July 18, 2002

By Steven P. Garmisa
Hoey & Farina
sgarmisa@hoeyfarina.com

Grace Olech is still battling the Village of Willowbrook in the U.S. District Court for the Northern District of Illinois. The case is on remand from the U.S. Supreme Court.

Surprisingly, while the Supreme Court decision involved the pleading requirements for a "class-of-one" equal protection case, there's still a lingering question about what Olech has to plead and prove.

The problem is that three recent cases from the 7th U.S. Circuit Court of Appeals (issued after the Supreme Court ruled two years ago in Village of Willowbrook v. Olech) disagree on whether the plaintiff in a class-of-one case has to plead and prove that differential treatment by the government was the result of personal hostility, or whether there is an equal protection violation if the government conduct was just plain nuts.

The question is, Does Olech have to prove ill will by village officials, or is irrationality good enough?

Plenty of future cases depend on the answer. Proof of hostile animus by government officials might be difficult to uncover. More often, the plaintiff will be able to plead and prove that differential treatment by the government is irrational.

Winding up with the Olech case on remand, U.S. Magistrate Judge Sidney I. Shenkier had to figure out what Olech has to prove at trial. Olech v. Village of Willowbrook, 2002 WL 1058843 (N.D. Ill.). Shenkier's problem was that recent 7th Circuit decisions have taken inconsistent positions on class- of-one cases.

Ruling on a motion for summary judgment, Shenkier carefully dissects the prior litigation in Olech's case, and the three recent rulings from the 7th Circuit.

Grace Olech filed a complaint alleging she was deprived of equal protection because of differential treatment. She says the village allegedly treated her differently from other residents by demanding an easement before hooking up her property to a village water line.

A judge dismissed Olech's complaint, concluding she failed to adequately allege that the claimed differential treatment was motivated by "ill will."
The 7th Circuit reversed, ruling the complaint adequately alleged that the defendants (the village and municipal officials) were motivated by ill will.

"In Olech," Shenkier explained, "the 7th Circuit reaffirmed its earlier decisions holding that a single plaintiff may state a viable federal equal protection claim under a class-of-one theory. In so doing, the 7th Circuit identified ill will or malice as a central requirement of this kind of equal protection claim."

The U.S. Supreme Court affirmed the 7th Circuit in 2000. But the per curiam decision (joined by eight justices) didn't apply the 7th Circuit's analysis. While the Supreme Court ruled that there can be a valid class-of-one equal protection claim, Shenkier explained, "the Supreme Court did not cite ill will or malice as an essential element of such a claim."

Specifically, the judge said, "The Supreme Court held that a plaintiff may establish such a claim by proving that 'she has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment.'

"The Supreme Court did not ignore the question of ill will or malice. Instead, the Supreme Court cited ill will as an 'alternative' theory of proving a class- of-one claim, the viability of which the Supreme Court did not address in light of its holding that plaintiff had stated a claim under the differential treatment/ irrationality theory."

In a three-paragraph concurrence Justice Stephen G. Breyer said he was concerned that a ruling permitting class-of-one cases based on allegations of irrational classification would generate loads of equal protection lawsuits complaining about routine government decisions (like common zoning classifications). However, since Olech alleged actual animus by village officials, Breyer said he didn't believe there was any need for addressing the alternative theory, and he concurred in affirming the 7th Circuit.

Relying on Breyer's concurrence, the 7th Circuit's ruling in Hilton v. City of Wheeling, 209 F.3d 1005, 1008 (2000) concluded that the role of motive in class-of-one cases remained "unclear."

"The Hilton panel acknowledged that the Supreme Court's opinion characterized ill will as an 'alternative' theory for a class-of-one equal protection claim," Shenkier explained. "But, seizing upon Justice Breyer's concurring opinion, the 7th Circuit rejected any separation between the rationality inquiry and the inquiry into the existence of 'improper motive' or 'ill will.'

"The Hilton panel reasoned that if a mere allegation of intent -- what it termed an 'unexplained difference in treatment' -- was enough to state (and ultimately to prove) an equal protection claim, then 'the federal courts would be drawn deep into the local enforcement of petty state and local laws.' "

Because of this concern, the Hilton panel decided that in class- of-one cases, the requirement of proving that differential treatment has no rational basis should be interpreted as meaning "the plaintiff must present evidence that the defendant deliberately sought to deprive him of the equal protection of the laws for reasons of a personal nature unrelated to the duties of the defendant's position."

As the Hilton court viewed it, "cases such as Olech are 'vindictive action' cases, that require 'proof that the cause of the differential treatment of which the plaintiff complains was a totally illegitimate animus toward the plaintiff by the defendant.' "

Then, without mentioning its ruling in Hilton, the 7th Circuit reached a contrary conclusion in Alberio v. City of Kankakee, 246 F.3d 927 (2001).

In Alberio, Shenkier continued, "the 7th Circuit explained that the Supreme Court had 'recognized successful equal protection claims brought by a "class of one," where the plaintiff alleges that [he or she] has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment.' The Alberio panel went on to state that '[u]nder our circuit precedent,' there is another path to proving a class-of-one equal protection claim: 'an individual also may state a claim under the equal protection clause if he can show that state government took an action that "was a spiteful effort to get him for reasons wholly unrelated to any legitimate state objective."'

"As did the Supreme Court in Olech, the Alberio panel treated proof of ill will as an alternative means to establishing an equal protection claim. The Alberio court did not cite Hilton, or discuss the contrary analysis offered in that opinion."

The latest 7th Circuit case is Purze v. Village of Winthrop Harbor, 286 F.3d 452 (2002). In that case, "the 7th Circuit -- as it did in Hilton -- elided the traditional equal protection elements of intent and irrationality with a requirement of 'ill will.' In Purze, the appeals court stated that a plaintiff must show that the defendant(s) 'deliberately sought to deprive [the plaintiffs] of the equal protection of the laws for reasons of a personal nature unrelated to the duties of the defendants' position.' In so stating, the Purze court cited Hilton, but did not cite Alberio or discuss the contrary analysis offered in that opinion."

This was the mess confronting Shenkier.

"In the face of this conflict," Shenkier recounted, "the court must choose the path that it believes is most faithful to the Supreme Court's decision in Olech.''

Ultimately, Shenkier decided to "read the Supreme Court decision in Olech in the way that the panel in Alberio read that case: as holding that ill will is not a necessary element of a traditional equal protection claim, even in the 'class-of-one' setting. Although the panels in Hilton and Purze read 'ill will' as a necessary element of a class-of-one equal protection claim, the Supreme Court held that proof of motive is not essential to proving irrationality. While Justice Breyer's concurring opinion indicates that he disagrees, his concurrence was not necessary to create a majority (the other eight justices joined in the per curiam opinion without any qualification). Thus, we do not believe Justice Breyer's concurring opinion can be read as a limitation on the precedent established by the majority opinion."

Shenkier's analysis is persuasive. But with conflicting decisions from the 7th Circuit, it remains an open question whether ill will is an essential ingredient in a class-of-one equal protection case.