Willowbrook v. Olech

[Robin Charlow]

With the very big proviso that my knowledge of the decision is based on
the synopsis reported on this listserve and not the opinion itself, here
are a few reactions to Michael McConnell's concerns:

>>> Michael McConnell <Mcconnellm at LAW.UTAH.EDU> 03/01/00 12:02PM >>>
Did anyone else find the decision in Willowbrook v. Olech puzzling? I
have no problem with the abstract notion of a "class of one," but:

(1) Where the gravamen of the complaint is arbitrary or vindinctive
administration, what is the difference between a due process claim
and an equal protection claim? (Lest you answer, "it does not
matter," note that due process claims are subject to procedural
limitations not applicable to EP claims -- Hudson v. Taylor.)

        There is no meaningful difference, but isn't that often the case
when dealing with rational basis substantive due process and rational
basis equal protection claims?  You can always fashion your rational
basis substantive due process claim as a rational basis equal protection
claim as long as you can find someone else in a similar position who was
not treated as badly as you, which seems to be quite often (I use this
as a classroom exercise in Con Law and the students most often can come
up with a companion formulation for any claim).  As an aside to your
aside, it matters which claim you are making not only procedurally but
also in terms of remedies:  if you win on a due process claim, the
government has to treat you better, but if you win the same issue
fashioned as an equal protection claim, the government need not treat
you better as long as it's willing to treat others as badly as it's
treating you (eg, require a 33-foot easement of everyone in Willowbrook
who wants to be connected to the municipal water supply).

2) What is the logical relationship between rational basis review
and an allegation of vindictiveness? Ordinarily, for purposes of
rational basis review, we do not plumb the government "real" motives
for action, or worry about underinclusiveness, but ask only whether a
reasonable official might consider that the action toward the
complainant promotes a legitimate governmental purpose. In
Willowbrook, the government officials demanded a 33-foot easement,
for purposes of creating a public road. That would seem to be
rationally related to a legitimate state purpose. To allege
vindictiveness seems to demand an inquiry into actual motive, and to
question why no one else was asked to give such an easement would
seem to be an underinclusiveness argument foreclosed by the
"one-step-at-a-time" doctrine.

        As reported here, the Court ruled that the plaintiff stated a
cognizable claim without reaching the issue of the alleged
vindictiveness, on the ground that she alleged she'd been irrationally
treated differently than others similarly situated, "quite apart from
the Village's subjective motivation."  This comports with your analysis.
 As for the relationship between EQUAL PROTECTION rational basis review
and vindictiveness, the decision that comes to mind is US Dept. of
Agriculture v. Moreno, in which the Court said that a bare desire to
harm a politically unpopular group (hippies) contributed to its finding
an irrational basis for the government's action.  I suppose the
vindictiveness alleged here could arguably be cast as a bare desire to
harm a politically unpopular group in Willowbrook--Ms. Olech and her
neighbors.  Of course, if there is any other possible rational basis for
the different treatment, you're right, it ought to survive rational
basis review, but there are a few cases (Moreno, Cleburne, maybe even
Romer v. Evans) where one could likewise posit SOME rational basis other
than the alleged ill will and the action apparently does not survive
anyway.  In other words, whether or not consistent with other rational
basis equal protection review, there may be precedent for the relevance
of vindictiveness.

(4) Can the holding be limited to vindictiveness? Under rational
basis scrutiny, shouldn't the "class of one" be entitled to relief
whenever the state lacked a legitimate reason for delay?

        re your first question:  Since the Court did not rely on
vindictiveness, it would seem not to be a limitation.
        re your second question:  And why not--that is, if there is to
be such a thing as substantive due process, and if it bars government
action without rational or legitimate explanation, why not grant relief
whenever the state lacks a rational or legitimate reason for delay?  I
wonder if run-of-the- mill bureaucratic incompetence could serve as a
rational reason for delay.


Robin Charlow
Hofstra Law School