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           FEB 2 1

              JUSTTCE
                                                     SUSAN L. CARLSON
                                                   SUPREME COURT CLERK




        IN THE SUPREME COURT OF THE STATE OF WASHINGTON

  CHRISTAL FIELDS,
                                                      No. 95024-5
                          Petitioner,

                  V.                                  EN BANC


  STATE OF WASHINGTON
 DEPARTMENT OF EARLY LEARNING                         Filed:      FFR 2 I 2011

                          Respondent.


          YU, J. — This case concerns the extent to which a criminal record may

  preclude a person from supporting herself through lawful employment in her

  chosen field. In 1988, petitioner Christal Fields pleaded guilty to attempted second

  degree robbery for trying to snatch a woman's purse. As a result. Fields was

  permanently disqualified from working at any licensed childcare facility in

  Washington pursuant to regulations promulgated by respondent Department of

  Early Learning (DEL). Fields raises state and federal constitutional challenges to

  these regulations, both facially and as applied to her. We decline to reach Fields's

  facial challenges and state constitutional arguments. However, we hold that DLL's
Fields V. Dep't ofEarly Learning, No. 95024-5


regulations prohibiting any individualized consideration of Fields's qualifications

at the administrative level violate Fields's federal right to procedural due process

as applied. We therefore reverse the Court of Appeals and remand for further

administrative proceedings consistent with this opinion.

                   Factual Background and Procedural History


       The relevant factual background as recounted by the Court of Appeals is

undisputed:

            Fields grew up in a dysfunctional home environment with
       rampant drug abuse. At the age of 16, she became homeless and
       turned to prostitution and drugs. In 1988[, at age 22], Fields
       attempted to snatch a purse to help pay for her drug habit. She
       pleaded guilty to attempted second degree robbery.

                 Fields continued to lead a troubled life until 2006 when she
       turned her life around by successfully completing a drug program.
       She has been clean and sober ever since. For two years she resided in
       group housing. During this time, she was promoted to resident
       manager because of her responsibility and commitment to working
       with others. Many support letters from employers and coworkers
       since then attest to Fields's character.


             On February 6, 2013, Fields submitted a portable background
       check to DEL. Based on the information Fields provided, DEL
       cleared Fields to work at a childcare facility. She worked in that
       childcare facility for six months after she received her background
       clearance. Fields loves working with children and has taken
       advantage of every available training opportunity to improve her
       skills.


             A local news report on childcare centers brought Fields's
       undisclosed criminal history to DEL's attention.
Fields V. Dep't ofEarly Learning, No. 95024-5


Fields V. Dep't ofEarly Learning, No. 75406-8-1, slip op. at 1-2(Wash. Ct. App.

Aug. 21, 2017)(unpublished)(footnote omitted), http://www.courts.wa.gov/

opinions/pdf/754068.pdf.

       The licensing supervisor for DEL sent a notice of disqualification to Fields.

The notice informed Fields that she was permanently disqualified, effective

immediately,"meaning that you cannot work with or have unsupervised access to

child care children." Clerk's Papers at 49. Fields appealed to the Office of

Administrative Hearings(GAR). Fields also requested reconsideration by the

licensing supervisor, pointing to both factual inaccuracies in the notice of

disqualification and evidence of her rehabilitation. It does not appear from the

record that Fields's request for reconsideration has been considered on its merits.

       On appeal, DEL moved for summary judgment on the sole basis that in

accordance with former WAG XXX-XX-XXXX(1)(2015),"the appellant must be

disqualified from having unsupervised access to children or obtaining a [childcare]

license under [former] WAG XXX-XX-XXXX(1)[(2015)] due to her 1988 conviction

of attempted second degree robbery." Id. at 140. Fields did not challenge the fact

of her 1988 conviction but contended that the disqualification regulations violate

her constitutional right to due process oflaw, both facially and as applied. OAH

determined that such questions were beyond the scope of its review and therefore

granted summary judgment to DEL.
Fields V. Dep't ofEarly Learning, No. 95024-5


       Fields petitioned for review in superior court, again arguing that the

disqualification regulations violate her state and federal rights to procedural and

substantive due process, both facially and as applied. DEL opposed Fields's

arguments on the merits. The superior court dismissed the petition for review,

determining that Fields had not met her burden of proving that the disqualification

regulations are unconstitutional. The Court of Appeals affirmed in an unpublished

opinion, and we granted Fields's petition for review. Fields v. Dep't ofEarly

Learning, 189 Wn.2d 1031 (2018).

                                            Issue


       Are DHL's permanent disqualification regulations unconstitutional, either

facially or as applied to Fields?

                                          Analysis


       Fields contends that she is entitled to relief because "[t]he order, or the

statute or rule on which the order is based, is in violation of constitutional

provisions on its face or as applied," RCW 34.05.570(3)(a). Specifically, she

raises challenges based on the due process clauses of the state and federal

constitutions, both facially and as applied.' U.S. CONST, amend. XIV, § 1; Wash.

Const, art. I, § 3. We review the constitutionality of agency rules de novo, using



       • Amid also raise the state equal protection clause and equal rights amendment. Wash.
Const, art. I, § 12, art. XXXI. We decline to address these arguments because they are briefed
only by amid and are unnecessary to the just resolution of this case.
Fields V. Dep't ofEarly Learning, No. 95024-5


the same standards that we use when reviewing the constitutionality of statutes.

Amunrud v. Bd. ofAppeals, 158 Wn.2d 208, 215, 143 P.3d 571 (2006). "Statutes

are presumed to be constitutional, and the burden to show unconstitutionality is on

the challenger." Id. The challenger can meet this burden only "if argument and

research show that there is no reasonable doubt that the statute violates the

constitution." Id.


        We hold that DEL's regulations do violate federal procedural due process as

applied to Fields.^ We therefore reverse the Court of Appeals.

A.     Background information regarding DEL

        At the time of Fields's permanent disqualification, DEL was an

administrative agency within the executive branch that the legislature created in

response to "a shortage of high quality services and supports for children ages birth

to three and their parents and caregivers." Former RCW 43.215.005(2)(c)(2010).

In general,"[t]he primary duties of the department [were] to implement state early

learning policy and to coordinate, consolidate, and integrate child care and early

learning programs in order to administer programs and funding as efficiently as

possible." Former RCW 43.215.020(2)(2016).



       ^ We decline to address Fields's state constitutional arguments because the briefing on
those arguments is insufficient "to insure that. . . our decision will be made for well founded
legal reasons." State v. Gunwall, 106 Wn.2d 54, 62-63, 720 P.2d 808 (1986). We also decline to
address her federal substantive and facial due process arguments because they are unnecessary to
the resolution of this case.
Fields V. Dep't ofEarly Learning, No. 95024-5


       Effective July 1, 2018, DEL became part of the newly created Department of

Children, Youth, and Families(DCYF). Laws of 2017, 3d Spec. Sess., ch. 6.

However, Fields's disqualification was effected by DEL, based solely on the DEL

regulations then in effect. Given this procedural history, we decline to speculate

on how a factually similar case would (or should) be handled by DCYF in the

future.^

       The legislature specifically tasked DEL with administering a licensing

program for childcare facilities. Former RCW 43.215.200(3)-(4)(2015). In order

to receive and maintain a license to operate, childcare facilities were required to

comply with applicable statutes and DEL regulations and were subject to regular

inspections and mandatory reporting requirements. Operating an unlicensed

childcare facility is a misdemeanor. Former RCW 43.215.340(2006), recodified

fl.yRCW 43.216.365.


       As part ofthe licensing program, DEL is required to run background checks

on anyone who wants to work in a childcare facility in order to determine whether




       ^ For the first time at oral argument, DEL contended that if Fields were to obtain a
certificate of restoration of opportunity(CROP)pursuant to chapter 9.97 RCW,she would be
entitled to an individualized determination by DCYF, making a decision on her constitutional
arguments unnecessary. Wash. Supreme Court oral argument. Fields v. Dep't ofEarly Learning,
No. 95024-5(May 8, 2018), at 31 min., 48 sec., audio recording by TVW,Washington State's
Public Affairs Network, http://www.tvw.org. After reviewing supplemental briefing from the
parties on this issue, we decline to address its merits. Neither DCYF nor the CROP statute
existed when Fields was permanently disqualified, and any effect a CROP might have on
Fields's situation in the future is entirely hypothetical at this time.
Fields V. Dep't ofEarly Learning, No. 95024-5


the "individual is of appropriate character, suitability, and competence to provide

child care and early learning services to children." Former RCW 43.215.215(1)

(2011). Pursuant to its rule making authority, DEL adopted administrative

regulations for running these background checks.

       DHL's regulations provide that "[a] subject individual who has a background

containing any ofthe permanent convictions on the director's list, [former] WAC

XXX-XX-XXXX(1), will be permanently disqualified from providing licensed child

care, caring for children or having unsupervised access to children in child care."

Former WAC XXX-XX-XXXX(1), recodified as WAC XXX-XX-XXXX. This "director's

list" includes 50 types of permanently disqualifying convictions, one of which is

"[r]obbery." Former WAC XXX-XX-XXXX, recoc/zyzet/aj WAC XXX-XX-XXXX. For

purposes of the director's list, Fields's conviction for attempted second degree

robbery is treated in the same manner as a completed offense and is therefore

permanently disqualifying. Former WAC XXX-XX-XXXX(l)(c)(2015), recodified as

WAC XXX-XX-XXXX.


       A person with a permanently disqualifying conviction has no recourse at the

administrative level. DEL regulations prohibit any administrative decision-maker

from finding any regulation invalid or unenforceable and further prohibit

reconsideration of permanent disqualifications on a case-by-case basis. WAC 170-
Fields V. Dep't ofEarly Learning, No. 95024-5


03-0230(1); former WAC XXX-XX-XXXX(5)(2015), recodified as           AC 110-06-

0115.


B.      Fields does properly raise a procedural due process challenge

        The due process clause of the Fourteenth Amendment provides that no state

may "deprive any person of life, liberty, or property, without due process of law."

U.S. Const, amend. XIV,§ 1. Fields's right to pursue the lawful career of her

choice without arbitrary interference by the State is a well-established "liberty

interest protected by the due process clause." Amunrud, 158 Wn.2d at 219. The

right to due process has both procedural and substantive components. Id. at 216.

DEL, however, contends that Fields's due process claim is substantive only, with

no true procedural component. We disagree. While Fields does raise a substantive

challenge, she also raises a procedural one.

        "[PJrocedural due process requires that an individual receive notice of the

deprivation and an opportunity to be heard to guard against erroneous deprivation"

of a protected interest. Id. To determine whether a particular procedure for

providing notice and an opportunity to be heard is constitutionally adequate, we

must assess the risk of erroneous deprivation in light of the competing interests at

stake. Mathews v. Eldridge, 424 U.S. 319, 335,96 S. Ct. 893, 47 L. Ed. 2d 18

(1976). To do so, we must first recognize that there are different ways in which a

deprivation might be "erroneous."
Fields V. Dep't ofEarly Learning, No. 95024-5


       For instance, a deprivation might be "erroneous" based on a statutory or

regulatory violation, where there is an error in applying the law as written to the

facts presented. 2 Ronald D.Rotunda & John E. Nowak,Treatise on

Constitutional Law: Substance and Procedure § 14.6(a)(i), at 722(5th ed.

2012). There is no question that Fields received sufficient procedures to guard

against this type of error. The validity of her underlying conviction is

unchallenged, and DEL's regulations, as written, require Fields's permanent

disqualification on the sole basis ofthat conviction.

       Nevertheless, a deprivation based on a constitutional violation is no less

"erroneous" than a deprivation based on a statutory or regulatory violation. A

deprivation thus might be "erroneous" even though the law as written was

correctly applied to the facts presented because the law, as applied, is

unconstitutional. This is the type of error Fields asserts, claiming that her

permanent disqualification based solely on a 30-year-old attempted second degree

robbery conviction constitutes an arbitrary deprivation of her protected interest in

pursuing lawful employment in her chosen field. Fields has a procedural due

process right to have this claim heard "'at a meaningful time and in a meaningful

manner,' appropriate to the case." Amunrud, 158 Wn.2d at 216 (internal quotation

marks omitted)(quoting Mathews, 424 U.S. at 333).
Fields V. Dep't ofEarly Learning, No. 95024-5


       DEL's regulations prohibit any consideration of Fields's claim at the

administrative level. Therefore, the only procedural mechanism available to her is

judicial review pursuant to the Administrative Procedure Act(A?A), chapter 34.05

RCW. To resolve Fields's as-applied procedural due process claim, we must

determine whether APA review is sufficient to protect against an erroneous

deprivation of Fields's protected interest in light ofthe specific circumstances

presented.

C.     In light of Fields's particular circumstances, she has a procedural due
       process right to an individualized determination at the administrative level

       Fields claims that as applied to her, DEL's regulations forbidding a case-by-

case determination of whether she is qualified to work in licensed childcare created

an unacceptably high risk of erroneous deprivation in violation of her federal right

to procedural due process. In the particular circumstances presented by Fields's

case, we agree.


       Our analysis of Fields's federal procedural due process claim is guided by

the Mathews test, which requires us to consider the following:

      First, the private interest that will be affected by the official action;
      second, the risk of an erroneous deprivation of such interest through
      the procedures used, and the probable value, if any, of additional or
      substitute procedural safeguards; and finally, the Government's
      interest, including the function involved and the fiscal and
      administrative burdens that the additional or substitute procedural
      requirement would entail.




                                                10
Fields V. Dep 't ofEarly Learning, No. 95024-5


424 U.S. at 335. The parties do not dispute that Fields has a strong interest in

pursuing her chosen profession without arbitrary interference by the State, while

DEL has a strong interest in protecting children who are taught or cared for in

licensed facilities without creating undue administrative burdens. It is the second

Mathews factor that is primarily at issue: the risk of erroneous deprivation and the

probable value of additional procedural safeguards.

       In addressing this issue, we focus on the as-applied nature of Fields's

challenge, which "is characterized by a party's allegation that application of the

statute in the specific context ofthe party's actions or intended actions is

unconstitutional." City ofRedmond v. Moore, 151 Wn.2d 664, 669, 91 P.3d 875

(2004)(emphasis added). Furthermore,"'[d]ue process is flexible and calls for

such procedural protections as the particular situation demands.'" Mathews, 424

U.S. at 334(quoting Morrissey v. Brewer,408 U.S. 471, 481, 92 S. Ct. 2593, 33

L. Ed. 2d 484 (1972)). We therefore must consider the risk of erroneous

deprivation and the competing interests at stake in light of Fields's particular

circumstances.


       1.     Fields faces an unusually high risk of erroneous deprivation

       Fields has a protected interest, but not a fundamental right, to pursue her

chosen, lawful occupation. Amunrud, 158 Wn.2d at 222. Therefore, if DEL's

regulations prevent her from pursuing her chosen occupation without a rational



                                                 11
Fields V. Dep't ofEarly Learning, No. 95024-5


basis for doing so, she has been erroneously deprived of a protected interest. Id.

Here, a number of factors combine to put Fields at an unusually high risk of

erroneous deprivation.

       First, Fields's conviction is over 30 years old, but DEL's regulations treat

her identically to a person who has recently committed multiple acts of child

abuse. DEL's regulations also give no weight to the fact that Fields was 22 years

old at the time of her offense, while "psychological and neurological studies

show[]that the 'parts ofthe brain involved in behavior control' continue to

develop well into a person's 20s." State v. O'Dell, 183 Wn.2d 680, 691-92, 358

P.3d 359(2015)(footnote omitted)(internal quotation marks omitted)(quoting

Miller v. Alabama, 567 U.S. 460,472, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012)).

And at the time of her offense. Fields was "addicted to drugs, in domestic violence

relationships,[and] in and out of homelessness." Report ofProceedings(RP)at 9.

It is undisputed that Fields has overcome these challenges. Nevertheless, DEL's

regulations make her 30-year-old conviction a permanent barrier to pursuing

employment in her chosen field. Because Fields's sole disqualifying conviction

occurred long ago under circumstances that no longer exist, it is highly likely that

her permanent disqualification is erroneously arbitrary.

       In addition to the passage oftime in Fields's particular case, DEL's

regulations are unusually "onerous" as compared to other laws relating to



                                                12
Fields V. Dep't ofEarly Learning, No. 95024-5


disqualification for unsupervised contact with children based on prior convictions.

Br. of Amicus Curiae Civil Survival in Supp. of Pet. for Review at 5. For instance,

the federal government requires the State to permanently disqualify individuals

from licensed childcare work based on certain violent and sexual crimes. 42

U.S.C. § 9858f(c)(l)(D)-(E).^ ''Robbery is not one ofthose crimes.'''' Fields, No.

75406-8-1, slip op. at 9(emphasis added). This inconsistency between state and

federal law increases the risk of an arbitrary, erroneous deprivation based solely on

Fields's attempted second degree robbery conviction.

       Washington law creates another inconsistency by providing that Fields's

conviction would not permanently bar her from obtaining a license as a foster care

provider. In contrast to the limited role played by licensed childcare facilities,

"[f]oster parents are responsible for the protection, care, supervision, and nurturing

ofthe child in placement." RCW 74.13.330. Yet Washington law provides that a

conviction of robbery results in only a five-year disqualification from foster care

license eligibility. DSHS Secretary's List of Crimes and Negative Actions for Use

by Children's Administration (Mar. 2017), https://www.dshs.wa.gov/sites/


       ^ The federal statute requires permanent disqualification of anyone who has been
convicted of the following felony offenses: "murder," "child abuse or neglect,""a crime against
children, including child pornography," "spousal abuse,""a crime involving rape or sexual
assault," "kidnapping," "arson," and "physical assault or battery." 42 U.S.C.
§ 9858f(c)(l)(D)(i)-(viii). It also requires permanent disqualification if the person "has been
convicted of a violent misdemeanor committed as an adult against a child, including the
following crimes: child abuse, child endangerment, sexual assault, or of a misdemeanor
involving child pornography." 42 U.S.C. § 9858f(c)(l)(E).


                                                13
Fields V. Dep't ofEarly Learning, No. 95024-5


default/files/CA/pub/documents/secretaryslist.pdf[https.7/perma.cc/SJ7P-HG8J];

see also former WAC 388-06A-0170(l)(a)-(e)(2015), recodified as WAC 110-04-

0100(l)(a)-(e). These inconsistent standards make it highly likely that a person

convicted of attempted second degree robbery will be arbitrarily disqualified from

working with children in licensed childcare even though the State would view that

person as entirely fit to work with children as a foster parent.

       Finally, the undisputed facts underlying Fields's 1988 conviction do not

indicate that she was likely to pose a danger to children for the rest of her life. At

the age of22, Fields "tried to grab a woman's purse away from her in front of a

Bartell[]Drugs." RP at 4. At the time,"[s]he was addicted to drugs, in domestic

violence relationships,[and] in and out of homelessness." Id. at 9. There is no

indication that any children were either victims of or witnesses to the attempted

crime. And because Fields was not convicted of first degree robbery, we know

that she was not armed with a deadly weapon, did not display anything that

appeared to be a deadly weapon, and did not cause any bodily injury to the victim.

Former RCW 9A.56.200(1)(1975). As the superior court judge in this case noted,

Fields's actions "barely met perhaps the statutory elements ofrobbery in the

second degree at the time."^ RP at 26. Indeed, she was not even successful in



       ^ To the extent that there are other factual circumstances underlying Fields's conviction
that are not in the record before us, such facts may be considered when Fields is provided with
an individualized determination of her qualifications.


                                                14
Fields V. Dep't ofEarly Learning, No. 95024-5


grabbing the purse. DEL's regulations, however, treat Fields's inchoate attempt

identically to a completed crime.

       Without question, prior criminal convictions are relevant considerations

when evaluating a person's future ability to care for vulnerable populations such as

children. However, Fields's conviction is based on an offense that was committed

30 years ago, when she was under 25 years old. Her attempted second degree

robbery conviction does not permanently disqualify her from licensed childcare

work as a matter of federal law and does not even permanently disqualify her from

being a licensed foster care provider as a matter of state law. The offense itself did

not involve any children in any way, did not involve any deadly weapons, and did

not inflict any bodily injury. In light ofthese circumstances, and keeping in mind

that DEL's designated task is to determine whether the individual is of appropriate

character, suitability, and competence to provide childcare under former RCW

43.215.215(1), it is difficult to see how the fact of the single conviction at issue

here should permanently disqualify Fields as unfit to work in a licensed childcare

facility.

       This is not to say that Fields is necessarily qualified for such work. The

notice of disqualification sent by DEL's licensing supervisor raised a number of

concerns that, taken together, may still lead to Fields's disqualification. However,

using Fields's 1988 attempted second degree robbery conviction as the sole basis



                                                15
Fields V. Dep 't ofEarly Learning, No. 95024-5


for her permanent disqualification with no opportunity for an individualized

determination presents an unusually high risk of arbitrary, erroneous deprivation.

In light of this unusually high risk, the additional procedure of an individualized

determination at the administrative level would be extremely valuable.

       2.     An individualized administrative determination of Fields's
              qualifications is invaluable to mitigating the risk of erroneous
              deprivation

       As noted above, DEL regulations explicitly prohibit any individualized

consideration ofthe qualifications of a person with a permanently disqualifying

conviction. WAC XXX-XX-XXXX(1); former WAC XXX-XX-XXXX(5). Fields's only

recourse was therefore to seek judicial review of her disqualification pursuant to

the APA. In these particular circumstances, APA review does not provide

sufficient procedural protections given the high risk of erroneous deprivation.

       To obtain judicial review. Fields was required to comply with the APA's

strict requirements for filing and serving her petition. RCW 34.05.542. To prevail

on the merits, she faced the extraordinarily high burden of showing beyond a

reasonable doubt that DEL's regulations were unconstitutional. Amunrud, 158

Wn.2d at 215. The only relief Fields has ever asked for is an individualized

determination of her qualifications at the administrative level. She has been

challenging her disqualification in court since October 2015, going through three

levels ofjudicial review, unable to work(much less advance)in her chosen field



                                                 16
Fields V. Dep't ofEarly Learning, No. 95024-5


the entire time. The added time and expense involved in the judicial review

process, in addition to the difficulty in obtaining relief, raises significant concerns

about its adequacy in light of the high risk of erroneous deprivation presented here.

Mathews, 424 U.S. at 341-42; see dissent at 8-9.

       Meanwhile, an individualized determination would drastically reduce the

risk of erroneous deprivation in Fields's case. Properly and fairly conducted, an

individualized determination will ensure that even if Fields is ultimately

disqualified, it will not be arbitrary but, instead, based on her "character,

suitability, and competence to provide child care and early learning services to

children." Former RCW 43.215.215(1).

       We recognize DEL's interests, but they are not compromised by this as-

applied challenge. DHL's primary interest, protecting children, is not implicated at

all. Whether Fields is qualified to work in licensed childcare facilities will still be

decided with the paramount goal of protecting children. The procedure on remand

need not be unusual or burdensome. DEL already has regulations governing

individual determinations ofthose with troubling past behavior but without any

disqualifying convictions. See former WAC XXX-XX-XXXX(4),(7); former WAC

XXX-XX-XXXX(1)(2015), recodified as WAC XXX-XX-XXXX; former WAC 170-06-

0100(2015), recodified as WAC XXX-XX-XXXX; former WAC XXX-XX-XXXX(l)-(4).

Fields is entitled only to be heard in accordance with existing procedures, where



                                                17
Fields V. Dep't ofEarly Learning, No. 95024-5


her attempted second degree robbery conviction is considered along with the rest

of her history, both favorable and unfavorable. If there is a nonarbitrary basis to

believe that Fields's qualification would present a danger to childcare children, she

will remain disqualified, fully protecting DEL's primary interest in protecting

children.


       DEL also has a legitimate interest in easing the administrative burdens that

would come with requiring a case-by-case evaluation of every person who seeks

qualification to work in licensed childcare facilities. Weinberger v. Salfi, 422 U.S.

749, 784, 95 S. Ct. 2457,45 L. Ed. 2d 522(1975). However, that interest is

extremely minimal given the as-applied nature of this challenge. We do not hold

that every person with a permanently disqualifying conviction must be given an

individualized administrative hearing. We hold only that in light of the unusually

high risk of erroneous deprivation in Fields's particular case, the additional

protection of an individualized determination of her qualifications is required as a

matter of procedural due process.^




       ^ We respectfully disagree with the dissent's suggestion that we should uphold DEL's
procedural regulations as applied to Fields to avoid the added burdens that will result from others
seeking relief pursuant to our decision today. See dissent at 9-10. To the extent that DEL's
procedures create a high likelihood of producing arbitrary results in other cases, these added
burdens are constitutionally required.


                                                18
Fields V. Dep't ofEarly Learning, No. 95024-5


                                       Conclusion


       We do not question the authority of administrative agencies to set generally

applicable regulations governing the qualifications of people who work with

vulnerable populations such as children. But that authority cannot preclude the

possibility that the regulations may nevertheless be unconstitutional as applied to a

particular case. As applied to this case, DEL's regulations created an intolerably

high risk of erroneously depriving Fields of her protected interest in pursuing her

chosen, lawful occupation. Addressing Fields's qualifications on an individualized

basis at the administrative level is invaluable to reducing that risk, and in this as-

applied challenge, the value of such a procedure is not outweighed by any

countervailing government interest. We therefore reverse the Court of Appeals

and remand for further administrative proceedings, at which Fields's entire history

and the totality of her circumstances must be considered on an individualized basis.




                                                19
Fields V. Dep Y ofEarly Learning, No. 95024-5




WE CONCUR:




                                                     14 Za (ez./

  Y?7j^ C^dJZyyL ,




                                                20
Fields V. Dep't ofEarly Learning, No. 95024-5
(Gordon McCloud, J., concurring)




                                      No. 95024-5


      GORDON McCLOUD,J.(concurring)—I agree with the dissent insofar as it

concludes that the Department of Early Learning (DEL)' did not violate Christal

Fields' federal right to procedural due process. U.S. CONST, amend. XIV,§ 1. But

I disagree with the dissent's resolution of Fields' substantive due process claim. I

believe that DEL violated Fields' federal right to substantive due process and would

reverse the Court of Appeals on this ground. Id. Thus, while I disagree with the

lead opinion's reasoning,I concur in its result. Should DEL want to disqualify Fields

for other reasons, it must go through additional administrative proceedings and

comply with procedural and substantive due process. But DEL may not permanently

disqualify Fields based solely on her 1988 conviction because doing so violates

substantive due process.

      "Substantive due process protects against arbitrary and capricious government

action even when the decision to take action is pursuant to constitutionally adequate



      ' The Department of Early Learning is now part of the Department of Children,
Youth, and Families, but I will refer to it as DEL in this coneurrenee.
                                             1
Fields V. Dep't ofEarly Learning, No. 95024-5
(Gordon McCloud, J., concurring)




procedures." Amunrud v. Bd. ofAppeals, 158 Wn.2d 208, 218-19, 143 P.3d 571

(2006) (citing Halverson v. Skagit County, 42 F.3d 1257, 1261 (9tli Cir. 1994)).

"[P]ursuit of an occupation or profession is a liberty interest protected by the due

process clause." Id. at 219 (citing Conn v. Gabbert, 526 U.S. 286, 291-92, 119 S.

Ct. 1292, 143 L. Ed. 2d 399(1999); Bd. ofRegents ofState Colls, v. Roth,408 U.S.

564, 572, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972)). "Because the right to pursue a

trade or profession is a protected right but not a fundamental right, we apply a

rational basis test." Id. at 222. Under this test, we determine whether the challenged

regulations are rationally related to a legitimate state interest. Id.^ Although rational

basis review is "the most relaxed form ofjudicial scrutiny," id. at 223 (citing State

V. Shawn P., 122 Wn.2d 553,859 P.2d 1220(1993)),it is not"'"toothless,"'" Me/sen

V. Dep't ofLicensing, 111 Wn. App.45,53,309 P.3d 1221 (2013){c^aotmg Mathews

V. Be Castro,A29 U.S. 181, 185, 97 S. Ct. 431, 50 L. Ed. 2d 389 (1976)(quoting

Mathews v. Lucas,427 U.S. 495, 510,96 S. Ct. 2755,49 L. Ed. 2d 651 (1976))).

      Fields argues that DEL's regulation violated her federal right to substantive

due process, both facially and as applied. To succeed on her facial challenge. Fields



      2 See John E. Nowak & Ronald D. Rotunda, Constitutional Law § 11.4, at
370, § 14.4, at 601 (4th ed. 1991), Washington v. Glucksberg, 521 U.S. 702, 728, 117 S.
Ct. 2258, 138 L. Ed. 2d 772 (1991); Seeley v. State, 132 Wn.2d 776, 795, 940 P.2d 604
(1997);In re Pers. Restraint ofMetcalf 92 Wn. App. 165, 963 P.2d 911 (1998).
                                           2
Fields V. Dep't ofEarly Learning, No. 95024-5
(Gordon McCloud, J., concurring)




must show that"no set of circumstances exists in which the [regulation], as currently

written, can be constitutionally applied." City ofRedmond v. Moore, 151 Wn.2d

664, 669, 91 P.3d 875 (2004) (citing Wash. State Republican Party v. Pub.

Disclosure Comm 'n, 141 Wn.2d 245, 282 n.l4, 4 P.3d 808 (2000)(citing In re Det.

ofTuray, 139 Wn.2d 279, 417 n.27, 986 P.2d 790 (1999))). To succeed on her as-

applied challenge. Fields must show that the regulation is unconstitutional as applied

to her, even if it could be constitutionally applied in a different circumstance. Id. at

668-69.


      One can certainly imagine a set of circumstances in which DEL may apply

the regulation at issue without offending the United States Constitution. DEL has a

legitimate interest in "safeguard[ing] and promot[ing] the health, safety, and well-

being of children receiving child care and early learning assistance, which is

paramount over the right of any person to provide care."                Former RCW

43.215.005(4)(c)(2010). DEL can advance this interest by,for example, preventing

a person recently convicted of multiple attempted robberies from working at a

licensed childcare facility. See dissent at 15-16 (explaining that second degree

robbery is a serious offense against another person). Thus, Fields'yhc/a/ substantive

due process claim must fail. But the challenged regulation, as applied to Fields, is

not rationally related to any legitimate state interest.

                                           3
Fields V. Dep't ofEarly Learning, No. 95024-5
(Gordon McCloud, J., concurring)




       While DEL undeniably has a legitimate interest in safeguarding and

promoting the health, safety, and well-being of children, this legitimate interest is

not at all fostered by permanently barring a person who was convicted of attempted

second degree robbery over 30 years ago at the age of 22. The lead opinion aptly

explains why:

       Fields's conviction is based on an offense that was committed 30 years
       ago, when she was under 25 years old. Her attempted second degree
       robbery conviction does not permanently disqualify her from licensed
       childcare work as a matter of federal law and does not even
       permanently disqualify her from being a licensed foster care provider
       as a matter of state law. The offense itself did not involve any children
       in any way, did not involve any deadly weapons, and did not inflict any
       bodily injury. In light of the circumstances, and keeping in mind that
       DLL's designated task is to determine whether the individual is of
       appropriate character, suitability, and competence to provide childcare
       under former RCW 43.215.215(1), it is difficult to see how the fact of
       the single conviction at issue here should permanently disqualify Fields
       as unfit to work in a licensed childcare facility.

Lead opinion at 15; see also id. at 11-15.

       But the lead opinion does so under its analysis ofprocedural due process. Id.

As the dissent notes, the lead opinion "conflate[s] procedural and substantive due




       ^ In response to the dissent's criticism of the lead opinion's logic on this point,
dissent at 15-16,1 note that it is only the necessarily adjudicated facts of the crime that we
can consider at this point, see Blakely v. Washington, 542 U.S. 296, 303, 124 S. Ct. 2531,
159 L. Ed. 2d 403 (2004), and those necessarily adjudicated facts do not involve children,
deadly weapons, or bodily injury.
                                             4
Fields V. Dep 't ofEarly Learning, No. 95024-5
(Gordon McCloud, J., concurring)




process." Dissent at 1. "Procedural due process guarantees only that individuals

have notice and the opportunity to be heard to contest whether the rule does apply

to them, not whether it should." Id. at 3. Everyone agrees that the regulation at issue

bars Fields from working at a licensed childcare facility. Lead opinion at 9; dissent

at 6. The issue here is whether barring Fields because of her conviction from 1988

is rationally related to a legitimate state interest. And that is a question ofsubstantive

due process. See dissent at 6-7.

       DEL also "has a legitimate interest in avoiding the administrative burden of

holding an individualized inquiry in every case." Id. at 14; see also lead opinion at

18. But we do not allow constitutional violations merely because it would be

burdensome to prevent them:

            "The establishment of prompt efficacious procedures to achieve
      legitimate state ends is a proper state interest worthy of cognizance in
      constitutional adjudication. But the Constitution recognizes higher
      values than speed and efficiency. Indeed, one might fairly say of the
      Bill of Rights in general, and the Due Process Clause in particular, that
      they were designed to protect the fragile values ofa vulnerable citizenry
      from the overbearing concern for efficiency and efficacy that may
      characterize praiseworthy government officials no less, and perhaps
       more, than mediocre ones."

Olympic Forest Prods., Inc. v. Chaussee Corp., 82 Wn.2d 418, 433, 511 P.2d 1002

(1973)(quoting Stanley v. Illinois, 405 U.S. 645, 656, 92 S. Ct. 1208, 31 L. Ed. 2d

551 (1972)). Regardless, in my view, DEL is not required to hold an individualized

                                            5
Fields V. Dep 't ofEarly Learning, No. 95024-5
(Gordon McCloud, J., concurring)




inquiry in every case. If DEL can write a bright-line regulation that seldom, if ever,

violates substantive due process as applied, it can avoid individualized inquiries in

most, if not all, cases. In drafting a rule that is less likely to violate a person's

substantive due process rights, DEL might consider how old the person was when

he or she committed the crime and the amount of time that has elapsed since the

crime was committed.


      In sum,the challenged regulation, as applied to Fields, is not rationally related

to a legitimate state interest. The regulation therefore amounts to arbitrary and

capricious government action and violates Fields' federal right to substantive due

process. As such, I would reverse the Court of Appeals and hold that DEL may not

bar Fields solely because of a conviction for attempted second degree robbery from

1988 when she was 22 years old. I therefore respectfully concur.
Fields V. Dep't ofEarly Learning, No. 95024-5
(Gordon McCloud, J., concurring)
Fields V. Dep't ofEarly Learning, No. 95024-5
Fairhurst, C.J.(dissenting)




                                          No. 95024-5


       FAIRHURST, C.J. (dissenting)—I dissent because Christal Fields has failed

to meet her burden of showing that the Department of Early Learning (DEL)'

violated her due process rights. In arguing that procedural due process requires DEL

to give her an individualized hearing, both Fields and the lead opinion conflate

procedural and substantive due process. Fields' claim is not that there is a risk that

the rule permanently disqualifying people with certain criminal convictions on the

director's list will be erroneously applied to her. She admits that she has a conviction

for a crime on the director's list. Instead, her argument is that this rule is

overinclusive and therefore there is a risk that she will be deprived the right to

provide childcare even though she may not pose a risk to children. Because there

was no risk that the rule would be erroneously applied to her in the proceedings




       'The Department of Early Learning is now known as the Department of Children, Youth,
and Families. In the interests of clarity, I will refer to the Department as DEL, as it was known at
the time ofthe events in this case.

                                                 1
Fields V. Dep't ofEarly Learning, No. 95024-5
Fairhurst, C.J.(dissenting)



below and because she was able to bring her constitutional challenge to the rule in

court, her procedural due process rights were satisfied.

       Fields' true claim is one of substantive due process. On that claim I would

find that she has failed to meet the heavy burden of showing that the decision to

permanently disqualify her from providing childcare services based on her

conviction for the violent crime of attempted robbery is not rationally related to the

legitimate government interest in protecting children. Accordingly, I would affirm

the Court of Appeals.

                                        I. ANALYSIS


A.     Standard of review


       Fields claims that former WAG XXX-XX-XXXX (2015) violates her procedural

and substantive due process rights under the Fourteenth Amendment to the United

States Constitution.^ We review the Court of Appeals ruling on this issue de novo.

Amunrud v. Bd. ofAppeals, 158 Wn.2d 208, 215, 143 P.3d 571 (2006).




        ^ I agree that we should not address Fields' state constitutional arguments as she did not
sufficiently argue or brief them below. See State v. Gunwall, 106 Wn.2d 54, 62, 720 P.2d 808
(1986). I also agree that we should decline to address the equal protection arguments raised by
amici in the first instance. See City ofSeattle v. Evans, 184 Wn.2d 856, 861 n.5, 366 P.3d 906
(2015).
                                                2
Fields V. Dep't ofEarly Learning, No. 95024-5
Fairhurst, C.J. (dissenting)



B.     Fields' procedural due process rights were not violated because there was no
       risk of the rule being erroneously applied to her

       The due process clause of the Fourteenth Amendment to the United States

Constitution has both substantive and procedural components. See 2 Ronald D.

Rotunda & John E. Nowak,Treatise on Constitutional Law:Substance and

Procedure § 14.6(a)(i), (ii), at 722-25 (5th ed. 2012). Procedural due process sets

limitations on the process the government must provide before depriving an

individual of liberty or property interests. See Mathews v. Eldridge, 424 U.S. 319,

332, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976). Substantive due process, on the other

hand, limits the rules that the government may adopt governing these deprivations.

See Sintra, Inc. v. City ofSeattle, 119 Wn. 2d 1, 21, 829 P.2d 765 (1992). Fields'

right to practice her chosen profession is a liberty interest protected by due process.

Amunrud, 158 Wn.2d at 219(explaining that "pursuit ofan occupation or profession

is a liberty interest protected by the due process clause").

      However, the hearings Fields has been given clearly satisfy the requirements

of procedural due process. Procedural due process guarantees only that individuals

have notice and the opportunity to be heard to contest whether the rule does apply

to them, not whether it should. Fields had the opportunity to request reconsideration

by the licensing supervisor, to appeal her disqualification to the Office of

Administrative Hearings, and to challenge her disqualification in superior court as a
Fields V. Dep't ofEarly Learning, No. 95024-5
Fairhurst, C.J.(dissenting)



violation of her substantive due process rights.^ The fact that she was not able to

challenge the constitutionality of this rule within the administrative process itself is

not a procedural due process violation.

       Under Mathews, courts consider three factors in determining whether the

process afforded to an individual was sufficient to satisfy the due process clause:

       First, the private interest that will be affected by the official action;
       second,the risk ofan erroneous deprivation ofsuch interest through the
       procedures used, and the probable value, if any, of additional or
       substitute procedural safeguards; and finally, the Government's
       interest, including the function involved and the fiscal and
       administrative burdens that the additional or substitute procedural
       requirement would entail.

424 U.S. at 335; see also City ofBellevue v. Lee, 166 Wn.2d 581, 585, 210 P.3d

1011 (2009). These factors weigh against finding a procedural due process violation

in this case.


       1.       Fields has a substantial private interest in her ability to work in
                childcare


       Fields' interest in pursuing childcare as a profession is not in dispute here.

Fields has demonstrated a passion for working in childcare and has invested heavily

in the pursuit of her chosen occupation. See Am. Suppl. Br. of Appellant at 6. The




       ^ Because Fields admitted to the disqualifying robbery conviction and DEL elected to move
for summary judgment on that ground, it is not clear from the record whether Fields' request for
reconsideration has ever been considered on its merits. However, even in that request. Fields did
not challenge the fact that she had a conviction for attempted second degree robbery.
                                                4
Fields V. Dep't ofEarlyLearning, No. 95024-5
Fairhurst, C.J.(dissenting)



fulfillment that she finds from this work is clear from the briefing and argument. See

id.


       The personal interest at stake here is particularly weighty because the decision

made by DEL is not temporary and, instead, will permanently disqualify her from

working in her chosen profession."^ See Amunrud, 158 Wn.2d at 217 (noting the

length ofdeprivation has a factor in weighing the private interest at stake). Therefore,

the first Mathews factor weighs in favor of affording her substantial process.

However, the process she was given here was sufficient because there was no risk

of erroneous deprivation.

       2.      There is no risk of erroneous deprivation because Fields has
               admitted that she has a permanently disqualifying conviction

       The lead opinion claims that the inability of Fields to challenge her

disqualification at the administrative level violated procedural due process. The lead

opinion admits that "[t]here is no question that Fields received sufficient procedures"

to ensure that the law as written was accurately applied to Fields. Lead opinion at 9.



       ^ There was a diseussion in oral argument and briefing about the possibility that Fields
would be able to become qualified via the certificate of restoration of opportunity act (CROP),
RCW 9.97.010 and .020.1 agree with the lead opinion that this is pure speculation at this stage and
is therefore not relevant to the decision we reach today. Fields does not currently have a CROP,
and whether or not Fields would qualify for a CROP is an open question. CROP does not answer
the question before us today because Fields is claiming that DEL violated her due process rights
by failing to provide her with an individualized hearing based solely on her claim ofrehabilitation.
Whether or not the new Department of Children, Youth, and Families would provide her with an
individualized hearing if she obtained a CROP does not resolve this question.
                                                5
Fields V. Dep't ofEarly Learning, No. 95024-5
Fairhurst, C.J.(dissenting)



This is because the rule is not that DEL prohibits anyone who poses a danger to

children from working at a licensed childcare facility. The rule is that DEL prohibits

anyone convicted of a permanently disqualifying crime from working at a licensed

childcare facility, and Fields has admitted that she has been convicted of such a

crime.


       However,the lead opinion believes that there was a high risk that DEL would

disqualify Fields from providing childcare services erroneously, i.e., that she would

be disqualified despite not posing a danger to children. The lead opinion contends

that because Fields may not pose a danger to children, procedural due process

demands that she be able to challenge the application of this rule to her in the

administrative process. But"ifDLL's regulations prevent[Fields] from pursuing her

chosen occupation without a rational basis for doing so," lead opinion at 11-12, then

the regulations violate substantive due process, not procedural due process. Whether

or not this rule is arbitrary, advances the interests ofthe State, or is otherwise a good

idea has no part in a procedural due process analysis:

       Procedural due process guarantees only that there is a fair decision-
       making process before the government takes some action directly
       impairing a person's life, liberty or property. This aspect of the due
       process clauses does not protect against the use of arbitrary rules of
       law which are the basis ofthose proceedings. It is only necessary that
       a fair decision-making process be used; the ultimate rule to be enforced
       need not be a fair or just one.
Fields V. Dep't ofEarly Learning, No. 95024-5
Fairhurst, C.J. (dissenting)



Rotunda & Nowak,supra, at 722(emphasis added).

       Procedural due process does not require an agency to hear a constitutional

challenge within the administrative process. In Dixon v. Love, the United States

Supreme Court held that the decision to suspend the license of a commercial truck

driver before there was a full hearing did not violate procedural due process,

explaining that

      [ujnder the Secretary's regulations, suspension and revocation
      decisions are largely automatic. Of course, there is the possibility of
      clerical error, but written objection will bring a matter of that kind to
      the Secretary's attention. In this case appellee had the opportunity for a
      full judicial hearing in connection with each of the traffic convictions
      on which the Secretary's decision was based. Appellee has not
      challenged the validity of those convictions or the adequacy of his
      procedural rights at the time they were determined. Since appellee does
      not dispute the factual basisfor the Secretary's decision, he is really
      asserting the right to appear in person only to argue that the Secretary
      should show leniency and departfrom his own regulations. Such an
      appearance might make the licensee feel that he has received more
      personal attention, but it would not serve to protect any substantive
      rights. We conclude that requiring additional procedures would be
      unlikely to have significant value in reducing the number of erroneous
      deprivations.

431 U.S. 105, 113-14, 97 S. Ct. 1723, 52 L. Ed. 2d 172 (1977)(emphasis added)

(footnote and citation omitted); cf. Cleveland Bd. ofEduc. v. Loudermill, 470 U.S.

532,544 n.9,105 S. Ct. 1487,84 L.Ed. 2d 494(1985)(finding that an individualized

hearing was required by due process when the reason for the employee's termination

was arguable because it "turned not on the objective fact that he was an ex-felon or

                                                7
Fields V. Dep't ofEarly Learning, No. 95024-5
Fairhurst, C.J.(dissenting)



the inaccuracy of his statement to the contrary, but on the subjective question

whether he had lied on his application form").

       Like in Dixon,the decision to disqualify Fields is automatic under DEL rules

once she admitted that she had a conviction for attempted robbery. Fields is arguing

for the right to appear in person in the administrative process to argue that DEL

should show leniency and depart from its own rules. The United States Supreme

Court rejected the argument that procedural due process grants this right in Dixon,

and I would reject it here as well.

       Similarly, in Connecticut Department ofPublic Safety v. Doe, 538 U.S. 1, 6,

123 S. Ct. 1160, 155 L. Ed. 2d 98 (2003), an individual admitted that he had a

conviction that would require him to be listed on the sex offender registry as a

sexually dangerous person. He claimed that due process gave him a right to a hearing

to establish that despite his conviction, he was not dangerous. Id. The Court

unanimously rejected his due process claim because the law at issue did not allow

for individualized considerations of dangerousness. Id. at 7-8. The Court held that

"[pjlaintiffs who assert a right to a hearing under the Due Process Clause must show

that the facts they seek to establish in that hearing are relevant under the statutory

scheme." Id. at 8. Fields also admitted that she had a disqualifying conviction but

claims that due process gives her the right to a hearing to establish that despite her
Fields V. Dep't ofEarly Learning, No. 95024-5
Fairhurst, C.J.(dissenting)



conviction, she is not dangerous to children. Whether or not she is dangerous to

children is not relevant under the current DEL rules, which expressly preclude any

consideration of individual circumstances where a person is permanently

disqualified due to a prior conviction for robbery. Former WAC XXX-XX-XXXX(1), -

0115(5), -0120(1) (2015). Therefore, applying Doe, Fields is not entitled to an

individualized hearing because she cannot show that the facts she seeks to establish

in that hearing are relevant under the statutory scheme.

       The lead opinion claims that procedural due process requires DEL to allow

Fields to make the argument that the rule violates her substantive due process rights

during the administrative process. Lead opinion at 16. But Fields did have the

opportunity to obtain review of her claim that the rule was unconstitutional as

applied to her by filing in the superior court. The fact that she could not make this

challenge, or any other constitutional challenge, during the administrative process

does not violate her rights to procedural due process. Procedural due process does

not require that administrative hearings consider all possible claims, such as whether

a rule violates substantive due process as applied in a particular case. See Amunrud,

158 Wn.2d at 218 (explaining that the appellant was not denied meaningful review

of his license suspension despite the fact that the State did not consider his unusual

circumstances because he could file an appeal of the child support order that
Fields V. Dep 't ofEarly Learning, No. 95024-5
Fairhurst, C.J.(dissenting)



indirectly led to the suspension with the court that issued it). This is a well-

established principle oflaw:

       Although a state law might give an individual a right to some type of
       fair process or hearing, simply to complain about the effect of a law on
       the individual, the due process clause of the Fourteenth Amendment
       does not give an individual a right to a hearing ifthe person admits that
       the law applies to him. In other words, once an individual admits that a
       law applies to him, he has no basis for a procedural due process claim
       because any fair procedure would, by his own admission, result in a
       finding that the law applies to him. The individual in such
       circumstances may make a substantive claim against the law by
       challenging the rule of law created by the statute or regulation.

Rotunda & Nowak,supra, at 732; see also Reno v. Flores, 507 U.S. 292, 308, 113

S. Ct. 1439, 123 L. Ed. 2d 1 (1993)(holding that a claim that a procedural system is

unconstitutional because it does not allow individualized determination "is just the

'substantive due process' argument recast in 'procedural due process' terms").

       Because Fields had the opportunity to make her substantive due process claim

in superior court, she was not denied procedural due process.

       3.     The State has a strong public interest in protecting children and the
              burden on the State to conduct individualized hearings would be great

       The lead opinion admits and the parties do not dispute that the State has a

strong interest in protecting children who are taught or cared for in licensed facilities

and that the State has an interest in avoiding undue administrative burdens. The lead




                                                 10
Fields V. Dep't ofEarly Learning, No. 95024-5
Fairhurst, C.J. (dissenting)



opinion fails to acknowledge the extent of the increase in the administrative burden

on DEL based on its ruling today.

       The burden ofthis decision on the government will be great. The lead opinion

claims that because this is an as applied challenge, the result will be only that Fields

is entitled to an individualized hearing. Lead opinion at 18. However, DEL claims

in oral argument that it receives 21,000 applications each year. Wash. Supreme

Court oral argument. Fields v. Dep't ofEarly Learning, No. 95024-5(May 8, 2018),

at 22 min., 06 sec., video recording by TVW, Washington State's Public Affairs

Network, http://www.tvw.org. It is inevitable with that number of applicants that

others will also argue that they are rehabilitated despite their convictions for

disqualifying crimes. As a consequence ofthe lead opinion's holding,DEL will have

to make a choice each time a person claims to be rehabilitated. It can provide

individualized hearings to everyone who makes this claim, including people with

disqualifying convictions for child molestation and child rape, as Fields advocated

for at oral argument. See id. at 8 min., 19 sec, 15 min., 27 sec. Or, it can deny

individualized hearings to other applicants, in which case this court may decide that

this denial violated procedural due process rights. By holding that Fields was denied

procedural due process in this case, the lead opinion will require the agency to

consider the argument that its own rule is unconstitutional as applied. DEL's


                                                11
Fields V. Dep'(ofEarly Learning, No. 95024-5
Fairhurst, C.J.(dissenting)



regulations do not allow parties to make constitutional claims in the administrative

process for good reason: questions of constitutionality are best left to the courts.

       By expanding the bounds of procedural due process in this way, the lead

opinion invites a flood of litigation. Some applicants who are undisputedly

disqualified under the rules will file suit, and a superior court will have to determine

whether or not the applicant is in the same situation as Fields, or a sufficiently similar

situation, to demand the same relief. The court will have to decide whether this

person's circumstances are so unique that a failure to consider them would create a

great risk of erroneous deprivation of the ability to work in childcare, without ever

holding that DHL's disqualification rule violates substantive due process. Even if

these decisions could be easily made, having to hear these new challenges would

impose a large burden on DEL and the court system. We are required to consider

this burden under the third prong ofthe Mathews test. DEL currently provides a clear

list of disqualifying offenses and provides certainty and a quick system ofresolution

for many cases. The director's list may be both under- and overinclusive in certain

instances, but it provides the clear advantage of avoiding the time and expense of

individualized hearings in each of these cases. This is why "procedural due process

rules are shaped by the risk of error inherent in the truthfmding process as applied

to the generality of cases, not the rare exceptions." Mathews, 424 U.S. at 344.


                                               12
Fields V. Dep 't ofEarly Learning, No. 95024-5
Fairhurst, C.J.(dissenting)



       I would find that Fields' procedural due process claim fails because as the lead

opinion admits, there is no risk of erroneously applying the law at issue here, and

the burden on the State of granting individualized hearings would be great.

       The lead opinion believes that there is high risk that this rule violates

substantive due process as applied to Fields. See lead opinion at 12-16.1 disagree. I

now turn to a consideration of Fields' substantive due process claim.

C.     Fields' substantive due process claim cannot overcome the heavy presumption
       of constitutionality inherent in rational basis review

        When assessing a substantive due process claim in the context of the right to

pursue a trade or profession, we apply a rational basis standard of review. See

Amunrud, 158 Wn.2d at 222."Under this test, the challenged law must be rationally

related to a legitimate state interest." Id. "The rational basis test is the most relaxed

form ofjudicial scrutiny." Id. at 223. When applying the rational basis test,"we do

not require that the government's action actually advance its stated purposes, but

merely look to see whether the government could have had a legitimate reason for

acting as it did." Wedges/Ledges ofCat., Inc. v. City ofPhoenix, 24 F.3d 56, 66(9th

Cir. 1994). "If it is 'at least fairly debatable' that the [government]'s conduct is

rationally related to a legitimate governmental interest, there has been no violation

of substantive due process." Halverson v. Skagit County, 42 F.3d 1257, 1262 (9th



                                             13
Fields V. Dep 't ofEarly Learning, No. 95024-5
Fairhurst, C.J. (dissenting)



Cir. 1994){ey\io\m.gKawaoka v. City ofArroyo Grande, 17 F.3d 1227, 1234(9th Cir.

1994)).

       The question in this case is whether there could be a rational basis for

permanently disqualifying Fields based on her second degree robbery conviction

without giving her an individualized hearing.

       The legislature created DEL to "safeguard and promote the health, safety, and

well-being of children receiving childcare and early learning assistance, which is

paramount over the right of any person to provide care." Former RCW

43.215.005(4)(c) (2010). The parties do not dispute that this is a legitimate state

interest.^ The lead opinion also concedes that the State has a legitimate interest in

avoiding the administrative burden of holding an individualized inquiry in every

case. Lead opinion at 18.

        The case then hinges on whether Fields can show that the decision to

permanently disqualify her based solely on her conviction for attempted robbery,

without an individualized hearing, is not rationally related to these legitimate state

interests. Fields cannot show that it is not '"at least fairly debatable'" that this




        ^ At times Fields' argument appears to suggest the rule is not related to DHL's mission in
protecting children. See Hi-Starr, Inc. v. Liquor Control Bd., 106 Wn.2d 455, 459, 722 P.2d 808
(1986)("An agency's rules must be encompassed within its statutory framework."). Whether
DHL's adoption of the rule exceeded its delegated authority was not briefed by the parties and is
not before the court.

                                                 14
Fields V. Dep't ofEarly Learning, No. 95024-5
Fairhurst, C.J.(dissenting)



decision was rational. See Halverson,42 F.3d at 1262(quoting Kawaoka, 17 F.3d at

1234).

       The lead opinion makes several claims about this conviction that go beyond

the evidence before us. First, the lead opinion claims that there is no indication that

any children were either victims of or witnesses to the attempted robbery. But there

is also no indication that children were not around when the attempted robbery took

place. There simply is not evidence pointing in either direction on this issue, and this

factor should not guide our decision. The lead opinion also states that "because

Fields was not convicted of first degree robbery, we know that she was not armed

with a deadly weapon, did not display anything that appeared to be a deadly weapon,

and did not cause any bodily injury to the victim." Lead opinion at 14, But this record

does not show what Fields did not do. It goes too far to assume that just because

Fields was convicted of only second degree robbery, her behavior could not have

encompassed elements of more serious crimes.

       Even if the lead opinion is correct as to the facts of this particular case, the

legislature and this court have acknowledged that second degree "robbery is a most

serious offense," State v. Witherspoon, 180 Wn.2d 875, 888, 329 P.3d 888 (2014);

RCW 9.94A.030(33)(o). It is also on the list of crimes the legislature has designated

as a crime against children or persons in RCW 43.43.830(7). An examination of the


                                            15
Fields V. Dep't ofEarly Learning, No. 95024-5
Fairhurst, C.J.(dissenting)



statute makes clear why. A conviction for robbery requires a finding that the

defendant "use[d] or threatened use of immediate force, violence, or fear of injury"

to his or her victim. RCW 9A.56.190. This court has held that "'[t]he nature of the

crime of robbery includes the threat of violence against another person.'"

Witherspoon, 180 Wn.2d at 888 (quoting State v. Rivers, 129 Wn.2d 697, 713, 921

P.2d 495(1996)(addressing the claim that the punishment for second degree robbery

was cruel and unusual)).

       It is not a guarantee that a robbery conviction means a person will pose a

danger to children. It may be true that Fields in fact does not pose a danger to children

today. But under the rational basis test, we need find only that DEL could have had

a rational reason for acting as it did. In general, the disqualification regulations are

a reasonable means to advance the State's legitimate interest. The lead opinion

argues, however, that Fields' circumstances are so unique that there is a risk that it

is irrational to apply this general rule to her. But Fields' circumstances are no

different from many other second degree robbery cases. Most second degree robbery

cases do not involve children, do not involve a deadly weapon, and do not cause

bodily injury to the victim. Nevertheless, in order to be convicted, a court had to be

satisfied that Fields herself"use[d] or threatened use of immediate force, violence,

or fear of injury" to her victim. RCW 9A.56.190. It is not irrational for DEL to


                                            16
Fields V. Dep't ofEarly Learning, No. 95024-5
Fairhurst, C.J.(dissenting)



conclude that because Fields has committed this kind of violent crime, she has

demonstrated an impulsivity and a willingness to hurt another human such that she

should be categorically barred from work in childcare facilities. Therefore, Fields

has failed to meet her heavy burden under the rational basis test to show that DHL's

decision to permanently disqualify her based on her robbery conviction is not even

rationally related to the State's strong interest in protecting children and avoiding

the administrative expense of holding an individualized hearing. I would hold that

Fields has failed to show that this DEL rule is an unconstitutional violation of her


substantive due process rights.

      Because Fields had a meaningful opportunity to be heard in order to challenge

the fact of her conviction, I would find that rights to procedural due process were

satisfied. Because Fields is unable to show that her permanent disqualification based

on her past conviction for robbery is not rationally related to the legitimate state

interest in protecting children, her substantive due process claim must likewise fail.

I respectfully dissent.




                                            17
Fields V. Dep't ofEarly Learning, No. 95024-5
Fairhurst, C.J.(dissenting)




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