Suing the government for arbitrary actions.

One of the least noted Supreme Court decisions of the term could be one of the most important for plaintiff lawyers challenging the constitutionality of arbitrary government actions. In an opinion less than two pages long, the Court has given those objecting to government conduct an additional weapon.

In Village of Willowbrook v. Olech, the justices held that equal protection claims can be brought by those claiming to have been singled out for discriminatory treatment even if they are a class of one and not a victim of discrimination based on group characteristics.(1)

The consequence is that those who have been injured by the government, in situations ranging from zoning decisions to the denial of government benefits, can assert an equal protection claim. Although this always has been theoretically possible, almost invariably those claims have been based on alleged discrimination based on group characteristics, such as race and age. Now, however, the Supreme Court has confirmed that any person who suffers discriminatory treatment, even as a class of one, is denied equal protection of the laws.

The Court reviewed the case of Thaddeus and Grace Olech, who sought to connect their property to the municipal water supply in Willowbrook, Illinois. Previously, the Olechs had successfully sued the village over another matter. When Willowbrook delayed processing their water-supply application and imposed unusually burdensome conditions, the Olechs were convinced that this was in retaliation for their earlier lawsuit.

Willowbrook demanded from them a 33-foot easement on the property to connect the water supply. The Olechs objected on the grounds that other property owners had to provide only a 15-foot easement. After three months, Willowbrook agreed to provide service with a 15-foot easement.

The Olechs sued Willowbrook, alleging that its request for a 33-foot easement was discriminatory and violated the Equal Protection Clause. They alleged that Willowbrook's action was "irrational and wholly arbitrary"(2) and motivated by ill will resulting from their prior lawsuit.

The trial court granted the village's motion to dismiss for failure to state a claim on which relief can be granted under Federal Rule of Civil Procedure 12(b)(6). The Seventh Circuit reversed.(3) In an opinion by Judge Richard Posner, the court explained that the plaintiffs stated a claim under the Equal Protection Clause because they alleged a "spiteful effort to 'get' [them] for reasons wholly unrelated to any legitimate state objective."(4)

Unanimous opinion

The Supreme Court unanimously affirmed. In a per curiam opinion, the Court stated that it had granted review in the case to decide the issue of "whether the Equal Protection Clause gives rise to a cause of action on behalf of a `class of one' where the plaintiff did not allege membership in a class or group."(5)

The Court answered this question in the affirmative. It said that its prior rulings had "recognized successful equal protection claims brought by a `class of one,' where the 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."(6) The Court said that in allowing such claims, it had explained that `"the purpose of the Equal Protection Clause of the Fourteenth Amendment is to secure every person within the state's jurisdiction against intentional and arbitrary discrimination, whether occasioned by express terms of a statute or by its improper execution through duly constituted agents.'"(7)

Then, in a single cryptic paragraph, the Court said that the Olechs stated a cause of action under the Equal Protection Clause because they claimed to be the victims of arbitrary government action. The Court said that it was affirming based on this claim and was not considering whether the Olechs' allegation of retaliation also stated a claim under the clause. The Court declared that their complaint

   can fairly be construed as alleging that the village intentionally demanded
   a 33-foot easement as a condition of connecting [their] property to the
   municipal water supply where the village required only a 15-foot easement
   from other similarly situated property owners. The complaint also alleged
   that the village's demand was "irrational and wholly arbitrary" and that
   the village ultimately connected [their] property after receiving a clearly
   adequate 15-foot easement. These allegations, quite apart from the
   village's subjective motivation, are sufficient to state a claim for relief
   under traditional equal protection analysis. We therefore affirm the
   judgment of the court of appeals but do not reach the alternative theory of
   "subjective ill will" relied on by that court.(8)

That ended the majority opinion. The Court offered virtually no analysis of what is necessary to allege a violation of the Equal Protection Clause except to say claims of "arbitrary" actions are enough.

Justice Stephen Breyer wrote a three-paragraph opinion concurring in the result. He noted that the village and the solicitor general had expressed concern that allowing the Olechs' equal protection claim "would transform many ordinary violations of city or state law into violations of the Constitution."(9) Breyer said,

   This case ... does not directly raise the question whether the simple and
   common instance of a faulty zoning decision would violate the Equal
   Protection Clause. That is because the court of appeals found that ...
   respondent had alleged an extra factor as well--a factor that the court of
   appeals called "vindictive action," "illegitimate animus," or "ill
   will."(10)

Breyer said it was because of the allegations of improper motivations that he concurred in the opinion. He said, "In my view, the presence of that added factor in this case is sufficient to minimize any concern about transforming run-of-the-mill zoning cases into cases of constitutional right."(11) However, it should be noted that the allegation of improper motivation, which was crucial for Breyer, was expressly disavowed by the majority as relevant to its decision.

The Court's ruling, that equal protection claims can be brought by a class of one, is not surprising. The Court long has said, especially in recent affirmative action cases, that equal protection safeguards individuals, not groups.

Besides, if the Court had ruled otherwise, it would have created an impossible line-drawing problem: How large must a class be to state a claim under equal protection? Was discrimination against one couple enough? Was the fact that the complaint alleged discrimination against three other homeowners sufficient to create a large enough class?(12) The Supreme Court understandably did not want to make those kinds of distinctions the focus of equal protection analysis.

However, the Court's decision should be considered by every plaintiff attorney challenging arbitrary government action. Anyone claiming to have been treated in an unfair and discriminatory manner now can present a claim under equal protection.

For instance, any person who claims to have been arbitrarily denied a zoning variance or a conditional use permit can bring an equal protection challenge. So can anyone denied any government benefit if there is an allegation of discriminatory and arbitrary treatment. Literally every type of government interaction with individuals might be challenged under equal protection if there is a claim the government or its officers have treated the plaintiff differently from others in an arbitrary manner.

The Court's decision is clear that an allegation of a retaliatory motive or subjective ill will is unnecessary. But the Court does not reject improper motivation as an alternative way of showing a denial of equal protection. The Court just says that it need not reach the issue.

There are understandable reasons why the Court wanted to shy away from the question of whether improper subjective motivation is sufficient for a claim. It is easy for plaintiffs to allege such motivation with the hope of gaining needed evidence during discovery and persuading a jury at trial. The Court also may have been concerned that issues of motivation focus on the government's actual purpose, while rational basis review looks solely to whether there is a conceivable permissible purpose for the government's action.

What options does a defendant have in response to a claim like the Olechs'? The defendant would seem to have two possible responses: to deny differential treatment or to claim that any difference was justified by a legitimate purpose. The former would involve the defendant arguing that the plaintiff was not treated any differently from others similarly situated. This inherently is a fact-based inquiry. The latter would involve the government suggesting a legitimate purpose for its differential treatment so as to indicate that it is not arbitrary.

Not enough said

Some have criticized the Supreme Court for a perceived trend toward long opinions with many footnotes. Its decision in Olech can be criticized for just the opposite: for being too brief and offering too little analysis of its implications. Equal protection claims brought by a class of one raise inherently difficult conceptual problems, all of which are ignored by the short per curiam opinion.

Nevertheless, the Olech decision is important for plaintiff attorneys bringing many different types of claims against the government.

It means that any person claiming to be a victim of arbitrary government action has a claim under the Equal Protection Clause, no matter how many or how few others suffer the injury.

Notes

(1.) 120 S. Ct. 1073 (2000) (per curiam).

(2.) Id. at 1075.

(3.) 160 F.3d 386 (7th Cir. 1998).

(4.) Id. at 387.

(5.) 120 S. Ct. 1073, 1074.

(6.) Id. (citing Allegheny Pittsburgh Coal Co. v. County Comm'n, 488 U.S. 336 (1989); Sioux City Bridge Co. v. Dakota County, 260 U.S. 441 (1923)).

(7.) Id. at 1074-75 (quoting Sioux City Bridge Co., 260 U.S. 441,445).

(8.) Id. at 1075 (citation omitted).

(9.) Id. (Breyer, J., concurring).

(10.) Id. (Breyer, J., concurring).

(11.) Id. (Breyer, J., concurring).

(12.) The Court in a footnote said that the complaint included claims of three others but said that "whether the complaint alleges a class of one or of five is of no consequence because we conclude that the number of individuals in a class is immaterial for equal protection analysis." Id. at 1074 n.

Erwin Chemerinsky is the Sydney M. Irmas Professor of Public Interest Law, Legal Ethics, and Political Science at the University of Southern California Law School.