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Power imbalance between branches after Wisconsin Supreme Court's DNR board ruling

Screenshot from National Resources Board meeting
Dr. Frederick Prehn speaks during National Resources Board meeting.

The Wisconsin Supreme Court recently made a decision that could further upend the power balance in the state’s government. The decision, allowing a member of the Wisconsin Department of Natural Resources Board to stay on past his term limit, allows appointees from previous administrations to indefinitely stay in power, as the legislature refuses to hold confirmation hearings for Gov. Tony Evers’ new appointees.

Dr. Frederick Prehn, nominated by former Gov. Scott Walker, refused to step down at the end of his term in May 2021. Assistant law professor at the University of Wisconsin Law School, Miriam Seifter, shares her thoughts and understandings of the ruling. She first clarifies that the court decided Prehn may remain on the board until he decides to leave, which opens the doors for others in his position to do the same.

“It’s a sign of real dysfunction in the Wisconsin government and it stems from the hardball tactics of the gerrymandered state senate,” said Seifter.

While Prehn is permitted to remain on the board, he still can be removed from his duties by cause. The statute in the state of Wisconsin defines the cause of dismissal as inefficiency, neglect of duty, or malfeasance in office. However, Seifter outlines that democracy is based on open cooperation from all parties, but this legislation hinders that. She believes that this ruling is a way for Wisconsin's legislative branch to increase its power while simultaneously diminishing the executive branch's power.

“You could make various constitutional arguments about exactly why those types of separation of powers principles apply in cases of a breakdown of these forms of corporations. But, in this case, the court did not go that way.”

When asked about the longevity of this ruling’s impact, Seifter argues that so long the Republican party remains in power, democratic governors’ power will continue to dilute while Republicans stand to build. But, she does believe that there are tools the state courts have at their disposal that can aid against this power movement.

"There are a variety of doctrines that call on courts to avoid absurd results, to take constitutional principles, including principles of separation of powers and democracy, into account; that's just not what happened in this case. And I think ignoring those tools that are available to state courts does risk exacerbating the anti-democratic tactic that some officials are engaging in."

Seifter points out that those working in state-level courts are under levels of constraint where board members like Prehn are not. The courts are subject to the approval of their constituents, which makes predicting their decisions much more challenging.

“I think you know we still do have a system in which the law matters and the arguments that are made by the attorneys in the case matter, and so I think that state courts remain an important site of advocacy that’s related to democracy.”

Joy Powers is a WUWM host and producer for Lake Effect.
Cait Flynn was an assistant producer for Lake Effect 2022 to 2023.