Sonja Blake v. Debra Jossart

2016 WI 57

SUPREME COURT OF WISCONSIN
CASE NO.: 2012AP2578
COMPLETE TITLE: Sonja Blake,
Plaintiff-Appellant-Petitioner,
v.
Debra Jossart, Kerry Milkie and Racine County
Human Services Department,
Defendants,
Department of Children and Families and Eloise
Anderson,
Defendants-Respondents.

REVIEW OF A DECISION OF THE COURT OF APPEALS
(Reported at 364 Wis. 2d 526, 868 N.W.2d 198)
(Ct. App. 2015 – Unpublished)

OPINION FILED: July 6, 2016
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: February 24, 2016

SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Dane
JUDGE: Shelley J. Gaylord

JUSTICES:
CONCURRED:
DISSENTED: ABRAHAMSON, J. and BRADLEY, A. W., J. dissent
(Opinion filed).
NOT PARTICIPATING:

ATTORNEYS:
For the plaintiff-appellant-petitioner, there were briefs
by Sheila Sullivan, Jill M. Kastner, and Legal Action of
Wisconsin, Inc., Milwaukee, and oral argument by Sheila
Sullivan.

For the defendants-respondents, the cause was argued by
Maura F.J. Whelan, assistant attorney general with whom on the
brief was Brad D. Schimel, attorney general.
 2016 WI 57
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2012AP2578
(L.C. No. 2010CV1048)

STATE OF WISCONSIN : IN SUPREME COURT

Sonja Blake,

Plaintiff-Appellant-Petitioner,

v.

Debra Jossart, Kerry Milkie and Racine County
FILED
Human Services Department,
JUL 6, 2016
Defendants,
Diane M. Fremgen
Clerk of Supreme Court
Department of Children and Families and Eloise
Anderson,

Defendants-Respondents.

REVIEW of a decision of the Court of Appeals. Affirmed.

¶1 DAVID T. PROSSER, J. This is a review of an

unpublished decision of the court of appeals affirming a circuit

court order rejecting constitutional challenges to Wis. Stat.

§ 48.685(5)(br)5. (2013-14).1

1
Blake v. Jossart, No. 2012AP2578, unpublished slip op.
(Wis. Ct. App. June 11, 2015) (per curiam).

(continued)
 No. 2012AP2578

¶2 In late 2009 the Wisconsin Legislature approved 2009

Wis. Act 76, which substantially changed the circumstances under

which the Department of Children and Families (DCF) may license

and certify childcare providers in Wisconsin. One provision in

the new law, Wis. Stat. § 48.685(5)(br)5., "imposes a lifetime

ban on licensure" and certification for persons who have been

convicted of specific crimes. Jamerson v. DCF, 2013 WI 7, ¶2,

345 Wis. 2d 205, 824 N.W.2d 822.

¶3 After the Act took effect, the Racine County Human

Services Department (Racine County) revoked the childcare

certification previously issued to Sonja Blake (Blake) because

she had a 1986 conviction for misdemeanor welfare fraud. Under

Wis. Stat. § 48.685(5)(br)5., the 1986 conviction made Blake

ineligible for certification. Blake raised various

constitutional challenges to the statute in the Dane County

Circuit Court and in the court of appeals. She did not prevail.

¶4 Before this court, Blake renews the three

constitutional arguments she raised in the courts below. First,
she contends that the lifetime prohibition on certification

creates an arbitrary and irrational classification that denies

her equal protection of the law. Second, she claims that the

prohibition deprives her of a liberty interest by abridging an

alleged substantive due process right to practice her chosen

profession as a state-regulated childcare provider. Finally,

All subsequent references to the Wisconsin Statutes are to
the 2013-14 version unless otherwise indicated.

2
 No. 2012AP2578

she argues that the prohibition creates an "impermissible

irrebuttable presumption." For the reasons discussed below, we

disagree with each of her arguments and affirm the decision of

the court of appeals.

I. BACKGROUND

A. The Children's Code and 2009 Wis. Act. 76

¶5 DCF licenses childcare centers and certifies childcare

providers under Chapter 48 of the Wisconsin Statutes.2 "To

obtain a license . . . to operate a child care center, a person

must . . . meet the requirements specified in s. 48.685."3 To

receive certification as a childcare provider, a person must,

among other prerequisites, "meet the minimum requirements for

certification established by the department under s. 49.155(1d)"

and "meet the requirements specified in s. 48.685."4

¶6 A person need not obtain a license to operate a

childcare center if the center provides care and supervision for

less than 4 children under the age of 7.5 However, only a

licensed childcare center or a person with a childcare

2
See Wis. Stat. §§ 48.65, 48.651.
3
Wis. Stat. § 48.65(1) ("A license . . . is valid until
revoked or suspended, but shall be reviewed every 2
years . . . .").
4
Wis. Stat. § 48.651(1).
5
See Wis. Stat. § 48.65(1) ("No person may for compensation
provide care and supervision for 4 or more children under the
age of 7 for less than 24 hours a day unless that person obtains
a license to operate a child care center from the department.").

3
 No. 2012AP2578

certification "may receive payment for providing child care

services for an individual who is determined eligible for a

child care subsidy under s. 49.155."6

¶7 The Wisconsin Shares program detailed in Wis. Stat.

§ 49.155 provides subsidies to families meeting certain

financial eligibility requirements. These subsidies eventually

reach childcare centers and childcare providers, so long as they

are licensed or certified.7 To acquire a license or

certification, a person must meet the requirements set forth in

Wis. Stat. § 48.685. If a person fails to obtain a license or

certification because the person is ineligible under § 48.685,

the person is ineligible to receive Wisconsin Shares dollars.

¶8 Wisconsin Stat. § 48.685 provides for an extensive

search of childcare providers' backgrounds for any record of

criminal history or child abuse. The section places a lifetime

prohibition on licensure or certification for people with

certain criminal convictions on their records, as subdivision

5., at issue in this case, demonstrates:

6
Wis. Stat. § 48.651(1) ("[N]o person, other than a child
care center licensed under s. 48.65 . . . , may receive payment
for providing child care services for an individual who is
determined eligible for a child care subsidy under s. 49.155
unless the person is certified . . . .").
7
DCF provides vouchers to Wisconsin Shares-eligible
parents, and parents use the vouchers to "obtain child care
services stipulated in that voucher from [an authorized]
provider." Wis. Admin. Code § DCF 201.04(2)(a) (Feb. 2016).
Authorized childcare providers accept the vouchers and receive
payment from DCF. Wis. Admin. Code § DCF 201(1), (2g) (Feb.
2016).

4
 No. 2012AP2578

(br) For purposes of licensing a person to
operate a child care center under s. 48.65[ or]
certifying a child care provider under
s. 48.651, . . . no person who has been convicted or
adjudicated delinquent on or after his or her 12th
birthday for committing any of the following
offenses . . . may be permitted to demonstrate that he
or she has been rehabilitated:

. . . .

5. An offense involving fraudulent activity as a
participant in the Wisconsin Works program under
ss. 49.141 to 49.161, including as a recipient of a
child care subsidy under s. 49.155, or as a recipient
of aid to families with dependent children under
s. 49.19, medical assistance under subch. IV of
ch. 49, food stamps benefits under the food stamp
program under 7 USC 2011 to 2036, supplemental
security income payments under s. 49.77, payments for
the support of children of supplemental security
income recipients under s. 49.775, or health care
benefits under the Badger Care health care program
under s. 49.665.8
¶9 Subdivisions 6. and 7. prohibit licensure and

certification based on convictions for other offenses, but the

prohibitions apply only "if the person completed his or her

sentence, including any probation, parole, or extended

supervision, or was discharged by the department of corrections,
less than 5 years before the date" of the background check.9

¶10 These lifetime and five-year prohibitions on

eligibility under Wis. Stat. § 48.685(5)(br) stand in contrast

to the prohibitions listed in § 48.685(4m)(a)-(b). Although

§ 48.685(4m)(a) and (b) also disqualify from licensure or

8
Wis. Stat. § 48.685(5)(br)5.
9
Wis. Stat. § 48.685(5)(br)6.-7.

5
 No. 2012AP2578

certification people with certain criminal convictions,

§ 48.685(5)(a) allows for licensure or certification

notwithstanding prior conviction "if the person demonstrates to

the department . . . by clear and convincing evidence . . . that

he or she has been rehabilitated."

¶11 The legislature created the paragraph (br)

prohibitions in Section 24 of 2009 Wis. Act. 76, which followed

a series of articles in the Milwaukee Journal Sentinel detailing

extensive fraud and abuse by childcare providers receiving funds

through Wisconsin Shares.10 Prior to Act 76, the law contained a

rebuttable presumption of ineligibility for licensure or

certification if a person had a specified criminal conviction,

but it did not permanently bar people from eligibility based on

any prior conviction.11

B. Blake's Childcare Certification

¶12 Blake received her childcare provider certification

from Racine County in October 2001. She then began operating a

childcare business from her own home. Starting with her eldest
daughter's two children, Blake soon grew her childcare business

into caring for the children of her daughter's and her son's

friends. By 2006 Blake provided childcare for approximately 12

10
To access a collected archive of the articles in the
investigative series, for which reporter Raquel Rutledge won a
Pulitzer Prize for Local Reporting, see Cashing in on Kids,
Milwaukee J. Sentinel, http://www.jsonline.com/news/38617217.
html (last visited June 24, 2016).
11
See Wis. Stat. § 48.685(4m)-(5) (2007-08).

6
 No. 2012AP2578

children, with about 4 to 6 children in her home at any one

time.

¶13 Operating the childcare business became Blake's

primary source of income. Rather than charging parents for her

childcare services, Blake received Wisconsin Shares

reimbursement payments from the Racine County Workforce

Development Center because of her status as a certified

provider. Funds from the Wisconsin Shares program represented

Blake's sole source of income for her childcare services.

During the period between 2001 and 2006, Blake estimated that

she received payments totaling approximately $26,000 from

Wisconsin Shares each year.

¶14 Racine County revoked Blake's childcare certification

in 2006 for failure to disclose that her son lived in her home

and failure to submit a form disclosing information about his

background. Without a certification permitting her to receive

payments from Wisconsin Shares-eligible parents, Blake stopped

running her home childcare business. She worked full time as a
caregiver in an assisted living home for adults while waiting to

reapply for certification.

¶15 When she became eligible again in 2008, Blake

reapplied for and received a new childcare certification. With

a new certification valid from June 6, 2008, to June 6, 2010,

Blake left her job at the assisted living home to restart her

childcare business. Blake resumed providing care for

approximately 12 different children at various times throughout
the week. Over the ensuing year, however, nearly all the

7
 No. 2012AP2578

children for whom Blake provided care began receiving childcare

elsewhere, eventually leaving Blake with only 2 children. With

business disappearing, Blake took a part-time job at a

children's learning center in 2009.

¶16 In January 2010, Racine County notified Blake that it

would permanently revoke her childcare certification, effective

February 1, 2010. To comply with Act 76's changes to the law

regarding childcare certifications, the County had conducted a

review of providers' criminal backgrounds to determine whether

the new law affected any certified providers in the county.

¶17 Blake's background check revealed a 1986 conviction

for public assistance fraud. According to the Judgment of

Conviction issued by the Racine County Circuit Court on December

19, 1986, Blake pled no contest to misdemeanor welfare fraud,

contrary to Wis. Stat. § 49.12(9) (1983-84). Blake pled to the

misdemeanor after originally facing a felony charge for failing

to report as assets a car and a motorcycle that she owned. At

the time, she thought she did not have to report the car as an
asset because it was a gift and it did not run. As a result of

the conviction, she served two years probation and paid $294 in

restitution for the excess welfare payment she received.

¶18 Racine County determined that, as a conviction related

to public benefits fraud, her 1986 conviction fell within the

category of offenses for which Act 76 required permanent

8
 No. 2012AP2578

revocation under new Wis. Stat. § 48.685(5)(br)5.12 After the

County revoked her certification, Blake again closed her home

childcare business. She also lost her job at the children's

learning center upon informing her employer that the County

revoked her certification.

II. PROCEDURAL HISTORY

¶19 Blake commenced this action on March 1, 2010, to

challenge revocation of her childcare certification. She

claimed under 42 U.S.C. § 1983 that revocation of her

certification interfered with rights secured by the United

States Constitution.13 She sought a declaratory judgment holding

12
An email dated February 3, 2010, from DCF to certifying
agents in Racine, Marathon, and Eau Claire Counties explained
that not all convictions under Chapter 49 automatically qualify
for permanent revocation as "[a]n offense involving fraudulent
activity" under Wis. Stat. § 48.685(5)(br)5. The email provided
the following guidance:

To determine whether a conviction under ch. 49 is
fraudulent, first look at the actual conviction. Was
the person convicted of "fraud". If the title of the
conviction includes, fraud, then it would be a
permanent bar. However, if the title of the
conviction does not include the word "fraud" then the
facts of the conviction need to be examined.
13
Initially, Blake also claimed that Racine County and DCF
violated due process by revoking her certification without
conducting an administrative hearing. After Blake filed her
complaint, Racine County allowed her an administrative hearing
on the revocation. A hearing examiner determined that her 1986
conviction provided grounds for revocation, and the circuit
court upheld that decision. But the court of appeals reversed,
concluding that Racine County considered insufficient evidence
to conclusively determine that Blake's conviction was an offense
involving fraudulent activity. Blake v. Racine Cty. Human
Servs. Dep't, 2013 WI App 45, ¶¶1-2, 347 Wis. 2d 499, 831
(continued)

9
 No. 2012AP2578

that Wis. Stat. § 48.685(5)(br)5. unconstitutionally violated

her right to equal protection, violated her right to due

process, and created an impermissible irrebuttable presumption.

She argued that, facially and as applied to her, the statute's

new list of disqualifying offenses denied her constitutional

rights by completely barring her from eligibility for licensure

or certification.

¶20 Both parties filed for summary judgment, and the Dane

County Circuit Court14 rejected Blake's constitutional

challenges. Disposing of Blake's facial challenge to the Wis.

Stat. § 48.685(5)(br)5. prohibition on certification, the

circuit court relied on Brown v. State Department of Children

and Families, 2012 WI App 61, 341 Wis. 2d 449, 819 N.W.2d 827,

in which the court of appeals determined that the new caregiver

law passed the rational basis test and did not, on its face,

violate the equal protection guarantee. In particular, the

circuit court relied on Brown's reasoning that the law "serves a

legitimate purpose of preventing further fraud in the Wisconsin
Shares program" and that "the legislature did not apply an

irrational or arbitrary classification in passing the law."

N.W.2d 439 (citing Jamerson v. DCF, 2013 WI 7, ¶72, 345
Wis. 2d 205, 824 N.W.2d 822). On remand, Racine County
presented additional evidence and once again upheld revocation;
both the circuit court and the court of appeals affirmed. Blake
v. Racine Cty. Human Servs. Dep't, No. 2014AP1229-FT,
unpublished order (Wis. Ct. App. Oct. 8, 2014).
14
Shelley J. Gaylord, Judge.

10
 No. 2012AP2578

¶21 The circuit court further concluded that Blake failed

to demonstrate that Wis. Stat. § 48.685(5)(br)5. was

unconstitutional as applied to her. Again relying on Brown, the

court first concluded that Blake overstated her liberty interest

by asserting a right to provide subsidized childcare. Rather,

the court asked whether Wis. Stat. § 48.685(5)(br)5. denied

Blake the opportunity to make a living in childcare in general——

and the court answered that it did not. The circuit court

observed that, to prevail on her as-applied challenge, Blake

would need to provide facts supporting her claim that the

statute constituted a de facto deprivation of her ability to

provide childcare. She failed to make that showing. Indeed,

the court said, Blake's efforts to continue working in childcare

after loss of her certification had "been nil or virtually nil."

¶22 Blake appealed, and the court of appeals affirmed.

Blake v. Jossart, No. 2012AP2578, unpublished slip op. (Wis. Ct.

App. June 11, 2015) (per curiam). First, the court of appeals

declined to address Blake's facial equal protection challenge
because, as Blake acknowledged in a footnote of her brief, Brown

controlled on that issue and the court of appeals could not

overrule its own decision. Id., ¶3. The court also declined to

consider her as-applied equal protection argument, reasoning

that she had failed to cite "any case law or legal standard

relevant to such an analysis." Id., ¶4.

¶23 Next, the court turned to Blake's claim that Act 76

created an impermissible irrebuttable presumption that
individuals convicted of an offense involving fraudulent

11
 No. 2012AP2578

activity are permanently unfit for certification. Id., ¶¶5-6.

Appreciating Blake's "acknowledge[ment] that the current

vitality of the irrebuttable presumption concept is

questionable," the court of appeals found her argument

unpersuasive because she did "not cite any case law in which an

occupational-regulation statute such as this one ha[d] been held

unconstitutional for relying on such a presumption." Id., ¶6.

¶24 Finally, to consider Blake's substantive due process

argument, the court of appeals assumed that Blake had a

constitutionally protected liberty interest in working in "the

field of state-regulated child care." Id., ¶¶7-9. Turning

again to Brown, the court of appeals concluded that "barring

persons convicted of 'crimes involving fraudulent use of funds

from enumerated government programs is rationally related to a

legitimate interest in preventing further fraud' to the child

care subsidy program." Id., ¶9 (citing Brown, 341 Wis. 2d 449,

¶40). Blake failed to demonstrate that "this relationship

becomes irrational or arbitrary" when the individual's past
offense "was a de minimis example of fraudulent activity." Id.

¶25 On July 29, 2015, Blake filed a petition for review,

which this court granted on November 4, 2015.

III. STANDARD OF REVIEW

¶26 A statute's constitutionality is a question of law

that this court reviews de novo. Aicher ex rel. LaBarge v. Wis.

Patients Comp. Fund, 2000 WI 98, ¶18, 237 Wis. 2d 99, 613

N.W.2d 849 (citing Riccitelli v. Broekhuizen, 227 Wis. 2d. 100,
119, 595 N.W.2d 392 (1999)). To succeed on a claim that a law

12
 No. 2012AP2578

is unconstitutional on its face, the challenger must demonstrate

that the State cannot enforce the law under any circumstances.

State v. Wood, 2010 WI 17, ¶13, 323 Wis. 2d 321, 780 N.W.2d 63

(citing Olson v. Town of Cottage Grove, 2008 WI 51, ¶44 n.9, 309

Wis. 2d 365, 749 N.W.2d 211). If the challenger succeeds, then

the law is void for all purposes. Id. (citing State ex rel.

Comm'rs of Pub. Lands v. Anderson, 56 Wis. 2d 666, 672, 203

N.W.2d 84 (1973)). An as-applied challenge, in contrast,

focuses on the facts of the challenger's case, and if the court

determines that the law actually violates the challenger's

rights, then "the operation of the law is void as to the party

asserting the claim." Id. (first citing State v. Hamdan, 2003

WI 113, ¶43, 264 Wis. 2d 433, 665 N.W.2d 785; then citing

Anderson, 56 Wis. 2d at 672).

¶27 We presume that statutes are constitutional, Wood, 323

Wis. 2d 321, ¶15, and if any doubt exists about the statute's

constitutionality, the court must resolve that doubt in favor of

upholding the statute, Aicher, 237 Wis. 2d 99, ¶18 (citing
State ex rel. Hammermill Paper Co. v. La Plante, 58 Wis. 2d 32,

46–47, 205 N.W.2d 784 (1973)). A party challenging a statute

overcomes the strong presumption of constitutionality only by

demonstrating that the statute is unconstitutional beyond a

reasonable doubt. Id., ¶19 (citing State v. Hezzie R., 219

Wis. 2d 848, 863, 580 N.W.2d 660 (1998)). "It is not sufficient

for the challenging party merely to establish doubt about a

statute's constitutionality, and it is not enough to establish

13
 No. 2012AP2578

that a statute probably is unconstitutional." Id. (citing

Hammermill Paper Co., 58 Wis. 2d at 46–47).

IV. DISCUSSION

¶28 According to the Fourteenth Amendment to the United

States Constitution, "No state shall . . . deprive any person of

life, liberty, or property, without due process of law; nor deny

to any person within its jurisdiction the equal protection of

the laws." Article I, Section 1 of the Wisconsin Constitution

further provides: "All people are born equally free and

independent, and have certain inherent rights; among these are

life, liberty and the pursuit of happiness . . . ." As a

general principle, this court treats these provisions of the

United States and Wisconsin Constitutions as consistent with

each other in their due process and equal protection

guarantees.15

¶29 Blake raises three constitutional challenges to the

absolute bar on childcare licensure and certification for people

convicted of certain criminal offenses, as provided by Wis.
Stat. § 48.685(5)(br)5. She argues that revocation of her

15
See Winnebago Cty. v. Christopher S., 2016 WI 1, ¶35
n.18, 366 Wis. 2d 1, 878 N.W.2d 109 ("[T]he United States
Constitution and the Wisconsin Constitution provide
substantively similar due process guarantees." (citing State v.
Wood, 2010 WI 17, ¶17 n.9, 323 Wis. 2d 321, 780 N.W.2d 63));
Tomczak v. Bailey, 218 Wis. 2d 245, 261, 578 N.W.2d 166 (1998)
("This court applies the same interpretation to the state Equal
Protection Clause as that given to the equivalent federal
provision." (citing State v. Post, 197 Wis. 2d 279, 317 n.21,
541 N.W.2d 115 (1995))).

14
 No. 2012AP2578

certification under this statute (1) denies her equal protection

of the law, (2) violates her right to due process, and (3)

creates an impermissible irrebuttable presumption. We consider

each of these three arguments in turn.

A. Equal Protection

¶30 To show that a statute unconstitutionally denies equal

protection of the law, a party must demonstrate that the statute

treats members of similarly situated classes differently.

Tomczak v. Bailey, 218 Wis. 2d 245, 261, 578 N.W.2d 166 (1998).

"The right to equal protection does not require that such

similarly situated classes be treated identically, but rather

requires that the distinction made in treatment have some

relevance to the purpose for which classification of the classes

is made." State v. West, 2011 WI 83, ¶90, 336 Wis. 2d 578, 800

N.W.2d 929 (citing State v. Post, 197 Wis. 2d 279, 321, 541

N.W.2d 115 (1995)).

¶31 "In cases where a statutory classification does not

involve a suspect class or a fundamental interest, the
classification will be upheld if there is any rational basis to

support it." State v. Burgess, 2003 WI 71, ¶10, 262

Wis. 2d 354, 665 N.W.2d 124 (citing Milwaukee Brewers v. DHSS,

130 Wis. 2d 79, 98, 387 N.W.2d 254 (1986)). Only when a statute

"impinges on a 'fundamental right' or creates a classification

that 'operates to the peculiar disadvantage of a suspect class'"

will the court engage in strict scrutiny analysis. Aicher, 237

Wis. 2d 99, ¶56 (quoting Tomczak, 218 Wis. 2d at 261–62).

15
 No. 2012AP2578

¶32 Under rational basis analysis, a statute is

unconstitutional if the legislature applied an irrational or

arbitrary classification when enacting the provision. Burgess,

262 Wis. 2d 354, ¶32; Aicher, 237 Wis. 2d 99, ¶57. Therefore,

the court will uphold a statute unless "it is 'patently

arbitrary' and bears no rational relationship to a legitimate

government interest." Aicher, 237 Wis. 2d 99, ¶57 (quoting

Tomczak, 218 Wis. 2d at 264). Though classifications may be

imperfect and might create inequities, the court seeks to

determine whether a classification rationally advances a

legislative objective. Id. To do so, the court must identify

or, if necessary, construct a rationale supporting the

legislature's determination. Metro. Assocs. v. City of

Milwaukee, 2011 WI 20, ¶62, 332 Wis. 2d 85, 796 N.W. 2d 717.

"Once the court identifies a rational basis for a statute, the

court must assume the legislature passed the act on that

basis . . . ." Ferdon ex rel. Petrucelli v. Wis. Patients Comp.

Fund, 2005 WI 125, ¶75, 284 Wis. 2d 573, 701 N.W.2d 440.16

16
The dissent reminds us of the admonition from the Supreme
Court of the United States that the "rational-basis standard is
'not a toothless one.'" Schweiker v. Wilson, 450 U.S. 221, 234
(1981) (quoting Matthews v. Lucas, 427 U.S. 495, 510 (1976)),
quoted in dissent, ¶69. However, rational basis review does not
"allow us to substitute our personal notions of good public
policy for those of" the legislature. See Schweiker, 450 U.S.
at 234. As the Supreme Court has explained,

In the area of economics and social welfare, a State
does not violate the Equal Protection Clause merely
because the classifications made by its laws are
imperfect. If the classification has some "reasonable
(continued)

16
 No. 2012AP2578

¶33 A legislative classification satisfies the rational

basis standard if it meets the following five criteria:

(1) All classification[s] must be based upon
substantial distinctions which make one class really
different from another.

(2) The classification adopted must be germane
to the purpose of the law.

(3) The classification must not be based upon
existing circumstances only. [It must not be so
constituted as to preclude addition to the numbers
included within a class.]

(4) To whatever class a law may apply, it must
apply equally to each member thereof.

(5) That the characteristics of each class
should be so far different from those of other classes
as to reasonably suggest at least the propriety,

basis," it does not offend the Constitution simply
because the classification "is not made with
mathematical nicety or because in practice it results
in inequality." Lindsley v. Natural Carbonic Gas Co.,
220 U.S. 61, 78. "The problems of government are
practical ones and may justify, if they do not
require, rough accommodations——illogical, it may be,
and unscientific." Metropolis Theatre Co. v. City of
Chicago, 228 U.S. 61, 69-70. "A statutory
discrimination will not be set aside if any state of
facts reasonably may be conceived to justify it."
McGowan v. Maryland, 366 U.S. 420, 426.

Dandridge v. Williams, 397 U.S. 471, 485 (1970). The dissent
identifies alternative means by which the legislature might have
structured the law to prevent fraud against Wisconsin Shares.
See, e.g., dissent, ¶¶88-91. But the mere existence of
alternative policy proposals does not negate the rational
relationship between the objective of preventing fraud and the
legislature's chosen policy of prohibiting licensure for anyone
with a conviction for fraud against a government benefits
program.

17
 No. 2012AP2578

having regard to the public good, of substantially
different legislation.
Aicher, 237 Wis. 2d 99, ¶58 (alterations in original) (quoting

Tomczak, 218 Wis. 2d at 272-73); accord Metro. Assocs., 332

Wis. 2d 85, ¶64; Nankin v. Village of Shorewood, 2001 WI 92,

¶39, 245 Wis. 2d 86, 630 N.W.2d 141.

¶34 Blake concedes that her equal protection claim

involves neither a suspect class nor a fundamental right;

therefore, rational basis analysis is appropriate in this case.

She characterizes Act 76 as creating three classes of people

with prior convictions: (1) people permanently barred for life

from eligibility for licensure or certification; (2) people

absolutely barred from eligibility for five years, after which

time they remain barred but may prove rehabilitation; and (3)

people presumptively barred for life but eligible to prove

rehabilitation. These classifications deny her equal

protection, she argues, because they are incoherent and lack

distinguishing features. Depending on the offense committed, a

person convicted of a crime of violence, a crime against
children, or a dishonesty-related offense might fall into any of

the three classifications, which do not necessarily match the

severity of the underlying offense.

¶35 DCF counters that the appropriate class to focus on

"consists of persons like Blake who have been convicted of 'an

offense involving fraudulent activity as a participant' in

specified public benefits programs." That classification
rationally achieves the legislature's objective of "the

18
 No. 2012AP2578

elimination of fraud in the Wisconsin Shares program and the

protection of the public's scarce financial resources."

¶36 In Brown, the court of appeals rejected facial and as-

applied challenges to Wis. Stat. § 48.685(5)(br)5. that relied

on equal protection grounds. Brown, 341 Wis. 2d 449, ¶¶40, 43.

Also applying rational basis analysis, the court of appeals

first reasoned that the challenger had not demonstrated facial

unconstitutionality because, "[r]egardless of whether the law is

rationally related to the goal of protecting children, the law

is rationally related to the legitimate purpose of prohibiting

individuals who dishonestly benefitted from government welfare

in the past from obtaining government funding in the form of

childcare subsidies." Id., ¶40. Turning to the as-applied

argument, the court of appeals acknowledged that "Brown's

particular situation——[loss of certification because she had] a

single welfare conviction for events occurring more than two

decades ago——[was] unfortunate," but the court declined to hold

the statute unconstitutional as applied because Brown "point[ed]
to no evidence that she was treated differently from any

similarly-situated childcare provider whose license was revoked

under the new law." Id., ¶43.

¶37 Examining Blake's facial challenge, we conclude that

Wis. Stat. § 48.685(5)(br)5. passes rational basis review on its

face. We begin our analysis by noting the legislature's

organizational structure for paragraph (br), which sets forth

seven subdivisions defining categories of people barred from
licensure and certification. The class we evaluate for equal

19
 No. 2012AP2578

protection purposes consists of people permanently ineligible

for licensure or certification on the grounds that their record

contains a conviction for "[a]n offense involving fraudulent

activity as a participant" in one of the various government

benefits programs delineated in subdivision 5.

¶38 The classification satisfies the first of the five

Aicher prongs if "substantial distinctions" demonstrate that the

class is truly different from others. Aicher, 237 Wis. 2d 99,

¶58. Subdivision 5. contains a comprehensive list of public

benefits programs and disqualifies from eligibility people who

have convictions for fraudulent activity pertaining to one or

more of these programs.

¶39 Other subdivisions under paragraph (br) create

lifetime prohibitions for people with convictions for crimes

against children, certain crimes against life and bodily

security, and various crimes involving misappropriation of

identity or property. See Wis. Stat. § 48.685(5)(br)1.-4.

These subdivisions arguably have purposes different from
subdivision 5., such as protecting children, protecting the

families of children, and protecting private employers in

childcare.

¶40 Subdivision 5. imposes ineligibility based on

convictions for fraudulent activity related to public assistance

programs, meaning that it focuses on a distinct category of

criminal activity. Regardless of its merits, Blake's normative

argument that the legislature could better achieve the objective
of protecting children by developing classifications focused on

20
 No. 2012AP2578

the severity of the underlying offense does not defeat the fact

that the legislature did create a coherent, though broad,

classification based on public benefits fraud convictions.

Because subdivision 5. targets a cognizable group of individuals

whose characteristics are distinct from other classifications in

the statute, Wis. Stat. § 48.685(5)(br)5. meets the first prong.

¶41 Furthermore, Blake's three-tiered characterization of

subsection (5)'s classifications does not disprove the existence

of substantial distinctions between classes. Focusing on the

impact that different convictions have on a person's

eligibility, Blake argues that the legislature did not have a

cogent justification for barring some people for life, allowing

some people to overcome a lifetime prohibition by proving

rehabilitation, and barring others for five years but permitting

them to prove rehabilitation after that time. In particular,

she observes that "[a]ll three classes include individuals

convicted of crimes of violence, offenses against children, and

dishonesty-related offenses." The legislature, however, could
reasonably determine that creating different outcomes for people

with different underlying convictions would most efficaciously

advance the objective of preventing fraud against Wisconsin

Shares. Because public benefits fraud is the particular type of

fraud that the legislature sought to prevent, the legislature

could reasonably determine that public benefits fraud offenses

warranted a stricter prohibition than other underlying

convictions.

21
 No. 2012AP2578

¶42 To succeed under the second Aicher prong, Blake must

prove that the classification is not germane to the law's

purpose. See Aicher, 237 Wis. 2d 99, ¶58. She contends that

barring eligibility under Wis. Stat. § 48.685(5)(br)5. "[f]or

purposes of . . . permitting a person to be a . . . caregiver

specified in sub. (1)(ag)1.a. of a child care center or child

care provider" sweeps too broadly by prohibiting people with

public assistance fraud convictions from working in any

regulated facility——even those facilities that do not receive

public assistance from Wisconsin Shares. Yet even that

expansive prohibition cuts to the law's purpose of eliminating

fraudulent activity in the Wisconsin Shares program. A

caregiver employee with a record of fraudulent conduct could

conspire with the operator of a licensed facility to alter

records or otherwise defraud the Wisconsin Shares program,

particularly if the facility is small and employs only a few

caregivers.17 Moreover, the fact that a licensed facility does

17
One article from the Journal Sentinel's Cashing in on
Kids series illustrates how a provider might coordinate with
employees to defraud Wisconsin Shares. The article describes a
Milwaukee daycare center run by Latasha Jackson:

Nearly two-thirds of the children enrolled
belonged to employees of Jackson's center, according
to documents obtained by the newspaper. Such an
arrangement is a red flag for regulators because it is
designed with the sole purpose of tapping into child-
care funds. Parents don't actually have to report to
work. They can stay home and take care of their
children and still get paid. . . .

(continued)

22
 No. 2012AP2578

not receive funds through Wisconsin Shares at a given time does

not make the prohibition any less germane to the purpose of

preventing fraudulent activity. If a facility possesses

appropriate credentials to accept Wisconsin Shares payments, it

always has the option of doing so in the future, thus giving the

State a rational basis for always holding the facility to the

high standard of never employing people with convictions related

to public assistance fraud.

¶43 As DCF observes in its brief, Blake implicitly

conceded the third and fourth Aicher factors by declining to

argue them in her brief. Regarding the third factor, Blake

clearly has not proven that the classification is based solely

upon existing circumstances. On the contrary, the permanent

lifetime prohibition applies to anyone convicted of one or more

of the listed public benefits fraud offenses——a group that will

presumably continue to expand indefinitely as new people are

convicted of crimes in the future. Similar logic demonstrates

that Blake has not proven that Wis. Stat. § 48.685(5)(br)5.
fails under the fourth prong——equal application——because every

person convicted of a public benefits fraud offense listed in

Records show Jackson . . . almost always hired
parents who have at least four or five children,
making the set-up more lucrative. Each child is
typically worth close to $200 a week in subsidies,
depending on the age and number of hours of care
authorized.

Raquel Rutledge, Private Fortune, Public Cash, Milwaukee J.
Sentinel (Aug. 31, 2009), http://www.jsonline.com/watchdog/watch
dogreports/56121342.html.

23
 No. 2012AP2578

subdivision 5. receives a lifetime ban on eligibility for

licensure or certification, so there is no inconsistent

application within the class.

¶44 Finally, under the fifth prong of the Aicher analysis,

we conclude that a rational basis exists for creating a specific

classification for people convicted of offenses involving public

assistance fraud because the classification addresses a distinct

aspect of the childcare system. See Aicher, 237 Wis. 2d 99,

¶58. Blake argues that it is "irrational in relation to the

public good to elevate the goal of protecting the purse over

that of protecting children" by allowing rehabilitation for

people convicted of some crimes against children but barring for

life people with convictions for public assistance fraud. But

her analysis improperly focuses on the relative merits of

various objectives——protecting public finances, protecting

children——that Act 76 sought to advance. Rather, the fact that

each objective is a reasonable goal for the State to pursue

through the licensure and certification system justifies the
existence of separate legislation for each class. Wisconsin

Stat. § 48.685(5)(br)5. advances the objective of preventing

abuse of the Wisconsin Shares program by permanently barring

licensure and certification for people convicted of public

assistance fraud. At the same time, it advances the objective

of protecting children by permanently barring licensure and

certification for people convicted of some violent offenses

while allowing rehabilitation for others. As DCF observes in

24
 No. 2012AP2578

its brief, "The statute has multiple policy goals, and

rationally achieves each of them."

¶45 Because Blake has not presented evidence sufficient

under any of the Aicher prongs to call into question Wis. Stat.

§ 48.685(5)(br)5.'s lifetime prohibition on licensure and

certification for people convicted of public assistance fraud

offenses, she has failed to prove that the classification is

unconstitutional on its face beyond a reasonable doubt. The

permanent prohibition rationally advances the State's objective

of eliminating fraud against the Wisconsin Shares program and

therefore withstands equal protection review on its face.

¶46 We further decline to hold Wis. Stat.

§ 48.685(5)(br)5. unconstitutional as applied to Blake. She

argues that revocation of her certification without an

opportunity to demonstrate rehabilitation denies her equal

protection of the law because people with convictions for other

"dishonesty related offenses" do not suffer permanent

ineligibility. Once again, though, she misidentifies the proper
scope for evaluating the classification. Like the childcare

provider in Brown, Blake "points to no evidence that she was

treated differently from any similarly-situated childcare

provider whose license was revoked under the new law." Brown,

341 Wis. 2d 449, ¶43. Indeed, since enactment of Act 76, this

is the third published case involving a childcare provider

facing revocation based on a public assistance fraud conviction.

See Jamerson v. DCF, 2013 WI 7, ¶23, 345 Wis. 2d 205, 824
N.W.2d 822; Brown, 341 Wis. 2d 449, ¶43. Like Milwaukee County

25
 No. 2012AP2578

reviewing the credentials at issue in Jamerson and Brown, Racine

County revoked Blake's license upon learning of her forbidden

conviction. Brown, 341 Wis. 2d 449, ¶43 ("[T]he facts of

Jamerson show that the Department treated [Brown] almost

identically to other individuals whose licenses were revoked.").

Because Racine County treated Blake in a manner consistent with

the treatment of similarly situated providers in published cases

and Blake has not presented evidence to the contrary, her as-

applied equal protection claim fails.

B. Substantive Due Process

¶47 The substantive component of the Fourteenth

Amendment's Due Process Clause "addresses 'the content of what

government may do to people under the guise of law.'" Wood, 323

Wis. 2d 321, ¶17 (quoting Dane Cty. DHS v. P.P., 2005 WI 32,

¶19, 279 Wis. 2d 169, 694 N.W.2d 344). "It protects against

governmental action that either 'shocks the conscience . . . or

interferes with rights implicit in the concept of ordered

liberty.'" P.P., 279 Wis. 2d 169, ¶19 (alteration in original)
(quoting State v. Jorgensen, 2003 WI 105, ¶33, 264 Wis. 2d 157,

667 N.W.2d 318). "A court's task in a challenge based on

substantive due process 'involves a definition of th[e]

protected constitutional interest, as well as identification of

the conditions under which competing state interests might

outweigh it.'" Wood, 323 Wis. 2d 321, ¶18 (alteration in

original) (quoting Washington v. Harper, 494 U.S. 210, 220

(1990)); see also Washington v. Glucksburg, 521 U.S. 702, 721

26
 No. 2012AP2578

(1997) (requiring "careful description" of constitutional

interest asserted in certain substantive due process cases).

¶48 As in the equal protection context, the "threshold

question" when reviewing a substantive due process claim "is

whether a fundamental right is implicated or whether a suspect

class is disadvantaged by the challenged legislation." State v.

Smith, 2010 WI 16, ¶12, 323 Wis. 2d 377, 780 N.W.2d 90. Because

Blake's substantive due process argument involves neither a

fundamental right nor a suspect class, we once again conduct a

rational basis review to evaluate whether "the statute is

rationally related to achieving a legitimate governmental

interest." State v. Luedtke, 2015 WI 42, ¶76, 362 Wis. 2d 1,

863 N.W.2d 592.

¶49 Blake's assertion that permanent ineligibility for

certification violates her substantive due process rights is no

more availing than her equal protection claim. In her reply

brief, Blake makes clear that she questions not the facial

constitutionality of Wis. Stat. § 48.685(5)(br)5. but rather its
constitutionality as applied to her. Quoting Schware v. Board

of Bar Examiners, 353 U.S. 232, 239 (1956), she contends that

the statute "violates substantive due process as applied to her

because her past criminal conviction has no 'rational [non-

arbitrary] connection with [her] fitness or capacity to

practice' the profession of state-regulated childcare provider."

(Alterations in original.) However, even if we were to

27
 No. 2012AP2578

determine that she possessed a liberty interest in practicing

"the profession of state regulated childcare provider,"18 we

would conclude that she has not met her burden of demonstrating

beyond a reasonable doubt that the permanent bar on eligibility

in Wis. Stat. § 48.685(5)(br)5. irrationally or arbitrarily

infringes on such an interest.

¶50 To prevent fraud against the Wisconsin Shares program,

the legislature enacted Wis. Stat. § 48.685(5)(br)5., which

instituted a broad prohibition on licensure and certification

for people with a conviction for an "offense involving

fraudulent activity as a participant" in various public benefits

18
The prospect that we would recognize a liberty interest
articulated in that manner is unlikely. Among other possible
problems for such a claim, any liberty interest that she might
have in working as a childcare provider likely would not extend
to receipt of Wisconsin Shares funds distributed for the benefit
of families in need. Licensure or certification from DCF makes
childcare providers eligible to receive payments from families
that receive childcare funding through Wisconsin Shares——a
benefit program for the families, not for the childcare
provider. The Supreme Court has indicated that a State may not
contravene the Due Process or Equal Protection Clauses when
denying a person the ability to perform a chosen profession.
See Schware v. Bd. of Bar Exam'rs, 353 U.S. 232, 238-39 (1957).
However, the Seventh Circuit has expressed skepticism about
identifying "a liberty interest in a private party's
participation in a government assistance program designed to
provide benefits for a third party." Khan v. Bland, 630 F.3d
519, 534 (7th Cir. 2010). Wisconsin Stat. § 48.685(5)(br)5.
makes Blake ineligible to receive Wisconsin Shares payments from
families, but it does not prohibit her from providing childcare
under all circumstances. The statute eliminates her ability to
participate in a public benefit meant for third parties but does
not entirely eliminate her ability to pursue her occupation as a
childcare provider.

28
 No. 2012AP2578

programs. A conviction provides documented evidence that a

person engaged in proscribed conduct and faced a penalty for

doing so. The legislature could reasonably conclude that an

effective means for limiting abuse of the Wisconsin Shares

program would be to render ineligible for Wisconsin Shares funds

people who have received such formal sanction for engaging in

fraudulent conduct in the past. This strict prohibition not

only prevents fraud against Wisconsin Shares but also deters

other fraudulent conduct by creating a disincentive for existing

or potential Wisconsin Shares-eligible providers against

engaging in any fraudulent activities.

¶51 Like every other person with a conviction related to

public benefits fraud, Blake is not eligible for licensure or

certification. No doubt, the law's effect on her is harsh: her

criminal record of fraudulent conduct consists of a single

misdemeanor conviction 30 years ago, and the $294 illegal

benefit that gave rise to her conviction pales in comparison to

the millions of dollars worth of fraud uncovered in the Journal
Sentinel stories that preceded the amendments to the childcare

laws. But drawing attention to the distant nature of her

conviction and the relative insignificance of the fraud involved

does not prove that the legislature acted irrationally or

arbitrarily in making people with such convictions ineligible to

receive childcare payments through a public benefit program.

Eliminating eligibility for all people with a record of public

benefits fraud (no matter the circumstances) may be a severe

29
 No. 2012AP2578

response to rampant fraud in the Wisconsin Shares program, but

it is not an irrational response.

C. Irrebuttable Presumption

¶52 The irrebuttable presumption doctrine derives from a

series of cases in which the Supreme Court concluded that "a

statute creating a presumption which operates to deny a fair

opportunity to rebut it violates the due process clause of the

Fourteenth Amendment." Vlandis v. Kline, 412 U.S. 441, 446

(1973) (quoting Heiner v. Donnan, 285 U.S. 312, 329 (1932)); see

Cleveland Bd. of Edu. v. LaFleur, 414 U.S. 632 (1974); U.S.

Dep't of Agric. v. Murry, 413 U.S. 508 (1973); Stanley v.

Illinois, 405 U.S. 645 (1972); Bell v. Burson, 402 U.S. 535

(1971).19

¶53 In Weinberger v. Salfi, 422 U.S. 749 (1975), the

Supreme Court distinguished its irrebuttable presumption cases

from "constitutional challenges to classifications

in . . . social welfare legislation." Salfi, 422 U.S. at 770.

Because Wis. Stat. § 48.685(5)(br)5. creates a classification
related to social welfare legislation analogous to the

19
A contemporary Note summarizing the doctrine for Harvard
Law Review characterized it as "ill-founded": "There appears to
be no justification for the irrebuttable presumption
doctrine. . . . [I]t . . . is susceptible to the criticisms
made of interventionist equal protection——that it rests upon
subjective value judgments which lack clear constitutional
basis." Note, The Irrebuttable Presumption Doctrine in the
Supreme Court, 87 Harv. L. Rev. 1534, 1556 (1974). More
recently, the Seventh Circuit has questioned "whether the
'irrebuttable presumption' doctrine has any continued vitality."
Estate of Ekins v. Comm'r, 797 F.2d 481, 486 (7th Cir. 1986).

30
 No. 2012AP2578

classification at issue in Salfi, we conclude that it does not

create an impermissible irrebuttable presumption.

¶54 Salfi involved a challenge to a federal statute that

denied Social Security benefits to widows and stepchildren "who

had their respective relationships to a deceased wage earner for

less than nine months prior to his death." Salfi, 422 U.S. at

753-54. After the Social Security Administration denied

benefits based on the duration-of-relationship requirement, a

three-judge district court held that the requirement created an

unconstitutional conclusive presumption under the Supreme

Court's irrebuttable presumption cases. Id. at 754-55, 767-68.

¶55 The Supreme Court began its discussion of the

constitutional challenge to the duration-of-relationship

requirement by discussing two lines of cases. First, the Court

quoted at length from its decisions in Flemming v. Nestor, 363

U.S. 603 (1960); Dandridge v. Williams, 397 U.S. 471 (1970); and

Richardson v. Belcher, 404 U.S. 78 (1971). According to the

Court, those cases stood for the proposition that "[a] statutory
classification in the area of social welfare is consistent with

the Equal Protection Clause of the Fourteenth Amendment if it is

'rationally based and free from invidious discrimination.'" Id.

at 768-70 (quoting Richardson, 404 U.S. at 81, which had quoted

Dandridge, 397 U.S. at 487).

¶56 Second, it summarized its recent irrebuttable

presumption cases:

Stanley v. Illinois held that it was a denial of
the equal protection guaranteed by the Fourteenth

31
 No. 2012AP2578

Amendment for a State to deny a hearing on parental
fitness to an unwed father when such a hearing was
granted to all other parents whose custody of their
children was challenged. . . .

In Vlandis v. Kline, a statutory definition of
"residents" for purposes of fixing tuition to be paid
by students in a state university system was held
invalid. The Court held that where Connecticut
purported to be concerned with residency, it might not
at the same time deny to one seeking to meet its test
of residency the opportunity to show factors clearly
bearing on that issue. 412 U.S., at 452.

In LaFleur the Court held invalid, on the
authority of Stanley and Vlandis, school board
regulations requiring pregnant school teachers to take
unpaid maternity leave commencing four to five months
before the expected birth.
Salfi, 422 U.S. at 771.

¶57 The Court then explained the distinction between the

two sets of cases and their relevance to the duration-of-

relationship requirement:

We hold that [the irrebuttable presumption] cases
are not controlling on the issue before us now.
Unlike the claims involved in Stanley and LaFleur, a
noncontractual claim to receive funds from the public
treasury enjoys no constitutionally protected status,
Dandridge v. Williams, supra, though of course
Congress may not invidiously discriminate among such
claimants on the basis of a "bare congressional desire
to harm a politically unpopular group," U.S. Dept. of
Agriculture v. Moreno, 413 U.S. 528, 534 (1973), or on
the basis of criteria which bear no rational relation
to a legitimate legislative goal. Jimenez v.
Weinberger, 417 U.S. 628, 636 (1974); U.S. Dept. of
Agriculture v. Murry, 413 U.S. 508, 513-514 (1973).
Unlike the statutory scheme in Vlandis, 412 U.S., at
449, the Social Security Act does not purport to speak
in terms of the bona fides of the parties to a
marriage, but then make plainly relevant evidence of
such bona fides inadmissible. . . . [T]he benefits
here are available upon compliance with an objective

32
 No. 2012AP2578

criterion, one which the Legislature considered to
bear a sufficiently close nexus with underlying policy
objectives to be used as the test for eligibility.
Id. at 771-72 (quoting U.S. Dep't of Agric. v. Moreno, 413 U.S.

528, 534 (1973)).

¶58 Further, the Court expressed concern that "extension

of the holdings of Stanley, Vlandis, and LaFleur to the

eligibility requirement . . . would turn the doctrine of those

cases into a virtual engine of destruction for countless

legislative judgments which have heretofore been thought wholly
consistent with the Fifth and Fourteenth Amendments to the

Constitution." Id. at 772.

¶59 Pivoting from the irrebuttable presumption argument,

the Court articulated an alternative standard for government

benefits classifications:

The question is whether Congress, its concern having
been reasonably aroused by the possibility of an abuse
which it legitimately desired to avoid, could
rationally have concluded both that a particular
limitation or qualification would protect against its
occurrence, and that the expense and other
difficulties of individual determinations justified
the inherent imprecision of a prophylactic rule.
Id. at 777. Distinguishing "programs for the distribution of

social insurance benefits" from "criminal prosecutions, or the

custody proceedings at issue in Stanley v. Illinois," the Court

concluded by observing that benefits "programs do not involve

affirmative Government action which seriously curtails important

liberties cognizable under the Constitution." Id. at 785.

¶60 Just as Congress permissibly painted with a broad
brush in excluding certain widows and stepchildren from Social

33
 No. 2012AP2578

Security benefits under the duration-of-relationship

requirement, Wisconsin's legislature has created an expansive

prohibition to eliminate fraud against the Wisconsin Shares

program. Only those who satisfy the objective criterion of not

having a conviction for public benefits fraud are eligible to

receive the benefit of payments through Wisconsin Shares.

Blake's is not a case in which the legislature has declared

certain facts about her to be true and then denied her any

opportunity to present evidence disproving the truth of the

State's declaration. Instead, the State merely has rendered

ineligible for payment through Wisconsin Shares people who share

an objective characteristic——a conviction for an offense

pertaining to public benefits fraud. As discussed at length

already, that classification bears a rational relationship to

the reasonable legislative objective of preventing fraud in the

Wisconsin Shares program.

IV. CONCLUSION

¶61 Each of the constitutional claims that Blake raises in
this case ultimately requires the court to look to the interest

that the legislature sought to advance when it revised the

childcare provider laws. The legislature enacted Act 76 shortly

after investigative reporting revealed rampant abuse within the

Wisconsin Shares program. Among other reasonable objectives,

Act 76 advances the goal of reducing and eliminating systemic

fraud. Thus, Act 76's creation of a prohibition on eligibility

for licensure and certification for people convicted of an
"offense involving fraudulent activity as a participant in"

34
 No. 2012AP2578

various public benefits programs rationally relates to this

fraud reduction objective. No doubt, the sweeping nature of the

law creates harsh results for people such as Blake who have a

conviction on their record that is distant in time and involved

a relatively small amount of money. Nevertheless, the law

rationally advances the legislature's fraud reduction objective

in a manner that outweighs any interest that Blake might have in

eligibility to receive payments through Wisconsin Shares. It is

for the legislature, not the court, to reexamine the policy

determinations incorporated into this statute. Because we

conclude that Wis. Stat. § 48.685(5)(br)5. denies Blake neither

due process nor equal protection of the law, we affirm the

decision of the court of appeals.

By the Court.—The decision of the court of appeals is

affirmed.

35
 No. 2012AP2578.ssa

¶62 SHIRLEY S. ABRAHAMSON, J. (dissenting). At issue in

the instant case is the constitutionality of Wis. Stat.

§ 48.685(5)(br)5. (2013-14),1 which permanently bars individuals

convicted of, among other things, "[a]n offense involving

fraudulent activity as a participant" in various federal and

Wisconsin welfare programs from becoming a state certified

childcare provider.

¶63 The consequences of being unable to become a certified

childcare provider are substantial. Childcare providers who

provide care for four or more children or for children over the

age of seven must be certified.2 Only certified childcare

providers are eligible to provide services to individuals in the

Wisconsin Shares program, a childcare subsidy program for low-

income individuals.

¶64 As a result of Wis. Stat. § 48.685(5)(br)5., Sonja

Blake is permanently barred from being a certified childcare

provider. The basis for the permanent bar is Sonja Blake's 1986

misdemeanor conviction for obtaining $294 in benefits to which
she was not entitled through a federal public assistance program

unrelated to childcare. Sonja Blake obtained the $294 in excess

benefits by failing to report as assets a motorcycle and a car

that did not run.

1
All subsequent references to the Wisconsin Statutes are to
the 2013-14 version unless otherwise indicated.
2
See Wis. Stat. § 48.65; Brown v. DCF, 2012 WI App 61, ¶40,
341 Wis. 2d 449, 819 N.W.2d 827.

1
 No. 2012AP2578.ssa

¶65 Blake satisfied the requirements of her conviction.

She served two years' probation and paid $294 in restitution.

Since 1986 she has had no trouble with the law. She has been a

Wisconsin certified childcare provider for nearly a decade. She

has never faced complaints of fraud, abuse, or neglect.3

¶66 This personal history is strong evidence of Blake's

rehabilitation and that she is no danger to the public.

Empirical evidence demonstrates that the risk of recidivism

declines as time passes.4 Wisconsin's public policy favors

rehabilitation of offenders and their reintegration into

society.5 Nevertheless, after the enactment of Wis. Stat.

§ 48.685(5)(br)5. (2009 Wis. Act 76), Racine County, which had

3
Blake's certification was revoked in 2006 and reinstated
in 2008. See majority op., ¶¶14-15.
4
See, e.g., Alfred Blumstein & Kiminori Nakamura,
"Redemption" in an Era of Widespread Criminal Background Checks,
U.S. Dep't of Justice, Nat'l Inst. of Justice (June 2009),
http://www.nij.gov/journals/263/pages/redemption.aspx ("It is
well known——and widely accepted by criminologists and
practitioners alike——that recidivism declines steadily with time
clean.").
5
Wisconsin case law recognizes that a goal of sentencing is
imposing the minimum sentence consistent with "the
rehabilitative needs of the defendant." See State v. Gallion,
2004 WI 42, ¶44, 270 Wis. 2d 535, 678 N.W.2d 197 (quotation
omitted); see also State v. Paske, 163 Wis. 2d 52, 62, 471
N.W.2d 55 (1991) ("The three primary factors which a sentencing
judge must consider are the gravity of the offense, the
character and rehabilitative needs of the defendant, and the
need to protect the public."); Wis. Dep't of Corrections,
Reentry at 2 (Mar. 2012),
http://doc.wi.gov/Documents/WEB/ABOUT/OVERVIEW/Reentry%20Unit/Re
entry%20Communications%20Document%202012.pdf (stating that the
Wisconsin Department of Corrections "strives to rehabilitate and
successfully reintegrate [offenders] into society").

2
 No. 2012AP2578.ssa

previously granted and renewed Blake's childcare certification,

permanently revoked her certification.

¶67 Although the majority opinion recognizes that "the

sweeping nature" of Wis. Stat. § 48.685(5)(br)5. "creates harsh

results for people such as Blake who have a

conviction . . . that is distant in time and involved a

relatively small amount of money," the majority opinion holds

that § 48.685(5)(br)5. does not violate equal protection,

substantive due process, or the irrebuttable presumption

doctrine.6

¶68 I disagree with the majority opinion for two reasons.

¶69 First, whether analyzed under the equal protection or

the due process clauses of the United States and Wisconsin

Constitutions, Wis. Stat. § 48.685(5)(br)5. is not rationally

related to legitimate state purposes. Although rational basis

scrutiny may be deferential, it is not "toothless."7

¶70 The permanent bar against obtaining a childcare

certification for individuals convicted of an "offense involving
fraud as a participant" in various public assistance programs

set forth in Wis. Stat. § 48.685(5)(br)5. is not rationally

related to the purposes of "preventing fraud against Wisconsin

6
See majority op., ¶61.
7
Schweiker v. Wilson, 450 U.S. 221, 234 (1981) (quoting
Matthews v. Lucas, 427 U.S. 495, 510 (1976)) (internal quotation
marks omitted)).

3
 No. 2012AP2578.ssa

Shares" or "protecting children, protecting the families of

children, and protecting private employers in childcare."8

¶71 Because I would hold that Wis. Stat. § 48.685(5)(br)5.

is unconstitutional under the equal protection and due process

clauses, I would reverse the decision of the court of appeals in

the instant case and overrule the court of appeals' decision in

Brown v. Department of Children & Families, 2012 WI App 61, 341

Wis. 2d 449, ¶40, N.W.2d 827.9

¶72 Second, the majority opinion's decision upholding the

draconian sanction imposed by Wis. Stat. § 48.685(5)(br)5.

raises the constitutional issue of whether the statute is an

unconstitutional ex post facto law. A statutory interpretation

that does not raise constitutional issues is preferable to one

that does. See Jankowski v. Milwaukee Cnty., 104 Wis. 2d 431,

439, 312 N.W.2d 45 (1981) ("'[S]tatutes should be construed so

as to avoid constitutional objections.'") (quoting Niagara of

Wis. Paper Corp. v. DNR, 84 Wis. 2d 32, 50, 268 N.W.2d 153

(1978)).

8
See majority op., ¶¶39, 41, 60.
9
Brown upheld Wis. Stat. § 48.685(5)(br)5. against a
constitutional challenge somewhat similar to that raised in the
instant case. Brown concluded that Wis. Stat. § 48.685(5)(br)5.
was constitutional under the equal protection and due process
clauses of the United States and Wisconsin Constitutions. See
Brown, 341 Wis. 2d 449, ¶¶33-34, 40.

Although I limit my conclusion to Wis. Stat.
§ 48.685(5)(br)5., as does the majority opinion, my conclusion
may apply with equal force to other parts of the classification
system created by Wis. Stat. § 48.685(4m)(a)-(b) and (5)(br).

4
 No. 2012AP2578.ssa

¶73 For the reasons set forth, I dissent and write

separately.

I

¶74 I disagree with the majority opinion's analysis and

conclusions under both the equal protection and due process

clauses that Wis. Stat. § 48.685(5)(br)5. is rationally related

to a legitimate state purpose.

¶75 I begin with the equal protection clause. Under the

equal protection clause, the legislature may not adopt arbitrary

or irrational classifications.10

¶76 Wisconsin Stat. § 48.685(4m)(a)-(b) and (5)(br)

classify various felony and misdemeanor offenses into three

categories.

¶77 Each of the three categories of offenses created by

Wis. Stat. § 48.685(4m)(a)-(b) and (5)(br) has a different

consequence for childcare certification. These three categories

are: (1) offenses that result in a permanent bar from obtaining

a childcare certification with no opportunity to show
rehabilitation; (2) offenses that result in a bar for five years

after the completion of the sentence (including probation,

parole, or extended supervision); and (3) offenses that result

in a bar that may be lifted at any time upon a showing of

rehabilitation.

10
See State v. Burgess, 2003 WI 71, ¶32, 262 Wis. 2d 354,
665 N.W.2d 124; Aicher ex rel. LaBarge v. Wis. Patients Comp.
Fund, 2000 WI 98, ¶57, 237 Wis. 2d 99, 613 N.W.2d 849.

5
 No. 2012AP2578.ssa

¶78 It is difficult to discern what, if any, organizing

principles the legislature followed in classifying which

offenses fall into each of these three categories, let alone

their relationship to the legislative purposes of "preventing

fraud against Wisconsin Shares"11 or "protecting children,

protecting the families of children, and protecting private

employers in childcare."12

¶79 For example, some fraudulent activities result in a

permanent bar. Individuals convicted of "an offense involving

fraudulent activity as a participant" in various public

assistance programs——even fraudulent activity in trifling

amounts——are permanently barred from obtaining a childcare

certification.13 Not all crimes of dishonesty or fraud, however,

result in a permanent bar from obtaining a childcare

certification. Rather, offenses like making fake IDs,

impersonating government agents, or forging prescriptions result

in only a five year bar from obtaining a childcare

certification.
¶80 Likewise, although convictions for several serious

felonies like first degree intentional homicide, kidnapping, and

sexual assault result in a permanent bar from obtaining a

childcare certification, not all serious felonies result in a

permanent bar. Homicide by intoxicated use of a vehicle or

11
See majority op., ¶¶41, 60.
12
See majority op., ¶39.
13
See Wis. Stat. § 48.685(5)(br)5.

6
 No. 2012AP2578.ssa

firearm or providing alcoholic beverages to children resulting

in death or great bodily harm result in a five-year bar.

Offenses like sexual exploitation by a therapist, human

trafficking, or misdemeanor neglect of a child merely result in

a bar against obtaining a certification that may be lifted upon

a showing of rehabilitation. Yet these offenses pose serious

danger to children or families of children.

¶81 These inconsistencies demonstrate that the three-part

classification system in Wis. Stat. § 48.685 is not rationally

related to the State's purposes of "preventing fraud against

Wisconsin Shares"14 or "protecting children, protecting the

families of children, and protecting private employers in

childcare."15

¶82 The State argues that analyzing the rationality of the

three-part classification system adopted by the legislature is

misguided. According to the State, the only relevant

classification to be examined in the instant case is that of

individuals convicted of offenses involving fraudulent activity
as recipients in various public assistance programs. In the

State's view, all persons, including Blake, convicted of

offenses involving fraudulent activity as recipients in public

benefits programs are treated the same.

¶83 The majority opinion adopts this view without

analysis, explanation, or citation to authority, stating: "The

14
See majority op., ¶¶41, 60.
15
See majority op., ¶39.

7
 No. 2012AP2578.ssa

class we evaluate for equal protection purposes consists of

people permanently ineligible for licensure or certification on

the grounds that their record contains a conviction for '[a]n

offense involving fraudulent activity as a participant' in one

of the various government benefits programs delineated in" Wis.

Stat. § 48.685(5)(br)5.16

¶84 By evaluating only the class of individuals

permanently barred from being certified childcare providers on

account of convictions for offenses involving fraudulent

activity as participants in a public assistance program, the

majority opinion's review is "a mere tautological recognition of

the fact that [the legislature] did what it intended to do."

U.S. R.R. Retirement Bd. v. Fritz, 449 U.S. 166, 180 (1980)

(Stevens, J., concurring in the judgment).

¶85 "The Equal Protection Clause requires more of a state

law than nondiscriminatory application within the class it

establishes."17 I conclude that "[t]his Court . . . has an

obligation to view the classificatory system, in an effort to
determine whether the disparate treatment accorded the affected

classes is arbitrary."18

¶86 Looking to the entire classification system in the

statute, I conclude that the three categories created by Wis.

16
See majority op., ¶37; see also majority op., ¶46.
17
See Rinaldi v. Yeager, 384 U.S. 305, 308 (1966).
18
Logan v. Zimmerman Brush Co., 455 U.S. 422, 441 (1982)
(Blackmun, J., writing separately joined by three justices)
(emphasis in original).

8
 No. 2012AP2578.ssa

Stat. § 48.685 are irrational and arbitrary; they are not based

upon substantial distinctions that make the classes really

different from one another, and the classifications adopted are

not germane to the purposes of the law.19

¶87 The majority opinion concludes that Wis. Stat.

§ 48.685(5)(br)5. and the permanent bar for individuals

convicted of public assistance fraud is rational because "[t]he

legislature . . . could reasonably determine that creating

different outcomes for people with different underlying

convictions would most efficaciously advance the objective of

preventing fraud against Wisconsin Shares. Because public

benefits fraud is the particular type of fraud that the

legislature sought to prevent, the legislature could reasonably

determine that public benefits fraud offenses warranted a

stricter prohibition than other underlying convictions."20

¶88 This conclusion, however, ignores three facts

demonstrating that Wis. Stat. § 48.685(5)(br)5.'s permanent bar

on obtaining a childcare certification for individuals convicted
of public assistance fraud does not advance the purpose of

"eliminating fraudulent activity in the Wisconsin Shares

program."21

¶89 First, childcare providers who provide care for four

or more children or for children over the age of seven must be

19
See Aicher, 237 Wis. 2d 99, ¶58.
20
See majority op., ¶41 (emphasis in original).
21
See majority op., ¶42.

9
 No. 2012AP2578.ssa

certified,22 regardless of whether those providers receive funds

from Wisconsin Shares. More than half of the facilities whose

employees must be certified childcare providers receive no money

from Wisconsin Shares whatsoever.23 In other words, individuals

like Blake are barred from ever working for a childcare provider

whose employees must be certified, even though working for that

childcare provider might not present an opportunity to defraud

Wisconsin Shares.

¶90 Second, the permanent bar on being a certified

childcare provider based on public assistance fraud is not

limited to individuals who defrauded Wisconsin Shares. Instead,

individuals (like Blake) who 30 years ago illegally obtained a

small amount of benefits from a federal program not related to

childcare24 are subject to the same permanent bar received by

individuals who illegally obtained significant amounts of

benefits from Wisconsin Shares.25

22
See Brown, 341 Wis. 2d 449, ¶40.
23
See Pet'r's App. at 032.
24
See Wis. Stat. § 48.685(5)(br)5. (barring individuals
convicted of "[a]n offense involving fraudulent activity as a
participant in the Wisconsin Works program" as well as federal
programs like AFDC, food stamps, or other state programs like
Badger Care).
25
See, e.g., Raquel Rutledge, Private Fortune, Public Cash,
Milwaukee J. Sentinel (Aug. 31, 2009), available at
http://www.jsonline.com/watchdog/watchdogreports/56121342.html
(describing a woman who received nearly $3 million from the
Wisconsin Shares program over more than a decade).

10
 No. 2012AP2578.ssa

¶91 Third, the permanent bar against obtaining a childcare

certification for individuals convicted of offenses involving

fraudulent activity in a public benefits program does not apply

to bookkeepers for regulated childcare facilities, or to other

individuals who may have access to Wisconsin Shares' funds.

Given that Wis. Stat. § 48.685(5)(br)5.'s purpose is eliminating

fraud in the Wisconsin Shares program, prohibiting individuals

from working as caregivers while allowing individuals to work as

bookkeepers for childcare facilities receiving Wisconsin Shares

funds is not rationally related to the legislative purpose.

¶92 Viewing the entire classification system in the

statute, I conclude that the classifications created by Wis.

Stat. § 48.685 are irrational and arbitrary. Accordingly I

would hold that Wis. Stat. § 48.685(5)(br)5. violates the equal

protection clauses of the United States and Wisconsin

Constitutions.

¶93 Now I turn to the due process clause. I conclude that

Wis. Stat. § 48.685(5)(br)5. is unconstitutional under the due
process clause because the statute shocks the conscience and, as

explained above, is not rationally related to a legitimate state

purpose.

¶94 As the majority opinion states, the due process clause

protects "'against governmental action that either shocks the

11
 No. 2012AP2578.ssa

conscience or interferes with rights implicit in the concept of

ordered liberty.'"26

¶95 Simply put, Wis. Stat. § 48.685(5)(br)5. shocks the

conscience.

¶96 The means by which the legislature chose to further

its legitimate interest in protecting the public fisc and

deterring fraud against Wisconsin Shares is arbitrary and smacks

of retribution. The permanent bar on obtaining a childcare

certification imposed by Wis. Stat. § 48.685(5)(br)5. is a

draconian and disproportionate deterrent for the kind of fraud

the legislature sought to prevent.

¶97 Furthermore, Wis. Stat. § 48.685(5)(br)5. is so broad

that it arbitrarily, irrationally, and significantly impedes the

ability of law-abiding people like Blake to earn a living in

their chosen profession, childcare. The permanent bar is based

on a 30-year-old conviction for obtaining $294 in excess

benefits under a federal public assistance program totally

unrelated to Wisconsin Shares——the program which the legislature
sought to protect by enacting Wis. Stat. § 48.685(5)(br)5. This

result should shock the conscience. It does mine.

¶98 "[T]he right to work for a living in the common

occupations of the community is the very essence of the personal

freedom and opportunity that it was the purpose of the

[Fourteenth] Amendment to secure." Truax v. Raich, 239 U.S. 33,

26
Majority op., ¶47 (quoting Dane Cnty. DHS v. P.P., 2005
WI 32, ¶19, 279 Wis. 2d 169, 694 N.W.2d 344) (internal
alterations and quotation marks omitted).

12
 No. 2012AP2578.ssa

41 (1915); see also Schware v. Bd. of Bar Exam'rs, 353 U.S. 232,

239-39 (1957); majority op., ¶49 n.18.

¶99 In my view, Wis. Stat. § 48.685(5)(br)5. is so

"'brutal' and 'offensive'" that it does not "comport with

traditional ideas of fair play and decency . . . ."27

Accordingly, Wis. Stat. § 48.685(5)(br)5. violates substantive

due process.

¶100 The majority opinion recognizes, in effect, the

disproportionate, draconian, and "brutal" nature of Wis. Stat.

§ 48.685(5)(br)5. As the majority opinion puts it, "the

sweeping nature" of Wis. Stat. § 48.685(5)(br)5. "creates harsh

results for people such as Blake who have a

conviction . . . that is distant in time and involved a

relatively small amount of money."28

¶101 Reinforcing this point, both this court and the court

of appeals have previously recognized the harshness of Wis.

Stat. § 48.684(5)(br)5.'s permanent bar on obtaining a childcare

certification for individuals convicted of offenses "involving
fraudulent activity as a participant in" public assistance

programs.29

27
See Breithaupt v. Abram, 352 U.S. 432, 435 (1957)
(quoting Rochin v. California, 342 U.S. 165, 174 (1952)).
28
See majority op., ¶61.
29
See, e.g., Jamerson v. DCF, 2013 WI 7, ¶¶2 & n.3, 72, 345
Wis. 2d 205, 824 N.W.2d 822 (twice describing the permanent bar
on obtaining a childcare certification as a "harsh penalty");
Brown, 341 Wis. 2d 449, ¶40 (noting that the plaintiff was
"undoubtedly correct in highlighting the harshness of the new
law . . . .").

13
 No. 2012AP2578.ssa

II

¶102 Recognizing the harshness of Wis. Stat.

§ 48.685(5)(br)5. but concluding that the law is nevertheless

constitutional under the equal protection and due process

clauses raises a further question: Whether the law is so

"harsh" and "punitive" that it violates the ex post facto

clauses of the United States and Wisconsin Constitutions. The

parties have not briefed or argued this point. Without briefs

or argument, I discuss but do not decide this issue.

¶103 One commentator has argued that the retroactive and

permanent punitive effect of Wis. Stat. § 48.685(5)(br)5.

violates the ex post facto clause. See Courtney Lanz, Comment,

Caregivers Uncared For: How to Fix Wisconsin's Ex Post Facto

Caregiver Law, 2013 Wis. L. Rev. 1067, 1081 (asserting that the

"punitive effect" of Wis. Stat. § 48.685(5)(br)5. "is sufficient

to outweigh any stated civil intent and thus violates the Ex

Post Facto clause.").

¶104 Relevant to the instant case, the ex post facto clause
prohibits laws making "more burdensome the punishment for a

crime, after its commission . . . ."30

¶105 Without analysis of Wis. Stat. § 48.685(5)(br)5. it

appears that the statute is a regulatory civil statute. A

regulatory civil statute nonetheless may violate the ex post

facto clause if it is "'so punitive either in purpose or effect'

30
State v. Thiel, 188 Wis. 2d 695, 703, 524 N.W.2d 641
(1994) (internal quotation marks and alterations omitted)
(quoting Collins v. Youngblood, 497 U.S. 37, 42 (1990)).

14
 No. 2012AP2578.ssa

as to 'transfor[m] what was clearly intended as a civil remedy

into a criminal penalty.'"31

¶106 For several reasons, the permanent bar on obtaining a

childcare certification set forth in Wis. Stat.

§ 48.685(5)(br)5. may be so punitive in purpose and effect that

the otherwise regulatory civil statute may be transformed into a

criminal penalty.

¶107 First, Wis. Stat. § 48.685(5)(br)5. permanently bars

individuals convicted of "offense[s] involving fraudulent

activity as a participant" in various social welfare programs

from obtaining a childcare certification and prohibits

individuals from demonstrating rehabilitation.32 In this

respect, the law appears to be punitive——it imposes a sanction

that cannot be lifted no matter the circumstances.

¶108 Second, the permanent bar (with no opportunity to show

rehabilitation) imposed by Wis. Stat. § 48.685(5)(br)5. applies

regardless of when the "offense involving fraudulent activity"

occurred, no matter how minor the fraud was, and no matter which

31
See In re Commitment of Rachel, 2002 WI 81, ¶33, 254
Wis. 2d 215, 647 N.W.2d 762 (quoting Hudson v. United States,
522 U.S. 93, 99 (1996)) (alteration in Rachel).

In analyzing whether a statute violates the ex post facto
clause, courts apply the "intent-effects" test derived from
Hudson and repeated in our cases. See Rachel, 254 Wis. 2d 215,
¶39; State v. Scruggs, 2015 WI App 88, ¶7, 365 Wis. 2d 568, 872
N.W.2d 146 (citation omitted).
32
See Wis. Stat. § 48.685(5)(br) ("[N]o person who has been
convicted . . . may be permitted to demonstrate that he or she
has been rehabilitated."); majority op., ¶8.

15
 No. 2012AP2578.ssa

public benefits program was defrauded. Thus, an individual like

Blake, who committed an offense and was convicted 30 years ago

of obtaining $294 by fraud from a federal program unrelated to

childcare and unrelated to the Wisconsin Shares program, is

treated identically to an individual who recently stole millions

from Wisconsin Shares.33 Imposing the same permanent bar against

individuals under Blake's circumstances appears, in light of the

legislature's purposes of protecting children and families and

preventing fraud against Wisconsin Shares, punitive.

¶109 Third, Wis. Stat. § 48.685(5)(br)5. appears to further

"the traditional aims of punishment——retribution and

deterrence . . . ," factors used to identify ex post facto

laws.34 As stated before, Wis. Stat. § 48.685(5)(br)5. appears

retributive because it gives individuals convicted of

"offense[s] involving fraudulent activity as a participant" in

public benefits programs no opportunity to demonstrate

rehabilitation and imposes the same sanction regardless of when

the fraud occurred, what program was defrauded, and how minimal
or serious the fraud was. As the majority opinion states, this

"strict prohibition" is tied to the legislative purposes of

"prevent[ing] fraud against Wisconsin Shares [and] also

33
See, e.g., Rutledge, supra note 25 (describing a woman
who received nearly $3 million from the Wisconsin Shares program
over more than a decade).
34
Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168 (1963);
see also Commitment of Rachel, 254 Wis. 2d 215, ¶33 (quoting
this factor and others identified in Mendoza-Martinez).

16
 No. 2012AP2578.ssa

deter[ring] other fraudulent conduct . . . ."35 General and

specific deterrence are traditional aims of punishment.

¶110 Finally, the circumstances under which Wis. Stat.

§ 48.685(5)(br)5. was adopted also support the conclusion that

the law may be punitive and retributive. Wisconsin Stat.

§ 48.685(5)(br)5. was adopted by the legislature after an

investigation by the Milwaukee Journal Sentinel uncovered

significant fraud against the Wisconsin Shares program.36 The

bill creating Wis. Stat. § 48.685(5)(br)5. was introduced on

October 2, 2009 and passed both houses of the legislature

unanimously a little more than a month later. This haste

suggests that the legislature's "sudden and strong passions" may

have been aroused by fraud uncovered against the Wisconsin

Shares program. One purpose of the ex post facto clause is to

prevent "sudden and strong passions" from transforming well-

intentioned regulations into arbitrary and punitive

legislation.37

¶111 The prohibition on ex post facto laws stems from basic
considerations of fairness and fair warning.38 There is no

fairness or fair warning here. Wisconsin Stat.

§ 48.685(5)(br)5. permanently bars individuals like Blake from

35
Majority op., ¶50.
36
See majority op., ¶¶11, 51.
37
See Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 137-38
(1810).
38
See State v. Kurzawa, 180 Wis. 2d 502, 513, 509
N.W.2d 712 (1994).

17
 No. 2012AP2578.ssa

ever obtaining a childcare certification based on a decades-old

misdemeanor conviction. Imposing a draconian penalty decades

after a misdemeanor conviction without notice to the individual

at the time of conviction raises the question of whether Wis.

Stat. § 48.685(5)(br)5. makes "more burdensome the punishment

for a crime, after its commission . . . ."39

¶112 Under the circumstances of the instant case and the

interpretation adopted by the majority opinion, the majority has

exposed the application of Wis. Stat. § 48.685(5)(br)5. to Blake

to a challenge as an unconstitutional ex post facto law.

¶113 For the reasons set forth, I dissent and write

separately.

¶114 I am authorized to state that Justice ANN WALSH

BRADLEY joins this opinion.

39
Thiel, 188 Wis. 2d at 703 (internal quotation marks and
alterations omitted) (quoting Collins v. Youngblood, 497 U.S.
37, 42 (1990)).

18
 No. 2012AP2578.ssa

1