Blake v. Jossart, No. 2012AP2578.

CourtUnited States State Supreme Court of Wisconsin
Writing for the CourtDAVID T. PROSSER, J.
Citation370 Wis.2d 1,884 N.W.2d 484
Decision Date06 July 2016
Docket NumberNo. 2012AP2578.
PartiesSonja 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.

370 Wis.2d 1
884 N.W.2d 484

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.

No. 2012AP2578.

Supreme Court of Wisconsin.

Argued Feb. 24, 2016.
Decided July 6, 2016.


884 N.W.2d 487

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.

DAVID T. PROSSER, J.

370 Wis.2d 7

¶ 1 This is a review of an unpublished decision of the court of appeals affirming a circuit court order rejecting constitutional challenges to Wis.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

370 Wis.2d 8

¶ 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.

884 N.W.2d 488

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, 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.

370 Wis.2d 9

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 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

370 Wis.2d 10

¶ 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

884 N.W.2d 489

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:

(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
370 Wis.2d 11
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 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

370 Wis.2d 12

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

884 N.W.2d 490

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 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.

370 Wis.2d 13

¶ 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...

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15 practice notes
  • Tetra Tech EC, Inc. v. Wis. Dep't of Revenue, No. 2015AP2019
    • United States
    • United States State Supreme Court of Wisconsin
    • June 26, 2018
    ...approach is very similar to the "rational basis" standard of review we apply to legislation. See Blake v. Jossart, 2016 WI 57, ¶ 31, 370 Wis.2d 1, 884 N.W.2d 484 (indicating that under rational basis review, "[i]n cases where a statutory classification does not involve a suspect class or a ......
  • Segregated Account of Ambac Assurance Corp. v. Countrywide Home Loans, Inc., No. 2015AP1493
    • United States
    • United States State Supreme Court of Wisconsin
    • June 30, 2017
    ...court generally avoids interpreting statutes in a way that places their constitutionality in question. Blake v. Jossart , 2016 WI 57, ¶27, 370 Wis.2d 1, 884 N.W.2d 484 ("[I]f any doubt exists about the statute's constitutionality, the court must resolve that doubt in favor of upholding the ......
  • E. Glenn Porter, III & Highland Mem'l Park, Inc. v. State, Appeal No. 2016AP1599.
    • United States
    • Court of Appeals of Wisconsin
    • August 29, 2017
    ...Porter's constitutional claims, we presume the anti-combination laws are constitutional. See Blake v. Jossart , 2016 WI 57, ¶27, 370 Wis. 2d 1, 884 N.W.2d 484, cert. denied , ––– U.S. ––––, 137 S.Ct. 669, 196 L.Ed.2d 526 (2017). To overcome this presumption, Porter must 378 Wis.2d 130demons......
  • Teague v. Schimel, No. 2014AP2360
    • United States
    • United States State Supreme Court of Wisconsin
    • June 8, 2017
    ...rights; among these are life, liberty and the pursuit of happiness." Wis. Const. art. I, § 1 ; Blake v. Jossart , 2016 WI 57, ¶28, 370 Wis. 2d 1, 884 N.W.2d 484, cert denied , ––– U.S. ––––, 137 S.Ct. 669, 196 L.Ed.2d 526 (2017) (We "treat[ ] these provisions of the United States and Wiscon......
  • Request a trial to view additional results
14 cases
  • Tetra Tech EC, Inc. v. Wis. Dep't of Revenue, No. 2015AP2019
    • United States
    • United States State Supreme Court of Wisconsin
    • June 26, 2018
    ...approach is very similar to the "rational basis" standard of review we apply to legislation. See Blake v. Jossart, 2016 WI 57, ¶ 31, 370 Wis.2d 1, 884 N.W.2d 484 (indicating that under rational basis review, "[i]n cases where a statutory classification does not involve a suspect class or a ......
  • Segregated Account of Ambac Assurance Corp. v. Countrywide Home Loans, Inc., No. 2015AP1493
    • United States
    • United States State Supreme Court of Wisconsin
    • June 30, 2017
    ...court generally avoids interpreting statutes in a way that places their constitutionality in question. Blake v. Jossart , 2016 WI 57, ¶27, 370 Wis.2d 1, 884 N.W.2d 484 ("[I]f any doubt exists about the statute's constitutionality, the court must resolve that doubt in favor of upholding the ......
  • E. Glenn Porter, III & Highland Mem'l Park, Inc. v. State, Appeal No. 2016AP1599.
    • United States
    • Court of Appeals of Wisconsin
    • August 29, 2017
    ...Porter's constitutional claims, we presume the anti-combination laws are constitutional. See Blake v. Jossart , 2016 WI 57, ¶27, 370 Wis. 2d 1, 884 N.W.2d 484, cert. denied , ––– U.S. ––––, 137 S.Ct. 669, 196 L.Ed.2d 526 (2017). To overcome this presumption, Porter must 378 Wis.2d 130demons......
  • Teague v. Schimel, No. 2014AP2360
    • United States
    • United States State Supreme Court of Wisconsin
    • June 8, 2017
    ...rights; among these are life, liberty and the pursuit of happiness." Wis. Const. art. I, § 1 ; Blake v. Jossart , 2016 WI 57, ¶28, 370 Wis. 2d 1, 884 N.W.2d 484, cert denied , ––– U.S. ––––, 137 S.Ct. 669, 196 L.Ed.2d 526 (2017) (We "treat[ ] these provisions of the United States and Wiscon......
  • Request a trial to view additional results
1 books & journal articles
  • PAYING FOR A CLEAN RECORD.
    • United States
    • Journal of Criminal Law and Criminology Vol. 112 Nbr. 3, June 2022
    • June 22, 2022
    ...Hawker v. New York, 170 U.S. 189, 197 (1898) (approving of conviction-related bars for some professional licenses); Blake v. Jossart, 884 N.W.2d 484, 498 (Wis. 2016) (finding license revocation of a childcare provider based on a 30-year-old misdemeanor conviction (26) Annie Zhang, Sanctione......

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