November/December 2019 Issue

Also in this issue: Seventh Circuit Upholds Ordinances Regulating the Size and Location of Signs     |     Eagle Point Solar Case Dismissed by Circuit Court

“You’re Picking on Me!” When is Selective Prosecution Unconstitutional?

Eileen A. Brownlee | 12.04.19

Defendants in ordinance prosecution matters often complain that municipalities or law enforcement officers are unfairly targeting them while allowing other individuals to continue to violate municipal ordinances without citing or prosecuting them. They point to the junk in other people’s yards and how fast other drivers are driving. They argue that the neighbor pushed leaves or snow into the street, too.

In a recent unpublished Court of Appeals opinion, the Court addressed the issue of selective prosecution and determined that a mere allegation that one individual was prosecuted for an ordinance violation when another individual was not prosecuted for a similar violation was insufficient to support an Equal Protection claim of selective prosecution.

In Village of Mishicot v. Arseneau, Case No. 2019AP541 (November 6, 2019), the defendant sought to repair and expand a storage shed on property she owned, which property was located in a floodway. She discussed with the village clerk whether such construction could be undertaken in a floodway. The clerk, after consulting with the Department of Natural Resources (DNR), sent a letter to the defendant in June 2016 stating that such structures were not permitted in the floodway and that she could not do the work. 

Despite the letter, Arseneau began construction on the shed. The Village sent a second letter in July 2016 advising her that she was in violation of the Village’s floodplain ordinance and building code and needed to stop construction immediately. The letter stated that, if Arseneau refused to comply, she would be subject to ordinance enforcement. She did not comply.

In early August, the Village received a letter from the DNR reminding the Village that it was obligated to enforce its floodplain ordinance and that Arseneau’s structure was in violation of the ordinance. The DNR further reminded the Village that, if it failed to enforce its ordinance, the Federal Emergency Management Agency could place the Village on probation or suspend its participation in the National Flood Insurance Program. This could result in Village residents being unable to obtain flood insurance or in residents being required to pay substantially higher premiums, even if the insurance remained available.

Based on other conversations with the village clerk, Arseneau believed that if she put the shed on a trailer, it would comply with the ordinance, as the shed could then be moved if a flood occurred. The village clerk, however, sent a letter to the defendant in mid-August informing her that, according to the DNR, putting wheels on the structure was not an option because it was not a vehicle and because people tend to leave such structures behind when a flood occurs.

In January of 2017, Arseneau was cited and convicted in municipal court for building in a floodplain and violating the building code. Arseneau appealed to circuit court and was again convicted. She then moved for reconsideration claiming that the matter had not been fully tried. Arseneau claimed that the Village had violated her Fourteenth Amendment rights to Equal Protection and that the Village had discriminated against her by selectively prosecuting her. The circuit court scheduled another hearing.

The evidence at the hearing showed that another property owner had been permitted to construct a storage building in the floodway. That property owner had asked, prior to purchasing the building, if it was permissible to build in the floodway and had been told by the village clerk that it was. He then spent over $5,000 moving the building. Later, although he was told that the building was not allowed in the floodplain, he was never prosecuted. Arseneau argued that, because it was feared that the other property owner would sue the Village over the advice he had been given and because she had no basis for a lawsuit, the Village had acted in a discriminatory manner when it prosecuted only her.

The Village presented evidence that other property owners had been directed to move structures and all of them had complied. The Village also emphasized that, in Arseneau’s case, the DNR was threatening to take action against the Village if the defendant’s building were not removed. This was not the case with the other property owner. Third, the Village noted that Arseneau was told that she could not construct the building before she commenced construction.

The circuit court determined that the village did selectively prosecute Arseneau, violated her Fourteenth Amendment right to Equal Protection and granted her motion to dismiss the citation. Although the circuit court agreed that there was no evidence of well-established discriminatory factors such as race, religion, or gender, the court accepted Arseneau’s argument that an ​“arbitrary classification” was made when the Village did not cite the other property owner only because he could sue the village for the clerk’s error while issuing a citation to Arseneau because she had no basis to sue the Village. The Village appealed.

The Court of Appeals reviewed long-standing case law on the burden of proving selective prosecution. The Court noted that before a defendant is even entitled to an evidentiary hearing on a claim of selective or discriminatory prosecution, he or she must make a prima facie showing of both discriminatory effect and discriminatory purpose. 

To show a discriminatory effect, the defendant must have been singled out for prosecution while others similarly situated have not. For purposes of showing discriminatory effect, ​“similarly situated” means that the circumstances show no distinguishable, legitimate prosecutorial factors that might justify making different prosecutorial decisions. To show a discriminatory purpose, the prosecutor’s selection must have been based on an impermissible factor (such as race, religion, or other arbitrary classification). 

In stand-alone cases such as this case (i.e., where a single individual is alleging a single incident of selective prosecution), the defendant’s claim may also be proven by a substantial showing that the decision to prosecute was an attempt to prevent the exercise of constitutional rights, or was prompted by personal vindictiveness. In Arseneau, the defendant did not argue that either of these circumstances existed.

Only if a defendant successfully makes a prima facie case of both discriminatory effect and purpose will he or she be entitled to an evidentiary hearing. 

The Court of Appeals determined that Arseneau failed to meet her burden as to either prong; she did not present sufficient evidence to show either discriminatory effect or a discriminatory purpose. 

Arseneau relied exclusively on the failure to prosecute another property owner as prima facie evidence of a discriminatory effect, claiming they were ​“similarly situated.” The Court of Appeals disagreed, noting that, unlike the other property owner, Arseneau had been told in advance that her construction would violate the ordinance; that, once she began construction, she was told she should stop; and that she was further advised that she would be subject to ordinance enforcement if she did not. Arseneau ignored the Village’s correspondence. 

By contrast, before purchasing his storage unit, the other property owner made an effort to make sure he complied with the ordinances and the village clerk advised him that the unit was acceptable. When it was discovered later on that the clerk erred and the Village requested that he move the storage unit, the other property owner was cooperative in trying to work out a solution.

The Court also deemed it important that the DNR notified the Village of Arseneau’s violation and of the possible consequences to the Village and Village residents if the Village failed to enforce the ordinance. No DNR warnings were received with respect to the other property.

The Court, therefore, determined that there were ​“distinguishable legitimate prosecutorial factors” that might have justified the non-prosecution of the other property owner. 

The Court also noted that Arseneau’s ​“notion that her citation was discriminatory because she could not have brought a lawsuit against the Village,” was unsupported by any evidence of a threatened or retaliatory lawsuit by the other property owner. Even had there been evidence of such a lawsuit, the Court opined that the Village could consider the impact of its erroneous advice in that matter that might justify a different approach in that case. Finally, the Court pointedly stated that Arseneau failed to explain how the clerk’s mistake in one case conferred the benefit of that mistake on others who are in violation of the ordinance.

In addition, the Court determined that the defendant failed to establish the second prong — discriminatory purpose — because she failed to show that she was cited on account of some impermissible, arbitrary, vindictive, or illicit preferential basis. 

The Court reversed the circuit court’s decision. Because the defendant failed to make a prima facie showing that the prosecution had either a discriminatory effect or a discriminatory purpose, let alone both, her motion for reconsideration should have been dismissed without any need for an evidentiary hearing.

Takeaways

Municipal prosecutors have great discretion in deciding whether or not to prosecute in a particular case. Not all ordinances can or should be prosecuted and the exercise of discretion always involves a degree of selectivity. In making a claim of selective prosecution, before a defendant is even entitled to a hearing, the burden is on a defendant to make a prima facia showing that he or she was singled out for prosecution while others similarly situated were not, and that such selection was based on an impermissible factor. In the absence of such a showing, the defendant’s case will fail.