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                                               2017 i‘lit; 21 ill e: V.



      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

CHRISTAL FIELDS,                       )
                                       )       No. 75406-8-1
             Appellant,                )
                                       )       DIVISION ONE
      v.                               )
                                       )
STATE OF WASHINGTON                    )       UNPUBLISHED OPINION
DEPARTMENT OF EARLY                    )
LEARNING,                              )
                                       )
             Respondent.               )       FILED: August 21, 2017
                                       )
      LEACH, J. — Christal Fields appeals the superior court's summary

judgment dismissal of her constitutional challenge to a Department of Early

Learning (DEL) rule imposing on any person convicted of certain crimes a

lifetime ban on working in a childcare facility.1   She contends that this ban

disqualifying her as a childcare worker violates her substantive and procedural

due process rights. Because the rule has a rational relationship to a legitimate

legislative purpose, the protection of children, and DEL provided an adequate

review process, we affirm.

                                  Background

      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


      1 WAC XXX-XX-XXXX(1), -0120(1).
No. 75406-8-1 /2



drugs. In 1988, Fields attempted to snatch a purse to help pay for her drug habit.

She pleaded guilty to attempted second degree robbery.2

       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. DEL later sent Fields a letter disqualifying her

from unsupervised contact with childcare children.            This disqualification

prevented Fields from being on the premises of a licensed facility during the

hours it is licensed to provide childcare.3

       2The superior court in this case recognized that the second degree
attempted robbery "barely met perhaps the statutory elements of robbery in the
second degree at the time."
      3 WAC XXX-XX-XXXX(5).
                                    -2-
No. 75406-8-1 / 3



       Fields appealed DEL's action. Citing her conviction for attempted second

degree robbery, DEL moved to dismiss her appeal on summary judgment. Fields

contested the summary judgment.          She claimed that the lifetime ban was

unconstitutional facially and as applied to her circumstances. The administrative

law judge (AU) had no authority to decide and thus did not consider these

constitutional issues. He found that Fields's robbery conviction disqualified her.

       WAC XXX-XX-XXXX imposes a lifetime ban on persons working in childcare

if they were convicted of any of 50 listed crimes, including second degree

robbery. Because Fields did not dispute her conviction, this rule precludes her

from working in her chosen field.

       Fields moved for an internal appeal. The reviewing judge affirmed the

AL's determination that constitutional challenges had to be brought in the

superior court.

       Fields next sought review in the superior court. She asserted that WAC

XXX-XX-XXXX violated her constitutional due process protections because it

deprived her of the opportunity to explain the conviction and submit evidence of

her rehabilitation, character references, and other information showing her

qualifications to continue in her chosen profession. The superior court held that

despite potential compelling facts in Fields's favor, the rule did not violate Fields's

due process rights because a rational relationship existed between a legitimate

                                         -3-
No. 75406-8-1/4



state interest and the rule.

        Fields appeals.

                                    Analysis

        The Washington Administrative Procedure Act (WAPA)4 governs judicial

review of agency actions.5 The validity of an administrative agency rule presents

a question of law, which this court reviews de novo.6 A court presumes the

validity of a duly adopted rule. Thus, the party challenging a rule has a heavy


    4Ch. 34.05 RCW.
    5RCW 34.05.570(3) provides,
              (a) The order, or the statute or rule on which the order is based,
      is in violation of constitutional provisions on its face or as applied;
              (b) The order is outside the statutory authority or jurisdiction of
      the agency conferred by any provision of law;
              (c) The agency has engaged in unlawful procedure or decision-
      making process, or has failed to follow a prescribed procedure;
              (d) The agency has erroneously interpreted or applied the law;
              (e) The order is not supported by evidence that is substantial
      when viewed in light of the whole record before the court, which
      includes the agency record for judicial review, supplemented by any
      additional evidence received by the court under this chapter;
              (f) The agency has not decided all issues requiring resolution
      by the agency;
              (g) A motion for disqualification under RCW 34.05.425 or
      34.12.050 was made and was improperly denied or, if no motion was
      made, facts are shown to support the grant of such a motion that were
      not known and were not reasonably discoverable by the challenging
      party at the appropriate time for making such a motion;
              (h) The order is inconsistent with a rule of the agency unless
      the'agency explains the inconsistency by stating facts and reasons to
      demonstrate a rational basis for inconsistency; or
              (i) The order is arbitrary or capricious.
      6 Kabbae v. Dep't of Soc. & Health Servs., 144 Wn. App. 432, 439, 192
P.3d 903(2008).
                                          -4-
No. 75406-8-1/ 5



burden of proving the rule's unconstitutionality. Because constitutional issues fall

outside the realm of agency expertise, this court does not defer to an agency's

application of constitutional principles.7 An individual is entitled to relief if this

court   determines that "[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."8

        Both the United States Constitution and the Washington Constitution

provide that no person may be deprived of life, liberty, or property without due

process of law.8 While they use nearly identical language to provide these rights,

our Supreme Court has held that interpretation of the federal due process clause

does not control our analysis of the state due process clause.10 Whether the

state due process clause provides greater protection than the federal due

process clause depends on the particular context in which a litigant asserts a due

process violation.11

        Fields makes no claim that the state due process clause provides broader

protection than the federal due process clause in the context of her

circumstances and has not offered a Gunwal112 analysis advocating such a

      7 Crescent Convalescent Ctr. v. Dep't of Soc. & Health Servs., 87 Wn.
App. 353, 357, 942 P.2d 981 (1997).
      8 RCW 34.05.570(3)(a).
      9 U.S. CONST. amend. V, XIV,§ 1; WASH. CONST. art. I, § 3.
      19 Bellevue Sch. Dist. v. E.S., 171 Wn.2d 695, 710-11, 257 P.3d 570
(2011).
      11 E.S., 171 Wn.2d at 710-11.
      12 State v. Gunwall, 106 Wn.2d 54, 720 P.2d 808 (1986).
                                      -5-
No. 75406-8-1/6



position. In the absence of a Gunwall analysis,"we cannot consider an argument

that the Washington Constitution provides greater protection than its federal

counterpart."13 Therefore, we analyze Fields's claims under only the federal due

process clause.

       The due process clause of the Fourteenth Amendment confers both

procedural and substantive due process rights. A substantive challenge involves

an individual's right to be free from arbitrary action of the government.14 A

procedural challenge questions whether the government has given an individual

enough notice and the chance to be heard.

       We first consider Fields's substantive due process claims. To prevail on a

substantive due process claim, Fields must identify a property or liberty interest

and show that state action arbitrarily and capriciously deprived her of that right.15

The level of review a court applies to a substantive due process challenge

depends on the nature of the right involved.16




       13Centimark Corp. v. Dep't of Labor & Indus., 129 Wn. App. 368, 375, 119
P.3d 865 (2005).
      14 County of Sacramento v. Lewis, 523 U.S. 833, 845, 118 S. Ct. 1708,
140 L. Ed. 2d 1043(1998).
      15 Amunrud v. Bd. of Appeals, 158 Wn.2d 208, 218-19, 143 P.3d 571
(2006).
      16 Amunrud, 158 Wn.2d at 219.
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No. 75406-8-1 / 7



       The right to pursue an occupation or profession is a protected liberty

interest.17     Thus, Fields has established a liberty interest and that DEL's

challenged rule deprived her of that interest. Because the right to pursue a

particular occupation is not a fundamental right, courts use a rational basis test to

review state actions affecting it.18 This means that Fields must show that no

rational relationship exists between the DEL rule and a legitimate state interest.18

       A party may make either a facial or an as applied challenge to state

action. To prevail on a facial challenge, a party must show that "no set of

circumstances exists in which the statute, as currently written, can be

constitutionally applied."20 To prevail on an as applied challenge, an individual

must prove that an otherwise valid statute is unconstitutional as applied to that

individual.21




       17 See Barry v. Barchi, 443 U.S. 55, 64 n.11, 99 S. Ct. 2642, 61 L. Ed. 2d
365 (1979 (licenses issued to horse trainers were protected by due process and
equal protection); Conn v. Gabbert, 526 U.S. 286, 291-92, 119 S. Ct. 1292, 143
L. Ed. 2d 399 (1999)("Fourteenth Amendment's Due Process Clause includes
some generalized due process right to choose one's field of private
employment"); Dittman v. California, 191 F.3d 1020, 1029 (9th Cir. 1999)(pursuit
of a profession or occupation is a protected liberty interest that extends across a
broad range of lawful occupations).
       18 Amunrud, 158 Wn.2d at 222.
       18 Amunrud, 158 Wn.2d at 222.
       28 City of Redmond v. Moore, 151 Wn.2d 664,669, 91 P.3d 875 (2004).
       21 Moore, 151 Wn.2d at 668-69.
                                       -7-
No. 75406-8-1/8



       Fields has failed to show that no rational basis exists for the challenged

DEL rule or, alternatively, that as applied to her particular circumstances no

rational basis exists.

       The legislature created DEL in 200622 to "safeguard and promote 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."23

DEL administers childcare and early learning programs and adopts minimum

licensing requirements.24      Division Three of this court has upheld DEL's

rulemaking authority.25

       DEL adopted rules governing the licensing of childcare in Washington.

WAC XXX-XX-XXXX(1) states that an "[i]ndividual who has a background

containing any of the permanent convictions on the director's list, WAC 170-067-

0120(1), will be permanently disqualified from providing licensed child care,

caring for children or having unsupervised access to children receiving early

learning services."      "Disqualified" means that "DEL has determined that a

person's background information prevents that person from being licensed or

certified by DEL or from being authorized by DEL to care for or have


       22LAWS OF 2006, ch. 265,§ 101; see ch. 43.215 RCW.
      23 RCW 43.215.005(4)(c).
      24 RCW 43.215.020(2)(d).
      25 Stewart v. Dep't of Soc. & Health Servs., 162 Wn. App. 266, 272, 252
P.3d 920 (2011).
                                      -8-
No. 75406-8-1/ 9



unsupervised access to children receiving early learning services."26             An

attempted second degree robbery conviction permanently disqualifies a person.27

        At oral argument, DEL claimed that a federal statute requires the bans

contained in its rule as a condition of receiving federal monies. States that

receive funds from the federal government for childcare services must establish

requirements for and conduct criminal background checks of childcare staff

members.28 But the controlling federal statute identifies only nine crimes that

make a childcare staff member ineligible for employment. Robbery is not one of

those crimes. But this statute does permit states to disqualify individuals for

other crimes. 42 U.S.C. § 9858f(h)(1) provides,

        Nothing in this section shall be construed to prevent a State from
        disqualifying individuals as child care staff members based on their
        conviction for crimes not specifically listed in this section that bear
        upon the fitness of an individual to provide care for and have
        responsibility for the safety and well-being of children.

(Emphasis added.) Thus, federal law allows DEL to include other crimes if they

bear on the individual's fitness to provide care. Support for DEL's decision to

include second degree robbery in the 50 enumerated crimes can be found in

RCW 43.43.830(7) which states,



    .   26 WAC XXX-XX-XXXX.
        27WAC XXX-XX-XXXX(1)(c) ("Convictions whose titles are preceded with
the word 'attempted' are given the same weight as those titles without the word
'attempted.").
       28 42 U.S.C. § 9858f(a)(1).
                                     -9-
No. 75406-8-1 /10


      "Crime against children or other persons" means a conviction of any
      of the following offenses: Aggravated murder; first or second
      degree murder; first or second degree kidnapping; first, second, or
      third degree assault; first, second, or third degree assault of a child;
      first, second, or third degree rape; first, second, or third degree
      rape of a child; first or second degree robbery; first degree arson;
      first degree burglary; first or second degree manslaughter; first or
      second degree extortion; indecent liberties; incest; vehicular
      homicide; first degree promoting prostitution; communication with a
      minor; unlawful imprisonment; simple assault; sexual exploitation of
      minors; first or second degree criminal mistreatment;
      endangerment with a controlled substance; child abuse or neglect
      as defined in RCW 26.44.020; first or second degree custodial
      interference; first or second degree custodial sexual misconduct;
      malicious harassment; first, second, or third degree child
      molestation; first or second degree sexual misconduct with a minor;
      commercial sexual abuse of a minor; child abandonment;
      promoting pornography; selling or distributing erotic material to a
      minor; custodial assault; violation of child abuse restraining order;
      child buying or selling; prostitution; felony indecent exposure;
      criminal abandonment; or any of these crimes as they may be
      renamed in the future.

(Emphasis added.)

      A statute is facially unconstitutional only when no set of circumstances

exists where the statute would be valid.29 When a statute, or as here, a rule, has

"'a plainly legitimate sweep," a facial challenge necessarily fails.39 Under the

plainly legitimate sweep standard, a statute is only facially invalid when its invalid

applications are so real and substantial that they outweigh the statute's plainly


      29 Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442,
449, 128 S. Ct. 1184, 170 L. Ed. 2d 151 (2008) (quoting United States v.
Salerno, 481 U.S. 739, 745, 107 S. Ct. 2095, 95 L. Ed. 2d 697 (1987)).
      30 Wash. State Grange, 552 U.S. at 449 (quoting Washington v.
 Glucksberg, 521 U.S. 702, 739-40 & n.7, 117 S. Ct. 2258, 138 L. Ed. 2d 772
(1997)(Stevens, J., concurring)).
                                      -10-
No. 75406-8-1 ill



legitimate sweep.      In other words, a statute is facially invalid when its

constitutional deficiency is so evident that proof of actual unconstitutional

applications is unnecessary.      "Facial challenges are disfavored for several

reasons. Claims of facial invalidity often rest on speculation. As a consequence,

they raise the risk of'premature interpretation of statutes on the basis of factually

barebones records.'"31

       Fields asks us to follow a Pennsylvania case, Peake v. Pennsylvania.32 In

Peake, a Pennsylvania court found unconstitutional a provision imposing a

lifetime ban for individuals convicted of certain listed offenses from working in

care of older adults. The court stated, "Irrebuttable presumptions often run afoul

of due process protections because they infringe upon protected interests 'by

utilizing presumptions that the existence of one fact [is] statutorily conclusive of

the truth of another fact.'"33 But Peake applied the Pennsylvania Constitution, not

the United States Constitution. The court noted, "Due process challenges under

the Pennsylvania Constitution are analyzed 'more closely' under the rational

basis test than due process challenges under the United State Constitution."34




       31 Wash. State Grange, 552 U.S. at 450 (quoting Sabri v. United States,
541 U.S. 600, 609, 124 S. Ct. 1941, 158 L. Ed. 2d 891 (2004)).
       32 132 A.3d 506 (2015).
       33 Peake, 132 A.3d at 519 (alteration in original)(quoting In the Interest of
J.B., 107 A.3d 1, 14 (2014)).
       34 Peake, 132 A.3d at 518.
                                      -11-
No. 75406-8-1/12



       Thus, we do not find that analysis appropriate here. Particularly because,

as previously noted, Fields makes no claim that the Washington Constitution, like

Pennsylvania's, provides greater          protection than   does the   Fourteenth

Amendment of the United States Constitution.35

       DEL cites to the United States Supreme Court's decision in Weinberger v.

Salfi36 as support for its rule's irrebuttable presumption. There, the Supreme

Court upheld a Social Security regulation prohibiting anyone married within nine

months of a Social Security recipient's death from receiving survivor benefits.37

But Weinberger addressed a benefit conferred by statute and not, as here, a

constitutionally protected liberty interest.

       In Re Kindschi35 provides more helpful guidance.         There, a medical

disciplinary board suspended a physician from medical practice for eight months

after the medical disciplinary board found him guilty of unprofessional conduct.39

The legislature established this board and gave it broad powers to discipline

medical professionals for unprofessional conduct.4° The physician had pleaded



       36 In re Pers. Restraint of Dyer, 143 Wn.2d 384, 394, 20 P.3d 907 (2001)
("Washington's due process clause does not afford a broader due process
protection than the Fourteenth Amendment"); Olympic Forest Prods., Inc. v.
Chaussee Corp., 82 Wn.2d 418, 422, 511 P.2d 1002(1973).
       36 422 U.S. 749, 95 S. Ct. 2457, 45 L. Ed. 2d 522(1975).
       37 Weinberger, 422 U.S. at 767-85.
       38 52 Wn.2d 8, 319 P.2d 824 (1958).
       39 Kindschi, 52 Wn.2d at 9.
       40 Kindschi, 52 Wn.2d at 9.
                                        -12-
No. 75406-8-1 /13



guilty to tax evasion.41   The statutory definition of "unprofessional conduct"

included conviction in any court for an offense involving moral turpitude.42

       Initially, the medical board gave Kindschi notice that it would hold a

hearing. That notice told Kindschi that his conviction for tax evasion involved

moral turpitude and thus constituted unprofessional conduct. Kindschi admitted

that he pleaded guilty to tax evasion but denied that his behavior involved moral

turpitude or unprofessional conduct.43 At the start of the hearing, the board chair

told Kindschi that the attorney general had opined that tax evasion involved

moral turpitude.    This settled the question for the board, which foreclosed

Kindschi from presenting any evidence about the circumstances of his

conviction."   Like Fields, Kindschi sought to introduce evidence that would

explain the particular circumstances behind his crime.

       Kindschi sought judicial review. Our Supreme Court affirmed the board,45

reasoning that the daily practice of medicine concerned life and death

consequences for the general public who had the right to expect the highest

degree of trustworthiness from the medical profession.         The court found a

rational connection existed between the fraud involved in tax evasion and the


      41 Kindschi, 52 Wn.2d at 13.
      42 Kindschi, 52 Wn.2d at 9.
      43 Kindschi, 52 Wn.2d at 10.
      44 Kindschi, 52 Wn.2d at 10.
      45 Kindschi, 52 Wn.2d at 13.
                                       -13-
No. 75406-8-1/14



fitness of one to practice medicine.46 Similarly, here, a rational connection exists

between a violent crime conviction and the safety of children in childcare.

       In regulating childcare licensing, Washington State recognizes the

paramount interest to protect children and that "Igo safeguard and promote the

health, safety, and well-being of children receiving child care and early learning

assistance . . . is paramount over the right of any person to provide care.'"47

       Fields argues that even if we were to find the rule satisfied due process, it

does not do so as applied to her. An "as applied" constitutional challenge to a

statute differs from a facial constitutional attack. A facial challenge asserts that a

statute is unconstitutional based solely on the text of the challenged provision.

An as applied challenge makes no claim that a statute is unconstitutional as

written, but that when applied to an individual under circumstances particular to

the individual, the provision violates that individual's constitutional right.

       Fields challenges the merits of a rule that includes the crime with which

she was convicted without providing her an opportunity to explain her

circumstances. A "challenge, however meritorious, which is directed to the

wisdom of the statute will not justify a court in finding it unconstitutional."48

       46 Kindschi, 52 Wn.2d at 12.
      47 Hardee v. Dep't of Soc. & Health Servs., 172 Wn.2d 1, 12, 256 P.3d 339
(2011)(alterations in original)(quoting RCW 43.215.005(4)(c)).
       48 State v. Smith, 93 Wn.2d 329, 337, 610 P.2d 869 (1980) (citing Wash.
State Sch. Dirs. Ass'n v. Dep't of Labor & Indus., 82 Wn.2d 367, 378, 510 P.2d
818 (1973)).
                                        -14-
No. 75406-8-1/ 15



       We must consider other factors besides Fields's private interest in

childcare work in our due process analysis.49 The State has an important interest

in protecting the safety of small children in state licensed childcare facilities.50

Fields's liberty interest in childcare work is subordinate to this interest.51

Requiring an opportunity for a fact-finding hearing for each applicant convicted of

a violent crime against a child or other person could result in costly

investigations, more hearings, more litigation about injured children, and

increased monitoring of licensees.52 Fields has failed to meet her heavy burden

of establishing beyond question the absence of a rational relationship between

the application of the challenged rule to her and the State's interest in protecting

small children receiving childcare.

       Fields also challenges the procedural fairness of the rule. Procedural due

process imposes a limit on governmental action that deprives a person of "liberty"

or "property interests" within the meaning of a constitution's due process

clause.53 To prevail on a procedural due process challenge, an individual must

show that one has been denied the opportunity to be heard "at a meaningful time


       49 Islam v. Dep't of Early Learning, 157 Wn. App. 600, 612-13, 238 P.3d
74 (2010).
       50 Islam, 157 Wn. App. at 613.
       51 Islam, 157 Wn. App. at 613.
       52 Islam, 157 Wn. App. at 611.
       53 Mathews v. Eldridge, 424 U.S. 319, 332, 96 S. Ct. 893, 47 L. Ed. 2d 18
(1976).
                                       -15-
No. 75406-8-1 /16



and in a meaningful manner."54 The United States Supreme Court established

that a court must consider three distinct factors to determine whether a review

process passes constitutional muster: (1) the private interest affected, (2) the

risk that the procedures will erroneously deprive a party of that interest and (3)

the government's interest, including the potential burden of additional

procedures.55

         Specifically, Fields claims DEL denied her a meaningful opportunity to

have her position heard      But Fields, as a disqualified person, requested and

received an administrative hearing and reconsideration of the decision at the

hearing. Moreover, the WAPA provided her a forum in the superior court to

argue her position on the constitutionality of the rule.56 She has been provided

with a sufficient opportunity to be heard.

         Fields's complaint about the lack of an opportunity to present mitigating

circumstances about her conviction and her subsequent rehabilitation goes to the

substance of DEL's rule, which we have addressed as a substantive due process

claim.




        54 Mathews, 424 U.S. at 335 (quoting Armstrong v. Manzo, 380 U.S. 545,
552, 85 S. Ct. 1187, 14 L. Ed. 2d 62(1965)).
        55 City of Bellevue v. Lee, 166 Wn.2d 581, 585-86, 210 P.3d 1011 (2009)
(citing Mathews, 424 U.S. at 335).
        56 Amunrud, 158 Wn.2d at 217.
                                        -16-
 No. 75406-8-1/ 17



                                      Conclusion

        A rational relationship exists between DEL's rule banning individuals

 convicted of certain violent crimes against children and other persons from ever

 providing childcare in a state licensed facility and the State's interest in protecting

 the safety of children receiving care in those facilities. This rational relationship

 exists in the application of the rule to Fields. Also, Fields received a fair hearing

 on the issue of her disqualification. For these reasons we affirm the decisions of

 the office of administrative hearings and the superior court.




 WE CONCUR:



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                                          -17-
