City of Eugene v. Crooks

• Decision Date: 30 December 1981
• Docket Number: No. 16-79-04405,16-79-04405
• Parties: CITY OF EUGENE, a municipal corporation of the State of Oregon, Respondent, v. Harold C. CROOKS and Joyce Crooks, husband and wife, Appellants, Mark W. Bjorling and Patsy Bjorling, husband and wife, Rhodney Cantu and Joline Cantu, husband and wife, Marilyn Hartman and Nathan Bell, Defendants. ; CA 19329.
• Court: Oregon Court of Appeals

Page 1350

637 P.2d 1350

55 Or.App. 351

CITY OF EUGENE, a municipal corporation of the State of Oregon, Respondent, v. Harold C. CROOKS and Joyce Crooks, husband and wife, Appellants Mark W. Bjorling and Patsy Bjorling, husband and wife Rhodney Cantu and Joline Cantu, husband and wife Marilyn Hartman and Nathan Bell, Defendants.

No. 16-79-04405; CA 19329.

Court of Appeals of Oregon.

Argued and Submitted June 5, 1981.

Decided Dec. 30, 1981.

Terence J. Hammons, Eugene, argued the cause for appellants. With him on the briefs was Hammons & Jensen, Eugene.

John L. Franklin, Eugene, argued the cause for respondent. On the brief were Johnson, Harrang, Swanson & Long, John B. Arnold, and Timothy J. Sercombe, Eugene.

Before BUTTLER, P. J., and WARDEN and WARREN, JJ.

WARREN, Judge.

The City of Eugene (plaintiff) brought this suit under ORS 30.315 to enjoin violation of its zoning ordinance and the Oregon Structural Specialty Code. Defendants Crooks (defendants) appeal from the decree entered against them, claiming that they are victims of unlawful discrimination in the enforcement of plaintiff's ordinances and that the decree was improper, because it grants relief which is not requested in the complaint or justified by their stipulations.

Plaintiff's zoning ordinances permit duplexes on certain sized corner lots in R-1 Single Family zones. In 1968, plaintiff approved a building permit and a certificate of occupancy for a duplex on the corner lot now owned by defendants. At some point, however, the duplex was converted into an illegal four-unit apartment house by installing panels which divided each side of the duplex into a main and a bachelor apartment and by putting a stove, kitchen sink and refrigerator into each bachelor apartment. Defendants rented the four units separately to the other defendants below, ¹ in violation of applicable zoning and structural ordinances. Plaintiff became aware of these violations when a former tenant complained. When defendants refused to cease using the building as an apartment house, plaintiff brought this suit. Defendants stipulated to the violations, and the trial court reached its decision on the basis of the pleadings, stipulations and facts deemed admitted by defendants' failure to respond to plaintiff's request for admissions.

Defendants contend, in their first assignment of error, that the trial court erred in sustaining a demurrer to their fourth affirmative defense, which alleged that plaintiff, in enforcing these ordinances against defendants, engaged in "intentional, arbitrary discrimination" and, thus, denied them equal protection of the law.

It is well established that enforcement of a law which is not discriminatory on its face can violate the equal protection clause ² if whether, or how, the law is applied hinges upon a de facto improper classification. Yick Wo v. Hopkins, 118 U.S. 356, 373, 6 S.Ct. 1064, 1072, 30 L.Ed. 220 (1885); State v. Hodgdon, 31 Or.App. 791, 797, 571 P.2d 557 (1977). To be constitutionally improper, however, selectivity of enforcement must be deliberately based on "an unjustifiable standard such as race, religion, or other arbitrary classification." Oyler v. Boles, 368 U.S. 448, 456, 82 S.Ct. 501, 505, 7 L.Ed.2d 446 (1962). Unless suspect classes are involved in the selective enforcement, the equal protection clause is violated only if there is no rational basis to justify the selective enforcement. See Williamson v. Lee Optical Co., 348 U.S. 483, 487-488, 75 S.Ct. 461, 464, 99 L.Ed. 563 (1955). For that reason, the mere fact that law enforcement agencies prosecute some violations of the law but not others does not of itself constitute prohibited discrimination. Oyler v. Boles, supra, 368 U.S. at 456, 82 S.Ct. at 505.

Unfortunately, these principles are much clearer than defendants' allegations. It is difficult to discern precisely what classification defendants claim plaintiff made in prosecuting them. ³ We think, however, that defendants can be fairly said to claim the following: (1) plaintiff does not prosecute all violations of which it is aware; (2) plaintiff prosecuted defendants only because it received a complaint; (3) the persons who brought the complaint were motivated by spite; (4) plaintiff's enforcement personnel were friends of the persons who made the complaint; and (5) these personnel pursued the complaint in order to vindicate their friends.

It is clear that defendants have failed to allege that any selective enforcement against them was based upon their membership in a suspect class. Accordingly, defendants can prevail on their equal protection argument only if there is no rational basis to justify the alleged selectivity in enforcement. Defendants allege that plaintiff prosecuted their violation only because a complaint was received. We can easily imagine sensible reasons (e.g., lack of funds) why plaintiff might distinguish between violations of which it is generally aware and violations about which a complaint is received. Such selective enforcement is not irrational. People v. L. A. Witherill, Inc., 29 N.Y.2d 446, 449, 328 N.Y.S.2d 668, 278 N.E.2d 905 (1972); Pier I Imports, Inc. v. Pitcher, 270 So.2d 228 (La.App.1972), cert. den., 272 So.2d 696 (La.1973).

Otherwise, defendants' allegations are little more than an attack on the motives of the complaining tenants and the persons who prosecuted the violations and, as such, serve only to cloud the issue. It is inconsequential that the complaining tenants and plaintiff's employees are friends, for it would be nonsense to forbid law enforcement personnel from moving against illegal activity when the violation is reported by a friend. Because the complaining tenants are not agents of the city, their motives are irrelevant under any analysis. As for the motives of plaintiff's employees, the issue for purposes of the Equal Protection clause is only whether the class of persons against which the laws have been enforced itself is irrational. As we have pointed out, defendants allege no pattern of enforcement against any suspect group. They allege only that enforcement in this instance was undertaken because the complaining parties were friends of enforcement personnel. Selective enforcement based upon complaints is not per se improper, and the motives of plaintiff's agents in prosecuting a particular violation...