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Putting Flesh on a Skeletal Test? The Need for Clarification as to an "Animus" Prong for Equal Protection "Class of One" Claims

Putting Flesh on a Skeletal Test? The Need for Clarification as to an "Animus" Prong for Equal Protection "Class of One" Claims

DRI's Governmental Liability Newsletter
(August 7, 2015 )

Fifteen years ago, the Supreme Court's opinion in Village of Willowbrook v. Olech, 528 U.S. 562 (2000), spelled a watershed moment in equal protection "class of one" cases. In Olech, property owners sued a village because it sought a 33-foot easement across their property and it only required a 15-foot easement from other property owners seeking access to the water supply. Id. at 563. The property owners alleged that the village's actions were "irrational and wholly arbitrary" and were motivated by ill will. The Supreme Court held that in order to bring a class of one equal protection claim, a plaintiff must show that she has been intentionally treated differently than others who are similarly situated and there must be no rational basis for the difference in treatment. Id. at 564.

Importantly, the majority opinion in Olech did not look to the village's subjective motivation in its analysis. In a concurring opinion, however, Justice Breyer advocated that for equal protection cases related to land use decisions, plaintiffs should have to show animus (described as ill will or "an illegitimate desire to ‘get' him") on the part of the municipality. Id. at 566. In Justice Breyer's view, this added factor was necessary to minimize the possibility that the majority's opinion in Olech might transform all "run-of-the-mill zoning cases into cases of constitutional right." Id.

The Circuit Courts of Appeal are "All Over the Map"

In the decade and a half since Olech was decided, the Circuit Courts of Appeal are not in harmony on what an equal protection "class of one" plaintiff must prove.

Some circuits have issued opinions that restate the majority's holding in Olech with no specific requirement of an animus prong. See, e.g., Phillips v. Cnty. of Allegheny, 515 F.3d 224, 243 (3d Cir. 2008) ("[T]o state a claim for class of one equal protection, a plaintiff must at a minimum allege that he was intentionally treated differently from others similarly situated by the defendant and that there was no rational basis for such treatment."); Cobb v. Pozzi, 363 F.3d 89, 110 (2d Cir. 2003) ("[T]he plaintiffs can recover if they can show that they were treated differently from similarly situated officers . . . and that there was no rational basis for the difference in treatment."); Tri Cnty. Paving, Inc. v. Ashe Cnty., 281 F.3d 430, 439 (4th Cir. 2002) ("[A] party can bring an equal protection claim by alleging it has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment.").

Other circuits have adopted Justice Breyer's animus prong and require that the plaintiff prove some element of malice or ill will. See, e.g., Mathers v. Wright, 636 F.3d 396, 401 (8th Cir. 2011) ("Although we have not heretofore held that malice is an element of a class-of-one claim . . . we conclude that the district court did not err in considering the existence of malice on [defendant's] part."); Mimics, Inc. v. Vill. of Angel Fire, 394 F.3d 836, 848-49 (10th Cir. 2005) (noting that to succeed on a class of one claim, the plaintiffs must prove "that they were singled out for persecution due to some animosity"); Hilton v. City of Wheeling, 209 F.3d 1005, 1008 (7th Cir. 2000) ("[T]o make out a prima facie case 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.").

Still other circuits have adopted the animus prong, but as an alternative to the Supreme Court's standard in Olech—these cases do not necessarily require proof of the governmental defendant's subjective motivations in order for the plaintiff to succeed on his/her claim. See, e.g., Boone v. Spurgess, 385 F.3d 923 (6th Cir. 2004) (holding that the plaintiff must show either that the defendant distinguished between two individuals based on some bad reason, proving intent, or that the defendant had no rational reason to distinguish between two individuals); Nevel v. Vill. of Schaumburg, 297 F.3d 673, 682 (7th Cir. 2002) (recognizing an alternative approach to Olech's majority opinion by holding that the totally illegitimate animus approach required that plaintiff show that the cause of the differential treatment was a "totally illegitimate animus toward the plaintiff by the defendant").

Certain circuits appear to have flatly rejected the animus prong. See, e.g., Gerhart v. Lake Cnty., Mont., 637 F.3d 1013, 1022 (9th Cir. 2011) ("Although [plaintiff] must show that the [defendants'] decision was intentional, he need not show that the [defendants] were motivated by subjective ill will."); Stotter v. Univ. of Texas at San Antonio, 508 F.3d 812, 824 n.3 (5th Cir. 2007) ("[T]his court has rejected the argument that all "class of one" equal protection claims require a showing of vindictive animus.").

Finally, some circuits have acknowledged that it is unclear whether a showing of animus is required and declined to affirmatively decide the issue. See, e.g., Middleborough Veterans' Outreach Ctr., Inc. v. Provencher, 502 Fed App. 8, 10 n.3 (1st Cir. 2013) (noting that some but not all of the First Circuit's decisions require a showing of animus but declining to address this requirement); Campbell v. Rainbow City, Ala., 434 F.3d 1306, 1314 n.6 (11th Cir. 2006) (recognizing the circuit split on whether a showing of ill will is required and declining to decide whether legal animus is required); Harlen Assoc. v. Inc. Vill. Of Mineola, 273 F.3d 494, 500 (2d Cir. 2001) (noting that sister circuits have read Olech differently regarding the animus requirement and the court did not need to decide this question or resolve the case).

Judge Posner's Proposed Solution

In Bell v. Duperrault, 367 F.3d 703 (7th Cir. 2004), Judge Posner wrote a concurring opinion in an effort to clarify the standard applicable to class of one equal protection cases. Judge Posner noted that the Court in Olech was affirming a decision of the Seventh Circuit in which it found that a class of one plaintiff had to prove "that the cause of the differential treatment . . . was a totally illegitimate animus toward the plaintiff by the defendant." Id. at 710. Even though Justice Breyer effectively adopted and advocated for this test, Judge Posner noted that the silence from the majority on this point required interpretation. Id. Because the majority "declined Justice Breyer's invitation to put flesh on its skeletal test," Judge Posner claimed that personal ill will is not currently required for class of one claims. Id. at 712.

However, Judge Posner recommended that the Supreme Court "step in and clarify its cryptic" because the circuits were "all over the map" with respect to this issue. Id. at 712-13. He also posited that proof of an improper motive could be a possible solution to irrational differences in treatment. Id. at 713. Because differences in treatment are required in governmental decision-making and cannot be avoided, an added element should be required of equal protection cases. Id. As Judge Posner summarized, "I haven't been able to think of a better way of reining in the class-of-one cases, which have an ominous potential to burst the proper bounds of equal protection law, than to insist that an improper motive by a government official have been the sole cause of the inequality of treatment of which the plaintiff is complaining." Id.


Justice Breyer and Judge Posner both advocated the need for the animus prong to prevent Olech from opening the door to equal protection claims for all cases where there is a difference in treatment by a governmental actor. While the Supreme Court has addressed equal protection "class of one" claims in the wake of Olech in narrow contexts, see, e.g., Engquist v. Oregon Dep't of Agr., 553 U.S. 591 (2008) (holding that class-of-one equal protection claims are not cognizable in context of public employment), the Court has not addressed the seeming confusion in the lower courts as to the appropriate standard for these claims. As our society becomes more litigious and governmental entities become more common targets for lawsuits, it would not be surprising to see this issue soon return before the Supreme Court for a revisiting of the equal protection "class of one" standard.

The authors would like to acknowledge Marcus Benning, rising 2L at Duke Law School, for his research and contributions to this article.

Copyright 2015, DRI's Governmental Liability. Reprint permission granted.

Lisa W. Arthur
T (336) 378-5318
F (336) 433-7467
Patrick M. Kane
T (336) 378-5352
F (336) 433-7588
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