Neighbor's "Animus" Lawsuit Against Mayor Can Proceed

Neighbor's "Animus" Lawsuit Against Mayor Can Proceed

  Wednesday, June 26, 2013    Julie Tappendorf

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The Seventh Circuit Court of Appeals issued an opinion allowing a property owner's equal protection claims against his neighbor (the elected mayor) to proceed, finding sufficient evidence in the record of the mayor's animus against the plaintiffs.  Swanson v. City of Chetek.

 

The plaintiffs, Karl Swanson and Kathy Wietharn, live next to the elected mayor of their town, Chetek, Wisconsin.  Swanson applied for a building permit to remodel his home, which was issued by the building inspector.  He also applied for a permit to install a fence between his property and the mayor's property.  According to the trial court record, the mayor did not like the fence or the work being performed on the neighboring property and began a "harassment" campaign against the plaintiffs, including the following:

• repeatedly telling the city's building inspector that he shouldn't have issued the remodeling permit;
• entering the plaintiffs' home without permission;
• using his influence to cause the building inspector to block or delay issuance of the fence permit;
• telling the fence contractors that the plaintiffs were drug dealers and unlikely to pay for the work;
• causing the City's prosecution of the owner in municipal court for the construction of the fence in violation of a five foot setback requirement, even though the ordinance only applied to fences four feet or higher.

The plaintiffs filed a lawsuit against the mayor and the City, alleging class-of-one equal protection claims, as well as defamation and slander.  The trial court ruled in favor of the mayor on the equal protection claim, finding that the plaintiffs failed to show a similarly situated individual who received more favorable treatment. 

 

On appeal, the Seventh Circuit Court reversed.  The court first reviewed the standard for a class-of-one claim.  To find a class class-of-one claim, a public official "with no conceivable basis for his action other than spite or some other improper motive...comes down hard on a hapless private citizen."  Because improper motive is usually covert, courts first look to eliminate all proper motives. 

Usually, the court will compare similarly situated individuals to infer animus.  However, where animus is readily obvious, the court determined that it would be redundant to require a plaintiff to show disparate treatment in a near exact comparison to another individual. 

 

In this case, the mayor's conduct demonstrated overt hostility to the plaintiffs, certainly rising to the level of obvious animus against the plaintiffs.  Thus, the court remanded the case to the district court for the plaintiffs to show that the type of harassment they faced by the mayor's conduct does not normally follow requests for fence permits.