EQUAL PROTECTION "IN FLUX": THE SEVENTH CIRCUIT'S INABILITY TO CLARIFY A STANDARD FOR CLASS-OF-ONE EQUAL PROTECTION CLAIMS IN DEL MARCELLE V. BROWN COUNTY CORP

Abstract: On May 17, 2012, in Del Marcelle v. Brown County Corp., the U.S. Court of Appeals for the Seventh Circuit sitting en banc split three ways on what standard to apply in class-of-one equal protection cases. The judges were concerned about how to account for a state actor's motive while also ensuring that low-level government officials' discretionary authority is adequately protected. The Seventh Circuit could have balanced these concerns appropriately had they adopted Judge Wood's proposed framework, which evaluates a state actor's behavior using a rational basis standard and allows the defendant's motive to be considered, but relieves the plaintiffof the burden of specifically alleging the state actor's motivation. This standard would have been easy for the courts to apply, would provide much needed clarity on this issue, and would have most effectively balanced the rights of victims of discrimination with the need to afford low-level state officials' latitude to make discretionary decisions.IntroductionOn September 13, 2010, Lewis Del Marcelle brought a federal civil rights lawsuit against Brown County, the Village of Ashwaubenon, and their respective executives for denying him and his wife equal protection under the Fourteenth Amendment.1 Del Marcelle claimed that his constitutional right to equal protection was violated when local law enforcement in Brown County, Wisconsin, ignored his complaints about a motorcycle gang's persistent and severe harassment of him and his wife.2 As a result of the harassment, Del Marcelle claimed that he and his wife sold their home and moved to the Village of Ashwaubenon, Wisconsin.3 Nevertheless, the gang followed them to their new location. 4Shortly after Del Marcelle filed his pro se complaint, the U.S. District Court for the Eastern District of Wisconsin granted the defendants' motion to dismiss.5 The court reasoned that Del Marcelle's complaint could not survive because it merely stated that the police were not properly doing their job.6 In addition, the district court noted that the equal protection claim failed because it did not allege that the plaintiffs belonged to a protected class.7On appeal, a three-judge panel of the Seventh Circuit noted that Del Marcelle's complaint could have been interpreted as a class-of-one equal protection claim in which the defendants had arbitrarily provided less police protection for the plaintiffs specifically.8 Because the panel proposed a new standard for class-of-one equal protection claims, the full court decided to rehear the case en banc.9 The en banc court, however, failed to come to a majority decision on a standard to apply in class-of-one equal protection cases.10 The judges differed in articulating a limiting principle that would protect government officials' discretionary decisions while still giving citizens a forum to address discrimination in class-of-one cases.11 Additionally, the court split evenly on whether to remand the case and allow the plaintiffto replead.12 Because it takes a majority of the court to reverse a judgment, the lower court's dismissal of Del Marcelle's claim was affirmed.13Nine out of the ten judges on the Seventh Circuit properly recognized that the defendants' motive should be a factor in creating a standard for class-of-one equal protection claims, but the judges were un-able to agree on the appropriate standard to apply.14 The Seventh Circuit, however, should have adopted the standard set forth by Judge Wood in her dissenting opinion.15 This standard would require a plaintiffto show that the state actor lacked a rational basis for its discriminatory treatment, but does not require the plaintiffto make a specific showing of the defendant's motive.16 Judge Wood's proposed standard would have adequately protected low-level government officials in their capacity as discretionary decisionmakers while also giving all citizens a meaningful forum to confront those officials when they are singled out for unjust discriminatory treatment. …