1. Equal Protection and Local Government Discretion
Eric Farrar
Olson & Olson, LLP
January
13th Annual Local Government Seminar

2. 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
13th Annual Local Government Seminar

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

4. 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
13th Annual Local Government Seminar

5. 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
13th Annual Local Government Seminar

6. 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
13th Annual Local Government Seminar

7. 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
13th Annual Local Government Seminar

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

9. 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
13th Annual Local Government Seminar

10. 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
13th Annual Local Government Seminar

11. 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
13th Annual Local Government Seminar

12. 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
13th Annual Local Government Seminar

13. 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
13th Annual Local Government Seminar

14. 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
13th Annual Local Government Seminar