What Constitutes Selective Enforcement in Violation of Equal Protection?

In a recent decision of Parker v. City of Glennville the Georgia Supreme Court issued an opinion on October 18, 2010 in which the Court examined a grass cutting ordinance to determine if it was unconstitutional under either the Due Process or Equal Protection Clauses of the state constitution, Georgia Constitution of 1983, Articles 1, 1, 1 and 1, 2, 1.   The Court upheld, for a second time in the last six months, a local ordinance that required citizens to cut grass on their property.  



The due process attack in the case revolved around the rule that an ordinance violates due process of law if the ordinance is not written in a way that would reasonably apprise an ordinary person of the prohibited acts under an ordinance.  The case does not stand for any new principle of law in this respect.   The doctrine involved was the void for vagueness doctrine.  


The case was a little more interesting in its treatment of the equal protection issue.  A property owner had argued that the ordinance violated equal protection because the City did not apply the ordinance to all citizens and had selected the property owner for enforcement.  The Court held that this was not the case because selective enforcement requires a showing of more than just "selective enforcement;"  a property owner must show the selective enforcement was based on discrimination for an illegal purpose, such as discrimination based on race or other improper classifications.  The Court held as follows in this respect:

Parker also contends the ordinance is being selectively enforced against him in violation of the equal protection of law guaranteed by the Fourteenth Amendment. We disagree. “The party seeking to prove unconstitutionally discriminatory enforcement of the law ... has the burden of presenting sufficient evidence to establish the existence of intentional or purposeful discrimination which is deliberately based upon an unjustifiable standard, such as race, religion, or other arbitrary classifications.” State v. Causey, 246 Ga. 735, 737, 273 S.E.2d 6 (1980). Importantly, “[s]ome selective enforcement is not in itself a constitutional violation. [Cit.]” Department of Nat. Resources. v. Union Timber Corp., 258 Ga. 873, 876, 375 S.E.2d 856 (1989). SeeOyler v. Boles, 368 U.S. 448, 456, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962). Although Parker presented some evidence suggesting § 30-8 may not be currently enforced against heavily wooded areas within the city limits, there was substantial evidence of its enforcement against property similar to the lots owned byParker. Moreover, the trial court found no evidence of intentional discrimination against Parker, let alone discrimination based on some unjustifiable standard.  . . .  See Snowden v. Hughes, 321 U.S. 1, 8-9, 64 S.Ct. 397, 88 L.Ed. 497 (1944); Oyler, supra, 368 U.S. at 456.

Parker v. City of Glennville,  2010 WL 4054108, p. 2  (Ga.,2010).

The two recent grass cutting cases by the Georgia Supreme Court are interesting in their plain and succinct treatment of constitutional questions involving local ordinances.  The shortness of the ordinances permitted the Court to focus on narrow constitutional issues without the distraction of myriad sub issues and fact patterns that often cloud constitutional opinions.

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