Appellants Reply Brief — Township of Midland v. Michigan State Boundary Commission

IN THE | APR

SUPREME COURT OF THE UNITED STATES

October Term 1977

No. 77-1285

TOWNSHIP OF MIDLAND, a Municipal Corporation in

Midland County, Michigan and ROBERT B. CHATTERTON,

Appellants,

v.

MICHIGAN STATE BOUNDARY COMMISSION,

Appellee,

and

CITY OF MIDLAND etal,

Intervening Parties Appellee.

On Appeal From the Supreme Court of Michigan

BRIEF OPPOSING MOTIONS

TO DISMISS OR AFFIRM

Attorneys for Appellants

EUGENE F. BLACK

2700 Strawberry Lane

Port Huron, Michigan 45060

DOWNS AND PIRICH

Tom Downs

John D. Pirich

603 Capitol Savings & Loan Building

Lansing, Michigan 45933

BAUCKHAM, REED, LANG,

SCHAEFER & TRAVIS

John Bauckham

500 Park Building

Kalamazoo, Michigan 49007

PRINTED BY SPEAKER-HINES AND THOMAS., INC., LANSING, MICHIGAN-—1978

=

TOWNSHIP OF NOVI,

Appellant,

and

W. B. CHASE and CHASE MANOR

FARMS, INC., a Michigan corporation and

MARY ANN ODERMAN,

Appellants,

v

STATE OF MICHIGAN, DEPARTMENT

OF TREASURY, STATE BOUNDARY

COMMISSION,

Appellee,

and

CITY OF NOVI, a municipal corporation,

it Appellee,

GREGORY I. DONOVAN, et al.,

Intervening Defendants.

TOWNSHIP OF NOVI,

Appellant,

and

W. B. CHASE AND CHASE MANOR

FARMS, INC., a Michigan corporation and

MARY ANN ODERMAN,

Appellants,

v

STATE OF MICHIGAN, DEPARTMENT

OF TREASURY, STATE BOUNDARY

COMMISSION,

and

CITY OF NOVI, a municipal corporation,

and

Appellee,

GREGORY I. DONOVAN, et al.,

Intervening Defendants.

(Continued on inside back cover)

TABLE OF CONTENTS

Page

ee seadinsnnsliannsibiecse ii

EIT ET eT TET ED 1

Argument

I. THE NUGATORY WORTH OF HUNTER V.

Il.

Il.

IV.

PITTSBURGH AS PRECEDENT APPLICABLE

TO THE EQUAL PROTECTION CLAUSE.

DSR RRELIR ORR IRN TEI Re ee ee CR ee

THE WEBER CASE (109 Cal. Rep. 553, 513 P. 2d

601 [1973]) AND THE STATUTORY SITUA-

TION CONSIDERED THERE, COMPARED

WITH SECTION 9S UNIQUE METHOD OF

BARRING THE RIGHT OF FRANCHISE OF

PE TI ais hescitiebiinrtavctirccteinstatiedondioesmiee

THE SINISTER CLASSIFICATIONS WHICH

SECTION 9 HAS LICENSED IN ARRAY WITH

THE PRINCIPLES ESTABLISHED AT THE

VERY BEGINNING BY REYNOLDS V. SIMS ....

A. Section 9 can permit the progressive destruction

SRS SPER Ne ae on

B. The classification cases cited by appellees are

I pte cs conirepsceousccsnstontadeduacaerbousuthcecioandcasin

C. In arguendo, even if “strict scrutiny”, “funda-

mental rights”, and “compelling state interest”

are not the applicable standards, Section 9 still

does not meet the reasonable classification test...

THE DEVELOPMENT OF THE LAW ON VOT-

ING RIGHTS SINCE HUNTER WAS DECIDED

IN 1907 PROHIBITS A CLASSIFICATION

BASED ON POPULATION .......... Peas tt Ae ae

18

18

Page

A. Chronology of state of the law on voting rights

under the Equal Protection Clause ..................._ 29

B. The Michigan Court further erred where it

applied only the “reasonable relation” and

“appropriate means” test to meet the Equal Pro-

tection Clause, not the “strict scrutiny” test... 34

V. THIS COURT HAS JURISDICTION OF THIS

MATTER . ete rete Sel ee ee oe 35

RELIEF PAR

TABLE OF AUTHORITIES

UNITED STATES CASES

Adams v. City of Colorado Springs, 308 F. Supp. 1397,

399 U.S. 901, 400 U.S. 855 (1970) | SOS

Alkire v. Carlsman, 350 F. Supp. 360,

aff d. 377 F. 2d 480 (1972) | os

Atlanta Bowling Center, Inc. v. Allen,

389 F. 2d 713 (C. S. CA 1968) | 23

Baker v. Carr, 369 U.S. 186 (1962) 15, 16, 31

Cipriano v. Houma, 395 U.S. 701 (1969) cass, ce

Colegrove v. Green, 328 U.S. 549 (1946) | 30, 31

Doyle v. Municipal Commission of the City of Minnesota,

| ek _: Reeser tenet neraraemncarenenu: ner 25

Gomillion v. Lightfoot, 364 U.S. 339 (1967) a 2, 4, 5, 7, 14,

15, 16, 20, 30, 34, 39

Gordon v. Lance, 408 U.S. 1 (1971) | aa

Herb v. Pitcairn, 324 U.S. 117 (1944) | 37

Humphrey's Executor v. United States,

295 U.S. 602 (1935) . ch SER ME Se ee 3,5

Hunter v. Pittsburgh, 207 US. 161 (1907) . soe TS

8, 9, 14, 24, 29, 30, 31, 34, 39

Page

Kramer v. Union Free School District No. 15,

395 U.S. 621 (1969)... 29

Lockport v. Citizens for Community Action,

430 U.S. 259 (1977) .......... _ $4

Marbury v. Madison, 1 Cranch 137 (1808) . a

McGowan v. Maryland, 366 U.S. 420 (1961) 0.0... 22

Murphy v. Kansas City, Missouri, 347 F. Supp. 837 (1972) 24

Reynolds v. Sims, 377 U.S. 533 (1964) 7, 18, 19, 31, 32

Scholle v. Hare, 369 U.S. 429 (1963) 2 ccc. a. |

South v. Peters, 389 U.S. 276 (1950)... eal

Thompson v. Whitley, 344 F. Supp. 480 (1972)... 24

Village of Belle Terre v. Boraas, 416 U.S. 161 (1974) 23

W.M.C.A. v. Simon, 370 U.S. 190 (1962) 00. oT

MICHIGAN CASES

Holcomb v. Bonnell, 32 Mich. 6 (1875) 0 5B

Koschay v. Barnett Pontiac, Inc., 386 Mich. 223;

191 N.W. 2d 334 (1971) . ond ek 5: Se a

Larzelere v. Starkweather, 38 Mich. 96,

eh el a 6

Midland Township v. Boundary Commission,

401 Mich. 641; 259 N.W. 2d 326 (1977) 3, 13, 15, 17, 35, 36

Scholle v. Secretary of State, 367 Mich. 176 (1962) 7

OTHER STATES’ CASES

City of Anaheim v. City of Fullerton, 102 Cal. App. 2d 385:

227 P.2d 494 (1951) ......... | picamieensieed” ae

City of Monticello v. Adams,

200 N.W. 2d 522 (Towa 1972) 2c... , 25

Forks v. City of Warren, 273 N.E. 2d 856 (1971) 25

People ex rel Peck v. City of Los Angeles,

SEE TREE IR ea ED 18

Weber v. City Council of Thousand Oaks, 513 P. 2d 601;

109 Cal. Rep. 553 (1973) .. 3,9, 12, 18, 14, 15, 16, 17, 35

iv

Page

STATUTES

MICHIGAN COMPILED LAWS ANNOTATED

Home Rule Cities Act, 1909 PA 279; MCLA 117.1 et seq.;

MSA 5.2088 et seq. 1, 3, 9, 11, 13, 15, 16, 17, 18, 19,

20, 21, 25, 27, 28, 29, 34

Michigan Administrative Procedures Act

1969 PA 306; MCLA 24.201 et seq. soni

Michigan Township Law, MCLA 41.2 et seq. - 20

CONSTITUTIONAL PROVISIONS

Mich. Const. 1968, art. 1, 42

U. S. Const. Am. XIV

& &

OTHER AUTHORITIES

Cardozo, “Nature of the Judicial Process,”

(Yale Univ. Press, 1921) pp. 29, 30......... 6

In re proposed annexation of territory in Shelby Township

to City of Utica, Boundary Commission docket #72-AR-

24, “Summary of Proceedings, Findings of Fact and

Chadian”, CAI cases ever exenexsovxsschiscsesecsacnsenne

IN THE

SUPREME COURT OF THE UNITED STATES

October Term 1977

No. 77-1285

TOWNSHIP OF MIDLAND, a Municipal Corporation in

Midland County, Michigan and ROBERT B. CHATTERTON,

Appellants,

Vv.

MICHIGAN STATE BOUNDARY COMMISSION,

Appellee,

and

CITY OF MIDLAND et al,

Intervening Parties Appellee.

On Appeal Fr: a the Supreme Court of Michigan

BRIEF OPPOSING MOTIONS

TO DISMISS OR AFFIRM(I1!)

Introductory Statement

The Michigan Townships Association, concerned over the

freewheeling sweep of the opinion below, has requested of

undersigned counsel, Eugene F. Black, that he assist prepara-

tion of a brief opposing the motions to dismiss or affirm. That

concern has deepened as township counsel, here and there

throughout both peninsulas of Michigan, have learned that the

[1]

All references in this brief, to Section 9, are to 1970-amended §9 of

Michigan’s 1909 statute known as the Home Rule Cities Act (MCLA

§§117.1 et seq, MSA 5.2088 et seq.).

~

Michigan Supreme Court opinion—underpinned as it is by

discredited Hunter v. Pittsburgh, 207 U.S. 161—has already

been accepted by the Appellee Michigan State Boundary Com-

mission as having effective precedential standing; all with

result that a growing number of invariably irrevocable Section

9 annexations are being steadily approved by the Commission.

The request came about when it was learned by the Michi-

gan Townships Association that such counsel has been helping

the attorney for his home Township of Port Huron with due

opposition to another more outrageous annexation petition.

The latter was filed in 1973 with the Appellee Boundary Com-

mission by the City of Port Huron (population about 37,000,

situated at the easternmost point of Michigan opposite Canada),

and now is being stimulated into Section 9 action by the Mid-

land Township decision (handed down on October 24, 1977)

and by denial December 16, 1977 of Appellants’ motion for

rehearing (402 Mich 956).

The salutatory purpose of Division I of this reply is that of

meeting the Attorney General's and City of Novi's effort to

justify what they successfully urged upon the Michigan Su-

preme Court, that is, sled-length application to Section 9 of

“the seemingly unconfined dicta of Hunter and kindred

cases”.[2] For the way that dicta was copied dispositively

and repeatedly employed, we respectfully invite examination

[2]

What did Hunter actually hold, when it was written in 1907? Mr.

Justice Frankfurter, writing for the Court in 1960 (Gomillion v. Lightfoot,

364 U.S. 339) answered with delightful specificity (pp. 342, 343):

All that case held was (1) that there is no implied contract between

a city and its residents that their taxes will be spent solely for the

benefit of that city, and (2) that a citizen of one municipality is not

deprived of property without due process of law by being subjected

to increased tax burdens as a result of the consolidation of his city

with another.

aallies

of 401 Mich. at 664, 665, 666, and again at 670 and 671, (Ap-

pellants affidavit, 83a, 84a, 85a, 89a, 90a, and 93a).

Division II will compare the purpose and impact of Sec-

tion 9 with the Uninhabited Territory Act and the Annexation

Act of California, considered as they were in the other notable

decision cited below and here by Appeliee Counsel, Weber v.

City Council of Thousand Oaks, 10¥ Cal. Rep. 553, 513 P. 2d.

601 (1973).

Division III, headed “The Most Sinister Classifications,” will

speak to those classifications and unconstitutionality.

Division IV states that if some have the right to vote on

annexation, all must, under the present state of the law.

Division V will establish jurisdiction of this Court, contrary

to the Novi Brief.

ARGUMENT

L

THE NUGATORY WORTH OF HUNTER V. PITTSBURGH

AS PRECEDENT APPLICABLE TO THE EQUAL PRO-

TECTION CLAUSE.

Point A

Syllabus 5 (Lawyers Edition) of Humphrey's Executor v.

United States 295 U.S. 602 (1935), a decision presently con-

sidered with apt quotation, furnishes a compact beginning:

“5. Expressions in a judicial opinion which are beyond

the point involved do not come within the rule of stare

decisis”.

a

The specific thrust of this Point A is that of pointing to the

evils of uncritical employment of precedents by lawyers and

judges, and to the devastating consequences that practice has

brought down upon the more than 1,000 unrepresented Michi-

gan townships which, in view of this Midland Township Case,

face invidiously unbridled annexation of selectively gerry-

mandered bits and progressively contiguous portions of their

territories; solely upon authority of this newly conceived

Michigan statute with its false fortification by Hunter's lengthy

dicta.

Our premise is that the opinion below was buttressed ex-

clusively upon the over-enthusiastic language that appears in

Hunter, without any reference to or apparent knowledge of

intervening Gomillion (Gomillion v. Lightfoot, 364 U.S. 339

| 1967]), and without any treatment whatever of the principle

that the burden of proving “a compelling state interest”, in

suffrage cases, rests heavily upon the enacting state and

brought up for judicial scrutiny.

Gomillion cogently watered the stock of Hunter to its true

value. Witness Gomillion’s summary at 344, after extended

examination of Hunter:

Thus, a correct reading of the seemingly unconfined

dicta of Hunter and kindred cases is not that the State

has plenary power to manipulate in every conceivable

way, for every conceivable purpose, the affairs of its

municipal corporations, but rather that of the State’s au-

thority is unrestrained by the particular prohibitions of

the Constitution considered in those cases.

It is unfortunate that the Michigan Court did not refer to

Gomillion and apparently from a review of the index of au-

thorities, even though Hunter was referred to, no reference

ellis

was made to Gomillion. See pages 16-17 of the Michigan Su-

preme Court Brief of Attorney General that advances Hunter

as controlling and makes no reference to Gomillion.

The warning expressed by Gomillion was, so far as we can

learn, written first by Chief Justice Marshall when one of his

own opinions, indicative language and all, was cited to this

Court as controlling of Marbury v. Madison, 1 Cranch 137

(1803) Humphrey’s Executor v. United States, 295 U.S. 602,

chronicles the event (pp. 626, 627):

A like situation was presented in the case of Cohen v.

Virginia, 6 Wheat 264, 399, 5 L ed. 257, 290, in respect of

certain general expressions in the opinion in Marbury v.

Madison, 1 Cranch 187, 2 L ed. 60.

“Chief Justice Marshall, who delivered the opinion in

the Marbury case, speaking again for the court in the

Cohen case, said:

‘It is a maxim not to be disregarded, that general ex-

pressions, in every opinion, are to be taken in connection

with the case in which those expressions are used. If

they go beyond the case, they may be respected, but ought

not to control the judgment in a subsequent suit when

the very point is presented for decision. The reason of

this maxim is obvious. The question actually before the

court is investigated with care, and considered in its full

extent. Other principles which may serve to illustrate it

are considered in their relation to the case decided, but

their possible bearing on all other cases is seldom com-

pletely investigated.’

Such a warning is by no means unknown in Michigan. When

Holcomb v. Boxnell, 32 Mich. 6, came to submission in 1875,

an earlier decisi»: of the Court was cited as controlling but

found “open to an application much more extended than was

designed unless strictly confined to the state of facts there

shown.” Our revered Cooley Court then proceeded with the

same admonition (p. 8): :

It is hardly necessary to observe that the language used

in deciding cases can rarely be separated from the specific

matters contemplated by the court, without leading to

results completely at variance with the principle with

which the expressions were meant to harmonize. In laying

down propositions which appear correct in view of the

actual case as shaped by the record, it is not generally

considered needful to write down in guarded terms the

particular limitations of the propositions or the conditions

which would be read not as abstractions, but as proposi-

tions inseparably bound up with the particular issue and

matters the court is then dealing with, and it is in this

way that the observations in the case mentioned must be

considered, and without yielding to them any further than

the needs of that case required.”

—Emphasis added.

Three years later the Michigan Supreme Court repeated the

need for such vigilance in even stronger language (Larzelere

v. Starkweather, 38 Mich. 96, 101, 185 N.W. 701). Next, and

in 1971, Larzelere’s warning repeated in big complete quota-

tion in Koschay v. Barnett Pontiac, Inc., 386 Mich. 223, 230,

231, 191 N.W. 2d 334.

Perhaps Mr. Justice Cardozo put all this at its best in his

“Nature of the Judicial Process” (pp. 29, 30; Yale University

Press, 1921): )

I own that it is a good deal of mystery to me how judges,

of all persons in the world, should put their faith in dicta.

=

A brief experience on the bench was enough to reveal to

me all sorts of cracks and crevices and loopholes in my

own opinions when picked up a few months after delivery,

and reread with due contrition. The persuasion that one’s

own infallibility is a myth leads by easy stages and with

somewhat greater satisfaction to a refusal to ascribe in-

fallibility to others.

—Emphasis Added.

If, as appellants claim, the 71-year-old opinion of Hunter may

not be taken as barring their present appeal to the right of

equal protection, then it is respectfully suggested that the

emergent need for arrest of the Judgments below or, better yet,

for an order directing remand for further consideration in the

light of Gomillion and of the “compelling state interest” cases,

has been fairly demonstrated. The suggested practice, “well

established”, for instances where a subsequent decision clearly

calls for remand was pursued at the same term both as

W.M.C.A. v. Simon, 370 U.S. 190 (1962) and Scholle v. Hare,

369 U.S. 429 (1963).

Both were notable suffrage cases. Both are well known to

most counsel in the case at bar. Chief Justice Warren, in writ-

ing later for the Court in Reynolds v. Sims, 377 U.S. 533 (1964)

at 557, noted the fact of each remand for the quoted purpose.

Scholle v. Hare and its equal protection impact upon all

Michigan are well known to most counsel now at bar. The

single result of remand there was reversal by the Michigan Su-

preme Court of its first judgment, effected by 1962 Scholle v.

Secretary of State, 367 Mich. 176. No effort to review that 1962

judgment was made.

=

This case, whether affirmed, reversed or remanded, will

affect township government of the people for years to come

just as Scholle affected legislative districts far into the future.

The prime reason is that the electors of a township know

for whom they have voted and are voting for or against as

township candidates, and never hesitate to recall or discharge

rascals when they turn out to be rascals.

Point B

Quite aside from the above, appellants respectfully insist

that Hunter, on its face as it read, and now reads, never be-

came an authority within the Equal Protection Clause.

No one of the several city counsel in these cases, having

decided with the attorney general to employ that “unconfined

dicta” against the Plaintiff-Appellants’ claimed right of equal

protection, could have read Hunter with due care. Otherwise

he would have noted—and remarked in his writing—the visible

fact that Hunter's appeal to this Court assigned only the right

of due process, and that no right of equal protection was before

or considered by the Court. Indeed, the phrase “equal pro-

tection” cannot be found anywhere in the opinion of Hunter,

or in the then contentions and citations of counsel for ap-

pellants Hunter, et al. The latter appear with detail at pages

171, 172 and 173 of Hunter's report.{3]

There can be no reasoned question about this. Mr. Justice

Moody, for the Court, epitomized the specific constitutional

issue which gave rise to that long paragraph of Hunter, start-

[3]

Aside from the six other assignments of error that were “quickly dis-

posed of” plus the one that alleged impairment of the obligation of a

non-existent contract (p. 176).

=

ing on 177 and continuing through most of 178, which is the

paragraph that includes the dicta adopted below. Said he

(p. 177):

Briefly stated, the assertion in the fourth assignment

of error is that the Act of Assembly deprives the Plaintiffs

in error of their property without due process of law, by

subjecting it to the burden of the additional taxation which

would result from the consolidation.

Hunter is silent on the question of the applicability of equal

protection to annexation issues and voting rights on annexation

simply because that issue was never raised or discussed by

counsel before the Court.

NO OTHER UNITED STATES SUPREME COURT CASE

WAS CITED BY THE MICHIGAN COURT IN THIS MAT-

TER.

Il.

THE WEBEk CASE (109 Cal. Rep. 553, 513 P. 2d. 601 [1973])

AND THE STATUTORY SITUATION CONSIDERED

THERE, COMPARED WITH SECTION 9S UNIQUE

METHOD OF BARRING THE RIGHT OF FRANCHISE

OF TOWNSHIP VOTERS.

In Weber, citing 1971 Gordon v. Lance (408 U.S. 1), the

Court relieved the defendant City Council from proving that

requisite “compelling State interest” by holding that Mr. and

Mrs. Weber did not, under the presented facts and statutory

circumstances, constitute an aggrieved “identifiable class”

(Weber at 607).[4]

[4]

All page references to Weber, except those designating the initial page

of the official California Report, are taken from 513 P 2d.

aiiien

No effort to review Weber was undertaken. The probable

reason was that the California legislature spelled out a com-

pelling state interest in specific and detailed language for their

annexation legislation—a factor entirely lacking in the Michi-

gan annexation law.

Now for that evidence. At 609 the Court noted that the

1939 Act was amended in 1945 to permit annexation “wherein

less than three qualified electors reside;” that the Act was

amended again [1947] to permit annexation “wherein less than

12 registered voters aside,” and that the 1947 amendment was

“given immediate effect as an urgency measure” in company

with this formal legislative declaration of compelling necessity:

The extreme shortage of housing in the State of Cali-

fornia and the lack of a sufficient number of vacant lots

within cities on which to build such housing has made it

necessary to build outside of cities and in the fringe areas

adjacent thereto. In order to provide such housing with

the necessary sewage, sanitation and utility services, it is

essential that such areas be permitted to annex to con-

tiguous cities which would be able to extend existing

municipal services to the annexed areas. The immediate

adoption of this act will enable cities and areas adjacent

thereto which desire to annex to such cities to provide

police, fire protection, sewage and sanitation services to

such housing as soon as constructed. (Stats. 1947, ch.

419, § 4, p. 1036.)

We represent that there is in Michigan no counterpart of

this legislative finding and declaration, and that there never

has been any compelling reason in our State for radical legisla-

tion, akin in any way to Section 9, save only that which has

been generated by the covetous avarice of public as well as

—] ]

private exploiters and developers of farming or sparsely settled

areas. All the attorney general offers in such regard are his

own unsworn and rather vagarious assumptions, such as (brief

below at 23, 24):

The legislature might have reasoned that an area hav-

ing a population of 100 or less does not have a major

effect on a community when it is annexed to a city and

detached from a township, whereas an area having over

100 in population might have a major effect.

To these he has appended further notion that the legislature

“might have reasoned that the orderly growth of home rule

cities", or “the straightening of home rule city boundaries”,

should not “be prevented by such a small segment” or by

“a group of people less than 100 in number” (motion to dismiss

or affirm at page 10).

Repeating that the Michigan legislature has recorded no

evidence of thought upon these fancies, we say they are in-

vidiously wrong because Section 9 provides no limit on the

number (“100 persons or less”) of separate resolutions with

accompanying petitions which a city may resolve and file,

simultaneously or by daily progression, against the inhabitants

of that marked-for-multilation nearby township. Hence we

consider Section 9 wholly malignant in Fourteenth Amend-

ment sense because it licenses elimination of all voting in

selected parts of the township, just so long as each petition in

succession is drawn so that it takes in less than 100 retract,

by each step of the raid as planned.

If this sounds far-fetched, then we request that the Court

consider all those 1977 and 1978 “100-or-less” annexation peti-

tions that appear in Exhibit “K” (appendix 174a-18la). Not

= =

just the big cities but even little ones like Imlay City, popula-

tion 1,980, situated some 60 miles north of Detroit in the rich

agricultural area known as Michigan’s “Thumb”, are hard at

the game of progressive seizure of “100-or-Less” suburban or

farming areas. Turning from that region to the remote and

thinly populated Northern Peninsula, we find that the like

little City of Munising, with Lake Superior on one side and

square mile after square mile of forest land on the other, is

out to capture a “100-or-less” big chunk of Munising Township

(180a).

This isn’t annexation that offends just “a small segment”.

It is step-by-step unilateral confiscation of tracts made con-

tiguous by reprehensible practice which can and will deny

invidiously the right to vote, of hundreds in each assailed town-

ship unless it is arrested pending enactment of a more sane

and fair statute.

The above is not all of the comparative distinguishment

Weber provides. By way of detailed conclusio:, the Weber

Court took pains to record the existence in California of suf-

ficient judicial remedies and statutory inhibitions that are

designed to frustrate rapacious and arbitrary annexations.

Complete footnote 12, extending in fine print across nearly

half of page 610, presents these safeguards in detail. Deserv-

ing special mention here, they protect against a species of

domino downfall that is becoming favorite practice in Michi-

gan. To quote Section 12’s first example (Weber at 610):

(1) Simultaneous 1939 Act proceedings to annex ter-

ritories contiguous to each other, each of which contains

fewer than 12 resident voters but which together contain

more than 12, disqualifying the combined territories under

the 1939 Act (City of Anaheim v City of Fullerton, [1951]

102 Cal. App. 2d 385, 403, 227 P 2d 494).

- =

There is, in Michigan, no such protection of a township

territory against non-voted annexation. City commissions

stand free today, the Midland Township opinion and Section 9

considered, to plan and meet secretly for adoption of a succes-

sion of annexation resolutions aimed at an unsuspecting town-

ship, each describing a selected tract containing less than 100

residents and each near or adjacent to another, and for si-

multaneous signature of respective petitions addressed to the

State Boundary Commission.

These separate but cooperative resolutions and petitions

can be filed at once without knowledge of township inhabitants

in general, or if its immediately threatened inhabitants, or of

the township board. Once filed, the plenary jurisdiction of the

Michigan Boundary Commission clamps like a beartrapl5]

upon each tract thus designed for takeover, and the otherwise

plenary right of access to the judicial system has been gra-

tuitously restricted by the opinion below:

No vested right or legally protected interest being in-

volved [this had to be gleaned from Hunter], the judiciary

ought to be especially circumspect in reviewing commis-

sion rulings and determinations.

—Midland Township v. Boundary Commission 401 Mich.

641, 674 (1977).

[5]

The Boundary Commission is even holding that, once a resolution

and petition have been filed under Section 9, it cannot be withdrawn by

consent and request of the involved city and township. Reference: “In

re proposed annexation of territory in Shelby Township to city of Utica”,

Boundary Commission docket number 72-AR-24, 116, on page 4 of the

commission’s “Summary of Proceedings, Findings of Fact and Order”,

entered Feb. 8, 1974.

olin

Some final comments upon Weber are pertinent.

First: The Court opened its address “to the merits of the

petition"I6] by quoting the first two sentences of Hunter's

sweeping dicta, which Gomillion had criticized (p. 605). No

mention of Gomillion in that regard was made. The record

shows that the California Court, having expounded the com-

pelling State interest requirement at length, found and ruled

that it had no application because Mr. and Mrs. Weberl7) did

not constitute an “identifiable class” of electors, citing Gordon

v. Lance, 403 U.S. 1 (1971), the ground assigned being that,

the legislature having eliminated an “election” as such, there

was no election in which Mr. and Mrs. Weber could participate.

Our deferentially submitted response to this is that such a

conclusion cannot be reached until the statute said to have

accomplished the elimination, has been found immune from

constitutional attack. Furthermore, Gordon v. Lance is rather

off the mark. There this Court definitely reviewed a straight-

[6]

In the Midland case, the obvious intent was for the City of Midland

to annex land from Midland Township upon which Dow Chemical is

building a multi-million dollar nuclear plant—a tax base for which

the City of Midland is understandably covetous, since it is even a greater

tax base than the conventional utility.

In Brighton, the obvious intent was to annex valuable shopping center

property.

These two instances in this consolidated case, by way of examples but

not limitation, are a far cry from Weber.

(7)

Mr. and Mrs. Weber were the only objectors to the annexation. The

tract annexed consisted of 24.7 acres, of which 4.7 acres were owned

and occupied by the Webers. The tract otherwise was totally unin-

habited. In that down-to-2 setting the Court held that the Webers had

not been denied equal protection by the annexation.

= =

out election by ballot. The presented issue was defined with

precision in the initial sentence of the Court's opinion (403

U.S. at 2):

We granted certiorari to review a challenge to a 60%

vote requirement to incur public debt as violative of the

Fourteenth Amendment.

Second: Whatever one may think of Weber's application of

the “no identifiable class” doctrine, in bar of otherwise entitled

equal protection, that would seem quite inappropriate for con-

sideration where (a) otherwise eligible voters are selectively

reduced in number by a statute permitting the practice by

means of successive resolutions and petitions, each aimed at

taking a “100 or less” tract, as (b) other eligible voters, residing

in a nearby small or large tract which for some reason—physi-

cal or geographic—cannot be divided and conquered, are by

the same statute provided the right to vote by referendum.

Saying this, we repeat that Section 9 permits, if it does not

openly invite, multiple resolutions and accompanying peti-

tions aimed at the same township with no pretense other than

that the motive is piece by piece, non-balloted capture of

valuable parts of that township. And here we take a respectful

issue with our Michigan Supreme Court when it says:

The motive or purpose of the city or township in draw -

ing the proposed boundaries or in requesting a revision

of boundaries is not material.

—Midland Township v. Boundary Commission at 679.

No authority for this extraordinary doctrine, which is dramat-

ically opposed to Gomillion, in the context of the right of equal

suffrage, is cited or suggested. We think there is none to be

found or hinted in the post-Baker v. Carr 369 U.S. 186 (1962),

decisions of the Court to which this brief is addressed.

-

Third: It may be that this Court may some day rule that

a statute as in Weber, limiting its scope to less than 12 and

guarding it against abuse and inequity by permitting direct

trial access to the Courts, is de minimis within Fourteenth

Amendment equal protection. Be that as it may, Section 9 is

no such statute. A mere reading of subsections (2), (4) and (7)

thereof will show that its very purpose was invidious discrimi-

nation, effected by permitting unilateral voting on one side

of the frontier, and by denying it on the other.

Fourth: By repetitious allusions in the opinion appealed

from, the Justices seemed to have been dispositively ab-

sorbed by observations that “the annexation question is es-

sentially political, and political considerations cannot be

avoided” (at 669; 88a); that “Resolution of a controverted an-

nexation unavoidably involves political considerations and the

exercise of a large measure of discretion.” (at 673; 92a); that

Section 9 “poses considerable risk of drawing the judiciary

into the resolution of what continues to be—despite the adop-

tion of the administrative format—essentially a political ques-

tion.” (at 674; 93a),[8] and finally this (at 674; 93a):

[8]

Until handing down last October of the decision below, it has as we

believe been widely assumed that the presence of a duly submitted

“political question” no longer does or should deter the courts from decid-

ing it on merit or demerit, and that the judiciary should not shy away

from such questions by leaving them largely to bureaucratic decisions

reached by politically appointed commissions. Gomillion at 347, and

Baker v. Carr, 369 U.S. 186 (1962), by “II” at 198, “III” at 205, and

“IV” at 208, have led the way in such regard. As written in Gomillion

at 347:

“In sum, Mr. Justice Holmes remarked, when dealing with a related

question, in Nixon v. Herndon, 273 U.S. 536, 540: ‘Of course the

petition concerns political action’, but ‘the objection that the subject

matter of the suit is political is little more than a play on words’ ”.

= =

No vested right or legally protected interest veing in-

volved, the judiciary ought to be especially circumspect

in reviewing commission rulings and determinations.

—at 674, 93a.

(The go-ahead hint of this last directive could hardly be

missed by the Boundary Commission. Indeed, it is under-

standable that the Commission, by its doings, has aggressively

guarded the cities from those “venal abuses,” on the part of a

“few persons” or “a small group” [at 667; 86a], which visibly

concern the Court.)

Our purpose in submitting this quotational analysis of the

Court’s opinion is not that of questioning the prerogative of

the Michigan Supreme Court in construing and applying Sec-

tion 9. We recognize cheerfully that exclusive judicial func-

tion. Rather, we offer the analysis only to show (a) that Michi-

gan, quite unlike California as shown by Weber, provides no

plenary access to her trial courts for remedy and protection

against invidious or purposefully malignant manipulation of

this particular annexation statute; and (b) that California's

carefully limited “less than 12 persons” class, dealt with in

Weber, is no authority for holding that Michigan’s “100 or

fewer” classification sustains the burden of the Appellees to

show a compelling state need for such an extreme if not corrupt

statute.

In Michigan, under the procedures act mentioned (MCLA

24.201 et seq.), the right of access to the circuit (trial) court

is “confined to the record” by section 104(3), subject only to

section 105’s permission to seek on circuit court review, for

“good reasons,” an order for the taking of “additional evidence.”

But even that, if granted, returns the parties to the administra-

tive tribunal for the additional evidence, and for an additional

evaluation of the whole record by the tribunal and entry as

==

may be indicated of a new order. In a word, our circuit courts

have no power except that of review of legal questions, and

are denied as in California the authority to proceed to full

hearing and to entry of an independent new judgment.

One of the California cases cited in Weber's lengthy foot-

note make it clear that if “fraud was perpetrated in the matter

of the boundaries or the extent of the annexed district”, a

remedy therefor is available in the superior (trial) court, citing

People ex rel Peck v. City of Los Angeles, 154 Cal. 220, 97 P.

311, 313. The case, thus cited by Weber, is City of Anaheim

v. City of Fullerton, 102 Cal. App. 2d. 395, 227 P. 2d. 494

(1951).

California then, does provide adequate safeguards against

venality, no matter whether the annexor or annexee is the

perpetrator thereof. Michigan does not.

Iti.

THE SINISTER CLASSIFICATIONS WHICH SECTION 9

HAS LICENSED IN ARRAY WITH THE PRINCIPLES

ESTABLISHED AT THE VERY BEGINNING BY REYN-

OLDS V. SIMS.

A. Section 9 Can Permit The Progressive Destruction of

Townships.

Division II of Reynolds (377 U.S. at 554, et seq.) opened

the Court’s discussion of these principles. At 555 and 556

Chief Justice Warren observed that the right of suffrage “can

be denied by a debasement or dilution of the weight of a

citizen’s vote just as effectively as by wholly prohibiting the

free exercise of the franchise.”

x

iti

Then by appended footnote 29, the Chief Justice elevated

the 1950 dissent of Justices Douglas and Black, against summary

affirmance of South v. Peters, 339 US 276, 279, to the level of

respected authority, quoting it as follows:

There is more to the right to vote than the right to mark

a piece of paper and drop it in a box or the right to pull a

lever in a voting booth. The right to vote includes the

right to have the ballet counted . . . It also includes the

right to have the vote counted at full value without dilu-

tion or discount . . . That federally protected right suffers

substantial dilution . . . [where a] favored group [h] as

full voting strength . . . [and] the groups not in favor have

their votes discounted.

Reynolds, supra at 555

Then the Chief Justice proceeded on page 563 to add these

words which we think are of special significance:

Weighing the votes of citizens differently, by any

method or means, merely because of where they happen

to reside, hardly seem justifiable. One must be ever

aware that the Constitution forbids “sophisticated as well

as simple-minded modes of discrimination.”

In our Section 9 setting the common right of voice in annexa-

tion matters, of the electors of a Home Rule City, is truly

representative. The City Council is elected to represent the

people of the city and act independently in their behalf. The

city electors’ right of suffrage is thus guaranteed by representa-

tion to the high standard of equal protection.

The electors of the city, by that representation, have voted

for each Section 9(7)(a) resolution which the Council and City

—20.—.

Manager have drawn up to avoid the more than 100 persons

class, always retaining some semblance of contiguity no matter

how physically “uncouth” (yes, from Gomillion at 340) the

latter might have to be.[9] This follows because the city is

become a true municipal corporation. (Sec. 1. Each organized

city shall be a body corporate, MCLA §117.1).

But the opposite is true of Michigan townships. There it is

the inhabitants that make up the body corporate,[19] and their

elected representatives consisting of the township board of

trustees (7 in number) have only such legislative powers as

the State legislature has chosen to supply. So the discrimina-

tory assault of section 9 is aimed directly, not alone at the

township at large, but at the inhabitant electors thereof, class

by class to destroy separately their hitherto known right to

vote for or against annexation petitions.

The point made here is that the government of a Home Rule

City is based upon a charter the electors themselves have

[9]

One such resolution and petition, now at issue before the Boundary

Commission, pales by comparison the critical shape of that which, in

Massachusetts 117 years ago, Governor Gerry’s legislature drew up and

enacted. It would annex an approximate square mile of a long north-

south fractional township, cutting it but leaving a small but more than

100 residential area of the township hemmed-in by the city on 3 sides,

with no direct access to the rest of the township and with the fourth side

blocked physically by the multiple main line tracks of an international

railroad (Canadian National-GTRR, connecting Chicago with Toronto

and Montreal), plus those of another through and paralleling railroad,

the Chesapeake and Ohio.

[10]

Since 1846 section 2 of the Michigan Township Law has provided

(MCLA §41.2):

The inhabitants of each organized township shall be a body

corporate, .. .

ee

—)

adopted, subject only to such statutes as may modify or extend

that charter; that those electors are represented for all govern-

mental purposes by their elected councilmen, and that they

have vested with the City Council the right and power to

proceed legislatively just as State legislators do on behalf of

their constituents.

In the township, however, the status of the people is dif-

ferent. They either have the right to vote as before in ac-

cordance with constitutional legislation, or they have been

unconstitutionally classed out of rightful voice in the determi-

nation of annexational proceedings that are sure to affect them,

adversely or prosperously. The discrimination favoring city

voters over township voters, the subject being annexation by

the city of township territory, with no voice permitted the

township inhabitants, is evident.

All this says nothing of the specific classes of township resi-

dents which section 9 designates for separate treatment. One

(less than 100) is culled out for sentence to city government

where, unlike the close-to-the-people government of a town-

ship, intrigue and corruption find their devious ways less

difficult. The other is that group of township residents, more

than 100 in number, that finds itself surrounded or nearly so

by callous gerrymandering, and yet is excluded from the an-

nexational process by the fact that their greater number has

eliminated them from the scope of the resolution and petition

the annexers have filed, a process that usually leaves them

on an island or peninsula of township territory.

There can be little doubt that section 9’s permissible clas-

sifications, if left intact, will permit the appellee Commission,

with discretion limited only by that ever-elastic adjective “rea-

—_— =

sonable”, to progressively dismember and ultimately gut city-

adjacent townships.11]

B. The Classification Cases Cited by Appellees are Not

Applicable.

McGowan v. Maryland, 366 US 420 (1961) is relied upon

by the Michigan Attorney General (P. 7 of Brief) and Novi

(P. 28 of Brief) as precedent for the classification of 100

or less in Michigan Home Rule, Sec. 9, referred to above.

McGowan has no such precedential value.

McGowan, as part of Marylands’ blue laws, simply classified

some commercial activities as prohibited and others permitted

on Sunday. The Court did not overrule such classification.

McGowan did not involve the fundamental constitutional

right of voting—a constitutional “suspect classification” de-

manding a “compelling state interest” and “strict scrutiny”

by this court for any constitutionally permitted limitation as

contracted to commercial blue laws that do not involve a

constitutional right or suspect classification referred in Kramer

v. Union Free School District No. 15, 395 US 621 (1969) and

the myriad of other voting rights cases.

The other “classification’ cases cited by Novi (P. 28 of

Brief) are equally inapplicable.

[ii]

To this situation it would seem that the conclusion of the court, in

Truax v. Corrigan, 257 US 312, 336, is directly applicable:

“If this is not a denial of the equal protection of the laws, then it is

hard to conceive what would be. To hold it not to be, would be, to use

the expression of Mr. Justice Brewer in Gulf, Colorado & Santa Fe R.

Co, v. Ellis, 165 US 150, 154 to make the guaranty of the equality

clause ‘a rope of sand.’”

ee ee eee OB a ee

= =

1. Village of Belle Terre v. Boraas, 416 US 161 (1974).

This Court upheld a classification in a zoning ordinance

distinguishing it from fundamental voting rights cases by

stating:

It [the zoning ordinance] involves no fundamental right

guaranteed by the constitution such as voting, Harper v.

Virginia Board, 383 US 663 . . .

2. Atlanta Bowling Center, Inc. v. Allen, 389 F2d, 718 C 5

CA (1968).

In this case, a bowling alley claimed a denial of equal pro-

tection when it was denied a license to sell liquor by the glass

in their Boom Boom Room. No claim was ever made that this

was a constitutionally protected right or a suspect classifica-

tion. It is no precedent for granting some citizens the right to

petition and vote on annexation, and deny it to others, as in

the present case before this Court.

8. Alkire v. Carlsman, 350 F. Supp. 360, aff'd memo 377

F. 2d. 480 (1972).

An Ohio statute required cities over 5,000 to fluoridate

water. Complaints claimed classification was a denial of equal

protection. This was a health statute under the police power

of the state—not a “suspect classification”. The Court upheld

it saying:

There is no federal constitutional requirement that a

state exercise its police powers to the fullest extent, at any

given time...

—Id., at 364.

eo eT

—

The Court further reasoned such classification would:

. . reach an optimum number of citizens, at the least

possible cost, utilizing the greatest efficiences of scale.

—Id., at 364.

A legislative classification not involving constitutional right.

4. Adams v. City of Colorado Springs, 308 F. Supp. 1397,

399 U.S. 901, 400 U.S. 855 (1970), page 29 Novi Brief.

The United States District Court upheld a geographical

classification for annexation stating:

Greater or lesser contiguity with a municipality is about

the only reasonable test for the legislature to provide for

unilateral annexation.

—Id., at 1404.

Emphasis added.

Thus, Adams is not precedent for the case since it applies

only to geography, in fact, by inference is precedent against

appellees, since the case at bar involves people, not acreage.

5. Thompson v. Whitley, 344 F. Supp. 480 (1972).

The lower court failed to use the “strict scrutiny” test in

the factual situation of limiting certain persons voting rights

on annexation.

6. Murphy v. Kansas City, Missouri, 347 F. Supp. 837

(1972).

This case misapplied Hunter by stating:

—25—

Thus, neither the Cipriano nor the Kramer case is ap-

plicable to limit the power of the State of Missouri or the

City of Kansas City regarding the annexations proceed-

ings as declared in Hunter.

—Id., at 841.

7. Doyle v. Municipal Commission of the City of Minne-

sota, 349 F. Supp. 841 (1972).

This case did not involve permitting some to petition and

vote on annexations and denying such right to others, and so

is factually different from the case at bar.

8. Forks v. City of Warren, 273 N.E. 2d. 856 (1971).

The facts were different than the case at bar, since there

was no classification of some getting to vote depending on

population of area to be annexed. The Court failed to apply

“strict scrutiny”.

9. City of Monticello v. Adams, 200 N.W. 2d. 622 (1972).

The Court misapplied Hunter, at page 524.

The factual situation differed in that the annexing city in

Monticello showed it could provide substantial services to

annexed territory of water, sewage, fire and police protection,

garbage collecticn, etc. (page 523) and could arguably be

an exercise of police power not factually shown in the case at

bar, nor required to be shown by Michigan annexation laws.

(Section 9).

C. In Arguendo, Even if “Strict Scrutiny”, “Fundamental

Rights”, and “Compelling State Interest are Not the

Applicable Standards, Section 9 Still Does Not Meet

the Reasonable Classification Test.

~~

Appellees cite ad infinitum cases upholding “reasonable

classification” as opposed to “strict scrutiny.”

The drawing of the line to deny voting rights to people in

the area to be annexed, the balance of the township, and the

city at 100 residents is not reasonable.

Admittedly, there are many situations where the legislature

does draw a line that may seem arbitrary but in fact and law

is reasonable. In civil law, a line for the age of majority may

be drawn at 18 or 21. Yet, everyone knows of a 16-year-old

who is more mature than a particular 60-year-old. A speed

limit of 40 miles an hour does not ignore the fact that some

drivers at 30 miles an hour are more dangerous than others at

50 miles an hour.

IN THESE, AND MYRIADS OF OTHER CASES WHERE

A LINE IS DRAWN, THE INDIVIDUAL DOES NOT HAVE

ANY EFFECT ON WHERE THE LINE IS DRAWN.

IN THIS CASE, THE CITY WANTING TO ANNEX PART

OF A TOWNSHIP CAN MANIPULATE “THE LINE” SO

AS TO CAUSE MISCHIEF AND THE CONSTITUTIONAL

DEPRIVATION OF THE RIGHT TO VOTE TO RESI-

DENTS, BOTH OF THE TOWNSHIP AND THE CITY.

As shown on page 98 of the Jurisdictional Statement, all

23 resolutions for annexation filed in 1978 after the Michigan

Supreme Court decision in this matter were for areas of 100

or less residents!

Thus, the “drawing of this line” at 100 or less results in cities

utilizing that option 100 percent of the time denying citizens

the right to vote on referenda.

~

A city, by carving out units of a township at 100 or less per

annexation, can in a piecemeal fashion annex all the valuable

tax base of a township, leaving only an area where residents

need vital government services but can’t afford them. (This

amounts to cutting a dog’s tail off an inch at a time until the

dog is decapitated).

In fact, certain township have been so gerrymandered

that they are not even a contiguous whole. See, for example,

Lansing Township in Ingham County, Michigan, consisting of

7 unconnected parcels.

Following are examples of the classifications established

by Michigan law:

1. A petition for annexation of all or part of a township

may be filed by a resolution of the annexing city, MCLA

117.9(7)(a) Appendix 170a. But no provision is made for a

township or village governing body to propose annexation of

a city in whole or in part.

2. If an annexation resolution or petition is filed and the

area to be annexed is 100 or less, there can be no referendum

petition filed by one and the action of the Michigan Boundary

Commission is final subject only to possible and limited judicial

review. MCLA 117.94), Appendix 169a.

3. If the area approved by the Boundary Cormmission for

annexation contains over 100 persons, a referendum may be

filed by obtaining signatures of 25% of the registered voters

in any one of the following classifications:

(a) the area to be annexed, or

(b) the annexing city, or

= =S

(c) the balance of the township to be annexed.

4. If the referendum is held, it can be defeated by a nega-

tive majority in any one of the three following categories:

(a) the area to be annexed, or

(b) the annexing city, or

(c) the balance of the township to be annexed.

Thus, the right to petition for a referendum and vote on same

is granted each of these categories (residents of area to be

annexed, of annexing city, and balance of township) and an-

nexation must be approved by a majority in each of the three

categories to be effective, if there are 100 or more in the area

to be annexed. MCLA 117.9(5), Appendix 169a.

If there are 100 or less in the area approved by the Boundary

Commission for annexation, there can be no referendum by

any of three named categories. MCLA 117.9(4), Appendix 169a.

The practical effects of these discriminatory provisions are as

follows:

1. The 100-or-less resident class. This is the favorite of the

cities, for it forecloses parcel by parcel all right of suffrage in

a township and is jurisdictionally invocable by means of the

cities’ authority to select ex parte the target class by drawing

lines on a township map and preparing a legal description, both

for attachment to the cities’ upcoming petition to the Bound-

ary Commission.

The city may draw these lines anywhere it chooses over and

about the map, just so long as a two feet or more of contiguity

—29—

with a city boundary is maintained, and less than the permitted

100-or-less residents live in the chosen enclosure.

So it may easily be seen that class designated by section 9

as “100 persons or less” is a crafty misnomer. That class can

be safely enlarged by the marauding city to, say 1000 residents,

simply by drawing each of ten or eleven simultaneous or rapid

fire resolutions and petitions, with successive contiguity main-

tained, so that each set includes 100 persons or less in residence.

2. Section 9 openly authorizes the filing of each resolution

and petition, one pair after the preceding pair and so on, always

maintaining some minute or substantial point or points of con-

tiguity, so that the desirable parts and portions of adjacent

townships are confiscated with nary a voice allowed the town-

ship's inhabitants, or any of them, by resort to the voting booth,

and with the undesirable or poor remaining portions of the

township left fragmented, sometimes actually separated, and

helpless for financial reasons to maintain any fair semblance of

township government.

IV.

THE DEVELOPMENT OF THE LAW ON VOTING

RIGHTS SINCE HUNTER WAS DECIDED IN 1907

PROHIBITS A CLASSIFICATION BASED ON POPULA-

TION.

A. Chronology of State of the Law on Voting Rights Under

the Equal Protection Clause.

The following chronology highlights the growth of the law

on voting rights under the Equal Protection Clause of the

Fourteenth Amendment.

—30—

1. 1907-Hunter v. Pittsburgh, 207 U.S. 161. The question

of Equal Protection was not even raised because it was ac-

cepted by all parties that the Equal Protection Clause did not

apply.

2. 1946-Colegrove v. Green, 328 U.S. 549. In Colegrove,

the Illinois legislature—itself badly malapportioned—estab-

lished congressional districts within the State of Illinois that

were also badly apportioned.

Justice Frankfurter wrote for the majority stating that the

relief sought was ‘beyond its [the Court’s] competence to

grant”. (Page 552). Justice Frankfurter, in dicta, further

stated:

“Courts ought not to enter this political thicket.”

—Id., page 556.

Justice Black, in a dissent joined by Justices Douglas and

Murphy, prohetically state in reference to the malapportioned

Illinois Congressional Districts:

“The Equal Protection Clause of the Fourteenth Amend-

ment forbids such discrimination.”

—Id., Page 569.

8. 1967-Gomillion v. Lightfoot, 364 U.S. 339. The State

of Alabama redefined the boundaries of Tuskegee to exclude

all but four or five Negro voters from the city but not exclude

a single white.

Justice Frankfurter wrote the opinion for an unanimous

court, declaring such state action unconstitutional. He relied

on the Fifteenth, not the Fourteenth Amendment. He severely

limited his opinion in Hunter by saying:

—

To exalt this (state power to establish local boundaries )

power into an absolute is to misconceive the reach and

rule of the Court’s decisions in the leading case of Hunter

v. Pittsburgh, 207 U.S. 161, 52L. Ed. 151, 28 S.Ct. 40,

and related cases relied upon by respondents.

Id., at 342.

Justice Frankfurter reversed his “political thicket” dicta of

Colegrove by affirmatively quoting Mr. Justice Holmes:

Of course the petition concerns political action; but the

objective that the subject matter of the suit is political is

little more than a play on words.

—Id., at 347.

4. 1962-Baker v. Carr, 369 U.S. 186. Baker v. Carr, so well

known to this Court, established the principle that the Equal

Protection Clause applies to state legislative districts and the

lack of equality is a justiciable issue. Justice Frankfurter, who

wrote the majority opinion in Colgrove deny relief for malap-

portionment, was consistent in Baker, where his vigorous opinion

was that of a dissenting minority. Thus, the law evolves and

grows.

eS ee ee

v. Sims, cited next.

5. 1964-Reynolds v. Sims, 377 U.S. 533. The Court stated

in no uncertain terms:

Diluting the weight of votes because of place of resi-

dence impairs basic constitutional rights under the Four-

teenth Amendment just as much as insidious discrimina-

tions based upon factors such as race, Brown v Board of

=

Education, 347 US 483 . . ., or economic status, Griffin v

Illinois, 351 US 12 . . ., Douglas v California, 372 US

—Id., at 566.

Emphasis Added.

In this case, the right to vote is diluted 100 percent to the

point it is non-existent.

A person in an area proposed for annexation of more than

100 residents has an absolute right to petition and vote on a

referendum, as do inose in the balance of the township and

the annexing city.

If 100 or less reside in the area to be annexed, none has

the right to petition or vote on a referendum.

If a person lives in a city, that city council can petition for

annexation of part of a township. If a person lives in a town-

ship, that person’s local government cannot petition to annex

a portion of a city.

Residency determines (1) whether a voter’s local govern-

ment can initiate annexation and (2) whether a voter can initiate

a petition for referendum and (3) whether a voter can vote on

an annexation referendum.

All these limitations based on residency are violative of the

Equal Protection Clause.

The Court also said in Reynolds:

One must be ever aware that the Constitution forbids

sophisticated as well as simple-minded modes of dis-

crimination’.

Id., at 568.

a

The Michigan Boundary Commission, no matter how art-

fully drawn cannot, in a sophisticated fashion, indirectly deny

the right to vote that cannot directly be denied.

The United States Constitution does not prevent a state

legislature from establishing local boundaries on a reasonable

basis by a legislature based on one-man, one-vote. The Equal

Protection Clause does prohibit granting some persons a vote

but denying it to others based on residency.

Admittedly, a state legislature could divide a state into all

counties, all cities, or all townships or even provide for legis-

lation only by the state legislature with no local government

—and still not violate the United States Constitution.

What the state cannot do is establish local units of govern-

ment and let only women vote, only property owners vote,

only Latinos vote, only people living on the south side of the

street but not the north side, or only those in units to be an-

nexed of over 100 residents.

6. 1969-Ciprianc v. Houma, 395 U.S. 701. In this case, the

question was raised whether an otherwise qualified voter who

paid no property taxes could be precluded from voting on a

municipal bond issue. This court applied the Equal Protection

Clause to such an election by holding:

As we noted in Kramer, supra, if a challenged state

statute grants the right to vote in a limited purpose elec-

tion to some otherwise qualified voters and denies it to

others,[4] “the Court must determine whether the exclu-

sions are necessary to promote a compelling state interest.”

Kramer v Union Free School District No. 15, supra, at

627, 23 L Ed 2d at 589.

—Id., at 704.

=

7. 1977-Lockport v. Citizens for Community Action, 430

U.S. 259. The State of New York passed a statute that per-

mitted a new county charter to go into effect only if approved

by a majority of each of the city and non-city voters.

This Court held such a “dual box” voting system did not

violate the Equal Protection Clause.

This is a similar situation that applies under Michigan law

if the area for proposed annexation exceeds 100. (MCLA

117.9[5]). There must be a majority vote of approval by

(1) the city, (2) the part of the township to be annexed, and

(3) the balance of the township, if a referendum is held. This

is a “triple box” rather than the “double box” of Lockport.

SUMMARY OF PRESENT STATE OF THE LAW

The current state of the law is that the Equal Protection

Clause prohibits discrimination on the basis of residency for

all elections including referenda, unless such discrimination is

shown as necessary under the strict scrutiny test for a com-

pelling state interest.

The Michigan Court did not interpret Hunter or other cases

correctly, ignored Gomillion and Lockport, and failed to apply

the “strict scrutiny” and “necessary for compelling state in-

terest” tests.

B. The Michigan Court further erred where it applied only

the “reasonable relation” and “appropriate means” test

to meet the Equal Protection Clause, not the “strict

scrutiny” test.

We are of the opinion that the challenged classification

bears a substantial relation to the object of the legisla-

—35—

tion{24] providing a means appropriate to the resolution of

disagreements concerning annexation of territory to a

city.(25)

[24] ‘

Manistee Bank & Trust Co v McGowan, 394 Mich 655, 668; 232

NW2d 636 (1975).

[25]

In so holding we do not reach the city contention that the Equal

Protection Clause does not apply to an annexation.

—Midland Township v. Boundary Commission, 401

Mich. 641, 666-67 (1977)

Appendix 85a-86a

Footnote 25 is particularly revealing in that the double

negative shows the court considered the Equal Protection

Clause applicable but simply misapplied it by failing to use

the strict scrutiny standard.

The bland statement of the court is simply a conclusion

with no basis in fact, as in Weber, cited above.

V.

THIS COURT HAS JURISDICTION OF THIS MATTER

The Michigan Supreme Court in its opinion in this matter

stated:

A. EQUAL PROTECTION

In the instant annexations fewer than 100 persons re-

sided in the territories to be annexed.

The townships and individual plaintiffs, acknowledging

the principles enunciated in Hunter, assert that while the

36-

Legislature may provide for annexation without an elec-

tion is it violative of the Equal Protection Clause to pro-

vide for a referendum where more than 100 persons reside

in the territory to be annexed and deny a referendum

where 100 persons or fewer reside in the territory.

—Midland Township v. Boundary Commission, 401

Mich. 641, 666

Appendix 85a

Emphasis added.

Thus, the Michigan Court, by its heading “A. EQUAL

PROTECTION” and the capitalized “Equal Protection

Clause,” was clearly referring to the Fourteenth Amendment

of the United States Constitution, allegations of Appellee Novi

to the contrary, notwithstanding.

The Attorney General, attorney for the Boundary Com-

mission Appellee under Michigan’s Constitution, did not even

raise the questions of jurisdiction, and Appellee Novi, which

was a permissive intervenor and not the principal defendant,

must accept the case as presented by the principal party and

cannot raise defenses which the primary defendant has con-

ceded.

The Attorney General in the brief in opposition to applica-

tion for a stay in this Court stated, at page 2:

The issues addressed by the Michigan Supreme Court

included, among other things, whether there had been

a violation of the equal protection clause of the federal

constitution by providing for a referendum where more

than 100 persons reside in the territory to be annexed

and denying a referendum where 100 persons reside in

the territory.

—37—

The federal question was also considered in the Attorney

General's brief in support of their motion to dismiss or affirm:

The Michigan Supreme Court unanimously upheld the

authority of the State Boundary Commission and found

that the contentions of the townships pertaining to alleged

violation of the Federal Constitution, state constitution,

and state law were without merit. Specifically, the Mich-

igan Supreme Court, after careful examination of federal

case law, concluded that there had been no violation of

the equal protection guarantees afforded by the Four-

teenth Amendment to the United States Constitution and

stated:

—Motion to Dismiss or Affirm, Attorney General of

Michigan, p 3.

In arguendo, if there is any ambiguity, which Appellants

deny, we would argue that this Court’s edicts in Herb v.

Pitcairn, 324 U.S. 117 (1944) must be observed. Therein, this

Court said that even though it would not normally review

judgments of state courts that rested on adequate and in-

dependent state grounds, it would not follow that this Court

would refuse to protect its jurisdiction when given reasonable

grounds to believe it exists. In fact, this Court said:

... In proper cases we will impose the duty of apply-

ing for it [review of a federal question] upon petitioner

or appellants on our own motion.

—Id., at 128.

Importantly, Mr. Justice Black, in his dissent, which was

concurred in by the three remaining Justices, Justices Douglas,

Murphy and Rutledge, argued that there was no question but

that a federal issue had necessarily been involved before the

state court and that the U.S. Supreme Court should, therefore,

accept jurisdiction without further judicial delays.

=

The similarity of the Equal Protection Clauses of both the

federal and state constitutions is apparent by a reading of the

language of each, which follows:

No person shall be denied the equal protection of the

laws...

—Mich. Const. 1963, art. 1, §2.

All persons born or naturalized in the United States, and

subject to the jurisdiction thereof, are citizens of the

United States and of the State wherein they reside. No

State shall make or enforce any law which shall abridge

the privileges or immunities of citizens of the United

States; nor shall any State deprive any person of life,

liberty, or property, without due process of law; nor deny

to any person within its jurisdiction the equal protection

of the laws.

—U.S. Const. Am XIV

Emphasis added.

Appellee Novi must be aware that to avoid the merits of

the issue will only force some townships in the immediate

future to raise the federal equal protection issue, if in arguendo,

it is not ruled on now since there are a plethera of “100-or-less”

annexations underway and since this was not a class action,

each and every annexation of “100-or-less” can result in litiga-

tion based on the Fourteenth Amendment Equal Protection

Clause one or more of which would end up in this Court, with

the identical constitutional issue that is now before this Court.

Delay can only result in judicial and political mischief.

—39—

RELIEF

WHEREFORE, this Court is asked to:

Deny the Motions to Dismiss or Affirm;

Accept jurisdiction in this matter and decide sua sponte in

favor of Appellants, or grant the appeal;

In the alternative, remand this matter to the Michigan Su-

preme Court with the order that Court review Hunter in view

of Gomillion and these pleadings.

Respectfully submitted,

Attorneys for Appellants

EUGENE F. BLACK

2700 Strawberry Lane

Port Huron, Michigan 48060

DOWNS AND PIRICH

Tom Downs

John D. Pirich

603 Capitol Savings & Loan Building

Lansing, Michigan 48933

BAUCKHAM, REED, LANG,

SCHAEFER & TRAVIS

John Bauckham

500 Park Building

Kalamazoo, Michigan 49007

April 17, 1978.

TOWNSHIP OF NOVI,

Appellant,

and ]

W. B. CHASE AND CHASE MANOR

FARMS, INC., a Michigan corporation, and

MARY ANN ODERMAN,

Vv

STATE OF MICHIGAN, DEPARTMENT

OF TREASURY, STATE BOUNDARY

COMMISSION,

and

CITY OF NOVI, a municipal corporation,

a Appellee

GREGORY I. DONOVAN, et al.,

Intervening Defendants.

TOWNSHIP OF BRIGHTON, a municipal

corporation in Livingston County, Michigan

and MURIEL BEURMANN,

Appellants,

v

MICHIGAN STATE BOUNDARY

COMMISSION,

and

CITY OF BRIGHTON, a Michigan

municipal corporation,

Appellee,

and

GROUP BUILDING COMPANY, a Mich-

igan corporation, TRAVELIER, INC., a

Michigan corporation, MACATI INVEST-

MENT COMPANY, a Michigan corporation,

Intervening Defendants.

(Continued on back cover)

TOWNSHIP OF BRIGHTON, a municipal

corporation in Livingston County, Michigan

and MURIEL BEURMANN,

Appellants,

v

MICHIGAN STATE BOUNDARY

COMMISSION,

Appellee,

and

CITY OF BRIGHTON, a Michigan mu-

nicipal corporation, GROUP BUILD-

ING COMPANY, a Michigan corporation,

TRAVELIER, INC., a Michigan corpora-

tion, MACATI INVESTMENT COM-

PANY, a Michigan corporation,

Intervening Defendants.

FOWNSHIP OF BRIGHTON, a municipal

corporation in Livingston County, Michigan,

and MURLEL BEURMANN,

Appellants,

v

MICIIGAN STATE BOUNDARY

COMMISSION,

and

CITY OF BRIGHTON, a Michigan

municipal corporation,

Appellee,

and

GROUP BULLDING COMPANY, a Mich-

igan corporation, TRAVELIER, INC., a

Michigan corporation, MACATI INVEST-

MENT COMPANY, a Michigan corporation,

Intervening Defendants.