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Supreme Court to weigh effort to oust Natural Resources Board chair

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The Wisconsin Supreme Court has agreed to consider whether the embattled chairman of the state’s Natural Resources Board can continue to hold his seat months after his term expired.

Fred Prehn, a Wausau dentist appointed by former Gov. Scott Walker in 2015, has refused to step down since his term expired May 1, denying Gov. Tony Evers’ appointee Sandra Naas a seat and maintaining a 4-3 majority for Republican appointees.

Prehn maintained that a 1964 Supreme Court ruling means he does not have to leave until Naas is confirmed by the Senate, but Republicans who control the chamber have made no move to set a hearing or answer questions on their plans to do so.

The $670 million plant in Beloit is Wisconsin's newest gas-fired power plant and second largest.

Attorney General Josh Kaul, a Democrat, asked the courts to remove Prehn, arguing he serves at the governor’s pleasure.

Dane County Circuit Judge Valerie Bailey-Rihn dismissed the case, citing the Supreme Court precedent.

Kaul then asked the Supreme Court to take the case, bypassing the court of appeals, to address “time-sensitive issues” raised by Prehn’s refusal to step down.

Josh Kaul


“This Court’s involvement is warranted now to resolve this discrepancy, as each day that passes inflicts further harm to the public, with the rightful board member currently barred from taking her seat by Defendant Prehn’s refusal to step down,” Kaul wrote.

Prehn also asked the high court to hear the case, saying it would provide an opportunity to clarify “the long-standing but little known hold over rule that applies to appointive offices in Wisconsin government.”

Frederick Prehn


“Resolution of this matter is urgent,” attorney Mark Maciolek wrote in his brief to the court. “The Attorney General’s political lawsuit has misled the public into believing Dr. Prehn has behaved illegally, or at least unethically, when the opposite is true.”

The court will also consider the GOP-led Legislature’s request to take part in the case.

If Prehn is removed, the lawmakers argue, the governor will fill the seat with an “interim appointment,” which they consider an “attempted end-run around the Senate’s advice-and-consent role.”

Writing on behalf of three of the court’s conservative justices, Justice Rebecca Bradley said the case “presents purely legal issues of statutory interpretation, which implicate the separation of powers.”

Two liberal justices agreed to take the case for different reasons.

“Petitioner alleges an ongoing injury that threatens the functioning of an important state agency,” wrote justices Rebecca Dallet and Jill Karofsky. “Delaying access to this court while the parties file briefs in the court of appeals may unnecessarily prolong that alleged harm.”

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