Del Marcelle: The Standard for Assessing Class-of-One Equal-Protection Claims Remains Unresolved in the Seventh Circuit

03 December 2012 Wisconsin Appellate Law Blog

With the Supreme Court’s denial of certiorari on November 26, 2012, in Del Marcelle v. Brown County Corp., No. 12-367, the Seventh Circuit’s inability to resolve the standard by which class-of-one equal-protection claims should be assessed will likely persist for some time. The Seventh Circuit had heard the case en banc to resolve the conflicted case law, hoping to determine whether a class-of-one claim requires pleading malicious or wrongful motivation and to agree on an improved standard, but the en banc court failed in its quest, affirming by an evenly divided court. 680 F.3d 887 (7th Cir. 2012).

Denying certiorari in Del Marcelle last week assures that this uncertainty will continue. While conflicting authorities exist in other Courts of Appeals, as well as among state courts of last resort, the impasse will continue to be most pronounced in courts within the Seventh Circuit.

Lower courts are likely to decide cases in ways that do not depend on choosing between the two standards. They will likely find either that a given complaint satisfies both standards (by satisfying even the stringent animus standard) or that it would fail under either standard (by failing the more flexible rational-basis standard). And, as they have in many past cases, judges will look for other faults with class-of-one claims, avoiding the need to decide whether improper subjective motivation is a required element. Previously courts have dismissed class-of-one claims where a complaint failed to allege the existence of a similarly situated individual, for example, or where a defendant was entitled to qualified immunity for the actions taken. 

Only a grant of certiorari from the Supreme Court in a future case or changes to the makeup of the Seventh Circuit offer any hope for clarity. 

Disclosure: Contributors to this blog represented Mr. Del Marcelle in briefing and argument before the Seventh Circuit en banc and in petitioning the Supreme Court to grant certiorari.

This blog is made available by Foley & Lardner LLP (“Foley” or “the Firm”) for informational purposes only. It is not meant to convey the Firm’s legal position on behalf of any client, nor is it intended to convey specific legal advice. Any opinions expressed in this article do not necessarily reflect the views of Foley & Lardner LLP, its partners, or its clients. Accordingly, do not act upon this information without seeking counsel from a licensed attorney. This blog is not intended to create, and receipt of it does not constitute, an attorney-client relationship. Communicating with Foley through this website by email, blog post, or otherwise, does not create an attorney-client relationship for any legal matter. Therefore, any communication or material you transmit to Foley through this blog, whether by email, blog post or any other manner, will not be treated as confidential or proprietary. The information on this blog is published “AS IS” and is not guaranteed to be complete, accurate, and or up-to-date. Foley makes no representations or warranties of any kind, express or implied, as to the operation or content of the site. Foley expressly disclaims all other guarantees, warranties, conditions and representations of any kind, either express or implied, whether arising under any statute, law, commercial use or otherwise, including implied warranties of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Foley or any of its partners, officers, employees, agents or affiliates be liable, directly or indirectly, under any theory of law (contract, tort, negligence or otherwise), to you or anyone else, for any claims, losses or damages, direct, indirect special, incidental, punitive or consequential, resulting from or occasioned by the creation, use of or reliance on this site (including information and other content) or any third party websites or the information, resources or material accessed through any such websites. In some jurisdictions, the contents of this blog may be considered Attorney Advertising. If applicable, please note that prior results do not guarantee a similar outcome. Photographs are for dramatization purposes only and may include models. Likenesses do not necessarily imply current client, partnership or employee status.

Related Services