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). And, as they have in many past cases, judges will look for other faults with class-of-one claims, avoiding the need to decide whether improper subjective motivation is a required element. Previously courts have dismissed class-of-one claims where a complaint failed to allege the existence of a similarly situated individual, for example, or where a defendant was entitled to qualified immunity for the actions taken. 

Only a grant of certiorari from the Supreme Court in a future case or changes to the makeup of the Seventh Circuit offer any hope for clarity. 

Disclosure: Contributors to this blog represented Mr. Del Marcelle in briefing and argument before the Seventh Circuit en banc and in petitioning the Supreme Court to grant certiorari.