In Gerhart v. Lake County Montana, published March 18, 2011, the Ninth Circuit reversed summary judgment granted to road commissioners in a Montana County in a lawsuit that accused the commissioners of violation of the plaintiff's equal-protection rights. The plaintiff built an approach on his land so that he could reach a roadway. Ten of his neighbors had built approaches to the same roadway without permits. The county seldom denied permits for approaches; and would usually work with the landowner before doing so. The County denied the plaintiff's permit application, without working with him, and without explanation. The plaintiff presented evidence that some of the decisionmakers had personal disagreements with him.
The Ninth Circuit affirmed the summary judgment granted to the County on the plaintiff's due process claims. Due process requires that the plaintiff have a protected property interest, which means that the plaintiff has a right, rather than a mere expectation, of obtaining what he seeks. Montana law did not sufficiently constrain the discretion of local commissioners to create a property interest in the permit the plaintiff sought.
The plaintiff's equal protection claim against the commisioners was a "class of one" claim. There are three elements to a "class of one" equal protection cause of action.
The first is that he was treated differently than other similarly situated individuals. The plaintiff submitted sufficient evidence of differential treatment , both in being required to apply for a permit and in the processing of his permit, to create a triable issue of fact on this element.
The second is that the commissioners intended to treat him differently than other applicants. This prong does not require proof of ill will. The plaintiff's evidence that the commissioners singled him out due to complaints about him, and his past experiences with the county, raised a triable factual issue on this element.
The final element is lack of rational basis. The court clarified that the rational basis must be for the differential treatment, not just for the government action challenged (here, the permit denial). The commissioners stated they denied the permit because of an unconfirmed belief the plaintiff had access to his property, which the plaintiff denied. They also stated they had safety concerns about the approach, although ten neighbors had similar approaches. The plaintiff raised an issue of fact about this element as well.
The court ruled that the commissioners were not entitled to summary judgment based on qualified immunity, since when the decision was made (in 2008) the class of one theory of equal protection was well established.
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