Sonja Blake v. Debra Jossart

2016 WI 57
SUPREME COURT OF WISCONSIN
CASE NO.: 2012AP2578
COMPLETE TITLE: Sonja Blake,
Plaintiff-Appellant-Petitioner,
v.
Debra Jossart, Kerry Milkie and Racine County
Human Services Department,
Defendants,
Department of Children and Families and Eloise
Anderson,
Defendants-Respondents.
REVIEW OF A DECISION OF THE COURT OF APPEALS
(Reported at 364 Wis. 2d 526, 868 N.W.2d 198)
(Ct. App. 2015 – Unpublished)
OPINION FILED: July 6, 2016
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: February 24, 2016
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Dane
JUDGE: Shelley J. Gaylord
JUSTICES:
CONCURRED:
DISSENTED: ABRAHAMSON, J. and BRADLEY, A. W., J. dissent
(Opinion filed).
NOT PARTICIPATING:
ATTORNEYS:
For the plaintiff-appellant-petitioner, there were briefs
by Sheila Sullivan, Jill M. Kastner, and Legal Action of
Wisconsin, Inc., Milwaukee, and oral argument by Sheila
Sullivan.
For the defendants-respondents, the cause was argued by
Maura F.J. Whelan, assistant attorney general with whom on the
brief was Brad D. Schimel, attorney general.
2016 WI 57
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2012AP2578
(L.C. No. 2010CV1048)
STATE OF WISCONSIN : IN SUPREME COURT
Sonja Blake,
Plaintiff-Appellant-Petitioner,
v.
Debra Jossart, Kerry Milkie and Racine County
FILED
Human Services Department,
JUL 6, 2016
Defendants,
Diane M. Fremgen
Clerk of Supreme Court
Department of Children and Families and Eloise
Anderson,
Defendants-Respondents.
REVIEW of a decision of the Court of Appeals. Affirmed.
¶1 DAVID T. PROSSER, J. This is a review of an
unpublished decision of the court of appeals affirming a circuit
court order rejecting constitutional challenges to Wis. Stat.
§ 48.685(5)(br)5. (2013-14).1
1
Blake v. Jossart, No. 2012AP2578, unpublished slip op.
(Wis. Ct. App. June 11, 2015) (per curiam).
(continued)
No. 2012AP2578
¶2 In late 2009 the Wisconsin Legislature approved 2009
Wis. Act 76, which substantially changed the circumstances under
which the Department of Children and Families (DCF) may license
and certify childcare providers in Wisconsin. One provision in
the new law, Wis. Stat. § 48.685(5)(br)5., "imposes a lifetime
ban on licensure" and certification for persons who have been
convicted of specific crimes. Jamerson v. DCF, 2013 WI 7, ¶2,
345 Wis. 2d 205, 824 N.W.2d 822.
¶3 After the Act took effect, the Racine County Human
Services Department (Racine County) revoked the childcare
certification previously issued to Sonja Blake (Blake) because
she had a 1986 conviction for misdemeanor welfare fraud. Under
Wis. Stat. § 48.685(5)(br)5., the 1986 conviction made Blake
ineligible for certification. Blake raised various
constitutional challenges to the statute in the Dane County
Circuit Court and in the court of appeals. She did not prevail.
¶4 Before this court, Blake renews the three
constitutional arguments she raised in the courts below. First,
she contends that the lifetime prohibition on certification
creates an arbitrary and irrational classification that denies
her equal protection of the law. Second, she claims that the
prohibition deprives her of a liberty interest by abridging an
alleged substantive due process right to practice her chosen
profession as a state-regulated childcare provider. Finally,
All subsequent references to the Wisconsin Statutes are to
the 2013-14 version unless otherwise indicated.
2
No. 2012AP2578
she argues that the prohibition creates an "impermissible
irrebuttable presumption." For the reasons discussed below, we
disagree with each of her arguments and affirm the decision of
the court of appeals.
I. BACKGROUND
A. The Children's Code and 2009 Wis. Act. 76
¶5 DCF licenses childcare centers and certifies childcare
providers under Chapter 48 of the Wisconsin Statutes.2 "To
obtain a license . . . to operate a child care center, a person
must . . . meet the requirements specified in s. 48.685."3 To
receive certification as a childcare provider, a person must,
among other prerequisites, "meet the minimum requirements for
certification established by the department under s. 49.155(1d)"
and "meet the requirements specified in s. 48.685."4
¶6 A person need not obtain a license to operate a
childcare center if the center provides care and supervision for
less than 4 children under the age of 7.5 However, only a
licensed childcare center or a person with a childcare
2
See Wis. Stat. §§ 48.65, 48.651.
3
Wis. Stat. § 48.65(1) ("A license . . . is valid until
revoked or suspended, but shall be reviewed every 2
years . . . .").
4
Wis. Stat. § 48.651(1).
5
See Wis. Stat. § 48.65(1) ("No person may for compensation
provide care and supervision for 4 or more children under the
age of 7 for less than 24 hours a day unless that person obtains
a license to operate a child care center from the department.").
3
No. 2012AP2578
certification "may receive payment for providing child care
services for an individual who is determined eligible for a
child care subsidy under s. 49.155."6
¶7 The Wisconsin Shares program detailed in Wis. Stat.
§ 49.155 provides subsidies to families meeting certain
financial eligibility requirements. These subsidies eventually
reach childcare centers and childcare providers, so long as they
are licensed or certified.7 To acquire a license or
certification, a person must meet the requirements set forth in
Wis. Stat. § 48.685. If a person fails to obtain a license or
certification because the person is ineligible under § 48.685,
the person is ineligible to receive Wisconsin Shares dollars.
¶8 Wisconsin Stat. § 48.685 provides for an extensive
search of childcare providers' backgrounds for any record of
criminal history or child abuse. The section places a lifetime
prohibition on licensure or certification for people with
certain criminal convictions on their records, as subdivision
5., at issue in this case, demonstrates:
6
Wis. Stat. § 48.651(1) ("[N]o person, other than a child
care center licensed under s. 48.65 . . . , may receive payment
for providing child care services for an individual who is
determined eligible for a child care subsidy under s. 49.155
unless the person is certified . . . .").
7
DCF provides vouchers to Wisconsin Shares-eligible
parents, and parents use the vouchers to "obtain child care
services stipulated in that voucher from [an authorized]
provider." Wis. Admin. Code § DCF 201.04(2)(a) (Feb. 2016).
Authorized childcare providers accept the vouchers and receive
payment from DCF. Wis. Admin. Code § DCF 201(1), (2g) (Feb.
2016).
4
No. 2012AP2578
(br) For purposes of licensing a person to
operate a child care center under s. 48.65[ or]
certifying a child care provider under
s. 48.651, . . . no person who has been convicted or
adjudicated delinquent on or after his or her 12th
birthday for committing any of the following
offenses . . . may be permitted to demonstrate that he
or she has been rehabilitated:
. . . .
5. An offense involving fraudulent activity as a
participant in the Wisconsin Works program under
ss. 49.141 to 49.161, including as a recipient of a
child care subsidy under s. 49.155, or as a recipient
of aid to families with dependent children under
s. 49.19, medical assistance under subch. IV of
ch. 49, food stamps benefits under the food stamp
program under 7 USC 2011 to 2036, supplemental
security income payments under s. 49.77, payments for
the support of children of supplemental security
income recipients under s. 49.775, or health care
benefits under the Badger Care health care program
under s. 49.665.8
¶9 Subdivisions 6. and 7. prohibit licensure and
certification based on convictions for other offenses, but the
prohibitions apply only "if the person completed his or her
sentence, including any probation, parole, or extended
supervision, or was discharged by the department of corrections,
less than 5 years before the date" of the background check.9
¶10 These lifetime and five-year prohibitions on
eligibility under Wis. Stat. § 48.685(5)(br) stand in contrast
to the prohibitions listed in § 48.685(4m)(a)-(b). Although
§ 48.685(4m)(a) and (b) also disqualify from licensure or
8
Wis. Stat. § 48.685(5)(br)5.
9
Wis. Stat. § 48.685(5)(br)6.-7.
5
No. 2012AP2578
certification people with certain criminal convictions,
§ 48.685(5)(a) allows for licensure or certification
notwithstanding prior conviction "if the person demonstrates to
the department . . . by clear and convincing evidence . . . that
he or she has been rehabilitated."
¶11 The legislature created the paragraph (br)
prohibitions in Section 24 of 2009 Wis. Act. 76, which followed
a series of articles in the Milwaukee Journal Sentinel detailing
extensive fraud and abuse by childcare providers receiving funds
through Wisconsin Shares.10 Prior to Act 76, the law contained a
rebuttable presumption of ineligibility for licensure or
certification if a person had a specified criminal conviction,
but it did not permanently bar people from eligibility based on
any prior conviction.11
B. Blake's Childcare Certification
¶12 Blake received her childcare provider certification
from Racine County in October 2001. She then began operating a
childcare business from her own home. Starting with her eldest
daughter's two children, Blake soon grew her childcare business
into caring for the children of her daughter's and her son's
friends. By 2006 Blake provided childcare for approximately 12
10
To access a collected archive of the articles in the
investigative series, for which reporter Raquel Rutledge won a
Pulitzer Prize for Local Reporting, see Cashing in on Kids,
Milwaukee J. Sentinel, http://www.jsonline.com/news/38617217.
html (last visited June 24, 2016).
11
See Wis. Stat. § 48.685(4m)-(5) (2007-08).
6
No. 2012AP2578
children, with about 4 to 6 children in her home at any one
time.
¶13 Operating the childcare business became Blake's
primary source of income. Rather than charging parents for her
childcare services, Blake received Wisconsin Shares
reimbursement payments from the Racine County Workforce
Development Center because of her status as a certified
provider. Funds from the Wisconsin Shares program represented
Blake's sole source of income for her childcare services.
During the period between 2001 and 2006, Blake estimated that
she received payments totaling approximately $26,000 from
Wisconsin Shares each year.
¶14 Racine County revoked Blake's childcare certification
in 2006 for failure to disclose that her son lived in her home
and failure to submit a form disclosing information about his
background. Without a certification permitting her to receive
payments from Wisconsin Shares-eligible parents, Blake stopped
running her home childcare business. She worked full time as a
caregiver in an assisted living home for adults while waiting to
reapply for certification.
¶15 When she became eligible again in 2008, Blake
reapplied for and received a new childcare certification. With
a new certification valid from June 6, 2008, to June 6, 2010,
Blake left her job at the assisted living home to restart her
childcare business. Blake resumed providing care for
approximately 12 different children at various times throughout
the week. Over the ensuing year, however, nearly all the
7
No. 2012AP2578
children for whom Blake provided care began receiving childcare
elsewhere, eventually leaving Blake with only 2 children. With
business disappearing, Blake took a part-time job at a
children's learning center in 2009.
¶16 In January 2010, Racine County notified Blake that it
would permanently revoke her childcare certification, effective
February 1, 2010. To comply with Act 76's changes to the law
regarding childcare certifications, the County had conducted a
review of providers' criminal backgrounds to determine whether
the new law affected any certified providers in the county.
¶17 Blake's background check revealed a 1986 conviction
for public assistance fraud. According to the Judgment of
Conviction issued by the Racine County Circuit Court on December
19, 1986, Blake pled no contest to misdemeanor welfare fraud,
contrary to Wis. Stat. § 49.12(9) (1983-84). Blake pled to the
misdemeanor after originally facing a felony charge for failing
to report as assets a car and a motorcycle that she owned. At
the time, she thought she did not have to report the car as an
asset because it was a gift and it did not run. As a result of
the conviction, she served two years probation and paid $294 in
restitution for the excess welfare payment she received.
¶18 Racine County determined that, as a conviction related
to public benefits fraud, her 1986 conviction fell within the
category of offenses for which Act 76 required permanent
8
No. 2012AP2578
revocation under new Wis. Stat. § 48.685(5)(br)5.12 After the
County revoked her certification, Blake again closed her home
childcare business. She also lost her job at the children's
learning center upon informing her employer that the County
revoked her certification.
II. PROCEDURAL HISTORY
¶19 Blake commenced this action on March 1, 2010, to
challenge revocation of her childcare certification. She
claimed under 42 U.S.C. § 1983 that revocation of her
certification interfered with rights secured by the United
States Constitution.13 She sought a declaratory judgment holding
12
An email dated February 3, 2010, from DCF to certifying
agents in Racine, Marathon, and Eau Claire Counties explained
that not all convictions under Chapter 49 automatically qualify
for permanent revocation as "[a]n offense involving fraudulent
activity" under Wis. Stat. § 48.685(5)(br)5. The email provided
the following guidance:
To determine whether a conviction under ch. 49 is
fraudulent, first look at the actual conviction. Was
the person convicted of "fraud". If the title of the
conviction includes, fraud, then it would be a
permanent bar. However, if the title of the
conviction does not include the word "fraud" then the
facts of the conviction need to be examined.
13
Initially, Blake also claimed that Racine County and DCF
violated due process by revoking her certification without
conducting an administrative hearing. After Blake filed her
complaint, Racine County allowed her an administrative hearing
on the revocation. A hearing examiner determined that her 1986
conviction provided grounds for revocation, and the circuit
court upheld that decision. But the court of appeals reversed,
concluding that Racine County considered insufficient evidence
to conclusively determine that Blake's conviction was an offense
involving fraudulent activity. Blake v. Racine Cty. Human
Servs. Dep't, 2013 WI App 45, ¶¶1-2, 347 Wis. 2d 499, 831
(continued)
9
No. 2012AP2578
that Wis. Stat. § 48.685(5)(br)5. unconstitutionally violated
her right to equal protection, violated her right to due
process, and created an impermissible irrebuttable presumption.
She argued that, facially and as applied to her, the statute's
new list of disqualifying offenses denied her constitutional
rights by completely barring her from eligibility for licensure
or certification.
¶20 Both parties filed for summary judgment, and the Dane
County Circuit Court14 rejected Blake's constitutional
challenges. Disposing of Blake's facial challenge to the Wis.
Stat. § 48.685(5)(br)5. prohibition on certification, the
circuit court relied on Brown v. State Department of Children
and Families, 2012 WI App 61, 341 Wis. 2d 449, 819 N.W.2d 827,
in which the court of appeals determined that the new caregiver
law passed the rational basis test and did not, on its face,
violate the equal protection guarantee. In particular, the
circuit court relied on Brown's reasoning that the law "serves a
legitimate purpose of preventing further fraud in the Wisconsin
Shares program" and that "the legislature did not apply an
irrational or arbitrary classification in passing the law."
N.W.2d 439 (citing Jamerson v. DCF, 2013 WI 7, ¶72, 345
Wis. 2d 205, 824 N.W.2d 822). On remand, Racine County
presented additional evidence and once again upheld revocation;
both the circuit court and the court of appeals affirmed. Blake
v. Racine Cty. Human Servs. Dep't, No. 2014AP1229-FT,
unpublished order (Wis. Ct. App. Oct. 8, 2014).
14
Shelley J. Gaylord, Judge.
10
No. 2012AP2578
¶21 The circuit court further concluded that Blake failed
to demonstrate that Wis. Stat. § 48.685(5)(br)5. was
unconstitutional as applied to her. Again relying on Brown, the
court first concluded that Blake overstated her liberty interest
by asserting a right to provide subsidized childcare. Rather,
the court asked whether Wis. Stat. § 48.685(5)(br)5. denied
Blake the opportunity to make a living in childcare in general——
and the court answered that it did not. The circuit court
observed that, to prevail on her as-applied challenge, Blake
would need to provide facts supporting her claim that the
statute constituted a de facto deprivation of her ability to
provide childcare. She failed to make that showing. Indeed,
the court said, Blake's efforts to continue working in childcare
after loss of her certification had "been nil or virtually nil."
¶22 Blake appealed, and the court of appeals affirmed.
Blake v. Jossart, No. 2012AP2578, unpublished slip op. (Wis. Ct.
App. June 11, 2015) (per curiam). First, the court of appeals
declined to address Blake's facial equal protection challenge
because, as Blake acknowledged in a footnote of her brief, Brown
controlled on that issue and the court of appeals could not
overrule its own decision. Id., ¶3. The court also declined to
consider her as-applied equal protection argument, reasoning
that she had failed to cite "any case law or legal standard
relevant to such an analysis." Id., ¶4.
¶23 Next, the court turned to Blake's claim that Act 76
created an impermissible irrebuttable presumption that
individuals convicted of an offense involving fraudulent
11
No. 2012AP2578
activity are permanently unfit for certification. Id., ¶¶5-6.
Appreciating Blake's "acknowledge[ment] that the current
vitality of the irrebuttable presumption concept is
questionable," the court of appeals found her argument
unpersuasive because she did "not cite any case law in which an
occupational-regulation statute such as this one ha[d] been held
unconstitutional for relying on such a presumption." Id., ¶6.
¶24 Finally, to consider Blake's substantive due process
argument, the court of appeals assumed that Blake had a
constitutionally protected liberty interest in working in "the
field of state-regulated child care." Id., ¶¶7-9. Turning
again to Brown, the court of appeals concluded that "barring
persons convicted of 'crimes involving fraudulent use of funds
from enumerated government programs is rationally related to a
legitimate interest in preventing further fraud' to the child
care subsidy program." Id., ¶9 (citing Brown, 341 Wis. 2d 449,
¶40). Blake failed to demonstrate that "this relationship
becomes irrational or arbitrary" when the individual's past
offense "was a de minimis example of fraudulent activity." Id.
¶25 On July 29, 2015, Blake filed a petition for review,
which this court granted on November 4, 2015.
III. STANDARD OF REVIEW
¶26 A statute's constitutionality is a question of law
that this court reviews de novo. Aicher ex rel. LaBarge v. Wis.
Patients Comp. Fund, 2000 WI 98, ¶18, 237 Wis. 2d 99, 613
N.W.2d 849 (citing Riccitelli v. Broekhuizen, 227 Wis. 2d. 100,
119, 595 N.W.2d 392 (1999)). To succeed on a claim that a law
12
No. 2012AP2578
is unconstitutional on its face, the challenger must demonstrate
that the State cannot enforce the law under any circumstances.
State v. Wood, 2010 WI 17, ¶13, 323 Wis. 2d 321, 780 N.W.2d 63
(citing Olson v. Town of Cottage Grove, 2008 WI 51, ¶44 n.9, 309
Wis. 2d 365, 749 N.W.2d 211). If the challenger succeeds, then
the law is void for all purposes. Id. (citing State ex rel.
Comm'rs of Pub. Lands v. Anderson, 56 Wis. 2d 666, 672, 203
N.W.2d 84 (1973)). An as-applied challenge, in contrast,
focuses on the facts of the challenger's case, and if the court
determines that the law actually violates the challenger's
rights, then "the operation of the law is void as to the party
asserting the claim." Id. (first citing State v. Hamdan, 2003
WI 113, ¶43, 264 Wis. 2d 433, 665 N.W.2d 785; then citing
Anderson, 56 Wis. 2d at 672).
¶27 We presume that statutes are constitutional, Wood, 323
Wis. 2d 321, ¶15, and if any doubt exists about the statute's
constitutionality, the court must resolve that doubt in favor of
upholding the statute, Aicher, 237 Wis. 2d 99, ¶18 (citing
State ex rel. Hammermill Paper Co. v. La Plante, 58 Wis. 2d 32,
46–47, 205 N.W.2d 784 (1973)). A party challenging a statute
overcomes the strong presumption of constitutionality only by
demonstrating that the statute is unconstitutional beyond a
reasonable doubt. Id., ¶19 (citing State v. Hezzie R., 219
Wis. 2d 848, 863, 580 N.W.2d 660 (1998)). "It is not sufficient
for the challenging party merely to establish doubt about a
statute's constitutionality, and it is not enough to establish
13
No. 2012AP2578
that a statute probably is unconstitutional." Id. (citing
Hammermill Paper Co., 58 Wis. 2d at 46–47).
IV. DISCUSSION
¶28 According to the Fourteenth Amendment to the United
States Constitution, "No state shall . . . deprive any person of
life, liberty, or property, without due process of law; nor deny
to any person within its jurisdiction the equal protection of
the laws." Article I, Section 1 of the Wisconsin Constitution
further provides: "All people are born equally free and
independent, and have certain inherent rights; among these are
life, liberty and the pursuit of happiness . . . ." As a
general principle, this court treats these provisions of the
United States and Wisconsin Constitutions as consistent with
each other in their due process and equal protection
guarantees.15
¶29 Blake raises three constitutional challenges to the
absolute bar on childcare licensure and certification for people
convicted of certain criminal offenses, as provided by Wis.
Stat. § 48.685(5)(br)5. She argues that revocation of her
15
See Winnebago Cty. v. Christopher S., 2016 WI 1, ¶35
n.18, 366 Wis. 2d 1, 878 N.W.2d 109 ("[T]he United States
Constitution and the Wisconsin Constitution provide
substantively similar due process guarantees." (citing State v.
Wood, 2010 WI 17, ¶17 n.9, 323 Wis. 2d 321, 780 N.W.2d 63));
Tomczak v. Bailey, 218 Wis. 2d 245, 261, 578 N.W.2d 166 (1998)
("This court applies the same interpretation to the state Equal
Protection Clause as that given to the equivalent federal
provision." (citing State v. Post, 197 Wis. 2d 279, 317 n.21,
541 N.W.2d 115 (1995))).
14
No. 2012AP2578
certification under this statute (1) denies her equal protection
of the law, (2) violates her right to due process, and (3)
creates an impermissible irrebuttable presumption. We consider
each of these three arguments in turn.
A. Equal Protection
¶30 To show that a statute unconstitutionally denies equal
protection of the law, a party must demonstrate that the statute
treats members of similarly situated classes differently.
Tomczak v. Bailey, 218 Wis. 2d 245, 261, 578 N.W.2d 166 (1998).
"The right to equal protection does not require that such
similarly situated classes be treated identically, but rather
requires that the distinction made in treatment have some
relevance to the purpose for which classification of the classes
is made." State v. West, 2011 WI 83, ¶90, 336 Wis. 2d 578, 800
N.W.2d 929 (citing State v. Post, 197 Wis. 2d 279, 321, 541
N.W.2d 115 (1995)).
¶31 "In cases where a statutory classification does not
involve a suspect class or a fundamental interest, the
classification will be upheld if there is any rational basis to
support it." State v. Burgess, 2003 WI 71, ¶10, 262
Wis. 2d 354, 665 N.W.2d 124 (citing Milwaukee Brewers v. DHSS,
130 Wis. 2d 79, 98, 387 N.W.2d 254 (1986)). Only when a statute
"impinges on a 'fundamental right' or creates a classification
that 'operates to the peculiar disadvantage of a suspect class'"
will the court engage in strict scrutiny analysis. Aicher, 237
Wis. 2d 99, ¶56 (quoting Tomczak, 218 Wis. 2d at 261–62).
15
No. 2012AP2578
¶32 Under rational basis analysis, a statute is
unconstitutional if the legislature applied an irrational or
arbitrary classification when enacting the provision. Burgess,
262 Wis. 2d 354, ¶32; Aicher, 237 Wis. 2d 99, ¶57. Therefore,
the court will uphold a statute unless "it is 'patently
arbitrary' and bears no rational relationship to a legitimate
government interest." Aicher, 237 Wis. 2d 99, ¶57 (quoting
Tomczak, 218 Wis. 2d at 264). Though classifications may be
imperfect and might create inequities, the court seeks to
determine whether a classification rationally advances a
legislative objective. Id. To do so, the court must identify
or, if necessary, construct a rationale supporting the
legislature's determination. Metro. Assocs. v. City of
Milwaukee, 2011 WI 20, ¶62, 332 Wis. 2d 85, 796 N.W.2d 717.
"Once the court identifies a rational basis for a statute, the
court must assume the legislature passed the act on that
basis . . . ." Ferdon ex rel. Petrucelli v. Wis. Patients Comp.
Fund, 2005 WI 125, ¶75, 284 Wis. 2d 573, 701 N.W.2d 440.16
16
The dissent reminds us of the admonition from the Supreme
Court of the United States that the "rational-basis standard is
'not a toothless one.'" Schweiker v. Wilson, 450 U.S. 221, 234
(1981) (quoting Matthews v. Lucas, 427 U.S. 495, 510 (1976)),
quoted in dissent, ¶69. However, rational basis review does not
"allow us to substitute our personal notions of good public
policy for those of" the legislature. See Schweiker, 450 U.S.
at 234. As the Supreme Court has explained,
In the area of economics and social welfare, a State
does not violate the Equal Protection Clause merely
because the classifications made by its laws are
imperfect. If the classification has some "reasonable
(continued)
16
No. 2012AP2578
¶33 A legislative classification satisfies the rational
basis standard if it meets the following five criteria:
(1) All classification[s] must be based upon
substantial distinctions which make one class really
different from another.
(2) The classification adopted must be germane
to the purpose of the law.
(3) The classification must not be based upon
existing circumstances only. [It must not be so
constituted as to preclude addition to the numbers
included within a class.]
(4) To whatever class a law may apply, it must
apply equally to each member thereof.
(5) That the characteristics of each class
should be so far different from those of other classes
as to reasonably suggest at least the propriety,
basis," it does not offend the Constitution simply
because the classification "is not made with
mathematical nicety or because in practice it results
in inequality." Lindsley v. Natural Carbonic Gas Co.,
220 U.S. 61, 78. "The problems of government are
practical ones and may justify, if they do not
require, rough accommodations——illogical, it may be,
and unscientific." Metropolis Theatre Co. v. City of
Chicago, 228 U.S. 61, 69-70. "A statutory
discrimination will not be set aside if any state of
facts reasonably may be conceived to justify it."
McGowan v. Maryland, 366 U.S. 420, 426.
Dandridge v. Williams, 397 U.S. 471, 485 (1970). The dissent
identifies alternative means by which the legislature might have
structured the law to prevent fraud against Wisconsin Shares.
See, e.g., dissent, ¶¶88-91. But the mere existence of
alternative policy proposals does not negate the rational
relationship between the objective of preventing fraud and the
legislature's chosen policy of prohibiting licensure for anyone
with a conviction for fraud against a government benefits
program.
17
No. 2012AP2578
having regard to the public good, of substantially
different legislation.
Aicher, 237 Wis. 2d 99, ¶58 (alterations in original) (quoting
Tomczak, 218 Wis. 2d at 272-73); accord Metro. Assocs., 332
Wis. 2d 85, ¶64; Nankin v. Village of Shorewood, 2001 WI 92,
¶39, 245 Wis. 2d 86, 630 N.W.2d 141.
¶34 Blake concedes that her equal protection claim
involves neither a suspect class nor a fundamental right;
therefore, rational basis analysis is appropriate in this case.
She characterizes Act 76 as creating three classes of people
with prior convictions: (1) people permanently barred for life
from eligibility for licensure or certification; (2) people
absolutely barred from eligibility for five years, after which
time they remain barred but may prove rehabilitation; and (3)
people presumptively barred for life but eligible to prove
rehabilitation. These classifications deny her equal
protection, she argues, because they are incoherent and lack
distinguishing features. Depending on the offense committed, a
person convicted of a crime of violence, a crime against
children, or a dishonesty-related offense might fall into any of
the three classifications, which do not necessarily match the
severity of the underlying offense.
¶35 DCF counters that the appropriate class to focus on
"consists of persons like Blake who have been convicted of 'an
offense involving fraudulent activity as a participant' in
specified public benefits programs." That classification
rationally achieves the legislature's objective of "the
18
No. 2012AP2578
elimination of fraud in the Wisconsin Shares program and the
protection of the public's scarce financial resources."
¶36 In Brown, the court of appeals rejected facial and as-
applied challenges to Wis. Stat. § 48.685(5)(br)5. that relied
on equal protection grounds. Brown, 341 Wis. 2d 449, ¶¶40, 43.
Also applying rational basis analysis, the court of appeals
first reasoned that the challenger had not demonstrated facial
unconstitutionality because, "[r]egardless of whether the law is
rationally related to the goal of protecting children, the law
is rationally related to the legitimate purpose of prohibiting
individuals who dishonestly benefitted from government welfare
in the past from obtaining government funding in the form of
childcare subsidies." Id., ¶40. Turning to the as-applied
argument, the court of appeals acknowledged that "Brown's
particular situation——[loss of certification because she had] a
single welfare conviction for events occurring more than two
decades ago——[was] unfortunate," but the court declined to hold
the statute unconstitutional as applied because Brown "point[ed]
to no evidence that she was treated differently from any
similarly-situated childcare provider whose license was revoked
under the new law." Id., ¶43.
¶37 Examining Blake's facial challenge, we conclude that
Wis. Stat. § 48.685(5)(br)5. passes rational basis review on its
face. We begin our analysis by noting the legislature's
organizational structure for paragraph (br), which sets forth
seven subdivisions defining categories of people barred from
licensure and certification. The class we evaluate for equal
19
No. 2012AP2578
protection purposes consists of people permanently ineligible
for licensure or certification on the grounds that their record
contains a conviction for "[a]n offense involving fraudulent
activity as a participant" in one of the various government
benefits programs delineated in subdivision 5.
¶38 The classification satisfies the first of the five
Aicher prongs if "substantial distinctions" demonstrate that the
class is truly different from others. Aicher, 237 Wis. 2d 99,
¶58. Subdivision 5. contains a comprehensive list of public
benefits programs and disqualifies from eligibility people who
have convictions for fraudulent activity pertaining to one or
more of these programs.
¶39 Other subdivisions under paragraph (br) create
lifetime prohibitions for people with convictions for crimes
against children, certain crimes against life and bodily
security, and various crimes involving misappropriation of
identity or property. See Wis. Stat. § 48.685(5)(br)1.-4.
These subdivisions arguably have purposes different from
subdivision 5., such as protecting children, protecting the
families of children, and protecting private employers in
childcare.
¶40 Subdivision 5. imposes ineligibility based on
convictions for fraudulent activity related to public assistance
programs, meaning that it focuses on a distinct category of
criminal activity. Regardless of its merits, Blake's normative
argument that the legislature could better achieve the objective
of protecting children by developing classifications focused on
20
No. 2012AP2578
the severity of the underlying offense does not defeat the fact
that the legislature did create a coherent, though broad,
classification based on public benefits fraud convictions.
Because subdivision 5. targets a cognizable group of individuals
whose characteristics are distinct from other classifications in
the statute, Wis. Stat. § 48.685(5)(br)5. meets the first prong.
¶41 Furthermore, Blake's three-tiered characterization of
subsection (5)'s classifications does not disprove the existence
of substantial distinctions between classes. Focusing on the
impact that different convictions have on a person's
eligibility, Blake argues that the legislature did not have a
cogent justification for barring some people for life, allowing
some people to overcome a lifetime prohibition by proving
rehabilitation, and barring others for five years but permitting
them to prove rehabilitation after that time. In particular,
she observes that "[a]ll three classes include individuals
convicted of crimes of violence, offenses against children, and
dishonesty-related offenses." The legislature, however, could
reasonably determine that creating different outcomes for people
with different underlying convictions would most efficaciously
advance the objective of preventing fraud against Wisconsin
Shares. Because public benefits fraud is the particular type of
fraud that the legislature sought to prevent, the legislature
could reasonably determine that public benefits fraud offenses
warranted a stricter prohibition than other underlying
convictions.
21
No. 2012AP2578
¶42 To succeed under the second Aicher prong, Blake must
prove that the classification is not germane to the law's
purpose. See Aicher, 237 Wis. 2d 99, ¶58. She contends that
barring eligibility under Wis. Stat. § 48.685(5)(br)5. "[f]or
purposes of . . . permitting a person to be a . . . caregiver
specified in sub. (1)(ag)1.a. of a child care center or child
care provider" sweeps too broadly by prohibiting people with
public assistance fraud convictions from working in any
regulated facility——even those facilities that do not receive
public assistance from Wisconsin Shares. Yet even that
expansive prohibition cuts to the law's purpose of eliminating
fraudulent activity in the Wisconsin Shares program. A
caregiver employee with a record of fraudulent conduct could
conspire with the operator of a licensed facility to alter
records or otherwise defraud the Wisconsin Shares program,
particularly if the facility is small and employs only a few
caregivers.17 Moreover, the fact that a licensed facility does
17
One article from the Journal Sentinel's Cashing in on
Kids series illustrates how a provider might coordinate with
employees to defraud Wisconsin Shares. The article describes a
Milwaukee daycare center run by Latasha Jackson:
Nearly two-thirds of the children enrolled
belonged to employees of Jackson's center, according
to documents obtained by the newspaper. Such an
arrangement is a red flag for regulators because it is
designed with the sole purpose of tapping into child-
care funds. Parents don't actually have to report to
work. They can stay home and take care of their
children and still get paid. . . .
(continued)
22
No. 2012AP2578
not receive funds through Wisconsin Shares at a given time does
not make the prohibition any less germane to the purpose of
preventing fraudulent activity. If a facility possesses
appropriate credentials to accept Wisconsin Shares payments, it
always has the option of doing so in the future, thus giving the
State a rational basis for always holding the facility to the
high standard of never employing people with convictions related
to public assistance fraud.
¶43 As DCF observes in its brief, Blake implicitly
conceded the third and fourth Aicher factors by declining to
argue them in her brief. Regarding the third factor, Blake
clearly has not proven that the classification is based solely
upon existing circumstances. On the contrary, the permanent
lifetime prohibition applies to anyone convicted of one or more
of the listed public benefits fraud offenses——a group that will
presumably continue to expand indefinitely as new people are
convicted of crimes in the future. Similar logic demonstrates
that Blake has not proven that Wis. Stat. § 48.685(5)(br)5.
fails under the fourth prong——equal application——because every
person convicted of a public benefits fraud offense listed in
Records show Jackson . . . almost always hired
parents who have at least four or five children,
making the set-up more lucrative. Each child is
typically worth close to $200 a week in subsidies,
depending on the age and number of hours of care
authorized.
Raquel Rutledge, Private Fortune, Public Cash, Milwaukee J.
Sentinel (Aug. 31, 2009), http://www.jsonline.com/watchdog/watch
dogreports/56121342.html.
23
No. 2012AP2578
subdivision 5. receives a lifetime ban on eligibility for
licensure or certification, so there is no inconsistent
application within the class.
¶44 Finally, under the fifth prong of the Aicher analysis,
we conclude that a rational basis exists for creating a specific
classification for people convicted of offenses involving public
assistance fraud because the classification addresses a distinct
aspect of the childcare system. See Aicher, 237 Wis. 2d 99,
¶58. Blake argues that it is "irrational in relation to the
public good to elevate the goal of protecting the purse over
that of protecting children" by allowing rehabilitation for
people convicted of some crimes against children but barring for
life people with convictions for public assistance fraud. But
her analysis improperly focuses on the relative merits of
various objectives——protecting public finances, protecting
children——that Act 76 sought to advance. Rather, the fact that
each objective is a reasonable goal for the State to pursue
through the licensure and certification system justifies the
existence of separate legislation for each class. Wisconsin
Stat. § 48.685(5)(br)5. advances the objective of preventing
abuse of the Wisconsin Shares program by permanently barring
licensure and certification for people convicted of public
assistance fraud. At the same time, it advances the objective
of protecting children by permanently barring licensure and
certification for people convicted of some violent offenses
while allowing rehabilitation for others. As DCF observes in
24
No. 2012AP2578
its brief, "The statute has multiple policy goals, and
rationally achieves each of them."
¶45 Because Blake has not presented evidence sufficient
under any of the Aicher prongs to call into question Wis. Stat.
§ 48.685(5)(br)5.'s lifetime prohibition on licensure and
certification for people convicted of public assistance fraud
offenses, she has failed to prove that the classification is
unconstitutional on its face beyond a reasonable doubt. The
permanent prohibition rationally advances the State's objective
of eliminating fraud against the Wisconsin Shares program and
therefore withstands equal protection review on its face.
¶46 We further decline to hold Wis. Stat.
§ 48.685(5)(br)5. unconstitutional as applied to Blake. She
argues that revocation of her certification without an
opportunity to demonstrate rehabilitation denies her equal
protection of the law because people with convictions for other
"dishonesty related offenses" do not suffer permanent
ineligibility. Once again, though, she misidentifies the proper
scope for evaluating the classification. Like the childcare
provider in Brown, Blake "points to no evidence that she was
treated differently from any similarly-situated childcare
provider whose license was revoked under the new law." Brown,
341 Wis. 2d 449, ¶43. Indeed, since enactment of Act 76, this
is the third published case involving a childcare provider
facing revocation based on a public assistance fraud conviction.
See Jamerson v. DCF, 2013 WI 7, ¶23, 345 Wis. 2d 205, 824
N.W.2d 822; Brown, 341 Wis. 2d 449, ¶43. Like Milwaukee County
25
No. 2012AP2578
reviewing the credentials at issue in Jamerson and Brown, Racine
County revoked Blake's license upon learning of her forbidden
conviction. Brown, 341 Wis. 2d 449, ¶43 ("[T]he facts of
Jamerson show that the Department treated [Brown] almost
identically to other individuals whose licenses were revoked.").
Because Racine County treated Blake in a manner consistent with
the treatment of similarly situated providers in published cases
and Blake has not presented evidence to the contrary, her as-
applied equal protection claim fails.
B. Substantive Due Process
¶47 The substantive component of the Fourteenth
Amendment's Due Process Clause "addresses 'the content of what
government may do to people under the guise of law.'" Wood, 323
Wis. 2d 321, ¶17 (quoting Dane Cty. DHS v. P.P., 2005 WI 32,
¶19, 279 Wis. 2d 169, 694 N.W.2d 344). "It protects against
governmental action that either 'shocks the conscience . . . or
interferes with rights implicit in the concept of ordered
liberty.'" P.P., 279 Wis. 2d 169, ¶19 (alteration in original)
(quoting State v. Jorgensen, 2003 WI 105, ¶33, 264 Wis. 2d 157,
667 N.W.2d 318). "A court's task in a challenge based on
substantive due process 'involves a definition of th[e]
protected constitutional interest, as well as identification of
the conditions under which competing state interests might
outweigh it.'" Wood, 323 Wis. 2d 321, ¶18 (alteration in
original) (quoting Washington v. Harper, 494 U.S. 210, 220
(1990)); see also Washington v. Glucksburg, 521 U.S. 702, 721
26
No. 2012AP2578
(1997) (requiring "careful description" of constitutional
interest asserted in certain substantive due process cases).
¶48 As in the equal protection context, the "threshold
question" when reviewing a substantive due process claim "is
whether a fundamental right is implicated or whether a suspect
class is disadvantaged by the challenged legislation." State v.
Smith, 2010 WI 16, ¶12, 323 Wis. 2d 377, 780 N.W.2d 90. Because
Blake's substantive due process argument involves neither a
fundamental right nor a suspect class, we once again conduct a
rational basis review to evaluate whether "the statute is
rationally related to achieving a legitimate governmental
interest." State v. Luedtke, 2015 WI 42, ¶76, 362 Wis. 2d 1,
863 N.W.2d 592.
¶49 Blake's assertion that permanent ineligibility for
certification violates her substantive due process rights is no
more availing than her equal protection claim. In her reply
brief, Blake makes clear that she questions not the facial
constitutionality of Wis. Stat. § 48.685(5)(br)5. but rather its
constitutionality as applied to her. Quoting Schware v. Board
of Bar Examiners, 353 U.S. 232, 239 (1956), she contends that
the statute "violates substantive due process as applied to her
because her past criminal conviction has no 'rational [non-
arbitrary] connection with [her] fitness or capacity to
practice' the profession of state-regulated childcare provider."
(Alterations in original.) However, even if we were to
27
No. 2012AP2578
determine that she possessed a liberty interest in practicing
"the profession of state regulated childcare provider,"18 we
would conclude that she has not met her burden of demonstrating
beyond a reasonable doubt that the permanent bar on eligibility
in Wis. Stat. § 48.685(5)(br)5. irrationally or arbitrarily
infringes on such an interest.
¶50 To prevent fraud against the Wisconsin Shares program,
the legislature enacted Wis. Stat. § 48.685(5)(br)5., which
instituted a broad prohibition on licensure and certification
for people with a conviction for an "offense involving
fraudulent activity as a participant" in various public benefits
18
The prospect that we would recognize a liberty interest
articulated in that manner is unlikely. Among other possible
problems for such a claim, any liberty interest that she might
have in working as a childcare provider likely would not extend
to receipt of Wisconsin Shares funds distributed for the benefit
of families in need. Licensure or certification from DCF makes
childcare providers eligible to receive payments from families
that receive childcare funding through Wisconsin Shares——a
benefit program for the families, not for the childcare
provider. The Supreme Court has indicated that a State may not
contravene the Due Process or Equal Protection Clauses when
denying a person the ability to perform a chosen profession.
See Schware v. Bd. of Bar Exam'rs, 353 U.S. 232, 238-39 (1957).
However, the Seventh Circuit has expressed skepticism about
identifying "a liberty interest in a private party's
participation in a government assistance program designed to
provide benefits for a third party." Khan v. Bland, 630 F.3d
519, 534 (7th Cir. 2010). Wisconsin Stat. § 48.685(5)(br)5.
makes Blake ineligible to receive Wisconsin Shares payments from
families, but it does not prohibit her from providing childcare
under all circumstances. The statute eliminates her ability to
participate in a public benefit meant for third parties but does
not entirely eliminate her ability to pursue her occupation as a
childcare provider.
28
No. 2012AP2578
programs. A conviction provides documented evidence that a
person engaged in proscribed conduct and faced a penalty for
doing so. The legislature could reasonably conclude that an
effective means for limiting abuse of the Wisconsin Shares
program would be to render ineligible for Wisconsin Shares funds
people who have received such formal sanction for engaging in
fraudulent conduct in the past. This strict prohibition not
only prevents fraud against Wisconsin Shares but also deters
other fraudulent conduct by creating a disincentive for existing
or potential Wisconsin Shares-eligible providers against
engaging in any fraudulent activities.
¶51 Like every other person with a conviction related to
public benefits fraud, Blake is not eligible for licensure or
certification. No doubt, the law's effect on her is harsh: her
criminal record of fraudulent conduct consists of a single
misdemeanor conviction 30 years ago, and the $294 illegal
benefit that gave rise to her conviction pales in comparison to
the millions of dollars worth of fraud uncovered in the Journal
Sentinel stories that preceded the amendments to the childcare
laws. But drawing attention to the distant nature of her
conviction and the relative insignificance of the fraud involved
does not prove that the legislature acted irrationally or
arbitrarily in making people with such convictions ineligible to
receive childcare payments through a public benefit program.
Eliminating eligibility for all people with a record of public
benefits fraud (no matter the circumstances) may be a severe
29
No. 2012AP2578
response to rampant fraud in the Wisconsin Shares program, but
it is not an irrational response.
C. Irrebuttable Presumption
¶52 The irrebuttable presumption doctrine derives from a
series of cases in which the Supreme Court concluded that "a
statute creating a presumption which operates to deny a fair
opportunity to rebut it violates the due process clause of the
Fourteenth Amendment." Vlandis v. Kline, 412 U.S. 441, 446
(1973) (quoting Heiner v. Donnan, 285 U.S. 312, 329 (1932)); see
Cleveland Bd. of Edu. v. LaFleur, 414 U.S. 632 (1974); U.S.
Dep't of Agric. v. Murry, 413 U.S. 508 (1973); Stanley v.
Illinois, 405 U.S. 645 (1972); Bell v. Burson, 402 U.S. 535
(1971).19
¶53 In Weinberger v. Salfi, 422 U.S. 749 (1975), the
Supreme Court distinguished its irrebuttable presumption cases
from "constitutional challenges to classifications
in . . . social welfare legislation." Salfi, 422 U.S. at 770.
Because Wis. Stat. § 48.685(5)(br)5. creates a classification
related to social welfare legislation analogous to the
19
A contemporary Note summarizing the doctrine for Harvard
Law Review characterized it as "ill-founded": "There appears to
be no justification for the irrebuttable presumption
doctrine. . . . [I]t . . . is susceptible to the criticisms
made of interventionist equal protection——that it rests upon
subjective value judgments which lack clear constitutional
basis." Note, The Irrebuttable Presumption Doctrine in the
Supreme Court, 87 Harv. L. Rev. 1534, 1556 (1974). More
recently, the Seventh Circuit has questioned "whether the
'irrebuttable presumption' doctrine has any continued vitality."
Estate of Ekins v. Comm'r, 797 F.2d 481, 486 (7th Cir. 1986).
30
No. 2012AP2578
classification at issue in Salfi, we conclude that it does not
create an impermissible irrebuttable presumption.
¶54 Salfi involved a challenge to a federal statute that
denied Social Security benefits to widows and stepchildren "who
had their respective relationships to a deceased wage earner for
less than nine months prior to his death." Salfi, 422 U.S. at
753-54. After the Social Security Administration denied
benefits based on the duration-of-relationship requirement, a
three-judge district court held that the requirement created an
unconstitutional conclusive presumption under the Supreme
Court's irrebuttable presumption cases. Id. at 754-55, 767-68.
¶55 The Supreme Court began its discussion of the
constitutional challenge to the duration-of-relationship
requirement by discussing two lines of cases. First, the Court
quoted at length from its decisions in Flemming v. Nestor, 363
U.S. 603 (1960); Dandridge v. Williams, 397 U.S. 471 (1970); and
Richardson v. Belcher, 404 U.S. 78 (1971). According to the
Court, those cases stood for the proposition that "[a] statutory
classification in the area of social welfare is consistent with
the Equal Protection Clause of the Fourteenth Amendment if it is
'rationally based and free from invidious discrimination.'" Id.
at 768-70 (quoting Richardson, 404 U.S. at 81, which had quoted
Dandridge, 397 U.S. at 487).
¶56 Second, it summarized its recent irrebuttable
presumption cases:
Stanley v. Illinois held that it was a denial of
the equal protection guaranteed by the Fourteenth
31
No. 2012AP2578
Amendment for a State to deny a hearing on parental
fitness to an unwed father when such a hearing was
granted to all other parents whose custody of their
children was challenged. . . .
In Vlandis v. Kline, a statutory definition of
"residents" for purposes of fixing tuition to be paid
by students in a state university system was held
invalid. The Court held that where Connecticut
purported to be concerned with residency, it might not
at the same time deny to one seeking to meet its test
of residency the opportunity to show factors clearly
bearing on that issue. 412 U.S., at 452.
In LaFleur the Court held invalid, on the
authority of Stanley and Vlandis, school board
regulations requiring pregnant school teachers to take
unpaid maternity leave commencing four to five months
before the expected birth.
Salfi, 422 U.S. at 771.
¶57 The Court then explained the distinction between the
two sets of cases and their relevance to the duration-of-
relationship requirement:
We hold that [the irrebuttable presumption] cases
are not controlling on the issue before us now.
Unlike the claims involved in Stanley and LaFleur, a
noncontractual claim to receive funds from the public
treasury enjoys no constitutionally protected status,
Dandridge v. Williams, supra, though of course
Congress may not invidiously discriminate among such
claimants on the basis of a "bare congressional desire
to harm a politically unpopular group," U.S. Dept. of
Agriculture v. Moreno, 413 U.S. 528, 534 (1973), or on
the basis of criteria which bear no rational relation
to a legitimate legislative goal. Jimenez v.
Weinberger, 417 U.S. 628, 636 (1974); U.S. Dept. of
Agriculture v. Murry, 413 U.S. 508, 513-514 (1973).
Unlike the statutory scheme in Vlandis, 412 U.S., at
449, the Social Security Act does not purport to speak
in terms of the bona fides of the parties to a
marriage, but then make plainly relevant evidence of
such bona fides inadmissible. . . . [T]he benefits
here are available upon compliance with an objective
32
No. 2012AP2578
criterion, one which the Legislature considered to
bear a sufficiently close nexus with underlying policy
objectives to be used as the test for eligibility.
Id. at 771-72 (quoting U.S. Dep't of Agric. v. Moreno, 413 U.S.
528, 534 (1973)).
¶58 Further, the Court expressed concern that "extension
of the holdings of Stanley, Vlandis, and LaFleur to the
eligibility requirement . . . would turn the doctrine of those
cases into a virtual engine of destruction for countless
legislative judgments which have heretofore been thought wholly
consistent with the Fifth and Fourteenth Amendments to the
Constitution." Id. at 772.
¶59 Pivoting from the irrebuttable presumption argument,
the Court articulated an alternative standard for government
benefits classifications:
The question is whether Congress, its concern having
been reasonably aroused by the possibility of an abuse
which it legitimately desired to avoid, could
rationally have concluded both that a particular
limitation or qualification would protect against its
occurrence, and that the expense and other
difficulties of individual determinations justified
the inherent imprecision of a prophylactic rule.
Id. at 777. Distinguishing "programs for the distribution of
social insurance benefits" from "criminal prosecutions, or the
custody proceedings at issue in Stanley v. Illinois," the Court
concluded by observing that benefits "programs do not involve
affirmative Government action which seriously curtails important
liberties cognizable under the Constitution." Id. at 785.
¶60 Just as Congress permissibly painted with a broad
brush in excluding certain widows and stepchildren from Social
33
No. 2012AP2578
Security benefits under the duration-of-relationship
requirement, Wisconsin's legislature has created an expansive
prohibition to eliminate fraud against the Wisconsin Shares
program. Only those who satisfy the objective criterion of not
having a conviction for public benefits fraud are eligible to
receive the benefit of payments through Wisconsin Shares.
Blake's is not a case in which the legislature has declared
certain facts about her to be true and then denied her any
opportunity to present evidence disproving the truth of the
State's declaration. Instead, the State merely has rendered
ineligible for payment through Wisconsin Shares people who share
an objective characteristic——a conviction for an offense
pertaining to public benefits fraud. As discussed at length
already, that classification bears a rational relationship to
the reasonable legislative objective of preventing fraud in the
Wisconsin Shares program.
IV. CONCLUSION
¶61 Each of the constitutional claims that Blake raises in
this case ultimately requires the court to look to the interest
that the legislature sought to advance when it revised the
childcare provider laws. The legislature enacted Act 76 shortly
after investigative reporting revealed rampant abuse within the
Wisconsin Shares program. Among other reasonable objectives,
Act 76 advances the goal of reducing and eliminating systemic
fraud. Thus, Act 76's creation of a prohibition on eligibility
for licensure and certification for people convicted of an
"offense involving fraudulent activity as a participant in"
34
No. 2012AP2578
various public benefits programs rationally relates to this
fraud reduction objective. No doubt, the sweeping nature of the
law creates harsh results for people such as Blake who have a
conviction on their record that is distant in time and involved
a relatively small amount of money. Nevertheless, the law
rationally advances the legislature's fraud reduction objective
in a manner that outweighs any interest that Blake might have in
eligibility to receive payments through Wisconsin Shares. It is
for the legislature, not the court, to reexamine the policy
determinations incorporated into this statute. Because we
conclude that Wis. Stat. § 48.685(5)(br)5. denies Blake neither
due process nor equal protection of the law, we affirm the
decision of the court of appeals.
By the Court.—The decision of the court of appeals is
affirmed.
35
No. 2012AP2578.ssa
¶62 SHIRLEY S. ABRAHAMSON, J. (dissenting). At issue in
the instant case is the constitutionality of Wis. Stat.
§ 48.685(5)(br)5. (2013-14),1 which permanently bars individuals
convicted of, among other things, "[a]n offense involving
fraudulent activity as a participant" in various federal and
Wisconsin welfare programs from becoming a state certified
childcare provider.
¶63 The consequences of being unable to become a certified
childcare provider are substantial. Childcare providers who
provide care for four or more children or for children over the
age of seven must be certified.2 Only certified childcare
providers are eligible to provide services to individuals in the
Wisconsin Shares program, a childcare subsidy program for low-
income individuals.
¶64 As a result of Wis. Stat. § 48.685(5)(br)5., Sonja
Blake is permanently barred from being a certified childcare
provider. The basis for the permanent bar is Sonja Blake's 1986
misdemeanor conviction for obtaining $294 in benefits to which
she was not entitled through a federal public assistance program
unrelated to childcare. Sonja Blake obtained the $294 in excess
benefits by failing to report as assets a motorcycle and a car
that did not run.
1
All subsequent references to the Wisconsin Statutes are to
the 2013-14 version unless otherwise indicated.
2
See Wis. Stat. § 48.65; Brown v. DCF, 2012 WI App 61, ¶40,
341 Wis. 2d 449, 819 N.W.2d 827.
1
No. 2012AP2578.ssa
¶65 Blake satisfied the requirements of her conviction.
She served two years' probation and paid $294 in restitution.
Since 1986 she has had no trouble with the law. She has been a
Wisconsin certified childcare provider for nearly a decade. She
has never faced complaints of fraud, abuse, or neglect.3
¶66 This personal history is strong evidence of Blake's
rehabilitation and that she is no danger to the public.
Empirical evidence demonstrates that the risk of recidivism
declines as time passes.4 Wisconsin's public policy favors
rehabilitation of offenders and their reintegration into
society.5 Nevertheless, after the enactment of Wis. Stat.
§ 48.685(5)(br)5. (2009 Wis. Act 76), Racine County, which had
3
Blake's certification was revoked in 2006 and reinstated
in 2008. See majority op., ¶¶14-15.
4
See, e.g., Alfred Blumstein & Kiminori Nakamura,
"Redemption" in an Era of Widespread Criminal Background Checks,
U.S. Dep't of Justice, Nat'l Inst. of Justice (June 2009),
http://www.nij.gov/journals/263/pages/redemption.aspx ("It is
well known——and widely accepted by criminologists and
practitioners alike——that recidivism declines steadily with time
clean.").
5
Wisconsin case law recognizes that a goal of sentencing is
imposing the minimum sentence consistent with "the
rehabilitative needs of the defendant." See State v. Gallion,
2004 WI 42, ¶44, 270 Wis. 2d 535, 678 N.W.2d 197 (quotation
omitted); see also State v. Paske, 163 Wis. 2d 52, 62, 471
N.W.2d 55 (1991) ("The three primary factors which a sentencing
judge must consider are the gravity of the offense, the
character and rehabilitative needs of the defendant, and the
need to protect the public."); Wis. Dep't of Corrections,
Reentry at 2 (Mar. 2012),
http://doc.wi.gov/Documents/WEB/ABOUT/OVERVIEW/Reentry%20Unit/Re
entry%20Communications%20Document%202012.pdf (stating that the
Wisconsin Department of Corrections "strives to rehabilitate and
successfully reintegrate [offenders] into society").
2
No. 2012AP2578.ssa
previously granted and renewed Blake's childcare certification,
permanently revoked her certification.
¶67 Although the majority opinion recognizes that "the
sweeping nature" of Wis. Stat. § 48.685(5)(br)5. "creates harsh
results for people such as Blake who have a
conviction . . . that is distant in time and involved a
relatively small amount of money," the majority opinion holds
that § 48.685(5)(br)5. does not violate equal protection,
substantive due process, or the irrebuttable presumption
doctrine.6
¶68 I disagree with the majority opinion for two reasons.
¶69 First, whether analyzed under the equal protection or
the due process clauses of the United States and Wisconsin
Constitutions, Wis. Stat. § 48.685(5)(br)5. is not rationally
related to legitimate state purposes. Although rational basis
scrutiny may be deferential, it is not "toothless."7
¶70 The permanent bar against obtaining a childcare
certification for individuals convicted of an "offense involving
fraud as a participant" in various public assistance programs
set forth in Wis. Stat. § 48.685(5)(br)5. is not rationally
related to the purposes of "preventing fraud against Wisconsin
6
See majority op., ¶61.
7
Schweiker v. Wilson, 450 U.S. 221, 234 (1981) (quoting
Matthews v. Lucas, 427 U.S. 495, 510 (1976)) (internal quotation
marks omitted)).
3
No. 2012AP2578.ssa
Shares" or "protecting children, protecting the families of
children, and protecting private employers in childcare."8
¶71 Because I would hold that Wis. Stat. § 48.685(5)(br)5.
is unconstitutional under the equal protection and due process
clauses, I would reverse the decision of the court of appeals in
the instant case and overrule the court of appeals' decision in
Brown v. Department of Children & Families, 2012 WI App 61, 341
Wis. 2d 449, ¶40, N.W.2d 827.9
¶72 Second, the majority opinion's decision upholding the
draconian sanction imposed by Wis. Stat. § 48.685(5)(br)5.
raises the constitutional issue of whether the statute is an
unconstitutional ex post facto law. A statutory interpretation
that does not raise constitutional issues is preferable to one
that does. See Jankowski v. Milwaukee Cnty., 104 Wis. 2d 431,
439, 312 N.W.2d 45 (1981) ("'[S]tatutes should be construed so
as to avoid constitutional objections.'") (quoting Niagara of
Wis. Paper Corp. v. DNR, 84 Wis. 2d 32, 50, 268 N.W.2d 153
(1978)).
8
See majority op., ¶¶39, 41, 60.
9
Brown upheld Wis. Stat. § 48.685(5)(br)5. against a
constitutional challenge somewhat similar to that raised in the
instant case. Brown concluded that Wis. Stat. § 48.685(5)(br)5.
was constitutional under the equal protection and due process
clauses of the United States and Wisconsin Constitutions. See
Brown, 341 Wis. 2d 449, ¶¶33-34, 40.
Although I limit my conclusion to Wis. Stat.
§ 48.685(5)(br)5., as does the majority opinion, my conclusion
may apply with equal force to other parts of the classification
system created by Wis. Stat. § 48.685(4m)(a)-(b) and (5)(br).
4
No. 2012AP2578.ssa
¶73 For the reasons set forth, I dissent and write
separately.
I
¶74 I disagree with the majority opinion's analysis and
conclusions under both the equal protection and due process
clauses that Wis. Stat. § 48.685(5)(br)5. is rationally related
to a legitimate state purpose.
¶75 I begin with the equal protection clause. Under the
equal protection clause, the legislature may not adopt arbitrary
or irrational classifications.10
¶76 Wisconsin Stat. § 48.685(4m)(a)-(b) and (5)(br)
classify various felony and misdemeanor offenses into three
categories.
¶77 Each of the three categories of offenses created by
Wis. Stat. § 48.685(4m)(a)-(b) and (5)(br) has a different
consequence for childcare certification. These three categories
are: (1) offenses that result in a permanent bar from obtaining
a childcare certification with no opportunity to show
rehabilitation; (2) offenses that result in a bar for five years
after the completion of the sentence (including probation,
parole, or extended supervision); and (3) offenses that result
in a bar that may be lifted at any time upon a showing of
rehabilitation.
10
See State v. Burgess, 2003 WI 71, ¶32, 262 Wis. 2d 354,
665 N.W.2d 124; Aicher ex rel. LaBarge v. Wis. Patients Comp.
Fund, 2000 WI 98, ¶57, 237 Wis. 2d 99, 613 N.W.2d 849.
5
No. 2012AP2578.ssa
¶78 It is difficult to discern what, if any, organizing
principles the legislature followed in classifying which
offenses fall into each of these three categories, let alone
their relationship to the legislative purposes of "preventing
fraud against Wisconsin Shares"11 or "protecting children,
protecting the families of children, and protecting private
employers in childcare."12
¶79 For example, some fraudulent activities result in a
permanent bar. Individuals convicted of "an offense involving
fraudulent activity as a participant" in various public
assistance programs——even fraudulent activity in trifling
amounts——are permanently barred from obtaining a childcare
certification.13 Not all crimes of dishonesty or fraud, however,
result in a permanent bar from obtaining a childcare
certification. Rather, offenses like making fake IDs,
impersonating government agents, or forging prescriptions result
in only a five year bar from obtaining a childcare
certification.
¶80 Likewise, although convictions for several serious
felonies like first degree intentional homicide, kidnapping, and
sexual assault result in a permanent bar from obtaining a
childcare certification, not all serious felonies result in a
permanent bar. Homicide by intoxicated use of a vehicle or
11
See majority op., ¶¶41, 60.
12
See majority op., ¶39.
13
See Wis. Stat. § 48.685(5)(br)5.
6
No. 2012AP2578.ssa
firearm or providing alcoholic beverages to children resulting
in death or great bodily harm result in a five-year bar.
Offenses like sexual exploitation by a therapist, human
trafficking, or misdemeanor neglect of a child merely result in
a bar against obtaining a certification that may be lifted upon
a showing of rehabilitation. Yet these offenses pose serious
danger to children or families of children.
¶81 These inconsistencies demonstrate that the three-part
classification system in Wis. Stat. § 48.685 is not rationally
related to the State's purposes of "preventing fraud against
Wisconsin Shares"14 or "protecting children, protecting the
families of children, and protecting private employers in
childcare."15
¶82 The State argues that analyzing the rationality of the
three-part classification system adopted by the legislature is
misguided. According to the State, the only relevant
classification to be examined in the instant case is that of
individuals convicted of offenses involving fraudulent activity
as recipients in various public assistance programs. In the
State's view, all persons, including Blake, convicted of
offenses involving fraudulent activity as recipients in public
benefits programs are treated the same.
¶83 The majority opinion adopts this view without
analysis, explanation, or citation to authority, stating: "The
14
See majority op., ¶¶41, 60.
15
See majority op., ¶39.
7
No. 2012AP2578.ssa
class we evaluate for equal protection purposes consists of
people permanently ineligible for licensure or certification on
the grounds that their record contains a conviction for '[a]n
offense involving fraudulent activity as a participant' in one
of the various government benefits programs delineated in" Wis.
Stat. § 48.685(5)(br)5.16
¶84 By evaluating only the class of individuals
permanently barred from being certified childcare providers on
account of convictions for offenses involving fraudulent
activity as participants in a public assistance program, the
majority opinion's review is "a mere tautological recognition of
the fact that [the legislature] did what it intended to do."
U.S. R.R. Retirement Bd. v. Fritz, 449 U.S. 166, 180 (1980)
(Stevens, J., concurring in the judgment).
¶85 "The Equal Protection Clause requires more of a state
law than nondiscriminatory application within the class it
establishes."17 I conclude that "[t]his Court . . . has an
obligation to view the classificatory system, in an effort to
determine whether the disparate treatment accorded the affected
classes is arbitrary."18
¶86 Looking to the entire classification system in the
statute, I conclude that the three categories created by Wis.
16
See majority op., ¶37; see also majority op., ¶46.
17
See Rinaldi v. Yeager, 384 U.S. 305, 308 (1966).
18
Logan v. Zimmerman Brush Co., 455 U.S. 422, 441 (1982)
(Blackmun, J., writing separately joined by three justices)
(emphasis in original).
8
No. 2012AP2578.ssa
Stat. § 48.685 are irrational and arbitrary; they are not based
upon substantial distinctions that make the classes really
different from one another, and the classifications adopted are
not germane to the purposes of the law.19
¶87 The majority opinion concludes that Wis. Stat.
§ 48.685(5)(br)5. and the permanent bar for individuals
convicted of public assistance fraud is rational because "[t]he
legislature . . . could reasonably determine that creating
different outcomes for people with different underlying
convictions would most efficaciously advance the objective of
preventing fraud against Wisconsin Shares. Because public
benefits fraud is the particular type of fraud that the
legislature sought to prevent, the legislature could reasonably
determine that public benefits fraud offenses warranted a
stricter prohibition than other underlying convictions."20
¶88 This conclusion, however, ignores three facts
demonstrating that Wis. Stat. § 48.685(5)(br)5.'s permanent bar
on obtaining a childcare certification for individuals convicted
of public assistance fraud does not advance the purpose of
"eliminating fraudulent activity in the Wisconsin Shares
program."21
¶89 First, childcare providers who provide care for four
or more children or for children over the age of seven must be
19
See Aicher, 237 Wis. 2d 99, ¶58.
20
See majority op., ¶41 (emphasis in original).
21
See majority op., ¶42.
9
No. 2012AP2578.ssa
certified,22 regardless of whether those providers receive funds
from Wisconsin Shares. More than half of the facilities whose
employees must be certified childcare providers receive no money
from Wisconsin Shares whatsoever.23 In other words, individuals
like Blake are barred from ever working for a childcare provider
whose employees must be certified, even though working for that
childcare provider might not present an opportunity to defraud
Wisconsin Shares.
¶90 Second, the permanent bar on being a certified
childcare provider based on public assistance fraud is not
limited to individuals who defrauded Wisconsin Shares. Instead,
individuals (like Blake) who 30 years ago illegally obtained a
small amount of benefits from a federal program not related to
childcare24 are subject to the same permanent bar received by
individuals who illegally obtained significant amounts of
benefits from Wisconsin Shares.25
22
See Brown, 341 Wis. 2d 449, ¶40.
23
See Pet'r's App. at 032.
24
See Wis. Stat. § 48.685(5)(br)5. (barring individuals
convicted of "[a]n offense involving fraudulent activity as a
participant in the Wisconsin Works program" as well as federal
programs like AFDC, food stamps, or other state programs like
Badger Care).
25
See, e.g., Raquel Rutledge, Private Fortune, Public Cash,
Milwaukee J. Sentinel (Aug. 31, 2009), available at
http://www.jsonline.com/watchdog/watchdogreports/56121342.html
(describing a woman who received nearly $3 million from the
Wisconsin Shares program over more than a decade).
10
No. 2012AP2578.ssa
¶91 Third, the permanent bar against obtaining a childcare
certification for individuals convicted of offenses involving
fraudulent activity in a public benefits program does not apply
to bookkeepers for regulated childcare facilities, or to other
individuals who may have access to Wisconsin Shares' funds.
Given that Wis. Stat. § 48.685(5)(br)5.'s purpose is eliminating
fraud in the Wisconsin Shares program, prohibiting individuals
from working as caregivers while allowing individuals to work as
bookkeepers for childcare facilities receiving Wisconsin Shares
funds is not rationally related to the legislative purpose.
¶92 Viewing the entire classification system in the
statute, I conclude that the classifications created by Wis.
Stat. § 48.685 are irrational and arbitrary. Accordingly I
would hold that Wis. Stat. § 48.685(5)(br)5. violates the equal
protection clauses of the United States and Wisconsin
Constitutions.
¶93 Now I turn to the due process clause. I conclude that
Wis. Stat. § 48.685(5)(br)5. is unconstitutional under the due
process clause because the statute shocks the conscience and, as
explained above, is not rationally related to a legitimate state
purpose.
¶94 As the majority opinion states, the due process clause
protects "'against governmental action that either shocks the
11
No. 2012AP2578.ssa
conscience or interferes with rights implicit in the concept of
ordered liberty.'"26
¶95 Simply put, Wis. Stat. § 48.685(5)(br)5. shocks the
conscience.
¶96 The means by which the legislature chose to further
its legitimate interest in protecting the public fisc and
deterring fraud against Wisconsin Shares is arbitrary and smacks
of retribution. The permanent bar on obtaining a childcare
certification imposed by Wis. Stat. § 48.685(5)(br)5. is a
draconian and disproportionate deterrent for the kind of fraud
the legislature sought to prevent.
¶97 Furthermore, Wis. Stat. § 48.685(5)(br)5. is so broad
that it arbitrarily, irrationally, and significantly impedes the
ability of law-abiding people like Blake to earn a living in
their chosen profession, childcare. The permanent bar is based
on a 30-year-old conviction for obtaining $294 in excess
benefits under a federal public assistance program totally
unrelated to Wisconsin Shares——the program which the legislature
sought to protect by enacting Wis. Stat. § 48.685(5)(br)5. This
result should shock the conscience. It does mine.
¶98 "[T]he right to work for a living in the common
occupations of the community is the very essence of the personal
freedom and opportunity that it was the purpose of the
[Fourteenth] Amendment to secure." Truax v. Raich, 239 U.S. 33,
26
Majority op., ¶47 (quoting Dane Cnty. DHS v. P.P., 2005
WI 32, ¶19, 279 Wis. 2d 169, 694 N.W.2d 344) (internal
alterations and quotation marks omitted).
12
No. 2012AP2578.ssa
41 (1915); see also Schware v. Bd. of Bar Exam'rs, 353 U.S. 232,
239-39 (1957); majority op., ¶49 n.18.
¶99 In my view, Wis. Stat. § 48.685(5)(br)5. is so
"'brutal' and 'offensive'" that it does not "comport with
traditional ideas of fair play and decency . . . ."27
Accordingly, Wis. Stat. § 48.685(5)(br)5. violates substantive
due process.
¶100 The majority opinion recognizes, in effect, the
disproportionate, draconian, and "brutal" nature of Wis. Stat.
§ 48.685(5)(br)5. As the majority opinion puts it, "the
sweeping nature" of Wis. Stat. § 48.685(5)(br)5. "creates harsh
results for people such as Blake who have a
conviction . . . that is distant in time and involved a
relatively small amount of money."28
¶101 Reinforcing this point, both this court and the court
of appeals have previously recognized the harshness of Wis.
Stat. § 48.684(5)(br)5.'s permanent bar on obtaining a childcare
certification for individuals convicted of offenses "involving
fraudulent activity as a participant in" public assistance
programs.29
27
See Breithaupt v. Abram, 352 U.S. 432, 435 (1957)
(quoting Rochin v. California, 342 U.S. 165, 174 (1952)).
28
See majority op., ¶61.
29
See, e.g., Jamerson v. DCF, 2013 WI 7, ¶¶2 & n.3, 72, 345
Wis. 2d 205, 824 N.W.2d 822 (twice describing the permanent bar
on obtaining a childcare certification as a "harsh penalty");
Brown, 341 Wis. 2d 449, ¶40 (noting that the plaintiff was
"undoubtedly correct in highlighting the harshness of the new
law . . . .").
13
No. 2012AP2578.ssa
II
¶102 Recognizing the harshness of Wis. Stat.
§ 48.685(5)(br)5. but concluding that the law is nevertheless
constitutional under the equal protection and due process
clauses raises a further question: Whether the law is so
"harsh" and "punitive" that it violates the ex post facto
clauses of the United States and Wisconsin Constitutions. The
parties have not briefed or argued this point. Without briefs
or argument, I discuss but do not decide this issue.
¶103 One commentator has argued that the retroactive and
permanent punitive effect of Wis. Stat. § 48.685(5)(br)5.
violates the ex post facto clause. See Courtney Lanz, Comment,
Caregivers Uncared For: How to Fix Wisconsin's Ex Post Facto
Caregiver Law, 2013 Wis. L. Rev. 1067, 1081 (asserting that the
"punitive effect" of Wis. Stat. § 48.685(5)(br)5. "is sufficient
to outweigh any stated civil intent and thus violates the Ex
Post Facto clause.").
¶104 Relevant to the instant case, the ex post facto clause
prohibits laws making "more burdensome the punishment for a
crime, after its commission . . . ."30
¶105 Without analysis of Wis. Stat. § 48.685(5)(br)5. it
appears that the statute is a regulatory civil statute. A
regulatory civil statute nonetheless may violate the ex post
facto clause if it is "'so punitive either in purpose or effect'
30
State v. Thiel, 188 Wis. 2d 695, 703, 524 N.W.2d 641
(1994) (internal quotation marks and alterations omitted)
(quoting Collins v. Youngblood, 497 U.S. 37, 42 (1990)).
14
No. 2012AP2578.ssa
as to 'transfor[m] what was clearly intended as a civil remedy
into a criminal penalty.'"31
¶106 For several reasons, the permanent bar on obtaining a
childcare certification set forth in Wis. Stat.
§ 48.685(5)(br)5. may be so punitive in purpose and effect that
the otherwise regulatory civil statute may be transformed into a
criminal penalty.
¶107 First, Wis. Stat. § 48.685(5)(br)5. permanently bars
individuals convicted of "offense[s] involving fraudulent
activity as a participant" in various social welfare programs
from obtaining a childcare certification and prohibits
individuals from demonstrating rehabilitation.32 In this
respect, the law appears to be punitive——it imposes a sanction
that cannot be lifted no matter the circumstances.
¶108 Second, the permanent bar (with no opportunity to show
rehabilitation) imposed by Wis. Stat. § 48.685(5)(br)5. applies
regardless of when the "offense involving fraudulent activity"
occurred, no matter how minor the fraud was, and no matter which
31
See In re Commitment of Rachel, 2002 WI 81, ¶33, 254
Wis. 2d 215, 647 N.W.2d 762 (quoting Hudson v. United States,
522 U.S. 93, 99 (1996)) (alteration in Rachel).
In analyzing whether a statute violates the ex post facto
clause, courts apply the "intent-effects" test derived from
Hudson and repeated in our cases. See Rachel, 254 Wis. 2d 215,
¶39; State v. Scruggs, 2015 WI App 88, ¶7, 365 Wis. 2d 568, 872
N.W.2d 146 (citation omitted).
32
See Wis. Stat. § 48.685(5)(br) ("[N]o person who has been
convicted . . . may be permitted to demonstrate that he or she
has been rehabilitated."); majority op., ¶8.
15
No. 2012AP2578.ssa
public benefits program was defrauded. Thus, an individual like
Blake, who committed an offense and was convicted 30 years ago
of obtaining $294 by fraud from a federal program unrelated to
childcare and unrelated to the Wisconsin Shares program, is
treated identically to an individual who recently stole millions
from Wisconsin Shares.33 Imposing the same permanent bar against
individuals under Blake's circumstances appears, in light of the
legislature's purposes of protecting children and families and
preventing fraud against Wisconsin Shares, punitive.
¶109 Third, Wis. Stat. § 48.685(5)(br)5. appears to further
"the traditional aims of punishment——retribution and
deterrence . . . ," factors used to identify ex post facto
laws.34 As stated before, Wis. Stat. § 48.685(5)(br)5. appears
retributive because it gives individuals convicted of
"offense[s] involving fraudulent activity as a participant" in
public benefits programs no opportunity to demonstrate
rehabilitation and imposes the same sanction regardless of when
the fraud occurred, what program was defrauded, and how minimal
or serious the fraud was. As the majority opinion states, this
"strict prohibition" is tied to the legislative purposes of
"prevent[ing] fraud against Wisconsin Shares [and] also
33
See, e.g., Rutledge, supra note 25 (describing a woman
who received nearly $3 million from the Wisconsin Shares program
over more than a decade).
34
Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168 (1963);
see also Commitment of Rachel, 254 Wis. 2d 215, ¶33 (quoting
this factor and others identified in Mendoza-Martinez).
16
No. 2012AP2578.ssa
deter[ring] other fraudulent conduct . . . ."35 General and
specific deterrence are traditional aims of punishment.
¶110 Finally, the circumstances under which Wis. Stat.
§ 48.685(5)(br)5. was adopted also support the conclusion that
the law may be punitive and retributive. Wisconsin Stat.
§ 48.685(5)(br)5. was adopted by the legislature after an
investigation by the Milwaukee Journal Sentinel uncovered
significant fraud against the Wisconsin Shares program.36 The
bill creating Wis. Stat. § 48.685(5)(br)5. was introduced on
October 2, 2009 and passed both houses of the legislature
unanimously a little more than a month later. This haste
suggests that the legislature's "sudden and strong passions" may
have been aroused by fraud uncovered against the Wisconsin
Shares program. One purpose of the ex post facto clause is to
prevent "sudden and strong passions" from transforming well-
intentioned regulations into arbitrary and punitive
legislation.37
¶111 The prohibition on ex post facto laws stems from basic
considerations of fairness and fair warning.38 There is no
fairness or fair warning here. Wisconsin Stat.
§ 48.685(5)(br)5. permanently bars individuals like Blake from
35
Majority op., ¶50.
36
See majority op., ¶¶11, 51.
37
See Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 137-38
(1810).
38
See State v. Kurzawa, 180 Wis. 2d 502, 513, 509
N.W.2d 712 (1994).
17
No. 2012AP2578.ssa
ever obtaining a childcare certification based on a decades-old
misdemeanor conviction. Imposing a draconian penalty decades
after a misdemeanor conviction without notice to the individual
at the time of conviction raises the question of whether Wis.
Stat. § 48.685(5)(br)5. makes "more burdensome the punishment
for a crime, after its commission . . . ."39
¶112 Under the circumstances of the instant case and the
interpretation adopted by the majority opinion, the majority has
exposed the application of Wis. Stat. § 48.685(5)(br)5. to Blake
to a challenge as an unconstitutional ex post facto law.
¶113 For the reasons set forth, I dissent and write
separately.
¶114 I am authorized to state that Justice ANN WALSH
BRADLEY joins this opinion.
39
Thiel, 188 Wis. 2d at 703 (internal quotation marks and
alterations omitted) (quoting Collins v. Youngblood, 497 U.S.
37, 42 (1990)).
18
No. 2012AP2578.ssa
1