Friday, February 03, 2006
The strange legacy of Village of Willowbrook v. Olech
I’ve long been a fan of constitutional oddities, and this one was too weird for me to pass up. In a law-is-stranger-than-fiction moment, a recent Fourth Circuit case echoed the plot of 80s classic film Footloose. In a small town in western North Carolina, the town fathers banned Rebecca Willis from state-funded community center dance events for the excessive sensuality with which she participated in the festivities. Deprived of one venue for exhibitionism, Willis took her show to federal court, where she unleashed a barrage of constitutional claims (mainly first and fourteenth amendment) under the aegis of section 1983.
Undaunted by total defeat in district court, Willis appealed to the Fourth Circuit, where, somewhat surprisingly, she prevailed. She won in the sense that she made the Fourth Circuit immortalize her dirty dancing in a Starr Report-esque retelling. But she also won in a substantive (though partial) sense: while the court dismissed almost all of her claims, it did find that there were questions of fact on Willis’ class-of-one equal protection claim, vacated the summary judgment on that issue, and remanded the matter to the district court.
Willis is more than just an amusing legal peculiarity: it points to a pair of ongoing problems raised by Village of Willowbrook v. Olech, the Supreme Court’s brief but influential 2001 decision that upheld an equal protection claim brought by a single individual alleging arbitrary treatment at the hands of a local government.
The first is that Willis is not really such a peculiar case at all. While many (most?) of the Court’s major constitutional decisions are met with scholarly announcements that a flood of frivolous litigation or an angry legislative backlash is in the offing, many (most?) of these claims turn out to be exaggerated. (See, for example, David Barron’s recent debunking of the notion that Kelo would work great changes in state and local statutory law.)
Olech, on the other hand, was a relatively minor constitutional decision, in the sense that it attracted little attention and only took up a handful of paragraphs in U.S. Reports. Despite its low profile, though, the case actually has resulted in a flood of litigation, and it’s no wonder. In order to state a class-of-one claim under Olech, one need only show that they were treated differently than similarly situated persons by a state actor in the absence of any rational basis for the differential treatment. Any terminated government employee or property owner who doesn’t like the decision of a local zoning board is going to feel mistreated by the government, and Olech makes these commonplace grievances into plausible constitutional claims—hence Willis and the nearly two thousand other class-of-one claims that have deluged the (mostly lower) federal courts since the case was decided.
This might not be a problem if all these cases had a more sturdy constitutional backbone. Olech didn’t generate much reaction, let alone criticism, from commentators, but has always seemed to me to rely on a problematic interpretation of the equal protection clause. There may be a lot of dispute over which and what kind of groups the clause is supposed to protect, but it seems to me that the best reading of the clause is that it was designed to protect groups in the interest of preventing the development of a caste-based society, as opposed to merely shielding individuals from arbitrary exercises of state authority.
And it's not as though the Constitution rendered indivdiduals powerless against arbitrary exercises of state power prior to Olech. There's always been a longstanding source of rights against such conduct: the due process clause(s). Admittedly, the standard for showing that government action violates substantive due process is steep, but as Willis illustrates, the litigation that's sprung up in reaction to Olech suggests practical reasons that a high standard may not be such a bad idea.
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The Olech standard turns out to be relatively high for some judges, who view "similarly situated" pretty strictly.
Posted by: Hillel Levin | Feb 3, 2006 8:50:23 AM
True that a lot of judges have gone to lengths to find a more limited reading of Olech. Another tactic some have used is simply to adopt the standard Breyer suggested in his concurrence, that plaintiffs must also show the state actor’s conduct was motivated by some animus. E.g., Hilton v. City of Wheeling, 209 F.3d 1005 (7th Cir. 2000) (Posner, J.).
Posted by: Dave | Feb 3, 2006 4:17:56 PM
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