Bell, Mark v. Duperrault, Tere ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-3829
MARK BELL,
Plaintiff-Appellant,
v.
TERE DUPERRAULT,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 02 C 707—William C. Griesbach, Judge.
____________
ARGUED APRIL 13, 2004—DECIDED MAY 12, 2004
____________
Before FLAUM, Chief Judge, and POSNER and WILLIAMS,
Circuit Judges.
FLAUM, Chief Judge. Mark Bell owns a vacation home on
the shoreline of Lake Michigan’s Green Bay in Door County,
Wisconsin. In 1993, Bell obtained a permit from the
Wisconsin Department of Natural Resources (“DNR”) in
order to construct a private pier into the bay. In 1998, Bell
decided to expand his pier. He therefore attempted to obtain
a permit from the DNR so he could build a 60-foot extension
onto his existing pier, a rubble mound breakwater that was
45 feet long and 15 feet wide, and a temporary road on the
2 No. 03-3829
lakebed to aid construction. The DNR objected to Bell’s
permit application and required that Bell proceed with an
administrative hearing on the issue. Instead of proceeding
with the administrative hearing, Bell filed suit alleging that
the DNR violated his rights under the Equal Protection
Clause of the Fourteenth Amendment. The district court
granted summary judgment to the DNR’s agent, Tere
Duperrault, and Bell now appeals. For the reasons stated
herein, we affirm.
I. BACKGROUND
Under Wisconsin law, landowners may not build struc-
tures in navigable waters without a permit from the DNR.
See Wis. Stat. § 30.12 (1989). Upon receiving a permit ap-
plication, the DNR either proceeds without a hearing, or if a
substantive written objection to issuance of the permit has
been received, schedules a public hearing. See Wis. Stat.
§ 30.02(3). A substantive written objection is “a written
statement giving specific reasons why a proposed project .
. . may violate the statutory provisions applicable to the
project and specifying that the person making the objection
will appear and present information supporting the objec-
tion in a contested case hearing.” Wis. Stat. § 30.01(6b). The
DNR itself can object to a permit application even if no
member of the public has objected.
Beginning in the late 1990’s, the DNR became concerned
about the environmental impact of private structures filling
the waterways. Therefore, in 1997 the DNR put all pending
applications on hold while it engaged in an environmental
assessment of such structures. The DNR’s assessment was
completed in April 1998 and prompted a shift in policy
under which permit applications were subjected to increas-
ingly rigorous scrutiny. Of the 33 applications pending from
1997, only 11 permits were granted. Since 2000, no permits
have been issued for new private solid piers or breakwalls.
No. 03-3829 3
Bell’s problems with the DNR began on February 4, 1998,
when he filed his application to extend his pier and build a
breakwater. Bell’s permit application was assigned to Tere
Duperrault, who was then the DNR’s Water Management
Specialist for Door County. Duperrault reviewed Bell’s
application, visited Bell’s property for a field inspection, and
met with Bell on several occasions. During one of these
meetings, Duperrault kept Bell waiting in her office for
approximately thirty minutes while she engaged in a
personal phone call with her feet propped on the windowsill.
The meeting did not result in any resolution of the applica-
tion, which frustrated Bell who had driven for six hours to
attend the meeting. Even worse from Bell’s perspective was
that the meeting was futile because Duperrault had already
decided to oppose Bell’s application on behalf of the DNR.
The DNR was not the only party opposed to Bell’s ap-
plication, however. Bell’s permit application also received
public objections from the Door County Environmental
Council, the Gibraltar Preservation Council, and an indivi-
dual citizen, Kurt Pagel. Duperrault determined that all
three objections were timely and substantive.
In February 1999 Bell filed an amended application with
the DNR reducing the size of his pier extension and tem-
porary road and adding plans for dredging. Bell’s amended
application was nearly identical to the application of one of
his neighbors, John Hockers, who had been granted a
permit without a hearing in 1998. However, in June 1999
Duperrault informed Bell that the DNR was opposing his
application. She stated that his proposal would negatively
impact fisheries, water quality and aquatic habitat, as well
as natural scenic beauty. Moreover, Bell’s amended appli-
cation was still objected to by Kurt Pagel and the Door
County Environmental Council. Bell’s case was therefore
scheduled for an administrative hearing.
Rather than proceeding with the hearing, Bell filed suit
against the DNR in federal court. Bell’s complaint alleges
4 No. 03-3829
that the DNR, and specifically its agent, Tere Duperrault,
violated the Equal Protection Clause of the Fourteenth
Amendment when Bell was denied a permit unless he
participated in an administrative hearing. Bell argues that
many of his neighbors had been granted permits without
hearings, and that he was treated unequally for no legiti-
mate reason. The DNR replies that none of the neighbors
were similarly situated to Bell, either because of the timing
or nature of their applications.
The first of the neighbors that Bell asserts was similarly
situated is John Hockers. Hockers applied for a pier ex-
tension on February 4, 1998, which was the same filing date
as Bell’s original application. Bell acknowledges that
Hockers’s planned structure was less extensive than Bell’s
original proposed pier. But Bell contends that his amended
application was nearly identical to Hockers’s application
and therefore should have been granted. The DNR responds
that although Bell’s second application was similar to
Hockers’s, it was filed more than a year later when the
DNR’s standards had become much more strict.
The second allegedly similarly situated individual was
John Koehn, who filed an application for a new pier in
March 1998. Koehn’s permit was granted without a hearing
in September 1998, despite objections from Kurt Pagel and
the Door County Planning Department. However, the DNR
argues that Koehn’s pier was significantly different from
Bell’s pier extension because the Koehn pier had an 80-foot
flow-through section. Large flow-throughs allow the free
movement of water and materials along the shoreline, and
the DNR considers them to be ecologically advantageous.
Neither of Bell’s proposals included a flow-through.
The last two individuals whose plans were allegedly
similarly situated to Bell’s were Tim Halbrook and Marc
Pescheret. Both filed applications for permits for recon-
struction in 2000 which were granted without hearings. The
No. 03-3829 5
DNR contends that these individuals were not similarly
situated to Bell because the DNR treats applications to
replace dilapidated older structures with new ones more
favorably than applications to build entirely new structures.
The DNR reasons that replacing old structures provides a
net gain for the environment. Indeed, both the Halbrook
and Pescheret applications were for the replacement of old
piers that did not have flow-throughs with piers that did
have flow-throughs.
II. DISCUSSION
This Court reviews the district court’s grant of summary
judgment in favor of Duperrault de novo. See Basith v. Cook
County, 241 F.3d 919, 926 (7th Cir. 2001). In so doing, we
must construe all facts in the light most favorable to Bell,
the nonmoving party. See McCoy v. Harrison, 341 F.3d 600,
604 (7th Cir. 2003). However, “we are not required to draw
every conceivable inference from the record.” Id. Inferences
that are supported by only speculation or conjecture will not
defeat a summary judgment motion. Id.With these standards in mind, we proceed to address the
merits of Bell’s equal protection claim. Typically equal
protection claims involve charges of singling out members
of a vulnerable group for unequal treatment or charges that
a law or policy makes irrational distinctions between groups
of people. See Esmail v. Macrane, 53 F.3d 176, 178 (7th Cir.
1995). However, equal protection claims may also involve a
“class of one,” where the plaintiff alleges that only he “has
been intentionally treated differently from others similarly
situated and that there is no rational basis for the differ-
ence in treatment.” Village of Willowbrook v. Olech, 528
U.S. 562, 564 (2000). The “class of one” plaintiff bears the
burden of proving that he has suffered intentional, irratio-
nal, and arbitrary discrimination. See id. at 564-65. He can
do so either by showing that he was treated differently from
6 No. 03-3829
identically situated persons for no rational reason, or that
he was treated worse than less deserving individuals for no
rational reason. See Esmail, 53 F.3d at 179 (stating that
“equal protection does not just mean treating identically
situated persons identically. If a bad person is treated
better than a good person, this is just as much an example
of unequal treatment . . . .”). Bell argues that he was in
such a class of one when the DNR denied his permit
application unless he took part in a hearing while granting
permits to other similarly situated individuals without a
hearing.
Unfortunately for Bell, his argument fails because he has
not shown that others were actually similarly situated. Bell
has provided no facts disputing that the DNR applied
increasingly rigorous scrutiny to permit applications be-
ginning in mid-1998 and continuing over the next several
years due to environmental concerns. Therefore, Bell’s
amended proposal, filed in February 1999, was not similarly
situated to Hockers’s proposal which was filed in February
1998. It is also undisputed that after the environmental
assessment was released in April 1998, the DNR began
emphasizing the importance of “flow-through” structures
which would allow littoral currents to flow freely. For this
reason, Bell’s proposal which lacked a flow-through was not
similar to Koehn’s, Halbrook’s, or Pescheret’s proposals
which all included flow-throughs. Additionally, Koehn’s
application was filed in March 1998, eleven months before
Bell’s amended proposal. And while Halbrook and Pescheret
did not apply for permits until 2000, they were both
replacing already existing structures rather than creating
entirely new structures. The DNR argues that such renova-
tions receive preference over applications for new structures
because of the net gain to the environment when dilapi-
dated older structures are replaced.
Bell of course contests that these applicants were sim-
ilarly situated to himself. He asserts that since the envi-
No. 03-3829 7
ronmental assessment was completed in April 1998, all
permits reviewed after April 1998 should have been treated
equally. He further points to various elements of the
proposed renovation projects that actually made them much
more destructive than his own proposal. Finally, he argues
that no one informed him that flow-throughs were impor-
tant factors, and therefore it is a reasonable inference that
flow-throughs were not important factors.
None of these arguments enables Bell to carry the “very
significant burden” of a class of one plaintiff. See Discovery
House, Inc. v. Consolidated City of Indianapolis, 319 F.3d
277, 282-83 (7th Cir. 2003). It is not enough that the DNR
acted in a way that Bell believes to be ineffective or even
destructive. Rather, Bell must “eliminate any reasonably
conceivable state of facts that could provide a rational basis
for the classification.” Id. at 282 (internal quotation omit-
ted). He has not done so. The evidence shows that the DNR
decided to increasingly scrutinize applications beginning in
1998 because of environmental concerns. This policy
decision is a rational one. Also rational is the DNR’s
preference for structures that allow currents to flow natur-
ally and for older structures to be renovated when they
become run-down. Furthermore, the DNR did not have any
obligation to inform Bell of its reasoning in 1998. See id.It is possible, of course, that had Bell proceeded with his
administrative hearing and created a more fulsome record
on this issue, he may have discovered evidence that the
DNR had no basis for these policies or that the policies were
completely irrational. We find it puzzling that Bell chose to
withdraw his permit application and file suit in federal
court rather than attempt to eliminate the problem or at
least develop the record with a simple administrative
hearing. But on this record, we are left with nothing more
than Bell’s speculation and conjecture that a jury could
have disbelieved all of the DNR’s evidence. This is not
enough to survive a summary judgment motion.
8 No. 03-3829
Nor does Bell’s claim succeed when his arguments
regarding Duperrault’s alleged discriminatory animus are
added into the mix. Specifically, Bell argues that
Duperrault demonstrated personal hostility toward him
which indicates that she deliberately sought to deprive him
of equal protection of the laws.1 Bell’s evidence on this point
consists of evidence that Duperrault refused to reschedule
a meeting although Bell informed her that his wife was ill,
that Bell then drove six hours to attend the meeting which
Duperrault postponed for thirty minutes while she engaged
in a personal phone call with her feet on the windowsill,
and that the meeting did not result in any resolution of
Bell’s application. Bell further notes that Duperrault had in
fact already decided to oppose Bell’s application, but did not
inform him of this decision until several months later.
While Duperrault’s alleged behavior was perhaps incon-
siderate or inappropriate, it does not demonstrate the type
of “deep-seated animosity” that this Court has found to
support an equal protection claim. See Esmail, 53 F.3d at
178. Such animosity occurs when “a powerful public official
pick[s] on a person out of sheer vindictiveness,” or when
1
As a preliminary matter, Bell argues that the Supreme Court
eliminated the requirement of subjective animus from class of one
claims in Village of Willowbrook v. Olech, 528 U.S. 562 (2000), and
that this Court’s precedent to the contrary should be overturned.
We note first that the Supreme Court explicitly declined to reach
the issue of subjective ill will in Olech, and therefore did not
eliminate the possibility that such evidence could be used to state
an equal protection claim. Id. at 565. Even if the Supreme Court’s
holding was otherwise, Bell did not raise this argument below,
and it is thus waived. See Williams v. REP Corp., 302 F.3d 660,
666 (7th Cir. 2002) (stating that a party waives any argument
that it did not make to the district court). However, we choose not
to reach the issue because its determination is not necessary for
the resolution of this case. As will be discussed, Bell cannot show
discriminatory treatment either with or without evidence of
subjective animus by Duperrault.
No. 03-3829 9
an official acts “for the sole and exclusive purpose of exact-
ing retaliation and vengeance against” the plaintiff. Id.Bureaucratic inefficiencies and even downright rudeness do
not rise to this level. Were our decision to the contrary, the
judicial system would overflow with equal protection
claimants seeking damages for the discourteous treatment
they received from various public servants. Therefore, Bell
cannot establish a genuine issue of material fact that
Duperrault violated his rights under the Equal Protection
Clause when she required him to proceed with his permit
application by attending an administrative hearing.
III. CONCLUSION
For the foregoing reasons, the grant of summary judg-
ment in favor of the defendant is AFFIRMED.
POSNER, Circuit Judge, concurring. I join the majority
opinion, but write separately in an effort to clarify the
standard (on which the majority opinion is prudently
noncommittal) applicable to “class of one” equal protection
cases. The lack of clarity has been remarked by commenta-
tors. Robert C. Farrell, “Classes, Persons, Equal Protection,
and Village of Willowbrook v. Olech,” 78 Wash. L. Rev. 367,
400-25 (2003); J. Michael McGuinness, “The Impact of
Village of Willowbrook v. Olech on Disparate Treatment
Claims,” 17 Touro L. Rev. 595, 603-06 (2001); Timothy Zick,
“Angry White Males: The Equal Protection Clause and
‘Classes of One,’ ” 89 Ky. L.J. 69, 133-34 (2000); Shaun M.
Gehan, Comment, “With Malice Toward One: Malice and
10 No. 03-3829
the Substantive Law in ‘Class of One’ Equal Protection
Claims in the Wake of Village of Willowbrook v. Olech,” 54
Me. L. Rev. 329, 379-80 (2002); Nicole Richter, Note, “A
Standard for ‘Class of One’ Claims Under the Equal
Protection Clause of the Fourteenth Amendment: Protecting
Victims of Non-Class Based Discrimination from Vindictive
State Action,” 35 Val. U.L. Rev. 197, 199-203 (2000). It has
been a cause of justifiable concern to the judges who have
to decide these cases. See, e.g., Northwestern University v.
City of Evanston, No. 00 C 7309, 2002 WL 31027981, at *3-4
(N.D. Ill. Sept. 11, 2002).
In the usual equal protection case, including cases of
selective prosecution, which are the converse of denial-of-
permit cases such as the present one, the plaintiff is com-
plaining about discrimination against a group to which he
belongs, such as a racial, religious, or ethnic minority
(though it needn’t be a minority: witness sex-discrimination
cases). See, e.g., United States v. Armstrong, 517 U.S. 456,
465-68 (1996); Desi’s Pizza, Inc. v. City of Wilkes-Barre, 321
F.3d 411, 424-26 (3d Cir. 2003). It has long been apparent,
however, that there could be a denial of equal protection
even though the victim did not belong to a class larger than
himself. E.g., City of New Orleans v. Dukes, 427 U.S. 297,
298, 303-04 (1976) (per curiam); Indiana State Teachers
Ass’n v. Board of School Comm’rs, 101 F.3d 1179, 1180-81
(7th Cir. 1996); Esmail v. Macrane, 53 F.3d 176, 180 (7th
Cir. 1995); Ciechon v. City of Chicago, 686 F.2d 511, 524
(7th Cir. 1982); Rubinovitz v. Rogato, 60 F.3d 906, 910-12
(1st Cir. 1995); Yerardi’s Moody Street Restaurant &
Lounge, Inc. v. Board of Selectmen, 878 F.2d 16, 20-21 (1st
Cir. 1989). The troubling question is what exactly the
plaintiff in such a case must prove in order to make out a
prima facie case. In Village of Willowbrook v. Olech, 528
U.S. 562 (2000) (per curiam), the Supreme Court held that
it is enough to allege “irrational and wholly arbitrary”
treatment. Id. at 565. Did the Court mean to suggest by its
No. 03-3829 11
choice of words that the “rational purpose” test used
standardly in equal protection jurisprudence for cases not
involving “fundamental rights” also rules class-of-one cases?
That is a frightening thought, because, as we noted in
Milner v. Apfel, 148 F.3d 812, 816-17 (7th Cir. 1998), the
“rational purpose” test is no longer as toothless as it once
seemed, see, e.g., Romer v. Evans, 517 U.S. 620, 634-35
(1996); City of Cleburne v. Cleburne Living Center, Inc., 473
U.S. 432, 446-50 (1985); United States Dept. of Agriculture
v. Moreno, 413 U.S. 528, 533-38 (1973); Lawrence v. Texas,
123 S. Ct. 2472, 2484-85 (2003) (O’Connor, J., concurring),
and anyone can be a class-of-one plaintiff. Or should
“irrational and wholly arbitrary” be understood as a more
stringent test? But if so, what is its precise meaning? And
what significance should be attached to the fact that the
case had been decided on the pleadings?
The Court in Olech was affirming a decision of this court
in which we had said that a plaintiff in a class-of-one case
has to prove “that the cause of the differential treatment of
which [he] complains was a totally illegitimate animus
toward the plaintiff by the defendant.” 160 F.3d 386, 388
(7th Cir. 1998). Justice Breyer’s concurring opinion in the
Supreme Court endorsed our formulation, 528 U.S. at 565-
66, but drew no direct response from his colleagues. Their
silence requires interpretation.
In Hilton v. City of Wheeling, 209 F.3d 1005, 1008 (7th
Cir. 2000), decided after and, we thought, consistently with
the Supreme Court’s decision in Olech, we restated the
standard in class-of-one cases as follows: “to 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.” It
should be noted that “reasons of a personal nature unre-
lated to the duties of the defendant’s position” go beyond
personal hostility to the plaintiff (i.e., animus), the motive
12 No. 03-3829
emphasized in our Olech opinion and in Justice Breyer’s
concurrence. Personal reasons can include larceny, as in
Forseth v. Village of Sussex, 199 F.3d 363, 371 (7th Cir.
2000), or a desire to find a scapegoat in order to avoid
adverse publicity and the threat of a lawsuit, as in Ciechon
v. City of Chicago, supra, 686 F.2d at 524—improper
motives for a public official (scapegoating is not a legitimate
tactic of public officials any more than stealing is), but
different from personal hostility.
We have hewed to the Hilton line in other post-Olech
cases as well. Purze v. Village of Winthrop Harbor, 286 F.3d
452, 455 (7th Cir. 2002); Cruz v. Town of Cicero, 275 F.3d
579, 587 (7th Cir. 2001); cf. Discovery House, Inc. v.
Consolidated City of Indianapolis, 319 F.3d 277, 283 (7th
Cir. 2003). But in still others we have described animus as
an alternative to the Supreme Court’s standard, Nevel v.
Village of Schaumburg, 297 F.3d 673, 681 (7th Cir. 2002);
Albiero v. City of Kankakee, 246 F.3d 927, 932 (7th Cir.
2001), though if a class-of-one plaintiff can prevail by
demonstrating “irrational and wholly arbitrary” action, it is
unclear why he would ever bother with proof of animus,
since unequal treatment due solely to animus is a subset of
irrational and arbitrary conduct.
Some cases from other circuits merely repeat the formula
recited by the Supreme Court majority in Olech. Cobb v.
Pozzi, No. 02-7218, 2004 WL 736799, at *18 (2d Cir. Apr. 2,
2004); Tri-County Paving, Inc. v. Ashe County, 281 F.3d
430, 439-40 (4th Cir. 2002); Costello v. Mitchell Public
School Dist. 79, 266 F.3d 916, 921-22 (8th Cir. 2001). Oth-
ers, however, pin their flag to “reasons of a personal na-
ture,” or some variant, and are thus like Hilton. Williams v.
Pryor, 240 F.3d 944, 951 (11th Cir. 2001); Shipp v.
McMahon, 234 F.3d 907, 916-17 (5th Cir. 2000), overruled
on other grounds in McClendon v. City of Columbia, 305
F.3d 314, 329 (5th Cir. 2002); Bryan v. City of Madison, 213
F.3d 267, 276-77 and n. 17 (5th Cir. 2000). Still others
No. 03-3829 13
consider the question whether after Olech a personal motive
is required an open one. Hayut v. State University of New
York, 352 F.3d 733, 754 n. 15 (2d Cir. 2003); DeMuria v.
Hawkes, 328 F.3d 704, 707 n. 2 (2d Cir. 2003); Giordano v.
City of New York, 274 F.3d 740, 743 (2d Cir. 2001); cf.
Bartell v. Aurora Public Schools, 263 F.3d 1143, 1149 (10th
Cir. 2001). Only one decision is explicit that proof of a
personal motive is not required, Jackson v. Burke, 256 F.3d
93, 96-97 (2d Cir. 2001) (per curiam)—and the court that
decided it later described the assertion as “dicta” and,
consistent with other Second Circuit decisions that we have
cited, described the question whether a personal motive is
required as open. Harlen Associates v. Incorporated Village
of Mineola, 273 F.3d 494, 499-500 (2d Cir. 2001).
The decisions that treat the standard as open after Olech
gain support from DeMuria v. Hawkes, supra, 328 F.3d
at 706-07, which points out that Olech’s suit had been
dismissed on the pleadings and that all the Supreme Court
held was that to withstand a motion to dismiss the plaintiff
need allege only “irrational and wholly arbitrary” treat-
ment. The Court did not explain what precisely the plaintiff
must prove to satisfy this standard. It is not as if the term
“irrational and wholly arbitrary” were self-defining. The
fact that the Court declined Justice Breyer’s invitation to
put flesh on its skeletal test does not conclude analysis of
what that flesh might look like. If the issue is open, the
resolution of it proposed in Hilton and like cases is not
foreclosed.
I think those cases are on the right track and are not
inconsistent with Olech. The Court said it had granted cer-
tiorari “to determine 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,” 528 U.S. at 564, not to establish the standard gov-
erning proof in such cases. The Court did say, it is true,
14 No. 03-3829
that “these allegations [that the defendant was acting in an
‘irrational and wholly arbitrary’ manner], quite apart from
the [defendant’s] subjective motivation, are sufficient to
state a claim for relief under traditional equal protection
analysis.” 528 U.S. at 565 (emphasis added). And so cases
on which I am relying may be fighting a doomed rearguard
action. May the Court enlighten us; the fact that the post-
Olech cases are all over the map suggests a need for the
Court to step in and clarify its “cryptic” (Zick, supra, at 133)
per curiam decision.
The problem for which requiring proof of improper motive
is a possible solution is that irrational differences in
treatment having nothing to do with discrimination against
a vulnerable class abound at the bottom rung of law
enforcement. A police car is lurking on the shoulder of a
highway in a 45 m.p.h. zone, a car streaks by at 65 m.p.h.,
and the police do nothing. Two minutes later a car streaks
by at 60 m.p.h. and the police give that driver a ticket. Is it
a denial of equal protection if the police cannot come up
with a rational explanation for why they ticketed the slower
speeder? If so, the federal courts will be swamped with
“class of one” cases remote from the purpose, and beyond
the feasible scope, of the equal protection clause. Or
suppose that an asylum officer, after interviewing a foreign
visitor to the United States who has applied for asylum,
recommends that he be turned down, yet another asylum
officer, in (as he knows) a rationally indistinguishable case,
recommends that “his” applicant be granted asylum. The
difference is irrational because, by hypothesis, like situa-
tions are being treated differently; that is what unequal
treatment means.
Since differences of treatment of this sort at the lowest
operating level of government cannot be avoided, they
should not—unless invidiously motivated—give rise to a
constitutional claim. They should not be deemed “irrational
and wholly arbitrary,” any more than a random audit by the
No. 03-3829 15
Internal Revenue Service should be thought wholly arbi-
trary, though it is arbitrary in the sense that other, identi-
cally situated taxpayers who are not audited are being
treated differently. Notice how, in the asylum example and
also in the present case, involving the denial at the initial
application level of a permit to enlarge a pier, taking the
equal protection route bypasses the administrative and
judicial review procedures established to remedy arbitrary
official action. In such cases the equal protection remedy is
superfluous, or at least premature. It is highly unlikely that
the Supreme Court intended in Olech to open the door to
such cases.
The reason that a number of court of appeals cases, and
Justice Breyer in his concurrence in Olech, brought motive
into the picture is that requiring proof of a bad motive
brings the class-of-one cases into harmony with the stand-
ard equal protection cases and the purpose behind the equal
protection clause. That purpose is to protect the vulnerable,
whether it is a racial or religious minority, a sexual major-
ity (women) that had nonetheless been subjected to invidi-
ous discrimination, a racial majority that as in McDonald
v. Santa Fe Trail Transportation Co., 427 U.S. 273 (1976),
finds itself oppressed by a national minority that has a local
majority, or even a coal company that because its major
assets (its mines) cannot be shifted to another state finds
itself targeted for discriminatory taxation, as in Allegheny
Pittsburgh Coal Co. v. County Comm’n, 488 U.S. 336, 342-
46 (1989). These are all cases in which the unequal treat-
ment complained of is either vicious or exploitative (or
frequently both), and the fundamental insight of the class-
of-one cases is that vicious or exploitative discrimination
can sometimes be found even when the victim does not
belong to a group that is a familiar target of such treat-
ment. Indeed, a lone victim picked out for social or economic
oppression or extinction can be especially vulnerable.
Esmail v. Macrane, supra, 53 F.3d at 180. Unlike the
member of even a minority group, he has no allies at all.
16 No. 03-3829
I add “exploitative” to “vicious” to make clear that, as
in the formulation in Hilton, personal ill will is not the
essential criterion of a meritorious class-of-one suit. It
is enough if the plaintiff can prove that the defendant is
treating similarly situated people differently for improper
(normally personal) reasons, whether his motive is hatred
or greed or, as in Ciechon, fending off pests. Those reasons,
however, must be the only reasons for the adverse action of
which the plaintiff is complaining. If there are legitimate as
well as illegitimate reasons, the presence of the latter will
not taint the former. E.g., Albiero v. City of Kankakee,
supra, 246 F.3d at 932. It would be absurd to give a con-
victed murderer a remedy under the equal protection clause
merely because the prosecutor, in addition to thinking it his
duty to prosecute, hoped that the publicity from a successful
prosecution would enable him to launch a political career.
“Motive” tests are not very satisfactory and are therefore
sparingly employed in the law. Motives are difficult to
discern and often they are irrelevant to the social interests
in a case, as where someone is prosecuted for murder in
causing a fatal plane crash though his motive was not to
kill but merely to reap a profit from selling airline stock
short. United States v. McAnally, 666 F.2d 1116, 1119 (7th
Cir. 1981). “[M]otive does not equal intent; fraud, larceny,
embezzlement, and the other financial crimes and their tort
equivalents are actionable even when the motive for the
wrongful conduct is benign.” Eastern Trading Co. v. Refco,
Inc., 229 F.3d 617, 623 (7th Cir. 2000); see also United
States v. Davis, 183 F.3d 231, 244 (3d Cir. 1999); Johnson
v. Phelan, 69 F.3d 144, 155-56 (7th Cir. 1995) (separate
opinion). Yet motive is sometimes given legal significance,
most famously perhaps in the old spite-fence cases (see
references in Original Great American Chocolate Chip
Cookie Co. v. River Valley Cookies, Ltd., 970 F.2d 273, 280-
81 (7th Cir. 1992)) but also in assessing punitive damages,
e.g., Kolstad v. American Dental Ass’n, 527 U.S. 526, 538-39
No. 03-3829 17
(1999), and, of course, in criminal sentencing. E.g., Wiscon-
sin v. Mitchell, 508 U.S. 476, 485 (1993). 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 com-
plaining.
Treatment that is arbitrary only because of human or in-
stitutional fallibility rather than because unlawful motives
are in play is not an apt occasion for constitutional liti-
gation. Although it is thought in some quarters ignoble to
allow considerations of caseload to influence the scope of
substantive rights, the federal courts have limited capacity
and an attempt to cope with a relentlessly and steeply ris-
ing caseload by enlarging the number of judges and courts
would create serious problems of control and coherence. As
the Supreme Court once observed in a related context, “The
federal court is not the appropriate forum in which to
review the multitude of personnel decisions that are made
daily by public agencies. We must accept the harsh fact that
numerous individual mistakes are inevitable in the day-to-
day administration of our affairs.” Bishop v. Wood, 426 U.S.
341, 349-50 (1976).
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—5-12-04