Village of Willowbrook v. Olech - Oral Argument

Argument of James L. DeAno

Chief Justice Rehnquist: We'll hear argument next in Number 98-1288, The Village of Willowbrook v. Grace Olech.

Mr. DeAno.

Mr. Deano: Mr. Chief Justice, and may it please the Court:

The question on which this Court granted the petition for writ of certiorari in this case is whether the Equal Protection Clause gives rise to a cause of action on behalf of a class of one where that claimant does not allege membership in any class or group, but asserts that vindictiveness motivated the government to treat her differently than others similarly situated.

Justice O'Connor: Mr. DeAno, let me ask you a question or two about this so-called class of one.

Was it really a class of one, or were there five people or so involved in the suit?

Mr. Deano: I think the facts of the complaint could give rise to a class of five.

However, the cause of action was brought under this vindictive action,...

class-of-one type of equal protection claim, so I know that there's an argument in this case that there is...

Justice O'Connor: Yes, well, it wasn't in fact a class of one, and when has this Court ever said that the Equal Protection Clause only addresses classes as opposed to individuals?

Have we ever said that?

Mr. Deano: The case that we cite... no, not directly, this Court has not said that.

Justice O'Connor: And why should we?

I mean, if the city wants to single out one citizen for some irrational action, why isn't that citizen protected?

Mr. Deano: The citizen is protected if that class is drawn for a constitutionally impermissible reason, and we submit that vindictiveness is not a constitutionally impermissible reason, and really what it's looking into is the distinction between...

Justice O'Connor: I don't even understand the vindictiveness point.

I mean, if the city says to Ms. Olech, we won't hook you up to city water unless you give us 50 feet of land for a street, and every other person in the city, they say, fine, we'll hook you up, give us 5 feet, but to her they say 50 feet, now, what does vindictiveness have to do with it at all?

I mean, is there no equal protection claim for Ms. Olech?

Mr. Deano: We submit that if there is an equal protection claim, it is not under this Esmail-type theory, and then...

Justice O'Connor: But isn't there a claim?

You treated me differently.

You required 50 feet from me and 10 feet from every other person in the city.

Mr. Deano: If the reason that they sought the additional 50 feet in your example was constitutionally impermissible, to punish...

Justice O'Connor: It doesn't matter what the reason was.

Don't you have to treat citizens equally when hooking them up to city water?

Mr. Deano: Well, I would look at this Court's case of Snowden v. Hughes, where the Court said that simply differential treatment, even if it violates State law, and in this case village policy, it is not a violation of the Equal Protection Clause unless it is done for a constitutionally impermissible reason.

Now...

Chief Justice Rehnquist: Mr. DeAno, supposing that in this case they asked 50 feet of Mrs. Olech's property and asked only 10 feet from people whose property was indistinguishable from Mrs. Olech, do you say that that would not be any sort of an equal protection claim?

Mr. Deano: If it was done for an impermissible, constitutionally impermissible...

Justice Scalia: When is it...

Chief Justice Rehnquist: Well...

Justice Scalia: you keep referring to impermissible.

All the Constitution says is, you shall not deny people equal protection of the laws.

That's constitutionally impermissible, period.

Mr. Deano: Justice Scalia, I would point to the Snowden case where the Court said, simply differential treatment is not a violation of...

Justice Scalia: Well, of course not, if there's a rational basis for the difference.

Mr. Deano: And...

Justice Scalia: It becomes constitutionally impermissible when there is no rational basis.

Mr. Deano: And that's what we're arguing in this case, that...

Justice Scalia: Oh, it's a perfectly rational basis.

We want an additional 40 feet.

We're greedy.

Mr. Deano: Well...

[Laughter]

If...

Justice Scalia: It's perfectly rational, you see.

Mr. Deano: Well, if the rational basis is to serve a legitimate government objective, for example, in this instance to upgrade and improve an existing road, then we submit that the question should be, if it's an equal protection claim it should fall under traditional equal protection analysis, with the...

Justice Ginsburg: Mr. DeAno, one problem I have with that answer is, how do we get even to know what the purpose of the government was when this case is tossed out on a 12(b)(6) motion and all we're supposed to look at is the face of the complaint, and the complaint doesn't say anything about, they wanted to widen the road.

Mr. Deano: Well, I think as the district court found, the complaint alleges that the reason that the village sought the additional, and I think it's in this case 18 feet, was so that it could improve and dedicate this road.

Justice Ginsburg: Did the... the complaint said that?

Mr. Deano: The complaint alleged that the reason they sought the additional space was so that they could, I believe, pave and complete the road with sidewalks and public utilities, and that's what the district court found to be a legitimate purpose.

We submit that if these facts give rise to an equal protection claim...

Justice Ginsburg: We don't have the... do we have the complaint?

Mr. Deano: Yes.

It's at page 8 and 9 of the Joint Appendix.

It actually starts at page 3 of the Joint Appendix.

Justice Ginsburg: And where is the part where the plaintiff sets out that the State's... that the village's reason...

Mr. Deano: At page 9 of the Joint Appendix, and it's allegation number 25, where it's alleged that they sought the property so that they could dedicate the public roadway and construct pavement, public utilities...

Justice Ginsburg: Yes, thank you.

Mr. Deano: Okay.

Our position is not that no single individual can ever state an equal protection claim when they've been singled out for improper treatment.

Our point is that the Esmail doctrine coming from the Seventh Circuit essentially says that what we look to first is the government's motive, and our position is that motive need not be delved into if the ultimate objective or purpose is legitimate.

Justice Souter: But you would agree, then, that there may be a claim stated by an individual who is not otherwise a member of a class if the individual states that the differential treatment is not rationally related to any legitimate governmental purpose.

Do you agree with that formulation?

Mr. Deano: Yes.

Under Snowden I agree that if it's a... the phrase used in Snowden, if it is purposeful and intentional discrimination, I think that looks into whether they've been singled out for reasons that the Constitution has found to be admissible.

Chief Justice Rehnquist: Well, supposing... again, let's have the 50-foot and 10-foot examples, that from Mrs. Olech they want 50 feet, from people identically situated they want 10 feet, and it simply is a result of a goof in the City Clerk's office.

No one had it in for Mrs. Olech, but nonetheless that's the way it comes out.

Does the fact that it was a mistake rather than a conscious thing make the equal protection claim disappear?

Mr. Deano: I believe so.

I don't believe that you can commit an equal protection violation through error, omission, mistake.

I think there has to be, under Snowden, an intentional and purposeful discrimination.

Justice Scalia: There is certainly an intentional difference in treatment.

They're intentionally trying to get 50 feet from one person and only 10 feet from another.

Isn't that enough of a... you say that's not enough of an intent?

Mr. Deano: Intent versus motive, if the intent is to take 50 feet, then certainly they treated her differently than others...

Justice Scalia: Right.

Mr. Deano: when they took less than 50 feet from them.

Justice Scalia: Right.

Mr. Deano: However...

Justice Scalia: That's not enough, according to you?

Mr. Deano: Well, that may state a traditional equal protection claim, but then the question for the Court would be, is there a rational basis for this, and we submit that this complaint alleges a rational basis for why they asked for an additional 18 feet in this case.

Justice Souter: No, but you say it alleges a rational basis because establishing roads is a governmental objective.

Is that your answer?

Mr. Deano: Establishing roads and also for the purpose...

Justice Souter: Well, what about the rational basis for the differential treatment?

Mr. Deano: The differential treatment is the beginning of the analysis.

Once you find the differential treatment, I think then you look to whether there's a rational basis for that.

Justice Souter: In other words, your theory is that the government can treat people in any otherwise unjustifiably differential way so long as in isolation it has a legitimate objective for treating each individual in the way the individual is treated?

In other words, if the government says, well, I think we'll take 10 feet from this property owner, 25 feet from the property owner next door, and 50 feet from the property owner next door to him, in each instance we're going to take this land because we want to establish streets, and I take it your argument is that so long as in each instance they want to establish streets, the fact that they are intentionally differentiating in the amount of land taken is irrelevant.

Mr. Deano: That...

Justice Souter: Is that your argument?

Mr. Deano: No.

That situation may give rise to an equal protection claim.

However, then the question would be whether the Court can find a conceivable rational basis for why the government asked for 10 feet in one instance, 25 feet in another.

Justice Souter: Okay.

In other words, a rational basis for the difference in treatment?

Mr. Deano: Yes.

Justice Souter: Okay.

Justice Breyer: Why isn't the complaint alleging... it may not be right, but it alleges a difference.

It says, from us they wanted 66 feet to build a road.

From everybody else in the town they wanted 15 feet, which isn't enough to build the road, and there's no basis for this distinction.

That's what I took it as saying.

Mr. Deano: The complaint alleges those facts.

Justice Breyer: All right.

So how, then, can you say that on its face the complaint doesn't state a claim?

Mr. Deano: Under the Esmail theory, where is... where the Court says to look at motive before you look at anything else, that's what we're saying, that that may be a traditional equal protection claim.

Justice Breyer: You may be right or wrong about that, I don't know.

The... but we took the case, I take it, to decide whether there was a... one person could state an equal protection claim, and the first thing I read is that this isn't one person, it's five.

Mr. Deano: Well...

Justice Breyer: So now should we get into this much more difficult question about motive and so forth?

Mr. Deano: Not whether simply one person can ever state an equal protection claim, but whether that one person can state that they were singled out because of the government's motive, vindictiveness.

Justice Breyer: Well, suppose that they're singled out because of the government's motive, and it also happens that there's no rational basis, which I take it is what Judge Posner said.

He said... he said, they have stated a claim where the only reason that anybody could give as far as the complaint's concerned for this distinction is hatred or malice or some absurd state of mind.

Mr. Deano: Well...

Justice Breyer: I'll get his exact words, if you want.

Mr. Deano: Well, in answer to that question, I think that...

Justice Breyer: He says, if it refuses to perform this obligation for one of the residents for no reason... no reason.

No reason... other than a baseless hatred, then it would violate the Equal Protection Clause.

Mr. Deano: And under traditional equal protection analysis, the question then would be for the Court to search the record to see if there is any conceivable rational basis.

Justice Breyer: Well, here we have the record.

It's the complaint.

I don't see any rational basis in the complaint.

Mr. Deano: The... we submit that the rational basis is that in this instance they had a nondedicated road over which they were now being asked to place a public improvement.

Justice Scalia: I suppose if your hatred is not baseless, it's okay.

I mean, if you really... this woman deserves to be hated, or something...

Mr. Deano: No...

[Laughter]

Justice Scalia: would that make it all right?

Mr. Deano: No, it's not that if hatred is baseless, it's if the act, the legitimate... the goal of the government.

In this instance, we submit that what they were trying to do here was legitimate.

Whether their motive, then, was improper should not be relevant under...

Justice Ginsburg: Why, then, shouldn't you read this complaint to say, they wanted 33 feet to widen the road, but everybody else, they wanted only 15 feet.

Fine, if they want 33, they exercise their power of eminent domain and they pay us for the difference between 33 and 15.

If that's what the complaint is saying, we're supposed to read it liberally, then the 12(b)(6) dismissal is improper, because the complaint would not have on its face...

Mr. Deano: On that set of facts, if they alleged a traditional equal protection claim, the next question would be, is there a conceivable rational basis for what was done, and that's why we point, and why the district court pointed to paragraph 25, which alleged that although the respondent is saying the reason they did this is because they're retaliating against me, they also supplied an allegation that explained another basis, another reason why the village wanted that 18 feet.

Justice Ginsburg: But wouldn't that reason still be inadequate if everybody else was either not asked for the 33, or paid for the difference?

Mr. Deano: I don't think so, because the reason... if nobody else was asked for 33 feet, that would create the classification.

But once the classification is created, then the question becomes, what was the legitimate government purpose?

Was there a conceivable rational basis?

So that's where we think paragraph 25 is...

Justice Scalia: It has to be a rational basis, not for taking the 33 feet, but a rational basis for treating this person different from other people, right?

Mr. Deano: I agree with that, and the reason that she was asked for the 33 feet is why she was treated differently.

Justice Scalia: But other people, they did not have the need for the 33 feet from other people?

Mr. Deano: This is a unique situ... no, because in this situation we had a nondedicated road.

Chief Justice Rehnquist: But we don't know that from the motion to... from the complaint and the motion to dismiss, do we?

Mr. Deano: Well, the complaint alleges that it had never been dedicated, and that there had never been any easement granted to any governmental body for the use of any portion of it, so...

Chief Justice Rehnquist: You say all the facts necessary to support your argument that there is a rational basis can be deduced from the complaint?

Mr. Deano: Yes, Your Honor, and that's what the district court found, that...

Justice Souter: I think that's asking rather a lot of a court like this.

I mean, I thought we took this case to find out whether one person who was not otherwise a member of a class can state an equal protection claim, and I think perhaps we're at the point where everybody is agreeing that the answer is yes, and the argument now is whether, in response to that claim, it can be found on this record that there is a legitimate governmental purpose to which the demand was rationally related, and I'm not sure that that's really what we're in business for here.

Mr. Deano: The...

Justice O'Connor: And it also seems that this was, as has been pointed out, dismissed on the face of the complaint.

I mean, normally you wouldn't make that motion.

You'd file an answer, and then there would be motions for summary judgment and you can look at it.

I don't know why the Village of Willowbrook took this unusual route and thought they had a right to dismiss the complaint rather than file an answer.

Mr. Deano: Because the complaint was brought under a theory of the Equal Protection Clause recognizing the Seventh Circuit in the Esmail case, and we submit that Esmail is not a proper... is not a viable cause of action under the Equal Protection Clause.

If this complaint had alleged...

Justice O'Connor: Well, but if the complaint boils down to, they treated me differently than every other citizen when it comes to hooking up water, that's enough, and it doesn't matter if it's one person or five person... five people.

Now, go file your answer, you know.

We've answered the question, go file an answer.

I mean, why isn't that enough?

Mr. Deano: Because the reason that the motion to dismiss was filed was because Esmail is a new theory in the Seventh Circuit, and there had been no other cases interpreting it.

Looking at the complaint, we didn't believe that it fits the...

Chief Justice Rehnquist: But you know, we don't necessarily follow a case from the Seventh Circuit.

Perhaps we wouldn't hear.

But if there's enough in the complaint to support a traditional equal protection claim, we wouldn't have to get into that.

Mr. Deano: And that's not the theory, though, that the respondent brought this case under, and the petition that we filed asked not only that the Court consider whether a class of one could ever file an equal protection claim, it's whether a class of one who is alleging that the class was created by vindictiveness, because vindictiveness has not been a constitutionally protected interest.

Chief Justice Rehnquist: But if one doesn't need to find vindictiveness in order to say that a complaint like the States have claimed for relief under the Equal Protection Clause, it seems to me we wouldn't get into the Esmail question at all.

Mr. Deano: That's correct, but then if it was under traditional equal protection analysis we believe that the district court took the right approach and looked for a rational basis for what the government did, and that's why the case was dismissed in the district court.

Justice Kennedy: Have we ever said... has this Court ever said that in the abstract there's some free-floating duty for the government always to act rationally?

We haven't said that.

Mr. Deano: No.

No.

Justice Kennedy: So the duty to act rationally applies only when the government's actions affect a certain person?

Mr. Deano: When the government takes a position that differentiates, creates a class, then I think the question is whether... what is that class?

Is it a suspect class, or is it not?

If it's not, then the next question is, was there any conceivable rational basis to explain what the government did here?

So it can act irrationally if there's a conceivable rational... not, it can act irrationally, it can separate.

It can make classes if there's a rational basis for that.

Justice Stevens: Do you think your argument is consistent either with the... Justice Stone's opinion in Snowden or with Learned Hand's opinion in Burt?

Mr. Deano: I think it's inconsistent with Learned Hand's position in Burt, but I think it's consistent with the Snowden decision in that in Snowden you had a single individual who claimed that he had been denied the right to be placed on the ballot in Illinois, and that he had qualified for that, and that the canvassing board maliciously, willfully, and arbitrarily refused him that right, and the Court said that despite those allegations you have not alleged intentional or purposeful discrimination, and it went on to say...

Justice Stevens: But that seems to me to suggest that the missing allegation was precisely the allegation you've got here.

Mr. Deano: Vindictiveness?

Justice Stevens: Yes.

Mr. Deano: Well, we cite, then, U.S. v. O'Brien and Arlington Heights and Washington v. Davis for the position that the motivation, which vindictiveness...

Justice Stevens: I understand that, but it seems to me if one confined himself to Snowden and Burt, you would lose.

These later cases you rely on I understand, but it seems to me those two cases are definitely against you.

Mr. Deano: Snowden I think it's how you interpret intentional and purposeful discrimination, and if you read intentional and purposeful discrimination broadly in that it's enough to say...

Justice Stevens: If you read Snowden the way Learned Hand read it, then you lose, and he's usually a pretty good judge, we say.

Unidentified Justice: [Laughter]

Mr. Deano: If you read Snowden the way Learned Hand did, yes.

What he's saying is, you only need to add the additional allegation that the reason you singled me out was because you were coming after me, and we submit that... what Esmail does is turns traditional equal protection analysis on its head, because it now says, the first thing you do is look at an allegation of motive, and if the motive is alleged to be improper, you don't have to go through...

Justice Stevens: Yes, but an allegation of motive like that can also be construed as saying there was no other rational basis that can explain this except that motive, so it's really the functional equivalent of an allegation that there was no rational basis for what you did, which tends to be consistent with the notion that the city later, came round later and said 15 feet's enough.

Mr. Deano: When the... what would give rise to the rational basis inquiry is the allegation that I've been treated separately or differently, and it's a bad motive.

Then you go to rational basis, and that's where we submit that this complaint, as the district court found, alleges a rational basis because the reason that they requested it is explained by the fact that this was a nondedicated, unimproved road.

They wanted to do all of this...

Justice Stevens: It was still nondedicated when they said 15 feet's enough.

Mr. Deano: That's true, and at that point they made a decision that we can't... although it would have been more efficient to do all of this at once, to widen and improve the road, and put pavement there, if she's going to object to it, they consulted the village attorney and the village attorney said, if all you want to do is put the water main in, then 15 feet would be sufficient.

Now...

Justice Scalia: I always... you're talking about rational basis as though it means actual rational basis.

I had always thought that our rational basis test means a conceivable rational basis.

We don't look to whether the State actually had this rational basis in mind.

It might have.

This is a basis that we invent in our own imagination, and since that could have supported it, there's a rational basis, correct?

Mr. Deano: I agree.

Justice Scalia: And you would assert that that conceivable rational basis will overcome a claim of a violation of equal protection even when you can bring in evidence to show that, oh yeah, that might have been a rational basis, but in fact they were out to get me.

Mr. Deano: Yes.

Justice Scalia: They did not use that rational basis.

They were out to get me.

You would say still no equal protection violation?

Mr. Deano: Yes, and under U.S. v. O'Brien and Washington v. Davis, once there is a legitimate purpose, there's no need to look into...

Justice Scalia: You're beginning to talk subjectively again.

Once there is a... once there is a conceivable legitimate purpose.

Mr. Deano: Okay, conceivable, any imaginable by the court, even if it's not pled in the complaint, but we believe that this complaint does plead that.

Justice Ginsburg: Can you... does that carry as far as saying, yeah, we conceived it, but it has been shown on this record that that was indeed not the basis?

Mr. Deano: If it can be conceived, then there's no reason to look into the record for why they might... why that motive might not have been the correct motive.

Justice Ginsburg: So this is a tempest in a teapot, is essentially what you're saying.

Yeah, you can have a class of one, but the court can always dream up a rational basis for what government does, and so, end of case.

Mr. Deano: Not always.

Not always dream up a rational basis, but when a complaint like this alleges facts that give rise to that, then certainly, and I agree that it's what can be conceived, not necessarily what is found, but here we have the allegation in the complaint.

Justice Kennedy: And if the reason that government was out to get the person was because of race, there's a cause of action?

Mr. Deano: There is.

Justice Kennedy: And is that because it's a suspect class, or there's a constitutional right involved?

Mr. Deano: Because there's a suspect class, because they've differentiated because of...

Justice Kennedy: Suppose they're discriminating allegedly because of the exercise of the constitutional right?

Mr. Deano: That would be, but that's... and that is not the theory that has been pled in this case.

The theory that has been pled is what our argument is against, that Esmail says that vindictive action can give rise to an equal protection claim when you allege differential treatment and vindictiveness as the cause for it, or the motivation for it.

Justice Stevens: Yes, but the vindictiveness allegedly was in retaliation for filing a lawsuit, which I assume she had a statutory right at least to file.

Mr. Deano: That's correct, but then we... I think we would look at this case under traditional equal protection analysis, and the question would be, is there any conceivable rational basis...

Justice Stevens: Well, why is filing... if... why, if the vindictiveness on one hand is caused by hostility to race, another case it's caused by hostility to the fact that the... a lawsuit was filed.

You would say they're different cases.

Mr. Deano: They would... I think they require... they would be traditional equal protection claims, not...

Justice Stevens: Well, that's what... why isn't this the second?

Mr. Deano: Because they have alleged that they are proceeding under Esmail, which is not... which is a vindictiveness...

Justice Stevens: Well, they allege that the vindictiveness was caused by the fact that they filed this earlier lawsuit.

Mr. Deano: That's correct.

They...

Argument of Irving L. Gornstein

Chief Justice Rehnquist: Thank you, Mr. DeAno.

Mr. Gornstein, we'll hear from you.

Mr. Gornstein: Mr. Chief Justice, and may it please the Court:

We have explained in our brief why we believe this is not an appropriate case for resolving the class-of-one issue, but if the Court reaches the question, it should hold that a class-of-one claim is subject to the same analysis as other equal protection claims.

That means that unless there is a fundamental right, or a suspect classification involved, rational basis review applies, and under rational basis review the relevant inquiry is an objective one into whether there is any conceivable rational basis for the alleged difference in treatment.

Justice Stevens: What if they had a class of litigants against the city, and they had a rule that anybody who sues the city, will get disparate treatment, 33 feet instead of 15 feet, and that's their policy.

Would that be an equal protection challenge?

Mr. Gornstein: Justice Stevens, it would.

It would be... it would implicate the fundamental right which this Court has recognized...

Justice Stevens: Why isn't that this case?

Mr. Gornstein: Well, it is this case, and that's one of the reasons that we told... suggested to the Court...

Justice Stevens: Oh.

So you agree with respondent, then?

Mr. Gornstein: that we suggested to the Court that it not examine the class-of-one issue, because the class-of-one issue really arises when there is no suspect classification and no fundamental right involved, but this happens to implicate the fundamental right to file a lawsuit, which this Court has recognized as being protected by the First Amendment as a component of the right to petition for a redress of grievances.

If the...

Justice Ginsburg: Mr. DeAno said that's not the theory of the plaintiff's complaint.

They didn't make retaliation for filing the litigation the basis for the lawsuit.

Mr. Gornstein: They actually did, in their factual allegations, allege that the basis for the retaliation was the filing of the lawsuit, and that is in Joint Appendix 10, allegation number 27.

Chief Justice Rehnquist: Well, what if you decide that you're going to treat this person differently because they've filed a lawsuit against the village, but it turns out there's a perfectly rational basis for treating them differently?

Mr. Gornstein: Mr. Chief Justice, in that case, when you have a First Amendment right at issue, the sequence of events is dictated by this Court's decision in Doyle, which says that the plaintiff has the burden to show that a motivating factor in the decision was the exercise of First Amendment rights and at that point, if the plaintiff establishes that initial burden, then the burden shifts to the defendant to show that the same decision would have been reached even the... even in the absence of the consideration of the protected activity.

But where there is no fundamental right at stake, and that is a hypothesis of the question presented, the only question is whether there is a conceivable rational basis for treating the plaintiff differently from others and, if there is, the inquiry ends.

You do not inquire at all into the actual subjective motivations for the decision.

Chief Justice Rehnquist: So under the Doyle approach, my hypothetical, would a court say, yes, this is a prima facie denial of equal protection because of 50 feet versus 10 feet, and the respondent has come up with a perfectly good explanation of why, but we also find that the motive for doing it was not the rational basis, that they simply wanted to get this person because they filed a lawsuit, and kind of dug up the rational basis later.

Then what happens under Doyle?

We would have done it anyway, so...

Mr. Gornstein: This Court recently issued a per curiam decision this term, and I believe it's called Le Sage, in which the government took the action on the base of race and... in part, and the government was able to show to the satisfaction of the Court that the same thing would have occurred even absent the consideration of race, and in that event there is at least no award for past conduct.

There...

Justice O'Connor: But you have to get beyond the dismissal of the complaint to reach that.

Mr. Gornstein: That's correct.

Justice O'Connor: Le Sage was hardly a dismissal of the complaint situation.

Mr. Gornstein: That's correct.

I'm just talking about a hypothetical scenario where there's a First Amendment claim raised, and then it would be... it would usually require a trial to determine whether, in fact, the actual... the defendant would have taken the same action in any event.

Let me...

Justice Kennedy: Should we begin our opinion in this case by saying there is no constitutional right for similarly situated persons to be treated equally under the law?

Is that our opening line?

Mr. Gornstein: There is a constitutional right for people who are being treated equally... who are similarly situated, in fact, to be treated equally, but how the Court approaches that question depends on whether there's a suspect classification or a fundamental right involved.

If neither of those are involved, then the relevant inquiry is, is there any conceivable rational basis for treating differently plaintiff from the persons that the plaintiff alleges to be similarly situated.

Justice Kennedy: Is that necessary to reduce the number of suits filed in Federal court, to reduce the intervention of courts in routine governmental actions?

Mr. Gornstein: That is the...

Justice Kennedy: Are we compromising the basic principle by saying that?

Mr. Gornstein: No, because I think the basic principle that the Court has established is... under rational basis review is a baseline of protection, but only against those classifications, or those different... intentional differences in treatment that lack any conceivable rational basis...

Justice Breyer: Well, why...

Justice Kennedy: If you're a county council and the board of commissioners said, we're going to bury this application because we just don't like this guy, you tell them that that is constitutionally permissible?

Mr. Gornstein: I do not.

I tell them that there should be a conceivable rational basis for that decision, and that that is not an impermissible way to proceed.

Chief Justice Rehnquist: And that you would propose to conceive one.

Unidentified Justice: [Laughter]

Mr. Gornstein: But when the case comes to court, then the question is whether there's a conceivable rational basis and, if there is under this Court's decisions in Fritz and in Beech, then the inquiry is at an end.

Justice Breyer: What about in every case of defamation, libel, intentional torts committed by a State officer, breach of contract, where let's assume the State's wrong in all those cases?

Now, those are all illegal activities, so I don't know what the rational basis would be.

Now, does every one of those actions become an Equal Protection Clause action?

Mr. Gornstein: No, because there are two components to the equal protection cause of action.

First, as Snowden v. Hughes had said, there has to be an intentional difference in treatment between the plaintiff and others who are alleged...

Justice Breyer: Well, there is in every such case.

Mr. Gornstein: And then, at that point, then all... the inquiry is really a very simple one into whether there is any conceivable, rational basis...

Justice Breyer: And what could there be in cases where the government's committed an intentional tort, or intentionally breached a contract?

Mr. Gornstein: Because there... I could hypothesize ones in particular cases that may come up.

For example, in this case let's put aside the First Amendment for a moment.

It may be that somebody could establish that there was... somebody was out to get somebody, but if there was a conceivable rational basis such as the one that the petitioner is suggesting here, that unlike every other person in this town, this person is asking for access for water from a nonpublic road, that could supply a conceivable rational basis for treating that plaintiff differently from everybody else in the village.

Justice Kennedy: And the result is otherwise if race is the basis, because of history, the core principle of the Equal Protection Clause, or why?

Mr. Gornstein: Yes.

In certain limited situations the Court has concluded that motive inquiries are essential to protect against the most invidious forms of discrimination and protect the most fundamental rights, but when those rights are not implicated, then rational basis review applies, and that is supported, really, by three related...

Justice Stevens: Let me just interrupt with one question.

Why does the fact that a nonpublic road is involved explain the disparate treatment between 15 feet and 33 feet?

How can that possibly explain that?

Mr. Gornstein: Justice Stevens, it may or may not explain it.

I suppose the possible...

Justice Stevens: It has to be a rational basis for...

Mr. Gornstein: It does, and the possible explanation...

Justice Stevens: and on its face it isn't rational.

Mr. Gornstein: The possible explanation would be that the city has a policy for some reason that it does not want to furnish access to people for water over roads that are not their own.

Justice Stevens: That policy is surely not disclosed in the complaint.

Mr. Gornstein: I'm... Justice Stevens, I wasn't suggesting that the complaint itself doesn't state a claim.

It may or may not state a claim.

I think at this stage of the proceedings that's not the question before the Court, whether this complaint does or doesn't state a class-of-one claim.

The question is whether a person in a class of one can state a claim.

I think all the Court has to say if it gets to this question is that yes, a person in a class of one can state a claim, but unless... if there's no fundamental right or suspect classification involved, only by showing there's no conceivable rational basis for treating the plaintiff differently from others who are similarly situated.

Justice Ginsburg: So the complaint has to conjure up every conceivable basis and negate it?

That's what the pleading is supposed to look like?

Mr. Gornstein: I would not say that, Justice Ginsburg.

I think the complaint can state the facts that show that they are apparently being treated differently from other... others who are similarly situated.

Were it not for the one paragraph in the complaint the petitioner mentioned which suggested a possible rational basis, the complaint clearly would have stated a claim in our view, but it is by raising in the complaint itself a possible rational basis that the issue arises as to whether you can dismiss the complaint here.

Argument of John R. Wimmer

Chief Justice Rehnquist: Thank you, Mr. Gornstein.

Mr. Wimmer, we'll hear from you.

Mr. Wimmer: Mr. Chief Justice, and may it please the Court:

Before I get into the merits of the arguments that have been made on behalf of the Village of Willowbrook, I'd like to address the matter of what questions are properly before this Court in this case.

As the Court is aware, there were two questions raised in the petition for a writ of certiorari, the first being whether the Equal Protection Clause gives rise to a cause of action on behalf of a class of one where the plaintiff has not alleged membership in a vulnerable group, but rather that ill will caused the government to treat her differently from others similarly situated.

The second question was whether the government conduct alleged in Mrs. Olech's amended complaint meets the standard to state a cause of action on behalf of a class of one, assuming that the Equal Protection Clause protects such individuals.

Now, this Court in this case granted certiorari limited to question one, and what that means, I believe, is that arguments that fall within the scope of question two are not properly before this Court because this Court has in effect denied certiorari on question two, and we've cited the case of Missouri v. Jenkins from this Court, where there was a limited grant of certiorari on one of two questions, and in that case, which was a school desegregation case, the State made arguments that really fell within the scope of the question which had not been... on which certiorari had not been granted, and this Court said that those questions would not be considered.

Chief Justice Rehnquist: Well, but the discussion of question 1 may involve some... you know, rather than a purely hypothetical discussion might involve discussion of question 2.

That's not to say question 2 is before the Court, but I don't know that you can totally separate them.

Mr. Wimmer: I don't know that they can be totally separated.

I know in Missouri v. Jenkins the second question was whether the tax increase ordered by the district court in the school desegregation case violated Federal-State comity.

The first question was whether the remedy was too broad, and when the State tried to argue that it violated Federal-State comity because the remedy was too broad, this Court indicated that that wouldn't be within the scope of the grant.

I think in this case when the village argues that Mrs. Olech's specific amended complaint failed to sufficiently allege that there was not a rational basis related to a legitimate government interest, that doesn't go to whether the Equal Protection Clause protects a class of one.

That falls within question 2, whether this particular amended complaint meets the standard to state a cause of action for violation of the Equal Protection Clause, assuming that that clause protects such individuals.

Justice Breyer: But as to question 1, it talks about a class of one, and the complaint itself reveals that they're a class of five, at least, so wouldn't it be a totally hypothetical advisory opinion to answer question 1 in the context of a case that doesn't raise it?

Mr. Wimmer: Well, I don't think it would be an advisory opinion necessarily, because although there are five people involved, I think the principal the class of one... the distinction is between a class of one and a vulnerable group.

Whether there's two, or five, or one, I think the same considerations would apply if it's not a vulnerable group, as stated by the village.

Justice O'Connor: Mr. Wimmer, did you represent Ms. Olech...

Mr. Wimmer: Yes.

Justice O'Connor: at all times below?

Mr. Wimmer: Yes, Your Honor.

Justice O'Connor: And you drafted the complaint?

Mr. Wimmer: I did.

Justice Ginsburg: Then why didn't you include the theory that Mr. Deano suggested may have been okay, that is, it was retaliation for exercise of their First Amendment right to sue the village?

Mr. Wimmer: Well, Your Honor, I did state in paragraph 27, and this is on page 10 of the appendix, that the defendants treated plaintiff Grace Olech and Thaddeus Olech, Howard Brinkman, and Rodney C. Zimmer and Phyllis S. Zimmer differently from other property owners in the Village of Willowbrook by demanding the 33-foot easements and the 66-foot dedicated street as a condition of the extension of the water main because of the ill will generated by the State court lawsuit, and in an attempt to control storm water drainage in the vicinity to the detriment of plaintiff Grace Olech and Thaddeus Olech and other plaintiffs in the State court lawsuit by the use of ditches and swales along Tennessee Avenue.

So when the village says that the complaint alleges that they wanted the 33 feet for all these good purposes, that's not what it alleges.

It alleges they made those demands out of ill will caused by the lawsuit.

The paragraph cited by the village simply says they sent the proposed easement which would give them the right to do all those things, but the complaint does not allege that that is why the village made those demands.

Chief Justice Rehnquist: What if we had a somewhat different situation here, where we're not talking about the demand for easement dedication, but whether the village is going to contract with a particular person, or take bids from various persons to do the paving in this area, and the village says, well, one person we're not going to contract with is X, because X has a reputation for suing everybody, for just being a very litigious person constantly taking advantage of his right to petition.

Is that impermissible under the First Amendment?

Mr. Wimmer: Well, if the lawsuit that was brought was meritorious, I think it would be.

I think if there had been a lot of... and I think about the cases cited by the government in this case, California Motor Transport, and the other cases cited by the government which indicate that if the lawsuit is not... doesn't have probable cause, or if it's a harassing lawsuit, or something like that, then the First Amendment implications aren't there.

In this case, the State court lawsuit, we prevailed and got a judgment against the Village of Willowbrook, so...

Chief Justice Rehnquist: So you say that the First Amendment does protect someone who the county or the village simply doesn't want to deal with because they have a propensity to litigate at the drop of a hat.

Sometimes they win, sometimes they lose.

Mr. Wimmer: Well, I think if... it would come down to what the propensity to litigate in cases that are not valid, that would probably be a proper consideration for the village to take into account.

That's not what happened here, though, because the one case was a valid case and went to judgment.

Justice Breyer: What was your theory?

If we go to this other issue, I can see two situations.

1, a plaintiff says, there is no rational basis conceivable, and they're motivated by ill will.

Situation 2 is, the plaintiff says, they had a brilliant reason, a perfect reason, an outstanding reason.

However, they were motivated by ill will in reality.

Now, does this case raise issue 2?

Mr. Wimmer: I don't believe so, Your Honor.

We alleged in the complaint that the decision was... and this is on page 10... wholly... strike that... irrational and wholly arbitrary, and we've also alleged that it was based on ill will and I think that, as Judge Posner said in the court of appeals opinion for the Seventh Circuit, the tincture of ill will will not render government action unconstitutional if it would have happened anyway.

What we have here is a situation where it was irrational because the village attorney admitted that they didn't need a 66-foot street dedication to install and maintain a water main, and they didn't demand it of other people in the village.

With respect to the argument that Mrs. Olech's situation is somehow unique, there's no basis in the complaint to conclude that that is the case, and that there are not other nondedicated streets in the village.

Under Hishon v. King & Spaulding this Court is to construe... or all courts are to construe complaints favorably to the plaintiff and reach all reasonable inferences in favor of the plaintiff, and what the village is asking you to do is the exact contrary, to assume that this was the only dedicated street and make conclusions on that basis.

Justice O'Connor: Well now, if a complaint were to allege that the city took some... singled out the plaintiff for some negative action solely because the city didn't like the person for some reason, the mayor hated her, and it turns out, though, that there is a perfectly rational basis that the Court can think of for the mayor's action, is there a lawsuit just because the mayor, in his heart of hearts, hated the plaintiff and wanted that outcome, even though we can derive a perfectly rational basis?

Mr. Wimmer: Probably not, Judge, although this Court did say in the City of Cleburne v. Cleburne Living Center that some objectives, such as a bare desire to harm a politically unpopular group, are not legitimate State interests.

I think in this case, where there was no conceivable rational explanation for the city's disparate treatment of Mrs. Olech, and she's alleged that they were out to punish her for filing a meritorious lawsuit against the village, that there's enough.

But I do think that this whole concept of whether the particular amended complaint in this case adequately states a cause of action is not properly before the Court.

Justice Kennedy: I think you know what's bothering us, that if we accept your theory, then in those thousands, tens of thousands of zoning decisions where local personalities are involved and difficult discretionary judgments are made, it's going to always be followed by a lawsuit of ill will.

And we simply are concerned about having the Federal courts become the ultimate policeman of the zoning process.

Mr. Wimmer: Your Honor, I think there's sufficient protection from municipalities or government in the fact that the plaintiff has to show that there was no rational basis, no conceivable rational basis related to legitimate government interests for the conduct.

That's going to eliminate a lot of frivolous lawsuits against municipalities.

If a municipality can have an affidavit, we did it for this reason, and totally logical and rational, and advances a legitimate government interest, the case is over.

Justice Scalia: They don't have to say that.

They don't have to say we did it for this reason.

They have to say, we might have done it for this reason... right?

Mr. Wimmer: That's correct.

Justice Kennedy: So in this respect you're in agreement with the government's theory of the case?

Mr. Wimmer: I agree that a rational basis related to a legitimate government interest for the disparate treatment would indicate that there was no equal protection violation.

Justice Kennedy: A conceivable basis.

A conceivable basis.

Mr. Wimmer: Based on the facts that are before the Court, yes.

I don't think there is one here, because that also runs into the rule that in Hishon v. King & Spaulding, if there are any set of facts consistent with the complaint by which it could be concluded that there was no rational basis related, or no conceivable rational basis related to a legitimate government interest, then the case should go on.

With respect to the question on which this Court granted certiorari, whether the Equal Protection Clause protects a class of one...

Justice Scalia: Do we have a class of one?

What's your position on that?

Mr. Wimmer: That the Equal Protection Clause... oh, do we have a class of one in this case?

That's the way it was argued.

There certainly are five people, as the government has pointed out, that filed the State lawsuit, and they were all treated differently by the Village of Willowbrook.

Justice Scalia: This objection that a class of five is not a class of one, was this made at the petition stage in the opposition to certiorari?

Mr. Wimmer: I don't believe so.

I did object to the presentation of some questions, but not that.

With respect to the question of whether the class of one is protected...

Justice Stevens: May I ask you just a variation...

Mr. Wimmer: Yes.

Justice Stevens: of Justice Scalia's question?

In the trial proceedings, was there an objection to the complaint made on the basis that there was only a class of one involved?

Mr. Wimmer: No.

As a matter of fact, at the district court the Village of Willowbrook acknowledged that a cause of action for violating the Equal Protection Clause could be brought on behalf of a class of one.

They took that position but argued that...

Justice Stevens: Because that was a law of the Seventh Circuit?

Mr. Wimmer: Right.

They did not say we want to preserve another issue for appellate review.

With respect to the question on which the Court granted certiorari, I think it's important to recall that governments derive their power from the consent of the governed, and that the legitimacy of government action is based on that.

In our country the consent of the governed is set forth in the written Constitution, and I think in interpreting the language of the Constitution, the language of that grant, it's important to adhere to the language that the people have chosen to use, especially when construing a protection that the people saw fit to secure for themselves, and that no court should engraft limitations on the application of a protection like that that the people didn't see fit to put in it, because then what would happen to the consent of the governed, and the legitimacy of the exercise of government power?

As Justice Story said in Martin v. Hunter's Lessee, which I cited in my brief, the words are to be taken in their natural and obvious sense, and not in a sense unreasonably restricted or enlarged.

With that background, if one looks at the language of the Equal Protection Clause, nor shall any State deny to any person within its jurisdiction the equal protection of the laws, I think there's no basis to conclude that that provision should be limited in its application to someone who says I'm being discriminated against because of membership in a group or class.

Justice Ginsburg: And what is your answer, Mr. Wimmer, to the argument that you have pled yourself out of court by making your statement of the class of one or five but then including in the complaint a rational basis for seeking more land, that is, they wanted to make the street?

Mr. Wimmer: Well, I don't think I did include in my complaint a rational basis for the Village of Willowbrook to treat Mrs. Olech differently from other property owners.

When one decides whether there's a rational basis related to a legitimate government interest, it should not be considered in the abstract, and the village can always say, we wanted to build a road here.

The question is, was there... and in the case I cited, Sioux City Bridge Company, where one taxpayer's property was assessed higher than everybody else's, the government can only say, we had a rational basis to assess his property 100 percent.

That's what it was worth.

You have to look, is there a rational basis related to a legitimate government interest for the difference in treatment?

They may well have wanted a road, but if they didn't demand of everyone who wished to have municipal water a road, then there was no rational basis to treat her differently from everybody else in the city by demanding a road.

Justice Stevens: May I ask you a hypothetical about a concession you made earlier?

Supposing you had a complaint that alleged vindictive discrimination, 33 feet because they hated the person, and the city filed an answer and said yes, that's the real reason we did it, but our lawyer has told us we might have done it for this rational reason.

We didn't do it, but we might have.

Who would win in that case?

Mr. Wimmer: Well, I think...

Justice Scalia: Is there a stupidity clause in the Constitution...

Unidentified Justice: [Laughter]

Justice Scalia: somewhere we could get them on, or something?

Mr. Wimmer: Well, I think one could argue convincingly in light of Your Honor's language in the Cleburne case that if the city admitted that they were doing it to punish a person, a politically unpopular person or group, that the plaintiff would prevail.

That's not a legitimate government interest.

This Court has stated...

Justice Stevens: And it's not a totally hypothetical question, either, to respond to my good colleague, because sometimes you take depositions before the answer is filed, and the depositions make it perfectly clear that was the real purpose, but then they conceive of a legitimate purpose later.

Mr. Wimmer: Well, I think, as I say, that a convincing argument can be made under Cleburne that if they made that concession, that it was not... it was what this Court has said to be not a legitimate government interest that motivated them to take that action, that there would be an equal protection...

Justice Stevens: Why, if they only make the concession?

Justice Scalia: Maybe there's a presumption...

Why not litigate it, then?

If the fact that they did it out of maliciousness should justify judgment for the plaintiff, then we should litigate the point, but why should we just allow it when they admit it?

Mr. Wimmer: Well, that's a good question, although in this case...

Justice Scalia: It's a very good question.

I...

Unidentified Justice: [Laughter]

Justice Scalia: You want to throw us right back into the pool that we thought we had jumped out of.

Mr. Wimmer: Well, in this case, where the complaint does not show a rational basis related to a legitimate government interest for the disparate treatment, I think it is proper to inquire into the motive, however, Judge... or, I'm sorry, Your Honor... because I have to show that there was a denial of equal protection.

That connotes purposeful conduct on behalf of the village, so I think that an allegation that they were retaliating against them for filing a lawsuit shows that it was not simply uneven law enforcement, or an accidental disparate treatment, but an...

Justice Kennedy: I suppose the way Judge Posner's view could be explained is that there is a presumption that the government acted for a reasonable purpose, and if there's specific evidence to the contrary, then the case can proceed and it just becomes a pleading case.

Mr. Wimmer: Well, yes.

At this point I have alleged that it was irrational.

Justice Breyer: I thought you had both.

Mr. Wimmer: And...

Justice Breyer: No conceivable rational purpose, and animus.

Mr. Wimmer: I believe I do, Your Honor.

I allege...

Justice Breyer: And if you get rid of the former, I guess we have a Federal lawsuit even if the land was set aside as coastal land, you know, a wonderful reason, has the most beautiful view in the State, but it turns out, it's alleged, that the real reason he did it is, he didn't like the landowner.

I mean, once you get rid of a conceivable, rational basis, you open the court to lawsuits no matter how good the reason was, as long as there's an allegation of animus.

Mr. Wimmer: That's right, although I think in this case that's not what we have, since I've alleged both, and the allegations of the complaint have to be accepted as true at this point.

Briefly, with respect to exhaustion of remedies, that's another question which I believe is not properly before the Court for a number of reasons.

It was not ever mentioned prior to the brief on the merits by the village.

It was not mentioned in the district court, where I could have amended the complaint if there was a technical deficiency, and also, even if Your Honors intend to address the exhaustion of remedies issue, I believe the Court has already held at least two times that one need not exhaust his State remedies in order to state a claim for a denial of the Equal Protection Clause.

And on this rationally related argument, what this really comes down to is whether it was rationally related to a legitimate State interest for Willowbrook to demand private property rights of Mrs. Olech and the other plaintiffs in the State court case as a condition of receiving running water when those rights were not demanded of others as a condition of receiving running water, and where the private property rights were not required for installation and maintenance of the water main.

That's what the complaint says, and I think that question really answers itself.

There's not a rational basis based on the face of the complaint.

One other point the village makes is, they argue that the road was already in existence, and that they simply desired to establish their right to maintain it.

The complaint does not allege how wide the road is, and since it's not in the record I'm not going to state how wide it is, but I think if that's a significant fact the inference should be drawn in favor of the plaintiff that the road is substantially narrower than the 66-foot road that they were demanding be put in.

So I'd like to thank the Court.

In conclusion, I believe that the Equal Protection Clause applies to everybody, whether they're a member of a class or group or not.

It certainly applies to Mrs. Olech.

Thank you.

Chief Justice Rehnquist: Thank you, Mr. Wimmer.

The case is submitted.

The honorable court is now adjourned until tomorrow at ten o'clock.