Karl Swanson v. Jerry Whitworth , 719 F.3d 780 ( 2013 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 10-1658
K ARL S WANSON and K ATHY W IETHARN,
Plaintiffs-Appellants,
v.
C ITY OF C HETEK, a municipal corporation,
and JERRY W HITWORTH, in his individual
and official capacities,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 09-cv-0097-slc—Stephen L. Crocker, Magistrate Judge.
A RGUED S EPTEMBER 7, 2012—D ECIDED JUNE 19, 2013
Before C UDAHY, R OVNER, and T INDER, Circuit Judges.
C UDAHY, Circuit Judge. This is a case about a class-of-one
equal protection claim in which the plaintiff has demon-
strated hostility, but may have failed to identify a
similarly situated individual who received more
favorable conduct. The magistrate judge granted sum-
mary judgment for defendants because, though there
2 No. 10-1658
was evidence of animus, there was no similarly situated
individual. Because animus is the very basis of a class-of-
one claim, we reverse.
Karl Swanson purchased a lakeside home in Chetek,
Wisconsin. He and Kathy Wietharn live together, but
Wietharn holds no ownership interest in the Chetek
home. They moved in next door to Jerry Whitworth, the
elected mayor of Chetek. Swanson decided to remodel
the home. He obtained a building permit for “remodel—
repair” and began work. Swanson also decided to put
in a three-feet high fence between his property and
Whitworth’s and along the street. Whitworth did not
like this situation and used his position to harass Swanson.
Whitworth’s harassment of Swanson included: repeat-
edly telling building inspector Bill Koepp that he
should not have issued the remodeling permit; re-
peatedly entering the Swanson home without permis-
sion; using his influence to cause building inspector
Joe Atwood to block (or at least delay) the grant of a
fence permit;1 telling the fence building team that
1
Swanson was given contradictory information regarding
where the fence could be placed, and whether it could be
built without a permit. Wietharn’s first meeting with Atwood
was interrupted when Whitworth entered the room and
began shouting that no permit would be issued. At that
meeting, Atwood refused to provide Wietharn a fence
permit application. In a later meeting, Atwood informed
Wietharn that the fence was a “structure” and thus had to be
set back more than 20 feet. Wietharn believed this informa-
(continued...)
No. 10-1658 3
Swanson and Wietharn were drug dealers and unlikely
to pay for the work provided; and causing the City’s
prosecution of Swanson in municipal court for the con-
struction of the fence in violation of a five-foot setback
requirement.
This case against Swanson was without legal basis.
The ordinance at issue applied only to fences four feet
or higher. Further, the judge determined that Swanson’s
fence work did not require a separate permit and the
repair permit validly authorized such work. The City
did not appeal the decision.
During this period of harassment, Michele Eberle, a
neighbor of Swanson, erected a fence that straddled part
of Swanson’s property. This fence was constructed
without a permit and allowed to be closer to the
property line than Swanson’s litigated fence. Building
inspector Atwood confirmed that the fence encroached
on Swanson’s property. After the completion of the
fence, Atwood filled out a building permit application
form for Eberle and later issued the permit authorizing
the movement of the fence to “the property line.” This
occurred during the same period that the City cited
Swanson for placement of a boundary fence within
several feet of Whitworth’s property line.
Swanson and Wietharn filed a class-of-one equal pro-
tection suit, as well as defamation and slander claims
(...continued)
tion was incorrect and so did not fill out a structure permit
application.
4 No. 10-1658
under Wisconsin law. The magistrate judge granted
summary judgment for Whitworth as to the Fourteenth
Amendment claim, finding that though “[t]he facts
found for the purpose of deciding summary judgment
suggest that the Mayor of Chetek employed his city’s
bureaucracy to wage a personal vendetta against
[Swanson and Wietharn]” the equal protection claim
must fail because Swanson and Wietharn did not show
a similarly situated individual who received more fa-
vorable treatment. The magistrate judge felt that
Eberle’s situation was not very similar to Swanson’s for
two main reasons: first, Swanson did not provide
enough information regarding the height and character
of Eberle’s fence; and second, Eberle’s fence was only
a boundary fence while Swanson’s fencing involved a
front fence and a boundary fence. The magistrate judge
declined to exercise supplemental jurisdiction over
Swanson’s and Wietharn’s state law claims and they
were dismissed without prejudice.
Swanson and Wietharn appeal. This court has jurisdic-
tion under 28 U.S.C. § 1291. This court reviews a motion
for summary judgment de novo, drawing all inferences
in the non-moving party’s favor. See Miranda v. Wis. Power
& Light Co., 91 F.3d 1011, 1014 (7th Cir. 1996); Wolf
v. Buss Am. Inc., 77 F.3d 914, 918 (7th Cir. 1996). We
begin our analysis by noting that Wietharn lacks
standing to bring an equal protection claim arising from
the mistreatment of Swanson and the abuse of permits
regarding Swanson’s home. However, we feel that a
clear showing of animus, absent a robust comparison to
No. 10-1658 5
a similarly situated individual, may sustain a class-of-
one equal protection claim and so we reverse.
I.
The doctrine of standing instructs the court to
determine if a litigant is entitled to a federal resolution
of his grievance. To satisfy standing, (1) a plaintiff must
have suffered an “injury in fact:” an invasion of a legally
protected interest which is concrete and particularized,
and actual and imminent; (2) there must be a causal
connection between the injury and the conduct com-
plained of; and (3) it must be likely that the injury will
be redressed by a favorable decision. Lujan v. Defenders
of Wildlife, 504 U.S. 555, 560-61 (1992). “A party
‘generally must assert his own legal rights and interests,
and cannot rest his claim to relief on the legal rights or
interests of third parties.’ ” Kowalski v. Tesmer, 543 U.S.
125, 129 (2004) (quoting Warth v. Seldin, 422 U.S. 490, 499
(1975)).
In the case before us, although Whitworth may have
defamed Wietharn or otherwise behaved in a boorish
manner, Wietharn has not sustained an invasion of a
legally protected interest in connection with the
unequal treatment of Swanson’s fence work. First,
the property in Chetek is owned solely by Swanson.
Wietharn’s status as a person who lives with Swanson
is not enough to provide her with a constitutional cause
of action under the Equal Protection Clause. Second, the
City cited and sued Swanson for the violation of ordi-
nances. Even though Wietharn was acting as an agent
6 No. 10-1658
for Swanson when dealing with Atwood, and it
seems clear that she may have felt frustrated by the
bureaucratic run-around she encountered, the legally
protected interests at issue belonged to Swanson. “[T]he
‘injury in fact’ test requires more than an injury to a
cognizable interest. It requires that the party seeking
review be [her]self among the injured.” Sierra Club v.
Morton, 405 U.S. 727, 734-35 (1972). Because Wietharn
was not the subject of any municipal citation, and was
not the object of any government action, Wietharn has
not suffered an “injury in fact,” and has not satisfied
the first element of standing. Wietharn is therefore
not a proper plaintiff to the class-of-one equal protec-
tion claim.
Of course, this does not mean that Wietharn has no
legal recourse for the possible torts committed against
her. Swanson and Wietharm asserted state common
law claims for defamation and slander against Whit-
worth, for telling the fence building team that they were
drug dealers who were unlikely to pay for the work
provided. However, the magistrate judge dismissed
Swanson’s and Wietharn’s class-of-one claims, and conse-
quently, declined to exercise supplemental jurisdic-
tion over their state law claims. Wietharn’s state law
claims may allow her possible redress for injuries to
her reputation.
II.
The Equal Protection Clause of the Fourteenth Amend-
ment protects individuals from governmental discrim-
ination. The typical equal protection case involves dis-
No. 10-1658 7
crimination by race, national origin or sex. However,
the Clause also prohibits the singling out of a person
for different treatment for no rational reason. To state
a class-of-one equal protection claim, an individual
must allege that he was “intentionally treated differently
from others similarly situated and that there is no
rational basis for the difference in treatment.” Vill. of
Willowbrook v. Olech, 528 U.S. 562, 564 (2000).
The classic class-of-one claim is illustrated when a
public official, “with no conceivable basis for his action
other than spite or some other improper motive . . . comes
down hard on a hapless private citizen.” Lauth v.
McCollum, 424 F.3d 631, 633 (7th Cir. 2005). This
improper motive is usually covert, so courts first look
to eliminate all proper motives. If there was no rational
basis for the treatment of the plaintiff, then the motives
must be irrational and improper. See Vill. of Willowbrook,
528 U.S. at 564-65. To achieve clarity, courts look to
the treatment of similarly situated individuals: if all
principal characteristics of the two individuals are the
same, and one received more favorable treatment, this
may show there was no proper motivation for the dispa-
rate treatment. See Geinosky v. City of Chicago, 675 F.3d
743, 748 (7th Cir. 2012) (“When the parties raise a
serious question whether differences in treatment stem
from a discriminatory purpose or from a relevant
factual difference, the key evidence is often what was
done in the investigation or prosecution of others in
similar circumstances.”). It is this difficulty in showing
animus that has motivated a large number of splits,
including a tied en banc in this court in Del Marcelle v.
8 No. 10-1658
Brown County Corp., 680 F.3d 887 (7th Cir. 2012) (en
banc), over whether animus must be alleged or whether
a showing of different treatment with no rational basis
is enough.2
Thankfully, for the present issue we need not wade
into the question of what to do in the absence of alleged
animus. In most class-of-one cases, the comparison of
similarly situated individuals will be used to infer ani-
mus. However, this case presents the opposite circum-
stance: animus is easily demonstrated but similarly
situated individuals are difficult to find. Below, the
magistrate judge found animus due to the overt actions
of Whitworth: Whitworth bore Swanson ill will, caused
an investigation against him, interrupted meetings
of the plaintiffs and building inspectors and angrily
informed building inspectors that no permit should be
granted. The magistrate judge concluded at the sum-
mary judgment stage that the facts supported the notion
that Whitworth abused his powers as mayor in order
to pursue his vendetta against plaintiffs. However,
the magistrate judge held that because the proffered
similarly situated individual, Eberle, was sufficiently
2
The Seventh Circuit’s case law on this subject is contradic-
tory. See Racine Charter One, Inc. v. Racine Unified Sch. Dist.,
424 F.3d 677, 683-84 (7th Cir. 2005) (discussing two, and possibly
three, lines of cases). However, this case does not present
the court with a “merely unexplained difference in . . . treat-
ment,” which was contemplated in Hilton v. City of Wheeling,
209 F.3d 1005, 1008 (7th Cir. 2000), but instead concerns
overt hostility.
No. 10-1658 9
different from plaintiffs, their claim must fail. The magis-
trate judge erred in this conclusion of law.
If animus is readily obvious, it seems redundant to
require that the plaintiff show disparate treatment in a
near exact, one-to-one comparison to another individual.
See Fenje v. Feldt, 398 F.3d 620, 628 (7th Cir. 2005) (“[A]n
‘orchestrated campaign of official harassment directed
against [the plaintiff] out of sheer malice,’ ‘vindictiveness,’
or ‘malignant animosity’ would state a claim for relief
under the Equal Protection Clause.” (quoting Esmail v.
Macrane, 53 F.3d 176, 178-79 (7th Cir. 1995)); see also Nevel
v. Vill. of Schaumburg, 297 F.3d 673, 681 (7th Cir. 2002);
Hilton v. City of Wheeling, 209 F.3d 1005, 1008 (7th Cir.
2000) (so-called “vindictive action” equal protection
cases require proof of “a totally illegitimate animus
toward the plaintiff by the defendant”).
This case is similar to Geinosky v. City of Chicago, in
which Geinosky received twenty-four bogus parking
tickets within a year, all written by officers of Unit 253
of the Chicago Police Department. 675 F.3d 743, 745
(7th Cir. 2012). Geinosky brought a class-of-one discrim-
ination claim. However, because Geinosky failed to
identify a similarly situated individual, the district
court granted judgment for the City. Id. at 749. We re-
versed, explaining that
requiring Geinosky to name a similarly situated
person who did not receive twenty-four bogus
parking tickets in 2007 and 2008 would not help
distinguish between ordinary wrongful acts and
deliberately discriminatory denials of equal protec-
10 No. 10-1658
tion. . . . On these unusual facts—many baseless
tickets that were highly unlikely to have been a prod-
uct of random mistakes—Geinosky’s general asser-
tion that other persons were not similarly abused
does not require names or descriptions in support.
Id. at 748-49.
If anything, Swanson presents a stronger argument
for animus than in Geinosky. In Geinosky, there was no
apparent motive for the ticketing officers and animus
could be inferred from the sheer absurdity of the num-
ber of illegitimate tickets. Swanson, on the other hand,
has identified his specific harasser, provided a plausible
motive and detailed a series of alleged actions by
Whitworth that appear illegitimate on their face.
Taken together, Whitworth’s alleged statements and
behaviors demonstrate overt hostility. It would be oddly
formalistic to then demand a near identical, one-to-one
comparison to prove the readily-apparent hostility.
In the present case, where the direct showing of
animus was very strong, Swanson’s pointing to
Michele Eberle as a similarly situated individual was
helpful in indicating the norm governing the regula-
tion of fences in Chetek. Whitworth’s actions against
Swanson resulted in a drastic deviation from that norm,
and Whitworth’s previous statements made clear that
his personal hatred caused this unwarranted difference
in treatment. Hypothetically, if the direct evidence of
animus were less strong but still significant, Eberle’s
circumstance could be invoked as additional support
for a direct showing of animus. Here, however, all
No. 10-1658 11
Swanson needs to show is that harassment, yelling,
arbitrary denials and frivolous litigation do not normally
follow requests for fence permits.
A FFIRMED in part, R EVERSED in part,
and R EMANDED.
6-19-13