Intervenors Brief — Township of Midland v. Michigan State Boundary Commission

No. 77-1285 ! APR 18 tor,

IN THE SUPREME COURT OFTHE...

UNITED STATES

October Term, 1977

a.

TownsuHip oF Mipuanp, a Municipal Corporation

in Midland County, Michigan and Rosert

B. CHatTrerton, et al,

Appellants,

vs.

Micuican State Bounpary ComMIssION,

Appellee,

and

Crry oF Mip.anp, a Municipal Corporation,

Intervening Defendant-Appellee,

et al.

On Appeal From the Supreme Court of Michigan

MOTION TO DISMISS OR AFFIRM

Lampert, F'rrep & Levitt, P:C.

Attorneys for Intervening Defendant-

Appellee, City of Novi

By: Davin M. Friep

Gary E. Levirr

20840 Southfield Road

Suite 320

Southfield, MI 48075

AMERICAN BRIEF AND RECORD COMPANY, 125 WEALTHY STREET, S.E.,

GRAND RAPIDS, MICHIGAN 49503 — PHONE 458-5326

ODAK 1p Fr eny

INDEX

Page

po SF Ee iy | | ee ii

SU IIIITTTTTT : xicnschscauscsseuitldinidiiesichussilinhbnsentatsienintinniantedidiionasedidaaii 2

ARGUMENT —

I, THE FEDERAL QUESTION SOUGHT TO

Il.

BE REVIEWED WAS NEITHER TIMELY

NOR PROPERLY RAISED NOR EXPRESS-

LY PASSED ON BY THE SUPREME

COURT OF MICHIGAN. THIS COURT IS

WITHOUT JURISDICTION OF THIS CASE

UNDER 28 U.S.C. § 1257 (2) .........2......eseceseoeee

THE INSTANT APPEAL DOES NOT PRE-

SENT A SUBSTANTIAL FEDERAL QUES-

SEITE | sandieiasinsseaheciiscihlibkainctbaniapaimaipesdamsaiataaladeasediaiaiiens

A. The Subject Of Annexation Is Strictly A

Political Question Which Is Not Subject To

Constitutional Prohibitions -.......................

B. Even If, Arguendo, Annexation Procedures

Do Come Within Equal Protection Safe-

guards, The Annexation Procedure Chal-

lenged In The Instant Case Does Not In-

volve Fundamental Rights So As To Nec-

essitate A Showing Of A Compelling State

Interest And Need Only Meet The Test

Of Having A Reasonable Basis For Clas-

ID ecctensneteneencacicticiieiremnnscciicaiiiataniaiiediin

C. There Is No Substantial Federal Question

As To Whether The Annexation Proced-

ures Challenged In The Instant Case Bear

A Reasonable Relation To The Objects

* f° eeRnEES Seen e re

ITE. . siscesercttictncceinsiscsssiinryiitiomninnpieanieneibleinbiaiatnbiaiaieay

13

13

21

ii

TABLE OF AUTHORITIES

Page

United States Cases:

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

1397, aff’d. mem., 399 U.S. 901, rehearing de-

met, GED TW, GED CITI) oaceicessesccnssencsnecesnsenncen 21, 24, 25, 29

Alkire v. Cashman, 350 F. Supp. 360, aff’d mem.,

Ee ee ee Ie ueisiveshictecsrctensinisieseeniesisiiinilioamicibitondes 28

Atlanta Bowling Center, Inc. v. Allen, 389 F.2d 713

NE Sei, EIIIIIED: ‘cdiecdiiccnseidbsieisicniptteinecienitbdeinesnlelinlasciaiiee 28

Bowe v. Scott, 233 U.S. 658 (1913)...................-..0..--. 8,9

Carrington v. Rash, 380 U.S. 89 (1969).................... 16, 23

Chicago, Indianapolis and Louisville Railway Com-

a Te Ds ee Ge thnstiinnsechiniunsicrnignianiinns 7

Cipriano v. City of Houma, 395 U.S. 186 (1962)... 22, 23

Deane Hill Country Club, Inc. v. City of Knoxville,

379 F.2d 321 (6th Cir.) cert. denied, 389 U.S.

Pe ED steccnsjsvodinicmnnstssdbiealasltapauiaiainadaaniitaabiicanins 21

Detroit Edison Co. v. East China Township School

District No. 3, 247 F. Supp. 296 (1965).............. 16

Detroit Edison Co. v. East China Township School

District No. 3, 378 F.2d 255 (6th Cir.) cert. de-

nied, 389 U.S. 932 (1967) ....................-..-. 13, 15,16, 20, 21

Doyle v. Municipal Commission of the State of

Minnesota, 340 F. Supp. 841 (D.C. Minn., 3rd

ek GD, . wciciistninisnsesescihennsicadnditsititenindaltadsidiadecioniabionion 31

Dunn v. Blumstein, 405 U.S. 330 (1972)-................. 22

Evans v. Cornman, 398 U.S. 419 (1970).................. 22

Forbes v. State Council of Virginia, 216 U.S. 396

CUTIE scuenisvsishtenintincnbsasseusssveiemabemmatiineinaiisianetinit asin 7, 11

ili

TABLE OF AUTHORITIES (CONT’D)

Page

Garren v. City of Winston-Salem, 463 F.2d 54 (4th

ih ED: sciheassicketelsapieetnidbieeshtedintictieatalbiahiidsiideadeinnsn 25, 26

Gibbes v. Zimmerman, 290 U.S. 326 (1933).............. 9

Gomillion v. Lightfoot, 364 U.S. 339 (1960)......14-17, 20, 23

Hammonds v. City of Corpus Christi, 343 F.2d 162

(5th Cir.) cert. denied, 382 U.S. 827 (1965) -....... 16, 20

Harper v. Virginia Board of Elections, 383 U.S.

Ss IEE Gahassclasaucildedicacbletelncadacslseilgasduaeiseldaaaiabasdcanaias 24, 26

Herndon v. State of Georgia, 295 U.S. 441 (1935)... 7

Hunter vy. City of Pittsburgh, 207 U.S. 161

SET. - sceinniiciaassinaaniamenesmmnaatal 10, 14, 15, 16, 17, 20-21, 26

International Harvester Co. v. Kansas City, 308

F.2d 35 (10th Cir., 1962) cert. denied, 371 U.S.

RS AMIE RE RE 16, 20-21

Kramer v. Union School District No. 15, 395 U.S.

GEEEE: SENIEE <oocossnsiiensistsaitiindciacsipintinbsctenuiacsaniddbsiaibanscbimnbiiiaiacs 22, 23

Levy v. Superior Court of San Francisco, 167 U.S.

Oe ry eee ee 10

McGowan v. Maryland, 366 U.S. 420 (1961) .............. 28

McMillen v. Ferrum Mining Company, 197 U.S. 343

RE RAS Rats IR ATF NR

Miller v. Cornwall R.R. Co., 168 U.S. 131 (1897)... 9

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

SAK. Sa ITED: sainieninsceabsiiebubecasseniaiesitaapaianivahaiditess 25, 26, 31

Osborne v. Clark, 204 U.S. 565 (1907) _.- ee. 11

Rooker v. Fidelity Trust Company, 261 U.S. 114

SUEUNE- ‘cisinsduipedantaibeaiibilecpudpasias eusbihaaelaiaentaeapannamatiasicn 7

iv

TABLE OF AUTHORITIES (CONT'D)

Page

Shapiro v. Thompson, 394 U.S. 618 (1969).............. 22, 26

Thompson v. Whitely, 344 F. Supp. 480 fos D.N.C.,

TIPU -_ cxcesvescecsiesanhoonnsusesnsddiniscsieiebdibessnademmmuuaaniesionsiinn 26, 31

Town of Lockport, New York v. Citizens for Com-

munity Action at the Local Level, Inc., 430 U.S.

Be ED | scciccanidcssnseccateanicapieedacdearenAgalaagsibeis 27, 31

Village of Belle Terre v. Boraas, 416 U.S. 1 (1974) 28

Other Cases:

City of Monticello v. Adams, 200 NW.2d 622 (1972) 31

Forks v. City of Warsaw, 273 NE.2d 856 (Ind.,

STEEEE - siihanioeciovestdaunstenusaiahieaeaeiaietialpsicaistiaahdanbeiatagmleaiinatn 31

Grossman Building Co. v. Elliot, 382 Mich 596,

171 NW.2d 441 (1969) .................. peliagthsiigsliashdanindibads 6

Manistee Bank & Trust Co. v. McGowan, 394 Mich

655, 282 NW.2d 636 (1975).....................cccc-ccseseee 28

Midland Township vy. State Boundary Commission,

401 Mich 641, 259 NW.2d 326 (1977)... 1, 29

Therrian v. General Laboratories, Inc., 372 Mich.

487, 137 NW.2d SID (19GA) .............-2.ccceccscescceeessese 6

Weber v City Council of Thousand Oaks, 9 C. 3d

940, 513 P2d 601 (Cal., 1973) ........................ 22, 23, 24, 29, 30

United States Code:

BB UG. 6 UBBE (BD) ncncanncnnsnecsnnnncacessnnrseressnnnqsonanesopsonece 5,7

Michigan Compiled Laws Annotated:

MCLA 117.9 (1970 Publie Act 219) .................. 2-6, 10, 27, 32

PCED BITTE CE OG ecesccciecccrsccsnsevintccnnccniinsiinstsnnseicians 2

TABLE OF AUTHORITIES (CONT'D)

Page

I I dia a 2

III ihisaihtkccssdiccrachctrrdeadenticcnokesnanchematincessaie 3

I NIIIITIIDY secschusrsnssisidbiicsshccnisanssehccchicnadascetesbubinieeiaentniniesie 3

United States Constitution:

U.S. Constitution, Amendment XIV ........ 3, 4, 6, 8, 10, 15, 16,

20, 21, 27-28, 29

U.S. Constitution, Amendment XV 000.0... 15, 17

Michigan Constitution of 1963:

RE TET iadiactadiibicehschsseiticsitntabgatiiinidsienieecdenniiiesbitansbienben 3

SUL. Ts TE t-stictnceciiesieaiidididbdiateattahacdinmgebtancaasentanienmiammannniiin 3, 6

No. 77-1285

IN THE SUPREME COURT OF THE

UNITED STATES

October Term, 1977

—_—_—_—_—_—_—_—_—_—_—_—_—_—_—

Townsurp or Mrip.anp, et al,

Appellants,

vs.

Micuican State Bounpary Commission, et al,

Appellees,

—

On Appeal From the Supreme Court of Michigan

MOTION TO DISMISS OR AFFIRM

City of Novi, intervening Defendant-Appellee, moves the

Court to dismiss the appeal herein or, in the alternative, to

affirm the judgment of the Supreme Court of Michigan on

the following grounds:

1. The Federal question sought to be reviewed was

neither timely nor properly raised nor expressly passed on

by the Supreme Court of Michigan.

2. The appeal does not present a substantial Federal

question.

STATEMENT

This is an appeal from a Decision of the Supreme Court

of Michigan entered on October 24, 1977, and an Order

Denying Rehearing entered December 16, 1977 by the Su-

preme Court of Michigan. The Decision of the Michigan

Supreme Court is reported at 401 Mich 641 (1977) and is

set forth in Appellants’ Appendix to Jurisdictional State-

ment (hereinafter referred to as the Appendix) at 60a-

10la. The Order Denying Rehearing is set forth in the Ap-

pendix at 166a-167a.

The instant case is comprised of three (3) consolidated

actions brought by Appellants in an attempt to overturn

orders approving annexations entered by the State of Mich-

igan Boundary Commission. Appellants challenged the

sufficiency of certain procedural aspects of the Boundary

Commission’s proceedings and challenged the constitution-

ality of 1970 Public Act 219 (MCLA 117.9) as being viola-

tive of the Constitution of the State of Michigan. Appel-

lants did not challenge the constitutionality of 1970 PA

219 as being violative of the Constitution of the United

States until it filed its Application for Rehearing in the

Michigan Supreme Court, which Application was denied

without discussion of the issues raised.

The text of 1970 PA 219 is set forth in the Appendix at

168a-172a. This statute vests authority over annexation

proceedings in the Michigan State Boundary Commission,

a statutorily created state agency (MCLA 123.1001, et seq).

1970 PA 219 also sets forth the procedures to be followed

in annexation proceedings, and incorporates the eighteen

(18) statutory criteria which the Boundary Commission is

required to consider in determining whether to approve

or deny a proposed annexation (MCLA 123.1009). The ap-

proval of the Boundary Commission is required to effectu-

3

ate all annexations. Final decisions of the Boundary Com-

mission are subject to judicial review pursuant to state

statute (MCLA 123.1018; MCLA 24.306) and pursuant to

the State of Michigan Constitution (Michigan Constitution

of 1963, Art 6, §28).

1970 PA 219 further provides that if a proposed annexa-

tion is approved by the Commission and there resides one

hundred (100) persons or less in the area approved for an-

nexation, the Commission’s order shall not be subject to a

referendum (Section 4; Appendix at 169a). If a proposed

annexation is approved and more than one hundred (100)

persons reside in the area approved for annexation, the

Commission’s order approving annexation is final in thirty

(30) days unless, within that time, a proper petition for

referendum is filed. If such a petition is filed, a referendum

on the annexation is held (Section 5; Appendix at 169a).

In their appeal to this Court, Appellants challenge the

constitutionality of 1970 PA 219 as being violative of the

Fourteenth Amendment of the United States Constitution.

Appellants now contend that the granting of a right of ref-

erendum for areas having a population of more than one

hundred (100) persons and failing to provide for such a

procedure in sparsely populated areas constitutes a denial

of equal protection of the laws in violation of the Four-

teenth Amendment.

This issue was not presented to nor passed upon by the

Michigan Supreme Court. In the Michigan Supreme Court,

1970 PA 219 was only challenged as being violative of the

Equal Protection provision of the 1963 Michigan Constitu-

tion (Art. 1, §2).

The Michigan Supreme Court held that 1970 PA 219 did

not violate the Michigan Constitution, as no city, village,

township or person has any vested right or legally pro-

tected interest in the boundaries of such governmental units

and that the providing of an opportunity for referendum

4

where more than one hundred (100) persons reside in the

territory to be annexed and denying a referendum where

one hundred (100) persons or less reside in such territory

bears a substantial relation to the object of the legislation

(Appendix at 82a-86a).

Appellee, City of Novi, does not accept the Statement of

the Case contained in Appellants’ Jurisdictional Statement

for reason that such Statement is replete with error. For ex-

ample, Appellants erroneously state that the Novi annexa-

tion petition excluded a parcel of Novi Township to avoid

a possible referendum (Appendix at 19a-20a). This is in

error. However, this and numerous other errors contained

in Appellants’ Statement of the Case do not directly relate

to the instant Motion and will not be discussed at this time.

There are, however, certain other errors contained in

Appellants’ Statement of the Case which are relevant to

this Motion to Dismiss or Affirm.

At pages 15-16 of Appellants’ Juridictional Statement, it

is alleged that the Petition for Review filed in the Ingham

County, Michigan, Cirenit Court, with respect to the Novi

proceeding chailanged 1970 PA 219 as violating the Equal

Protection Clause of the Fourteenth Amendment of the

United States Constitution. To state it simply, this allega-

tion is totally false. No such challenge was made to the

subject statute based upon the United States Constitution.

At pages 22, 25 and 30, of their Jurisdictional Statement,

Appellants state that in the Michigan Supreme Court, they

argued that 1970 PA 219 violated the Equal Protection

Clause of the Fourteenth Amendment to the United States

Constitution. Again, this allegation is totally false.

The first time that any Federal constitutional question

was presented to the Michigan Supreme Court was in Ap-

pellants’ Application for Rehearing, which Application was

denied without opinion by the Michigan Supreme Court.

4)

Appellee, City of Novi, submits that the Federal ques-

tion sought to be reviewed herein was neither timely nor

properly raised nor expressly passed on by the Michigan

Supreme Court.

Appellees further submit that the instant appeal does

not present a substantial Federal question, for reason that

the point of law ought to be reviewed by Appellants has

been clearly decided heretofore by this Court, by other

courts in the federal judicial system and by numerous state

courts, all contrary to Appellants’ position.

ARGUMENT

I.

THE FEDERAL QUESTION SOUGHT TO BE REVIEWED

WAS NEITHER TIMELY NOR PROPERLY RAISED NOR

EXPRESSLY PASSED ON BY THE SUPREME COURT

OF MICHIGAN. THIS COURT IS WITHOUT JURIS-

DICTION OF THIS CASE UNDER 28 U.S.C. § 1257 (2).

Each of the consolidated cases at bar was commenced

by the filing of a Petition for Review filed in the Cirenit

Court for the County of Ingham, Michigan. With res; ct,

at least, to the Novi proceeding, Appellants did not chal-

lenge the constitutionality of 1970 PA 219 as being viola-

tive of the United States Constitution (Appellants admit

that the Decisions of the Trial Court and Michigan Court

of Appeals were based upon state constitutional grounds.

See Jurisdictional Statement at 21, 22).

As such, even if Appellants had attempted to raise such

an issue in the Michigan Supreme Court, the Court would

not have considered it, for reason that under Michigan

jurisprudence, issues not raised at the trial court level will!

6

not be considered on appeal. Grossman Building Co. v. El-

liott, 382 Mich 596, 171 NW2d 441 (1969) ; Therrian v. Gen-

eral Laboratories, Inc., 372 Mich 487, 127 NW2d 319 (1964).

However, Appellants did not raise a Federal constitu-

tional issue before the Michigan Supreme Court. There is

no allegation in the Townships’ Brief to the Michigan Su-

preme Court that 1970 PA 219 is violative of the United

States Constitution. Instead, this statute was attacked

only on the Equal Protection provision of the 1963 State

of Michigan Constitution. This is clearly evidenced at

page 17 of the Townships’ Brief of Cross-Appellants in the

Michigan Supreme Court wherein the Townships alleged as

follows:

‘* |. Where such referendum rights are tendered to

some and denied to others whose situation is not dis-

tinguishable on rational grounds there is violation of

Art. 1, § 2 of the 1963 Michigan Constitution, which

guarantees equal protection under the law.’’

Nowhere, in any of the Briefs filed by Appellants in the

Michigan Supreme Court prior to the hearing of this cause

was any provision of the United States Constitution even

cited as an authority.

On October 24, 1977, the Michigan Supreme Court issued

its Decision in this ease. There is no indication, much less

an express statement, that Appellants’ equal protection

argument was considered and decided under the United

States Constitution.

Appellants thereupon filed an Application for Rehearing

in the Michigan Supreme Court, wherein, for the first time,

it was alleged that 1970 PA 219 was violative of the Equal

Protection provision of the United States Constitution.

(In this regard it is of importance to recognize that the

only pleadings which Appellants saw fit to include in their

Appendix to this Court was the Application for Rehearing

7

filed in the Michigan Supreme Court and the Brief in Sup-

port thereof.)

On December 16, 1977, the Michigan Supreme Court de-

nied Appellants’ Application for Rehearing, stating:

‘*In this cause an application for rehearing and a mo-

tion for stay order are considered and they are here-

by DENIED.” (Appendix at 166a-167a)

It is clear that the Federal constitutional issue which Ap-

pellants are attempting to raise in their appeal to this

Court was not drawn into question in the state Court so as

to vest jurisdiction of this appeal in this Court pursuant

to 28 U.S.C. § 1257 (2).

This Court has consistently held that it is without juris-

diction where the Federal question sought to be reviewed

was raised for the first time in a petition for rehearing in

the highest court of the state and the rehearing was de-

nied without an express determination of the Federal ques-

tion. See McMillen v. Ferrum Mining Company, 197 U.S.

343 (1904); Rooker v. Fidelity Trust Company, 261 U.S.

114 (1922); Herndon v. State of Georgia, 295 U.S. 441

(1935) ; Chicago, Indianapolis and Louisville Railway Com-

pany, 196 U.S. 128 (1905); Forbes v. State Council of Vir-

ginia, 216 U.S. 396 (1910) and the authorities cited in these

cases.

In the case at bar, the Federal question sought to be re-

viewed herein was raised for the first time in the Applica-

tion for Rehearing in the Michigan Supreme Court which

denied the Application without a determination of the

Federal question. This Court is without jurisdiction of the

instant action.

Appellants may raise certain ~ rguments in an attempt to

establish jurisdiction in this Court.

Appellants may argue that because the Michigan Consti-

tution contains an equal protection provision which is sim-

8

ilar to the Equal Protection Clause of the Fourteenth

Amendment of the United States Constitution, the Decision

of the Michigan Supreme Court was also based upon the

Federal Constitution so as to vest jurisdiction in this Court.

Such an argument must fail. This Court has consistent-

ly held that the basis of jurisdiction in this Court must be

clear and unmistakable and where there are similar provi-

sions in a State and Federal Constitution, it is presumed

that reliance is placed only upon the State Constitution, un-

less reliance upon the Federal Constitution is specifically

enumerated.

In the case of Bowe v. Scott, 233 U.S. 658, 663 (1913) no

assertion of rights under the United States Constitution

was made until a Petition for Review was filed in the high-

est court of the state. This Court stated with respect to

the question of its jurisdiction :

‘*It is further urged that be this as it may there is

no jurisdiction because no assertion of rights under

the Constitution was made below until the petition for

rehearing which was too late and the tardiness of

which was not saved by the action of the Court since

it simply declined to grant the rehearing without de-

ciding the questions presented as the basis of the re-

quest for rehearing. As it is elementary that a mere

assertion in a state court of a right under the Consti-

tution of the United States in a petition for rehearing

affords no ground for invoking the jurisdiction of this

Court unless the Court below in dealing with the peti-

tion for rehearing considers and passes upon the Fed-

eral ground therein relied upon, we dismiss that sub-

ject from view and some to consider whether the rec-

ord otherwise discloses that a Federal question was so

raised below as to support our jurisdiction .. .’’

In attempting to sustain the Court’s jurisdiction, Appel-

lant, in Bowe, claimed that it had timely alleged that the

9

ordinance in question deprived him of property ‘‘without

due process of law.’’ In rejecting this contention and dis-

missing the case for want of jurisdiction, the Court, in

Bowe, stated at 233 U.S. 664-665:

‘‘The other passage in the bill is found in subdivi-

sion ‘c’ of the tenth paragraph and is as follows:

‘That the ordinance is an attempt to take from your

complainants whose property adjoins and abuts upon

the said alley their rights in and to said alley without

due process of law.’ But it is settled that such an aver-

ment making no reference to the Constitution of the

United States and asserting no express rights there-

under is solely referable to the state constitution,

which in this instance has a due process clause, and

affords no basis whatever for invoking the jurisdic-

tion of this Court. Miller v. Cornwall R.R. Co., 168

U.S. 131, 134; Harding vy. Illinois, 196 U.S. 78.’ ”’

In the case of Gibbes v. Zimmerman, 290 U.S. 326, 328

(1933), this Court stated with respect to a contention simi-

lar to that raised in Bowe v. Scott, supra.

‘* .. The Appellant, who was Plaintiff in the suit,

asserts that the Act impairs the obligation of contract,

in violation of the Constitution of the United States.

We cannot consider this contention, since in his plead-

ing, the Appellant relied solely on the provisions of

the state constitution with respect to the obligation of

contracts, and made no reference to Section 10 of

Article 1 of the Federal Constitution ; and the Supreme

Court, in disposing of the case, did not mention or dis-

cuss that section. R. S. § 709; U.S.C. Tit. 28, § 344;

Chicago € N.W. Ry. Co. v. Chicago, 164 U.S. 454, 457;

Levy v. Superior Court, 167 U.S. 175, 177; Miller v.

Cornwall R. Co., 168 U.S. 131 ,134; Bowe v. Scott, 233

U.S. 658, 665.’’

Also see Miller v. Cornwall R. Co., 168 U.S. 131, 134 (1897).

10

In the instant case, Appellants attack upon 1970 PA 219

under the Michigan Constitution does not serve as an at-

tack upon that statute under the United States Constitu-

tion so as to vest jurisdiction in this Court.

Appellants may also allege that jurisdiction is vested in

this Court because the Michigan Supreme Court cited a

Federal case, Hunter v. City of Pittsburgh, 207 U.S. 161

(1907), in rendering its Decision, and therefore the Michi-

gan Supreme Court must have been interpreting the United

States Constitution.

Again, such an allegation would be without merit. This

Court has held that a Federal question must appear with

certainty to vest jurisdiction in this Court and citation of

or reliance upon a Federal case in a state court Decision

does not mean that such Decision was based upon the

United States Constitution nor that a Federal question was

raised.

In the case of Levy v. Superior Court of San Francisco,

167 U.S. 175, 177-178 (1896), this Court stated in dismissing

the writ of error for want of jurisdiction:

‘** * * The plaintiff claimed, in the state court, that

certain provisions of the state enactment referred to

were repugnant to the constitution of California. But

he did not, in the state court, draw in question any

statute of the State upon the ground that it was repug-

nant to the Constitution of the United States, * * * He

insists, in this court, that the enforcement of the above

statutory provisions was a denial of the equal protec-

tion of the laws — a denial forbidden by the Four-

teenth Amendment of the Constitution of the United

States. But the record does not show that he made any

such claim in the state court. The reference in the

opinion of that court to the cases of Boyd v. United

States and Counselman v. Hitchcock was for the pur-

pose of ascertaining the proper construction of cer-

tain provisions of the constitution of California, not

as defining rights asserted by the plaintiff under the

11

Constitution of the United States. From the plead-

ings in the cause the state court had no reason to sup-

pose that the plaintiff specially claimed that the statute

in question deprived him of any right secured by the

Constitution of the United States. We said in Ozley

Stave Co. v. Butler County, 166 U.S. 648, that ‘‘the

jurisdiction of this court to reexamine the final judg-

ment of a state court cannot arise from inference, but

only from averments so distinct and positive as to

place it beyond question that the party bringing a case

here from such court intended to assert a Federal

right.’’ See also Louisville € Nashville Railroad Co. v.

City of Louisville, 166 U.S. 709. If the plaintiff in-

tended to claim that the statute in question was re-

pugnant to the Constitution of the United States, he

should have so declared.’’

Also see Osborne v. Clark, 204 U.S. 565 (1907).

Finally, Appellants may argue that because the Michi-

gan Supreme Court stated in its Order denying Appellants’

Application for Rehearing that the Application was ‘‘con-

sidered’’, the Federal question was ruled upon.

Such an allegation would be without merit. This Court

has held that an indication of ‘‘consideration’’ in an order

denying rehearing does not satisfy the requirement that

the Federal constitutional question was ruled upon so as

to vest jurisdiction in this Court. Typical of these cases

is Forbes vy. State Council of Virginia, 216 U.S. 396, 398-

399 (1910) wherein this Court stated in dismissing the writ

of error:

‘* An inspection of the record shows that no claim of

the rights now asserted under the Federal Constitu-

tion was made until the petition for rehearing was filed

after the judgment in the state court of final resort...

‘*In passing upon the petition for rehearing, the su-

preme court of appeals of Virginia said: ‘On mature

consideration of the petition of the plaintiffs in error

to set aside the judgment entered herein on January

12

16, 1908, and to grant a rehearing of said cause, the

prayer of said petition is denied.’

‘‘It has been many times held in this court that an

attempt to introduce a Federal question into the rec-

ord for the first time by a petition for rehearing is

too late. Loeber v. Schroeder, 149 U.S. 580, 585, 37

L.ed. 856, 859, 13 Sup. Ct. Rep. 934; Pim v. St. Louis,

165 U.S. 273, 41 L.ed. 714, 17 Sup..Ct. Rep. 322.’’

‘‘There is an exception to this rule when it appears

that the court below entertained the motion for rehear-

ing, and passed upon the Federal question. But it

must appear that such Federal question was in fact

passed upon in considering the motion for rehearing;

if not, the general rule applies, (citing cases)

‘*But, it is alleged, the memorandura which we have

quoted shows that the Virginia Court must have con-

sidered and passed upon the Federal question made in

the petition for a rehearing. Except that the order is

saia to be upon mature consideration, it is almost word

for word the order on rehearing reviewed in McCor-

quodale v. Texas, 211 U.S. 482, 53 L.ed. 269, 29 Sup.

Ct. Rep. 146, which was held to amount to no more

than a denial of the motion. See 211 U.S. 437. In

that case the rule was again laid down that it was too

late to raise . Federal question upon a petition for re-

hearing, unless the Federal question was passed upon

in ruling upon the petition.’’

Appellee, City of Novi, submits that the Federal question

sought to be reviewed was neither timely nor properly

raised nor expressly passed on by the courts of Michigan.

This Court should dismiss the appeal for want of juris-

diction.

13

II.

THE INSTANT APPEAL DOES NOT PRESENT A SUB-

STANTIAL FEDERAL QUESTION.

Appellee, City of Novi, s»bmits that this Court is with-

out jurisdiction to hear the instant appeal. However, argu-

endo, even if such jurisdiction exists in this Court, this

Court should dismiss this appeal or, in the alternative, af-

firm the Decision of the Michigan Supreme Court, for rea-

son that the instant appeal presents no substantial Federal

question.

A. The Subject Of Annexation Is Strictly A Political

Question Which Is Not Subject To Constitutional

Prohibitions.

In the case at bar, the Michigan Supreme Court did not

address Appellee’s contention that annexation proceedings

were not subject to state constitutional prohibitions, in-

cluding the Equal Protection Clause (Appendix, 86a, foot-

note 25).

This question was, however, addressed by the Michigan

Court of Appeals in the instant case which stated as fol-

lows:

‘*Several arguments are presented as to how this

classification is unconstitutional or otherwise illegal.

None are persuasive. The question of annexation is

strictly a political one — a matter for the Legislature

to regulate — and is not subject to constitutional pro-

hibitions. Detroit Edison Co. v. East China Twp.

School District No. 3, 378 F2d 225 (CA 6, 1967). Even

if it were, the classification based on population would

be valid as having a rational basis. See Tribett v. Vil-

lage of Marcellus, 294 Mich. 607 ; 293 NW 872 (1940).”’

(Appendix 57a-58a)

14

This holding of the Michigan Court of Appeals is cor-

rect with respect to the Michigan Constitution and is equal-

ly valid with respect to the United States Constitution. Be-

ginning with the case of Hunter v. City of Pittsburgh, 207

U.S. 161 (1907), this Court, lower Federal Courts and

state courts have held that annexation proceedings are

strictly political in nature and are not subject to Federal

constitutional prohibitions. It is solely within the discre-

tion of the state to legislate in this area and any grievance

or injustice that results therefrom must find relief under

state law.

This Court stated in Hunter at 207 U.S. 178-179:

‘*Municipal corporations are political subdivisions

of the state, created as convenient agencies for exer-

cising such of the governmental powers of the State

as may be entrusted to them. ... The number, nature,

and duration of the powers conferred upon these cor-

porations and the territory over which they shall be

exercised rests in the absolute discretion of the State.

... The State, therefore, at its pleasure, may modify

or withdraw all such powers, may take without com-

pensation such property, hold it itself, or vest it in

other agencies, expand or contract the territorial area,

unite the whole or a part of it with another municipal-

ity, repeal the charter and destroy the corporation. All

this may be done, conditionally or unconditionally,

with or without the consent of the citizens, or even

against their protest. In all these respects the State

is supreme, and its legislative body, conforming its ac-

tion to the state constitution, may do as it will, unre-

strained by any provision of the Constitution of the

United States. ... The power is in the State and those

who legislate for the State are alone responsible for

any unjust or oppressive exercise of it.’’

Appellants argue that Hunter is no longer viable in light

of this Court’s Opinion in the case of Gomillion v. Light-

_ —-"

15

foot, 364 U.S. 339 (1960). In Gomillion, the boundaries of

the City of Tuskegee, Alabama, were altered by state act

from a square to an ‘‘uncouth 28 sided figure’’, allegedly

for the purpose of denying petitioners, Negro citizens of

the City of Tuskegee, the right to vote. This Court held

such action by the state to be violative of the Fifteenth

Amendment of the United States Constitution, as consti-

tuting invidious discrimination resulting in the denial of

the right to vote on account of color.

Although Gomillion is not an annexation case, it has been

considered in numerous annexation cases, with the party

opposing annexation arguing that in light of Gomillion,

Hunter v. City of Pittsburgh, is no longer sound authority.

Such an argument has consistently been rejected. The

Courts have adhered to the Hunter doctrine in holding that

annexation procedures are within the sole discretion of the

state and such procedures are not subject to Federal con-

stitutional prohibitions,

In the case of Detroit Edison Company v. East China

Township School District No. 3, 378 F.2d 225 (6th Cir.),

cert. denied, 389 U.S. 932 (1967), an annexation of two

schoo] districts to a third school district in which Plaintiffs

owned property was alleged to violate the Equal Protection

Clause of the Fourteenth Amendment for reason that the

statute in issue provided for annexation upon approval of

voters in the annexed area but was not subject to the ap-

proval of voters in the annexing district.

In Detroit Edison, the Sixth Cireuit Court of Appeals, in

affirming the District Court’s dismissal of Plaintiffs’ Com-

plaint, held that the Equal Protection Clause of the Four-

teenth Amendment did not apply to annexation procedures,

as the alteration of municipal boundaries is a matter sole-

ly within the discretion of the state and is not confined by

rights secured by the Federal Constitution.

16

In so holding, the Court of Appeals quoted extensively

from Hunter v. City of Pittsburgh, supra, and then stated

at 378 F. 2d 229:

‘‘Two other Circuits, the Fifth and Tenth, have had

occasion to pass on cases where the constitutionality

of a state annexation procedure was raised. As the

District Court noted, both Courts of Appeals relied

on Hunter v. City of Pittsburgh in affirming dismis-

sals of their respective cases.’’ [citing Hammonds v.

City of Corpus Christi, 343 F. 2d 162 (5th Cir.), cert.

denied, 382 U.S. 837, (1965); International Harvester

Co. v. Kansas City, 308 F. 2d 35 (10th Cir. 1962), cert.

denied, 371 U.S. 948, (1963) /j.

‘‘With respect to the annexation issue, plaintiffs’

reliance on the relatively recent apportionment cases

is misplaced. ... However, as the District Court noted,

the reapportionment cases ‘create no constitutional

rights in affecting citizens concerning the procedure

for creating or altering’ any type of state district. The

judgment of the District Court with respect to the an-

nexation issue will hereinafter be affirmed; reference

is made to the well reasoned opinion of District Judge

Theodore Levin reported at 247 F, Supp. 296, wherein

the cases of Gomillion v. Lightfoot, 364 U.S. 339, 81 S.

Ct. 125, 5 L.Ed. 2d 110 (1960) and Carrington v. Rash,

380 U.S. 89, 85 S. Ct. 775, 13 L.Ed. 2d 675 (1969) are

shown to be inapposite.’’ (Emphasis in original)

In the Detroit Edison ease, the Sixth Cireuit referred

specifically to the District Court’s Opinion with respect to

that Court’s discussion of the case of Gomillion v. Light-

foot, supra. The District Court’s Opinion is reported at

247 F. Supp. 296 (1965) wherein the Court set forth a de-

tailed examination of annexation procedure cases with

respect to the Fourteenth Amendment and discussed ap-

portionment cases such as Gomillion. The District Court

demonstrated that the Hunter doctrine is still as viable as

ever and that annexation procedures were not within the

17

purview of the Federal Constitution. The Court stated as

follows:

‘*Any alteration of municipal boundaries is a matter

within the complete discretion of the state and not con-

fined by any rights secured by the federal constitu-

tion. Hunter v. City of Pittsburgh, 207 U.S. 161, 28 S.

Ct. 40, 52 L. Ed. 151 (1907) .. .’’

‘*Recently, the Supreme Court had an occasion to

limit this broad language to the specific provisions

considered in Hunter — the impairment of contracts

and due process. In Gomillion v. Lightfoot, 364 U.S.

339, 81 S. Ct. 125, 5 L. Ed. 2d 110 (1960), the Court

held that a complaint stated a cause of action when it

alleged alterations in the boundaries of Tuskegee, Ala-

bama, disenfranchised Negroes in violation of the Fif-

teenth Amendment. The Hunter rule is not an abso-

lute, the Court said, and must yield to the specific lim-

itation of the Fifteenth Amendment.’’

‘*Gomillion does not diminish the authority of Hun-

ter in annexation procedure cases. The Court spe-

cifically characterized the problem as the municipal

disenfranchisement of Negroes. In fact, the Court re-

jected the plaintiffs contention based on the equal pro-

tection provision. Both the Fifth and Tenth Circuits

have subsequently held that Hunter forecloses a chal-

lenge to an annexation procedure based on the equal

protection provision. Hammonds v. City of Corpus

Christi, Texas, 343 F.2d 162 (5th Cir. 1965), cert. den.,

86 8S. Ct. 85 (Oct. 11, 1965), affirming 226 F. Supp.

456 (S.D. Tex. 1964); International Harvester Com-

pany v. Kansas City, 308 F.2d 35 (10th Cir. 1962).

State courts have reached a similar conclusion. In

School Dist. of City of Lansing v. State Board of Edu-

cation, 367 Mich. 591, 116 N.W. 2d 866 (1962), the

Michigan Supreme Court rejected an argument almost

identical to that of the plaintiffs here in connection

with another provision of the Michigan School Code.”’

(Emphasis in original)

18

‘*Plaintiffs’ main argument is that Hunter v. City

of Pittsburgh ‘is no longer law insofar as it is incon-

sistent in theory with [the reapportionment cases]

9 99

- a

‘‘Much uncertainty surrounds the effect of the reap-

portionment decisions on local government. A thres-

hold question is whether the equal protection clause

applies to any municipal problems, even reapportion-

ment of representative legislative bodies.’’ (Emphasis

in original)

‘‘The Supreme Court has not specifically extended

the application of the equal protection clause beyond

the composition of state legislatures and justiciability

may well be limited to the state... .’’

‘‘The Supreme Court may have resolved the issue

in favor of limiting the equal protection clause. Grif-

fing v. Bianchi, 86 8. Ct. 52 (Oct. 11, 1965). A three-

judge district court had found the Suffolk County

Board of Supervisors completely malapportioned. Al-

though the court declined to act until the political

agencies had an opportunity to create an appropriate

governing body, it refused to dismiss the complaint

because it concluded that the equal protection tests

applied to the controversy. The Supreme Court dis-

posed of the appeal with these words: ‘The motion to

dismiss is granted and the appeal is dismissed for want

of jurisdiction.’ Perhaps the dispute is not over, but

it would seem that the Supreme Court does not, at this

time, see fit to extend the courts’ involvement in this

area,”’

‘*It is unnecessary for the court to attempt to re-

solve the fundamental issue, and it is sufficient to note

the present uncertainty; for even if the equal protec-

tion clause applies to local government reapportion-

ment problems, it does not follow that annexation pro-

cedures raise a justiciable issue.’’

‘*The right at stake in the reapportionment cases is

that, in state representative government, the weight

19

of the vote of a citizen in one electoral district be ap-

proximately equal to the weight of another citizen’s

vote in any other electoral district. A state may not

create electoral districts which have a population

disparity. But this is the only limitation the cases

place upon the legislative power of a state to de-

fine political boundaries. They create no constitution-

al rights in affected citizens concerning the procedure

for creating or altering these districts. Even where

the Court has held electoral district boundaries must

be altered, it has failed to establish a specific proced-

ure to accomplish this. Reynolds v. Sims, 377 U.S.

533, 585, 84 S. Ct. 1362, 12 L.Ed. 2d 506 (1964) .. .’’

(Emphasis in original)

‘‘Far from implying a change in the Hunter doc-

trine, the reapportionment cases seem to reaffirm it.

In Reynolds v. Sims, supra, the leading case in which

the Supreme Court heid that both houses of a bicam-

eral legislature must be apportioned on a population

basis, Chief Justice Warren quoted from Hunter with

apparent approval:

‘Political subdivisions of States — counties, cit-

ies or whatever — never were and never have been

considered as sovereign entities. Rather, they

have been traditionally regarded as subordinate

governmental instrumentalities created by the

State to assist in the carrying out of state gov-

ernmental functions, As stated by the Court in

Hunter v. City of Pittsburgh, 207 U.S. 161, 178

[28 S. Ct. 40, 52 L.Ed. 151], these governmental

“units are ‘ created as convenient agencies for ex-

ercising such of the governmental powers of the

state as may be entrusted to them,’ and the ‘num-

ber, nature, and duration of the powers conferred

upon [them] * * * and the territory over which

they shall be exercised rests in the absolute dis-

cretion of the state.’ 377 U.S. 533, 575, 84 S. Ct.

1362, 1388.’ ”’

20

‘Any lingering doubts about the vitality of Hunter in

the wake of the reapportionment cases should have

been dispelled when the Supreme Court denied certi-

orari in Hammonds v. City of Corpus Christi, Texas,

supra. That case is similar to this one. ... The low-

er courts dismissed the complaint, relying on Hunter.

While the denial of certiorari is, of course, not neces-

sarily an agreement with the opinion below, this denial

is significant in light of the Supreme Court’s actions

in voting cases.’’

‘‘The foundation on which the Hunter doctrine has

stood for half a century on the issue of annexation pro-

cedure is as sturdy as ever. This court holds, there-

fore, that the school district annexation procedure of

the Michigan School Code, which was followed by the

original East China District in forming the combined

district, is a purely legislative matter. It is not justi-

ciable under the due process or the equal protection

clauses of the Fourteenth Amendment to the federal

constitution. ’’

The holding in Detroit Edison finds clear support in other

annexation cases decided after Gomillion such as Ham-

monds vy. City of Corpus Christi, 343 F.2d 162 (5th Cir)

cert. denied, 382 U.S. 837 (1965) wherein the court found no

error in the District Court’s dismissal of the complaint on

the ground, among others, that:

‘“‘The annexation of lands to a city has been held

without exception to be purely a political matter, en-

tirely within the power of the State Legislature to

regulate.’’

Similarly, in the case of International Harvester Co. v. Kan-

sas City, 308 F. 2d 35 (10th Cir. 1962) cert. denied, 371

U.S. 948 (1963) the Court, after quoting from Hunter,

stated:

‘‘Neither the due process clause nor the concept of

equal protection is available to persons seeking to ob-

21

struct the ordinary and necessary exercise of a state’s

political functions.’’

Also see Deane Hill Country Club, Inc. v. City of Knozxville,

379 F. 2d. 321 (6th Cir.), cert. denied, 389 U.S. 975 (1967).

Appellee, City of Novi, acknowledges that the case of

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

aff’d. mem., 399 U.S. 901 (1970), holds that annexation pro-

ceedings are subject to equal protection scrutiny. However,

such a holding is in the distinct minority and with respect

to this particular issue, does not set forth the clear reason-

ing and detailed examination of cases which was done in

Detroit Edison and similar cases.

Appellee, City of Novi, submits that the instant case, in

which a challenge is made to annexation procedures of the

State of Michigan, does not concern rights which are pro-

tected by the Equal! Protection Clause of the Fourteenth

Amendment of the United States Constitution. Appellee,

City of Novi, submits that there exists no substantial Fed-

eral question and that the instant appeal should be dis-

missed, or in the alternative, that the Decision of the Mich-

igan Supreme Court should be affirmed.

B. Even If, Arguendo, Annexation Procedures Do Come

Within Equal Protection Safeguards, The Annexa-

tion Procedure Challenged In The Instant Case Does

Not Involve Fundamental Rights So As To Necessi-

tate A Showing Of A Compelling State Interest And

Need Only Meet The Test Of Having A Reasonable

Basis For Classification.

In considering challenges to statutory enactments based

upon the Equal Protection Clause, this Court has tradi-

tionally determined whether the statutory scheme involves

a ‘‘fundamental’’ right. If a fundamental right is ir-

volved, the constitutionality of the statute is judged by

22

whether the statute promotes a compelling state interest.

If a fundamental right is not involved, equal protection will

be deemed to have been denied only if the classification is

without a reasonable basis. Shapiro v. Thompson, 394

U.S. 618 (1969).

In the case at bar, Appellants contend that the issue be-

fore the Court involves a denial of fundamental voting

rights so as to require a showing of a compelling state in-

terest to justify the Michigan statutory annexation pro-

cedure. In making this argument, Appellants rely upon

eases such as Kramer v, Union School District No. 15, 395

U.S. 621 (1969); Cipriano v. City of Houma, 395 U.S. 186

(1962) ; Dunn v. Blumstein, 405 U.S. 330 (1972) ; and Evans

v. Cornman, 398 U.S. 419 (1970).

None of the cases relied upon by Appellants involve an-

nexations. None of the cases relied upon by Appellants

hold that annexation procedures involve fundamental vot-

ing rights. Further, all of the cases relied upon by Appel-

lants have been held to be inapplicable to annexation pro-

ceedings.

The instant ease does not involve fundamental voting

rights nor does it involve invidious discrimination against

an identifiable group.

The issue raised by Appellants, properly stated, is wheth-

er it is constitutionally permissible to determine whether an

election is to be held at all based upon the number of resi-

dents in an area proposed to be annexed. See Weber v. City

Council of Thousand Oaks, 9 C. 3d 940, 513 P2d 601 (1973).

Such an issue does not involve fundamental voting rights.

In the Weber case, the California annexation statute did

not provide for the right to vote where the area to be an-

nexed contained less than twelve (12) residents while a

vote was permitted where the area to be annexed contained

twelve (12) or more residents.

23

In Weber, the California Supreme Court, in upholding

the constitutionality of the statute against an equal pro-

tection challenge, held that as the legislature could consti-

tutionally have provided that ali annexations to cities

be accomplished without a vote of the residents of the ter-

ritory to be annexed, the statutory procedure did not in-

volve a deprivation of the fundamental right to vote calling

for justification on the basis of a compelling state interest.

In so holding, the California Supreme Court distinguished

many of the cases relied upon by Appellants in the case at

bar.

The Court, in Weber, stated at 9 C. 3d 959:

‘*Plaintiffs contend that the legislative distinction

between annexations of inhabited and uninhabited ter-

ritory impairs their fundamental interest in their

right to vote. They argue that the withholding of any

opportunity to vote on annexation from groups of 11

or fewer resident voters while granting the right to

more numerous groups is an infringement of the right

to vote demanding close scrutiny and requiring the

justification of a compelling state interest. They rely

on decisions of the United States Supreme Court ap-

plying the strict test and invalidating classifications

which selectively excluded particular classes of voters

from participation in elections even though their in-

interest in the outcome was as substantial as that of the

persons who were permitted to vote.’’

The Weber Court then distinguished the cases of Kram-

er v. Union School District, supra, Cipriano v City of Hou-

ma, supra, Carrington v. Rash, 380 U.S. 89 (1969) and Go-

million v. Light/oot, supra, stating as follows at 9 C. 3d 960:

‘*All of the foregoing cases are distinguishable on

the ground that in each instance the classification was

designed to exclude from an election an ‘identifiable

class’ of electors. [Gordon v. Lance (1971) 403 U.S. 1,

7 (29 L.Ed.2d 273, 277, 91 S. Ct. 1889).] When the

24

exclusion could not be justified on the ground that it

served a compelling state interest it was held to deny

equal protection of the laws. In the instant case no

issue of the exclusion of a class from participation in

an election is raised; the issue instead is whether the

inclusion or exclusion of any election as part of an

annexation proceeding can justifiably be made to de-

pend on the number of resident registered voters.’’

(Emphasis Added)

The Court, in Weber, also distinguished voting rights

cases such as Harper v. Virginia Bd. of Elections, 383 U.S.

663 (1966), in stating:

‘‘Kach of these decisions, including Curtis, [Curtis

v. Board of Supervisors, 7 Cal. 3d 942, 501 P2d 537

(1972)] involves an unconstitutional impairment of

voting rights in elections actually provided for by

state law, as distinct from the claim now advanced by

plaintiffs that it is unconstitutional for the Legisla-

ture not to have provided for an annexation election in

the circumstances of the instant case although provid-

ing for it in other cireumstances.”’

‘*As the Legislature could contitutionally have pro-

vided that all annexations to cities be accomplished

without a vote of the residents of the territory pro-

posed to be annexed, and as the 1939 act provides for

annexation without an election, the instant case in-

volves no deprivation of or limitation on the funda-

mental right to vote calling for close scrutiny or jus-

tification on the basis of a compelling state interest.’’

The Court, in Weber, also recognized that its holding

was consistent with the holdings in other cases where citi-

zens in an area to be annexed were not permitted to vote on

an annexation while the applicable statute provided for

referenda for annexations under certain other sets of cir-

cumstances. Adams v, City of Colorado Springs, 308 F.

Supp. 1397 (D.C. Col) aff’d mem, 399 U.S. 901 (1970) ; Mur-

25

phy v. Kansas City, Missouri, 347 F. Supp. 837 (W.D. Mo.,

1972) ; Garren v. City of Winston-Salem, 463 F. 2d 54 (4th

Cir., 1972).

In Adams vy. City of Colorado Springs, supra, a right to

referendum on annexation proceedings was permitted in

the area to be annexed only where there was at least 1/6

but not more than % contiguity with the annexing muni-

cipality. In holding that such a statutory scheme did not

involve the fundamental right to vote so as to require strict

scrutiny by the Court, the Court distinguished those cases

relied upon by Appellants in the case at bar, stating as fol-

lows at 308 F. Supp. 1402-3:

‘*Plaintiffs seek to equate their position with that

of the plaintiffs in the several voting rights cases.

(citing cases) ...’’

‘*On its face this argument appears to have merit in

that the right to vote poses a sensitive constitutional

issue demanding scrupulous evaluation. However, oa

a closer look, it does not appear that the plaintiffs’

rights are of the kind that have been upheld by the

Supreme Court. The factor present in the cited cases

which appears to have been crucial is that the fran-

chise was granted to one group of persons to the det-

riment of another group. In most instances one group

had votes with disproportionate weight as opposed to

a group which was partially or wholly disenfranchised,

or there has been a purposeful juggling of boundaries

for the purpose of excluding a particular group. Go-

million v. Lightfoot, supra... In the case at bar none

of the described conditions are present and so it can-

not be said that there exists the invidious discrimina-

tion which has been heretofore condemned by the Su-

preme Court. Hence, the only question which quali-

fied for consideration is whether the Assembly’s clas-

sification is palpably irrational and, hence, constitu-

tionally intolerable.’’

26

In the case of Thompson v. Whitely, 344 F. Supp. 480

(E.D.N.C., 1972), the applicable statute provided that

where the annexing municipality had less than 5,000 resi-

dents, no vote on the annexation was permitted in the area

to be annexed. Certain towns and counties were exempted

from this procedure. In these instances a vote was re-

quired in the area to be annexed if requested by at least

fifteen (15%) percent of the voters of such area. In hold-

ing that this statutory procedure did not involve funda-

mental voting rights, the Court, in Thompson, stated:

‘*Plaintiffs claim, however, that the usual presump-

tion of reasonableness is not applicable here because

the statutory scheme in question denies them a funda-

mental right — the right to vote... We agree with

plaintiffs that they suffer discrimination by this statu-

tory scheme. Although the state could have denied

the vote to all residents as to annexation, see Hunter,

supra, it has not chosen to do so. By allowing some

residents to vote, the state has created a ‘right’ which

may not be denied others in violation of the United

States Constitution ... We believe, however, that the

right to vote in the present case is not a fundamental

right evoking the stricter standard of review. Unlike

the right to vote called ‘fundamental’ by the United

States Supreme Court, Yick Wo v. Hopkins, 118 U.S.

356, 370, 6 S. Ct. 1064, 30 L.Ed. 220 (1885) ; Reynolds

v. Sims, 377 U.S. 533, 561-562, 84 8. Ct. 1362, 12 L.Ed.

2d 506 (1964); Harper, supra, 383 U.S. at 667-668, 86

S. Ct. 1079, 16 L.Ed. 2d 169; the right to vote in the

referendum here does not relate except indirectly to

participation in representative government. .. . There-

fore we apply to this case the ‘traditional standard’

of review, under which ‘equal protection is denied only

if the classification is ‘without any reasonable basis’.

Shapiro, supra, 394 U.S. at 638 n. 20, 89 S. Ct. at 1333.’’

Also see Garren v. City of Winston Salem, 463 F. 2d 54

(4th Cir., 1972); Murphy v. Kansas City, Missouri, 347 F.

Supp. 8387 (W. D. Mo., 1972).

+l

27

The case of Town of Lockport, New York v. Citizens for

Community Action at the Local Level, Inc., 430 U.S. 259

(1977) is relied upon by the instant Appellants, but is, in

fact, precisely in accord with Appellee’s position. In Lock-

port, New York provided that a new county charter would

go into effect only if approved in an election by separate

majorities of the voters who live in the cities within the

county and of those who live outside the cities. The pro-

posed charter in Lockport received a combined majority ap-

proval, but not separate majority approval.

This Court, in Lockport, upheld the validity of the stat-

ute against an equal protection challenge. In so holding,

this Court did not seek a compelling state interest to jus-

tify the statutory classification, but instead, afforded the

statute ‘‘the presumption of constitutionality to which every

duly enacted state and federal law is entitled’’ (Lockport,

at 430 U.S. 272), and found the classification not to violate

the Equal Protection Clause of the Fourteenth Amendment.

This Court, in Lockport, also expressly recognized that

a similar statutory classification in the context of annexa-

tion proceedings would not be violative of the Equal Pro-

tection Clause. (430 U.S. at 271).

The Michigan statutory annexation procedures do not in-

volve a denial of ‘‘fundamental’’ rights so as to require

the demonstration of a compelling state interest to satisfy

constitutionality. 1970 PA 219 is constitutional if it has a

reasonable basis.

C. There Is No Substantial Federal Question As To

Whether The Annexation Procedures Challenged In

The Instant Case Bear A Reasonable Relation To

The Objects Of The Legislation.

This Court has held:

‘*that the Fourteenth Amendment permits the states

a wide scope of discretion in enacting laws which ef-

28

fect some groups of citizens differently than others.

The constitutional safeguard is offended only if the

classification rests on grounds wholly irrelevant to the

achievement of the State’s objective. State legisla-

tures are presumed to have acted within their consti-

tutional power despite the fact that, in practice, their

laws result in some inequality. A statutory discrimina-

tion will not be set aside if any state of facts reason-

ably may be conceived to justify it.’’ McGowan v.

Maryland, 366 U.S. 420, 425-426 (1961).

It has also been held that there is nothing constitutionally

prohibited in classification per se; it is only when there is no

reasonable state of facts to sustain such classification,

thereby making the classification arbitrary and without a

reasonable basis, that equal protection is deemed to be de-

nied. Village of Belle Terre v. Boraas, 416 U.S. 1 (1974);

Atlanta Bowling Center, Inc. vy. Allen, 389 F.2d 713 (5th

Cir., 1968); Alkire v. Cashman, 350 F. Supp. 360, aff’d.

mem., 377 F. 2d 480 (1972).

In the case at bar, Appellants challenge the statutory

classification permitting referenda on annexations where

more than one hundred (100) persons reside in the area to

be annexed and denying the right to a referendum on a pro-

posed annexation where less than one hundred (100) per-

sons reside in the area to be annexed.

In affirming the constitutionality of this procedure under

the Equal Protection Provision of the Michigan Constitu-

tion, the Michigan Supreme Court, relying upon Michigan

Constitutional standards (Manistee Bank & Trust Co. v.

McGowan, 394 Mich 655, 232 NW. 2d 636 (1975)) found the

classification to bear a substantial relation to the object of

the legislation. The Michigan Supreme Court stated:

‘We are of the opinion that the challenged classi-

fication bears a substantial relation to the object of the

legislation: providing a means appropriate to the res-

29

olution of disagreements concerning annexation of ter-

ritory to a city.’’

‘‘Some territory annexed will be sparsely populated

or unpopulated while other territory will be more heav-

ily populated. The challenged classification, respon-

sive to that factual difference, tends to prevent venal

abuses which there is reason to believe may occur if

few persons (or a small group of persons) have abso-

lute power to prevent an annexation economically ad-

vantageous to other persons or the community at large.

See Weber v. Thousand Oaks City Council, 9 Cal 3d

950; 109 Cal Rptr 553; 513 P2d 601 (1973), sustain-

ing against an equal protection challenge a classifica-

tion providing for a referendum if the area has more

than 12 resident registered votes but dispensing with

a referendum where there are fewer voters. It was

not violative of the Equal Protection Clause to draw

a line, and the line drawn (at 100) was not unreason-

able.’’ (401 Mich at 666-667 ; Appendix 85a-86a)

Classifications such as that existing in the instant case

with respect to the State of Michigan annexation proced-

ures have been upheld in numerous cases against an equal

protection challenge.

In the case of Adams v. City of Colorado Springs, 308 F.

Supp. 1397, aff’d. mem., 299 U.S. 901, rehearing denied 400

U.S. 855 (1970), the annexation statute at issue permitted

electors in the area to be annexed to vote on the proposed

annexation when the area to be annexed had at least one-

sixth but not more than two-thirds contiguity with the an-

nexing municipality. The statute did not permit an elec-

tion if the area to be annexed had over two-thirds conti-

guity with the annexing municipality. In rejecting plain-

tiffs’ argument that this statute constituted an arbitrary

classification and that there existed no rational basis for

the Legislature’s distinction, contrary to the Equal Pro-

tection Clause of the Fourteenth Amendment of the United

States Constitution; the Court stated:

30

‘*We are unable to hold that the distinction recog-

nized by the Asserably as to when the franchise may

be exercised is unreasonable in light of the manifest

purposes for the differentiation. Thus, where the

area to be annexed has less than two-thirds contiguity

with the annexing city, the interrelationship between

the annexed area and the city may not be great enough

to warrant a politically undesirable unilateral merger.

Where, however, the territory to be annexed has over

two-thirds contiguity with the annexing city, the inter-

relationship between the two areas is or can be so close

that the city should be allowed to ar.nex despite the un-

willingness of the residents of the annexed territory.

The law thus recognizes that a municipality such as

Colorado Springs is severely handicapped by an an-

nexation law which requires the approval of the prop-

erty owners and qualified electors of an annexed area.

It is unable to deal with groups of citizens who form

small tax colonies on the borders of the core city which

is the economic base of the urban area and to which the

colonies owe their very existence and yet pay nothing

for the advantages which the city provides. These

people would seldom consent to the annexation and

their non-consent would threaten the very existence

of the core city.’’

‘‘There are governmental as well as economic impli-

cations, The metrcpolitan area is a single social and

economic unit, yet it has no consolidated government.

Governmental consolidation permits a united approach

to solving the problems and supplying the needs of the

urban area, in terms of planning and rendition of serv-

ice as well as fiscal balance.’’

In the case of Weber v. City Council of Thousand Oaks,

9 C. 3d 950, 513 P 2d 601 (1973), the annexation statute

provided for the right to vote on an annexation if twelve

(12) or more voters resided in the area to be annexed. No

election was permitted if less than twelve (12) voters re-

sided in the area to be annexed.

31

In affirming the constitutionality of the annexation pro-

cedure, the Weber Court stated:

‘‘The Legislature may reasonably have concluded in

such situations that the expense of annexation election

procedures (see §§ 35016, 35123-35133) or the govern-

mental interest in avoiding tiny pockets of unincor-

porated territory outweigh considerations ir favor of

obtaining a majority vote of the residents. (Cf. Olson

v. City of Hawthorne (1965) 235 Cal. App. 2d 51, 54-

55 [45 Cal. Rptr. 48].)”’

‘*A legislative classification may satisfy the tradi-

tional equal protection test without being the most pre-

cise possible means of accomplishing its legislative pur-

pose. Only a reasonable relationship to that purpose

is required. (Whittaker v. Superior Court (1968) 68

Cal. 2d 357, 370-371 [66 Cal. Rptr. 710, 488 P.2d 358].)

The definition of ‘uninhabited territory’ in the 1939

act (§ 35303) is sufficiently related to the legitimate

purposes to satisfy equal protection requirements. ’’

Also see Thompson v. Whitely, 344 F. Supp. 480, 485

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

(1972) ; Doyle v. Municipal Commission of the State of Min-

nesota, 340 F. Supp. 841 (D.C. Minn., 3rd Div., 1972) ; Forks

v. City of Warsaw, 273 NE2d 856 (Ind., 1971) ; City of Mon-

tecello v. Adams, 200 NW2d 622 (1972).

In the case of Town of Lockport, New York v. Citizens for

Community Action at the Local Level, Inc., 430 U.S. 259

(1977), relied upon by Appellants herein, this Court rec-

ognized that there are differences in the interests of voters

residing in a city and those not residing in a city and that

a legislative classification differentiating between voters in

these entities is not violative of equal protection standards.

The New York municipal scheme of cities, villages and

towns is comparable to that existing in Michigan. The rec-

ognition by this Court in Lockport that voters in cities and

towns have differing interests is also applicable to the rec-

32

ognition by the Michigan legislature that the interests of

cities may be different than the interests of sparsely popv-

lated township areas with respect to annexation proceed-

ings. Setting forth statutory classifications with respect

thereto is not constitutionally prohibited.

It is also well to keep in mind that in many of the annex-

ation procedures challenged in the aforecited cases, there

was no statutory provision for review of the proposed an-

nexations. This is to be contrasted with the Michigan an-

nexation procedures whereby the Michigan State Boundary

Commission, acting pursuant to statutory criteria, must ap-

prove the proposed annexation, even where no right of ref-

erendum is permitted.

Thus, Appellants’ allegations in their Jurisdictional

Statement to this Court that cities in Michigan have unfet-

tered discretion to annex townships at their will is untrue.

For example, Table I, set forth at page 43 ef Appellants’

Jurisdictional Statement demonstrates that out of one hun-

dred five (105) petitions for annexation submitted to the

Michigan State Boundary Commission between 1971 and

Feb. 15, 1978 which reached a final resolution, only fifty-

three (53) of such petitions were approved, while twenty-

eight (28) petitions were denied and twenty-four (24) pe-

titions were rejected due to legal and formal errors.

Appellants have raised no substantial Federal question

as to the constitutionality of 1970 PA 219. The Decisions

of this Court, of lower courts in the Federal system, and of

state courts are consistent in holding that statutory annex-

ation procedures similar to that existing in Michigan have

a reasonable basis and are not violative of the Equal Pro-

tection Clause of the Fourteenth Amendment of the United

States Constitution.

Appellee, City of Novi, submits that the instant Appeal

should be dismissed, or in the alternative, that the Deci-

sion of the Michigan Supreme Court be affirmed.

<n

Anat ie sme

33

CONCLUSION

WHEREFORE, for the reasons hereinbefore stated, Ap-

pellee, City of Novi, respectfully moves the Court to dis-

miss this appeal or, in the alternative, to affirm the judg-

ment entered in the cause by the Supreme Court of Michi-

gan.

Respectfully submitted,

Lampert, F'rrep & Levitt, P.C.

By: Davin M. Friep

Gary E. Levitt

Attorneys for Appellee, City of Novi

20840 Southfield Road

Suite 320

Southfield, MI 48075