author: DEININGER, J.

text:
    Joseph Mattila and Charles V. Law, Plaintiffs-Respondents, v. Employe Trust Funds Board, Defendant-Appellant, Douglas County, Intervenor-Appellant.
    Court of Appeals

      No. 00-0759.

      Submitted on briefs December 13, 2000.

    Decided March 29, 2001.

    2001 WI App 79
    (Also reported in 626 N.W.2d 33.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of L. Jane Hamblen, assistant attorney general, and James E. Doyle, attorney general.
    On behalf of the intervenor-appellant, the cause was submitted on the briefs of William G. Thiel of Weld, Riley, Prenn & Ricci, S.C., Eau Claire.
    On behalf of the plaintiffs-respondents, the cause was submitted on the brief oí Richard Thai of Madison.
    Before Dykman, P.J., Vergeront and Deininger, JJ.
   DEININGER, J.

¶ 1.

The Employe Trust Funds Board appeals a circuit court order which reversed its decisions in a dispute between Douglas County and two sheriff s department employees regarding their status as participants in the state retirement system. The Board had determined that the County properly classified the two as general category employees rather than protective occupation participants. The circuit court, however, concluded that the Board erred because the employees "were legally appointed deputy sheriffs who performed certain deputy duties on a regular basis," thus qualifying them as "protective occupation participants" under WlS. Stat. § 40.02(48) (1999-2000). We accord the Board's application of the statute to the present facts great weight deference, and we find its interpretation reasonable. Accordingly, we reverse the circuit court order and reinstate the Board's decisions.

BACKGROUND

¶ 2. The County and the employees have stipulated to most of the facts relevant to their dispute. The following paragraph summarizes the stipulated facts.

¶ 3. Joseph Mattila and Charles Law have been employed as jailers with the Douglas County Sheriff s Department since 1979. In 1988-89, each obtained certification from the Department of Justice Law Enforcement Training Standards Board as a law enforcement officer. After they became certified, the Douglas County Sheriff deputized the two men, and "each has, from time to time in the past and continues to serve from time to time in functions reserved to Deputy Sheriffs . . . performing law enforcement functions not reserved to or performed by jailers." These "law enforcement functions" are performed "upon request or demand of the Sheriff and/or a subordinate," and include such things as road patrol, special response team or SWAT assignments, civil process service, and prisoner transports. Since their certification as law enforcement officers, however, each employee "has spent more than one-half of his work time performing jailer duties."

¶ 4. The County classified both Mattila and Law, along with all other Douglas County jailers, as "general category" employees for purposes of their participation in the state retirement system. They both requested in 1995 that the County report them as "protective occupation participants," but the County denied their requests. Each appealed the denial to the Board, which combined the two appeals for hearing and disposition. See Wis. Stat. § 40.06(l)(e). The Board found that Douglas County does not require its jailers to be law enforcement certified, although several jailers, like Mattila and Law, are so certified. The Board also noted that the Douglas County Sheriff had deputized all Sheriffs Department employees, including jailers, secretaries and receptionists.

¶ 5. In affirming the County's "general employee" classification of the two jailers, the Board concluded that in order to meet the requirements for a "protective occupation participant" under WlS. STAT. § 40.02(48)(a), an employee must show that fifty-one percent or more of his or her duties involve "active law enforcement." It further determined that the duties of a jailer in Douglas County do not meet this test, and that Mattila's and Law's principal duties "clearly fall more within the scope of security services than active law enforcement." Finally, in the Board's view, the two men were not "employed as ... deputy sheriffts] within the meaning of WlS. Stat. § 40.02(48)(am) and (b)(3)."

¶ 6. Mattila and Law sought review of the Board's final decision in the Dane County circuit court. Although it acknowledged that it "must give deference to the Board's legal interpretations," the court concluded that the stipulated fact "that the sheriff of Douglas County appointed each plaintiff as a deputy sheriff is dispositive." The court went on to conclude that the Board erred in failing to give the term "deputy sheriff' in WlS. STAT. § 40.02(48)(am) its "plain, ordinary, obvious meaning"; that Mattila and Law come within the term as used in that paragraph; and that they therefore must be classified as protective occupation participants, regardless of whether they would qualify under the provisions of § 40.02(48)(a).

¶ 7. The Board appeals the circuit court order reversing its decisions, and we have granted Douglas County's request to intervene as an appellant.

ANALYSIS

¶ 8. In deciding an appeal from a circuit court's order affirming or reversing an administrative agency's decision, we review the decision of the agency, not that of the circuit court. Barnes v. DNR, 178 Wis. 2d 290, 302, 506 N.W.2d 155 (Ct. App. 1993), aff'd, 184 Wis. 2d 645, 516 N.W.2d 730 (1994). The threshold question in this appeal, as in many involving the review of agency determinations, is the appropriate standard for our review. Specifically, what level of deference are we to accord the Board's interpretation and application of Wis. STAT. § 40.02(48)? The Board and the County urge us to accord great weight deference, while Mattila and Law seek a de novo review by this court. We conclude that great weight deference is the proper standard.

¶ 9. A court should accord an agency's statutory interpretation great weight deference if: (1) the legislature has charged the agency with the duty of administering the statute; (2) the agency's interpretation is one of long-standing; (3) the agency used its expertise or specialized knowledge in forming the interpretation; and (4) the interpretation of the agency will provide uniformity and consistency in the application of the statute. See Harnischfeger Corp. v. LIRC, 196 Wis. 2d 650, 660, 539 N.W.2d 98 (1995). There is no question, that the first criterion is met: the legislature has charged the Board with the duty of deciding appeals by retirement system participants of an employer's classification regarding protective occupation status under WlS. Stat. § 40.02(48). See WlS. STAT. § 40.06(l)(e).

¶ 10. Likewise, there can be little dispute that the Board has acquired considerable experience, expertise, and specialized knowledge regarding "protective occupation" determinations, that it used its expertise and knowledge in deciding this appeal, and that its interpretation fosters the uniform and consistent application of the statute. See County of La Crosse v. WERC, 170 Wis. 2d 155, 169-70, 488 N.W.2d 94 (Ct. App. 1992), reversed on other grounds, 180 Wis. 2d 100, 508 N.W.2d 9 (1993) (noting that since at least 1986, " '[t]he DETF Board has reviewed appeals from jailers who are classified as general employees, and . . . deemed that they do not meet the requirements] for protective designation under present statutes'"). Mat-tila and Law contend, however, that the precise issue presented in this appeal is one of first impression because it involves jailers who are also certified law enforcement officers, who are deputized by the sheriff, and who sometimes perform law enforcement duties.

¶ 11. We disagree that by emphasizing the uniqueness of certain facts presented to an administrative agency, an appellant of the agency's determination can obtain de novo judicial review of its statutory interpretation. As we have previously explained:

The test is not, however, whether the commission has ruled on the precise — or even substantially similar — facts in prior cases. If it were, given the myriad factual situations to which the provisions of [a statute] may apply, deference would indeed be a rarity. Rather, the cases tell us that the key in determining what, if any, deference courts are to pay to an administrative agency's interpretation of a statute is the agency's experience in administering the particular statutory scheme — and that experience must necessarily derive from consideration of a variety of factual situations and circumstances. Indeed, we have recognized in a series of cases that an agency's experience and expertise need not have been exercised on the precise — or even substantially similar — -facts in order for its decisions to be entitled to judicial deference.

Barron Elec. Coop. v. PSC, 212 Wis. 2d 752, 764, 569 N.W.2d 726 (Ct. App. 1997) (footnote omitted).

¶ 12. Accordingly, we will grant great weight deference to the Board's interpretation and application of WlS. Stat. § 40.02(48). Our inquiry thus becomes whether the Board's interpretation is reasonable, and the burden is on Mattila and Law to show that the Board's interpretation is unreasonable. Harnischfeger, 196 Wis. 2d at 661. "An interpretation is unreasonable if it directly contravenes the words of the statute, it is clearly contrary to legislative intent or it is without rational basis." Id. at 662.

¶ 13. We begin with the language of the statutory provisions at issue. Wisconsin Stat. § 40.02(48)(a) defines "protective occupation participant" to mean "any participant whose principal duties are determined by the participating employer ... to involve active law enforcement or active fire suppression or prevention, provided the duties require frequent exposure to a high degree of danger or peril and also require a high degree of physical conditioning." The statute goes on, however, to specify that "protective occupation participant" includes:

[A]ny participant whose name is certified to the fond as provided in s. 40.06(l)(d) . . . and who is a conservation warden, conservation patrol boat captain, conservation patrol boat engineer, conservation pilot, conservation patrol officer, forest fire control assistant, member of the state traffic patrol, state motor vehicle inspector, police officer, fire fighter, sheriff, undersheriff, deputy sheriff, state probation and parole officer, county traffic police officer, state forest ranger, fire watcher employed at the Wisconsin veterans facilities, state correctional-psychiatric officer, excise tax investigator employed by the department of revenue, special criminal investigation agent in the department of justice, assistant or deputy fire marshal, or person employed under s. 61.66(1).

Section 40.02(48)(am) (emphasis added). And, as further guidance, § 40.02(48)(b) specifies that "[e]ach determination of the status of a participant under this subsection shall include consideration, where applicable, of the following factors":

3. A "deputy sheriff' ... is any officer or employee of a sheriffs office or county traffic department, except one whose principal duties are those of a telephone operator, clerk, stenographer, machinist or mechanic and whose functions do not clearly fall within the scope of active law enforcement even though such an employee is subject to occasional call, or is occasionally called upon, to perform duties within the scope of active law enforcement. Deputy sheriff... includes any person regularly employed and qualifying as a deputy sheriff.. . even if temporarily assigned to other duties.

¶ 14. The Board acknowledged in its decision that "[a] 'deputy sheriff is one of the occupations listed under par. (am) of [Wis. Stat. § 40.02(48)], and is defined under par. (b)3 of that [subjection." It concluded, however, that Douglas County did not employ Mattila and Law as deputy sheriffs within the meaning of paragraph (am), but as jailers. And, because "a jailer is not one of the occupations listed under par. (am). . . the only means by which [they] can qualify as . . . protective occupation participant[s] through... service as a jailer is to establish . . . qualification under par. (a)." The Board then concluded that because fifty-one percent or more of a Douglas County jailer's duties do not involve "active law enforcement," the two jailers did not qualify as protective occupation participants.

¶ 15. Mattila and Law argue that the Board's determination that they are not employed as deputy sheriffs is unreasonable, and thus should be reversed even under a deferential standard of review. They point out that it is undisputed that each of them had obtained law enforcement officer certification and had been deputized by the Douglas County Sheriff, and each performed law enforcement duties, from time to time, when requested to do so. According to Mattila and Law, the fact that they actually spend more than fifty percent of their employment time performing non-law enforcement, jailer's duties is irrelevant. They contend that "[u]nder WlS. Stat. § 40.02(48)(am) and (b)3, a county is obligated to classify all deputy sheriffs, regardless of their assigned duties, as protectives." Essentially, the two employees argue that the sheriff s decision to deputize them precludes the County from classifying them as other than protective occupation participants: "Mattila and Law qualify as protectives because they are deputy sheriffs. Under WlS. STAT. § 40.02(48)(am) and (b)(3), deputy sheriffs who perform jailer duties are ipso facto — like all other deputy sheriffs — entitled to be classified as protectives."

¶ 16. We reject the employees' contention. Mat-tila's and Law's reading of WlS. ¿TAT. § 40.02(48) would vest in the sheriff absolute control over a sheriffs department employee's classification for retirement system purposes. In their view, once a sheriff deputizes an employee (except "a telephone operator, clerk, stenographer, machinist or mechanic," see § 40.02(48)(b)3), neither the employing County nor the Board may classify the employee as other than a protective occupation participant. Thus, jailers, dispatchers, radio technicians, and even cooks, once deputized by the sheriff and subject to being occasionally summoned to assist in law enforcement duties, would all be protectives, regardless of their job descriptions or the amount of work time they devote to non-law enforcement functions.

¶ 17. Mattila's and Law's interpretation is itself unreasonable because it contravenes the legislature's intent. As we noted in County of La Crosse, "the duty imposed on the County to determine the status of participating employees in the Wisconsin retirement system is part of the legislative plan to ensure the integrity of the public employe[e] trust fund." County of La Crosse, 170 Wis. 2d at 165-66. An employee's classification as a protective occupation participant rather than as a general employee places greater financial demands on the state retirement system due to the earlier retirement age and reduced years-of-service requirements for protectives. See id. at 166-67. Under WlS. Stat. § 40.06(l)(d), the County as employer is charged with making the protective/general determination, but its decision to classify an employee as a protective occupation participant is subject to independent review by the Department of Employe Trust Funds, which may appeal the employer's protective classification to the Board. Section 40.06(l)(em). Permitting a sheriffs unilateral action in deputizing a department employee to bind the County, the department and the Board to classifying the employee as a protective occupation participant would nullify the classification and review scheme the legislature enacted in chapter 40.

¶ 18. We discussed the statutory provisions in question, and how they apply to jailers, in County of La Crosse:

The listing of "deputy sheriff in sec. 48.02(48)(am), STATS., does not automatically confer protective occupation participant status upon jailers. A jailer must also meet the definition of "protective occupation participant" in sec. 40.02(48)(a), STATS. As we have seen, thirty-four counties have concluded that their jailers meet the definition, while twenty-nine have concluded that their jailers do not. The determination whether a jailer meets the definition of "protective occupation participant" is not ministerial because the participating employer must determine whether the participant's "principal" duties involve "active" law enforcement, "frequent" exposure to a "high degree" of danger or peril, and require a "high degree" of physical conditioning. The determination requires fact finding and the exercise of judgment.

County of La Crosse, 170 Wis. 2d at 178. Mattila and Law, however, claim that our discussion regarding jailers in County of La Crosse is not controlling on the present facts because the question then before us involved whether classification as a protective was a mandatory subject of bargaining under WlS. STAT. § 111.70, and because the jailers in that case had not been appointed by the sheriff as deputy sheriffs. We agree with the County, however, that our conclusion in County of La Crosse that employers have a statutory duty under chapter 40 to determine the status of participating employees, based on their job duties and functions, has continuing validity. The Board did not err by relying on that conclusion in the present appeals.

¶ 19. We conclude that the Board reasonably interpreted WlS. STAT. § 40.02(48) as requiring the County to determine Mattila's and Law's participant status based on the principal duties they performed as sheriffs department employees, irrespective of whether the sheriff had appointed them as deputies. Being a "deputy sheriff is a necessary qualification to be deemed a protective occupation participant under § 40.02(48)(am), but, contrary to the employees' contention, it is not a sufficient one. As the County points out, paragraph (am) also requires that a participant's name be "certified to the fund as provided in s. 40.06(l)(d)." The latter statute, in turn, requires that "[e]ach participating employer . . . shall notify the department ... of the names of all participating employees classified as protective occupation participants determined in accordance with s. 40.02(48)." WlS. STAT. § 40.06(l)(d). And, § 40.02(48) begins with a definition of "protective occupation participant" which focuses on a determination of whether an employee's "principal duties" involve "active law enforcement." See § 40.02(48)(a).

¶ 20. In short, the Board reasonably concluded that the key factor in determining a participant's status in the state retirement system is the nature of the duties he or she principally performs for the employer, not whether the employee has been deputized by the sheriff. Its interpretation contravenes neither the words of the statute nor the legislature's intent, nor is it without a rational basis. See Harnischfeger, 196 Wis. 2d at 662.

¶ 21. Finally, we note that the parties, as well as the circuit court, have discussed whether and how certain provisions of chapter 59 regarding deputy sheriffs apply to the determination of participant status under WlS. Stat. § 40.02(48). Neither § 40.02(48)(am) nor (b)3 makes reference to the requirements and limitations set forth in WlS. STAT. § 59.26 for the appointment of deputy sheriffs. We thus conclude that whether the Douglas County Sheriff complied with the technical requirements for making deputy appointments, and whether the county board properly limited the number of deputy sheriffs by resolution instead of "by ordinance," are not relevant to the proper classification of Mattila and Law under § 40.02(48). As we have discussed, the key determining factor under the statute is not what the sheriff or the county board has or has not done with respect to appointing Mattila and Law as deputies, but what the two men themselves do as employees of the Douglas County Sheriff s Department.

CONCLUSION

¶ 22. For the reasons discussed above, we conclude that the Board reasonably interpreted and applied WlS. Stat. § 40.02(48) in affirming the County's classification of Mattila and Law as general category employees. Accordingly, we reverse the trial court's order and reinstate the Board's final decisions in the two cases.

By the Court. — Order reversed.

       The relevant portions of the cited statute are quoted and discussed in the text of this opinion. All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.

       In its brief to this court, the Board asserts that WlS. STAT. § 40.02(48)(b)3 plainly excludes Mattila and Law from qualifying as deputy sheriffs because, in the words of the subdivision, their "functions" as jailers "do not clearly fall within the scope of active law enforcement even though" the two are "subject to occasional call, or [are] occasionally called upon, to perform duties within the scope of active law enforcement." The Board did not rely on this rationale in its final decision, however, and the trial court concluded that the quoted language does not apply to Mattila and Law, because they normally function as jailers, not as telephone operators, clerks, stenographers, machinists or mechanics. In affirming the Board's decision, we do not rely on this portion of the Board's argument, nor do we address it further.

       For its conclusion that the term "principal duties" in WlS. Stat. § 40.02(48)(a) means "51% or more of the duties," the Board cited the discussion in County of La Crosse v. WERC, 170 Wis. 2d 155, 167, 488 N.W.2d 94 (Ct. App. 1992), reversed on other grounds, 180 Wis. 2d 100, 508 N.W.2d 9 (1993). The Board also adopted the following "working definition of engaging in 'active law enforcement' for [state retirement system] purposes," which it derived from numerous statutory references to "law enforcement officers":
      [T]o hold an office or public employment lawfully vested with a duty to maintain public order, being duly authorized to make arrests for violations of the laws or ordinances the person is employed by the participating employer to enforce and (while in said office or employment) to be actively, currently and directly involved in detecting and preventing crime and enforcing laws or the ordinances of a participating employer.
      Mattila and Law do not challenge the Board's definitions for these terms in § 40.02(48)(a), nor do they argue that the duties they perform as jailers fall within the scope of "active law enforcement." Rather, their claim is that the terms are irrelevant, given that they qualify as protectives under § 40.02(48)(am) because they are "deputy sheriffs."

       Lest it appear that we overstate the employees' position, we include the following additional statements from their brief: "[Section] 40.02(48)(am) states unambiguously that a County
        must classify deputy sheriffs as protectives." ”[B]ecause Mattila and Law are deputy sheriffs, the County is bound to classify them in a manner that is consistent with the unambiguous language of § 40.02(48)(am). The County's duty in this case is ministerial, not discretionary." "[The Boardfs analysis of the duties performed by Mattila and Law is immaterial: because Mattila and Law are deputy sheriffs, the circuit court correctly concluded that the County must certify to WRS that they are protectives." "The County's job descriptions are immaterial to the legal issue [i]n this case."

       The circuit court endorsed these distinctions and concluded that County of La Crosse v. WERC, 170 Wis. 2d 155, 488 N.W.2d 94 (Ct. App. 1992), reversed on other grounds, 180 Wis. 2d 100, 508 N.W.2d 9 (1993), "does not control this matter."


source: Caselaw Access Project

author: MASON, J.

license: Public Domain

text:
    Glenn E. Tagatz, Plaintiff-Respondent, v. Township of Crystal Lake, Defendant-Appellant.
    Court of Appeals

      No. 00-1035.

      Submitted on briefs November 7, 2000.

    Decided March 29, 2001.

    2001 WI App 80
    (Also reported in 626 N.W.2d 23.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of John E. Thiel of Godfrey & Kahn, S. C., Appleton.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Bernard N. Bult of Bernard N. Bull, S.C., Princeton.
    Before Dykman, P.J., Roggensack and Mason, JJ.

      Petition to review denied.

       Circuit Judge James M. Mason is sitting by special assignment pursuant to the Judicial Exchange Program.

   MASON, J.

¶ 1. The Town of Crystal Lake appeals a judgment requiring the Town to lay out a road to Glenn Tagatz's landlocked property. The trial court, construing Wis. Stat. § 80.13(3) (1997-98), concluded that the Town was required to build a road to a landlocked parcel if asked to do so. We conclude that the Town has discretion under § 80.13(3) to decide whether it is in the public interest to build a road to a landlocked parcel. We also conclude that the Town properly exercised its discretion in deciding not to build the road. We therefore reverse.

¶ 2. The construction of a statute is a question of law that we review de novo. Board of Regents v. Personnel Comm'n, 103 Wis. 2d 545, 551, 309 N.W.2d 366 (Ct. App. 1981). If a statute is unambiguous, we apply its language without looking to extrinsic aids. Harger v. Caterpillar, Inc., 2000 WI App 241, ¶ 3, 239 Wis. 2d 551, 620 N.W.2d 477.

¶ 3. Tagatz owns a very narrow strip of land between Tuttle Lake on the east and several privately owned parcels on the west. Tagatz's parcel has been assessed as a nonbuildable lot. The Town determined that any development of Tagatz's parcel would require at least three variances from local zoning laws.

¶ 4. Tagatz attempted to purchase an easement from his neighbors to the west in order to build an access road to his property across his neighbors' land. Finding that he was unable to make such a purchase, Tagatz petitioned under WlS. Stat. § 80.13, asking the Town to lay out an access road to his land. The Town supervisors held a hearing on Tagatz's petition and denied it.

¶ 5. The Town concluded that the public highway requested by Tagatz was not in the public interest. Tagatz contends that the Town does not have authority to deny his petition; he argues that the Town's discretion is limited to where and how wide the road should be; and he cites Wis. Stat. § 80.13(3), which provides in part:

The [town] supervisors shall meet at the appointed time and place and shall then in their discretion proceed to lay out such highway of not more than three nor less than two rods in width to such real estate ....

(Emphasis added.)

¶ 6. The words "in their discretion," Tagatz contends, apply to the width of the road and to its location. Tagatz argues that the words "in their discretion" do not give the Town discretion whether to lay out such a road.

¶ 7. We conclude that the words "in their discretion" do not apply merely to the width of the road or its location. Wisconsin Stat. § 80.13(3) is unambiguous, and authorizes the Town to decide whether to lay out a road: "The supervisors shall meet at the appointed time and place and shall then in their discretion proceed to lay out such highway ...

¶ 8. We also base our conclusion on Gaethke v. Town Bd., 86 Wis. 2d 496, 273 N.W.2d 764 (1979). In Gaethke, the dispute was over the location of an access road. Id. at 496. The Gaethkes contended that the town board was not authorized to lay out the road on their property. Id. at 499. Instead, they argued the town board was required to lay out the road over land from which the landlocked parcel was cut. Id. The supreme court instructed:

The Town Board being satisfied such were the facts [that the petitioner was landlocked] could then proceed. Whether a Town Board grants such a request is within its discretion and may depend on many factors. Likewise where the road should be laid out is also within its discretion. The Town Board under the statute is not restricted to laying out a road over the land of a seller who sub-divides and fails to provide a right-of-way. The Statute, 80.13(3) says the town supervisors "shall... in their discretion proceed to lay out such highway." In the exercise of discretion the Town Board may decide not to lay out a road at all. Or if it decides to do so the section provides for a damage award to the party over whose land the road is laid. But where it shall be laid out, over what route and over whose land is within the Town Board's discretion. The only restriction is that such road shall not be more than three rods nor less than two rods in width .... The Town Board in the exercise of its discretion can proceed either under 80.13(3) or 80.13(5). It is not restricted to laying out a road over land of the seller.

Id. at 500 (emphasis added). The issue in Gaethke was where the road was to be laid out. However, the court's construction of WlS. Stat. § 80.13(3) indicates that a town board's discretion applies to its decision whether to lay out a road at all. Tagatz contends, and the trial court in the instant case found this language from Gaethke to be dictum. But the language was germane to the controversy and is too clear to reject. Where a court's statement is germane to the controversy though not necessarily decisive of the primary issue, it is not dictum. State v. Fry, 131 Wis. 2d 153, 184, 388 N.W.2d 565 (1986).

¶ 9. Even if Gaethke did not provide clear guidance, we conclude that the plain meaning of WlS. Stat. § 80.13(3) gives town boards the right to exercise discretion in such circumstances. To preclude a town board from exercising its discretion could require town taxpayers to pay for roads to parcels even smaller or less buildable than this one.

¶ 10. We conclude that the Town acted within its authority and did not erroneously exercise its discretion.

By the Court. — Judgment reversed.

       All references to the Wisconsin Statutes are to the 1997-98 version unless otherwise noted. Wisconsin Stat. § 80.13(3) provides:
      The [town] supervisors shall meet at the appointed time and place and shall then in their discretion proceed to lay out such highway of not more than three nor less than two rods in width to such real estate, or shall add enough land to its width to make it not less than two nor more than three rods in width, and shall assess the damages to the owner or owners of the real estate over or through which the same shall be laid or from whom land shall he taken and the advantages to the applicant.


author: WILLIAM A. BABLITCH, J.

text:
    Sylvia M. Crawford, by June E. Goodyear, her guardian, Plaintiff-Respondent, v. Care Concepts, Inc., d/b/a/ Premier Care and St. Paul Fire & Marine Insurance Co., Defendants-Appellants-Petitioners, Donna Shalala, Secretary of the United States Department of Health & Human Services, Defendant.
    Supreme Court

      No. 99-0863.

      Oral argument November 6, 2000.

    Decided May 15, 2001.

    2001 WI 45
    (Also reported in 625 N.W.2d 876.)

      For the defendants-appellants-petitioners there were briefs by Michael J. Hogan, R. Scott Ritter and Hogan, Ritter, Minix & Pasholk, Milwaukee, and oral argument by Michael J. Hogan.

    For the plaintiff-respondent there was a brief by Philip R. Schomber and O'Neal, Forbeck, Elliott & Monahan, S.C., Beloit, and oral argument by Philip R. Schomber.

   WILLIAM A. BABLITCH, J.

¶ 1. Care Concepts, the owner of a nursing home in Beloit, Wisconsin, petitions this court to review a decision of the court of appeals. The court of appeals held that information, including records and reports, relating to a nonparty's assaultive or disruptive conduct was not protected by the physician-patient privilege, Wis. Stat. § 905.04 (1997-98). We agree. Information concerning assaultive or disruptive behavior by a patient and contained in medical records is not confidential, as that term is defined in the statutes. As a result, the privilege does not bar Care Concepts from responding to Crawford's discovery requests.

¶ 2. The court of appeals further concluded that Wis. Stat. § 146.82 does not prohibit Care Concepts from responding to Crawford's discovery demands. Section 146.82 generally bars the release of patient health care records to unauthorized persons without the patient's consent; information may be released without informed consent pursuant to certain statutorily enumerated circumstances. One of these statutorily enumerated circumstances permits records to be released under a lawful order of a court. The court of appeals held that nonprivileged information could be released by order of the court. We agree and therefore affirm the court of appeals' decision on this issue as well.

Facts and Procedural History

¶ 3. Sylvia Crawford was a patient at a Care Concepts' nursing home in Beloit. In October 1997 another nursing home resident, D.D., allegedly attacked and injured Crawford. Crawford brought a claim for damages against Care Concepts and its insurer, asserting that the injuries she sustained in the attack were caused by the negligence of the nursing home staff.

¶ 4. The litigation proceeded to the discovery stage. Crawford served upon Care Concepts interrogatories and a request for the production of documents. Care Concepts refused to answer a number of these interrogatories. Those disputed interrogatories that are the subject of this review stated:

INTERROGATORY NO. 4: State whether or not resident, D.D., ever engaged in conduct towards an employee, of defendant, Care Concepts, Inc., a resident of defendant, Care Concepts Inc., or any other person which caused or reasonably could have been expected to cause physical pain or injury, illness, or other physical impairment.
INTERROGATORY NO. 5: If the answer to Interrogatory No. 4 is in the affirmative, for each such incident please provide the following information:
A. The date such incident occurred.
B. The name and current address of any person against whom such action was taken.
C. State whether or not any records or reports of the incidents were prepared by defendant, Care Concepts, Inc., or on its behalf.
D. Describe in detail the nature of the incident.

INTERROGATORY NO. 6: State whether or not, in addition to any incident described in the answers to Interrogatories Nos. 4 and 5, D.D. ever engaged in any conduct the nature of which has a tendency to cause a disturbance.

INTERROGATORY NO. 7: If the answer to Interrogatory No. 6 is in the affirmative, for each such incident please provide the following information:

A. The date such incident occurred.
B. State whether or not any records or reports of the incident were prepared by defendant, Care Concepts, Inc., or on its behalf.
C. Describe in detail the nature of such incident.

¶ 5. Crawford also requested the production of all documents referred to or relied upon by Care Concepts in preparing its answers to these interrogatories.

¶ 6. Care Concepts argued that the information demanded by Crawford was confidential under Wis. Stat. § 146.82(1), and privileged under Wis. Stat. § 905.04(2). Crawford filed a motion in the circuit court to compel an answer. Rock County Circuit Court Judge Edwin C. Dahlberg granted Crawford's motion.

¶ 7. Subsequently, Care Concepts petitioned the court of appeals for leave to appeal from the circuit court's order. The petition was granted. The court of appeals affirmed in part and reversed in part the order of the circuit court. Crawford v. Care Concepts, Inc., 2000 WI App 59, 233 Wis. 2d 609, 608 N.W.2d 694. The court of appeals affirmed the circuit court order as to Interrogatories Nos. 4 and 5, finding that these questions sought information regarding what it characterized as assaultive conduct, and that the privilege in Wis. Stat. § 905.04(2) did not protect this type of information. Id. at ¶¶ 8-10.

¶ 8. The court of appeals next concluded that Interrogatories Nos. 6 and 7 may reach privileged matters. As a result, the court ordered that the circuit court conduct an in camera examination of the requested materials and determine if any information was privileged. Id. at ¶¶ 10-11.

¶ 9. Finally, the court of appeals concluded that Wis. Stat. § 146.82 did not bar the release of this information. The court held that although § 146.82 prohibits the release of patient health care records to unauthorized persons without the patient's consent, the statute permits such records to be released under a lawful order of a court. Id. at ¶ 12 n. 4. The court of appeals therefore concluded that nonprivileged material could be released by order of the circuit court.

¶ 10. Care Concepts subsequently sought review by this court. We granted its petition and now affirm the decision of the court of appeals.

Standard of Review

¶ 11. Rulings of the circuit court on issues of discovery are discretionary and will be upheld if they are " 'consistent with the facts of record and established legal principles.'" Ranft v. Lyons, 163 Wis. 2d 282, 290, 471 N.W.2d 254 (Ct. App. 1991)(quoting Lievrouw vRoth, 157 Wis. 2d 332, 358-59, 459 N.W.2d 850 (Ct. App. 1990)). Resolution of the issue before the court in this case requires an interpretation of Wis. Stats. § 905.04 and § 146.82. Statutory interpretation is a question of law, which this court reviews independently. Steinberg v. Jensen, 194 Wis. 2d 439, 458, 534 N.W.2d 361 (1995).

Analysis

I — I

¶ 12. Care Concepts asserts that two statutes prohibit it from responding to Crawford's interrogatories and request for production of documents: Wis. Stats. § 146.82 and § 905.04. We begin our analysis with consideration of § 905.04, relating to the eviden-tiary privilege to not have disclosed confidential communications that occur between a patient and certain health care professionals.

¶ 13. The applicability of Wis. Stat. § 905.04 arose while the parties engaged in pretrial discovery pursuant to the procedures set forth in Wis. Stat. ch. 804. The scope of pretrial discovery permitted under ch. 804 is broad, and discovery is not limited to admissible information. Wis. Stat. § 804.01(2). The requested information need only appear "reasonably calculated to lead to the discovery of admissible evidence." Wis. Stat. § 804.01(2)(a). This breadth is essential because the purpose of discovery is identical to the purpose of our trial system — the ascertainment of truth. State ex rel. Dudek v. Circuit Court, 34 Wis. 2d 559, 576, 150 N.W.2d 387 (1967).

¶ 14. The broad discovery rules encourage thorough investigation by the parties and foster the "revelation of the objective truth." Id. In our adversary system, pretrial discovery is "designed to formulate, define and narrow the issues to be tried, increase the chances for settlement, and give each party opportunity to fully inform himself [or herself] of the facts of the case and the evidence which may come out at trial." Id. Privileged matter presents a limited exception to the broad scope of discovery. Wis. Stat. § 804.01(2)(a). The privilege relied upon by Care Concepts in this case is the physician-patient privilege."[Exceptions to the demand for every man's [and woman's] evidence are not lightly created nor expansively construed, for they are in derogation of the search for truth." United States v. Nixon, 418 U.S. 683, 710 (1974). Accordingly, statutory privileges are construed strictly and narrowly. Steinberg, 194 Wis. 2d at 464 (citing Franzen v. Children’s Hosp., 169 Wis. 2d 366, 386, 485 N.W.2d 603 (1992)).

¶ 15. In applying Wis. Stat. § 905.04 to the facts of this case, we are mindful that this privilege must coexist in a judicial system seeking to find the truth, serve the interests of justice, and have all relevant information available for consideration by the fact-finder. Within this framework, we turn to consider the requirements of § 905.04.

¶ 16. Wisconsin Stat. § 905.04(2) provides:

GENERAL RULE OF PRIVILEGE. A patient has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made or information obtained or disseminated for purposes of diagnosis or treatment of the patient's physical, mental or emotional condition, among the patient, the patient's physician, the patient's registered nurse, the patient's chiropractor, the patient's psychologist, the patient's social worker, the patient's marriage and family therapist, the patient's professional counselor or persons, including members of the patient's family, who are participating in the diagnosis or treatment under the direction of the physician, registered nurse, chiropractor, psychologist, social worker, marriage and family therapist or professional counselor.

¶ 17. The legislature has provided specific definitions for two terms employed in Wis. Stat. § 905.04(2) and relevant to our analysis in this case. First, "confidential" is defined in § 905.04(l)(b) as follows:

A communication or information is "confidential" if not intended to be disclosed to 3rd persons other than those present to further the interest of the patient in the consultation, examination, or interview, or persons reasonably necessary for the transmission of the communication or information or persons who are participating in the diagnosis and treatment under the direction of the physician, registered nurse, chiropractor, psychologist, social worker, marriage and family therapist or professional counselor, including the members of the patient's family.

¶ 18. The court of appeals concluded, and we agree, that the word "confidential" in Wis. Stat. § 905.04(2) modifies both "communications made" and "information obtained or disseminated." Crawford, 2000 WI App. 59 atf 7.

¶ 19. Second, the word "patient" is defined in Wis. Stat. § 905.04(l)(c) as an "individual. . .who consults with or is examined or interviewed by a physician ..." or one of the other enumerated health care professionals. For the purposes of this analysis, we will assume that at all relevant times D.D. was a patient as defined by the statute.

¶ 20. The plain language of subsection (2) extends the physician-patient privilege to either "communications made or information obtained or disseminated" during professional contacts. Care Concepts focuses upon the portion of Wis. Stat. § 906.04(2) which provides that "information" that is "obtained. . .for purposes of diagnosis or treatment" is privileged. Noting that in this case D.D. suffers from Alzhiemer's disease, Care Concepts contends that a health care provider's written observation or treatment notes regarding an Alzheimer patient's violent behavior is information obtained by or disseminated by the provider for purposes of the patient's diagnosis and treatment. As a result, Care Concepts argues that such information is privileged.

¶ 21. We disagree with Care Concepts' conclusion because in this case the required elements of Wis. Stat. § 905.04 are not satisfied. Pursuant to that statute, the privilege is available when there is:

(1) A patient, as defined by Wis. Stat. § 905.04(l)(c).

(2) Information that is obtained or disseminated for purposes of diagnosis or treatment.

(3) Information that is confidential, as defined by Wis. Stat. § 905.04(l)(b).

(4) Information obtained or disseminated among the individuals enumerated in the statute.

¶ 22. The dispositive issue in this case is whether the information is confidential as defined by Wis. Stat. § 905.04(l)(b). This section sets forth the relationships that comprise the privilege. Therefore, to analyze whether this element is met, we must consider what information was sought by the interrogatories. Crawford's Interrogatories Nos. 4 and 5 requested information regarding whether D.D. engaged in assaultive conduct towards three classes of individuals: (1) "a resident of Care Concepts"; (2) "an employee, of defendant, Care Concepts"; or (3) "any other person." As to the first group, residents of Care Concepts, we find that the privilege does not protect information or records concerning assaults by D.D. against residents because that information is not confidential under the statute. Residents of the nursing home fall outside the network of relationships set forth in the privilege. Residents are third persons:

other than those present to further the interest of the patient in the consultation, examination, or interview, or persons reasonably necessary for the transmission of the communication or information or persons who are participating in the diagnosis and treatment under the direction of [enumerated health care professionals]....

Wis. Stat. § 905.04(l)(b). Thus, any assault made by D.D. against another resident was not confidential at its inception. Therefore, even if a health care professional documented this assaultive conduct in D.D.'s medical record for the purpose of diagnosis or treatment, the information is not privileged.

¶ 23. As to the next two classes of individuals addressed in Interrogatories Nos. 4 and 5, employees or other individuals, we again conclude that the definition of confidential in Wis. Stat. § 905.04(l)(b) is not satisfied. Individuals falling within these two groups could potentially fall within the statutorily enumerated list of individuals among whom confidential information may flow. However, § 905.04(l)(b) also provides that information is "confidential" only if it is not intended to be disclosed to third persons. We conclude that an attack upon an employee or other person could not be undertaken with the intent that the act remain confidential under § 905.04.

¶ 24. Care Concepts argues that the statute does not define whose intent governs, the patient or the health care provider who documents observations of the patient's conduct. In its view, the statute permits the recorded impressions of a heálth care provider to be privileged based upon the provider's intention that it not be disclosed to third persons. We conclude that the statute is ambiguous on this point. Therefore, we may consider the public policy purpose supporting the statute as a guide to discerning legislative intent.

¶ 25. The public policy purpose of the statute is to facilitate communication between a patient and his or her health care providers. Steinberg, 194 Wis. 2d at 459. Applying the privilege to information concerning assaultive behavior observed at a residential facility by the health care provider does not advance candid communication between patient and health care provider. Plainly, the information may serve other purposes. The observation of violent or aggressive behavior by Alzheimer's patients such as D.D. may be information that is used in forming medical opinions and developing a course of treatment. Additionally, nursing homes are required to document the resident's condition pursuant to Wis. Admin. Code HFS § 132.45(5)(c) (Oct. 2000). However, we conclude that where a patient engages in assaultive conduct, such conduct is not intended to be confidential for the purposes of candid discussion of medical concerns, which is the purpose of the physician-patient privilege.

¶ 26. Care Concepts believes that permitting disclosure of the requested information will have a chilling effect on free discussion between patients and health care providers, in part because the disclosure would be made without notice to the patient or an opportunity for the patient to object. However, a health care provider is authorized by Wis. Stat. § 905.04(3) to invoke the physician-patient privilege on behalf of the patient, and obligated by professional responsibility to do so. As a result, a nonparty's interest in asserting the privilege may be advanced, as it has been in this case. Accordingly, we hold that the information sought by Crawford in Interrogatories Nos. 4 and 5 is not protected by the physician-patient privilege.

¶ 27. Crawford's Interrogatories Nos. 6 and 7 ask for information concerning whether D.D. ever engaged in conduct that had a tendency to cause a disturbance. For the reasons previously stated, we also conclude that the information sought by these questions is not confidential information pursuant to Wis. Stat. § 905.03(l)(b). As with assaultive conduct, creating a disturbance is not a communication intended to remain confidential within the policy of the physician-patient privilege. Accordingly, information concerning the creation of a disturbance is not privileged.

¶ 28. Further, as to Interrogatories Nos. 6 and 7, we agree with the court of appeals' conclusion that the information sought by these interrogatories is framed using fairly general language, raising the possibility that by answering these questions privileged information may be reached. We specifically adopt the court's conclusions at Crawford, 2000 WI App 59, ¶¶ 10-12, remanding this matter to the circuit court and allowing the court to order in camera production of the requested material and to make a determination of whether any information produced by Care Concepts reaches privileged matters.

¶ 29. The second statute relied upon by Care Concepts in its contention that it cannot answer Crawford's discovery demands is Wis. Stat. § 146.82(1). Section 146.82(1) provides in relevant part that "[a]ll patient health care records shall remain confidential. Patient health care records may be released only to the persons designated in this section or to other persons with the informed consent of the patient or of a person authorized by the patient." A "patient health care record" is defined in § 146.81(4) as records "related to the health of a patient prepared by or under the supervision of a health care provider...." Crawford does not dispute that § 146.82 applies to the documentation by the nursing home of any aggressive conduct on the part of D.D. Therefore, for the purposes of this analysis, we will assume that § 146.82(1) applies.

¶ 30. The statute providing for the confidentiality of patient health care records is not an absolute bar to the release of information without the informed consent of the patient. Wisconsin Stat. § 146.82(2) provides for numerous exceptions from the rule set forth in subsection (1). The parties raise only one of these exceptions as applicable to the case at hand, § 146.82(2)(a)4. This provision states that under a lawful order of a court of record, patient health care records shall be released without informed consent.

¶ 31. Care Concepts contends that this court should interpret the "lawful order of a court" exception in Wis. Stat. § 146.82(2)(a)4 using the same method of analysis as applied in In re Mental Condition of Billy Jo W., 182 Wis. 2d 616, 514 N.W.2d 707 (1994). Billy Jo W. was civilly committed pursuant to the provisions of Wis. Stat. ch. 51, the mental health act. Wisconsin Stat. § 51.30(3) (1991-92) provided that records of court proceedings under ch. 51 are closed. The statute provided several exceptions to this closed record rule, including that" 'records may be released.. .pursuant to lawful order of the court which maintains the records.'" Billy Jo W., 182 Wis. 2d at 626-27 n.l.

¶ 32. The phrase "pursuant to lawful order of the court" was undefined in Wis. Stat. § 51.30(3), and .therefore in Billy Jo W. we examined § 51.30(4) for guidance in determining the meaning of this phrase because it appeared in both sections, "because the purpose of limiting access to treatment records and court records is similar, and because in sec. 51.30(4)(b) the legislature has enumerated 22 situations under which treatment records may be released." Billy Jo W., 182 Wis. 2d at 635. We concluded that in enacting Wis. Stat. ch. 51, it was the intent of the legislature to allow the scope of access to civil commitment court records to be analogous to the scope of access to treatment records. Id. Accordingly, we concluded that" 'pursuant to lawful order of the court' in sec. 51.30(4)(b)4 allows access in situations distinct from but substantially similar to those contained in the enumerated exceptions." Id. at 637.

¶ 33. Our method of analysis of Wis. Stat. § 51.30 in Billy Jo W. is not applicable to Wis. Stat. § 146.82. Section 51.30 is a specific statute relating to access to registration and treatment records for individuals committed pursuant to the provisions of Wis. Stat. ch. 51, while § 146.82 is a general statute governing patient health care records. Section 51.30 is part of ch. 51, which was created to "assure the provision of a full range of treatment and rehabilitation services in the state for all mental disorders and developmental disabilities and for mental illness, alcoholism and other drug abuse." Wis. Stat. § 51.001. As we noted in Billy Jo W., there remains a stigma associated to mental illness and commitment to a mental institution and individuals are entitled to privacy about these matters. Billy Jo W., 182 Wis. 2d at 632. D.D.'s privacy interest in care and treatment for Alzheimer's disease while she is a resident of a nursing home is also important, but distinguishable from the potential stigmatization that may occur as a result of a civil commitment under ch. 51. While § 51.30(4)(b)4 had to be read within the context of ch. 51, we need not apply the same analysis to § 146.82(2)(a)4. The reasoning of Billy Jo W., therefore, is inapplicable in our analysis of § 146.82(2)(a)4. Consequently, for the exception in § 146.82(2)(a)4 to apply we need only determine whether the circuit court's order in this case was a "lawful order."

¶ 34. Care Concepts asserts that the circuit court's order compelling it to answer Crawford's interrogatories is not lawful because D.D. is not a party to this action, and she has not waived her right of privacy in her health care records. In support of its argument, Care Concepts points to the reasoning by the court of appeals in Ambrose v. General Casualty Co., 156 Wis. 2d 306, 456 N.W.2d 642 (Ct. App. 1990).

¶ 35. In Ambrose the court of appeals interpreted Wis. Stat. § 146.82(2) (1987-88) and the medical records discovery rule, Wis. Stat. § 804.10(2) (1987-88). The medical records discovery rule in § 804.10(2) provided that the circuit court may order a claimant to give his or her consent and the right to inspect and copy hospital, medical or other records and reports concerning the injuries claimed and the treatment thereof. Ambrose, 156 Wis. 2d at 309 n.l.

¶ 36. In Ambrose, plaintiff Patricia Ambrose brought a personal injury claim against the operator of a vehicle that had collided with Ambrose's vehicle. During the course of conducting discovery, the defendants learned that Ambrose had a pre-existing dormant condition. The defendants then sought an order from the circuit court to examine records relating to Ambrose's health before and after the accident that was the subject of the underlying litigation. Id. at 310.

¶ 37. The circuit court granted the defendants' motion and ordered the plaintiff to sign a release authorizing disclosure to the defendants' attorneys all health care records and reports, including records and reports that may have been subject to Ambrose's physician-patient privilege. Id. at 309. On appeal, Ambrose argued that the circuit court exceeded its discretion under the medical records discovery rule when it ordered her to "give carte blanche consent to [the defendants] to inspect and copy all of her health care records and reports, regardless of their confidential nature and regardless of the existence of a physician-patient privilege as to any of the records or reports." Id. at 311.

¶ 38. In a nonparty brief filed in support of the Ambrose defendants, the Civil Trial Counsel of Wisconsin, Inc. argued that the circuit court's order conformed to Wis. Stat. § 146.82(2)(a)4, the "lawful order of a court" exception also at issue in the case at hand. Ambrose did not dispute that Wis. Stat. §804.10(2) provided an exception to the confidentiality of patient health care records set forth in § 146.82(1). Id. at 316. However, the court of appeals determined that the circuit court's order was not "lawful" because it was beyond the court's discretionary authority under § 804.10(2). The court of appeals concluded that the circuit court had exceeded its discretion because the scope of the order would extinguish Ambrose's physician-patient privilege as to all health care records. As a result, the court of appeals determined it would not affirm the order of the circuit court based upon § 146.82(2)(a)4.

¶ 39. Here, the circuit court has not exceeded its discretionary authority. We have determined that the information regarding any assaultive conduct by D.D. is not protected by the physician-patient privilege. The interrogatories and related request for the production of documents at issue in this case do not demand the production of more than this unprivileged material. While it is correct that D.D. is not a party to this action, she is not immune from providing information that will resolve the controversy. "The well-accepted legal principle, a fundamental tenet of our modern legal system, is that the public has a right to every person's evidence except for those persons protected by a constitutional, common-law, or statutory privilege. This principle applies to all of us — even to the President of the United States." State v. Gilbert, 109 Wis. 2d 501, 505, 326 N.W.2d 744 (1982) (citing United States v. Nixon, 418 U.S. 683 (1974); Unites States v. Fromme, 405 F.Supp. 578 (E.D. Cal. 1975)) (footnote omitted).

¶ 40. Other rules reflect the principle cited in Gilbert. For example, pursuant to Wis. Stat. § 804.05(3)(b)4, "[a] nonparty deponent may be compelled by subpoena served within this state to give a deposition...." In addition, Wis. Stat. § 905.01 states:

Except as provided by or inherent or implicit in statute or in rules adopted by the supreme court or required by the constitution of the United States or Wisconsin, no person has a privilege to:
(1) Refuse to be a witness; or
(2) Refuse to disclose any matter; or
(3) Refuse to produce any object or writing; or
(4) Prevent another from being a witness or disclosing any matter or producing any object or writing.

Further, Wis. Stat. § 804.09, relating to the production of documents and things and entry upon land for inspection and other purposes, provides: "(3) Persons not parties. This rule does not preclude an independent action against a person not a party for production of documents and things and permission to enter upon land."

¶ 41. These statutory provisions illustrate that a nonparty may be required to provide or produce evidence. In the present case, we find that because the information sought by Crawford is not privileged, the court's order granting Crawford's motion to compel was a lawful order under Wis. Stat. § 146.82(2)(a)4.

¶ 42. Finally, we are concerned, as was the court of appeals, that the nonparty's privacy rights be protected to the extent fully provided by law. Accordingly, in this case we order that all records produced by Care Concepts regarding D.D. in response to the interrogatories be initially examined in camera by the circuit court for a determination of whether any privileged information is potentially at risk of exposure.

¶ 43. We conclude that the circuit court properly issued its order compelling Care Concepts to answer the interrogatories filed by Crawford. The information sought pertaining to aggressive or assaultive behavior by D.D. is not protected by the physician-patient privilege. Additionally, the order of the circuit court on this matter was a lawful order under Wis. Stat. § 146.82(2)(a)4.

By the Court. — The decision of the court of appeals is affirmed, and the cause remanded to the circuit court.

        Crawford, v. Care Concepts, Inc., 2000 WI App 59, 233 Wis. 2d 609, 608 N.W.2d 694.

       All subsequent references to the Wisconsin Statutes are to the 1997-98 version, -unless otherwise indicated.

       We note that Care Concepts does not dispute the relevance of the information sought by Crawford.

       The privilege set forth in Wis. Stat. § 905.04(2)(a) protects communications between a patient and a variety of professionals, including registered nurses, psychologists, marriage and family therapists and others. In this opinion, the privilege will be referred to as the physician-patient privilege, as it is widely known.

       Commentators agree with this conclusion.
      [The privileges in Wis. Stat. § 950.04] are broader than other privileges that are restricted to "communications,” since they also extend a protective cover to "information obtained or disseminated" during the professional contacts. The communications or information must have been made, obtained or disseminated for purposes of diagnosing or treating the patient's physical, mental or emotional condition.
      7 Daniel D. Blinka, Wisconsin Practice § 504.2, p. 212 (1991).

       Conceivably, there may be a situation where a nursing home resident is encompassed within the class of individuals outlined in Wis. Stat. § 905.04(l)(b). Our analysis here includes this situation.

       In support of this contention Care Concepts cites State v. Locke, 177 Wis. 2d 590, 604, 502 N.W.2d 891 (Ct. App. 1993), in which the court of appeals wrote: "The patient's objectively reasonable perceptions and expectations of the medical provider are the proper gauge of the scope of the sec. 905.04 privilege." The Locke decision does not resolve the issues in this case.

       Under Wis. Admin. Code MED § 10.02(l)(n) (Dec. 1999) it is unprofessional conduct for a physician to willfully divulge a privileged communication or confidence.