State ex rel. Kaul v. Prehn

Decision Date29 June 2022
Docket Number2021AP1673
Citation402 Wis.2d 539,976 N.W.2d 821,2022 WI 50
Parties STATE of Wisconsin EX REL. Joshua L. KAUL, Plaintiff-Appellant, v. Frederick PREHN, Defendant-Respondent, Wisconsin Legislature, Intervenor-Defendant-Respondent.
CourtWisconsin Supreme Court

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.

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.


¶1 This case is before the court on bypass pursuant to Wis. Stat. § (Rule) 809.60 (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 the Wisconsin Statutes and does not raise constitutional concerns. The State's complaint is dismissed with prejudice.


¶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 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.


¶10 In this case, we review a motion to dismiss for failure to state a claim. The motion "tests the legal 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 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, 953 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).


¶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. 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...

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