Wisconsin Manufacturers and Commerce v. Tony Evers ( 2022 )

2022 WI 38SUPREME COURT OF WISCONSIN
CASE NO.: 2020AP2081-AC & 2020AP2103-AC
COMPLETE TITLE: Wisconsin Manufacturers and Commerce,
Muskego Area Chamber of Commerce and
New Berlin Chamber of Commerce and Visitors
Bureau,
Plaintiffs-Respondents-Petitioners,
v.
Tony Evers, in his official capacity as Governor
of Wisconsin, Karen Timberlake, in her official
capacity as Interim Secretary of the Wisconsin
Department of Health Services and Joel Brennan,
in his official capacity as Secretary of the
Wisconsin Department of Administration,
Defendants,
Milwaukee Journal Sentinel,
Intervenor-Appellant.
REVIEW OF DECISION OF THE COURT OF APPEALS
Reported at 398 Wis. 2d 164,960 N.W.2d 442PDC No:2021 WI App 35 - Published
OPINION FILED: June 7, 2022
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: February 14, 2022
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Waukesha
JUDGE: Lloyd V. Carter
JUSTICES:
DALLET, J., delivered the majority opinion of the court, in
which ANN WALSH BRADLEY, HAGEDORN, and KAROFSKY JJ., joined.
ZIEGLER, C.J., filed a dissenting opinion, in which ROGGENSACK,
and REBECCA GRASSL BRADLEY, JJ., joined.
NOT PARTICIPATING:
ATTORNEYS:
For the plaintiffs-respondents-petitioners there were
briefs filed by Ryan J. Walsh, Amy C. Miller, Scott E. Rosenow
and Eimer Stahl LLP, Madison and WMC Litigation Center, Madison.
There was an oral argument by Scott E. Rosenow.
For the intervenor-appellant there was a brief by Thomas C.
Kamenick and the Wisconsin Transparency Project, Port Washington
and Kamenick Law Office, LLC, Port Washington. There was an oral
argument by Thomas C. Kamenick.
For the defendants there was a brief filed by Clayton P.
Kawski and Anthony D. Russomanno, assistant attorneys general,
with whom on the brief was Joshua L. Kaul, attorney general.
There was an oral argument by Clayton P. Kawski, assistant
attorney general.
2
2022 WI 38NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2020AP2081-AC & 2020AP2103-AC
(L.C. No. 2020CV1389)
STATE OF WISCONSIN : IN SUPREME COURT
Wisconsin Manufacturers and Commerce, Muskego
Area Chamber of Commerce and New Berlin Chamber
of Commerce and Visitors Bureau,
Plaintiffs-Respondents-Petitioners,
v.
Tony Evers, in his official capacity as
Governor of Wisconsin, Karen Timberlake, in her
FILED
official capacity as Interim Secretary of the JUN 7, 2022
Wisconsin Department of Health Services and
Sheila T. Reiff
Joel Brennan, in his official capacity as Clerk of Supreme Court
Secretary of the Wisconsin Department of
Administration,
Defendants,
Milwaukee Journal Sentinel,
Intervenor-Appellant.
DALLET, J., delivered the majority opinion of the Court, in
which ANN WALSH BRADLEY, HAGEDORN, and KAROFSKY, JJ., joined.
ZIEGLER, C.J., filed a dissenting opinion, in which ROGGENSACK,
and REBECCA GRASSL BRADLEY, JJ., joined.
REVIEW of a decision of the Court of Appeals. Affirmed.
No. 2020AP2081-AC & 2020AP2103-AC
¶1 REBECCA FRANK DALLET, J. The Milwaukee Journal
Sentinel made public records requests to the Department of
Health Services (DHS) for certain documents related to the
COVID-19 pandemic. After learning that DHS planned to respond
by releasing a list of "all Wisconsin businesses with over 25
employees that have had at least two employees test positive for
COVID-19 or that have had close case contacts that were
investigated by contact tracers" and the number of such tests or
contacts at each business, Wisconsin Manufacturers and Commerce
and two other trade associations (WMC)1 brought an action seeking
declaratory and injunctive relief to stop the release. The
issue is whether the public records law's general prohibition on
pre-release judicial review of decisions to provide access to
public records bars WMC's claims.2 See Wis. Stat. § 19.356(1)
(2019-20).3 We conclude that it does, and therefore affirm the
court of appeals' decision.
1 The associations are the Muskego Area Chamber of Commerce
and the New Berlin Chamber of Commerce and Visitors Bureau. For
ease of reference, we refer to all three groups collectively as
"WMC."
2 The parties' briefs also focused on the question of
whether WMC has standing to assert its claims. Although
standing is relevant to whether a party may assert a declaratory
judgment claim, see Fabick v. Evers, 2021 WI 28, ¶11, 396
Wis. 2d 231, 956 N.W.2d 856, we resolve this case on other
grounds and therefore assume without deciding that WMC has
standing. See Voters with Facts v. City of Eau Claire, 2018 WI
63, ¶26, 382 Wis. 2d 1, 913 N.W.2d 131 (assuming plaintiffs had
standing to assert their declaratory judgment claims while
concluding that the complaint failed to state a claim).
3 All subsequent references to the Wisconsin Statutes are to
the 2019-20 version.
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No. 2020AP2081-AC & 2020AP2103-AC
I
¶2 As part of its response to the COVID-19 pandemic, DHS
collected data and compiled a list of Wisconsin businesses with
more than 25 employees that had two or more employees test
positive for COVID-19 or that had close contacts investigated by
contact tracers.4 The list includes the number of positive tests
or contacts at those businesses. Before releasing the list in
response to the Journal Sentinel's public-records requests, DHS
notified WMC of its plans. This was a courtesy, as the parties
agree that DHS was not statutorily required to notify WMC before
releasing the records.
¶3 The day before the planned release, WMC filed suit in
circuit court,5 naming DHS and a number of state officials as
The information contained in these records was apparently
4
compiled based on data DHS obtained to investigate and report on
public-health issues pursuant to its duties under Wis. Stat.
chs. 250 and 252. Those duties include "establish[ing] and
maintain[ing] surveillance activities sufficient to detect any
occurrence of acute, communicable or chronic diseases,"
"analyz[ing] occurrences, trends and patterns of" disease, and
"distribut[ing] information based on the analyses." Wis. Stat.
§ 250.04(3)(a), (b)1. DHS may obtain data in a number of
different ways, including from local health officers or health
care providers. See Wis. Stat. § 252.05(1); Wis. Admin. Code
DHS § 145.04(1)(a) (June 2018). Laboratories are also required
to report "specimen results that indicate that an individual
providing the specimen has a communicable disease." §
252.05(2). WMC does not challenge DHS's data-collection
methods.
The Honorable Lloyd
5 V. Carter of the Waukesha County
Circuit Court presided.
2
No. 2020AP2081-AC & 2020AP2103-AC
defendants.6 WMC alleged that releasing the list would violate
the patient health care records statutes, Wis. Stat. §§ 146.81and 146.82, in two ways: (1) it would allow for the
identification of its member businesses' employees; and (2) the
list is derived "from diagnostic test results and the records of
contact tracers investigating COVID-19" and therefore must be
kept confidential as a patient health care record.
Additionally, WMC asserted that the public records law's common-
law balancing test weighs against disclosure, because releasing
the list will injure the reputations of its member businesses
and violate employees' privacy rights. Nevertheless, WMC did
not bring its case directly under either the patient health care
records statutes or the public records law. Instead, it brought
its claims pursuant to the Declaratory Judgments Act, Wis. Stat.
§ 806.04, requesting a declaration that DHS's planned release
would be unlawful under either the patient health care records
statutes or the public records law. See Wis. Stat. § 806.04(2)
(authorizing a party to "obtain a declaration of rights, status
or other legal relations" under a statute). WMC also sought an
injunction barring the records' release.
Specifically, the complaint named Governor Evers, Andrea
6
Palm (then the Secretary-Designee of DHS), and Joel Brennan (the
Secretary of the Department of Administration). While this case
was on appeal, Karen Timberlake replaced Palm as the Secretary-
Designee of DHS, and, as a result, was substituted for Palm as a
party. We refer to these defendants collectively (along with
DHS) as the State.
3
No. 2020AP2081-AC & 2020AP2103-AC
¶4 The circuit court granted a temporary restraining
order halting the planned release of the list. The State then
moved to dismiss, as did the Journal Sentinel (which the circuit
court had allowed to intervene). They argued that WMC lacked
standing and that its action was barred by Wis. Stat.
§ 19.356(1), which generally prohibits pre-release judicial
review of a decision to provide a requester with access to
public records unless "otherwise provided by statute." The
circuit court denied the motions, concluding that § 19.356(1)
did not apply to WMC's claims. The circuit court also held that
WMC had standing to challenge the release of the records under
the Declaratory Judgments Act because it fell within the "zone
of interests" protected by the patient health care records
statutes. Additionally, the circuit court granted WMC's motion
for a temporary injunction preventing DHS from releasing the
records.
¶5 The court of appeals granted the State's and the
Journal Sentinel's petitions for leave to appeal the order
denying their motions to dismiss7 and reversed the circuit
court's decision. Wis. Mfrs. & Com. v. Evers, 2021 WI App 35,
7Shortly after the circuit court denied the State and
Journal Sentinel's motions to dismiss, WMC filed a motion for
leave to file an amended complaint. Before the circuit court
ruled on that motion, the State and Journal Sentinel filed their
petitions for leave to file an interlocutory appeal. The court
of appeals granted those petitions, and WMC has not challenged
that decision. WMC's motion to amend remains pending in the
circuit court and, on remand, that court must address whether to
grant the motion.
4
No. 2020AP2081-AC & 2020AP2103-AC
398 Wis. 2d 164, 960 N.W.2d 442. The court of appeals held that
WMC failed to state a claim upon which relief could be granted
because "the statutes on which [WMC] rel[ies] to support [its]
declaratory judgment action 'do not give legal recognition to
the interest' [it] assert[s]." Id., ¶8 (alteration omitted)
(quoting Moustakis v. DOJ, 2016 WI 42, ¶3 n.2, 368 Wis. 2d 677,
880 N.W.2d 142). Relatedly, the court of appeals rejected the
argument that WMC had such a legally protected interest under
various standing doctrines. See id., ¶27. The court of appeals
also analyzed the patient health records statutes, noting WMC's
concession that Wis. Stat. § 146.84(1)(c) provides a cause of
action only to "an individual," not to WMC or its member
businesses. Id., ¶¶18-19.
¶6 WMC petitioned for review, challenging the merits of
the court of appeals' decision. It did not seek review of the
court of appeals' decision granting the State's and Journal
Sentinel's petitions for leave to file an interlocutory appeal.
We granted WMC's petition.
II
¶7 We review de novo a lower court's decision to grant or
deny a motion to dismiss. State ex rel. City of Waukesha v.
City of Waukesha Bd. of Rev., 2021 WI 89, ¶11, 399 Wis. 2d 696,
967 N.W.2d 460. In doing so, we take as true all well-pleaded
factual allegations, but do not accept legal conclusions as
true. Data Key Partners v. Permira Advisers LLC, 2014 WI 86,
¶19, 356 Wis. 2d 665, 849 N.W.2d 693. Our analysis also
5
No. 2020AP2081-AC & 2020AP2103-AC
requires us to interpret statutes. Statutory interpretation is
a question of law we review de novo. City of Waukesha, 399
Wis. 2d 696, ¶12.
III
A
¶8 We begin with some background principles about the
public records law. The public records law provides a requester
with the right "to inspect any record," "[e]xcept as otherwise
provided by law." Wis. Stat. § 19.35(1)(a). Public records are
thus presumptively open for inspection unless there are
statutory or common law exceptions to disclosure, and public
access may be withheld "only in an exceptional case." Wis.
Stat. § 19.31; Linzmeyer v. Forcey, 2002 WI 84, ¶¶10-11, 254
Wis. 2d 306, 646 N.W.2d 811. Once a request is made, it must be
responded to or denied "as soon as practicable and without
delay." § 19.35(4)(a). The decision of whether to permit
public access to a record in response to a request lies with the
custodian of the record, not its subject. See State ex rel.
Bilder v. Township of Delevan, 112 Wis. 2d 539, 558, 334
N.W.2d 252 (1983).
¶9 Related to that premise is the general rule under Wis.
Stat. § 19.356(1) that "no person is entitled to judicial review
of the decision of an authority to provide a requester with
access to a record." See Wis. Stat. § 19.356(1); see also
Moustakis, 368 Wis. 2d 677, ¶24. That rule was adopted by the
legislature in response to our decisions in Woznicki v.
6
No. 2020AP2081-AC & 2020AP2103-AC
Erickson, 202 Wis. 2d 178, 549 N.W.2d 699 (1996), and Milwaukee
Teachers' Education Association v. Milwaukee Board of School
Directors, 227 Wis. 2d 779, 596 N.W.2d 403 (1999), which held
that public employees had a common-law right to notice and pre-
release judicial review before records concerning them could be
released. See Moustakis, 368 Wis. 2d 677, ¶27.
¶10 Although § 19.356(1) generally prohibits pre-release
notice or judicial review of a response to a public records
request, there are exceptions. Three are enumerated in
§ 19.356(2)(a)1.-3., and apply to certain categories of records
regarding public employees or records "obtained by the authority
through a subpoena or search warrant." § 19.356(2)(a)2. These
exceptions were enacted to "limit the rights afforded by
[Woznicki and Milwaukee Teachers] 'only to a defined set of
records pertaining to employees residing in Wisconsin.'"
Moustakis, 368 Wis. 2d 677, ¶27 (quoting 2003 Wis. Act. 47,
Joint Legis. Council Prefatory Note). In addition to the
specific exceptions, Wis. Stat. § 19.356(1) also contains a
catchall exception, providing that notice or pre-release
judicial review may also be available when "otherwise provided
by statute." Id.B
¶11 Turning to this case, WMC offers two reasons why the
general prohibition on pre-release judicial review of a response
to a public records request does not apply to its claims at all.
First, it argues that pre-release judicial review is almost
7
No. 2020AP2081-AC & 2020AP2103-AC
always available under the Declaratory Judgments Act. Second,
it claims that § 19.356(1) did not eliminate the common-law
right to pre-release judicial review.
1
¶12 WMC argues that the general prohibition against pre-
release judicial review in § 19.356 does not apply to
declaratory judgment claims because, if it does, WMC has no
statutory remedy for improper disclosures of public records.
Typically, a declaratory judgment claim is available when a
statute does not provide for an equally "speedy, effective, and
adequate" remedy. See Lister v. Bd. of Regents, 72 Wis. 2d 282,
307–08, 240 N.W.2d 610 (1976); see also Lamar Cent. Outdoor, LLC
v. DOT, 2008 WI App 187, ¶19, 315 Wis. 2d 190, 762 N.W.2d 745.
Conversely, a party may not bring a declaratory judgment claim
when the remedy provided by statute is "at least as well-suited
to the plaintiff's needs as declaratory relief." See Lister, 72
Wis. 2d at 307–08. In WMC's view, § 19.356 provides an adequate
remedy only to the "three narrow categories" of individuals
specified in § 19.356(2)(a)1.-3., since they are expressly
entitled to pre-release judicial review. See Wis. Stat.
§ 19.356(2)(a)1.-3. (providing for pre-release notice and
judicial review when certain employment records or records
obtained via subpoena or search warrant are about to be
released). WMC asserts that, by contrast, § 19.356 provides
nothing for anyone——including WMC——who falls outside those three
8
No. 2020AP2081-AC & 2020AP2103-AC
narrow categories.8 Thus, relying on Lister and Lamar Central,
WMC argues that a declaratory judgment claim must be available
to everyone who falls outside of § 19.356(2)(a). Otherwise they
would have no remedy, let alone an adequate one.
¶13 Neither Lister nor Lamar Central support WMC's
position, however. In both of those cases, the plaintiffs
attempted to enforce an underlying right through a declaratory
judgment action even though a statute provided an exclusive
procedure for enforcing that right. See Lister, 72 Wis. 2d at
307-09 (right to collect debts from state agencies); Lamar Cent.
Outdoor, 315 Wis. 2d 190, ¶24 (right to challenge a DOT order to
remove roadside signs). The question in both cases was thus
whether the statute's exclusive enforcement procedure barred
declaratory judgment claims premised on that underlying right.
See Lister, 72 Wis. 2d at 307-09; Lamar Cent. Outdoor, 315
Wis. 2d 190, ¶¶32–33. Section 19.356(1) is different. It
states a general rule that no one has the right to a particular
remedy——pre-release judicial review——and then enumerates
exceptions to that rule. See Wis. Stat. § 19.356(1), (2)(a)1.-
3. Thus, § 19.356 makes clear that no one has a right to block
the release of a public record unless otherwise specified.
8There appears to be tension between this argument and
WMC's alternative argument that the Declaratory Judgments Act is
a statute that "otherwise provide[s]" for pre-release judicial
review under § 19.356, and thus (if WMC is correct) provides
them with a remedy.
9
No. 2020AP2081-AC & 2020AP2103-AC
Because there is no underlying right to pre-release judicial
review, the analysis in Lister and Lamar Central is inapposite.9
2
¶14 WMC's second argument, that § 19.356(1) did not
clearly abrogate the common law rules for pre-release notice and
judicial review, also fails. This argument took several forms
throughout this case, but we understand WMC to be arguing that
§ 19.356 did not eliminate the common law rights to pre-release
notice and judicial review that we recognized in Woznicki and
Milwaukee Teachers. See Moustakis, 368 Wis. 2d 677, ¶27
(explaining that Woznicki and Milwaukee Teachers "held that
public employees were entitled to notice and to seek pre-release
judicial review of the response to records requests pertaining
to them"). WMC contends that § 19.356 applies only to the kinds
of employment records that were at issue in those cases.
9This is also why we reject WMC's related argument that
reading § 19.356(1) to bar its claims would mean that § 19.356
"implicitly repeal[ed]" the Declaratory Judgments Act. See
Heaton v. Larsen, 97 Wis. 2d 379, 392-93, 294 N.W.2d 15 (1980)
("Repeals by implication are not favored in the law." (quoting
another source)). This argument is underdeveloped and
confusing, but so far as we can tell, WMC argues that any time a
statute precludes declaratory relief, that is the same as
partially "repealing" the Declaratory Judgments Act. WMC cites
no authority for this novel claim. And, in any event, § 19.356
did not partially repeal the Declaratory Judgments Act——
implicitly or otherwise. As explained above, by adopting
§ 19.356, the legislature expressly limited the right to pre-
release judicial review. In doing so, it did not alter the
Declaratory Judgments Act in any way.
10
No. 2020AP2081-AC & 2020AP2103-AC
Because WMC's claims do not involve those kinds of records, it
concludes that § 19.356 does not apply.
¶15 Section 19.356(1), however, clearly and unambiguously
abrogated the common law rights created in Woznicki and
Milwaukee Teachers. See United Am., LLC v. DOT, 2021 WI 44,
¶15, 397 Wis. 2d 42, 959 N.W.2d 317. The statute provides in no
uncertain terms that "[e]xcept as authorized in this section or
as otherwise provided by statute . . . no person is entitled to
judicial review of the decision of an authority to provide a
requester with access to a record." Section 19.356 does not
distinguish between different categories of individuals or
records; it states a general rule that applies to all claims for
pre-release judicial review and provides two types of
exceptions. The first are those contained in § 19.356(2)-(9),
and allow for pre-release notice and judicial review when the
types of records at issue in Woznicki and Milwaukee Teachers are
involved, subject to heightened rules and expedited procedures.
The second exception is for all other instances in which a
statute "otherwise provide[s]" for pre-release notice or
judicial review. This statutory language——a general prohibition
subject to statutorily enumerated exceptions——cannot coexist
with a common-law entitlement to pre-release notice or judicial
review. Therefore, we hold that § 19.356(1) clearly and
unambiguously eliminated the common-law rights on which WMC
relies.
11
No. 2020AP2081-AC & 2020AP2103-AC
C
¶16 Anticipating our conclusion that § 19.356(1) applies
to the claims it asserts in this case, WMC argues that the
Declaratory Judgments Act, Wis. Stat. § 806.04, falls within the
exception to § 19.356(1) for statutes that "otherwise provide[]"
for pre-release judicial review of records responses. We reject
this claim because it is contrary to the text of both the Act
itself and § 19.356.
¶17 To begin with, the text of the Declaratory Judgments
Act is broadly applicable and looks nothing like the other
statutes where the legislature has specifically authorized
actions to block an impending release of records. The
Declaratory Judgments Act states generally that "[a]ny
person . . . whose rights, status or other legal relations are
affected by a statute . . . may have determined any question of
construction or validity arising under
the . . . statute . . . and obtain a declaration of rights,
status, or other legal relations thereunder." Wis. Stat.
§ 806.04(2). It provides a means "to settle and to afford
relief from uncertainty and insecurity with respect to rights,
status and other legal relations." Wis. Stat. § 806.04(12). In
contrast, the legislature has adopted several statutes
specifically creating a right to block the release of certain
types of records. For example, the parties agree that Wis.
Stat. § 146.84(1)(c) authorizes a patient to obtain pre-release
judicial review when their confidential health records are in
danger of being released. See Wis. Stat. § 146.84(1)(c) ("An
12
No. 2020AP2081-AC & 2020AP2103-AC
individual may bring an action to enjoin any violation" of
certain confidentiality provisions).10 Similarly, Wis. Stat.
§§ 51.30(9)(c), 46.90(9)(c), 55.043(9m)(c), and 196.135 also
explicitly provide for injunctive relief barring the release of
records. E.g., § 51.30(9)(c) (providing that "[a]n individual
may bring an action to enjoin any violation of this section,"
which generally prohibits the disclosure of certain types of
medical treatment records). Section 196.135 is even more
direct, expressly referencing § 19.356 and authorizing both pre-
release notice and an opportunity for judicial review of a
planned records response. See § 196.135(4)(b).
¶18 Unlike these statutes, the Declaratory Judgments Act
does not explicitly authorize an action to enjoin the release of
a record. Indeed, it says nothing at all about records. As
explained above, however, other statutes address the issue,
strongly suggesting that the Act is not a statute that
"otherwise provide[s]" for pre-release judicial review. See
Rudolph v. Indian Hills Estates, Inc., 68 Wis. 2d 768, 775, 229
N.W.2d 671 (1975) (concluding that the Declaratory Judgments Act
did not provide a claim for the dissolution of a corporation
10 Although WMC alleges that DHS's planned release of its
list of employers would violate the patient health care records
statutes, it concedes that it cannot rely on those statutes to
obtain pre-release judicial review here because it is not an
"individual" authorized to seek injunctive relief under §
146.84(1)(c). See § 146.84(1)(c) (referring to violations of §§
142.82 and 142.83, both of which protect "patients"; in turn,
"patient" is defined in § 146.81(3) as "a person who receives
health care services from a health care provider").
13
No. 2020AP2081-AC & 2020AP2103-AC
where such actions were already expressly provided for in other
statutes).
¶19 Moreover, concluding that the Declaratory Judgments
Act "otherwise provide[s]" for pre-release judicial review of a
public records response would effectively repeal § 19.356(1).
As discussed previously, the legislature enacted § 19.356 to
limit the rights to pre-release notice and judicial review that
this court created in Woznicki and Milwaukee Teachers.11 See
Moustakis, 368 Wis. 2d 677, ¶27. Although those rights may have
been enforceable via a declaratory judgment action while they
existed, the legislature abrogated them when it adopted
§ 19.356. WMC cannot use the Act to circumvent either § 19.356
or the other statutorily authorized routes for obtaining that
review.
¶20 Additionally, WMC's interpretation gives no effect to
other statutes, such as those cited above, that allow for
injunctive relief against records releases. See State ex rel.
Kalal v. Cir. Ct. for Dane Cnty., 2004 WI 58, ¶46, 271
Wis. 2d 633, 681 N.W.2d 110 ("Statutory language is read where
possible to give reasonable effect to every word, in order to
avoid surplusage."). That is, if the Declaratory Judgments Act
The Joint Legislative Council's prefatory note to 2003
11
Wis. Act 47 confirms this conclusion, explaining that § 19.356
"applies the rights afforded by Woznicki and Milwaukee Teachers'
only to a defined set of records pertaining to employees
residing in Wisconsin." See also Moustakis, 368 Wis. 2d 677,
¶27 n.17 ("Legislative history may be consulted to confirm a
plain meaning interpretation.").
14
No. 2020AP2081-AC & 2020AP2103-AC
generally provides for pre-release judicial review, then there
would be no reason for the legislature to have also specifically
authorized such review in narrower contexts elsewhere in the
statutes. Indeed, WMC's position would undo the legislature's
choice to preclude pre-release judicial review in most
circumstances.
¶21 Accordingly, we hold that the Declaratory Judgments
Act does not "otherwise provide[]" for pre-release judicial
review of records responses. See § 19.356(1).
IV
¶22 In conclusion, we affirm the court of appeals'
decision and hold that WMC's complaint fails to state a claim
upon which relief may be granted because its claim is barred by
§ 19.356(1).
By the Court.—The decision of the court of appeals is
affirmed.
15
Nos. 2020AP2081-AC & 2020AP2103-AC.akz
¶23 ANNETTE KINGSLAND ZIEGLER, C.J. (dissenting). I
dissent because the majority errs in affirming the court of
appeals' decision dismissing this case. The court of appeals
also erred in accepting the interlocutory appeal. In so doing,
the court of appeals perpetuated the premature dismissal of this
case. The court of appeals, and now this court, fails to
consider the fact that a motion to amend the pleadings was
pending before the circuit court. The majority errs by
affirming the dismissal of this case and does so with little
analysis of the serious implications of its decision. The State
is prepared to release individuals' personal medical information
to the public. The law allows for such a release to be
challenged. The majority instead engages in a monocular view of
one statute and makes no mention of the perhaps unintended
consequences of its action. It closes the courthouse doors to
anyone who may wish to challenge the release of personal medical
information. This is egregious error.
¶24 The majority, like the court of appeals, fails to
properly consider the procedural posture of this case.
Unfortunately, this error has great significance to the
individuals whose personal and confidential medical information
will be released. As a result of the majority's error, the
names of businesses that have had employees who tested positive
for COVID-19, and the number of employees who tested positive
will be published. Significantly, private patient files that
are confidential by law, may become public records subject to
the public records law, and if the government has gathered
1
Nos. 2020AP2081-AC & 2020AP2103-AC.akz
personal medical information, the confidential status of that
information is gone and cannot be challenged. The damage that
will be done by public disclosure of private information is
irreparable.
¶25 This case was merely at the pleadings stage in the
circuit court, with a motion to amend the pleadings pending,
when the court of appeals took the unusual step of granting
interlocutory appeal over these non-final pleadings and
determining essentially that these private confidential patient
files are indeed public records and their release cannot be
challenged by anyone. The court of appeals' decision should be
reversed and the cause remanded to the circuit court so that the
circuit court can consider whether to allow the pleadings to be
amended. To dismiss this case at this juncture is error and
interlocutory intervention was error.
¶26 The majority's exceedingly short analysis in this case
makes little to no reference to the procedural posture of the
case and the pending motion to amend the pleadings below. The
majority claims that it resolves the case on grounds other than
standing and therefore assumes without deciding that
petitioners, Wisconsin Manufacturers and Commerce, Muskego Area
Chamber of Commerce, and New Berlin Chamber of Commerce and
Visitors Bureau (collectively, "the Associations") have
standing. See majority op., ¶1 n.2. The majority focuses on
one public records statute in its analysis. The majority claims
that the general prohibition against pre-release judicial review
found in Wis. Stat. § 19.356 does not apply to declaratory
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judgment claims because the Associations have no statutory
remedy for violations of the public records law. The majority
concludes that § 19.356's language is clear that no one has a
right to block the release of a public record unless otherwise
specified. The majority makes no mention of the individuals'
confidential medical information that is at stake. The majority
does not consider the amended pleadings below wherein
individuals make this claim. The majority gives no
consideration to the fact that a class action of those
individuals could make a claim if allowed by amended pleading.
¶27 To be clear, the implications of the majority's
conclusions are sweeping. Shortly after the outbreak of
COVID-19, on July 1, 2020, media outlets reported that Governor
Evers and his then-Secretary of Health Palm planned to publish
names of all Wisconsin businesses that had recorded at least two
COVID-19 cases. M.D. Kittle, "Breaking: Evers' DHS Outing
Businesses with COVID Cases," Empower Wisconsin (July 1, 2020),
https://empowerwisconsin.org/breaking-evers-dhs-outing-
businesses-with-covid-cases/. A number of businesses and the
Associations sent a letter to the State explaining that
releasing such information, even in response to a public records
request, would violate statutory and constitutional provisions.
The State then determined it would not publish the information.
¶28 Later that month the State changed its position and
decided to release the names of over 1,000 employers across
Wisconsin who had at least two employees test positive for
COVID-19 or close contacts investigated by contact tracers. On
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the heels of that announcement, the Associations filed an
initial complaint with the circuit court and moved for a
temporary restraining order and temporary injunction. The
circuit court issued the temporary restraining order and set a
motion hearing. At the hearing, the Journal Sentinel was
granted status to intervene. Both the State and the Journal
Sentinel moved to dismiss the complaint. On October 23, 2020,
the Associations filed a first amended complaint and a combined
brief opposing dismissal and supporting temporary injunction.
¶29 In the first amended complaint the Associations
alleged that the State planned the release of this sensitive
information and the business names and the number of known or
suspected COVID-19 cases. The allegations were that there were
more than 1,000 employers that met the State's criteria. The
Associations alleged that the information the State planned to
release was derived from diagnostic test results and the records
of contract tracers investigating COVID-19. The Associations
alleged that the information about whether an employee of a
facility had tested positive for COVID-19 could come only from
that individuals' medical records and that the State sought
release of medical diagnostic tests conducted on numerous
individuals. In addition, the Associations alleged that
releasing a patient's employer's name would permit
identification of the patient because the employer's name is
patient identifiable data. The Associations alleged that given
the relatively small number of employees in any facility, it
would not be difficult for coworkers or community members to
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discern the identity of the employee or employees who tested
positive for COVID-19. The allegations were that the State
originally obtained the medical records for the purpose of
communicable disease surveillance and that responding to a
public records request is not communicable disease surveillance.
The Associations alleged that the release of confidential
medical information of these employees would violate their right
to privacy and unfairly harm the reputation of the Associations'
members. The first amended complaint alleged irreparable harm.
The Associations further alleged that its members are Wisconsin
taxpayers, and that the plan to collect, review, and release
this confidential medical information is an unlawful expenditure
of public funds thus exposing the State to liability to be paid
out of the public fisc.
¶30 On December 4, 2020, the circuit court entered orders
denying the pending motions to dismiss and granting the
Associations' motion for a temporary injunction. Thus, the
Associations succeeded at the circuit court level. The case
proceeded under the course of normal litigation.
¶31 Importantly, on December 12, 2020, the Associations
filed the motion for leave to file a second amended complaint
along with the proposed second amended complaint. The second
amended complaint added claims from two anonymous individuals
who tested positive for COVID-19 at the relevant time and who
are and have been employees of a public-facing Wisconsin
business with over 25 employees, which business had at least two
individuals who tested positive for COVID-19. The individual
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plaintiffs sought an injunction under Wis. Stat. § 146.84(1)(c).
Section 146.84(1)(c) allows "individual[s]" to "enjoin any
violation of s. 146.82 or 146.83 [regulating confidentiality of
healthcare records] or to compel compliance with s. 146.82 or
146.83 . . . ." As the majority correctly identifies, this
language allows individuals to obtain injunctive relief prior to
disclosure of health care information, notwithstanding any
limitations in Wis. Stat. § 19.356 on pre-disclosure relief.
See majority op., ¶¶16-17. If the individuals' claims were
permitted to proceed at the circuit court, they could have
represented all individuals affected statewide in a class
action. See Wis. Stat. § 803.08(1) (describing the
prerequisites for obtaining class certification); Mussallem v.
Diners' Club, Inc., 69 Wis. 2d 437, 445, 230 N.W.2d 717 (1975)
("[I]t [is] in the public interest as declared by the
legislature to permit class actions in those cases which meet
the [statutory] criteria . . . .").
¶32 There is no indication that the Associations' motion
to amend was improper, untimely, or in any way outside the
normal course of behavior in civil cases. It was filed at the
very beginning of litigation, before the parties had engaged in
any discovery and the defendants had developed any reliance on
the nature of the complaint. The most significant amendment was
adding new parties; the facts and the legal claim did not
change. At the time the motion to amend was filed, the
Associations were facing no court order mandating dismissal, nor
a pending motion to dismiss. There are no signs of gamesmanship
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on the part of the Associations and no indication of unfairness
to the defendants.
¶33 Under Wis. Stat. § 802.09, it is the established
policy of this state that leave to amend pleadings must be
"freely given at any stage of the action when justice so
requires." § 802.09(1). Like most American courts, we rejected
long ago highly formalistic and technical pleading procedures.
We abandoned a prior system that punished unknowing plaintiffs
for minor procedural errors with outright dismissal on the
merits. Korkow v. General Cas. Co. of Wis., 117 Wis. 2d 187,
193, 344 N.W.2d 108 (1984). Now, pleadings are intended to
provide the defendant "reasonable notice . . . [of] the nature
of the claim," not as a means to set legal minefields and
dismiss valid lawsuits. CED Properties, LLC v. City of Oshkosh,
2014 WI 10, ¶21, 352 Wis. 2d 613, 843 N.W.2d 382. The first and
foremost goal of the pleading stage is to encourage resolution
of the case on the merits. Foman v. Davis, 371 U.S. 178, 181-82
(1962) ("It is too late in the day and entirely contrary to the
spirit of the Federal Rules of Civil Procedure [on which
Wisconsin rules of civil procedure are modeled] for decisions on
the merits to be avoided on the basis of such mere
technicalities."). There is a strong preference for permitting
amendments to a complaint, and § 802.09 is "liberally construed
to permit the amendment of the pleadings so as to present the
entire controversy." Tri-State Home Improvement Co., Inc. v.
Mansavage, 77 Wis. 2d 648, 658, 253 N.W.2d 474 (1977).
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¶34 After the Associations had successfully defeated the
motions to dismiss and had filed a valid motion to amend, the
Journal Sentinel filed a petition for leave to appeal the
circuit court's order denying its motion to dismiss. The State
also filed a petition for leave to appeal the circuit court's
orders denying its motion to dismiss and granting the temporary
injunction. The Associations opposed the petitions for leave
noting that given the pending motion to amend the complaint, an
interlocutory appeal would not serve to dispose of the case.
Given our liberal pleading standards, the Associations knew they
had a right to have their claims heard on the merits; they
complied with standard civil practice, and the defendants were
not in any way prejudiced or deprived of adequate notice. Tri-
State Home Improvement, 77 Wis. 2d at 658; Hess v. Fernandez,
2005 WI 19, ¶23, 278 Wis. 2d 283, 692 N.W.2d 655 (explaining
that a defendant can overcome the preference for amendments by
demonstrating "undue delay, [dilatory] motive, and prejudice"
(citing Foman, 371 U.S. at 182)).
¶35 While decisions to grant or deny temporary injunctions
are frequently reviewed on interlocutory appeal, e.g., Werner v.
A.L. Grootemaat & Sons, Inc., 80 Wis. 2d 513, 259 N.W.2d 310(1977), interlocutory appeal of denials of motions to dismiss,
routine motions that proliferate common civil practice, are
highly restricted. The court has recognized that granting
interlocutory appeal for non-orders are permitted only in
"special circumstances," given that they carry "considerable
disadvantages." Heaton v. Larsen, 97 Wis. 2d 379, 395-96, 294
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N.W.2d 15 (1980); State v. Jendusa, 2021 WI 24, ¶20, 396
Wis. 2d 34, 955 N.W.2d 777. Interlocutory appeals are "inimical
to the effective and fair administration [of the judicial
system]" and encourage "piecemeal litigation." State v. Jenich,
94 Wis. 2d 74, 80, 288 N.W.2d 114 (1980); see also Firestone
Tire & Rubber Co. v. Risjord, 449 U.S. 368, 374 (1981)
(explaining that requiring a final judgment prior to appeal
"emphasizes the deference that appellate courts owe to the trial
judge as the individual initially called upon to decide the many
questions of law and fact that occur in the course of a trial,"
prevents "piecemeal appeals [which] would undermine the
independence of the district judge," and avoids "the obstruction
to just claims that would come from permitting the harassment
and cost of a succession of separate appeals from the various
rulings to which a litigation may give rise, from its initiation
to entry of judgment").
¶36 Despite the Associations having a well-established
right to have their motion to amend reviewed, and favorably
considered, the court of appeals granted the petitions for leave
to appeal, consolidated the appeals, and set the case for
accelerated briefing. Thus, the court of appeals chose to opine
on the sufficiency of a complaint that, in all likelihood, had
no remaining importance in the dispute. Once a complaint is
amended, the allegations and claims in the original complaint
have no legal effect. See Holman v. Family Health Plan, 227
Wis. 2d 478, 487, 596 N.W.2d 358 (1999) ("An amended complaint
supplants the original complaint when the amended complaint
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makes no reference to the original complaint and incorporates by
reference no part of the original complaint."); see also
Crawford v. Tilley, 15 F.4th 752, 759 (6th Cir. 2021) ("The
general rule is that filing an amended complaint moots pending
motions to dismiss." (collecting cases)). And there was no
convincing reason to deny the motion to amend.
¶37 On April 5, 2021, the court of appeals issued its
decision reversing the circuit court's orders denying the
motions to dismiss and ordering the circuit court on remand to
dismiss the complaint with prejudice and vacate the temporary
injunction. The court of appeals recognized that the
Associations had moved to amend their complaint before the
defendants filed an interlocutory appeal, but it chose not to
address the merits of that motion. The court of appeals
speculated, without citation or legal analysis, that the circuit
court could "consider . . . the propriety of such a second
amended complaint" after the case had been dismissed. Wis.
Mfrs. & Com. v. Evers, 2021 WI App 35, ¶46 n.11, 398
Wis. 2d 164, 960 N.W.2d 442.
¶38 The court of appeals' mandate left the future of the
case in serious uncertainty. Nonetheless, what is clear is the
court of appeals dissolved the circuit court's injunctive order
that prevented disclosure of sensitive health care information.
Even if the motion to amend before the circuit court is valid,
and even if the second amended complaint would justify immediate
injunctive relief, the orders directed at the State would be
vacated by the court of appeals' decision. In a matter of
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hours, the medical information of thousands of Wisconsites could
be released. If a circuit court showed as much disregard for a
motion to amend and the liberal pleading system as the court of
appeals did in this case, there would be a very strong case for
reversible error. See, e.g., Tri-State Home Improvement, 77
Wis. 2d at 658-61 (concluding that a circuit court erroneously
exercised its discretion when it denied a motion to amend the
pleadings filed after trial in the case began, because newly
added claims would not have surprised the defendants, the new
claims could have been successful, and the amendments would not
materially prejudice the defendants). When the court of appeals
speaks in the future of Wisconsin's favorable posture toward
motions to amend, it will certainly have less ground to stand
on.
¶39 Interlocutory appeal is an extraordinary action and
ought not be granted lightly by the court of appeals. The court
of appeals erred in failing to consider the status of the case
below, with a pending motion to file a second amended complaint
to include two individual plaintiffs. The court of appeals
never should have granted interlocutory appeal. To conclude
dismissal was appropriate, it undertook extraordinary measures
to close judicial relief to individuals who have the right to
contest the release of this medical information. It short-
circuited the standard judicial process and deprived the
Associations the ability to present their full case on the
merits.
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¶40 While the majority, like the court of appeals, gives a
minor gesture to the pending motion to amend, it leaves the
remaining litigation in substantial uncertainty. Majority op.,
¶5 n.7. Should the motion to amend be considered as it would
have been if the court of appeals had not seized jurisdiction?
The Associations did nothing wrong here; they filed a motion to
amend prior to any adverse court order. Or, given that this
court is mandating dismissal with prejudice of the case, must
the Associations meet the higher burden of amending the
complaint after entry of a dismissal order? Tietsworth v.
Harley-Davidson, Inc., 2007 WI 97, ¶26, 303 Wis. 2d 94, 735
N.W.2d 418 ("The presumption in favor of amendment . . . applies
logically only before judgment has been entered in the case."
(citing Mach v. Allison, 2003 WI App 11, ¶27, 259 Wis. 2d 686,
656 N.W.2d 766)). Do the Associations, the named plaintiffs in
this case, have standing to request the addition of third
parties when the Associations themselves have no claim?
¶41 These problems would not have come about if the court
of appeals had reserved judgment and allowed the circuit court
to do its job. Instead, it impatiently removed this case from
the circuit court before a pending and facially valid motion to
amend was resolved. The court of appeals' actions in this case
are extraordinary and clearly erroneous. The individuals
included in the second amended complaint can simply file another
lawsuit after dismissal of this case. Thus, despite the
hundreds of pages of briefing, hours of oral argument time, and
months of attorney fees for the litigants and taxpayers, this
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appellate process as a whole may not advance lower court
proceedings in material way. Likely, the only significant
result of this appeal is that, during the forthcoming period of
uncertainty, between issuance of this decision and the
resolution of the motion to amend (or the filing of a new
lawsuit), the State has the green light to release massive
amounts of healthcare information. For that period of time,
irreparable and illegal harm can be done.
¶42 The decisions of the court of appeals and today, the
majority, focus solely on whether the Associations are the
proper parties to challenge the State's release of information
on positive COVID-19 tests. This entire appeal could have been
avoided if the pending motion to amend were granted. While some
may dislike the Associations or their claims, every jurist
should be concerned by appellate courts engaging in divide-and-
conquer procedural tactics, carving up complaints and dismissing
claims before a full merits review. Here, the Associations'
claims are dismissed on largely procedural grounds, but no
guidance is given to the litigants or the public as to whether
the State's proposed disclosures are actually legal. The
decisions by the court of appeals and majority in this case
endorse substantial procedural barriers for the named plaintiffs
and a reduced body of caselaw to guide decision making in
Wisconsin.
¶43 The majority refuses to address the pending motion to
amend, but the analysis the majority does provide is equally
concerning. In Wisconsin, standing is a low bar. McConkey v.
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Van Hollen, 2010 WI 57, ¶15, 326 Wis. 2d 1, 783 N.W.2d 855.
Standing is to be construed broadly in favor of those seeking
access to the courts. Contrary to this court's precedent, the
court of appeals concluded that a legally protectable interest
for purposes of a Declaratory Judgments Act lawsuit and
establishing standing are different things. Wis. Mfrs. & Com.,
398 Wis. 2d 164, ¶¶27-29. The court of appeals erred. There
need not be a statutory or constitutional provision at issue in
a Declaratory Judgments Act case. Of course, declaratory
judgments can be brought under common law rights, such as those
established in contract law. See, e.g., F. Rosenberg Elevator
Co. v. Goll, 18 Wis. 2d 355, 118 N.W.2d 858 (1963). In fact, if
establishing a legally protectable interest for purposes of the
declaratory judgment is not the same as standing, then the
Declaratory Judgments Act four-factor test would not require any
showing of standing. See Foley-Ciccantelli v. Bishop's Grove
Condominium Ass'n, Inc., 2011 WI 36, ¶47, 333 Wis. 2d 402, 797
N.W.2d 789 ("[T]he concepts of standing and justiciability (a
legally protectable interest) have been viewed as overlapping
concepts in declaratory judgment cases.").
¶44 Here, the Associations have adequately alleged
standing. Moreover, the second amended complaint, if allowed,
states more, not less, in terms of standing. The second amended
complaint alleges a violation of a medical records statute. The
second amended complaint alleges that the release of
confidential medical information would violate Wis. Stat.
§ 146.82 and its confidentiality requirement. The allegations
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of the second amended complaint are that the planned release of
these confidential documents does not fall under any exception
in § 146.82. More needs to be known and the merits must be
reviewed before this lawsuit can be dismissed. The public
records statute alone does not dictate the answer. The majority
does nothing to reconcile the conflict the public records
statute has with the medical records provisions.
¶45 When the court of appeals concluded that the
Associations lacked taxpayer standing, its reasoning erred with
respect to the implausibility standard. The majority must
recognize that at this stage of the proceedings, alleged facts
must be accepted as true, and the pleadings must be construed
liberally such that any reasonable inferences arising from those
facts are construed in favor of the non-moving party. Data Key
Partners v. Permira Advisers LLC, 2014 WI 86, ¶21 n.9, 356
Wis. 2d 665, 849 N.W.2d 693 ("Factual assertions are evidenced
by statements that describe: who, what, where, when, why, and
how." (quotations omitted)).
¶46 In addition, for this procedural error regarding the
proper standard to apply, this court errs: without analyzing or
considering any developed facts or legal analysis, this court
affirms the court of appeals' decision which held, for the first
time in Wisconsin, as a matter of law, information within
patient health care records is somehow not confidential so long
as the government obtains the information. The court of appeals
reasoned that Wisconsin's healthcare privacy statutes do not
protect "information that is merely derived from a record."
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Wis. Mfrs. & Com., 398 Wis. 2d 164, ¶24 n.9. Absent
extraordinary circumstances where the information appears in a
"functional[ly] equivalent" manner as the original record, under
the court of appeals' reasoning, the State can publicly disclose
private healthcare records if the information therein is simply
restated in a government record. Id. Notably, the court of
appeals concluded the private COVID-19 testing information at
issue in this case was not subject to confidentiality
protections. Id. Under the plain text of Wis. Stat. § 146.82,
"[a]ll patient health care records shall remain confidential."
There is no exception for healthcare records that have been
restated in government records. Absent informed consent of the
patient or person authorized by the patient, healthcare records
are indeed confidential. § 146.82(1); Johnson v. Rogers Mem'l
Hosp., Inc., 2005 WI 114, ¶33, 283 Wis. 2d 384, 700 N.W.2d 27.
The majority makes no effort to explain how this provision can
be reconciled with the public records law or the court of
appeals' decision.
¶47 Uncorrected, as the majority has now done, the court
of appeals' interpretation of Wis. Stat. § 146.82 can have
devastating statewide consequences for medical privacy.
Consider whether this request were for patients with certain
other diseases or private conditions. It could be someone who
suffers a miscarriage, or has cancer. It could be a person who
has a sexually transmitted disease, a sex crime victim, or an
individual who suffers from mental illness. Under the
majority's interpretation, all may have intimate healthcare
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information disclosed to the public. All that would be required
is that the government somehow garners the information, and
there can be no objection to the release of that information.
The second amended complaint specifically lists individuals who
would be harmed by the release of this information, but the
majority precludes them from potentially seeking any relief. If
the medical information is released when the Associations are
dismissed and the injunction in this case is lifted, the
individuals will have no means to obtain meaningful relief.
Once their information is made public, the individuals cannot
later make the information private.
¶48 In short, the majority affirms the court of appeals'
decision, which is riddled with error. The majority opinion
today goes further to profoundly impact the confidentiality of
individual patient records. Pleadings are to be liberally
construed and here, the majority does not even address the fact
that any action by the court of appeals was premature because
the pleadings below were not fully complete. At this stage in
the proceedings, it is error to dismiss this case and close the
courthouse doors to those seeking to protect private
confidential information. To determine that the only actual
records protected are the medical records themselves, and not
the information contained therein, has the potential for
sweeping negative consequences. Before today's decision by this
court, the information contained in medical records was
obviously confidential, as well as the record itself. An
individual could object to release of confidential information.
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¶49 However, by affirming the court of appeals, the
majority has determined that because the government has gathered
information from individuals' confidential records, that
information loses confidentiality. The individual who is the
subject of that information has no right to review or object to
its release. This court has permitted the weaponization of
private health information, so long as the government has
gathered that information. It has also incentivized
gamesmanship by dismissing a lawsuit on procedural grounds
before the plaintiffs have had a full and complete opportunity
to amend their complaint and provide arguments on the merits.
This is a dangerous course for the citizens of the state of
Wisconsin. It is also contrary to the law. At a minimum, this
lawsuit should not be dismissed. Interlocutory relief was
incorrectly granted by the court of appeals, and the circuit
court below should be permitted to proceed with the case and
determine whether the complaint should be amended.
¶50 For the foregoing reasons, I respectfully dissent.
¶51 I am authorized to state that Justices PATIENCE DRAKE
ROGGENSACK and REBECCA GRASSL BRADLEY join this dissent.
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