The opinion
No. 02-325
IN THE SUPREME COURT OF THE STATE OF MONTANA
2004 MT 5
RICHARD J. LOSLEBEN,
Plaintiff and Appellant,
v.
JIM OPPEDAHL, JEFF BRYSON,
WAYNE CAPP, AND STATE OF MONTANA,
Defendants and Respondents.
APPEAL FROM: District Court of the Eighth Judicial District,
In and For the County of Cascade, Cause No. ADV-00-102(X)
Honorable David Cybulski, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Howard F. Strause and Lawrence A. Anderson, Attorneys at Law,
Great Falls, Montana
For Respondents:
Neil E. Ugrin and Mark F. Higgins, Ugrin, Alexander,
Zadick & Higgins, P.C., Great Falls, Montana
Submitted on Briefs: October 10, 2002
Decided: January 28, 2004
Filed:
__________________________________________
Clerk
Justice Jim Rice delivered the Opinion of the Court.
¶1 Plaintiff Richard J. Losleben (Losleben) appeals the February 28, 2002 order of the
Eighth Judicial District Court, Cascade County, granting qualified immunity to Defendant
Wayne Capp (Capp), dismissing Losleben’s 42 U.S.C. § 1983 claim as to Defendant Capp,
and denying Losleben’s motion for partial summary judgment. We affirm and remand.
¶2 Losleben raises the following issues on appeal:
¶3 1. Did the District Court err in granting Defendant Capp qualified immunity on the
basis that it was not clearly established at the time of Losleben’s discharge from employment
that the Fourteenth Amendment’s Equal Protection Clause gives rise to a cause of action on
behalf of a “class of one,” where the claimant does not allege membership in a class or
group, but asserts that vindictiveness motivated a government official to treat him differently
than others similarly situated?
¶4 2. Did the District Court err in denying Losleben’s motion seeking partial summary
judgment that he did not violate Hunt’s constitutional right to counsel, nor hinder the
prosecution of her co-conspirators, on the basis that such contentions were surrounded by
disputed issues of material fact? For the reasons set forth herein, we decline to address the
second issue raised by Losleben.
FACTUAL AND PROCEDURAL BACKGROUND
¶5 Richard Losleben began his employment with the State of Montana as a Gambling
Investigator in 1983, and at the time of his termination from employment on May 12, 1999,
was a criminal investigator for the Gambling Control Division of the Montana Department
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of Justice. Following an unsuccessful grievance of his termination before the Montana
Attorney General, Losleben filed a complaint in state district court pursuant to 42 U.S.C. §
1983, alleging that his former supervisors, Jim Oppedahl (Oppedahl), administrator of the
Gambling Control Division, Jeff Bryson (Bryson), Bureau Chief of the Gambling Control
Division, and Wayne Capp (Capp), District Supervisor of the Gambling Control Division,
violated his constitutional right to equal protection of the law by engaging in a vindictive and
spiteful campaign to terminate his employment. Losleben additionally sought damages for
wrongful discharge and emotional distress against the State under state law.
¶6 On behalf of all the defendants, the State answered Losleben’s complaint, raising the
defense of qualified immunity and alleging that good cause supported Losleben’s
termination, which was based, in principal part, upon his alleged violation of a suspect’s
constitutional rights during questioning on September 9 and 10, 1998. According to the
State, Losleben continued to interrogate Tena Beavers-Hunt (Hunt), a suspect of a fraudulent
gambling conspiracy, after she requested an attorney, thereby violating her constitutional
right to counsel as espoused in Miranda and the Fifth Amendment of the United States
Constitution.
¶7 Losleben responded to the State’s contentions by seeking partial summary judgment
that he did not violate Hunt’s constitutional right to counsel during questioning or hinder the
prosecution of Hunt’s co-conspirators. In support of his motion, Losleben conceded Hunt
invoked her right to counsel after being advised of her Miranda rights on September 9, 1998;
however, he argued that she continued to discuss the case with him after requesting an
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attorney, and telephoned him the following day to make a statement. The State opposed
Losleben’s motion, asserting that disputed issues of material fact precluded summary
judgment.
¶8 On August 7, 2001, the State brought its own motion for partial summary judgment,
seeking dismissal of Losleben’s § 1983 claim on the basis that Oppedahl, Bryson, and Capp
were protected by qualified immunity. Losleben subsequently abandoned his civil rights
claims against Oppedahl and Bryson, and they were dismissed from the lawsuit.
¶9 On February 28, 2002, the District Court ruled on the parties’ respective motions for
partial summary judgment. Concluding that Losleben’s claim for equal protection as a “class
of one” was not clearly established at the time of his termination from employment, nor
based upon the arbitrary, intentional, and personally vindictive treatment of a member of a
protected class, the court held Capp was entitled to qualified immunity and dismissed him
from the case. The court further found Losleben’s contentions that he did not violate Hunt’s
constitutional rights during the custodial interrogations on September 9 and 10, 1998, were
surrounded by disputed issues of material fact, and, accordingly, denied his request for
partial summary judgment.
¶10 On March 29, 2002, pursuant to Rule 54(b), M.R.Civ.P., the District Court certified
its February 28, 2002 judgment entered summarily in favor of Defendant Capp on
Losleben’s § 1983 claim as final. While the District Court recognized that Losleben’s §
1983 claim, and his motion for partial summary judgment that he did not violate the
constitutional rights of Hunt during questioning, were based on similar underlying facts, and
4
decided both pursuant to the same February 28, 2002 order, the court ordered certification
only as to the § 1983 claim. This notwithstanding, Losleben appeals from both the District
Court’s order granting qualified immunity to Defendant Capp, as well as its denial of
Losleben’s motion for partial summary judgment. For the reasons set forth herein, we
decline to address Losleben’s second issue.
DISCUSSION
¶11 Did the District Court err in granting Defendant Capp qualified immunity on
the basis that it was not clearly established at the time of Losleben’s discharge from
employment that the Fourteenth Amendment’s Equal Protection Clause gives rise to
a cause of action on behalf of a “class of one,” where the claimant does not allege
membership in a class or group, but asserts that vindictiveness motivated a government
official to treat him differently than others similarly situated?
¶12 Losleben brought this action pursuant to 42 U.S.C. § 1983, alleging that his former
supervisor, Wayne Capp, violated his constitutional right to equal protection of the law by
treating him differently than others similarly situated. Losleben argues that Capp’s
discriminatory actions were motivated by a vindictive and spiteful effort to terminate his
employment, and, therefore, violated clearly established law that government officials may
not intentionally single someone out for abusive treatment. The District Court dismissed
Losleben’s § 1983 claim as to Defendant Capp, concluding that an equal protection claim
for a “class of one” was not clearly established at the time of the alleged misconduct, and,
therefore, Capp was entitled to qualified immunity.
¶13 We review a district court’s determination of qualified immunity de novo.
Bahrampour v. Lampert (9th Cir. Jan. 13, 2004), ___ F.3d ___, 2004 WL 51313 at * 6. The
doctrine of qualified immunity operates to shield government officials performing
5
discretionary functions from liability for civil damages when their conduct does not violate
clearly established statutory or constitutional rights of which a reasonable person would have
known. Grossman v. City of Portland (9th Cir. 1994), 33 F.3d 1200, 1208. “While public
officials are thus generally protected from civil liability under the doctrine, the defense will
fail when their actions violate law that is clearly established, because ‘a reasonably
competent public official should know the law governing his conduct.’” Thompson v. Souza
(9th Cir. 1997), 111 F.3d 694, 698 (citing Harlow v. Fitzgerald (1982), 457 U.S. 800, 818,
102 S.Ct. 2727, 2738, 73 L.Ed.2d 396, 410).
¶14 In determining whether an official is entitled to qualified immunity, we ordinarily
begin with a two-part analysis: (1) we consider whether the law governing the official’s
conduct was clearly established at the time of the alleged misconduct. If established, we
proceed to inquire (2) whether, under that law, a reasonable official could have believed his
conduct was lawful. If so, the official is entitled to immunity from suit. Boreen v.
Christensen (1996), 280 Mont. 378, 384, 930 P.2d 67, 70. However, recently, in Saucier v.
Katz (2001), 533 U.S. 194, 200, 121 S.Ct. 2151, 2155, 150 L.Ed.2d 272, 281, the United
States Supreme Court instructed that before we can determine whether state officials are
entitled to qualified immunity, we must first address the merits of the alleged constitutional
violation. The first question we must ask is whether “[t]aken in the light most favorable to
the party asserting the injury, do the facts alleged show the [official’s] conduct violated a
constitutional right?” Saucier, 533 U.S. at 201, 121 S.Ct. at 2156, 150 L.Ed.2d at 281. If
we answer this question in the negative, then the inquiry is over and the case should be
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dismissed–that is, the qualified immunity issue is never reached. However, if we determine
otherwise, we then proceed to the second stage of the Saucier analysis and “ask whether the
right was clearly established” at the time it was allegedly infringed. Saucier, 533 U.S. at
201, 121 S.Ct. at 2156, 150 L.Ed.2d at 281. “The relevant, dispositive inquiry in
determining whether a right is clearly established is whether it would be clear to a reasonable
officer that his conduct was unlawful in the situation he confronted.” Saucier, 533 U.S. at
202, 121 S.Ct. at 2156, 150 L.Ed.2d at 282.
¶15 The Saucier order of analysis is significant because it serves to clarify the
constitutional rights at issue by providing officials with prospective guidance as to the
constitutionality of their conduct. Bahrampour, ___ F.3d ___, 2004 WL 51313 at * 6.
When courts merely observe that the law is unsettled, no such guidance is provided.
Bahrampour, ___ F.3d ___, 2004 WL 51313 at * 6. Yet, as other courts addressing this
issue have noted, determining whether a constitutional claim exists is an uncomfortable task
where, as here, the answer depends upon a myriad of facts not yet fully developed. See
Dirrane v. Brookline Police Dept. (1st Cir. 2002), 315 F.3d 65, 69-70; and Koch v. Town of
Brattleboro (2nd Cir. 2002), 287 F.3d 162, 166. In those situations, some courts have
resolved this difficulty by proceeding directly to the second stage of the Saucier analysis.
See Koch, 287 F.3d at 166 (when convinced that the purported constitutional right violated
was not “clearly established,” the court retains discretion to refrain from determining
whether, under the first step of the Saucier test, a constitutional right has been violated at
all); and Ehrlich v. Town of Glastonbury (2nd Cir. 2003), 348 F.3d 48, 56 (recognizing that
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moving to the second stage of the Saucier analysis is appropriate when the existence of a
constitutional violation depends upon the resolution of uncertain state law); see also Santana
v. Calderon (1st Cir. 2003), 342 F.3d 18, 29-30 (finding that the sequential rule of Saucier
may not have contemplated situations where the core of the constitutional allegation depends
upon unresolved issues of Commonwealth constitutional law).
¶16 In this case, the District Court did not apply the first step of the Saucier test, and, to
that extent, we conclude it erred. However, because only the issue of qualified immunity has
been certified to us pursuant to the District Court’s February 28, 2002 order, we will assume
a constitutional violation could have occurred under the facts alleged and proceed to the
second stage of the Saucier analysis. Thus, the sole question on appeal is whether the law
in 1999, when Losleben’s employment was terminated, clearly recognized equal protection
claims brought by a “class of one,” so as to give Capp fair warning that his alleged treatment
of Losleben was unconstitutional.1
¶17 The Equal Protection Clause of the Fourteenth Amendment mandates that government
shall not “deny to any person within its jurisdiction equal protection of the laws.” U.S.
Const. Amend. XIV. “At the heart of the Constitution’s guarantee of equal protection lies
the simple command that the Government must treat citizens ‘as individuals, not as simply
components of a racial, religious, sexual, or national class.’” Metro Broadcasting, Inc. v.
1
We note that in Saucier, 533 U.S. at 207-208, 121 S.Ct. at 2159, 150 L.Ed.2d at
285, the United States Supreme Court likewise declined to address the first prong of the
test it set forth therein, on the basis that it had granted certiorari only to determine
whether qualified immunity was appropriate, and not to decide the underlying
constitutional issue. We face a similar quandary.
8
F.C.C. (1990), 497 U.S. 547, 602, 110 S.Ct. 2997, 3028, 111 L.Ed.2d 445, 486-87
(O’Connor, J., dissenting) (citation omitted), overruled on other grounds by Adarand
Construction, Inc. v. Pena (1995), 515 U.S. 200, 227, 115 S.Ct. 2097, 2113, 132 L.Ed.2d
158. Thus, a person bringing a claim under the Equal Protection Clause traditionally must
show intentional discrimination against him because of membership in a particular class, not
merely that he was treated unfairly as an individual.
¶18 Recently, however, in Village of Willowbrook v. Olech (2000), 528 U.S. 562, 120
S.Ct. 1073, 145 L.Ed.2d 1060, the United States Supreme Court concluded that an equal
protection claim may be brought by a claimant as a “class of one,” even though the claimant
is not a member of a traditionally recognized protected class. Olech involved a city’s
discriminatory behavior in conditioning a property owner’s connection to a municipal water
supply on the owner’s granting of an easement. The property owner brought suit, alleging
that the Village of Willowbrook treated her differently from other property owners in the
Willowbrook area because of ill will generated by a previous unrelated lawsuit she had filed
against the Village. Olech, 528 U.S. at 563, 120 S.Ct. at 1074, 145 L.Ed.2d at 1063. The
district court dismissed the suit for failure to state a claim because membership in a protected
class was not alleged. Olech, 528 U.S. at 563, 120 S.Ct. at 1074, 145 L.Ed.2d at 1063. The
Seventh Circuit reversed and the Supreme Court granted certiorari to determine whether the
Equal Protection Clause could give rise to a cause of action on behalf of a “class of one”
where the plaintiff did not allege membership in a class or group. Olech, 528 U.S. at 564,
120 S.Ct. at 1074, 145 L.Ed.2d at 1063. In a short per curiam opinion, the Supreme Court
9
affirmed the Seventh Circuit and held that Olech, although a “class of one,” had stated a
claim for relief under the Equal Protection Clause by alleging that the Village treated her
differently than others similarly situated and that there was no rational basis for the
difference in treatment. Olech, 528 U.S. at 565, 120 S.Ct. at 1075, 145 L.Ed.2d at 1063-
1064.
¶19 The Olech decision marked the first time in United States history the Supreme Court
explicitly recognized a “class of one” as a legitimate claim under the Equal Protection
Clause. Although the Court had previously recognized successful equal protection claims
brought by ordinary individuals alleging that they had been intentionally treated differently
from others similarly situated and that there was no rational basis for the difference in
treatment, all these so-called “class of one” cases were limited to the realm of taxation. See
Allegheny Pittsburgh Coal Co. v. Commission of Webster Cty. (1989), 488 U.S. 336, 109
S.Ct. 633, 102 L.Ed.2d 688; Sioux City Bridge Co. v. Dakota County (1923), 260 U.S. 441,
43 S.Ct. 190, 67 L.Ed. 340. None of these cases involved a direct challenge to the
assumption that an equal protection claim need not be supported by class membership. In
fact, before Olech, the United States Supreme Court had not cited to the Allegheny case
approvingly when addressing an equal protection claim. Because narrow in scope, these
decisions presented an adequate ground for distinguishing the earlier precedent, and,
therefore, failed to provide clearly established authority in the area of equal protection.
¶20 Furthermore, prior to Olech, the federal circuit courts had divided on whether an
individual could assert an Equal Protection Clause violation if he or she were not a member
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of a particular class or group. The Sixth Circuit, in Futernick v. Sumpter Township (6th Cir.
1996), 78 F.3d 1051, 1060, had rejected the “class of one” theory, holding that a plaintiff’s
membership in a class was essential to a denial of equal protection. Three years later, in
Bass v. Robinson (6th Cir. 1999), 167 F.3d 1041, the Sixth Circuit continued to require a
claimant to allege class membership to sustain an equal protection claim. Bass, 167 F.3d at
1050 (holding that because plaintiff failed to allege invidious discrimination based upon his
membership in a protected class, his equal protection claim failed at its inception).
Additionally, the Seventh Circuit, just prior to issuing its decision in Olech, had held that
“[a] person bringing an action under the Equal Protection Clause must show intentional
discrimination against him because of his membership in a particular class, not merely that
he was treated unfairly as an individual.” Herro v. City of Milwaukee (7th Cir. 1995), 44
F.3d 550, 552 (quoting New Burnham Prairie Homes, Inc. v. Village of Burnham (7th Cir.
1990), 910 F.2d 1474, 1481). Just four months later, in Esmail v. Macrane (7th Cir. 1995),
53 F.3d 176, the Seventh Circuit recognized the expansion of the Fourteenth Amendment’s
equal protection to include “class of one” claims. In a decision authored by Chief Judge
Richard Posner, the Seventh Circuit announced that “vindictive action” on the part of a
government employee may provide the basis for an equal protection claim even though an
individual is not part of a particular class, and rejected the reasoning of Herro and Prairie
Homes. Esmail, 53 F.3d at 180; see also Gehan, Shawn M., With Malice Toward One:
Malice and the Substantive Law in “Class of One” Equal Protection Claims in the Wake of
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Village of Willowbrook v. Olech, 54 ME L. Rev. 329 (2002). The Seventh Circuit’s decision
in Olech followed in 1998.
¶21 In this matter, we are not called upon to decide the viability of Losleben’s equal
protection claim based on a “class of one,” but merely to determine whether the law
recognizing such claims was clearly established at the time of Losleben’s termination from
employment. We conclude that it was not. In addition to the foregoing discussion, we find
support for our conclusion in a decision issued by the Tenth Circuit. In Norton v. Village
of Corrales (10th Cir. 1996), 103 F.3d 928, 934, the Tenth Circuit held public officials had
qualified immunity in a suit over a zoning decision which the developer charged was
motivated by a certain official’s dislike of him. Although not a member of a traditionally
protected class, the developer had brought suit alleging a violation of his equal protection
rights. In performing its own survey of federal equal protection law, the Tenth Circuit found
no relevant authority within its circuit, although it noted the Seventh Circuit’s Esmail
decision, recognizing the viability of an equal protection claim brought by an individual who
was not a member of a traditionally protected class, but who alleged that a public official had
vindictively denied his request for reissuance of a liquor license. Norton, 103 F.3d at 934.
However, notwithstanding the Esmail decision, the Tenth Circuit affirmed the district court’s
dismissal of the plaintiff’s equal protection claim in this 1996 decision, concluding that “any
such equal protection right is not well enough established to hold the individual defendants
to knowledge of it.” Norton, 103 F.3d at 934.
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¶22 Furthermore, a review of recent case law in the Ninth Circuit suggests that courts
continue to grapple with the issue of whether membership in a protected class is necessary
to establish an equal protection violation. In the recent case, Serrano v. Francis (9th Cir.
2003), 345 F.3d 1071, the court explained, “[t]o state a claim for violation of the Equal
Protection Clause, a plaintiff must show that the defendant acted with an intent or purpose
to discriminate against him based upon his membership in a protected class. . . . ‘Intentional
discrimination means that a defendant acted at least in part because of a plaintiff’s protected
status.’ . . . To avoid summary judgment, [the claimant] ‘must produce evidence . . . that the
decision was racially motivated.’” Serrano, 345 F.3d at 1081-1082 (citations omitted). This
analysis appears to be at odds with the Olech decision.
¶23 In this case, Losleben’s employment was terminated prior to the Olech decision,
which established the viability of an equal protection claim brought by an individual as a
“class of one.” Recognizing the division in authority which existed prior to Olech and the
confusion that continues to loom in this area of the law, we conclude that any equal
protection right held by Losleben at the time of his termination from employment was not
well enough established to impute knowledge of it to Capp. Thus, Capp is entitled to
qualified immunity on this claim. Therefore, we affirm the District Court’s dismissal of
Defendant Capp from this case.
¶24 Did the District Court err in denying Losleben’s motion seeking partial summary
judgment that he did not violate Hunt’s constitutional right to counsel, nor hinder the
prosecution of her co-conspirators, on the basis that such contentions were surrounded
by disputed issues of material fact?
13
¶25 As a general rule, this Court assumes jurisdiction of an appeal in a civil matter only
where a final judgment has been entered. See Rule 1(b)(1), M.R.App.P. A judgment is the
final determination of the rights of the parties in an action or proceeding. Rule 54(a),
M.R.Civ.P. In an action involving multiple claims for relief or multiple parties, such as the
case here, a final judgment as to one or more but fewer than all of the claims or parties may
be entered only upon an express determination by the District Court that there is no just
reason for delay and upon an express direction for entry of judgment. See Rule 54(b),
M.R.Civ.P. Although the issue of this Court’s jurisdiction was not raised by either party,
we may address the question sua sponte. Trombley v. Mann, 2001 MT 154, ¶ 6, 306 Mont.
80, ¶ 6, 30 P.3d 355, ¶ 6.
¶26 The record clearly shows that the District Court’s March 29, 2002 order certified its
judgment in favor of Defendant Capp on Losleben’s § 1983 claim as final. It is equally
clear, however, that the District Court’s February 28, 2002 order denying summary judgment
to Losleben concerning his claim that he did not violate the constitutional rights of Hunt
during questioning was not a final judgment because it failed to adjudicate the rights of the
parties in this action. See Rule 54(a), M.R.Civ.P. Because there was no “final judgment,”
as defined by Rule 54(a), M.R.Civ.P., on this claim, and the District Court did not certify
its judgment denying summary judgment to Losleben as final pursuant to Rule 54(b),
M.R.Civ.P., no appeal on this issue was available under Rule 1(b)(1), M.R.App.P. See
Trombley, ¶ 10. Accordingly, we hold that the February 28, 2002 order denying Losleben’s
motion for partial summary judgment was not appealable, and remand this matter to the
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District Court for further proceedings on Losleben’s wrongful discharge claim against the
State.
¶27 Affirmed and remanded.
/S/ JIM RICE
We concur:
/S/ KARLA M. GRAY
/S/ PATRICIA O. COTTER
/S/ W. WILLIAM LEAPHART
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