Equal Protection Questions Remain After 5-5 Split in the Seventh Circuit.
In May of 2012, the United States Court of Appeals for the Seventh Circuit issued its en banc decision in Del Marcelle v. Brown County Corp.[i] In Del Marcelle, the plaintiff had filed a 42 U.S.C. § 1983 lawsuit claiming that he was subjected to discrimination by law enforcement when local police officers allegedly stopped investigating his multiple complaints against his neighbors. Further, the plaintiff alleged he was discriminated against since he was issued disorderly conduct citations while his neighbors were not. The plaintiff’s claims were categorized as “class of one” equal protection claims. Both Attorney Rebecca Levin and I had the privilege of representing one of the defendant municipalities and law enforcement agencies at the district court and on appeal.
The United States District Court for the Eastern District of Wisconsin granted a Rule 12(b)(6) motion to dismiss and dismissed Mr. Del Marcelle’s claims at the pleading stage. The plaintiff then filed an appeal to the Court of Appeals for the Seventh Circuit. After an original draft panel opinion was circulated, the court voted to hear the case en banc[ii] in an effort to identify the proper elements of and standard of review for class of one equal protection claims.[iii] However, rather than providing the desired clarity, the court’s decision included three separate opinions and ultimately a 5-5 split. Despite the thoughtful and precise analysis by the court, the end result was of no binding legal precedent. To further understand why such a split exists within the Seventh Circuit and nationally, it is helpful to revisit how equal protection cases have developed and how the class of one claim came into existence.
In 2000, in Olech v. Village of Willowbrook,[iv] the Supreme Court of the United States first recognized a new breed of equal protection claim: class of one. Prior to Olech, claimed violations of the Fourteenth Amendment’s Equal Protection Clause were largely grounded in discrimination based on classifications of minority groups. Mostly, these cases involved allegations of discrimination that was connected to the original intent of the Fourteenth Amendment—namely, to ward off discrimination against the newly-freed slaves after the Civil War.[v] With time, and in conjunction with 42 U.S.C. § 1983, the Equal Protection Clause also came to provide a basis for seeking legal intervention in response to discrimination based on other “suspect classes,” including race, religion, and gender.[vi] However, as the case law continued to develop, it grew clear to many jurists that the Fourteenth Amendment also protects individuals, not just groups.[vii] With that premise in mind, Ms. Olech proceeded into federal court with her claim.
Grace Olech was a resident of the Village of Willowbrook, Illinois, and was one of several residents who had requested that a water lateral be installed by the village so that she could utilize municipal water.[viii] The village was willing to provide Ms. Olech with a lateral, but requested a 33 foot easement to accomplish this task.[ix] The village had previously installed water laterals for Ms. Olech’s neighbors and had only requested 15 foot easements from those neighbors.[x] In what was argued to be a motivation by the village to impose a stricter requirement on Ms. Olech, she had previously won a lawsuit against the village related to the construction of culverts near her property.[xi] Feeling singled out and discriminated against by the imposition of the 33 foot easement requirement, Ms. Olech filed suit in federal court asserting that her equal protection rights had been violated.
Once Ms. Olech’s case reached the Seventh Circuit Court of Appeals in 1998, it was relatively well-accepted that the Equal Protection Clause of the Fourteenth Amendment did not just protect groups of people (“suspect classes”), but also individuals like Ms. Olech who claimed discrimination. With this understanding, the Seventh Circuit ruled that Ms. Olech had in fact stated a claim—a “class of one” equal protection claim.[xii] In permitting the claim to proceed, the Seventh Circuit identified a fundamental element that was present within Ms. Olech’s claim: Ms. Olech alleged that the discrimination against her arose out of illegitimate animus on the part of government officials (namely, alleged ill will from the prior successful lawsuit).[xiii] Further, the Seventh Circuit concluded that there was no rational basis to explain the differential treatment.[xiv]
The Supreme Court of the United States accepted certiorari in the matter and issued a 3-page per curiam opinion affirming the Seventh Circuit.[xv] However, while the Supreme Court affirmed the decision, it did not address all three criteria outlined by the Seventh Circuit. Instead, the Supreme Court reflected that equal protection claims can be brought when a “plaintiff alleges that she has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment.”[xvi] Further, the court expressly indicated that, while it affirmed the Seventh Circuit, it did not reach the animus analysis the lower court had relied on.[xvii]
With the Supreme Court’s ruling in Olech, a new civil rights cause of action was undeniably born. However, the precise legal elements and standard by which such claims were to be evaluated was left to interpretation. Was the standard articulated by the Seventh Circuit the appropriate standard by default based on the Supreme Court’s affirming of the result? Were courts free to adopt their own standards? Should other standards be applied in alternative claims of discrimination different from Olech?
The result of this uncertainty was varied rulings on different types of claims. However, courts demonstrated nearly unanimous concern related to the potential for a flood of federal litigation over insignificant differential treatment.[xviii] Noting these concerns, some circuits embraced the Seventh Circuit’s animus requirement, while other circuits considered proof of animus as an alternative to proving the lack of a rational basis.[xix]
In addition to the uncertainty regarding the appropriate elements of a class of one equal protection claim, courts also confronted claims of unequal treatment in contexts beyond the clear differential treatment that could be shown in legislative and regulatory state action. One area that caused particular concern was the government’s treatment of government employees—an area where government had long exercised significant discretion. Some courts adopted the position that the government should continue to be permitted discretion when exercising its role as employer and that differential treatment in the employment context should not face equal protection scrutiny unless the disparity involved discrimination based on an individual belonging to a suspect class.[xx] Still, other courts adopted the position that class of one equal protection claims could be made in the face of all forms of government action, even including those cases involving employment matters where the government traditionally had been afforded discretion in its decision making.[xxi] For several years after Olech, federal courts struggled with the question of whether there were any limitations on class of one equal protection claims and what legal elements were required to state and prove such claims.
In 2008, the Supreme Court attempted to bring some guidance to this area when it heard argument in Engquist v. Oregon Dept. of Agriculture.[xxii] The court in Engquist considered whether to uphold a jury’s verdict in favor of a state employee who was effectively laid off while she claimed others received more favorable treatment.
Anup Engquist worked as an International Food Standard Specialist in a laboratory within the Oregon Department of Agriculture.[xxiii] She alleged that she had had disagreements with her supervisors over the course of the nearly 10 years that she was employed by the state.[xxiv] In 2002, there were across-the-board budget cuts throughout Oregon and Ms. Engquist was left with the option to apply for a promotion or accept a demotion.[xxv] Supervisors with whom Ms. Engquist had previously quarreled concluded that she was not qualified for the promotion and Ms. Engquist refused to accept the demotion.[xxvi] Ultimately, Ms. Engquist’s position was eliminated and she was effectively laid off.
Ms. Engquist then brought suit, alleging both suspect class-based discrimination and class of one equal protection claims. At trial, the jury rejected Ms. Engquist’s suspect class-based equal protection claim, but found in favor of Ms. Engquist on her class of one equal protection claim.[xxvii] The jury found that Ms. Engquist’s supervisors “intentionally treat[ed] [her] differently than others similarly situated with respect to the denial of her promotion, termination of her employment, or denial of bumping rights without any rational basis and solely for arbitrary, vindictive or malicious reasons.”[xxviii] To find in favor of Ms. Engquist, the trial court had instructed the jury that it must find the following elements: (1) intentional discrimination; (2) the lack of rational basis for the discrimination; and (3) the existence of animus as the sole basis for the discrimination.[xxix]
On appeal, the Court of Appeals for the Ninth Circuit recognized that some circuits had extended Olech’s class of one equal protection analysis to cases involving government employment.[xxx] However, the Ninth Circuit disagreed with those cases and concluded that, since the state had typically been provided more discretion in its actions as employer when compared to its actions as regulator, class of one claims were not viable against the state for employment decisions. In light of this split in the circuits, the Supreme Court granted certiorari.[xxxi]
While some aspects of oral argument before the Supreme Court considered what elements should be required to prove a class of one equal protection claim, the Supreme Court ultimately affirmed the Ninth Circuit and concluded that class of one equal protection claims may not be made against the state for employment decisions.[xxxii] Specifically, the Supreme Court ruled that the state, acting as employer, has traditionally been granted wide discretion and that such discretion should not be impeded by potential class of one equal protection claims. The court stated: “[w]e have long held that there is a crucial difference, with respect to constitutional analysis, between the government exercising power to regulate or license, as lawmaker, and the government acting as proprietor to manage [its] internal operation.”[xxxiii]
At the root of the difference between the government’s role as lawmaker and the government’s role as employer are the subjective and individualized assessments that the state must make as employer. In that regard, the Supreme Court recognized that “[t]here are some forms of state action … which by their nature involve discretionary decision-making based on a vast array of subjective, individualized assessments. In such cases the rule that people should be treated alike, under like circumstances and conditions is not violated when one person is treated differently from others, because treating like individuals differently is an accepted consequence of the discretion granted.”[xxxiv]
To further illustrate the foregoing point, the court used an example of a police officer confronted with multiple speeding drivers on a busy highway. If the officer stopped one of many speeders and gave that unlucky driver a speeding ticket with no rational basis to distinguish stopping that driver from any of the other speeders, in theory, a class of one arguably existed.[xxxv] However, the court cautioned that “allowing an equal protection claim on the ground that a ticket was given to one person and not others, even if for no discernible or articulable reason, would not be incompatible with the discretion inherent in the challenged action.”[xxxvi] In essence, as Judge Posner later reflected in Del Marcelle, random can be rational.[xxxvii] The Supreme Court ruled that the government’s action in the employment context was the clearest (but perhaps not sole) example of such discretion and concluded that class of one claims could not be asserted based on the employment-related state action that was the subject of the Engquist appeal.[xxxviii]
Because of the rationale for the Supreme Court’s ruling in Engquist, the court did not reach the issue of whether the trial court had properly instructed the jury on the elements of a class of one equal protection claim. Accordingly, those looking for more direction regarding what role, if any, animus should play and whether the rational basis standard should be applied in all types of class of one claims found little solace in the Engquist decision. Federal courts continue to be called on to rule on class of one equal protection claims at a time when the elements of the cause of action and appropriate standard of proof have yet to be clearly defined.
Further, the barring of class of one claims in the employment context based on the discretionary nature of employment decisions gave pause to courts considering class of one claims involving other forms of state action that have traditionally been provided discretion. Most notably, some courts, relying on the Supreme Court’s dictum regarding discretionary law enforcement activities, have expressly held that class of one equal protection claims are barred against law enforcement personnel for such activities.[xxxix] Other courts, perhaps most notably the Seventh Circuit, have held to the contrary, concluding that law enforcement personnel may indeed be held liable under a class of one theory in some circumstances.[xl]
The appeal in Del Marcelle considered both issues—whether a class of one claim could be asserted against law enforcement officers and, if it could, what elements were necessary to establish such a claim. From the three opinions authored by the court, it is evident that the Seventh Circuit has parted company from some of its sister circuits, and the court seems willing to permit class of one equal protection claims against law enforcement officers in at least some cases. However, no such consensus exists within the Seventh Circuit with regard to what elements are required to plead or establish a class of one claim.
The lead opinion, authored by Judge Richard Posner, proposed the following for a plaintiff to plead and prove: “intentional discriminatory treatment that lacks any justification based on public duties and … some improper personal motive for the discriminatory treatment.”[xli] Additionally, a concurring opinion was authored by Judge Frank Easterbrook. Judge Easterbrook’s concurrence casted serious question on whether standing exists to assert such a claim and also highlighted the flaws of attempting to apply a class of one analysis in cases that lack the ability to have a clear standard from which departures could be readily determined (as was the case in Olech).[xlii] As such, Judge Easterbrook concluded that the Supreme Court’s holding in Engquist meant that employment matters are just one example of class of one claims barred due to the inherent discretionary authority provided to the government.[xliii] With that analysis in mind, Judge Easterbrook concluded that “discretionary decisions in law enforcement are not amenable to class-of-one analysis.”[xliv]
The dissenting opinion in Del Marcelle, authored by Judge Diane Wood, proposed the following elements to state and prove a class of one claim: (1) plaintiff was a victim of intentional discrimination; (2) at the hands of a state actor; (3) the state actor lacked a rational basis for so singling out the plaintiff; and (4) the plaintiff has been injured by the intentional discriminatory treatment.[xlv] Importantly, the dissent also noted it would not necessarily always require the existence of a similarly situated comparator for class of one claims, especially at the pleadings stage of a case.[xlvi]
It remains unclear how or when the split between the circuits and within the Seventh Circuit will be resolved. However, for at least the time being, class of one claims continue to exist and weigh on government officials despite the lack of a clearly defined standard.
[i] --- F.3d ---, 2012 WL 1816190 (7th Cir. May 17, 2012).
[ii] Seventh Circuit Local Rule 40(e) is an important provision that likely explains why many petitions for rehearing en banc are denied. Before panel decisions are released, they are subject to a review and potential vote by the full court.
[iii] Del Marcelle, 2012 WL 1816190, at *3.
[iv] Olech v. Village of Willowbrook, 528 U.S. 562 (2000).
[v] See e.g., Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 70-71 (1872).
[vi] See e.g., Frontiero v. Richardson, 411 U.S. 677, 687-689 (1973).
[vii] Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995).
[viii] Olech v. Village of Willowbrook, 160 F.3d 386, 387 (7th Cir. 1998).
[xi] Id. at 387-388.
[xii] Id. at 388.
[xiv] Id. at 389.
[xv] Olech, 528 U.S. 562.
[xvi] Id. at 564.
[xvii] Id. at 565.
[xviii] See e.g., Bell v. Duperrault, 367 F.3d 703, 709-713 (7th Cir. 2004) (Posner, J., concurring).
[xix] Del Marcelle, 2012 WL 1816190, at **11-13 (collecting cases); see also SECSYS, LLC v. Vigil, 666 F.3d 678, 689-690 (10th Cir. 2012); Davis v. Prison Health Services, --- F.3d ---, 2012 WL 1623216 (6th Cir. May 10, 2012).
[xx] Engquist v. Oregon Dept. of Agriculture, 478 F.3d 985, 992-993 (9th Cir. 2007) (collecting cases).
[xxii] Engquist v. Oregon Dept. of Agriculture, 553 U.S. 591 (2008).
[xxiii] Id. at 594.
[xxv] Id. at 595.
[xxvii] Id. at 596.
[xxviii] Id. (emphasis added).
[xxxi] Id. at 596-597.
[xxxii] Id. at 609.
[xxxiii] Id. at 598 (internal quotations omitted).
[xxxiv] Id. at 603.
[xxxv] Id. at 603-604.
[xxxvi] Id. at 604.
[xxxvii] Del Marcelle, 2012 WL 1816190, at *18.
[xxxviii] Engquist, 553 U.S. at 604.
[xxxix] See e.g., Flowers v. Minneapolis, 558 F.3d 794, 799-800 (8th Cir. 2009).
[xl] Geinosky v. City of Chicago, 675 F.3d 743, 745 (7th Cir. 2012).
[xli] Del Marcelle, 2012 WL 1816190, at *28.
[xlii] Id. at **29-42
[xliii] Id. at *40.
[xliv] Id. at *41.
[xlv] Id. at *60.
[xlvi] Id. at **62-63.