City of Indianapolis v. Armour

ATTORNEYS FOR APPELLANTS ATTORNEYS FOR AMICI CURIAE ATTORNEYS FOR APPELLEES
Jonathan L. Mayes INDIANA ASSOCIATION OF Ronald J. Waicukauski
Chief Litigation Counsel CITIES AND TOWNS AND R. Davy Eaglesfield, III
INDIANA MUNICIPAL LAWYERS Jana K. Strain
Justin F. Roebel ASSOCIATION Indianapolis, Indiana
Assistant Corporation Counsel Thomas E. Wheeler
Office of Corporation Counsel Anthony W. Overholt
Indianapolis, Indiana Jo Angela Woods
Indianapolis, Indiana
______________________________________________________________________________

In the
Indiana Supreme Court
FILED
May 10 2011, 9:28 am
_________________________________
CLERK
of the supreme court,
No. 49S02-1007-CV-402 court of appeals and
tax court

CITY OF INDIANAPOLIS, ET AL.,

Appellants (Defendants below),

v.

CHRISTINE ARMOUR, ET AL.,

Appellees (Plaintiffs below).
_________________________________

Appeal from the Marion Superior Court, No. 49D11-0706-CT-026050
The Honorable John F. Hanley, Judge
_________________________________

On Petition to Transfer from the Indiana Court of Appeals, No. 49A02-0901-CV-84
_________________________________

May 10, 2011

Sullivan, Justice.

The City of Indianapolis abandoned the Barrett Law method of financing sewer im-
provements in favor of a new system that imposes less of a financial burden on property owners.
To ease the transition, the City discharged all outstanding Barrett Law assessments owing as of
November 1, 2005, but did not give refunds to those property owners who had previously paid
their Barrett Law assessments in full or in part. We hold that the City did not violate the Equal
Protection Clause of the Fourteenth Amendment because forgiving only the outstanding assess-
ment balances was rationally related to a legitimate governmental interest.

Background

Indiana‟s Barrett Law1 authorizes municipalities to provide or require public improve-
ments and fund those improvements by levying special assessments against the benefitted prop-
erties. Town Council of New Harmony v. Parker, 726 N.E.2d 1217, 1227 n.13 (Ind. 2000)
(quoting Porter v. City of Tipton, 141 Ind. 347, 40 N.E. 802, 803 (1895)). The costs of Barrett
Law projects are generally “apportioned equally among all abutting lands or lots” benefitted by
the improvement. I.C. § 36-9-39-15(b)(3).

Prior to 2006, the City of Indianapolis (“City”) used Barrett Law to fund sanitary sewer
projects.

In April, 2001, the City sent a letter to property owners in the Northern Estates neighbor-
hood notifying them that their properties were to be part of the Brisbane/Manning Barrett Law
Sanitary Sewers Project (“Brisbane/Manning Project”), under which their properties were to be
connected to City sewers, eliminating the use of septic tanks in the neighborhood. In July, 2004,
after complying with then-existing regulatory procedures, the Indianapolis Board of Public
Works (“Board”) levied a $9,278 special assessment against each parcel subject to the project.2

Property owners were given the option of paying the special assessment up front in its en-
tirety or paying it in monthly installments over a 10-, 20-, or 30-year period. Those choosing the
installment plan were charged an annual interest rate of 3.5% and a statutory lien3 was placed on
their properties. Of the approximately 180 parcels covered by the project, property owners of

1
Ind. Code §§ 36-9-39-1 to -30 (2007).
2
One parcel had a preexisting sewer connection and was therefore assessed only $4,639.
3
Ind. Code § 6-1.1-22-13.5 (2010).

2
142 parcels elected to pay their special assessments in installments.4 The owners of the remain-
ing parcels chose to pay up front in a single lump-sum payment. The plaintiffs in this case are
the owners of 31 of those parcels on which the assessment was paid up front.

The following year, the City-County Council of Indianapolis-Marion County (“Council”)
enacted a general ordinance under which the Barrett Law method of financing sewer projects
was discontinued in favor of the Septic Tank Elimination Program (“STEP”). See Indianapolis-
Marion County, Ind., City-County General Ordinance No. 107, 2005 (Oct. 31, 2005); see also
Appellant‟s App. 320-35. The Council‟s action responded to two concerns. First, the City faced
a public health crisis because of the continued use of out-of-date septic tanks on many properties.
Second, the Barrett Law system was imposing too heavy a financial burden on middle- and low-
income taxpayers, given that the average assessment under a Barrett Law project was approx-
imately $10,000.5

At the time STEP was adopted, the Brisbane/Manning Project was one of more than 40
Barrett Law projects in existence. As with the Brisbane/Manning Project, some taxpayers sub-
ject to these other Barrett Law projects had elected to pay their assessments in full and some in
installments. As part of the transition from Barrett Law to STEP, the Board passed Resolution
101, 2005 (“Resolution 101”), Appellant‟s App. 337, 350, forgiving all outstanding assessment
balances on the 40-plus Barrett Law projects owing as of November 1, 2005.

As a result of Resolution 101, the owners of the 142 parcels in Northern Estates who had
elected to pay their Barrett Law assessments over a period of years were discharged from their
debts, along with all other taxpayers from other 40-plus Barrett Law projects who had outstand-
ing balances due.

4
Owners of 68 parcels chose the 30-year installment plan, with a monthly payment of $25.77; owners of
27 parcels chose the 20-year installment plan, with a monthly payment of $38.66; and owners of 47 par-
cels chose the 10-year installment plan, with a monthly payment of $77.27.
5
Under STEP, sanitary sewer projects were to be paid for through an initial “hook-up fee” of $2,500 to
connect a property to the City‟s sewers and through new bonds funded by increased sewer-usage rates.
The lower connection fee and modest usage rates would permit more citizens‟ properties to be connected
to the City‟s sewers, thereby alleviating the public health problem posed by septic tanks.

3
 The plaintiffs in this lawsuit complain that Resolution 101 provided no relief for North-
ern Estates taxpayers who had paid their Barrett Law assessments in full for the Bris-
bane/Manning Project. But it was not just the Brisbane/Manning taxpayers who had paid their
assessments in full who did not receive refunds; no taxpayers in any of the 40-plus Barrett Law
projects received any refunds of the amounts they had paid, including those who had paid some
but not all of their installments – thousands of taxpayers, some of whom had paid all, some a lot,
and some only a little of their respective assessments. Conversely, it was not only the Bris-
bane/Manning taxpayers who had elected the installment plan who had their outstanding bal-
ances forgiven; all taxpayers in all of the 40-plus Barrett Law projects had their outstanding bal-
ances forgiven, including those who had paid some but not all of their installments – thousands
of taxpayers, some of whom owed all, some a lot, and some only a little of their respective as-
sessments.

In February, 2006, the plaintiffs, who, to repeat, had each paid their Barrett Law assess-
ments in full, petitioned the Board for a refund in an amount equal to the assessments discharged
for those property owners who had paid the most under an installment plan.6 In March, 2006, the
Board sent a letter to the plaintiffs denying their refund request. Appellant‟s App. 317-18. It
reasoned that there were many other Barrett Law projects subject to forgiveness and that issuing
refunds to the plaintiffs “would establish a precedent of unfair and inequitable treatment to all
other property owners who have also paid Barrett Law assessments.” Id. at 318. And although
November 1, 2005, “might seem arbitrary to [the plaintiffs], it [was] essential for the City to es-
tablish this date and move forward with the new funding approach.” Id.

In July, 2007, the plaintiffs filed their complaint against the City and several of its offi-
cials7 seeking, among other things, a Barrett Law assessment refund. In their federal claim under
42 U.S.C. § 1983 (2006), the plaintiffs alleged that the City had violated their federal constitu-
tional rights to due process and equal protection under the Fourteenth Amendment.8 In March,

6
The plaintiffs who paid the full $9,278 assessment each sought refunds in excess of $8,000, and the
plaintiff who was assessed half sought a refund in excess of $3,400.
7
We refer to the defendants collectively as the “City,” unless otherwise specified.
8
The plaintiffs also raised several claims under both the Indiana Constitution and various Indiana statutes,
but none of those claims are issues in this appeal.

4
2008, the plaintiffs moved for summary judgment on their federal constitutional claims. The
City filed a cross-motion for summary judgment, arguing that the federal claims must fail be-
cause the City had a rational basis for refusing to grant the plaintiffs relief. The trial court denied
the City‟s motion, granted the plaintiffs‟ motion, and entered judgment against the City for
$380,914.16.9

On appeal, the plaintiffs abandoned their due process claim and sought to have the trial
court‟s judgment sustained on equal protection grounds only. The Court of Appeals affirmed,
finding that the City did not have a rational basis for granting relief to those who were paying
their Barrett Law assessments in installments and denying relief to those who had paid up front
in a lump sum. City of Indianapolis v. Armour, 918 N.E.2d 401, 409-19 (Ind. Ct. App. 2009),
reh‟g denied. The Court of Appeals also held that the City could remedy the violation only by
issuing refunds to the plaintiffs. Id. at 419.

The City sought, and we granted, transfer, City of Indianapolis v. Armour, 940 N.E.2d
821 (Ind. 2010) (table), thereby vacating the opinion of the Court of Appeals, Ind. Appellate
Rule 58(A). Amici Curiae, the Indiana Association of Cities and Towns and the Indiana Munic-
ipal Lawyers Association, filed a brief in support of the City‟s Petition to Transfer.

Discussion

The only issue presented is whether the City‟s forgiveness of all outstanding Barrett Law
assessments as part of its transition to STEP violated the plaintiffs‟ rights under the Equal Pro-
tection Clause, which provides that “[n]o State shall . . . deny to any person within its jurisdiction
the equal protection of the laws.” U.S. Const. amend. XIV, § 1. A law attacked on equal protec-
tion grounds will be upheld if it survives rational basis review, unless the classification is drawn
along suspect lines or infringes the exercise of fundamental constitutional rights, in which case it
must survive heightened judicial scrutiny. FCC v. Beach Communications, Inc., 508 U.S. 307,
313 (1993); Nordlinger v. Hahn, 505 U.S. 1, 10 (1992).

9
The trial court failed to award prejudgment interest, and the City concedes that this was error.

5
 Because Resolution 101 neither involves a suspect classification nor inhibits the exercise
of a fundamental constitutional right, the parties agree that it is not subject to heightened judicial
scrutiny and must be analyzed under the rational basis standard. But they offer differing inter-
pretations and applications of that standard, which requires us to examine the intricacies of the
standard itself.

I

Rational basis is the most deferential standard of review. Under this standard, courts will
not invalidate a law merely because it is deemed unwise, unfair, or unsound, or because there are
“more reasonable” or “more effective” policy choices that could have been made. Beach Com-
munications, 508 U.S. at 313-14; Ind. Aeronautics Comm‟n v. Ambassadair, Inc., 267 Ind. 137,
368 N.E.2d 1340, 1346 (1977). Rather, “[t]he Constitution presumes that, absent some reason to
infer antipathy, even improvident decisions will eventually be rectified by the democratic
process.” Vance v. Bradley, 440 U.S. 93, 97 (1979) (footnote omitted).

Governmental decision makers are afforded the greatest leeway in making classifications
and drawing lines with regard to taxation. Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S.
356, 364 (1973) (quoting Madden v. Kentucky, 309 U.S. 83, 88 (1940)); see also Fitzgerald v.
Racing Ass‟n of Cent. Iowa, 539 U.S. 103, 108 (2003) (“[T]he Constitution grants legislators,
not courts, broad authority (within the bounds of rationality) to decide whom they wish to help
with their tax laws and how much help those laws ought to provide.”). Thus, courts are “espe-
cially deferential in the context of classifications made by complex tax laws.” Nordlinger, 505
U.S. at 11.

Under the rational basis standard, laws are clothed with a strong presumption of constitu-
tionality. Beach Communications, 508 U.S. at 314 (citation omitted); see also Nordlinger, 505
U.S. at 10 (“„[L]egislatures are presumed to have acted within their constitutional power despite
the fact that, in practice, their laws result in some inequality.‟” (alteration added) (quoting
McGowan v. Maryland, 366 U.S. 420, 425-26 (1961))). The party challenging the law bears the
burden of proving that there is no rational basis for the government‟s classification, Beach

6
Communications, 508 U.S. at 315 (citations omitted), and this can be done “„only by the most
explicit demonstration that a classification is a hostile and oppressive discrimination against par-
ticular persons and classes,‟” Lehnhausen, 410 U.S. at 364 (quoting Madden, 309 U.S. at 88).

On the other hand, a classification survives rational basis review if (1) “there is a plausi-
ble policy reason for the classification,” (2) “the legislative facts on which the classification is
apparently based rationally may have been considered to be true by the governmental decision-
maker,” and (3) “the relationship of the classification to its goal is not so attenuated as to render
the distinction arbitrary or irrational.” Nordlinger, 505 U.S. at 11 (citations omitted).

First, the government‟s classification must be based on policy reasons that are both legi-
timate and plausible. The legitimate governmental interests of states and municipalities are nu-
merous, given their broad police powers. See, e.g., Jacobson v. Massachusetts, 197 U.S. 11, 25
(1905) (discussing breadth of states‟ police powers). In particular, states and local governments
have a legitimate interest in their own efficient and effective operation. Cf. Garcetti v. Ceballos,
547 U.S. 410, 417-20 (2006) (limiting public employees‟ first amendment rights because of go-
vernmental interest in operational effectiveness and efficiency). Thus, administrative conveni-
ence and minimizing administrative costs are legitimate governmental interests. See, e.g., Car-
michael v. S. Coal & Coke Co., 301 U.S. 495, 511 (1937) (“Administrative convenience and ex-
pense in the collection or measurement of the tax are alone a sufficient justification for the dif-
ference between the treatment of small incomes or small taxpayers and that meted out to others.”
(citations omitted)). Governments also have a legitimate interest in preserving their limited re-
sources when granting benefits, and the U.S. Supreme Court has consistently upheld statutes and
regulations that adjust the allocation of limited funds and resources, most often in the welfare
context. See, e.g., Bowen v. Gilliard, 483 U.S. 587, 599 (1987) (upholding law that reduced wel-
fare benefits for some); Lyng v. Castillo, 477 U.S. 635, 639-43 (1986) (upholding law that re-
duced food stamp allotment for some); Jefferson v. Hackney, 406 U.S. 535, 549 (1972) (uphold-
ing reduction of welfare benefits for some because “budgetary constraints [did] not allow the
payment of the full standard of need for all welfare recipients”); cf. U.S. R.R. Ret. Bd. v. Fritz,
449 U.S. 166, 176-79 (1980) (upholding statute reducing retirement benefits for some railroad
employees).

7
 The legitimate interest justifying the classification need only be plausible. That is, it does
not matter what the actual policy reason was, so long as a legitimate reason can be conceived.
Beach Communications, 508 U.S. at 315 (citations omitted); Ind. Aeronautics Comm‟n, 368
N.E.2d at 1344 (citation omitted). And it is no requirement that the conceivable policy in fact
motivated the governmental decision maker. Beach Communications, 508 U.S. at 315 (citing
Fritz, 449 U.S. at 179). Rather, a policy reason is sufficiently plausible if it “„may reasonably
have been the purpose and policy‟ of the relevant government decisionmaker.” Nordlinger, 505
U.S. at 15-16 (quoting Allied Stores of Ohio, Inc. v. Bowers, 358 U.S. 522, 528-29 (1959)).

Second, the government‟s classification must be based on legislative facts which “ration-
ally may have been considered to be true by the governmental decisionmaker.” Id. at 11 (citation
omitted). But the governmental decision makers are not required to prove any underlying facts
on which the classification is based, Beach Communications, 508 U.S. at 315 (citing Vance v.
Bradley, 440 U.S. at 111); the government need only have rationally believed to be true the facts
prompting the classification, Nordlinger, 505 U.S. at 11 (citation omitted); Ind. Aeronautics
Comm‟n, 368 N.E.2d at 1344-46. In Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 470
(1981), for example, the U.S. Supreme Court upheld a state statute banning the sale of milk in
plastic containers but allowing the sale of milk in containers made of other materials, primarily
paper. The fact that the ban might not actually have promoted environmentally desirable pack-
aging did not have to be proven; “the Equal Protection Clause [was] satisfied by [the Court‟s]
conclusion that the Minnesota Legislature could rationally have decided that its ban on plastic
nonreturnable milk jugs might foster greater use of environmentally desirable alternatives.” Id.
at 466 (emphasis in original). And although the Minnesota Supreme Court may have been cor-
rect that the ban was “not a sensible means of conserving energy,” it is for “„legislatures, not
courts, to decide on the wisdom and utility of legislation.‟” Id. at 469 (quoting Ferguson v.
Skrupa, 372 U.S. 726, 729 (1963)).

Third, the government is not required to use narrowly tailored classifications to serve the
law‟s purpose. The classification needs only rationally to further the law‟s purpose, Nordlinger,
505 U.S. at 10 (citing City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439-41

8
(1985), and City of New Orleans v. Dukes, 427 U.S. 297, 303 (1976) (per curiam)), and not be
“so attenuated as to render the distinction arbitrary or irrational,” id. at 11 (citing City of Cle-
burne, 473 U.S. at 446). The classification need not be drawn “„with mathematical nicety‟” be-
cause the issues facing governments “„are practical ones and may justify, if they do not require,
rough accommodations – illogical, it may be, and unscientific.‟” Dandridge v. Williams, 397
U.S. 471, 485 (1970) (citations omitted). As the Supreme Court previously has explained:

The problem of legislative classification is a perennial one, admitting of no doc-
trinaire definition. Evils in the same field may be of different dimensions and
proportions, requiring different remedies. Or so the legislature may think. Or the
reform may take one step at a time, addressing itself to the phase of the problem
which seems most acute to the legislative mind. The legislature may select one
phase of one field and apply a remedy there, neglecting the others. The prohibi-
tion of the Equal Protection Clause goes no further than the invidious discrimina-
tion.

Williamson v. Lee Optical of Okla., Inc., 348 U.S. 483, 489 (1955) (citations omitted).

II

Applying this standard, we find that Resolution 101 satisfies rational basis review and
therefore does not run afoul of the Equal Protection Clause. Resolution 101 was part and parcel
of the City-County Council‟s ordinance moving the City from Barrett Law to STEP.10 Similar to
the reasons prompting the overall transition to STEP, the text of Resolution 101 provides that it
was enacted because Barrett Law funding imposed financial hardships on middle- and low-
income property owners who were often most in need of sanitary sewers due to failing septic
systems. Appellant‟s App. 337, 350. Providing relief or support for citizens facing financial

10
On October 20, 2005, at a meeting of the Public Works Committee of the City-County Council, the di-
rector of the Department of Public Works informed the Committee of the plan to forgive all outstanding
Barrett Law assessments, while not reimbursing property owners who had already paid their assessments.
See Committee Meeting Minutes, Public Works Comm., City-County Council of Indianapolis-Marion
County, Ind., at 6-10 (Oct. 20, 2005), available at http://www.indy.gov/eGov/Council/PDF/Committee
/Minutes/PWKS102005min.pdf (last visited May 6, 2011). The Committee voted 8-0 to send Proposal
No. 535, 2005, to the full City-County Council with a recommendation that it “Do Pass.” Id. at 10. Al-
though the minutes from this meeting are not included in the record, we take judicial notice of them be-
cause they constitute the “legislative history” of City-County General Ordinance No. 107, 2005, and are
thus part of that codified municipal ordinance. Ind. Evidence Rule 201(b); cf. Peoples v. State, 929
N.E.2d 750, 754 & n.6 (Ind. 2010) (utilizing legislative history to explain a state criminal statute).

9
hardship is clearly a legitimate interest. E.g., Fitzgerald, 539 U.S. at 108-09; Carmichael, 301
U.S. at 515 (“Support of the poor has long been recognized as a public purpose.” (citing Kelly v.
Pittsburgh, 104 U.S. 78, 81 (1881))).

Moreover, it was reasonable for the City to believe that property owners who had already
paid their assessments were in better financial positions than those who chose installment plans.
To be sure, there might be some property owners who could have paid up front but elected to pay
in installments, despite being required to pay more because of interest. And it is possible that
there are some who paid up front that are currently experiencing financial hardship. But, like in
Clover Leaf Creamery, it does not matter under rational basis review what the actual facts would
show, as determined in court, so long as the issue was at least debatable when the governmental
decision maker acted. Thus, the Court of Appeals erred in requiring the City to come forth with
proof that all the property owners who had their assessments discharged were actually middle- or
low-income participants in the Brisbane/Manning Project. See Armour, 918 N.E.2d at 413 n.9.
Finally, eliminating tax burdens is clearly a rational way of eliminating financial hardship caused
by the tax burden.

There are several other interrelated plausible policy reasons for Resolution 101.11 As
noted under Background, supra, the Brisbane/Manning Project was one of 40-plus Barrett Law

11
Contrary to the plaintiffs‟ position and the opinion of the Court of Appeals, these policy reasons may be
considered because they are consistent with and related to the purpose stated in the text of the Resolution.
There are cases where a conceivable policy reason has been held to be not reasonably the purpose and
policy of the governmental decision maker. But in those cases, the text of the law includes a purpose, or
the government argues for a purpose, that renders the law unconstitutional. The government may not then
save the law by arguing that such purpose was not actually the purpose of the law and rely on a different
conceivable purpose that is contrary to or inconsistent with the stated purpose. Allied Stores of Ohio, Inc.
v. Bowers, 358 U.S. 522, 529-30 (1959) (distinguishing Wheeling Steel Corp. v. Glander, 337 U.S. 562
(1949), in which the statute‟s stated purpose discriminated against nonresidents, but the state argued that
the statute‟s purpose was to eliminate the discrimination against nonresidents); see also Nordlinger, 505
U.S. at 16 n.7 (discussing and applying the Allied Stores principle).
But this exception does not prevent the government from supplementing a textual purpose with
consistent or related interests. Laws are often motivated by many purposes or objectives, which may bal-
ance with or against each other “but still serve[] the general objective when seen as a whole.” Fitzgerald,
539 U.S. at 108 (citing Fritz, 449 U.S. at 181 (Stevens, J., concurring in judgment)); see also Ind. Aero-
nautics Comm‟n, 368 N.E.2d at 1345 (discerning general legislative objective from several different and
even contrary objectives). Governmental decision makers generally are not required to articulate their
objectives, Beach Communications, 508 U.S. at 315 (citing Fritz, 449 U.S. at 179), and when they do so,
it aids the general public in understanding the law, as well as courts and litigants. Moreover, such an all-

10
projects subject to Resolution 101. The City could have reasonably believed that the benefits of
simplifying sanitary sewer funding outweighed the effort of continuing a collection system for
thousands of taxpayers, some of whom owed all, some a lot, and some only a little of their re-
spective assessments. This is particularly so since keeping the outstanding payment obligations
in play would have meant not only maintaining such a collection system but also sitting on the
tax liens for up to 30 years. See Carmichael, 301 U.S. at 511; see also Beach Communications,
508 U.S. at 317-19 (justifying classification on administrative efficiency and conservation of li-
mited regulatory resources); Lehnhausen, 410 U.S. at 365 (same). And the fact that it chose to
draw the line at November 1, 2005, was a matter of discretion appropriately exercised by the
City and the Board. See Fitzgerald, 539 U.S. at 108 (“„The “task of classifying persons for . . .
benefits . . . inevitably requires that some persons who have an almost equally strong claim to
favored treatment be placed on different sides of the line,” and the fact the line might have been
drawn differently at some points is a matter for legislative, rather than judicial, consideration.‟”
(quoting Fritz, 449 U.S. at 179) (omissions in original)).

Furthermore, the decision not to issue refunds to those who had already paid implicates
another legitimate interest – preservation of limited resources. The City clearly has a legitimate
interest in not emptying its coffers to provide refunds to those who had already paid their as-
sessments. The funds from the particular assessments at issue here were used to fund the Bris-
bane/Manning Project and had already been spent in constructing those sewers. The plaintiffs
each paid for a sewer and received a sewer, along with all the attendant public health benefits
associated with sanitary sewers. This was not a case in which the plaintiffs were assessed for a
local benefit and did not receive that local benefit. Cf. Carmichael, 301 U.S. at 523 n.15 (provid-
ing that where a local special assessment is “apportioned to benefits it is not constitutionally de-
fective because the assessment exceeds the benefits” (citation omitted)). It is true that those
whose assessments were discharged also received a sewer and did so at a lower price. But the
Equal Protection Clause does not require substantive equality among taxpayers if there is a ra-
tional basis for differing treatment, and the Court of Appeals erred in concluding otherwise.

or-none approach is foreign to rational basis review and its underlying principles. Cf. Ry. Express Agen-
cy, Inc. v. New York, 336 U.S. 106, 110 (1949) (“It is no requirement of equal protection that all evils of
the same genus be eradicated or none at all.” (citation omitted)).

11
 The City‟s decision to forgive outstanding assessments was rationally related to its legi-
timate interests in reducing its administrative costs, providing relief for property owners expe-
riencing financial hardship, establishing a clear transition from Barrett Law to STEP, and pre-
serving its limited resources.

III

Despite the well-established rational basis standard described and applied in Parts I and
II, supra, the plaintiffs urge us to adopt a different standard of scrutiny. Although they label it
“rational basis,” it is a standard that is unknown in equal protection jurisprudence. They offer no
evidence that the City‟s decision to enact Resolution 101 was irrational. Rather, they argue that
the City bears the burden of establishing a rational basis in the first place, and, to meet its bur-
den, the City is required to submit evidence that those whose debts were discharged were actual-
ly middle- or low-income property owners. Because the City failed to carry this burden, they
argue that they are entitled to summary judgment.

A

The plaintiffs rely primarily on the so-called “class-of-one” cases, which differ from typ-
ical equal protection cases. In typical cases, parties challenge government action that categorizes
citizens into particular groups and then treats those groups differently, alleging either “that they
have been arbitrarily classified as members of an „identifiable group,‟” Engquist v. Or. Dep‟t of
Agric., 128 S. Ct. 2146, 2152 (2008) (citation omitted), or that they are indeed members of an
identifiable group against which the government has unconstitutionally discriminated, e.g.,
Brown v. Bd. of Educ., 347 U.S. 483, 487-88 (1954) (racially segregated schools). The laws un-
derlying typical equal protection claims may be facially discriminatory, see, e.g., Vance v. Brad-
ley, 440 U.S. at 95 (law requiring Foreign Service employees to retire at age 60 but imposing no
mandatory retirement age for Civil Service employees), or they may be facially neutral but ap-

12
plied in a way that disparately impacts an identifiable class,12 see, e.g., Yick Wo v. Hopkins, 118
U.S. 356, 373-74 (1886) (invalidating a facially neutral ordinance because an administrative
board had used its discretion under the ordinance to discriminate against individuals of Chinese
ancestry).

In rare cases, a facially neutral law will be applied in a discriminatory manner against an
individual or a small group of individuals whose only common characteristic is that they have
been singled out for different treatment (in essence, an otherwise unidentifiable group). The ab-
sence of an identifiable class does not preclude a plaintiff from raising an equal protection claim
because the Equal Protection Clause “„protect[s] persons, not groups.‟” Engquist, 128 S. Ct. at
2150 (alteration in original) (quoting Adarand Constructors, Inc. v. Peña, 515 U.S. 200, 227
(1995) (emphasis omitted)). Thus, a plaintiff who is not part of an identifiable class but is sin-
gled out for discriminatory treatment can raise a “class-of-one” equal protection claim. See Vill.
of Willowbrook v. Olech, 528 U.S. 562, 564-65 (2000) (per curiam).13

In many class-of-one cases, underlying the government‟s decision is animus or ill-will
toward the plaintiffs. E.g., Olech v. Vill. of Willowbrook, 160 F.3d 386, 387-88 (7th Cir. 1998)
(Posner, C.J.), aff‟d on other grounds, Olech, 528 U.S. at 565; see also Esmail v. Macrane, 53
F.3d 176, 178-79 (7th Cir. 1995) (Posner, C.J.). The Supreme Court in Olech did not reach the
question of whether the Village‟s subjective motivations were sufficient to state a class-of-one
claim. Olech, 528 U.S. at 565. In a concurring opinion, however, Justice Breyer reasoned that
“the presence of [animus or vindictiveness] in this case [was] sufficient to minimize any concern
about transforming run-of-the-mill zoning cases into cases of constitutional right.” Olech, 528
U.S. at 566 (Breyer, J., concurring). Subsequently, Judge Posner wrote in Bell v. Duperrault,

12
Disparate impact is not sufficient, however, to trigger heightened scrutiny (if otherwise applicable).
See Pers. Adm‟r of Mass. v. Feeney, 442 U.S. 256, 273-74 (1979) (gender classifications); Washington v.
Davis, 426 U.S. 229, 239-46 (1976) (racial classifications).
13
In Olech, the Village conditioned the connection of the plaintiffs‟ property to the municipal water
supply on the plaintiffs‟ granting to the Village a 33-foot easement, even though the Village required only
a 15-foot easement from other similarly situated property owners. Olech, 528 U.S. at 563. The Court
held that the plaintiffs had raised a cognizable equal protection claim sufficient to withstand a motion to
dismiss, acknowledging that class-of-one plaintiffs had raised successful equal protection claims where
they “ha[d] been intentionally treated differently from others similarly situated” and “there [was] no ra-
tional basis for the difference in treatment.” Id. at 564 (citing Sioux City Bridge Co. v. Dakota Cnty., 260
U.S. 441 (1923), and Allegheny Pittsburgh Coal Co. v. Webster Cnty. Comm‟n, 488 U.S. 336 (1989)).

13
367 F.3d 703, 709-13 (7th Cir. 2004) (Posner, J., concurring), what is to us a most convincing
argument for adopting Justice Breyer‟s reasoning in Olech.

The plaintiffs argue that the relevant class is limited to the property owners in Northern
Estates who were subject to the Brisbane/Manning Project Barrett Law assessment. In essence,
they argue this is a class-of-one case because they were treated differently than the other resi-
dents of Northern Estates.

We disagree and hold that this is not a class-of-one case. The text of Resolution 101 de-
fines the group entitled to receive the benefit, to the exclusion of all others. It distinguishes be-
tween property owners who had outstanding Barrett Law assessments on November 1, 2005, and
property owners who did not. Only those who had outstanding assessments on that date were
subject to the benefit of Resolution 101. Resolution 101 does not limit the Barrett Law projects
to which it applies but forgives all outstanding Barrett Law assessments, regardless of the partic-
ular project under which the assessments were levied. As discussed supra, it was not just Bris-
bane/Manning taxpayers who had paid their assessments in full who did not receive refunds; no
taxpayers in any of the 40-plus Barrett Law projects received any refunds of the amounts they
had paid, including those who had paid some but not all of their installments – thousands of tax-
payers, some of whom had paid all, some a lot, and some only a little of their respective assess-
ments.

Unlike the class-of-one cases, the Resolution makes a broad classification on the basis of
a common characteristic – outstanding Barrett Law balances. Cf. Ind. Aeronautics Comm‟n, 368
N.E.2d at 1347 (rejecting contention that the case was essentially a class-of-one claim because
the grievance on which the claim was based was common to the whole class). And there is no
evidence that the City‟s action was motivated by animus or ill-will toward the plaintiffs or any
other property owners who did not have outstanding assessments.

14
 B

In accepting the plaintiffs‟ standard, the Court of Appeals relied primarily on Allegheny
Pittsburgh Coal Co. v. Webster County Commission, 488 U.S. 336 (1989),14 which, along with
Sioux City Bridge Co. v. Dakota County, 260 U.S. 441 (1923), has been characterized as a class-
of-one case. See Engquist, 128 S. Ct. at 2153-54; see also Olech, 528 U.S. at 564 (relying on
those cases in holding that class-of-one claims are cognizable). The Court of Appeals explicitly
disregarded Nordlinger and Fitzgerald, the two most recent equal protection challenges to tax
classifications, because although they “are instructive on the general principles of equal protec-
tion,” they “differ on their facts from this case to such an extent that they are not helpful in re-
solving the question in this appeal.” Armour, 918 N.E.2d at 411 n.8. We disagree with this ana-
lytical approach.

In Allegheny Pittsburgh, a West Virginia county tax assessor valued the plaintiffs‟ prop-
erty on the basis of its recent purchase price and made only minor adjustments in the assessments
of properties that had not been sold, resulting in gross disparities in tax treatment over a span of
approximately ten years.15 488 U.S. at 338, 341-42. The Court held that the county tax assessor
had violated the plaintiffs‟ rights to equal protection. Id. at 338. The county argued that its
scheme was rationally related to the purpose of assessing properties at true current market value.
Id. at 343. The Court held that the means were not rationally related to achieving equal assess-
ments based on true market value because the general adjustments were not large enough to ap-
proximate the true market value of properties that had not been recently sold. Id. at 343-46.

In Nordlinger, decided three terms later, the Court held that California‟s Proposition 13
did not violate the Equal Protection Clause. 505 U.S. at 18. Under Proposition 13, recently sold
property was assessed based on its acquisition value or the amount paid to acquire the property,
but property that had not been recently acquired was assessed based on its appraised value in

14
Although this seems to be the principal case relied upon by the Court of Appeals, the plaintiffs did not
rely on it in their original brief, citing it only once as part of a block quotation to a different case. Appel-
lee‟s Br. 12-13 (quoting Engquist, 128 S. Ct. at 2153-54).
15
The adjustments made to properties that had not been recently sold were small, and it would have taken
an estimated 500 years for the assessments of those properties to equalize with the assessments on the
plaintiffs‟ properties. Allegheny Pittsburgh, 488 U.S. at 341-42.

15
1975-1976, with minor annual inflation adjustments. Id. at 5. The plaintiff estimated that she
would end up paying almost $19,000 in property taxes over ten years, while her similarly si-
tuated neighbors who had not recently acquired their properties would pay only $4,100. Id. at 7.

The Court held that the classification between newer owners and older owners did not vi-
olate the Equal Protection Clause because it was rationally related to legitimate governmental
interests. Nordlinger, 505 U.S. at 12-17. There were at least two rational considerations for the
classification. First, the State had a legitimate interest in neighborhood preservation, which was
served by permitting those residents who had owned their homes longer to pay lower property
taxes. Id. at 12. Second, the State could legitimately protect long-term owners‟ reliance interest
against having to pay higher taxes, reasoning that a new owner has all the information about the
tax burden before buying and could decide not to buy, whereas an older owner may be forced to
sell the home because he or she cannot satisfy the higher tax burden; that is, “the State may de-
cide that it is worse to have owned and lost, than never to have owned at all.” Id. at 12-13.

The effects of the tax schemes in Allegheny Pittsburgh and Nordlinger were the same.16
Property that was recently sold was assessed at its acquisition value, while minor adjustments
were made to the assessments of properties not recently sold. And the differing methods of as-
sessment resulted in gross disparities in the tax burden of similarly situated property owners.

But the outcome of Nordlinger differed from the outcome in Allegheny Pittsburgh. The
most critical difference was the legitimate government purpose and the relationship of the tax
scheme to that purpose.17 “Allegheny Pittsburgh was the rare case where the facts precluded any

16
In fact, in Allegheny Pittsburgh, the Court expressly stated that it was not deciding the validity of Cali-
fornia‟s Proposition 13. Allegheny Pittsburgh, 488 U.S. at 344 n.4.
17
Another difference between the two cases was that the constitutional provision challenged in Nordling-
er was a generally applicable state law, whereas the scheme in Allegheny Pittsburgh was an “aberrational
enforcement policy,” Allegheny Pittsburgh, 488 U.S. at 344 n.4, used by the county assessor, “apparently
on her own initiative” and contrary to the state‟s constitutional, statutory, and regulatory policies, id. at
345. In Nordlinger, however, the Court addressed this difference in a footnote:
In finding Allegheny Pittsburgh distinguishable, we do not suggest that the protections of
the Equal Protection Clause are any less when the classification is drawn by legislative
mandate, as in this case, than by administrative action, as in Allegheny Pittsburgh. Nor
do we suggest that the Equal Protection Clause constrains administrators, as in Allegheny
Pittsburgh, from violating state law requiring uniformity of taxation of property.

16
plausible inference that the reason for the unequal assessment practice was to achieve the bene-
fits of an acquisition-value tax scheme. By contrast, [the California Constitutional provision]
was enacted precisely to achieve the benefits of an acquisition-value system.” Nordlinger, 505
U.S. at 16 (emphasis added). We read the Court‟s contrasting of the cases in this way to mean
that it considered Allegheny Pittsburgh to have been a class-of-one case – a tax policy directed at
a particular taxpayer. Cf. Bell, 367 F.3d at 712 (Posner, J., concurring) (reasoning that “requir-
ing proof of bad motive brings the class-of-one cases into harmony with . . . the purpose behind
the equal protection clause,” which “is to protect the vulnerable,” even if the “vulnerable” is “a
coal company that because its major assets (its mines) cannot be shifted to another state finds
itself targeted for discriminatory taxation, as in Allegheny Pittsburgh”). It has in fact been cha-
racterized as a class-of-one case, see Engquist, 128 S. Ct. at 2153-54; Olech, 528 U.S. at 564;
Bell, 367 F.3d at 712, which, again, the case before us is not, see Part III-A, supra. And at a
minimum, Allegheny Pittsburgh has essentially been narrowed to its facts and stands as a “rare
case” where the means did not rationally further the government‟s legitimate purpose. Nordling-
er, 505 U.S. at 16. Additionally, it has been criticized by at least one Justice on the Supreme
Court and by scholars.18

For these reasons, Allegheny Pittsburgh is inapposite, and the Court of Appeals erred in
relying on that case to the exclusion of Nordlinger and other cases applying traditional rational-
basis analysis.

Nordlinger, 505 U.S. at 16 n.8 (citations omitted).
Thus, the fact that the body that enacted Resolution 101 was a City administrative body, rather
than the state or city legislature, is irrelevant. Moreover, this administrative action was a quasi-legislative
rulemaking action, rather than a quasi-adjudicatory enforcement action.
18
See Nordlinger, 505 U.S. at 18-28 (Thomas, J., concurring in part and concurring in the judgment)
(providing a critical analysis of Allegheny Pittsburgh and suggesting it was wrong). As to criticism by
scholars, see, for example, William Cohen, State Law in Equality Clothing: A Comment on Allegheny
Pittsburgh Coal Company v. County Commission, 38 UCLA L. Rev. 87, 104 (1990) (“In time, Allegheny
should suffer the same fate as Morey v. Doud – overruled as a „decision [that] so far departs from proper
equal protection analysis in cases of‟ taxation.” (alteration in original) (citing City of New Orleans v.
Dukes, 427 U.S. 297, 306 (1976) (per curiam), overruling Morey v. Doud, 354 U.S. 457 (1957))); Robert
Jerome Glennon, Taxation and Equal Protection, 58 Geo. Wash. L. Rev. 261, 263 (1990) (arguing that
“Allegheny‟s analytical approach should be discarded quickly”).

17
 C

The plaintiffs also cite a number of decisions from other jurisdictions in which courts
have invalidated various debt-forgiveness measures as a violation of equal protection. In effect,
they argue that granting a benefit to those who do not pay their taxes promptly but not to those
who do pay their taxes promptly is per se arbitrary and capricious. The Court of Appeals also
found persuasive the reasoning of these decisions. See Armour, 918 N.E.2d at 412.

The primary case relied upon by the plaintiffs, and considered persuasive by the Court of
Appeals, is Armco Steel Corp. v. Michigan Department of Treasury, 358 N.W.2d 839 (Mich.
1984). In that case, corporations had two procedural remedies available to challenge their as-
sessed franchise fees: (1) petition for a redetermination and withhold payment, or (2) pay the fee
and file a written petition within three years. Id. at 844. The plaintiffs chose the second route,
electing to pay the fee and then challenge it. Id. at 841. The Michigan Supreme Court had pre-
viously held that the treasury department had not had the authority to calculate the franchise fee
based on its audits of the corporations. Id. at 840-41. In response to that holding, the treasury
department cancelled or rescinded deficiencies that remained unpaid, but it refused to grant re-
funds to corporate taxpayers who had already paid the franchise fees. Id. at 841.

The Michigan Supreme Court held this practice to violate the Equal Protection Clause.
Id. at 844. We find Armco Steel incorrect in its articulation of equal protection law and distin-
guishable on its facts.19

As to equal protection law, the Michigan Supreme Court did not consider whether there
was a legitimate purpose and whether the means used were rationally related to furthering such a
purpose. See id. at 843-44 (relying on Sioux City Bridge Co., 260 U.S. 441, a class-of-one case,
and principles of substantive equality). As to the facts, there was in Armco Steel a sense of foul
play present in that the initial assessment of the franchise fees had been held to be illegal, and
although the treasury department gave relief to some who were assessed illegally, it did not grant

19
Prior to the opinion of the Court of Appeals in this case, Armco Steel had not been cited by any courts
outside of Michigan.

18
relief to others who were also assessed illegally. In this case, however, the plaintiffs do not chal-
lenge the validity of the original Barrett Law assessment, and there is no other evidence of ani-
mus, ill-will, foul play, or other improper motive.

We also find unpersuasive the cases from other jurisdictions cited by the plaintiffs and
the Court of Appeals, which include Richey v. Wells, 166 So. 817 (Fla. 1936); State ex rel. Ste-
phan v. Parrish, 891 P.2d 445 (Kan. 1995); State ex rel. Matteson v. Luecke, 260 N.W. 206
(Minn. 1935); State ex rel. Hostetter v. Hunt, 9 N.E.2d 676 (Ohio 1937); and Snow‟s Mobile
Homes, Inc. v. Morgan, 494 P.2d 216 (Wash. 1972) (en banc).20 All but one of these cases con-
sidered challenges under state constitutions, rather than challenges under the Equal Protection
Clause of the Fourteenth Amendment.21 The only case to consider a federal claim was Richey,
where the court concluded that “the constitutional requirement of equal protection of the tax laws
prohibits the Legislature from selecting and classifying delinquent taxpayers as the beneficiaries
of special tax concessions . . . unless the same benefits are made equivalently available in some
form or other to nondelinquent taxpayers.” 166 So. at 819. The court‟s opinion, however, cited
no authority for this proposition, stating only that it was the “view” of the majority opinion‟s au-
thor. Id.

In each of these cases, delinquent taxpayers had been granted relief from their tax obliga-
tions, but those who had paid their taxes on time received no relief. See Richey, 166 So. at 819-
20 (Terrell, J., dissenting); Parrish, 891 P.2d at 454; Luecke, 260 N.W. at 208; Hunt, 9 N.E.2d at
677, 681-82; Snow‟s Mobile Homes, 494 P.2d at 219. Of course, the policy before us is not di-
rected at delinquent taxpayers. Underlying several of the decisions was that the policies were
arbitrary because they rewarded those who failed to pay their taxes and punished those who paid
their taxes on time, thereby encouraging delinquency. See Luecke, 260 N.W. at 208 (“[T]he sta-
tute here concerned encourages and fosters tax delinquencies in the state. . . . Such result is not
desirable, and demonstrates the unreasonableness of the classification.”); see also Hunt, 9 N.E.2d
at 683 (quoting Luecke); Parrish, 891 P.2d at 455-57 (relying on Hunt). With this rationale we

20
Many of these cases were also cited in Armco Steel, 358 N.W.2d at 844 n.6.
21
Although the Kansas Supreme Court stated that the challenged provisions of the Kansas Constitution
were “substantially identical” to the Equal Protection Clause (as opposed to completely identical), Par-
rish, 891 P.2d at 457 (citation omitted), it did not cite any federal law in its analysis.

19
cannot disagree; it certainly seems that such a regime would be bad policy. But that is exactly
what it is – a policy choice. And “equal protection is not a license for courts to judge the wis-
dom, fairness, or logic of [policy] choices.” Beach Communications, 508 U.S. at 313. Thus, we
do not find these decisions from other jurisdictions persuasive and decline to follow them.

IV

Applying the appropriate standard of review under the Equal Protection Clause to the un-
disputed facts, we hold that Resolution 101 does not violate the Equal Protection Clause as ap-
plied in this case because it is rationally related to legitimate governmental interests. And be-
cause we find that the City did not violate the plaintiffs‟ rights under the Equal Protection
Clause, we have no occasion to consider whether the trial court was correct in requiring the City
to provide refunds to the plaintiffs or whether alternative remedies consistent with due process
were available.22

Conclusion

We hold that Resolution 101 does not violate the Equal Protection Clause of the Four-
teenth Amendment because it is rationally related to legitimate governmental interests. Accor-
dingly, we reverse the decision of the trial court and remand with instructions to grant judgment
for the City on the plaintiffs‟ federal equal protection claim.

Shepard, C.J., and David, J., concur.

Rucker, J., dissents with separate opinion in which Dickson, J., concurs.

22
We acknowledge that a similar claim attacking the validity of Resolution 101 was brought by a differ-
ent group of plaintiffs in the United States District Court for the Southern District of Indiana and that the
court there decided in the plaintiffs‟ favor. Cox v. City of Indianapolis, No. 1:09-cv-435-WTL-DML,
2010 U.S. Dist. LEXIS 58876, 2010 WL 2484620 (S.D. Ind. June 14, 2010); see also Cox v. City of Indi-
anapolis, No. 1:09-cv-435-TWP-MJD, 2011 U.S. Dist. LEXIS 2890, 2011 WL 96669 (S.D. Ind. Jan. 11,
2011) (denying the City‟s motion to alter or amend judgment). We do not find Cox persuasive because it
relied almost entirely on the now-vacated opinion of our Court of Appeals in this case, quoting from it
extensively. And, as we have concluded here, it is our opinion that the Court of Appeals did not apply the
appropriate equal protection standard.

20
Rucker, Justice, dissenting.

I am not persuaded that the City has advanced a rational basis for its classification be-
tween property owners who chose to pay their Barrett Law assessments in a lump sum and those
who elected to pay in installments. Instead, I am of the view that Resolution 101 violates the
Equal Protection Clause of the United States Constitution as applied to the homeowners in this
case. Therefore I respectfully dissent.

The government has broad discretion to draw lines classifying persons for purposes of
disparate treatment. FCC v. Beach Commc‟ns, Inc., 508 U.S. 307, 315-16 (1993). “But there is
a point beyond which the State cannot go without violating the Equal Protection Clause.” Allied
Stores of Ohio, Inc. v. Bowers, 358 U.S. 522, 527 (1959). Specifically, a government classifica-
tion may not be capricious or arbitrary and “must rest upon some ground of difference having a
fair and substantial relation to the object of the legislation.” Id. at 527 (internal quotation marks
and citations omitted).

Supreme Court jurisprudence teaches that a legislative body is not required to articulate
its reasons for enacting a statute. Beach Commc‟ns, 508 U.S. at 315; Nordlinger v. Hahn, 505
U.S. 1, 15 (1992). But, when a legislature does state a reason for a statutory classification, the
stated reason must be rationally related to the classification made. In such circumstances, it is
inappropriate to consider other conceivable or even expressed rationales for the purpose of “sav-
ing” an inadequately justified classification. See Allied Stores, 358 U.S. at 530 (recognizing that
where statutes “specifically declared their purpose” they “left no room to conceive of any other
purpose for their existence”); cf. Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 463 n.7
(1981) (“In equal protection analysis, this Court will assume that the objectives articulated by the
legislature are actual purposes of the statute, unless an examination of the circumstances forces
us to conclude that they could not have been a goal of the legislation.” (internal quotation marks
and citation omitted)).

As the majority points out, Resolution 101 itself included the City‟s rationale for treating
the Homeowners differently from other similarly situated property owners in Northern Estates,
namely “because Barrett Law funding imposed financial hardships on middle- and low-income
property owners who were often most in need of sanitary sewers due to failing septic systems.”
Slip op. at 9. More specifically the Resolution provided:

Whereas, The Board of Public Works (Board) is authorized by
Indiana Code (IC) 36-9-39 to administer „Barrett Law Funding for
Municipal Sewer‟ program under which the Board approves all
Barrett Law projects within the City of Indianapolis-Marion
County, including [an] individual assessment amount per parcel,
and

Whereas, The Barrett Law Funding for Municipal Sewer program
may present financial hardships on many middle to lower income
participants who most need sanitary sewer service in lieu of failing
septic systems, and

Whereas, The Department of Public Works (DPW) has a proposed
rate and fee increase package to the City-County Council for
approval to continue to address the re-capitalization, expansion,
operation and maintenance, and regulatory requirements of the
City‟s sanitary sewer system which was approved by the City-
County Council on October 31, 2005 (Proposal No. 535 as
amended) effective on January 1, 2006, and

Whereas, The financial model upon which Proposal No. 535 was
based, considered the current assessments being made by
participants in active Barrett Law projects as well as the future
needs to eliminate leaking septic systems in all of the City of
Indianapolis-Marion County in order to discontinue the use of
Barrett Law Funding for Municipal Sewer program for the finance
of sanitary sewers.

Now, Therefore, Be It Resolved that [the Board] hereby forgive[s]
all assessment amounts it established pursuant to the Barrett Law
Funding for Municipal Sewer program due and owing from the
date of November 1, 2005[,] forward to the Department of Public
Works via the Barrett Law Assessment Bureau.

Appellant‟s App. at 350. For the most part this resolution expresses the City‟s reasons for dis-
continuing the Barrett Law method of financing sewer projects in favor of the Septic Tank Eli-
mination Program. However, merely declaring that Barrett Law funding “imposed financial
hardships on middle- and low-income property owners who were often most in need of sanitary

2
sewers due to failing septic systems,” does nothing to explain why the City treated differently
residents who elected to pay their assessments in a lump sum versus those who elected to pay in
installments.

To be sure the City advanced multiple post-hoc rationalizations for the differential treat-
ment.1 But such arguments do not obviate the failure of the Resolution to pass rational basis
scrutiny on the reasoning set forth in its text.

This is not a case like Clover Leaf, where the classification between plastic and non-
plastic milk cartons satisfied equal protection concerns and there was evidence the legislature
rationally believed the classification would further the stated objective of reducing solid waste,
despite empirical evidence to the contrary. See Clover Leaf, 449 U.S. at 463-64, 469. Here,
there is no indication that the Board even believed the classification would further its stated ob-
jective. The stated purpose in Resolution 101 simply fails to express any connection to the dis-
tinction between residents who elected to pay their assessments in a lump sum and those who
elected to pay in installments. In my view this disconnect demonstrates that the classification
fails to have “a fair and substantial relation” to the statutory objective. See Allied Stores, 358
U.S. at 527. I therefore agree with the Court of Appeals and would affirm the trial court‟s grant
of summary judgment in favor of the homeowners.

Dickson, J., concurs.

1
The Public Works Committee meeting minutes the majority cites at footnote 10 do appear to contain the
reasoning of the director of the Department of Public Works for not reimbursing the homeowners, essen-
tially because providing refunds would “simply be impossible.” Supra Committee Meeting Minutes at
10, as cited in Slip op. at 9 n.10. This statement was made before the adoption of the Resolution, but I am
not convinced this reasoning may be read in conjunction with the Resolution‟s stated purpose. Even if it
could be considered, it only addresses why the Homeowners were not reimbursed, not why the Resolution
made the chosen classification. Further, it is merely the reasoning of the Director of the Department of
Public Works given in response to a citizen‟s question. There is no indication that such reasoning was
adopted by the Board in Resolution 101. In addition the fact that most of these rationales were advanced
during the course of this litigation, and nearly two and a half years after the Resolution was passed, rend-
ers them suspect in my view.

3