Gerhart v. Lake County, Mont.
2010 U.S. App. LEXIS 27112
| 9th Cir. | 2011Background
- Gerhart, a Lake County property owner, built an access road to Juniper Shores Lane, a county road, around 2005.
- County employee informed Gerhart that approach permits were required; he submitted a permit application which was denied by the County Commissioners.
- At least ten other properties on Gerhart's block had unpermitted approaches, with no evident consequences; denial of Gerhart's permit was unusual.
- The permitting process lacked formal rules or documented guidance; Ehle typically handled investigations and sign-offs, forwarding to three Commissioners for final approval.
- Gerhart alleged a pattern of leniency for others and that his permit was put on hold and eventually denied for reasons later stated as safety and alternate access concerns.
- The district court granted summary judgment to Defendants; Gerhart appealed arguing due process and equal protection violations, including a class-of-one claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Gerhart had a protected property interest in an approach permit | Gerhart asserts entitlement via state law or County practices | No statutory entitlement; discretion resides with Commissioners | Gerhart has no protected property interest; no mutual entitlement shown |
| Whether County policies created a de facto entitlement to a permit | Policies created entitlement under Perry/Orloff principles | No mutual understanding or agreement; past practice insufficient | No genuine issue; no entitlement under de facto policy theory |
| Whether the denial of the permit violates equal protection (class-of-one) | Gerhart treated differently from similarly situated owners without rational basis | No irrational or unequal treatment; standard practice for permits | Issues of fact on intentional treatment and rational basis; triable |
| Whether the individual Commissioners are entitled to qualified immunity | Willowbrook clearly establishes the right not to be singled out without rational basis | Right not clearly established or no violation | Right clearly established; Commissioners not entitled to qualified immunity on equal protection claim |
| The district court's handling of the equal protection claim on summary judgment | Summary judgment inappropriate given triable issues | No triable issues; appropriate for summary judgment | District court erred in granting summary judgment on the class-of-one claim; remanded for trial |
Key Cases Cited
- Willow v. Olive Willowbrook/Willowbrook v. Olech, 528 U.S. 562 (2000) (class-of-one requires rational basis for differential treatment)
- Perry v. Sindermann, 408 U.S. 593 (1972) (de facto property interest via mutually explicit understandings)
- Orloff v. Cleland, 708 F.2d 372 (9th Cir. 1983) (de facto interest from prior treatment may exist)
- Conn. Bd. of Pardons v. Dumschat, 452 U.S. 458 (1981) (mutual understanding cannot be created by past discretionary generosity)
- Leis v. Flynt, 439 U.S. 438 (1979) (no property right to pro hac vice without mutual understanding)
- Cassidy v. Hawaii, 915 F.2d 528 (9th Cir. 1990) (custom of renewing permits does not create entitlement)
- Punikaia v. Clark, 720 F.2d 564 (9th Cir. 1983) (continuous operation of a government function does not necessarily create entitlement)
- SeaRiver Maritime Financial Holdings, Inc. v. Mineta, 309 F.3d 662 (9th Cir. 2002) (rational basis analysis focuses on the distinction, not the underlying action)
- Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 580 (9th Cir. 2008) (rational basis for distinction in administrative decisions)
- Groten v. California, 251 F.3d 844 (9th Cir. 2001) (permits may be required with statutory requirements; entitlement depends on law)
- Bateson v. Geisse, 857 F.2d 1300 (9th Cir. 1988) (license/permitting schemes and entitlement analysis)
- Shanks v. Dressel, 540 F.3d 1082 (9th Cir. 2008) (due process threshold for protected property interest)
- Foss v. Nat'l Marine Fisheries Serv., 161 F.3d 584 (9th Cir. 1998) (due process and regulatory process considerations)
- Roth v. Bd. of Regents, 408 U.S. 564 (1972) (state law may create entitlements when limits on discretion are imposed)
- Saucier v. Katz, 533 U.S. 194 (2001) (two-step qualified immunity inquiry)