text:
Dog Park & Agility Equipment Also Fido Fountains
Dog Park Agility & Playground Equipment, Fido Fountains, available at Pet Stations Plus we can ship all items in USA and have Nationwide Installation services available. Pet & Playground products, pet waste stations, park benches, hoop jumps, obstacle courses and more visit ...
May 28 -
Rabbit Hutch
I have two hutches ready to go to their new home. They are 36" wide, 24" deep and 24" high (48" o/a height). They are made for medium/small breed rabbits and have a brooder box/area with easy outside access and a extra large access door for feeding/watering. They are built ...
May 27 -
Heavy duty doggie door
Made by Mason. Includes extra new lexan panel and hinges. This is a door that will last for years. It will accomidate a German shep. or Akita size dog or anything smaller.
May 22 -
DogTek EYENIMAL Pet Video Camera
Visit us at Pet Stations Plus
DOGTEK is excited to introduce a new concept of digital video cameras. THE EYENIMAL is the first camera in the world specially designed to be worn by animals. This is the high-tech product that all dog ...
May 12 -
Dog Containment Cages & Invisible Fence Systems
Dog Containment Cages and Invisible Fence Systems we have cages, invisible fence systems and more at Little Bitty Pet Shop or Pet Stations Plus! We carry Name Brands such as PetSafe, SportDog, Poopy Pouch, Mutt Mitt, Doggie Deposit, Doggie Dooley, Dogipot & More!
Great ...
Pooper Scooper Tools
Pet Stations Plus your one stop shop to find all your Pooper Scooper Supplies! We carry more then just pooper scooper tools and dog waste removal bags, etc. Visit us today at Pet Stations Plus!
We even have Pet Waste Stations, Invisible Fence Systems and More!
Pet ...
Pet Waste Stations, Invisible Fences, Dog Waste Bags
Pet Waste Stations & Accessories we carry most national brands of Pet Waste Stations including Doggie Deposit, Doggie Dooley, Mutt Mitt, Poopy Pouch, Dumpin Dogz & Supplies we can ship any of them anywhere in the USA & CANADA! We carry invisible fence systems, dog toys, ...
complete ten gal setup and crowntail breeding pair
Maybe willing ro to deliver upto 25mins from Trenton 45067 with gas money, text anytime. 513-435-4042
Will trade all depending what you have to offer:
Pet rats
Ferret (no supplies needed)
Sugar glider (no supplies needed)
Cat tower
Bird cage
Small animal cage
No ...
May 6 -
Steel Fork 16" seat older western saddle very good condition
This unique cowboy saddle, Steel Fork has 16" seat. Has new fleece Stirrup leathers, saddle strings & deep roper stirrups. In very good condition could ride everyday! Call 859-363-9987 Sheehy's saddle tack repair & Ssles
May 1 -
Billy cook western saddle
This older billy cook saddle had 16" seat, made in sulphur ok. In very good condition. Call 859-363-9987 Sheehy's Saddle Tack Repair &Sales
Western saddle-new
This new chocolate brown leather saddle with rust color roughout seat 16" seat , Western Rider quality made , has full quarter horse bars. Call 859-363-9987 Sheehys Saddle Tack Repair & Sales
grooming tub, mat also dog runs 9 at 4th wide by 5ft long 6th high
The grooming tub and mat is 300.00
The nine outside runs are 1200.00
The kennels are 4th wide 5ft long and 6th high
One of the kennels is bigger maybe 6th wide
I have five dog doors from mason kennels they are 100.00 each
For more info call 1-937-763-1800 or email at ...
Apr 30 -
10 gal fish tank setup and stand
I have a complete ten gal fish tank setup i no longer use, it has submersible filter/pump, gravel, decorations/plants, air bubble machine +stone, tropical food, screen lid, wood stand. It is in excellent condition holds water no chips, cracks, or leaks i am willing to trade. ...
Apr 29 -
ten gal complete tank setup
Will deliver within 25 mins from Trenton with gas money, 20mins south of dayton mall
Complete ten gal setup with screen lid, submersible pump, gravel, plants, decorations, tropical food. In excellent condition no cracks chips or leaks, I have no ...
Apr 27 -
36" HEAVY DUTY METAL DOG CAGE KENNEL w WHEELES PORTABLE / EASY TO ASSEMBLE / AOTHER SIZS IS AVAILABLE 36" AND 42" AND 48" CALL ED AT 937-746-3531
42" $210.00 0
48" $260.00 0
Apr 8 -


text:
Barnes & Noble donates books
Amanda Brack, Community Relations manager for Barnes and Noble in Jensen Beach, shows the boxes of books that Barnes and Noble donated to the children at the Hibiscus Children's Shelter. They requested a "wish list" of books from the children and then fulfilled the wishes with boxes full of books, plus some fun learning games and resource tools.
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Need Help? Call us at 1-877-710-6180.
Monday-Friday: 6am-3pm / Saturday: 6:30am-10:30am / Sunday: 7am-11am

subset: commoncrawl


text:
Annual Wellness Fair Friday at MCS
Margaretville Central School will host its Fourth Annual Wellness Fair on Friday, May 14 from 8:30 a.m. to noon at MCS. A variety of organizations will be on hand to present demonstrations relating to all aspects of wellness to both students and members of the outside community. Door prizes will also be given out.
"We're trying to deal not only with the physical, but with the mental and social well-being as well," said event co-organizers Carol Norwick and Tracy Reither.
The Cornell Cooperative Extension, an outreach system of Cornell University, will be making smoothies and will collaborate with a few Margaretville classes while the Margaretville Hospital will present a demonstration on sugar, utilizing sugar tubes to show students how much sugar is in soda beverages and other common snacks.
The Delaware County Sheriff's Office will also present information on bicycle safety and helmets, while Cooperstown-based Clark Sports Center will do informational sessions on rock climbing.
Also invited are the Arthritis Foundation, the Delaware County Drug and Alcohol Council, Belleayre Mountain, Frost Valley YMCA, The Catskill Center, and the Catskill Watershed Corp- oration.
There is a 9:30 a.m. salsa dancing demonstration scheduled with Jacinto Jorge, as well as a presentation about acupuncture by Phoenicia-based acupuncturist Julia Rose. In addition, garden club leader Lucci Kelly will present information on planting vegetable gardens and window boxes.
And, of course, a number of Margaretville Central School classes will host their own informational tables. Sixth-grade health students will present information on self-esteem while seventh-graders will host an informative display about energy drinks. High school health students will address the issues of leadership and communication.
"We'd really like to see the community step in and check it out to see what we have," Reither said. "It's not just focused on the physical; it's the overall well-being."
The Wellness Fair will be followed by the Third Annual MCS Wellness Walk/Run at 1:30 p.m. Students in grades kindergarten through six will run from the front of the school up to the traffic light on Main Street and back, while high school students will do a 3K loop around town.
"The community really loved seeing the kids coming through," Reither said of past years' runs, adding that community members are welcome to cheer on participants. "If they finish it, whether they walk it or run it, they've accomplished a goal."


text:
Old English heord "herd, flock," from Proto-Germanic *herdo- (cf. Old Norse hjorð, Old High German herta, German Herde, Gothic hairda "herd"), from PIE *kerdh- "a row, group, herd" (cf. Sanskrit śárdhah "herd, troop," Old Church Slavonic čreda "herd," Greek korthys "heap," Lithuanian kerdžius "shepherd"). Herd instinct in psychology is first recorded 1908.
mid-13c., "to watch over or herd (livestock);" of animals, "to gather in a herd, to form a flock," late 14c., from herd (n.). Related: Herded; herding.
Gen. 13:5; Deut. 7:14. (See CATTLE.)


text:
S.Africa's Mbeki to push Sudan on U.N. peace force
By Andrew Quinn
PRETORIA (Reuters) – South African President Thabo Mbeki
will visit Sudan on June 20, hoping to press Khartoum to
approve a U.N. takeover of an African Union peacekeeping
operation there, a senior government official said on Tuesday.
Mbeki's one-day visit would include talks with Sudanese
President Omar Hassan al-Bashir and First Vice-President Salva
Kiir, who is also president of South Sudan, Deputy Foreign
Minister Aziz Pahad said.
"This will be a good opportunity for the president … to
discuss progress made," Pahad told reporters.
He said Mbeki's visit would seek ways to strengthen
implementation of Sudan's Comprehensive Peace Agreement, the
deal struck 18 months ago that ended a 20-year civil war in the
southern part of the country.
However, he said Mbeki would also press Khartoum to agree
to an African Union proposal to allow the United Nations to
take over from a 7,000-member AU force that is struggling to
monitor a widely-ignored truce in Sudan's western Darfur
"You cannot manage without it (a U.N. presence)," Pahad
said. "The situation is grave."
Pahad said South Africa hoped most of the peacekeepers
would still come from African countries, which could allay what
analysts say are Sudanese fears that a U.N. force would seek to
arrest officials and government-allied militia leaders likely
to be indicted by the International Criminal Court
investigating alleged war crimes.
He said Pretoria, which itself has 437 troops in the AU
force in Darfur, believed that only the U.N. would have the
resources needed to mount an effective peacekeeping operation.
Sudan's Foreign Minister Lam Akol said discussions were
necessary on the future role of the U.N. in Sudan.
"We said that once a peace agreement is signed, we are
ready to discuss with the U.N. what role they can play, like
what we did in the south," Akol said after a meeting with
French Foreign Minister Philippe Douste-Blazy in Paris.
"We are discussing now the kind of mission — What is the
mission of the force that will come, what size, what
composition, which areas they come from," he said.
Akol said Khartoum would meet deadlines in a the
AU-mediated deal signed on May 5 with one of three rebel
factions, calling for Khartoum to present a plan to disarm the
Arab militia, known as Janjaweed, by June 22 and to complete
disarmament by the end of October.
"Yes. We intend to comply with the provisions and deadlines
that are provided for in the Darfur peace agreement," he said.
A senior U.N. official, in Sudan on a week-long mission
seeking to plan for a possible transition, said on Monday that
U.N. troops would not be able to deploy in Darfur before
January 2007, making it likely that the AU force would remain
in the country beyond its September 30 mandate.
Tens of thousands of people have been killed and more than
two million forced from their homes in fighting since non-Arab
rebels took up arms in early 2003 accusing the Arab-dominated
government of monopolizing wealth and power and marginalizing
Washington has described the violence as genocide, which is
denied by Khartoum.


text:
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text:
Any info appreciated
I have been looking for a live aboard/blue water cruiser for while now. I think I''ve logged some 10,000 miles just inspecting. I can''t tell you the number of boats that DO NOT match the advertising. Even the photos are no help at all. Seems that photos are displayed that HAD to have been taken years ago or don''t match the vessel at all!
I haven''t given up-
I would like some info on a couple of boats that I may travel to see, but can''t come up with basic info before I commit to another trip.
Can anyone give me good information on the C&C Landfall 43? (1983) There seems to be very little out there about this model.
Also, what does anyone know about the Gulfstar Sailmaster 47 (1980)I know they''re slugs in light winds etc., but what about construction and seaworthy qualities??
Iny info- pro or con- would be greatly appreciated.
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text:
Your four-year-old is about to enter a whole new world of incredible toys. Tiny pretend-and-play sets, amazing construction sets, and all kinds of activities and craft kits will keep your little one entertained for hours. These toys are so much fun, you won't be able to resist joining in!
Always be ready to play a game of Swingball with a tether and tennis ball to replace a broken ball or tether for your Mookie Swingball set. Enjoy continued physically active, outdoor fun with the best-selling Mookie Swingball line of toys! (sold separately)
Tether measures approximately 3" long.
Get in the swing with Mookie Swingball Junior! This best-selling tetherball game (complete with rackets) sets up quickly without tools and can be played on virtually any surface. With its large rackets and soft, foam ball, Mookie Swingball Junior, is perfect for beginners. The base unit provides convenient storage for all the components (adjustable pole, 2 rackets and tethered ball) and includes a handle – making it easy to carry the fun with you!
Carrying case measures approximately 18" long and once set up, the poll measures approximately 48" high.
It's a new season and that means new Our Generation is here! Let's go
camping, meet some new friends with beautiful, long hair to style, and rock
some cool spring fashions …
read more...
We're now hiring staff for our brand new locations in South Edmonton Common and Red Deer!
resumes to email@example.com
We are thrilled to announce the opening of our new Calgary location.
Details Here


text:
VILLAGE OF WILLOWBROOK v. OLECH
- 1990-1999
Grace Olech asked the Village of Willowbrook to connect her property to the municipal water supply. The Village conditioned the connection on Olech's granting of a 33-foot easement. Olech refused, claiming that the Village only required a 15-foot easement from other property owners seeking access to the water supply. Olech sued the Village claiming that the Village's demand of an additional 18-foot easement violated the Equal Protection Clause of the Fourteenth Amendment. The District Court dismissed the case for failure to state a cognizable claim under the Equal Protection Clause. In reversing, the Court of Appeals 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."
Does the Equal Protection Clause give 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?
Legal provision: Equal Protection
Yes. In a per curiam opinion, the Court held that Olech's allegations were sufficient to state a claim for relief under traditional equal protection analysis. "Our 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," stated the unanimous, unsigned opinion. Justice Stephen G. Breyer concurred.
Argument of James L. DeAno
Chief Justice Rehnquist: We'll hear argument next in Number 98-1288, The Village of Willowbrook v. Grace Olech.
Mr. DeAno.
Mr. DeAno: Mr. Chief Justice, and may it please the Court:
The question on which this Court granted the petition for writ of certiorari in this case is whether the Equal Protection Clause gives rise to a cause of action on behalf of a class of one where that claimant does not allege membership in any class or group, but asserts that vindictiveness motivated the government to treat her differently than others similarly situated.
Justice O'Connor: Mr. DeAno, let me ask you a question or two about this so-called class of one.
Was it really a class of one, or were there five people or so involved in the suit?
Mr. DeAno: I think the facts of the complaint could give rise to a class of five.
However, the cause of action was brought under this vindictive action,...
class-of-one type of equal protection claim, so I know that there's an argument in this case that there is...
Justice O'Connor: Yes, well, it wasn't in fact a class of one, and when has this Court ever said that the Equal Protection Clause only addresses classes as opposed to individuals?
Have we ever said that?
Mr. DeAno: The case that we cite... no, not directly, this Court has not said that.
Justice O'Connor: And why should we?
I mean, if the city wants to single out one citizen for some irrational action, why isn't that citizen protected?
Mr. DeAno: The citizen is protected if that class is drawn for a constitutionally impermissible reason, and we submit that vindictiveness is not a constitutionally impermissible reason, and really what it's looking into is the distinction between...
Justice O'Connor: I don't even understand the vindictiveness point.
I mean, if the city says to Ms. Olech, we won't hook you up to city water unless you give us 50 feet of land for a street, and every other person in the city, they say, fine, we'll hook you up, give us 5 feet, but to her they say 50 feet, now, what does vindictiveness have to do with it at all?
I mean, is there no equal protection claim for Ms. Olech?
Mr. DeAno: We submit that if there is an equal protection claim, it is not under this Esmail-type theory, and then...
Justice O'Connor: But isn't there a claim?
You treated me differently.
You required 50 feet from me and 10 feet from every other person in the city.
Mr. DeAno: If the reason that they sought the additional 50 feet in your example was constitutionally impermissible, to punish...
Justice O'Connor: It doesn't matter what the reason was.
Don't you have to treat citizens equally when hooking them up to city water?
Mr. DeAno: Well, I would look at this Court's case of Snowden v. Hughes, where the Court said that simply differential treatment, even if it violates State law, and in this case village policy, it is not a violation of the Equal Protection Clause unless it is done for a constitutionally impermissible reason.
Chief Justice Rehnquist: Mr. DeAno, supposing that in this case they asked 50 feet of Mrs. Olech's property and asked only 10 feet from people whose property was indistinguishable from Mrs. Olech, do you say that that would not be any sort of an equal protection claim?
Mr. DeAno: If it was done for an impermissible, constitutionally impermissible...
Justice Scalia: When is it...
Chief Justice Rehnquist: Well...
Justice Scalia: you keep referring to impermissible.
All the Constitution says is, you shall not deny people equal protection of the laws.
That's constitutionally impermissible, period.
Mr. DeAno: Justice Scalia, I would point to the Snowden case where the Court said, simply differential treatment is not a violation of...
Justice Scalia: Well, of course not, if there's a rational basis for the difference.
Mr. DeAno: And...
Justice Scalia: It becomes constitutionally impermissible when there is no rational basis.
Mr. DeAno: And that's what we're arguing in this case, that...
Justice Scalia: Oh, it's a perfectly rational basis.
We want an additional 40 feet.
We're greedy.
Mr. DeAno: Well...
Justice Scalia: It's perfectly rational, you see.
Mr. DeAno: Well, if the rational basis is to serve a legitimate government objective, for example, in this instance to upgrade and improve an existing road, then we submit that the question should be, if it's an equal protection claim it should fall under traditional equal protection analysis, with the...
Justice Ginsburg: Mr. DeAno, one problem I have with that answer is, how do we get even to know what the purpose of the government was when this case is tossed out on a 12(b)(6) motion and all we're supposed to look at is the face of the complaint, and the complaint doesn't say anything about, they wanted to widen the road.
Mr. DeAno: Well, I think as the district court found, the complaint alleges that the reason that the village sought the additional, and I think it's in this case 18 feet, was so that it could improve and dedicate this road.
Justice Ginsburg: Did the... the complaint said that?
Mr. DeAno: The complaint alleged that the reason they sought the additional space was so that they could, I believe, pave and complete the road with sidewalks and public utilities, and that's what the district court found to be a legitimate purpose.
We submit that if these facts give rise to an equal protection claim...
Justice Ginsburg: We don't have the... do we have the complaint?
Mr. DeAno: Yes.
It's at page 8 and 9 of the Joint Appendix.
It actually starts at page 3 of the Joint Appendix.
Justice Ginsburg: And where is the part where the plaintiff sets out that the State's... that the village's reason...
Mr. DeAno: At page 9 of the Joint Appendix, and it's allegation number 25, where it's alleged that they sought the property so that they could dedicate the public roadway and construct pavement, public utilities...
Justice Ginsburg: Yes, thank you.
Mr. DeAno: Okay.
Our position is not that no single individual can ever state an equal protection claim when they've been singled out for improper treatment.
Our point is that the Esmail doctrine coming from the Seventh Circuit essentially says that what we look to first is the government's motive, and our position is that motive need not be delved into if the ultimate objective or purpose is legitimate.
Justice Souter: But you would agree, then, that there may be a claim stated by an individual who is not otherwise a member of a class if the individual states that the differential treatment is not rationally related to any legitimate governmental purpose.
Do you agree with that formulation?
Mr. DeAno: Yes.
Under Snowden I agree that if it's a... the phrase used in Snowden, if it is purposeful and intentional discrimination, I think that looks into whether they've been singled out for reasons that the Constitution has found to be admissible.
Chief Justice Rehnquist: Well, supposing... again, let's have the 50-foot and 10-foot examples, that from Mrs. Olech they want 50 feet, from people identically situated they want 10 feet, and it simply is a result of a goof in the City Clerk's office.
No one had it in for Mrs. Olech, but nonetheless that's the way it comes out.
Does the fact that it was a mistake rather than a conscious thing make the equal protection claim disappear?
Mr. DeAno: I believe so.
I don't believe that you can commit an equal protection violation through error, omission, mistake.
I think there has to be, under Snowden, an intentional and purposeful discrimination.
Justice Scalia: There is certainly an intentional difference in treatment.
They're intentionally trying to get 50 feet from one person and only 10 feet from another.
Isn't that enough of a... you say that's not enough of an intent?
Mr. DeAno: Intent versus motive, if the intent is to take 50 feet, then certainly they treated her differently than others...
Justice Scalia: Right.
Mr. DeAno: when they took less than 50 feet from them.
Justice Scalia: Right.
Mr. DeAno: However...
Justice Scalia: That's not enough, according to you?
Mr. DeAno: Well, that may state a traditional equal protection claim, but then the question for the Court would be, is there a rational basis for this, and we submit that this complaint alleges a rational basis for why they asked for an additional 18 feet in this case.
Justice Souter: No, but you say it alleges a rational basis because establishing roads is a governmental objective.
Is that your answer?
Mr. DeAno: Establishing roads and also for the purpose...
Justice Souter: Well, what about the rational basis for the differential treatment?
Mr. DeAno: The differential treatment is the beginning of the analysis.
Once you find the differential treatment, I think then you look to whether there's a rational basis for that.
Justice Souter: In other words, your theory is that the government can treat people in any otherwise unjustifiably differential way so long as in isolation it has a legitimate objective for treating each individual in the way the individual is treated?
In other words, if the government says, well, I think we'll take 10 feet from this property owner, 25 feet from the property owner next door, and 50 feet from the property owner next door to him, in each instance we're going to take this land because we want to establish streets, and I take it your argument is that so long as in each instance they want to establish streets, the fact that they are intentionally differentiating in the amount of land taken is irrelevant.
Mr. DeAno: That...
Justice Souter: Is that your argument?
Mr. DeAno: No.
That situation may give rise to an equal protection claim.
However, then the question would be whether the Court can find a conceivable rational basis for why the government asked for 10 feet in one instance, 25 feet in another.
Justice Souter: Okay.
In other words, a rational basis for the difference in treatment?
Mr. DeAno: Yes.
Justice Souter: Okay.
Justice Breyer: Why isn't the complaint alleging... it may not be right, but it alleges a difference.
It says, from us they wanted 66 feet to build a road.
From everybody else in the town they wanted 15 feet, which isn't enough to build the road, and there's no basis for this distinction.
That's what I took it as saying.
Mr. DeAno: The complaint alleges those facts.
Justice Breyer: All right.
So how, then, can you say that on its face the complaint doesn't state a claim?
Mr. DeAno: Under the Esmail theory, where is... where the Court says to look at motive before you look at anything else, that's what we're saying, that that may be a traditional equal protection claim.
Justice Breyer: You may be right or wrong about that, I don't know.
The... but we took the case, I take it, to decide whether there was a... one person could state an equal protection claim, and the first thing I read is that this isn't one person, it's five.
Mr. DeAno: Well...
Justice Breyer: So now should we get into this much more difficult question about motive and so forth?
Mr. DeAno: Not whether simply one person can ever state an equal protection claim, but whether that one person can state that they were singled out because of the government's motive, vindictiveness.
Justice Breyer: Well, suppose that they're singled out because of the government's motive, and it also happens that there's no rational basis, which I take it is what Judge Posner said.
He said... he said, they have stated a claim where the only reason that anybody could give as far as the complaint's concerned for this distinction is hatred or malice or some absurd state of mind.
Mr. DeAno: Well...
Justice Breyer: I'll get his exact words, if you want.
Mr. DeAno: Well, in answer to that question, I think that...
Justice Breyer: He says, if it refuses to perform this obligation for one of the residents for no reason... no reason.
No reason... other than a baseless hatred, then it would violate the Equal Protection Clause.
Mr. DeAno: And under traditional equal protection analysis, the question then would be for the Court to search the record to see if there is any conceivable rational basis.
Justice Breyer: Well, here we have the record.
It's the complaint.
I don't see any rational basis in the complaint.
Mr. DeAno: The... we submit that the rational basis is that in this instance they had a nondedicated road over which they were now being asked to place a public improvement.
Justice Scalia: I suppose if your hatred is not baseless, it's okay.
I mean, if you really... this woman deserves to be hated, or something...
Mr. DeAno: No...
Justice Scalia: would that make it all right?
Mr. DeAno: No, it's not that if hatred is baseless, it's if the act, the legitimate... the goal of the government.
In this instance, we submit that what they were trying to do here was legitimate.
Whether their motive, then, was improper should not be relevant under...
Justice Ginsburg: Why, then, shouldn't you read this complaint to say, they wanted 33 feet to widen the road, but everybody else, they wanted only 15 feet.
Fine, if they want 33, they exercise their power of eminent domain and they pay us for the difference between 33 and 15.
If that's what the complaint is saying, we're supposed to read it liberally, then the 12(b)(6) dismissal is improper, because the complaint would not have on its face...
Mr. DeAno: On that set of facts, if they alleged a traditional equal protection claim, the next question would be, is there a conceivable rational basis for what was done, and that's why we point, and why the district court pointed to paragraph 25, which alleged that although the respondent is saying the reason they did this is because they're retaliating against me, they also supplied an allegation that explained another basis, another reason why the village wanted that 18 feet.
Justice Ginsburg: But wouldn't that reason still be inadequate if everybody else was either not asked for the 33, or paid for the difference?
Mr. DeAno: I don't think so, because the reason... if nobody else was asked for 33 feet, that would create the classification.
But once the classification is created, then the question becomes, what was the legitimate government purpose?
Was there a conceivable rational basis?
So that's where we think paragraph 25 is...
Justice Scalia: It has to be a rational basis, not for taking the 33 feet, but a rational basis for treating this person different from other people, right?
Mr. DeAno: I agree with that, and the reason that she was asked for the 33 feet is why she was treated differently.
Justice Scalia: But other people, they did not have the need for the 33 feet from other people?
Mr. DeAno: This is a unique situ... no, because in this situation we had a nondedicated road.
Chief Justice Rehnquist: But we don't know that from the motion to... from the complaint and the motion to dismiss, do we?
Mr. DeAno: Well, the complaint alleges that it had never been dedicated, and that there had never been any easement granted to any governmental body for the use of any portion of it, so...
Chief Justice Rehnquist: You say all the facts necessary to support your argument that there is a rational basis can be deduced from the complaint?
Mr. DeAno: Yes, Your Honor, and that's what the district court found, that...
Justice Souter: I think that's asking rather a lot of a court like this.
I mean, I thought we took this case to find out whether one person who was not otherwise a member of a class can state an equal protection claim, and I think perhaps we're at the point where everybody is agreeing that the answer is yes, and the argument now is whether, in response to that claim, it can be found on this record that there is a legitimate governmental purpose to which the demand was rationally related, and I'm not sure that that's really what we're in business for here.
Mr. DeAno: The...
Justice O'Connor: And it also seems that this was, as has been pointed out, dismissed on the face of the complaint.
I mean, normally you wouldn't make that motion.
You'd file an answer, and then there would be motions for summary judgment and you can look at it.
I don't know why the Village of Willowbrook took this unusual route and thought they had a right to dismiss the complaint rather than file an answer.
Mr. DeAno: Because the complaint was brought under a theory of the Equal Protection Clause recognizing the Seventh Circuit in the Esmail case, and we submit that Esmail is not a proper... is not a viable cause of action under the Equal Protection Clause.
If this complaint had alleged...
Justice O'Connor: Well, but if the complaint boils down to, they treated me differently than every other citizen when it comes to hooking up water, that's enough, and it doesn't matter if it's one person or five person... five people.
Now, go file your answer, you know.
We've answered the question, go file an answer.
I mean, why isn't that enough?
Mr. DeAno: Because the reason that the motion to dismiss was filed was because Esmail is a new theory in the Seventh Circuit, and there had been no other cases interpreting it.
Looking at the complaint, we didn't believe that it fits the...
Chief Justice Rehnquist: But you know, we don't necessarily follow a case from the Seventh Circuit.
Perhaps we wouldn't hear.
But if there's enough in the complaint to support a traditional equal protection claim, we wouldn't have to get into that.
Mr. DeAno: And that's not the theory, though, that the respondent brought this case under, and the petition that we filed asked not only that the Court consider whether a class of one could ever file an equal protection claim, it's whether a class of one who is alleging that the class was created by vindictiveness, because vindictiveness has not been a constitutionally protected interest.
Chief Justice Rehnquist: But if one doesn't need to find vindictiveness in order to say that a complaint like the States have claimed for relief under the Equal Protection Clause, it seems to me we wouldn't get into the Esmail question at all.
Mr. DeAno: That's correct, but then if it was under traditional equal protection analysis we believe that the district court took the right approach and looked for a rational basis for what the government did, and that's why the case was dismissed in the district court.
Justice Kennedy: Have we ever said... has this Court ever said that in the abstract there's some free-floating duty for the government always to act rationally?
We haven't said that.
Mr. DeAno: No.
Justice Kennedy: So the duty to act rationally applies only when the government's actions affect a certain person?
Mr. DeAno: When the government takes a position that differentiates, creates a class, then I think the question is whether... what is that class?
Is it a suspect class, or is it not?
If it's not, then the next question is, was there any conceivable rational basis to explain what the government did here?
So it can act irrationally if there's a conceivable rational... not, it can act irrationally, it can separate.
It can make classes if there's a rational basis for that.
Justice Stevens: Do you think your argument is consistent either with the... Justice Stone's opinion in Snowden or with Learned Hand's opinion in Burt?
Mr. DeAno: I think it's inconsistent with Learned Hand's position in Burt, but I think it's consistent with the Snowden decision in that in Snowden you had a single individual who claimed that he had been denied the right to be placed on the ballot in Illinois, and that he had qualified for that, and that the canvassing board maliciously, willfully, and arbitrarily refused him that right, and the Court said that despite those allegations you have not alleged intentional or purposeful discrimination, and it went on to say...
Justice Stevens: But that seems to me to suggest that the missing allegation was precisely the allegation you've got here.
Mr. DeAno: Vindictiveness?
Justice Stevens: Yes.
Mr. DeAno: Well, we cite, then, U.S. v. O'Brien and Arlington Heights and Washington v. Davis for the position that the motivation, which vindictiveness...
Justice Stevens: I understand that, but it seems to me if one confined himself to Snowden and Burt, you would lose.
These later cases you rely on I understand, but it seems to me those two cases are definitely against you.
Mr. DeAno: Snowden I think it's how you interpret intentional and purposeful discrimination, and if you read intentional and purposeful discrimination broadly in that it's enough to say...
Justice Stevens: If you read Snowden the way Learned Hand read it, then you lose, and he's usually a pretty good judge, we say.
Unidentified Justice: [Laughter]
Mr. DeAno: If you read Snowden the way Learned Hand did, yes.
What he's saying is, you only need to add the additional allegation that the reason you singled me out was because you were coming after me, and we submit that... what Esmail does is turns traditional equal protection analysis on its head, because it now says, the first thing you do is look at an allegation of motive, and if the motive is alleged to be improper, you don't have to go through...
Justice Stevens: Yes, but an allegation of motive like that can also be construed as saying there was no other rational basis that can explain this except that motive, so it's really the functional equivalent of an allegation that there was no rational basis for what you did, which tends to be consistent with the notion that the city later, came round later and said 15 feet's enough.
Mr. DeAno: When the... what would give rise to the rational basis inquiry is the allegation that I've been treated separately or differently, and it's a bad motive.
Then you go to rational basis, and that's where we submit that this complaint, as the district court found, alleges a rational basis because the reason that they requested it is explained by the fact that this was a nondedicated, unimproved road.
They wanted to do all of this...
Justice Stevens: It was still nondedicated when they said 15 feet's enough.
Mr. DeAno: That's true, and at that point they made a decision that we can't... although it would have been more efficient to do all of this at once, to widen and improve the road, and put pavement there, if she's going to object to it, they consulted the village attorney and the village attorney said, if all you want to do is put the water main in, then 15 feet would be sufficient.
Justice Scalia: I always... you're talking about rational basis as though it means actual rational basis.
I had always thought that our rational basis test means a conceivable rational basis.
We don't look to whether the State actually had this rational basis in mind.
It might have.
This is a basis that we invent in our own imagination, and since that could have supported it, there's a rational basis, correct?
Mr. DeAno: I agree.
Justice Scalia: And you would assert that that conceivable rational basis will overcome a claim of a violation of equal protection even when you can bring in evidence to show that, oh yeah, that might have been a rational basis, but in fact they were out to get me.
Mr. DeAno: Yes.
Justice Scalia: They did not use that rational basis.
They were out to get me.
You would say still no equal protection violation?
Mr. DeAno: Yes, and under U.S. v. O'Brien and Washington v. Davis, once there is a legitimate purpose, there's no need to look into...
Justice Scalia: You're beginning to talk subjectively again.
Once there is a... once there is a conceivable legitimate purpose.
Mr. DeAno: Okay, conceivable, any imaginable by the court, even if it's not pled in the complaint, but we believe that this complaint does plead that.
Justice Ginsburg: Can you... does that carry as far as saying, yeah, we conceived it, but it has been shown on this record that that was indeed not the basis?
Mr. DeAno: If it can be conceived, then there's no reason to look into the record for why they might... why that motive might not have been the correct motive.
Justice Ginsburg: So this is a tempest in a teapot, is essentially what you're saying.
Yeah, you can have a class of one, but the court can always dream up a rational basis for what government does, and so, end of case.
Mr. DeAno: Not always.
Not always dream up a rational basis, but when a complaint like this alleges facts that give rise to that, then certainly, and I agree that it's what can be conceived, not necessarily what is found, but here we have the allegation in the complaint.
Justice Kennedy: And if the reason that government was out to get the person was because of race, there's a cause of action?
Mr. DeAno: There is.
Justice Kennedy: And is that because it's a suspect class, or there's a constitutional right involved?
Mr. DeAno: Because there's a suspect class, because they've differentiated because of...
Justice Kennedy: Suppose they're discriminating allegedly because of the exercise of the constitutional right?
Mr. DeAno: That would be, but that's... and that is not the theory that has been pled in this case.
The theory that has been pled is what our argument is against, that Esmail says that vindictive action can give rise to an equal protection claim when you allege differential treatment and vindictiveness as the cause for it, or the motivation for it.
Justice Stevens: Yes, but the vindictiveness allegedly was in retaliation for filing a lawsuit, which I assume she had a statutory right at least to file.
Mr. DeAno: That's correct, but then we... I think we would look at this case under traditional equal protection analysis, and the question would be, is there any conceivable rational basis...
Justice Stevens: Well, why is filing... if... why, if the vindictiveness on one hand is caused by hostility to race, another case it's caused by hostility to the fact that the... a lawsuit was filed.
You would say they're different cases.
Mr. DeAno: They would... I think they require... they would be traditional equal protection claims, not...
Justice Stevens: Well, that's what... why isn't this the second?
Mr. DeAno: Because they have alleged that they are proceeding under Esmail, which is not... which is a vindictiveness...
Justice Stevens: Well, they allege that the vindictiveness was caused by the fact that they filed this earlier lawsuit.
Mr. DeAno: That's correct.
Argument of Irving L. Gornstein
Chief Justice Rehnquist: Thank you, Mr. DeAno.
Mr. Gornstein, we'll hear from you.
Mr. Gornstein: Mr. Chief Justice, and may it please the Court:
We have explained in our brief why we believe this is not an appropriate case for resolving the class-of-one issue, but if the Court reaches the question, it should hold that a class-of-one claim is subject to the same analysis as other equal protection claims.
That means that unless there is a fundamental right, or a suspect classification involved, rational basis review applies, and under rational basis review the relevant inquiry is an objective one into whether there is any conceivable rational basis for the alleged difference in treatment.
Justice Stevens: What if they had a class of litigants against the city, and they had a rule that anybody who sues the city, will get disparate treatment, 33 feet instead of 15 feet, and that's their policy.
Would that be an equal protection challenge?
Mr. Gornstein: Justice Stevens, it would.
It would be... it would implicate the fundamental right which this Court has recognized...
Justice Stevens: Why isn't that this case?
Mr. Gornstein: Well, it is this case, and that's one of the reasons that we told... suggested to the Court...
Justice Stevens: Oh.
So you agree with respondent, then?
Mr. Gornstein: that we suggested to the Court that it not examine the class-of-one issue, because the class-of-one issue really arises when there is no suspect classification and no fundamental right involved, but this happens to implicate the fundamental right to file a lawsuit, which this Court has recognized as being protected by the First Amendment as a component of the right to petition for a redress of grievances.
If the...
Justice Ginsburg: Mr. DeAno said that's not the theory of the plaintiff's complaint.
They didn't make retaliation for filing the litigation the basis for the lawsuit.
Mr. Gornstein: They actually did, in their factual allegations, allege that the basis for the retaliation was the filing of the lawsuit, and that is in Joint Appendix 10, allegation number 27.
Chief Justice Rehnquist: Well, what if you decide that you're going to treat this person differently because they've filed a lawsuit against the village, but it turns out there's a perfectly rational basis for treating them differently?
Mr. Gornstein: Mr. Chief Justice, in that case, when you have a First Amendment right at issue, the sequence of events is dictated by this Court's decision in Doyle, which says that the plaintiff has the burden to show that a motivating factor in the decision was the exercise of First Amendment rights and at that point, if the plaintiff establishes that initial burden, then the burden shifts to the defendant to show that the same decision would have been reached even the... even in the absence of the consideration of the protected activity.
But where there is no fundamental right at stake, and that is a hypothesis of the question presented, the only question is whether there is a conceivable rational basis for treating the plaintiff differently from others and, if there is, the inquiry ends.
You do not inquire at all into the actual subjective motivations for the decision.
Chief Justice Rehnquist: So under the Doyle approach, my hypothetical, would a court say, yes, this is a prima facie denial of equal protection because of 50 feet versus 10 feet, and the respondent has come up with a perfectly good explanation of why, but we also find that the motive for doing it was not the rational basis, that they simply wanted to get this person because they filed a lawsuit, and kind of dug up the rational basis later.
Then what happens under Doyle?
We would have done it anyway, so...
Mr. Gornstein: This Court recently issued a per curiam decision this term, and I believe it's called Le Sage, in which the government took the action on the base of race and... in part, and the government was able to show to the satisfaction of the Court that the same thing would have occurred even absent the consideration of race, and in that event there is at least no award for past conduct.
Justice O'Connor: But you have to get beyond the dismissal of the complaint to reach that.
Mr. Gornstein: That's correct.
Justice O'Connor: Le Sage was hardly a dismissal of the complaint situation.
Mr. Gornstein: That's correct.
I'm just talking about a hypothetical scenario where there's a First Amendment claim raised, and then it would be... it would usually require a trial to determine whether, in fact, the actual... the defendant would have taken the same action in any event.
Let me...
Justice Kennedy: Should we begin our opinion in this case by saying there is no constitutional right for similarly situated persons to be treated equally under the law?
Is that our opening line?
Mr. Gornstein: There is a constitutional right for people who are being treated equally... who are similarly situated, in fact, to be treated equally, but how the Court approaches that question depends on whether there's a suspect classification or a fundamental right involved.
If neither of those are involved, then the relevant inquiry is, is there any conceivable rational basis for treating differently plaintiff from the persons that the plaintiff alleges to be similarly situated.
Justice Kennedy: Is that necessary to reduce the number of suits filed in Federal court, to reduce the intervention of courts in routine governmental actions?
Mr. Gornstein: That is the...
Justice Kennedy: Are we compromising the basic principle by saying that?
Mr. Gornstein: No, because I think the basic principle that the Court has established is... under rational basis review is a baseline of protection, but only against those classifications, or those different... intentional differences in treatment that lack any conceivable rational basis...
Justice Breyer: Well, why...
Justice Kennedy: If you're a county council and the board of commissioners said, we're going to bury this application because we just don't like this guy, you tell them that that is constitutionally permissible?
Mr. Gornstein: I do not.
I tell them that there should be a conceivable rational basis for that decision, and that that is not an impermissible way to proceed.
Chief Justice Rehnquist: And that you would propose to conceive one.
Unidentified Justice: [Laughter]
Mr. Gornstein: But when the case comes to court, then the question is whether there's a conceivable rational basis and, if there is under this Court's decisions in Fritz and in Beech, then the inquiry is at an end.
Justice Breyer: What about in every case of defamation, libel, intentional torts committed by a State officer, breach of contract, where let's assume the State's wrong in all those cases?
Now, those are all illegal activities, so I don't know what the rational basis would be.
Now, does every one of those actions become an Equal Protection Clause action?
Mr. Gornstein: No, because there are two components to the equal protection cause of action.
First, as Snowden v. Hughes had said, there has to be an intentional difference in treatment between the plaintiff and others who are alleged...
Justice Breyer: Well, there is in every such case.
Mr. Gornstein: And then, at that point, then all... the inquiry is really a very simple one into whether there is any conceivable, rational basis...
Justice Breyer: And what could there be in cases where the government's committed an intentional tort, or intentionally breached a contract?
Mr. Gornstein: Because there... I could hypothesize ones in particular cases that may come up.
For example, in this case let's put aside the First Amendment for a moment.
It may be that somebody could establish that there was... somebody was out to get somebody, but if there was a conceivable rational basis such as the one that the petitioner is suggesting here, that unlike every other person in this town, this person is asking for access for water from a nonpublic road, that could supply a conceivable rational basis for treating that plaintiff differently from everybody else in the village.
Justice Kennedy: And the result is otherwise if race is the basis, because of history, the core principle of the Equal Protection Clause, or why?
Mr. Gornstein: Yes.
In certain limited situations the Court has concluded that motive inquiries are essential to protect against the most invidious forms of discrimination and protect the most fundamental rights, but when those rights are not implicated, then rational basis review applies, and that is supported, really, by three related...
Justice Stevens: Let me just interrupt with one question.
Why does the fact that a nonpublic road is involved explain the disparate treatment between 15 feet and 33 feet?
How can that possibly explain that?
Mr. Gornstein: Justice Stevens, it may or may not explain it.
I suppose the possible...
Justice Stevens: It has to be a rational basis for...
Mr. Gornstein: It does, and the possible explanation...
Justice Stevens: and on its face it isn't rational.
Mr. Gornstein: The possible explanation would be that the city has a policy for some reason that it does not want to furnish access to people for water over roads that are not their own.
Justice Stevens: That policy is surely not disclosed in the complaint.
Mr. Gornstein: I'm... Justice Stevens, I wasn't suggesting that the complaint itself doesn't state a claim.
It may or may not state a claim.
I think at this stage of the proceedings that's not the question before the Court, whether this complaint does or doesn't state a class-of-one claim.
The question is whether a person in a class of one can state a claim.
I think all the Court has to say if it gets to this question is that yes, a person in a class of one can state a claim, but unless... if there's no fundamental right or suspect classification involved, only by showing there's no conceivable rational basis for treating the plaintiff differently from others who are similarly situated.
Justice Ginsburg: So the complaint has to conjure up every conceivable basis and negate it?
That's what the pleading is supposed to look like?
Mr. Gornstein: I would not say that, Justice Ginsburg.
I think the complaint can state the facts that show that they are apparently being treated differently from other... others who are similarly situated.
Were it not for the one paragraph in the complaint the petitioner mentioned which suggested a possible rational basis, the complaint clearly would have stated a claim in our view, but it is by raising in the complaint itself a possible rational basis that the issue arises as to whether you can dismiss the complaint here.
Argument of John R. Wimmer
Chief Justice Rehnquist: Thank you, Mr. Gornstein.
Mr. Wimmer, we'll hear from you.
Mr. Wimmer: Mr. Chief Justice, and may it please the Court:
Before I get into the merits of the arguments that have been made on behalf of the Village of Willowbrook, I'd like to address the matter of what questions are properly before this Court in this case.
As the Court is aware, there were two questions raised in the petition for a writ of certiorari, the first being whether the Equal Protection Clause gives rise to a cause of action on behalf of a class of one where the plaintiff has not alleged membership in a vulnerable group, but rather that ill will caused the government to treat her differently from others similarly situated.
The second question was whether the government conduct alleged in Mrs. Olech's amended complaint meets the standard to state a cause of action on behalf of a class of one, assuming that the Equal Protection Clause protects such individuals.
Now, this Court in this case granted certiorari limited to question one, and what that means, I believe, is that arguments that fall within the scope of question two are not properly before this Court because this Court has in effect denied certiorari on question two, and we've cited the case of Missouri v. Jenkins from this Court, where there was a limited grant of certiorari on one of two questions, and in that case, which was a school desegregation case, the State made arguments that really fell within the scope of the question which had not been... on which certiorari had not been granted, and this Court said that those questions would not be considered.
Chief Justice Rehnquist: Well, but the discussion of question 1 may involve some... you know, rather than a purely hypothetical discussion might involve discussion of question 2.
That's not to say question 2 is before the Court, but I don't know that you can totally separate them.
Mr. Wimmer: I don't know that they can be totally separated.
I know in Missouri v. Jenkins the second question was whether the tax increase ordered by the district court in the school desegregation case violated Federal-State comity.
The first question was whether the remedy was too broad, and when the State tried to argue that it violated Federal-State comity because the remedy was too broad, this Court indicated that that wouldn't be within the scope of the grant.
I think in this case when the village argues that Mrs. Olech's specific amended complaint failed to sufficiently allege that there was not a rational basis related to a legitimate government interest, that doesn't go to whether the Equal Protection Clause protects a class of one.
That falls within question 2, whether this particular amended complaint meets the standard to state a cause of action for violation of the Equal Protection Clause, assuming that that clause protects such individuals.
Justice Breyer: But as to question 1, it talks about a class of one, and the complaint itself reveals that they're a class of five, at least, so wouldn't it be a totally hypothetical advisory opinion to answer question 1 in the context of a case that doesn't raise it?
Mr. Wimmer: Well, I don't think it would be an advisory opinion necessarily, because although there are five people involved, I think the principal the class of one... the distinction is between a class of one and a vulnerable group.
Whether there's two, or five, or one, I think the same considerations would apply if it's not a vulnerable group, as stated by the village.
Justice O'Connor: Mr. Wimmer, did you represent Ms. Olech...
Mr. Wimmer: Yes.
Justice O'Connor: at all times below?
Mr. Wimmer: Yes, Your Honor.
Justice O'Connor: And you drafted the complaint?
Mr. Wimmer: I did.
Justice Ginsburg: Then why didn't you include the theory that Mr. Deano suggested may have been okay, that is, it was retaliation for exercise of their First Amendment right to sue the village?
Mr. Wimmer: Well, Your Honor, I did state in paragraph 27, and this is on page 10 of the appendix, that the defendants treated plaintiff Grace Olech and Thaddeus Olech, Howard Brinkman, and Rodney C. Zimmer and Phyllis S. Zimmer differently from other property owners in the Village of Willowbrook by demanding the 33-foot easements and the 66-foot dedicated street as a condition of the extension of the water main because of the ill will generated by the State court lawsuit, and in an attempt to control storm water drainage in the vicinity to the detriment of plaintiff Grace Olech and Thaddeus Olech and other plaintiffs in the State court lawsuit by the use of ditches and swales along Tennessee Avenue.
So when the village says that the complaint alleges that they wanted the 33 feet for all these good purposes, that's not what it alleges.
It alleges they made those demands out of ill will caused by the lawsuit.
The paragraph cited by the village simply says they sent the proposed easement which would give them the right to do all those things, but the complaint does not allege that that is why the village made those demands.
Chief Justice Rehnquist: What if we had a somewhat different situation here, where we're not talking about the demand for easement dedication, but whether the village is going to contract with a particular person, or take bids from various persons to do the paving in this area, and the village says, well, one person we're not going to contract with is X, because X has a reputation for suing everybody, for just being a very litigious person constantly taking advantage of his right to petition.
Is that impermissible under the First Amendment?
Mr. Wimmer: Well, if the lawsuit that was brought was meritorious, I think it would be.
I think if there had been a lot of... and I think about the cases cited by the government in this case, California Motor Transport, and the other cases cited by the government which indicate that if the lawsuit is not... doesn't have probable cause, or if it's a harassing lawsuit, or something like that, then the First Amendment implications aren't there.
In this case, the State court lawsuit, we prevailed and got a judgment against the Village of Willowbrook, so...
Chief Justice Rehnquist: So you say that the First Amendment does protect someone who the county or the village simply doesn't want to deal with because they have a propensity to litigate at the drop of a hat.
Sometimes they win, sometimes they lose.
Mr. Wimmer: Well, I think if... it would come down to what the propensity to litigate in cases that are not valid, that would probably be a proper consideration for the village to take into account.
That's not what happened here, though, because the one case was a valid case and went to judgment.
Justice Breyer: What was your theory?
If we go to this other issue, I can see two situations.
1, a plaintiff says, there is no rational basis conceivable, and they're motivated by ill will.
Situation 2 is, the plaintiff says, they had a brilliant reason, a perfect reason, an outstanding reason.
However, they were motivated by ill will in reality.
Now, does this case raise issue 2?
Mr. Wimmer: I don't believe so, Your Honor.
We alleged in the complaint that the decision was... and this is on page 10... wholly... strike that... irrational and wholly arbitrary, and we've also alleged that it was based on ill will and I think that, as Judge Posner said in the court of appeals opinion for the Seventh Circuit, the tincture of ill will will not render government action unconstitutional if it would have happened anyway.
What we have here is a situation where it was irrational because the village attorney admitted that they didn't need a 66-foot street dedication to install and maintain a water main, and they didn't demand it of other people in the village.
With respect to the argument that Mrs. Olech's situation is somehow unique, there's no basis in the complaint to conclude that that is the case, and that there are not other nondedicated streets in the village.
Under Hishon v. King & Spaulding this Court is to construe... or all courts are to construe complaints favorably to the plaintiff and reach all reasonable inferences in favor of the plaintiff, and what the village is asking you to do is the exact contrary, to assume that this was the only dedicated street and make conclusions on that basis.
Justice O'Connor: Well now, if a complaint were to allege that the city took some... singled out the plaintiff for some negative action solely because the city didn't like the person for some reason, the mayor hated her, and it turns out, though, that there is a perfectly rational basis that the Court can think of for the mayor's action, is there a lawsuit just because the mayor, in his heart of hearts, hated the plaintiff and wanted that outcome, even though we can derive a perfectly rational basis?
Mr. Wimmer: Probably not, Judge, although this Court did say in the City of Cleburne v. Cleburne Living Center that some objectives, such as a bare desire to harm a politically unpopular group, are not legitimate State interests.
I think in this case, where there was no conceivable rational explanation for the city's disparate treatment of Mrs. Olech, and she's alleged that they were out to punish her for filing a meritorious lawsuit against the village, that there's enough.
But I do think that this whole concept of whether the particular amended complaint in this case adequately states a cause of action is not properly before the Court.
Justice Kennedy: I think you know what's bothering us, that if we accept your theory, then in those thousands, tens of thousands of zoning decisions where local personalities are involved and difficult discretionary judgments are made, it's going to always be followed by a lawsuit of ill will.
And we simply are concerned about having the Federal courts become the ultimate policeman of the zoning process.
Mr. Wimmer: Your Honor, I think there's sufficient protection from municipalities or government in the fact that the plaintiff has to show that there was no rational basis, no conceivable rational basis related to legitimate government interests for the conduct.
That's going to eliminate a lot of frivolous lawsuits against municipalities.
If a municipality can have an affidavit, we did it for this reason, and totally logical and rational, and advances a legitimate government interest, the case is over.
Justice Scalia: They don't have to say that.
They don't have to say we did it for this reason.
They have to say, we might have done it for this reason... right?
Mr. Wimmer: That's correct.
Justice Kennedy: So in this respect you're in agreement with the government's theory of the case?
Mr. Wimmer: I agree that a rational basis related to a legitimate government interest for the disparate treatment would indicate that there was no equal protection violation.
Justice Kennedy: A conceivable basis.
A conceivable basis.
Mr. Wimmer: Based on the facts that are before the Court, yes.
I don't think there is one here, because that also runs into the rule that in Hishon v. King & Spaulding, if there are any set of facts consistent with the complaint by which it could be concluded that there was no rational basis related, or no conceivable rational basis related to a legitimate government interest, then the case should go on.
With respect to the question on which this Court granted certiorari, whether the Equal Protection Clause protects a class of one...
Justice Scalia: Do we have a class of one?
What's your position on that?
Mr. Wimmer: That the Equal Protection Clause... oh, do we have a class of one in this case?
That's the way it was argued.
There certainly are five people, as the government has pointed out, that filed the State lawsuit, and they were all treated differently by the Village of Willowbrook.
Justice Scalia: This objection that a class of five is not a class of one, was this made at the petition stage in the opposition to certiorari?
Mr. Wimmer: I don't believe so.
I did object to the presentation of some questions, but not that.
With respect to the question of whether the class of one is protected...
Justice Stevens: May I ask you just a variation...
Mr. Wimmer: Yes.
Justice Stevens: of Justice Scalia's question?
In the trial proceedings, was there an objection to the complaint made on the basis that there was only a class of one involved?
Mr. Wimmer: No.
As a matter of fact, at the district court the Village of Willowbrook acknowledged that a cause of action for violating the Equal Protection Clause could be brought on behalf of a class of one.
They took that position but argued that...
Justice Stevens: Because that was a law of the Seventh Circuit?
Mr. Wimmer: Right.
They did not say we want to preserve another issue for appellate review.
With respect to the question on which the Court granted certiorari, I think it's important to recall that governments derive their power from the consent of the governed, and that the legitimacy of government action is based on that.
In our country the consent of the governed is set forth in the written Constitution, and I think in interpreting the language of the Constitution, the language of that grant, it's important to adhere to the language that the people have chosen to use, especially when construing a protection that the people saw fit to secure for themselves, and that no court should engraft limitations on the application of a protection like that that the people didn't see fit to put in it, because then what would happen to the consent of the governed, and the legitimacy of the exercise of government power?
As Justice Story said in Martin v. Hunter's Lessee, which I cited in my brief, the words are to be taken in their natural and obvious sense, and not in a sense unreasonably restricted or enlarged.
With that background, if one looks at the language of the Equal Protection Clause, nor shall any State deny to any person within its jurisdiction the equal protection of the laws, I think there's no basis to conclude that that provision should be limited in its application to someone who says I'm being discriminated against because of membership in a group or class.
Justice Ginsburg: And what is your answer, Mr. Wimmer, to the argument that you have pled yourself out of court by making your statement of the class of one or five but then including in the complaint a rational basis for seeking more land, that is, they wanted to make the street?
Mr. Wimmer: Well, I don't think I did include in my complaint a rational basis for the Village of Willowbrook to treat Mrs. Olech differently from other property owners.
When one decides whether there's a rational basis related to a legitimate government interest, it should not be considered in the abstract, and the village can always say, we wanted to build a road here.
The question is, was there... and in the case I cited, Sioux City Bridge Company, where one taxpayer's property was assessed higher than everybody else's, the government can only say, we had a rational basis to assess his property 100 percent.
That's what it was worth.
You have to look, is there a rational basis related to a legitimate government interest for the difference in treatment?
They may well have wanted a road, but if they didn't demand of everyone who wished to have municipal water a road, then there was no rational basis to treat her differently from everybody else in the city by demanding a road.
Justice Stevens: May I ask you a hypothetical about a concession you made earlier?
Supposing you had a complaint that alleged vindictive discrimination, 33 feet because they hated the person, and the city filed an answer and said yes, that's the real reason we did it, but our lawyer has told us we might have done it for this rational reason.
We didn't do it, but we might have.
Who would win in that case?
Mr. Wimmer: Well, I think...
Justice Scalia: Is there a stupidity clause in the Constitution...
Unidentified Justice: [Laughter]
Justice Scalia: somewhere we could get them on, or something?
Mr. Wimmer: Well, I think one could argue convincingly in light of Your Honor's language in the Cleburne case that if the city admitted that they were doing it to punish a person, a politically unpopular person or group, that the plaintiff would prevail.
That's not a legitimate government interest.
This Court has stated...
Justice Stevens: And it's not a totally hypothetical question, either, to respond to my good colleague, because sometimes you take depositions before the answer is filed, and the depositions make it perfectly clear that was the real purpose, but then they conceive of a legitimate purpose later.
Mr. Wimmer: Well, I think, as I say, that a convincing argument can be made under Cleburne that if they made that concession, that it was not... it was what this Court has said to be not a legitimate government interest that motivated them to take that action, that there would be an equal protection...
Justice Stevens: Why, if they only make the concession?
Justice Scalia: Maybe there's a presumption...
Why not litigate it, then?
If the fact that they did it out of maliciousness should justify judgment for the plaintiff, then we should litigate the point, but why should we just allow it when they admit it?
Mr. Wimmer: Well, that's a good question, although in this case...
Justice Scalia: It's a very good question.
Unidentified Justice: [Laughter]
Justice Scalia: You want to throw us right back into the pool that we thought we had jumped out of.
Mr. Wimmer: Well, in this case, where the complaint does not show a rational basis related to a legitimate government interest for the disparate treatment, I think it is proper to inquire into the motive, however, Judge... or, I'm sorry, Your Honor... because I have to show that there was a denial of equal protection.
That connotes purposeful conduct on behalf of the village, so I think that an allegation that they were retaliating against them for filing a lawsuit shows that it was not simply uneven law enforcement, or an accidental disparate treatment, but an...
Justice Kennedy: I suppose the way Judge Posner's view could be explained is that there is a presumption that the government acted for a reasonable purpose, and if there's specific evidence to the contrary, then the case can proceed and it just becomes a pleading case.
Mr. Wimmer: Well, yes.
At this point I have alleged that it was irrational.
Justice Breyer: I thought you had both.
Mr. Wimmer: And...
Justice Breyer: No conceivable rational purpose, and animus.
Mr. Wimmer: I believe I do, Your Honor.
I allege...
Justice Breyer: And if you get rid of the former, I guess we have a Federal lawsuit even if the land was set aside as coastal land, you know, a wonderful reason, has the most beautiful view in the State, but it turns out, it's alleged, that the real reason he did it is, he didn't like the landowner.
I mean, once you get rid of a conceivable, rational basis, you open the court to lawsuits no matter how good the reason was, as long as there's an allegation of animus.
Mr. Wimmer: That's right, although I think in this case that's not what we have, since I've alleged both, and the allegations of the complaint have to be accepted as true at this point.
Briefly, with respect to exhaustion of remedies, that's another question which I believe is not properly before the Court for a number of reasons.
It was not ever mentioned prior to the brief on the merits by the village.
It was not mentioned in the district court, where I could have amended the complaint if there was a technical deficiency, and also, even if Your Honors intend to address the exhaustion of remedies issue, I believe the Court has already held at least two times that one need not exhaust his State remedies in order to state a claim for a denial of the Equal Protection Clause.
And on this rationally related argument, what this really comes down to is whether it was rationally related to a legitimate State interest for Willowbrook to demand private property rights of Mrs. Olech and the other plaintiffs in the State court case as a condition of receiving running water when those rights were not demanded of others as a condition of receiving running water, and where the private property rights were not required for installation and maintenance of the water main.
That's what the complaint says, and I think that question really answers itself.
There's not a rational basis based on the face of the complaint.
One other point the village makes is, they argue that the road was already in existence, and that they simply desired to establish their right to maintain it.
The complaint does not allege how wide the road is, and since it's not in the record I'm not going to state how wide it is, but I think if that's a significant fact the inference should be drawn in favor of the plaintiff that the road is substantially narrower than the 66-foot road that they were demanding be put in.
So I'd like to thank the Court.
In conclusion, I believe that the Equal Protection Clause applies to everybody, whether they're a member of a class or group or not.
It certainly applies to Mrs. Olech.
Thank you.
Chief Justice Rehnquist: Thank you, Mr. Wimmer.
The case is submitted.
The honorable court is now adjourned until tomorrow at ten o'clock.
Argument of Speaker
Mr. Speaker: I have the opinion of the Court to announce in No. 98-1288 the Village of Willowbrook v. Grace Olech.
In this case Olech sued the petitioner, the Village of Willowbrook alleging that the Village violated the Equal Protection Clause of the Fourteenth Amendment by demanding a 33-foot easement from her before connecting her property to the municipal water supply instead of the 15-foot easement required from other property owners.
The District Court dismissed the suit for failing to state an Equal Protection Claim.
The Court of Appeals for the Seventh Circuit reversed.
In a per curiam opinion filed with the Clerk today we affirm.
Our cases have recognized that a plaintiff raises valid Equal Protection Claim, when she alleges that she has been intentionally treated differently from others in the similar situation, and there is no rational basis for the difference in treatment.
Olech's complaint alleged that the Village intentionally demanded an excessive easement from her and that the Village's demand was irrational and wholly arbitrary.
This is sufficient to state a claim for relief under the Equal Protection Clause.
Justice Breyer has filed an opinion concurring in the judgment.


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BOISE -- Flames from a burning house in Boise came dangerously close to spreading to nearby homes Monday night.
The home, located in the Sunrise Rim neighborhood near Vista Avenue and Interstate 84, was heavily damaged.
The fire started around 7:00 p.m. Neighbor Eric Quarles said he heard a loud noise before spotting the fire.
It was pretty scary, he said. I heard a loud pop or bang if you will, when i looked out, there were flames just engulfing the house.
Quarles says another neighbor ran into the home to make sure no one was inside, and rescued the residents' pets. Firefighters arrived minutes later.
Boise Fire Battalion Chief Tom Pawek says firefighters immediately called for a second alarm after spotting a large plume of smoke rising over the neighborhood.
When the first crews got to the house, they saw flames coming from the left side of the house and heavy smoke pouring from the back of the house and a deck area.
Pawek says high winds gusting to 15 to 20 mph started to push the fire toward other houses. Firefighters battled to extinguish the fire while also providing structure protection to the homes on either side.
The guys did a good job getting lines in placeand stop it from spreading to other structures, Pawek said.
The residents were not home when the fire started, but returned to find their house burning and firefighters inside.
There is no word on want started the fire. Six engines, two trucks, two battalion chiefs and a safety officer responded to the fire.
At one point, the fire did spread down to a canal bank behind the home and to a fence on the side of the house, but firefighters were able to get the flames under control.


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BJP went into damage-control mode to save its alliance with Shiv Sena after some surprising hard talk by Uddhav Thackeray on Tuesday.
By evening, BJP made it clear that only the Sena was their "trusted ally". Narendra Modi too spoke to Uddhav late at night to reaffirm BJP's faith in Shiv Sena.
Ravi Shankar Prasad told dna late at night the Sena was an old ally. "We respect Uddhav and are proud of our alliance. We will face the polls with the Mahayuti."
Earlier in the day, Uddhav chose an-iron-fist-in-a-velvet-glove approach to drive his message across to BJP. Uddhav, who addressed party leaders and Lok Sabha candidates on Tuesday, lashed out at estranged cousin Raj (without naming him), who he said was trying to piggyback on the BJP's prime ministerial nominee Narendra Modi to make up for an eroding base. He wanted to know if BJP was willing to strike an unprincipled alliance just for the sake of power.
He sought to soothe frayed tempers of his cadre by stressing that those who were trying to put spokes in the wheels (former BJP chief Nitin Gadkari) did not represent the entire BJP but added a warning to the party — he would be free to decide when the time comes. Without naming Gadkari, Uddhav said his overtures to Raj had confused BJP workers too.
BJP too swung into action to mollify the Sena with BJP's state unit president Devendra Fadnavis meeting Uddhav earlier in the day and stressing that BJP was firmly with the Sena, its natural ally.
Later, BJP's in-charge for Maharashtra, Rajiv Pratap Rudy, flew down from Delhi to meet Uddhav and pacify him. "We made it very very clear that we have a truck only with the Sena and no one else," Rudy told dna. He met Uddhav at his Bandra residence. Rudy said the Sena was their "trusted ally". He also said that Uddhav spoke with BJP national president Rajnath Singh over the phone.
The five-party 'Mahayuti' went into a tizzy after Gadkari met Raj and requested him to keep away from contesting the polls to avoid splitting the anti-Congress votes. Raj spurned the offer and announced that his party, MNS, would contest the elections. And if elected, his party MPs would support Modi as the prime minister. While putting up candidates against the Sena, MNS is likely to only pick and choose BJP constituencies.
Sena sources admitted some in the party were intent on breaking the alliance with BJP but added that Uddhav was seeking to mollify them.
"Their politics is finished, they have no plank... or face to seek votes," said Uddhav, without naming Raj. So, MNS was trying to piggyback on Modi. He said this was aimed at confusing people. If they contest against each other and join hands later, what would be the difference between them and AAP leader Arvind Kejriwal or former premier Chandrashekhar who fought against Congress but took the party's support to prop up their governments, he asked.
BJP, which is said to harbour ambitions of replacing the Sena as the dominant ally, is seen as becoming increasingly assertive, especially after Thackeray Sr's death and the rise of Modi on the national stage. Though the Sena has a much wider base than BJP, which is seen as an urbane, upper caste party, the two share a common social and electoral catchment, which one must poach upon to dominate the other.


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Green tea. Yes, it's healthy, says Israeli expert
An Israeli expert discusses the mechanisms that make the beverage beneficial.
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Tea, one the most common beverages in the world, has intrigued both researchers and health-conscious consumers. Numerous studies discuss the benefits of tea, especially green tea, on various illnesses and metabolic problems. It's possible the benefits for hardening of the arteries, clotting and inflammation explain the decline in cardiovascular disease among heavy drinkers of green tea.
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This is an updated version of the Infographic we posted last year. Be sure to check out other wildfire resources at NFPA's website here.
Take a tour of some of the new and innovative products that were on display at FDIC 2015.
Follow along below for our video roundup:
Akron Brass MatrixCONTROL Pressure Governor
Keeping in the tradition of departmental patch trading, we've designed a Darley patch for you, and we want to trade our family's with yours. Bring your patch to our FDIC booth, #1712, and we'll give you our Darley patch, along with other awesome giveaways, coupons, and enter you in a grand prize raffle for a $500 eDarley.com gift card. Continue reading
Darley is pleased to announce our Equipment Catalog #266Read More...
Darley Equipment Catalog #263Read More...


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J. Venkatesan
No present will be deemed dowry unless given as a consideration
New Delhi: Customary articles given to the bridegroom's relatives at the time of marriage or during the birth of a child will not come within the ambit of dowry under the Dowry Prohibition Act, 1961, the Supreme Court has held.
A Bench consisting of Justices Arijit Pasayat and P. Sathasivam gave this ruling while acquitting the parents-in-law of a woman, who accused them of harassing her for dowry.
The Bench said: "There are three occasions related to dowry. One is before marriage, second at the time of marriage and third at any time after marriage. The third occasion may appear to be an unending period. But the crucial words are 'in connection with the marriage'." Writing the judgment, Justice Pasayat said no present made at the time of marriage to either party in the form of cash, ornaments, clothes or other articles will be deemed dowry unless it was made as a consideration for the wedding.
Similarly "other customary payments, e.g. given at the time of the birth of a child or other ceremonies as are prevalent in different societies are not covered by the expression 'dowry'," the Bench said.
In the instant case, a Haryana trial court upheld the dowry harassment charges brought by a woman against her husband, but acquitted her parents-in-law, the married sister and a brother of her husband.
On appeal, the Punjab and Haryana High Court allowed quashing of the charges against her husband's sister and brother, but said the parents-in-law were also liable to be proceeded against.
High Court should give clear reasons
Allowing the appeal against this judgment, the apex court said that when the trial court held that an attempt had been made by the complainant-woman to rope in as many relatives of her husband as possible, the High Court should have given some reasons while reversing a well-reasoned order. Judicial discipline demanded that the High Court give clear reasons while reversing a trial court order backed by facts.
The Bench said: "Reasons substitute subjectivity with objectivity. The emphasis on recording reasons is that if the decision reveals the 'inscrutable face of the sphinx', it can, by its silence, render it virtually impossible for the courts to perform their appellate function or exercise the power of judicial review in adjudicating the validity of the decision."
The absence of reasons rendered the High Court's judgment unsustainable, the Bench said and made it clear that it was not expressing any opinion on merits so far as the woman's husband was concerned.


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Research Output for Dr Sarah Prestridge
Note: The 2012, 2013, 2014, 2015 publications have not been audited.
Jump to: Publications | Grants and Consultancies | HDR completions
Dr Sarah Prestridge may be from another institution or only recently joined Deakin University.
No publications found or audited.
Grants and Consultancies
All years
Research Income - National Competitive Grants
Beavis, C*, Dezuanni, M*, O'Mara, J, Prestridge, S*, Rowan, L, Wyatt-Smith, C*, Zagami, J*, Zagami, J* and Chee, Y*. Serious Play: Using digital games in school to promote literacy and learning in the twenty first century, ARC Collaborative - Linkage - Projects (Round 2) [T]
- 2013: $39,500
- 2012: $38,500
Higher Degree by Research Completions supervised by Dr Sarah Prestridge
No completions found or audited.
- Legend:
- * Not a member of Deakin University at time of output.
DRO to publications collection last synchronised: Wednesday 27th May 2015 10:04pm
4th May 2015