Cnty. of Dane v. Pub. Serv. Comm'n of Wis., s. 2021AP1321-LV & 2021AP1325

CourtUnited States State Supreme Court of Wisconsin
Writing for the CourtPATIENCE DRAKE ROGGENSACK, J.
Citation403 Wis.2d 306,976 N.W.2d 790,2022 WI 61
Parties 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.
Docket Numbers. 2021AP1321-LV & 2021AP1325
Decision Date07 July 2022

403 Wis.2d 306
976 N.W.2d 790
2022 WI 61

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.

Nos. 2021AP1321-LV & 2021AP1325

Supreme Court of Wisconsin.

Oral Argument: February 28, 2022
Opinion Filed: July 7, 2022


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

976 N.W.2d 795

the 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.

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.

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.

PATIENCE DRAKE ROGGENSACK, J.

403 Wis.2d 317

¶1 Dane County filed this Wis. Stat. ch. 227 (2019-20)1 action in Dane County Circuit

976 N.W.2d 796

Court 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.

403 Wis.2d 318

¶4 Although four justices do not agree on how to address the procedural posture of this case, a majority of the court 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, 129 S.Ct. 2252, 173 L.Ed.2d 1208 (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,

403 Wis.2d 319

Republicans and Democrats. 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

976 N.W.2d 797

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 Valcq's past work for We Energies "created an appearance of bias" and Michael Huebsch's work with a federal regulator, Midcontinent...

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