Posted by: Patricia Salkin | November 5, 2012

7th Circuit Court of Appeals Finds No Due Process and No Equal Protection Violations For Voluntary Removal of Home Following Order

Mildred Billington owned a mobile home in the Village of Armington, Illinois.  Billington did not occupy the mobile home, but allowed her daughter who lived next door to the structure to use it for additional space.  The Village sent Billington a letter stating the structure would need to be removed as it was in violation of the Village Code.  Billington complied, but then challenged the Village’s actions in court, alleging violations of the Due Process and Equal Protection Clauses of the Federal Constitution.  The trial court dismissed the action and Billington appealed.  The United States Court of Appeals, Seventh Circuit affirmed.

Billington claimed her procedural due process rights were violated when the Village sent the letter “ordering” the removal of her mobile home without offering any process.  In order to make a valid procedural due process claim, the plaintiff must show a deprivation of property.  The court found Billington’s claim without merit, as the letter did not order anything nor threaten a penalty.  As a result, Billington was not deprived of property, and could not make a due process claim, because she acted voluntarily in removing the structure.  The court stated that voluntary actions can lead to a due process deprivation in cases where the government coerces or misleads the plaintiff, but the facts of this case to not afford such a finding.

The court then addressed Billington’s equal protection claim, which was not addressed by the trial court.  Neither party moved for remand but rather argued the merits claim itself.  Thus, the issue was reviewed de novo by the Seventh Circuit.  The court provided that while the Seventh Circuit’s standard for a class of one equal protection claim is in flux, at minimum, it requires the plaintiff to show a similarly situated comparator that was, without a rational basis, treated differently than the plaintiff.  In determining whether there has been a constitutional violation, the plaintiff’s claim must be more than speculative, and must lead the court to find there is an actionable injury rather than an “unfortunate mistake[].”  Thus, the plaintiff has a “high burden” in showing the similarity of a comparator.

The Seventh Circuit found Billington’s equal protection claim failed, as she did not sufficiently plead similarly situated comparators.  First off, none of the comparator properties housed mobile homes.  If that was not enough to terminate the plaintiff’s claim, the court also found fault in the fact that the issues surrounding the comparator properties involved different zoning provisions and different types of violations.  Thus, given that the land uses, code provisions, and violations were all different, it was impossible for the court to find that they were sufficiently similar, or that it was irrational for the Village to treat the “comparators” differently.  Thus, the equal protection claim failed as well.

Billington v. Village of Armington, 2012 WL 4857560 (7th Cir., 10/15/2012).

The opinion can be accessed here.

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