July 26, 2022– The Dane County Circuit court erred by denying a motion to quash two subpoenas of a former member of the Public Service Commission (PSC), the Wisconsin Supreme Court has ruled.
In Dane County v. Public Service Commission, 2022 WI 61 (July 7, 2022), the supreme court held (4-3) that the party that issued the subpoenas failed to show specific and objective bias during the PSC adjudication.
Justice Patience Roggensack wrote the majority opinion, joined by Chief Justice Annette Ziegler, Justice Rebecca Grassl Bradley, and Justice Brian Hagedorn. Justice Hagedorn wrote a concurring opinion. Justice Jill Karofsky wrote a dissenting opinion, joined by Justice Ann Walsh Bradley and Justice Rebecca Dallet.
Allegation of Bias
In August 2019, the three-member PSC voted unanimously to approve the Cardinal-Hickory Transmission Line. The 345 kV power line will stretch approximately 100 miles between a substation in Dane County and a substation in Dubuque County, Iowa.
Jeff M. Brown is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by
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The Driftless Area Land Conservancy (Driftless), an environmental nonprofit, moved to disqualify two of the commissioners. Driftless claimed that the participation of the two commissioners created an unconstitutional appearance of bias and impartiality.
Specifically, it alleged that Commissioner Michael Huebsch should have been precluded from participating in the approval of the Cardinal-Hickory line because he used to work for a federal regulator and could have received ex parte communications about the line while at events sponsored by the regulator.
In the written decision that it issued to finalize its approval, the PSC rejected the bias claims made by Driftless.
Lawsuit Follows PSC Approval
In December 2019, Dane County filed a lawsuit in Dane County Circuit Court under Wis. Stat. ch. 227 to contest the PSC approval of the Cardinal-Hickory line. Driftless intervened in the case.
During the lawsuit, Driftless renewed its claims of Huebsch’s bias. Driftless argued that the bias violated the Due Process Clause of the Fourteenth Amendment and required the court to vacate PSC’s approval of the Cardinal-Hickory line.
Driftless subpoenaed Huebsch to sit for a deposition; it also subpoenaed his cellphone. Huebsch moved to quash the subpoenas.
The circuit court denied Huebsch’s motion. Huebsch filed a petition for interlocutory appeal with the Wisconsin Court of Appeals; the court granted the petition and stayed the discovery of the subpoenas.
Driftless then withdrew the subpoenas and moved to dismiss Huebsch’s petition with the court of appeals, arguing that the appeal was moot. The court of appeals agreed and vacated the stay and the interlocutory review.
Two business days later, Driftless subpoenaed Huebsch to testify at trial. Huebsch then sought an emergency petition for supreme court review and asked the supreme court to stay the circuit court proceedings; the supreme court granted the petition and the stay.
Mootness Exception Applies
In her opinion for the majority, Justice Roggensack explained that even if the issues raised by Huebsch’s petition were moot, one of five historically accepted exceptions to the mootness doctrine applied: the issue was likely to arise again yet evade review.
The issues presented by Huebsch’s petition were likely to arise again and evade review because Driftless had the power to stop challenged conduct and then resume it – namely, the power to withdraw subpoenas of Huebsch and then subpoena him again, as it had done after the court of appeals withdrew the interlocutory review.
‘Irregularities’ Require Specific Evidence
Justice Roggensack then pointed out that under section 227.57(1), the scope of a judicial review of an agency action is confined to the record, except in cases of “alleged irregularities in procedure before the agency.” If a court grants leave to take testimony on such irregularities, the statute specifies that “depositions and written interrogatories may be taken … if proper cause is shown therefore.”
The circuit court concluded that Huebsch’s “appearance of bias” was such an irregularity. But Justice Roggensack noted that under Wisconsin Court of Appeals precedent, a prima facie showing of irregularities under section 227.51(1) must rest on more than general allegations.
Roggensack wrote that given the wording, “if proper cause is shown therefore” in section 227.57(1), a party seeking to expand the record under that section must provide “specific factual statements by the adjudicator that show wrongdoing … i.e., objective factual evidence of the adjudicator prejudging the merits of the matter before the committee.”
Driftless failed to make such a showing, Justice Roggensack wrote, because it provided no evidence of statements to or by Huebsch on the merits of the Cardinal-Hickory line.
No Showing of Risk of Bias
Driftless also did not show a “serious risk of actual bias,” the standard for showing a due process violation, Justice Roggensack explained.
Roggensack noted that Driftless didn’t provide a single example of Huebsch talking to anyone from the federal regulator that he previously worked for about the merits of the Cardinal-Hickory line.
And there was no factual evidence to support the implication made by Driftless that Huebsch’s application for the CEO position at Dairyland Power Cooperative several months after he left the PSC was evidence of a quid pro quo, Justice Roggensack explained (Huebsch wasn’t even granted an interview, Roggensack pointed out).
Accordingly, Justice Roggensack concluded that the circuit court erred by denying Huebsch’s motions to quash the subpoenas.
Concurrence: Majority Opinion too Broad
In his concurrence, Justice Hagedorn argued that the majority was wrong to rely on an interpretation of section 225.57(1) to reverse the circuit court’s decision not to quash the subpoenas.
Hagedorn noted that section 805.07(3) allows a court to “quash or modify” a subpoena determined to be “unreasonable or oppressive.” The subpoenas issued by Driftless to Huebsch met that standard, Justice Hagedorn argued, and that was the only issue the supreme court should have decided.
Justice Hagedorn also explained that given the relevant U.S. Supreme Court case law, few plaintiffs will be able to succeed on a due process claim related to an adjudication by showing “a serious rise of actual bias.”
“While citizens have a right to expect judges and other adjudicators to decide cases impartially, this concern does not justify weaponizing bias allegations and recusal to achieve litigation ends,” Hagedorn wrote.
Dissent: Majority Misapplies Mootness Doctrine
In her dissent, Justice Karofsky argued that the majority erred by relying on the “capable and likely of repetition yet evades review” exception to the mootness doctrine, because the phone subpoena and the trial subpoena differed both factually and legally.
Karofsky pointed out that the trial subpoena demanded much less of Huebsch than the phone subpoena, as it required only that he appear at trial and provide truthful testimony. And she noted that different legal standards applied to the quashing of the phone subpoena and the trial subpoena.
In State v. Gilbert, 109 Wis. 2d. 501, N.W.2d. 744 (1982), the supreme court reinstated a trial subpoena issued to a ten-year-old abuse victim – a subpoena that the victim argued should be quashed as “unreasonable and oppressive” under section 805.07(3), Justice Karofsky noted.
In doing so, Karofsky wrote, the supreme court held that section 805.07(3) applies only to subpoenas duces tecum in a ruling that “underscored just how fundamental a [trial subpoena] is to our legal system.”
Justice Karofsky explained that Huebsch’s appeal sought review of only the decision not to quash the phone subpoena, which was a subpoena duces tecum.
Because a standard other than the “unreasonable and oppressive” one would apply to Huebsch’s trial subpoena, “the two subpoenas are not the ‘same action’ nor ‘sufficiently similar’” for purposes of the mootness doctrine, Justice Karofsky wrote.
Majority ‘Micromanages’ Circuit Court
Justice Karofsky also argued that by reaching the chapter 227 issue, the majority “micromanage[s] the circuit court’s application of the adjudicator-bias standard.”
Karofsky also wrote that the majority was “largely silent on why Huebsch’s non-party appeal deserve such extraordinary treatment.”
“What’s the ‘grave exigency?’” Justice Karofsky wrote. “Where’s the ‘extraordinary hardship’ here? Certainly it cannot be the mere fact that Huebsch would have to give truthful testimony about his conversations with friends and contacts who appeared as parties before him. Not even a ten-year-old abuse victim who faces psychological harm and re-traumatization by having to appear before her abuser has received the extraordinary relief granted to Huebsch.”