filed a dissenting opinion in which ANN WALSH BRADLEY and KAROFSKY, JJ., joined.
APPEAL from a judgment and an order of the Circuit Court for Dane County, Valerie Bailey-Rihn, Judge. Affirmed.
¶2 The Attorney General, on behalf of the State, seeks quo warranto and declaratory judgment relief, alleging that the defendant, Frederick Prehn, unlawfully holds a position on the Wisconsin Board of Natural Resources (“the DNR Board“). The State argues that when Prehn‘s term expired on May 1, 2021, he no longer possessed any legal right to the position. In addition, the State claims that Prehn is not entitled to “for cause” protection and can be removed at the discretion of the Governor. The circuit court disagreed and dismissed the case, reasoning that there was no statutory or constitutional basis to remove Prehn from office without cause.
¶3 We affirm the decision of the circuit court. Under
¶4 The Wisconsin Department of Natural Resources (“DNR“) is an environmental agency that regulates parks and natural resources around the state. The agency is placed “under the direction and supervision of the natural resources board.”
¶5 In May 2015, Governor Scott Walker nominated Prehn to the DNR Board. Prehn was confirmed by the senate in November 2015, with a term to expire on May 1, 2021.
¶6 On April 30, 2021, Governor Tony Evers announced the appointment of Sandra Dee E. Naas to replace Prehn on the DNR Board. However, the senate has not confirmed Naas and Prehn has declined to step down from his position. Prehn continues to act as a member of the DNR Board, attending meetings and submitting votes on DNR policies and positions as a full DNR Board member.
¶7 On August 17, 2021, the Attorney General, on behalf of the State, filed this action in Dane County circuit court alleging quo warranto and declaratory judgment claims. The State argued that because Prehn‘s term expired in May 2021, Prehn was unlawfully holding the office of a DNR Board member. In addition, the State сlaimed that Prehn could be removed at the pleasure of the Governor. The State asked that the circuit court order Prehn removed from office or, in the alternative, that the circuit court declare that the Governor can remove him without cause.
¶8 On August 27, 2021, Prehn filed a motion to dismiss the case for failure to state a claim. He argued that no vacancy had yet occurred for the position he occupied on the DNR Board and he could remain on the DNR Board until a successor was confirmed by the senate. The circuit court received briefing from the parties and the Wisconsin Legislature (“the Legislature“), and on September 17, 2021, granted Prehn‘s motion to dismiss. The circuit court explained that the expiration of Prehn‘s term of office did not create a vacancy, and the Governor could not use his provisional appointment power to replace Prehn on the DNR Board. In conclusion, the circuit court held that Prehn was not illegally occupying his position, he was entitled to for cause protections, and he could not be removed at the pleasure of the Governor. The circuit court dismissed the complaint with prejudice.
¶9 On September 20, 2021, the State appealed the circuit court‘s order and soon thereafter filed a petition in this court to bypass the court of appeals. On November 16, 2021, we granted the рetition to bypass. We also granted the Legislature‘s request to intervene as a party.
II. STANDARD OF REVIEW
¶10 In this case, we review a motion to dismiss for failure to state a claim. The motion “tests the legal sufficiency of the complaint.” DeBruin v. St. Patrick Congregation, 2012 WI 94, ¶11, 343 Wis. 2d 83, 816 N.W.2d 878. “For purposes of the motion, we accept as true all facts well-pleaded in the complaint and the reasonable inferences therefrom.” Id. In order to survive a motion to dismiss, “[p]laintiffs must allege facts that plausibly suggest they are entitled to relief” as a matter of law. Data Key Partners v. Permira Advisers LLC, 2014 WI 86, ¶31, 356 Wis. 2d 665, 849 N.W.2d 693. “We
¶11 This case also presents questions of statutory and constitutional interpretation. “Interpretation of a statute is a question of law that we review de novo, although we benefit from the analyses of the circuit court and the court of appeals.” Estate of Miller v. Storey, 2017 WI 99, ¶25, 378 Wis. 2d 358, 903 N.W.2d 759. “[S]tatutory interpretation begins with the language of the statute. If the meaning of the statute is plain, we ordinarily stop the inquiry. Statutory language is given its common, ordinary, and accepted meaning, except that technical or specially-defined words or phrases are given their technical or special definitional meaning.” State ex rel. Kalal v. Cir. Ct. for Dane Cnty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110 (citations and quotations omitted). In addition, “statutory language is interpreted in the context in which it is used; not in isolation but as part of a whole; in relation to the language of surrounding or clоsely-related statutes; and reasonably, to avoid absurd or unreasonable results.” Id., ¶46.
¶12 We interpret the Wisconsin Constitution de novo. Johnson v. Wis. Elections Comm‘n, 2021 WI 87, ¶22, 399 Wis. 2d 623, 967 N.W.2d 469. “Our goal when we interpret the Wisconsin Constitution is to give effect to the intent of the framers and of the people who adopted it.” Id. “In interpreting the Wisconsin Constitution, we focus on the language of the adopted text and historical evidence.” State v. Halverson, 2021 WI 7, ¶22, 395 Wis. 2d 385, 963 N.W.2d 847. Such historical evidence includes “the practices at the time the constitution was adopted, debates over adoption of a given provision, and early legislative interpretation as evidenced by the first laws passed following the adoption.” Id. (quotations omitted).
III. ANALYSIS
¶13 The State alleges quo warranto and declaratory judgment claims. Quo warranto actions “test [the] ability [of an individual] to hold office.” State ex rel. Shroble v. Prusener, 185 Wis. 2d 102, 108-09, 517 N.W.2d 169 (1994).
¶14 In its quo warranto claim, the State argues that Prehn does not legally hold office because his term expired and his office is therefore vacant. With the Governor‘s selection of Naas as a provisional appointee to replace Prehn, the State claims Prehn must be immediately removed. The State also seeks a declaratory judgment that Prehn can be removed at the pleasure of the Governor. No party contests or presents arguments on the State‘s ability to bring a declaratory judgment claim in this context.
¶15 Thus, we will review whether Prehn lawfully holds office as a DNR Board member and whether Prehn has for cause protections. We will consider each issue in turn.
¶16 The State indicates that Prehn‘s term of office expired on May 1, 2021. Therefore, according to the State, there is now a vacancy in Prehn‘s position on the DNR Board. The State contends that Naas must replace Prehn as a provisional gubernatorial appointment. We disagree. Accepting all facts alleged in the complaint as true, we hold that the expiration of Prehn‘s term did not create a vacancy, and Prehn lawfully retains his office as a holdover. DeBruin, 343 Wis. 2d 83, ¶11.
¶17 The DNR is “under the direction and supervision of the natural resources board.”
[T]he powers and duties of the board shall be regulatory, advisory and policy-making, and not administrative. All of the administrative powers and duties of the department are vested in the secretary, to be administered by him or her under the direction of the board. The secretary, with the approval of the board, shall promulgate rules for administering the department and performing the duties assigned to the department.
¶18 The Governor must nominate and the senate must confirm members of the DNR Board, who serve six-year terms.
¶19 The DNR Board is subject to carefully defined vacancy rules.
¶20 The Legislature exercised its authority to determine the existence of a vacancy by enacting
Except as otherwise provided, a public office is vacant when:
(1) The incumbent dies.
(2) The incumbent resigns.
(3) The incumbent is removed.
. . . .
(10) If the office is elective, the incumbent‘s term expires, except for the office of sheriff, coroner, register of deeds or district attorney.
. . . .
(13) Any other event occurs which is declared by any special provision of law to create a vacancy.
¶21 When a vacancy occurs in an appointed office such as the DNR Board, the office “shall be filled by appointment by the appointing power and in the manner prescribed by law for making regular full term appointments thereto.”
¶22 The Governor need not wait for senate advice and consent to ensure someone occupies a DNR Board seat once a vacancy occurs. “Vacancies occurring in the office of any оfficer normally nominated by the governor, and with the advice and consent of the senate appointed, may be filled by a provisional appointment by the governor for the residue of the unexpired term, if any, subject to confirmation by the senate.”
¶23 Here, the parties accept that Prehn was properly nominated by the Governor and confirmed by the senate to serve a full term on the DNR Board.
¶24 The expiration of Prehn‘s term did not create a vacancy. Thus, the Governor did not have a right to make a provisional appointment under
¶25
¶26 This conclusion is bolstered by the fact that the list of vacancies under
¶27 Notably, we came to the same conclusion in State ex rel. Thompson v. Gibson. In Thompson, we explained that
[section] 17.03 provides that an office shall be deemed to be vacant upon (among other things) the death, resignation or removal of the incumbent, but nowhere is it declared that an office is vacant when an incumbent holds over after expiration of the term for which he was initially appointed.
22 Wis. 2d at 290. We see no reason to depart from Thompson‘s reasoning, which remains as sound today as it did when the case was first decided.
¶28 The State argues that in order to read
¶29 The State also points out that the statutes setting the length of DNR Board member‘s terms of office indicate that DNR Board members “serve for terms prescribed by law” and their terms “shall expire” after six years.
¶30 Nonetheless, as explained above, the plain text of
¶31 Finally, the State cites statutes for other offices that specify term lengths based on when a successor is appointed. For instance, election officials at the municipal level are appointed to “hold office for 2 years and until their successors are appointed and qualified.”
¶32 The State is correct that some statutes define terms for different offices in a different manner than
¶33 Simply because some offices in this state have defined terms of office to end when a successor is appointed or qualified does not imply that holdover periods are prohibited for other offices such as the DNR Board, after the expiration of fixed terms. As we explained in Thompson, the existence of an explicit “holdover clause” makes it “even more clear that the office is not ‘vacant‘” simply due to the fact that the time specified by statute for holding оffice (e.g., two years for municipal election officials) has passed. 22 Wis. 2d at 293-94. The existence of holdover clauses in some statutes did not prevent the Thompson court from recognizing, in line with precedent and the common law, that incumbents “may holdover in . . .”
office until their successors are duly appointed and confirmed by the senate,” even without explicit statutory authorization. Id. at 293.
¶34 Furthermore, even if for some positions the Legislature chose to explicitly
¶35 Under Wisconsin law, the expiration of an appointed term of office does not create a vacancy justifying a provisional appointment.
B. Whether Prehn Has For Cause Protections.
¶36 The State argues that Prehn does not have for cause protections and can be removed at the pleasure of the Governor. According to the State, this result is required under a plain reading of the statutes and under the Wisconsin Constitution. We again disagree.
¶37 Under
¶38 As alleged in the complaint, Prehn was lawfully nominated by the Governor and confirmed by the senate in 2015 to a fixed, six-year term. DeBruin, 343 Wis. 2d 83, ¶11. As a member of the DNR Board, he is therefore entitled to
¶39 This is in line with the common law principle that public officers have the same rights and responsibilities when they are lawful holdovers as they do when they hold office prior to expiration of their terms. 63C Am. Jur. 2d Public Officers and Employees, supra ¶28, § 149 (“A holdover officer has all the authority to аct in that capacity and receive compensation” and also “continues as the incumbent of the office“); 67 C.J.S. Officers, supra ¶28, § 155 (“[T]he period of . . . holding over is as much a part of [the incumbent‘s] tenure of office as the regular period fixed by law” and “[t]he office is held by the same title and by as high and lawful a tenure after the prescribed term . . . as before and during such term“).
¶40 Our plain reading of
¶41 Moses’ understanding of
¶43 In making this argument, the State predominantly cites federal caselaw on the removal power of the United States President. See, e.g., Seila Law LLC v. Consumer Fin. Prot. Bureau, 591 U.S. 197, 140 S. Ct. 2183 (2020); Myers v. United States, 272 U.S. 52 (1926); Morrison v. Olson, 487 U.S. 654 (1988); Humphrey‘s Ex‘r v. United States, 295 U.S. 602 (1935). While these cases may be foundational to properly understanding the President‘s authority to remove federal offiсials in the executive branch, they lend only limited support to structure, meaning, and original understanding of the Wisconsin Governor‘s removal power.
¶44 To properly confirm the meaning of the Wisconsin Constitution, we consult “historical evidence” such as “the practices at the time the constitution was adopted, debates over adoption of a given provision, and early legislative interpretation as evidenced by the first laws passed following the adoption.” Halverson, 395 Wis. 2d 385, ¶22; see, e.g., Koschkee v. Taylor, 2019 WI 76, ¶¶22-32, 387 Wis. 2d 552, 929 N.W.2d 600 (providing analysis on the history and meaning of the Wisconsin Constitution‘s provision on the authority of the Superintendent of Public Instruction); Johnson v. Wis. Elections Comm‘n, 399 Wis. 2d 623, ¶¶28-33 (analyzing the meaning of the apportionment clause in the Wisconsin Constitution for legislative districts). But the State here presents no historical research or explanation to allow us to fully interpret the Wisconsin Constitution and its original meaning. Given that the State is arguing that
¶45 The lack of a complete historical record is significant here because, from the court‘s independent research, it appears that the power of the Wisconsin Governor to control the occupancy of public offices within administrative agencies is far less robust than that of the United States President.
¶46 The Wisconsin Constitution, adopted in 1848, divides government power
¶47 “A separation-of-powers analysis ordinarily begins by determining if the power in question is core or shared.” Vos, 393 Wis. 2d 38, ¶35. Core powers are those given by the constitution to a single branch, such that “no other branch may take” up those рowers and “use [them] as [their] own.” Id. (quoting another source). Shared powers, meanwhile, “lie at the intersections of these exclusive core constitutional powers.” State v. Horn, 226 Wis. 2d 637, 643, 594 N.W.2d 772 (1999). “The branches may exercise power within these borderlands but no branch may unduly burden or substantially interfere with another branch.” Id. at 644.
¶48 Wisconsin‘s constitution, and the separation of powers principles embodied in it, was the product of constitutional conventions in 1846 and 1848. Ray A. Brown, The Making of the Wisconsin Constitution (Part I), 1949 Wis. L. Rev. 648, 655 n.* (1949) (noting that although the constitution framed by the 1846 convention was ultimately rejected, the “essential details of the 1848 constitution followed closely the rejected predecessor” and that the 1846 convention brought “sharply into focus the vital political, economic and social issues of the period“). The records from both conventions reveal that the authority to appoint those whom the Governor supported was limited under the Wisconsin Constitution. With respect to the 1846 convention, it has been noted:
The governor was to be elected for a two-year term and was given a comparatively small salary. He was given a veto, which could only be overridden by a two-thirds vote by each chamber of the legislature, but otherwise his powers were quite limited. In particular, he was given no appointive powers: convention delegates made it clear they did not want the gоvernor to exercise extensive patronage.
Joseph A. Ranney, Trusting Nothing to Providence: A History of Wisconsin‘s Legal System 51 (1999) (emphasis added). Similarly, at the 1848 convention, “it seemed to be assumed by the delegates that the governor would have no appointive power.” Ray A. Brown, The Making of the Wisconsin Constitution (Part II), 1952 Wis. L. Rev. 23, 34 (1952). But see id. at 34 n.34 (noting that the legislature nevertheless could “confer the appointive power on the governor“).
¶49 Consistent with the understanding our constitutional framers had in mind, the first compilation of the Wisconsin Statutes assigned the Governor only modest responsibilities to control who held public offices. For example, the Governor could appoint individuals to fill certain positions that were administrative in nature. See Stats. 1849, ch. 9, § 57 (notaries public);
¶50 In contrast, the understanding of the Wisconsin Constitution that prevailed at the time of its ratification contemplated a strong role for the Legislature in appointment decisions. Turning again to Wisconsin‘s first statutory compilation following ratification, we see both close legislative scrutiny of appointments made by the Governor and direct legislative appointments. First, although the Governor could remove certain officers for cause during a recess of the Legislature, his power to fill the resulting vacancy was subject to close legislative review:
All officers . . . who are or shall be appointed by the governor, by and with the advice and consent of the senate . . . may, for official misconduct, or habitual or willful neglect of duty, be removed by the governor upon satisfactory proofs, at any time during the recess of the legislature, and the vacancy filed by appointment made by him, until such vacancy shall be regularly supplied; but no such appointment shall extend beyond twenty days after the commencement of the next meeting of the legislature.
Stats. 1849, ch. 11, § 8. Thus, dating back to the founding of our state, the Governor has never had expansive ability to control who held public offices in administrative agencies. The powers of removal and appointment were limited.
¶51 Further, we see that the Legislature itself exercised the appointment power at the State‘s founding. Under the 1849 statutes, the board of regents governing the University of Wisconsin did not consist of members appointed by the Governor as it does today. Compare
¶52 Under this record, the restriction of the Governor‘s removal power for DNR Board members does not present constitutional concerns. Reviewing the structure of the DNR, the Governor is not completely excluded from exercising control over the makeup of DNR public officials.4 The DNR Secretary must be nominated by the Governor and confirmed by the senate, but unlike the Board, the Secretary “serve[s] at the pleasure of the governor.”
¶53 The DNR Board is tasked with “regulatory, advisory and policy-making,” “not administrative,” responsibilities.
Governor‘s control over the Secretary, the Governor still retains influence over the makeup of the DNR Board. See Vos, 393 Wis. 2d 38, ¶60 (“[A]dministrative agencies are considered part of the executive branch.” (quoting Koschkee, 387 Wis. 2d 552, ¶14)). As previously explained, the Governor may nominate a replacement to DNR Board members once their terms expire. Subject to the advice and consent of the senate, the Governor has ability to select who holds office on the DNR Board for six-year terms.
¶54 Furthermore, although the Governor does not have a free hand to control who sits on the DNR Board, the Governor has authority to remove DNR Board members “for cause” while they serve in office.
¶55 While “[w]e must be assiduous in patrolling the borders between the branches,” based on the available record we have before us, we cannot сonclude that providing Prehn for cause protection so offends the separation of powers that he must as a matter of law be removable at the Governor‘s pleasure. Tetra Tech EC, Inc. v. DOR, 2018 WI 75, ¶45, 382 Wis. 2d 496, 914 N.W.2d 21 (lead op.). Without any showing that
IV. CONCLUSION
¶56 We affirm the decision of the circuit court. Under
By the Court.—The judgment and the order of the circuit court are affirmed.
¶57 REBECCA FRANK DALLET, J. (dissenting). Imagine that, in 2015, you hired someone for a position that, by law, was for a “6-year term[]” that “shall expire on May 1 . . . in an odd-numbered year.” See
¶58 The majority‘s absurd holding allows Prehn‘s six-year term on the Board of Natural Resources—which expired over a year ago—to last for as long as Prehn wants it to, so long as he refuses to leave and the senate doesn‘t confirm a successor nominated by the governor. And even though his term is long expired, the governor can‘t remove him except for cause. The majority bases these nonsensical conclusions on its misguided reading of a handful of statutes and a common-law doctrine meant to avoid the “disorder and inconvenience” that would result if incumbents were unable to continue holding office after their terms expired but before a successor was in place. See State ex rel. Martin v. Heil, 242 Wis. 41, 49, 7 N.W.2d 375 (1942). The majority‘s decision, however, steers our state‘s government directly into disorder and chaos, threatening the fragile separation of powers central to its functions. I therefore dissent.
¶59 The Board of Natural Resources, which “direct[s] and supervis[es]” the Department of Natural Resources, is made up of seven members appointed to “staggered 6-year terms.”
¶60 Although positions on the Board are typically filled through that nomination-and-appointment process, the governor alone can fill a vacancy on the Board for the “residue of [an] unexpired term” through a provisional appointment. See
¶61 Turning to this case, the majority concludes that Prehn‘s office is not vacant even though his six-year term indisputably expired on May 1, 2021. As a result, the majority holds that the governor may not provisionally appoint a replacement for Prehn, for two reasons. First, the majority points to the “well established” common law rule “that appointed officers can lawfully holdover after the expiration of their term until a successor is properly appointed to the position.” Majority op., ¶28. And second, it reasons that the “carefully defined vacancy rules” in
¶62 Although the majority reaches the wrong conclusion, its common-law starting point is correct. The longstanding common law rule in Wisconsin and elsewhere is that, absent a provision otherwise, an officeholder may continue serving beyond the expiration of their term until a successor is appointed and qualified. See State ex rel. Pluntz v. Johnson, 176 Wis. 107, 114, 186 N.W. 729 (1922); see also State ex rel. Thompson v. Gibson, 22 Wis. 2d 275, 283-84, 125 N.W.2d 636 (1964). The courts adopted this rule to avoid the “disorder and inconvenience” that might result if officials were required to leave their office immediately at the expiration of their term even if no one was ready to replace them. See Heil, 242 Wis. at 49. These concerns were particularly serious before the advent of modern communication, when news of a vacancy could take a long time to pass along, and when the legislature was rarely in session, thus slowing the confirmation of gubernatorial appointees. For those reasons, it‘s unsurprising that many of our cases involving holdover officials were decided in the late 1800s and early 1900s. See, e.g., State ex rel. Finch v. Washburn, 17 Wis. 658 (1864); State ex rel. Guernsey v. Meilike, 81 Wis. 574, 51 N.W. 875 (1892).
¶63 Today, however, those concerns are at play rarely, if ever, and particularly not in a situation like Prehn‘s. Prior to Prehn‘s term expiring in May 2021, the governor had appointed a successor, who also filed the oath of office, thus qualifying her for the position. See
¶64 Fortunately, that is not the law. Although Prehn may hold over after his term expires to avoid a temporary disruption to the Board‘s work, his office is vacant upon the expiration of his term. That is because not all holdover officials are the same, at least when it comes to whether holding over creates a vacancy. We have distinguished between two types of holdover officers: de jure and de facto. See Thompson, 22 Wis. 2d at 294. A de jure officer is one may continue serving in office after their term expires under “an express statutory provision for holding over after expiration of an appointive term.” Id. Our statutes contain a number of such provisions, including those applicable to members of the council on recycling, local election officials, first-class city fire and police commissioners, and local weed commissioners. See
¶65 A de facto officer, on the other hand, is an officer who holds over after the expiration of their term without the explicit statutory authority to do so. See id. In that case, although there is technically someone in the office, and they may legally discharge that office‘s duties, the office is vacant for appointment purposes and can be filled by a valid appointment. See, e.g., Romanoff v. State Comm‘n on Jud. Performance, 126 P.3d 182, 191 (Colo. 2006) (explaining that a de facto officer may serve in the office only until the office is filled by appointment); Bradford v. Byrnes, 70 S.E.2d 228, 231 (S.C. 1952); State ex rel. Ryan v. Bailey, 48 A.2d 229, 231-32 (Conn. 1946); see also 67 C.J.S. Officers § 154 (explaining that officers holding over without express statutory
authorization “are generally regarded as de facto officers and cannot be punished as intruders; but their temporary occupation of office does not prevent the existence of a vacancy and the filling of the office by the duly empowered authority“).
¶66 Prehn is a de facto officer whose authority to serve in office ended when the governor appointed Prehn‘s successor after the expiration of his term. That is because he was appointed to a fixed, six-year term on the Natural Resources Board, and nothing in the statutes creating that position expressly authorizes him to hold over until a successor is appointed and qualified. See
¶67 The relevant statutes support that conclusion. The vacancy statutes originate from
¶69 That conclusion is at odds with our decision in Thompson, and to that extent, Thompson should be overruled. There, we held that an office is not vacant when it is occupied by a holdover official, even if that official lacks statutory authority to hold over. See Thompson, 22 Wis. 2d at 293-94. Thompson, however, did so based on its incorrect assumption that the vacancies statute,
¶70 Setting aside those reasons for why Thompson should be overruled, it is distinguishable in all other respects because it addressed a fundamentally different appointments system than exists today. See State ex rel. DNR v. Wis. Ct. of Appeals, Dist. IV, 2018 WI 25, ¶38 n.16, 380 Wis. 2d 354, 909 N.W.2d 114 (“[W]hen the legislature changes the structure of a statute, we must construe it anew.“). When Thompson was decided, the governor could make provisional appointments only when the legislature was in recess or out of session, but could do so even in the absence of a vacancy. See Wis. Stat. § 14.22 (1963-64). Thаt meant that if the governor wanted to replace a holdover official and the senate refused to act on the nomination, the governor could simply wait for a recess and then make an appointment. Today, however, the governor may make provisional appointments at any time, but only to fill vacancies. See
¶71 The majority‘s contrary reasoning, based in large part on Thompson, is also unpersuasive, mainly because it creates tension elsewhere in the appointments statutes. For example, the majority does not explain why, if the expiration of the term doesn‘t cause a vacancy, the governor and the senate together could nevertheless replace Prehn. After all, if his office isn‘t vacant, then why can he be replaced by a new nominee confirmed by the senate? See 76 Wis. Op. Att‘y Gen. 272, 273-74 (1987) (explaining that the governor and the legislature cannot fill vacancies that do not yet exist). Yet both the majority and all the parties seem to take it as a given that if the Senate confirmed the governor‘s nominee tomorrow, then she would immediately replace Prehn, even though there would be no statutory vacancy to fill.
¶72 Moreover, the majority‘s textual analysis is flawed, and, in at least one instance, is at odds with itself. For starters, the majority offers no reasonable interpretation of what
¶73 Luckily, our precedents offer a solution, mаndating that we choose an interpretation that most closely adheres to the statute‘s text, context, and purpose. See, e.g., Kalal, 271 Wis. 2d 633, ¶46. And for those reasons, we must conclude that a vacancy arose in Prehn‘s office when his term expired in May 2021. That is the only way to make sense of the competing statutory provisions at play. Because Prehn‘s office was vacant, the governor had the power to fill it “at any time” by provisional appointment, see
II
¶74 Even if Prehn‘s office is not vacant, however, there is another reason why he cannot remain in office: He is no longer entitled to the for-cause removal protection that applies to Board members during their terms in office.
¶75 Wisconsin Stat.
¶76 During Prehn‘s six-year term, he indisputably fell within the category of officers with for-cause removal protection under
¶77 The majority concludes that it does because Prehn “still lawfully occupies the office of DNR Board member, despite the fact that his term has expired,” and he therefore “‘serv[es] in an office that is filled by appointment of the governor for a fixed term by and with the advice and consent of the senate.‘” See majority op., ¶38 (alteration in original) (quoting
¶78 What the majority overlooks, however, is that the statute limits for-cause removal protection to the Board members’ fixed terms.
¶80 By contrast, interpreting for-cause removal to expire when a fixed term expires avoids that absurd result, and is consistent with the legislative evidence. When the phrase “fixed term” was added to
¶81 As a result, I conclude that for-cause removal protection for DNR Board members is limited to their fixed terms in office, and that holdover members like Prehn are therefore removable at will by the governor. Thus, even if Prehn‘s office
¶82 I am authorized to state that Justices ANN WALSH BRADLEY and JILL J. KAROFSKY join this opinion.