Wisconsin Manufacturers and Commerce v. Tony Evers

2022 WI 38, 974 N.W.2d 753, 977 N.W.2d 374, 401 Wis. 2d 699

• Court: Wisconsin Supreme Court
• Decided: June 7, 2022
• Docket: 2020AP002103-AC
• Status: Published

Opinion

2022 WI 38

SUPREME 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 442 PDC 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 38 NOTICE 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.

1 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. §§ 146.81

and 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.

¶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

¶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

2 Nos. 2020AP2081-AC & 2020AP2103-AC.akz

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."

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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