Wisconsin Manufacturers and Commerce v. Tony Evers
977 N.W.2d 374
Wis.2022Background
- DHS compiled a list of Wisconsin businesses with >25 employees that had at least two employees test positive for COVID-19 or had close contacts investigated by contact tracers, including counts for each business, and intended to release it in response to public-records requests.
- Wisconsin Manufacturers and Commerce (WMC) and two chambers sued under the Declaratory Judgments Act seeking a declaration and injunction, alleging the release would violate patient health-care confidentiality statutes (Wis. Stat. ch. 146) and public-records balancing interests.
- The circuit court issued a temporary restraining order and denied motions to dismiss; the Journal Sentinel intervened and the State sought dismissal.
- The court of appeals reversed the circuit court, holding WMC failed to state a claim and that Wis. Stat. § 19.356(1) generally bars pre-release judicial review of records releases.
- The Wisconsin Supreme Court affirmed: § 19.356(1) unambiguously eliminated the common-law pre-release review rights, and the Declaratory Judgments Act does not qualify as a statute that "otherwise provide[s]" for pre-release review.
- A dissent argued the appeal was premature given a pending motion to amend to add individual plaintiffs (who could bring §146.84 claims), warned of medical-privacy consequences, and criticized the procedural handling of the case.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does Wis. Stat. § 19.356(1) bar pre-release judicial review of WMC's declaratory-judgment challenge to DHS's planned records release? | § 19.356(1) should not preclude WMC's declaratory action because otherwise many affected parties would have no adequate remedy. | § 19.356(1) generally precludes pre-release review; WMC's claims are barred unless a specific statutory exception applies. | Held: § 19.356(1) bars WMC's pre-release challenge; the complaint fails to state a claim. |
| Does the Declaratory Judgments Act (Wis. Stat. § 806.04) "otherwise provide[]" for pre-release judicial review under § 19.356(1)? | The Declaratory Judgments Act is a general remedy that should permit pre-release declaratory relief when no other adequate remedy exists. | The Act is a broad procedural statute that does not expressly authorize pre-release injunctions; specific statutes provide those remedies when intended. | Held: The Declaratory Judgments Act does not fall within § 19.356(1)’s exception and cannot be used to circumvent the statutory bar. |
| Did § 19.356(1) abrogate the common-law pre-release notice and review rights recognized in Woznicki and Milwaukee Teachers? | WMC contended § 19.356 applies only to the types of employment records at issue in those cases and thus did not eliminate other common-law rights. | The statute expressly and unambiguously eliminated any common-law entitlement to pre-release judicial review except as statutorily provided. | Held: § 19.356(1) clearly and unambiguously abrogates the common-law pre-release rights. |
| Procedural: Was interlocutory appellate review appropriate given a pending motion to amend to add individual plaintiffs who could seek § 146.84 injunctive relief? | The pending motion to amend (to add individuals authorized by §146.84) made interlocutory appellate intervention premature and risked denying a viable path to pre-release relief. | The appellate courts proceeded; the Supreme Court resolved the statutory-bar issue assuming WMC had standing. | Held: The majority did not accept the prematurity argument and resolved the statutory question; the dissent criticized this procedural course. |
Key Cases Cited
- Woznicki v. Erickson, 202 Wis. 2d 178, 549 N.W.2d 699 (1996) (recognized common-law right of public employees to pre-release notice and review).
- Milwaukee Teachers' Educ. Ass'n v. Milwaukee Bd. of Sch. Dirs., 227 Wis. 2d 779, 596 N.W.2d 403 (1999) (extended pre-release protections for certain employee records).
- Moustakis v. Dep't of Justice, 368 Wis. 2d 677, 880 N.W.2d 142 (2016) (discussed scope and legislative response limiting pre-release review).
- Lister v. Board of Regents, 72 Wis. 2d 282, 240 N.W.2d 610 (1976) (explained when declaratory relief is available relative to statutory remedies).
- Data Key Partners v. Permira Advisers LLC, 356 Wis. 2d 665, 849 N.W.2d 693 (2014) (pleading standards and de novo review on motion to dismiss).
- State ex rel. Bilder v. Township of Delavan, 112 Wis. 2d 539, 334 N.W.2d 252 (1983) (custodian, not subject, decides public access to records).