By Scott Bauer
Associated Press
MADISON, Wis. (AP) — The Wisconsin Supreme Court’s conservative majority on Thursday sided with a former member of the state Public Service Commission who did not want to turn over his cellphone in a fight over the approval of a new power line.
Opponents argued that the evidence showed that former PSC Commissioner Mike Huebsch had at least an appearance of bias when he voted to approved the $492 million project in 2019 and that the permit therefore should be invalidated. Huebsch is a former Republican speaker of the Wisconsin Assembly and past member of former Gov. Scott Walker’s Cabinet.
The Supreme Court, in its 4-3 ruling, did not address the approval of the power line. Instead, the court said the lower courts were wrong to rule that Huebsch should have to turn over his cellphone to be searched for messages he may have sent or received with those connected to the power line project.
Justice Brian Hagedorn called the allegations against Huebsch “meritless and borderline frivolous.”
Huebsch had argued that commission members enjoy a presumption of impartiality and it is possible to set aside personal relationships when deciding cases. Huebsch also argued that the communications were purely personal ones between friends.
Those communications, some of which were done using an encrypted messaging app, included Huebsch’s attempts to land a job with Dairyland Power Cooperative, one of the utilities behind the 102-mile Cardinal-Hickory Creek transmission line that is being built from Middleton, Wisconsin, to Dubuque, Iowa. Huebsch, who started a private consulting company, did not get the job.
Opponents later discovered, through other federal lawsuits, that Huebsch traded dozens of messages with utility executives while the case was in front of the PSC and applied for the job at Dairyland Power.
Dane County Circuit Judge Jacob Frost ruled in 2021 that the evidence created an “appearance of bias” and ordered Huebsch to submit to questioning. The Supreme Court reversed that ruling.
The circuit court was wrong to deny Huebsch’s motion to quash discovery and seize his phone, the Supreme Court said. The allegations of bias lodged against him “do not come close to the level of alleging a cognizable due process claim,” Justice Patience Roggensack wrote for the majority.
“Stated otherwise, no serious risk of actual bias was shown here,” Roggensack wrote. Justices Rebecca Bradley, Hagedorn and Chief Justice Annette Ziegler joined Roggensack in the majority.
Justice Jill Karofsky, writing for the dissenting justices, said the majority overreached with its ruling.
“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,’” Karofsky wrote. She was joined by fellow liberal Justices Rebecca Dallet and Ann Walsh Bradley.
Huebsch served on the PSC from 2015 to 2020. The line was unanimously approved by the commission in 2019. Opponents of the project, including the Driftless Area Land Conservancy, the Wisconsin Wildlife Federation, Dane County and other local governments, sued in an attempt to block its construction.
Huebsch’s attorney, Ryan Walsh, called the ruling a “resounding victory.”
“His years-long nightmare is finally over,” Walsh said in an email. He said the ruling “sends an unmistakable message that campaigns of slander and innuendo against adjudicators and judges by unhappy litigants will not be tolerated.”
An attorney for the plaintiffs did not immediately respond to a request for comment.
Attorneys for the PSC had argued that if the ruling was allowed to stand, future rulings of the commission could be questioned under the same reasoning. Huebsch’s supporters, including the state chamber of commerce, argued that relationships like those Huebsch had with companies that came before the commission are common.
In addition to Dairyland Power, others building the line are American Transmission Company and ITC Midwest. They argued that the power line is necessary to relieve congestion and improve reliability on the power grid while also facilitating a transition to clean energy.
Construction of the power line has continued even though a federal judge ruled in a different lawsuit that it can’t cross the Mississippi River as planned.
