Karl Swanson v. Jerry Whitworth, 719 F.3d 780

Karl Swanson bought a lakeside home in Chetek; Kathy Wietharn lives with him but does not own the property. Swanson sought permits to remodel and to install a low (three-foot) fence.
Jerry Whitworth, the elected mayor and next-door neighbor, repeatedly intervened: pressuring inspectors, entering Swanson’s home, delaying or blocking fence permits, accusing Swanson and Wietharn of being drug dealers, and prompting municipal prosecution over fence setback rules.
The municipal prosecution failed: the ordinance applied only to fences four feet or higher and the repair permit covered the work; the City did not appeal.
Neighbor Michele Eberle erected a fence that encroached on Swanson’s property; inspectors later processed a permit authorizing moving it to the property line. Eberle’s fence apparently received more favorable administrative treatment.
Swanson and Wietharn sued under a class-of-one Equal Protection theory and state-law defamation/slander claims. The magistrate judge granted summary judgment to defendants on the Fourteenth Amendment claim for lack of a similarly situated comparator and dismissed the state claims without prejudice.
The Seventh Circuit reversed in part: found Wietharn lacks standing to bring the Equal Protection claim but held that a strong showing of animus can sustain a class-of-one claim even when a near-identical comparator is hard to identify; remanded the equal protection claim and left state claims for further proceedings.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Standing of Wietharn to assert equal protection	Wietharn lived at the property and suffered harassment; she is entitled to relief	Wietharn has no ownership or official action against her; injury is Swanson's alone	Wietharn lacks standing; only Swanson may pursue the equal protection claim
Sufficiency of animus evidence for class-of-one claim	Whitworth’s overt, repeated hostile acts show ill will and targeted harassment — animus is clear	Plaintiff failed to identify a similarly situated person who received more favorable treatment, so claim fails	Where animus is directly and strongly shown, class-of-one may proceed without a near-identical comparator; reversed summary judgment
Need for a similarly situated comparator in class-of-one claims	Comparator (Eberle) supports the normal regulatory practice and shows disparate treatment	Eberle’s fence differed in character/height and was not an appropriate comparator	Comparator helpful but not required when direct evidence of animus is strong; comparator here bolstered plaintiff’s showing
Supplemental jurisdiction over state claims after dismissal of federal claim	Plaintiffs argued their state claims should proceed if federal claim survives	Magistrate declined supplemental jurisdiction after granting summary judgment on federal claim	Because federal claim was improperly dismissed, case remanded; state claims may be revisited on remand

Vill. of Willowbrook v. Olech, 528 U.S. 562 (2000) (defines class-of-one equal protection claim: intentional differential treatment with no rational basis)
Geinosky v. City of Chicago, 675 F.3d 743 (7th Cir. 2012) (reversed summary judgment where numerous baseless tickets supported inference of targeted animus without naming specific comparators)
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (standing requires injury in fact, causation, and redressability)
Kowalski v. Tesmer, 543 U.S. 125 (2004) (plaintiff generally must assert own legal rights)
Sierra Club v. Morton, 405 U.S. 727 (1972) (party must be among the injured to satisfy injury-in-fact)
Fenje v. Feldt, 398 F.3d 620 (7th Cir. 2005) (orchestrated official harassment can state an equal protection claim)
Del Marcelle v. Brown County Corp., 680 F.3d 887 (7th Cir. 2012) (en banc) (Seventh Circuit split over comparator requirement in class-of-one claims)
Hilton v. City of Wheeling, 209 F.3d 1005 (7th Cir. 2000) (discusses vindictive-action equal protection claims requiring totally illegitimate animus)