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JUSTTCE
SUSAN L. CARLSON
SUPREME COURT CLERK
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
CHRISTAL FIELDS,
No. 95024-5
Petitioner,
V. EN BANC
STATE OF WASHINGTON
DEPARTMENT OF EARLY LEARNING Filed: FFR 2 I 2011
Respondent.
YU, J. — This case concerns the extent to which a criminal record may
preclude a person from supporting herself through lawful employment in her
chosen field. In 1988, petitioner Christal Fields pleaded guilty to attempted second
degree robbery for trying to snatch a woman's purse. As a result. Fields was
permanently disqualified from working at any licensed childcare facility in
Washington pursuant to regulations promulgated by respondent Department of
Early Learning (DEL). Fields raises state and federal constitutional challenges to
these regulations, both facially and as applied to her. We decline to reach Fields's
facial challenges and state constitutional arguments. However, we hold that DLL's
Fields V. Dep't ofEarly Learning, No. 95024-5
regulations prohibiting any individualized consideration of Fields's qualifications
at the administrative level violate Fields's federal right to procedural due process
as applied. We therefore reverse the Court of Appeals and remand for further
administrative proceedings consistent with this opinion.
Factual Background and Procedural History
The relevant factual background as recounted by the Court of Appeals is
undisputed:
Fields grew up in a dysfunctional home environment with
rampant drug abuse. At the age of 16, she became homeless and
turned to prostitution and drugs. In 1988[, at age 22], Fields
attempted to snatch a purse to help pay for her drug habit. She
pleaded guilty to attempted second degree robbery.
Fields continued to lead a troubled life until 2006 when she
turned her life around by successfully completing a drug program.
She has been clean and sober ever since. For two years she resided in
group housing. During this time, she was promoted to resident
manager because of her responsibility and commitment to working
with others. Many support letters from employers and coworkers
since then attest to Fields's character.
On February 6, 2013, Fields submitted a portable background
check to DEL. Based on the information Fields provided, DEL
cleared Fields to work at a childcare facility. She worked in that
childcare facility for six months after she received her background
clearance. Fields loves working with children and has taken
advantage of every available training opportunity to improve her
skills.
A local news report on childcare centers brought Fields's
undisclosed criminal history to DEL's attention.
Fields V. Dep't ofEarly Learning, No. 95024-5
Fields V. Dep't ofEarly Learning, No. 75406-8-1, slip op. at 1-2(Wash. Ct. App.
Aug. 21, 2017)(unpublished)(footnote omitted), http://www.courts.wa.gov/
opinions/pdf/754068.pdf.
The licensing supervisor for DEL sent a notice of disqualification to Fields.
The notice informed Fields that she was permanently disqualified, effective
immediately,"meaning that you cannot work with or have unsupervised access to
child care children." Clerk's Papers at 49. Fields appealed to the Office of
Administrative Hearings(GAR). Fields also requested reconsideration by the
licensing supervisor, pointing to both factual inaccuracies in the notice of
disqualification and evidence of her rehabilitation. It does not appear from the
record that Fields's request for reconsideration has been considered on its merits.
On appeal, DEL moved for summary judgment on the sole basis that in
accordance with former WAG XXX-XX-XXXX(1)(2015),"the appellant must be
disqualified from having unsupervised access to children or obtaining a [childcare]
license under [former] WAG XXX-XX-XXXX(1)[(2015)] due to her 1988 conviction
of attempted second degree robbery." Id. at 140. Fields did not challenge the fact
of her 1988 conviction but contended that the disqualification regulations violate
her constitutional right to due process oflaw, both facially and as applied. OAH
determined that such questions were beyond the scope of its review and therefore
granted summary judgment to DEL.
Fields V. Dep't ofEarly Learning, No. 95024-5
Fields petitioned for review in superior court, again arguing that the
disqualification regulations violate her state and federal rights to procedural and
substantive due process, both facially and as applied. DEL opposed Fields's
arguments on the merits. The superior court dismissed the petition for review,
determining that Fields had not met her burden of proving that the disqualification
regulations are unconstitutional. The Court of Appeals affirmed in an unpublished
opinion, and we granted Fields's petition for review. Fields v. Dep't ofEarly
Learning, 189 Wn.2d 1031 (2018).
Issue
Are DHL's permanent disqualification regulations unconstitutional, either
facially or as applied to Fields?
Analysis
Fields contends that she is entitled to relief because "[t]he order, or the
statute or rule on which the order is based, is in violation of constitutional
provisions on its face or as applied," RCW 34.05.570(3)(a). Specifically, she
raises challenges based on the due process clauses of the state and federal
constitutions, both facially and as applied.' U.S. CONST, amend. XIV, § 1; Wash.
Const, art. I, § 3. We review the constitutionality of agency rules de novo, using
• Amid also raise the state equal protection clause and equal rights amendment. Wash.
Const, art. I, § 12, art. XXXI. We decline to address these arguments because they are briefed
only by amid and are unnecessary to the just resolution of this case.
Fields V. Dep't ofEarly Learning, No. 95024-5
the same standards that we use when reviewing the constitutionality of statutes.
Amunrud v. Bd. ofAppeals, 158 Wn.2d 208, 215, 143 P.3d 571 (2006). "Statutes
are presumed to be constitutional, and the burden to show unconstitutionality is on
the challenger." Id. The challenger can meet this burden only "if argument and
research show that there is no reasonable doubt that the statute violates the
constitution." Id.
We hold that DEL's regulations do violate federal procedural due process as
applied to Fields.^ We therefore reverse the Court of Appeals.
A. Background information regarding DEL
At the time of Fields's permanent disqualification, DEL was an
administrative agency within the executive branch that the legislature created in
response to "a shortage of high quality services and supports for children ages birth
to three and their parents and caregivers." Former RCW 43.215.005(2)(c)(2010).
In general,"[t]he primary duties of the department [were] to implement state early
learning policy and to coordinate, consolidate, and integrate child care and early
learning programs in order to administer programs and funding as efficiently as
possible." Former RCW 43.215.020(2)(2016).
^ We decline to address Fields's state constitutional arguments because the briefing on
those arguments is insufficient "to insure that. . . our decision will be made for well founded
legal reasons." State v. Gunwall, 106 Wn.2d 54, 62-63, 720 P.2d 808 (1986). We also decline to
address her federal substantive and facial due process arguments because they are unnecessary to
the resolution of this case.
Fields V. Dep't ofEarly Learning, No. 95024-5
Effective July 1, 2018, DEL became part of the newly created Department of
Children, Youth, and Families(DCYF). Laws of 2017, 3d Spec. Sess., ch. 6.
However, Fields's disqualification was effected by DEL, based solely on the DEL
regulations then in effect. Given this procedural history, we decline to speculate
on how a factually similar case would (or should) be handled by DCYF in the
future.^
The legislature specifically tasked DEL with administering a licensing
program for childcare facilities. Former RCW 43.215.200(3)-(4)(2015). In order
to receive and maintain a license to operate, childcare facilities were required to
comply with applicable statutes and DEL regulations and were subject to regular
inspections and mandatory reporting requirements. Operating an unlicensed
childcare facility is a misdemeanor. Former RCW 43.215.340(2006), recodified
fl.yRCW 43.216.365.
As part ofthe licensing program, DEL is required to run background checks
on anyone who wants to work in a childcare facility in order to determine whether
^ For the first time at oral argument, DEL contended that if Fields were to obtain a
certificate of restoration of opportunity(CROP)pursuant to chapter 9.97 RCW,she would be
entitled to an individualized determination by DCYF, making a decision on her constitutional
arguments unnecessary. Wash. Supreme Court oral argument. Fields v. Dep't ofEarly Learning,
No. 95024-5(May 8, 2018), at 31 min., 48 sec., audio recording by TVW,Washington State's
Public Affairs Network, http://www.tvw.org. After reviewing supplemental briefing from the
parties on this issue, we decline to address its merits. Neither DCYF nor the CROP statute
existed when Fields was permanently disqualified, and any effect a CROP might have on
Fields's situation in the future is entirely hypothetical at this time.
Fields V. Dep't ofEarly Learning, No. 95024-5
the "individual is of appropriate character, suitability, and competence to provide
child care and early learning services to children." Former RCW 43.215.215(1)
(2011). Pursuant to its rule making authority, DEL adopted administrative
regulations for running these background checks.
DHL's regulations provide that "[a] subject individual who has a background
containing any ofthe permanent convictions on the director's list, [former] WAC
XXX-XX-XXXX(1), will be permanently disqualified from providing licensed child
care, caring for children or having unsupervised access to children in child care."
Former WAC XXX-XX-XXXX(1), recodified as WAC XXX-XX-XXXX. This "director's
list" includes 50 types of permanently disqualifying convictions, one of which is
"[r]obbery." Former WAC XXX-XX-XXXX, recoc/zyzet/aj WAC XXX-XX-XXXX. For
purposes of the director's list, Fields's conviction for attempted second degree
robbery is treated in the same manner as a completed offense and is therefore
permanently disqualifying. Former WAC XXX-XX-XXXX(l)(c)(2015), recodified as
WAC XXX-XX-XXXX.
A person with a permanently disqualifying conviction has no recourse at the
administrative level. DEL regulations prohibit any administrative decision-maker
from finding any regulation invalid or unenforceable and further prohibit
reconsideration of permanent disqualifications on a case-by-case basis. WAC 170-
Fields V. Dep't ofEarly Learning, No. 95024-5
03-0230(1); former WAC XXX-XX-XXXX(5)(2015), recodified as AC 110-06-
0115.
B. Fields does properly raise a procedural due process challenge
The due process clause of the Fourteenth Amendment provides that no state
may "deprive any person of life, liberty, or property, without due process of law."
U.S. Const, amend. XIV,§ 1. Fields's right to pursue the lawful career of her
choice without arbitrary interference by the State is a well-established "liberty
interest protected by the due process clause." Amunrud, 158 Wn.2d at 219. The
right to due process has both procedural and substantive components. Id. at 216.
DEL, however, contends that Fields's due process claim is substantive only, with
no true procedural component. We disagree. While Fields does raise a substantive
challenge, she also raises a procedural one.
"[PJrocedural due process requires that an individual receive notice of the
deprivation and an opportunity to be heard to guard against erroneous deprivation"
of a protected interest. Id. To determine whether a particular procedure for
providing notice and an opportunity to be heard is constitutionally adequate, we
must assess the risk of erroneous deprivation in light of the competing interests at
stake. Mathews v. Eldridge, 424 U.S. 319, 335,96 S. Ct. 893, 47 L. Ed. 2d 18
(1976). To do so, we must first recognize that there are different ways in which a
deprivation might be "erroneous."
Fields V. Dep't ofEarly Learning, No. 95024-5
For instance, a deprivation might be "erroneous" based on a statutory or
regulatory violation, where there is an error in applying the law as written to the
facts presented. 2 Ronald D.Rotunda & John E. Nowak,Treatise on
Constitutional Law: Substance and Procedure § 14.6(a)(i), at 722(5th ed.
2012). There is no question that Fields received sufficient procedures to guard
against this type of error. The validity of her underlying conviction is
unchallenged, and DEL's regulations, as written, require Fields's permanent
disqualification on the sole basis ofthat conviction.
Nevertheless, a deprivation based on a constitutional violation is no less
"erroneous" than a deprivation based on a statutory or regulatory violation. A
deprivation thus might be "erroneous" even though the law as written was
correctly applied to the facts presented because the law, as applied, is
unconstitutional. This is the type of error Fields asserts, claiming that her
permanent disqualification based solely on a 30-year-old attempted second degree
robbery conviction constitutes an arbitrary deprivation of her protected interest in
pursuing lawful employment in her chosen field. Fields has a procedural due
process right to have this claim heard "'at a meaningful time and in a meaningful
manner,' appropriate to the case." Amunrud, 158 Wn.2d at 216 (internal quotation
marks omitted)(quoting Mathews, 424 U.S. at 333).
Fields V. Dep't ofEarly Learning, No. 95024-5
DEL's regulations prohibit any consideration of Fields's claim at the
administrative level. Therefore, the only procedural mechanism available to her is
judicial review pursuant to the Administrative Procedure Act(A?A), chapter 34.05
RCW. To resolve Fields's as-applied procedural due process claim, we must
determine whether APA review is sufficient to protect against an erroneous
deprivation of Fields's protected interest in light ofthe specific circumstances
presented.
C. In light of Fields's particular circumstances, she has a procedural due
process right to an individualized determination at the administrative level
Fields claims that as applied to her, DEL's regulations forbidding a case-by-
case determination of whether she is qualified to work in licensed childcare created
an unacceptably high risk of erroneous deprivation in violation of her federal right
to procedural due process. In the particular circumstances presented by Fields's
case, we agree.
Our analysis of Fields's federal procedural due process claim is guided by
the Mathews test, which requires us to consider the following:
First, the private interest that will be affected by the official action;
second, the risk of an erroneous deprivation of such interest through
the procedures used, and the probable value, if any, of additional or
substitute procedural safeguards; and finally, the Government's
interest, including the function involved and the fiscal and
administrative burdens that the additional or substitute procedural
requirement would entail.
10
Fields V. Dep 't ofEarly Learning, No. 95024-5
424 U.S. at 335. The parties do not dispute that Fields has a strong interest in
pursuing her chosen profession without arbitrary interference by the State, while
DEL has a strong interest in protecting children who are taught or cared for in
licensed facilities without creating undue administrative burdens. It is the second
Mathews factor that is primarily at issue: the risk of erroneous deprivation and the
probable value of additional procedural safeguards.
In addressing this issue, we focus on the as-applied nature of Fields's
challenge, which "is characterized by a party's allegation that application of the
statute in the specific context ofthe party's actions or intended actions is
unconstitutional." City ofRedmond v. Moore, 151 Wn.2d 664, 669, 91 P.3d 875
(2004)(emphasis added). Furthermore,"'[d]ue process is flexible and calls for
such procedural protections as the particular situation demands.'" Mathews, 424
U.S. at 334(quoting Morrissey v. Brewer,408 U.S. 471, 481, 92 S. Ct. 2593, 33
L. Ed. 2d 484 (1972)). We therefore must consider the risk of erroneous
deprivation and the competing interests at stake in light of Fields's particular
circumstances.
1. Fields faces an unusually high risk of erroneous deprivation
Fields has a protected interest, but not a fundamental right, to pursue her
chosen, lawful occupation. Amunrud, 158 Wn.2d at 222. Therefore, if DEL's
regulations prevent her from pursuing her chosen occupation without a rational
11
Fields V. Dep't ofEarly Learning, No. 95024-5
basis for doing so, she has been erroneously deprived of a protected interest. Id.
Here, a number of factors combine to put Fields at an unusually high risk of
erroneous deprivation.
First, Fields's conviction is over 30 years old, but DEL's regulations treat
her identically to a person who has recently committed multiple acts of child
abuse. DEL's regulations also give no weight to the fact that Fields was 22 years
old at the time of her offense, while "psychological and neurological studies
show[]that the 'parts ofthe brain involved in behavior control' continue to
develop well into a person's 20s." State v. O'Dell, 183 Wn.2d 680, 691-92, 358
P.3d 359(2015)(footnote omitted)(internal quotation marks omitted)(quoting
Miller v. Alabama, 567 U.S. 460,472, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012)).
And at the time of her offense. Fields was "addicted to drugs, in domestic violence
relationships,[and] in and out of homelessness." Report ofProceedings(RP)at 9.
It is undisputed that Fields has overcome these challenges. Nevertheless, DEL's
regulations make her 30-year-old conviction a permanent barrier to pursuing
employment in her chosen field. Because Fields's sole disqualifying conviction
occurred long ago under circumstances that no longer exist, it is highly likely that
her permanent disqualification is erroneously arbitrary.
In addition to the passage oftime in Fields's particular case, DEL's
regulations are unusually "onerous" as compared to other laws relating to
12
Fields V. Dep't ofEarly Learning, No. 95024-5
disqualification for unsupervised contact with children based on prior convictions.
Br. of Amicus Curiae Civil Survival in Supp. of Pet. for Review at 5. For instance,
the federal government requires the State to permanently disqualify individuals
from licensed childcare work based on certain violent and sexual crimes. 42
U.S.C. § 9858f(c)(l)(D)-(E).^ ''Robbery is not one ofthose crimes.'''' Fields, No.
75406-8-1, slip op. at 9(emphasis added). This inconsistency between state and
federal law increases the risk of an arbitrary, erroneous deprivation based solely on
Fields's attempted second degree robbery conviction.
Washington law creates another inconsistency by providing that Fields's
conviction would not permanently bar her from obtaining a license as a foster care
provider. In contrast to the limited role played by licensed childcare facilities,
"[f]oster parents are responsible for the protection, care, supervision, and nurturing
ofthe child in placement." RCW 74.13.330. Yet Washington law provides that a
conviction of robbery results in only a five-year disqualification from foster care
license eligibility. DSHS Secretary's List of Crimes and Negative Actions for Use
by Children's Administration (Mar. 2017), https://www.dshs.wa.gov/sites/
^ The federal statute requires permanent disqualification of anyone who has been
convicted of the following felony offenses: "murder," "child abuse or neglect,""a crime against
children, including child pornography," "spousal abuse,""a crime involving rape or sexual
assault," "kidnapping," "arson," and "physical assault or battery." 42 U.S.C.
§ 9858f(c)(l)(D)(i)-(viii). It also requires permanent disqualification if the person "has been
convicted of a violent misdemeanor committed as an adult against a child, including the
following crimes: child abuse, child endangerment, sexual assault, or of a misdemeanor
involving child pornography." 42 U.S.C. § 9858f(c)(l)(E).
13
Fields V. Dep't ofEarly Learning, No. 95024-5
default/files/CA/pub/documents/secretaryslist.pdf[https.7/perma.cc/SJ7P-HG8J];
see also former WAC 388-06A-0170(l)(a)-(e)(2015), recodified as WAC 110-04-
0100(l)(a)-(e). These inconsistent standards make it highly likely that a person
convicted of attempted second degree robbery will be arbitrarily disqualified from
working with children in licensed childcare even though the State would view that
person as entirely fit to work with children as a foster parent.
Finally, the undisputed facts underlying Fields's 1988 conviction do not
indicate that she was likely to pose a danger to children for the rest of her life. At
the age of22, Fields "tried to grab a woman's purse away from her in front of a
Bartell[]Drugs." RP at 4. At the time,"[s]he was addicted to drugs, in domestic
violence relationships,[and] in and out of homelessness." Id. at 9. There is no
indication that any children were either victims of or witnesses to the attempted
crime. And because Fields was not convicted of first degree robbery, we know
that she was not armed with a deadly weapon, did not display anything that
appeared to be a deadly weapon, and did not cause any bodily injury to the victim.
Former RCW 9A.56.200(1)(1975). As the superior court judge in this case noted,
Fields's actions "barely met perhaps the statutory elements ofrobbery in the
second degree at the time."^ RP at 26. Indeed, she was not even successful in
^ To the extent that there are other factual circumstances underlying Fields's conviction
that are not in the record before us, such facts may be considered when Fields is provided with
an individualized determination of her qualifications.
14
Fields V. Dep't ofEarly Learning, No. 95024-5
grabbing the purse. DEL's regulations, however, treat Fields's inchoate attempt
identically to a completed crime.
Without question, prior criminal convictions are relevant considerations
when evaluating a person's future ability to care for vulnerable populations such as
children. However, Fields's conviction is based on an offense that was committed
30 years ago, when she was under 25 years old. Her attempted second degree
robbery conviction does not permanently disqualify her from licensed childcare
work as a matter of federal law and does not even permanently disqualify her from
being a licensed foster care provider as a matter of state law. The offense itself did
not involve any children in any way, did not involve any deadly weapons, and did
not inflict any bodily injury. In light ofthese circumstances, and keeping in mind
that DEL's designated task is to determine whether the individual is of appropriate
character, suitability, and competence to provide childcare under former RCW
43.215.215(1), it is difficult to see how the fact of the single conviction at issue
here should permanently disqualify Fields as unfit to work in a licensed childcare
facility.
This is not to say that Fields is necessarily qualified for such work. The
notice of disqualification sent by DEL's licensing supervisor raised a number of
concerns that, taken together, may still lead to Fields's disqualification. However,
using Fields's 1988 attempted second degree robbery conviction as the sole basis
15
Fields V. Dep 't ofEarly Learning, No. 95024-5
for her permanent disqualification with no opportunity for an individualized
determination presents an unusually high risk of arbitrary, erroneous deprivation.
In light of this unusually high risk, the additional procedure of an individualized
determination at the administrative level would be extremely valuable.
2. An individualized administrative determination of Fields's
qualifications is invaluable to mitigating the risk of erroneous
deprivation
As noted above, DEL regulations explicitly prohibit any individualized
consideration ofthe qualifications of a person with a permanently disqualifying
conviction. WAC XXX-XX-XXXX(1); former WAC XXX-XX-XXXX(5). Fields's only
recourse was therefore to seek judicial review of her disqualification pursuant to
the APA. In these particular circumstances, APA review does not provide
sufficient procedural protections given the high risk of erroneous deprivation.
To obtain judicial review. Fields was required to comply with the APA's
strict requirements for filing and serving her petition. RCW 34.05.542. To prevail
on the merits, she faced the extraordinarily high burden of showing beyond a
reasonable doubt that DEL's regulations were unconstitutional. Amunrud, 158
Wn.2d at 215. The only relief Fields has ever asked for is an individualized
determination of her qualifications at the administrative level. She has been
challenging her disqualification in court since October 2015, going through three
levels ofjudicial review, unable to work(much less advance)in her chosen field
16
Fields V. Dep't ofEarly Learning, No. 95024-5
the entire time. The added time and expense involved in the judicial review
process, in addition to the difficulty in obtaining relief, raises significant concerns
about its adequacy in light of the high risk of erroneous deprivation presented here.
Mathews, 424 U.S. at 341-42; see dissent at 8-9.
Meanwhile, an individualized determination would drastically reduce the
risk of erroneous deprivation in Fields's case. Properly and fairly conducted, an
individualized determination will ensure that even if Fields is ultimately
disqualified, it will not be arbitrary but, instead, based on her "character,
suitability, and competence to provide child care and early learning services to
children." Former RCW 43.215.215(1).
We recognize DEL's interests, but they are not compromised by this as-
applied challenge. DHL's primary interest, protecting children, is not implicated at
all. Whether Fields is qualified to work in licensed childcare facilities will still be
decided with the paramount goal of protecting children. The procedure on remand
need not be unusual or burdensome. DEL already has regulations governing
individual determinations ofthose with troubling past behavior but without any
disqualifying convictions. See former WAC XXX-XX-XXXX(4),(7); former WAC
XXX-XX-XXXX(1)(2015), recodified as WAC XXX-XX-XXXX; former WAC 170-06-
0100(2015), recodified as WAC XXX-XX-XXXX; former WAC XXX-XX-XXXX(l)-(4).
Fields is entitled only to be heard in accordance with existing procedures, where
17
Fields V. Dep't ofEarly Learning, No. 95024-5
her attempted second degree robbery conviction is considered along with the rest
of her history, both favorable and unfavorable. If there is a nonarbitrary basis to
believe that Fields's qualification would present a danger to childcare children, she
will remain disqualified, fully protecting DEL's primary interest in protecting
children.
DEL also has a legitimate interest in easing the administrative burdens that
would come with requiring a case-by-case evaluation of every person who seeks
qualification to work in licensed childcare facilities. Weinberger v. Salfi, 422 U.S.
749, 784, 95 S. Ct. 2457,45 L. Ed. 2d 522(1975). However, that interest is
extremely minimal given the as-applied nature of this challenge. We do not hold
that every person with a permanently disqualifying conviction must be given an
individualized administrative hearing. We hold only that in light of the unusually
high risk of erroneous deprivation in Fields's particular case, the additional
protection of an individualized determination of her qualifications is required as a
matter of procedural due process.^
^ We respectfully disagree with the dissent's suggestion that we should uphold DEL's
procedural regulations as applied to Fields to avoid the added burdens that will result from others
seeking relief pursuant to our decision today. See dissent at 9-10. To the extent that DEL's
procedures create a high likelihood of producing arbitrary results in other cases, these added
burdens are constitutionally required.
18
Fields V. Dep't ofEarly Learning, No. 95024-5
Conclusion
We do not question the authority of administrative agencies to set generally
applicable regulations governing the qualifications of people who work with
vulnerable populations such as children. But that authority cannot preclude the
possibility that the regulations may nevertheless be unconstitutional as applied to a
particular case. As applied to this case, DEL's regulations created an intolerably
high risk of erroneously depriving Fields of her protected interest in pursuing her
chosen, lawful occupation. Addressing Fields's qualifications on an individualized
basis at the administrative level is invaluable to reducing that risk, and in this as-
applied challenge, the value of such a procedure is not outweighed by any
countervailing government interest. We therefore reverse the Court of Appeals
and remand for further administrative proceedings, at which Fields's entire history
and the totality of her circumstances must be considered on an individualized basis.
19
Fields V. Dep Y ofEarly Learning, No. 95024-5
WE CONCUR:
14 Za (ez./
Y?7j^ C^dJZyyL ,
20
Fields V. Dep't ofEarly Learning, No. 95024-5
(Gordon McCloud, J., concurring)
No. 95024-5
GORDON McCLOUD,J.(concurring)—I agree with the dissent insofar as it
concludes that the Department of Early Learning (DEL)' did not violate Christal
Fields' federal right to procedural due process. U.S. CONST, amend. XIV,§ 1. But
I disagree with the dissent's resolution of Fields' substantive due process claim. I
believe that DEL violated Fields' federal right to substantive due process and would
reverse the Court of Appeals on this ground. Id. Thus, while I disagree with the
lead opinion's reasoning,I concur in its result. Should DEL want to disqualify Fields
for other reasons, it must go through additional administrative proceedings and
comply with procedural and substantive due process. But DEL may not permanently
disqualify Fields based solely on her 1988 conviction because doing so violates
substantive due process.
"Substantive due process protects against arbitrary and capricious government
action even when the decision to take action is pursuant to constitutionally adequate
' The Department of Early Learning is now part of the Department of Children,
Youth, and Families, but I will refer to it as DEL in this coneurrenee.
1
Fields V. Dep't ofEarly Learning, No. 95024-5
(Gordon McCloud, J., concurring)
procedures." Amunrud v. Bd. ofAppeals, 158 Wn.2d 208, 218-19, 143 P.3d 571
(2006) (citing Halverson v. Skagit County, 42 F.3d 1257, 1261 (9tli Cir. 1994)).
"[P]ursuit of an occupation or profession is a liberty interest protected by the due
process clause." Id. at 219 (citing Conn v. Gabbert, 526 U.S. 286, 291-92, 119 S.
Ct. 1292, 143 L. Ed. 2d 399(1999); Bd. ofRegents ofState Colls, v. Roth,408 U.S.
564, 572, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972)). "Because the right to pursue a
trade or profession is a protected right but not a fundamental right, we apply a
rational basis test." Id. at 222. Under this test, we determine whether the challenged
regulations are rationally related to a legitimate state interest. Id.^ Although rational
basis review is "the most relaxed form ofjudicial scrutiny," id. at 223 (citing State
V. Shawn P., 122 Wn.2d 553,859 P.2d 1220(1993)),it is not"'"toothless,"'" Me/sen
V. Dep't ofLicensing, 111 Wn. App.45,53,309 P.3d 1221 (2013){c^aotmg Mathews
V. Be Castro,A29 U.S. 181, 185, 97 S. Ct. 431, 50 L. Ed. 2d 389 (1976)(quoting
Mathews v. Lucas,427 U.S. 495, 510,96 S. Ct. 2755,49 L. Ed. 2d 651 (1976))).
Fields argues that DEL's regulation violated her federal right to substantive
due process, both facially and as applied. To succeed on her facial challenge. Fields
2 See John E. Nowak & Ronald D. Rotunda, Constitutional Law § 11.4, at
370, § 14.4, at 601 (4th ed. 1991), Washington v. Glucksberg, 521 U.S. 702, 728, 117 S.
Ct. 2258, 138 L. Ed. 2d 772 (1991); Seeley v. State, 132 Wn.2d 776, 795, 940 P.2d 604
(1997);In re Pers. Restraint ofMetcalf 92 Wn. App. 165, 963 P.2d 911 (1998).
2
Fields V. Dep't ofEarly Learning, No. 95024-5
(Gordon McCloud, J., concurring)
must show that"no set of circumstances exists in which the [regulation], as currently
written, can be constitutionally applied." City ofRedmond v. Moore, 151 Wn.2d
664, 669, 91 P.3d 875 (2004) (citing Wash. State Republican Party v. Pub.
Disclosure Comm 'n, 141 Wn.2d 245, 282 n.l4, 4 P.3d 808 (2000)(citing In re Det.
ofTuray, 139 Wn.2d 279, 417 n.27, 986 P.2d 790 (1999))). To succeed on her as-
applied challenge. Fields must show that the regulation is unconstitutional as applied
to her, even if it could be constitutionally applied in a different circumstance. Id. at
668-69.
One can certainly imagine a set of circumstances in which DEL may apply
the regulation at issue without offending the United States Constitution. DEL has a
legitimate interest in "safeguard[ing] and promot[ing] the health, safety, and well-
being of children receiving child care and early learning assistance, which is
paramount over the right of any person to provide care." Former RCW
43.215.005(4)(c)(2010). DEL can advance this interest by,for example, preventing
a person recently convicted of multiple attempted robberies from working at a
licensed childcare facility. See dissent at 15-16 (explaining that second degree
robbery is a serious offense against another person). Thus, Fields'yhc/a/ substantive
due process claim must fail. But the challenged regulation, as applied to Fields, is
not rationally related to any legitimate state interest.
3
Fields V. Dep't ofEarly Learning, No. 95024-5
(Gordon McCloud, J., concurring)
While DEL undeniably has a legitimate interest in safeguarding and
promoting the health, safety, and well-being of children, this legitimate interest is
not at all fostered by permanently barring a person who was convicted of attempted
second degree robbery over 30 years ago at the age of 22. The lead opinion aptly
explains why:
Fields's conviction is based on an offense that was committed 30 years
ago, when she was under 25 years old. Her attempted second degree
robbery conviction does not permanently disqualify her from licensed
childcare work as a matter of federal law and does not even
permanently disqualify her from being a licensed foster care provider
as a matter of state law. The offense itself did not involve any children
in any way, did not involve any deadly weapons, and did not inflict any
bodily injury. In light of the circumstances, and keeping in mind that
DLL's designated task is to determine whether the individual is of
appropriate character, suitability, and competence to provide childcare
under former RCW 43.215.215(1), it is difficult to see how the fact of
the single conviction at issue here should permanently disqualify Fields
as unfit to work in a licensed childcare facility.
Lead opinion at 15; see also id. at 11-15.
But the lead opinion does so under its analysis ofprocedural due process. Id.
As the dissent notes, the lead opinion "conflate[s] procedural and substantive due
^ In response to the dissent's criticism of the lead opinion's logic on this point,
dissent at 15-16,1 note that it is only the necessarily adjudicated facts of the crime that we
can consider at this point, see Blakely v. Washington, 542 U.S. 296, 303, 124 S. Ct. 2531,
159 L. Ed. 2d 403 (2004), and those necessarily adjudicated facts do not involve children,
deadly weapons, or bodily injury.
4
Fields V. Dep 't ofEarly Learning, No. 95024-5
(Gordon McCloud, J., concurring)
process." Dissent at 1. "Procedural due process guarantees only that individuals
have notice and the opportunity to be heard to contest whether the rule does apply
to them, not whether it should." Id. at 3. Everyone agrees that the regulation at issue
bars Fields from working at a licensed childcare facility. Lead opinion at 9; dissent
at 6. The issue here is whether barring Fields because of her conviction from 1988
is rationally related to a legitimate state interest. And that is a question ofsubstantive
due process. See dissent at 6-7.
DEL also "has a legitimate interest in avoiding the administrative burden of
holding an individualized inquiry in every case." Id. at 14; see also lead opinion at
18. But we do not allow constitutional violations merely because it would be
burdensome to prevent them:
"The establishment of prompt efficacious procedures to achieve
legitimate state ends is a proper state interest worthy of cognizance in
constitutional adjudication. But the Constitution recognizes higher
values than speed and efficiency. Indeed, one might fairly say of the
Bill of Rights in general, and the Due Process Clause in particular, that
they were designed to protect the fragile values ofa vulnerable citizenry
from the overbearing concern for efficiency and efficacy that may
characterize praiseworthy government officials no less, and perhaps
more, than mediocre ones."
Olympic Forest Prods., Inc. v. Chaussee Corp., 82 Wn.2d 418, 433, 511 P.2d 1002
(1973)(quoting Stanley v. Illinois, 405 U.S. 645, 656, 92 S. Ct. 1208, 31 L. Ed. 2d
551 (1972)). Regardless, in my view, DEL is not required to hold an individualized
5
Fields V. Dep 't ofEarly Learning, No. 95024-5
(Gordon McCloud, J., concurring)
inquiry in every case. If DEL can write a bright-line regulation that seldom, if ever,
violates substantive due process as applied, it can avoid individualized inquiries in
most, if not all, cases. In drafting a rule that is less likely to violate a person's
substantive due process rights, DEL might consider how old the person was when
he or she committed the crime and the amount of time that has elapsed since the
crime was committed.
In sum,the challenged regulation, as applied to Fields, is not rationally related
to a legitimate state interest. The regulation therefore amounts to arbitrary and
capricious government action and violates Fields' federal right to substantive due
process. As such, I would reverse the Court of Appeals and hold that DEL may not
bar Fields solely because of a conviction for attempted second degree robbery from
1988 when she was 22 years old. I therefore respectfully concur.
Fields V. Dep't ofEarly Learning, No. 95024-5
(Gordon McCloud, J., concurring)
Fields V. Dep't ofEarly Learning, No. 95024-5
Fairhurst, C.J.(dissenting)
No. 95024-5
FAIRHURST, C.J. (dissenting)—I dissent because Christal Fields has failed
to meet her burden of showing that the Department of Early Learning (DEL)'
violated her due process rights. In arguing that procedural due process requires DEL
to give her an individualized hearing, both Fields and the lead opinion conflate
procedural and substantive due process. Fields' claim is not that there is a risk that
the rule permanently disqualifying people with certain criminal convictions on the
director's list will be erroneously applied to her. She admits that she has a conviction
for a crime on the director's list. Instead, her argument is that this rule is
overinclusive and therefore there is a risk that she will be deprived the right to
provide childcare even though she may not pose a risk to children. Because there
was no risk that the rule would be erroneously applied to her in the proceedings
'The Department of Early Learning is now known as the Department of Children, Youth,
and Families. In the interests of clarity, I will refer to the Department as DEL, as it was known at
the time ofthe events in this case.
1
Fields V. Dep't ofEarly Learning, No. 95024-5
Fairhurst, C.J.(dissenting)
below and because she was able to bring her constitutional challenge to the rule in
court, her procedural due process rights were satisfied.
Fields' true claim is one of substantive due process. On that claim I would
find that she has failed to meet the heavy burden of showing that the decision to
permanently disqualify her from providing childcare services based on her
conviction for the violent crime of attempted robbery is not rationally related to the
legitimate government interest in protecting children. Accordingly, I would affirm
the Court of Appeals.
I. ANALYSIS
A. Standard of review
Fields claims that former WAG XXX-XX-XXXX (2015) violates her procedural
and substantive due process rights under the Fourteenth Amendment to the United
States Constitution.^ We review the Court of Appeals ruling on this issue de novo.
Amunrud v. Bd. ofAppeals, 158 Wn.2d 208, 215, 143 P.3d 571 (2006).
^ I agree that we should not address Fields' state constitutional arguments as she did not
sufficiently argue or brief them below. See State v. Gunwall, 106 Wn.2d 54, 62, 720 P.2d 808
(1986). I also agree that we should decline to address the equal protection arguments raised by
amici in the first instance. See City ofSeattle v. Evans, 184 Wn.2d 856, 861 n.5, 366 P.3d 906
(2015).
2
Fields V. Dep't ofEarly Learning, No. 95024-5
Fairhurst, C.J. (dissenting)
B. Fields' procedural due process rights were not violated because there was no
risk of the rule being erroneously applied to her
The due process clause of the Fourteenth Amendment to the United States
Constitution has both substantive and procedural components. See 2 Ronald D.
Rotunda & John E. Nowak,Treatise on Constitutional Law:Substance and
Procedure § 14.6(a)(i), (ii), at 722-25 (5th ed. 2012). Procedural due process sets
limitations on the process the government must provide before depriving an
individual of liberty or property interests. See Mathews v. Eldridge, 424 U.S. 319,
332, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976). Substantive due process, on the other
hand, limits the rules that the government may adopt governing these deprivations.
See Sintra, Inc. v. City ofSeattle, 119 Wn. 2d 1, 21, 829 P.2d 765 (1992). Fields'
right to practice her chosen profession is a liberty interest protected by due process.
Amunrud, 158 Wn.2d at 219(explaining that "pursuit ofan occupation or profession
is a liberty interest protected by the due process clause").
However, the hearings Fields has been given clearly satisfy the requirements
of procedural due process. Procedural due process guarantees only that individuals
have notice and the opportunity to be heard to contest whether the rule does apply
to them, not whether it should. Fields had the opportunity to request reconsideration
by the licensing supervisor, to appeal her disqualification to the Office of
Administrative Hearings, and to challenge her disqualification in superior court as a
Fields V. Dep't ofEarly Learning, No. 95024-5
Fairhurst, C.J.(dissenting)
violation of her substantive due process rights.^ The fact that she was not able to
challenge the constitutionality of this rule within the administrative process itself is
not a procedural due process violation.
Under Mathews, courts consider three factors in determining whether the
process afforded to an individual was sufficient to satisfy the due process clause:
First, the private interest that will be affected by the official action;
second,the risk ofan erroneous deprivation ofsuch interest through the
procedures used, and the probable value, if any, of additional or
substitute procedural safeguards; and finally, the Government's
interest, including the function involved and the fiscal and
administrative burdens that the additional or substitute procedural
requirement would entail.
424 U.S. at 335; see also City ofBellevue v. Lee, 166 Wn.2d 581, 585, 210 P.3d
1011 (2009). These factors weigh against finding a procedural due process violation
in this case.
1. Fields has a substantial private interest in her ability to work in
childcare
Fields' interest in pursuing childcare as a profession is not in dispute here.
Fields has demonstrated a passion for working in childcare and has invested heavily
in the pursuit of her chosen occupation. See Am. Suppl. Br. of Appellant at 6. The
^ Because Fields admitted to the disqualifying robbery conviction and DEL elected to move
for summary judgment on that ground, it is not clear from the record whether Fields' request for
reconsideration has ever been considered on its merits. However, even in that request. Fields did
not challenge the fact that she had a conviction for attempted second degree robbery.
4
Fields V. Dep't ofEarlyLearning, No. 95024-5
Fairhurst, C.J.(dissenting)
fulfillment that she finds from this work is clear from the briefing and argument. See
id.
The personal interest at stake here is particularly weighty because the decision
made by DEL is not temporary and, instead, will permanently disqualify her from
working in her chosen profession."^ See Amunrud, 158 Wn.2d at 217 (noting the
length ofdeprivation has a factor in weighing the private interest at stake). Therefore,
the first Mathews factor weighs in favor of affording her substantial process.
However, the process she was given here was sufficient because there was no risk
of erroneous deprivation.
2. There is no risk of erroneous deprivation because Fields has
admitted that she has a permanently disqualifying conviction
The lead opinion claims that the inability of Fields to challenge her
disqualification at the administrative level violated procedural due process. The lead
opinion admits that "[t]here is no question that Fields received sufficient procedures"
to ensure that the law as written was accurately applied to Fields. Lead opinion at 9.
^ There was a diseussion in oral argument and briefing about the possibility that Fields
would be able to become qualified via the certificate of restoration of opportunity act (CROP),
RCW 9.97.010 and .020.1 agree with the lead opinion that this is pure speculation at this stage and
is therefore not relevant to the decision we reach today. Fields does not currently have a CROP,
and whether or not Fields would qualify for a CROP is an open question. CROP does not answer
the question before us today because Fields is claiming that DEL violated her due process rights
by failing to provide her with an individualized hearing based solely on her claim ofrehabilitation.
Whether or not the new Department of Children, Youth, and Families would provide her with an
individualized hearing if she obtained a CROP does not resolve this question.
5
Fields V. Dep't ofEarly Learning, No. 95024-5
Fairhurst, C.J.(dissenting)
This is because the rule is not that DEL prohibits anyone who poses a danger to
children from working at a licensed childcare facility. The rule is that DEL prohibits
anyone convicted of a permanently disqualifying crime from working at a licensed
childcare facility, and Fields has admitted that she has been convicted of such a
crime.
However,the lead opinion believes that there was a high risk that DEL would
disqualify Fields from providing childcare services erroneously, i.e., that she would
be disqualified despite not posing a danger to children. The lead opinion contends
that because Fields may not pose a danger to children, procedural due process
demands that she be able to challenge the application of this rule to her in the
administrative process. But"ifDLL's regulations prevent[Fields] from pursuing her
chosen occupation without a rational basis for doing so," lead opinion at 11-12, then
the regulations violate substantive due process, not procedural due process. Whether
or not this rule is arbitrary, advances the interests ofthe State, or is otherwise a good
idea has no part in a procedural due process analysis:
Procedural due process guarantees only that there is a fair decision-
making process before the government takes some action directly
impairing a person's life, liberty or property. This aspect of the due
process clauses does not protect against the use of arbitrary rules of
law which are the basis ofthose proceedings. It is only necessary that
a fair decision-making process be used; the ultimate rule to be enforced
need not be a fair or just one.
Fields V. Dep't ofEarly Learning, No. 95024-5
Fairhurst, C.J. (dissenting)
Rotunda & Nowak,supra, at 722(emphasis added).
Procedural due process does not require an agency to hear a constitutional
challenge within the administrative process. In Dixon v. Love, the United States
Supreme Court held that the decision to suspend the license of a commercial truck
driver before there was a full hearing did not violate procedural due process,
explaining that
[ujnder the Secretary's regulations, suspension and revocation
decisions are largely automatic. Of course, there is the possibility of
clerical error, but written objection will bring a matter of that kind to
the Secretary's attention. In this case appellee had the opportunity for a
full judicial hearing in connection with each of the traffic convictions
on which the Secretary's decision was based. Appellee has not
challenged the validity of those convictions or the adequacy of his
procedural rights at the time they were determined. Since appellee does
not dispute the factual basisfor the Secretary's decision, he is really
asserting the right to appear in person only to argue that the Secretary
should show leniency and departfrom his own regulations. Such an
appearance might make the licensee feel that he has received more
personal attention, but it would not serve to protect any substantive
rights. We conclude that requiring additional procedures would be
unlikely to have significant value in reducing the number of erroneous
deprivations.
431 U.S. 105, 113-14, 97 S. Ct. 1723, 52 L. Ed. 2d 172 (1977)(emphasis added)
(footnote and citation omitted); cf. Cleveland Bd. ofEduc. v. Loudermill, 470 U.S.
532,544 n.9,105 S. Ct. 1487,84 L.Ed. 2d 494(1985)(finding that an individualized
hearing was required by due process when the reason for the employee's termination
was arguable because it "turned not on the objective fact that he was an ex-felon or
7
Fields V. Dep't ofEarly Learning, No. 95024-5
Fairhurst, C.J.(dissenting)
the inaccuracy of his statement to the contrary, but on the subjective question
whether he had lied on his application form").
Like in Dixon,the decision to disqualify Fields is automatic under DEL rules
once she admitted that she had a conviction for attempted robbery. Fields is arguing
for the right to appear in person in the administrative process to argue that DEL
should show leniency and depart from its own rules. The United States Supreme
Court rejected the argument that procedural due process grants this right in Dixon,
and I would reject it here as well.
Similarly, in Connecticut Department ofPublic Safety v. Doe, 538 U.S. 1, 6,
123 S. Ct. 1160, 155 L. Ed. 2d 98 (2003), an individual admitted that he had a
conviction that would require him to be listed on the sex offender registry as a
sexually dangerous person. He claimed that due process gave him a right to a hearing
to establish that despite his conviction, he was not dangerous. Id. The Court
unanimously rejected his due process claim because the law at issue did not allow
for individualized considerations of dangerousness. Id. at 7-8. The Court held that
"[pjlaintiffs who assert a right to a hearing under the Due Process Clause must show
that the facts they seek to establish in that hearing are relevant under the statutory
scheme." Id. at 8. Fields also admitted that she had a disqualifying conviction but
claims that due process gives her the right to a hearing to establish that despite her
Fields V. Dep't ofEarly Learning, No. 95024-5
Fairhurst, C.J.(dissenting)
conviction, she is not dangerous to children. Whether or not she is dangerous to
children is not relevant under the current DEL rules, which expressly preclude any
consideration of individual circumstances where a person is permanently
disqualified due to a prior conviction for robbery. Former WAC XXX-XX-XXXX(1), -
0115(5), -0120(1) (2015). Therefore, applying Doe, Fields is not entitled to an
individualized hearing because she cannot show that the facts she seeks to establish
in that hearing are relevant under the statutory scheme.
The lead opinion claims that procedural due process requires DEL to allow
Fields to make the argument that the rule violates her substantive due process rights
during the administrative process. Lead opinion at 16. But Fields did have the
opportunity to obtain review of her claim that the rule was unconstitutional as
applied to her by filing in the superior court. The fact that she could not make this
challenge, or any other constitutional challenge, during the administrative process
does not violate her rights to procedural due process. Procedural due process does
not require that administrative hearings consider all possible claims, such as whether
a rule violates substantive due process as applied in a particular case. See Amunrud,
158 Wn.2d at 218 (explaining that the appellant was not denied meaningful review
of his license suspension despite the fact that the State did not consider his unusual
circumstances because he could file an appeal of the child support order that
Fields V. Dep 't ofEarly Learning, No. 95024-5
Fairhurst, C.J.(dissenting)
indirectly led to the suspension with the court that issued it). This is a well-
established principle oflaw:
Although a state law might give an individual a right to some type of
fair process or hearing, simply to complain about the effect of a law on
the individual, the due process clause of the Fourteenth Amendment
does not give an individual a right to a hearing ifthe person admits that
the law applies to him. In other words, once an individual admits that a
law applies to him, he has no basis for a procedural due process claim
because any fair procedure would, by his own admission, result in a
finding that the law applies to him. The individual in such
circumstances may make a substantive claim against the law by
challenging the rule of law created by the statute or regulation.
Rotunda & Nowak,supra, at 732; see also Reno v. Flores, 507 U.S. 292, 308, 113
S. Ct. 1439, 123 L. Ed. 2d 1 (1993)(holding that a claim that a procedural system is
unconstitutional because it does not allow individualized determination "is just the
'substantive due process' argument recast in 'procedural due process' terms").
Because Fields had the opportunity to make her substantive due process claim
in superior court, she was not denied procedural due process.
3. The State has a strong public interest in protecting children and the
burden on the State to conduct individualized hearings would be great
The lead opinion admits and the parties do not dispute that the State has a
strong interest in protecting children who are taught or cared for in licensed facilities
and that the State has an interest in avoiding undue administrative burdens. The lead
10
Fields V. Dep't ofEarly Learning, No. 95024-5
Fairhurst, C.J. (dissenting)
opinion fails to acknowledge the extent of the increase in the administrative burden
on DEL based on its ruling today.
The burden ofthis decision on the government will be great. The lead opinion
claims that because this is an as applied challenge, the result will be only that Fields
is entitled to an individualized hearing. Lead opinion at 18. However, DEL claims
in oral argument that it receives 21,000 applications each year. Wash. Supreme
Court oral argument. Fields v. Dep't ofEarly Learning, No. 95024-5(May 8, 2018),
at 22 min., 06 sec., video recording by TVW, Washington State's Public Affairs
Network, http://www.tvw.org. It is inevitable with that number of applicants that
others will also argue that they are rehabilitated despite their convictions for
disqualifying crimes. As a consequence ofthe lead opinion's holding,DEL will have
to make a choice each time a person claims to be rehabilitated. It can provide
individualized hearings to everyone who makes this claim, including people with
disqualifying convictions for child molestation and child rape, as Fields advocated
for at oral argument. See id. at 8 min., 19 sec, 15 min., 27 sec. Or, it can deny
individualized hearings to other applicants, in which case this court may decide that
this denial violated procedural due process rights. By holding that Fields was denied
procedural due process in this case, the lead opinion will require the agency to
consider the argument that its own rule is unconstitutional as applied. DEL's
11
Fields V. Dep'(ofEarly Learning, No. 95024-5
Fairhurst, C.J.(dissenting)
regulations do not allow parties to make constitutional claims in the administrative
process for good reason: questions of constitutionality are best left to the courts.
By expanding the bounds of procedural due process in this way, the lead
opinion invites a flood of litigation. Some applicants who are undisputedly
disqualified under the rules will file suit, and a superior court will have to determine
whether or not the applicant is in the same situation as Fields, or a sufficiently similar
situation, to demand the same relief. The court will have to decide whether this
person's circumstances are so unique that a failure to consider them would create a
great risk of erroneous deprivation of the ability to work in childcare, without ever
holding that DHL's disqualification rule violates substantive due process. Even if
these decisions could be easily made, having to hear these new challenges would
impose a large burden on DEL and the court system. We are required to consider
this burden under the third prong ofthe Mathews test. DEL currently provides a clear
list of disqualifying offenses and provides certainty and a quick system ofresolution
for many cases. The director's list may be both under- and overinclusive in certain
instances, but it provides the clear advantage of avoiding the time and expense of
individualized hearings in each of these cases. This is why "procedural due process
rules are shaped by the risk of error inherent in the truthfmding process as applied
to the generality of cases, not the rare exceptions." Mathews, 424 U.S. at 344.
12
Fields V. Dep 't ofEarly Learning, No. 95024-5
Fairhurst, C.J.(dissenting)
I would find that Fields' procedural due process claim fails because as the lead
opinion admits, there is no risk of erroneously applying the law at issue here, and
the burden on the State of granting individualized hearings would be great.
The lead opinion believes that there is high risk that this rule violates
substantive due process as applied to Fields. See lead opinion at 12-16.1 disagree. I
now turn to a consideration of Fields' substantive due process claim.
C. Fields' substantive due process claim cannot overcome the heavy presumption
of constitutionality inherent in rational basis review
When assessing a substantive due process claim in the context of the right to
pursue a trade or profession, we apply a rational basis standard of review. See
Amunrud, 158 Wn.2d at 222."Under this test, the challenged law must be rationally
related to a legitimate state interest." Id. "The rational basis test is the most relaxed
form ofjudicial scrutiny." Id. at 223. When applying the rational basis test,"we do
not require that the government's action actually advance its stated purposes, but
merely look to see whether the government could have had a legitimate reason for
acting as it did." Wedges/Ledges ofCat., Inc. v. City ofPhoenix, 24 F.3d 56, 66(9th
Cir. 1994). "If it is 'at least fairly debatable' that the [government]'s conduct is
rationally related to a legitimate governmental interest, there has been no violation
of substantive due process." Halverson v. Skagit County, 42 F.3d 1257, 1262 (9th
13
Fields V. Dep 't ofEarly Learning, No. 95024-5
Fairhurst, C.J. (dissenting)
Cir. 1994){ey\io\m.gKawaoka v. City ofArroyo Grande, 17 F.3d 1227, 1234(9th Cir.
1994)).
The question in this case is whether there could be a rational basis for
permanently disqualifying Fields based on her second degree robbery conviction
without giving her an individualized hearing.
The legislature created DEL to "safeguard and promote the health, safety, and
well-being of children receiving childcare and early learning assistance, which is
paramount over the right of any person to provide care." Former RCW
43.215.005(4)(c) (2010). The parties do not dispute that this is a legitimate state
interest.^ The lead opinion also concedes that the State has a legitimate interest in
avoiding the administrative burden of holding an individualized inquiry in every
case. Lead opinion at 18.
The case then hinges on whether Fields can show that the decision to
permanently disqualify her based solely on her conviction for attempted robbery,
without an individualized hearing, is not rationally related to these legitimate state
interests. Fields cannot show that it is not '"at least fairly debatable'" that this
^ At times Fields' argument appears to suggest the rule is not related to DHL's mission in
protecting children. See Hi-Starr, Inc. v. Liquor Control Bd., 106 Wn.2d 455, 459, 722 P.2d 808
(1986)("An agency's rules must be encompassed within its statutory framework."). Whether
DHL's adoption of the rule exceeded its delegated authority was not briefed by the parties and is
not before the court.
14
Fields V. Dep't ofEarly Learning, No. 95024-5
Fairhurst, C.J.(dissenting)
decision was rational. See Halverson,42 F.3d at 1262(quoting Kawaoka, 17 F.3d at
1234).
The lead opinion makes several claims about this conviction that go beyond
the evidence before us. First, the lead opinion claims that there is no indication that
any children were either victims of or witnesses to the attempted robbery. But there
is also no indication that children were not around when the attempted robbery took
place. There simply is not evidence pointing in either direction on this issue, and this
factor should not guide our decision. The lead opinion also states that "because
Fields was not convicted of first degree robbery, we know that she was not armed
with a deadly weapon, did not display anything that appeared to be a deadly weapon,
and did not cause any bodily injury to the victim." Lead opinion at 14, But this record
does not show what Fields did not do. It goes too far to assume that just because
Fields was convicted of only second degree robbery, her behavior could not have
encompassed elements of more serious crimes.
Even if the lead opinion is correct as to the facts of this particular case, the
legislature and this court have acknowledged that second degree "robbery is a most
serious offense," State v. Witherspoon, 180 Wn.2d 875, 888, 329 P.3d 888 (2014);
RCW 9.94A.030(33)(o). It is also on the list of crimes the legislature has designated
as a crime against children or persons in RCW 43.43.830(7). An examination of the
15
Fields V. Dep't ofEarly Learning, No. 95024-5
Fairhurst, C.J.(dissenting)
statute makes clear why. A conviction for robbery requires a finding that the
defendant "use[d] or threatened use of immediate force, violence, or fear of injury"
to his or her victim. RCW 9A.56.190. This court has held that "'[t]he nature of the
crime of robbery includes the threat of violence against another person.'"
Witherspoon, 180 Wn.2d at 888 (quoting State v. Rivers, 129 Wn.2d 697, 713, 921
P.2d 495(1996)(addressing the claim that the punishment for second degree robbery
was cruel and unusual)).
It is not a guarantee that a robbery conviction means a person will pose a
danger to children. It may be true that Fields in fact does not pose a danger to children
today. But under the rational basis test, we need find only that DEL could have had
a rational reason for acting as it did. In general, the disqualification regulations are
a reasonable means to advance the State's legitimate interest. The lead opinion
argues, however, that Fields' circumstances are so unique that there is a risk that it
is irrational to apply this general rule to her. But Fields' circumstances are no
different from many other second degree robbery cases. Most second degree robbery
cases do not involve children, do not involve a deadly weapon, and do not cause
bodily injury to the victim. Nevertheless, in order to be convicted, a court had to be
satisfied that Fields herself"use[d] or threatened use of immediate force, violence,
or fear of injury" to her victim. RCW 9A.56.190. It is not irrational for DEL to
16
Fields V. Dep't ofEarly Learning, No. 95024-5
Fairhurst, C.J.(dissenting)
conclude that because Fields has committed this kind of violent crime, she has
demonstrated an impulsivity and a willingness to hurt another human such that she
should be categorically barred from work in childcare facilities. Therefore, Fields
has failed to meet her heavy burden under the rational basis test to show that DHL's
decision to permanently disqualify her based on her robbery conviction is not even
rationally related to the State's strong interest in protecting children and avoiding
the administrative expense of holding an individualized hearing. I would hold that
Fields has failed to show that this DEL rule is an unconstitutional violation of her
substantive due process rights.
Because Fields had a meaningful opportunity to be heard in order to challenge
the fact of her conviction, I would find that rights to procedural due process were
satisfied. Because Fields is unable to show that her permanent disqualification based
on her past conviction for robbery is not rationally related to the legitimate state
interest in protecting children, her substantive due process claim must likewise fail.
I respectfully dissent.
17
Fields V. Dep't ofEarly Learning, No. 95024-5
Fairhurst, C.J.(dissenting)
Cv ^G>
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