County of Dane v. Public Service Commission of Wisconsin ( 2022 )

2022 WI 61SUPREME COURT OF WISCONSIN
CASE NO.: 2021AP1321-LV & 2021AP1325
COMPLETE TITLE: County of Dane, County of Iowa, Town of Wyoming
and Village of Montfort,
Petitioners-Respondents,
v.
Public Service Commission of Wisconsin,
Respondent-Respondent,
Driftless Area Land Conservancy, Wisconsin
Wildlife Federation, Chris Klopp, LeRoy Belken,
Gloria Belken, S.O.U.L. of Wisconsin, Clean
Energy Organizations, Dairyland Power
Cooperation, I.T.C. Midwest, LLC, American
Transmission Company, Midcontinent Independent
System Operator, Inc. and WEC Energy Group
Wisconsin,
Intervenors-Respondents,
Michael Huebsch,
Other Party-Petitioner-Petitioner.
County of Dane, Iowa County, Town of Wyoming
and Village of Montfort,
Petitioners-Respondents,
v.
Public Service Commission of Wisconsin,
Respondent-Respondent-Respondent,
Driftless Area Land Conservancy,
Intervenor-Petitioner-Respondent,
Wisconsin Wildlife Federation, Chris Klopp,
LeRoy Belken, Gloria Belken, S.O.U.L.
Wisconsin, Clean Energy Organizations,
Dairyland Power Cooperative, ITC Midwest
LLC, American Transmission Company, LLC,
Midcontinent Independent System Operator,
Inc., ATC, LLC and WEC Energy
Group, Inc.,
Intervenors-Respondents,
Michael Huebsch,
Other Party-Appellant-Petitioner,
Robert M. Garvin,
Other Party.
REVIEW OF DECISION OF THE COURT OF APPEALS
OPINION FILED: July 7, 2022
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: February 28, 2022
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Dane
JUDGE: Jacob B. frost
JUSTICES:
ROGGENSACK, J., delivered the majority opinion of the Court with
respect to ¶4, in which ZIEGLER, C.J., REBECCA GRASSL BRADLEY,
and HAGEDORN, JJ., joined, and an opinion, in which ZIEGLER,
C.J., REBECCA GRASSL BRADLEY, JJ., joined. HAGEDORN, J., filed
a concurring opinion. KAROFSKY, J., filed a dissenting opinion,
in which ANN WALSH BRADLEY and DALLET, JJ., joined.
NOT PARTICIPATING:
ATTORNEYS:
For the other party-petitioner-petitioner in 2021AP1321-LV
and other party-appellant-petitioner in 2021AP1325, there were
briefs by Ryan J. Walsh, John K. Adams, John D. Tripoli and
Eimer Stahl LLP, Madison. There was an oral argument by Ryan J.
Walsh.
For the intervenor-respondent Clean Energy Organizations,
there was a brief filed by Amelia Vohs, Sean Brady, Kevin M. St.
John, John N. Giftos, Roisin H. Bell and Minnesota Center for
Environmental Advocacy, Saint Paul, Clean Grid Alliance, Saint
Paul, and Bell Giftos St. John LLC, Madison. There was an oral
argument by Barret Van Sicklen.
For the petitioners-respondents County of Dane, Iowa
County, Town of Wyoming and Village of Montfort, intervenor
respondent in 2021AP1321-LV and intervenor-petitioner-respondent
in 2021AP1325, Driftless Area Land Conservancy, and for the
2
intervenors-respondents, Wisconsin Wildlife Federation, S.O.U.L.
of Wisconsin, Gloria Belken, and Chris Klopp, there was a brief
filed by Catherine E. White, Howard A. Learner, Bradley D.
Klein, Ann Jaworski and Hurley Burish S.C., Madison, and
Environmental Law & Policy Center, Chicago. For the intervenors-
respondents, there was an oral argument by Barret Van Sicklen.
For intervenor-respondent, Midcontinent Independent System
Operator, there was a brief filed by Jeffrey L. Small, Warren J.
Day, Amanda James and Midcontinent Independent System Operator,
Inc., Carmel, Law Office of Warren J. Day, Oregon, and Sullivan
& Ward, P.C., West Des Moines. There was an oral argument by
Barret Van Sicklen.
For intervenors-respondents, American Transmmission
Company, Dairlyand Power Cooperative, and ITC Midwest, there was
a brief filed by Brian H. Potts, Valerie T. Herring, Justin W.
Chasco, and Perkins Coie LLP, Madison, Taft Stettinius &
Hollister, Minneapolis, and Wheeler, Van Sickle & Anderson,
S.C., Madison. There was an oral argument by Barret Van Sicklen.
For the respondent-respondent in 2021AP1321-LV and the
respondent-respondent-respondent in 2021AP1325, there was a
brief filed by Cynthia E. Smith, Zachary Peters, Christiane A.R.
Whiting and Public Service Commission of Wisconsin, Madison.
There was an oral argument by Christiane A.R. Whiting.
An amicus curiae brief was filed by Evan Feinauer and Katie
Nekola for Clean Wisconsin, Inc.
An amicus curiae brief was filed by Matthew M. Fernholz and
Cramer, Multhauf & Hammes, LLP, Waukesha, for Wisconsin
Manufacturers and Commerce.
3
An amicus curiae brief was filed by Benjamin B. Sloan,
Matthew M. Fernholz, and Organization of MISO States, Madison,
and Cramer, Multhauf & Hammes, LLP, Waukesha, for Organization
of MISO States, Inc.
An amicus curiae brief was filed by Robert S. Driscoll and
Reinhart Boerner Van Deuren S.C., Milwaukee, for American Clean
Power Association.
An amicus curiae brief was filed by Scott E. Rosenow and
WMC Litigation Center, Madison, for Wisconsin Manufacturers and
Commerce, Inc., Wisconsin Utilities Association, Inc., and
Edison Electric Institute.
An amicus curiae brief was filed by James Bradford Ramsay,
Lane E.B. Ruhland, and National Association of Regulatory
Utility Commissioners, Washington, D.C., and Ruhland Law and
Strategy, Waunakee, for National Association of Regulatory
Utility Commissioners.
4
2022 WI 61NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
Nos. 2021AP1321-LV & 2021AP1325
(L.C. No. 2019CV3418)
STATE OF WISCONSIN : IN SUPREME COURT
County of Dane, County of Iowa, Town of Wyoming
and Village of Montfort,
Petitioners-Respondents,
v.
Public Service Commission of Wisconsin,
Respondent-Respondent,
FILED
Driftless Area Land Conservancy, Wisconsin
Wildlife Federation, Chris Klopp, LeRoy Belken, JUL 7, 2022
Gloria Belken, S.O.U.L. of Wisconsin, Clean
Energy Organizations, Dairyland Power Sheila T. Reiff
Cooperation, I.T.C. Midwest, LLC, American Clerk of Supreme Court
Transmission Company, Midcontinent Independent
System Operator, Inc. and WEC Energy Group
Wisconsin,
Intervenors-Respondents,
Michael Huebsch,
Other Party-Petitioner-Petitioner.
County of Dane, Iowa County, Town of Wyoming
and Village of Montfort,
Petitioners-Respondents,
v.
Public Service Commission of Wisconsin,
Respondent-Respondent-Respondent,
Driftless Area Land Conservancy,
Intervenor-Petitioner-Respondent,
Wisconsin Wildlife Federation, Chris Klopp,
LeRoy Belken, Gloria Belken, S.O.U.L.
Wisconsin, Clean Energy Organizations,
Dairyland Power Cooperative, ITC Midwest LLC,
American Transmission Company, LLC,
Midcontinent Independent System Operator, Inc.,
ATC, LLC and WEC Energy Group, Inc.,
Intervenors-Respondents,
Michael Huebsch,
Other Party-Appellant-Petitioner,
Robert M. Garvin,
Other Party.
ROGGENSACK, J., delivered the majority opinion of the Court with
respect to ¶4, in which ZIEGLER, C.J., REBECCA GRASSL BRADLEY,
and HAGEDORN, JJ., joined, and an opinion, in which ZIEGLER,
C.J., REBECCA GRASSL BRADLEY, JJ., joined. HAGEDORN, J., filed
a concurring opinion. KAROFSKY, J., filed a dissenting opinion,
in which ANN WALSH BRADLEY and DALLET, JJ., joined.
APPEAL from an order of the Circuit Court for Dane County.
Reversed.
¶1 PATIENCE DRAKE ROGGENSACK, J. Dane County filed this
Wis. Stat. ch. 227 (2019-20)1 action in Dane County Circuit Court
1 All subsequent references to the Wisconsin Statutes are to
the 2019-20 version unless otherwise indicated.
2
Nos. 2021AP1321-LV & 2021AP1325
to contest the merits of the Public Service Commission's (PSC)2
approval of the Cardinal-Hickory Creek Transmission Line.
Driftless Area Land Conservancy and other Intervenors-
Respondents (hereinafter Driftless) intervened3 in the action
that remains pending in Dane County Circuit Court. Therefore,
the merits of the PSC's approval of Cardinal-Hickory are not
addressed in this opinion.
¶2 We conclude that in pretrial decisions the circuit
court erroneously interpreted Wis. Stat. § 227.57(1), which
interpretation formed the basis for its expansion of the record
created by the PSC and permitted discovery subpoenas of Michael
Huebsch. We so conclude because Driftless failed, as a matter
of law, to satisfy the statutory criteria, or due process
requirements, necessary to expand the record created by the PSC
during the Cardinal-Hickory proceedings.
¶3 In regard to the discovery subpoenas issued to
Huebsch, we conclude that the circuit court erred when it denied
Huebsch's motion to quash. The circuit court's error is
grounded in its erroneous interpretation of Wis. Stat.
§ 227.57(1) wherein it approved discovery subpoenas.
¶4 Although four justices do not agree on how to address
the procedural posture of this case, a majority of the court
2The PSC is a three-member Commission, which was composed
of Rebecca Valcq, Ellen Nowak and Michael Huebsch when the
Cardinal-Hickory line was approved.
3The Intervener-Respondents aligned with Driftless are the
Wisconsin Wildlife Federation, S.O.U.L. of Wisconsin, LeRoy
Belken, Gloria Belken and Chris Klopp.
3
Nos. 2021AP1321-LV & 2021AP1325
agrees that the circuit court improperly denied Huebsch's motion
to quash the discovery subpoena he received. Driftless'
allegations of bias do not come close to the level of alleging a
cognizable due process claim under Caperton v. A.T. Massey Coal
Co., Inc., 556 U.S. 868, 884 (2009) and Miller v. Carroll, 2020
WI 56, ¶24, 392 Wis. 2d 49, 944 N.W.2d 542.
¶5 We further conclude that the circuit court did not
clearly apply the correct legal standard when evaluating whether
a due process violation had been stated; we reverse the circuit
court's July 30, 2021 order denying Huebsch's motion to quash
discovery subpoenas; and we conclude the circuit court
erroneously denied Huebsch's request for a stay pending appeal.
Accordingly, we reverse the circuit court.
I. BACKGROUND
¶6 This lawsuit, filed by Dane County, challenges the
PSC's approval of construction of the Cardinal-Hickory line.4 As
the lawsuit moved forward and added intervening parties,
Driftless sought to expand the record produced before the PSC
pursuant to Wis. Stat. § 227.57(1) in order to produce grounds
to overturn the merits of the Cardinal-Hickory decision.
¶7 The record of the proceedings reflects that Cardinal-
Hickory enjoyed widespread support from labor, industry,
business groups, environmentalists, Republicans and Democrats.
4The Cardinal-Hickory docket opened in April 2018 when
American Transmission Company LLC, ITC Midwest LLC and Dairyland
Power Cooperative petitioned the PSC for a certificate of public
convenience and necessity (CPCN) for construction and operation
of the transmission line.
4
Nos. 2021AP1321-LV & 2021AP1325
Its proponents provided testimony that Cardinal-Hickory would
improve energy reliability and create clean-energy
infrastructure for Wisconsin by enabling greater usage of
renewable energy sources across the Midwest.5 More than 60
persons participated as parties in the proceedings, including
Driftless.
¶8 The chairman of the Federal Energy Regulatory
Commission (FERC) made strengthening interstate transmission a
principal goal, which he presented to the PSC.6 The PSC held
highly technical fact-based hearings, supported by expert
testimony, during June of 2019.
¶9 On August 20, 2019 in an open meeting, the PSC voted
unanimously to grant the Certificate of Public Convenience and
Necessity (CPCN) for construction of Cardinal-Hickory. On
September 26, 2019, the PSC issued a 112 page written order
finalizing CPCN approval.
¶10 After it lost before the PSC, Driftless moved to
disqualify two of the three commissioners, alleging their
participation created an unconstitutional "appearance of bias
and lack of impartiality."7 It alleged that Chairperson Rebecca
5 Clean Grid Alliance, Fresh Energy, and Minnesota Center
for Environmental Advocacy's Request to Intervene and Notice of
Appearance, PSC REF# 353628 at 3 (Nov. 20, 2018),
https://tinyurl.com/hc4xvy68.
6 Energy Policy Institute, Revitalizing the Grid to Achieve
a Clean-Powered Economy: A Conversation with FERC Chair Richard
Glick (June 30, 2021) https://tinyurl.com/f2znuja8.
7 PSC Order, September 26, 2019, 80.
5
Nos. 2021AP1321-LV & 2021AP1325
Valcq's past work for We Energies "created an appearance of
bias" and Michael Huebsch's work with a federal regulator,
Midcontinent Independent System Operator (MISO), precluded his
participation because he could have received ex parte
communications about Cardinal-Hickory while at MISO events,
again raising the "appearance of bias."
¶11 In its written decision approving construction of
Cardinal-Hickory, the PSC unanimously rejected Driftless' bias
claims because they were "not timely filed and did not comply
with applicable legal standards."8 The PSC explained that
Huebsch was a PSC "Commissioner at the time of [Driftless']
intervention and it was publicly known that Commissioner Huebsch
was the Commission's OMS representative," as was his work with
MISO, which had been on-going for more than four years.9 The PSC
explained that "[i]t is clear that the information [Driftless]
cited to support its Motion was available to it months (if not
years) before the party hearing and the Commission's discussion
of the record at the open meeting of August 20, 2019."10
¶12 The PSC noted that Driftless did not support its
allegations with a verified affidavit based on personal
knowledge of the facts alleged in its motion, nor did it name a
single witness who would have such knowledge.11 Accordingly, the
Id., 81; see also Driftless Area Land Conservancy v. Valcq
8
(Driftless II), 16 F.4th 508, 517 (7th Cir. 2021).
9 PSC Order, September 26, 2019, 81.
10 Id., 82.
11 Id., 83.
6
Nos. 2021AP1321-LV & 2021AP1325
PSC found that Driftless' motion "lacks a legitimate factual
basis to support recusal or disqualification."12 The order
further explained, "There is a presumption of honesty and
integrity in those serving as adjudicators in state
administrative proceedings."13 The PSC found that Valcq's and
Huebsch's "participation complied with all applicable ethical
and legal standards and [Driftless'] Motion lack[ed] any merit
and [was] therefore denied."14 Driftless did not appeal the
factual findings or legal conclusions of the PSC decision.
¶13 Wisconsin Stat. § 227.57 challenges to PSC action
usually are limited to contending that the evidence did not
support the merits of the PSC's decision. However, here,
Driftless mounted a sustained personal attack against
Commissioner Huebsch in an effort to expand the PSC record
through the use of § 227.57(1). In general statements,
Driftless contended that at some point Huebsch could have done
something that might appear to show bias in favor of Cardinal-
Hickory, which Driftless asserts would violate the Due Process
Clause of the Fourteenth Amendment and require vacation of
approval of Cardinal-Hickory.15
12 Id., 84.
13Id., 85 (citing State ex rel. DeLuca v. Common Council,
72 Wis. 2d 672, 684, 242 N.W.2d 689 (1976)).
14 Id., 86.
15Driftless dropped its initial contention that Valcq's
past work created "the appearance of bias" and proceeded solely
against Huebsch.
7
Nos. 2021AP1321-LV & 2021AP1325
¶14 The circuit court concluded that Driftless' general
statements "presented enough information to allow discovery
regarding whether Commissioner Huebsch acted impartially."16
Driftless then subpoenaed Huebsch to sit for a deposition. It
also subpoenaed his phone and phone password for Driftless'
search of his communications. Huebsch moved to protect himself
from Driftless' subpoenas.
¶15 Before the Dane County Circuit Court, where its Wis.
Stat. § 227.57 action is pending, Driftless mounted a
directionless search for "appearance of bias."17 The circuit
court has permitted Driftless to expand the record of the
Cardinal-Hickory proceedings by concluding that an allegation of
the "appearance of bias," if proved, was a due process violation
sufficient to invalidate the PSC's decision. It also concluded
that general "allegations" were all that were needed to satisfy
§ 227.57(1).18 Many depositions were taken and thousands of
pages of documents were produced.
¶16 Huebsch moved to quash the subpoenas in circuit court.
The circuit court refused protection, saying that the difference
between "serious risk of actual bias" and "appearance of bias"
was just "semantics."19 While acknowledging our recent decision
16 Circuit Ct. Decision and Order, May 25, 2021, 1.
There were occasions when Driftless also used the phrase
17
"serious risk of actual bias"; however, as the circuit court
repeated later, "appearance of bias" was the common phraseology.
18 Circuit Ct. Decision and Order, May 25, 2021, 3.
19 Circuit Ct. Mot. Hr'g Tr., July 30, 2021, 15. On August
8
Nos. 2021AP1321-LV & 2021AP1325
in Miller v. Carroll20 that employs serious risk of actual bias
as the due process standard, the circuit court re-characterized
the standard as the "'appearance' [of bias standard] because
that really is what it is."21
¶17 Huebsch moved the court of appeals for interlocutory
review and stay of the discovery subpoenas. The court of
appeals granted interlocutory review and stayed the subpoenas
while the court studied the legal issues presented. Driftless
then withdrew its subpoenas and moved the court of appeals to
dismiss, claiming the action was moot. Based on the withdrawal
of the subpoenas, the court of appeals vacated its stay and the
interlocutory review it had granted, concluding that the issue
for which it had granted review was moot.22
¶18 Then, two business days after the court of appeals
determined that the appeal was moot and vacated its
interlocutory review, Driftless subpoenaed Huebsch to testify at
trial. Although Huebsch did not move the circuit court to quash
the subpoena for trial testimony, he sought an emergency
20, 2021, at Driftless' request, the circuit court vacated its
order denying Huebsch's motion to quash: "IT IS HEREBY ORDERED
that the order denying Michael Huebsch's motion to quash issued
on August 3, 2021, Dkt. 422, and the August 5, 2021 order on
phone protocol, Dkt. 432, are hereby VACATED."
20 Miller v. Carroll, 2020 WI 56, 392 Wis. 2d 49, 944 N.W.2d
542.
21 Id., 16.
County of Dane v. PSC of Wis., No. 2021AP1321-LV,
22
unpublished order at 5 (Wis. Ct. App. Aug. 20, 2021).
9
Nos. 2021AP1321-LV & 2021AP1325
petition for supreme court review and stay of the proceedings in
circuit court. We granted review and stayed further action in
the circuit court, which included Huebsch's trial testimony.
II. DISCUSSION
A. Standard of Review
¶19 When the discovery subpoenas directed to Huebsch were
withdrawn by Driftless, the court of appeals dismissed this
matter as moot. County of Dane v. PSC of Wis., No. 2021AP1321-
LV, unpublished order at 5 (Wis. Ct. App. Aug. 20, 2021). We
independently review whether an issue is moot as a question of
law. Tavern League of Wis., Inc. v. Palm, 2021 WI 33, ¶13, 396
Wis. 2d 434, 957 N.W.2d 261 (citing Portage Cnty. v. J.W.K.,
2019 WI 54, ¶10, 386 Wis. 2d 672, 927 N.W.2d 509).
¶20 This matter arises in the context of a Wis. Stat.
§ 227.57 judicial review of the merits of the PSC's approval of
Cardinal-Hickory. Generally, such reviews are confined to the
record that was created before the agency. However, Driftless
seeks to expand the record that was presented to the PSC during
the Cardinal-Hickory proceedings. It does so pursuant to
§ 227.57(1) that permits record expansion due to "irregularities
in procedure before the agency" . . . "if proper cause is shown
therefor."
¶21 As we review the discovery subpoenas issued to Huebsch
after the circuit court determined that Driftless' general
allegations of bias were sufficient to satisfy Wis. Stat.
§ 227.57(1) thereby permitting expansion of the PSC record
through discovery, we also interpret § 227.57(1). We do so to
10
Nos. 2021AP1321-LV & 2021AP1325
determine whether Driftless' non-specific allegations come
within "irregularities in procedure" of the PSC for which
"proper cause is shown therefor" as those terms are used in
§ 227.57(1). Driftless' contention and the circuit court's
decision present questions of statutory interpretation and
application that we independently review. Tavern League, 396
Wis. 2d 434, ¶13.
¶22 In addition, Driftless claims that the irregularity in
the procedure was Huebsch's "appearance of bias" that denied it
due process of law. Whether constitutional due process has been
afforded in an administrative proceeding is a question of law
that we independently review. Marder v. Bd. of Regents of the
Univ. of Wis. Sys., 2005 WI 159, ¶19, 286 Wis. 2d 252, 706
N.W.2d 110 (citing State v. Sorenson, 2002 WI 78, ¶25, 254
Wis. 2d 54, 646 N.W.2d 354).
¶23 And finally, we review whether the circuit court
erroneously exercised its discretion when it denied Huebsch's
motion to quash the subpoenas for his deposition, his cell phone
and cell phone password. Lane v. Sharp Packaging Sys., Inc.,
2002 WI 28, ¶19, 251 Wis. 2d 68, 640 N.W.2d 788. Whether the
circuit court applied the correct legal standard as it exercised
its discretion is a question of law that we independently
review. Id.B. Mootness
¶24 "Mootness is a doctrine of judicial restraint."
Marathon Cnty. v. D.K., 2020 WI 8, ¶19, 390 Wis. 2d 50, 937
N.W.2d 901. "An issue is moot when its resolution will have no
11
Nos. 2021AP1321-LV & 2021AP1325
practical effect on the underlying controversy." J.W.K., 386
Wis. 2d 672, ¶11. Although we usually do not address issues
that are moot, we have developed exceptions where we agree to
review issues that may be moot when: "(1) 'the issues are of
great public importance;' (2) 'the constitutionality of a
statute is involved;' (3) the situation arises so often 'a
definitive decision is essential to guide the trial courts;'
(4) 'the issue is likely to arise again and should be resolved
by the court to avoid uncertainty;' or (5) the issue is 'capable
and likely of repetition and yet evades review.'" Id., ¶12.
¶25 We need not decide whether issues raised herein are
moot because even if they were, exceptions to the mootness
doctrine provide for our review. For example, the only
conceivable basis for mootness here is Driftless' voluntarily
withdrawing its July subpoenas through which it sought to expand
the record created in the PSC proceedings.
¶26 An issue is likely to arise again and evade review
when an actor voluntarily ceases challenged conduct but retains
the power to resume that conduct. Friends of the Earth, Inc. v.
Laidlaw Env't Servs., Inc., 528 U.S. 167, 189 (2000) (explaining
that the obligation to persuade a court that the challenged
conduct cannot reasonably be expected to start up again lies
with the party asserting mootness). In the matter before us,
not only did Driftless have the power to issue additional
subpoenas to Huebsch, it did so in August, a few days after the
court of appeals vacated its stay and withdrew the interlocutory
12
Nos. 2021AP1321-LV & 2021AP1325
review it had granted. Accordingly, we choose to address the
issues presented for our review.
C. Wisconsin Stat. § 227.57 Review
1. Statutory Interpretation
¶27 Dane County filed this case as a Wis. Stat. § 227.57judicial review to test the merits of the PSC's approval of
Cardinal-Hickory. A determination on the merits of that
decision remains pending a hearing in Dane County Circuit Court.
The scope of the Dane County judicial review will be "confined
to the record" unless the criteria to expand the record set out
in § 227.57(1) are met. Section 227.57(1) provides:
The review shall be conducted by the court without a
jury and shall be confined to the record, except that
in cases of alleged irregularities in procedure before
the agency, testimony thereon may be taken in the
court and, if leave is granted to take such testimony,
depositions and written interrogatories may be taken
prior to the date set for hearing as provided in ch.
804 if proper cause is shown therefor.
§ 227.57(1).
¶28 It is important to note that our review focuses on
allegations about Huebsch, which the circuit court has concluded
are sufficient to satisfy Wis. Stat. § 227.57(1)'s criteria to
expand the PSC record through discovery. Our review does not
address the merits of the PSC's approval of Cardinal-Hickory.23
Rather, we address Driftless' allegation, and the circuit
23 Here, we conclude that Huebsch, as a subpoena recipient,
can challenge whether a reasonable jurist would understand
Driftless' allegations as raising a cognizable Caperton due
process claim in the context of the attempt to expand the PSC
record pursuant to Wis. Stat. § 227.57(1).
13
Nos. 2021AP1321-LV & 2021AP1325
court's conclusion, that Huebsch's "appearance of bias" was an
irregularity in the PSC procedure during the Cardinal-Hickory
proceeding under the provisions of § 227.57(1). Stated
otherwise, Driftless contends that the circuit court's statutory
interpretation permits Driftless to expand the record created in
the PSC proceedings.24 Driftless asserts it can do so through
testimony in court and by taking depositions and written
interrogatories prior to the court hearing based on Huebsch's
"appearance of bias" that impaired its right to due process
during the PSC proceedings.
¶29 In order to assess the statutory argument Driftless
makes, and on which the circuit court permitted discovery, we
interpret Wis. Stat. § 227.57(1). We begin with the language of
the statute. State ex rel. Kalal v. Cir. Ct. for Dane Cnty.,
2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110. If the words
are commonly used words without specific or technical
definitions, we apply common definitions. Id. If words chosen
are technical terms or specially defined, we apply definitions
consistent with that legislative choice. Id. Context also is
important to meaning, as is the structure of the statute itself.
Id., ¶46.
¶30 In order to expand the record that was created before
the PSC, a plain reading of Wis. Stat. § 227.57(1) requires that
Driftless argued, "Petitioners propose to identify a set
24
of specific, relevant documents that the parties can easily and
quickly 'produce' again in state court. This approach is
[grounded] in this Court's authority under Section 227.57(1)."
R. 297 at 4.
14
Nos. 2021AP1321-LV & 2021AP1325
Driftless first show "proper cause." "[I]f proper cause is
shown" of an irregularity in procedure of the PSC, § 227.57(1)
provides that the court may grant leave to take testimony in
court and to take depositions and written interrogatories prior
to the date set for a hearing on the merits of the agency
decision. Although "proper cause" is not defined in the
statute, § 227.57(1) nevertheless requires that the moving party
provide evidence of procedural irregularities such that the
circuit court may conclude that there is proper cause to grant
leave to expand the PSC record.
¶31 In Marris v. City of Cedarburg, 176 Wis. 2d 14, 498
N.W.2d 842 (1993), we considered alleged bias of an
administrative decision-maker. We held that a prima facie
showing of wrongdoing by a decision-maker is necessary in order
to evaluate a claim of bias in an administrative decision. Id.
at 29-30. Alleged wrongdoing must be based on factual evidence.
Id. As we explained, a prima facie showing of wrongdoing by a
decision-maker requires specific statements of objective facts
that are sufficient to show bias of the decision-maker. Id. at
24.
¶32 In Marris, neighbors challenged the continued legality
of Marris's use of one of the buildings on her property for
which she had been granted a nonconforming use. An
administrative hearing was held to determine whether Marris's
repairs of her property caused it to lose its legal
nonconforming use.
15
Nos. 2021AP1321-LV & 2021AP1325
¶33 After a decision contrary to Marris, she challenged a
member of the review committee, alleging bias. Id. at 23. In
our discussion, we detailed specific factual statements of the
decision-maker that were necessary to making the prima facie
case of wrongdoing. That is, we examined whether the
chairperson's statements showed that he had prejudged whether
Marris's repairs of her property were sufficient to cause loss
of its legal nonconforming use.
¶34 As we explained, the chairperson's statements, which
were part of the record of the committee's discussion, related
to his characterization of the merits of Marris's claim. For
example, "the chairperson referred to Marris's legal position as
a 'loophole' in need of 'closing.'" Id. at 27. He expressed a
desire "to 'get her [Marris] on the Leona Helmsley rule,'" id.,and he questioned the claimant's credibility.25 Id. at 27-28.
We concluded that taken together his "statements overc[ame] the
presumption of honesty and integrity that would ordinarily be
applied." Id. at 29-30. We concluded that his statements
"clearly indicated that he had prejudged Marris's case, thus
creating an impermissibly high risk of bias" in his committee
decision. Id. at 31. We then remanded the matter for a new
hearing in which the chairperson could not participate. Id.In analyzing expenditures, he questioned how could the
25
Board know "whether Marris 'bought a door for that building or
for another building she built.'" Marris v. City of Cedarburg,
176 Wis. 2d 14, 28, 498 N.W.2d 842 (1993).
16
Nos. 2021AP1321-LV & 2021AP1325
¶35 In a similar way, the court of appeals discussed the
requirement that is necessary in order to expand a record
created during common law certiorari review of an administrative
proceeding when it considered irregularities in procedure in
Sills v. Walworth Cnty. Land Mgmt. Comm'n, 2002 WI App. 111, 254
Wis. 2d 538, 648 N.W.2d 878. Sills explained that when the
allegation is bias of an administrative decision-maker,
expansion of the record created by the agency requires a "prima
facie showing of wrongdoing" by the decision-maker. Id., ¶42.
¶36 It is important to note that general allegations about
the adjudicator that were made in Sills were in sharp contrast
with the specific statements made by the adjudicator in Marris.
In Sills, the objectors alleged that a lobbyist retained by
Peterson to garner public support for the Conditional Use Permit
(CUP) application "may have had" ex parte communications with
the adjudicating committee "which may have led to bias in the
proceedings." Id., ¶34.
¶37 In evaluating whether "help[ing] to gather public
support" for the CUP was sufficient to open discovery, the court
of appeals noted that nothing was presented to show the lobbyist
"directly contacted Committee members." Id., ¶43. There also
was no showing that "members were influenced by something more
than the application of the evidence to the ordinance
standards." Id. In concluding that general allegations were
insufficient to open discovery and thereby permit expansion of
the record, the court of appeals said:
17
Nos. 2021AP1321-LV & 2021AP1325
The sole and limited purpose for the requested
discovery is to determine whether the
lobbyist . . . contacted any Committee members . . . .
This transparent attempt to use the discovery process
as a fishing expedition to uncover evidence of bias is
precluded by the presumption of honesty and integrity
that we accord the Committee's decision.
Id.
¶38 As Sills explained, a prima facie showing cannot rest
solely on general allegations. Sills denied the attempt to
expand the record of the Committee proceedings because "an
allegation of ex parte contacts without more is not sufficient
to show the impermissibly high risk of bias that concerned the
court in Marris." Id., ¶44.
¶39 We agree with the reasoning of Sills, and conclude
that the phrase, "if proper cause is shown therefor," as it is
employed in Wis. Stat. § 227.57(1), requires a prima facie
showing of wrongdoing by an administrative decision-maker. We
further conclude that "proper cause is shown therefor" by
providing specific factual statements by the adjudicator that
show wrongdoing, i.e., objective factual evidence of the
adjudicator prejudging the merits of the matter before the
committee. Id., ¶¶42, 43.
¶40 General allegations that the challenger characterizes
as implying improper acts of an administrative decision-maker
are insufficient. Id. Our interpretation also is consistent
with Marris. There, we evaluated how to approach allegations of
bias by a decision-maker. We did so by reviewing the decision-
maker's specific factual statements that bore on the merits of
the claim before the committee. Marris, 176 Wis. 2d at 24, 31.
18
Nos. 2021AP1321-LV & 2021AP1325
¶41 Driftless has provided no factual statements by or to
Huebsch on the merits of the Cardinal-Hickory line.26 Its
general allegations of concern are legally insufficient to
permit expansion of the record created before the PSC pursuant
to the requirements of Wis. Stat. § 227.57(1). The circuit
court erred when it interpreted Driftless' general allegations
as sufficient to satisfy § 227.57(1) and thereby permitted
Driftless to employ discovery subpoenas.27 The circuit court
ignored the statutory phrase "if proper cause is shown
therefore" stated in § 227.57(1), giving it no meaning at all.
Accordingly, the circuit court erred in its interpretation of
§ 227.57(1). We now move to consider what due process requires.
2. Due Process
¶42 Due process applies to proceedings before
administrative entities. Withrow v. Larkin, 421 U.S. 35, 46
(1975). A basic element of due process is the right to a fair
hearing conducted before a fair tribunal. Miller, 392 Wis. 2d
49, ¶24; Marder, 286 Wis. 2d 252, ¶27.
¶43 In order to show a due process violation, the claimant
must show a "serious risk of actual bias." Caperton, 556 U.S.
Attorney
26 Rachael Granneman, counsel for Driftless,
provided a "Declaration" made after her review of meeting
minutes and other documents created by various organizations.
She adds her opinion of what those copied documents mean. None
of the minutes and documents attached to her Declaration are
based on her personal knowledge of what occurred at various
meetings.
27 Circuit Ct. Decision and Order, May 25, 2021, 3.
19
Nos. 2021AP1321-LV & 2021AP1325
at 884; Miller, 392 Wis. 2d 49, ¶24. The burden of making that
proof is on the party challenging the impartiality of the
adjudicator. Marder, 286 Wis. 2d 252, ¶32 (relying on Withrow,
421 U.S. at 47).
¶44 In Marder, a tenured faculty member complained that ex
parte contacts with members of the Board of Regents on the
merits of his case must have occurred because of continuing
interactions of Board members with others. Marder, 286 Wis. 2d
252, ¶2. Marder's claim of bias failed because:
Marder has not presented any facts that would overcome
the presumption that the chancellor and Marcovich
acted appropriately when they traveled together. They
were not prohibited from talking to one another and
the legal presumption that administrative adjudicators
are able to maintain their professional and ethical
responsibility to remain impartial and to conduct
themselves appropriately applies.
Id., ¶34.
¶45 As we explained in Marder while relying on the United
States Supreme Court's discussion in Withrow, administrative
decision-makers are entitled to the presumption of "honesty and
integrity" when serving as adjudicators. Withrow, 421 U.S. at
47. As the concurrence carefully explained in Herrmann, "[I]t
is not reasonable to question a judge's impartiality unless one
can prove by objective evidence that actual bias or the
probability of a serious risk of actual bias exists." State v.
Herrmann, 2015 WI 84, ¶113, 364 Wis. 2d 336, 867 N.W.2d 772(Ziegler, J., concurring). To overcome the presumption of
honesty and integrity, the party asserting bias of an
20
Nos. 2021AP1321-LV & 2021AP1325
administrative adjudicator must show a "serious risk of actual
bias——based on objective and reasonable perceptions." Caperton,
556 U.S. at 884.
¶46 Before us, Driftless makes three types of general
allegations on which it claims a due process
violation: (1) Huebsch's activities with MISO provided
opportunities for improper conversations; (2) Huebsch's life-
time friendships with those who work in the provision or
distribution of energy could have included improper
conversations; and (3) Huebsch's application for employment by
Dairyland Power Cooperative after he resigned from the PSC
implies a connection between his decision in Cardinal-Hickory
and future employment.
a. MISO
¶47 MISO is controlled by federal law. A brief review of
MISO's functions and its support by state and federal statutes
as a regional energy regulator will be helpful to our
discussion.
¶48 More than ten years ago, Wisconsin decided to require
certain utilities to join MISO. Wis. Stat.
§ 196.485(3m)(a)1.d.; §§ 196.485(2)(a) and (4)(a). MISO is the
operator of the regional transmission system of which Wisconsin
is a part.28 It administers a FERC-approved tariff to which MISO
must respond. Performing this task requires MISO to oversee
MISO
28 Region Engagement available at:
https://www.misoenergy.org/stakeholder-engagement/miso-
engagement.
21
Nos. 2021AP1321-LV & 2021AP1325
various energy-related functions for which it needs input from
state energy regulators, such as the PSC, on matters that affect
bulk electric power systems. 18 C.F.R. § 35.34(k); see also
Ill. Commerce Comm'n v. Fed. Energy Reg. Comm'n, 721 F.3d 764,
769-71 (7th Cir. 2013) (explaining background for MISO).
¶49 As FERC has explained, "We recognize that state
utility regulators play an important and unique role in
transmission planning processes, given that the states often
have authority over transmission, permitting, siting, and
construction, and that many state regulatory commissions require
utilities to engage in integrated resource planning."29 The FERC
requires "[e]ach public utility transmission provider,"
including the PSC, "[t]o participate" in these "regional
transmission planning process[es]."30
¶50 To assist in FERC's informational process, the PSC
delegates authority to one of its commissioners to represent
Wisconsin's interests at Organization of MISO States (OMS)31 and
before MISO. This delegation became a part of Huebsch's service
as a commissioner on the PSC in 2015. Therefore, he was the
PSC's delegate when he participated in the MISO and OMS
29 FERC Order No. 1000-A, 139 FERC ¶ 61,132, ¶291 (May 17,
2012).
Order No. 1000 Transmission Planning and Cost Allocation,
30
https://tinyurl.com/x8k6uve5.
OMS is separate from MISO.
31 Huebsch was an OMS
representative to the MISO Advisory Committee under the OMS
Bylaws. See OMS, Organization of MISO States Bylaws at Articles
V.3, X (revised Sept. 13, 2002).
22
Nos. 2021AP1321-LV & 2021AP1325
activities of which Driftless complains. Huebsch's interactions
in regard to MISO and OMS were publically known long before the
proceedings on Cardinal-Hickory began.32
¶51 Driftless alleges that Huebsch's activities with MISO
and OMS support its allegation that he engaged in ex parte
communications that are prohibited under Wis. Stat.
§ 227.50(1)(a). Driftless makes this allegation without one
single example of Huebsch engaging in conversations with anyone
from MISO or OMS about the merits of the Cardinal-Hickory line.33
¶52 Ex parte communication on the merits of a contested
matter is the focus of Wis. Stat. § 227.50(1)(a). It regulates
ex parte communications on the merits as follows:
[I]n a contested case, no ex parte communication
relative to the merits or a threat or offer of reward
shall be made, before a decision is rendered, to the
hearing examiner or any other official or employee of
the agency who is involved in the decision-making
process, by any of the following:
1m. An official of the agency or any other
public employee or official engaged in prosecution or
advocacy in connection with the matter under
consideration or a factually related matter . . . .
2. A party to the proceeding, or any person who
directly or indirectly would have a substantial
interest in the proposed agency action or an
authorized representative or counsel.
§ 227.50(1)(a).
32 PSC Order Sept. 26, 2019, 81.
Huebsch did receive a communication regarding Cardinal-
33
Hickory, but it came from a member of another state regulatory
commission. Huebsch publically disclosed this communication, as
required by Wisconsin law.
23
Nos. 2021AP1321-LV & 2021AP1325
¶53 According to Wis. Stat. § 227.50(1)(a), not all
communications with those involved in the decision-making
process are prohibited. Only those communications "relative to
the merits" of a pending matter are proscribed. Driftless has
identified no communications between Huebsch and MISO or OMS, or
anyone else, relative to the merits of the Cardinal-Hickory
line. Rather, Driftless implies there must have been such
communications because of Huebsch's attendance at MISO and OMS
events. General allegations such as Driftless asserts are
legally insufficient to contravene the terms of § 227.50(1)(a)
because they do not show a communication "relative to the
merits" of the Cardinal-Hickory line.
¶54 In addition, Driftless does not recognize the
necessary connections among MISO, OMS, FERC and the PSC.
However, the required connections among the PSC, MISO, OMS and
the FERC under state and federal statutes were apparent years
before Driftless intervened in this action.34 Huebsch's
participation in MISO and OMS as the PSC's delegate also was
publically available years before Driftless intervened in this
action.35 Given the public nature of this information,
Driftless' general allegations about Huebsch's participation in
MISO and OMS activities as somehow showing an appearance of bias
borders on frivolous pleading.
34 Id., 82.
35 Id., 83.
24
Nos. 2021AP1321-LV & 2021AP1325
¶55 Driftless also ignores the presumption of honesty and
integrity that is accorded to decisions of administrative
decision-makers. Sills, 254 Wis. 2d 538, ¶43; Withrow, 421 U.S.
at 47. In order to overcome the presumption of honesty and
integrity, Driftless was required to prove a "serious risk of
actual bias——based on objective and reasonable perceptions."
Caperton, 556 U.S. at 884. As we explained in Miller, "[t]o
assess whether the probability of actual bias rises to the level
of a due process violation, we apply, verbatim, the standard
from Caperton. We ask whether there is 'a serious risk of
actual bias——based on objective and reasonable perceptions.'"
Miller, 392 Wis. 2d 49, ¶24.
¶56 Before us, Driftless ignores the foundational
presumption of honesty and integrity of administrative decision-
makers, and makes no showing of actual communications on the
merits of Cardinal-Hickory that could evidence a serious risk of
actual bias. Driftless had the burden of proof in its challenge
to Huebsch's impartiality. Marder, 286 Wis. 2d 252, ¶24;
Withrow, 421 U.S. at 47. Because it did not provide factual
evidence of wrongdoing by Huebsch, it failed to meet that
burden.
¶57 In regard to Wis. Stat. § 227.57(1), by which
Driftless asserts its due process claim as an "irregularity in
the procedure" before the PSC, judicial review under § 227.57(1)
"shall be confined to the record." The record may be expanded
only "if proper cause is shown" of an irregularity in procedure
before the PSC. Therefore, the potential to expand the record
25
Nos. 2021AP1321-LV & 2021AP1325
is conditional. We conclude that first, a prima facie showing
that Huebsch engaged in wrongdoing must be made. Sills, 254
Wis. 2d 538, ¶42. Driftless has not identified one example of
wrongdoing by Huebsch in regard to his interactions with MISO or
OMS.
¶58 Accordingly, we conclude that Driftless' allegations
in regard to Huebsch's activities with MISO and OMS are
insufficient as a matter of law to pose a serious risk of actual
bias, such that he was required to recuse himself from the
Cardinal-Hickey proceedings based on a due process violation.
Caperton, 556 U.S. at 884; Miller, 392 Wis. 2d 49, ¶22. They
also are insufficient to support expanding the Cardinal-Hickory
record created in proceedings before the PSC pursuant to Wis.
Stat. § 227.57(1) because they show no factual evidence of
wrongdoing by Huebsch.
b. Friendships
¶59 Although Driftless argues to us that Huebsch's many
friendships within the energy community could be a basis for
bias, this contention was not made until briefing in this
review. As with its allegation in regard to MISO, Driftless'
allegations are general associational concerns for which it
provides no factual incidents of communication about the merits
of the Cardinal-Hickory line.
¶60 Caperton and Miller require that the decision-maker
evidence a serious risk of actual bias before due process
requires recusal. Caperton, 556 U.S. at 884; Miller, 392
Wis. 2d 49, ¶24. Without evidence of factual communications
26
Nos. 2021AP1321-LV & 2021AP1325
that show wrongdoing by Huebsch, "proper cause" to expand the
record under Wis. Stat. § 227.57(1) based on bias of a decision-
maker does not exist. Accordingly, Driftless' general
allegations of concern provide no basis from which we could
conclude that there is a serious risk of actual bias that would
require disqualification of Huebsch according to Caperton and
our decision in Miller or that "proper cause has been shown" of
wrongdoing by Huebsch according to § 227.57(1) based on personal
friendships. We agree with the PSC that Driftless' allegation
"lacks a legitimate factual basis to support recusal or
disqualification."36
c. Job Application37
¶61 Before us, Driftless implies that, because Huebsch
applied for the position of CEO of Dairyland Power Cooperative
months after he resigned from the PSC, there was some kind of a
quid pro quo going on where Huebsch would approve Cardinal-
Hickory and then be hired by Dairyland. Once again, there is
absolutely no factual evidence to support this theory. This is
simply another attempt by Driftless to create the view that
Huebsch was biased, which is based on nothing factual except its
aggressive litigation posture.
¶62 What the facts show is that after the PSC's September
26, 2019 decision on Cardinal-Hickory, Huebsch resigned. He had
36 PSC Order, Sept. 26, 2019, 84.
37Once again, this concern was not presented until
briefing.
27
Nos. 2021AP1321-LV & 2021AP1325
served on the PSC since 2015. In January of 2020, the previous
CEO of Dairyland Power, Barbara Nick, announced that she was
retiring. On April 23, 2020, Huebsch submitted an application
to a search firm for the position of Dairyland Power CEO. He
was not hired; he did not get even an interview for the
position.
¶63 Driftless provided no factual evidence that Huebsch
presented a serious risk of actual bias in favor of approval of
Cardinal-Hickory. There is no factual evidence of any
wrongdoing by Huebsch. Unsubstantiated allegations are all that
Driftless provided. Therefore, there is no "proper cause," as
required under Wis. Stat. § 227.57(1), to expand the record
created before the PSC on the Cardinal-Hickory line.
D. Circuit Court Decision
¶64 Because the Wis. Stat. § 227.57 review of the merits
of the PSC's approval of Cardinal-Hickory is pending in circuit
court, this matter will return to the circuit court upon our
remand. Accordingly, we address previous statements and
decisions made by the circuit court relative to the PSC approval
of Cardinal-Hickory.
1. Due process violation
¶65 In a written order, the circuit court declared "if
Comm. Huebsch was improperly biased or his participation creates
an improper appearance of bias, I must vacate the PSC decision
and remand to the PSC for further proceedings."38 In a
38 Circuit Ct. Decision and Order, May 25, 2021, 9.
28
Nos. 2021AP1321-LV & 2021AP1325
transcript of the motion hearing held July 30, 2021, the circuit
court also said, "I'm going to call it 'appearance' because that
really is what it is saying: When we can't say that there's
actually bias, but there's such a high risk of bias that we're
going to call it a due process violation anyway."39 The circuit
court may have recognized our decision in Miller, where we
clearly stated that a due process violation requires a showing
of the serious risk of actual bias based on objective factual
representations. Miller, 392 Wis. 2d 49, ¶24. We conclude that
although the circuit court may have understood the law, its
repeated statements grounded in "the appearance of bias," when
combined with the lack of factual evidence of communications to
or from Huebsch on the merits of Cardinal-Hickory, are not
sufficient to support a due process claim based on a "serious
risk of actual bias." Stated otherwise, no serious risk of
actual bias was shown here.
¶66 It was in part based on this error of what is required
to state a due process violation that the circuit court
interpreted Wis. Stat. § 227.57(1) as being satisfied by
generalized allegations. As explained above, the circuit court
interpreted § 227.57(1) as permitting expansion of the record,
which resulted in the subpoenas to Huebsch among other
discovery. In so concluding, the circuit court erred as a
matter of law. Miller, 392 Wis. 2d 49, ¶24.
2. Subpoenas protection
39 Circuit Ct. Mot. Hr'g Tr., July 30, 2021, 16.
29
Nos. 2021AP1321-LV & 2021AP1325
¶67 We review the circuit court's decision that denied
Huebsch's motion to quash Driftless' discovery subpoenas and its
refusal to stay its discovery order. The purpose of all
subpoenas was to obtain evidence that would permit Driftless to
expand the record pursuant to Wis. Stat. § 227.57(1).
¶68 The discovery subpoenas are prohibited by our
interpretation of Wis. Stat. § 227.57(1). They are not grounded
in a legally cognizable due process claim. The circuit court
refused the protection sought by Huebsch's motion to quash the
discovery subpoenas. We review its order to determine whether
the circuit court erroneously exercised its discretion. Lane,
251 Wis. 2d 68, ¶19. When doing so, we examine whether the
circuit court applied the correct legal standard. Id.¶69 For the reasons explained above relative to Driftless'
allegations, the circuit court herein erroneously interpreted
Wis. Stat. § 227.57(1) and it did not clearly apply the correct
standard by which to measure whether a due process violation had
been stated. It also refused to apply the standard we require
when a circuit court is meeting a request for a stay of its
order pending appeal. See Waity v. LaMahieu, 2022 WI 6, ¶50,
400 Wis. 2d 356, 969 N.W.2d 263.
¶70 As we have explained above in our interpretation of
Wis. Stat. § 227.57(1), in order to expand the record created
before the PSC, Driftless must show "proper cause" by prima
facie proof of wrongdoing by Huebsch.40 Such proof must be based
40 Supra, ¶28.
30
Nos. 2021AP1321-LV & 2021AP1325
on facts that show "irregularities in procedure" before the PSC
in order to satisfy § 227.57(1).41 A prima facie showing
requires objective facts; general allegations of concern are
insufficient to satisfy the statutory possibility of expanding
the record beyond that which was created before the PSC.42
¶71 Huebsch's application for employment with Dairyland
Power was an event that concerned the circuit court. The record
shows that he submitted an application on April 23, 2020, months
after he left the PSC. This event was raised by the affidavit
of Driftless' attorney alleging that his application evidenced
"irregularities in procedure before the agency" pursuant to Wis.
Stat. § 227.57(1). The circuit court agreed and said:
I do think there was a prima facie case made as it
relates to Commissioner Huebsch and the way that it
was demonstrated was through a variety of
circumstances that started what I call immediately
after the decision. . . . What actions happened that
were documented showing him exchanging communications
with one of the owners involved in this decision, it
looked like if not the very first, one of the earliest
communications was talking about having a meeting with
the head of that company, and then it went from there
with another series of events that ultimately
culminated in his applying for her job. . . .
I'm saying that is enough to raise a reasonable
question whether a commissioner, who was taking those
kind of actions so quickly after rendering a decision,
was truly acting impartial or if they had other
considerations outside of the record in front of them
on their mind when rendering the decision. . . .
41 Supra, ¶29 (citing Marris, 176 Wis. 2d at 29-30).
42 Supra, ¶36.
31
Nos. 2021AP1321-LV & 2021AP1325
So enough has been shown to allow further exploration
under [Wis. Stat. § ] 227.57(1) of exactly what
happened with Commissioner Huebsch.[43]
¶72 The circuit court permitted discovery into whether
Huebsch acted lawfully in his decision on Cardinal-Hickory by
ignoring repetitive court decisions that uniformly hold that
adjudicators in agency proceedings are presumed to act with
honor and integrity. Marder, 286 Wis. 2d 252, ¶34; Withrow, 421
U.S. at 47. The circuit court did not acknowledge that
presumption in the law.
¶73 Rather, instead of applying that longstanding
presumption, the circuit court presumed that applying for
employment with Dairyland Power after the Cardinal-Hickory
proceedings had concluded created a prima facie showing
sufficient to permit discovery of Huebsch's decision-making
during the Cardinal-Hickory proceedings.44
¶74 As we explained above, Driftless had the burden of
proving wrongful conduct through specific factual statements of
Huebsch.45 However, Driftless provided no specific factual
statements by Huebsch and only general allegations about actions
that occurred after the Cardinal-Hickory proceedings had
concluded. These generalized concerns are insufficient to make
a prima facie showing of "irregularities in procedure before the
43 Circuit Ct. Oral Arg. Tr., Jan. 21, 2021, 77-79.
44 Id.Supra, ¶38 (citing Marder v. Bd. of Regents of the Univ.
45
of Wis. Sys., 2005 WI 159, ¶32, 286 Wis. 2d 252, 706 N.W.2d
110).
32
Nos. 2021AP1321-LV & 2021AP1325
agency." Wis. Stat. § 227.57(1); see also Sills, 254 Wis. 2d
538, ¶¶42, 43. Stated otherwise, Driftless had the burden to
show factual statements evidencing wrongdoing by Huebsch.
Marder, 286 Wis. 2d 252, ¶24; Withrow, 421 U.S. at 47. However,
in its ruling, the circuit court actually removed that burden of
proof from Driftless. Instead, the circuit court authorized
discovery by which Huebsch was questioned to determine if he
could prove that he did not act unlawfully.
¶75 The circuit court erred in interpreting Wis. Stat.
§ 227.57(1) to permit discovery, thereby expanding the PSC
record before § 227.57(1)'s requirement of proper cause was
satisfied. The circuit court also did not apply the presumption
of honesty and integrity to Huebsch's service on the PSC. It
did so based largely on the affidavit of Driftless' attorney,
who offered no factual statements to or from Huebsch that showed
he had prejudged the merits of Cardinal-Hickory. The inference
the circuit court accepted was that Huebsch's application for
employment with Dairyland Power in April of 2020 could show that
he had a pre-decision arrangement worked out with Dairyland
Power.46
¶76 Furthermore, the presumption of honesty and integrity
is consistent with the precise conditions the legislature
established in Wis. Stat. § 227.57(1), that, when met, would
permit expanding the record that was developed before the
agency. As we explained above, "irregularities in procedure
46 Circuit Ct. Decision and Order, May 25, 2021, 11.
33
Nos. 2021AP1321-LV & 2021AP1325
before the agency" are permitted to be explored "if proper cause
is shown therefor." § 227.57(1). Proper cause requires
specific factual statements by the decision-maker on the merits
of the matter being decided by the agency. Driftless presented
not one example of objectively factual proof that the law
requires; and the circuit court erred when it required none.
3. Stay pending appeal
¶77 After deciding against Huebsch on his motion to quash,
the circuit court heard Huebsch's motion for a stay pending
appeal. A circuit court's decision to grant or to deny a stay
pending appeal is a discretionary decision. State v.
Gudenschwager, 191 Wis. 2d 431, 439, 529 N.W.2d 225 (1995). A
stay pending appeal should be granted where the moving
party: "(1) makes a strong showing that it is likely to succeed
on the merits of the appeal; (2) shows that, unless a stay is
granted, it will suffer irreparable injury; (3) shows that no
substantial harm will come to other interested parties; and
(4) shows that a stay will do no harm to the public interest."
Id. at 440.
¶78 Here, the circuit court listed the four Gudenschwager
factors, but did not apply them. In regard to the first factor,
the circuit relied on its prior decisions to conclude that there
was "not a strong showing of likelihood to succeed on the
merits. In fact, I disagreed with Mr. Huebsch as to the
34
Nos. 2021AP1321-LV & 2021AP1325
arguments on the merits; so I can't find that that factor favors
a stay pending appeal."47
¶79 The court concluded that because it had disagreed with
Huebsch's position in the pending case, Huebsch had no
likelihood of success on the merits when the matter proceeded on
appeal. This is the same error we described in Waity where a
stay was requested and the circuit court simply referred to its
own legal reasoning earlier in the pending case as its decision
on the motion for a stay. We held it was error to do so.
Waity, 400 Wis. 2d 356, ¶52 (explaining that "a circuit court
cannot simply input its own judgment on the merits of the case
and conclude that a stay is not warranted.").
¶80 Here, the circuit court did not reexamine the legal
issues presented and it did not consider the standard of review
that the court of appeals would apply to its decisions on
relevant legal issues. For example, it did not seem to
understand that its interpretation of Wis. Stat. § 227.57(1)
would be reviewed de novo by the court of appeals.
¶81 Its decision on the remaining Gudenschwager factors is
equally deficient in applying the law to the facts presented.
In regard to irreparable injury, the court said, "I simply don't
see that here. I mean, there's certainly some burden that
Mr. Huebsch is going to be put to because he's going to have to
sit for a deposition . . . but that's not an irreparable
47 Circuit Ct. Mot. Hr'g Tr., July 30, 2021, 63.
35
Nos. 2021AP1321-LV & 2021AP1325
injury."48 The court went on, "If I grant this stay, I'm
essentially handcuffing the petitioners from getting some of ––
what may be some of the most relevant information for that
hearing."49
¶82 The court did not consider whether the harm done by
deposing an administrative decision-maker about the substance of
his decision could be undone on appeal. Yet, that is a type of
irreparable injury that we gave as an example in Waity. Waity,
400 Wis. 2d 356, ¶58. We do not dwell on the circuit court's
reasoning on the other Gudenschwager factors because application
of the law relative to a stay pending appeal was completely
absent from the circuit court's reasoning. Not only did the
circuit court err in subjecting Huebsch to discovery, it erred
in not staying its decision pending appeal.
III. CONCLUSION
¶83 We conclude that in pretrial decisions the circuit
court erroneously interpreted Wis. Stat. § 227.57(1), which
interpretation formed the basis for its expansion of the record
created by the PSC and permitted discovery subpoenas of Huebsch.
We so conclude because Driftless failed, as a matter of law, to
satisfy the statutory criteria or due process requirements
necessary to expand the record created by the PSC during the
Cardinal-Hickory proceedings.
48 Id.49 Id., 65.
36
Nos. 2021AP1321-LV & 2021AP1325
¶84 In regard to the discovery subpoenas issued to
Huebsch, we conclude that the circuit court erred when it denied
Huebsch's motion to quash. The circuit court's error is
grounded in its erroneous interpretation of Wis. Stat.
§ 227.57(1) wherein it approved discovery subpoenas.
¶85 We further conclude that the circuit court did not
clearly apply the correct legal standard when evaluating whether
a due process violation had been stated; we reverse the circuit
court's July 30, 2021 order denying Huebsch's motion to quash
discovery subpoenas; and we conclude the circuit court
erroneously denied Huebsch's request for a stay pending appeal.
Accordingly, we reverse the circuit court.
By the Court.—The order of the circuit court is reversed.
37
Nos. 2021AP1321-LV & 2021AP1325.bh
¶86 BRIAN HAGEDORN, J. (concurring). I agree with much
of the majority/lead opinion.1 It methodically goes through the
allegations against Michael Huebsch, former commissioner of the
Public Service Commission (PSC), and demonstrates why they are
meritless and borderline frivolous. It explains that
generalized allegations of bias come nowhere close to the
constitutional due process standard: actual bias or "a serious
risk of actual bias." See Caperton v. A.T. Massey Coal Co., 556
U.S. 868, 884 (2009); Miller v. Carroll, 2020 WI 56, ¶24, 392
Wis. 2d 49, 944 N.W.2d 542.
¶87 Although I concur in the court's mandate, I arrive at
substantially the same destination via a different route. The
majority/lead opinion reverses the circuit court's decision not
to quash a subpoena for documents, but it gets there by
overturning a separate, months-earlier, unappealed decision from
the circuit court to expand the agency record under Wis. Stat.
§ 227.57(1). I focus instead on the order appealed to us——the
circuit court's decision not to quash a subpoena for documents
under Wis. Stat. § 805.07(3). I agree with the majority/lead
opinion that the allegations against Commissioner Huebsch do not
support the circuit court's actions and the subpoena should have
been quashed. It appears that the procedural paths taken in
this writing and in the majority/lead opinion very likely will
have the same practical effect for Commissioner Huebsch on
remand. I write separately to explain my analysis and to stress
why it was important for us to take this case.
1 I join ¶4 of the majority/lead opinion.
1
Nos. 2021AP1321-LV & 2021AP1325.bh
I
¶88 While the majority/lead opinion correctly explains why
Driftless' fishing expedition must be rejected, it is
insufficiently attentive to the procedural posture of this
appeal.2 To be sure, this case is a procedural anomaly. The
opinion centers its analysis on the circuit court's decision to
expand the record under Wis. Stat. § 227.57(1). But
Commissioner Huebsch, the petitioner here, was not a party to
the case when that decision was made, and no party has sought
leave to appeal that decision. See Wis. Stat. § (Rule)
809.62(1g)(a), (1m)(a)1. (noting that parties may petition for
review of decisions that are adverse to the "party seeking
review"). The opinion nonetheless analyzes § 227.57(1) and
concludes the circuit court erroneously exercised its discretion
in rendering a decision that is not before us. While
§ 227.57(1) is relevant to our inquiry, I do not believe it is
appropriate to reach down and formally reverse this decision,
even if the legal rationale proceeds on a parallel path.
¶89 Commissioner Huebsch recognized this in his briefing.
He does not ask us to formally reverse the circuit court's
decision under Wis. Stat. § 227.57(1), even as he attacks its
reasoning which served as part of the circuit court's basis for
denying the motion to quash. In his reply brief, Huebsch
explained, "His interest in the soundness (or not) of the
circuit court's earlier reasoning permitting discovery is merely
2"Driftless" here refers to Driftless Area Land Conservancy
and the Wisconsin Wildlife Federation. Both parties issued the
discovery subpoena which Commissioner Huebsch seeks to quash.
2
Nos. 2021AP1321-LV & 2021AP1325.bh
indirect and contingent." Indeed, "it is not as if Huebsch
somehow obtains a retroactive right to appeal the old orders."
Huebsch's quarrel, he explained, formally "lies only with orders
directed to him." Therefore, even though I largely agree with
the majority/lead opinion's critique of the circuit court, I do
not join its procedural choice to overrule the decision to
expand the record under § 227.57(1).
¶90 Only the circuit court's order denying Commissioner
Huebsch's motion to quash the discovery subpoena is properly
before us. That order was vacated, and as the court of appeals
identified, it is now moot. However, long-established
exceptions to the mootness doctrine exist for just such a time
as this. Among the relevant considerations, mootness may be
overlooked if "the issue is of great public importance."
Marathon County v. D.K., 2020 WI 8, ¶19, 390 Wis. 2d 50, 937
N.W.2d 901. This case is. The dissent disagrees. It wonders
what all the fuss is about, portraying this as a humdrum case
getting suspicious and undeserved special treatment. Not so.
Imagine an ordinary civil case where, months after the decision,
the losing litigant files a motion alleging a Caperton due
process claim and asking for the private cell phone records of
the judge——and a new judge ordered the records be produced.
That would set an extraordinary precedent, worthy of close and
careful scrutiny. There would certainly be cause to look twice
if the subpoena was rooted in mere speculation rather than firm
evidence, especially given the exceptionally high standard
needed to establish a Caperton due process claim. Against this
3
Nos. 2021AP1321-LV & 2021AP1325.bh
backdrop, we would not think twice of applying a mootness
exception.
¶91 A "that's not this case" argument doesn't work here
because that is this case. The due process claim advanced turns
on the same standard for adjudicatory bodies like the PSC as it
does for courts. Withrow v. Larkin, 421 U.S. 35, 46-47 (1975)
(applying judicial bias rules "to administrative agencies which
adjudicate"). We have seen bias and recusal allegations
increase greatly in recent years, turning the obligation of
adjudicator impartiality into a litigation weapon. That only
heightens the importance of these issues to the functioning of
adjudicatory bodies like the PSC. The dissent's nonchalant view
is misplaced. There is nothing ordinary about this case; it
warrants our attention even though the order appealed from is
moot.3
II
¶92 This leads us to the motion to quash. We review a
motion to quash a subpoena for documents for an erroneous
exercise of discretion. Lane v. Sharp Packaging Sys., Inc.,
2002 WI 28, ¶¶19-20, 251 Wis. 2d 68, 640 N.W.2d 788. "A
discretionary decision will be sustained if the circuit court
Commissioner Huebsch also seeks review of the circuit
3
court's decision to deny a motion for stay pending appeal. That
issue is moot as well. But in my view, no mootness exception
merits reaching that question. We granted Commissioner
Huebsch's requested stay when we accepted this case, and we
recently issued a decision clarifying the proper analysis. See
Waity v. LeMahieu, 2022 WI 6, ¶¶48-54, 400 Wis. 2d 356, 969
N.W.2d 263.
4
Nos. 2021AP1321-LV & 2021AP1325.bh
has examined the relevant facts, applied a proper standard of
law, and, using a demonstrated rational process, reached a
conclusion that a reasonable judge could reach." Indus. Roofing
Servs., Inc. v. Marquardt, 2007 WI 19, ¶41, 299 Wis. 2d 81, 726
N.W.2d 898 (quoting another source).
¶93 By statute, a circuit court may "quash or modify" a
subpoena for documents if the subpoena "is unreasonable and
oppressive." Wis. Stat. § 805.07(3); State v. Gilbert, 109
Wis. 2d 501, 509-10, 326 N.W.2d 744 (1982). And a subpoena,
like any other discovery request, is limited to "any
nonprivileged matter that is relevant to any party's claim or
defense." Wis. Stat. § 804.01(2)(a). Here, the scope of review
is even further limited. The proceeding before the circuit
court is not a case in the normal course, but a review of an
agency decision under Wis. Stat. ch. 227. Typically, such
review is "confined to the record" created by the agency. Wis.
Stat. § 227.57(1). However, "in cases of alleged irregularities
in procedure before the agency . . . depositions and written
interrogatories may be taken . . . if proper cause is shown
therefor." Id. Driftless argues that its Caperton due process
claim focused on Commissioner Huebsch constitutes an alleged
irregularity in procedure.
¶94 Commissioner Huebsch does not disagree that a Caperton
due process violation would constitute a procedural irregularity
under Wis. Stat. § 227.57(1). Rather, he contends that
Driftless failed to state an even remotely cognizable claim. I
agree. As the majority/lead opinion explains well, the
5
Nos. 2021AP1321-LV & 2021AP1325.bh
generalized accusations, innuendo, and wholesale speculation
underlying the bias claims come nowhere close to alleging a
Caperton due process violation. Accordingly, the records
demanded by the subpoena——including Commissioner Huebsch's
cellphone, his communications with a number of individuals both
in the course of his work as a commissioner and in his private
life, and documents about his decision to seek employment
elsewhere——are not relevant. And a subpoena demanding wholly
irrelevant documents is unreasonable and oppressive. See State
v. Washington, 83 Wis. 2d 808, 844, 266 N.W.2d 597 (1978)
(noting that whether a "subpoena may be attacked" turns in part
on "the question of relevancy"); AF Holdings, LLC v. Does 1-
1058, 752 F.3d 990 (D.C. Cir. 2014) ("If a subpoena compels
disclosure of information that is not properly discoverable,
then the burden it imposes, however slight, is necessarily
undue: why require a party to produce information the
requesting party has no right to obtain?"); Compaq Comput. Corp.
v. Packard Bell Elecs., Inc., 163 F.R.D. 329, 335-36 (N.D. Cal.
1995) ("Obviously, if the sought-after documents are not
relevant nor calculated to lead to the discovery of admissible
evidence, then any burden whatsoever imposed upon [the
subpoenaed non-party] would be by definition 'undue.'").
¶95 Wisconsin law authorizes the quashing of unreasonable
and oppressive subpoenas. Wis. Stat. § 805.07(3) ("the court
may . . . quash or modify the subpoena if it is unreasonable and
oppressive"). As the majority/lead opinion details, it appears
the circuit court applied a far more relaxed "appearance of
6
Nos. 2021AP1321-LV & 2021AP1325.bh
bias" standard rather than the strict, narrow, and rarely-met
"serious risk of actual bias" standard that governs. This was
the wrong legal test. I conclude that a reasonable judge
examining the facts and applying the proper legal standards to
both the motion to quash the subpoena and the underlying
constitutional bias claim could only conclude that the subpoena
for documents must be quashed.
¶96 As previously explained, the unusual procedural
posture of this case means the subpoena for documents is the
only issue we can or should formally decide. That said, the
implications for further investigation regarding Driftless'
alleged bias claim against Commissioner Huebsch as the
proceedings continue below should be quite clear.
III
¶97 I close with some observations about the importance of
this case for our system of adjudication. The constitutional
standard underlying a Caperton due process claim is
extraordinarily high. It is not whether some impartial
observers would think there's an appearance of bias. The
question is whether actual bias was present, or a serious risk
of bias so extreme and unusual that it occurs in only the rarest
of circumstances. See Caperton, 556 U.S. at 887-88; id. at 899-
900 (Roberts, C.J., dissenting). Any claim of bias "must
overcome a presumption of honesty and integrity in those serving
as adjudicators." Withrow, 421 U.S. at 47. Unfortunately, this
"presumption that judges will follow the law regardless of their
7
Nos. 2021AP1321-LV & 2021AP1325.bh
personal views and regardless of their associations is quickly
being replaced by the presumption that judges are frail,
impressionable, and not to be trusted." Miller, 392 Wis. 2d 49,
¶126 (Hagedorn, J., dissenting).
¶98 While citizens have a right to expect judges and other
adjudicators to decide cases impartially, this concern does not
justify weaponizing bias allegations and recusal to achieve
litigation ends. Legitimate claims have their place, but we
cannot validate and routinize a litigation tactic that aims its
fire at the decision-maker rather than the decision. Recusal
and bias claims must not become another missile to be deployed
anytime a litigant does not like an adjudicator's decision. Id.The constitutional due process guarantee announced in Caperton
will rarely be met, and therefore should rarely be invoked. At
the end of the day, the Constitution simply does not countenance
the vague, generalized, and speculative accusations that served
as the basis for Driftless' attacks against Commissioner
Huebsch. The discovery subpoena against him should have been
quashed. I respectfully concur.
8
Nos. 2021AP1321-LV & 2021AP1325.jjk
¶99 JILL J. KAROFSKY, J. (dissenting). It is sometimes
said that bad facts make bad law. Today, bad procedure makes
bad law. Plain and simple, this appeal is moot. Nevertheless,
four members of this court transform a "procedural anomaly"1 into
a procedural tragedy. These four Justices springboard off an
appeal about mootness to overreach into matters not before this
court. Strikingly, this unbounded exercise of judicial power
comes with no explanation, leaving all to speculate as to why
this case and this subpoena recipient receive such special
treatment. Whatever the reason, my colleagues' indulgence in
the excesses of judicial power is not grounded in law and serves
only to deepen inequalities in our system of justice. For these
reasons, I respectfully dissent.
I. BACKGROUND
¶100 At the center of this interlocutory appeal is Michael
Huebsch. During the relevant time frame, Huebsch served as
Commissioner on the Public Service Commission (PSC) when that
agency approved the Cardinal-Hickory Creek Transmission Line
project. Several local governments and conservation
organizations, including the Driftless Area Land Conservancy
("Driftless"), petitioned for judicial review of the PSC's
approval decision.
¶101 Along with legal challenges to the merits of the PSC's
approval, Driftless alleges Huebsch violated its members' due
process rights. Driftless argues that Huebsch's contacts with
See County of Dane v. PSC, Nos. 2021AP1321-LV, 2021AP1325
1
& 2021AP1495-W, unpublished order (Wis. Sept. 21, 2021)
(Karofsky, J., dissenting).
1
Nos. 2021AP1321-LV & 2021AP1325.jjk
organizations and persons who appeared before him during the
PSC's consideration of the Cardinal-Hickory Creek project show
at least a serious risk of actual bias. Evidence of those
contacts, however, was not in the record created before the PSC.
This absence is significant; typically, judicial review is
limited to the agency record. The exception to that general
rule is set forth in Wis. Stat. § 227.57(1), which allows for
additional discovery in cases of "alleged irregularities in
procedure before the agency," such as a biased adjudicator.
Pursuant to that exception, the circuit court here determined
that Driftless's allegations of bias met the "irregularities in
procedure before the agency" standard and were, therefore,
sufficient to grant Driftless leave to take additional
discovery.
¶102 At the time the circuit court rendered its decision
permitting extra-record discovery, Huebsch was not a party to
the circuit court's review proceeding (he had since left his PSC
Commissioner post for the private sector). He first became
involved in that proceeding when Driftless subpoenaed him to be
a non-party witness. The subpoena——a subpoena duces tecum——
sought both Huebsch's deposition testimony and his personal
phone for "imaging" of data relevant to his potential bias. For
ease of reference, I refer to this as the "Phone Subpoena."
¶103 Huebsch filed a motion to quash the Phone Subpoena
and, alternatively, stay the Phone Subpoena pending appeal if
the circuit court ruled against him. The circuit court denied
both motions. Huebsch then appealed the circuit court's
decisions to the court of appeals. While the appeal was
2
Nos. 2021AP1321-LV & 2021AP1325.jjk
pending, Driftless withdrew the Phone Subpoena. The subpoena's
withdrawal prompted the court of appeals to conclude that
Huebsch's appeal of the now-defunct Phone Subpoena was moot.
See County of Dane v. PSC, 2021AP1321-LV, unpublished order
(Wis. Ct. App. Aug. 18, 2021).
¶104 Shortly thereafter, Driftless issued Huebsch a
subpoena ad testificandum to secure his testimony at the
upcoming trial scheduled to occur one month later. For
simplicity, I refer to this later subpoena as the "Trial
Subpoena." Upon receipt of the Trial Subpoena, rather than
asking the circuit court to quash it, Huebsch came directly to
this court. He presented us three options for resolving his
qualms with the ongoing discovery efforts related to him. The
first was the "extraordinary and drastic" request for a
supervisory writ. See State ex rel. Kalal v. Cir. Ct. for Dane
Cnty., 2004 WI 58, ¶17, 271 Wis. 2d 633, 681 N.W.2d 110. In the
same petition, Huebsch alternatively asked that we exercise our
similarly "extraordinary" superintending authority over the
circuit court to micromanage its discovery decisions. See State
v. Jerrell C.J., 2005 WI 105, ¶83, 283 Wis. 2d 145, 699 N.W.2d
110 (Abrahamson, C.J., concurring) (quoting State v. Helms, 136
Wis. 432, 464-65, 118 N.W. 158 (1908) (Winslow, C.J.,
concurring)). Finally, he filed a more traditional petition for
review.
¶105 The petition for review challenged the court of
appeals' decision that Huebsch's appeal over the Phone Subpoena
was moot. In an apparent attempt to add a law-developing issue
3
Nos. 2021AP1321-LV & 2021AP1325.jjk
to a petition otherwise seeking error correction,2 Huebsch
suggested that his case presented a good vehicle for integrating
the "voluntary cessation" mootness exception recognized by
federal courts into Wisconsin law. Behind that mootness
question, however, were additional, purely "error correcting"
issues. These include: (1) how a court is to apply the
standard for a stay pending appeal——an issue for which we had
already accepted review in a different case;3 (2) the correct
standard for adjudicator bias under the Due Process Clause of
the Fourteenth Amendment——an issue that simply asked us to
repeat the legal standard we had articulated only 14 months
prior;4 and (3) how Driftless's specific allegations fit within
the settled "serious risk of actual bias" standard——issues
calling for "merely the application of well-settled principles
to the factual situation" stemming from the earlier (and never-
appealed) order to expand the record.5 A bare majority of this
court granted Huebsch's petition for review over my dissent
explaining how an interlocutory appeal over a decision declining
to quash a subpoena presented a "procedural anomaly" for
2"The supreme court's primary function is that of law
defining and law development," while the court of appeals'
"primary function is error correcting." Cook v. Cook, 208
Wis. 2d 166, 188–89, 560 N.W.2d 246 (1997).
3That identical issue had already be accepted for review a
month earlier. See Waity v. LeMahieu, No. 2021AP802,
unpublished order (Wis. July 15, 2021).
4See Miller v. Carroll, 2020 WI 56, 392 Wis. 2d 49, 944
N.W.2d 542.
5Our review criteria, however, disfavor "merely the
application of well-settled principles to the factual
situation." Wis. Stat. § (Rule) 809.62(1r)(c)1.
4
Nos. 2021AP1321-LV & 2021AP1325.jjk
addressing the more substantive adjudicator-bias standard. See
County of Dane v. PSC, Nos. 2021AP1321-LV, 2021AP1325 &
2021AP1495-W, unpublished order (Wis. Sep. 21, 2021). We were
unanimous, however, in denying Huebsch's two "extraordinary"
requests for either a supervisory writ or an exercise of our
superintending authority. Id.
II. ANALYSIS
¶106 Four of my colleagues err in two fundamental respects.
First, this case is moot and no mootness exception applies.
That should be the end of this case. Unfortunately, it's not.
The majority/lead and concurring opinions overreach into matters
not properly before us in a manner that can only be
characterized as an exercise of superintending authority——
despite our unanimous decision not to exercise that authority in
this case. That is the second error. I address each error in
turn.
A. This Case is Moot
¶107 Shortly after the court of appeals dismissed as moot
the matter concerning the Phone Subpoena, Driftless served
Huebsch with the Trial Subpoena. Huebsch claims the voluntary
withdrawal of the Phone Subpoena followed by the issuance of the
later Trial Subpoena proves his appeal should not have been
dismissed. Huebsch posits this series of events falls within
the "voluntary cessation" exception to mootness recognized under
federal law but not under Wisconsin state law. The voluntary
cessation mootness exception holds that when a party voluntarily
ends challenged conduct, that cessation may not render a case
5
Nos. 2021AP1321-LV & 2021AP1325.jjk
moot if the challenged conduct may be reasonably expected to
recur following dismissal of the action. See Friends of the
Earth, Inc. v. Laidlaw Env't Servs. (TOC), Inc., 528
U.S. 167, 189 (2000).
¶108 While this "voluntary cessation" argument served as
Huebsch's law-developing hook, neither the majority/lead opinion
nor the concurrence develop the law. The majority/lead opinion
mushes the distinct "voluntary cessation" exception into one of
our existing mootness exceptions: capable and likely of
repetition and yet evades review. See majority/lead
op., ¶¶25-26. Regardless of which exception to mootness the
majority/lead opinion is actually applying——voluntary cessation
or capable and likely of repetition yet evades review——neither
theory works here. That is because the conduct and legal issues
here are not capable and likely of repetition; the two subpoenas
materially differ.
¶109 The "capable and likely of repetition and yet evades
review" mootness exception, as we recently emphasized, is
"limited to situations involving 'a reasonable expectation that
the same complaining party would be subjected to the same action
again.'" Portage County v. J.W.K., 2019 WI 54, ¶30, 386
Wis. 2d 672, 927 N.W.2d 509 (quoting State ex rel. Clarke v.
Carballo, 83 Wis. 2d 349, 357, 265 N.W.2d 285 (1978)).
Likewise, the "voluntary cessation" exception applies only when
an action "sufficiently similar" to the challenged conduct is
reasonably expected to recur. See Ne. Fla. Chapter of
Associated Gen. Contractors of Am. v. City of Jacksonville, 508
U.S. 656, 662 n.3 (1993).
6
Nos. 2021AP1321-LV & 2021AP1325.jjk
¶110 Here, Huebsch supposes that the Phone Subpoena and the
Trial Subpoena establish "repetition." But the two subpoenas
differ substantially both as a matter of fact and as a matter of
law. Factually, the subpoenas differ in scope. The Phone
Subpoena would have permitted Driftless to probe relevant
aspects of Huebsch's phone and required Huebsch to sit for a
deposition. By contrast, the Trial Subpoena demands much less
of Huebsch, requiring only that he appear at trial to offer
truthful testimony.
¶111 As a matter of law, different legal standards govern
quashing the two subpoenas. Our decision in State v. Gilbert,
109 Wis. 2d 501, 326 N.W.2d 744 (1982) delineates this legal
distinction. Gilbert involved a ten-year-old girl who was
served with a subpoena ad testificandum requiring her to appear
in court and testify about her mother's abuse of her and her
sister. The circuit court quashed the subpoena, reasoning that
the child's best interest was better served by not appearing in
the same courtroom as her abuser, which could trigger severe
psychological harm and re-traumatize her. The defendant
appealed. On appeal, the victim claimed the circuit court had
the authority to quash her subpoena under Wis. Stat.
§ 805.07(3), which permits a court to quash or modify a subpoena
"if it is unreasonable and oppressive."
¶112 This court reinstated the subpoena, concluding that
§ 805.07(3) applied only to a subpoena duces tecum; a subpoena
ad testificandum, by contrast, could not be quashed on the
grounds that it was unreasonable and oppressive or contrary to
the child's best interest. Gilbert, 109 Wis. 2d at 508-17.
7
Nos. 2021AP1321-LV & 2021AP1325.jjk
Though seemingly harsh, the court underscored just how
fundamental a subpoena ad testificandum is to our legal system.
It explained that "a fundamental tenet of our modern legal
system[] is that the public has a right to every person's
evidence," including the President of the United States. Id.at 505 (citing, e.g., United States v. Nixon, 418 U.S. 683(1974)). The court highlighted the maxims that "each person has
a duty to testify" and that the "integrity of the [adversarial]
legal system depends on the court's ability to compel full
disclosure of all relevant facts under the rules of evidence."
Id. Thus, the court concluded a ten year old's physiological
harm and re-traumatization was not enough for a court to quash a
subpoena ad testificandum.
¶113 These factual and legal distinctions control the
analysis. Huebsch's appeal challenged only the decision not to
quash the Phone Subpoena——a subpoena duces tecum. On that
issue, the legal standard was whether the subpoena was
"unreasonable and oppressive." But under Gilbert, a different
standard would apply to Huebsch's Trial Subpoena——a subpoena ad
testificandum. These factual and legal differences means the
two subpoenas are not the "same action" nor "sufficiently
similar." See J.W.K., 386 Wis. 2d 672, ¶30; Ne. Fla. Chapter of
Associated Gen. Contractors, 508 U.S. at 662 n.3.
¶114 These differences also mean the challenged Phone
Subpoena is not reasonably likely to recur. See Laidlaw Env't
Servs., 528 U.S. at 189. Driftless averred that it would not
issue another subpoena duces tecum to Huebsch. The court of
appeals relied on that averment, meaning Driftless is now
8
Nos. 2021AP1321-LV & 2021AP1325.jjk
judicially estopped from serving Huebsch with another subpoena
duces tecum. See State v. Ryan, 2012 WI 16, ¶¶32-33, 338
Wis. 2d 695, 809 N.W.2d 37. The majority/lead opinion's
contrary assertion rests on a failure to appreciate the factual
and legal differences between these two subpoenas. And because
the Phone Subpoena and the Trial Subpoena are materially
different, the cited mootness exceptions do not apply.
¶115 The concurrence takes a slightly different tack that
fares no better. In the concurrence's view, the adjudicator-
bias standard is an issue of "great public importance."
Concurrence, ¶90 (quoting Marathon County v. D.K., 2020
WI 8, ¶19, 390 Wis. 2d 50, 937 N.W.2d 901). Perhaps, but this
court recently published a comprehensive opinion setting out the
proper adjudicator-bias standard making it unnecessary to
revisit the issue here. See Miller v. Carroll, 2020 WI 56, 392
Wis. 2d 49, 944 N.W.2d 542.
¶116 Putting the issue's perceived importance aside, I fail
to see why we needed to intervene through a moot interlocutory
appeal. Had the trial been allowed to proceed without this
court's meddling and had the final judgment deemed Huebsch
unconstitutionally biased, then a traditional appeal would
squarely raise the very same adjudicator-bias issue. The bottom
line is that the adjudicator-bias issue serves as no excuse to
overlook mootness in this interlocutory appeal. The appeal is
moot without exception.
B. An Inappropriate Exercise of Superintending Authority
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¶117 Four members of this court barrel past this appeal's
mootness with analyses that can only be explained as expansive
exercises of our superintending authority. To explain, even if
this court could overlook mootness here, then the only discovery
issue properly before us would be whether the circuit court
erroneously exercised its discretion when it declined to quash
the Phone Subpoena. In resolving that issue, the legal question
we ask is whether the circuit court applied the "proper legal
standard." See, e.g., State v. Dobbs, 2020 WI 64, ¶32, 392
Wis. 2d 505, 945 N.W.2d 609. The proper legal standard
governing a subpoena such as the Phone Subpoena is the
"unreasonable and oppressive" standard in Wis. Stat.
§ 805.07(3). See Gilbert, 109 Wis. 2d at 509-10. That would be
the extent of our inquiry.
¶118 Not interested in limiting themselves to the Phone
Subpoena and the narrow legal issue it raises, four of my
colleagues instead exercise this court's extraordinary
superintending authority to reach an issue not before this
court, the adjudicator-bias standard. The adjudicator-bias
issue arises solely out of the circuit court's decision to
expand the record. But the decision to expand the record was
never part of this appeal; the deadline to appeal that ruling
expired before Huebsch filed this appeal. Tellingly, not even
Huebsch was so bold as to ask that we reverse a decision that
occurred before he was involved in the circuit court
proceedings. See Opening Br. Pet'r at 51; Reply Br. Pet'r
at 18. Undeterred, four member of this court micromanage the
circuit court's application of the adjudicator-bias standard.
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Because that issue belongs to the record-expansion decision not
before us, such micromanagement is clearly an exercise of
superintending authority.
¶119 Not willing to admit as much, both the majority/lead
opinion and concurrence attempt to conceal their use of
extraordinary power behind a novel legal theory that a subpoena
must be grounded in a "cognizable" claim. But the veil is thin.
Neither Huebsch nor my colleagues cite a single case from any
jurisdiction that actually supports their theory. Indeed, the
theory's novelty lays bare my colleagues' procedural mischief.
Had this interlocutory appeal challenged the circuit court's
decision to expand the record, I would agree that the issue
before us is the "proper legal standard" for showing adjudicator
bias under Wis. Stat. § 227.57(1). But again, that decision was
not appealed. Huebsch instead appealed the later decision not
to quash the Phone Subpoena. As such, this appeal presents only
the issue of whether the circuit court applied the "proper legal
standard" for showing a subpoena is "unreasonable and
oppressive" under Wis. Stat. § 805.07(3). This novel
"cognizable" claim theory conflates the adjudicator-bias issue,
which is not before us, with the narrower Phone-Subpoena issue,
which is the only matter before us. In short, this novel
theory——found no where in the law——operates to obscure what is
otherwise an exercise of superintending authority to reach
matters not before the court.
¶120 In my colleagues' fervor to reach issues beyond this
appeal's procedural posture, they fail to appreciate the dire
consequences of the "cognizable" claim theory. This theory
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Nos. 2021AP1321-LV & 2021AP1325.jjk
allows a subpoenaed witness to raise what amounts to a motion to
dismiss the claim underlying the subpoena. In allowing a
subpoenaed witness to question the merits of the underlying
claim, a majority of this court creates an entirely new class of
persons within a case who now have the right to reach back to
challenge earlier merits decisions on which their subpoenas are
predicated. And if a circuit court does not amend its earlier
merits decision, then this new class of subpoenaed witnesses can
request an interlocutory appeal challenging that earlier
decision's legal merits and demand that proceedings be stayed
pending that appeal.6 In the end, this novel "cognizable" claim
theory provides for a disruptive new tool in a subpoena
recipient's toolbox——at least for those select witnesses with
the means to advance it.
¶121 Though four members of this court engage in a blatant
exercise of superintending authority, they stay largely silent
on why Huebsch's non-party appeal deserves such extraordinary
treatment. That's problematic. Our superintending power "is
not to be exercised upon light occasion, but only upon some
grave exigency" and "extraordinary hardship." State v. Cir. Ct.
of Milwaukee Cnty., 143 Wis. 282, 285, 127 N.W. 998 (1910).
What's the "grave exigency"? Where's the "extraordinary
hardship" here? Certainly it cannot be the mere fact that
Huebsch would have to give truthful testimony about his
conversations with friends and contacts who appeared as parties
before him. Not even a ten-year-old abuse victim who faces
6 Stunningly, Huebsch claims such an interlocutory appeal
would be as of right for non-party witnesses like him.
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Nos. 2021AP1321-LV & 2021AP1325.jjk
psychological harm and re-traumatization by having to appear
before her abuser to detail her abuse has received the
extraordinary relief granted to Huebsch. See Gilbert, 109
Wis. 2d 501. Inconvenience and the discomfort that comes with
having private relationships exposed to public view simply are
not enough to excuse a subpoenaed witness from his "duty to
testify." Id. at 505.
¶122 While the concurrence is more forthcoming with it's
reasoning, it still falls prey to Huebsch's not-so-subtle scare
tactic repeated throughout his filings and at oral argument that
if this could happen to him, then it could happen to a Justice
as well. True enough. But if our government is truly one of
laws and not men and women, then we cannot use extraordinary
constitutional powers to carve out special treatment for
ourselves and only person's like us. Everyday Wisconsin
citizens respect their civic duty and testify in court despite
the hardships that testifying may bring. That remains true even
when their subpoenas ultimately prove to be the result of legal
error. Neither Huebsch nor any Justice of this court is
absolved from this duty to testify. See Gilbert, 109 Wis. 2d at
505 (holding that "each person has a duty to testify" because
the public's "right to every person's evidence . . . applies to
all of us——even the President of the United States" (citing
Nixon, 418 U.S. 683)). We are not above other witnesses and the
procedures we adhere to should reflect that.
¶123 To that end, I conclude by observing that consistency
across cases is integral to this court's institutional
legitimacy. Like cases should be treated alike. Here, we are
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left with a vexing question: what distinguishes Huebsch from
the ten-year-old abuse victim in Gilbert? My colleagues offer
no satisfying answer.
III. CONCLUSION
¶124 In this moot appeal, a bad procedural posture makes
bad law. Though we unanimously voted not to exercise
superintending authority in this appeal, four members of this
court make an about face by indulging in that extraordinary
power to reach matters not before us. My colleagues provide no
acceptable principle or explanation for why this case called for
such a blunt exercise of judicial power. For these reasons, I
respectfully dissent.
¶125 I am authorized to state that Justices ANN WALSH
BRADLEY and REBECCA FRANK DALLET join this dissent.
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