Cowgill et al v. Pocatello, City of

Filing 23

MEMORANDUM DECISION AND ORDER. NOW THEREFORE IT IS HEREBY ORDERED, that the plaintiffs' motion for summary judgment 12 is DENIED. IT IS FURTHER ORDERED, that the defendants motion for summary judgment 11 is GRANTED IN PART AND DENIED IN PART . It is granted to the extent it seeks to dismiss the equal protection claim. It is denied in all other respects. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
MARIANNE COWGILL, WILLIAM
DECKER and KIDS, INCORPORATED, d/b/a
ADVENTURE FOR KIDS DAYCARE,
Plaintiff,

Case No. 4:13-CV-278-BLW
MEMORANDUM DECISION
AND ORDER

v.
CITY OF POCATELLO,
Defendant.

INTRODUCTION
The Court has before it cross motions for summary judgment. The Court heard
oral argument on August 13, 2014, and took the motions under advisement. For the
reasons set forth below, the Court will (1) deny plaintiffs’ motion, and (2) grant that part
of the City’s motion seeking to dismiss the equal protection claim, but deny the
remainder of that motion.
BACKGROUND
Plaintiff Cowgill and her father, William Decker, incorporated “Kids, Inc.” to
operate a day care facility under a license granted by the defendant, City of Pocatello.
Cowgill and Decker each own half of the shares in Kids, Inc. On June 13, 2012, two
employees of Kids, Inc., Britny Toone and Crystal Chatterton, accidently left a four-year
old child at a local park for over an hour.

Memorandum Decision & Order – page 1

About two weeks later, Cowgill received a letter from Pocatello Police Chief Scott
Marchand informing her that the City Police Department was going to recommend to the
City Council that Cowgill’s day care license be “reviewed/revoked.” The letter stated
that the revocation recommendation would be based on three violations of the City Code,
and it detailed those three violations. It closed with a notice that the hearing would be
conducted on July 9, 2012, during a meeting of the City Council, and that “[y]ou will be
afforded an opportunity to be heard at that time.”
At the hearing, the City Police recommended that Cowgill’s license be revoked.
They discussed the three violations identified in the notice letter to Cowgill and another
alleged incident – not identified in the notice letter – in 2007 involving a child left
behind. The City Council heard from Cowgill and her attorney, and then decided to
revoke the license and ban Cowgill from reapplying for a license for a year.
Cowgill brings this lawsuit along with her father William Decker and Kids, Inc.,
against the City under § 1983 alleging that the City violated their rights to (1) procedural
due process, (2) substantive due process, and (3) equal protection. For ease of reference,
the Court will refer to the three plaintiffs as “Cowgill” unless it is necessary to discuss
them separately.
Cowgill has moved for partial summary judgment on her claim for a violation of
her procedural due process rights. The City has filed a cross motion seeking summary

Memorandum Decision & Order – page 2

judgment on all of Cowgill’s claims. The Court will examine each of Cowgill’s claims
below.1
ANALYSIS
Procedural Due Process
In evaluating Cowgill’s procedural due process claim, the Court must ask first
whether the City has interfered with Cowgill’s liberty or property rights. U.S. v. Juvenile
Male, 670 F.3d 999, 1013 (9th Cir.2012). To determine whether a property right is
involved, the Court must examine state law. Vandevere v Lloyd, 644 F.3d 957 (9th Cir.
2011). In Pocatello, a day care license can only be revoked “for cause” after notice and a
hearing. See City Code § 5.28.250. Conditioning the revocation on a finding of cause
creates a constitutionally protected property interest. Dyack v. Commonwealth, 317 F.3d
1030, 1033 (9th Cir. 2003). Thus, Cowgill had a property right in her day care license.
The second step in the inquiry requires the Court to determine “whether the
procedures attendant upon [the] deprivation were constitutionally sufficient.” Juvenile
Male, 670 F.3d at 1013. The Court must evaluate the process provided to Cowgill under
the test set forth in Mathews v. Eldridge, 424 U.S. 319, 335 (1976). That test instructs
the Court “to balance (1) the private interest affected by the official action; (2) the risk of
erroneous deprivation and the probable value of additional procedural safeguards; and (3)

1

The City argues that two of the plaintiffs – William Decker and Kids Inc. – lack standing
because the license was in Cowgill’s name. But Decker and Kids Inc. both claim a direct injury from the
revocation. Decker owned 50% of the shares in Kids Inc., and the revocation shut down Kids Inc. for an
entire year. That is sufficient to confer standing.

Memorandum Decision & Order – page 3

the governmental interest, including the fiscal and administrative burdens of additional
procedures. Id.
The City did give Cowgill an opportunity to be heard at a hearing held on July 5,
2012. But Cowgill alleges that the City misled her about the hearing, causing her to
prepare inadequately. More specifically, she claims that her attorney was told that the
City Police would recommend probation rather than revocation. To support this claim,
she points to testimony from Rick Capell, an officer with the City Police who testified
that he told Cowgill’s attorney that the City Police would only be seeking probation, not
revocation. See Capell Deposition (Dkt. No. 14) at pp. 6-11.2 This is confirmed by
Cowgill’s attorney at the time, Kyle Hansen. See Hansen Affidavit (Dkt. No. 17) at ¶ 20.
Kim Stouse, the Licensing Enforcement Officer for the City, counters the testimony of
both men by alleging that the City never considered probation but at all times was
intending to recommend revocation. See Stouse Deposition (Dkt. No. 19-2) at pp. 2-3.
The obvious conflicts in this testimony cannot be resolved on summary judgment.
The City’s counsel urges the Court to adopt the City’s version of events, but the Court
must view the evidence in the light most favorable to Cowgill, and must not make
credibility findings. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
There are also questions of fact over whether being misled about the nature of the
hearing made any difference. Attorney Hansen states that he had eleven witnesses ready
2

The City argues that Capel had no authority to speak on license issues. But determining his
authority to speak for his employer is an “intensely factual” question that is not generally suitable for
resolution on summary judgment. See Gibson-Jones v. Berkel, 2008 WL 782568 (N.D.Cal. 2008)

Memorandum Decision & Order – page 4

to testify on behalf of Cowgill at the July 19th meeting but that the City did not provide
him with that opportunity. See Hansen Affidavit, supra, at ¶ 32. The City counters by
pointing out that Cowgill never asked for more time to present witnesses, either at the
July 5th meeting or at the July 19th meeting. Cowgill responds that the Council had made
its decision by the conclusion of the July 5th meeting so that an extension would have
been futile. In support, she cites a statement by City Councilman Roger Bray on July 6th
that the Council had decided to revoke the license. See Idaho State Journal Article (Dkt.
No. 14) at p. 37. If she had known that revocation was going to be recommended, her
attorney “would have been able to present testimony and argument explaining why the
daycare was trustworthy and reliable, and why it should not be forced to close.” See
Hansen Affidavit, supra, at ¶ 35.
This discussion highlights the numerous conflicts in the testimony concerning the
procedural due process issue. These conflicts create genuine issues of material fact that
preclude summary judgment for either side on the procedural due process issue.
Finally, the Court will address an important argument raised by Cowgill – that she
was precluded from appealing the City’s decision. The City argues that Cowgill could
have appealed the City Council’s decision to the Idaho District Court under Idaho Code
§ 39-1108, and thereby been afforded full procedural due process rights. But those
appeal provisions do not apply under the terms of this statute when the “city or county . .
. has adopted an ordinance for regulation and/or licensing of daycare services,” as the
City did here. Thus, the Idaho statute does not apply by its very terms. The City’s own
regulations do not grant any appeal rights, and thus the City cannot depend on an appeal
Memorandum Decision & Order – page 5

right to cure procedural inadequacies at the City Council level. This failure on the part of
the City is a significant factor to be considered in determining whether Cowgill’s
procedural due process rights were violated. See Logan v Zimmerman Brush Co., 455
U.S. 422, 434-35 (1982) (finding it significant in the due process analysis that plaintiff
could not obtain judicial review of an administrative decision). The City’s counsel
argued at oral argument that he would not have challenged an appeal filed by Cowgill,
but counsel’s post-hoc representation is not evidence the Court can consider. Singh v.
INS, 213 F.3d 1050, 1054 n. 8 (9th Cir.2000).
The lack of a clear path to judicial access is a serious flaw in the City’s procedures
that weighs in favor of a finding of a procedural due process violation. Nevertheless, the
questions of fact identified earlier are significant enough to convince the Court to deny
summary judgment for Cowgill at this point.
Equal Protection
The Equal Protection Clause ensures that “all persons similarly situated should be
treated alike.” City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439 (1985).
The equal protection guarantee protects not only groups, but individuals who would
constitute a “class of one.” Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000).
Where, as here, state action does not implicate a fundamental right or a suspect
classification, Cowgill can establish a “class of one” equal protection claim by
demonstrating that she “has been intentionally treated differently from others similarly
situated and that there is no rational basis for the difference in treatment.” Village of
Willowbrook, 528 U.S. at 564. Where an equal protection claim is based on “selective
Memorandum Decision & Order – page 6

enforcement of valid laws,” a plaintiff can show that the defendants’ rational basis for
selectively enforcing the law is a pretext for “an impermissible motive.” Id.
Here, Cowgill has no evidence of disparate treatment on the basis of a protected
classification like race or gender. Instead she relies on a “class of one” argument by
alleging that the City irrationally targeted her. She points out that after the City revoked
her permit for leaving the child in the park, the City granted a license to Britny Toone,
the person who actually left the child in the park.
Cowgill’s argument is that by granting a license to an undeserving Toone, the City
revealed that it was out to punish Cowgill, thereby demonstrating she was a “class of
one.” However, Cowgill has not placed in the record any evidence regarding the City’s
grant of a license to Toone. The Court has no way of knowing whether Toone was
“undeserving” as Cowgill claims. At this summary judgment stage, the plaintiff must
come forward with evidence to rebut the defendant’s claim of a lack of evidence.
Cowgill was required to go beyond her pleadings and show “by her affidavits, or by the
depositions, answers to interrogatories, or admissions on file” that a genuine dispute of
material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). There is no such
showing, and thus the Court will grant partial summary judgment dismissing the Equal
Protection claim.
Substantive Due Process
Substantive due process “refers to certain actions that the government may not
engage in, no matter how many procedural safeguards it employs.” Lebbos v. Judges of
Superior Court, Santa Clara County, 883 F.2d 810 (9th Cir. 1989). Substantive due
Memorandum Decision & Order – page 7

process protects individuals from arbitrary deprivation of their liberty by government.
Brittain v. Hansen, 451 F.3d 982, 991 (9th Cir.2006). One aspect of liberty is the right to
pursue “the common occupations or professions of life.” Lebbos, 883 F.2d at 818.
Here, Cowgill alleges that she was banned from her occupation as a day care
operator by the City’s actions. To constitute a substantive due process violation, the ban
must be complete and not merely a “brief interruption.” See Dittman v. California, 191
F.3d 1020, 1029 (9th Cir. 1999). Here, there are facts in the record indicating that
Cowgill was prohibited for a year from engaging in her occupation as day care operator.
That is sufficient to at least create an issue of fact over whether the City interfered with
her right to engage in her continued occupation as a day care operator and owner. The
Court will therefore deny summary judgment on this issue.
Conclusion
Pursuant to the discussion above, the Court will deny the cross motions for
summary judgment, except for that portion of the City’s motion that seeks to dismiss the
equal protection claim.
ORDER
In accordance with the Memorandum Decision set forth above,
NOW THEREFORE IT IS HEREBY ORDERED, that the plaintiffs’ motion for
summary judgment (docket no. 12) is DENIED.
IT IS FURTHER ORDERED, that the defendant’s motion for summary judgment
(docket no. 11) is GRANTED IN PART AND DENIED IN PART. It is granted to the
extent it seeks to dismiss the equal protection claim. It is denied in all other respects.
Memorandum Decision & Order – page 8

DATED: October 13, 2014

_________________________
B. Lynn Winmill
Chief Judge
United States District Court

Memorandum Decision & Order – page 9