Wisconsin Mfrs. & Commerce v. Evers

• Decision Date: 05 April 2021
• Docket Number: Appeal Nos. 2020AP2081-AC,2020AP2103-AC
• Parties: WISCONSIN MANUFACTURERS AND COMMERCE, Muskego Area Chamber of Commerce and New Berlin Chamber of Commerce and Visitors Bureau, Plaintiffs-Respondents, 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. Wisconsin Manufacturers and Commerce, Muskego Area Chamber of Commerce and New Berlin Chamber of Commerce and Visitors Bureau, Plaintiffs-Respondents, 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-Appellants, Milwaukee Journal Sentinel, Intervenor.
• Court: Wisconsin Court of Appeals

960 N.W.2d 442

2021 WI App 35

WISCONSIN MANUFACTURERS AND COMMERCE, Muskego Area Chamber of Commerce and New Berlin Chamber of Commerce and Visitors Bureau, Plaintiffs-Respondents,^†

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.

Wisconsin Manufacturers and Commerce, Muskego Area Chamber of Commerce and New Berlin Chamber of Commerce and Visitors Bureau, Plaintiffs-Respondents,^†

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-Appellants,Milwaukee Journal Sentinel, Intervenor.

Appeal Nos. 2020AP2081-AC

2020AP2103-AC

Court of Appeals of Wisconsin.

Oral Argument: March 24, 2021

Opinion Filed: April 5, 2021

On behalf of the defendants-appellants, the cause was submitted on the briefs of Clayton P. Kawski and Anthony D. Russomanno, assistant attorney generals, and Joshua L. Kaul, attorney general. There was oral argument by Clayton P. Kawski.

On behalf of the intervenor-appellant, the cause was submitted on the briefs of and oral argument by Thomas C. Kamenick of Wisconsin Transparency Project, Kamenick Law Office, LLC, Port Washington.

On behalf of the plaintiffs-respondents, the cause was submitted on the brief of Ryan J. Walsh and Amy C. Miller of Eimer Stahl LLP, Madison. There was oral argument by Ryan J. Walsh.

A nonparty brief was filed by Robert I. Fassbender of Great Lakes Legal Foundation, Madison, for National Federation of Independent Business, Wisconsin Restaurant Association, and Restaurant Law Center.

Nonparty briefs were filed by Matthew M. Fernholz of Cramer, Multhauf & Hammes, LLP, Waukesha, for Waukesha County Business Alliance, Oshkosh Chamber of Commerce, Racine Area Manufacturers and Commerce, Wisconsin Grocers Association, Venture Cooperative, and Wisconsin Dairy Alliance.

A nonparty brief was filed by Natalie A. Harris of Baron Harris Healey, Chicago, Illinois, for Reporters Committee for Freedom of the Press and 13 media organizations.

A nonparty brief was filed by April Rockstead Barker of Schott, Bublitz & Engel S.C., Waukesha, for Gannett Co., Inc. d/b/a USA Today Network-Wisconsin, d/b/a Green Bay Press-Gazette, and Doug Schneider.

Before Fitzpatrick, P.J., Blanchard, and Kloppenburg, JJ.

KLOPPENBURG, J.

¶1 Three trade associations whose members are businesses in Wisconsin—Wisconsin Manufacturers and Commerce (WMC), Muskego Area Chamber of Commerce, and New Berlin Chamber of Commerce and Visitors Bureau (collectively, the Associations)—commenced this declaratory judgment action seeking to enjoin the planned release of certain records by the Wisconsin Department of Health Services in response to public records requests, including some by the Milwaukee Journal Sentinel.¹ The complaint alleges that the requested records comprise a list of the names of "all Wisconsin businesses with over twenty-five 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 numbers of such employees at each business. The complaint alleges that the information contained in the list is derived from confidential medical records that cannot be disclosed under WIS. STAT. § 146.82. The complaint further alleges that, if any of the Associations’ member businesses are on the list, its release would violate the privacy interests of the member businesses’ employees, harm the member businesses’ reputations, and result in the unlawful expenditure of WMC's and the member businesses’ state tax payments related to the compilation and planned release of the list. The circuit court denied motions by the State and the Journal Sentinel to dismiss and granted the Associations’ motion for a temporary injunction.

¶2 This court granted separate petitions that were filed by the State and the Journal Sentinel for leave to appeal the circuit court's non-final order denying their motions to dismiss and consolidated the two appeals.² We interpret the applicable statutes and conclude that the Associations’ complaint fails to state a claim upon which relief can be granted. Our conclusion is based on three related but independently sufficient reasons. These reasons are all primarily rooted in the fact that the Associations fail to show that their member businesses have a legally protectable interest that could justify the relief they seek. First, an analysis of the plain language of the applicable statutes reveals that the Associations’ complaint fails to state a legally protectable interest, thereby rendering declaratory judgment unavailable; this is so even if we assume without deciding that a legally protectable interest may be established purely based on a standing doctrine. Second, the Associations have failed to allege plausible facts that could establish harm to a purported legally protectable interest. Third, the Associations cannot overcome the general prohibition in WIS. STAT. § 19.356(1) against a court challenge to the planned release of public records by a governmental authority. Therefore, the State and the Journal Sentinel are entitled to dismissal of the Associations’ complaint. Accordingly, we reverse and direct the circuit court on remand to dismiss the complaint with prejudice and to vacate the temporary injunction order.

BACKGROUND

¶3 The following background summary consists entirely of allegations and legal conclusions made by the Associations in the complaint. On September 30, 2020, WMC was informed by Secretary Brennan that on October 2, 2020, in response to public records requests, the State planned to release a list of "the names 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 numbers of such employees at each business.³ On October 1, 2020, the Associations filed their initial complaint, and they subsequently filed a first amended complaint, seeking declaratory relief under WIS. STAT. §§ 146.84, 806.04, and 813.01, in the form of an injunction barring planned release of the requested list.

¶4 The Associations allege as follows: some information in the list that the State plans to release comes from "medical diagnostic tests" in individual employees’ medical records, which the Associations assert "is protected, confidential health care information that cannot be released without the informed consent of each individual" employee patient under WIS. STAT. § 142.82; releasing the list would permit identification of the employee patients; release of the list of the businesses’ names would violate their member businesses’ employees’ right to privacy, harm their member businesses’ reputations, and cause their member businesses and WMC pecuniary losses as taxpayers; the Associations are asserting the claims in the complaint "on behalf" of their member businesses.

¶5 The circuit court issued a temporary restraining order enjoining the planned release as to all businesses named on the list regardless of whether a named business is a member of any of the Associations. The Associations moved for a temporary injunction, and the State and the Journal Sentinel each moved to dismiss the complaint. After briefing and oral argument, the court in an oral ruling denied the motions to dismiss and granted the Associations’ motion for a temporary injunction, again as to all businesses regardless of whether they are members of the Associations. The court entered orders consistent with its ruling on December 4, 2020.

¶6 On December 23, 2020, and December 28, 2020, the Journal Sentinel and the State respectively filed petitions for leave to appeal the circuit court's order denying their motions to dismiss. By order dated January 20, 2021, this court granted the petitions, consolidated the appeals, and set an expedited schedule for briefing and oral argument. The parties completed briefing on March 12, 2021 and this court convened an oral argument on March 24, 2021.

DISCUSSION

¶7 The State and the Journal Sentinel appeal the denial of their motions to dismiss the Associations’ complaint. The complaint seeks to enjoin the planned release, in response to public records requests, of a list of the names of businesses in Wisconsin with over twenty-five employees that had at least two employees who either tested positive for COVID-19 or had close case contacts investigated by contact tracers and the numbers of such employees at each business. The State and the Journal Sentinel argue that the Associations lack any legal basis to bring this declaratory judgment action and that the public records law bars it. The Associations argue that they may properly bring this declaratory judgment action based on the patient health care records confidentiality law and several standing doctrines.

¶8 As we explain further below, we follow the same analytical approach used by our supreme court in Moustakis v. DOJ , 2016 WI 42, ¶3 n.2, ¶5, 368 Wis. 2d 677, 880 N.W.2d 142, and Voters with Facts v. City of Eau Claire , 2018 WI 63, ¶4, 382 Wis. 2d 1, 913 N.W.2d 131. Following that approach here, we interpret the applicable statutes and first conclude that the Associations’ complaint fails to state a claim upon which relief can be granted because the statutes on which the Associations rely to support their declaratory judgment action " ‘[do] not give legal recognition to the interest’ " they assert. Moustakis , 368 Wis. 2d 677, ¶3 n.2, 880 N.W.2d 142 (quoting Wisconsin's Envt'l Decade, Inc. v. Pub. Serv....