Class-of-One Equal Protection Claims: Uncertainty in the Seventh Circuit
Class-of-One Equal Protection Claims
It may surprise some of you to know that one can have a successful equal protection claim without being a member of a racial, gender, ethnic or other group.
In Village of Willowbrook v. Olech, 528 U.S. 562 (2000), a zoning case originating in the Seventh Circuit, the Supreme Court held that an equal protection claim can be based on arbitrary and capricious discrimination against an individual. Thereafter, in Engquist v. Oregon Dep’t of Agric., 553 U.S. 591 (2008), the Court excluded public employees from such class-of-one equal protection coverage. Otherwise, however, class-of-one equal protection claims are available.
Unfortunately, the Court in Olech did little to explain what the elements of such a claim are and whether such a plaintiff must allege and prove some sort of impermissible motive in order to state a class-of-one equal protection claim. This has created uncertainty in the circuits, as demonstrated by a recent decision of the Seventh Circuit.
Enter the Seventh Circuit En Banc
In Del Marcelle v. Brown County Corp., 680 F.3d 887 (7th Cir. 2012)(en banc), aff’g dismissal of complaint by equally divided court, the plaintiff sued law enforcement officers alleging that they failed to respond to his complaints that gangs were harassing him and his wife, thus forcing them to sell their home and move to another village “with the gangs in hot pursuit.”
Three judges—Judges Kanne, Sykes, and Tinder—joined a thoughtful opinion by Judge Posner proposing the following standard for class of one cases: the plaintiff must show that “he was the victim of discrimination intentionally visited on him by state actors who knew or should have known that they had no justification, based on their public duties, for singling him out for unfavorable treatment—who acted in other words for personal reasons, with discriminatory intent and effect.” 680 F.3d at 889 (emphasis added and in original). Here, the plaintiff did not satisfy these rigorous requirements, including subjective ill will. In passing, Judge Posner wondered why the Court in Olech did not adopt this approach. He went on to emphasize that a plaintiff must prove both the absence of a rational basis and some improper personal motive.
Judge Easterbrook concurred in the judgment, 680 F.3d at 900, arguing that motive should play no role at all. Rather, it is the existence of no rational basis that should be determinative.
Judges Flaum, Rovner, Williams, and Hamilton joined in an equally thoughtful opinion by Judge Wood. They argued for the following standard: a class-of-one plaintiff must plausibly plead that he or she was the victim of intentional discrimination at the hands of a state actor who lacked a rational basis for so singling out the plaintiff, thereby causing harm. Other factors such as ill will and illegitimate motives were merely illustrative of the facts on which a plaintiff might rely in the complaint to show the lack of a rational basis. In this case, the plaintiff’s allegations were insufficient to state a class-of-one equal protection claim but the case should be remanded and he should be allowed to replead using this standard.
This is an issue that will eventually have to be decided by the Supreme Court. Nevertheless, in my view, Judge Wood and her four colleagues got it right.