Del Marcelle: The Standard For Assessing Class-Of-One Equal-Protection Claims Remains Unresolved In The Seventh Circuit

With the Supreme Court's denial of certiorari on November 26, 2012, in Del Marcelle v. Brown County Corp., No. 12-367, the Seventh Circuit's inability to resolve the standard by which class-of-one equal-protection claims should be assessed will likely persist for some time. The Seventh Circuit had heard the case en banc to resolve the conflicted case law, hoping to determine whether a class-of-one claim requires pleading malicious or wrongful motivation and to agree on an improved standard, but the en banc court failed in its quest, affirming by an evenly divided court. 680 F.3d 887 (7th Cir. 2012).

Denying certiorari in Del Marcelle last week assures that this uncertainty will continue. While conflicting authorities exist in other Courts of Appeals, as well as among state courts of last resort, the impasse will continue to be most pronounced in courts within the Seventh Circuit.

Lower courts are likely to decide cases in ways that do not depend on choosing between the two standards. They will likely find either that a given complaint satisfies both standards (by satisfying even the stringent animus standard) or that it would fail under either standard (by failing the more flexible rational-basis standard)...