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Equal Protection Civil Rights Claims Under 42 U.S.C. § 1983 in Colorado Courts
The equal protection clause is found in Section 1 of the Fourteenth Amendment to the U.S. Constitution and, at its base, prohibits governments from applying or passing laws that target or otherwise treat similarly situated individuals differently. Specifically, the equal protection clause states that:
No State shall make or enforce any law which shall . . . deny to any person within its jurisdiction the equal protection of the laws.
See U.S. Const. amend. XIV, § 1. Adopted and ratified as an amendment to the U.S. Constitution in 1868, the original purpose of the equal protection clause was to address the various ways the southern states targeted African Americans before and after the Civil War, including restricting their rights to hold property, to form contracts, and their ability to generally be treated as equals in the eyes of the law. See Strauder v. West Virginia, 100 U.S. 303 (1879).
Having since been expanded beyond just racial constructs, the equal protection clause is now interpreted more broadly to prohibit discrimination individuals generally, including discrimination based on sex, gender, sexual orientation, national origin, religion, and alienage. Because of the various ways in which discrimination can occur, analysis of an equal protection claim can be complex involving different types of scrutiny – strict scrutiny, intermediate scrutiny, and rational basis review – based upon the alleged reason for discrimination.
In particular, equal protection cases generally fit into one of three categories. The first category involves charges of the government singling out members of a vulnerable group, racial or otherwise, for unequal treatment. A second category involves challenges to laws or policies that effect people differently but have no rational reason for a difference in treatment. The third category involves a situation where the government acts against a blameless individual because a powerful state or local official harbors a malignant animosity toward the individual. Further, within these categories different levels of scrutiny can be applied. See Katz v. City of Aurora, 85 F.Supp.2d 1012, (D. Colo. 2000).
Broadly speaking, in addressing an equal protection claim, the presiding court must first determine whether the challenged law or policy creates a suspect class or affects a fundamental right. If the law or policy abrogates a fundamental right or establishes a suspect class, strict scrutiny is applied whereby the state has burden of establishing that the law or policy is necessary and serves a compelling governmental interest. If the law or policy affects a quasi-suspect class, intermediate review applies. And, if the law or policy does not affect a suspect or quasi-suspect class, a rational basis review controls whereby if the law or policy has a reasonable basis in fact and bears a reasonable relationship to a legitimate governmental interest it will be upheld. See Simon v. State Comp. Ins. Auth., 903 P.2d 1139 (Colo. App. 1994); Jaffe v. City & Cnty. of Denver, 15 P.3d 806 (Colo. App. 2000).
While equal protection claims can fall into different categories, a base requirement for a claim to proceed is that the challenged law must either intentionally discriminate or intentionally be applied in a discriminatory manner. That is, in the equal protection context, individuals or isolated events that negatively affect one group of people are not presumed to be a violation of the equal protection clause and a plaintiff must make some showing of intentional or purposeful discrimination to succeed on its equal protection claim. That is, laws that do not deliberately discriminate but, in practicality, effect individuals differently do not violate the equal protection clause. See Arlington Heights v. Metropolitan Housing Corp., 429 U.S. 252 (1977). See Jones v. Samora, 395 P.3d 1165 (Colo. 2016).
Importantly, the equal protection clause indicates that no “person” should be deprived of equal protection of the laws, as opposed to just “citizens.” Thus, in interpreting who is entitled to constitutional protections under the clause the U.S. Supreme Court has given it a broad construction, indicating that the clause protects all persons within the territorial jurisdiction of the U.S. without regard to difference of race, color, or nationality. That is, one has to be in U.S. territory but does not have to be a citizen of the U.S. in order to be entitled to equal protection principles. See Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886).
Similarly, while the language of the equal protection clause itself only prohibits a “State” from making and enforcing discriminatory laws, the U.S. Supreme Court has held that the due process clause of the Fifth Amendment to the U.S. Constitution, which is applicable to the federal government, still imposes equal protection requirements on the federal government. Accordingly, equal protection principles are applicable to the states as well as the federal government. See Bolling v. Sharpe, 347 U.S. 497 (1954).
Where equal protection principles are being violated, the clause itself provides a vehicle under which to seek legal relief. That is, one can sue directly under the equal protection clause alleging a law, policy, or government action violates equal protection principles and is unconstitutional; however, doing so generally only results in the law, policy, or government action being stopped or invalidated.
In contrast, 42 U.S.C. § 1983, which authorizes lawsuits where constitutional rights are being violated by state governments and actors, provides an additional vehicle to sue and enforce equal protection rights. Notably, claims under 42 U.S.C. § 1983, in contrast to claims brought directly under the equal protection clause itself, allows a prevailing party to obtain damages for the discriminatory treatment and attorneys’ fees. Accordingly, 42 U.S.C. § 1983 can be powerful claims to hold governments accountable or otherwise enforce one’s constitutional rights. The remainder of this article focuses specifically on 42 U.S.C. § 1983 equal protection claims in both Colorado state courts and federal courts.
Class of One Equal Protection Claims Under 42 U.S.C. § 1983 in Colorado Courts
While equal protection claims typically allege discrimination based upon classifications; that is, that a government policy or law improperly discriminates against people that belong to a certain group, such as a particular race or sexual orientation; the U.S. Supreme Court has held that equal protection claims may proceed where a single individual is being discriminated against. These “class of one” claims assert that an individual is being treated differently than other similarly situated individuals and there is no rational basis for such treatment.
The U.S. Supreme Court acknowledged the existence of class of one claims in Village of Willowbrook v. Olech, 528 U.S. 562 (2000). There, the Court found the plaintiff had successfully plead an equal protection violation where a local government had required a 33-foot easement to connect the plaintiff’s property to the local municipality’s water supply but the local government had only required 15-foot easements from other property owners.
The plaintiff had specifically alleged that the local government’s demand of an additional 18-foot easement violated the equal protection clause because the demand was irrational, wholly arbitrary, and was motivated by the local government’s ill will stemming from the plaintiff’s prior successful lawsuit filed against the same government.
Because the plaintiff was a single individual, however, and contrary to more traditional equal protection cases that are classification based, the plaintiff could not specifically allege membership in a broad class or group that was being discriminated against. That is, plaintiff’s equal protection claim was based on the local government acting arbitrarily and irrationally only against her.
Finding that the purpose of the equal protection clause is to secure every person within a state’s jurisdiction against intentional and arbitrary discrimination and that “the number of individuals in a class is immaterial for equal protection analysis,” the Court found that the plaintiff had sufficiently alleged that the local government’s demand for an easement was irrational and wholly arbitrary. Accordingly, the U.S. Supreme Court found her equal protection claim was properly plead and could proceed. See id. at 562-64 (2000).
Notably, because the inherent nature of class of one equal protection claims could make any government decision that affects an individual the potential subject matter of an equal protection claim, courts have been careful to limit the doctrine to avoid opening a floodgate of litigation against state and local governments.
In a case subsequent to Willowbrook v. Olech, the U.S. Supreme Court opined that a class of one equal protection claim will be much harder to prove and more likely to be dismissed where the alleged discriminatory treatment involves an exercise of discretion or an individualized determination. This is opposed to situations where there are clearly applicable standards against which deviations are readily apparent and thus a discriminatory animus will be more evident. See Engquist v. Oregon Dep’t of Agric., 553 U.S. 591 (2008).
Similarly, decisions that are inherently arbitrary or subject to resource limitations, such as where a police officer cannot give speeding tickets out to everyone based upon the general inability to catch and ticket all speeders, an equal protection claim cannot stand as there is no intentional or deliberate discrimination. See id.
At the local level, Colorado federal courts have enumerated their own requirements for establishing a class of one equal protection claim. Specifically, a plaintiff is required to allege and prove that:
(1) he or she has been intentionally treated differently from other similarly situated and;
(2) there is no rational basis for the difference in treatment.
Furthermore, a class of one plaintiff must identify others that are similarly situated in every material respect and demonstrate that the state or local government is inflicting a cost or burden on the plaintiff without imposing on those who are similarly situated. A class of one claim will fail if there is either a rational basis for the difference in treatment or a material difference between the plaintiff and other similarly situated individuals. See Planned Parenthood Ass’n of Utah v. Herber, 828 F.3d 1245 (10th Cir. 2016).
Lastly, Colorado federal courts have required that a plaintiff alleging a class of one equal protection claim must make specific allegations and specifically identify other similarly situated individuals that are being treated differently in order to adequately plead a claim. General and conclusory allegations that one is merely being treated differently from other without identifying specific examples is usually insufficient to overcome a motion to dismiss. See Comprehensive Addiction Treatment Center, Inc. v. Leslea, Civil Action NO. 11-cv-03417-CMA-MWJ (D. Colo. Jan. 31, 2013).
Equal Protection Claims Brought in Colorado State Courts Under 42 U.S.C. § 1983
In Bd. of Cnty. Comm’rs of Summit Cnty. v. Rodgers, 355 P.3d 1253 (Colo. 2015), the plaintiffs had alleged that a local board of county commissioners had violated their equal protection rights under the U.S. Constitution when the board refused to grant the plaintiffs a certificate of occupancy for their newly built home. Specifically, the plaintiffs alleged that the board had imposed additional requirements that were not applied to other homeowners. At trial, the presiding judge granted a directed verdict on several of the plaintiffs claims for not demonstrating a sufficient comparator that had been treated differently. The Colorado Supreme Court affirmed.
In Jones v. Samora, 395 P.3d 1165 (Colo. 2016), the plaintiffs had alleged that a town’s failure to follow election regulations pertaining to secrecy of ballots did not violate the equal protection clause because the violation was not intentional and there was no evidence that the violation actually led to ballot secrecy obligations. Specifically, local election regulators counted ballots without removing a tag containing numbers that could be used to identify the voter. However, there was no evidence to suggest that the regulators actual used those numbers to look up and identify voters. Accordingly, the plaintiffs’ equal protection claims could not stand and there was no evidence to show intentional or purposeful discrimination necessary to succeed on an equal protection claim.
In contrast, equal protection claims brought under 42 U.S.C. § 1983 were allowed to proceed in Charter Schools v. Adams Cnty. Sch. Dist. No. 12, 994 P.2d 442 (Colo. App. 1999), where it was unclear whether a school district was imposing a policy of prohibiting charter school board members from being employed by the charter school itself in an inconsistent manner or just imposing limitations applicable to the charter schools.
Similarly, in Miller v. Collier, 874 P.2d 141 (Colo. App. 1994), a 42 U.S.C § 1983 claim alleging deprivation of equal rights was allowed to proceed where the claim alleged the City and County of Denver was applying different criteria for weapon permits to former officers than private citizens. There, the plaintiffs had alleged their applications were handled differently than those submitted by private investigators who were current or retired law enforcement officers, that there was no rational reason for such disparate treatment, and that the City and County of Denver was acting arbitrarily and capriciously in implementing such a policy.
Equal Protection Claims Brought in Colorado Federal Courts Under 42 U.S.C. § 1983
In Vanderhurst v. Colorado Mountain College Dist., 16 F.Supp.2d 1297 (D. Colo. 1998), an employment discrimination case, the federal district court of Colorado allowed a class of one equal protection claim to proceed even though a particular class had not been alleged because the equal protection clause affords protection to an individual injured by intentional or purposeful discrimination. There, the plaintiff, a state college district employee, had alleged he was intentionally and vindictively targeted to remove him from his position.
Similarly, in Mondragon v. Adams Cnty. Sch. Dist. No. 14, Civil Action No. 1:16-cv-0174-LTB-KMT (D. Colo. Feb. 24, 2017), another employment discrimination case, a former public school district employee’s 42 U.S.C. § 1983 deprivation of equal protection rights claim was allowed to proceed where the employee was hispanic and had alleged specific facts that she had been treated differently from a similarly situated non-hispanic employee. In particular, the employee alleged that while she was allegedly terminated for becoming intoxicated on a business trip after work hours, other non-hispanic individuals had been significantly more intoxicated, including one that vomited in public, and the other intoxicated individuals’ positions had not been terminated.
In Warrington v. Board of County Commissioners of Mineral County, Civil Action No. 12-cv-01193-RBJ (D. Colo. Jan. 8, 2013), a disability related case, a plaintiff’s claim was allowed to proceed where he had alleged disparate treatment in relation to his ability to work. Specifically, the plaintiff had alleged that after he had been rendered temporarily disabled from injuries suffered during employment, he was not allowed to return to light duty work and was ultimately terminated while another employee, who also suffered an injury, was permitted to return to light duty work and eventually full time employment.
In contrast, in 211 Eighth, LLC v. Town of Carbondale, 922 F.Supp.2d 1174 (D. Colo. 2013), a class of one equal protection claim was dismissed where the plaintiff, a company that had received approval from the local government to develop property provided the development included some affordable housing units, had alleged that it was singled out for persecution when it did not build those affordable housing units contemporaneously with the rest of the development. The claim was dismissed because the plaintiff was able to present no evidence at the summary judgment stage to substantiate it was singled out or persecuted and, further, while other developers had received certificate of occupancies, there were rational distinctions for that difference. Mainly that those other developers actually had built community housing while the plaintiffs never did.
Similarly, in C.S. v. Platte Canyon School District No. 1, Civil Action No. 12-cv-03358-CMA-BNB (D. Colo. Sept. 23, 2014), a class of one equal protection claims was also dismissed where the plaintiff, a disabled special education student, had alleged that his teacher had irrationally targeted and subjected him to various forms of punishment, including pulling his desk out from under him and insulting him. Citing to the U.S. Supreme Court’s Engquist v. Oregon Department of Agriculture, 553 U.S. 591 (2008), decision, the court found that the plaintiff’s equal protection claim fell too far into the realm of discretionary decision making as opposed to a realm where there are concrete metrics to measure discrimination and sustain the plaintiff’s claim.
© 2018 J.D. Porter, LLC. Author: Jordan Porter. Denver, Colorado.