Petition — Baldwin v. City of Winston-Salem

Supreme Court brief1983

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Office Supreme Court, U.S.

Pibeo

OT 8 1993

IN THE ALEXANDER 'L. Stevas, |

Supreme Court of the United-States-——

OCTOBER TERM, 1983

FLOYD C. BALDWIN, ef ai.,

Petitioners,

CITY OF WINSTON-SALEM, N.C., et ai.,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

James Hamilton

Counsel of Record

Robert L. Deitz

Susan Cobb

Ginsburg, Feldman and Bress,

Chartered

1700 Pennsylvania Avenue, N.W.

Washington, D.C. 20006

(202) 637-9000

Attorneys for Petitioners

(other counsel listed on inside

cover)

October 13, 1983

Other Counsel for Petitioners:

Rosbon D.B. Whedbee

3307 Bonbrook Circle

Winston-Salem, NC 27106

Attorney for Petitioners Baldwin and

Brewer, ef al.

F. Lee Weaver

Weaver & Bennett, PA

P.O. Box B-925

Matthews, NC 28105

Attorney for Petitioners Raintree

Homeowners Association, Inc., et al.

Hugh G. Casey, Jr.

Casey & Bishop, PA

700 Law Building

Charlotte, NC 28202

Attorney for Petitioners Derrick, ef a/.

QUESTIONS PRESENTED FOR REVIEW

1. Does the due process clause of the

Fourteenth Amendment prohibit arbitrary

actions by municipalities in annexing

territory?

26 Does the due process clause

continue to require judicial review by

state court, of constitutional chal-

lenges to state action?

PARTIES

Four cases were consolidated fur

review in the Court of Appeals. Peti-

tioners -- appellants and cross-

appellees in the Court below -- are

Floyd C. Baldwin, Ruby S. Baldwin,

William Edward Kirby, Jr., Brenda

Head Kirby, Richard B. Charles,

Frances S. Charles, Raymond E.

Wigley and Dorothy Wigley;

W.E. Derrick, Carl L. Gaile,

R.R. Lee and D.M. Randall;

Henry Brewer, Robert M. Burcham,

Philip Demarko, Joy M. McNab, ,

Gladys Norman, Sam Pope, \

James A. Sneed and Cornelius s

Spach;

Raintree Homeowners Association, Inc.,

Louis Capots, John Geis, Charles

Herbert Green, Robert D. Kinniburgh,

Jr. and Kenneth Smelter.

Respondents -- appellees and

cross-appellants in the Court below --

are

- ii -

City of Winston-Salem, N.C., Mayor

Wayne A. Corpening, Vivian H.

Burke, Marilyn S. Harpe,

Larry D. Little, Virginia K.

Newell, Robert S. Northington,

Jr., Ernestine Wilson, Larry

W. Womble and Martha S. Wood,

City of Charlotte, Eddie Knox,

Mayor, David L. Berryhill,

Charlie Dannelly, Laura Frech,

Harvy B. Gantt, Ron Leeper,

Ralph McMillan, Pamela G.

Patterson, Edwin Peacock, Jr.,

George K. Selden, Jr., Herbert

Spaugh, Jr. and Minnette C.

Trosch.

- thi -

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW ..... i

PARTIES wcccccccccccccccccccccccccce § Li

TABLE OF AUTHORITIES ...ccscccccccseee V

OPINIONS BELOW ..ccccccccccccccccccces 2

JURISDICTION wccccccccccccccccccsccceee 3

CONSTITUTIONAL AND STATUTORY

PROVISIONS .ccccccccccccccccccccccce 3

STATEMENT OF THE CASE .ecececsecccscce 4

REASONS FOR GRANTING THE WRIT ....... 13

CONCLUSION .cccccccccccsccccccsccssecs 42

APPENDICES

eeeeweeeeeeeeeeeeeeeene la

Appendix

eeeeeeeeeeeeeeeeeeeee le

Appendix B .ccccccccccccccccccce LD

Appendix C

Appendix eoeenereeeeeeeeeeeeeeeee ld

Appendix E eeeeneeeeeeeeeeeeeeeee le

Appendix F eeeeeeveeeeeeeeeeeeeeene lf

- iv -

TABLE OF AUTHORITIES

Cases: Page

Adams v. City of Colorado

Springs, 308 F. Supp. 1397

(D. Colo.) aff'd, 399 U.S.

901 (1970) eeeeeeeeeeeeeeeeeeeeeeeneeene 32

Allgeyer v. Louisiana,

165 U.S. 578 (1897) eseeeeeeveeeeeeeveees 22

In re Annexation Ordinance,

303 N.C. 220, 278 S.E.2d

224 (1981) e*eeeoeeeeeweeeeeeeseeeneeeeeeeeee 6,33

Baker v. Carr,

U.S. 6 (1962) *eeee7neeeeeneeeeneeeee 26

Baldwin v. City of Winston-

Salem, N.C., 710 F.2d 132

(1983) wecccccccccsccccceccccccccccecece passim

Barron v. The Mayor and City

Council of Baltimore, 32 U.S.

(7 Pet.) 243 (1833) eeeeeeveeeeeee ee eee 18

Berry v. Bourne, 588 F.2d 422

(4th Cir. 1978) *eeeeoeeeeeneeeeeeneeeeeeee 13

Brewer v. City of Winston-

Salem (UNFeEPOrted) w.cceeeecccvcssseee 2,677

Bibb v. City of Reno, 64

Nev. 127, 178 P.2d 366 (1947) ....2... 30,31

Brown v. New Jersey,

175 U.S. 172 (1899) eeeeseeeeeeeeeeeeees 21

Califano v. Sanders,

430 U.S. 99 (1977) e*e*eeetereeneenseeeeneeeneeee#ee 40-41

Carlisle v. City of

Charlotte, 543 F. Supp. 625

(W.D.N.C. 1982) eeeeseeveeeeeeeeeeeeeeeeee 2,7

Chicago, B. & Q.R. Co. Vv.

Chicago, 166 U.S. [Sees «see se086° ae

Chicago, M. & St. P.R. Co. v.

Minnesota, 134 U.S. 418

(1890) eeeeeeeveeeeeeeeeeeeeeeeeeeeeeee 34,35

Coppage v. Kansas,

236 Ueche l (1915) e*eereeeeesee#ee#es#+rfreeee#ee#eee#e¢ 22-23

Crowell v. Benson,

285 U.S. 22 (1932) eeeeveeeeeeeeeeeeevesr 39-40

Davidson v. New Orleans,

96 Oc 97 (1877) e*eeereeeeneeneeeneeeeeeee 20

Doyle v. Municipal Commission

of Minnesota, 340

F. Supp. 841 (D. Minn.)

aff'd, 468 F.2d 620

[a San b- BETA). sectvcecevcesrecsbausecevs an

Duncan v. Louisiana,

391 Uscbe 145 (1968) eeeeeeee#eeeeeneeeee 26

Erie R. Co. v. Tompkins,

304 Ueto 64 (1938) eeeeseeeeeeeeneeeeeeeee 33

Fiske v. Kansas,

274 U.S. 380 (1927) *eeeeeeneeneeeeeeeneee 23

Food Town Stores v. City of

Salisbury, 300 N.c. 21,

265 S.E.2d 123 (1980) weceseesecceeeee 6,33

Fox v. Ohio,

46 U.S. (5 How. ) 410 (1847) eeeeeveev eee

Gideon v. Ha pwr tape:

U.S. ) *eeoeeeeeeeeesee#eeeee#e#es

Gitlow v. New York,

268 <P 652 (1925) *eneeeeenseeeeeeeee#e#s«

Goldberg v. Kelly,

397 ix BR 254 (1970) *eeseeeeteeeeeeee#efeee#ese#«

Gomillion v. Lightfoot,

364 = 2 339 (1960) e*enereeeeeenee#eeeee#ee#ee#e%#es¢

Hayward v. Clay,

F. (4th

Cir. 1978) *eeseeseeeweenen#eeeneeenet#e#enee#ee#se*#e#es

Holt Civic Club v. City of Tuscaloosa,

439 Uebe 60 (1978) eeeeveoeveeeveeeeeeeeee

Hunter v. cree of Pittsburgh,

Hurtado v. California,

U.S. eeeeoeeeeeeeeeeeeeee

Ingraham v. Wright,

430 U.S. 651 (1977) *eeeeeeeeeeneeeeeee

Johnson v. Robison,

415 U.S. 361 (1974) e**eeseeoeeeseeeeseee8se8eteeeeees

Ks gpret v. North Carolina,

U.S. *eeeseeeeeeneeeeeeeee

Kramer v. Union Free School

District, 395 U.S. 621 (1969) eeeeeveee

- vii -

23,25

11,27

13-14,31

passim

39-40

26,31

Lambert v. People

of California, 355

U.S. eeeeeeeeeeeeeeeeeeeeeeeeeeeeee 32

Lochner v. New York,

U.S. ) e*enerieneeeneteene#ee#eee#ee#e#e#e«¢ 22

Malloy v. ets

U. o 964) eee eeeee*e@qeeeeeeeeeeee 25

2k v. Ohio,

U. -_ 43 (1961) *enseeeeeeenseeeeeeeee 25

Missouri v. Chicago, B. &

g-R. Co., U.S. (1915) .woceeee 36

Northern Pipeline Construction Co. v.

Marathon Pipe Line Co., 458 U.S.

50 (1982) eeeeeoeoeeeeeeeeeeeeeeeeeeeeee 39

O'Brien v. Skinner,

414 U.S. 524 (1974) eoeeeeeeeeeeeeeeeee 33

Ohio Bell Telephone Co. v.

Public Utilities Commission,

U.S. Dt. Vecsecacoccesoe. 20

Ohio Valley Water Co. v. Ben

Avon Borough, 253 U.S. 287

(1920) eeeeveeveeeeeeeeeeeeeeeeeeeeeeeee 36,37,38,41

In re Oliver, 333 U.S. 257 (1948) .weee56-5 25

O'Neil v. Vermont,

U.S. ( 892) *eeeseeeeeeeneeeneeeee 21

Perry v. Sindermann,

40 U.S. 59 (1972) eeeeseeeeeeeeeeneeeee 27

Pointer v. Texas,

U.S. 1965) eeeeeoeeeeeeeeeeeee 25-26

- viii -

Pressler v. Illinois,

) eeeeoeeeeeeeeeeeeeee

Pyle v. City of Shreveport,

215 La. 257, 40 SO. 2d 235

(1949) eeeeeoeeeeeeeeeeeeeeeeeeeeeeeeee

Raintree Homeowners

Association v. City of

Charlotte, 543 F. Supp. 625

1982) *eeeeeeeeeeeeeeeeeeee

(W.D.N.C.

Reynolds v. Sims,

377 U.S.

533 (1964) eoeeeoeeeeeeeeeeeeee

Slaughter-House Cases,

83 AP (16 Wall.) 36 (1873) eee eeeeee

Slochower v. Board of Higher

Education of New York,

U.S.

(

Smith v. Maryland,

59 U.S. (1

How. ) 71 (1855) eeeeoeeeeee

Sniadach v. Family Finance Corp.,

337 (1969) eeeeseeeneeeeneeeneeeeee

395 U.S.

St. Joseph Stock Yards v. United

BSE. 290 Gebe SO (A950) cocccsocece

Twining v. New Jersey,

78 (1908) *see@eeeeeeeeeeeeeeeee

211 U.S.

United States v. Cruikshank,

92 U.S. 542 (1875) eeeeeeeeeeeeeeneeeneee

Wadley S.R.

Co.

Georgia,

) eeeeoeoeaeaeeeeeeeaeeeee

Ve.

- ix -

20-21

2,7

26,27-28

passim

28-29

37,38

21,24

35-36

sale

Washington v. Texas,

U.S. ) eeeeoeieeeeeeeeeeeeeee 26

Weinberger v. Salfi,

422 U.S. 749 (1975) e*e*eeeeeneeeneeeneeeee#ee 41

Withers v. Buckley,

GL Gewese (ae Bete) B64 (1857) cccccseccoe 3

Wolff v. McDonnell,

U.S. ( 74) e*eeenoeeeeeeeeeeeneeeee 29

Statutes and Regulations:

U.S. Const. amend. XIV, § 1 wsesseeeeeees passim

5 U.S.C. § 706 (2)(A) coccvccccccceseeee 30,38

28 U.S.C.w § 1254(1) ceccccccccccccccccee 1,3

N.C. Gen. Stat. § l160A-47 wccccccccccece §

N.C. Gen. Stat. § 160A-48 wouceeeseeneese 4,5

N.C. Gen. Stat. § 160A-50 wcccccccccccee 375,33

Other Authorities:

Corwin, The Doctrine of Due Process

of Law Before the Civil War,

arv. ° ev. eeeeeeeeee 21-22

Fairman, C., Reconstruction and

Reunion, 1864-88 (Part One) (6

History of the Supreme Court of

the United States at 1260-1300 eeeeeese 19

Gunther, G., Constitutional Law

(1975 ed.) at 756-505 eeeeeeeeeeeeeeees 19

Jaffe, Judicial Review: Constitutional

& Jurisdictional Fact, 70 Harv.

ine Rev. 953 (195 ) e*eeeneeneeeensteneeneeeeee 39

Warren, The New “Liberty” Under

The Fourteenth Amendment, 39

Harv. Le Rev. 431 (1926) e*eenereeeeeeeeee 22

- xi-

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1983

FLOYD C. BALDWIN, et al.,

Petitioners,

Vv.

CITY OF WINSTON-SALEM, N.C., et al.,

Respondents.

Petition for Writ of Certiorari

to the United States Court of Appeals

for the Fourth Circuit

Petitioners Floyd C. Baldwin, et

al., respectfully petition this Court,

pursuant to 28 U.S.C. § 1254(1) and Rule

19 of tne Rules of this Court, for a

writ of certiorari to the United States

Court of Appeals for the Fourth Circuit,

in the case of Baldwin v. City of

Winston-Salem, N.C., 710 F.2d 132

(1983).

OPINIONS BELOW

The opinion of the Court of Appeals

is reported at 710 F.2d 132 and is set

forth as Appendix A. The opinion of the

District Court in Baldwin v. City of

Winston Salem is reported at 544 F.

Supp. 123 (W.D.N.C. 1982) and is

attached as Appendix B. The opinion of

the District Court in Raintree

Homeowners Association v. City of

Charlotte and Carlisle v. City of

Charlotte is reported at 543 F. Supp.

625 (W.D.N.C. 1982) and is attached as

Appendix C. The opinion of the District

Court in Brewer v. City of Winston-

Salem is unreported and is attached as

Appendix D.

fae

JURISDICTION

The judgment of the Court of

Appeals was entered June 15, 1983. On

petitioners’ timely motion filed August

23, 1983, this Court extended the time

within which to file a petition for writ

of certiorari to October 13, 1983. This

Court has jurisdiction to review the

decision of the Court of Appeals under

28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY PROVISIONS

The following provisions are perti-

nent to this case: section 1 of the

Fourteenth Amendment to the U.S. Consti-

tution, set forth in Appendix E; N.C.

Gen. Stat. § 160A-50, set forth in

Appendix F.

STATEMENT OF THE CASE

This case, a consolidation of four

cases challenging annexations by

Winston-Salem and Charlotte, North

Carolina, concerns the limits that the

due process clause of the Fourteenth

Amendment places on municipal

annexations.

Under North Carolina law,

municipalities are auchorized to extend

their municipal corporate limits by

annexation of contiguous areas. N.C.

Gen. Stat. § 160A-48. State law defines

the permissible nature of such

annexations, and establishes administra-

tive procedures to be employed by the

municipalities. Judicial review of

annexations is "limited," as the Fourth

Circuit conceded. App. A, 9a.

Appellate review is statutorily re-

stricted to a determination of whether

statutory procedures relating to notice

and hearing have been met; whether the

annexing city has properly prepared a

report that includes maps of the terri-

tory to be annexed and plans for the

provision of municipal services; and

whether the territory to be annexed is

urban in nature under the very flexible

criteria established by the statute.

N.C. Gen. Stat. § 160A-50, App. F, lf;

see N.C. Gen. Stat. §§ 160A-47, 160A-48.

The reviewing court may not separately

and independently determine whether mu-

nicipal conduct in annexing territory is

arbitrary, capricious, or unreasonable,

or in any other respect unconsti-

tutional.

The North Carolina Supreme Court

has held that judicial review "is

limited by statute." In re Annexation

Ordinance, 303 N.C. 220, 229, 278 S.E.2d

224, 230 (1981). The reviewing court

may “determine only whether the muni-

cipal governing board substantially com-

plied with the requirements of the

applicable annexation statutes." 303

N.C. at 229, 278 S.E.2d at 230 (emphasis

added). Thus, no “separate test of

‘reasonableness' [is found] within the

limited scope of judicial review

permitted in annexation cases." 303

N.C. at 230, 278 S.E.2d at 231. Accord,

Food Town Stores v. City of Salisbury,

300 N.C. 21, 265 S.E.2d 123 (1980).

This case began with four separate

lawsuits: Baldwin, et al., v. City of

Winston-Salem, et al., and Brewer, et

al. v. City of Winston-Salem et al.,

which I pee different

annexations in Winston-Salem, N.C.;

Raintree Homeowner's Association, et al.

v. City of Charlotte, et al., and

Carlisle, et al., v. City of Charlotte,

et al., which challenged two different

annexations in Charlotte, N.C.1/ The

facts relevant to this petition may be

summarized briefly.

Each case involved a two-prong

challenge under the Fourteenth

Amendment. First, petitioners alleged

in their complaints that the annexations

at issue were arbitrary, capricious, and

unreasonable in violation of federal due

process. Second, petitioners alleged

1/ The annexations challenged in the

Brewer and Raintree cases are not

yet consummated.

that the North Carolina annexation

Statute on its face and as applied

violates due process by prohibiting

judicial review of significant constitu-

tional questions, including whether an

annexation is arbitrary, capricious, and

unreasonable.

Petitioners pleaded with particu-

larity the arbitrary nature of the four

annexations. Specifically, they claimed

that the boundaries of the areas to be

annexed were gerrymandered to include

well-to-do neighborhoods and to exclude

poor areas, in one instance creating a

virtual hole in a city; or to include

farmland or a business entity that would

provide tax revenue without requiring

municipal services; or to exclude areas

that needed municipal services; or to

include neighborhoods that already had

services superior to those offered by

the cities simply to gain additional tax

revenues. Petitioners also claimed that

the proposed annexation boundaries arbi-

trarily divided established communities;

or that the annexations excluded neigh-

borhoods close to the annexing cities

while arbitrarily including more distant

neighborhoods; or, in one instance, that

an annexation took in property that, if

it belonged in any municipality,

belonged in another one. In sum, peti-

tioners claimed that the annexations in

major part made no geographic or his-

toric sense, would yield inferior muni-

cipal services to the annexed

territories, and were designed simply to

obtain increased municipal revenues at

the least possible cost. These allega-

tions demonstrated the arbitrary, and

hence unconstitutional, nature of the

annexations.

In each case, the district court

dismissed the complaint. Relying on

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

161 (1907), the courts held that "chal-

lenges to annexations generally are not

actionable under the Fourteenth

Amendment.” App. B, 4b; see App. C,

20c-2lc; App. D, 3d. In no case did the

district court decide whether the

annexations actually were arbitrary and

unreasonable.

On appeal, the United States Court

of Appeals for the Fourth Circuit

affirmed in a per curiam decision. The

Court began by observing that the “crea-

tion and redrawing of the political

subdivisions of a state .. . are pecul-

iarly matters involving state political

- 10 -

concerns.” App. A, lla (footnote

omitted). Indeed, the Court of Appeals

continued, the “Supreme Court early in

this century flatly stated that

‘annexation by a city or town is purely

a state political matter, entirely

within the power of the state leg-

islature to regulate.'" App. A, lla,

quoting Hunter v. City of Pittsburgh,

207 U.S. 161, 178-79 (1907). Although

the Fourth Circuit recognized that

annexations that discriminate against

black citizens, Gomillion v. Lightfoot,

364 U.S. 339 (1964), diminish the right

to vote, Hayward v. Clay, 573 F.2d 187,

190 (4th Cir. 1978), or in some other

way burden "fundamental" interests may

implicate the Fourteenth or Fifteenth

Amendments, it ruled that annexations

generally are outside the purview of

» i} «

federal constitutional interest. App.

A, l2a-l15a. Specifically, the Court

ruled that “there is no right under the

Fourteenth Amendment to challenge

annexation decisions alleged merely to

be arbitrary and capricious." App. A,

l6a, n.3.

Because the Fourth Circuit held

that annexations do not implicate due

process concerns, it also concluded that

"there is no federal right to have state

courts hear challenges to allegedly

arbitrary and capricious annexation

decisions; the availability of such

review is solely a matter of state iaw.”

App. A l6a, n.3.

- 12 <-

REASONS FOR GRANTING THE WRIT

Introduction

The lower courts that considered

petitioners’ Fourteenth Amendment claims

felt bound to follow the broad dictum

contained in Hunter v. City of

Pittsburgh, 207 U.S. 161 (1907): that

the municipal annexation process raises

no Fourteenth Amendment concerns. Al-

though the decision in Hunter was

narrow, its broader implications have

been followed from time to time by

various federal courts. See, e€.g.,

Berry v. Bourne, 588 F.2d 422 (4th Cir.

1978). Recently in Holt Civic Club vy.

City of Tuscaloosa, 439 U.S. 60, 71

(1978), this Court, while recognizing

that the broad assertions in Hunter have

been "qualified" by later cases, stated

that Hunter "continues to have

@ }3 «

substantial constitutional significance

in emphasizing the extraordinarily wide

latitude that States have in creating

various types of political subdivisions

and conferring *uthority upon them."

Thus, because of Hunter, petitioners’

well-pleaded claims of arbitrariness

have never been heard on their merits.

This Court should firmly hold that

the due process clause of the Fourteenth

Amendment applies to the annexation

process and prohibits arbitrary state

conduct. When Hunter was decided in

1907, the Fourteenth Amendment was fewer

than forty years old. The Slaughter-

House Cases, 83 U.S. (16 Wall.) 36

(1873), which roundly rejected the

applicability of the Bill of Rights to

the states through the Fourteenth

Amendment, dominated constitutional

- 14 <-

jurisprudence. Indeed, only one

provision of the Bill of Rights had been

"incorporated" under the Fourteenth

Amendment when Hunter disclaimed any

federal interest in municipal

annexations. The modern expansive

reading of the due process clause had

not yet taken hold.

Part A begins by briefly setting

forth the development of Fourteenth

Amendment law. That historical review

will demonstrate that the legal princi-

ples informing Hunter have long since

been overruled and that, as a conse-

quence, Hunter itself has lost much of

its precedential force. Part A will

conclude by showing that petitioners'

allegations of arbitrary state conduct

constitute a federal cause of action

under well-established Fourteenth

Amendment case law.

- 15 -

Part B shows that North Carolina's

failure to provide judicial review for

constitutional challenges to municipal

conduct violates almost half-a-century

of settled Fourteenth Amendment law.

A. Arbitrary State Conduct Violates

The Fourteenth Amendment

The Court of Appeals held that

petitioners' allegations of arbitrary

state conduct failed to state a cause of

action because annexations are "“pecul-

iarly matters involving state political

concerns,” App. A, lla, and generally

immune from Fourteenth Amendment scru-

tiny. The express basis for the Court's

decision was Hunter v. City of

though Hunter actually adjudicated a

very narrow question -- whether citizens

of one municipality may by their vote

alone defeat annexation by another

° 16 -

municipality -- its broadly phrased

ratio decidendi tended to suggest that

all decisions relating to municipal

boundaries are beyond the reach of the

Fourteenth Amendment. Thus, the Hunter

Court held that a state may, among other

things, alter the boundaries of a munic-

ipality “conditionally or uncon-

ditionally, with or without the consent

of the citizens, or even against their

protest." 207 U.S. at 179.

Hunter's narrow reading of the

Fourteenth Amendment followed the estab-

lished precedents of its day, for when

Hunter was decided in 1907 the due

process clause placed few restrictions

on state conduct of any sort. Indeed,

the gradual process of "incorporating"

the Bill of Rights was not to begin for

another twenty years. Prior to passage

= &

of the Fourteenth Amendment, it was

settled law that the Bill of Rights did

not restrain state action. In 1833,

Chief Justice Marshall held that

"[t]) hese Amendments contain no expres-

sion indicating an intention to apply

them to the State governments," Barron

v. The Mayor and City Council of

Baltimore, 32 U.S. (7 Pet.) 243 (1833),

a view that the Court reaffirmed on

other occasions. See, e.g., Withers v.

Buckley, 61 U.S. (20 How.) 84 (1857);

Smith v. Maryland, 59 U.S. (18 How.) 71

(1855); Fox v. Ohio, 46 U.S. (5 How.)

410, 434 (1847).

Ratification of the Fourteenth

Amendment did not immediately upset this

settled doctrine. In the Supreme

Court's first interpretation of the

Civil War Amendments in the

- 18 -

Slaughter-House Cases, 83 U.S. (16

Wall.) 36 (1873), Justice Miller reject-

ed the argument that the Fourteenth

Amendment was intended to "radically

change[] the whole theory of the rela-

tions of the State and Federal govern-

ments to each other and of both these

governments to the people...." 83 U.S.

(16 Wall.) at 78. Noting that the "one

pervading purpose” underlying the Civil

War Amendments was the "freedom of the

Slave race," 83 U.S. (16 Wall.) at 7l,

the Court rejected the idea that the

Fourteenth Amendment had a content

beyond the problems that gave rise to

it. See generally C. Fairman,

Reconstruction and Reunion, 1864-88

(Part One) (6 History of the Supreme

Court of the "Inited States) at

1260-1300; G. Gunther, Constitutional

Law (1975 ed.) at 486-505.

= 19 -

Over the next twenty years, the

Supreme Court consistently rebuffed

attempts to read the Fourteenth

Amendment more expansively. In a vari-

ety of contexts,2/ the Court held that

neither the privileges and immunities

clause nor the due process clause was a

limitation against state encroachment on

personal freedoms. See, e.g., Pressler

v. Illinois, 116 U.S. 252 (1886) (right

2/ __+=OXFfive years after the Slaughter-

House Cases were decided, Justice

Miller expressed his surprise that

counsel continued to advocate

positions seemingly foreclosed by

that case. "(T]he docket of this

court is crowded with cases in

which we are asked to hold that

State courts and State legislatures

have deprived their own citizens of

life, liberty, or property without

due process of law. There is here

abundant evidence that there exists

some strange misconception of the

scope of this provision as found in

the fourteenth amendment."

Davidson v. New Orleans, 96 U.S.

97, 104 (1877).

= 20 -

to keep and bear arms neither a

privilege and immunity nor a liberty);

United States v. Cruikshank, 92 U.S. 542

(1875) (right to peaceable assembly not

a privilege and immunity); O'Neil v.

Vermont, 144 U.S. 323 (1892) (right to

be free from cruel and unusual pun-

ishment not a privilege and immunity);

Brown v. New Jersey, 175 U.S. 172 (1899)

(right to jury trial not a part of due

process); Twining v. New Jersey, 21l

U.S. 78 (1908) (right against self-

incrimination not within due process

Clause). But see Chicago, B. & Q.R. Co.

v. Chicago, 166 U.S. 226 (1897) (recog-

nizing Fourteenth Amendment right to

compensation for property taken by

state). See generally Corwin, The

Doctrine of Due Process of Law Before

the Civil War, 24 Harv. L. Rev. 366

= 2] -

(1911); Warren, The New “Liberty” Under

The Fourteenth Amendment, 39 Harv. L.

Rev. 431 (1926).

The initial shift in due process

analysis came with this Court's decision

in Allgeyer v. Louisiana, 165 U.S. 578

(1897). In the first of the so-called

substantive due process decisions, the

Court held that a Louisiana statute con-

cerning property insurance violated

liberty of contract under the Fourteenth

Amendment. The Court invoked substan-

tive due process analysis over the next

35 years to invalidate a host of state

statutes. See, e.g., Lochner v. New

York, 198 U.S. 45 (1905) (state labor

law limiting the length of the work week

held a violation of the Fourteenth

Amendment); Coppage v. Kansas, 236 U.S.

1 (1915) (law protecting labor

- 22 -

we Sa

a iad

organizing efforts held

unconstitutional).

Despite a willingness during the

Lochner era to protect economic inter-

ests as a “liberty” under the Fourteenth

Amendment, the Supreme Court continued

to reject claims that the fundamental

personal rights guaranteed against fed-

eral encroachment by the Bill of Rights

were also guaranteed against state

encroachment by the Fourteenth

Amendment. Not until 1925, when the

Court first held that free speech was a

liberty under the Fourteenth Amendment,

did the gradual process of "incorpora-

tion" and expansion of Fourteenth

Amendment protections begin. Gitlow v.

New York, 268 U.S. 652 (1925); accord,

Fiske v. Kansas, 274 U.S. 380 (1927).

- 23-

The historical inevitability of the

Hunter decision is apparent from this

brief review of the development of due

process analysis. In 1907, when Hunter

was decided, the Slaughter-House Cases

continued to bar challenges to state

laws abridging personal freedoms3/ -- at

least those outside the economic realm.

The process of incorporating into the

Fourteenth Amendment the specific

guarantees of the Bill of Rights was

still eighteen years away. It is

equally apparent, however, that Hunter

-- or at least its broader dictum --

should have little continuing

precedential force.

3/ Justice Moody, author of Hunter,

also wrote the opinion for the

Court in Twining v. New Jer , 211

U.S. 78 (2 » whic at the

privilege against self-incrimi-

nation is not guaranteed by the

Fourteenth Amendment.

- 24+

First, the intellectual antecedents

of Hunter -- the Slaughter-House Cases

and their progeny -- are clearly no

longer law. Since 1925, the Supreme

Court has held binding upon the states

through the Fourteenth Amendment vir-

tually all the provisions of the Bill of

Rights. See Gitlow v. New York, 268

U.S. 652 (1925) (free speech, press,

religion); Mapp v. Ohio, 367 U.S. 643

(1961) (freedom from unlawful searches);

Malloy v. Hogan, 378 U.S. 1 (1964)

(freedom from compelled

self-incrimination); Gideon v.

Wainwright, 372 U.S. 335 (1963) (right

to counsel); Klopfer v. North Carolina,

386 U.S. 213 (1967) ‘right to speedy

trial); In re Oliver, 333 U.S. 257

(1948) (right to public trial); Pointer

v. Texas, 380 U.S. 400 (1965) (right to

= 2% -

confront opposing witnesses); Washington

v. Texas, 388 U.S. 14 (1967) (right to

compulsory process). See generally

Duncan v. Louisiana, 391 U.S. 145

(1968).

Even outside the specific protec-

tions afforded by the Bill of Rights,

the due process clause now provides sub-

stantial constraints against state

conduct that are inconsistent with the

dictum in or the reasoning underlying

Hunter. For example, the Fourteenth

Amendment now requires the equal

apportionment of votes among the citi-

zens of a state, Baker v. Carr, 369 U.S.

186 (1962); Reynolds v. Sims, 377 U.S.

533 (1964), and prohibits, absent a com-

pelling state interest, burdens on the

right to vote. Kramer v. Union Free

School District, 395 U.S. 621 (1969).

—

It limits summary prejudgment remedies

in civil litigation. Sniadach v. Family

Finance Corp., 395 U.S. 337 (1969). The

Fourteenth Amendment requires a hearing

for the denial of welfare benefits,

Goldberg v. Kelly, 397 U.S. 254 (1970),

and, in some situations, for the failure

to renew a contract of employment with

the state. Perry v. Sindermann, 408

U.S. 593 (1972).

Second, the key principle of Hunter

-- that the state "at its pleasure” may

"expand or contract the territorial

area" of a municipality, 207 U.S. at 178

-- is simply no longer true. For exam-

ple, gerrymandering the boundaries of a

city to disenfranchise black voters

violates the Fifteenth Amendment.

Gomillion v. Lightfoot, 364 U.S. 339

(1960); see Reynolds v. Sims, 377 U.S.

- 37 <

at 566 (discrimination in voting

violates Fourteenth Amendment). But

more generally, the notion that a munic-

ipality may take action against persons

Or property "at its pleasure" is

abhorrent to the idea of due process.

No principle is more basic to con-

stitutional government than the prohibi-

tion against arbitrary conduct by a

state. At least as early as Hurtado v.

California, 110 U.S. 516 (1884), this

Court identified the fundamental

inconsistency between arbitrariness and

due process of law. "Arbitrary power,

enforcing its edicts to the injury of

the persons and property of its sub-

jects, is not law, whether manifested as

the decree of a personal monarch or of

an impersonal multitude." 110 U.S. at

536. In Slochower v. Board of Higher

Education of New York, the Court

reaffirmed the importance of the "'pro-

tection of the individual against arbi-

trary action' which Mr. Justice Cardozo

characterized as the very essence of due

process." 350 U.S. 551, 559 (1956)

(quoting Ohio Bell Telephone Co. v.

Public Utilities Commission, 30l U.S.

292, 302 (1937)). Accord, Ingraham v.

Wright, 430 U.S. 651, 672-73 (1977);

Wolff v. McDonnell, 418 U.S. 539, 558

(1974). Certainly an annexation decided

by lot or bribery, although at the

state's “pleasure,” would not comport

with the due process clause.

Petitioners do not seek a ruling

from this Court federalizing state

annexation procedures. In some states,

unlike North Carolina, see part B,

infra, courts will entertain challenges

- 29 -

on constitutional grounds to the

reasonableness of annexations. See,

e.g., State ex rel. Bibb v. City of

Reno, 64 Nev. 127, 178 P.2d 366 (1947);

Pyle v. City of Shreveport, 215 La. 257,

40 So. 2d 235 (1949); cf. 5 U.S.C.

§ 706(2)(A) (authorizing federal courts

to strike down “arbitrary [and]

capricious” agency action). A decision

by this Court that due process prohibits

arbitrary annexations will likely result

in review by North Carolina courts of

this constitutional issue. See Part B,

infra.

Petitioners also do not seek a

ruling that the conduct alleged in this

case is unconstitutional. Whether the

conduct alleged here is in fact arbi-

trary should later be decided by the

district courts.4/ Petitioners seek

4/ Conduct similiar to that challenged

in this case has been held arbi-

[Footnote continued]

- 30 -

[oe

only a narrow ruling that arbitrary and

capricious conduct violates due process;

that, contrary to Hunter, due process

prohibits arbitrary action taken at the

state's "pleasure."

The Court has already recognized

that some of the “broad statements as to

state control over municipal corpora-

tions contained in Hunter have

undoubtedly been qualified by the

holdings of later cases. ..." Holt

Civic Club v. City of Tuscaloosa, 439

U.S. at 71 (citing Kramer v. Union Free

School District, 395 U.S. 621 (1969)).

The broader dictum of Hunter has thus

become, in the words of Mr. Justice

[Continued from previous page]

trary and unconstitutional by other

courts. See, e.g., State ex rel.

Bibb v. City of Reno, 64 Nev. 127,

178 P.2d 366 (1947).

- 3] «-

Frankfurter, a “derelict on the waters

of the law." Lambert v. California, 355

U.S. 225, 232 (dissenting opinion).

This Court should now hold that due

process principles regulate the process

of municipal annexations and prevent

arbitrary and capricious conduct.5/

B. The Due Process Clause Requires

State Judicial Review of

Constitutional Challenges to

State Action

Under North Carolina law, judicial

review of annexations is severely

5/ Federal courts in circuits other

than the Fourth have ruled that the

Fourteenth Amendment prohibits

arbitrary and capricious annexa-

tions. See, e.g., Doyle v.

Municipal Commission of Minnesota,

340 F. Supp. 841, 844 (D. Minn.),

aff'd, 468 F.2d 620 (8th Cir.

1972); Adams v. City of Colorado

Springs, 308 F. Supp. 1397, 1405

(D. Colo.), aff'd 399 U.S. 901

(1970). There is thus a division

in the circuits that ought to be

resolved.

» 32 -

limited. See N.C. Gen. Stat. § 160A-50;

App. F, 1f£. In an interpretation of

state law that is biiding on the federal

courts, O'Brien v. Skinner, 414 U.S.

524, 531 (1974); Erie R. Co. v.

Tompkins, 304 U.S. 64, 78 (1938), the

North Carolina Supreme Court has held

that no “separate test of ‘'rea-

sonableness' [is found] within the

limited scope of judicial review

permitted in annexation cases." In re

Annexation Ordinance, 303 N.C. 220, 230,

278 S.E.2d 224, 231 (1981) (evidence

showing arbitrary conduct not consid-

ered). Accord, Food Town Stores v. City

of Salisbury, 300 N.C. 21, 265 S.E.2d

123 (1980).

Because the Fourth Circuit in this

case held that arbitrary and capricious

annexations do not violate federal due

» 33 «

process, it also held that there is no

federal constitutional right to have

state courts hear challenges to arpbi-

trary and capricious annexation deci-

sions. App. A, 16a, n.3. This Court,

however, should hold that the judicial

review provision of the North Carolina

annexation statute is unconstitutional

both on its face and as applied in this

case.

Part A outlined the changing

imperatives of due process since ratifi-

cation of the Fourteenth Amendment in

1868. One principle, however, has

remained unchanged for almost a century:

that due process requires judicial

review of constitutional challenges to

state conduct. In Chicago, M. & St. P.

R. Co. v. Minnesota, 134 U.S. 418

(1890), a railroad challenged rates set

- 34 -

by a state commission, contending that

they were unreasonably low and unequal.

The state supreme court refused review

on the ground that under state law the

rates set by the commission were

intended to be "final and conclusive."

134 U.S. at 456. On appeal, the Supreme

Court reversed, holding that due process

of law requires a judicial hearing on

the railroad's constitutional challenge.

"The question of the reasonableness of a

rate of charge for transportation by a

railroad company, involving as it does

the element of reasonableness both as

regards the company and as regards the

public, is eminently a question for

judicial investigation, requiring due

process of law for its determination."

134 U.S. at 458 (emphasis added).

Accord, Wadley S.R. Co. v. Georgia, 235

= 35 -

U.S. 651, 660-61 (1915) (party affected

by regulatory orders is "entitled, by

the due process clause, to a judicial

review .. . aS to whether he has been

thereby deprived of a right protected by

the Constitution"); Missouri v. Chicago,

B. & Q-R. Co., 241 U.S. 533, 537-38

(1915) (right to judicial review is

"well-settled" principle).

This due process doctrine was

reaffirmed in the leading case of Ohio

Valley Water Co. v. Ben Avon Borough,

253 U.S. 287 (1920). There a state

utility commission, finding that a water

company's rates were unreasonably high,

reduced them. The Pennsylvania Supreme

Court affirmed because the state statute

made the commission's determinations

conclusive. On appeal, the Supreme

Court reversed on the ground that denial

- 36 -

of the opportunity for review of

constitutional questions is itself a

denial of due process of law. "[I)f the

owner claims confiscation of his prop-

erty will result, the State must provide

a fair opportunity for submitting that

issue to a judicial tribunal for deter-

mination upon its own independent judg-

ment as to both law and facts; otherwise

the order is void because in conflict

with the due process clause, Fourteenth

Amendment." 253 U.S. at 289. Reversal

was required because "[t])hus far [the

water company] has not succeeded in

obtaining the review . . . which the

Fourteenth Amendment requires the State

to provide.” Id.

In St. Joseph Stock Yards Co. v.

United States, 298 U.S. 38, 49-54

(1936), which involved a Department of

- 37 <-

Agriculture rate order, the Supreme

Court recognized a similar Fifth

Amendment due process right to judicial

review of constitutional questions

arising in federal administrative pro-

ceedings. In a weli-known concurring

passage, Justice Brandeis observed,

"(t]he supremacy of law demands that

there shall be opportunity to have some

court decide whether an erroneous rule

of law was applied; and whether the pro-

ceeding in which facts were adjudicated

was conducted regularly. To that

extent, the person asserting a right,

whatever its source, should be entitled

to the independent judgment of a court

on the ultimate question of constitu-

tionality.” 298 U.S. at 84.6/ See 5

6/ The view expressed in Ben Avon and

St. ean Stock Yards that, on

appeals from administrative deci-

[Footnote continued]

- 38 -

‘

U.S.C. § 706(2)(A) (authorizing federal

courts to reverse “arbitrary [and]

capricious” agency conduct).

The continuing vitality of this

principle is shown by various decisions

that have construed federal administra-

tive statutes to allow judicial review

in order to avoid the constitutional

question that failure to provide review

would raise.// For example, in Johnson

[Continued from previous page]

sions, courts should review facts

de novo has been criticized. See,

€.g., Jaffe, Judicial Review: Con-

stitutional and Jurisdictional

(1557). But cf. Northern Pipeline

Construction Co. v. Marathon Pipe

Line Co., 458 U.S. 50, 82 n.34

(1982). However, the requirement

that constitutional questions

arising from state or federal

administrative proceedings must be

subjected to judicial review

remains sound law.

7/ See Crowell v. Benson, 285 U.S. 22,

(1932) ("When the validity of an

[Footnote continued]

« Bo

v. Robison, 415 U.S. 361 (1974), where

the constitutionality of a veterans

benefit statute was challenged, the

Government contended that judicial

review was barred by a provision

purporting to render all administrative

decisions final and unreviewable.

Noting that a construction foreclosing

constitutional challenges to the act

would "raise serious questions con-

cerning the constitutionality" of that

statute, the Court read the statute to

permit judicial review of such claims.

415 U.S. at 366. Accord, Califano v.

[Continued from previous page]

act of the Congress is drawn in

question, and even if a serious

doubt of constitutionality is

raised, it is a cardinal principle

that this Court will first

ascertain whether a construction of

the statute is fairly possible by

which the question may be

avoided.").

- 40 «-

Sanders, 430 U.S. 99, 109 (1977);

Weinberger v. Salfi, 422 U.S. 749, 762

(1975).

Unlike the federal courts that have

been able to construe federal statutes

as permitting judicial review, this

Court is unable through statutory con-

struction to avoid the constitutional

question. This Court should thus follow

the path of Ben Avon and hold that, by

denying judicial review of constitu-

tional challenges to state conduct, the

North Carolina annexation statute is

unconstitutional.

- 4) «

CONCLUSION

For the reasons stated, this Court

should grant the writ of certiorari to

the United States Court of Appeals for

the Fourth Circuit.

October 13,

1983

Respectfully submitted,

James Hamilton

Counsel of Record

Robert L. Deitz

Susan A. Cobb

GINSBURG, FELDMAN AND BRESS,

Chartered

1700 Pennsylvania Avenue, N.W.

Washington, D.C. 20006

(202) 637-9000

Attorneys for Petitioners

(Other counsel listed on

next page)

» 42 <

Rosbon D. B. Whedbee

3307 Bonbrook Circle

Winston-Salem, N.C. 27106

Attorney for Petitioners Baldwin and

Brewer, et al.

F, Lee Weaver

Weaver & Bennett, P.A.

P.O. Box B-925

Matthews, N.C. 28105

Attorney for Petitioners Raintree

Homeowners Association, Inc., et al.

Hugh G. Casey, Jr.

Casey & Bishop, P.A.

700 Law Building

Charlotte, N.C. 28202

Attorney for Petitioners Derrick, et al.

« 43

“

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 82-1761

Floyd C. Baldwin; Ruby S. Baldwin;

William Edward Kirby, Jr.; Brenda

Head Kirby; Richard B. Charles;

Frances S. Charles; Raymond E.

Wigley and Dorothy Wigley,

Appellants,

City of Winston-Salem, NC;

Mayor Wayne A. Corpening;

Vivian H. Burke; Marilyn S.

Harpe; Larry D. Little;

Virginia K. Newell; Robert

S. Northington, Jr.;

Ernestine Wilson; Larry W.

Womble and Martha S. Wood,

Appellees.

No. 82-1767

-la-

— S$

Raintree

Homeowners Association,

Inc.; Louis Capots; John Geis;

Charles Herbert Green; Robert D.

Kinniburgh, Jr. and Kenneth Smelter,

Appellants,

Vv.

City of Charlotte; Eddie Knox,

Mayor; L. David Berryhill;

Charlie Dannelly; Laura Frech;

Harvy B. Gantt; Ron Leeher;

Ralph McMillan; Pamela G.

Patterson; Edwin Peacock, Jr.;

George K. Selden, Jr.; Herbert

Spaugh, Jr. and Minnette Trosch,

Appellees.

No. 82-1768

H.B. Carlisle; W. E. Derrick;

Carl L. Gaile; R. R. Lee and

D. M. Randall,

Appellants,

-2a-

City of Charlotte; Eddie Knox,

Mayor; David L. Berryhill;

Charlie Dannelly; Laura Frech;

Harvy B. Gantt; Ron Leeper;

Ralph McMillan; Pamela G.

Patterson; Edwin Peacock, Jr.;

George K. Selden, Jr.; Herbert

Spaugh, Jr. and Minnette C.

Trosch,

Appellees.

No. 82-1785

Raintree

Homeowners Association,

Inc.; Louis Capots; John Geis;

Charles Herbert Green; Robert D.

Kinniburgh, Jr. and Kenneth

Smelter,

Appellees,

Vv.

City of Charlotte; Mayor Eddie

Knox; David L. Berryhill;

Charlie Dannelly; Laura Frech;

Harvy B. Gantt; Ron Leeher;

Ralph McMillan; Pamela G.

Patterson; Edwin Peacock, Jr.;

George K. Selden, Jr.; Herbert

Spaugh, Jr. and Minnette Trosch,

Appellants.

-3a-

No. 82-1786

H. B. Carlisle; W. E. Derrick;

Carl L. Gaile; R. R. Lee and

D. M. Randall,

Appellees,

Vv.

City of Charlotte; Mayor Eddie

Knox; David L. Berryhill;

Charlie Dannelly; Laura Frech;

Harvy B. Gantt; Ron Leeper;

Ralph McMillan; Pamela G.

Patterson; Edwin Peacock, Jr.;

George K. Selden, Jr.; Herbert

Spaugh, Jr. and Minnette C.

Trosch,

Appellants.

No. 82-2120

Henry Brewer; Robert M. Burcham;

Philip Demarko; Joy M. McNab;

Gladys Norman; Sam Pope;

James A. Sneed and Cornelius F.

Spach,

Appellants,

-4a-

City of Winston-Salem; Mayor

Wayne A. Corpening; Vivian H.

Burke; Marilyn S. Harpe;

Larry D. Little; Virginia K.

Newell; Robert S. Northington,

Jr.; Ernestine Wilson; Larry

W. Womble and Martha S. Wood,

Appellees.

-5a-

82-1761 - Appeal from the United States

District Court for the Middle District

of North Carolina, at Greensboro. Hiram

H. Ward, Chief Judge; 82-1767 - Appeal

from the United States District Court

for the Western District of North

Carolina, at Charlotte. James B.

McMillan, District Judge; 82-1768 -

Appeal from the United States District

Court for the Western District of North

Carolina, at Charlotte. James B.

McMillan, District Judge; 82-1785 -

Appeal from the United States District

Court for the Western District of North

Carolina, at Charlotte. James B.

McMillan, District Judge; 82-1786 -

Appeal from the United States District

Court for the Western District of North

Carolina, at Charlotte. James B.

McMillan, District Judge; 82-2120 -

Appeal from the United States District

Court for the Middle District of North

Carolina, at Greensboro. Richard C.

Erwin, District Judge.

Submitted April 4, 1983

Decided June 15, 1983

Before WINTER, Chief Pare SPROUSE,

Circuit Judge, and KELLAM,+/ Senior

1/ Honorable Richard B. Kellam, Senior

United States District Judge for

(Footnote cont'd on next page)

-6a-

District Judge.

(James Hamilton, Robert L. Deitz, Susan

A. Cobb, Ginsburg, Feldman, Weil and

Bress, Chartered; Rosbon D.B. Whedbee;

F. Lee Weaver, Weaver & Bennett, P.A.;

Hugh G. Casey, Jr., Casey & Bishop, P.A.

on brief) for Appellants; (Roddey M.

Ligon, Jr., Womble, Caryl, Sandridge &

Rice; Ronald G. Seeber, Ralph D.

Karpinos; Henry W. Underhill, Jr., H.

Michael Boyd on brief) for Appellees.

(Footnote cont'd)

the Eastern District of Virginia,

sitting by designation.

-7a-

PER CURIAM:

These consolidated cases present

the single question of whether

landowners who allege that their real

property is to be annexed by a munici-

pality in order to increase the munici-

pality's tax base have stated a claim

upon which relief can be granted under

the due process clause of the Fourteenth

Amendment. The district courts

uniformly held that they have not. We

affirm.

Under North Carolina law,

municipalities are authorized to extend

their municipal corporate limits by

annexation of contiguous real property.

N.C. Gen. Stat. § 160A-48. State law

defines the permissible purposes for,

and scope of, such annexation,

establishes administrative procedures to

be employed by the municipalities, and

provides for limited state judicial

review of annexation decisions. Id. §§

160A-48 to -54. The six cases before us

arose from four annexation ordinances

adopted by the cities of Winston-Salem

and Charlotte. Each ordinance provided

for the annexation into the municipality

of certain real property located outside

the city limits.

In each case, the landowner filed

suit in the district court seeking to

have the city ordinance, and the

underlying annexation, declared uncon-

stitutional und<r the due process clause

of the Fourteenth Amendment. The plain-

tiffs alleged in their complaints that

the reason for each annexation was a

-9a-

desire to increase the city's tax

revenues and its allocation of state

revenue-sharing funds, that the services

to be provided by the city in the

annexed area would be inferior to

services already available, and that the

city officials acted arbitrarily in

choosing to annex more prosperous areas

while not incorporating poorer ones.

Plaintiffs also alleged that the judi-

cial review provisions under state law,

id. § 160A--50, unconstitutionally bar

judicial review of whether annexation

decisions are arbitrary and capricious.

The district courts concluded that

plaintiffs were not entitled to relief

based on these allegations, and dis-

missed the cases. Plaintiffs now

appeal; the City of Charlotte

cross-appeals the denial of its request

for attorneys’ fees.

-10a-

II.

It has long been held that the cre-

ation and redrawing of the political

subdivisions of a state, unlike the

exercise of power by those

subdivisions,2/ are peculiarly matters

involving state political concerns.

Indeed, the Supreme Court early in this

century flatly stated that "annexation

by a city or town is purely a state

political matter, entirely within the

power of the state legislature to

regulate.” Hunter v. City of Pittsburgh,

207 U.S. 161, 178-79 (1907). The Court

there recognized that municipal

2/ Municipalities and other stete sub-

divisions may, of course, be sued

when in exercising state powers

such as the power to condemn land

or the police power they violate

rights secured by the Constitution

or laws of the United States.

-lla-

annexations often simply represent the

internal political reordering of a

state.

Subsequent decisions have made

clear, however, that municipal

annexations are subject to at least some

scrutiny under both the Fifteenth and

Fourteenth Amendments to the United

States Constitution. In Gomillion v.

Lightfoot, 364 U.S. 339 (1964), the

Supreme Court invalidated an Alabama law

redefining the municipal limits of

Tuskegee where that redefinition was

motivated by a desire to disenfranchise

black citizens. And in Hayward v. Clay,

573 F.2d 187, 190 (4 Cir. 1978), we held

that if the annexation decision is to be

made through a general vote of the

city's inhabitants, the inhabitants of

the area proposed for annexation must be

afforded the right to vote as well.

-l2a-

Nonetheless, we noted in Berry v.

Bourne, 588 F.2d 422 (4 Cir. 1978), that

exceptions to the general rule that

annexations are to be accorded

considerable deference have been recog-

nized only in those two situations.

Moreover, the principle of according

such deference has subsequently been

reaffirmed by the Supreme Court:

In Hunter v. Pittsburgh,

the Court discussed at

length the relationship

between a State and its

political subdivisions,

remarking: "The number,

nature and duration of

the powers conferred upon

municipal corporations

and the territory over

which they shall be exer-

cised rests in the abso-

lute discretion of the

State.” While the broad

statements as to state

control have undoubtedly

been qualified by the

holdings of later cases

such as Kramer v. Union

Free School Dist.,3/ we

3/ Referring to Kramer v. Union Free

School District, 391 U.S. 6z1

(Footnote cont'd on next page)

-l3a-

think that the case

continues to have sub-

stantial constitutional

significance in

emphasizing the

extraordinarily wide

latitude that States have

in creating various types

of political subdivisions

and conferring authority

upon them.

Holt Civic Club v. Tuscaloosa, 439 U.S.

60, 71 (1978). We think it plain, based

on these cases, that the exercise by a

state of the discretion accorded to it

in structuring its internal political

subdivisions is subject to judicial

review under the Fourteenth Amendment

(Footnote cont'd)

(1969), which held that a restric-

tion of the right to vote in school

district elections to owners and

lessees of taxable real property

and to parents and custodians of

children enrolled in the public

schools violated the equal protec-

tion clause of the Fourteenth

Amendment.

-l4a-

only where that exercise involves the

infringement of fundamental rights or

the creation of suspect classifications.

See Moorman v. Wood, 504 F. Supp. 467,

471-73 (E.D. Ky. 1980).

III.

When tested against this principle,

plaintiffs' allegations, even if true,

do not entitle them to relief under the

Fourteenth Amendment. The allegation

that prosperous areas were selected for

annexation while less prosperous areas

were ignored does not constitute the

creation of a suspect classification.

Nor is there any fundamental right to be

free of additional state taxation.

Gomillion made clear that the due

process clause “affords no immunity

against mere inequalities in tax bur-

dens, nor does it afford protection

-15a-

against their increase as an indirect

consequence of a State's exercise of its

political powers." 364 U.S. at 343;