ATTORNEYS FOR APPELLANTS

Jonathan L. Mayes

Chief Litigation Counsel

Justin F. Roebel

Assistant Corporation Counsel

Office of Corporation Counsel

Indianapolis, Indiana

ATTORNEYS FOR AMICI CURIAE 

INDIANA ASSOCIATION OF 

CITIES AND TOWNS AND 

INDIANA MUNICIPAL LAWYERS 

ASSOCIATION

Thomas E. Wheeler

Anthony W. Overholt

Jo Angela Woods

Indianapolis, Indiana

ATTORNEYS FOR APPELLEES

Ronald J. Waicukauski

R. Davy Eaglesfield, III

Jana K. Strain

Indianapolis, Indiana

______________________________________________________________________________

In the

Indiana Supreme Court

_________________________________

No. 49S02-1007-CV-402

CITY OF INDIANAPOLIS, ET AL.,

Appellants (Defendants below),

v.

CHRISTINE ARMOUR, ET AL.,

Appellees (Plaintiffs 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 improvements in favor of a new system that imposes less of a financial burden on property owners. 

To ease the transition, the City discharged all outstanding Barrett Law assessments owing as of 

November 1, 2005, but did not give refunds to those property owners who had previously paid
2

their Barrett Law assessments in full or in part. We hold that the City did not violate the Equal 

Protection Clause of the Fourteenth Amendment because forgiving only the outstanding assessment balances was rationally related to a legitimate governmental interest.

Background

Indiana‟s Barrett Law1authorizes municipalities to provide or require public improvements and fund those improvements by levying special assessments against the benefitted properties. Town Council of New Harmony v. Parker, 726 N.E.2d 1217, 1227 n.13 (Ind. 2000) 

(quoting Porter v. City of Tipton, 141 Ind. 347, 40 N.E. 802, 803 (1895)). The costs of Barrett 

Law projects are generally “apportioned equally among all abutting lands or lots” benefitted by 

the improvement. 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, 2001, the City sent a letter to property owners in the Northern Estates neighborhood notifying them that their properties were to be part of the Brisbane/Manning Barrett Law 

Sanitary Sewers Project (“Brisbane/Manning Project”), under which their properties were to be 

connected to City sewers, eliminating the use of septic tanks in the neighborhood. In July, 2004, 

after complying with then-existing regulatory procedures, the Indianapolis Board of Public 

Works (“Board”) levied a $9,278 special assessment against each parcel subject to the project.2

Property owners were given the option of paying the special assessment up front in its entirety or paying it in monthly installments over a 10-, 20-, or 30-year period. Those choosing the 

installment plan were charged an annual interest rate of 3.5% and a statutory lien3 was placed on 

their properties. Of the approximately 180 parcels covered by the project, property owners of 

 

1

Ind. Code §§ 36-9-39-1 to -30 (2007).

2 One parcel had a preexisting 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 installments.4 The owners of the remaining parcels chose to pay up front in a single lump-sum payment. 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 of Indianapolis-Marion County (“Council”) 

enacted a general ordinance under which the Barrett Law method of financing sewer projects 

was discontinued in favor of the Septic Tank Elimination Program (“STEP”). See IndianapolisMarion County, Ind., City-County General Ordinance No. 107, 2005 (Oct. 31, 2005); see also

Appellant‟s App. 320-35. The Council‟s action responded to two concerns. First, the City faced 

a public health crisis because of the continued use of out-of-date septic tanks on many properties. 

Second, the Barrett Law system was imposing too heavy a financial burden on middle- and lowincome taxpayers, given that the average assessment under a Barrett Law project was approximately $10,000.5

At the time STEP was adopted, the Brisbane/Manning Project was one of more than 40 

Barrett Law projects in existence. As with the Brisbane/Manning Project, some taxpayers subject to these other Barrett Law projects had elected to pay their assessments in full and some in 

installments. As part of the transition from Barrett Law to STEP, the Board passed Resolution 

101, 2005 (“Resolution 101”), Appellant‟s App. 337, 350, forgiving all outstanding assessment 

balances on the 40-plus Barrett Law projects owing as of November 1, 2005.

As a result of Resolution 101, the owners of the 142 parcels in Northern Estates who had 

elected to pay their Barrett Law assessments over a period of years were discharged from their 

debts, along with all other taxpayers from other 40-plus Barrett Law projects who had outstanding balances 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-year installment plan, with a monthly payment of $38.66; and owners of 47 parcels 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 

connect a property 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 connected 

to the City‟s sewers, thereby alleviating the public health problem posed by septic tanks.
4

The plaintiffs in this lawsuit complain that Resolution 101 provided no relief for Northern Estates taxpayers who had paid their Barrett Law assessments in full for the Brisbane/Manning Project. But it was not just the Brisbane/Manning taxpayers who had paid their 

assessments in full who did not receive refunds; no taxpayers in any of the 40-plus Barrett Law 

projects received any refunds of the amounts they had paid, including those who had paid some 

but not all of their installments – thousands of taxpayers, some of whom had paid all, some a lot, 

and some only a little of their respective assessments. Conversely, it was not only the Brisbane/Manning taxpayers who had elected the installment plan who had their outstanding balances forgiven; all taxpayers in all of the 40-plus Barrett Law projects had their outstanding balances forgiven, including those who had paid some but not all of their installments – thousands 

of taxpayers, some of whom owed all, some a lot, and some only a little of their respective assessments.

In February, 2006, the plaintiffs, who, to repeat, had each paid their Barrett Law assessments in full, petitioned the Board for a refund in an amount equal to the assessments discharged 

for those property owners who had paid the most under an installment plan.

6

 In March, 2006, the 

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 

refunds to the plaintiffs “would establish a precedent of unfair and inequitable treatment to all 

other 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 establish this date and move forward with the new funding approach.” Id.

In July, 2007, the plaintiffs filed their complaint against the City and several of its officials7

seeking, among other things, a Barrett Law assessment refund. In their federal claim under 

42 U.S.C. § 1983 (2006), the plaintiffs alleged that the City had violated their federal constitutional 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 various Indiana statutes, 

but none of those claims are issues in this appeal.
5

2008, the plaintiffs moved for summary judgment on their federal constitutional claims. The 

City filed a cross-motion for summary judgment, arguing that the federal claims must fail because the City had a rational basis for refusing to grant the plaintiffs relief. The trial court denied 

the City‟s motion, granted the plaintiffs‟ motion, and entered 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, 

finding that the City did not have a rational basis for granting relief to those who were paying 

their Barrett Law assessments in installments and denying 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 plaintiffs. 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 Municipal Lawyers Association, filed a brief in support of the City‟s Petition to Transfer.

Discussion

The only issue presented 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 Protection Clause, which provides that “[n]o State shall . . . deny to any person within its jurisdiction 

the equal protection of the laws.” U.S. Const. amend. XIV, § 1. A law attacked on equal protection grounds will be upheld if it survives rational basis review, unless the classification is drawn 

along suspect lines or infringes the exercise of fundamental constitutional rights, in which case it 

must survive heightened judicial scrutiny. FCC v. Beach Communications, Inc., 508 U.S. 307, 

313 (1993); Nordlinger v. Hahn, 505 U.S. 1, 10 (1992).

 

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

Because Resolution 101 neither involves a suspect classification nor inhibits the exercise 

of a fundamental constitutional right, the parties agree that it is not subject to heightened judicial 

scrutiny and must be analyzed under the rational basis standard. But they offer differing interpretations and applications of that standard, which requires us to examine the intricacies of the 

standard itself.

I

Rational basis is the most deferential standard of review. Under this standard, courts will 

not invalidate a law merely because it is deemed unwise, unfair, or unsound, or because there are 

“more reasonable” or “more effective” policy choices that could have been made. Beach Communications, 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 reason to 

infer antipathy, even improvident decisions will eventually be rectified by the democratic 

process.” Vance v. Bradley, 440 U.S. 93, 97 (1979) (footnote omitted).

Governmental decision makers are afforded the greatest leeway in making classifications 

and drawing lines with regard to taxation. Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 

356, 364 (1973) (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 rationality) to decide whom they wish to help 

with their tax laws and how much help those laws ought to provide.”). Thus, courts are “especially deferential in the context of classifications made by complex tax laws.” Nordlinger, 505 

U.S. at 11.

Under the rational basis standard, laws are clothed with a strong presumption of constitutionality. 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 classification, Beach 
7

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 particular persons 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 plausible policy reason for the classification,” (2) “the legislative facts on which the classification is 

apparently based rationally may have been considered to be true by the governmental decisionmaker,” and (3) “the relationship of the classification to its goal is not so attenuated as to render 

the distinction arbitrary or irrational.” Nordlinger, 505 U.S. at 11 (citations omitted).

First, the government‟s classification must be based on policy reasons that are both legitimate and plausible. The legitimate governmental interests of states and municipalities are numerous, 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, states and local governments

have a legitimate interest in their own efficient and effective operation. Cf. Garcetti v. Ceballos, 

547 U.S. 410, 417-20 (2006) (limiting public employees‟ first amendment rights because of governmental interest in operational effectiveness and efficiency). Thus, administrative convenience and minimizing administrative costs are legitimate governmental interests. See, e.g., Carmichael v. S. Coal & Coke Co., 301 U.S. 495, 511 (1937) (“Administrative convenience and expense in the collection or measurement of the tax are alone a sufficient justification for the difference between the treatment of small incomes or small taxpayers and that meted out to others.”

(citations omitted)). Governments also have a legitimate interest in preserving their limited resources when granting benefits, and the U.S. Supreme Court has consistently upheld statutes and 

regulations that adjust the allocation 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 that reduced welfare benefits for some); Lyng v. Castillo, 477 U.S. 635, 639-43 (1986) (upholding law that reduced food stamp allotment for some); Jefferson v. Hackney, 406 U.S. 535, 549 (1972) (upholding 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 benefits for some railroad 

employees).
8

The legitimate interest justifying the classification need only be plausible. That is, it 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 policy in fact 

motivated the governmental decision maker. Beach Communications, 508 U.S. at 315 (citing 

Fritz, 449 U.S. at 179). Rather, a policy reason is sufficiently plausible if it “„may reasonably 

have been the purpose and policy‟ of the relevant government decisionmaker.” 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 “rationally may have been considered to be true by the governmental decisionmaker.” Id. at 11 (citation

omitted). But the governmental decision makers are not required to prove any underlying 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 classification, Nordlinger, 505 U.S. at 11 (citation omitted); Ind. Aeronautics 

Comm‟n, 368 N.E.2d at 1344-46. 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 of milk in 

plastic containers but allowing the sale of milk in containers made of other materials, primarily 

paper. The fact that the ban might not actually have promoted environmentally desirable packaging 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 jugs might foster greater use of environmentally desirable alternatives.” Id.

at 466 (emphasis in original). And although the Minnesota Supreme Court may have been correct that the ban was “not a sensible means of conserving energy,” it is for “„legislatures, 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 classifications to serve the 

law‟s purpose. The classification needs only rationally to further the law‟s purpose, Nordlinger, 

505 U.S. at 10 (citing City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439-41 
9

(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 (citing City of Cleburne, 473 U.S. at 446). The classification need not be drawn “„with mathematical nicety‟” because the issues facing governments “„are practical ones and may justify, if they do not require, 

rough accommodations – illogical, it may be, and unscientific.‟” Dandridge v. Williams, 397 

U.S. 471, 485 (1970) (citations omitted). As the Supreme Court previously has explained:

The problem of legislative classification is a perennial one, admitting of no doctrinaire definition. Evils in the same field may be of different dimensions and 

proportions, requiring different remedies. Or so the legislature may think. Or the 

reform may take one step at a time, addressing itself 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 prohibition of the Equal Protection Clause goes no further than the invidious discrimination.

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 Protection Clause. Resolution 101 was part and parcel 

of the City-County Council‟s ordinance moving the City from Barrett Law to STEP.10 Similar to 

the reasons prompting the overall transition to STEP, the text of Resolution 101 provides that it

was enacted because Barrett Law funding imposed financial hardships on middle- and lowincome property owners who were often most in need of sanitary sewers due to failing septic 

systems. Appellant‟s App. 337, 350. Providing relief or support for citizens facing financial 

 

10 On October 20, 2005, at a meeting of the Public Works Committee of the City-County Council, the director of the Department of Public Works informed the Committee of the plan to forgive all outstanding 

Barrett Law assessments, while not reimbursing property owners who had already paid their assessments. 

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.gov/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. Although the minutes from this meeting are not included in the record, we take judicial notice of them because they constitute 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 statute).
10

hardship is clearly a legitimate interest. E.g., Fitzgerald, 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 reasonable for the City to believe that property owners who had already 

paid their assessments were in better financial positions than those who chose installment 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 possible that 

there are some who paid up front that are currently experiencing financial hardship. But, like in 

Clover Leaf Creamery, it does not matter under rational basis review what the actual facts would 

show, as determined in court, so long as the issue was at least debatable when the governmental 

decision maker acted. Thus, the Court of Appeals erred in requiring the City to come forth with 

proof that all the property owners who had their assessments discharged were actually middle- or 

low-income participants in the Brisbane/Manning Project. See Armour, 918 N.E.2d at 413 n.9. 

Finally, eliminating tax burdens is clearly a rational way of eliminating financial hardship caused 

by the tax burden.

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 Contrary to the plaintiffs‟ position and the opinion of the Court of Appeals, these policy reasons may be 

considered because they are consistent 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 purpose and 

policy of the governmental 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 government may not then 

save the law by arguing that such purpose was not actually the purpose of the law and rely on a different 

conceivable purpose that is contrary to or inconsistent with the stated purpose. Allied Stores of Ohio, Inc. 

v. Bowers, 358 U.S. 522, 529-30 (1959) (distinguishing Wheeling Steel Corp. v. Glander, 337 U.S. 562 

(1949), in which the statute‟s stated purpose discriminated against nonresidents, but the state argued that 

the statute‟s purpose was to eliminate the discrimination against nonresidents); see also Nordlinger, 505 

U.S. at 16 n.7 (discussing and applying the Allied Stores principle).

But this 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 balance 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. Aeronautics Comm‟n, 368 N.E.2d at 1345 (discerning general legislative objective from several different and 

even contrary objectives). Governmental decision makers generally are not required to articulate their 

objectives, 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 101. The City could have reasonably believed that the benefits of 

simplifying sanitary sewer funding outweighed the effort of continuing a collection system for 

thousands of taxpayers, some of whom owed all, some a lot, and some only a little of their respective assessments. This is particularly so since keeping the outstanding payment obligations 

in play would have meant not only maintaining such a collection system but also sitting on the 

tax liens for up to 30 years. See Carmichael, 301 U.S. at 511; see also Beach Communications, 

508 U.S. at 317-19 (justifying classification on administrative efficiency and conservation of limited regulatory 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 persons for . . . 

benefits . . . inevitably requires that some persons who have an almost equally strong claim to 

favored 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.‟”

(quoting Fritz, 449 U.S. at 179) (omissions in original)).

Furthermore, the decision not to issue refunds to those who had already paid implicates 

another legitimate interest – preservation of limited resources. The City clearly has a legitimate 

interest in not emptying its coffers to provide refunds to those who had already paid their assessments. The funds from the particular assessments at issue here were used to fund the Brisbane/Manning Project and had already been spent in constructing those sewers. The plaintiffs 

each paid for a sewer and received a sewer, 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 (providing that where a local special assessment is “apportioned to benefits it is not constitutionally defective because the assessment exceeds the benefits” (citation omitted)). It is true that those 

whose assessments were discharged also 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 rational basis for differing treatment, and the Court of Appeals erred in concluding otherwise.

 

or-none approach is foreign to rational basis review and its underlying principles. Cf. Ry. Express Agency, 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 omitted)).
12

The City‟s decision to forgive outstanding assessments was rationally related to its legitimate interests in reducing its administrative costs, providing relief for property owners experiencing financial hardship, establishing a clear transition from Barrett Law to STEP, and preserving its limited resources.

III

Despite the well-established rational basis standard described and applied in Parts I and 

II, supra, the plaintiffs urge us to adopt a different standard of scrutiny. Although they label it 

“rational basis,” it is a standard that is unknown in equal protection jurisprudence. They offer no 

evidence that the City‟s decision 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 burden, the City is required to submit evidence that those whose debts were discharged were actually middle- or low-income property owners. Because the City failed to carry this burden, they 

argue that they are entitled to summary judgment.

A

The plaintiffs rely primarily on the so-called “class-of-one” cases, which differ from typical equal protection cases. In typical cases, parties challenge government action that categorizes 

citizens into particular groups and then treats those groups differently, alleging either “that they 

have been arbitrarily classified as members of an „identifiable group,‟” Engquist v. Or. Dep‟t of 

Agric., 128 S. Ct. 2146, 2152 (2008) (citation omitted), or that they are indeed members of an 

identifiable group against which the government has unconstitutionally discriminated, e.g., 

Brown v. Bd. of Educ., 347 U.S. 483, 487-88 (1954) (racially segregated schools). The laws underlying typical equal protection claims may be facially discriminatory, see, e.g., Vance v. Bradley, 440 U.S. at 95 (law requiring Foreign Service employees to retire at age 60 but imposing no

mandatory retirement age for Civil Service employees), or they may be facially neutral but ap-
13

plied in a way that disparately impacts an identifiable class,

12 see, e.g., Yick 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 

ancestry).

In rare cases, a facially neutral law will be applied in a discriminatory manner against an 

individual or a small group of individuals whose only common characteristic is that they have 

been singled out for different treatment (in essence, an otherwise unidentifiable group). The absence 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 (alteration 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 singled 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 curiam).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. Macrane, 53 

F.3d 176, 178-79 (7th Cir. 1995) (Posner, C.J.). The 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 minimize any concern 

about transforming run-of-the-mill zoning cases into 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 classifications); Washington v. 

Davis, 426 U.S. 229, 239-46 (1976) (racial classifications).

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 required only 

a 15-foot easement 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 protection claims where 

they “ha[d] been intentionally treated differently from others similarly situated” and “there [was] no rational basis for the difference in treatment.” 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 

argument for adopting Justice Breyer‟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 because they were treated differently than the other residents of Northern Estates.

We disagree and hold that this is not a class-of-one case. The text of Resolution 101 defines the group entitled to receive the benefit, to the exclusion of all others. It distinguishes between property owners who had outstanding Barrett Law assessments on November 1, 2005, and 

property owners who did not. Only those who had outstanding assessments on that date were 

subject to the benefit of Resolution 101. Resolution 101 does not limit the Barrett Law projects 

to which it applies but forgives all outstanding Barrett Law assessments, regardless of the particular project under which the assessments were levied. As discussed supra, it was not just Brisbane/Manning taxpayers who had paid their assessments in full who did not receive refunds; no 

taxpayers in any of the 40-plus Barrett Law projects received any refunds of the amounts they 

had paid, including those who had paid some but not all of their installments – thousands of taxpayers, some of whom had paid all, some a lot, and some only a little of their respective assessments.

Unlike the class-of-one cases, the Resolution makes a broad classification on the basis of 

a common characteristic – outstanding Barrett Law balances. Cf. Ind. Aeronautics 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 

evidence that the City‟s action was motivated by animus or ill-will toward the plaintiffs or any 

other property owners who did not have outstanding assessments.
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 characterized as a classof-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 explicitly 

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 protection,” they “differ on their facts from this case to such an extent that they are not helpful in resolving the question in this appeal.” Armour, 918 N.E.2d at 411 n.8. We disagree with this analytical approach.

In Allegheny Pittsburgh, a West Virginia county tax assessor valued the plaintiffs‟ property on the basis of its recent purchase price and made only minor adjustments in the assessments 

of properties that had not been sold, resulting 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 market value. 

Id. at 343. The Court held that the means were not rationally related to achieving equal assessments based on true market value because the general adjustments were not large enough to approximate the true market value of properties 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 Protection Clause. 505 U.S. at 18. Under Proposition 13, recently sold 

property was assessed based on its acquisition 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. Appellee‟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 assessments on the 

plaintiffs‟ properties. Allegheny Pittsburgh, 488 U.S. at 341-42.
16

1975-1976, with minor annual inflation adjustments. Id. at 5. The plaintiff estimated that she 

would end up paying almost $19,000 in property taxes over ten years, while her similarly situated neighbors who had not recently acquired their properties would pay only $4,100. Id. at 7.

The Court held that the classification between newer owners and older owners did not violate the Equal Protection Clause because it was rationally related to legitimate governmental 

interests. Nordlinger, 505 U.S. at 12-17. There were at least two rational considerations for the 

classification. 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 having 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 because he or she cannot satisfy the higher tax burden; that is, “the State may decide 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 

Property that was recently sold was assessed at its acquisition value, while minor adjustments 

were made to the assessments of properties not recently sold. And the differing methods of assessment resulted in gross disparities in the tax burden of similarly situated property owners.

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

most critical difference was the legitimate government purpose and the relationship of the tax 

scheme to that purpose.17 “Allegheny Pittsburgh was the rare case where the facts precluded any 

 

16 In fact, in Allegheny Pittsburgh, the Court expressly stated that it was not deciding the validity of California‟s Proposition 13. Allegheny Pittsburgh, 488 U.S. at 344 n.4.

17 Another difference between the two cases was that the constitutional provision challenged in Nordlinger was a generally applicable state law, whereas the scheme in Allegheny Pittsburgh was an “aberrational 

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 regulatory policies, id. at 

345. In Nordlinger, however, the Court addressed this difference in a footnote:

In finding Allegheny Pittsburgh distinguishable, we do not suggest that the protections of 

the Equal Protection Clause are any less when the classification 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 Allegheny 

Pittsburgh, from violating state law requiring uniformity of taxation of property.
17

plausible inference that the reason for the unequal assessment practice was to achieve the benefits of an acquisition-value tax scheme. By contrast, [the California Constitutional provision] 

was enacted precisely to achieve the benefits of an acquisition-value system.” Nordlinger, 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 “requiring 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 characterized 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 

minimum, Allegheny Pittsburgh has essentially been narrowed to its facts and stands as a “rare 

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

Court and by scholars.

18

For these 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 rationalbasis analysis.

 

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 enforcement 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 Allegheny Pittsburgh and suggesting it was wrong). As to criticism by 

scholars, see, for example, William Cohen, State Law in Equality Clothing: A Comment on Allegheny

Pittsburgh Coal Company v. County Commission, 38 UCLA L. Rev. 87, 104 (1990) (“In time, Allegheny

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 quickly”).
18

C

The plaintiffs also cite a number of decisions from other jurisdictions in which courts 

have invalidated various debt-forgiveness measures as a violation of equal protection. In effect, 

they argue that granting a benefit to those who do not pay their taxes promptly but not to those 

who do pay their taxes promptly is per se arbitrary and capricious. The Court of Appeals also 

found persuasive the reasoning of these decisions. See Armour, 918 N.E.2d at 412.

The primary case relied upon by the plaintiffs, and considered persuasive by the Court of 

Appeals, 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 assessed franchise fees: (1) petition for a redetermination and withhold payment, or (2) pay the fee 

and file a written 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. The Michigan Supreme Court had previously held that the treasury department had not had the authority to calculate the franchise fee 

based on its audits of the corporations. Id. at 840-41. In response to that holding, the treasury 

department cancelled or rescinded deficiencies that remained unpaid, but it refused to grant refunds 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 incorrect in its articulation of equal protection law and distinguishable on its facts.19

As to equal protection 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 

purpose. See id. at 843-44 (relying on Sioux 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 

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

 

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

outside of Michigan.
19

relief to others who were also assessed illegally. In this case, however, the plaintiffs do not challenge the validity of the original Barrett Law assessment, and there is no other evidence of animus, 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. Stephan 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 banc).

20

 All but one of these cases considered challenges under state constitutions, rather than challenges under the Equal Protection 

Clause of the Fourteenth Amendment.21 The only case to consider a federal claim was Richey, 

where the court concluded that “the constitutional requirement of equal protection of the tax laws

prohibits the Legislature from selecting and classifying delinquent taxpayers as the beneficiaries 

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 author. Id.

In each of these cases, delinquent taxpayers had been granted relief from their tax obligations, but those who had paid their taxes on time received no relief. See Richey, 166 So. at 819-

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 directed 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 punished those who paid 

their taxes on time, thereby encouraging delinquency. See Luecke, 260 N.W. at 208 (“[T]he statute here concerned encourages and fosters tax delinquencies in the state. . . . Such result is not 

desirable, and demonstrates the unreasonableness 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 rationale we 

 

20 Many of these cases were also cited in Armco Steel, 358 N.W.2d at 844 n.6.

21 Although the Kansas Supreme 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 federal law in its analysis.
20

cannot disagree; it certainly seems that such a regime would be bad policy. But that is exactly 

what it is – a policy choice. And “equal protection is not a license for courts to judge the wisdom, fairness, or logic of [policy] choices.” Beach Communications, 508 U.S. at 313. Thus, we 

do not find these decisions from other jurisdictions persuasive and decline to follow them.

IV

Applying the appropriate standard of review under the Equal Protection Clause to the undisputed facts, we hold that Resolution 101 does not violate the Equal Protection Clause as applied in this case because it is rationally related to legitimate governmental interests. And because 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 refunds 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 Fourteenth Amendment because it is rationally related to legitimate governmental interests. Accordingly, we reverse the decision of the trial court and remand with instructions to grant judgment 

for the City on the plaintiffs‟ federal equal protection claim.

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

Rucker, J., dissents with separate opinion in which Dickson, J., concurs.

 

22 We acknowledge that a similar claim attacking the validity of Resolution 101 was brought by a different 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 Indianapolis, 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 or 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 opinion that the Court of Appeals did not apply the 

appropriate equal protection standard.
Rucker, Justice, dissenting.

I am not persuaded that the City has advanced a rational basis for its classification between property owners who chose to pay their Barrett Law assessments in a lump sum 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 government 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 Clause.” Allied 

Stores of Ohio, Inc. v. Bowers, 358 U.S. 522, 527 (1959). Specifically, a government classification 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 legislation.” 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, 505 

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 expressed rationales for the purpose of “saving” 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 their 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 the 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 differently 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 systems.” 

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 

Barrett 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 

participants 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-capitalization, expansion, 

operation and maintenance, and regulatory requirements of the 

City‟s sanitary sewer system which was approved by the CityCounty Council on October 31, 2005 (Proposal No. 535 as 

amended) effective on January 1, 2006, and 

Whereas, The financial 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 County 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 

Funding 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 discontinuing the Barrett Law method of financing sewer projects in favor of the Septic Tank Elimination 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 sanitary 
3

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 advanced multiple post-hoc rationalizations for the differential treatment.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 nonplastic 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 objective. The stated purpose in Resolution 101 simply fails to express any connection to the distinction 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 the 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 homeowners.

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, essentially 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 Resolution 

made the chosen classification. Further, it is merely the reasoning of the Director of the Department 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 advanced 

during the course of this litigation, and nearly two and a half years after the Resolution was passed, renders them suspect in my view.