Equal Protection and Local Government Discretion Eric Farrar Olson & Olson, LLP efarrar@olsonllp.com January 19 2017 13th Annual Local Government Seminar

13th Annual Local Government Seminar 14th Amendment No State shall … deny to any person … the equal protection of the laws. “Persons similarly situated should be treated alike” January 19 2017 13th Annual Local Government Seminar

Level of Equal Protection Race, alienage, national origin Strict Scrutiny Gender Intermediate Scrutiny No “suspect” class Rational Basis January 19 2017 13th Annual Local Government Seminar

13th Annual Local Government Seminar “Class of One” Supreme Court has said Equal Protection protects “persons, not groups” Class of One Individual singled out for different treatment Not based on membership in a “group” January 19 2017 13th Annual Local Government Seminar

Olech v. Village of Willowbrook Olechs applied for connection to city water City requested 15 foot easement from all others Demanded 33 foot easement Olechs previously sued City; alleged this was motivation January 19 2017 13th Annual Local Government Seminar

13th Annual Local Government Seminar Olech – Supreme Court Class of one “Intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment” Lower court required “ill will” Supreme Court not address subjective motive January 19 2017 13th Annual Local Government Seminar

Engquist v. Oregon Dep’t of Agriculture State job; nine years Some previous trouble with fellow employee New department head Indication he wanted to get rid of Engquist Fellow employee promoted despite Engquist having more experience Job eliminated January 19 2017 13th Annual Local Government Seminar

Engquist – Supreme Court Government may have “two hats” Lawmaker, regulator, sovereign v. Employer, proprietor Employment inherently subjective, individualized Practical considerations January 19 2017 13th Annual Local Government Seminar

13th Annual Local Government Seminar “Class of One” Limits? Olech Zoning (i.e., sovereign) Clear standard (i.e., difference is apparent) Engquist Employment decision “Subjective, individualized determinations” January 19 2017 13th Annual Local Government Seminar

13th Annual Local Government Seminar Integrity case City PD gets off county towing rotations and starts its own Selects 2 companies, omits 2 Omitted 2 ask “Why?” PD sends list of criteria Omitted 2 says they met those criteria January 19 2017 13th Annual Local Government Seminar

Integrity – Fifth Circuit Hiring private tow company similar to employment subjective, individualized decisions Some factors not “objective” Reputation, experience Practical reasons Court cannot review “countless discretionary decisions” Proof: treated differently “for discriminatory purpose” January 19 2017 13th Annual Local Government Seminar

13th Annual Local Government Seminar Lessons learned Olech Engquist Objective Zoning Permits/Licenses Sovereign Regulator Licensing Subjective Discretionary “Intangible” Proprietor Employer Selecting “outside services” January 19 2017 13th Annual Local Government Seminar

13th Annual Local Government Seminar Example Officer monitoring speed Multiple speeders Only one pulled over and cited Is this a “Class of One”? Not all speeders can be stopped Thus, some discretion January 19 2017 13th Annual Local Government Seminar

13th Annual Local Government Seminar Example House fire High winds Begin spraying down one nearby house, but not others Is this a “Class of One”? Not a blanket regulation Subjective; individualized; “intangible” January 19 2017 13th Annual Local Government Seminar