author: DEININGER, J.

text:
    Kraft Foods, Inc., Oscar Mayer Foods Division, Petitioner-Respondent, v. Wisconsin Department of Workforce Development, Equal Rights Division, Respondent-Co-Appellant, Randy Maynard, Nancy Ealey, Donald Bledsoe, Renee Wedvick, Kurt Voiss, Gerald Weisensel, Bradley Rice, and Lee Burrell, Interested Parties-Appellants.
    Court of Appeals

      No. 00-1918.

      Submitted on briefs December 13, 2000.

    Decided February 22, 2001.

    2001 WI App 69
    (Also reported in 625 N.W.2d 658.)

      On behalf of the respondent-co-appellant, the cause was submitted on the briefs of Richard B. Moriarty, assistant attorney general, and James E. Doyle, attorney general.
    On behalf of the interested parties-appellants, the cause was submitted on the briefs of John C. Talis of Shneidman, Myers, Dowling, Blumenfield, Ehlke, Hawks & Domer, Madison.
    On behalf of the petitioner-respondent, the cause was submitted on the brief of Michael H. Auen, Daniel A. Kaplan and Sharon K. Mollman Elliott of Foley & Lardner, Madison.
    Before Dykman, P.J., Vergeront and Deininger, JJ.

      Petition to review denied.

   DEININGER, J.

¶ 1. The Department of Workforce Development and eight individual claimants appeal a circuit court order which reversed the department's determination that the claimants' employer had violated the Wisconsin Family and Medical Leave Act (WFMLA). At issue is whether the department correctly concluded that the claimants could substitute paid sick leave for family leave commencing with the first day of family leave, irrespective of a "waiting period" which applied to Oscar Mayer's contractual sick leave benefit. We conclude that we must accord the department's interpretation and application of the WFMLA great weight deference, and under that standard of review, we affirm the department's ruling. Accordingly, we reverse the order of the circuit court and direct that on remand the department's determination and order be reinstated.

BACKGROUND

¶ 2. Oscar Mayer provides sick leave benefits to its employees of one year or more pursuant to a collective bargaining agreement. The benefits consist of a number of days of partial-wage payments, with the number of days dependant on an employee's length of service. Paid sick leave does not begin until the fourth or eighth day of absence due to illness. Several Oscar Mayer employees asked to substitute paid sick leave benefits for family leave from the first day of absence for family leave. Oscar Mayer denied the substitution requests for the first few days of each family leave.

¶ 3. The present claimants and several other Oscar Mayer employees who were denied their full substitution requests filed claims with the department. Employee Kent Pagel, not a claimant in this case, brought the first claim that was heard and decided by the department. In Pagel's case, the department determined in April 1998 that Oscar Mayer's sick leave benefits were "accrued" for purposes of WlS. Stat. § 103.10(5)(b) (1999-2000), and that Oscar Mayer must allow the substitution commencing with the first day of family leave. Oscar Mayer petitioned for judicial review of the Pagel decision to the Dane County Circuit Court.

¶ 4. The present case began as a consolidation of the claims of nine employees with different types and lengths of family leaves taken in March through August 1998. After the hearing and briefing in this case, but before a decision by the department, the circuit court affirmed the Pagel decision. The department, over Oscar Mayer's objection, placed "in abeyance" a decision in this case to await the disposition of Oscar Mayer's appeal of the Pagel decision to this court. Oscar Mayer then withdrew its appeal of Pagel, and claimants moved the department for a determination in their favor based on issue preclusion. The department decided that: (1) it need not reach the merits because Oscar Mayer's withdrawal of its appeal rendered the Pagel decision final, and thus, Oscar Mayer was precluded from relitigating the issues at hand; and (2) even if issue preclusion did not apply, the claimants should prevail on the merits. The department expressly adopted its prior decision in Pagel, and it rejected Oscar Mayer's new argument that allowing substitution of the sick leave without the waiting period would impose "unanticipated costs."

¶ 5. Oscar Mayer petitioned for judicial review. The circuit court concluded that (1) the department erred in concluding that issue preclusion bars Oscar Mayer from litigating the issue of leave substitution and its "unanticipated costs"; (2) the department correctly determined that Oscar Mayer's paid sick leave benefit was "accrued" leave under Wis. Stat. § 103.10(5)(b) and Wis. Admin. Code § DWD 225.03; but (3) the department's determination permitting substitution of the paid sick leave for the first few days of a family leave was contrary to the Wisconsin Supreme Court's decision in Richland School District v. DILHR, 174 Wis. 2d 878, 901, 498 N.W.2d 826 (1993). The claimants and the department appeal the circuit court's decision and order.

ANALYSIS

¶ 6. The claimants first argue that issue preclusion bars Oscar Mayer from relitigating the central issue in this case. For reasons we discuss below, we conclude that the department did not err in interpreting and applying WlS. Stat. § 103.10. Because we agree with the claimants on the merits, we do not address their issue preclusion argument. See Benkoski v. Flood, 229 Wis. 2d 377, 388, 599 N.W.2d 885 (Ct. App.), review denied, 230 Wis. 2d 273, 604 N.W.2d 571 (Wis. Sept. 28, 1999) (No. 98-1972).

¶ 7. We review the department's decision, not that of the circuit court. Stafford Trucking, Inc. v. DILHR, 102 Wis. 2d 256, 260, 306 N.W.2d 79 (Ct. App. 1981). The initial dispute in this appeal, however, as in many involving our review of administrative agency decisions, is over the degree of deference we are to accord the department's decision. The supreme court has described the hierarchy of deference under which a court is to review an administrative agency's conclusions of law and statutory interpretation as follows:

First, if the administrative agency's experience, technical competence, and specialized knowledge aid the agency in its interpretation and application of the [law], the agency determination is entitled to "great weight." The second level of review provides that if the agency decision is "very nearly" one of first impression it is entitled to "due weight" or "great bearing." The lowest level of review, the de novo standard, is applied where it is clear from the lack of agency precedent that the case is one of first impression for the agency and the agency lacks special expertise or experience in determining the question presented.

Jicha v. DILHR, 169 Wis. 2d 284, 290-91, 485 N.W.2d 256 (1992) (citations omitted).

¶ 8. The claimants urge us to give the department's interpretation "great weight," while Oscar Mayer argues that we must review it de novo. We conclude that the department's interpretations of the WFMLA, and of its own rules implementing the act, are entitled to great weight deference. The supreme court in Richland School District reviewed the department's interpretation of the same statute and rule that are at issue in this case. The court explained that the department went through a rule-making process and adopted administrative rules interpreting the meaning of the leave substitution provision of WlS. STAT. § 103.10(5)(b). Richland School District, 174 Wis. 2d at 891 — 94. In view of the "experience and expertise in interpreting the substitution provision" which the department gained thereby, the court granted the department's interpretation great weight deference. Id. at 894. Accordingly, we do likewise here.

¶ 9. When reviewing an agency decision under the great weight standard, we will uphold an agency's reasonable statutory interpretation even if we might also conclude that an alternative interpretation is more reasonable. UFE Inc. v. LIRC, 201 Wis. 2d 274, 287, 548 N.W.2d 57 (1996). Thus, our task is to determine whether the department's determination that Oscar Mayer's sick leave benefit constitutes an accrued paid leave that may be substituted for family leave under Wis. Stat. § 103.10(5)(bj, commencing with the first day of family leave, is "merely reasonable." See Harnischfeger Corp. v. LIRC, 196 Wis. 2d 650, 661, 539 N.W.2d 98 (1995). If the determination does not directly contravene the words of § 103.10, or the legislature's intent when enacting the WFMLA, and if the department's interpretation has a rational basis, our inquiry is at an end and we must affirm the department's order. See id. at 662.

¶ 10. We begin with the language of the statute and the department's rule interpreting it. The WFMLA does not require employers to pay employees for approved family leaves. WlS. STAT. § 103.10(5)(a). However, § 103.10(5)(b) provides that "[a]n employee may substitute, for portions of family leave or medical leave, paid or unpaid leave of any type provided by the employer." The department has promulgated the following administrative rule interpreting the statutory provision: "At the option of the employe, an employe entitled to family or medical leave under the act may substitute, for any leave requested under the act, any other paid or unpaid leave which has accrued to the employe." Wis. Admin. Code § DWD 225.03(1) (emphasis added). To prove a violation of § 103.10(5)(b), the claimants must establish that: (1) at the time they requested leave, they were covered by the WFMLA; (2) they asked to substitute other leave for family leave; (3) Oscar Mayer provided other leave that could be substituted; (4) each claimant had accrued the leave to be substituted; and (5) Oscar Mayer denied the substitution request. Miller Brewing Co. v. DILHR, 210 Wis. 2d 26, 31, 563 N.W.2d 460 (1997) (citing Leher v. Consolidated Papers, Inc., 786 F. Supp. 1480, 1485 (W.D. Wis. 1992)). The third and fourth elements are at issue in this case.

¶ 11. Oscar Mayer first argues the department erred in concluding that the claimants had "accrued" sick leave as required under Wis. Admin. Code § DWD 225.03. Oscar Mayer asserts that an accrued leave benefit "must be vested, it must not be contingent, and its substitution under the WFMLA must not impose 'unanticipated costs' on the employer." The claimants respond that an accrued leave benefit is simply one that is quantifiable and calculable in specified amounts. Both parties assert that support for their positions may be found in Richland School District, where the supreme court stated:

Only those types of leave which an employment contract allows an employe to accumulate over time are available for substitution. Leave which is indefinite or which cannot be quantified at the time of the FMLA leave request is not "leave ... provided by the employer" under FMLA. Such indefinite, incalculable leave is distinguishable from the leave in this case, which accrues into specified, calculable amounts of time. The parties agree that the collective bargaining agreement gave Ruder 18 days of accumulated paid leave. He requested authorization to substitute five of those days for the unpaid leave to which he was entitled under FMLA. He was not asking to substitute any form of non-accrued, discretionary or contingent leave time which the school district might give him upon request.

Id. at 895-96.

¶ 12. The department determined in this case that leave is accrued within the meaning of WlS. ADMIN. Code § DWD 225.03 if it arises from a contract, is specified and quantifiable, has a "draw-down" feature, and is the type of leave that an employee is allowed to accumulate over time. The department concluded that the Oscar Mayer sick leave benefit meets these criteria, and that the claimants thus had accrued sick leave available to them for substitution under WlS. STAT. § 103.10(5)(b). We conclude that the department reasonably interpreted and applied the term "accrued" in its rule to the facts of this case.

¶ 13. The department's criteria for accrued leave are reasonably based on the meaning of the term, and they are not in conflict with the supreme court's discussion in Richland School District, quoted above. The department, after applying the criteria to the present facts, reasonably concluded that sick leave had "accrued" to the claimants in this case. First, the benefit arises from the parties' collective bargaining agreement. Second, the amount of paid sick leave available to a given employee is specified and quantifiable. For example, if an employee has worked at Oscar Mayer for six years, he or she has ten weeks of sick leave available in a twelve-month period. Third, the benefit has a "draw-down" feature, by which the amount of available leave decreases as the employee uses it. Fourth, although there is no leave "carryover" feature, the benefit "accumulates" over time because (1) the amount of leave available renews to the maximum every twelve months, and (2) the maximum amount of leave available increases with an employee's longevity.

¶ 14. In Oscar Mayer's view, the department's determination that the present sick leave benefit creates "accrued" leave is unreasonable and inconsistent with Richland School District, which, according to Oscar Mayer, requires that an accrued, substitutable leave be "a vested, earned, or existing right or benefit." Oscar Mayer asserts that the claimants have no vested right in the sick leave benefit because (1) the leave does not "accumulate" over time, but rather must be used within one year, and (2) it is contingent on an employee being sick for several days before receiving a paid benefit. Oscar Mayer equates its sick leave benefit with that provided under a typical disability insurance policy.

¶ 15. Although the sick leave benefit in the parties' collective bargaining agreement may resemble a disability insurance policy, we agree with the department that any such resemblance is irrelevant. The issue is whether the sick leave benefit meets the requirements as a substitute leave under the WFMLA, and, as we have discussed, the department reasonably concluded that it does. Oscar Mayer's sick leave benefit "accumulates over time" by renewing annually and increasing with an employee's seniority. And, the fact that an employee must be sick for several days before receiving paid sick leave benefits does not render the benefit "indefinite" or "incalculable." Once the waiting period requirement is met, the entitlement is clear and Oscar Mayer may not, in its discretion, deny a request for payment of the benefit. See Richland School District, 174 Wis. 2d at 898.

¶ 16. Even though the presence of the sick leave waiting period does not render unreasonable the department's conclusion that the leave accrues and is substitutable under Wis. Stat. § 103.10(5)(b), it does not necessarily follow that Oscar Mayer must allow substitution commencing on the first day of family leave, as the department also concluded. Oscar Mayer argues that, even if its sick leave is accrued and can be substituted under the WFMLA, a claimant may only be paid for days of family leave beyond the waiting period. Allowing substitution of the sick leave benefit from the first day of a family leave, according to Oscar Mayer, imposes "unanticipated costs," and thus conflicts with the supreme court's observation in Richland School District that "[t]hrough sec. 103.10(5)(b), the legislature has made it possible for employes to draw down on their leave accounts during FMLA leave, without imposing unanticipated costs on the employer." Id. at 901 (emphasis added).

¶ 17. The department reasoned, however, that the claimants could substitute paid sick leave from the first day of leave because, as explained in Richland School District, an employee need not satisfy "the conditions of leave eligibility set forth in the collective bargaining agreement before substitution is allowed" under the WFMLA. Id. at 898. The department assumed that employees would use more of their available sick leave if substitution for family leave were allowed than if it were not. It concluded, however, that this would only constitute increased "use costs," not "unanticipated costs."

¶ 18. We conclude that it was not unreasonable for the department to reject Oscar Mayer's "unanticipated costs" argument. We note first that the supreme court's use of the phrase in Richland School District, was at most a passing comment in its discussion of the legislative purpose behind WlS. Stat. § 103.10(5)(b). A prohibition against imposing "unanticipated costs" was not central to its holding. Indeed, the court noted later in the opinion that the "substitution provision increases the opportunities for a state employe to use existing accrued paid leave, as opposed to creating additional paid leave." Id. at 904. There can thus be no question that the supreme court was well aware that permitting the substitution of paid leave for unpaid family leave would inevitably result in increased usage of existing paid leave benefits, benefits that might otherwise go unused. We agree with the department, however, that that fact alone cannot be used as a justification for denying substitution, under either the language of the statute or the court's discussion in Richland School District. Permitting substitution in this case neither increases the maximum number of paid sick leave days available to any employee nor eliminates the "draw-down" of available benefits when either sick leave or family leave is taken.

¶ 19. As we have noted, the department concluded that the three- or seven-day waiting period required before an employee is entitled to paid sick leave, is a non-transferring "condition" of the sick leave benefit, similar to the requirement for a "disability caused by sickness or accident." In its de novo consideration of the issue, the circuit court concluded that the waiting period was "more properly" viewed as a factor in the accrual determination. That is, just as no sick leave benefit accrues to an employee during his or her first year of employment with Oscar Mayer, so, too, in the circuit court's view, no sick leave should be deemed to accrue to an employee until the specified number of days of absence from work has passed.

¶ 20. The circuit court's interpretation may well be no less reasonable than the department's. As the circuit court itself recognized in another part of its decision, however, it is precisely in the interpretation and application of its "accrued leave rule," WlS. Admin. Code § DWD 225.03(1), that we must accord the department the greatest deference. See Richland School District, 174 Wis. 2d at 894. We are not persuaded that the department's interpretation that Oscar Mayer's sick leave benefit accrues irrespective of the waiting period, and that the waiting period requirement is a non-transferring condition when sick leave is substituted for family leave, contravenes either the language of the WFMLA or the legislature's intent when enacting it. The department's interpretation also has a rational basis and comports with the holding of Richland School District. See id. at 898. In short, the department's interpretation is a reasonable one and must be affirmed.

¶ 21. Finally, we observe that classifying the waiting period as a non-transferring condition of eligibility, as opposed to an element determining accrual, may represent a policy choice as much as it does a legal interpretation. If so, the choice is the department's to make, not ours. See Roehl Transport, Inc. v. Wisconsin Div. of Hearings and Appeals, 213 Wis. 2d 452, 459 n.5, 570 N.W.2d 864 (Ct. App. 1997) (We "pay great deference to an agency's interpretation when it is intertwined with value and policy determinations inherent in the role the legislature assigned the agency to play.").

CONCLUSION

¶ 22. For the reasons discussed above, we reverse the appealed order and direct that the department's decision and order be reinstated in its entirety.

By the Court. — Order reversed and cause remanded with directions.

       We will refer to the appellants as "the claimants," except where it is necessary to separately identify them, and to the respondent employer, Kraft Foods, Inc., Oscar Mayer Foods Division, as "Oscar Mayer." Also, we will refer to leave taken under the provisions of the Wisconsin Family and Medical Leave Act, WlS. Stat. § 103.10 (1999-2000), as "family leave," even though the statutory leave is also available to "an employe who has a serious health condition." See § 103.10(4).

       The maximum sick leave that an Oscar Mayer employee can receive in a twelve-month period is determined by the employee's years of continuous service. An employee with one to ten years continuous service has up to ten weeks; with eleven to twenty years of continuous service, twenty weeks; and with twenty-one or more years of continuous service, twenty-six weeks of sick leave is available. The sick leave benefit consists of 55% of an employee's basic wage rate for an eight-hour day.

       Employees with more than one year with Oscar Mayer, but less than five years, are eligible to be paid sick leave benefits commencing with "the eighth (8th) consecutive calendar day" which the employee is "absent from work because of a disability caused by sickness or accident." Those who have worked for Oscar Mayer for five or more years are eligible for paid sick leave benefits on "the fourth working day of absence."

       Oscar Mayer and the claimants' union had a "side agreement" under which Oscar Mayer allowed the claimants to substitute paid sick leave for family leave, except for the three- or seven-day waiting period. The department found that the side agreement was to remain in effect "until it was determined whether the employees were entitled under the WFMLA to substitute Oscar Mayer's sick leave benefits ... for unpaid WFMLA leave."

       All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.

         Pagel v. Oscar Mayer Foods Corp., ERD Case No. 199701618 (April 23, 1998).

       The department rejected one claim, that of employee Gerald Steward, because he failed to timely file it. Steward does not join in this appeal.

       Although it accorded great weight deference to the department's determination that Oscar Mayer's sick leave benefit constituted "accrued" leave under WlS. Admin. CODE § DWD 225.03(1), the circuit court decided the waiting period issue de novo. The court concluded that the department's determination of that issue was based "solely on its interpretation of the supreme court's decision in Richland School District," and that a court was as competent as an agency to interpret "existing case law." We view the department's decision-making process differently. In ruling on the present claims, the department applied its expertise and experience in administering the WFMLA's leave substitution provision, just as it did in deciding the employee's claim in Richland School District. The fact that the department also looked to the supreme court's discussion in that case for guidance in deciding this one does not mean that we may deprive the department of the deference it is due on account of its expertise, experience and legislatively delegated authority.
      We acknowledge that an agency forfeits its claim to deference when its determination conflicts with prior appellate decisions. See Klusendorf Chevrolet-Buick, Inc. v. LIRC, 110 Wis. 2d 328, 331-32, 328 N.W.2d 890 (Ct. App. 1982). As we discuss, however, the department's determination that the waiting period presently at issue is a non-transferring "condition" for being paid sick leave benefits is not unreasonable, and it in no way "conflicts" with Richland School District, which did not address the issue of a waiting period applicable to accrued paid leave.

       The claimants assert in their reply brief that we cannot consider this argument because Oscar Mayer failed to cross-appeal the circuit court's decision. See WlS. STAT. § 809.10(2)(b). The appealed circuit court order ratified the department's determination that the sick leave benefit provided under the parties' collective bargaining agreement constituted a substitutable accrued leave under WlS. STAT. § 103.10(5)(b) and WlS. Admin. Code § DWD 225.03(1), and Oscar Mayer has not cross-appealed that portion of the circuit court's order. We take Oscar Mayer's first argument to simply present an alternative basis for affirming the circuit court's conclusion that the claimants should not be permitted to substitute paid sick leave during the waiting period. That is, we agree that Oscar Mayer cannot argue that the claimants may not be paid for family leave days after the expiration of the waiting period, but if the department unreasonably concluded that the sick leave benefit constituted substitutable, accrued leave, that would provide a basis for us to affirm the circuit court's conclusion that no paid sick leave could be substituted during the waiting period.

       The Random House Dictionary of the English Language 13 (2nd ed. 1987) provides definitions of "accrue" which include "to be added as a matter of periodic gain or advantage," and "to become a present and enforceable right or demand." BLACK'S Law Dictionary 21 (7th ed. 1999) provides similar meanings: "[t]o come into existence as an enforceable claim or right; to arise"; "[t]o accumulate periodically."

       The contract provides: "The period for which sick leave payments shall be made shall be reduced by the number of days and weeks for which Sick Leave payments have been made during the twelve (12) months immediately preceding the starting date of the current disability."

       See notes 2 and 11, above.

       At the hearing before the department, Oscar Mayer proffered evidence that its sick leave benefit is similar to a short-term disability insurance policy. The department determined that the evidence was not relevant because it did not help to establish whether the sick leave benefit constituted "accrued" leave under Wis. Admin. Code § DWD 225.03(1) and the Richland School District decision. Oscar Mayer argues that the department erroneously exercised its discretion in refusing to admit the evidence. We disagree for the reasons discussed in the text.


source: Caselaw Access Project

author: HOOVER, P.J.

license: Public Domain

text:
    Gerald Trott, Petitioner-Appellant, v. Wisconsin Department of Health & Family Services, Respondent-Respondent.
    Court of Appeals

      No. 00—1486.

      Submitted on briefs December 19, 2000.

    Decided February 27, 2001.

    2001 WI App 68
    (Also reported in 626 N.W.2d 48.)

      On behalf of the petitioner-appellant, the cause was submitted on the briefs of Monica Murphy and Wisconsin Coalition for Advocacy of Milwaukee.
    On behalf of the respondent-respondent, the cause was submitted on the brief oí James E. Doyke, attorney general, and Maureen McGlynn Flanagan, assistant attorney general.
    Before Cane, C.J., Hoover, P.J., and Peterson, J.
   HOOVER, P.J.

¶ 1. This is an appeal pursuant to Wis. Stat. ch. 227 following judicial review of an administrative decision. Gerald Trott appeals an order affirming a decision of the Department of Administration, Division of Hearings and Appeals, in favor of the Department of Health and Family Services that denied Trott's prior authorization request for medical assistance payment of a power wheelchair. Trott argues that the department misinterpreted an administrative regulation, Wis. Admin. Code § HFS 107.24(4), which lists exceptions to noncovered medical equipment used by nursing home recipients. We conclude that the department's interpretation is inconsistent with the regulation's plain meaning. We therefore reverse the order.

¶ 2. Trott is a fifty-eight-year-old man who lives in a Rusk County nursing home and suffers from multiple sclerosis, a progressive neurological disease. Due to his disease, he is "non-ambulatory" and "unable to mobilize any kind of manual chair." At the time of his request for authorization for a new power chair, Trott was using a six-year-old power wheelchair that still functioned. His chair, however, is incapable of being adapted to mount electronic accessories for improved speech and management of environmental controls, such as opening a door or turning on lights, television and radio. It does not fit him due to weight gain and spinal deformity, and cannot be adapted with devices for arm function and repositioning himself. Trott sought authorization for a Storm Ranger X power wheelchair at a cost of $13,952. Trott's rehabilitation specialist, Pam Gardow, provided a written statement explaining the necessity of the power chair in support of Trott's request.

¶ 3. After his request was denied, Trott appealed and the Division of Hearing and Appeals affirmed. It determined that Trott failed to meet all the regulatory criteria under Wis. Admin. Code § HFS 107.24(4)(c)2 and 3 because he failed to demonstrate that the wheelchair was required for "occupational or vocational activities." The circuit court affirmed the division's determination, and this appeal followed.

STANDARD OF REVIEW

¶ 4. Resolution of this appeal turns on the interpretation of administrative regulations. "In an appeal involving an administrative agency's decision, this court reviews the decision of the administrative agency, not that of the circuit court." Lilly v. DHSS, 198 Wis. 2d 729, 734, 543 N.W.2d 548 (Ct. App. 1995). "The interpretation of an administrative rule or regulation, like the interpretation of a statute, is a question of law that we review de novo." Hillhaven Corp. v. DHFS, 232 Wis. 2d 400, 409, 606 N.W.2d 572 (Ct. App. 1999). Although not bound by an agency's conclusions of law, we generally defer to an agency's interpretation of its rules, see Lilly, 198 Wis. 2d at 734, applying a "great weight" standard. Irby v. Bablitch, 170 Wis. 2d 656, 659, 489 N.W.2d 713 (Ct. App. 1992). An agency's interpretation of its own regulations is accepted even though an alternative may be equally reasonable. Milwaukee County v. DILHR, 80 Wis. 2d 445, 455-56, 259 N.W.2d 118 (1977). We do not, however, defer to an interpretation that directly contravenes the words of the regulation or is otherwise without a rational basis. See Irby, 170 Wis. 2d at 659.

DISCUSSION

¶ 5. Trott argues that the department's interpretation is inconsistent with the regulation's meaning and purpose. Trott claims that he need not meet the "occupational or vocational activities" justification of Wis. Admin. Code § 107.24(4)(c)2 because his prior authorization request falls under the § 107.24(4)(c)3 exception to noncovered nursing home services.

¶ 6. The department, on the other hand, maintains that Wis. Admin. Code § HFS 107.24(4)(c)2 and 3 must be read together. It contends that when read in context with other regulations concerning nursing homes and durable medical equipment, the regulations demonstrate that Trott's prior authorization request must fall within both exceptions. We disagree. When read in context with other regulations regarding nursing homes and durable medical equipment, the unambiguous language of § HFS 107.24(4)(c) establishes that a prior authorization request must fall within only one of the three exceptions to noncovered medical equipment for nursing home recipients. To fully address the department's arguments, we must begin with a general overview of pertinent regulations before addressing the specific language of § HFS 107.24(4)(c)2 and 3.

1. Regulatory Framework

¶ 7. The Wisconsin medical assistance program (MA) is implemented by Title XIX of the Social Security Act and related regulations, along with Wis. Stat. §§ 49.43 to 49.96 and Wis. Admin. Code § HFS 107. Rickaby v. DHSS, 98 Wis. 2d 456, 457, 297 N.W.2d 36 (Ct. App. 1980). A state has broad discretion in developing standards for determining the extent of coverage provided. Charleston Mem'l Hosp. v. Conrad, 693 F.2d 324, 326 (4th Cir. 1982). The department has rule-making powers consistent with its duties in administrating the MA program. WlS. STAT. § 49.45(10).

¶ 8. Wisconsin Admin. Code chs. HFS 101-108 have the purpose of administering the MA program, which finances necessary health care services for qualified persons whose financial resources are inadequate. Wis. Admin. Code § HFS 101.01. Wisconsin Admin. Code § HFS 107.09(2) provides for covered nursing home services and reads: "Covered nursing home services are medically necessary services provided by a certified nursing home to an inpatient and prescribed by a physician in a written plan of care." The costs of all routine day-to-day health care services and materials provided to recipients by a nursing home are reimbursed within the daily rate determined for MA in accordance with Wis. Stat. § 49.45(6m). Wis. Admin. Code § HFS 107.09(2).

¶ 9. Generally, all standard wheelchairs are reimbursed through the nursing home daily rate. WlS. Admin. Code § HFS 107.09(4)(d) ("Wheelchairs shall be provided by skilled nursing and intermediate care facilities in sufficient quantity to meet the health needs of patients who are recipients."). Nursing homes specializing in providing rehabilitative services shall provide the equipment necessary for the provision of these services, as well as replacement wheelchairs for those recipients who have changing wheelchair needs. Id.

¶ 10. Department regulations provide, however, for medical assistance to purchase an electric wheelchair for an individual nursing home medical assistance recipient if a request for prior authorization is made and certain prerequisites are met. Wis. Admin. Code §§ HFS 107.09(3), HFS 107.24; Rickaby, 98 Wis. 2d at 458. The exceptions to the general rule of noncov-erage are found in Wis. Admin. Code § HFS 107.24 and are the focus of this dispute:

¶ 11. Section 107.24(2)(c) provides in part:

Categories of durable medical equipment. The following are categories of durable medical equipment covered by MA:
8. Wheelchairs. These are chairs mounted on wheels usually specially designed to accommodate individual disabilities and provide mobility. Examples are a standard weight wheelchair, a lightweight wheelchair and an electrically-powered wheelchair.

¶ 12. Section 107.24(4)(c) provides:

(4) Other limitations. ...
(c) The services covered under this section are not covered for recipients who are nursing home residents except for:
1. Oxygen. Prescriptions for oxygen shall provide the required amount of oxygen flow in liters;
2. Durable medical equipment which is personalized in nature or custom-made for a recipient and is to be used by the recipient on an individual basis for hygienic or other reasons. These items are orthoses, prostheses including hearing aids or other assistive listening devices, orthopedic or corrective shoes, special adaptive positioning wheelchairs and electric wheelchairs. Coverage of a special adaptive positioning wheelchair or electric wheelchair shall be justified by the diagnosis and prognosis and the occupational or vocational activities of the resident recipient; and
3. A wheelchair prescribed by a physician if the wheelchair will contribute towards the rehabilitation of the resident recipient through maximizing his or her potential for independence, and if the recipient has a long-term or permanent disability and the wheelchair requested constitutes basic and necessary health care for the recipient consistent with a plan of health care, or the recipient is about to transfer from a nursing home to an alternate and more independent setting. (Emphasis added.)

Several additional regulations involve cost control provisions that limit services and equipment expenditures.

2. Reasonableness of the department's interpretation

¶ 13. We conclude that Wis. Admin. Code § HFS 107.24(4)(c)2 and 3 are not a list of conditions to be met for coverage of wheelchairs. Rather, they are a list of exceptions to the general rule that medical supplies and equipment for nursing home residents are not covered but are factored into the daily rate. Subdivision 2 deals with equipment, including wheelchairs, that are personalized or custom made for the resident. Subdivision 3 deals with physician prescribed wheelchairs for nursing home residents with long-term or permanent disabilities that constitute basic and necessary health care consistent with a health care plan or a transfer. The two subdivisions function independently of one another. The word "and" between subds. 2 and 3 separates the two kinds of exceptions.

¶ 14. We may not adopt a construction in derogation of common sense. Courts must look to the common sense meaning of the regulation to avoid unreasonable and absurd results. See Kania v. Airborne Freight Corp., 99 Wis. 2d 746, 766, 300 N.W.2d 63 (1981). "An interpretation is unreasonable if it directly contravenes the language of the statute, is plainly contrary to the legislative intent underlying the statute, or lacks a rational basis." Telemark Develop. Corp. v. DOR, 218 Wis. 2d 809, 821-22, 581 N.W.2d 585 (Ct. App. 1998).

¶ 15. The department's proposed interpretation requires Wis. Admin. Code § HFS 107.24(4)(c)l-3 to be read as two, rather than three, exceptions. The department essentially is asking us to rewrite the list of exceptions to make subds. 2 and 3 to be read as one. The department's tortured construction radically departs from usual drafting practices. We conclude that § HFS 107.24(c) 1-3 unambiguously lists three separate exceptions. The department's interpretation that subds. 2 and 3 must be read together is not plausible in light of the regulation's plain language and framework.

¶ 16. The department contends, nonetheless, that its interpretation is reasonable when read in context with the regulations' cost-saving intent, evinced by their overall framework. The department argues that one of the primary purposes of prior authorization is plainly cost control and objective equity. We are satisfied, however, that the regulations demonstrate an attempt to strike a balance between providing appropriate medical assistance to qualified recipients and saving costs.

¶ 17. The stated purpose of medical assistance is provided in Wis. Stat. § 49.45: "To provide appropriate health care for eligible persons and obtain the most benefits available under Title XIX of the federal social security act, the department shall administer medical assistance, rehabilitative and other services to help eligible individuals and families attain or retain capability for independence or self-care as hereinafter provided." Rickaby, 98 Wis. 2d at 457. As a participating state, Wisconsin must abide by the purposes and provisions of Title XIX. Id. Wisconsin may determine which particular services to fund under the program, as long as " 'basic and necessary' services" are provided consistent with the federal Act. Id. at 457-58. "Wisconsin has chosen to make the purchase or rental of electric wheelchairs available to eligible Medical Assistance recipients in nursing homes" under § HFC 107.24(4)(c). Id. at 458.

¶ 18. Our interpretation strikes a balance between the regulations' various objectives. On the one hand, consistent with cost control, we recognize that all standard wheelchairs are reimbursed through the nursing home daily rate and must be provided by nursing facilities in sufficient quantity to meet the health needs of its recipient patients. Wis. Admin. Code § HFS 107.09(4)(d). Also, nursing homes specializing in providing rehabilitative services must provide the equipment necessary for the provision of these services, as well as replacement wheelchairs for those recipients who have changing wheelchair needs. Id.

¶ 19. On the other hand, it is undeniable that the regulations plainly call for two limited exceptions to these general rules relative to wheelchairs for nursing home residents. Wis. Admin. Code § HFS 107.24(4)(c). With prior authorization, medically necessary custom adaptive wheelchair positioning systems and powered wheelchairs are separately reimbursable if personalized in nature and custom-made to fit only one recipient, and are justified by the diagnosis, prognosis and occupational or vocational activities. Wis. Admin. Code § HFS 107.24(4)(c)2. In addition, a second exception provides for reimbursement for a physician-prescribed wheelchair that contributes to a long-term or permanently disabled recipient, if it would contribute to rehabilitation though maximizing his or her potential for independence, and constitutes necessary health care consistent with a health care plan, or if the resident is about to transfer to a more independent setting. Wis. Admin. Code § HFS 107.24(4)(c)3.

¶ 20. Each exception is narrowly tailored to reach a specific goal. For example, while Wis. Admin. Code § HFS 107.24(4)(c)2 does not require a physician prescription or a long-term disability, it does require diagnostical, prognostical and occupational or vocational justification. And, although those justifications are not required in Wis. Admin. Code § HFS 107.24(4)(c)3, there must be a long-term or permanent disability and a physician prescription. We reject the department's contention that reading these two exceptions separately rather than together eviscerates the regulations' cost-saving and objective-equity goals. Because each exception states specific standards for its implementation, the cost-saving and objective-equity purposes are preserved.

3. Great weight deference

¶ 21. The department, nonetheless, insists that we defer to its interpretation because it is long standing. It indicates that it has consistently interpreted the rule since 1995, pointing to In re Conniff, No. MPA-32/88803 (Sept. 28, 1995), contained in the record and its appendix. This argument does not bear scrutiny. First, we do not defer to an agency interpretation that directly contravenes the words of the regulation. Lilly, 198 Wis. 2d at 659. Second, the record fails to support the department's claim that its interpretation has been consistent since 1995. In July 1996, the department published its Wisconsin Medicaid Update (96-24), listing two separate alternative exceptions to the general rule that wheelchairs for nursing home recipients are not covered. While the 1996 update's interpretation is not the same as ours or completely identical to that advanced by the department at this juncture, we include it because it demonstrates the department's inconsistent approach. We are unpersuaded that the department's interpretation is longstanding or reasonable.

CONCLUSION

¶ 22. Wisconsin Stat. § 227.57(5) provides:

The court shall set aside or modify the agency action if it finds that the agency has erroneously interpreted a provision of law and a correct interpretation compels a particular action, or it shall remand the case to the agency for further action under a correct interpretation of the provision of law.

Because the denial of Trott's prior authorization request was premised on an incorrect interpretation of law, we conclude that the decision affirming the denial should be modified. There is no contention that Trott failed to meet the exceptions set forth in WlS. Admin. Code § HFS 107.24(c)3. We conclude, therefore, that the department's decision should be modified to approve Trott's prior authorization request.

By the Court. — Order reversed.

       All references to the Wisconsin Statutes are to the 1997-98 version unless otherwise noted.

       The wheelchair is described as follows:
      Invacare Storm Ranger X power wheelchair with 20 inch seat width, adjustable height arms, articulating elevating legrests, extra large footplates, wheel locks-extemal, solid seat, 22NF gel batteries, Avanti Plus contoured back, contoured 20 inch Ultimate cushion, tray table, tray modification for switches, pelvic belt, headrest, power tilt unit, bracket modification for arm support....

       Gardow explained as follows:
      The Ranger X with programmable electronics allowed for smooth driving and maneuverability around the facility and also out of doors. Gerald needs a 20" wide size to accommodate his hip and trunk width. An adjustable angle back is required for two reasons: to accommodate the need to set a backward angle for his significant kyphosis, and to install the power tilt unit recommended. Adjustable height arms are needed along with a tray table for arm and shoulder support and to facilitate upright trunk. The tray requires a custom modification for joystick cut out and custom cut for the power tilt switch. To adequately position his legs and feet, Gerald needs elevating legrests with extra large footplates. The large footplates are needed to protect his feet from injury. External wheel locks (which are an up charge on this chair) are needed so care givers can independently set the locks for transportation after the chair has been put in free wheel, and for stabilizing it for transfers.
      For postural support, Gerald needs an Avanti Plus contoured back (extra wide). This will accommodate and support his significant kyphosis, and provide lateral trunk support he needs due to poor trunk control and sitting balance. He requires a solid seat with Ultimate contoured (extra wide) pressure reduction cushion. This will help maintain skin integrity. This seating will provide for much more stable posture and facilitate use of arms. The power tilt unit is necessary for positioning changes to reduce pressure, reduce fatigue related to posture and the M.S. and to facilitate trunk and head control. Gerald requires this independence in position change both when he is in and out of the facility. A headrest is required for head support, especially when he fatigues and when the chair is tilted. A seatbelt will provide for pelvic stability and helps prevent sliding at the hips.
      Occupational/Vocational Goals
      With the above chair and seating, and a mobile arm support with custom mounting modifications, Gerald could make major gains .... (Custom mounting is required because the seating system prevents regular mounting hardware from being attached to the back canes. The brackets for mounting the custom back are in the way of the mobile arm support brackets). With this system, Gerald could be independent with self-feeding after set-up. He could be independent in washing his face and repositioning himself. The ability to reposition and reduce fatigue will allow for increased sitting tolerance. He could increase his out of facility programming and participate in classes and programs at the college (across the street from the nursing home). He would also have access to the local library close to the facility. Gerald is still young, and very much wants to be involved with the community and establish a life outside of the nursing home. He may never be able to live outside the nursing home, but he could still be an active member of the community. The... goals and community programming constitute occupational and vocational programming.
      In addition, since this is a replacement power chair, it is very important to replace the power chair to allow Gerald to continue and expand his level of function and independence.

       Alternatively, Trott claims that the term "occupational" should be read broadly to include therapeutic activities. However, because Trott's first issue is dispositive, we do not reach his second issue.

       For example, the department draws our attention to the following regulations. Generally the department "shall reimburse providers for medically necessary and appropriate health care services" when provided to currently eligible medical assistance recipients. Wis. Admin. Code § HFS 107.01. "Medically necessary" means a medical service under § HFS 107 that is required to "prevent, identify or treat a recipient’s illness, injury or disability" and meets certain standards, including: (1) that it not duplicate other services; (2) that it is not solely for the convenience of the recipient, his family or provider, and (3) is cost effective to an alternative medically necessary service which is reasonably accessible to the recipient. Wis. Admin. Code § HFS 101.03(96m).
      Nonreimbursable services include services the department determines to be medically unnecessary, inappropriate, in excess of accepted standards of reasonableness or less costly alternative services. Wis. Admin. Code § HFS 107.02(2)(b). Limitations on covered services include the requirement of a physician's order or prescription for medical supplies and equipment. Wis. Admin. Code § 107.02(2m)(a)9. Also, the department may require "prior authorization" for covered services to "safeguard against unnecessary or inappropriate care and services" and to "determine if less expensive alternative care, services or supplies are usable." Wis. Admin. Code § HFS 107.02(3)(b)l and 4. In determining whether to approve a prior authorization request, the department shall consider the medical necessity of the service, the cost of the service and the extent to which less expensive alternative services are available. WlS. ADMIN. CODE § HFS 101.03(96m)(b).

       The department concedes that before 1995, its interpretation was inconsistent. For example, in the proposed Conniff decision, the department hearing examiner observed:
      The two specialized exceptions are sec. HSS 107.24(4)(c)2, Wis. Adm. Code, and sec. HSS 107.24(4)(c)3, Wis. Adm. Code. These two sections are joined by the word and. However, the two sections are to be read in the alternative and not as cumulative. Each section is an individual exception to the general rule that medical supplies and equipment for nursing home residents are not covered by MA. It is persuasive that two different Circuit Court Judges in two different circuits have reached this same conclusion. See Daemmrich v. Wisconsin Department of Health and Social Services, Case No. 90-CV-017149 (Milwaukee County Circuit Court, May 1, 1992; Branch 12; the Honorable Michael Skwierawski); Hawthorne v. Wisconsin Department of Health and Social Services, Case No. 87-CV-7071 (Dane County Circuit Court, May 24,1988; Branch 4; The Honorable Jack Aulik).

        In re Coniff, No. MPA-32/88863, at 3 n.1 (proposed decision, Aug. 30,1995) (emphasis added).
      In the Daemmrich decision, the circuit court relied in turn on an agreement by the department, stating:
      The parties agree that the two tests for coverage for a wheelchair under the Department's own administrative code are in fact alternative tests and not cumulative, relying on Hawthorne v. Wisconsin Dept. of Health and Social Services, Case No. 87-CV-7071 (Dane County Circuit Court, May 24, 1988). (Emphasis added.)

        Id. at 1.

       The Wisconsin Medicaid Update (96-24) provides:

        Powered Wheelchairs and Wheelchair Positioning Systems Not Included in the Nursing Home Daily Rate—
      Custom adaptive wheelchair positioning systems and powered wheelchairs are not included in the nursing home daily rate. They are separately reimbursable, when medically necessary, and when prior authorized by Wisconsin Medicaid under the following conditions:
      1. A medically necessary adaptive wheelchair positioning system is personalized in nature and custom-made to fit one recipient only, and is used only by that recipient.
      2. The powered wheel chair is justified by the diagnosis, prognosis, and occupational or vocational activities of the recipient
      There is one exception to this: A standard wheelchair may be approved if the recipient is transferring from a nursing home to a more independent setting. In this situation, the prior authorization request must include documentation from the physician of the discharge date and new setting location.
      Apparently, when the update was published, the department believed that the second half of Wis. Admin. Code § 107.24(4)(c)3 need not meet the criteria set out in § 107.24(4) (c)2 regarding occupational and vocational activities. This interpretation is at odds with the department's current interpretation advanced in the case before us.


author: PETERSON, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Brady T. Terrill, Defendant-Appellant.
    Court of Appeals

      No. 00-2152-CR.

      Submitted on briefs January 23, 2001.

    Decided February 27, 2001.

    2001 WI App 70
    (Also reported in 625 N.W.2d 353.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs oí Eileen A. Hirsch, assistant state public defender, Madison.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and Christian R. Larsen, assistant attorney general.
    Before Cane, C.J., Hoover, P.J., and Peterson, J.
   PETERSON, J.

¶ 1. Brady Terrill appeals his judgments of conviction for criminal damage to property, contrary to WlS. Stat. § 943.0l(2)(d), two counts of criminal trespass to a dwelling, contrary to WlS. Stat. § 943.14, and disorderly conduct, contrary to WlS. Stat. § 947.01. Terrill also appeals an order denying his motion for postconviction relief. Terrill argues that his right to fundamental fairness and due process was violated because the circuit court accepted his plea and found him guilty after it had deferred acceptance of the plea. We agree and therefore reverse.

BACKGROUND

¶ 2. Terrill was charged with felony criminal damage to property. The complaint alleged that Terrill and his friends broke into and damaged a cabin in connection with a teenage beer party.

¶ 3. Terrill and the State entered into a plea agreement. The State would add three misdemeanor charges to which Terrill would plead guilty and be sentenced. Terrill would also plead guilty to the felony charge but the State would recommend that the circuit court defer acceptance of the plea to the felony. Terrill would be placed on "informal supervision" for thirty-six months. If he successfully complied with the agreement, the State would request that the felony charge be dismissed. If he failed to comply with the agreement, the circuit court would accept the plea to the felony, find him guilty and sentence him.

¶ 4. At the plea hearing, the State filed an amended information charging Terrill with three misdemeanors in addition to the felony. The circuit court accepted Terrill's plea to the misdemeanors and found him guilty. Terrill then pled guilty to the felony. In accordance with the plea agreement, the circuit court deferred acceptance of the plea. The circuit court then proceeded to sentencing on the misdemeanors.

¶ 5. The circuit court asked the owner of the cabin if he wished to make a statement before it pronounced sentence. The owner showed a videotape of the damaged cabin. At the conclusion of the videotape, the circuit court, on its own motion, reconsidered the plea agreement. It accepted Terrill's plea to the felony and found him guilty.

¶ 6. The State immediately moved to reopen and dismiss the misdemeanors. The circuit court denied the motion. The circuit court also denied Terrill's motion to reconsider.

¶ 7. Terrill filed a postconviction motion to vacate his convictions and to reinstate the plea agreement. The circuit court denied the motion. This appeal followed.

STANDARD OF REVIEW

¶ 8. The trial court ordinarily has discretion whether to allow plea withdrawal. See State v. Farrell, 226 Wis. 2d 447, 453-54, 595 N.W.2d 64 (Ct. App. 1999). We will uphold a discretionary determination by the trial court as long as the court considered the facts of the record under the proper legal standard and reasoned its way to a rational conclusion. See Burkes v. Hales, 165 Wis. 2d 585, 590-91, 478 N.W.2d 37 (Ct. App. 1991). However, we will independently determine whether the established facts constitute a constitutional violation sufficient to warrant plea withdrawal as a matter of right. See State v. Sturgeon, 231 Wis. 2d 487, 503-04, 605 N.W.2d 589 (Ct. App. 1999).

DISCUSSION

¶ 9. Terrill argues that the circuit court accepted the plea agreement and was therefore bound by its terms. He contends that a manifest injustice occurred when the circuit court reconsidered its earlier acceptance of the agreement, thereby subjecting him to a harsher sentence than if he had pled guilty to the felony without the plea agreement.

¶ 10. As a preliminary matter, the State argues that the circuit court never bound itself to the agreement. It contends that the circuit court repeatedly warned Terrill that it was not bound by the agreement and that it could accept his plea to the felony on its own motion. However, a review of the record reveals that the circuit court did in fact accept the plea agreement.

¶ 11. At the conclusion of the discussion about the wisdom of the plea agreement, the circuit court conducted a formal plea colloquy. It accepted Terrill's guilty pleas to the misdemeanors. Terrill then pled guilty to the felony count. The circuit court deferred acceptance of the plea. It then warned Terrill that any violation would be considered a violation of the terms. The circuit court stated:

The court accepts the deferred acceptance of the guilty plea form. Mr. Terrill, with respect to count one, if you as much as spit on a sidewalk, exceed the speed limit by one mile per hour and get a citation for it and I become aware of it, I'm going to accept your plea in count one.
[A]nd you need ... to understand, you need to understand, Brady, I don't care how strong of a will you have; if you cross that line, I'm going to accept your plea and I'm going to sentence you on a five-year felony, and you need to think about that every day of your life at the same time that you think about your sobriety.

¶ 12. Additionally, in its written decision denying Terrill's postconviction motion, the circuit court recognized that it had accepted the plea agreement saying that "[acceptance and rejection of the diversion agreement took place within the confines of a short hearing .... There was an acceptance of a diversion agreement by the court. . . ." We conclude the circuit court accepted the plea agreement.

¶ 13. Once it accepted the plea agreement, Terrill argues that the circuit court was bound by the terms of the agreement. In State v. Comstock, 168 Wis. 2d 915, 950-51, 485 N.W.2d 354 (1992), our supreme court held that the circuit court's obligation to honor an approved plea agreement is analogous to the prosecutor's obligation to honor a plea agreement:

If the prosecutor is bound by a valid plea agreement, and due process protects the defendant from the prosecutor's withdrawing from the agreement, we do not believe that considerations of double jeopardy and due process permit a circuit court to sua sponte relieve the prosecutor from a valid plea agreement.
[T]he circuit court's sua sponte order vacating the pleas significantly implicates the public's and the defendant's interests in finality, repose, and fairness in the same way as a prosecutor's attempt to withdraw from a validly accepted plea agreement.

Id. It is well established that a prosecutorial violation of a plea agreement "triggers considerations of fundamental fairness and is a deprivation of due process." State v. Bond, 139 Wis. 2d 179, 188, 407 N.W.2d 277 (Ct. App. 1987). Those considerations of fundamental fairness and due process bind a circuit court to an accepted plea agreement. Comstock, 168 Wis. 2d at 951.

¶ 14. In State v. Barney, 213 Wis. 2d 344, 570 N.W.2d 731 (Ct. App. 1997), the circuit court accepted a diversion agreement similar to the one in this case. Several months after sentencing, the circuit court revoked the agreement, but did not consider alternatives to revocation as was required by the agreement. We reversed and held that the circuit court was "obligated ... to follow the terms of the agreement regarding revocation proceedings." Id. at 360-61.

¶ 15. Comstock and Barney are also consistent with federal law. In United State v. Ritsema, 89 F. 3d 392, 399 (7th Cir. 1996), the court of appeals noted that in federal court, as in state court, the court is barred from intruding upon negotiation of plea agreements, and there is no absolute right to have a guilty plea accepted. "Once the court has accepted a plea agreement, however, it is, as a general rule, bound by the terms of that agreement." Id. at 398-99. The sole exception noted by Ritsema is the defendant's fraud upon the court. Id. at 400.

¶ 16. Here, the circuit court concluded that it was not fully apprised of the gravity of the offense before accepting the agreement. After viewing the videotape, shown for the purposes of sentencing, the circuit court determined that the agreement was not in the public's interest. The circuit court stated that it was bound by State ex rel. White v. Gray, 57 Wis. 2d 17, 203 N.W.2d 638 (1973), to reconsider the plea agreement.

¶ 17. Gray requires a circuit court to consider whether an agreement is in the public interest. The court should consider not only the "benefit to the public in securing a prompt disposition of the case, but also the importance of a disposition that furnishes the public adequate protection and does not depreciate the seriousness of the offense or promote disrespect for the law." Id. at 30 (citation omitted).

¶ 18. However, the Gray inquiry must occur before the circuit court accepts a plea agreement, not after. As the holding in Comstock states:

[BJefore accepting a defendant's guilty or no contest plea to the amended charges, the circuit court must satisfy itself that the amended charges fit the crime and that the amendments are in the public interest. A circuit court may, as this court has written, ask sufficient questions, including the prosecutor's reasons for entering the plea agreement, to satisfy itself of the wisdom of accepting the plea to reduced charges. This is law of longstanding in this state.

Id. at 927. Comstock specifically pointed out that its holding did not interfere with a trial court's duty to inquire into the public interest before accepting a plea:

This holding preserves the circuit court's right and duty to be apprised of all relevant information before accepting a guilty or no contest plea and before sentencing and allows the circuit court to make informed decisions protecting the public interest. . . . This holding comports with principles of fundamental fairness, finality, and repose.

Id. at 954.

¶ 19. In Comstock, the circuit court decided that a previously accepted plea agreement was not in the public interest. However, the supreme court reversed because the principles of fundamental fairness and finality outweigh the interests in reconsidering public interests after a plea agreement has been approved. Here, the circuit court properly inquired beforehand whether the plea agreement was in the public interest. Once the court made the decision to accept the plea agreement, it could not reverse its acceptance.

¶ 20. The circuit court further concluded that it was not required to reinstate the plea agreement because, unlike in Barney, a written order or judgment of conviction had not yet been filed with the clerk of court's office. See Wis. Stat. § 806.06(1)(b). In Barney, the circuit court entered an order approving the plea agreement. We held that the circuit court was then obligated to follow the terms of the agreement. Barney, 213 Wis. 2d at 360-61. While this distinction between Barney and the present case is factually correct, it is without legal importance.

¶ 21. In Comstock, the circuit court did not expressly find the defendant guilty and did not expressly order that a judgment of conviction be entered. Nevertheless, the supreme court held, "[w]hen the [plea hearing] ended, the defendant had every reason to believe that pursuant to the plea agreement the four felony charges were terminated and that his convictions of the misdemeanors were final." Id. at 951.

¶ 22. What is important in this case, as in Com-stock and Barney, is that the circuit court expressly accepted the plea agreement. It then moved on to sentencing. Terrill had every reason to believe, at that point, that he would not be found guilty of a felony unless he violated the plea agreement. Regardless whether there was a formal entry of judgment, the circuit court was bound by the terms of the agreement.

¶ 23. Last, the circuit court concluded that Com-stock and Barney are distinguishable because the circuit court's actions in those cases occurred months after the pleas were submitted and the diversion agreement implemented through entry of judgment. Here, the circuit court took action before the judgment had been entered. The circuit court concluded that such factual and procedural differences were significant. We disagree.

¶ 24. If the State had asked the circuit court to enter judgment on the felony after viewing the videotape, the State's action would have violated Terrill's right to fundamental due process. Whether that action took place minutes, hours, or days after Terrill entered his pleas, would be legally irrelevant.

¶ 25. The circuit court's action violates the same fundamental due process rights as would the State's withdrawal from a plea agreement. The timing of the circuit court's action is equally irrelevant.

¶ 26. Because the circuit court was bound by the plea agreement, we conclude it did not have the discretion to revoke the agreement and accept Terrill's plea to the felony. Therefore, we reverse and remand with directions to reinstate the agreement.

By the Court. — Judgments and order reversed and remanded with directions.

       All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.

       Terrill additionally argues that his guilty pleas were not knowingly and intelligently entered. We do not address this argument.

       We note that the circuit court's action resulted in Terrill being convicted of one felony and three misdemeanors. He was originally charged with only the felony. The misdemeanors were added as part of the plea agreement. Terrill pled guilty to the misdemeanors in order to avoid a felony conviction. By the circuit court's action, Terrill ended up worse off than if he had pled to the felony without a plea agreement.

       Here, the circuit court found there was no fraud.


author: BROWN, P.J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Paul L. Wolfe, Defendant-Appellant.
    Court of Appeals

      No. 00-1466-CR.

      Submitted on briefs January 26, 2001.

    Decided February 28, 2001.

    2001 WI App 66
    (Also reported in 625 N.W.2d 655.)

      On behalf of the defendant-appellant, the cause was submitted on the brief of Gary Seeling of Waukesha.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Marguerite M. Moeller, assistant attorney general, and James E. Doyle, attorney general.
    Before Brown, P.J., Anderson and Snyder, JJ.
   BROWN, P.J.

¶ 1. Paul L. Wolfe appeals from an order of the trial court arguing that a sentencing judgment wrongly applied sentence credit to a stayed consecutive sentence rather than the sentence for which he was incarcerated. The basic question before us is whether a court, in a multiple count conviction where one sentence is imposed and another stayed, must apply sentence credit to the conviction of the first imposed sentence. We hold that it must under the rule of State v. Boettcher, 144 Wis. 2d 86, 100, 423 N.W.2d 533 (1988), and State v. Rohl, 160 Wis. 2d 325, 330, 466 N.W.2d 208 (Ct. App. 1991).

¶ 2. Wolfe pled guilty to burglary and possession of burglarious tools as a repeater. Wolfe could have received a total of eighteen years in prison: ten years for burglary and eight years (two plus six for the repeater) for the possession charge. Because Wolfe was unable to make bail, he was in custody until sentencing for a total of 331 days. On October 22, 1999, the trial court sentenced Wolfe to the maximum ten years on the first count and to a consecutive six years on the second count (which the court incorrectly believed to be the maximum). The court then stayed the latter sentence and placed Wolfe on probation for four years. The court acknowledged that Wolfe was entitled to 331 days of credit for time he had spent in custody prior to sentencing. However, instead of applying the credit to Wolfe's ten-year sentence, the trial court applied it to the offense for which he had placed Wolfe on probation.

¶ 3. Six months after sentencing, Wolfe filed a motion to modify his sentence, arguing that the trial court should have applied the 331 days of credit against the ten-year sentence for burglary, rather than against the imposed and stayed consecutive six-year sentence which he might never serve. The trial court denied the motion. On appeal, we note that the State concedes error and asserts that the holdings of Boettcher and Rohl govern this case. We agree and accept the concession. We further agree that the holding of the trial court runs afoul of the rule in Struzik v. State, 90 Wis. 2d 357, 279 N.W.2d 922 (1979).

¶ 4. The question before us involves the application of the Wisconsin sentence credit statute, Wis. Stat. § 973.155 (1999-2000), to the particular facts before us. This presents a question of law which this court reviews de novo. Rohl, 160 Wis. 2d at 329.

¶ 5. A line of cases applying WlS. STAT. § 973.155 has clearly established that in awarding dual credit for consecutive sentences based on the same course of conduct, credit should be allocated to the sentence first imposed. Boettcher, 144 Wis. 2d at 100 ("[C]ustody credits should be applied in a mathematically linear fashion ... on a day-for-day basis ... to the sentence that is first imposed."); Rohl, 160 Wis. 2d at 330. The trial court declined to follow these cases, finding them to be factually distinguishable because neither one involved an imposed and stayed consecutive sentence. The State surmises that it is possible that the trial court interpreted the volume of the Wisconsin Judicial Benchbook on criminal proceedings, which cites Wilson v. State, 82 Wis. 2d 657, 264 N.W.2d 234 (1978), as permitting this result. We clarify that the rule enunciated in Boettcher and Rohl applies to these facts, and that the result obtained by the trial court is impermissible under Struzik.

¶ 6. In Struzik, the trial court determined that Struzik was entitled to fourteen days of credit and then sentenced him to five years and fourteen days, effectively nullifying the sentence credit he had received. On appeal, the supreme court found this improper, stating: "This technique subverts the constitutional right of a convicted prisoner to have time previously served (in circumstances where the time should be credited) applied toward the reduction of an appropriate sentence. This procedure is a clear abuse of discretion." Struzik, 90 Wis. 2d at 367-68.

¶ 7. Here, the trial court clearly expressed its intention to make Wolfe serve the maximum amount of time possible on his burglary sentence. To ensure this result, the trial court applied the 331 days of credit to which Wolfe was entitled to the imposed and stayed sentence. If Wolfe successfully completes his probation on the second count, the benefit of the credit will never have accrued to him. Since the possible effect of this action would be to nullify the 331 days of credit, we view this result as a "clear abuse of discretion" under Struzik.

¶ 8. We further instruct that the Judicial Benchbook, and its citation to the Wilson case, should not be construed to allow allocation of sentence credit to the second imposed sentence. To the extent that Wilson suggests the trial court can choose which of two consecutive sentences will receive credit, we hold that Boettcher — at least sub silentio — overruled the language in Wilson which indicates that the trial court has a choice in the matter.

¶ 9. We reverse the trial court's order denying Wolfe's motion for sentence modification and direct the trial court to amend the judgment of conviction to provide for 331 days of sentence credit against Wolfe's burglary conviction.

By the Court. — Judgment and order reversed and cause remanded with directions.

       Wisconsin Statute §973.155(1) (1999-2000) provides as follows:
      973.155 Sentence credit. (1) (a) A convicted offender shall be given credit toward the service of his or her sentence for all days spent in custody in connection with the course of conduct for which sentence was imposed. As used in this subsection, "actual days spent in custody" includes, without limitation by enumeration, confinement related to an offense for which the offender is ultimately sentenced, or for any other sentence arising out of the same course of conduct, which occurs:
      1. While the offender is awaiting trial;
      2. While the offender is being tried; and
      3. While the offender is awaiting imposition of sentence after trial.
      (b) The categories in par. (a) include custody of the convicted offender which is in whole or in part the result of a probation, extended supervision or parole hold under s. 304.06(3) or 973.10(2) placed upon the person for the same course of conduct as that resulting in the new conviction.
      All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.

       The Wisconsin Judicial Benchbook provides that "[i]f sentences consecutive, Defendant is] to receive credit on only one sentence or the other." 1 Wisconsin Judicial Benchbook CR—15 (2000). The authority cited is Wilson v. State, 82 Wis. 2d 657, 667, 264 N.W.2d 234 (1978) (holding where consecutive sentences are imposed, credit against only one of them satisfies equal protection concerns with respect to defendants who make bail and those who do not).


author: BROWN, P. J.

text:
    Mary A. Cruz, Johnny Ray Ward, Daryl W. Hoksbergen, and Michael Porcaro, Plaintiffs-Respondents, v. All Saints Healthcare System, Inc. and Midwest Medical Record Associates, Defendants-Appellants.

    Court of Appeals

      No. 00-1473.

      Submitted on briefs January 12, 2001.

    Decided February 28, 2001.

    2001 WI App 67
    (Also reported in 625 N.W.2d 344.)

      On behalf of the defendants-appellants, the cause was submitted on the joint briefs of Robert L. Gegios, Timothy W. Feeley and Kalisa B. Barratt of von Briesen, Purtell & Roper, S.C. for All Saints HealthCare System, and Michael Fischer, Lisa S. Neubauer and Caroline A. Hogan of Foley & Gardner for Midwest Medical Record Associates, all of Milwaukee.
    On behalf of the plaintiffs-respondents, the cause was submitted on the brief of Adrian P. Schoone, Mark J. Leuck, and Chris G. Halverson of Schoone, Leuck, Kelly, Pitts & Knurr of Racine; John A. Becker of
      Becker, French & DeMatthew of Racine; William P. Dixon, and Sarah E. Siskind of Miner, Barnhill & Gal-land, P.C. of Madison.
    A nonparty brief was filed by Gary Bakke for the State Bar of Wisconsin; George Burnett of Liebmann, Conway, Olejniczak & Jerry of Green Bay; Scott Minter for the University of Wisconsin Law School; and Catherine La Fleur of La Fleur Law Office, S.C. of Milwaukee.
    A nonparty brief was filed by Tim Hartin for Wisconsin Health and Hospital Association, Inc. of Madison and Mark Adams for the State Medical Society of Wisconsin of Madison.
    Before Brown, P.J., Nettesheixn and Snyder, JJ.

      Petition to review filed.

   BROWN, P. J.

¶ 1. The issue before this court is whether the trial court erroneously exercised its discretion in certifying a class in a suit to recover unreasonable fees charged for copies of healthcare records. We are satisfied that the trial court did not act erroneously because it considered the relevant facts and law and reached a conclusion that a reasonable judge could reach. Therefore, we affirm.

¶ 2. The trial court certified as a class action a lawsuit brought by four patients of All Saints Healthcare System, Inc. (All Saints). All of these patients had requested, through their attorneys, copies of their medical records in anticipation of pursuing bodily injury tort claims. The class representatives allege that the uniform fee All Saints charged for copies of their medical records was "unreasonable" and in excess of the rate permitted by WlS. STAT. § 146.83(1)(b) (1999-2000), which provides in relevant part:

(1) Except as provided in s. 51.30 or 146.82(2), any patient or other person may, upon submitting a statement of informed consent:
(b) Receive a copy of the patient's health care records upon payment of reasonable costs.

¶ 3. Midwest Medical Record Associates (MMRA), the other named defendant, is the sole provider of copies of healthcare records pursuant to an exclusive contract it has with All Saints. MMRA charges numerous different rates depending on the request. For prelitigation requests made by attorneys on behalf of patients, MMRA charges a processing fee of $25 per request, $1 per page of records copied, postage and handling, and sales tax. Patients seeking copies of their own medical records pay substantially lower charges. There is no charge for records if they are requested for continuity of care purposes.

¶ 4. Upon the filing of the lawsuit, there followed a series of motions and hearings. The parties also engaged in a limited amount of discovery, including deposing witnesses, to clarify class certification issues. At one point, however, the trial court issued an order prohibiting the parties from taking further depositions for purposes of class discovery, finding that the questions asked deponents went "too far afield" from what was permissible. On May 15, 2000, the trial court entered an order certifying the following class pursuant to WlS. Stat. § 803.08:

Any person who, since January 5, 1998, has requested or will request from All Saints Healthcare System (including St. Mary's Hospital, St. Luke's Hospital and All Saints Medical Group) or MMRA, its medical records provider, copies of patient healthcare records and incurred or will incur a billing charge therefor in excess of State or Federal mandated rates provided such request was or is submitted by or through an attorney, insurance company or individual, other than an individual requesting his/her own records. (Footnote not in original.)

¶ 5. On appeal, All Saints and MMRA argue that the trial court's analysis of the prerequisites for class certification represents an erroneous exercise of discretion, that they were denied the opportunity to fully develop a factual record through discovery, and that class certification under Wis. Stat. § 803.08 conflicts with the legislative intent of the medical records law in Wis. Stat. §§ 146.83 and 146.84. First, we will address the issue of legislative intent as we see this as a threshold inquiry regarding the appropriateness of class certification in this case.

¶ 6. Section 146.84 of the Wisconsin statutes provides that an individual who is injured by a health care provider's knowing and willful violation of the "reasonable costs" provision of Wis. Stat. § 146.83(1)(b) may recover for "actual damages to that person." WlS. Stat. § 146.84(l)(b). As amici curiae, the State Medical Society of Wisconsin (SMS) and the Wisconsin Health and Hospital Association (WHHA) interpret this language to require an individual, case-by-case determination of claims and damages. Class certification, on the other hand, entails a uniform award of class-wide relief for claimants. Such a damages award, they argue, without case-by-case inquiry, would undermine the legislative intent of the medical records law. For reasons we discuss below, we conclude that class certification does not contravene the purposes of the medical records law; rather, it provides an ideally suitable mechanism for enforcing that law.

¶ 7. Whether Wis. Stat. §§ 146.83 and 146.84 must be construed to shield healthcare record providers from class action is a matter of statutory interpretation, which is a question of law subject to our de novo review. Hannigan v. Sundby Pharmacy, Inc., 224 Wis. 2d 910, 920, 593 N.W.2d 52 (Ct. App. 1999). The main goal of statutory interpretation is to discern the intent of the legislature and give it effect. State ex rel. Frederick v. McCaughtry, 173 Wis. 2d 222, 225, 496 N.W.2d 177 (Ct. App. 1992). We first look to the plain language of the statute; only if it is ambiguous do we turn to extrinsic aids such as legislative history. State ex rel. Dieckhoff v. Severson, 145 Wis. 2d 180, 189-90, 426 N.W.2d 71 (Ct. App. 1988). We will not construe statutes in a manner that yields an unreasonable result. Id. at 193.

¶ 8. The language in the medical records statute is plain on its face. The words "actual damages to that person" and "reasonable costs" do not establish a legislative intent that would be contravened by class action. The statute simply expresses the legislature's intent that a person is entitled to obtain his or her medical records at a reasonable cost and provides a procedure to redress unreasonable charges. As the State Bar of Wisconsin (SBA) noted in its amicus curiae brief, "[i]t requires a stretch of tremendous statutory dimension to say this language prevents a class action by those who contend, for example, that a charge of $29.90 for receipt of a copy of one page is an unreasonable charge." Indeed, if the position of All Saints and MMRA were to prevail, the reasonableness of copying charges might never be tested; and we must avoid statutory interpretations that yield unreasonable results.

¶ 9. We believe that given the economic realities of this case, class action may be the only effective means to implement the legislature's intent to provide redress for unreasonable charges in Wis. Stat. § 146.84. The individual amounts at issue are small and not likely to justify individual suits. These economic factors make this case ideally suited to class action. Here, the aggregation of small claims, when joined as a class, becomes worthwhile to litigate. This economy of scale rationale underlying class actions has long been recognized by courts. See Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 809 (1985) (noting where claims averaged $100, "most of the plaintiffs would have no realistic day in court if a class action were not available"); Deposit Guar. Nat'l Bank v. Roper, 445 U.S. 326, 339 (1980) (observing that where small individual claims are involved, "aggrieved persons may be without any effective redress unless they employ the class action device"); Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 161 (1974) (where plaintiff had $70 at stake, "[e]conomic reality dictates that petitioner's suit proceed as a class action or not at all"); Sisters of St. Mary v. AAER Sprayed Insulation, 151 Wis. 2d 708, 722, 445 N.W.2d 723 (Ct. App. 1989) (noting class action suits may be appropriate remedy where litigation costs exceed recovery). We observe approvingly that the trial court recognized the particular effectiveness of a class action in this case when he wrote:

To entertain the individual claim of each requestor who claims that the fee charged to them is unreasonable under § 146.83(1) would be impossible. Even though they might be small claims matters ... the sheer number of cases would overwhelm the system. The effect of numerous identical claims which could otherwise be handled in a class action would be to either deny or unreasonably delay justice for a host of other litigants. It is concluded that it would be impracticable to bring all of the interested parties before the court and, in any event, it is concluded that if it were not for a class action suit numerous interested parties would be denied their day in court because an individual claim, though meritorious, would not warrant the time of a lawyer

¶ 10. We conclude that the medical records statute does not preclude class certification in this case. We now turn to whether the trial court erred in certifying the class. We will also address whether the trial court inappropriately limited discovery.

¶ 11. We review a trial court's decision on class certification for an erroneous exercise of discretion. Schlosser v. Allis-Chalmers Corp., 86 Wis. 2d 226, 233, 271 N.W.2d 879 (1978). We will uphold a trial court's determination if it examines the relevant facts, applies a proper legal standard and, in a rational process, reaches a conclusion that a reasonable judge could reach. Sisters of St. Mary, 151 Wis. 2d at 713.

¶ 12. Our courts interpret Wis. STAT. § 803.08 as mandating three prerequisites for bringing a class action: (1) there must be a common or general interest shared by all members of the class; (2) the named parties must fairly represent the interest involved; and (3) it must be impracticable to bring all interested parties before the court. Mercury Records Prod., Inc. v. Econ. Consultants, Inc., 91 Wis. 2d 482, 490, 283 N.W.2d 613 (Ct. App. 1979). In addition to satisfying these three criteria, however, we must also engage in an analysis of the benefits and burdens of a class action. Our courts have consistently held the view that the trial court must weigh "the advantages of disposing of the entire controversy in one proceeding" against "the difficulties of combining divergent issues and persons." Schlosser v. Allis-Chalmers Corp., 65 Wis. 2d 153, 172, 222 N.W.2d 156 (1974) (citations omitted); Sisters of St. Mary, 151 Wis. 2d at 715. Simply put, we need to assess the manageability of the proposed class. We now focus on whether the instant case meets the prerequisites of § 803.08.

¶ 13. MMRA and All Saints vehemently argue that the class representatives are not the real parties in interest in this case and therefore the first prerequisite, commonality of interest, is lacking. Relying on McCarthy v. Recordex Service, Inc., 80 F.3d 842 (3rd Cir. 1996), they argue that the Wisconsin trial lawyers, not the class members who are their clients, are the real parties in interest in this litigation. This position rests on the premise that sometimes attorneys do not recoup medical record costs from their clients. Therefore, the argument goes, only persons who actually paid for healthcare records can be class representatives.

¶ 14. We reject this illogical position. As the trial court noted in its memorandum, the relevant fact is the incurring of the debt, not the payment. Although in most cases, attorneys advance the expenses for medical records, it is the client who ultimately pays the final cost by virtue of subtracting these expenses from the settlement or verdict. This procedure is entirely in accordance with the Rules of Professional Conduct which authorize advancement of costs for cases handled on a contingent fee basis. SCR 20:1.8(e)(1) (2001). The purpose behind this directive is to prevent an attorney from acquiring a financial interest in litigation which might interfere with the attorney's exercise of independent professional judgment on behalf of the client. See Brame v. Ray Bills Fin. Corp., 85 F.R.D. 568, 578 (N.D.N.Y. 1979). It would be illogical indeed to argue that when attorneys follow a legally and ethically proper procedure for advancing costs in litigation they somehow acquire an impermissible proprietary interest in the litigation.

¶ 15. The McCarthy case involved similar facts but an entirely different legal analysis. In McCarthy, attorneys' clients challenged the prices for medical record copies by asserting a class action suit under federal antitrust statutes. Applying the "direct purchaser" rule under antitrust law, the court found that clients who were never liable for the costs of medical records lacked standing to sue under RICO. McCarthy, 80 F.3d at 854. Its holding, however, was narrowly construed to apply only in the "instant antitrust context." Id. at 854 n.19. The dissenting opinion suggested, and the majority did not disagree, that a different result would be obtained under state law. In any event, McCarthy is neither binding nor persuasive on the issue of commonality of interest for purposes of class certification under Wisconsin law.

¶ 16. Once we dispose of the "true parties in interest" argument, it is clear that the first prerequisite for class certification has been established in the record. The class, as defined by the trial court, includes all persons who requested copies of medical records as an "ordinary request" under MMRA's set fee schedule. There is a common legal question as to whether such fees are unreasonable under WlS. Stat. § 146.83(l)(b). Also, the claims of the representative parties are typical of the class in that each asserts the charges were unreasonable; each class member's claim could be determined in a single case and would involve common issues of proof. We agree with the trial court's conclusion that "it is the defendants who have through the application of their charging schedule clearly defined the class."

¶ 17. Next, All Saints and MMRA contend that the trial court erred in holding that the second prerequisite, adequacy of representation, had been satisfied. We note that adequate representation is the foundation which renders class actions consistent with due process. Hansberry v. Lee, 311 U.S. 32, 42-43 (1940). If absent class members are not adequately represented, any final judgment will have no res judicata effect as to them. Phillips Petroleum Co., 472 U.S. at 808.

¶ 18. In determining adequacy of representation, the primary criteria are: (1) whether the plaintiffs or counsel have interests antagonistic to those of absent class members; and (2) whether class counsel are qualified, experienced and generally able to conduct the proposed litigation. Griffin v. Carlin, 755 F.2d 1516, 1533 (11th Cir. 1985). So long as the individual has a general understanding of the nature of the class claims alleged, the individual can serve as representative. Andrew P. Campbell, Class Actions: A Primer, 20 Am. J. Trial Advoc. 305, 310 (1997).

¶ 19. All Saints and MMRA's assertion that the class representatives are inadequate is based on the knowledge and abilities of the individuals as revealed in depositions taken during discovery. Again, we find no error where the trial court, based on the record, found the individuals to have a basic understanding of the elements of the claim and understand they speak for others whose complaints are similar to their own. Nor do we find error where the trial court concluded that each named class representative has a sufficient interest in the outcome to ensure vigorous advocacy.

¶ 20. All Saints and MMRA allege that had they been allowed to proceed with discovery, they would have been able to more fully develop the record with respect to adequacy of representation. Management of discovery is within the discretion of the trial court. 2 Newberg on Class Actions § 7.08 (3d ed. 1992). In this case, the trial judge determined that the record, consisting of interrogatories, affidavits and depositions, supplied ample facts to resolve class certification issues, including adequacy of representation. Therefore, the trial court did not erroneously exercise its discretion in holding that further discovery on the procedural issue of class certification was unnecessary. Moreover, when parties opposing class certification use discovery from class representatives as a device to harass and embarrass, the trial court may appropriately limit the number and scope of depositions. Id. Here, the record shows that MMRA went beyond the scope of permissible discovery by inquiring into the representatives' ability to pay sanctions if required. The trial court found that this attempt to harass and intimidate was inappropriate and barred further depositions on the issue of certification. Again, we find no error in this exercise of the court's discretion.

¶ 21. The final arguments of All Saints and MMRA concern the issue of manageability. They contend that the trial court erred in determining manageability because of individual issues that may arise in this case if the claims are aggregated. Relying on two Wisconsin cases, Sisters of St. Mary and Derzon v. Appleton Papers, Inc., No. 96-CV-3678, 1998 WL 1031504 (Wis. Cir. July 7, 1998), aff'd sub nom. Derzon v. New Oji Paper Co., No. 99-1368, unpublished slip op. (WI App. October 31, 2000), they argue that individual damages questions render the case unmanageable as a class action. Sisters of St. Mary involved hospitals seeking to recover the costs of asbestos abatement. The facts which rendered Sisters of St. Mary unmanageable as a class action included the application of several bodies of law, prolonged trial proceedings which would take years, and over forty affirmative defenses raised by the defendants. Sisters of St. Mary, 151 Wis. 2d at 718-19. Under these facts, the court observed, the trial judge did not err in concluding that the question of damages presented "staggering problems of logistics" which made the case unmanageable. Id. at 721 (citations omitted).

¶ 22. Derzon was an even more complicated case. An attorney sought class certification in a suit that alleged price fixing claims under Wisconsin antitrust laws against fax paper manufacturers and distributors. The trial court noted that "[t]he multi-state character of the class, the indirect purchaser theory, the vast number of potential members and the many different types of wholesalers and retailers included with actual consumers all combine to create significant complexities . . . ." Derzon, 1998 WL 1031504, at *4. Given these facts, the trial court concluded that the plaintiff could not prove injury by common evidence or that damages claims could reasonably be united in a single case. Id. at *10.

¶ 23. We easily distinguish the facts in this case from the complicated factual scenarios presented in Derzon and Sisters of St. Mary. We have no issues of subclasses, multiple and complicated defenses, or the application of different state laws. Instead, we have the singular legal issue of whether the fees charged to the class were unreasonable under Wisconsin law. The trial judge did not erroneously exercise his discretion in finding that "[t]he facts applicable to each proposed class member would not be complex . . . one answer is going to respond to each of the persons: the charges were reasonable or they were unreasonable." Of course, the burden for showing "unreasonableness" is on the class representatives. If they prevail, damages will be assessed to recoup the portion of the fees found to be unreasonable.

¶ 24. In conclusion, we hold that the plain language of WlS. Stat. §§ 146.83(l)(b) and 146.84(l)(b) does not preclude certification of a class action in a suit to recover unreasonable fees charged for copies of healthcare records. We also hold that the trial court reasonably applied the principles of commonality, adequacy of representation and manageability in certifying the class. The order certifying the class action suit is affirmed. Furthermore, the order barring further discovery on the issue of class certification was well within the discretion of the trial court.

By. the Court. — Orders affirmed.

       All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.

       This is the date upon which the contract between All Saints and MMRA became effective and when new and substantially higher copying rates were implemented.

       For a thorough review of the legislative history of Wis. Stat. § 146.84, see Hannigan v. Sundby Pharmacy, Inc., 224 Wis. 2d 910, 921-24, 593 N.W.2d 52 (Ct. App. 1999). We note that the "reasonable costs" language of Wis. Stat. § 146.83(1)(b) has remained unchanged since its enactment as part of the 1980 budget review bill. See Laws of 1979, ch. 221, § 649t.

       As amici curiae, WHHA and SMS contend that judicial review of reasonable costs would necessarily impose a uniform, fixed price for medical records which is impermissible under these statutes. They note the legislature has never replaced the reasonable costs standard with a uniform rate. However, the trial court has not implied, nor can we assume, that the only remedy for unreasonable charges is to impose a fixed price.

       Wisconsin Stat. § 803.08 provides:
      When the question before the court is one of a common or general interest of many persons or when the parties are very numerous and it may be impracticable to bring them all before the court, one or more may sue or defend for the benefit of the whole.

       We summarily dispose of the third requirement, numer-ousness, since All Saints and MMRA do not contest that it would be impracticable to bring the many possible plaintiffs before the court.

       As amicus curiae, the SBA points out that lawyers who make advancements in contingency litigation with the expectation of being repaid may not deduct them as ordinary business expenses. Canelo v. Comm'r, 447 F.2d 484, 485 (9th Cir. 1971) (per curiam). Taxing authorities thus view this interest as a mere loan and not a true proprietary interest deserving of a tax break.

       It is clear from the record that the information All Saints and MMRA sought to discover was the contents of contingency fee agreements between the class representatives and counsel in an effort to bolster their "real parties in interest" theory. We have rejected that theory, as did the trial court, and any discovery on this issue is irrelevant.

       We note that WlS. STAT. Rule 809.23(3) does not bar citation to unpublished circuit court opinions; see Brandt v. LIRC, 160 Wis. 2d 353, 363-65, 466 N.W.2d 673 (Ct. App. 1991). We further note that we do not consider the cited circuit court decision as binding precedent or authority. We limit our discussion of the cited circuit court opinion to determine if its reasoning or logic is persuasive to the case before us. Id. at 365.

       All Saints and MMRA refer to the voluntary payment doctrine as a defense which renders the suit unmanageable as a class action. The trial court noted this concern but did not agree that it would make the class unmanageable. We do not consider this to be an unreasonable conclusion.