New Cert Petition (Michael Berger): Pleading Class-Of-One Equal Protection Claims

By noemailnoemail-org-robert-thomas-inversecondemn on April 16, 2025

Here’s the latest cert petition from the desk of Michael Berger, a property rights case with an equal protection element.

Demarest wanted to subdivide. Not that big a deal, right? Well, apparently it was. The Petition alleges that the Town had a burr under its saddle about the guy for a while, going back to when he purchased the property and built a home there more than 20 years ago, and had not treated him well, or fairly. Then, as the Petition notes, he “was vocal about his treatment by the Town.” Pet. at 5. We know how being that way endears one to the government, right? As the Petition puts it:

Here, Mr. Demarest was vocal about his treatment by the Town. In consequence, the Town took the actions noted above to isolate his property from the general system of roads in the area. The Town removed money from the budget that would have preserved reasonable access to his property. The Town went so far as to seek legal advice on how it might renege on its promise to Mr. Demarest to keep access to his home open. In May of 2023, Town officials openly discussed erecting gates to block his access. In response to his request to repair a culvert, they expressed their intent to eliminate his access altogether. They repeatedly refused to allow him to speak about items on the Selectboard agendas, and even scheduled a site visit to failed culverts on the road the only day of the year they could be certain Mr. Demarest could not attend, i.e., the date on which he was arguing his case against the Town in the Second Circuit Court of Appeals in New York City. (Pet.App.68a).

Pet. at 5-6.

He ended up suing in federal court, alleging inter alia, an Olech class-of-one Equal Protection claim. The district court dismissed, concluding he didn’t plead enough.

Fascinating issue, made worse by the Supreme Court’s unwillingness to go in an clear up the uncertainty the lower courts have wrought in these cases. May a plaintiff notice plead (I was treated differently than others similarly situated), or must she allege ill will and a high degree of similarity between this case and others? See Pet. at 11 (“It cannot satisfy Fourteenth Amendment standards to require the plaintiff to prove his case in the complaint, on pain of never being allowed to go to trial or even resort to ordinary discovery procedures.”).

Here are the Questions Presented:

Frequently in these troubled times, citizens and municipal governments are experiencing conflict. For recent illustrations, see Lozman v. City of Riviera Beach, 568 U.S. 115 (2013) and Lozman v. City of Riviera Beach, 585 U.S. 87 (2018). In the Lozman cases, this Court had to intervene to protect a property owner who had been harassed by his city government in retaliation for his speaking out at public meetings. This case presents similar issues of municipal retaliation against an outspoken citizen.

The questions presented are:

1. When a property owner exercises his First Amendment right to speak out at public meetings, does it violate that Constitutional guarantee when the governmental body punishes the citizen by interfering with access to his property?

2. When local government treats similarly situated property owners differently for no valid reason, particularly when some of those other, comparator-owners are officials or employees of the very agency engaging in the disparate treatment, has a violation of the Fourteenth Amendment’s equal protection guarantee occurred?

3. In order to state an equal protection claim under the Court’s standards for a “class of one,” is it sufficient for the complaint to allege different treatment for similarly situated parties? Is the