(Dissenting.) I disagree with the majority’s interpretation of art. XIII, sec. 3 of the Wisconsin Constitution. That interpretation- is far broader in its effect than the administrative regulation challenged on this appeal.
*252Section LES 2.01(1) (d), Wis. Adm. Code, only withholds employment in law enforcement from those who have been convicted of a federal felony “or of any offense which if committed in Wisconsin could be punished as a felony” unless the individual has received a pardon. Under the majority’s holding any individual who has ever been convicted of any felony — regardless of when, where, the nature of the offense and whether the offense is characterized as a felony in this state — is forever prohibited from any public office even if he has been pardoned, is rehabilitated, and is otherwise eminently suited for the job.
The majority holding is grounded on the proposition that every felony is, by definition, an “infamous crime” within the meaning of art. XIII, sec. 3. The only Wisconsin authority offered for this proposition is a single sentence in Becker v. Green County, 176 Wis. 120, 184 N.W. 715 (1922). The case involved a judge who had been removed from office after being convicted of espionage. The supreme court said it had “no doubt” that espionage was an infamous crime within the meaning of the constitution. Few would quarrel with that conclusion. 176 Wis. at 124, 184 N.W. at 717. It then stated at the same page:
While there has been much debate as to what constitutes an infamous crime, we think, by the great consensus of authority upon the subject, it is now deemed to mean as here used — a crime punishable by imprisonment in the state prison. 12 Cyc. 135; Words & Phrases, 3573 et seq.
Becker has not been cited by the supreme court in the nearly sixty years since it was decided. The quoted statement was unnecessary to the court’s holding in that case, and provides dubious support at best for the majority holding that the constitutional provision automatically bars all ex-felons from ever holding public office in this state.
*253It should be noted that the prohibition, construed to embrace all felonies, extends to persons convicted of shoplifting1 and adultery,2 for example, as well as to those convicted of espionage, murder, treason, and other such crimes as are commonly viewed as bringing infamy upon the heads of their perpetrators.3 Article III, sec. 2 of the Wisconsin Constitution specifically disqualifies persons convicted of a “felony” from voting unless they are restored to civil rights.4 Since the constitutional framers specified “infamous crime” instead of “felony” in art. XIII, sec. 3, it logically follows that they intended the unconditional ban against holding public office to apply to a different class of persons. I view that class as being narrowed by the adjective “infamous” to those persons whose acts have rendered them irretrievably unworthy of public trust.
*254As amicus notes, a Delaware court has taken a case-by-case approach in construing similar language in that state’s constitution. The court said:
[E]very felony is [not] necessarily a crime of infamy; . . . the totality of the circumstances in each case must be examined before a determination may be made that a specific felony is infamous. State ex rel. Weir v. Peterson, 369 A.2d 1076, 1079 (Del. Super. Ct. 1976).
It seems to me that this approach is more cautious, and sounder, than that taken by the majority. This is particularly so in light of the several cases cited by amims and the appellants which hold that various forms of legislation providing for the disqualification of felons from many types of employment opportunities are invalid under the due process or equal protection clause of the federal constitution.
Representative of those cases are Smith v. Fussenich, 440 F. Supp. 1077 (D. Conn., 1977) and Butts v. Nichols, 381 F. Supp. 573 (S.D. Iowa, 1974). In Smith a three-judge panel of the district court held that a Connecticut statute prohibiting felony offenders from employment with licensed private detective or security guard agencies was invalid under the equal protection clause and probably under the due process clause as well. The court said:
The critical defect in the blanket exclusionary rule here is its overbreadth. The statute is simply not constitutionally tailored to promote the State’s interest in eliminating corruption in certain designated occupations. The legislation fails to recognize the obvious differences in the fitness and character of those persons with felony records. Felony crimes such as bigamy and income tax evasion have virtually no relevance to an individual’s performance as a private detective or security guard. In addition, the enactment makes an irrational distinction between those convicted of felonies and those convicted of misdemeanors. Hence, a person is eligible for licensure *255even though he was convicted of a crime (larceny, false entry, inciting to riot and riot) which may demonstrate his lack of fitness merely because that crime is classified as a misdemeanor under the Connecticut code. Cf. Butts v. Nichols, supra at 580.
Moreover, the statute’s across-the-board disqualification fails to consider probable and realistic circumstances in a felon’s life, including the likelihood of rehabilitation, age at the time of conviction, and other mitigating circumstances related to the nature of the crime and degree of participation. We believe it is fair to assume that many qualified ex-felons are being deprived of employment due to the broad sweep of the statute. 440 F. Supp. at 1080.
A similar rationale was employed in Butts, 381 F. Supp. at 580, which invalidated a statute banning felons from civil service employment.
By enacting a blanket prohibition on all ex-felons, a clearly anomalous situation results. For example, persons convicted of such diverse crimes as desertion of a spouse ... or leading life of lewdness . . . would be sentenced as felons, and hence would lose civil service eligibility, no matter what the nature of their job. In contrast, an individual convicted of a crime clearly involving dishonesty, such as petty larceny . . . would not be a felon, and hence would be eligible for a number of civil service jobs wherein such “criminal propensities” would pose a threat to the public (e.g., an inspector with free access to persons’ homes).
Eecent court decisions have shown a particular sensitivity to the punitive effects across-the-board “felon bans” can have on individuals seeking to rehabilitate themselves, and accordingly have demanded a precision of classification which would avoid the adverse effects of statutes such as the one at issue here. (Citations omitted; footnotes omitted.)
I find the reasoning of these cases persuasive. I do not understand the majority’s conclusion that we should not consider the issue of the validity of a blanket ban under the United States Constitution because the parties *256are without standing to attack the Wisconsin Constitution. Neither party has made an attack on the state constitution. Amicus has instead argued that this court should avoid a construction of art. XIII, sec. 3 which would render it unconstitutional under the fourteenth amendment to the federal constitution. Clearly it is our duty to do just that.5 Surely a party has standing to urge that duty upon us, even if it might not have standing to challenge state legislation directly.
I agree with amicus that to construe art. XIII, sec. 3 as creating an irrebuttable presumption that any person convicted of any felony is forever disentitled from holding public office renders the provision invalid under the federal constitution. That construction also violates the legislative policy underlying the recent amendments to the Wisconsin Fair Employment Act in ch. 125, Laws of 1977, which prohibit discrimination in employment or licensing based upon an arrest or conviction record unless the circumstances of the charge or offense, whether misdemeanor or felony, “substantially relate to the circumstances of the particular job or licensed activity.” Sec. 111.32(5), (h)2b, Stats. The same principle was adhered to by the supreme court in Reidinger v. Optometry Examining Board, 81 Wis.2d 292, 298, 260 N.W.2d 270 (1977), which held that an optometrist’s license to practice in Wisconsin could not be revoked for the sole reason that he had been convicted of felony income tax evasion. The court noted that the Optometry Board had failed to demonstrate any relationship between the particular felony conviction and the optometrist’s fitness to practice his profession.
The state undoubtedly has a high interest in protecting the public’s confidence in government and in ensur*257ing that public offices are not misused for private gain, as the majority notes. It also has a high interest in identical goals with respect to the many professions it licenses to serve the public. I think the former interest is no better served than the latter by an across-the-board exclusion of a large class of individuals who may have committed a single act, remote in time, then characterized as felonious but having no “rational connection” to the office they subsequently seek to hold. Schware v. Board of Bar Examiners, 353 U.S. 232, 239 (1957).
For these reasons I would hold that the administrative regulation in question is subject to the provisions of the Wisconsin Fair Employment Act, as amended, and that the Law Enforcement Standards Board could not lawfully require the discharge of this village police chief absent a factual showing that the circumstances of his conviction “substantially relate to the circumstances” of his office. The question whether his particular crime constitutes an “infamous crime” within the meaning of the Wisconsin Constitution may be appropriate for determination in a later proceeding. I think we need not and ought not address that question on this appeal.
Under sec. 943.50(4), Stats. (1975), one who shoplifted goods worth $100 or less was guilty of a misdemeanor, and one who shoplifted goods in excess of that amount was guilty of a felony. The delineation under the current statute is $500.
Under sec. 944.16, Stats. (1975), adultery was punishable by imprisonment of up to three years. The present statute characterizes the crime as a Class E felony, which is punishable by imprisonment up to two years. The crime of fornication, by contrast, has been classified as a misdemeanor under both the 1975 and the current versions of sec. 944.15.
Amicus observes in its brief that the delegate to the constitutional debates who proposed the language which became art. XIII, sec. 3 of the constitution defined an “infamous crime” at that time as one “such as murder, arson or forgery.” The Convention of 184.6, Milo M. Quaife, ed., State Historical Society, Madison, Wisconsin, 1919, p. 206.
Article III, sec. 2 of the Wisconsin Constitution provides:
Who not electors. SECTION 2. No person under guardianship, non compos mentis or insane shall be qualified to vote at any election; nor shall any person convicted of treason or felony be qualified to vote at any election unless restored to civil rights.
DH&SS v. State Personnel Board, 84 Wis.2d 675, 683, 267 N.W.2d 644 (1978); In re City of Beloit, 37 Wis.2d 637, 643, 155 N.W.2d 633 (1968); 2A Sands and Sutherland, Statutes and Statutory Construction, sec. 45.11 (4th ed. 1973).