Tuesday, May 29, 2012
Class (of One) Conflict
A fascinating set of opinions has been released by the Seventh Circuit in a case dealing with the so-called "class-of-one" theory of equal protection. Del Marcelle v. Brown County. The case deals with a plaintiff's claim that the defendant county failed to respond to his claims of harassment by a motorcycle gang (if true, the gang's conduct is pretty serious). The plaintiff claimed that county law enforcement refused to help, and, indeed, that some officers were in cahoots with the gang members.
The district court dismissed the claim, reasoning, based on cases such as DeShaney v. Winnebago County and Town of Castle Rock v. Gonzalez, that there was no due process right to police protection. On appeal, the 7th Circuit panel noted that the complaint could be read to allege a claim that the county violated the plaintiff's equal protection rights under the class-of-one theory first accepted in Village of Willowbrook v. Olech. Before deciding the case, the full court heard the case en banc. The result, announced on May 17, was extremely interesting.
First, a very quick primer on the class-of-one theory. Classic equal protection doctrine deals with groups -- discrimination based on race, sex, whether you rent your truck out for other's advertising or use it for you own, etc. But in Olech the Court, in a short per curiam opinion joined in by all the justices except Justice Breyer, announced that individuals who suffered irrational discrimination could bring equal protection claims, even if they didn't claim discrimination based on a group characteristic. Justice Breyer concurred, but, expressing the same concern that had occupied the lower court (coincidentally, the 7th Circuit, in an opinion written by Judge Posner), he argued that a class-of-one plaintiff should be required to prove not just irrational discrimination, but animus. He worried, as did Judge Posner, that to rule otherwise would open the door for a limitless variety of lawsuits where unhappy citizens complained that government didn't give them something that they gave someone else (or, more likely, that the government burdened the plaintiff when not imposing similar burdens on similarly situated people). It doesn't take much thought to realize how far this could go: if you're the lucky driver getting a speeding ticket when everyone else on the highway was also speeding, and if the policeman had no particular reason for singling you out, were you the victim of an equal protection violation?
This concern over gave rise to a decade's worth of cases where lower courts have struggled with the scope of the class-of-one theory. That period was punctuated by the Court's decision in Engquist v. Ore. Dept of Agriculture, where the Court refused to apply the class-of-one theory to government employment claims, on the ground that government employment decisions, as inherently discretionary, were not suited to class-of-one challenges. But this ruling was (at least formally) limited to the employment context, leaving lower courts to puzzle out how its analysis fit with the Court's broad endorsement of such challenges in Olech.
Enter the 7th Circuit. The court split badly on the question how to approach such challenges. Four judges, led by Judge Posner (who wrote the appellate opinion in Olech that insisted on animus as part of a plaintiff's claim), insisted that class-of-one claims had to include at least "some improper personal motive for the discriminatory treatment." Maybe not animus -- although it's easy enough to slap the label "animus" on a finding that there was an "improper personal motive." It's quite a performance: in earlier post-Olech cases he had all-but re-imposed the animus requirement the Supreme Court majority did not require. Here he seems to even one step further. His opinion (which controlled the result, given the separate concurrence of Judge Easterbrook) affirmed the trial court's dismissal, without leave to re-plead.
Five judges, led by Judge Wood, attempted to harmonize the Court's and the lower courts' thinking on class-of-one claims. Judge Wood concluded that plaintiffs needed to allege "intentional and irrational" discrimination -- the key word here being "intentional." Animus, she said, was not a requirement, though it would help establish discriminatory "intent." These judges would have allowed the plaintiff to re-plead his complaint.
The opinions in this case are rich. The class-one-theory, while seemingly a minor doctrinal corner, raises foundational questions about equal protection law. What does it mean that equal protection is an individual right? What is irrationality in the equal protection context? What role does animus play? Are there areas where government is allowed to single out people in ways that might be described as "irrational"? I've written some about these issues (here and here), as have others. For those of you who are interested in equality law and haven't given this theory a lot of thought, it's worth a look, especially now that the 7th Circuit has teed up what seems like an ideal vehicle for Supreme Court to consider the issue yet again.
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