Divided Wisconsin Supreme Court says former PSC member can quash subpoena
Corrinne HessThe Wisconsin Supreme Court ruled Thursday a former utility regulator does not have to answer a subpoena from lawyers representing environmental groups seeking to overturn approval of a controversial transmission line in southwest Wisconsin.
The 4-3 state Supreme Court ruling reversed a lower court's order that former Wisconsin Public Service Commission member Michael Huebsch's private communications with utility members interfered in the controversial approval of the nearly $500 million line in 2019.
The case was more about legal procedure than it was the merits of the Cardinal-Hickory Creek transmission line that remains the subject of lawsuits filed by environmental groups who oppose the line's construction.
Justice Patience Roggensack wrote the majority opinion finding the Circuit Court erred when it denied a motion by Huebsch's lawyers who tried to stop his records from being viewed in court.
"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," Roggensack wrote.
Justice Jill Karofsky wrote a dissent.
"These four Justices springboard off an appeal about mootness to overreach into matters not before this court," Karofsky wrote. "Whatever the reason, my colleagues' indulgence in the excesses of judicial power is not grounded in law and serves only to deepen inequalities in our system of justice. For these reasons, I respectfully dissent."
Following the ruling, the Public Service Commission released a statement saying the integrity of the commission, its process and of each commissioner had been reaffirmed.
"Today’s decision reaffirms that integrity remains strongly in place and helps protect public servants against frivolous, unfair, and unfounded claims of bias," the statement says.
During the discovery process in the lawsuit, Huebsch's phone records revealed he had regular communications with employees of American Transmission Co., We Energies and a former contractor with ITC Midwest.
Huebsch's attorneys have argued that as a member of the PSC, he regularly participated in phone calls with companies or company representatives in the utility industry, according to media coverage of the oral arguments made before the Supreme Court in the case.
In the arguments before the Supreme Court, an attorney for Huebsch said the subpoena process amounted to "a fishing expedition" by environmental groups seeking to overturn approval of the power line.
Opponents argued that the evidence showed that Huebsch had at least an appearance of bias when he voted to approved the $492 million project in 2019 and that the permit therefore should be invalidated. Huebsch is a former Republican speaker of the Wisconsin Assembly and past member of former Gov. Scott Walker’s Cabinet.
The Supreme Court said the lower courts were wrong to rule that Huebsch should have to turn over his cellphone to be searched for messages he may have sent or received with those connected to the power line project.
Justice Hagedorn called the allegations against Huebsch “meritless and borderline frivolous.”
Huebsch was appointed by Walker to serve as a PSC member in 2015. He resigned in February 2020. Before doing so, he and fellow commissioners Rebecca Cameron Valcq and Ellen Nowak approved the controversial $492 million Cardinal-Hickory Creek transmission line.
Huebsch’s attorney, Ryan Walsh, called the ruling a “resounding victory.”
“His years-long nightmare is finally over,” Walsh said in an email to the Associated Press. He said the ruling “sends an unmistakable message that campaigns of slander and innuendo against adjudicators and judges by unhappy litigants will not be tolerated.”
ATC, the co-owners of the Cardinal-Hickory Creek Transmission Line, also released a statement thanking the court for "putting an end to the contrived fishing expedition” against Huebch.
Howard Learner, executive director of the Environmental Law & Policy Center and the attorney representing the Driftless Area Land Conservancy and Wisconsin Wildlife Federation, said allowing a PSC commissioner to have "improper communications without any recourse under state law undermines public confidence in the fairness and integrity of Wisconsin’s utility regulatory process."
"The Wisconsin Supreme Court majority bent the judicial rules to provide special treatment in protecting improper conduct by their political ally, former Commissioner Huebsch," Learner said in a statement sent to the Journal Sentinel. "Even the transmission companies tacitly recognized that his secret text messaging with utility and transmission company agents was wrong."
The 100-mile line will run from Middleton to Dubuque County, Iowa, crossing through the Upper Mississippi River National Wildlife Refuge.
It will be operated by ATC and its partners, Dairyland Power Cooperative and ITC Midwest.
After resigning, Huebsch applied for a job as CEO of Dairyland Power. He did not get the job.
The Driftless Area Land Conservancy, Wisconsin Wildlife Federation and local governments have filed several state and federal lawsuits against the Public Service Commission in state and federal courts to block construction of the power line.
Thursday's Supreme Court ruling did not address the merits of the September 2019 unanimous approval by the PSC of the Cardinal-Hickory Creek Transmission Line. The case, which seeks to reverse the PSC's approval of the transmission line, is still pending in Dane County Circuit Court.
Despite the ongoing lawsuits, construction of the transmission line began in spring 2021 According to a report submitted to the PSC in April, about $277 million has already been spent toward construction of the power line.
Proponents say the project will cut carbon emissions by 150,000 to 1.2 million tons each year. New transmission lines allow solar and wind power to operate more frequently by ensuring the existing lines aren’t overwhelmed during particularly windy or sunny periods, according to data from the National Renewable Energy Laboratory.
The Associated Press contributed to this report.
Corrinne Hess can be reached at chess@gannett.com. Follow her @corrihess