Discretion is arguably the most important term in Administrative Law. Discretion can be categorized in a number of different ways, and there are different types of discretion, each with different rules for judicial review. In this case, the actions of the official may be viewed as either individualizing discretion or executing discretion, depending upon the argument made by the official. Individualizing discretion provides officials with the capacity to make their own determinations in enforcing generalized rules. This would include the discretion of a person to determine who and when to prosecute based upon the different circumstances. Within administrative law, there is a sense that discretion needs to be afforded so that agencies can make mistakes in some cases. Without that, they would have little freedom to perform their duties. Executing discretion provides the official with the ability to fill in some gaps in order to execute the function that the agency is charged with. In this case, the official might be exercising executing discretion because clarifying the procedural rules for the future will make it easier for the agency to handle more and better cases going forward.
Abuse of discretion could be what took place in this case. Courts have the ability to review the decisions of agencies when they are operating under individualized or executing discretion. While reviewing courts are somewhat constrained in their review of individualizing discretion, they can review to ensure that the process in which the decision was made was a proper and thoughtful one. In particular, they will judge the decision maker’s process, noting whether any impermissible outside influences might have made the person make the decision that was made. In this case, personal bias is clearly present, and neutral observers would believe so, especially considering this type of case is normally not pursued. With this in mind, the appellate court will likely overturn this decision, even though that does not happen often.
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In order to successfully win a claim on a 1983 Civil Rights violation, the plaintiff must prove a number of different elements. In order to state a claim under this statute, a person must show that one of their constitutional or federally mandated rights was violated by the actions of a person acting under the color of state law. Each element must be shown in order for a claim to have a chance of survival.
In this case, the first thing would be showing that SCUM could even bring the action against the city. While the federal government has been held not be a person for the purposes of this statute, city governments are held to be people for the purposes of filing one of these lawsuits. This means that the person requirement would be met by the plaintiff.
There is a question of whether the group had one of its constitutional rights burdened in this case. One might argue that the freedom to organize had been violated, as they would be foreclosed from using the public space because of the actions of Ruth. Perhaps more true is that an equal protection violation has taken place. The constitution ensures that governments cannot treat groups of people differently without sufficient justification. In this case, given that the fees are based upon the ability to clean up the park, and the facts indicate that this group is not any messier than any other group, the imposition of a $10,000 fee appears to be a violation of the equal protection clause. There is no sufficient reason to treat this group so disproportionately differently than any other group seeking a permit. Likewise, Ruth was acting under the color of state law in her official role as an actor for the city. It seems likely that SCUM would have a viable claim under 1983.
