By M.D. Kittle
MADISON — The Dane County judge who would allow environmental groups to root through the personal possessions of a former utility regulator on “appearance” of bias has some potential bias problems of his own.
Liberal Circuit Court Judge Jacob Frost, appointed to the bench by Democratic Gov. Tony Evers, has pushed his power beyond constitutional limits in what amounts to a “fishing expedition,” legal experts contend.
The legal battle, now before a Wisconsin appeals court, could have far-reaching consequences for civil liberties and the threshold for judicial recusal.
Errors are ‘many and plain’
Last week, District III Court of Appeals Judge Lisa Stark stayed Frost’s demand that former Public Service Commission member Michael Huebsch turn over records and answer questions from environmental groups and opponents of the Cardinal-Hickory Creek transmission line. It was a fast response to an urgent appeal from Huebsch’s legal counsel.
“The unprecedented oral ruling at issue here—issued by the Dane County Circuit Court on late Friday, July 30, and likely to be enforced on Wednesday, August 4—cries out for an immediate stay and swift reversal,” Ryan Walsh, an attorney with Madison law firm Eimer Stahl LLP, wrote in the motion.
Frost had ruled in favor of a subpoena that would have forced Huebsch to turn over his personal cellphone for examination in the lawsuit over the Cardinal-Hickory Creek transmission line. Huebsch is not even a party to the lawsuit against the planned $492 million power line between Dubuque, Iowa and suburban Madison.
Huebsch’s attorneys said he would be “irreparably harmed” by having to comply with a “legally baseless subpoena demanding, among other things, that he turn over his private smartphone and all of his passwords to a third party.” Due process would also take a beating, the motion asserts.
Stopping at nothing
Cardinal-Hickory Creek won unanimous approval by the three-member PSC, though environmental groups and their lawyers have stopped at nothing to kill the power line project. When the groups failed to convince regulators to reject permitting the line, they began making allegations of bias against members of the Public Service Commission who approved it.
After the PSC voted 3-0 in a preliminary decision to grant a permit in September 2019, attorneys for the Driftless Area Land Conservancy and Wisconsin Wildlife Foundation requested that Huebsch and PSC Chairwoman Rebecca Valcq recuse themselves from the final vote based on perceived conflicts of interest. Valcq was formerly with WEC Energy Group, the majority owner of American Transmission Co., lead developer of the project. Huebsch previously served on a committee of the Midwest grid operator, MISO, a party to the proceedings.
Huebsch and Valcq, an Evers appointee to the commission, denied the allegations and voted with Commissioner Ellen Nowak in authorizing the project.
Frost, in his ruling brushed off the Wisconsin Supreme Court’s established position that “appearance of conflict” isn’t the same as conflict. While a majority of the justices have said they would not apply “appearance” in questions of bias, that was “their choice,” the circuit court judge said. He added that he would call the controlling standard the appearance of bias standard, “because that really is what it is.”
Except it isn’t.
‘Revolutionizing the law’
“Worse, the circuit court’s order threatens to revolutionize the law of adjudicator ‘bias’ under the Due Process Clause in several other ways, even beyond its attempted revival of the defunct ‘appearance of bias’ standard,” the court filing argues. “And its overreach will have breathtaking implications not only for public officials in general but especially for judges.”
In the latest twist, American Transmission Company (ATC), a party to the case, discovered and disclosed that in addition to using text and email for work-related communications, Huebsch, an ATC employee, a former ITC contractor, and other individuals had been communicating privately via Signal, over the course of several years. Signal is an instant messaging platform that uses encryption for privacy.
The environmental groups demanded the right to dig through Huebsch’s personal information on his phone. It turns out Commissioner Huebsch and the other individuals in question have been close personal friends for decades, long before most of them were in the business of regulating or advocating for utilities.
That’s where things get thorny, according to constitutional law expert Rick Esenberg. While Esenberg said he can’t speak specifically to the Huebsch case, an overly aggressive approach to court-mandated review of private property is a slippery slope.
“We have judges, or in this case public service commissioners, that hear contested cases who need to avoid conflicts, but we have to be careful when we throw around phrases of ‘appearance of impropriety,’” said Esenberg, president and general counsel of the Wisconsin Institute for Law & Liberty.
Public officials have lives, too, and they don’t live them in isolation, the attorney said.
“When we become too aggressive in imposing these recusal standards that are a really expansive view we wind up paralyzing these public bodies because no one could sit on these cases,” Esenberg said.
Courts have long applied presumptions of “impartiality, honestly, and integrity to the decisions of adjudicators—presumptions that the circuit court and the claimants in this case have studiously ignored,” the motion states. Courts, at least those applying basic principles of due process, “forbid fishing expeditions based on nothing more than speculation, as here.”
Huebsch’s motion argues that allowing the broad subpoena would open up a pandora’s box of recusal problems.
“Consider also the countless run-of-the-mill cases before courts that, under the reasoning below, could easily turn into pitched battles over unconstitutional ‘bias,’” the filing states. “All it would take is for one party wishing to shop for a new judge to make allegations of connections between chambers and interested law firms, businesses, or other entities.”
Or, what if a judge had signed a recall petition against a public official, as Frost did in 2011 during the left’s campaign to oust then-Republican Gov. Scott Walker. Sure, Frost wasn’t a judge at the time, but under his loose concept of perceived bias he runs the risk of being held to the same standard. Huebsch previously served as Walker’s Administration secretary. Walker appointed him to the PSC. Could Frost’s animus for the former governor play out in biased decisions against people once professionally close to Walker?
With so much at stake, Huebsch argues this is “no ordinary dispute over a discovery order”. He’s asked the appeals court for a permanent stay pending appeal of enforcement of the subpoena.