July 28, 2016 – A woman convicted of welfare fraud 30 years ago will never get her childcare certification back, the Wisconsin Supreme Court recently ruled, a 5-2 majority upholding a 2009 law that bans childcare certifications if convicted for certain crimes.
Sonja Blake became a certified childcare provider in 2001 and built a home childcare business. She received Wisconsin Shares reimbursement, a childcare subsidy program for low-income families, from the Racine County Workforce Development Center.
She lost her certification in 2006 for failing to disclose that her son was living in her home. Recertified in 2008, she resumed her home childcare business. But in 2010, the Racine County Human Services Department permanently revoked her certification.
A new law had taken effect, requiring counties to conduct reviews of child care providers’ criminal backgrounds and impose lifetime certification bans on those who were convicted of certain crimes. Blake had a 1986 conviction for misdemeanor welfare fraud. She failed to report vehicles when applying for federal public assistance. She was sentenced to probation and was ordered to pay restitution for $294 in excess benefits.
Human Services concluded that public benefits fraud fell within the category of convictions contemplated by 2009 Wis. Act 76, which applies to childcare providers with care and supervision over four children or more or those over age seven. After her certification was revoked, she lost a second job at a children’s learning center.
In addition, under Wis. Stat. section 48.651(1), only certified childcare providers can receive public subsidies for child care services to low-income families. And section 48.685 bars certification for those convicted of “offenses involving fraudulent activity.”
As Justice David Prosser noted in a 5-2 decision, in Blake v. Jossart, 2016 WI 57 (July 6, 2016), 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.”
Blake challenged the lifetime ban on constitutional grounds, arguing that it violated the Equal Protection and Due Process clauses of the U.S. Constitution. She also argued that the lifetime ban created an “impermissible, irrebuttable presumption.”
Blake argued that section 46.685(5)(br)5’s lifetime ban denies her equal protection of the laws because other individuals can get their childcare certifications reinstated after five years, depending on the nature of their crime. And others can be reinstated by showing, with clear and convincing evidence, they have been rehabilitated.
But the five-justice majority ruled the law withstood scrutiny, concluding the legislature had a rational basis for enacting it: to prevent fraud against Wisconsin Shares.
Joe Forward, Saint Louis Univ. School of Law 2010, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6161.
“Because public benefits fraud is a particular type of fraud that the legislature sought to prevent, the legislature could reasonably determine that public benefits fraud offenses warranted a stricter prohibition than other underlying convictions,” Prosser wrote.
Blake argued that the law, which applies to child "caregiver" certifications, is too broad because it bars her from working anywhere requiring certification, even at centers or homes that do not receive Wisconsin Shares.
“[E]ven that expansive prohibition cuts to the law’s purpose of eliminating fraudulent activity in the Wisconsin Shares program,” Justice Prosser wrote.
“A caregiver employee with a record of fraudulent conduct could conspire with the operator of a licensed facility to alter records or otherwise defraud the Wisconsin Shares program, particularly if the facility is small and employs only a few caregivers.”
The majority also noted that childcare facilities can always accept Wisconsin Shares if they have proper credentials, so it makes sense to always hold them to high standards.
Finally, the majority rejected Blake’s as-applied challenge because “Racine County treated Blake in a manner consistent with the treatment of similarly situated providers in published cases” and “has not presented evidence to the contrary.”
Substantive Due Process
Blake argued that the law violates her substantive due process rights because it interferes with her liberty interest in practicing the caregiver profession.
The majority noted that the law is harsh, permanently barring her from an industry for a $294 illegal benefit that triggered a misdemeanor conviction three decades prior.
“But drawing attention to the distant nature of her conviction and the relative insignificance of the fraud involved does not prove that the legislature acted irrationally or arbitrarily in making people with such convictions ineligible to receive child care payments through a public benefit program,” Justice Prosser wrote.
The law, which responded to reports of systemic and widespread fraud by the Milwaukee Journal Sentinel, is a harsh but not irrational response to the widespread fraud that was happening at the time, Prosser noted.
Blake argued that the law creates an irrebuttable presumption, which violates substantive due process rights under cases decided by the U.S. Supreme Court.
But the majority noted that the U.S. Supreme Court distinguished irrebuttable presumption cases from cases involving challenges to social welfare legislation.
“Blake’s is not a case in which the legislature has declared certain facts about her to be true and then denied her any opportunity to present evidence disproving the truth of the State’s declaration,” Justice Prosser wrote.
“Instead, the State merely has rendered ineligible for payment through Wisconsin Shares people who share an objective characteristic – a conviction for an offense pertaining to public benefits fraud.”
Justice Shirley Abrahamson wrote a dissenting opinion, joined by Justice Ann Walsh Bradley, concluding the law “is not rationally related to legitimate state purposes.”
Abrahamson said the law does not pass the equal protection test because other crimes of dishonesty, like making false IDs or impersonating government agents, result in a five-year childcare certification ban. And convictions for child neglect, human trafficking, and other crimes won’t prevent certification if the person shows they are rehabilitated.
“I conclude that the three categories created by Wis. Stat. § 48.685 are irrational and arbitrary; they are not based upon substantial distinctions that make the classes really different from one another, and the classifications adopted are not germane to the purposes of the law,” Justice Abrahamson wrote.
Justice Abrahamson also concluded that the statute violates the due process clause because it “shocks the conscience” and does not pass the rational basis test.
“The permanent bar is based on a 30-year-old conviction for obtaining $294 in excess benefits under a federal public assistance program totally unrelated to Wisconsin Shares – the program which the legislature sought to protect by enacting Wis. Stat. § 48.685(5)(br)5. This result should shock the conscience. It does mine.”
Finally, Abrahamson also discussed the possibility that the law violates the Ex Post Facto Clause, which prohibits the government from passing retroactive laws with punitive effect. Normally a criminal law issue, Blake did not raise it.
But Justice Abrahamson said she might now because the Ex Post Facto Clause can apply to regulatory civil statutes that are punitive in purpose or effect.
“For several reasons, the permanent bar on obtaining a childcare certification … may be so punitive in purpose and effect that the otherwise regulatory civil statute may be transformed into a criminal penalty,” Justice Abrahamson wrote.
She said the law is arbitrary and “smacks of retribution,” noting the legislature passed it quickly in response to the Milwaukee Journal Sentinel reports.
“The prohibition on ex post facto laws stems from basic considerations of fairness and fair warning,” she wrote. “There is no fairness or fair warning.”