Opinion
Civil Action No. SA-02-CA-858-XR.
August 12, 2004
ORDER
On this date, the Court considered Plaintiff's Motion to Reconsider, Defendants Davis and Clark's Supplemental Motion for Summary Judgment, and the supplemental briefing provided by the parties in response to this Court's May 24, 2004 Order. Based on the Plaintiffs' supplemental briefing, the Court dismisses without prejudice Plaintiffs' claims for negligence, tortious interference with prospective contractual relations, and takings under the Texas and United States Constitutions. Further, after careful consideration, the Court denies Plaintiffs' Motion to Reconsider (docket no. 45) and grants in part and denies in part Defendants' Supplemental Motion for Summary Judgment (docket no. 48).
I. Facts and Procedural Background
Plaintiffs Susan Reed, Eldon Reed, and Laurie Meyer bought a piece of property in the City of Bandera and planned to open a restaurant named Boudreaux's on the property. Plaintiffs allege that Don Clark, the City Administrator, and Joseph ("Joe) Davis, a member of the City Council, engaged in various acts designed to delay and frustrate their attempts to obtain the necessary permits and proceed with their plans to open the restaurant. In their First Amended Complaint, Plaintiffs asserted claims against various defendants, but Plaintiffs have voluntarily dismissed their claims against all defendants except Clark and Davis. Plaintiffs asserted claims under 42 U.S.C. § 1983 based on violations of their equal protection and substantive due process rights and an alleged unconstitutional taking. Plaintiffs also asserted several state-law claims, including negligence, negligence per se, "tortious interference," and an alleged unconstitutional taking under the Texas Constitution.
In its May 25, 2004 Order, after considering Defendants' first motion for summary judgment, this Court granted summary judgment on Plaintiff's "straightforward" equal protection claim, negligence per se claim, and tortious interference with existing contract claim, requested further briefing on several issues, and permitted Defendants to file an additional motion for summary judgment after the requested briefing was completed. Plaintiffs submitted their briefing, and have informed the Court that they will no longer pursue their claims for negligence, tortious interference with prospective contractual relations, or their state and federal constitutional takings claims. Accordingly, the Court dismisses those claims without prejudice.
Thus, the only claims remaining are Plaintiffs' selective enforcement equal protection claim and substantive due process claim brought pursuant to section 1983 against Clark and Davis. However, Plaintiffs move the Court to reconsider its ruling granting summary judgment for Defendant on Plaintiffs' "straightforward" equal protection claim. The Court will consider the equal protection claims first.
II. Equal Protection
In February 2000, the Supreme Court issued its opinion in Village of Willowbrook v. Olech, 528 U.S. 562 (2000). In that case, the Olechs asked the Village of Willowbrook to connect their property to the municipal water supply. The Village at first conditioned the connection on the plaintiff granting the Village a 33-foot easement. The Olechs objected, claiming that the Village only required a 15-foot easement from other property owners seeking access to the water supply. After a three-month delay, the Village agreed to provide water service with only a 15-foot easement. Olech sued the Village, claiming that the Village violated the Equal Protection Clause because the demand for the additional easement was irrational and wholly arbitrary and was motived by ill will resulting from the Olechs' previous filing of an unrelated, successful lawsuit against the Village. Relying on its prior holding in Esmail v. Macrane, 53 F.3d 176, 180 (7th Cir. 1995), the Seventh Circuit held that a plaintiff can allege an equal protection violation by asserting that state action was motivated solely by a spiteful effort to "get" him for reasons wholly unrelated to any legitimate state objective.
The Supreme Court granted certiorari to determine whether the Equal Protection Clause gives rise to a cause of action on behalf of a "class of one" where the plaintiff does not allege membership in a class or group. The Court noted that its cases "have recognized successful equal protection claims brought by a `class of one,' where the plaintiff alleges that she has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment." Olech, 528 U.S. at 564. The Court stated that the Olechs' allegations that the Village intentionally demanded a 33-foot easement as a condition of connecting the property to the water supply when the Village required only a 15-foot easement from other similarly situated property owners and that the demand was "irrational and wholly arbitrary," "quite apart from the Village's subjective motivation, are sufficient to state a claim for relief under traditional equal protection analysis." Id. at 565. The Court therefore affirmed the lower court's judgment, but did not reach "the alternative theory of `subjective ill will' relied on by that court." Id.
Later in 2000, the Fifth Circuit decided Bryan v. City of Madison, 213 F.3d 267 (5th Cir. 2000), in which pubic officials repeatedly frustrated the plaintiff's plan to construct an apartment complex on land he contracted to purchase. With regard to the plaintiff's equal protection claim, the Fifth Circuit discerned two types of violations that could be implicated. The first claim — that the defendants applied the zoning standards unreasonably by vetoing his applications based on a failure to comply with the standards — fell within the "standard" equal protection analysis, which requires a plaintiff to prove that similarly situated individuals were treated differently. Id. at 276. The second claim — that Bryan faced an "extraordinary process" that included an unscheduled meeting and the hiring of consultants to review his plan — the Court concluded, looked like an example of "selective enforcement" or "selective prosecution" because the mayor was not applying standards in an unreasonable manner, but was selectively using her powers against a single party. Id. at 277. The Court then noted that, to successfully bring a selective prosecution or enforcement claim, "a plaintiff must prove that the government official's acts were motivated by improper considerations, such as race, religion, or the desire to prevent the exercise of a constitutional right." Id. The Court noted that the Seventh Circuit "has included personal vindictiveness as an improper basis for selective enforcement in the equal protection context." Id. at 277 n. 18. Because the plaintiff did not allege any improper motive, his selective enforcement claim failed, and the Court declined to consider "whether such a motive would be enough to support an equal protection claim without some other class-based discrimination." Id. In another footnote, the Court acknowledged Olech and stated, "it merely stands for the proposition that single plaintiffs may bring equal protection claims. They need not proceed on behalf of an entire group. But this statement has nothing to do with whether they must assert membership in a larger protected class. The decision does not, therefore, alter our requirement of an improper motive, such as racial animus, for selective enforcement claims." Bryan, 213 F.3d at 277 n. 17.
Six months later, a different panel of the Fifth Circuit decided Shipp v. McMahon, 234 F.3d 907 (5th Cir. 2000), a case involving a motion to dismiss a plaintiff's claim of a violation of equal protection in law enforcement, policies, practices, and customs toward domestic abuse cases. In discussing the plaintiff's "class of one" equal protection claim in light of Olech, the Court stated that, "[t]o state a claim sufficient for relief, a single plaintiff must allege that an illegitimate animus or ill-will motivated her intentionally different treatment from others similarly situated and that no rational basis existed for such treatment." Id. at 916. The Court then cited the Seventh Circuit's decision in Hilton v. City of Wheeling, 209 F.3d 1005, 1008 (7th Cir. 2000), which held that in class-of-one equal protection cases alleging unequal police protection, demonstrating that the unequal police protection had no rational basis requires a plaintiff to "present evidence that the defendant deliberately sought to deprive him of the equal protection of the laws for reasons of a personal nature unrelated to the duties of the defendant's position." Id. (quoting Hilton, 209 F.3d at 1008). In a footnote, the Fifth Circuit noted it had "yet to confront an Equal Protection challenge in the context of a class of one claim," citing Bryan v. City of Madison. The Court remanded the case, noting that "[i]f deputy Betty Shipp did foster ill-will against her daughter-in-law that ultimately influenced the level of protection Shipp received from the WPSO, Shipp may be able to establish an unequal police protection claim within the framework elucidated in Village of Willowbrook v. Olech." Shipp, 234 F.3d at 916-17. Thus, the Court acknowledged that individual ill-will may be a sufficient motive for an equal protection claim.
In 2003, the Fifth Circuit decided Beeler v. Rounsavall, 328 F.3d 813 (5th Cir. 2003), another case with facts similar to the instant case. In Beeler, a store owner whose application for a liquor permit had been delayed sued the city and city officials for a violation of his equal protection rights. The Fifth Circuit noted that the dispute was "not a straightforward equal protection claim involving a `class of one,'" but was more akin to the claims in its earlier decision in Bryan v. City of Madison and the Seventh Circuit's decision in Esmail v. Macrane, 53 F.3d 176 (7th Cir. 1995), in which public officials used their powers to delay and frustrate an applicant's efforts to obtain a liquor license. In Beeler, the plaintiff alleged that (1) the Defendants applied the municipal ordinances unreasonably in his case by frustrating his application for a permit based on a failure to comply with the ordinances, and (2) the extraordinary process he faced, including the delays from March to August 2000, violated his equal protection rights. Beeler, 328 F.3d at 816. According to the Fifth Circuit, the first claim fell within the standard equal protection analysis, which requires proof that similarly situated individuals were treated differently. The second claim, the Fifth Circuit held, was "more properly characterized as an example of selective enforcement." Id. at 817. The Fifth Circuit again noted that, to successfully bring such a claim, "a plaintiff must prove that the government official's acts were motivated by improper considerations, such as race, religion, or the desire to prevent the exercise of a constitutional right." Id. (quoting Bryan, 213 F.3d at 277); see also Allred's Produce v. U.S. Dep't of Agric., 178 F.3d 743, 748 (5th Cir. 1999). And the Fifth Circuit again noted that, though it had stated in Bryan that personal vindictiveness might be an improper motive in a selective enforcement case, it had "never specifically addressed whether such a motive would be enough to support an equal protection claim without some other class-based discrimination." Beeler, 328 F.3d at 818. Again, however, the Court did not decide the question because Beeler had not provided any evidence of personal vindictiveness or other motive.
In a fourth unpublished decision, the Fifth Circuit once again left open the question whether personal vindictiveness without some other class-based discrimination is sufficient for a selective enforcement claim. Parude v. City of Natchez, 72 Fed. Appx. 102 (5th Cir. 2003).
A. "Standard" Equal Protection Claim
In its prior Order, the Court concluded that Plaintiffs' equal protection claims are similar to the claims presented in Bryan and Beeler, and thus those decisions must guide the Court's analysis. In those decisions, the Fifth Circuit characterized the plaintiffs' claims that the municipal defendants applied ordinances unreasonably as falling with the "standard" equal protection analysis and as fitting within the "as applied" analytical framework. The Fifth Circuit in Beeler made clear that "[a]s a prerequisite to [a standard equal protection] claim, the plaintiff must prove that similarly situated individuals were treated differently." Beeler, 328 F.3d at 816. And, in Bryan, the Court also stated that, as a prerequisite to a standard equal protection claim, the plaintiff must prove that similarly situated individuals were treated differently. Bryan, 213 F.3d at 276. Bryan had failed even to allege this. Id. Nor did Bryan provide an example of any developer who had the standards applied to him or her in a manner different from the way they were applied to Bryan, and thus the standard equal protection claim failed. Id. at 276-77. The Court finds Bryan to be dispositive of Plaintiffs' "standard" equal protection claim. In its prior order, the Court held that, to the extent Plaintiffs allege a "standard" or "straightforward" equal protection claim involving a class of one, summary judgment was appropriate because Plaintiffs have not alleged or offered any evidence that anyone similarly situated was treated differently.Plaintiffs move the Court to reconsider this decision, arguing that "there is compelling evidence before the Court . . . `that similarly situated individuals were treated differently' than were Plaintiffs, and thus, that Plaintiffs have satisfied the evidentiary burden to support such a claim." Plaintiffs point to Clark's admission that he never told any other applicant that they had to comply with the parking ordinance because there was no parking ordinance. Plaintiffs assert that "[t]hose facts clearly support a claim for straightforward denial of the constitutional right to equal protection."
Plaintiffs recognize that their pleadings are not specific or detailed in alleging an equal protection claim, but argue that, in fairness to them, the Court "ought to allow them to present this claim" because the Court's May 25 Order "was the first time Plaintiffs have been put to any burden on their `class of one' or `straightforward' claim." However, the Court's prior Order granted summary judgment on the Plaintiffs' failure to allege that anyone similarly situated was treated differently and their failure to offer any evidence that anyone similarly situated was treated differently. As a matter of logic, Plaintiffs' evidence that no one else was told they needed to comply with the non-existent ordinance, even if true, does not establish that anyone else was situated similarly to Plaintiffs, nor have Plaintiffs pointed to any other specific person who was allegedly similarly situated but treated differently. Thus, while the Court agrees with Plaintiffs that they have shown that others were in fact treated differently, they offer no evidence that any of these others was situated similarly to them. As a result, even if the Court allowed Plaintiffs to amend their Complaint to include the necessary allegations, Plaintiffs' claim would fail based on the lack of summary judgment evidence. And, even if Plaintiffs were somehow misled by this Court's predecessor's order denying Defendant's motion to dismiss for failure to state a claim, as they claim, Plaintiffs' failure to marshal their evidence cannot be excused on that basis.
In Olech, the Supreme Court held that the plaintiff's allegations that the Village intentionally demanded a 33-foot easement as a condition of connecting the property to the municipal water supply where the Village required only a 15-foot easement from other similarly situated property owners were sufficient to state a class-of-one equal protection claim. Olech, 528 U.S. at 1075. In that case, the plaintiffs did allege that they were treated differently from others who were similarly situated, and that case was decided on the pleadings. Although the Court did not discuss whether the neighbors were similarly situated to the Olechs, the Court's decision turned only on whether the plaintiffs had sufficiently alleged their equal protection claim to survive a motion to dismiss; it was not a summary judgment case. Accordingly, Olech does not mandate a different result.
Accordingly, the Court declines to reconsider its prior grant of summary judgment and denies Plaintiff's motion to reconsider. However, the Court clarifies that the May 25 Order did not grant summary judgment on all of Plaintiff's class-of-one equal protection claims, but only those that could be considered "standard" as characterized by the Fifth Circuit in Bryan and Beeler — namely, that ordinances were unreasonably applied to them and not others. See Order of May 25 at 10 ("According to the Fifth Circuit, the first claim [that the Defendants applied the municipal ordinances unreasonably] fell within the standard equal protection analysis, which requires proof that similarly situated individuals were treated differently. To the extent Plaintiffs allege such a claim in this case, summary judgment is appropriate because Plaintiffs have not alleged or offered any evidence that anyone similarly situated was treated differently."). Plaintiffs' primary complaints in this case, however, based on Bryan and Beeler, are more properly characterized as selective enforcement, and the Court therefore turns to the remaining "selective enforcement" equal protection claim.
B. Selective Enforcement
As noted, in Bryan and Beeler, the Fifth Circuit divided the plaintiff's claims into two types: (1) those involving an unreasonable application of municipal ordinances, which the Court characterized as falling within the "standard equal protection analysis," and (2) those involving "the `extraordinary' process" faced by the plaintiff, including a five-month delay in Beeler and an unscheduled meeting and the hiring of consultants to review the plan in Bryan, which the Court characterized as examples of selective enforcement. Beeler, 328 F.3d at 816-17; Bryan, 213 F.3d at 276-77. The Court concluded that, "when the mayor independently sought to rezone the property and called the November 1993 unscheduled meeting, she was selectively using her powers against a single party, Bryan. This therefore looks like a case of selective enforcement." Id. at 277. In Bryan, the Fifth Circuit concluded that Bryan's failure to point to other similarly situated landowners who were treated differently was fatal under the "standard" equal protection analysis, but apparently did not view that fact as fatal to a selective enforcement claim, which it proceeded to analyze separately. Bryan, 213 F.3d at 277. Similarly, in Beeler, the Court analyzed the selective enforcement claim separately from the "standard" claim and did not hold that Beeler's failure to offer evidence that he was treated differently from similarly situated landowners was fatal to his claim. Thus, the Court concludes that Plaintiffs are not required to establish that they were treated differently from other similarly situated landowners to establish their selective enforcement claim. Thus, like the Fifth Circuit in Bryan and Beeler, the Court will proceed to analyze Plaintiffs' selective enforcement equal protection claim despite Plaintiffs' failure to specifically establish that they were treated differently from other similarly situated landowners.
The Court notes that several other courts that recognize a "vindictive action" selective enforcement claim require that the plaintiff demonstrate that he was treated differently than another who is similarly situated. See e.g., Bartell v. Aurora Pub. Sch., 263 F.3d 1143 (10th Cir. 2001); Albiero v. City of Kankakee, 246 F.3d 927 (7th Cir. 2001); Rubinovitz v. Rogato, 60 F.3d 906, 910-11 (1st Cir. 1995). In addition, if all "class-of-one" claims are to be analyzed under the standard set forth in Olech, such a requirement would appear necessary, although the strictness of its application could vary depending on whether a plaintiff alleged a "standard" as-applied claim versus a claim that he was singled out for harassment through various means.
It is clear that, to successfully bring a selective enforcement claim in the Fifth Circuit, "a plaintiff must prove that the government official's acts were motivated by improper considerations, such as race, religion, or the desire to prevent the exercise of a constitutional right." Id. at 277. What remains undecided by the Fifth Circuit, however, is whether personal vindictiveness or other personal motives unrelated to an official's duties is the type of "improper consideration" that can support a selective enforcement claim. The Fifth Circuit has declined to answer this question on at least four occasions, as recently as last year. As a result, in its May 25 Order, this Court noted that "whether the Plaintiffs can state a selective enforcement claim depends on whether the alleged motives of Clark and Davis are sufficient standing alone, and if not, whether Plaintiffs have alleged and offered some evidence of class-based discrimination." See May 25, 2004 Order at 11. The Court therefore required the parties to submit further briefing regarding whether Plaintiffs' selective enforcement claim is viable under current law and, if so, whether the contours of the right were clearly established before November 2001. See May 25, 2004 Order at 12-13.
The Court further concluded that, although Bennett v. City of Slidell appeared to be on point, to the extent it recognized a selective enforcement equal protection claim without a showing of class-based discrimination, it had been called into question by Bryan. Thus, because the Court found there to be no controlling Fifth Circuit authority, to overcome qualified immunity, the Court required Plaintiffs to demonstrate that there was a "consensus of persuasive authority" establishing Plaintiffs' selective enforcement equal protection claim before November 2001. See May 25, 2004 Order at 12-13 n. 6. Plaintiffs ask the Court to reconsider its conclusion that Bryan called into question the rights recognized by Bennett. The Court thus turns to that issue.
In its May 25 Order, this Court noted that the Fifth Circuit had decided Bennett v. City of Slidell, 697 F.2d 657 (5th Cir. 1983), a case with similar facts to this one, and had concluded that the plaintiff had a meritorious claim for violation of equal protection. Although the Fifth Circuit distinguished "standard" equal protection claims from "selective enforcement" claims in Bryan and Beeler, the Fifth Circuit did not make this distinction in Bennett. There, the court upheld liability under section 1983 against the city attorney for violations of due process and equal protection when the city attorney participated in a scheme to delay the plaintiff's liquor license and occupancy permit, and the alleged motivation for the unfair treatment was opposition to the lounge from the owner of the adjacent property, who was the city auditor. Specifically, the City required Bennett to pave his parking lot pursuant to city ordinance, although other businesses were permitted to use oyster shells for the surface of the lot. When Bennett opened his business without the occupancy permit, the city attorney and city inspector had his electricity disconnected. The Fifth Circuit concluded that "[f]or whatever reasons, be it political influence of Coerver or some other motive, Dugas [the city building inspector] singled out Bennett's occupancy application for a strictissimi application of Slidell's zoning ordinance — while ignoring the existence of similar violations in other parts of the town." Id. at 661.
Thus, Bennett appears to be the type of "standard" "as applied" equal protection claim identified by the Bryan court — unreasonable application of a municipal ordinance. As the Court noted in its prior order, Bennett could be distinguished on that basis. However, the case also resembles a selective enforcement claim, and the Fifth Circuit even referred to the City's "discriminatory enforcement" in its decision. Thus, the Court finds it somewhat difficult to classify Bennett under Bryan and Beeler. If Bennett involves only a "standard" or "as applied" equal protection claim, the Court would agree with Plaintiffs that Bryan and Beeler did not necessarily call into question the right established in Bennett because Bryan and Beeler's discussions regarding whether personal vindictiveness is a sufficient motive refer to selective enforcement claims, not "standard" as applied equal protection claims. If, however, Bennett is an example of a selective enforcement claim, then Plaintiffs are correct to point out, and this Court noted, that the Fifth Circuit did not require any class-based discrimination, but found the personal motives to be sufficient. However, if that is the case, the Court stands by its prior conclusion that Bryan and Beeler called into question whether such personal motives are sufficient to establish a selective enforcement equal protection claim in the Fifth Circuit. Thus, the Court declines to reconsider that portion of its prior Order. However, Bennett exemplifies the difficulty that flows from the Fifth Circuit's classifications and different treatment of "standard" "as applied" equal protection claims and "selective enforcement" claims in Bryan and Beeler, rather than formulating a single standard for all class-of-one equal protection claims.
In addition, to further muddy the waters, Shipp's reference to the Bryan court's statement in footnote 6 that the Fifth Circuit had never addressed whether a personal motive would be enough to support an equal protection claim without some other class-based discrimination, after stating that "[t]his court has yet to confront an Equal Protection challenge in the context of a class of one claim," could be read to mean that it is an open question in the Fifth Circuit whether personal motives could be the basis for any kind of class-of-one equal protection claim, not just claims for selective enforcement. Nevertheless, even if Bennett v. City of Slidell was called into question by later decisions, it was only indirectly, and the case has never been overruled or otherwise directly criticized by the Fifth Circuit. Thus, even though the Court declines to reconsider its prior conclusion, it will consider Bennett v. City of Slidell in its analysis.
When considering the qualified immunity issue in the context of a motion for summary judgment, this Court's task is to determine whether Plaintiffs have adduced sufficient evidence to raise a genuine issue of material fact as to whether Defendants violated an actual constitutional right and whether their conduct was objectively reasonable in light of clearly established law. McClendon v. City of Columbia, 305 F.3d 314, 323 (5th Cir. 2002). In determining what the relevant law is, a court must necessarily exercise some discretion in determining the relevance of particular law under the facts and circumstances of each case, looking at such factors as the overall weight of authority, and the status of the courts that render substantively relevant decisions, as well as the jurisdiction of the courts that render substantively relevant decisions. Id. If there is no controlling Fifth Circuit or Supreme Court authority, the Court must determine whether there is "a consensus of cases of persuasive authority such that a reasonable officer could not have believed that his actions were lawful." Id. at 329 (quoting Wilson v. Layne, 526 U.S. 603, 617 (1999)). The test is "whether the state of the law at the time of the state action gave [defendants] fair warning that their alleged treatment of the plaintiff was unconstitutional." However, "a strong consensus of authorities in other circuits is more likely to be determinative on a subject when the Fifth Circuit is tabula rasa on that subject than when the landscape in this circuit is littered with opinions expressing varying levels of skepticism." McClendon, 305 F.3d at 331 n. 12. Further, the Supreme Court has recognized that the "clearly established" standard depends substantially on the level of generality at which the relevant legal rule is defined. Id. at 330-31. Accordingly, the Court must assess whether the case law that recognized a "personal motives/vindictive action"-type of equal protection claim established the contours of that right with sufficient clarity to provide a reasonable person in Defendants' position with fair warning that their conduct would violate Plaintiffs' rights.
With regard to the proper standard to be applied to class-of-one equal protection claims after Olech, Judge Posner has recently recognized that there is a need for clarity:
In the usual equal protection case, including cases of selective prosecution, which are the converse of denial-of-permit cases such as the present one, the plaintiff is complaining about discrimination against a group to which he belongs, such as a racial, religious, or ethnic minority (though it needn't be a minority: witness sex-discrimination cases). It has long been apparent, however, that there could be a denial of equal protection even though the victim did not belong to a class larger than himself. The troubling question is what exactly the plaintiff in such a case must prove in order to make out a prima facie case. In Village of Willowbrook v. Olech, 528 U.S. 562 (2000) (per curiam), the Supreme Court held that it is enough to allege "irrational and wholly arbitrary" treatment. Id. at 565. Did the Court mean to suggest by its choice of words that the "rational purpose" test used standardly in equal protection jurisprudence for cases not involving "fundamental rights" also rules class-of-one cases? That is a frightening thought, because, as we noted in Milner v. Apfel, 148 F.3d 812, 816-17 (7th Cir. 1998), the "rational purpose" test is no longer as toothless as it once seemed, and anyone can be a class-of-one plaintiff. Or should "irrational and wholly arbitrary" be understood as a more stringent test? But if so, what is its precise meaning? And what significance should be attached to the fact that the case had been decided on the pleadings?
The Court in Olech was affirming a decision of this court in which we had said that a plaintiff in a class-of-one case has to prove "that the cause of the differential treatment of which [he] complains was a totally illegitimate animus toward the plaintiff by the defendant." 160 F.3d 386, 388 (7th Cir. 1998). Justice Breyer's concurring opinion in the Supreme Court endorsed our formulation, 528 U.S. at 565-66, but drew no direct response from his colleagues. Their silence requires interpretation.
In Hilton v. City of Wheeling, 209 F.3d 1005, 1008 (7th Cir. 2000), decided after and, we thought, consistently with the Supreme Court's decision in Olech, we restated the standard in class-of-one cases as follows: "to make out a prima facie case the plaintiff must present evidence that the defendant deliberately sought to deprive him of the equal protection of the laws for reasons of a personal nature unrelated to the duties of the defendant's position." It should be noted that "reasons of a personal nature unrelated to the duties of the defendant's position" go beyond personal hostility to the plaintiff (i.e., animus), the motive emphasized in our Olech opinion and in Justice Breyer's concurrence. Personal reasons can include larceny . . . or a desire to find a scapegoat in order to avoid adverse publicity and the threat of a lawsuit . . . — improper motives for a public official (scapegoating is not a legitimate tactic of public officials any more than stealing is), but different from personal hostility.
. . . .
Some cases from other circuits merely repeat the formula recited by the Supreme Court majority in Olech. Others, however, pin their flag to "reasons of a personal nature," or some variant, and are thus like Hilton. Still others consider the question whether after Olech a personal motive is required an open one. Only one decision is explicit that proof of a personal motive is not required, and the court that decided it later described the assertion as "dicta" and, consistent with other Second Circuit decisions that we have cited, described the question whether a personal motive is required as open.
The decisions that treat the standard as open after Olech gain support from DeMuria v. Hawkes, supra, 328 F.3d [704,] 706-07 [(2nd Cir. 2003)], which points out that Olech's suit had been dismissed on the pleadings and that all the Supreme Court held was that to withstand a motion to dismiss, the plaintiff need allege only "irrational and wholly arbitrary" treatment. The Court did not explain what precisely the plaintiff must prove to satisfy this standard. It is not as if the term "irrational and wholly arbitrary" were self-defining. The fact that the Court declined Justice Breyer's invitation to put flesh on its skeletal test does not conclude analysis of what that flesh might look like. If the issue is open, the resolution of it proposed in Hilton and like cases is not foreclosed.
I think those cases are on the right track and are not inconsistent with Olech. The Court said it had granted certiorari "to determine whether the Equal Protection Clause gives rise to a cause of action on behalf of a `class of one' where the plaintiff did not allege membership in a class or group," 528 U.S. at 564, not to establish the standard governing proof in such cases. The Court did say, it is true, that "these allegations [that the defendant was acting in an `irrational and wholly arbitrary' manner], quite apart from the [defendant's] subjective motivation, are sufficient to state a claim for relief under traditional equal protection analysis." 528 U.S. at 565. And so the cases on which I am relying may be fighting a doomed rearguard action. May the Court enlighten us; the fact that the post- Olech cases are all over the map suggests a need for the Court to step in and clarify its "cryptic" per curiam decision.See Bell v. Duperrault, 367 F.3d 703 (7th Cir. 2004) (Posner, J., concurring) (some citations omitted).
The "open" question referred to by Judge Posner is whether a personal motive is required to establish a class-of-one equal protection claim, or whether a plaintiff can establish a class-of-one claim without such a showing given the Supreme Court's decision in Olech. However, there does appear to be a consensus of persuasive authority that, if a plaintiff can establish an improper personal motive, that would be sufficient improper motive (even if not required) to establish a class-of-one equal protection claim in general. In addition, several courts of appeals have recognized an improper personal motive as sufficient to establish a selective enforcement claim specifically.
1.
The First Circuit recognized an equal protection violation on facts very similar to this case in Cordeco Development Corp. v. Vasquez, 539 F.2d 256, 260 (1st Cir.), cert. denied, 429 U.S. 978 (1976). The Court held that there was ample evidence to justify the district court's conclusion that the defendants acted maliciously and wantonly, and with illegitimate "political" or, at least, personal motives, in holding up and seeking to defeat the granting of a license, and affirmed the district court's ruling that defendants denied Cordeco's constitutional right to equal protection of the laws. In a footnote, the court noted that no party had challenged the jury instructions setting forth the equal protection claim, and thus it assumed, without deciding, the correctness of the standard. However, it recognized that the Second Circuit had held thirty years prior in Burt v. City of New York, 156 F.2d 791 (1946), that official misconduct like that found in Cordeco, even though not the systematic, class-based discrimination usually associated with equal protection violations, fell within the "purposeful discrimination" standard announced several years earlier in Snowden v. Hughes, 321 U.S. 1 (1944). But the Court noted that the paucity of cases in the years since Snowden and Burt equating equal protection violations with instances of bribery and conflict of interest by state officials suggested that the matter may not be finally settled.
Snowden v. Hughes, 321 U.S. 1, 8 (1944) held:
The unlawful administration by state officers of a state statute fair on its face, resulting in its unequal application to those who are entitled to be treated alike, is not a denial of equal protection unless there is shown to be present in it an element of intentional or purposeful discrimination. This may appear on the face of the action taken with respect to a particular class or person, or it may only be shown by extrinsic evidence showing a discriminatory design to favor one individual or class over another not to be inferred from the action itself. But a discriminatory purpose is not presumed; there must be a showing of "clear and intentional discrimination."
The Court again recognized the viability of such a claim in 1995, when it held that "in the absence of invidious discrimination or the abuse of a fundamental right, a party may establish an equal protection violation with evidence of bad faith or malicious intent to injure," and concluded that plaintiffs' alleged improper selective enforcement of lawful local regulations claim depended on proof that the person was treated differently compared with others similarly situated, and that such selective treatment was based on impermissible considerations, including malicious or bad faith intent to injure a person. Rubinovitz v. Rogato, 60 F.3d 906, 910-11 (1st Cir. 1995); see also Baker v. Coxe, 230 F.3d 470 (1st Cir. 2000) (noting that Rubinovitz illustrates the extreme "malicious orchestrated campaign" needed to surmount the constitutional threshold); Yeraradi's Moody St. Restaurant Lounge v. Bd. of Selectmen, 932 F.2d 89, 94 (1st Cir. 1994) ("[L]iability in the instant type of equal protection case should depend on proof that (1) the person, compared with others similarly situated, was selectively treated; and (2) that such selective treatment was based on impermissible considerations such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person.").
As noted by the First Circuit, the Second Circuit in Burt v. City of New York, 156 F.2d 791 (2d Cir. 1946), held that bad faith was a sufficient motive to satisfy the requirement of purposeful discrimination established by the Supreme Court two years earlier in Snowden. In that case, the Court recognized an equal protection claim by an architect who alleged that he had been singled out for purposeful discrimination in denying his applications based on "personal hostility." In 1980, the Second Circuit again specifically held that malicious or bad faith intent to injure a person is a sufficient improper motive to establish a selective enforcement claim. LeClair v. Saunders, 627 F.2d 606, 609-10 (2d Cir. 1980), cert. denied, 450 U.S. 959 (1981) ("[W]e believe that liability in the instant type of equal protection case should depend on proof that (1) the person, compared with others similarly situated, was selectively treated; and (2) that such selective treatment was based on impermissible considerations such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person") (citing Moran v. Bench, 353 F.2d 193, 194 (1st Cir.), cert. denied, 384 U.S. 906 (1965) ("[I]f defendants employed their official powers for the purpose of injuring the plaintiff, rather than to serve the proper ends of their governmental duties, plaintiff might well have a claim under the civil rights statutes.")). Similarly, in Crowley v. Courville, 76 F.3d 47 (2d Cir. 1996), the Court recognized that a selective enforcement claim could be based on malicious or bad faith intent to injure. Id. at 52-53 ("Because Crowley does not allege selective treatment based upon his race, religion, or any intentional effort by defendants to punish him for exercising his constitutional rights, Crowley must demonstrate that defendants maliciously singled out his application for relief from the parking ordinance with the intent to injure him.").
The Fourth Circuit held in 1999 that the question whether an Esmail-type vindictive action theory was viable in that circuit was an open question. Edwards v. City of Goldsboro, 178 F.3d 231 (4th Cir. 1999) ("Relying primarily on the Seventh Circuit's decision in Esmail v. Macrane, 53 F.3d 176 (7th Cir. 1995), Sergeant Edwards urges us to recognize that the Equal Protection Clause is violated when a government and/or government official selectively enforces a policy or regulation against an individual, who is not a member of an identifiable group, merely because the government and/or government official harbors animosity towards the individual. . . . The present case does not require us to resolve whether such a theory of liability under the Equal Protection Clause is viable in our circuit. . . ."). However, in an unpublished opinion, it had recognized the viability of selective enforcement actions when the defendant's motive was a malicious or bad faith intent to injure in Jetstream Aero Services, Inc. v. New Hanover County, 884 F.2d 1388 (Table) (4th Cir. 1989).
As noted, the Fifth Circuit has left the question open. Very few district court decisions have considered the issue. However, in 2000, the district court of the Southern District of Mississippi recognized the viability of such a claim in Summers v. City of Raymond, Miss., 105 F. Supp. 2d 549, 553 n. 3 (S.D. Miss. 2000).
In 1996, the Sixth Circuit expressly rejected the approach adopted by the First and Second Circuits and declined to allow section 1983 relief against a state official who selectively enforces a law or regulation out of malice, but without the intent to injure a group or punish the exercise of a constitutional right. Futernick v. Sumpter Township, 78 F.3d 1051 (6th Cir.), cert. denied, 519 U.S. 928 (1996). The Court held that the rule was unwise because of the possibility of excessive claims. Citing Rubinovitz, the Court noted that the First Circuit limits the availability of section 1983 for a regulator's malice by requiring proof that others who are similarly situated in "all relevant aspects" have not been regulated. The Court noted that strict adherence to this initial requirement allows only cases of extraordinary selectivity to state a claim, but questioned whether it was an adequate screening device because extensive discovery would likely be needed to determine whether others were similarly situated in all relevant aspects. Thus, the Sixth Circuit expressly limited selective enforcement claims to those situations in which the enforcement is "blemished by the intent to harm a protected group or punish a person for the exercise of a constitutionally protected right." In Stemler v. City of Florence, 126 F.3d 856, 874 (6th Cir. 1997), the Sixth Circuit further held that, while a plaintiff in a selective-prosecution case must demonstrate that she was prosecuted because she was the member of some group, and not merely because the state actor prosecuted her out of purely personal animosity, the availability of such a claim has never been limited only to those groups accorded heightened scrutiny under equal protection jurisprudence. Instead, a plaintiff makes out a selective-enforcement claim if she shows that the state based its enforcement decision on an "arbitrary classification," Oyler v. Boles, 368 U.S. 448, 456 (1962), that is to say, a classification that gives rise to an inference that the state "intended to accomplish some forbidden aim" against that group through selective application of the laws. The Court noted that a selective-enforcement claim is conceptually different from a claim that a statute violates equal protection because while almost every statute can be shown to have some conceivable rational basis, thereby surviving an equal protection challenge unless it is shown to discriminate against a group accorded heightened scrutiny, it will often be difficult to find a rational basis for a truly discriminatory application of a neutral law. By July 26, 2002, after Olech, the Sixth Circuit had recognized selective enforcement class-of-one cases based on improper personal motives. See Bower v. Village of Mt. Sterling, 44 Fed. Appx. 670 (6th Cir. 2002) ("[W]e conclude that Plaintiff's allegations about Mayor Meade's retaliation in his manipulation of the Village police force hiring process due to Plaintiff's family ties are sufficient to state an independent equal protection claim under Olech."). However, the Court has not found a Sixth Circuit case recognizing such a claim before November 2001.
Plaintiffs cite Berger v. Town of Mayfield, 154 F.3d 621 (6th Cir. 1998) in their supplemental briefing. However, although the plaintiff in that case alleged that he was singled out for enforcement of an ordinance, the Court decided the case on the facial challenge to the ordinance. The Court concluded that the ordinance, which required owners of smaller vacant lots to "totally cut" the lots to a height of eight inches, violated equal protection and due process rights because it had no rational basis for distinguishing between smaller and larger lots. The Court found the plaintiff's other claims, including his selective enforcement claim, to be without merit. Thus, this case does not establish the viability of a personal-motives selective enforcement claim in the Sixth Circuit before 2001.
The Seventh Circuit held in 2000 that a showing that the defendant was motivated by reasons of a personal nature unrelated to the duties of his position is sufficient (and necessary) to establish a class-of-one claim, Hilton, 209 F.3d at 1008, and had held that personal vindictiveness was sufficient to establish a selective enforcement claim in 1995 in Esmail v. Macrane, 53 F.3d 176, 178-79 (7th Cir. 1995).
The Eighth Circuit stated its agreement with Esmail in Batra v. Board of Regents of the University of Nebraska, 79 F.3d 717, 721-22 (8th Cir. 1996):
But the equal protection clause does not only protect "fundamental rights," and does not only protect against "suspect classifications" such as race. It also protects citizens from arbitrary or irrational state action. Most equal protection cases involve facial or as-applied challenges to legislative action. Absent a "suspect classification" such as race, courts review legislative actions under the highly deferential "rational basis" standard. See City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 446-47 (1985).
. . . .
Snowden confirms that the something more required of the plaintiff in this kind of equal protection case is the presence of an unlawful intent to discriminate against the plaintiff for an invalid reason. Plaintiff need not prove that another fundamental right was trampled — the right to equal protection of the laws is itself fundamental. Nor need plaintiff prove that he or she was victimized by a "suspect classification" such as race. But the discrimination must be intentional, and the government's motive must fail to comport with the requirements of equal protection. See Dickens v. Ashcroft, 887 F.2d 895 (8th Cir. 1989) (per curiam).
Judicial articulations of this concept have not been uniform, and most have focused on whether plaintiff was a member of a victimized class. But the relevant prerequisite is unlawful discrimination, not whether plaintiff is part of a victimized class. As Justice Frankfurter explained in his concurring opinion in Snowden, 321 U.S. at 15:
The talk in some of the cases about systematic discrimination is only a way of indicating that in order to give rise to a constitutional grievance a departure from a norm must be rooted in design and not derive merely from error or fallible judgment.
This distinction was also discussed by Chief Judge Posner in Esmail v. Macrane, 53 F.3d 176, 180 (7th Cir. 1995), which held that the refusal to renew a liquor license may be actionable under the equal protection clause if defendants' action "was a spiteful effort to `get' [plaintiff] for reasons wholly unrelated to any legitimate state objective."
Thus, in our view, the key requirement is that plaintiff allege and prove unlawful, purposeful discrimination. . . .
The Ninth Circuit declined to decide in 1998 whether to adopt the Esmail "malignant animosity theory" in LPI Downtown Investors 1 v. Hahn, 139 F.3d 906 (9th Cir. 1998) ("LPI argues that it should be allowed to proceed to trial under the "malignant animosity" theory espoused in Esmail v. Macrane, 53 F.3d 176, 179 (7th Cir. 1995). We need not decide whether we should adopt this theory because there is no factual basis presented to make its application relevant."). However, it had previously recognized a similar theory in Lockary v. Kayfetz, 917 F.2d 1150 (9th Cir. 1990), in which it held that landowners stated a claim for violation of substantive due process and equal protection when defendants refused to grant them water hookups on a pretextual basis. The defendants denied the water hookups on the alleged basis that there was a water shortage, but the plaintiffs raised triable issues of fact surrounding the very existence of a water shortage. The Court thus held that, though the case did not involve a fundamental right, rational basis review applied, but that the rational relation test will not sustain conduct by state officials that is malicious, irrational or plainly arbitrary. The Court concluded that, if the plaintiffs' facts were true, the refusal to grant the water hookups may have been arbitrary or even malicious conduct prohibited by due process and equal protection. In addition, the Ninth Circuit denied qualified immunity to municipal defendants in 1996 in Armendariz v. Penman, 75 F.3d 1311 (9th Cir. 1996), because Ninth Circuit "precedent established well before 1991 that a city cannot make land-use decisions based simply on its own desire to acquire a private owner's property for purposes unrelated to the city's action." Thus, the Court concluded that the plaintiffs' allegation that city officials treated them differently from other property owners by targeting them for overzealous enforcement of the housing code for a purpose unrelated to the government's interest in the activity employed to target them, namely, to acquire their properties below market value, was a violation of equal protection. The Court notes, however, that the Court characterized the plaintiffs, who were owners and former owners of low-income housing units, as members of a class of property owners whose properties the City wanted to acquire. Thus, the Court approached the issue as a classification subject to rational basis review, not a class-of-one selective enforcement claim.
The Tenth Circuit recognized an Esmail-type action, allowing a claim without a showing of class membership or violation of a fundamental right in an unpublished opinion in 1995. See Smith v. E. New Mexico Med. Ctr., 72 F.3d 138 (Table) (10th Cir. 1995); 1995 WL 749712. However, in 1996, it applied the defense of qualified immunity to such a claim, concluding that the theory was not sufficiently well established at that time. See Norton v. Village of Corrales, 103 F.3d 928, 934 (10th Cir. 1996). Nevertheless, the Tenth Circuit had adopted the theory by November 2001. See Bartell v. Aurora Pub. Sch., 263 F.3d 1143, 1148 (10th Cir. 2001) (adopting Esmail's vindictive action theory, with the requirement that plaintiff demonstrate that he was treated differently than another who is similarly situated).
2.
The Plaintiffs allege the following with regard to Davis: (1) in November 2001, Davis initiated discussion regarding the City's ordinance for establishments serving liquor within a close proximity to any school, advocating a change in the City ordinance from front door to front door distance measurement to property line to property line measurement; (2) on December 5, 2001, Davis allegedly informed Clark that he could not sign Plaintiffs' permit application due to a conflict of interest, but he eventually signed the application on December 7, 2001; (3) Davis was allegedly responsible for the delay in obtaining the permit because he was upset that Plaintiffs planned to develop the property and operate a restaurant on the property because it was next to his home and he ran a restaurant in Bandera that would be competing with Boudreaux's; (4) Davis [or Clark] allegedly told Cecil Redford, the City Inspector, to mail Plaintiffs a parking ordinance that purported to be a Bandera parking ordinance, when in reality Bandera had no parking ordinance; (5) Davis called the police and attempted to have Plaintiffs arrested for trespassing on his property; (6) Davis filed a civil lawsuit for trespass to try title and/or adverse possession against Plaintiffs, which remains pending in state court; and (7) Davis jointly participated in moving for and illegally voting on a drainage and maintenance agreement for the City of Bandera simply to further harass Plaintiffs by causing them to change and/or move a bridge connected to the gazebo on their property.
The Court concluded in its prior Order that Davis's actions relating the adoption of the alcohol ordinance are protected by immunity. The Court further concluded that it lacked sufficient information to determine whether Davis's participation in moving for and voting on a drainage and maintenance agreement was protected by immunity. In the supplemental motion for summary judgment, Davis "specifically asserts that he is protected by absolute immunity/legislative immunity for Plaintiffs' allegation that he participated in moving for and illegally voting on a drainage and maintenance agreement for the City of Bandera." Davis asserts that, on May 16, 2002, he made a motion to develop a drainage and maintenance agreement for the City due to constant flooding potential. The motion was approved unanimously and the City Attorney was directed to write the ordinance, but the ordinance was never written. Plaintiffs have not offered any evidence to contradict Davis's assertions. Accordingly, the Court concludes that Davis is entitled to immunity for his actions relating to the ordinance.
With regard to the Plaintiffs' allegations that Davis called the police and attempted to have Plaintiffs arrested for trespassing on his property and that Davis filed a civil lawsuit for trespass to try title and/or adverse possession against Plaintiffs, the Court concludes that these actions cannot form the basis for Plaintiffs' section 1983 claims because they were not taken under color of state law. Rather, these actions are part of a private dispute between Davis and Plaintiffs regarding the proper boundary line between their properties. The evidence indicates that Davis took these actions in his role as a private citizen, not as a city official. Accordingly, although these facts may provide background for establishing Davis's motive, they are not actionable under section 1983. Thus, the remaining actionable facts alleged by Plaintiffs are that Davis allegedly informed Clark that he could not sign Plaintiffs' permit application to pour concrete for their gazebo due a conflict of interest, but he eventually signed the permit three days later, that Davis was allegedly responsible for the delay in obtaining the permit by influencing Clark, and that Davis or Clark allegedly told Cecil Redford, the City Inspector, to mail Plaintiffs a parking ordinance that purported to be a Bandera parking ordinance, when in reality Bandera had no parking ordinance.
With regard to Clark, Plaintiffs allege (1) that Clark informed Susanne Reed that one parking space was required for every 100 feet of public area according to City ordinance, and that Plaintiffs would be required to have a total of thirteen parking spaces and that Clark told Eldon Reed that he would need to show on the survey plat where the parking spaces would be located, when in fact there was no parking ordinance; (2) in March 2002, Clark informed Plaintiffs that Cecil Redford would be sending Plaintiffs a copy of the Bandera parking ordinance and perhaps Clark instructed Redford to send the fake ordinance; (3) that Clark informed them that they would need a permit for the gazebo, and that after Susanne Reed submitted the application for the permit to Clark, Clark promised Plaintiffs that he would walk it through since he knew that Plaintiffs had a work crew waiting and a concrete truck on hold, but that Clark falsely represented to Plaintiffs that the Mayor was out of town and that Davis, acting as Mayor pro-tem, informed Clark that he could not sign the permit because he had a conflict of interest, and Plaintiffs did not receive the permit for three days.
3.
Although over twenty years have passed since the Second Circuit first described these types of cases as falling within "a murky corner of equal protection law," LeClair v. Saunders, 627 F.2d 606, 608 (2d Cir. 1980), the area remains somewhat murky. In 2000, the Supreme Court both clarified and confused the matter with its Olech decision, making clear that a class-of-one equal protection plaintiff can survive a motion to dismiss by alleging disparate treatment and the lack of a rational basis for the disparate treatment, but declining to further define the contours of the claim, leaving the courts unsure regarding whether an improper motive was necessary for the claim, or whether any arbitrary treatment would suffice.
Nevertheless, numerous courts have concluded in the wake of Olech that malicious or bad faith intent to injure or other personal motive unrelated to an official's duties is sufficiently arbitrary to state a claim. If Plaintiffs' allegations are true, the Court concludes that Defendants' actions would be arbitrary and without rational basis sufficient to establish purposeful discrimination for equal protection purposes under currently applicable standards. Unlike the plaintiffs in Bryan and Beeler, Plaintiffs in this case have alleged two improper motives for Davis's and Clark's actions — Davis did not want a Cajun restaurant with zydeco music and drinking next door to his home and Davis did not want a restaurant that would compete with his restaurant. From the cases described above, this Court concludes that a consensus of persuasive authority indicates that a plaintiff's allegations and proof that a defendant singled him out for oppressive treatment based on personal reasons unrelated to his official job duties is sufficient to establish an equal protection violation. Although under Olech and many of the cases in other circuits, a plaintiff must show that he was treated differently from others who were similarly situated ("in all relevant respects" by some courts), the Fifth Circuit's opinions in Bryan and Beeler indicate that this is not a strict requirement in the Fifth Circuit for "selective enforcement" type claims as opposed to "standard" or "as applied" claims, but rather that it is sufficient to establish that the plaintiff was singled out by the defendants. The Court concludes that Plaintiffs' summary judgment evidence is sufficient to meet this requirement. Thus, the Court concludes that Plaintiffs' remaining allegations, if taken as true, would establish an equal protection violation.
If it is a strict requirement in the Fifth Circuit, then the Court's prior conclusion that Plaintiffs have failed to point to any similarly-situated landowner would be fatal to this claim as well.
Whether that right was "clearly established" in November 2001 is a close question given the fact that, even today, not all circuits have agreed on the exact contours of a class-of-one equal protection claim and given the Fifth Circuit's continued reluctance to recognize personal motives as sufficient for a selective enforcement claim. Several courts of appeals had clearly recognized the viability of a class-of-one selective-enforcement equal protection claim even when the plaintiff was not a member of a class or exercising a fundamental right, so long as the defendant acted with a sufficient improper personal motive unrelated to his official duties. The Sixth Circuit, however, had clearly rejected such a cause of action. Moreover, most cases addressing the cause of action dealt with personal animosity or hostility, whereas Plaintiffs in this case do not so much contend that Defendants were out to "get" them due to personal hostility or animus. Rather, they contend that Davis acted in his own self-interest to prevent a restaurant from being established next door and in competition with his restaurant, and that Clark acted pursuant to political or personal pressure by Davis. Few courts had expressly held that illegitimate political motives or the broader category of personal motives unrelated to a defendant's official duties is sufficient. This difference in specific motives in the cases considering the cause of action, coupled with the disagreement from the Sixth Circuit and the opinion in Bryan leaving the question open in the Fifth Circuit, weigh in favor of granting qualified immunity on the basis that the law was not clearly established. However, although the continuing import of Bennett v. City of Slidell is questionable, an identical motive to that alleged in this case was found sufficient in that case, and it remains, on its face at least, good authority in the Fifth Circuit. This fact, coupled with the recognition that a selective-enforcement claim could be based on personal motives that were not based on class or exercise of a fundamental right by numerous courts of appeals and the Fifth Circuit's indication in Shipp of the viability of ill-will as a motive, however, lead this Court to conclude that the right was clearly established in November 2001 such that qualified immunity should be denied. The Court cannot conclude that a reasonable official in Defendants' position would not have known that his actions would violate Plaintiffs' equal-protection rights.
In addition, even if Plaintiffs' selective enforcement claim fails on the basis of the personal motives being insufficient, the Court concludes that Plaintiffs have established that Defendants acted pursuant to an arbitrary classification. Specifically, Plaintiffs have offered some evidence that Defendants deliberately delayed their permits because they did not want either a Cajun restaurant or any restaurants on the property because Davis did not want a restaurant that would compete with his restaurant and because Davis did not want a Cajun restaurant "in his backyard." A selective enforcement claim under the Fourteenth Amendment encompasses any "arbitrary classification," not just those entitled to heightened scrutiny. See Allred's, 178 F.3d at 748 ("[I]t must be shown that the selective enforcement was deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification. . . ."). When the claim is based on an arbitrary classification that is not subject to heightened scrutiny, however, it is subject only to rational basis review. Plaintiffs' allegations, if taken as true, would establish that Defendants acted pursuant to an arbitrary classification that would single out hopeful restaurant owners, and that this classification lacked a rational basis, since Defendants' own personal desires not to have a restaurant next door or to allow restaurants that would compete with Davis's are not legitimate bases for the classification.
Defendants assert that the delay was due solely to the fact that Plaintiffs had not submitted the requisite foundation plans. Defendants further assert that Plaintiffs failed to show that others similarly situated have been given permits despite failing to submit foundation plans. Plaintiffs, however, raise a fact issue regarding Defendants' true motive. See, e.g., Lockary v. Kayfetz, 917 F.2d 1150, 1155-56 (9th Cir. 1990). Plaintiffs assert that they were never told that they needed to submit a foundation plan to receive their permit, but were only told that they needed to comply with the fictitious parking ordinance. Further, Plaintiffs have shown that they were eventually issued the permit despite the fact that they did not submit foundation plans. Thus, the Court concludes that the fact that Plaintiffs had not submitted foundation plans is not fatal to their equal protection claim.
Accordingly, the Court denies Defendants' motion for summary judgment on the basis of qualified immunity on Plaintiff's "selective enforcement" equal protection claims.
III. Due Process
Plaintiffs allege only a substantive due process claim; they do not assert a procedural due process claim. The Supreme Court has noted that, "historically, this guarantee of due process has been applied to deliberate decisions of government officials to deprive a person of life, liberty, or property." Conroe Creosoting Co. v. Montgomery County, Tex., 249 F.3d 337, 340-41 (5th Cir. 2001) (citing Daniels v. Williams, 474 U.S. 327, 331 (1986)). The overarching objective of this doctrine is to prevent government officials from "abusing [their] power, or employing it as an instrument of oppression." Conroe Creosoting, 249 F.3d at 341. Courts generally examine substantive due process challenges to government action by asking "whether the behavior of the governmental officer is so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience." Id. (citing County of Sacramento v. Lewis, 523 U.S. 833, 847 n. 8 (1998)).
To prevail on a substantive due process claim, a plaintiff must first establish the existence of a property interest protected by the Fourteenth Amendment. Conroe Creosoting, 249 F.3d at 341. The relevant property interest is defined by Texas law. Id. Because the parties had not specifically identified the relevant property interest, the Court ordered the parties to submit further briefing specifying the constitutionally protected property or liberty interests Plaintiffs were deprived of, as defined by Texas law. In response, Plaintiffs submitted briefing contending that they have been deprived "of their constitutionally protected right to use their property as they choose — to build and open Boudreaux's on it, or to develop their land for commercial use at all." Plaintiffs also state that, during the four-month delay in receiving their permits, they were deprived of their property right to proceed with their plan to open Boudreaux's and develop the land, and that, by the time they eventually received the building permit, "they realized that trying to develop their land in the face of the plan by Davis and Clark to frustrate them would be futile."
Defendants contend that Plaintiffs were eventually issued the permit, and thus Plaintiffs' due process claim must fail. However, Plaintiffs are not alleging that they were denied the permit in violation of due process; rather, they argue that they have been denied the right to use the property as they choose and that, because of Defendants' plan to frustrate their efforts, they would be denied the ability to develop the land in the future. Unfortunately, the Court finds little guidance from the Fifth Circuit in this area. Plaintiffs cite Spann v. City of Dallas, 235 S.W. 513, 514 (Tex. 1921), for the proposition that, under Texas law, "property in a thing consists not merely in its ownership and possession, but in the unrestricted right of use, enjoyment and disposal." The Court concludes that Plaintiffs, who owned the land, had a legitimate expectation that they would be allowed to develop the land under the applicable zoning ordinances. However, the Court questions Plaintiffs' conclusory assertion that it would be futile to proceed with development of the property, despite having received the building permit, because of possible future interference by Davis and Clark. Plaintiffs have not shown that any further permit approvals or other involvement with Defendants Clark and Davis would be necessary for completing their plans. In addition, although Plaintiffs allege that they were deprived of their ability to proceed with their plans to open Boudreaux's during the four months their permit was delayed, Plaintiffs still have not come forth with any evidence that they would have been able to proceed with their plans to open Boudreaux's in light of the alcohol ordinance. Nevertheless, the Court will presume that Plaintiffs have established that Defendants interfered with a protected property interest because resolution of the issue is not necessary to dispose of the claim.
This Court has found only one Texas case considering the issue of a plaintiff's property interest in a building permit, and it held that an applicant obtains no vested right by the mere filing for a building permit. See City of Dallas v. Crownrich, 506 S.W.2d 654, 659 (Tex.Civ.App.-Tyler 1974, writ ref'd n.r.e). In addition, some courts have held that a plaintiff cannot establish a property right (or legitimate claim of entitlement) in a permit unless they show that they satisfied the requirements for the permit and the issuing authority had relatively no discretion to deny it. See Walz v. Town of Smithtown, 46 F.3d 162 (2d Cir. 1995). Some courts have held that a plaintiff is entitled to a permit upon presentation of an application and plans showing a use expressly permitted under the then-current zoning ordinance, and an arbitrary delay in issuing a permit violates substantive due process. See Scott v. Greenville County, 716 F.2d 1409, 1418 (4th Cir. 1983). Other courts that have recognized that a delay in receiving a permit based on municipal defendants' personal reasons unrelated to the merits of the permit application violates substantive due process did not discuss the property requirement. See, e.g., Bello v. Walker, 840 F.2d 1124 (3d Cir. 1988) (abrogated in part on other grounds). The Fifth Circuit case Bennett v. City of Slidell involved a due process challenge in addition to equal protection, and in that case the plaintiff complained of the delay in securing his occupancy permit. The Court noted that such occupancy permits were "routinely issued" once the necessary repairs and additions were made and an application submitted. Although the Court concluded that the plaintiff's due process rights were violated, it did not discuss the nature of the property interests, concluding only that defendants applied the zoning ordinance in an unconstitutional manner. 697 F.2d at 661. Plaintiffs in this case have not established that Defendants lacked discretion to issue the permit under the applicable law, and the summary judgment evidence indicates that, because they had failed to submit foundation plans, they could not show they were entitled to issuance of the permit.
The Court concludes that Plaintiffs' allegations, even if true, simply do not rise to the level of "conscience-shocking" behavior required to establish a substantive due process violation. See Burnham v. City of Salem, Miss., 101 F. Supp. 2d 26 (D. Mass. 2000). Plaintiffs have alleged that a government official interfered with the permitting process to benefit solely his own interests and another official was improperly influenced so that he intentionally misled Plaintiffs into believing they had to comply with a non-existent parking ordinance. As a result of these improper motives, Plaintiffs allege that Defendants delayed their permit by several months, delayed another permit by three days, and that they would continue to interfere with Plaintiffs' attempts to develop the property. Such conduct, though reprehensible, cannot be characterized as "conscience-shocking." Although substantive due process has historically been applied to deliberate decisions of government officials to deprive a person of life, liberty, or property, and its overarching objective is to prevent government officials from abusing their power or employing it as an instrument of oppression, not every instance of government arbitrariness or misconduct rises to the level of a substantive due process violation. Rather, the conduct must be "so egregious" and "so outrageous that it may fairly be said to shock the contemporary conscience." Conroe Creosoting, 249 F.3d at 340-41. Even viewing the totality of the actions that Plaintiffs have alleged Defendants took, the Court concludes that Plaintiffs' allegations are insufficient to reach this high threshold. Accordingly, the Court grants Defendants' motion for summary judgment on the basis of qualified immunity on Plaintiffs' substantive due process claim.
IV. Motion for Relief from Deadlines Trial Setting
Plaintiffs filed an unopposed motion for relief from the deadline for filing pre-trial submissions (currently August 17, 2004) and from the trial setting, based on Defendants' previous assertions to this Court that they would take an interlocutory appeal if the Court denies their motion for summary judgment on the basis of qualified immunity. The Court will not vacate the trial setting, however, based on the possibility that Defendants will take an interlocutory appeal. If and when Defendants take such an appeal, the case may be stayed pending its resolution. Accordingly, Plaintiffs' Motion for Relief from Deadline (docket no. 47) is denied. However, to allow the parties sufficient time to prepare their pretrial submissions in the event that Defendants do not take an interlocutory appeal, the Court will extend the deadline for pretrial submissions as set forth below.
V. Conclusion
Plaintiffs' Motion to Reconsider (docket no. 45) is DENIED. Defendants' Supplemental Motion for Summary Judgment (docket no. 48) is GRANTED IN PART with regard to Plaintiffs' substantive due process claim and with regard to Defendant Davis's assertion of immunity with regard to the drainage and maintenance agreement and DENIED IN PART with regard to Plaintiffs' "selective enforcement" equal protection claim. Plaintiffs' substantive due process claim is dismissed with prejudice. Thus, the sole remaining claim is Plaintiffs' "selective enforcement" equal protection claim against Davis and Clark.
Plaintiffs' Unopposed Motion for Relief from Deadline for Filing Joint Pre-Trial Order and Trial Setting (docket no. 47) is DENIED. However, the Court vacates the pretrial submission deadline of August 17 and ORDERS that pretrial submissions in the form set out in Rule CV-16(e) to the Local Rules for the Western District are due August 23, 2004. In addition, this case is set for a Pretrial Conference on August 25, 2004 at 9:30 A.M. in Courtroom No. 3, First Floor of the John H. Wood, Jr. Courthouse, 655 E. Durango, San Antonio, Texas 78206. The case remains set for jury trial on the remaining equal protection claim on September 7, 2004. So that the Court and the parties do not waste time preparing for trial unnecessarily, Defendants are ORDERED to inform the Court whether they intend to take an interlocutory appeal no later than 5:00 p.m. Monday, August 16th.