A TTORNEYS FOR A PPELLANTS

Jonathan L. Mayes Chief Litigation Counsel

Justin F. Roebel Assistant Corporation Counsel Office of Corporation Counsel Indianapolis, Indiana A TTORNEYS FOR A MICI C URIAE I NDIANA A SSOCIATION OF C ITIES AND T OWNS AND I NDIANA M UNICIPA L L AWYERS A SSOCIATION Thomas E. Wheeler Anthony W. Overholt Jo Angela Woods Indianapolis, Indiana A TTORNEYS FOR A PPELLEES Ronald J. Waicukauski R. Davy Eaglesfield, III Jana K. Strain Indianapolis, Indiana

_____________________________________________ _________________________________ 

# In the 

# Indiana Supreme Court

_________________________________ No. 49S02

- 1007

- CV

- 402

C ITY OF I NDIANAPOLIS , ET AL ., Appellants ( Defendant s b e low)
,

v.

C HRISTINE A RMOUR , ET AL ., Appellees ( Plaintiff s below)

.

_________________________________ Appeal from the Marion Superior Court, No. 49D11

- 0706

- CT

- 026050

The Honorable John F. Hanley, Judge

_________________________________ On Petition to Transfer from the Indiana Court of Appeals, No. 49A02

- 0901

- CV

- 84

_________________________________

May 10 , 2011
Sullivan, Justice.

The City of Indianapolis abandoned the Barrett Law method of financing sewer i mprovements in favor of a new system that imposes less of a financial burden on property ow n ers. To ease the transition, the City discharged all outstanding Barrett Law a s sessments owing as of
N o vem ber 1, 2005, but did not give refunds to those property owners who had previously paid2

their Barrett Law assessments in full or in part . We hold that the City did not violate the Eq ual Protection Clause of the Fourteenth Amendment because forgiving only the outstanding asses sment balance s was rationa l ly related to a legitimate governmental interest.

Background

Indiana ‟ s Barrett Law 1 authorizes municipalities to provide or require p ublic improv ements and fund those improvements by levying special as s essments against the benefit ted pro perties

. Town Council of New Harmony v. Parker , 726 N.E.2d 121 7, 1227 n.13 (Ind. 2000) (quo t ing Porter v. City of Tipton , 141 Ind. 347, 40 N.E. 802, 80 3 (1895))

. The costs of Ba r rett Law projects are generally “ apportioned equally a mong all abutting lands or lots ” benefitted by the improv e ment. I.C. § 36

- 9

- 39

- 15(b)(3).

Prior to 2006, the City of Indianapolis ( “ City ” ) used Barrett Law to fund sanitary sewer projects.

In April, 200 1, the City sent a letter to property owners in the Northern Estates neighbo rhood notifying them that their pro p erties were to be part of the Brisbane/Manning Barrett Law
S anitar y Sewers Project ( “ Brisbane/Manning Project ” ) , u nder which their prope r ties were to be connected to City sewers, eliminating the use of septic tanks in the neighborhood. In July, 2004,

a fter complying with then

- existing regulatory procedures, the Indianapolis Board of Public Works ( “ Board ” ) le vied a $9
, 278 special a s sessment against each parcel subject to the project. 2

Property owners were given the option of paying the special assessment up front in its e ntirety or paying it in monthly installments over a 10

- , 20

- , or 30

- year period. Those choo s ing t he installment plan were charged an a n nual interest rate of 3.5% and a statutory lien 3 was placed on their properties . Of the approximately 180 parcels covered by the project , prope r ty owners of

1 Ind. Code §§ 36

- 9

- 39

- 1 to

- 30 (2007)

. 2 One parcel had a preexis t ing sewer connection and was therefore assessed only $4,639. 3 Ind. Code § 6

- 1.1

- 22

- 13.5 (2010).3

142 parcels elected to pay their special assessments in inst allments. 4 The owners of the remai ning parcels chose t o pay up front in a single lump

- sum pa y ment. The plaintiffs in this case are the owners of 31 of those parcels on which the assessment was paid up front

.

The following year, the City

- County Council o f Indianapolis

- Marion County ( “ Counc il ” ) enacted a general ordinance under which the Barrett Law method of f inancing sewer projects

was disco n tinued in favor of the Septic Tank Elimination Program ( “ STEP ” ). See Indianapolis

Marion County, Ind., City

- Count y General Ordinance No. 107, 2005 (Oct. 31, 2005) ; see also Appe l lant ‟ s App. 320

- 35

. The Council ‟ s action responded to two concerns. First, the City faced a public health cr i sis because of the continued use of out

- of

- date septic tanks on many properties. Second, the Barrett Law system was imposing too heavy a fina ncial burden on middle

- and low

income taxpayers, given that the aver age assessment under a Barrett Law project was appro ximately $10,000. 5

At the time STEP was adopted, the Brisbane/Manning Pr oject was one of more than 40 Barrett Law projects in existence . As with the Brisb ane/Manning Project, some taxpayers su bject to these other Barrett Law projects had elected to pay their assessments in full and some in
i n stallments. As part of the transi tion from Barret t Law to STEP, the Board passed Resolu tion 101, 2005 ( “ Resolution 101 ” ) , Appellant ‟ s App. 337, 350, forgiving all outstanding assessment
balances on the 40

- plus Barrett Law projects owing as of N o vember 1, 2005.

As a result of Res o lution 1 01 , the owners of the 142 parcels in Northern Estates who had elected to pay their Barrett Law a s sessments over a period of years were discharged from their
debts , along with all other taxpayers from other 40

- plus Barrett Law projects who had outstan ding b alances due

.

4 Owners of 68 parcels chose the 30

- year installment plan, with a monthly payment of $25.77; owners of 27 parcels chose the 20

- yea r installment plan, with a monthly payment of $38.66; and owners of 47 pa rcels chose the 10

- year installment plan, with a monthly payment of $77.27. 5 Under STEP, sanitary sewer projects were to be paid for through an initial “hook

- up fee” of $2,500 to

con nect a prope r ty to the City‟s sewers and through new bonds funded by increased sewer

- usage rates. The lower connection fee and modest usage rates would permit more citizens‟ properties to be co n nected to the City‟s sewers, thereby alleviating the public h ealth problem posed by se p tic tanks.4

The plaintiffs in this lawsuit complain that Resolution 101 provided no relief for Nort hern Estates taxpayers who had paid their Barrett Law assessments in full for the Bri sbane/Manning Project. But it was not just the Brisbane/Manning taxpa yers who had paid their assessments in full who did not receive refunds; no ta x payers in any of the 40

- plus Barrett Law projects r e ceived any refunds of the amounts they had paid, including those who had paid some
but not all of their installments

– thousa nds of taxpayers, some of who m had paid all, some a lot, and some only a little of their respective assessments. Conversely, it was not only the Bri sbane/Manning taxpayers who had elected the installment plan who had their outstanding ba lances forgiven; a ll taxpayers in all of the 40

- plus Barrett Law projects had their outstanding ba lances forgiven, including those who had paid some but not all of their installments

– tho u sands of taxpayers, so me of who m owed all, some a lot, and some only a little of thei r respective a ssessments.

In February, 2006, t he plaintiffs, who , to repeat, had each paid their Barrett Law asses sments in full, petitione d the Board for a r efund in an amount equal to the assessments discharged for those property owners who had paid the most under an instal l ment plan

. 6 In March, 2006, t he
Board sent a letter to the plaintiffs denying their refund request

. Appellant ‟ s App. 317

- 18. It reasoned that there were many other Barrett Law projects subject to forgiveness and that issuing
refund s to the plaintiffs “ would establish a precedent of unfair and inequitable treatment to all

ot h er property owners who have also paid Barrett Law assessments. ” Id. at 318. And although November 1, 2005, “ might seem arbitrary to [the plaintiffs], it [was] essential for the City to e stab lish this date and move forward with the new funding a p proach. ” Id.

In July , 2007, the plaintiffs filed their complaint against the City and several of its officials 7 see k ing , among other things, a Barrett Law assessment re fund

. In their federal claim under
42 U.S.C. § 1983 (2006) , the plaintiffs alleged that the City had violated their federal constit utional rights to due process and equal protection under the Fourteenth Amendment. 8 In March,

6 The plaintiffs who paid the full $9,278 assessment each sought refunds in excess of $8,000, and the plaintiff who was assessed half sought a refund in excess of $3,400.
7 We refer to the defendants collectively as the “City,” unless otherwise specified. 8 The plaintiffs also raised several claims under both the Indiana Constitution and va r ious Indiana statutes, but none of those claims are i s sues in this appeal.5

2008, the plaintiffs moved fo r summary judgment on their federal constitutional claims. The City filed a cross

- motion for summary judgm ent, arguing that the federal claims must fail b ecause the City had a rational basis for refus ing to grant the plaintiffs relief . The trial court de nied the City ‟ s mo tion, granted the plaintiff s ‟ motion, and en tered judgment against the City for $380,914.16. 9

On appeal, the plaintiffs abandoned their due process claim and sought to have the trial

court ‟ s judgment sustained on equal protection grounds only . The Court of Appeals affirmed,
fin d ing that the City did not have a rational basis for granting relief to those who were paying
their Barrett Law assessments in installments and den y ing relief to those who had paid up front in a lump sum. City of Indianapolis v. Armour , 918 N.E.2d 401 , 409

- 19 (Ind. Ct. App. 2009)
, reh‟g denied

. The Court of Appeals also held that the City could remedy the violation only by issuing refunds to the plai n tiffs. Id. at 419.

The City sought, and we granted, transfer, City of Indianapolis v. Armour , 940 N.E.2d 821 (Ind. 2010) (table), thereby vacating the opinion of the Court of Appeals
, Ind. Appellate Rule 58(A). Amici Curiae, the Indiana Association of Cities and Towns and the Indiana Muni cipal Lawyers Association, f iled a brief in support of the City ‟ s Pet i tion to Transfer.

Discussion

The only issue pr e sented is whether the City ‟ s forgiveness of all outstanding Barrett Law assessments as part of its transition to STEP violated the plaintiffs ‟ rights under the Equal Pr ote c tion Clause, which provides that “ [ n ]o S tate shall

. . . deny to any person within its juri s diction the equal protection of the laws. ” U.S. Const. amend. XIV, § 1

. A law attacked on equal prote ction grounds will be upheld if it survives rational b asis review, unless the classification is drawn along suspect lines or infringes the exercise of fundamental const i tutional rights, in which case it must survive heightened judicial scrutiny. FCC v. Beach Commun i cations, Inc. , 508 U.S. 307, 313 (1993); No rdlinger v. Hahn , 505 U.S. 1, 10 (1992).

9 The trial court failed to award prejudgment interest, a nd the City concedes that this was error.6

Because Resolution 101 neither involves a suspect classification nor i n hibits the exercise of a fundamental constitutional right, the parties agree that it is not subject to heig h tened judicial scrutiny and must be analyzed under the rational basis standard. But they offer differing inte rpretations and applications of that standard , which requires us to e x amine the intricacies of the
standard itself

.

I

Rational basis is the most deferential sta n dard of review. U nder this standard, courts will not invalidate a law merely because it is deemed unwise, unfair, or u n sound, or because there are

“ more reasonable ” or “ more effective ” policy choices that could have be en made. Beach Co mmunications , 508 U.S. at 313

- 14 ; Ind . Aeronautics Comm ‟ n v. Ambassadair, Inc.
, 267 Ind. 137
, 368 N.E.2d 1340, 1346 (1977) . Rather, “ [t]he Constitution presumes that, absent some re a son to infer antipathy, even improvident decisions will eventually be rectified by the democratic

process. ” V ance v. Bradley , 440 U.S. 93, 97 (1979) (foo t note omitted).

Governmental decision makers are afforded the greatest leeway in ma k ing classifications and drawing lines with regard to taxation. Lehnhausen v. Lake Shore Auto Parts Co. , 410 U.S. 356, 364 (197 3) ( quoting Madden v. Kentucky , 309 U.S. 83, 88 (1940)) ; see also Fitzgerald v. Racing Ass ‟ n of Cent. Iowa , 539 U.S. 103, 108 (2003) ( “ [T]he Constitution grants legislators, not courts, broad authority (within the bounds of rationa l ity) to decide whom they wish to help with their tax laws and how much help those laws ought to provide. ” ). Thus, courts are “ esp ecially deferential in the context of classifications made by complex tax laws. ” No r dlinger , 505
U.S. at 11.

Under the rational basis standard, laws are clothed with a strong presumption of constit utionality

. Beach Communications , 508 U.S. at 314 (citation omitted) ; see also Nordlinger , 505
U.S. at 10 (“„[L]egislatures are presumed to have acted within their constitutional power despite
the fact that , in practice, their laws result in some inequality.‟” (alteration added) (quoting McGowan v. Maryland , 366 U.S. 420, 425

- 26 (1961))) . The party challenging the law bears the burden of proving that there is no rational basis for the government ‟ s classific a tion, Beach7

Communications , 508 U.S. at 315 (citations omitted) , and this can be done “„ only by the most explicit demonstration that a classification is a hostile and oppressive discrimination against pa rticular pe r sons and classes, ‟” Lehnhausen , 410 U.S. at 364 (quoting Madden , 309 U.S. at 88 ).

On the other hand, a classification survives rational basis review if (1) “ there is a plaus ible policy reason for the classification, ” (2) “ the legislative facts on which the classif i cation is apparently based rat ionally may have been considered to be true by the governmental decisio nmaker, ” and (3) “ the relationship of the classific a tion to its goal is not so attenuated as to render the distinction arbitrary or irrational. ” Nordlinger , 505 U.S. at 11 (citations o mi t ted).

First, t he government ‟ s classification must be based on policy reasons that are both leg itimate and plausible

. The legitimate governmental interests of states and municipalities are n umerous, given their broad police powers. See, e.g. , Jacobson v. Massachusetts , 197 U.S. 11, 25 (1905) (discussing breadth of states ‟ police powers). In particular, s tates and local governments have a legitimate interest in their own efficient and effective o p eration. Cf. Garcetti v. Ceballos
, 547 U.S. 410, 417

- 20 (2006) (limiting public employees ‟ first amendment rights because of g overnmental interest in operational effectiveness and efficiency). Thus, administrative conven ience and minimizing administrative costs are legitimate governmental interests. See, e.g

. , Ca rmichael v. S. Coal & Coke Co.
, 301 U.S. 495, 511 (1937) ( “ A dministrative convenience and e xpense in the collection or measurement of the tax are alone a sufficient justification for the di fference between the treatment of small incomes or small taxpa yers and that meted out to others

. ” (citations omitted) )

. G overnments also have a legitimate interest in preserving their limited r esources when granting benefits , and the U.S. Supreme Court has consistently upheld statutes and regulations that adjust the all o cation of limited funds and resources, most often in the welfare

context. See, e.g. , Bowen v. Gilliard , 483 U.S. 587 , 599 (1987) (upholding law tha t reduced we lfare benefits for some ); Lyng v. Castillo , 477 U.S. 635 , 639

- 43 (1986) (upholding law that r educed food stamp allotment for some ); Jefferson v. Hackney , 406 U.S. 535, 549 (1972) (uphol ding reduction of welfare benefits for some because “ budgetary constraints [did] not allow the payment of the full standard of need for all welfare recipients ” ); cf. U. S

. R.R. Ret. Bd. v. Fritz
, 449 U.S. 166, 176

- 79 (1980) (upholding statute reducing retirement bene fits for some railroad

e m ployees).8

The legitimate interest justifying the class i fication need only be plausible. That is, i t does
not matter what the actual policy reason was, so long as a legitimate reason can be conceived

. Beach Communications , 508 U.S. at 315 (citations omitted) ; Ind. Aeronautics Comm ‟ n , 368
N.E.2d at 1344 (citation omitted) . And it is no requirement that the conceivable pol icy in fact motivated the governmental decision maker. Beach Communications , 508 U.S. at 315 ( citing
Fritz , 449 U.S. at 179 ). Ra ther, a policy reason is sufficiently plausible if it “„ may reasonably have been the purpose and policy ‟ of the relevant government d ecisionmaker. ” Nordlinger , 505
U.S. at 15

- 16 (quoting Allied Stores of Ohio, Inc. v. Bowers , 358 U.S. 522, 528

- 29 (1959) ).

Second, the government ‟ s classification must be based on legislative facts which “ ratio nally may have been considered to be true by the governmental decisionmaker. ” Id. at 11 (cit a tion omitted). But the governmental decision makers are not required to prove any unde r lying facts
on which the classification is based
, Beach Communications , 508 U.S. at 315 (citing Vance v. Bradley , 440 U.S. at 111) ; the government need only have rationally believed to be true the facts prompting the classifica tion, Nordlinger , 505 U.S. at 11 (citation omit ted) ; Ind. Aeronautics
Comm ‟ n , 368 N.E.2d at 134 4

- 46

. In Minnesota v. Clover Leaf Creamery Co. , 449 U.S. 456, 470 (1981), for example, the U.S. Supreme Court upheld a state statute banning the sale o f milk in plastic containers but a l lowing the sale of milk in containers made of other materials , primarily

paper

. T he fact that the ban might not actually have promote d environmentally desirable pac ka g ing did not have to be proven ; “ the Equal Protection Clause [was] satisfied by [the Court ‟ s] conclusion that the Minnesota Legislature could rationally have decided that its ban on plastic nonreturnable milk j ugs might foster greater use of environmentally desirable alternatives. ” Id. at 466 (emphasis in original). And alt hough the Minnesota Supreme Court may have been co rrect that the ban was “ not a sensib le means of conserving energy, ” it i s for “ „ legislatu res, not courts, to decide on the wisdom and utility of legislation. ‟ ” Id. at 469 (quoting Ferguson v. Skrupa , 372 U.S. 726, 729 (1963))

.

Third, the government is not required to use narrowly tailored classif i cations to serve the
law ‟ s purpose. The clas sifi cation needs only rationally to further the law ‟ s purpose, No r dlinger
, 505 U.S. at 10 (citing City of Cleburne v. Cleburne Living Ctr., Inc. , 473 U.S. 432, 439

- 419

(1985), and City of New Orleans v. Dukes , 427 U.S. 297, 303 (1976) (per curiam) ), and not be

“ so attenuated as to render the distinction arbitrary or irrational, ” id. at 11 (ci ting City of Cl eburne , 473 U.S. at 446 )

. The classification need not be drawn “„ with mathematical nicety ‟” b ecause the issues facing governments “„ are practical ones an d may justify, if they do not require, rough accomm o dations

– illogical, it may be, and unscientific. ‟” Dandridge v. Williams , 397 U.S. 471, 485 (1970) (citation s omitted). As the Supreme Court previously has e x plained :

The problem of legislative classi fication is a perennial one, admitting of no do ctrinaire definition. Evils in the same field may be of different dimensions and proportions, requiring different remedies. Or so the legi s lature may think. Or the reform may take one step at a time, addres sing i t self to the phase of the problem which seems most acute to the legislative mind. The legislature may select one phase of one field and apply a remedy there, neglecting the others. The prohib ition of the Equal Protection Clause goes no further than the invidious discrimin ation.

Williamson v. Lee Optical of Okla. , Inc. , 348 U.S. 483, 489 (1955) (citations omitted).

II

Applying this standard, we find that Resolution 101 satisfies rational basis review and therefore does not run afoul of the Equal P rotection Clause . Resolution 101 was part and parcel of the City

- County Council ‟ s ordi n ance moving the City from Barrett Law to STEP. 10 Similar to the reasons prompting the overall tra n sition to STEP, the text of Resolution 101 provides that it

was enacte d because Barrett Law funding i m posed financial hardships on middle

- and low

income property owners who were often most in need of sanitary sewers due to failing septic

sy s tems. Appellant‟s App. 33 7, 350. Providing relief or support for citizens facing f inancial

10 On October 20, 2005, at a meeting of the Public Works Committee of the City

- County Council, the d irector of the Department of Public Works informed the Commi t tee of the plan to forgive all outstanding Barrett Law assessments, while not reimbursing property owners who had already paid their a s sessments. See Committee Meeting Minutes, Public Works Comm., City

- County Council of Indianapolis

- Marion County, Ind., at 6

- 10 (Oct. 20, 2005), available at http://www.indy.g ov/eGov/Council/PDF/Committee /Minutes/PWKS102005min.pdf (last visited May 6 , 2011). The Committee voted 8

- 0 to send Proposal No. 535, 2005, to the full City

- County Council with a recommendation that it “Do Pass.” Id. at 10. A lthough the minutes from th is meeting are not included in the record, we take judicial notice of them b ecause they co n stitute the “legislative history” of City

- County General Ordinance No. 107, 2005, and are thus part of that codified municipal ordinance. Ind. Evidence Rule 201(b); cf. Peoples v. State , 929 N.E.2d 750, 754 & n.6 (Ind. 2010) (utilizing legislative history to explain a state criminal st a tute).10

hardship is clearly a legitimate interest. E.g. , Fit z gerald , 539 U.S. at 108

- 09; Carmichael , 301 U.S. at 515 (“Support of the poor has long been recognized as a public purpose.” (citing Kelly v. Pittsburgh , 104 U.S. 78, 81 (1881))).

Moreover, it was r easonable for the City to believe that property ow n ers who had already paid their assessments were in better financial position s than those who chose i n stallment plans

. To be sure, there might be some property owners who could have paid up front but elected to pay in installments, despite being required to pay more because of interest. And it is pos s ible that there are some who paid up front that are currently experiencing f i nancial hardship. But , like in Clover Leaf Creamery
, i t does not matter u n der rational basis review wh at the actual facts would
show , as determined in court, so long as the issue wa s at least debatable when the governmental
decision maker acted

. Thus, the Court of Appeals erred in requiring the City to come forth with proof tha t all the property owners who had their assessments discharged were actually middle

- or low

- income participants in the Bri s bane/Manning Project. See Armour , 918 N.E.2d at 413 n.9.
Final ly, eliminating tax burdens is clearly a rational way of eliminating financial har d ship caused by the tax bu r den.

There are several other interrelated plausible policy reasons for Resolution 101. 11 As
noted under Background
, supra , the Brisbane/Manning Project was one of 40

- plus Barrett Law

11 Co n trary to the plaintiffs‟ position and the opinion of the Court of Appeals, these policy reasons may be considered because they are co n sistent with and related to the purpose stated in the text of the Resolution. There are cases where a conceivable policy reason has been held to be not reasonably the pu r pose and policy of the g o vernmental decision maker. But in those cases, the text of the law includes a purpose, or the government argues for a purpose, that renders the law unconstitutional. The go v ernment may not then save the law by arguing that such purpose was not actually the purpose of the law and rely on a diffe r ent
c onceivable pu r pose that is contrary to or inconsistent with the stated purpose. Allied Stores of Ohio, Inc. v. Bowers , 358 U.S. 522, 529

- 30 (1959) (di s tinguishing Wheeling Steel Corp. v. Glander , 337 U.S. 562 (1949), in which the statute‟s stated purpose discr i minated against nonresidents, but the state argued that the statute‟s purpose was to eli m inate the discrimination against nonresidents); see also Nordlinger , 505 U.S. at 16 n.7 (discussing and applying the Allied Stores pri n ciple). But t his exception does not prevent the government from supplementing a textual purpose with consistent or related interests. Laws are often motivated by many purposes or objectives, which may ba lance with or against each other “but still serve[] the general objective when seen as a whole.” Fitzgerald
, 539 U.S. at 108 (citing Fritz , 449 U.S. at 181 (Stevens, J., concurring in judgment)); see also Ind. Aer onautics Comm ‟ n , 368 N.E.2d at 1345 (discerning general legisl a tive objective from several different and even contrary o bjectives). Governmental decision makers generally are not required to articulate their obje c tives, Beach Communications , 508 U.S. at 315 (citing Fritz , 449 U.S. at 179), and when they do so, it aids the general public in understanding the law, as well as courts and litigants. Moreover, such an all

-11

projects subject to Resolution 1 01. The City could have reasonably b e lieved that the benefits of simplifying sanitary sewer funding outweighed the effort of continu ing a co l lection system for thousands of taxpayers, some of who m owed all, some a lot, and some only a little of their r esp ective assessments . This is particularly so since keeping the outstanding payment oblig a tions in play would have meant not only maintaining such a collection system but also si t ting on the tax liens for up to 30 years

. See Carmichael , 301 U.S. at 511; se e also Beach Communications
, 508 U.S. at 317

- 19 (justifying classification on administrative efficiency and conservation of l imited reg u latory resources); Lehnhausen , 410 U.S. at 365 (same). And the fact that it chose to draw the line at November 1, 2005, was a matter of discretion appropriately exercised by the City and the Board. See Fitzgerald , 539 U.S. at 108 ( “„ The “ task of classifying pe r sons for . . . benefits . . . inevitably requires that some persons who have an almost equally strong claim to
fa vored treatment be placed on different sides of the line, ” and the fact the line might have been drawn differently at some points is a matter for legislative, rather than judicial, consideration. ‟” (quo t ing Fritz , 449 U.S. at 179) (omissions in origi nal)).

Furthermore, the decision not to issue refunds to th ose who had already paid im plicates
another legitimate interest

– preservation of limited resources. T he City clearly has a leg i timate
interest in not emptying its coffers to provide refunds to those w ho had already paid their a ssessments

. T he funds from t he particular assessments at issue here were used to fund the Bri sbane/Manning Project and had already been spent in constructing those sewers. The plaintiffs each paid for a sewer and received a sew er, along with all the attendant public health benefits associated with sanitary sewers. This was not a case in which the plaintiffs were assessed for a
local benefit and did not receive that local benefit. Cf. Carmichael , 301 U.S. at 523 n.15 (provi ding that where a local special assessment is “ apportioned to benefits it is not constitutionally d efective because the assessment exceeds the benefits ” (citation omitted)). It is true that those whose assessments were discharged a l so received a sewer and did so at a lower price. But the Equal Protection Clause does not require substantive equality among taxpayers if there is a r ational basis for differing treatment , and the Court of Appeals erred in conclu d ing otherwise.

or

- none approach is foreign to rational basis review and its underlying principles. Cf. Ry. Express Age ncy, Inc. v. New York , 336 U.S. 106, 110 (1949) (“It is no requirement of equal protection that all evils of the same genus be eradicated or none at all.” (citation omi t ted)).12

T he City ‟ s decision to forgive outst anding assessments was rationally related to its leg itimate interests in reducing its administrative costs, providing relief for property owners exp eriencing financial hardship, establishing a clear transition from Barrett Law to STEP, and pr eserving its l i mited r e sources.

I II

Despite th e well

- established rational basis standard described and applied in Parts I and II, supra , t he plaintiffs urge us to adopt a differ ent standard of scrutiny. A lthough they label it

“ r a tional basis, ” it is a standard that i s unknown in equal protection jurisprudence. They offer no evidence that the City ‟ s dec i sion to enact Resolution 101 was irrational. Rather, they argue that the City bears the burden of establishing a rational basis in the first place
, and, to meet its b u rden, the City is required to submit evidence that those whose debts were discharged were actua lly middle

- or low

- income property owners. B ecause the City failed to carry this burden, they argue that they are entitled to summary jud g ment.

A

The plainti ffs rely primarily on the so

- called “ class

- of

- one ” cases, which differ from ty pical equal protection cases. In t ypical case s, part ies challenge government a c tion that categorizes citizens into particular groups and then treats those groups different ly, al leging e i ther “ that they have been arbitrarily classified as members of an „ identifiable group, ‟” En g quist v. Or. Dep ‟ t of Agric.
, 128 S. Ct. 2146, 2152 (2008) (citation omitted), or that they are indeed me m bers of an identifiable group against which the g overnment has unconstitutionally discriminated, e.g. , Brown v. Bd. of Educ. , 347 U.S. 483, 487

- 88 (1954) (racially segregated schools)

. The laws u nderlying typical equal protection claims may be facially discriminatory
, s ee, e.g. , Vance v. Bra dley , 440 U. S. at 95 ( law re quiring Foreign Service employees to retire at age 60 but imposing no mandatory re tirement age for Civil Service em ployees), or they may be facially neutral but a p-13

plied in a way that disparately impacts an ident i fiable class
, 12 s ee, e.g. , Yi ck Wo v. Hopkins , 118
U.S. 356 , 373

- 74 (1886) (invalidating a facially neutral ordinance because an administrative board had used its discretion under the ordinance to discriminate against individuals of Chinese

anc e stry).

In rare cases, a facially neutra l law will be applied in a discriminatory manner against an individual or a small group of i n dividuals whose only common characteristic is that they have been singled out for different treatment (in essence, an otherwise unidentifiable group). The a bsence of an identifiable class does not preclude a plaintiff from raising an equal protection claim because the Equal Protection Clause “„ protect[s] persons, not groups. ‟” Engquist
, 128 S. Ct. at
2150 (alteratio n in original) (quoting Adarand Constructors, Inc . v. Peña , 515 U.S. 200, 227 (1995) (emphasis omitted) ) . Thus, a plaintiff who is not part of an identifiable class but is si ngled out for discriminatory treatment can raise a “ class

- of

- one ” equal protection claim. See Vill

. of Willowbrook v. Olech , 528 U.S. 562 , 564

- 65 (2000) (per c u riam). 13

In many class

- of

- one cases, underlying the government ‟ s decision is animus or ill

- will toward the plaintiffs. E .g. , Olech v. Vill. of Willowbrook , 160 F.3d 386, 387

- 88 (7th Cir. 1998) (Posner, C. J.), aff ‟ d on other grounds
, Olech , 528 U.S. at 565; see also Esmail v. M a crane , 53
F.3d 176 , 178

- 79 (7th Cir. 1995) (Posner, C. J.). T he Supreme Court in Olech did not reach the question of whether the Village ‟ s subjective motivations were sufficient to state a class

- of

- one claim. Olech , 528 U.S. at 565

. In a concurring opinion, however, Justice Breyer reasoned that

“ the presence of [animus or vindictiveness] in this case [was] sufficient to mini m ize any concern about transforming run

- of

- the

- mill zoning cases int o cases of constitutional right. ” Olech , 528
U.S. at 566 (Breyer, J., concurring). Subsequently, Judge Posner wrote in Bell v. Duperrault
,

12 Disparate impact is not sufficient, however, to trigger heightened scrutiny (if otherwise applicable). See Pers. Adm‟r of Mass. v. Feeney , 442 U.S. 256, 273

- 74 (1979) (gender classifi cations); Washin g ton v. Davis , 426 U.S. 229, 239

- 46 (1976) (racial classific a tions). 13 In Olech , the Village conditioned the connection of the plaintiffs‟ property to the municipal water supply on the plaintiffs‟ granting to the Village a 33

- foot easement, even though the Village r e quired only a 15

- foot eas e ment from other similarly situated property owners. Olech , 528 U.S. at 563. The Court held that the plaintiffs had raised a cognizable equal protection claim sufficient to withstand a motion to dismiss , acknowledging that class

- of

- one plaintiffs had raised successful equal pr o tection claims where they “ha[d] been intentionally treated differently from others similarly situated” and “there [was] no r ational basis for the difference in trea t ment.” Id. at 564 (citing Sioux City Bridge Co. v. Dakota Cnty. , 260 U.S. 441 (1923), and Allegheny Pittsburgh Coal Co. v. Webster Cnty. Comm‟n , 488 U.S. 336 (1989)).14

367 F.3d 703, 709

- 13 (7th Cir. 2004) (Posner, J., concurring), what is to us a most convincing

arg u ment for adopting Justice B reyer ‟ s reasoning in Olech

.

The plaintiffs argue that the relevant class is limited to the property owners in Northern Estates who were subject to the Brisbane/Manning Project Barrett Law assessment

. In essence, they argue this is a class

- of

- one case bec ause they were treated differently than the other res idents of Northern E s tates.

We disagree and hold that this is not a class

- of

- one case . The text of Resolution 101 d efines the group entitled to receive the benefit, to the exclusion of all others. It distinguishes b etween property owners who had outstanding Barrett Law assessments on N o vember 1, 2005, and property owners who did not. Only those who had outstanding a s sessments on that date were subject to the benefit of Resolution 101. Resolution 101 does not limit the Ba rrett Law projects to which it applies but forgives all outstanding Barrett Law assessments, regardless of the parti cular project under which the assessments were levied. As discussed supra , it was not just Bri sbane/Manning taxpayers who had paid their assessments in full who did not receive r e funds; no taxpayers in any of the 40

- plus Barrett Law projects received any r e funds of the amounts they had paid, including those who had paid some but not all of their installments

– thousands o f ta xpayers, some of who m had paid all, some a lot, and some only a little of their respective asses sments.

Unlike the class

- of

- one cases, the Resolution makes a broad classific a tion on the basis of
a common characteristic

– outstanding Barrett Law balanc es. Cf. Ind. Aer o nautics Comm ‟ n , 368 N.E.2d at 1347 (rejecting contention that the case was essentially a class

- of

- one claim because the grievance on which the claim was based was common to the whole class). And there is no

ev i dence that the City ‟ s actio n was motivated by ani mus or ill

- will toward the plaintiffs or any other property owners who did not ha ve outstanding a s sessments.15 B

In accepting the plaintiffs ‟ standard, the Court of Appeals relied primarily on Allegheny Pittsburgh Coal Co. v. Webster County Commission , 488 U.S. 336 (1989), 14 which , along with Sioux City Bridge Co. v. Dakota County , 260 U.S. 441 (1923), has been charact e rized as a class

of

- one case. See Engquist , 128 S. Ct. at 2153

- 54 ; see also Olech , 528 U.S. at 564 (relying on
those cases in holding that class

- of

- one claims are cognizable ). The Court of Appeals explici t ly disregarded Nordlinger and Fitzgerald
, the two most recent equal protection challenges to tax classifications, because although they “ are instructive on the general principles of equal prote ction, ” they “ differ on their facts from this case to such an extent that they are not helpful in r esolving the question in this appeal. ” Armour , 918 N. E.2d at 411 n.8. We disagree with this an alytical approach

.

In Allegheny Pi ttsburgh , a West Virginia county tax assessor valued the plaintiffs ‟ pro perty on the basis of its recent pu r chase price and made only minor adjustments in the assessments of properties that had not been sold, resul t ing in gross disparities in tax treatment over a span of approximately ten years. 15 488 U.S. at 338, 341

- 42. The Court held that the county tax assessor had violated the plaintiffs ‟ rights to equal protection. Id. at 338. The county argued that its scheme was rationally related to the purpose of assessing properties at true current ma r ket value

. Id. at 343. The Court held that the means were not rationally related to achieving equal asses sments based on true market value because the general adjustments were not large enough to a pproximate the true market value of pro p erties that had not been recently sold. Id. at 343

- 46.

In Nordlinger , decided three terms later, the Court held that California ‟ s Proposition 13 did not violate the Equal Pr o tection Clause. 505 U.S. at 18. Under Proposition 13
, recently sold property was assessed based on its a c quisition value or the amount paid to acquire the property
, but property that had not been recently acquired was assessed based on its appraised value in

14 Although this seems to be the principal case relied upon by the Court of Appeals, the plaintiffs did not rely on it in their original brief, citing it only once as part of a block quotation to a different case. Appe llee‟s Br. 12

- 13 (quoting Engquist , 128 S. Ct. at 2153

- 54). 15 The adjustments made to properties that had not been recently sold were small, and it would have taken an estimated 500 years for the assessments of those properties to equalize with the asses s ments on the plaintiffs‟ pro p erties. Allegheny Pittsburgh , 488 U.S. at 341

- 42.16

1975

- 1976 , with minor annual inflation adjustment s. Id. at 5. The plaintiff est i mated that she would end up paying almost $19,000 in property taxes over ten years, while her similarly s ituated neighbors who had not recently acquired their properties would pay only $4
, 100. Id. at 7.

The Court held tha t the classification between newer owners and older owners did not v iolate the Equal Protection Clause becaus e it was rationally related to legitimate g o vernmental
interest s

. No r dlinger , 505 U.S. at 12

- 17. There were at least two rational considerations for the
classific a tion. First, the State had a legitimate interest in neighborhood preservation, which was served by permitting those residents who had owned their homes longer to pay lower property

taxes. Id. at 12. Second, the State could legitimately protect long

- term owners ‟ reliance interest against ha v ing to pay higher taxes, reasoning that a new owner has all the information about the tax burden before buying and could decide not to buy, whereas an older owner may be forced to
sell the home becaus e he or she cannot satisfy the higher tax burden; that is, “ the State may d ecide that it is worse to have owned and lost, than never to have owned at all. ” Id. at 12

- 13.

The effects of the tax schemes in Allegheny Pittsburgh and Nordlinger were the same. 16

P roperty that was recently sold was assessed at its acquisition value, while minor adjus t ments were made to the assessments of properties not recently sold. And the differing methods of a ssessment resulted in gross disparities in the tax burden of simi larly situated property ow n ers.

But the outcome of Nordlinger differed from the outcome in Allegheny Pittsburgh

. The most critical difference was the leg i timate government purpose and the relationship of the tax scheme to that purpose. 17 “ Allegheny Pitts burgh was the rare case where the facts pre c luded any

16 In fact, in Allegheny Pittsburgh , the Court expressly state d that it was not deciding the validity of Cal ifornia‟s Proposition 13. Allegheny Pitt s burgh , 488 U.S. at 344 n.4. 17 Another difference between the two cases was that the constitutional provision challenged in Nordlin ger was a generally applicable state l aw, whereas the scheme in Allegheny Pittsburgh was an “aberr a tional enforcement policy,” Allegheny Pittsburgh , 488 U.S. at 344 n.4, used by the county assessor, “apparently on her own initiative” and contrary to the state‟s constitutional, statutory, and r egulatory policies, id. at 345. In Nordlinger , however, the Court addressed this difference in a foo t note: In finding Allegheny Pittsburgh distinguishable, we do not suggest that the pr o tections of the Equal Protection Clause are any less when the classif ication is drawn by legislative mandate, as in this case, than by administrative action, as in Allegheny Pittsburgh . Nor do we suggest that the Equal Protection Clause constrains administrators, as in Alle g heny Pittsburgh , from violating state law requiri ng u n iformity of taxation of property.17

plausible inference that the reason for the unequal assessment practice was to achieve the ben efits of an acquisition

- value tax scheme. By contrast, [the California Constitutional provision]

was enacte d precisely to achieve the benefits of an acquisition

- value system

. ” Nordlin g er , 505
U.S. at 16 (emphasis added)

. We read the Court ‟ s contrasting of the cases in this way to mean
that it considered Allegheny Pittsburgh to have been a class

- of

- one case

– a tax policy directed at a particular taxpayer. Cf. Bell , 367 F.3d at 712 (Posner, J., concurring) (reasoning that “requi ring proof of bad motive brings the class

- of

- one cases into harmony with . . . the purpose behind the equal protection clause,” which “is to protect the vulnerable,” even if the “vulnerable” is “a coal company that because its major assets (its mines) cannot be shifted to another state finds itself targeted for discriminatory taxation, as in Allegheny Pittsburgh ”). It has in fact been c h aract e rized as a class

- of

- one case, see Engquist
, 128 S. Ct. at 2153

- 54 ; Olech , 528 U.S. at 564;
Bell , 367 F.3d at 712 , which , again, the case before us is not, see Part III

- A , supra

. And at a
mi n imum, A l legheny Pittsburgh has essentially been narrowed t o its facts and stands as a “ rare

case ” where the means did not rationally further the government ‟ s legitimate purpose. Nordlin ger , 505 U.S. at 16. Additionally, it has been criticized by at least one Justice on the Supreme
Court and by sch o lars

. 18

For t hese reasons, Allegheny Pittsburgh is inapposite, and the Court of Appeals erred in relying on that case to the exclusion of Nordlinger and other cases applying traditional rationa l

basis anal y sis.

Nordlinger , 505 U.S. at 16 n.8 (citations omitted). Thus, the fact that the body that enacted Resolution 101 was a City administrative body, rather than the state or city legislature, is irrelevant. Moreover, this administrative action was a quasi

- legislative rulemaking action, rather than a quasi

- adjudicatory e n forcement action. 18 See Nordlinger , 505 U.S. at 18

- 28 (Thomas, J., concurring in part and concurring in the judgment) (providing a critical analysis of Alle gheny Pittsburgh and suggesting it was wrong). As to criticism by scholars, see, for example, William Cohen, State Law in Equality Clothing: A Co m ment on Allegheny Pitt s burgh Coal Company v. County Commission, 38 UCLA L. Rev. 87, 104 (1990) (“In time, All egheny should suffer the same fate as Morey v. Doud

– overruled as a „decision [that] so far departs from proper equal protection analysis in cases of‟ taxation.” (alteration in original) (citing City of New Orleans v. Dukes , 427 U.S. 297, 306 (1976) (per curiam), overruling Morey v. Doud , 354 U.S. 457 (1957))); Robert Jerome Glennon, Taxation and Equal Protection , 58 Geo. Wash. L. Rev. 261, 263 (1990) (arguing that

“ Allegheny ‟s analytical approach should be discarded quic k ly”).18 C

The plaintiffs also cite a number of decisions from o ther jurisdictions in which courts
have invalidated various debt

- forgiveness measures as a violation of equal prote c tion. In effect, they argue that granting a be n efit to those who do not pay their taxes promptly but not to those who do pay their taxes pr omptly is per se arbitrary and capricious. The Court of Appeals also found persuasive the re a soning of these decisions. See Armour , 918 N.E.2d at 412.

The primary case relied upon by the plaintiffs, and considered pers u asive by the Court of
A p peals, is Armco Steel Corp. v. Michigan Department of Treasury , 358 N.W.2d 839 (Mich. 1984). In that case, corporations had two procedural remedies available to challenge their a ssessed franchise fees: (1) petition for a redetermination and withhold payment, or (2 ) pay the fee
and file a wri t ten petition within three years. Id. at 844. The plaintiffs chose the second route, electing to pay the fee and then challenge it. Id. at 841. T he Michigan Supreme Court had pr eviously held that the treasury department had not had the authority to calc u late the franchise fee
based on its audits of the corp o rations

. Id. at 840

- 41. In response to that holding, t he treasury department cancelled or rescinded deficiencies that remained unpaid, but it refused to grant r efunds to corporate taxpayers who had already paid the franchise fees. Id. at 841.

The Michigan Supreme Court held this practice to violate the Equal Protection Clause.
Id. at 844. We find Armco Steel incor rect in its articulation of equal p rotection law and di sti nguishable on its facts. 19

As to equal p rotection law
, the Michigan Supreme Court did not consider whether there was a legitimate purpose and whether the means used were rationally related to furthering such a

pu rpose. See id. at 843

- 44 (relying on Sio ux City Bridge Co. , 260 U.S. 441, a class

- of

- one case, and principles of substantive equality). As to the facts, there was in Armco Steel a sense of foul play present in that the initial assessment of the franchise fees had been held to be illegal, and

a l though the treasury department gave relief to some who were assessed illegally, it did not grant

19 Prior to the opinion of th e Court of Appeals in this case, Armco Steel had not been cited by any courts

ou t side of Michigan.19

relief to others who were also assessed illegally. In this case, however, the plaintiffs do not cha llenge the validity of the original Barrett Law assessment, and there is no other evidence of an imus, ill

- will, foul play , or other improper motive

.

We also find unpersuasive the cases from other jurisdictions cited by the plaintiffs and the Court of Appeals, which include Richey v. Wells , 166 So. 817 (Fla. 1936 ); State ex rel. St epha n v. Parrish , 891 P.2d 445 (Kan. 1995); State ex rel. Matteson v. Luecke , 260 N.W. 206 (Minn. 1935); State ex rel. Hostetter v. Hunt , 9 N.E.2d 676 (Ohio 1937); and Snow ‟ s Mobile Homes, Inc. v. Morgan , 494 P.2d 216 (Wash. 1972) (en ba nc)

. 20 All but one of these cases co nsidered challenges under state constitutions, rather than challenges under the Equal Protection
Clause of the Fourteenth Amen d ment. 21 The only case to consider a federal claim was Richey
, where the court concluded that “ the constitutional requirement of e qual protection of the tax laws prohibits the Legislature from selecting and classifying delinquent taxpayers as the benefici a ries of special tax concessions . . . unless the same benefits are made equivalently available in some form or other to nondelinquent taxpayers. ” 166 So. at 819. The court ‟ s opinion, however, cited no authority for this proposition, stating only that it was the “ view ” of the majority opinion ‟ s a uthor. Id.

In each of these cases
, delinquent taxp ayers had been granted relief from their tax oblig ations, but those who had paid their taxes on time received no relief. See Richey , 166 So. at 8 19

- 20 (Terrell, J., dissenting); Parrish , 891 P.2d at 454; Luecke , 260 N.W. at 208 ; Hunt , 9 N.E.2d at
677 , 681

- 82 ; Snow ‟ s Mobile Homes , 494 P.2d at 219. Of course, the policy before us is not d irected at delinquent taxpayers. Underlying several of the decisions was that the policies were arbitrary because they rewarded those who failed to pay their taxes and pun ished those who paid their taxes on time, thereby encouraging delinquency. See Luecke , 260 N.W. at 208 ( “ [T]he st atute here concerned encourages and fosters tax delinquencies in the state. . . . Such result is not
desirable
, and demonstrates the unreason ableness of the classification. ” ); see also Hunt , 9 N.E.2d at 683 (quoting Luecke ); Parrish , 891 P.2d at 455

- 57 (relying on Hunt ). With this rati o nale we

20 Many of these cases were also cited in Armco Steel , 358 N.W.2d at 844 n.6. 21 Although the Kansas S u preme Court stated that the challenged provisions of the Kansas Constitution were “substantially identical” to the Equal Protection Clause (as opposed to completely identical), Parrish , 891 P.2d at 457 (citation omitted) , it did not cite any fe d eral law in its analysis.20

cannot disagree; it certainly seems that such a regime would be bad pol i cy. But that is exactly
what it is

– a policy choice. And “ equal protection is not a license for courts to judge the wi sdom, fairness, or lo g ic of [policy] choices. ” Beach Communications , 508 U.S. at 313. Thus, we do not find these decisions from other jurisdictions persuasive and decline to fo l low them

.

IV

Applying the appropriate standard of review under the Equal Protection Clause to the u ndisputed facts, we hold that Resolution 101 does not violate the Equal Protection Clause as a pplied in this case because it is rationally r elated to legitimate governmental interests. And b ecause we find that the City did not violate the plaintiffs ‟ rights under the Equal Protection Clause, we have no occasion to consider whether the trial court was correct in requiring the City to provide r efunds to the plaintiffs or whether alternative remedies consistent with due process
were available. 22

Conclusion

We hold that Resolution 101 does not violate the Equal Protection Clause of the Fou rteenth Amendment because it is rationally related to legi timate governmental interests . Acco rdingly, w e reverse the d e cision of the tri al court and remand with instructions to grant judgment
for the City on the plaintiffs ‟ federal equal pr o tection claim

.

Shepard, C.J., and David, J., concur.

Rucker, J., disse nts with separate opi nion in which Dickson, J., concurs

.

22 We acknowledge that a similar claim att acking the validity of Resolution 101 was brought by a diffe rent group of plaintiffs in the United States District Court for the Southern District of Indiana and that the court there decided in the plaintiffs‟ favor. Cox v. City of Indianapolis , No. 1:09

- cv

- 435

- WTL

- DML, 2010 U.S. Dist. LEXIS 58876, 2010 WL 2484620 (S.D. Ind. June 14, 2010); see also Cox v. City of Ind ianap o lis , No. 1:09

- cv

- 435

- TWP

- MJD, 2011 U.S. Dist. LEXIS 2890, 2011 WL 96669 (S.D. Ind. Jan. 11, 2011) (denying the City‟s motion to alter o r amend judgment). We do not find Cox persuasive because it relied almost entirely on the now

- vacated opinion of our Court of Appeals in this case, quoting from it extensively. And, as we have concluded here, it is our op i nion that the Court of Appeals d id not apply the appropriate equal pr o tection standard.Rucker, Justice, dissenting

.

I am not persuaded that the City has advanced a rational basis for its classification b etween property owners who chose to pay their Barrett Law assessments in a lump su m and those who elected to pay in installments. Instead, I am of the view that Resolution 101 violates the Equal Protection Clause of the United States Constitution as applied to the homeowners in this case. Therefore I respectfully dissent.

The govern ment has broad discretion to draw lines classifying persons for purposes of disparate treatment. FCC v. Beach Commc‟ns, Inc. , 508 U.S. 307, 315

- 16 (1993). “But there is a point beyond which the State cannot go without violating the Equal Protection Claus e.” Allied Stores of Ohio, Inc. v. Bowers , 358 U.S. 522, 527 (1959). Specifically, a government classific ation may not be capricious or arbitrary and “must rest upon some ground of difference having a fair and substantial relation to the object of the le gislation.” Id. at 527 (internal quotation marks and citations omitted).

Supreme Court jurisprudence teaches that a legislative body is not required to articulate its reasons for enacting a statute. Beach Commc‟ns , 508 U.S. at 315; Nordlinger v. Hahn , 5 05 U.S. 1, 15 (1992). But, when a legislature does state a reason for a statutory classification, the stated reason must be rationally related to the classification made. In such circumstances, it is inappropriate to consider other conceivable or even ex pressed rationales for the purpose of “sa ving” an inadequately justified classification. See Allied Stores , 358 U.S. at 530 (recognizing that where statutes “specifically declared their purpose” they “left no room to conceive of any other purpose for thei r existence”); cf. Minnesota v. Clover Leaf Creamery Co. , 449 U.S. 456, 463 n.7 (1981) (“In equal protection analysis, this Court will assume that the objectives articulated by the legislature are actual purposes of the statute, unless an examination of th e circumstances forces us to conclude that they could not have been a goal of the legislation.” (internal quotation marks and citation omitted)).

As the majority points out, Resolution 101 itself included the City‟s rationale for treating
the Homeowners d ifferently from other similarly situated property owners in Northern Estates,2

namely “because Barrett Law funding imposed financial hardships on middle

- and low

- income property owners who were often most in need of sanitary sewers due to failing septic sys tems.” Slip op. at 9. More specifically the Resolution provided:

Whereas, The Board of Public Works (Board) is authorized by Indiana Code (IC) 36

- 9

- 39 to administer „Barrett Law Funding for Municipal Sewer‟ program under which the Board approves all Bar rett Law projects within the City of Indianapolis

- Marion County, including [an] individual assessment amount per parcel, and
Whereas, The Barrett Law Funding for Municipal Sewer program may present financial hardships on many middle to lower income partic ipants who most need sanitary sewer service in lieu of failing septic systems, and
Whereas, The Department of Public Works (DPW) has a proposed rate and fee increase package to the City

- County Council for approval to continue to address the re

- capitaliza tion, expansion, operation and maintenance, and regulatory requirements of the City‟s sanitary sewer system which was approved by the City

County Council on October 31, 2005 (Proposal No. 535 as amended) effective on January 1, 2006, and
Whereas, The fin ancial model upon which Proposal No. 535 was based, considered the current assessments being made by participants in active Barrett Law projects as well as the future needs to eliminate leaking septic systems in all of the City of Indianapolis

- Marion Count y in order to discontinue the use of Barrett Law Funding for Municipal Sewer program for the finance of sanitary sewers.
Now, Therefore, Be It Resolved that [the Board] hereby forgive[s] all assessment amounts it established pursuant to the Barrett Law Fu nding for Municipal Sewer program due and owing from the date of November 1, 2005[,] forward to the Department of Public Works via the Barrett Law Assessment Bureau.

Appellant‟s App. at 350. For the most part this resolution expresses the City‟s reasons for di scontinuing the Barrett Law method of financing sewer projects in favor of the Septic Tank El imination Program. However, merely declaring that Barrett Law funding “imposed financial hardships on middle

- and low

- income property owners who were often most in need of sanitary3

sewers due to failing septic systems,” does nothing to explain why the City treated differently residents who elected to pay their assessments in a lump sum versus those who elected to pay in
installments.

To be sure the City adv anced multiple post

- hoc rationalizations for the differential trea tment. 1 But such arguments do not obviate the failure of the Resolution to pass rational basis scrutiny on the reasoning set forth in its text.

This is not a case like Clover Leaf , where the classification between plastic and non

plastic milk cartons satisfied equal protection concerns and there was evidence the legislature rationally believed the classification would further the stated objective of reducing solid waste, despite empirical evidence to the contrary. See Clover Leaf , 449 U.S. at 463

- 64, 469. Here,
there is no indication that the Board even believed the classification would further its stated o bjective. The stated purpose in Resolution 101 simply fails to express any connect ion to the di stinction between residents who elected to pay their assessments in a lump sum and those who elected to pay in installments. In my view this disconnect demonstrates that the classification
fails to have “a fair and substantial relation” to th e statutory objective. See Allied Stores , 358 U.S. at 527. I therefore agree with the Court of Appeals and would affirm the trial court‟s grant of summary judgment in favor of the h omeowners.

Dickson, J., concurs

.

1 The Public Works Committee meeting minutes the majority cites at footnote 10 do appear to contain the reasoning of the director of the Department of Public Works for not reimbursing the homeowners, esse ntially because providing refunds would “simply be impossible.” Supra Committee Meeting Minutes at 10, as cited in Slip op. at 9 n. 10 . This statement was made before the adoption of the Resolution, but I am not convinced this reasoning may be read in conjunction with the Resolution‟s stated purpose. Even if it could be considered, it only addresses why the Homeowners were not reimbursed, not why the Res o lution made the chosen classification. Further, it is merely the reasoning of the Director of the Depar t ment of Public Works given in response to a citizen‟s question. There is no indication that such reasoning was adopted by the Board in Resolution 101. In addition the fact that most of these rationales were a d vanced during the course of this litig ation, and nearly two and a half years after the Resolution was passed, ren ders them suspect in my view.