County of Dane v. Public Service Commission of Wisconsin

2022 WI 61

• Court: Wisconsin Supreme Court
• Decided: July 7, 2022
• Docket: 2021AP001325
• Status: Published

Opinion

2022 WI 61

SUPREME COURT OF WISCONSIN CASE NO.: 2021AP1321-LV & 2021AP1325

COMPLETE TITLE: 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. REVIEW OF DECISION OF THE COURT OF APPEALS

OPINION FILED: July 7, 2022 SUBMITTED ON BRIEFS: ORAL ARGUMENT: February 28, 2022

SOURCE OF APPEAL: COURT: Circuit COUNTY: Dane JUDGE: Jacob B. frost

JUSTICES: 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. NOT PARTICIPATING:

ATTORNEYS:

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 the

2 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.

3 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.

4 2022 WI 61 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. Nos. 2021AP1321-LV & 2021AP1325 (L.C. No. 2019CV3418)

STATE OF WISCONSIN : IN SUPREME COURT

County of Dane, County of Iowa, Town of Wyoming and Village of Montfort,

Petitioners-Respondents,

v.

Public Service Commission of Wisconsin,

Respondent-Respondent, FILED Driftless Area Land Conservancy, Wisconsin Wildlife Federation, Chris Klopp, LeRoy Belken, JUL 7, 2022 Gloria Belken, S.O.U.L. of Wisconsin, Clean Energy Organizations, Dairyland Power Sheila T. Reiff Cooperation, I.T.C. Midwest, LLC, American Clerk of Supreme Court 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,

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.,

Other Party-Appellant-Petitioner,

Robert M. Garvin,

Other Party.

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.

APPEAL from an order of the Circuit Court for Dane County.

Reversed.

¶1 PATIENCE DRAKE ROGGENSACK, J. Dane County filed this

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

1 All subsequent references to the Wisconsin Statutes are to the 2019-20 version unless otherwise indicated.

2 Nos. 2021AP1321-LV & 2021AP1325

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.

¶4 Although four justices do not agree on how to address

the procedural posture of this case, a majority of the court

2The PSC is a three-member Commission, which was composed of Rebecca Valcq, Ellen Nowak and Michael Huebsch when the Cardinal-Hickory line was approved. 3The Intervener-Respondents aligned with Driftless are the Wisconsin Wildlife Federation, S.O.U.L. of Wisconsin, LeRoy Belken, Gloria Belken and Chris Klopp.

3 Nos. 2021AP1321-LV & 2021AP1325

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 (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, Republicans and Democrats.

4The Cardinal-Hickory docket opened in April 2018 when American Transmission Company LLC, ITC Midwest LLC and Dairyland Power Cooperative petitioned the PSC for a certificate of public convenience and necessity (CPCN) for construction and operation of the transmission line.

4 Nos. 2021AP1321-LV & 2021AP1325

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 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

5 Clean Grid Alliance, Fresh Energy, and Minnesota Center for Environmental Advocacy's Request to Intervene and Notice of Appearance, PSC REF# 353628 at 3 (Nov. 20, 2018), https://tinyurl.com/hc4xvy68. 6 Energy Policy Institute, Revitalizing the Grid to Achieve a Clean-Powered Economy: A Conversation with FERC Chair Richard Glick (June 30, 2021) https://tinyurl.com/f2znuja8. 7 PSC Order, September 26, 2019, 80.

5 Nos. 2021AP1321-LV & 2021AP1325

Valcq's past work for We Energies "created an appearance of

bias" and Michael Huebsch's work with a federal regulator,

Midcontinent Independent System Operator (MISO), precluded his

participation because he could have received ex parte

communications about Cardinal-Hickory while at MISO events,

again raising the "appearance of bias."

¶11 In its written decision approving construction of

Cardinal-Hickory, the PSC unanimously rejected Driftless' bias

claims because they were "not timely filed and did not comply

with applicable legal standards."8 The PSC explained that

Huebsch was a PSC "Commissioner at the time of [Driftless']

intervention and it was publicly known that Commissioner Huebsch

was the Commission's OMS representative," as was his work with

MISO, which had been on-going for more than four years.9 The PSC

explained that "[i]t is clear that the information [Driftless]

cited to support its Motion was available to it months (if not

years) before the party hearing and the Commission's discussion

of the record at the open meeting of August 20, 2019."10 ¶12 The PSC noted that Driftless did not support its

allegations with a verified affidavit based on personal

knowledge of the facts alleged in its motion, nor did it name a

single witness who would have such knowledge.11 Accordingly, the

Id., 81; see also Driftless Area Land Conservancy v. Valcq 8

(Driftless II), 16 F.4th 508, 517 (7th Cir. 2021). 9 PSC Order, September 26, 2019, 81. 10 Id., 82. 11 Id., 83.

6 Nos. 2021AP1321-LV & 2021AP1325

PSC found that Driftless' motion "lacks a legitimate factual

basis to support recusal or disqualification."12 The order

further explained, "There is a presumption of honesty and

integrity in those serving as adjudicators in state

administrative proceedings."13 The PSC found that Valcq's and

Huebsch's "participation complied with all applicable ethical

and legal standards and [Driftless'] Motion lack[ed] any merit

and [was] therefore denied."14 Driftless did not appeal the

factual findings or legal conclusions of the PSC decision.

¶13 Wisconsin Stat. § 227.57 challenges to PSC action

usually are limited to contending that the evidence did not

support the merits of the PSC's decision. However, here,

Driftless mounted a sustained personal attack against

Commissioner Huebsch in an effort to expand the PSC record

through the use of § 227.57(1). In general statements,

Driftless contended that at some point Huebsch could have done

something that might appear to show bias in favor of Cardinal-

Hickory, which Driftless asserts would violate the Due Process Clause of the Fourteenth Amendment and require vacation of

approval of Cardinal-Hickory.15

12 Id., 84. 13Id., 85 (citing State ex rel. DeLuca v. Common Council, 72 Wis. 2d 672, 684, 242 N.W.2d 689 (1976)). 14 Id., 86. 15Driftless dropped its initial contention that Valcq's past work created "the appearance of bias" and proceeded solely against Huebsch.

7 Nos. 2021AP1321-LV & 2021AP1325

¶14 The circuit court concluded that Driftless' general

statements "presented enough information to allow discovery

regarding whether Commissioner Huebsch acted impartially."16

Driftless then subpoenaed Huebsch to sit for a deposition. It

also subpoenaed his phone and phone password for Driftless'

search of his communications. Huebsch moved to protect himself

from Driftless' subpoenas.

¶15 Before the Dane County Circuit Court, where its Wis.

Stat. § 227.57 action is pending, Driftless mounted a

directionless search for "appearance of bias."17 The circuit

court has permitted Driftless to expand the record of the

Cardinal-Hickory proceedings by concluding that an allegation of

the "appearance of bias," if proved, was a due process violation

sufficient to invalidate the PSC's decision. It also concluded

that general "allegations" were all that were needed to satisfy

§ 227.57(1).18 Many depositions were taken and thousands of

pages of documents were produced.

¶16 Huebsch moved to quash the subpoenas in circuit court. The circuit court refused protection, saying that the difference

between "serious risk of actual bias" and "appearance of bias"

was just "semantics."19 While acknowledging our recent decision

16 Circuit Ct. Decision and Order, May 25, 2021, 1.

There were occasions when Driftless also used the phrase 17

"serious risk of actual bias"; however, as the circuit court repeated later, "appearance of bias" was the common phraseology. 18 Circuit Ct. Decision and Order, May 25, 2021, 3. 19 Circuit Ct. Mot. Hr'g Tr., July 30, 2021, 15. On August 8 Nos. 2021AP1321-LV & 2021AP1325

in Miller v. Carroll20 that employs serious risk of actual bias

as the due process standard, the circuit court re-characterized

the standard as the "'appearance' [of bias standard] because

that really is what it is."21

¶17 Huebsch moved the court of appeals for interlocutory

review and stay of the discovery subpoenas. The court of

appeals granted interlocutory review and stayed the subpoenas

while the court studied the legal issues presented. Driftless

then withdrew its subpoenas and moved the court of appeals to

dismiss, claiming the action was moot. Based on the withdrawal

of the subpoenas, the court of appeals vacated its stay and the

interlocutory review it had granted, concluding that the issue

for which it had granted review was moot.22

¶18 Then, two business days after the court of appeals

determined that the appeal was moot and vacated its

interlocutory review, Driftless subpoenaed Huebsch to testify at

trial. Although Huebsch did not move the circuit court to quash

the subpoena for trial testimony, he sought an emergency

20, 2021, at Driftless' request, the circuit court vacated its order denying Huebsch's motion to quash: "IT IS HEREBY ORDERED that the order denying Michael Huebsch's motion to quash issued on August 3, 2021, Dkt. 422, and the August 5, 2021 order on phone protocol, Dkt. 432, are hereby VACATED." 20 Miller v. Carroll, 2020 WI 56, 392 Wis. 2d 49, 944 N.W.2d 542. 21 Id., 16.

County of Dane v. PSC of Wis., No. 2021AP1321-LV, 22

unpublished order at 5 (Wis. Ct. App. Aug. 20, 2021).

9 Nos. 2021AP1321-LV & 2021AP1325

petition for supreme court review and stay of the proceedings in

circuit court. We granted review and stayed further action in

the circuit court, which included Huebsch's trial testimony.

II. DISCUSSION

A. Standard of Review

¶19 When the discovery subpoenas directed to Huebsch were

withdrawn by Driftless, the court of appeals dismissed this

matter as moot. County of Dane v. PSC of Wis., No. 2021AP1321-

LV, unpublished order at 5 (Wis. Ct. App. Aug. 20, 2021). We

independently review whether an issue is moot as a question of

law. Tavern League of Wis., Inc. v. Palm, 2021 WI 33, ¶13, 396

Wis. 2d 434, 957 N.W.2d 261 (citing Portage Cnty. v. J.W.K.,

2019 WI 54, ¶10, 386 Wis. 2d 672, 927 N.W.2d 509).

¶20 This matter arises in the context of a Wis. Stat.

§ 227.57 judicial review of the merits of the PSC's approval of

Cardinal-Hickory. Generally, such reviews are confined to the

record that was created before the agency. However, Driftless

seeks to expand the record that was presented to the PSC during the Cardinal-Hickory proceedings. It does so pursuant to

§ 227.57(1) that permits record expansion due to "irregularities

in procedure before the agency" . . . "if proper cause is shown

therefor."

¶21 As we review the discovery subpoenas issued to Huebsch

after the circuit court determined that Driftless' general

allegations of bias were sufficient to satisfy Wis. Stat.

§ 227.57(1) thereby permitting expansion of the PSC record through discovery, we also interpret § 227.57(1). We do so to

10 Nos. 2021AP1321-LV & 2021AP1325

determine whether Driftless' non-specific allegations come

within "irregularities in procedure" of the PSC for which

"proper cause is shown therefor" as those terms are used in

§ 227.57(1). Driftless' contention and the circuit court's

decision present questions of statutory interpretation and

application that we independently review. Tavern League, 396

Wis. 2d 434, ¶13.

¶22 In addition, Driftless claims that the irregularity in

the procedure was Huebsch's "appearance of bias" that denied it

due process of law. Whether constitutional due process has been

afforded in an administrative proceeding is a question of law

that we independently review. Marder v. Bd. of Regents of the

Univ. of Wis. Sys., 2005 WI 159, ¶19, 286 Wis. 2d 252, 706

N.W.2d 110 (citing State v. Sorenson, 2002 WI 78, ¶25, 254

Wis. 2d 54, 646 N.W.2d 354).

¶23 And finally, we review whether the circuit court

erroneously exercised its discretion when it denied Huebsch's

motion to quash the subpoenas for his deposition, his cell phone and cell phone password. Lane v. Sharp Packaging Sys., Inc.,

2002 WI 28, ¶19, 251 Wis. 2d 68, 640 N.W.2d 788. Whether the

circuit court applied the correct legal standard as it exercised

its discretion is a question of law that we independently

review. Id.

B. Mootness

¶24 "Mootness is a doctrine of judicial restraint."

Marathon Cnty. v. D.K., 2020 WI 8, ¶19, 390 Wis. 2d 50, 937 N.W.2d 901. "An issue is moot when its resolution will have no

11 Nos. 2021AP1321-LV & 2021AP1325

practical effect on the underlying controversy." J.W.K., 386

Wis. 2d 672, ¶11. Although we usually do not address issues

that are moot, we have developed exceptions where we agree to

review issues that may be moot when: "(1) 'the issues are of

great public importance;' (2) 'the constitutionality of a

statute is involved;' (3) the situation arises so often 'a

definitive decision is essential to guide the trial courts;'

(4) 'the issue is likely to arise again and should be resolved

by the court to avoid uncertainty;' or (5) the issue is 'capable

and likely of repetition and yet evades review.'" Id., ¶12.

¶25 We need not decide whether issues raised herein are

moot because even if they were, exceptions to the mootness

doctrine provide for our review. For example, the only

conceivable basis for mootness here is Driftless' voluntarily

withdrawing its July subpoenas through which it sought to expand

the record created in the PSC proceedings.

¶26 An issue is likely to arise again and evade review

when an actor voluntarily ceases challenged conduct but retains the power to resume that conduct. Friends of the Earth, Inc. v.

Laidlaw Env't Servs., Inc., 528 U.S. 167, 189 (2000) (explaining

that the obligation to persuade a court that the challenged

conduct cannot reasonably be expected to start up again lies

with the party asserting mootness). In the matter before us,

not only did Driftless have the power to issue additional

subpoenas to Huebsch, it did so in August, a few days after the

court of appeals vacated its stay and withdrew the interlocutory

12 Nos. 2021AP1321-LV & 2021AP1325

review it had granted. Accordingly, we choose to address the

issues presented for our review.

C. Wisconsin Stat. § 227.57 Review

1. Statutory Interpretation

¶27 Dane County filed this case as a Wis. Stat. § 227.57

judicial review to test the merits of the PSC's approval of

Cardinal-Hickory. A determination on the merits of that

decision remains pending a hearing in Dane County Circuit Court.

The scope of the Dane County judicial review will be "confined

to the record" unless the criteria to expand the record set out

in § 227.57(1) are met. Section 227.57(1) provides:

The review shall be conducted by the court without a jury and shall be confined to the record, except that in cases of alleged irregularities in procedure before the agency, testimony thereon may be taken in the court and, if leave is granted to take such testimony, depositions and written interrogatories may be taken prior to the date set for hearing as provided in ch. 804 if proper cause is shown therefor. § 227.57(1).

¶28 It is important to note that our review focuses on

allegations about Huebsch, which the circuit court has concluded

are sufficient to satisfy Wis. Stat. § 227.57(1)'s criteria to

expand the PSC record through discovery. Our review does not

address the merits of the PSC's approval of Cardinal-Hickory.23

Rather, we address Driftless' allegation, and the circuit

23 Here, we conclude that Huebsch, as a subpoena recipient, can challenge whether a reasonable jurist would understand Driftless' allegations as raising a cognizable Caperton due process claim in the context of the attempt to expand the PSC record pursuant to Wis. Stat. § 227.57(1).

13 Nos. 2021AP1321-LV & 2021AP1325

court's conclusion, that Huebsch's "appearance of bias" was an

irregularity in the PSC procedure during the Cardinal-Hickory

proceeding under the provisions of § 227.57(1). Stated

otherwise, Driftless contends that the circuit court's statutory

interpretation permits Driftless to expand the record created in

the PSC proceedings.24 Driftless asserts it can do so through

testimony in court and by taking depositions and written

interrogatories prior to the court hearing based on Huebsch's

"appearance of bias" that impaired its right to due process

during the PSC proceedings.

¶29 In order to assess the statutory argument Driftless

makes, and on which the circuit court permitted discovery, we

interpret Wis. Stat. § 227.57(1). We begin with the language of

the statute. State ex rel. Kalal v. Cir. Ct. for Dane Cnty.,

2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110. If the words

are commonly used words without specific or technical

definitions, we apply common definitions. Id. If words chosen

are technical terms or specially defined, we apply definitions consistent with that legislative choice. Id. Context also is

important to meaning, as is the structure of the statute itself.

Id., ¶46.

¶30 In order to expand the record that was created before

the PSC, a plain reading of Wis. Stat. § 227.57(1) requires that

Driftless argued, "Petitioners propose to identify a set 24

of specific, relevant documents that the parties can easily and quickly 'produce' again in state court. This approach is [grounded] in this Court's authority under Section 227.57(1)." R. 297 at 4.

14 Nos. 2021AP1321-LV & 2021AP1325

Driftless first show "proper cause." "[I]f proper cause is

shown" of an irregularity in procedure of the PSC, § 227.57(1)

provides that the court may grant leave to take testimony in

court and to take depositions and written interrogatories prior

to the date set for a hearing on the merits of the agency

decision. Although "proper cause" is not defined in the

statute, § 227.57(1) nevertheless requires that the moving party

provide evidence of procedural irregularities such that the

circuit court may conclude that there is proper cause to grant

leave to expand the PSC record.

¶31 In Marris v. City of Cedarburg, 176 Wis. 2d 14, 498

N.W.2d 842 (1993), we considered alleged bias of an

administrative decision-maker. We held that a prima facie

showing of wrongdoing by a decision-maker is necessary in order

to evaluate a claim of bias in an administrative decision. Id.

at 29-30. Alleged wrongdoing must be based on factual evidence.

Id. As we explained, a prima facie showing of wrongdoing by a

decision-maker requires specific statements of objective facts that are sufficient to show bias of the decision-maker. Id. at

24.

¶32 In Marris, neighbors challenged the continued legality

of Marris's use of one of the buildings on her property for

which she had been granted a nonconforming use. An

administrative hearing was held to determine whether Marris's

repairs of her property caused it to lose its legal

nonconforming use.

15 Nos. 2021AP1321-LV & 2021AP1325

¶33 After a decision contrary to Marris, she challenged a

member of the review committee, alleging bias. Id. at 23. In

our discussion, we detailed specific factual statements of the

decision-maker that were necessary to making the prima facie

case of wrongdoing. That is, we examined whether the

chairperson's statements showed that he had prejudged whether

Marris's repairs of her property were sufficient to cause loss

of its legal nonconforming use.

¶34 As we explained, the chairperson's statements, which

were part of the record of the committee's discussion, related

to his characterization of the merits of Marris's claim. For

example, "the chairperson referred to Marris's legal position as

a 'loophole' in need of 'closing.'" Id. at 27. He expressed a

desire "to 'get her [Marris] on the Leona Helmsley rule,'" id.,

and he questioned the claimant's credibility.25 Id. at 27-28.

We concluded that taken together his "statements overc[ame] the

presumption of honesty and integrity that would ordinarily be

applied." Id. at 29-30. We concluded that his statements "clearly indicated that he had prejudged Marris's case, thus

creating an impermissibly high risk of bias" in his committee

decision. Id. at 31. We then remanded the matter for a new

hearing in which the chairperson could not participate. Id.

In analyzing expenditures, he questioned how could the 25

Board know "whether Marris 'bought a door for that building or for another building she built.'" Marris v. City of Cedarburg, 176 Wis. 2d 14, 28, 498 N.W.2d 842 (1993).

16 Nos. 2021AP1321-LV & 2021AP1325

¶35 In a similar way, the court of appeals discussed the

requirement that is necessary in order to expand a record

created during common law certiorari review of an administrative

proceeding when it considered irregularities in procedure in

Sills v. Walworth Cnty. Land Mgmt. Comm'n, 2002 WI App. 111, 254

Wis. 2d 538, 648 N.W.2d 878. Sills explained that when the

allegation is bias of an administrative decision-maker,

expansion of the record created by the agency requires a "prima

facie showing of wrongdoing" by the decision-maker. Id., ¶42.

¶36 It is important to note that general allegations about

the adjudicator that were made in Sills were in sharp contrast

with the specific statements made by the adjudicator in Marris.

In Sills, the objectors alleged that a lobbyist retained by

Peterson to garner public support for the Conditional Use Permit

(CUP) application "may have had" ex parte communications with

the adjudicating committee "which may have led to bias in the

proceedings." Id., ¶34.

¶37 In evaluating whether "help[ing] to gather public support" for the CUP was sufficient to open discovery, the court

of appeals noted that nothing was presented to show the lobbyist

"directly contacted Committee members." Id., ¶43. There also

was no showing that "members were influenced by something more

than the application of the evidence to the ordinance

standards." Id. In concluding that general allegations were

insufficient to open discovery and thereby permit expansion of

the record, the court of appeals said:

17 Nos. 2021AP1321-LV & 2021AP1325

The sole and limited purpose for the requested discovery is to determine whether the lobbyist . . . contacted any Committee members . . . . This transparent attempt to use the discovery process as a fishing expedition to uncover evidence of bias is precluded by the presumption of honesty and integrity that we accord the Committee's decision. Id.

¶38 As Sills explained, a prima facie showing cannot rest

solely on general allegations. Sills denied the attempt to

expand the record of the Committee proceedings because "an

allegation of ex parte contacts without more is not sufficient

to show the impermissibly high risk of bias that concerned the

court in Marris." Id., ¶44.

¶39 We agree with the reasoning of Sills, and conclude

that the phrase, "if proper cause is shown therefor," as it is

employed in Wis. Stat. § 227.57(1), requires a prima facie

showing of wrongdoing by an administrative decision-maker. We

further conclude that "proper cause is shown therefor" by

providing 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. Id., ¶¶42, 43.

¶40 General allegations that the challenger characterizes

as implying improper acts of an administrative decision-maker

are insufficient. Id. Our interpretation also is consistent

with Marris. There, we evaluated how to approach allegations of

bias by a decision-maker. We did so by reviewing the decision-

maker's specific factual statements that bore on the merits of the claim before the committee. Marris, 176 Wis. 2d at 24, 31.

18 Nos. 2021AP1321-LV & 2021AP1325

¶41 Driftless has provided no factual statements by or to

Huebsch on the merits of the Cardinal-Hickory line.26 Its

general allegations of concern are legally insufficient to

permit expansion of the record created before the PSC pursuant

to the requirements of Wis. Stat. § 227.57(1). The circuit

court erred when it interpreted Driftless' general allegations

as sufficient to satisfy § 227.57(1) and thereby permitted

Driftless to employ discovery subpoenas.27 The circuit court

ignored the statutory phrase "if proper cause is shown

therefore" stated in § 227.57(1), giving it no meaning at all.

Accordingly, the circuit court erred in its interpretation of

§ 227.57(1). We now move to consider what due process requires.

2. Due Process

¶42 Due process applies to proceedings before

administrative entities. Withrow v. Larkin, 421 U.S. 35, 46

(1975). A basic element of due process is the right to a fair

hearing conducted before a fair tribunal. Miller, 392 Wis. 2d

49, ¶24; Marder, 286 Wis. 2d 252, ¶27. ¶43 In order to show a due process violation, the claimant

must show a "serious risk of actual bias." Caperton, 556 U.S.

Attorney 26 Rachael Granneman, counsel for Driftless, provided a "Declaration" made after her review of meeting minutes and other documents created by various organizations. She adds her opinion of what those copied documents mean. None of the minutes and documents attached to her Declaration are based on her personal knowledge of what occurred at various meetings. 27 Circuit Ct. Decision and Order, May 25, 2021, 3.

19 Nos. 2021AP1321-LV & 2021AP1325

at 884; Miller, 392 Wis. 2d 49, ¶24. The burden of making that

proof is on the party challenging the impartiality of the

adjudicator. Marder, 286 Wis. 2d 252, ¶32 (relying on Withrow,

421 U.S. at 47).

¶44 In Marder, a tenured faculty member complained that ex

parte contacts with members of the Board of Regents on the

merits of his case must have occurred because of continuing

interactions of Board members with others. Marder, 286 Wis. 2d

252, ¶2. Marder's claim of bias failed because:

Marder has not presented any facts that would overcome the presumption that the chancellor and Marcovich acted appropriately when they traveled together. They were not prohibited from talking to one another and the legal presumption that administrative adjudicators are able to maintain their professional and ethical responsibility to remain impartial and to conduct themselves appropriately applies. Id., ¶34.

¶45 As we explained in Marder while relying on the United

States Supreme Court's discussion in Withrow, administrative

decision-makers are entitled to the presumption of "honesty and

integrity" when serving as adjudicators. Withrow, 421 U.S. at

47. As the concurrence carefully explained in Herrmann, "[I]t

is not reasonable to question a judge's impartiality unless one

can prove by objective evidence that actual bias or the

probability of a serious risk of actual bias exists." State v.

Herrmann, 2015 WI 84, ¶113, 364 Wis. 2d 336, 867 N.W.2d 772

(Ziegler, J., concurring). To overcome the presumption of honesty and integrity, the party asserting bias of an

20 Nos. 2021AP1321-LV & 2021AP1325

administrative adjudicator must show a "serious risk of actual

bias——based on objective and reasonable perceptions." Caperton,

556 U.S. at 884.

¶46 Before us, Driftless makes three types of general

allegations on which it claims a due process

violation: (1) Huebsch's activities with MISO provided

opportunities for improper conversations; (2) Huebsch's life-

time friendships with those who work in the provision or

distribution of energy could have included improper

conversations; and (3) Huebsch's application for employment by

Dairyland Power Cooperative after he resigned from the PSC

implies a connection between his decision in Cardinal-Hickory

and future employment.

a. MISO

¶47 MISO is controlled by federal law. A brief review of

MISO's functions and its support by state and federal statutes

as a regional energy regulator will be helpful to our

discussion. ¶48 More than ten years ago, Wisconsin decided to require

certain utilities to join MISO. Wis. Stat.

§ 196.485(3m)(a)1.d.; §§ 196.485(2)(a) and (4)(a). MISO is the

operator of the regional transmission system of which Wisconsin

is a part.28 It administers a FERC-approved tariff to which MISO

must respond. Performing this task requires MISO to oversee

MISO 28 Region Engagement available at: https://www.misoenergy.org/stakeholder-engagement/miso- engagement.

21 Nos. 2021AP1321-LV & 2021AP1325

various energy-related functions for which it needs input from

state energy regulators, such as the PSC, on matters that affect

bulk electric power systems. 18 C.F.R. § 35.34(k); see also

Ill. Commerce Comm'n v. Fed. Energy Reg. Comm'n, 721 F.3d 764,

769-71 (7th Cir. 2013) (explaining background for MISO).

¶49 As FERC has explained, "We recognize that state

utility regulators play an important and unique role in

transmission planning processes, given that the states often

have authority over transmission, permitting, siting, and

construction, and that many state regulatory commissions require

utilities to engage in integrated resource planning."29 The FERC

requires "[e]ach public utility transmission provider,"

including the PSC, "[t]o participate" in these "regional

transmission planning process[es]."30

¶50 To assist in FERC's informational process, the PSC

delegates authority to one of its commissioners to represent

Wisconsin's interests at Organization of MISO States (OMS)31 and

before MISO. This delegation became a part of Huebsch's service as a commissioner on the PSC in 2015. Therefore, he was the

PSC's delegate when he participated in the MISO and OMS

29 FERC Order No. 1000-A, 139 FERC ¶ 61,132, ¶291 (May 17, 2012).

Order No. 1000 Transmission Planning and Cost Allocation, 30

https://tinyurl.com/x8k6uve5.

OMS is separate from MISO. 31 Huebsch was an OMS representative to the MISO Advisory Committee under the OMS Bylaws. See OMS, Organization of MISO States Bylaws at Articles V.3, X (revised Sept. 13, 2002).

22 Nos. 2021AP1321-LV & 2021AP1325

activities of which Driftless complains. Huebsch's interactions

in regard to MISO and OMS were publically known long before the

proceedings on Cardinal-Hickory began.32

¶51 Driftless alleges that Huebsch's activities with MISO

and OMS support its allegation that he engaged in ex parte

communications that are prohibited under Wis. Stat.

§ 227.50(1)(a). Driftless makes this allegation without one

single example of Huebsch engaging in conversations with anyone

from MISO or OMS about the merits of the Cardinal-Hickory line.33

¶52 Ex parte communication on the merits of a contested

matter is the focus of Wis. Stat. § 227.50(1)(a). It regulates

ex parte communications on the merits as follows:

[I]n a contested case, no ex parte communication relative to the merits or a threat or offer of reward shall be made, before a decision is rendered, to the hearing examiner or any other official or employee of the agency who is involved in the decision-making process, by any of the following:

1m. An official of the agency or any other public employee or official engaged in prosecution or advocacy in connection with the matter under consideration or a factually related matter . . . .

2. A party to the proceeding, or any person who directly or indirectly would have a substantial interest in the proposed agency action or an authorized representative or counsel. § 227.50(1)(a).

32 PSC Order Sept. 26, 2019, 81.

Huebsch did receive a communication regarding Cardinal- 33

Hickory, but it came from a member of another state regulatory commission. Huebsch publically disclosed this communication, as required by Wisconsin law.

23 Nos. 2021AP1321-LV & 2021AP1325

¶53 According to Wis. Stat. § 227.50(1)(a), not all

communications with those involved in the decision-making

process are prohibited. Only those communications "relative to

the merits" of a pending matter are proscribed. Driftless has

identified no communications between Huebsch and MISO or OMS, or

anyone else, relative to the merits of the Cardinal-Hickory

line. Rather, Driftless implies there must have been such

communications because of Huebsch's attendance at MISO and OMS

events. General allegations such as Driftless asserts are

legally insufficient to contravene the terms of § 227.50(1)(a)

because they do not show a communication "relative to the

merits" of the Cardinal-Hickory line.

¶54 In addition, Driftless does not recognize the

necessary connections among MISO, OMS, FERC and the PSC.

However, the required connections among the PSC, MISO, OMS and

the FERC under state and federal statutes were apparent years

before Driftless intervened in this action.34 Huebsch's

participation in MISO and OMS as the PSC's delegate also was publically available years before Driftless intervened in this

action.35 Given the public nature of this information,

Driftless' general allegations about Huebsch's participation in

MISO and OMS activities as somehow showing an appearance of bias

borders on frivolous pleading.

34 Id., 82. 35 Id., 83.

24 Nos. 2021AP1321-LV & 2021AP1325

¶55 Driftless also ignores the presumption of honesty and

integrity that is accorded to decisions of administrative

decision-makers. Sills, 254 Wis. 2d 538, ¶43; Withrow, 421 U.S.

at 47. In order to overcome the presumption of honesty and

integrity, Driftless was required to prove a "serious risk of

actual bias——based on objective and reasonable perceptions."

Caperton, 556 U.S. at 884. As we explained in Miller, "[t]o

assess whether the probability of actual bias rises to the level

of a due process violation, we apply, verbatim, the standard

from Caperton. We ask whether there is 'a serious risk of

actual bias——based on objective and reasonable perceptions.'"

Miller, 392 Wis. 2d 49, ¶24.

¶56 Before us, Driftless ignores the foundational

presumption of honesty and integrity of administrative decision-

makers, and makes no showing of actual communications on the

merits of Cardinal-Hickory that could evidence a serious risk of

actual bias. Driftless had the burden of proof in its challenge

to Huebsch's impartiality. Marder, 286 Wis. 2d 252, ¶24; Withrow, 421 U.S. at 47. Because it did not provide factual

evidence of wrongdoing by Huebsch, it failed to meet that

burden.

¶57 In regard to Wis. Stat. § 227.57(1), by which

Driftless asserts its due process claim as an "irregularity in

the procedure" before the PSC, judicial review under § 227.57(1)

"shall be confined to the record." The record may be expanded

only "if proper cause is shown" of an irregularity in procedure before the PSC. Therefore, the potential to expand the record

25 Nos. 2021AP1321-LV & 2021AP1325

is conditional. We conclude that first, a prima facie showing

that Huebsch engaged in wrongdoing must be made. Sills, 254

Wis. 2d 538, ¶42. Driftless has not identified one example of

wrongdoing by Huebsch in regard to his interactions with MISO or

OMS.

¶58 Accordingly, we conclude that Driftless' allegations

in regard to Huebsch's activities with MISO and OMS are

insufficient as a matter of law to pose a serious risk of actual

bias, such that he was required to recuse himself from the

Cardinal-Hickey proceedings based on a due process violation.

Caperton, 556 U.S. at 884; Miller, 392 Wis. 2d 49, ¶22. They

also are insufficient to support expanding the Cardinal-Hickory

record created in proceedings before the PSC pursuant to Wis.

Stat. § 227.57(1) because they show no factual evidence of

wrongdoing by Huebsch.

b. Friendships

¶59 Although Driftless argues to us that Huebsch's many

friendships within the energy community could be a basis for bias, this contention was not made until briefing in this

review. As with its allegation in regard to MISO, Driftless'

allegations are general associational concerns for which it

provides no factual incidents of communication about the merits

of the Cardinal-Hickory line.

¶60 Caperton and Miller require that the decision-maker

evidence a serious risk of actual bias before due process

requires recusal. Caperton, 556 U.S. at 884; Miller, 392 Wis. 2d 49, ¶24. Without evidence of factual communications

26 Nos. 2021AP1321-LV & 2021AP1325

that show wrongdoing by Huebsch, "proper cause" to expand the

record under Wis. Stat. § 227.57(1) based on bias of a decision-

maker does not exist. Accordingly, Driftless' general

allegations of concern provide no basis from which we could

conclude that there is a serious risk of actual bias that would

require disqualification of Huebsch according to Caperton and

our decision in Miller or that "proper cause has been shown" of

wrongdoing by Huebsch according to § 227.57(1) based on personal

friendships. We agree with the PSC that Driftless' allegation

"lacks a legitimate factual basis to support recusal or

disqualification."36

c. Job Application37

¶61 Before us, Driftless implies that, because Huebsch

applied for the position of CEO of Dairyland Power Cooperative

months after he resigned from the PSC, there was some kind of a

quid pro quo going on where Huebsch would approve Cardinal-

Hickory and then be hired by Dairyland. Once again, there is

absolutely no factual evidence to support this theory. This is simply another attempt by Driftless to create the view that

Huebsch was biased, which is based on nothing factual except its

aggressive litigation posture.

¶62 What the facts show is that after the PSC's September

26, 2019 decision on Cardinal-Hickory, Huebsch resigned. He had

36 PSC Order, Sept. 26, 2019, 84. 37Once again, this concern was not presented until briefing.

27 Nos. 2021AP1321-LV & 2021AP1325

served on the PSC since 2015. In January of 2020, the previous

CEO of Dairyland Power, Barbara Nick, announced that she was

retiring. On April 23, 2020, Huebsch submitted an application

to a search firm for the position of Dairyland Power CEO. He

was not hired; he did not get even an interview for the

position.

¶63 Driftless provided no factual evidence that Huebsch

presented a serious risk of actual bias in favor of approval of

Cardinal-Hickory. There is no factual evidence of any

wrongdoing by Huebsch. Unsubstantiated allegations are all that

Driftless provided. Therefore, there is no "proper cause," as

required under Wis. Stat. § 227.57(1), to expand the record

created before the PSC on the Cardinal-Hickory line.

D. Circuit Court Decision

¶64 Because the Wis. Stat. § 227.57 review of the merits

of the PSC's approval of Cardinal-Hickory is pending in circuit

court, this matter will return to the circuit court upon our

remand. Accordingly, we address previous statements and decisions made by the circuit court relative to the PSC approval

of Cardinal-Hickory.

1. Due process violation

¶65 In a written order, the circuit court declared "if

Comm. Huebsch was improperly biased or his participation creates

an improper appearance of bias, I must vacate the PSC decision

and remand to the PSC for further proceedings."38 In a

38 Circuit Ct. Decision and Order, May 25, 2021, 9.

28 Nos. 2021AP1321-LV & 2021AP1325

transcript of the motion hearing held July 30, 2021, the circuit

court also said, "I'm going to call it 'appearance' because that

really is what it is saying: When we can't say that there's

actually bias, but there's such a high risk of bias that we're

going to call it a due process violation anyway."39 The circuit

court may have recognized our decision in Miller, where we

clearly stated that a due process violation requires a showing

of the serious risk of actual bias based on objective factual

representations. Miller, 392 Wis. 2d 49, ¶24. We conclude that

although the circuit court may have understood the law, its

repeated statements grounded in "the appearance of bias," when

combined with the lack of factual evidence of communications to

or from Huebsch on the merits of Cardinal-Hickory, are not

sufficient to support a due process claim based on a "serious

risk of actual bias." Stated otherwise, no serious risk of

actual bias was shown here.

¶66 It was in part based on this error of what is required

to state a due process violation that the circuit court interpreted Wis. Stat. § 227.57(1) as being satisfied by

generalized allegations. As explained above, the circuit court

interpreted § 227.57(1) as permitting expansion of the record,

which resulted in the subpoenas to Huebsch among other

discovery. In so concluding, the circuit court erred as a

matter of law. Miller, 392 Wis. 2d 49, ¶24.

2. Subpoenas protection

39 Circuit Ct. Mot. Hr'g Tr., July 30, 2021, 16.

29 Nos. 2021AP1321-LV & 2021AP1325

¶67 We review the circuit court's decision that denied

Huebsch's motion to quash Driftless' discovery subpoenas and its

refusal to stay its discovery order. The purpose of all

subpoenas was to obtain evidence that would permit Driftless to

expand the record pursuant to Wis. Stat. § 227.57(1).

¶68 The discovery subpoenas are prohibited by our

interpretation of Wis. Stat. § 227.57(1). They are not grounded

in a legally cognizable due process claim. The circuit court

refused the protection sought by Huebsch's motion to quash the

discovery subpoenas. We review its order to determine whether

the circuit court erroneously exercised its discretion. Lane,

251 Wis. 2d 68, ¶19. When doing so, we examine whether the

circuit court applied the correct legal standard. Id.

¶69 For the reasons explained above relative to Driftless'

allegations, the circuit court herein erroneously interpreted

Wis. Stat. § 227.57(1) and it did not clearly apply the correct

standard by which to measure whether a due process violation had

been stated. It also refused to apply the standard we require when a circuit court is meeting a request for a stay of its

order pending appeal. See Waity v. LaMahieu, 2022 WI 6, ¶50,

400 Wis. 2d 356, 969 N.W.2d 263.

¶70 As we have explained above in our interpretation of

Wis. Stat. § 227.57(1), in order to expand the record created

before the PSC, Driftless must show "proper cause" by prima

facie proof of wrongdoing by Huebsch.40 Such proof must be based

40 Supra, ¶28.

30 Nos. 2021AP1321-LV & 2021AP1325

on facts that show "irregularities in procedure" before the PSC

in order to satisfy § 227.57(1).41 A prima facie showing

requires objective facts; general allegations of concern are

insufficient to satisfy the statutory possibility of expanding

the record beyond that which was created before the PSC.42

¶71 Huebsch's application for employment with Dairyland

Power was an event that concerned the circuit court. The record

shows that he submitted an application on April 23, 2020, months

after he left the PSC. This event was raised by the affidavit

of Driftless' attorney alleging that his application evidenced

"irregularities in procedure before the agency" pursuant to Wis.

Stat. § 227.57(1). The circuit court agreed and said:

I do think there was a prima facie case made as it relates to Commissioner Huebsch and the way that it was demonstrated was through a variety of circumstances that started what I call immediately after the decision. . . . What actions happened that were documented showing him exchanging communications with one of the owners involved in this decision, it looked like if not the very first, one of the earliest communications was talking about having a meeting with the head of that company, and then it went from there with another series of events that ultimately culminated in his applying for her job. . . .

I'm saying that is enough to raise a reasonable question whether a commissioner, who was taking those kind of actions so quickly after rendering a decision, was truly acting impartial or if they had other considerations outside of the record in front of them on their mind when rendering the decision. . . .

41 Supra, ¶29 (citing Marris, 176 Wis. 2d at 29-30). 42 Supra, ¶36.

31 Nos. 2021AP1321-LV & 2021AP1325

So enough has been shown to allow further exploration under [Wis. Stat. § ] 227.57(1) of exactly what happened with Commissioner Huebsch.[43] ¶72 The circuit court permitted discovery into whether

Huebsch acted lawfully in his decision on Cardinal-Hickory by

ignoring repetitive court decisions that uniformly hold that

adjudicators in agency proceedings are presumed to act with

honor and integrity. Marder, 286 Wis. 2d 252, ¶34; Withrow, 421

U.S. at 47. The circuit court did not acknowledge that

presumption in the law. ¶73 Rather, instead of applying that longstanding

presumption, the circuit court presumed that applying for

employment with Dairyland Power after the Cardinal-Hickory

proceedings had concluded created a prima facie showing

sufficient to permit discovery of Huebsch's decision-making

during the Cardinal-Hickory proceedings.44

¶74 As we explained above, Driftless had the burden of

proving wrongful conduct through specific factual statements of

Huebsch.45 However, Driftless provided no specific factual

statements by Huebsch and only general allegations about actions that occurred after the Cardinal-Hickory proceedings had

concluded. These generalized concerns are insufficient to make

a prima facie showing of "irregularities in procedure before the

43 Circuit Ct. Oral Arg. Tr., Jan. 21, 2021, 77-79. 44 Id.

Supra, ¶38 (citing Marder v. Bd. of Regents of the Univ. 45

of Wis. Sys., 2005 WI 159, ¶32, 286 Wis. 2d 252, 706 N.W.2d 110).

32 Nos. 2021AP1321-LV & 2021AP1325

agency." Wis. Stat. § 227.57(1); see also Sills, 254 Wis. 2d

538, ¶¶42, 43. Stated otherwise, Driftless had the burden to

show factual statements evidencing wrongdoing by Huebsch.

Marder, 286 Wis. 2d 252, ¶24; Withrow, 421 U.S. at 47. However,

in its ruling, the circuit court actually removed that burden of

proof from Driftless. Instead, the circuit court authorized

discovery by which Huebsch was questioned to determine if he

could prove that he did not act unlawfully.

¶75 The circuit court erred in interpreting Wis. Stat.

§ 227.57(1) to permit discovery, thereby expanding the PSC

record before § 227.57(1)'s requirement of proper cause was

satisfied. The circuit court also did not apply the presumption

of honesty and integrity to Huebsch's service on the PSC. It

did so based largely on the affidavit of Driftless' attorney,

who offered no factual statements to or from Huebsch that showed

he had prejudged the merits of Cardinal-Hickory. The inference

the circuit court accepted was that Huebsch's application for

employment with Dairyland Power in April of 2020 could show that he had a pre-decision arrangement worked out with Dairyland

Power.46

¶76 Furthermore, the presumption of honesty and integrity

is consistent with the precise conditions the legislature

established in Wis. Stat. § 227.57(1), that, when met, would

permit expanding the record that was developed before the

agency. As we explained above, "irregularities in procedure

46 Circuit Ct. Decision and Order, May 25, 2021, 11.

33 Nos. 2021AP1321-LV & 2021AP1325

before the agency" are permitted to be explored "if proper cause

is shown therefor." § 227.57(1). Proper cause requires

specific factual statements by the decision-maker on the merits

of the matter being decided by the agency. Driftless presented

not one example of objectively factual proof that the law

requires; and the circuit court erred when it required none.

3. Stay pending appeal

¶77 After deciding against Huebsch on his motion to quash,

the circuit court heard Huebsch's motion for a stay pending

appeal. A circuit court's decision to grant or to deny a stay

pending appeal is a discretionary decision. State v.

Gudenschwager, 191 Wis. 2d 431, 439, 529 N.W.2d 225 (1995). A

stay pending appeal should be granted where the moving

party: "(1) makes a strong showing that it is likely to succeed

on the merits of the appeal; (2) shows that, unless a stay is

granted, it will suffer irreparable injury; (3) shows that no

substantial harm will come to other interested parties; and

(4) shows that a stay will do no harm to the public interest." Id. at 440.

¶78 Here, the circuit court listed the four Gudenschwager

factors, but did not apply them. In regard to the first factor,

the circuit relied on its prior decisions to conclude that there

was "not a strong showing of likelihood to succeed on the

merits. In fact, I disagreed with Mr. Huebsch as to the

34 Nos. 2021AP1321-LV & 2021AP1325

arguments on the merits; so I can't find that that factor favors

a stay pending appeal."47

¶79 The court concluded that because it had disagreed with

Huebsch's position in the pending case, Huebsch had no

likelihood of success on the merits when the matter proceeded on

appeal. This is the same error we described in Waity where a

stay was requested and the circuit court simply referred to its

own legal reasoning earlier in the pending case as its decision

on the motion for a stay. We held it was error to do so.

Waity, 400 Wis. 2d 356, ¶52 (explaining that "a circuit court

cannot simply input its own judgment on the merits of the case

and conclude that a stay is not warranted.").

¶80 Here, the circuit court did not reexamine the legal

issues presented and it did not consider the standard of review

that the court of appeals would apply to its decisions on

relevant legal issues. For example, it did not seem to

understand that its interpretation of Wis. Stat. § 227.57(1)

would be reviewed de novo by the court of appeals. ¶81 Its decision on the remaining Gudenschwager factors is

equally deficient in applying the law to the facts presented.

In regard to irreparable injury, the court said, "I simply don't

see that here. I mean, there's certainly some burden that

Mr. Huebsch is going to be put to because he's going to have to

sit for a deposition . . . but that's not an irreparable

47 Circuit Ct. Mot. Hr'g Tr., July 30, 2021, 63.

35 Nos. 2021AP1321-LV & 2021AP1325

injury."48 The court went on, "If I grant this stay, I'm

essentially handcuffing the petitioners from getting some of ––

what may be some of the most relevant information for that

hearing."49

¶82 The court did not consider whether the harm done by

deposing an administrative decision-maker about the substance of

his decision could be undone on appeal. Yet, that is a type of

irreparable injury that we gave as an example in Waity. Waity,

400 Wis. 2d 356, ¶58. We do not dwell on the circuit court's

reasoning on the other Gudenschwager factors because application

of the law relative to a stay pending appeal was completely

absent from the circuit court's reasoning. Not only did the

circuit court err in subjecting Huebsch to discovery, it erred

in not staying its decision pending appeal.

III. CONCLUSION

¶83 We conclude that in pretrial decisions the circuit

interpretation formed the basis for its expansion of the record created by the PSC and permitted discovery subpoenas of 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.

48 Id. 49 Id., 65.

36 Nos. 2021AP1321-LV & 2021AP1325

¶84 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.

¶85 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

erroneously denied Huebsch's request for a stay pending appeal.

By the Court.—The order of the circuit court is reversed.

37 Nos. 2021AP1321-LV & 2021AP1325.bh

¶86 BRIAN HAGEDORN, J. (concurring). I agree with much

of the majority/lead opinion.1 It methodically goes through the

allegations against Michael Huebsch, former commissioner of the

Public Service Commission (PSC), and demonstrates why they are

meritless and borderline frivolous. It explains that

generalized allegations of bias come nowhere close to the

constitutional due process standard: actual bias or "a serious

risk of actual bias." See Caperton v. A.T. Massey Coal Co., 556

U.S. 868, 884 (2009); Miller v. Carroll, 2020 WI 56, ¶24, 392

Wis. 2d 49, 944 N.W.2d 542.

¶87 Although I concur in the court's mandate, I arrive at

substantially the same destination via a different route. The

majority/lead opinion reverses the circuit court's decision not

to quash a subpoena for documents, but it gets there by

overturning a separate, months-earlier, unappealed decision from

the circuit court to expand the agency record under Wis. Stat.

§ 227.57(1). I focus instead on the order appealed to us——the

circuit court's decision not to quash a subpoena for documents under Wis. Stat. § 805.07(3). I agree with the majority/lead

opinion that the allegations against Commissioner Huebsch do not

support the circuit court's actions and the subpoena should have

been quashed. It appears that the procedural paths taken in

this writing and in the majority/lead opinion very likely will

have the same practical effect for Commissioner Huebsch on

remand. I write separately to explain my analysis and to stress

why it was important for us to take this case.

1 I join ¶4 of the majority/lead opinion.

1 Nos. 2021AP1321-LV & 2021AP1325.bh

I

¶88 While the majority/lead opinion correctly explains why

Driftless' fishing expedition must be rejected, it is

insufficiently attentive to the procedural posture of this

appeal.2 To be sure, this case is a procedural anomaly. The

opinion centers its analysis on the circuit court's decision to

expand the record under Wis. Stat. § 227.57(1). But

Commissioner Huebsch, the petitioner here, was not a party to

the case when that decision was made, and no party has sought

leave to appeal that decision. See Wis. Stat. § (Rule)

809.62(1g)(a), (1m)(a)1. (noting that parties may petition for

review of decisions that are adverse to the "party seeking

review"). The opinion nonetheless analyzes § 227.57(1) and

concludes the circuit court erroneously exercised its discretion

in rendering a decision that is not before us. While

§ 227.57(1) is relevant to our inquiry, I do not believe it is

appropriate to reach down and formally reverse this decision,

even if the legal rationale proceeds on a parallel path. ¶89 Commissioner Huebsch recognized this in his briefing.

He does not ask us to formally reverse the circuit court's

decision under Wis. Stat. § 227.57(1), even as he attacks its

reasoning which served as part of the circuit court's basis for

denying the motion to quash. In his reply brief, Huebsch

explained, "His interest in the soundness (or not) of the

circuit court's earlier reasoning permitting discovery is merely

2"Driftless" here refers to Driftless Area Land Conservancy and the Wisconsin Wildlife Federation. Both parties issued the discovery subpoena which Commissioner Huebsch seeks to quash.

2 Nos. 2021AP1321-LV & 2021AP1325.bh

indirect and contingent." Indeed, "it is not as if Huebsch

somehow obtains a retroactive right to appeal the old orders."

Huebsch's quarrel, he explained, formally "lies only with orders

directed to him." Therefore, even though I largely agree with

the majority/lead opinion's critique of the circuit court, I do

not join its procedural choice to overrule the decision to

expand the record under § 227.57(1).

¶90 Only the circuit court's order denying Commissioner

Huebsch's motion to quash the discovery subpoena is properly

before us. That order was vacated, and as the court of appeals

identified, it is now moot. However, long-established

exceptions to the mootness doctrine exist for just such a time

as this. Among the relevant considerations, mootness may be

overlooked if "the issue is of great public importance."

Marathon County v. D.K., 2020 WI 8, ¶19, 390 Wis. 2d 50, 937

N.W.2d 901. This case is. The dissent disagrees. It wonders

what all the fuss is about, portraying this as a humdrum case

getting suspicious and undeserved special treatment. Not so. Imagine an ordinary civil case where, months after the decision,

the losing litigant files a motion alleging a Caperton due

process claim and asking for the private cell phone records of

the judge——and a new judge ordered the records be produced.

That would set an extraordinary precedent, worthy of close and

careful scrutiny. There would certainly be cause to look twice

if the subpoena was rooted in mere speculation rather than firm

evidence, especially given the exceptionally high standard needed to establish a Caperton due process claim. Against this

3 Nos. 2021AP1321-LV & 2021AP1325.bh

backdrop, we would not think twice of applying a mootness

exception.

¶91 A "that's not this case" argument doesn't work here

because that is this case. The due process claim advanced turns

on the same standard for adjudicatory bodies like the PSC as it

does for courts. Withrow v. Larkin, 421 U.S. 35, 46-47 (1975)

(applying judicial bias rules "to administrative agencies which

adjudicate"). We have seen bias and recusal allegations

increase greatly in recent years, turning the obligation of

adjudicator impartiality into a litigation weapon. That only

heightens the importance of these issues to the functioning of

adjudicatory bodies like the PSC. The dissent's nonchalant view

is misplaced. There is nothing ordinary about this case; it

warrants our attention even though the order appealed from is

moot.3

II

¶92 This leads us to the motion to quash. We review a motion to quash a subpoena for documents for an erroneous

exercise of discretion. Lane v. Sharp Packaging Sys., Inc.,

2002 WI 28, ¶¶19-20, 251 Wis. 2d 68, 640 N.W.2d 788. "A

discretionary decision will be sustained if the circuit court

Commissioner Huebsch also seeks review of the circuit 3

court's decision to deny a motion for stay pending appeal. That issue is moot as well. But in my view, no mootness exception merits reaching that question. We granted Commissioner Huebsch's requested stay when we accepted this case, and we recently issued a decision clarifying the proper analysis. See Waity v. LeMahieu, 2022 WI 6, ¶¶48-54, 400 Wis. 2d 356, 969 N.W.2d 263.

4 Nos. 2021AP1321-LV & 2021AP1325.bh

has examined the relevant facts, applied a proper standard of

law, and, using a demonstrated rational process, reached a

conclusion that a reasonable judge could reach." Indus. Roofing

Servs., Inc. v. Marquardt, 2007 WI 19, ¶41, 299 Wis. 2d 81, 726

N.W.2d 898 (quoting another source).

¶93 By statute, a circuit court may "quash or modify" a

subpoena for documents if the subpoena "is unreasonable and

oppressive." Wis. Stat. § 805.07(3); State v. Gilbert, 109

Wis. 2d 501, 509-10, 326 N.W.2d 744 (1982). And a subpoena,

like any other discovery request, is limited to "any

nonprivileged matter that is relevant to any party's claim or

defense." Wis. Stat. § 804.01(2)(a). Here, the scope of review

is even further limited. The proceeding before the circuit

court is not a case in the normal course, but a review of an

agency decision under Wis. Stat. ch. 227. Typically, such

review is "confined to the record" created by the agency. Wis.

Stat. § 227.57(1). However, "in cases of alleged irregularities

in procedure before the agency . . . depositions and written interrogatories may be taken . . . if proper cause is shown

therefor." Id. Driftless argues that its Caperton due process

claim focused on Commissioner Huebsch constitutes an alleged

irregularity in procedure.

¶94 Commissioner Huebsch does not disagree that a Caperton

due process violation would constitute a procedural irregularity

under Wis. Stat. § 227.57(1). Rather, he contends that

Driftless failed to state an even remotely cognizable claim. I agree. As the majority/lead opinion explains well, the

5 Nos. 2021AP1321-LV & 2021AP1325.bh

generalized accusations, innuendo, and wholesale speculation

underlying the bias claims come nowhere close to alleging a

Caperton due process violation. Accordingly, the records

demanded by the subpoena——including Commissioner Huebsch's

cellphone, his communications with a number of individuals both

in the course of his work as a commissioner and in his private

life, and documents about his decision to seek employment

elsewhere——are not relevant. And a subpoena demanding wholly

irrelevant documents is unreasonable and oppressive. See State

v. Washington, 83 Wis. 2d 808, 844, 266 N.W.2d 597 (1978)

(noting that whether a "subpoena may be attacked" turns in part

on "the question of relevancy"); AF Holdings, LLC v. Does 1-

1058, 752 F.3d 990 (D.C. Cir. 2014) ("If a subpoena compels

disclosure of information that is not properly discoverable,

then the burden it imposes, however slight, is necessarily

undue: why require a party to produce information the

requesting party has no right to obtain?"); Compaq Comput. Corp.

v. Packard Bell Elecs., Inc., 163 F.R.D. 329, 335-36 (N.D. Cal. 1995) ("Obviously, if the sought-after documents are not

relevant nor calculated to lead to the discovery of admissible

evidence, then any burden whatsoever imposed upon [the

subpoenaed non-party] would be by definition 'undue.'").

¶95 Wisconsin law authorizes the quashing of unreasonable

and oppressive subpoenas. Wis. Stat. § 805.07(3) ("the court

may . . . quash or modify the subpoena if it is unreasonable and

oppressive"). As the majority/lead opinion details, it appears the circuit court applied a far more relaxed "appearance of

6 Nos. 2021AP1321-LV & 2021AP1325.bh

bias" standard rather than the strict, narrow, and rarely-met

"serious risk of actual bias" standard that governs. This was

the wrong legal test. I conclude that a reasonable judge

examining the facts and applying the proper legal standards to

both the motion to quash the subpoena and the underlying

constitutional bias claim could only conclude that the subpoena

for documents must be quashed.

¶96 As previously explained, the unusual procedural

posture of this case means the subpoena for documents is the

only issue we can or should formally decide. That said, the

implications for further investigation regarding Driftless'

alleged bias claim against Commissioner Huebsch as the

proceedings continue below should be quite clear.

III

¶97 I close with some observations about the importance of

this case for our system of adjudication. The constitutional

standard underlying a Caperton due process claim is extraordinarily high. It is not whether some impartial

observers would think there's an appearance of bias. The

question is whether actual bias was present, or a serious risk

of bias so extreme and unusual that it occurs in only the rarest

of circumstances. See Caperton, 556 U.S. at 887-88; id. at 899-

900 (Roberts, C.J., dissenting). Any claim of bias "must

overcome a presumption of honesty and integrity in those serving

as adjudicators." Withrow, 421 U.S. at 47. Unfortunately, this "presumption that judges will follow the law regardless of their

7 Nos. 2021AP1321-LV & 2021AP1325.bh

personal views and regardless of their associations is quickly

being replaced by the presumption that judges are frail,

impressionable, and not to be trusted." Miller, 392 Wis. 2d 49,

¶126 (Hagedorn, J., dissenting).

¶98 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. Legitimate claims have their place, but we

cannot validate and routinize a litigation tactic that aims its

fire at the decision-maker rather than the decision. Recusal

and bias claims must not become another missile to be deployed

anytime a litigant does not like an adjudicator's decision. Id.

The constitutional due process guarantee announced in Caperton

will rarely be met, and therefore should rarely be invoked. At

the end of the day, the Constitution simply does not countenance

the vague, generalized, and speculative accusations that served

as the basis for Driftless' attacks against Commissioner

Huebsch. The discovery subpoena against him should have been quashed. I respectfully concur.

8 Nos. 2021AP1321-LV & 2021AP1325.jjk

¶99 JILL J. KAROFSKY, J. (dissenting). It is sometimes

said that bad facts make bad law. Today, bad procedure makes

bad law. Plain and simple, this appeal is moot. Nevertheless,

four members of this court transform a "procedural anomaly"1 into

a procedural tragedy. These four Justices springboard off an

appeal about mootness to overreach into matters not before this

court. Strikingly, this unbounded exercise of judicial power

comes with no explanation, leaving all to speculate as to why

this case and this subpoena recipient receive such special

treatment. 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.

¶100 At the center of this interlocutory appeal is Michael

Huebsch. During the relevant time frame, Huebsch served as

Commissioner on the Public Service Commission (PSC) when that

agency approved the Cardinal-Hickory Creek Transmission Line project. Several local governments and conservation

organizations, including the Driftless Area Land Conservancy

("Driftless"), petitioned for judicial review of the PSC's

approval decision.

¶101 Along with legal challenges to the merits of the PSC's

approval, Driftless alleges Huebsch violated its members' due

process rights. Driftless argues that Huebsch's contacts with

See County of Dane v. PSC, Nos. 2021AP1321-LV, 2021AP1325 1

& 2021AP1495-W, unpublished order (Wis. Sept. 21, 2021) (Karofsky, J., dissenting). 1 Nos. 2021AP1321-LV & 2021AP1325.jjk

organizations and persons who appeared before him during the

PSC's consideration of the Cardinal-Hickory Creek project show

at least a serious risk of actual bias. Evidence of those

contacts, however, was not in the record created before the PSC.

This absence is significant; typically, judicial review is

limited to the agency record. The exception to that general

rule is set forth in Wis. Stat. § 227.57(1), which allows for

additional discovery in cases of "alleged irregularities in

procedure before the agency," such as a biased adjudicator.

Pursuant to that exception, the circuit court here determined

that Driftless's allegations of bias met the "irregularities in

procedure before the agency" standard and were, therefore,

sufficient to grant Driftless leave to take additional

discovery.

¶102 At the time the circuit court rendered its decision

permitting extra-record discovery, Huebsch was not a party to

the circuit court's review proceeding (he had since left his PSC

Commissioner post for the private sector). He first became involved in that proceeding when Driftless subpoenaed him to be

a non-party witness. The subpoena——a subpoena duces tecum——

sought both Huebsch's deposition testimony and his personal

phone for "imaging" of data relevant to his potential bias. For

ease of reference, I refer to this as the "Phone Subpoena."

¶103 Huebsch filed a motion to quash the Phone Subpoena

and, alternatively, stay the Phone Subpoena pending appeal if

the circuit court ruled against him. The circuit court denied both motions. Huebsch then appealed the circuit court's

decisions to the court of appeals. While the appeal was

2 Nos. 2021AP1321-LV & 2021AP1325.jjk

pending, Driftless withdrew the Phone Subpoena. The subpoena's

withdrawal prompted the court of appeals to conclude that

Huebsch's appeal of the now-defunct Phone Subpoena was moot.

See County of Dane v. PSC, 2021AP1321-LV, unpublished order

(Wis. Ct. App. Aug. 18, 2021).

¶104 Shortly thereafter, Driftless issued Huebsch a

subpoena ad testificandum to secure his testimony at the

upcoming trial scheduled to occur one month later. For

simplicity, I refer to this later subpoena as the "Trial

Subpoena." Upon receipt of the Trial Subpoena, rather than

asking the circuit court to quash it, Huebsch came directly to

this court. He presented us three options for resolving his

qualms with the ongoing discovery efforts related to him. The

first was the "extraordinary and drastic" request for a

supervisory writ. See State ex rel. Kalal v. Cir. Ct. for Dane

Cnty., 2004 WI 58, ¶17, 271 Wis. 2d 633, 681 N.W.2d 110. In the

same petition, Huebsch alternatively asked that we exercise our

similarly "extraordinary" superintending authority over the circuit court to micromanage its discovery decisions. See State

v. Jerrell C.J., 2005 WI 105, ¶83, 283 Wis. 2d 145, 699 N.W.2d

110 (Abrahamson, C.J., concurring) (quoting State v. Helms, 136

Wis. 432, 464-65, 118 N.W. 158 (1908) (Winslow, C.J.,

concurring)). Finally, he filed a more traditional petition for

review.

¶105 The petition for review challenged the court of

appeals' decision that Huebsch's appeal over the Phone Subpoena was moot. In an apparent attempt to add a law-developing issue

3 Nos. 2021AP1321-LV & 2021AP1325.jjk

to a petition otherwise seeking error correction,2 Huebsch

suggested that his case presented a good vehicle for integrating

the "voluntary cessation" mootness exception recognized by

federal courts into Wisconsin law. Behind that mootness

question, however, were additional, purely "error correcting"

issues. These include: (1) how a court is to apply the

standard for a stay pending appeal——an issue for which we had

already accepted review in a different case;3 (2) the correct

standard for adjudicator bias under the Due Process Clause of

the Fourteenth Amendment——an issue that simply asked us to

repeat the legal standard we had articulated only 14 months

prior;4 and (3) how Driftless's specific allegations fit within

the settled "serious risk of actual bias" standard——issues

calling for "merely the application of well-settled principles

to the factual situation" stemming from the earlier (and never-

appealed) order to expand the record.5 A bare majority of this

court granted Huebsch's petition for review over my dissent

explaining how an interlocutory appeal over a decision declining to quash a subpoena presented a "procedural anomaly" for

2"The supreme court's primary function is that of law defining and law development," while the court of appeals' "primary function is error correcting." Cook v. Cook, 208 Wis. 2d 166, 188–89, 560 N.W.2d 246 (1997). 3That identical issue had already be accepted for review a month earlier. See Waity v. LeMahieu, No. 2021AP802, unpublished order (Wis. July 15, 2021). 4See Miller v. Carroll, 2020 WI 56, 392 Wis. 2d 49, 944 N.W.2d 542. 5Our review criteria, however, disfavor "merely the application of well-settled principles to the factual situation." Wis. Stat. § (Rule) 809.62(1r)(c)1. 4 Nos. 2021AP1321-LV & 2021AP1325.jjk

addressing the more substantive adjudicator-bias standard. See

County of Dane v. PSC, Nos. 2021AP1321-LV, 2021AP1325 &

2021AP1495-W, unpublished order (Wis. Sep. 21, 2021). We were

unanimous, however, in denying Huebsch's two "extraordinary"

requests for either a supervisory writ or an exercise of our

superintending authority. Id.

II. ANALYSIS

¶106 Four of my colleagues err in two fundamental respects.

First, this case is moot and no mootness exception applies.

That should be the end of this case. Unfortunately, it's not.

The majority/lead and concurring opinions overreach into matters

not properly before us in a manner that can only be

characterized as an exercise of superintending authority——

despite our unanimous decision not to exercise that authority in

this case. That is the second error. I address each error in

turn.

A. This Case is Moot ¶107 Shortly after the court of appeals dismissed as moot

the matter concerning the Phone Subpoena, Driftless served

Huebsch with the Trial Subpoena. Huebsch claims the voluntary

withdrawal of the Phone Subpoena followed by the issuance of the

later Trial Subpoena proves his appeal should not have been

dismissed. Huebsch posits this series of events falls within

the "voluntary cessation" exception to mootness recognized under

federal law but not under Wisconsin state law. The voluntary cessation mootness exception holds that when a party voluntarily

ends challenged conduct, that cessation may not render a case

5 Nos. 2021AP1321-LV & 2021AP1325.jjk

moot if the challenged conduct may be reasonably expected to

recur following dismissal of the action. See Friends of the

Earth, Inc. v. Laidlaw Env't Servs. (TOC), Inc., 528

U.S. 167, 189 (2000).

¶108 While this "voluntary cessation" argument served as

Huebsch's law-developing hook, neither the majority/lead opinion

nor the concurrence develop the law. The majority/lead opinion

mushes the distinct "voluntary cessation" exception into one of

our existing mootness exceptions: capable and likely of

repetition and yet evades review. See majority/lead

op., ¶¶25-26. Regardless of which exception to mootness the

majority/lead opinion is actually applying——voluntary cessation

or capable and likely of repetition yet evades review——neither

theory works here. That is because the conduct and legal issues

here are not capable and likely of repetition; the two subpoenas

materially differ.

¶109 The "capable and likely of repetition and yet evades

review" mootness exception, as we recently emphasized, is "limited to situations involving 'a reasonable expectation that

the same complaining party would be subjected to the same action

again.'" Portage County v. J.W.K., 2019 WI 54, ¶30, 386

Wis. 2d 672, 927 N.W.2d 509 (quoting State ex rel. Clarke v.

Carballo, 83 Wis. 2d 349, 357, 265 N.W.2d 285 (1978)).

Likewise, the "voluntary cessation" exception applies only when

an action "sufficiently similar" to the challenged conduct is

reasonably expected to recur. See Ne. Fla. Chapter of Associated Gen. Contractors of Am. v. City of Jacksonville, 508

U.S. 656, 662 n.3 (1993).

6 Nos. 2021AP1321-LV & 2021AP1325.jjk

¶110 Here, Huebsch supposes that the Phone Subpoena and the

Trial Subpoena establish "repetition." But the two subpoenas

differ substantially both as a matter of fact and as a matter of

law. Factually, the subpoenas differ in scope. The Phone

Subpoena would have permitted Driftless to probe relevant

aspects of Huebsch's phone and required Huebsch to sit for a

deposition. By contrast, the Trial Subpoena demands much less

of Huebsch, requiring only that he appear at trial to offer

truthful testimony.

¶111 As a matter of law, different legal standards govern

quashing the two subpoenas. Our decision in State v. Gilbert,

109 Wis. 2d 501, 326 N.W.2d 744 (1982) delineates this legal

distinction. Gilbert involved a ten-year-old girl who was

served with a subpoena ad testificandum requiring her to appear

in court and testify about her mother's abuse of her and her

sister. The circuit court quashed the subpoena, reasoning that

the child's best interest was better served by not appearing in

the same courtroom as her abuser, which could trigger severe psychological harm and re-traumatize her. The defendant

appealed. On appeal, the victim claimed the circuit court had

the authority to quash her subpoena under Wis. Stat.

§ 805.07(3), which permits a court to quash or modify a subpoena

"if it is unreasonable and oppressive."

¶112 This court reinstated the subpoena, concluding that

§ 805.07(3) applied only to a subpoena duces tecum; a subpoena

ad testificandum, by contrast, could not be quashed on the grounds that it was unreasonable and oppressive or contrary to

the child's best interest. Gilbert, 109 Wis. 2d at 508-17.

7 Nos. 2021AP1321-LV & 2021AP1325.jjk

Though seemingly harsh, the court underscored just how

fundamental a subpoena ad testificandum is to our legal system.

It explained that "a fundamental tenet of our modern legal

system[] is that the public has a right to every person's

evidence," including the President of the United States. Id.

at 505 (citing, e.g., United States v. Nixon, 418 U.S. 683

(1974)). The court highlighted the maxims that "each person has

a duty to testify" and that the "integrity of the [adversarial]

legal system depends on the court's ability to compel full

disclosure of all relevant facts under the rules of evidence."

Id. Thus, the court concluded a ten year old's physiological

harm and re-traumatization was not enough for a court to quash a

subpoena ad testificandum.

¶113 These factual and legal distinctions control the

analysis. Huebsch's appeal challenged only the decision not to

quash the Phone Subpoena——a subpoena duces tecum. On that

issue, the legal standard was whether the subpoena was

"unreasonable and oppressive." But under Gilbert, a different standard would apply to Huebsch's Trial Subpoena——a subpoena ad

testificandum. These factual and legal differences means the

two subpoenas are not the "same action" nor "sufficiently

similar." See J.W.K., 386 Wis. 2d 672, ¶30; Ne. Fla. Chapter of

Associated Gen. Contractors, 508 U.S. at 662 n.3.

¶114 These differences also mean the challenged Phone

Subpoena is not reasonably likely to recur. See Laidlaw Env't

Servs., 528 U.S. at 189. Driftless averred that it would not issue another subpoena duces tecum to Huebsch. The court of

appeals relied on that averment, meaning Driftless is now

judicially estopped from serving Huebsch with another subpoena

duces tecum. See State v. Ryan, 2012 WI 16, ¶¶32-33, 338

Wis. 2d 695, 809 N.W.2d 37. The majority/lead opinion's

contrary assertion rests on a failure to appreciate the factual

and legal differences between these two subpoenas. And because

the Phone Subpoena and the Trial Subpoena are materially

different, the cited mootness exceptions do not apply.

¶115 The concurrence takes a slightly different tack that

fares no better. In the concurrence's view, the adjudicator-

bias standard is an issue of "great public importance."

Concurrence, ¶90 (quoting Marathon County v. D.K., 2020

WI 8, ¶19, 390 Wis. 2d 50, 937 N.W.2d 901). Perhaps, but this

court recently published a comprehensive opinion setting out the

proper adjudicator-bias standard making it unnecessary to

revisit the issue here. See Miller v. Carroll, 2020 WI 56, 392

¶116 Putting the issue's perceived importance aside, I fail

to see why we needed to intervene through a moot interlocutory appeal. Had the trial been allowed to proceed without this

court's meddling and had the final judgment deemed Huebsch

unconstitutionally biased, then a traditional appeal would

squarely raise the very same adjudicator-bias issue. The bottom

line is that the adjudicator-bias issue serves as no excuse to

overlook mootness in this interlocutory appeal. The appeal is

moot without exception.

B. An Inappropriate Exercise of Superintending Authority

9 Nos. 2021AP1321-LV & 2021AP1325.jjk

¶117 Four members of this court barrel past this appeal's

mootness with analyses that can only be explained as expansive

exercises of our superintending authority. To explain, even if

this court could overlook mootness here, then the only discovery

issue properly before us would be whether the circuit court

erroneously exercised its discretion when it declined to quash

the Phone Subpoena. In resolving that issue, the legal question

we ask is whether the circuit court applied the "proper legal

standard." See, e.g., State v. Dobbs, 2020 WI 64, ¶32, 392

Wis. 2d 505, 945 N.W.2d 609. The proper legal standard

governing a subpoena such as the Phone Subpoena is the

"unreasonable and oppressive" standard in Wis. Stat.

§ 805.07(3). See Gilbert, 109 Wis. 2d at 509-10. That would be

the extent of our inquiry.

¶118 Not interested in limiting themselves to the Phone

Subpoena and the narrow legal issue it raises, four of my

colleagues instead exercise this court's extraordinary

superintending authority to reach an issue not before this court, the adjudicator-bias standard. The adjudicator-bias

issue arises solely out of the circuit court's decision to

expand the record. But the decision to expand the record was

never part of this appeal; the deadline to appeal that ruling

expired before Huebsch filed this appeal. Tellingly, not even

Huebsch was so bold as to ask that we reverse a decision that

occurred before he was involved in the circuit court

proceedings. See Opening Br. Pet'r at 51; Reply Br. Pet'r at 18. Undeterred, four member of this court micromanage the

circuit court's application of the adjudicator-bias standard.

10 Nos. 2021AP1321-LV & 2021AP1325.jjk

Because that issue belongs to the record-expansion decision not

before us, such micromanagement is clearly an exercise of

superintending authority.

¶119 Not willing to admit as much, both the majority/lead

opinion and concurrence attempt to conceal their use of

extraordinary power behind a novel legal theory that a subpoena

must be grounded in a "cognizable" claim. But the veil is thin.

Neither Huebsch nor my colleagues cite a single case from any

jurisdiction that actually supports their theory. Indeed, the

theory's novelty lays bare my colleagues' procedural mischief.

Had this interlocutory appeal challenged the circuit court's

decision to expand the record, I would agree that the issue

before us is the "proper legal standard" for showing adjudicator

bias under Wis. Stat. § 227.57(1). But again, that decision was

not appealed. Huebsch instead appealed the later decision not

to quash the Phone Subpoena. As such, this appeal presents only

the issue of whether the circuit court applied the "proper legal

standard" for showing a subpoena is "unreasonable and oppressive" under Wis. Stat. § 805.07(3). This novel

"cognizable" claim theory conflates the adjudicator-bias issue,

which is not before us, with the narrower Phone-Subpoena issue,

which is the only matter before us. In short, this novel

theory——found no where in the law——operates to obscure what is

otherwise an exercise of superintending authority to reach

matters not before the court.

¶120 In my colleagues' fervor to reach issues beyond this appeal's procedural posture, they fail to appreciate the dire

consequences of the "cognizable" claim theory. This theory

11 Nos. 2021AP1321-LV & 2021AP1325.jjk

allows a subpoenaed witness to raise what amounts to a motion to

dismiss the claim underlying the subpoena. In allowing a

subpoenaed witness to question the merits of the underlying

claim, a majority of this court creates an entirely new class of

persons within a case who now have the right to reach back to

challenge earlier merits decisions on which their subpoenas are

predicated. And if a circuit court does not amend its earlier

merits decision, then this new class of subpoenaed witnesses can

request an interlocutory appeal challenging that earlier

decision's legal merits and demand that proceedings be stayed

pending that appeal.6 In the end, this novel "cognizable" claim

theory provides for a disruptive new tool in a subpoena

recipient's toolbox——at least for those select witnesses with

the means to advance it.

¶121 Though four members of this court engage in a blatant

exercise of superintending authority, they stay largely silent

on why Huebsch's non-party appeal deserves such extraordinary

treatment. That's problematic. Our superintending power "is not to be exercised upon light occasion, but only upon some

grave exigency" and "extraordinary hardship." State v. Cir. Ct.

of Milwaukee Cnty., 143 Wis. 282, 285, 127 N.W. 998 (1910).

What's the "grave exigency"? 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

6 Stunningly, Huebsch claims such an interlocutory appeal would be as of right for non-party witnesses like him. 12 Nos. 2021AP1321-LV & 2021AP1325.jjk

psychological harm and re-traumatization by having to appear

before her abuser to detail her abuse has received the

extraordinary relief granted to Huebsch. See Gilbert, 109

Wis. 2d 501. Inconvenience and the discomfort that comes with

having private relationships exposed to public view simply are

not enough to excuse a subpoenaed witness from his "duty to

testify." Id. at 505.

¶122 While the concurrence is more forthcoming with it's

reasoning, it still falls prey to Huebsch's not-so-subtle scare

tactic repeated throughout his filings and at oral argument that

if this could happen to him, then it could happen to a Justice

as well. True enough. But if our government is truly one of

laws and not men and women, then we cannot use extraordinary

constitutional powers to carve out special treatment for

ourselves and only person's like us. Everyday Wisconsin

citizens respect their civic duty and testify in court despite

the hardships that testifying may bring. That remains true even

when their subpoenas ultimately prove to be the result of legal error. Neither Huebsch nor any Justice of this court is

absolved from this duty to testify. See Gilbert, 109 Wis. 2d at

505 (holding that "each person has a duty to testify" because

the public's "right to every person's evidence . . . applies to

all of us——even the President of the United States" (citing

Nixon, 418 U.S. 683)). We are not above other witnesses and the

procedures we adhere to should reflect that.

¶123 To that end, I conclude by observing that consistency across cases is integral to this court's institutional

legitimacy. Like cases should be treated alike. Here, we are

13 Nos. 2021AP1321-LV & 2021AP1325.jjk

left with a vexing question: what distinguishes Huebsch from

the ten-year-old abuse victim in Gilbert? My colleagues offer

no satisfying answer.

¶124 In this moot appeal, a bad procedural posture makes

bad law. Though we unanimously voted not to exercise

superintending authority in this appeal, four members of this

court make an about face by indulging in that extraordinary

power to reach matters not before us. My colleagues provide no

acceptable principle or explanation for why this case called for

such a blunt exercise of judicial power. For these reasons, I

respectfully dissent.

¶125 I am authorized to state that Justices ANN WALSH

BRADLEY and REBECCA FRANK DALLET join this dissent.

14 Nos. 2021AP1321-LV & 2021AP1325.jjk