                                                                 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 App. 2015 – Unpublished)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)).


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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.


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                                                                      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).


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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).


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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)).


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