KRAEGE v. BUSALACCHI

• Decision Date: 04 November 2009
• Docket Number: No. 09-cv-352-vis.,09-cv-352-vis.
• Citation: 687 F. Supp.2d 834
• Parties: Margaret M. KRAEGE, Kelly C. Tomko, and Stephanie A. Tomko, Plaintiffs, v. Frank BUSALACCHI, Secretary, Wisconsin Department of Transportation, Lynne Judd, Administrator, Wisconsin Division of Motor Vehicles, and John Does 1-10, Defendants.
• Court: U.S. District Court — Western District of Wisconsin

687 F.Supp.2d 834

Margaret M. KRAEGE, Kelly C. Tomko, and Stephanie A. Tomko, Plaintiffs, v. Frank BUSALACCHI, Secretary, Wisconsin Department of Transportation, Lynne Judd, Administrator, Wisconsin Division of Motor Vehicles, and John Does 1-10, Defendants.

No. 09-cv-352-vis.¹

United States District Court, W.D. Wisconsin.

November 4, 2009.

Don P. Saxton, Saxton Law Firm, Mitchell Burgess, Burgess & Lamb, P.C., Ralph Phalen, Ralph K. Phalen, Inc., Kansas City, MO, Jordan C. Loeb, Cullen Weston Pines & Bach LLP, Madison, WI, for Plaintiffs.

John R. Sweeney, Charlotte Gibson, Wisconsin Department of Justice, Madison, WI, for Defendants.

OPINION AND ORDER

BARBARA B. CRABB, District Judge.

In this civil class action, plaintiffs Margaret M. Kraege, Kelly C. Tomko and Stephanie A. Tomko contend that defendants Frank Busalacchi, Lynne Judd and John Does 1-10 released plaintiffs' personal information in violation of the Driver's Privacy Protection Act, 18 U.S.C. §§ 2721-25. Plaintiffs assert claims against defendants in their individual capacities directly under the Act and under 42 U.S.C. § 1983. Jurisdiction is present. 28 U.S.C. § 1331.

Before the court is defendants' motion to dismiss plaintiffs' claims. Defendants contend that sovereign immunity bars plaintiffs' claims under the Driver's Privacy Protection Act and that plaintiffs cannot sue under § 1983 because the Act provides a comprehensive mechanism for relief. The motion will be granted. It is the state's policies, and not defendants' implementation of them, that are at the heart of plaintiffs' complaint. Thus, plaintiffs' claims under the Act are substantially against the State of Wisconsin and barred by the doctrine of sovereign immunity. Ordinarily, such a conclusion would not prevent plaintiffs from pursuing injunctive relief under § 1983, but in this case, any such claim fails because the Act provides a comprehensive mechanism for relief that does not contemplate enforcement of plaintiffs' rights under § 1983.

Defendants attached documents to their motion describing the state's policies for releasing Wisconsin driver information. They contend that the documents may be treated as part of the complaint because they are referred to in the complaint and they are central to plaintiffs' claims. Plaintiffs do not disagree. Therefore, the documents will be treated as part of the complaint. Venture Associates Corp. v. Zenith Data Systems Corp., 987 F.2d 429, 431 (7th Cir.1993) ("Documents that a defendant attaches to a motion to dismiss are considered part of the pleadings if they are referred to in the plaintiff's complaint and are central to its claim.") (citations omitted). I draw the following facts from plaintiffs' complaint and the documents attached to defendants' motion.

ALLEGATIONS OF FACT

Plaintiffs Margaret M. Kraege, Kelly C. Tomko and Stephanie A. Tomko are residents of Wisconsin. Plaintiffs seek to represent a class of individuals defined as

All individuals licensed to drive in the State of Wisconsin anytime from June 4, 2004 forward, whose personal information, as defined by 18 U.S.C. § 2725(3), was disclosed by the Wisconsin Department of Transportation, the Wisconsin Division of Motor Vehicles, or any agent, officer, employee, or contractor, thereof, to ShadowSoft or PublicData, or any agent of ShadowSoft or PublicData.

Plaintiffs estimate that the proposed class could include several million members.

Defendants Frank Busalacchi is Secretary of the Wisconsin Department of Transportation, and Lynne Judd is Administrator of the Wisconsin Division of Motor Vehicles. The John Doe Defendants include directors, employees, agents and contractors of the Department of Transportation and the Division of Motor Vehicles.

Defendants' duties include, among other things, collecting and maintaining Wisconsin driver information. As early as June 2001, defendants released information to ShadowSoft, a company specializing in public records distribution. ShadowSoft sold the information to PublicData, a company that aggregates consumer data and sells it over the internet. Public Data made the information available for search and sale on the internet. The state's policies permit release of driver information to purchasers who purport to use it for purposes permissible under the Act. They require only a cursory review of the purchasers' intended use of the information. However, the policies do require defendants to inform purchasers of the liability arising from misuse of the information and advise purchasers to seek legal counsel if there is a question about the permissibility of their intended use.

OPINION

A. Sovereign Immunity and the Driver's Privacy Protection Act

The doctrine of sovereign immunity prohibits suits against the state or its agencies for monetary damages or equitable relief. College Savings Bank v. Florida Prepaid Postsecondary Education Expense Board, 527 U.S. 666, 670, 119 S.Ct. 2219, 144 L.Ed.2d 605 (1999); Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 100, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984). The state's sovereign immunity can be limited in only a few circumstances: (1) when Congress abrogates the state's immunity pursuant to a valid exercise of power, Tennessee v. Lane, 541 U.S. 509, 533-34, 124 S.Ct. 1978, 158 L.Ed.2d 820 (2004); (2) when the state makes an express and voluntary waiver of the immunity, Clark v. Barnard, 108 U.S. 436, 447-48, 2 S.Ct. 878, 27 L.Ed. 780 (1883), which make take the form of participation in a federal program clearly conditioned on such a waiver, Edelman, 415 U.S. at 673-74, 94 S.Ct. 1347; or (3) by the state's consent to suit in federal court, Lapides v. Board of Regents of the Univ. System of Georgia, 535 U.S. 613, 122 S.Ct. 1640, 152 L.Ed.2d 806 (2002).

Plaintiffs contend that the doctrine of sovereign immunity does not bar their suit because they are asserting claims only against defendants in their individual capacities for "knowingly" releasing driver information when they "knew, or reasonably should have known" that doing so violated plaintiffs' rights under the Act.

Courts routinely recognize circumstances in which sovereign immunity does not bar suits brought against a state's officials in their individual capacities. As plaintiffs point out, such claims are not precluded even though damages may be paid from the state treasury and may exceed defendants' ability to pay, and even though the state has chosen to indemnify its employees. Pennhurst, 465 U.S. at 132, 104 S.Ct. 900 (internal citations omitted). This is all true, but plaintiffs' complaint faces another problem: sovereign immunity bars suits against officials sued in their individual capacities if the suits are substantially against the state. Idaho v. Coeur d' Alene Tribe of Idaho, 521 U.S. 261, 269, 117 S.Ct. 2028, 138 L.Ed.2d 438 (1997) (holding that tribe could not sue state of Idaho unless suit fell within for certain suits seeking declaratory and injunctive relief against state officers in their individual capacities). Although "indirect effects are not enough," the doctrine of sovereign immunity bars a suit "nominally against state employees in their individual capacities that demonstrably has the identical effect as a suit against the state...." Luder v. Endicott, 253 F.3d 1020, 1023 (7th Cir.2001) (emphasis in original).

Plaintiffs allege only one fact in support of their contention that defendants have violated their rights: defendants participated in releasing driver information under the state's policies. Plaintiffs do not suggest that defendants engaged in any conduct that is both independent of what the states's policies require and a violation of the Act.

This makes plaintiffs' case similar to Luder, 253 F.3d at 1022. In that case, 145 plaintiffs sought payment for pre- and post-work shifts, including minimum wage and overtime pay. The Court of Appeals for the Seventh Circuit held that plaintiffs' suit against a state official was actually a suit against the state because plaintiffs sought "to accomplish exactly what they would accomplish were they to maintain this suit against the state and did so successfully:... to force the state to accede to their view of the Act and abide by it." Id. at 1024 (emphasis supplied). Under the circumstances of the case, the individual defendants would be unable to pay and would either "declare bankruptcy and quit;" or "declare bankruptcy and comply with the law as interpreted by the court." Id.

The same result would occur in this case. A judgment in plaintiffs' favor could require defendants to make statutory payments of $2500 to each of the millions of potential class members who hold Wisconsin driver's licenses now or have held them at any time during 7th class period. These are statutory damages only and do not include punitive damages, attorney fees and costs and other equitable relief. 18 U.S.C. § 2724(b). As in Luder, defendants would be forced to file bankruptcy and either quit or comply with the court's interpretation of the Act. The result would be to force the state "to accede to their view of the Act." Luder, 253 F.3d at 1024, achieving for plaintiffs a change in the law itself.

Plaintiffs contend that this case differs from Luder in that it challenges not the state's policies, but rather the actions of state officials who are misreading the state's policies. In Luder, the court of appeals acknowledged that, where state officials misread and misapply the law in favor of the state, a suit against those state officials in their individual capacities "would advance rather than thwart state policy...." Id. In this case, plaintiffs contend that Wisconsin's policies direct the individual defendants to comply with the Act, but that the individual defendants are violating the Act. A closer examination of the policies and plaintiffs' allegations belies plaintiffs' contention that this is a case about state officials misreading the state's policies....