Jamerson v. Dep't of Children & Families, 2011AP593.
| Citation | 2013 WI 7,824 N.W.2d 822,345 Wis.2d 205 |
| Decision Date | 10 January 2013 |
| Docket Number | No. 2011AP593.,2011AP593. |
| Parties | Angelia JAMERSON, Petitioner–Appellant, v. DEPARTMENT OF CHILDREN & FAMILIES and Wisconsin Department of Administration, Division of Hearings and Appeals, Defendants–Respondents–Petitioners. |
| Court | United States State Supreme Court of Wisconsin |
OPINION TEXT STARTS HERE
For the defendants-respondents-petitioners, the cause was argued by Mary E. Burke, assistant attorney general, with whom on the brief was J.B. Van Hollen, attorney general.
For the petitioner-appellant, there were briefs filed by Jill M. Kastner and Sheila Sullivan, and Legal Action of Wisconsin, Inc., Milwaukee, and oral argument by Jill M. Kastner.
[345 Wis.2d 209]¶ 1 The genesis of this case is the revocation of Angelia Jamerson's child care license by the Department of Children and Families (the Department). The Department based its action on Wis. Stat. § 48.685(5)(br)5. (2009–10).1 This statute permanently bars those who have ever been convicted of specified predicate crimes from holding a child care license. Section 48.685(5)(br) was created by 2009 Wis. Act 76 with an effective date of February1, 2010.2 We refer to § 48.685(5)(br) herein either by the statutory number or descriptively as the new caregiver law.
¶ 2 The new caregiver law imposes a lifetime ban on licensure, a harsh penalty on a license holder who had been convicted of a predicate offense many years before the new caregiver law went into effect. In the present case, Ms. Jamerson had her license revoked on January 20, 2010, and her appeal of the revocation was dismissed without a hearing based on her conviction on a guilty plea of violating Wis. Stat. § 49.12(1) and (6) nearly 20 years before. 3
[345 Wis.2d 211]¶ 3 This matter is a review of a published decision of the court of appeals reversing orders of the Circuit Court for Milwaukee County, Dennis P. Moroney, Judge.4
¶ 4 The circuit court affirmed the Department's decision5 to dismiss Ms. Jamerson's appeal without a hearing, concluding that Ms. Jamerson's food stamp offense under Wis. Stat. § 49.127(2m) constituted a conviction of “[a]n offense involving fraudulent activity as a participant of the food stamp program.” 6 The circuit court concluded that it was unclear whether Ms. Jamerson's violation of § 49.12(1) and (6) constituted fraudulent activity.
[345 Wis.2d 212]¶ 5 The court of appeals reversed the orders of the circuit court affirming the Department's decision. The court of appeals concluded that a remand for an administrativehearing was required to determine whether the facts underlying the conviction established it as a conviction barred under the new caregiver law. The court of appeals explained that Wis. Stat. § 49.12(1) and (6) is not an offense specifically enumerated in the new caregiver law as a predicate offense, and nothing in the record demonstrates that Ms. Jamerson's conduct was a fraudulent activity involving a food stamp offense. 7 The court of appeals reasoned that Ms. Jamerson's conviction under § 49.12(1) and (6), without further factual development, does not place her under the new caregiver law's permanent bar.
¶ 6 We affirm the decision of the court of appeals, which remanded the matter to the Division of Hearings and Appeals for a hearing to determine whether Ms. Jamerson's 1991 conviction under Wis. Stat. § 49.12(1) and (6) fulfills the requirements of Wis. Stat. 48.685(5)(br)5.
¶ 7 We address three issues presented to this court. The concurrence addresses issues not briefed or argued.
¶ 8 First, we address the level of deference to be accorded the Department's interpretation and applicationof the new caregiver law in the present case. More specifically, we address the deference to be accorded the Department's determination that Ms. Jamerson's conviction under Wis. Stat. § 49.12(1) and (6) constitutes, as a matter of law, an offense involving fraudulent activity as a participant in certain public benefit programs for the purposes of the new caregiver law.
¶ 9 We conclude that due weight deference should be accorded the Department's interpretation and application of the new caregiver law in the present case.
¶ 10 Second, we address the procedure the Administrative Law Judge is to use in Ms. Jamerson's appeal of the Department's decision to revoke her license. More specifically, we address whether the Department's interpretation and application of the relevant statutes to deny Ms. Jamerson a contested case hearing is contrary to the clear meaning of the statutes or no more reasonable interpretation of the statutes exists.
¶ 11 We conclude that Wis. Stat. §§ 48.72 and 227.44 govern this issue. Section 48.72 explicitly states that “any person aggrieved by the department's refusal or failure to ... continue a license ... has the right to an administrative hearing provided for contested cases in ch. 227....” It further provides that the administrative hearing be held “under s. 227.44 within 30 days after receipt of the request for an administrative hearing....”
¶ 12 Adhering to the text of Wis. Stat. §§ 48.72 and 227.44, we conclude that the clear meaning of the relevant statutes and the more reasonable interpretation of the statutes is that Ms. Jamerson has the right to a hearing provided for a contested case under § 227.44. Like the court of appeals, we do not address the authority of an administrative law judge to grant a motion to dismiss without convening a hearing.
[345 Wis.2d 214]¶ 13 Third, we address whether the Department's interpretation and applicationof the relevant statutes to permit the Administrative Law Judge, as a matter of law, to grant the Department's motion to dismiss Ms. Jamerson's appeal is contrary to the clear meaning of the relevant statutes or no more reasonable interpretation of the statute exists. To answer this question, we must clarify several factual and procedural matters.
¶ 14 On this review, the only basis for the revocation, that is, the only predicate crime under the new caregiver law justifying revocation, is Ms. Jamerson's conviction in 1991 on her guilty plea for violating Wis. Stat. § 49.12(1) and (6). Any other bases for the Department's revoking Ms. Jamerson's license are no longer at issue.
¶ 15 With regard to the adequacy of the record to prove the only alleged predicate offense for revocation, namely the 1991 conviction for violating Wis. Stat. § 49.12(1) and (6), the Department has changed its position since briefing and oral argument in this court.
¶ 16 In its briefs to the court of appeals and this court, the Department asserted that it may be factually inferred from Ms. Jamerson's food stamp conviction (under § 49.127(2m)) that food stamps were the public benefit upon which the § 49.12(1) and (6) conviction was based.8
[345 Wis.2d 215]¶ 17 The Department now “withdraws” this argument and asks this Court to decide the other issues presented but to remand the narrow factual issue of the public benefit involved in Ms. Jamerson's § 49.12(1) and (6) conviction for further administrative proceedings pursuant to Wis. Stat. § 227.57(7). 9
¶ 18 We conclude, as did the court of appeals (and as the Department now concludes), that on the present record, the Department and the Administrative Law Judge could not have determined, as a matter of law without further factual development, whether Ms. Jamerson's conviction was for a predicate offense under the new caregiver law.
¶ 19 A genuine issue of material fact exists regarding Ms. Jamerson's conviction under Wis. Stat. § 49.12(1) and (6). Therefore, the Department's interpretation and application of the relevant statutes permitting the Department to dismiss Ms. Jamerson's appeal was contrary to the clear meaning of the relevant statutes and a more reasonable interpretation exists. Ms. Jamerson is entitled to a hearing.
¶ 20 In sum, we conclude that due deference should be accorded the Department's interpretation and application of the new caregiver law in the present case; that Wis. Stat. §§ 48.72 and 227.44 accord Ms. Jamerson the right to a hearing, which shall be treated as a contested case under § 227.44; and that because genuine issues of material fact exist, the AdministrativeLaw Judge erred as a matter of law in dismissing Ms. Jamerson's appeal without a hearing for factual development.
¶ 21 Accordingly, we remand Ms. Jamerson's appeal to the Division of Hearings and Appeals for a hearing consistent with this opinion.
¶ 22 The historical and procedural facts relevant to this review are essentially undisputed. Angelia Jamerson owned and operated a child care facility, Children's Fantasy Child Care and Preschool, in Milwaukee, Wisconsin.
¶ 23 On January 20, 2010, the Department notified Ms. Jamerson that her child care license was revoked. The notice of revocation provided two bases for the Department's action of revocation: (1) criminal charges against an employee for sale of marijuana during working hours; and (2) the new caregiver law prohibiting Ms. Jamerson from holding a license because she had been convicted of two offenses relating to the receipt of public assistance benefits. In 1991, Ms. Jamerson was convicted of two criminal offenses on a plea of guilty: violation of Wis. Stat. § 49.12(1) and (6) and violation of § 49.127(2m).
¶ 24 Although the Department's notice of revocation relied on the marijuana charge against the employee and the two 1991 convictions, the Department's motion to dismiss Ms. Jamerson's request for a hearing relied only on her violation of § 49.12(1) and (6) as a predicate offense under the new caregiver law. The decision of the Administrative Law Judge (which the Department adopted as its final order) also relied only on Ms. Jamerson's violation of § 49.12(1) and (6).
Section 49.12(1) and (6) provide as follows:
(1) Any person who, with intent to secure public assistance under this chapter, whether for himself or herself or for some other person, wilfully makes any...
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