Willowbrook v. Olech

[William Funk]

Michael McConnell wrote:
>
> 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:
>
> > (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.

Even in the most deferential rational basis review, the plaintiff is
allowed to try to prove that the state's purported legitimate interest
and purported rational basis do not exist.  In only the most extreme
cases can such a "prove the negative" succeed, but obviously if the
government conceded that it acted purely for vindictive purposes, the
government action would be unconstitutional (whether under equal
protection or due process, and I tend to agree that this really seems
more a due process than an equal protection claim) as not having a
legitimate purpose.  Similarly, if the plaintiff can prove that was the
only purpose, she should succeed.  And that could apply outside the
vindictiveness realm, but the plaintiff would still be trying to prove
that the government had NO legitimate purpose.  Whether this plaintiff
can prove such a vindictive purpose is another issue.  I certainly doubt
that some particular delay alone would suffice.

Bill Funk
Lewis & Clark Law School