Blake v. Jossart

• Citation: 370 Wis.2d 1,884 N.W.2d 484
• Decision Date: 06 July 2016
• Docket Number: No. 2012AP2578.,2012AP2578.
• Parties: 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.
• Court: United States State Supreme Court of Wisconsin

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.

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.

¶ 1 This is a review of an unpublished decision of the court of appeals affirming a circuit court order rejecting constitutional challenges to Wis.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

¶ 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, 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 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:

(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 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 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 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...