The Wisconsin Supreme Court has decided that regulators who take actions rational Wisconsinites understand as corrupt must still be considered to be unbiased.
This tortured reconstruction of ethical standards was reached not through reliance on statutes or precedents. Rather it was embraced by a quartet of justices who sought to achieve a result that benefitted politicians with whom they were personally associated — and to advance an interpretation of the law that undermines regulatory oversight on powerful corporations.
The court’s ruling came last week in a case involving the controversial tenure of former Wisconsin Assembly Speaker Mike Huebsch as a member of the state Public Service Commission. In that position, Huebsch was a reliable supporter of the interests of American Transmission Co., which has been seeking to build a $492 million transmission line that has met with stiff opposition from farmers, small business owners, consumers and local government officials in southwestern Wisconsin.
In 2019, Huebsch voted to approve ATC’s Cardinal-Hickory Creek project.
As part of the legal wrangling over the transmission line, it was discovered that Huebsch maintained a secretive system for communicating with ATC employees, as well as individuals associated with utility firms with an interest in the project.
Lawyers for opponents of the transmission line sought more information on these conversations as part of an effort to identify bias on Huebsch’s part. By any measure, it was a reasonable ask, as the appearance of bias was established — especially after it was revealed that Huebsch had sought a top job with Dairyland Power Cooperative, one of the firms working with ATC to develop the Cardinal-Hickory Creek line.
Even those who might be inclined to defend Huebsch, a close associate of scandal-plagued former Gov. Scott Walker, should have recognized the need to get to the bottom of questions about the commissioner’s communications. Indeed, if Huebsch wanted to clear his name, he could have simply embraced transparency and cooperated with requests for details of all the conversations he engaged in as a public official.
But that didn’t happen. Huebsch and his lawyers battled to overturn a ruling by Dane County Judge Jacob Frost that opponents of the transmission line could collect evidence about whether the former commissioner acted with bias in favor of a company he was supposed to be regulating — an inquiry that could have led to revoking the line’s permit.
But the Supreme Court thwarted that inquiry.
Why? Because the four right-wing judicial activists who make up the high court’s majority accepted the absurd argument of Huebsch’s legal team and the Public Service Commission, which, according to Wisconsin Public Radio, “argued the (opposition) group’s allegations were based on speculation, accusing the project’s opponents of mounting a fishing expedition to uncover evidence in support of their theory.”
Remarkably, the court determined that Huebsch’s private communications with utility company executives — some of which were sent using an encrypted messaging app — did not violate due process rights or taint his vote in approving a $500 million project. The majority said that regulators and judges should have a presumption of “honesty and integrity.”
Justice Brian Hagedorn wrote in a concurring opinion that the complaints against Huebsch were “meritless and borderline frivolous” because they involved “generalized allegations of bias.”
Justice Hagedorn should be ashamed of himself for attaching his name to such a self-evident attempt to cover for Huebsch, a man with whom Hagedorn served in the Walker administration. The justice is not a fool. He knows full well that it is appropriate for consumers, watchdog groups and local officials to be concerned about why Huebsch felt it necessary to communicate with the people he was supposed to be regulating using private, encrypted messages that could be automatically deleted.
The desire to learn what Huebsch was communicating about in secret is not “meritless or borderline frivolous.” It goes to the heart of the credibility of our institutions.
"Allowing these kinds of improper communications without any recourse under state law undermines public confidence in the fairness and integrity of Wisconsin’s utility regulatory process," explained Howard Learner, the executive director of the Environmental Law & Policy Center who has represented the Driftless Area Land Conservancy and the Wisconsin Wildlife Federation.
Hagedorn and the other members of majority on the court, which in an unrelated ruling from last week expressed great concern about maintaining public confidence in our elections, suddenly lost interests in maintaining public confidence in the regulatory and governing processes that extends from those elections.
The court majority found the intersection of incoherence and hypocrisy and occupied it.
They engaged in what Justice Jill Karofsky referred to in her dissent as “overreach into matters not before this court."
Karofsky summed things up well and wisely when she wrote, “Whatever the reason my colleagues' indulgence in the excesses of judicial power is not grounded in law and serves only to deepen inequalities in our system of justice.”
Those inequalities bias the system against the great mass of hard-working Wisconsinites and tip the balance in favor of precisely the corporations that the Public Service Commission is supposed to regulat e.