Civil Rights — equal protection — class of one

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United States Court of Appeals For the Seventh Circuit

Civil

Civil Rights — equal protection — class of one

“Five judges have voted to affirm the district court’s judgment and five to remand for further proceedings. The result of this tie vote is affirmance, because it takes a majority to reverse a judgment.”

“Although it is customary not to issue opinions when an appellate court affirms on a tie vote, there are occasional departures. See, e.g., School District of the City of Pontiac v. Secretary of Education, 584 F.3d 253 (6th Cir. 2009) (en banc); United States v. McFarland, 311 F.3d 376, 417-20 and n. 1 (5th Cir. 2002) (en banc) (dissenting opinion, collecting cases); United States v. Walton, 207 F.3d 694 (4th Cir. 2000) (en banc); United States v. Klubock, 832 F.2d 664 (1st Cir. 1987) (en banc); see also Standard Industries, Inc. v. Tigrett Industries, Inc., 397 U.S. 586 (1970) (dissenting opinion); Biggers v. Tennessee, 390 U.S. 404, 404 n. 1 (1968) (dissenting opinion, collecting cases). A majority of the judges of the court have concluded that this is an appropriate occasion for such a departure. The law concerning ‘class of one’ equal-protection claims is in flux, and other courts faced with these cases may find the discussion in the three opinions in this case helpful.”

“Judge Posner’s lead opinion is joined by Judges Kanne, Sykes, and Tinder. Chief Judge Easterbrook has written an opinion concurring in the judgment. Judge Wood’s dissenting opinion is joined by Judges Flaum, Rovner, Williams, and Hamilton. The judgment is affirmed by an equally divided court.”

Affirmed.

10-3426 Del Marcelle v. Brown County Corp.

Appeal from the United States District Court for the Eastern District of Wisconsin, Griesbach, J., Per Curiam.