ARGUMENT: February 24, 2016
OF A DECISION OF THE COURT OF APPEALS (Reported at 364 Wis.2d
526, 868 N.W.2d 198) (Ct. App. 2015 – Unpublished)
of a decision of the Court L.C. No. 2010CV1048 of Appeals.
Circuit Court Dane County, Shelley J. Gaylord Justice
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
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.
ABRAHAMSON, J. and BRADLEY, A. W., J. dissent (Opinion
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This is a review of an unpublished decision of the court of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.
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.
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.
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, 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.
BACKGROUND A. The Children's Code and 2009 Wis.Act. 76
DCF licenses childcare centers and certifies childcare
providers under Chapter 48 of the Wisconsin
Statutes. "To obtain a license . . . to operate
a child care center, a person must . . . meet the
requirements specified in s. 48.685." 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
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. However, only a licensed
childcare center or a person with a childcare 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."
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. 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.
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:
(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 U.S.C. 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.
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
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 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."
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. 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.
Blake's Childcare Certification
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 children, with about
4 to 6 children in her home at any one time.
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.
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.
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 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.
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.
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.
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
revocation under new Wis.Stat. §
48.685(5)(br)5. 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.
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. She sought a declaratory judgment
holding 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
Both parties filed for summary judgment, and the Dane County
Circuit Court 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."
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."
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.
Next, the court turned to Blake's claim that Act 76
created an impermissible irrebuttable presumption that
individuals convicted of an offense involving fraudulent
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.
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.
On July 29, 2015, Blake filed a petition for review, which
this court granted on November 4, 2015.
STANDARD OF REVIEW
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 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).
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 that a statute probably is unconstitutional."
Id. (citing Hammermill Paper Co., 58 Wis.2d at
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.
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 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.
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)).
"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).
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.
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
(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, 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
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.
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 elimination of fraud in the Wisconsin
Shares program and the protection of the public's scarce
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.,
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 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.
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.
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
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 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
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
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. Moreover, the fact that a licensed
facility does 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.
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 ...