Willowbrook v. Olech

[Tom Grey]

Robin Charlow responded to Michael McConnell:


>  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.

Maybe one way to read these cases together is that where the permissible
rationale is very weak but not so wholly implausible as to fail truly
minimal scrutiny, and there is a general background story that makes an
impermissible motive strongly plausible, the action will be struck down,
unless the government can prove itself out from under the imputation of bad
motive. Constitutional res ipsa loquitur.

The background story in the cases of Moreno, Cleburne, and Romer is
judicial notice of prejudice against the groups disadvantaged by the action
in question, though prejudice not sufficient to make the groups "protected"
and hence automatically trigger heightened scrutiny. In this case, by
contrast, the equivalent story is a much more generally applicable one --
the well-known tendency of  bureaucrats to take revenge against
troublemakers. The elements of the constitutional claim are then presumably
that plaintiff has made a nuisance of herself to the official or agency in
question, and the official has, in a sequence consistent with retaliatory
motive, taken adverse action that has very little legitimate basis.

For this to be other than a license for every loony to make a federal case
out of her grievance, the courts will have to be extremely demanding on
what counts as a showing of "very little legitimate basis" -- I think
that's the message of Michael McConnell's inquiry.





>(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


-- Tom Grey     Stanford Law School    tgrey at law.stanford.edu