Joshua L. Kaul v. Frederick Prehn

2022 WI 50SUPREME COURT OF WISCONSIN
CASE NO.: 2021AP1673
COMPLETE TITLE: State of Wisconsin ex rel. Joshua L. Kaul,
Plaintiff-Appellant,
v.
Frederick Prehn,
Defendant-Respondent,
Wisconsin Legislature,
Intervenor-Defendant-Respondent.
ON BYPASS FROM THE COURT OF APPEALS
(No Cite)
OPINION FILED: June 29, 2022
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: March 10, 2022
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Dane
JUDGE: Valerie Bailey-Rihn
JUSTICES:
ZIEGLER, C.J., delivered the majority opinion of the Court, in
which ROGGENSACK, REBECCA GRASSL BRADLEY, and HAGEDORN, JJ.,
joined. DALLET, J., filed a dissenting opinion in which ANN
WALSH BRADLEY and KAROFSKY, JJ., joined.
NOT PARTICIPATING:
ATTORNEYS:
For the plaintiff-appellant, there were briefs by Gabe
Johnson-Karp, Anthony D. Russomanno, and Colin A. Hector,
assistants attorney general, with whom on the brief was Joshua
L. Kaul, attorney general. There was an oral argument by Gabe
Johnson—Karp.
For the defendant-respondent, there was a brief filed by
Mark P. Maciolek and Murphy Desmond, S.C., Madison. There was an
oral argument by Mark P. Maciolek.
For the intervenor-defendant-respondent, there was a brief
filed by Ryan J. Walsh, John K. Adams and Eimer Stahl LLP,
Madison. There was an oral argument by Ryan J. Walsh.
An amicus curiae brief was filed by Christa O. Westerberg
and Pines Bach LLP, Madison, for the Humane Society of the
United States and the Center for Biological Diversity.
An amicus curiae brief was filed by Scott B. Thompson,
Jeffrey A. Mandell, Rachel E. Snyder, and Carly Gerads and Law
Forward, Inc., Madison and Stafford Rosenbaum LLP, Madison and
Summer H. Murshid and Hawks Quindel S.C., of counsel, Milwaukee
for the America Federation of Teachers-Wisconsin.
2
2022 WI 50NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2021AP1673
(L.C. No. 2021CV1994)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin ex rel. Joshua L. Kaul,
Plaintiff-Appellant,
v. FILED
Frederick Prehn, JUN 29, 2022
Defendant-Respondent, Sheila T. Reiff
Clerk of Supreme Court
Wisconsin Legislature,
Intervenor-Defendant-Respondent.
ZIEGLER, C.J., delivered the majority opinion of the Court, in
which ROGGENSACK, REBECCA GRASSL BRADLEY, and HAGEDORN, JJ.,
joined. DALLET, J., filed a dissenting opinion in which ANN
WALSH BRADLEY and KAROFSKY, JJ., joined.
APPEAL from a judgment and an order of the Circuit Court
for Dane County, Valerie Bailey-Rihn, Judge. Affirmed.
¶1 ANNETTE KINGSLAND ZIEGLER, C.J. This case is before
the court on bypass pursuant to Wis. Stat. § (Rule) 809.60
No. 2021AP1673
(2019-20).1 We review an order of the Dane County circuit
court,2 dismissing the State's complaint with prejudice.
¶2 The Attorney General, on behalf of the State, seeks
quo warranto and declaratory judgment relief, alleging that the
defendant, Frederick Prehn, unlawfully holds a position on the
Wisconsin Board of Natural Resources ("the DNR Board"). The
State argues that when Prehn's term expired on May 1, 2021, he
no longer possessed any legal right to the position. In
addition, the State claims that Prehn is not entitled to "for
cause" protection and can be removed at the discretion of the
Governor. The circuit court disagreed and dismissed the case,
reasoning that there was no statutory or constitutional basis to
remove Prehn from office without cause.
¶3 We affirm the decision of the circuit court. Under
Wis. Stat. § 17.03, the expiration of Prehn's term on the DNR
Board does not create a vacancy. Prehn lawfully retains his
position on the DNR Board as a holdover. Therefore, the
Governor cannot make a provisional appointment to replace Prehn
under Wis. Stat. § 17.20(2)(a). Until his successor is
nominated by the Governor and confirmed by the senate, under
Wis. Stat. § 17.07(3), Prehn may be removed by the Governor only
for cause. This conclusion complies with the plain language of
1All subsequent references to the Wisconsin Statutes are to
the 2019-20 version unless otherwise indicated.
2 The Honorable Valerie Bailey-Rihn presided.
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No. 2021AP1673
the Wisconsin Statutes and does not raise constitutional
concerns. The State's complaint is dismissed with prejudice.
I. FACTUAL BACKGROUND AND PROCEDURAL POSTURE
¶4 The Wisconsin Department of Natural Resources ("DNR")
is an environmental agency that regulates parks and natural
resources around the state. The agency is placed "under the
direction and supervision of the natural resources board." Wis.
Stat. § 15.34(1). The DNR Board has seven members nominated by
the Governor and confirmed by the senate for staggered six-year
terms. Wis. Stat. §§ 15.07(1)(a), 15.34(1) & (2)(a). In
addition, the DNR's Secretary must be nominated by the Governor
and confirmed by the senate. Wis. Stat. § 15.05(1)(c).
¶5 In May 2015, Governor Scott Walker nominated Prehn to
the DNR Board. Prehn was confirmed by the senate in November
2015, with a term to expire on May 1, 2021.
¶6 On April 30, 2021, Governor Tony Evers announced the
appointment of Sandra Dee E. Naas to replace Prehn on the DNR
Board. However, the senate has not confirmed Naas and Prehn has
declined to step down from his position. Prehn continues to act
as a member of the DNR Board, attending meetings and submitting
votes on DNR policies and positions as a full DNR Board member.
¶7 On August 17, 2021, the Attorney General, on behalf of
the State, filed this action in Dane County circuit court
alleging quo warranto and declaratory judgment claims. The
State argued that because Prehn's term expired in May 2021,
Prehn was unlawfully holding the office of a DNR Board member.
In addition, the State claimed that Prehn could be removed at
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No. 2021AP1673
the pleasure of the Governor. The State asked that the circuit
court order Prehn removed from office or, in the alternative,
that the circuit court declare that the Governor can remove him
without cause.
¶8 On August 27, 2021, Prehn filed a motion to dismiss
the case for failure to state a claim. He argued that no
vacancy had yet occurred for the position he occupied on the DNR
Board and he could remain on the DNR Board until a successor was
confirmed by the senate. The circuit court received briefing
from the parties and the Wisconsin Legislature ("the
Legislature"), and on September 17, 2021, granted Prehn's motion
to dismiss. The circuit court explained that the expiration of
Prehn's term of office did not create a vacancy, and the
Governor could not use his provisional appointment power to
replace Prehn on the DNR Board. In conclusion, the circuit
court held that Prehn was not illegally occupying his position,
he was entitled to for cause protections, and he could not be
removed at the pleasure of the Governor. The circuit court
dismissed the complaint with prejudice.
¶9 On September 20, 2021, the State appealed the circuit
court's order and soon thereafter filed a petition in this court
to bypass the court of appeals. On November 16, 2021, we
granted the petition to bypass. We also granted the
Legislature's request to intervene as a party.
II. STANDARD OF REVIEW
¶10 In this case, we review a motion to dismiss for
failure to state a claim. The motion "tests the legal
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No. 2021AP1673
sufficiency of the complaint." DeBruin v. St. Patrick
Congregation, 2012 WI 94, ¶11, 343 Wis. 2d 83, 816 N.W.2d 878.
"For purposes of the motion, we accept as true all facts well-
pleaded in the complaint and the reasonable inferences
therefrom." Id. In order to survive a motion to dismiss,
"[p]laintiffs must allege facts that plausibly suggest they are
entitled to relief" as a matter of law. Data Key Partners v.
Permira Advisers LLC, 2014 WI 86, ¶31, 356 Wis. 2d 665, 849
N.W.2d 693. "We review de novo the circuit court's dismissal of
a complaint for failure to state a claim." Doe v. Archdiocese
of Milwaukee, 2005 WI 123, ¶19, 284 Wis. 2d 307, 700 N.W.2d 180.
¶11 This case also presents questions of statutory and
constitutional interpretation. "Interpretation of a statute is
a question of law that we review de novo, although we benefit
from the analyses of the circuit court and the court of
appeals." Estate of Miller v. Storey, 2017 WI 99, ¶25, 378
Wis. 2d 358, 903 N.W.2d 759. "[S]tatutory interpretation begins
with the language of the statute. If the meaning of the statute
is plain, we ordinarily stop the inquiry. Statutory language is
given its common, ordinary, and accepted meaning, except that
technical or specially-defined words or phrases are given their
technical or special definitional meaning." State ex rel. Kalal
v. Cir. Ct. for Dane Cnty., 2004 WI 58, ¶45, 271 Wis. 2d 633,
681 N.W.2d 110 (citations and quotations omitted). In addition,
"statutory language is interpreted in the context in which it is
used; not in isolation but as part of a whole; in relation to
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No. 2021AP1673
the language of surrounding or closely-related statutes; and
reasonably, to avoid absurd or unreasonable results." Id., ¶46.
¶12 We interpret the Wisconsin Constitution de novo.
Johnson v. Wis. Elections Comm'n, 2021 WI 87, ¶22, 399
Wis. 2d 623, 967 N.W.2d 469. "Our goal when we interpret the
Wisconsin Constitution is to give effect to the intent of the
framers and of the people who adopted it." Id. "In
interpreting the Wisconsin Constitution, we focus on the
language of the adopted text and historical evidence." State v.
Halverson, 2021 WI 7, ¶22, 395 Wis. 2d 385, 963 N.W.2d 847.
Such historical evidence includes "the practices at the time the
constitution was adopted, debates over adoption of a given
provision, and early legislative interpretation as evidenced by
the first laws passed following the adoption." Id. (quotations
omitted).
III. ANALYSIS
¶13 The State alleges quo warranto and declaratory
judgment claims. Quo warranto actions "test [the] ability [of
an individual] to hold office." State ex rel. Shroble v.
Prusener, 185 Wis. 2d 102, 108-09, 517 N.W.2d 169 (1994).
Wisconsin Stat. § 784.04(1)(a) states that the Attorney General
may bring a quo warranto claim "[w]hen any person shall usurp,
intrude into or unlawfully hold or exercise any public office,
civil or military, or any franchise within this state, or any
office in a corporation created by the authority of this state."
If successful, the subject office holder may be "excluded from
the office, franchise or privilege." Wis. Stat. § 784.13.
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No. 2021AP1673
Generally, "quo warranto relief is an exclusive remedy, except
when the issue warranting quo warranto relief is ancillary to an
issue that does not sound in quo warranto." City of Waukesha v.
Salbashian, 128 Wis. 2d 334, 348, 382 N.W.2d 52 (1986).
¶14 In its quo warranto claim, the State argues that Prehn
does not legally hold office because his term expired and his
office is therefore vacant. With the Governor's selection of
Naas as a provisional appointee to replace Prehn, the State
claims Prehn must be immediately removed. The State also seeks
a declaratory judgment that Prehn can be removed at the pleasure
of the Governor. No party contests or presents arguments on the
State's ability to bring a declaratory judgment claim in this
context.
¶15 Thus, we will review whether Prehn lawfully holds
office as a DNR Board member and whether Prehn has for cause
protections. We will consider each issue in turn.
A. Whether Prehn Lawfully Holds Office.
¶16 The State indicates that Prehn's term of office
expired on May 1, 2021. Therefore, according to the State,
there is now a vacancy in Prehn's position on the DNR Board.
The State contends that Naas must replace Prehn as a provisional
gubernatorial appointment. We disagree. Accepting all facts
alleged in the complaint as true, we hold that the expiration of
Prehn's term did not create a vacancy, and Prehn lawfully
retains his office as a holdover. DeBruin, 343 Wis. 2d 83, ¶11.
7
No. 2021AP1673
¶17 The DNR is "under the direction and supervision of the
natural resources board." Wis. Stat. § 15.34(1). Wisconsin
Stat § 15.05 describes the allocation of authority between the
DNR Board and the Secretary:
[T]he powers and duties of the board shall be
regulatory, advisory and policy-making, and not
administrative. All of the administrative powers and
duties of the department are vested in the secretary,
to be administered by him or her under the direction
of the board. The secretary, with the approval of the
board, shall promulgate rules for administering the
department and performing the duties assigned to the
department.
§ 15.05(1)(b).
¶18 The Governor must nominate and the senate must confirm
members of the DNR Board, who serve six-year terms. Wis. Stat.
§§ 15.07(1)(a), 15.34(1) & (2)(a). Because DNR Board members
serve in an office "filled by appointment of the governor for a
fixed term by and with the advice and consent of the senate,"
the Governor may remove DNR Board members "for cause." Wis.
Stat. § 17.07(3). "Cause" is statutorily defined as
"inefficiency, neglect of duty, official misconduct, or
malfeasance in office." Wis. Stat. § 17.001. The DNR Secretary
must be "nominated by the governor, and with the advice and
consent of the senate." Wis. Stat. § 15.05(1)(c). The
Secretary "serve[s] at the pleasure of the governor," id., and
can be removed "by the governor at any time." § 17.07(4).
¶19 The DNR Board is subject to carefully defined vacancy
rules. Article XIII, Section 10 of the Wisconsin Constitution
states that "[t]he legislature may declare the cases in which
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No. 2021AP1673
any office shall be deemed vacant, and also the manner of
filling the vacancy, where no provision is made for that purpose
in this constitution." The provision provides the Legislature
"the power to declare when an office shall be deemed to be
vacant." State ex rel. Thompson v. Gibson, 22 Wis. 2d 275, 290,
125 N.W.2d 636 (1964).
¶20 The Legislature exercised its authority to determine
the existence of a vacancy by enacting Wis. Stat. § 17.03. Id.;
accord State v. Devitt, 82 Wis. 2d 262, 266, 262 N.W.2d 73(1978). Section 17.03 states, in pertinent part:
Except as otherwise provided, a public office is
vacant when:
(1) The incumbent dies.
(2) The incumbent resigns.
(3) The incumbent is removed.
. . . .
(10) If the office is elective, the incumbent's
term expires, except for the office of sheriff,
coroner, register of deeds or district attorney.
. . . .
(13) Any other event occurs which is declared by
any special provision of law to create a vacancy.
¶21 When a vacancy occurs in an appointed office such as
the DNR Board, the office "shall be filled by appointment by the
appointing power and in the manner prescribed by law for making
regular full term appointments thereto." Wis. Stat. § 17.20(1).
In the case of the DNR Board, individuals selected to fill a
vacancy must be nominated by the Governor and confirmed by the
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No. 2021AP1673
senate. Id.; Wis. Stat. § 15.07(1)(a). Individuals appointed
to "fill vacancies . . . shall hold office for the residue of
the unexpired term or, if no definite term of office is fixed by
law, until their successors are appointed and qualify."3
§ 17.20(1). Because DNR Board members have a fixed term by law,
individuals selected to fill a vacancy on the DNR Board step
into the shoes of the prior member and serve for the remainder
of the term. Id.; Wis. Stat. § 15.34(2)(a).
¶22 The Governor need not wait for senate advice and
consent to ensure someone occupies a DNR Board seat once a
vacancy occurs. "Vacancies occurring in the office of any
officer normally nominated by the governor, and with the advice
and consent of the senate appointed, may be filled by a
provisional appointment by the governor for the residue of the
unexpired term, if any, subject to confirmation by the senate."
Wis. Stat. § 17.20(2)(a). While a provisional appointee serves,
she "may exercise all of the powers and duties of the office to
which such person is appointed during the time in which the
appointee qualifies." Id.¶23 Here, the parties accept that Prehn was properly
nominated by the Governor and confirmed by the senate to serve a
"'Qualified,' when applied to any person elected or
3
appointed to office, means that such person has done those
things which the person was by law required to do before
entering upon the duties of the person's office." Wis. Stat.
§ 990.01(33). For instance, a qualification of a DNR Board
member is that the member "take and file the official oath."
Wis. Stat. § 15.07(7).
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No. 2021AP1673
full term on the DNR Board. Wis. Stat. §§ 15.07(1)(a), 15.34(1)
& (2)(a). His six-year term expired by statute in May 2021.
§ 15.07(1)(a) & (1)(c) ("[F]ixed terms of members of boards
shall expire on May 1."). Once Prehn's term expired, the
Governor had the prerogative to nominate another individual to
serve a six-year term between May 2021 and May 2027 and replace
Prehn. §§ 15.34(1), 15.07 (explaining that Board members "shall
be nominated by the governor . . . to serve for terms prescribed
by law"); see also Thompson, 22 Wis. 2d at 293 (explaining that
nominees "duly appointed and confirmed by the senate" take over
the office from their successors); State ex rel. Martin v. Heil,
242 Wis. 41, 48-49, 7 N.W.2d 375 (1942) (stating that officials
who, through established legal processes, are selected for a
term position take office from any individual currently
occupying the position as a holdover (citing State ex rel.
Pluntz v. Johnson, 176 Wis. 107, 112-16, 184 N.W. 183, vacating
judgment on rehearing, 186 N.W. 729 (1922))). However, that
nomination is subject to "the advice and consent of the senate."
§ 15.07(1)(a). If the nominee is not confirmed, the nominee is
not "appointed" into office and cannot exercise the authority
assigned to that position. Id. While the Governor can make a
provisional appointment who exercises "all of the powers and
duties of the office," subject to later confirmation by the
senate, there must first be a "vacancy" to fill. Wis. Stat.
§ 17.20(2)(a).
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No. 2021AP1673
¶24 The expiration of Prehn's term did not create a
vacancy. Thus, the Governor did not have a right to make a
provisional appointment under Wis. Stat. § 17.20(2)(a).
¶25 Wisconsin Stat. § 17.03 provides a list of events that
cause a vacancy. The list is detailed and includes various
types of events, ranging from death to, in the case of a school
district office, "absen[ce] from the district for a period of 60
days." § 17.03(1), (4m). The list is exclusive, "[e]xcept as
otherwise provided" or "declared by any special provision of
law." § 17.03, 17.03(13). By the plain text of the statute,
expiration of a term for an appointed office is not included as
an event causing a vacancy. This is a straightforward
application of the canon of statutory interpretation expressio
unius est exclusio alterius, "[t]he expression of one thing
implies the exclusion of others." State v. Dorsey, 2018 WI 10,
¶29, 379 Wis. 2d 386, 906 N.W.2d 158; see Andruss v. Divine
Savior Healthcare Inc., 2022 WI 27, ¶30, 401 Wis. 2d 368, 973
N.W.2d 435 (explaining a statute that listed individuals and
entities subject to a healthcare Chapter of the Wisconsin code,
but did not state a specific type of entity in the list, was "a
textbook example of the canon" and demonstrated that the
specific entity was neither included in the list nor subject to
the Chapter). The Legislature was deliberate and specific in
defining which events constitute a vacancy, and explicitly
stated that the list was exclusive absent a contrary provision
of law. § 17.03, 17.03(13). The statute by its plain text
excluded the expiration of appointed terms; we must give effect
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No. 2021AP1673
to this plain language. Kalal, 271 Wis. 2d 633, ¶44 ("Judicial
deference to the policy choices enacted into law by the
legislature requires that statutory interpretation focus
primarily on the language of the statute.").
¶26 This conclusion is bolstered by the fact that the list
of vacancies under Wis. Stat. § 17.03 expressly includes the
expiration of an incumbent's term "[i]f the office is elective."
§ 17.03(10). The Legislature clearly demonstrated the
wherewithal and ability to include the expiration of an
incumbent's term for public office in the list of vacancies
under § 17.03. See Andruss, 401 Wis. 2d 368, ¶¶30, 37
(reasoning that the Legislature's choice to consider corporate
affiliation for one type of healthcare provider under statute
demonstrated Legislature's "ability to [do so]"; its decision
not to do so for other healthcare providers indicated corporate
affiliation was not be considered); State v. Yakich, 2022 WI 8,
¶24, 400 Wis. 2d 549, 970 N.W.2d 12 (explaining that the
Legislature chose not to set or limit how multiple NGI
commitments may be imposed as it did in other statutes and
reasoning that "we must give effect to the legislature's
choice"). The Legislature included term expiration in the
vacancy list for elected offices, but did not for appointed
offices. To read the statute to include all term expirations
would render the phrase "[i]f the office is elective" in
§ 17.03(10) completely superfluous. Kalal, 271 Wis. 2d 633, ¶46
("Statutory language is read where possible to give reasonable
effect to every word, in order to avoid surplusage."). Section
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No. 2021AP1673
17.03 unambiguously excluded the expiration of appointed terms
from the list of vacancy events.
¶27 Notably, we came to the same conclusion in State ex
rel. Thompson v. Gibson. In Thompson, we explained that
[section] 17.03 provides that an office shall be
deemed to be vacant upon (among other things) the
death, resignation or removal of the incumbent, but
nowhere is it declared that an office is vacant when
an incumbent holds over after expiration of the term
for which he was initially appointed.
22 Wis. 2d at 290. We see no reason to depart from Thompson's
reasoning, which remains as sound today as it did when the case
was first decided.
¶28 The State argues that in order to read Wis. Stat.
§ 17.03 in conformity with common law jurisprudence, the
expiration of Prehn's term in office must be construed as a
vacancy. However, it is well established in Wisconsin precedent
and the common law that appointed officers can lawfully holdover
after the expiration of their term until a successor is properly
appointed to the position. In Thompson, we held unambiguously
that appointed incumbents whose terms had expired could
"holdover in office until their successors are duly appointed
and confirmed by the senate." 22 Wis. 2d at 293. This was in
line with prior Wisconsin precedent. See, e.g., Heil, 242 Wis.
at 48-49 (explaining that "[t]he absence of words extending the
term until such time as a successor has been duly elected and
qualified is, of course, not wholly conclusive and . . . there
has been a tendency in the authorities to hold, in spite of the
absence of these words, that an incumbent holds over until his
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No. 2021AP1673
successor is selected and qualified" (citing Pluntz, 176 Wis.
107)); Pluntz, 176 Wis. at 114 ("[T]he general trend of
decisions in this country is to the effect that, where the
written law contains no provision either express or implied to
the contrary, an officer holds his office until his successor is
elected and qualified."). It was also in line with the common
law. 63C Am. Jur. 2d Public Officers and Employees § 148 (2022)
("[A]s a general rule, apart from any constitutional or
statutory regulation on the subject, an incumbent of an office
may hold over after the conclusion of his or her term until the
election [or appointment] and qualification of a successor.");
67 C.J.S. Officers § 154 (2022) ("As a general rule, in the
absence of a constitution or statute providing otherwise, an
officer is entitled to hold office until a successor is
appointed or elected and has qualified."). By statute, Prehn's
term has expired, but he is lawfully retaining office as a
holdover until a successor is legally appointed, i.e., nominated
and confirmed by the senate. Wis. Stat. §§ 15.07(1)(a),
15.34(1). Neither our precedents nor the common law support the
State's position that the expiration of Prehn's term must be
construed as a vacancy, notwithstanding the text of Wis. Stat.
§ 17.03.
¶29 The State also points out that the statutes setting
the length of DNR Board member's terms of office indicate that
DNR Board members "serve for terms prescribed by law" and their
terms "shall expire" after six years. Wis. Stat. § 15.07(1)(a)
& (1)(c). The State cites this language to argue that Prehn can
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No. 2021AP1673
no longer be in office because he has served his term and
therefore, Prehn is now illegally holding office. But the
State's conclusion does not follow from the statutes upon which
it relies. It is undoubtedly true that Prehn serves a defined
term of office, and it is accepted that Prehn's term expired in
May 2021. However, those realities say nothing about whether
there is now a "vacancy" in Prehn's DNR Board position under
Wis. Stat. § 17.03 justifying a provisional appointment under
Wis. Stat. § 17.20(2)(a), which the State in this case seeks.
Because Prehn's term expired, the Governor now has the
prerogative to appoint a successor who, if confirmed, may
replace Prehn on the Board for a full appointed term. Wis.
Stat. §§ 15.34(1), 15.07; Thompson, 22 Wis. 2d at 293; Heil, 242
Wis. at 48-49. Without the expiration of Prehn's term, the
Governor would not have the ability to appoint a replacement to
complete a successive term. Further, if the Governor wished to
replace Prehn prior to the completion of Prehn's term, the
Governor would need to overcome Prehn's "for cause" protections.
Wis. Stat. § 17.07(3). The Governor does not need to explain
the reasons for nominating another individual for senate
confirmation to replace Prehn.
¶30 Nonetheless, as explained above, the plain text of
Wis. Stat. § 17.03 establishes that the expiration of a defined
term for an appointed office does not create a vacancy. Without
a vacancy, the Governor cannot make a provisional appointment
and Prehn cannot be replaced with an individual whom the senate
has not confirmed. As we correctly explained in Thompson,
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No. 2021AP1673
"after the expiration of [incumbents'] terms," "the
incumbents . . . may holdover in office until their successors
are duly appointed and confirmed by the senate." 22 Wis. 2d at
293. This conforms with well established law. Heil, 242 Wis.
at 48-49; Pluntz, 176 Wis. at 113-16; 63C Am. Jur. 2d Public
Officers and Employees, supra ¶28; 67 C.J.S. Officers, supra
¶28.
¶31 Finally, the State cites statutes for other offices
that specify term lengths based on when a successor is
appointed. For instance, election officials at the municipal
level are appointed to "hold office for 2 years and until their
successors are appointed and qualified." Wis. Stat.
§ 7.30(6)(a). Local fire and police commissioners serve terms
of "5 years . . . and until their respective successors shall be
appointed and qualified." Wis. Stat. § 62.50(1h). The State
argues that the inclusion of this language for these offices
implies that the expiration of an appointed term as a general
matter creates a vacancy. In so doing, the State notes that
Wis. Stat. § 17.03 provides an exclusive list of vacancies
"[e]xcept as otherwise provided" or "declared by any special
provision of law." § 17.03, 17.03(13).
¶32 The State is correct that some statutes define terms
for different offices in a different manner than Wis. Stat.
§ 15.07 defines terms for DNR Board members. But that does not
answer whether incumbents may stay in office after their term
has expired, however that term is defined, or whether the
expiration of terms for appointed offices create a vacancy.
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No. 2021AP1673
Under the law in this state, absent statutory or constitutional
language prohibiting a holdover period, incumbents may lawfully
holdover after their statutorily prescribed term has concluded
and until their successor is appointed and qualified. Thompson,
22 Wis. 2d at 293; Heil, 242 Wis. at 48-49; Pluntz, 176 Wis. at
113-16; 63C Am. Jur. 2d Public Officers and Employees, supra
¶28; 67 C.J.S. Officers, supra ¶28. And under Wis. Stat.
§ 17.03, the expiration of appointed terms of office do not
create vacancies justifying a provisional appointment, unless a
provision of law states otherwise. Wis. Stat. §§ 17.03,
17.03(13); 17.20(2)(a). No statute or constitutional provision
has been identified that prohibits DNR Board members from
lawfully holding over, and no statute or constitutional
provision cited to the court defines the expiration of a DNR
Board member's term as a vacancy.
¶33 Simply because some offices in this state have defined
terms of office to end when a successor is appointed or
qualified does not imply that holdover periods are prohibited
for other offices such as the DNR Board, after the expiration of
fixed terms. As we explained in Thompson, the existence of an
explicit "holdover clause" makes it "even more clear that the
office is not 'vacant'" simply due to the fact that the time
specified by statute for holding office (e.g., two years for
municipal election officials) has passed. 22 Wis. 2d at 293-94.
The existence of holdover clauses in some statutes did not
prevent the Thompson court from recognizing, in line with
precedent and the common law, that incumbents "may holdover in
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No. 2021AP1673
office until their successors are duly appointed and confirmed
by the senate," even without explicit statutory authorization.
Id. at 293.
¶34 Furthermore, even if for some positions the
Legislature chose to explicitly incorporate the common law rule
through a holdover provision does not on its own imply the
abrogation of the established common law rule for other
positions that do not include a holdover provision, such as the
DNR Board. See Strenke v. Hogner, 2005 WI 25, ¶29, 279
Wis. 2d 52, 694 N.W.2d 296 ("To accomplish a change in the
common law, the language of the statute must be clear,
unambiguous, and peremptory."); Biart v. First Nat'l Bank of
Madison, 262 Wis. 181, 191, 54 N.W.2d 175 (1952) ("It is a
principle of statutory construction that the rules of common law
are not to be changed by doubtful implication."). Restating the
common law for a specific class of offices should not be
interpreted as removing common law rules for offices outside the
class. Antonin Scalia & Bryan A. Garner, Reading Law: The
Interpretation of Legal Texts 318-19 (2012) (reasoning that a
statute explicitly stating dogs "wearing tax tag[s]" are
personal property protected under tort law did not abrogate the
common law rule that all dogs are personal property protected
under tort law, notwithstanding the potential application of the
expressio unius canon); see also Fuchsgruber v. Custom Assocs.,
Inc., 2001 WI 81, ¶¶18-30, 244 Wis. 2d 758, 628 N.W.2d 833(explaining that a statute affecting the common law for
contributory negligence in negligence suits did not affect the
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No. 2021AP1673
common law for product liability suits, despite the fact that
product liability law incorporated and heavily utilized
contributory negligence principles); Schmidt v. N. States Power
Co., 2007 WI 136, ¶¶66-67, 305 Wis. 2d 538, 742 N.W.2d 294(reasoning that a statute setting standards for electricity
safety did not abrogate common law negligence rules on safety
and risk, despite the rules affecting the same types of
businesses performing the kinds of services).
¶35 Under Wisconsin law, the expiration of an appointed
term of office does not create a vacancy justifying a
provisional appointment. Wis. Stat. §§ 17.03, 17.20(2)(a).
Members of the DNR Board whose terms have expired may remain in
office as holdovers until their successors are properly
nominated by the Governor and confirmed by the senate.
Thompson, 22 Wis. 2d at 293; 63C Am. Jur. 2d Public Officers and
Employees, supra ¶28; 67 C.J.S. Officers, supra ¶28; Wis. Stat.
§§ 17.03, 15.07(1)(a), 15.34(1) & (2)(a). Prehn lawfully holds
office as a holdover, and because there is no vacancy in Prehn's
position, the Governor may not replace Prehn through use of a
provisional appointment. § 17.20(2)(a).
B. Whether Prehn Has For Cause Protections.
¶36 The State argues that Prehn does not have for cause
protections and can be removed at the pleasure of the Governor.
According to the State, this result is required under a plain
reading of the statutes and under the Wisconsin Constitution.
We again disagree.
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No. 2021AP1673
¶37 Under Wis. Stat. § 17.07(3), "[s]tate officers serving
in an office that is filled by appointment of the governor for a
fixed term by and with the advice and consent of the
senate . . . [may be removed] by the governor at any time, for
cause." Members of the DNR Board must be nominated by the
Governor and confirmed by the senate; they serve fixed terms.
Wis. Stat. §§ 15.07(1)(a), 15.34(1) & (2)(a). By the plain text
of § 17.07(3), DNR Board members who have undergone this
appointment process are entitled to for cause protections.
¶38 As alleged in the complaint, Prehn was lawfully
nominated by the Governor and confirmed by the senate in 2015 to
a fixed, six-year term. DeBruin, 343 Wis. 2d 83, ¶11. As a
member of the DNR Board, he is therefore entitled to for cause
protection. He still lawfully occupies the office of DNR Board
member, despite the fact that his term has expired; because
there is no vacancy in his position, he cannot be replaced by
provisional appointment. Thompson, 22 Wis. 2d at 293; 63C Am.
Jur. 2d Public Officers and Employees, supra ¶28; 67 C.J.S.
Officers, supra ¶28; Wis. Stat. §§ 17.03, 17.20(2)(a).
Therefore, Prehn under Wis. Stat. § 17.07(3) is a "[s]tate
officer" who currently "serv[es] in an office that is filled by
appointment of the governor for a fixed term by and with the
advice and consent of the senate." As a holdover, he still may
be removed only "for cause." § 17.07(3).
¶39 This is in line with the common law principle that
public officers have the same rights and responsibilities when
they are lawful holdovers as they do when they hold office prior
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to expiration of their terms. 63C Am. Jur. 2d Public Officers
and Employees, supra ¶28, § 149 ("A holdover officer has all the
authority to act in that capacity and receive compensation" and
also "continues as the incumbent of the office"); 67 C.J.S.
Officers, supra ¶28, § 155 ("[T]he period of . . . holding over
is as much a part of [the incumbent's] tenure of office as the
regular period fixed by law" and "[t]he office is held by the
same title and by as high and lawful a tenure after the
prescribed term . . . as before and during such term").
¶40 Our plain reading of Wis. Stat. § 17.07(3) is also
supported by our decision in Moses v. Bd. of Veterans Affairs,
80 Wis. 2d 411, 259 N.W.2d 102 (1977). In that case, an officer
was nominated by the Governor and confirmed by the senate to
serve as the Secretary of Veterans Affairs as required by
statute. Id. at 415. After the secretary was appointed, the
Legislature amended the governing statute to make appointments
to the position of secretary the decision of the Board of
Veterans Affairs alone. Id. Under Wis. Stat. § 17.07, after
the amendment of the statute, secretaries of Veterans Affairs
could be removed at the pleasure of the Board of Veterans
Affairs. Id. The board argued that they could therefore remove
the officer who currently held the position without cause. The
Wisconsin Supreme Court disagreed. Id. at 415-16. The court
explained that § 17.07 describes for cause protections in terms
of the individual "officer" who is subject to appointment. Id.
at 416-17. Even though under existing statutes the Secretary of
Veterans Affairs could be appointed only by the board, the
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current officeholder had already undergone nomination and senate
confirmation and lawfully held office. Id. Thus, under
§ 17.07, the officeholder was subject to for cause protections.
Id. As we explained, "[a]s long as [the current Secretary of
Veterans Affairs] remains an officer appointed by the governor,
confirmed by the senate, he remains removable from office only
by the governor, for cause." Id. at 416.
¶41 Moses' understanding of Wis. Stat. § 17.07 is readily
applicable here. Prehn was an "officer" who, to hold appointed
office on the DNR Board, was nominated by the Governor and
confirmed by the senate. Moses, 80 Wis. 2d at 416-17 (quoting
Wis. Stat. § 17.07 (1977-78). He remains in this position as a
lawful holdover. Thompson, 22 Wis. 2d at 293; 63C Am. Jur. 2d
Public Officers and Employees, supra ¶28; 67 C.J.S. Officers,
supra ¶28; Wis. Stat. §§ 17.03, 17.20(2)(a). As an officeholder
who underwent confirmation procedures, while Prehn remains on
the DNR Board he can be removed by the Governor only for cause.
§ 17.07(3).
¶42 The State argues that Wis. Stat. § 17.07 must be read
to permit Prehn's removal at the Governor's pleasure because, if
Prehn has for cause protection, the statute would violate the
separation of powers under the Wisconsin Constitution.
According to the State, providing Prehn for cause protection
would improperly limit the ability of the Governor to select a
DNR Board member who has similar views on policy. The State
argues this would prevent the Governor from "control[ling] the
execution of the law" as required by the Wisconsin Constitution.
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No. 2021AP1673
¶43 In making this argument, the State predominantly cites
federal caselaw on the removal power of the United States
President. See, e.g., Seila Law LLC v. Consumer Fin. Prot.
Bureau, 591 U.S. ___, 140 S. Ct. 2183 (2020); Myers v. United
States, 272 U.S. 52 (1926); Morrison v. Olson, 487 U.S. 654(1988); Humphrey's Ex'r v. United States, 295 U.S. 602 (1935).
While these cases may be foundational to properly understanding
the President's authority to remove federal officials in the
executive branch, they lend only limited support to structure,
meaning, and original understanding of the Wisconsin Governor's
removal power.
¶44 To properly confirm the meaning of the Wisconsin
Constitution, we consult "historical evidence" such as "the
practices at the time the constitution was adopted, debates over
adoption of a given provision, and early legislative
interpretation as evidenced by the first laws passed following
the adoption." Halverson, 395 Wis. 2d 385, ¶22; see, e.g.,
Koschkee v. Taylor, 2019 WI 76, ¶¶22-32, 387 Wis. 2d 552, 929
N.W.2d 600 (providing analysis on the history and meaning of the
Wisconsin Constitution's provision on the authority of the
Superintendent of Public Instruction); Johnson v. Wis. Elections
Comm'n, 399 Wis. 2d 623, ¶¶28-33 (analyzing the meaning of the
apportionment clause in the Wisconsin Constitution for
legislative districts). But the State here presents no
historical research or explanation to allow us to fully
interpret the Wisconsin Constitution and its original meaning.
Given that the State is arguing that Wis. Stat. § 17.07, as
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No. 2021AP1673
plainly read, would be unconstitutional, this lack of fully
developed argument is fatal to the State's position. See Soc'y
Ins. v. LIRC, 2010 WI 68, ¶27, 326 Wis. 2d 444, 786 N.W.2d 385("The challenger [in a constitutional claim] has the burden of
proof."); Mayo v. Wis. Injured Patients and Fams. Comp. Fund,
2018 WI 78, ¶25, 383 Wis. 2d 1, 914 N.W.2d 678 ("[W]e presume
that . . . statute[s] [are] constitutional."); Halverson, 395
Wis. 2d 385, ¶26 (rejecting a challenge to the admission of
evidence made by a criminal defendant who argued for the
application prophylactic right under the Wisconsin Constitution,
explaining that the defendant "provide[d] no textual or
historical basis" for his challenge); Serv. Employees Int'l
Union Local 1 v. Vos, 2020 WI 67, ¶73, 393 Wis. 2d 38, 946
N.W.2d 35 (explaining that our analysis under the Wisconsin
Constitution was limited to the "claim[s] developed before us").
We have no obligation to "develop or construct arguments for
parties" or construct a historical record in support of the
State's constitutional claim. Id., ¶24.
¶45 The lack of a complete historical record is
significant here because, from the court's independent research,
it appears that the power of the Wisconsin Governor to control
the occupancy of public offices within administrative agencies
is far less robust than that of the United States President.
¶46 The Wisconsin Constitution, adopted in 1848, divides
government power "into three separate branches, each 'vested'
with a specific core government power." Id., ¶31 (citing Gabler
v. Crime Victims Rights Bd., 2017 WI 67, ¶11, 376 Wis. 2d 147,
25
No. 2021AP1673
897 N.W.2d 384); see also Wis. Const. art. IV, § 1 ("The
legislative power shall be vested in a senate and assembly.");
id., art. V, § 1 ("The executive power shall be vested in a
governor."); id., art. VII, § 2 ("The judicial power of this
state shall be vested in a unified court system."). "To
exercise this vested power, the legislature is tasked with the
enactment of laws; the governor is instructed to 'take care that
the laws be faithfully executed'; and courts are empowered to
adjudicate civil and criminal disputes pursuant to the law."
Vos, 393 Wis. 2d 38, ¶31 (citing Wis. Const. art. IV, § 17; id.,
art. V, § 4; id., art VII, §§ 3, 5, 8, 14).
¶47 "A separation-of-powers analysis ordinarily begins by
determining if the power in question is core or shared." Vos,
393 Wis. 2d 38, ¶35. Core powers are those given by the
constitution to a single branch, such that "no other branch may
take" up those powers and "use [them] as [their] own." Id.(quoting another source). Shared powers, meanwhile, "lie at the
intersections of these exclusive core constitutional powers."
State v. Horn, 226 Wis. 2d 637, 643, 594 N.W.2d 772 (1999).
"The branches may exercise power within these borderlands but no
branch may unduly burden or substantially interfere with another
branch." Id. at 644.
¶48 Wisconsin's constitution, and the separation of powers
principles embodied in it, was the product of constitutional
conventions in 1846 and 1848. Ray A. Brown, The Making of the
Wisconsin Constitution (Part I), 1949 Wis. L. Rev. 648, 655 n.*
(1949) (noting that although the constitution framed by the 1846
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No. 2021AP1673
convention was ultimately rejected, the "essential details of
the 1848 constitution followed closely the rejected predecessor"
and that the 1846 convention brought "sharply into focus the
vital political, economic and social issues of the period").
The records from both conventions reveal that the authority to
appoint those whom the Governor supported was limited under the
Wisconsin Constitution. With respect to the 1846 convention, it
has been noted:
The governor was to be elected for a two-year term and
was given a comparatively small salary. He was given
a veto, which could only be overridden by a two-thirds
vote by each chamber of the legislature, but otherwise
his powers were quite limited. In particular, he was
given no appointive powers: convention delegates made
it clear they did not want the governor to exercise
extensive patronage.
Joseph A. Ranney, Trusting Nothing to Providence: A History of
Wisconsin's Legal System 51 (1999) (emphasis added). Similarly,
at the 1848 convention, "it seemed to be assumed by the
delegates that the governor would have no appointive power."
Ray A. Brown, The Making of the Wisconsin Constitution (Part
II), 1952 Wis. L. Rev. 23, 34 (1952). But see id. at 34 n.34
(noting that the legislature nevertheless could "confer the
appointive power on the governor").
¶49 Consistent with the understanding our constitutional
framers had in mind, the first compilation of the Wisconsin
Statutes assigned the Governor only modest responsibilities to
control who held public offices. For example, the Governor
could appoint individuals to fill certain positions that were
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No. 2021AP1673
administrative in nature. See § 57, ch. 9, Laws of 1849
(notaries public); § 2, ch. 23, Laws of 1849 (state librarian);
§ 1, ch. 61, Laws of 1849 (out-of-state land commissioners);
§ 1, ch. 143, Laws of 1849 (out-of-state agents to demand
fugitives from other jurisdictions); § 2, ch. 156, Laws of 1849
(state printer). In addition, the Governor was assigned
responsibility to fill vacancies in various offices. See § 11,
ch. 11, Laws of 1849 (vacant statewide offices); § 13, ch. 11,
Laws of 1849 (vacant local officers); § 5, ch. 18, Laws of 1849
(vacant positions on the board of regents). These statutes,
enacted immediately after the 1848 constitution was ratified,
reveal a circumscribed understanding of the Governor's
appointment power.
¶50 In contrast, the understanding of the Wisconsin
Constitution that prevailed at the time of its ratification
contemplated a strong role for the Legislature in appointment
decisions. Turning again to Wisconsin's first statutory
compilation following ratification, we see both close
legislative scrutiny of appointments made by the Governor and
direct legislative appointments. First, although the Governor
could remove certain officers for cause during a recess of the
Legislature, his power to fill the resulting vacancy was subject
to close legislative review:
All officers . . . who are or shall be appointed by
the governor, by and with the advice and consent of
the senate . . . may, for official misconduct, or
habitual or willful neglect of duty, be removed by the
governor upon satisfactory proofs, at any time during
the recess of the legislature, and the vacancy filed
28
No. 2021AP1673
by appointment made by him, until such vacancy shall
be regularly supplied; but no such appointment shall
extend beyond twenty days after the commencement of
the next meeting of the legislature.
§ 8, ch. 11, Laws of 1849. Thus, dating back to the founding of
our state, the Governor has never had expansive ability to
control who held public offices in administrative agencies. The
powers of removal and appointment were limited.
¶51 Further, we see that the Legislature itself exercised
the appointment power at the State's founding. Under the 1849
statutes, the board of regents governing the University of
Wisconsin did not consist of members appointed by the Governor
as it does today. Compare Wis. Stat. §§ 15.07(1)(a) & 15.91
with § 4, ch. 18, Laws of 1849. Instead, its members were
"elected by the senate and the assembly" to six-year terms.
§ 4, ch. 18, Laws of 1849. This reveals that the Governor was
never understood to wield an exclusive power over the
appointment and selection of administrative offices. To the
contrary, the Legislature retained a strong hand in most
appointment decisions, both by overseeing the Governor's use of
his limited appointment power and by making appointments itself.
¶52 Under this record, the restriction of the Governor's
removal power for DNR Board members does not present
constitutional concerns. Reviewing the structure of the DNR,
the Governor is not completely excluded from exercising control
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No. 2021AP1673
over the makeup of DNR public officials.4 The DNR Secretary must
be nominated by the Governor and confirmed by the senate, but
unlike the Board, the Secretary "serve[s] at the pleasure of the
governor." Wis. Stat. § 15.05(1)(c). By statute, the Secretary
wields "[a]ll of the administrative powers and duties of the
department." § 15.05(1)(b). Further, the Secretary
"promulgate[s] rules for administering the department and
performing the duties assigned to the department" with "the
approval of the board." Id. The Secretary, over whom the
Governor has direct control, exercises aspects of executive
power. See Koschkee, 387 Wis. 2d 552, ¶28 (describing
administrative roles such as "the oversight and charge of
something with the power of direction" as "executive . . . in
nature"); Horn, 226 Wis. 2d at 650 (reasoning that the
"administrative process . . . directed to the correctional and
rehabilitative processes of the parole and probation system" was
vested in the executive branch); Vos, 393 Wis. 2d 38, ¶¶59-60
(explaining that the administration of offices such as
"coroners, registers of deeds, district attorneys, [and]
sheriffs" were "executive functions").
¶53 The DNR Board is tasked with "regulatory, advisory and
policy-making," "not administrative," responsibilities. Wis.
Stat § 15.05(1)(b). Although more circumscribed than the
We do not hold that the Governor must exercise control
4
over the makeup of DNR administrative positions under the
Wisconsin Constitution. Even if that were required under the
Wisconsin Constitution, the structure of the DNR provides the
Governor control and influence in the makeup of DNR offices.
30
No. 2021AP1673
Governor's control over the Secretary, the Governor still
retains influence over the makeup of the DNR Board. See Vos,
393 Wis. 2d 38, ¶60 ("[A]dministrative agencies are considered
part of the executive branch." (quoting Koschkee, 387
Wis. 2d 552, ¶14)). As previously explained, the Governor may
nominate a replacement to DNR Board members once their terms
expire. Subject to the advice and consent of the senate, the
Governor has ability to select who holds office on the DNR Board
for six-year terms. Wis. Stat. §§ 15.07(1)(a), 15.34(1) &
(2)(a). The people's elected representatives in the senate may
accept or reject the Governor's nominees, but the Governor
undoubtedly has wide discretion in whom he chooses for
nomination. See Jensen v. Wis. Elections Bd., 2002 WI 13, ¶10,
249 Wis. 2d 706, 639 N.W.2d 537 (explaining the Legislature is
tasked to perform constitutional responsibilities as
"representatives elected by the people to make . . . political
and policy decisions"). As has been true since the enactment of
the Wisconsin Constitution, the Governor may of course work with
the senate to obtain a mutually satisfactory outcome on
appointments and selections for administrative offices. As
explained above, at the time the Wisconsin Constitution was
enacted, it appears that the Governor's authority to control the
occupancy of public offices was narrowly limited; the Governor,
for instance, had no inherent appointment power.
¶54 Furthermore, although the Governor does not have a
free hand to control who sits on the DNR Board, the Governor has
authority to remove DNR Board members "for cause" while they
31
No. 2021AP1673
serve in office. Wis. Stat. §§ 15.07(1)(a), 15.34(1), 17.07(3).
Whenever there is a vacancy on the DNR Board, the Governor may
make a provisional appointment, who exercises all the authority
of a DNR Board member "until acted upon by the senate." Wis.
Stat. § 17.20(2)(a). Public offices with different
responsibilities, operating in agencies with different
structures, may present constitutional issues or concerns not
present in the present suit. Nonetheless, with the available
record and the lack of developed argumentation on the part of
the State, we cannot conclude that for cause protections for DNR
Board members violate the Wisconsin Constitution.
¶55 While "[w]e must be assiduous in patrolling the
borders between the branches," based on the available record we
have before us, we cannot conclude that providing Prehn for
cause protection so offends the separation of powers that he
must as a matter of law be removable at the Governor's pleasure.
Tetra Tech EC, Inc. v. DOR, 2018 WI 75, ¶45, 382 Wis. 2d 496,
914 N.W.2d 21 (lead op.). Without any showing that Wis. Stat.
§ 17.07 violates the Wisconsin Constitution, we must follow the
statute's plain language. Until his successor is nominated and
confirmed by the senate, Prehn may be removed only for cause.
Neither the quo warranto nor declaratory relief requested by the
State is warranted.
IV. CONCLUSION
¶56 We affirm the decision of the circuit court. Under
Wis. Stat. § 17.03, the expiration of Prehn's term on the DNR
Board does not create a vacancy. Prehn lawfully retains his
32
No. 2021AP1673
position on the DNR Board as a holdover. Therefore, the
Governor cannot make a provisional appointment to replace Prehn
under Wis. Stat. § 17.20(2)(a). Until his successor is
nominated by the Governor and confirmed by the senate, under
Wis. Stat. § 17.07(3), Prehn may be removed by the Governor only
for cause. This arrangement complies with the plain language of
Wisconsin Statutes and does not raise constitutional concerns.
The State's complaint is dismissed with prejudice.
By the Court.—The judgment and the order of the circuit
court are affirmed.
33
No. 2021AP1673.rfd
¶57 REBECCA FRANK DALLET, J. (dissenting). Imagine
that, in 2015, you hired someone for a position that, by law,
was for a "6-year term[]" that "shall expire on May 1 . . . in
an odd-numbered year." See Wis. Stat.
§§ 15.34(2)(a), 15.07(1)(c). Imagine also that you promised
your new employee that, while they were "serving in [that]
office" you wouldn't fire them except "for cause." See Wis.
Stat. § 17.07(3). If you were asked when that position would be
vacant so that you could hire someone else, you'd say "May 1,
2021," right? "Wrong," says the majority. In its view, that
position isn't vacant until your employee decides to leave. Oh,
and they still can't be fired without cause either, even after
their term has expired.
¶58 The majority's absurd holding allows Prehn's six-year
term on the Board of Natural Resources——which expired over a
year ago——to last for as long as Prehn wants it to, so long as
he refuses to leave and the senate doesn't confirm a successor
nominated by the governor. And even though his term is long
expired, the governor can't remove him except for cause. The
majority bases these nonsensical conclusions on its misguided
reading of a handful of statutes and a common-law doctrine meant
to avoid the "disorder and inconvenience" that would result if
incumbents were unable to continue holding office after their
terms expired but before a successor was in place. See State ex
rel. Martin v. Heil, 242 Wis. 41, 49, 7 N.W.2d 375 (1942). The
majority's decision, however, steers our state's government
directly into disorder and chaos, threatening the fragile
1
No. 2021AP1673.rfd
separation of powers central to its functions. I therefore
dissent.
I
¶59 The Board of Natural Resources, which "direct[s] and
supervis[es]" the Department of Natural Resources, is made up of
seven members appointed to "staggered 6-year terms." Wis. Stat.
§ 15.34(2)(a). The legislature specified that those six-year
fixed terms "shall expire on May 1" and "in an odd-numbered
year." § 15.07(1)(c). The Board's members are nominated by the
governor and officially appointed to their position on "the
advice and consent of the senate." Wis. Stat. § 15.07(1)(a).
¶60 Although positions on the Board are typically filled
through that nomination-and-appointment process, the governor
alone can fill a vacancy on the Board for the "residue of [an]
unexpired term" through a provisional appointment. See Wis.
Stat. § 17.20(2)(a). Such provisional appointments "shall be in
full force until acted upon by the senate" and entitle the
appointee to exercise all the powers of the office "during the
time in which the appointee qualifies." Id. To "qualif[y]" in
this context, an appointee need only "file[] the required oath
of office." § 17.01(13).
¶61 Turning to this case, the majority concludes that
Prehn's office is not vacant even though his six-year term
indisputably expired on May 1, 2021. As a result, the majority
holds that the governor may not provisionally appoint a
replacement for Prehn, for two reasons. First, the majority
points to the "well established" common law rule "that appointed
2
No. 2021AP1673.rfd
officers can lawfully holdover after the expiration of their
term until a successor is properly appointed to the position."
Majority op, ¶28. And second, it reasons that the "carefully
defined vacancy rules" in Wis. Stat. § 17.03 make clear that the
expiration of a fixed term in appointed office does not create a
vacancy. See id., ¶¶19-20. Neither of these reasons supports
the majority's conclusion.
¶62 Although the majority reaches the wrong conclusion,
its common-law starting point is correct. The longstanding
common law rule in Wisconsin and elsewhere is that, absent a
provision otherwise, an officeholder may continue serving beyond
the expiration of their term until a successor is appointed and
qualified. See State ex rel. Pluntz v. Johnson, 176 Wis. 107,
114, 186 N.W. 729 (1922); see also State ex rel. Thompson v.
Gibson, 22 Wis. 2d 275, 283-84, 125 N.W.2d 636 (1964). The
courts adopted this rule to avoid the "disorder and
inconvenience" that might result if officials were required to
leave their office immediately at the expiration of their term
even if no one was ready to replace them. See Heil, 242 Wis. at
49. These concerns were particularly serious before the advent
of modern communication, when news of a vacancy could take a
long time to pass along, and when the legislature was rarely in
session, thus slowing the confirmation of gubernatorial
appointees. For those reasons, it's unsurprising that many of
our cases involving holdover officials were decided in the late
1800s and early 1900s. See, e.g., State ex rel. Finch v.
3
No. 2021AP1673.rfd
Washburn, 17 Wis. 658 (1864); State ex rel. Guernsey v. Meilike,
81 Wis. 574, 51 N.W. 875 (1892).
¶63 Today, however, those concerns are at play rarely, if
ever, and particularly not in a situation like Prehn's. Prior
to Prehn's term expiring in May 2021, the governor had appointed
a successor, who also filed the oath of office, thus qualifying
her for the position. See Wis. Stat. §§ 17.01(13), 17.20(2)(a).
Thus, there would be no disruption to the work of DNR or the
Board if Prehn were removed from office tomorrow. And despite
having numerous opportunities over more than a year to confirm
or reject the governor's nominee, the senate has refused even to
act on that nomination. Meanwhile, allowing Prehn to continue
serving in office indefinitely makes him the final authority on
whether he remains in office——not the legislature, which
specified by statute that his term expired over 13 months ago,
and not the governor, who the legislature gave the authority to
nominate a replacement. One unelected official should not be
able to dictate his term in office over the will of the people's
elected representatives.
¶64 Fortunately, that is not the law. Although Prehn may
hold over after his term expires to avoid a temporary disruption
to the Board's work, his office is vacant upon the expiration of
his term. That is because not all holdover officials are the
same, at least when it comes to whether holding over creates a
vacancy. We have distinguished between two types of holdover
officers: de jure and de facto. See Thompson, 22 Wis. 2d at
294. A de jure officer is one may continue serving in office
4
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after their term expires under "an express statutory provision
for holding over after expiration of an appointive term." Id.Our statutes contain a number of such provisions, including
those applicable to members of the council on recycling, local
election officials, first-class city fire and police
commissioners, and local weed commissioners. See Wis. Stat.
§§ 15.347(17)(c), 7.30(6)(a), 62.50(1h), 66.0517(2)(a). All of
these officials have statutory authority to remain in office
past the expiration of their term until a successor is appointed
and qualified to replace them. See, e.g., § 66.0517(2)(a).
Thus, their office is not vacant if they so hold over. See
Thompson, 22 Wis. 2d at 294 (holding that both nomination by the
governor and senate confirmation are necessary to replace a de
jure officer).
¶65 A de facto officer, on the other hand, is an officer
who holds over after the expiration of their term without the
explicit statutory authority to do so. See id. In that case,
although there is technically someone in the office, and they
may legally discharge that office's duties, the office is vacant
for appointment purposes and can be filled by a valid
appointment. See, e.g., Romanoff v. State Comm'n on Jud.
Performance, 126 P.3d 182, 191 (Colo. 2006) (explaining that a
de facto officer may serve in the office only until the office
is filled by appointment); Bradford v. Byrnes, 70 S.E.2d 228,
231 (S.C. 1952); State ex rel. Ryan v. Bailey, 48 A.2d 229, 231-
32 (Conn. 1946); see also 67 C.J.S. Officers § 154 (explaining
that officers holding over without express statutory
5
No. 2021AP1673.rfd
authorization "are generally regarded as de facto officers and
cannot be punished as intruders; but their temporary occupation
of office does not prevent the existence of a vacancy and the
filling of the office by the duly empowered authority").
¶66 Prehn is a de facto officer whose authority to serve
in office ended when the governor appointed Prehn's successor
after the expiration of his term. That is because he was
appointed to a fixed, six-year term on the Natural Resources
Board, and nothing in the statutes creating that position
expressly authorizes him to hold over until a successor is
appointed and qualified. See §§ 15.34(2)(a), 15.07(1)(a)-(c).
Prehn is therefore differently situated from de jure officers,
such as the local weed commissioners, all of whom have explicit
statutory authorization to remain in office until a successor is
appointed and qualified. See § 66.0517(2)(a). And as a result,
Prehn's office is vacant for appointment purposes even though he
continues to occupy it as a holdover.
¶67 The relevant statutes support that conclusion. The
vacancy statutes originate from Article XIII, Section 10(1) of
the Wisconsin Constitution, which provides that "[t]he
legislature may declare the cases in which any office shall be
deemed vacant . . . where no provision is made for that purpose
in this constitution." Since statehood, the legislature has
specified by statute at least some situations in which an
appointed office is vacant. For example, Wis. Stat. ch. 11, § 2
(1849) stated that "[e]very office shall become vacant on the
happening of . . . the following events before the expiration of
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a term," and listed several such events including resignation,
removal from office, or conviction of certain crimes. Today's
vacancies statute, § 17.03, is a direct descendant of that early
statute, and states that "[e]xcept as otherwise provided, a
public office is vacant when," for instance, an incumbent
resigns, is removed, is convicted of certain crimes, or "[a]ny
other event occurs which is declared by any special provision of
law to create a vacancy." See § 17.03(2)- (3), (5), (13).
¶68 Although § 17.03 does not explicitly list the
expiration of a fixed term as an instance in which an office is
vacant, that event fits within the statute reference to
vacancies that are "otherwise provided" for. Indeed, the only
reasonable interpretation of what it means for a person's term
to "expire" is that it marks the last date on which the person
has the statutory authority to continue serving in that
position. See State ex rel. Kalal v. Cir. Ct. for Dane Cnty.,
2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110 (we give
statutory language its "common, ordinary, and accepted
meaning"). When, under a statute of limitations, the time to
bring a cause of action "expires," that's the end of it; a party
cannot initiate a claim after that date. So too for appointees
who lack explicit statutory authorization to hold over. The
expiration of their term in office necessarily creates a vacancy
in that office.
¶69 That conclusion is at odds with our decision in
Thompson, and to that extent, Thompson should be overruled.
There, we held that an office is not vacant when it is occupied
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by a holdover official, even if that official lacks statutory
authority to hold over. See Thompson, 22 Wis. 2d at 293-94.
Thompson, however, did so based on its incorrect assumption that
the vacancies statute, § 17.20 (1963-64), exhaustively
identified all situations in which a vacancy existed. See id.
at 293. As explained above, however, events not enumerated in
the vacancies statute can (and indeed must) create vacancies.
Moreover, although Thompson acknowledged the existence of de
facto and de jure officers, it failed to recognize the
importance of that distinction on the existence of a vacancy.
Id. at 293-94. In these respects, Thompson is "detrimental to
coherence and consistency in the law," "unsound in principle,"
and "unworkable in practice," and should be overruled. See
State v. Roberson, 2019 WI 102, ¶50, 389 Wis. 2d 190, 935
N.W.2d 813 (identifying the grounds for overruling a prior
decision).
¶70 Setting aside those reasons for why Thompson should be
overruled, it is distinguishable in all other respects because
it addressed a fundamentally different appointments system than
exists today. See State ex rel. DNR v. Wis. Ct. of Appeals,
Dist. IV, 2018 WI 25, ¶38 n.16, 380 Wis. 2d 354, 909 N.W.2d 114("[W]hen the legislature changes the structure of a statute, we
must construe it anew."). When Thompson was decided, the
governor could make provisional appointments only when the
legislature was in recess or out of session, but could do so
even in the absence of a vacancy. See Wis. Stat. § 14.22 (1963-
64). That meant that if the governor wanted to replace a
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No. 2021AP1673.rfd
holdover official and the senate refused to act on the
nomination, the governor could simply wait for a recess and then
make an appointment. Today, however, the governor may make
provisional appointments at any time, but only to fill
vacancies. See § 17.20(2)(a). Importing Thompson's
interpretation of outdated vacancy and appointment statutes into
the current statutory context, as the majority does, produces
results that Thompson could not have anticipated and that are at
odds with the legislature's subsequent changes to the
appointments system. See Wis. Legis. Ref. Bureau, LRB-9627
(explaining that 1977 Wis. Laws ch. 418 was meant to "extend[]
the power of the governor to make provisional appointments under
the same circumstances" permitted under the prior law and
"regardless of whether the legislature is in recess," "[u]nless
the appointee is to replace an official who has not resigned and
is serving for a fixed term which has not yet expired."
(emphasis added)). Namely, it transforms a statutory change
meant to expand the governor's power to make provisional
appointments into one that grants appointees like Prehn the
power both to hold office indefinitely in spite of the
expiration of their term and to prevent provisional appointees
from taking office. Given the changes to the statutory
structure, Thompson has little, if anything, to say about this
case.
¶71 The majority's contrary reasoning, based in large part
on Thompson, is also unpersuasive, mainly because it creates
tension elsewhere in the appointments statutes. For example,
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the majority does not explain why, if the expiration of the term
doesn't cause a vacancy, the governor and the senate together
could nevertheless replace Prehn. After all, if his office
isn't vacant, then why can he be replaced by a new nominee
confirmed by the senate? See 76 Wis. Op. Att'y Gen. 272, 273-74
(1987) (explaining that the governor and the legislature cannot
fill vacancies that do not yet exist). Yet both the majority
and all the parties seem to take it as a given that if the
Senate confirmed the governor's nominee tomorrow, then she would
immediately replace Prehn, even though there would be no
statutory vacancy to fill.
¶72 Moreover, the majority's textual analysis is flawed,
and, in at least one instance, is at odds with itself. For
starters, the majority offers no reasonable interpretation of
what § 15.07(1)(c) means by "fixed terms . . . shall expire on
May 1 . . . [of] an odd-numbered year." Rather, it asserts that
the expiration of a term means only that "the Governor now has
the prerogative to appoint a successor who, if confirmed, may
replace Prehn on the Board for a full appointed term." Majority
op., ¶29. That is a bizarre way to read § 15.07(1)(c), which
says nothing whatsoever about the powers of the governor or the
senate. Next, the majority reasons that the expiration of
Prehn's term doesn't create a vacancy because § 17.03(10) states
that a vacancy in "elective" offices arises when "the
incumbent's term expires." According to the majority, this
provision would be "surplusage" if the expiration of a term——for
elected or unelected offices——necessarily created a vacancy.
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See majority op., ¶26. Maybe so, but the majority's contrary
interpretation also creates surplusage by giving no meaning to
the statutory provisions referenced above that give de jure
officers like the local weed commissioner the explicit statutory
authority to hold over after the expiration of their term. See,
e.g., § 66.0517(2)(a). So there is "surplusage" either way, and
the majority articulates no principled reason for choosing its
interpretation over all others. Likewise, the majority's
conclusion that Prehn may continue serving indefinitely after
the expiration of his term gives no meaning to the statutory
requirement that Board members serve "staggered" terms.
§ 15.34(2)(a). At this point, Prehn is seemingly not serving a
term at all, let alone one that is "staggered" with the terms of
the Board's other members. See id. Again, the majority fails
to square that "staggered term" language with its
interpretation.
¶73 Luckily, our precedents offer a solution, mandating
that we choose an interpretation that most closely adheres to
the statute's text, context, and purpose. See, e.g., Kalal, 271
Wis. 2d 633, ¶46. And for those reasons, we must conclude that
a vacancy arose in Prehn's office when his term expired in May
2021. That is the only way to make sense of the competing
statutory provisions at play. Because Prehn's office was
vacant, the governor had the power to fill it "at any time" by
provisional appointment, see § 17.20(2)(a), with a nominee who
qualified for office by filing the statutorily required oath.
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No. 2021AP1673.rfd
The governor and his appointee did so as of May 1, 2021, and as
a result, Prehn ceased lawfully serving on that date.
II
¶74 Even if Prehn's office is not vacant, however, there
is another reason why he cannot remain in office: He is no
longer entitled to the for-cause removal protection that applies
to Board members during their terms in office.
¶75 Wisconsin Stat. § 17.07 provides specific rules
governing the removal from office of state officers. The
statute generally distinguishes among various state offices
according to how they are filled. See, e.g., § 17.07(1)-(5).
In the case of "[s]tate officers serving in an office that is
filled by appointment of the governor for a fixed term by and
with the advice and consent of the senate," like members of the
DNR Board, they may be removed from office "by the governor at
any time, for cause." § 17.07(3). When a statute provides
protection from removal except for cause, "'cause' means
inefficiency, neglect of duty, official misconduct, or
malfeasance in office." Wis. Stat. § 17.001. Aside from the
narrow categories of officers granted for-cause removal
protections, all other state officers serve at the pleasure of
either the governor or the other officer or body that appointed
them. See, e.g., § 17.07(3m)-(6).
¶76 During Prehn's six-year term, he indisputably fell
within the category of officers with for-cause removal
protection under § 17.07(3). He was a "[s]tate officer[]
serving in an office that [was] filled by appointment of the
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No. 2021AP1673.rfd
governor for a fixed term by and with the advice and consent of
the senate." See id. The question is whether that protection
continues now that he is holding over after the expiration of
his term in office.
¶77 The majority concludes that it does because Prehn
"still lawfully occupies the office of DNR Board member, despite
the fact that his term has expired," and he therefore "'serv[es]
in an office that is filled by appointment of the governor for a
fixed term by and with the advice and consent of the senate.'"
See majority op., ¶38 (alteration in original) (quoting
§ 17.07(3)). As a result, the majority holds that "while
[Prehn] remains on the DNR Board," even as a holdover, "he can
be removed by the Governor only for cause." See id., ¶41.
¶78 What the majority overlooks, however, is that the
statute limits for-cause removal protection to the Board
members' fixed terms. Section 17.07(3) provides for-cause
removal protection to those "serving in an office that is filled
by appointment . . . for a fixed term." See § 17.07(3)
(emphasis added). The use of the present tense in § 17.07(3)
makes clear that for-cause removal protection applies only while
the officeholder is serving the fixed term to which he was
appointed. So even though Prehn was once serving such a fixed
term, during which he had for-cause protection, he isn't
anymore——that term expired more than a year ago. Now he is
serving in an office filled by a holdover appointee for a
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No. 2021AP1673.rfd
seemingly indefinite term. And for that reason, he falls
outside the for-cause removal protections granted by § 17.03(3).1
¶79 This conclusion is supported by the broader structure
of the removal statutes, is confirmed by the legislative
history, and avoids possible constitutional problems. To begin
with, the majority's incomplete and consequences-be-damned
interpretation of the removal statutes effectively grants Prehn
life tenure. If the only way Prehn can be removed from office
is for cause by the governor, then the majority does not explain
why he can be replaced even if the senate confirms the
governor's nominee for Prehn's office. See majority op., ¶38.
After all, the majority's logic is that Prehn "lawfully occupies
the office of DNR Board member" and thus, "[a]s a holdover, he
still may be removed only 'for cause.'" See id. (quoting
§ 17.07(3)). This cannot be right, if for no other reason than
it leads to the absurd result that Prehn's expired six-year term
has somehow transformed into life tenure with for-cause removal
protection. See Kalal, 271 Wis. 2d 633, ¶46 (we interpret
statutes "reasonably, to avoid absurd or unreasonable results").
1The majority's citation to Moses v. Board of Veterans
Affairs, 80 Wis. 2d 411, 259 N.W.2d 102 (1977) is not to the
contrary. In that case, we held that when the law governing who
appointed the Secretary of Veterans Affairs changed while an
incumbent was in office, the incumbent was entitled to the prior
law's removal procedures so long as he remained in office. Id.
at 417. Moses did not address whether for-cause removal
protections extend beyond the expiration of an incumbent's term—
—indeed, the Secretary of Veterans Affairs served an indefinite
term. See Wis. Stat. § 15.05(1)(b) (1975-76). Thus, Moses does
not help answer the particular removal question raised in this
case.
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¶80 By contrast, interpreting for-cause removal to expire
when a fixed term expires avoids that absurd result, and is
consistent with the legislative evidence. When the phrase
"fixed term" was added to § 17.07(3) in 1980, the explanatory
notes stated that the change was to be read "in accordance with
the presently accepted understanding," which provided that
"appointees who serve for a fixed term and whose appointments
require senate confirmation may not be removed by the governor
in mid-term unless a showing of cause is made." Dep't of
Admin., Explanatory Notes for Statutory Changes Appearing in the
1980 Annual Review Bill, App'x to 1980 Assembly Bill 1180
(emphasis added). This explanation of the 1980 amendment
confirms that Prehn's for-cause removal protection ended when
his fixed term expired in May 2021. That conclusion also avoids
the potential separation-of-powers issues that could arise if
the governor's inability to remove Prehn prevents the governor
from exercising his powers over the executive branch, including
DNR.2 See, e.g., Serv. Emps. Int'l Union, Local 1 v. Vos, 2020
The majority concludes that, based on its "independent
2
research, it appears that the power of the Wisconsin Governor to
control the occupancy of public offices within administrative
agencies is far less robust than that of the United States
President." Majority op., ¶45. Perhaps that was true in the
State's early days, when the governor could appoint only a
handful of state officials and had little or no power to remove
them. See id., ¶¶49-50. But I question whether that remains
true today, now that the legislature has granted the governor
broad authority to make appointments without input from the
legislature and to remove most state officials without cause.
See, e.g., Wis. Stat. §§ 17.07(3m)-(6), 17.20(2)(a). In any
event, because I conclude that the governor has the statutory
authority to remove Prehn for any reason after the expiration of
Prehn's fixed term, I do not address these constitutional
questions further.
15
No. 2021AP1673.rfd
WI 67, ¶¶129-30, 393 Wis. 2d 38, 946 N.W.2d 35 (discussing the
relationship between executive power and administrative
agencies); see also Am. Fam. Mut. Ins. Co. v. DOR, 222
Wis. 2d 650, 667, 586 N.W.2d 872 (1998) (explaining that courts
"should avoid interpreting a statute in such a way that would
render it unconstitutional when a reasonable interpretation
exists that would render the legislation constitutional.").
¶81 As a result, I conclude that for-cause removal
protection for DNR Board members is limited to their fixed terms
in office, and that holdover members like Prehn are therefore
removable at will by the governor. Thus, even if Prehn's office
is not vacant, the governor may remove him from office
immediately.
¶82 I am authorized to state that Justices ANN WALSH
BRADLEY and JILL J. KAROFSKY join this opinion.
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No. 2021AP1673.rfd
1