What’s odd about this opinion in Del Marcelle v. Brown County Corp, is that there is a 5-5 tie. Usually in such cases, no opinion issues. But, well, this is the 7th Circuit after all:

PER CURIAM. 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.

Here is Posner’s opinion.

This opinion, expressing the views of four judges, proposes a simple standard: that the plaintiff be re quired to show that he was the victim of discrimination intentionally visited on him by state actors who knew or should have known that they had no justification, based on their public duties, for singling him out for unfavorable treatment— who acted in other words for personal reasons, with discriminatory intent and effect. The plaintiff’s complaint, although detailed, does not allege that the defendants failed to protect him from harassment because they wanted to single him out for unfavorable treatment and had no justification, such as limited resources, for their failure to protect him. For this reason, the suit is rightly being dismissed.

You may recall that Posner wrote the Circuit opinion in Olech, in which he was reversed:

The history of class-of-one litigation can be said to have begun with our decision in Olech v. Village of Willowbrook, 160 F.3d 386 (7th Cir. 1998), though there were earlier cases in our court and in other courts as well. See id. at 387. The reason for making Olech the starting point of our narrative is what the Supreme Court did with it.

I get the feeling he is just a tad resentful.

And I’m jut a tad resentful my article wasn’t included in this string-cite.

Like Justice Breyer, lower-court judges did not believe that class-of-one litigation could be kept from exploding without some limiting principles, but they (we) couldn’t and still can’t agree on what those principles should be. Eight years ago a concurring opinion in Bell v. Duperrault, 367 F.3d 703, 709-13 (7th Cir. 2004), noted the lack of clarity concerning the standard for deciding such cases, echoing scholarly commentary: Robert C. Farrell, “Classes, Persons, Equal Protection, and Village of Willowbrook v. Olech,” 78 Wash. L. Rev. 367, 400-25 (2003); J. Michael McGuinness, “The Impact of Village of Willowbrook v. Olech on Disparate Treatment Claims,” 17 Touro L. Rev. 595, 603-06 (2001); Shaun M. Gehan, Comment, “With Malice Toward One: Malice and the Substantive Law in ‘Class of One’ Equal Protection Claims in the Wake of Village of Willowbrook v. Olech,” 54 Me. L. Rev. 329, 379-80 (2002). And since then scholarly complaint about the lack of clarity in class-of-one case law has mushroomed. See H. Jefferson Powell, “Reasoning About the Irrational: The Roberts Court and the Future of Constitutional Law,” 86 Wash. L. Rev. 217, 261-76 (2011); Benjamin L. Schuster, “Fighting Disparate Treatment: Using the ‘Class of One’ Equal Protection Doctrine in Eminent Domain Settlement Negotiations,” 45 Real Property, Trust & Estate L.J. 369, 391-94 (2010); Robert C. Farrell, “The Equal Protection Class of One Claim: Olech, Engquist, and the Supreme Court’s Misadventure,” 61 S.C. L. Rev. 107, 121-25 (2009); Kerstin Miller, Note, “Engquist v. Oregon Department of Agriculture: No Harm Meant? The Vanquished Requirement of Ill-Will in Class-Of-One Equal Protection Claims and the Erosion of Public Employees’ Constitutional Rights,” 68 Md. L. Rev 915, 935-36 (2009); Matthew M. Morrison, Comment, “Class Dismissed: Equal Protection, the ‘Class-of-One,’ and Employment Discrimination After Engquist v. Oregon Department of Agriculture,” 80 U. Colo. L. Rev. 839, 854-56 (2009); William D. Araiza, “Irrationality and Animus in Class-of-One Equal Protection Cases,” 34 Ecology L.Q. 493, 498-500 (2007); Robert J. Krotoszynski, Jr., “Taming the Tail that Wags the Dog: Ex Post and Ex Ante Constraints on Informal Adjudication,” 56 Admin. L. Rev. 1057, 1068 n. 50 (2004).

I think he cited every article on Olech but mine. Probably because the article was against the position he sought.

This case seems to be a split among the circuits. Maybe there will be time yet for a cert grant?