# Petition — Baldwin v. City of Winston-Salem

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1983
- **Citation:** 464 U.S. 1012

## Text

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

A

Appendix B .ccccccccccccccccccce LD
Appendix C
D

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

i

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 -

18

25

23,25

27

11,27

ll

13-14,31

passim

28

29

39-40

25

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

30

2,7

26,27-28

passim

28-29

18

27

37,38

21,24

21

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

a

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 -

a
[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 -

4
ea
iu

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,
Ve

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-

Pr
f
— S$

G

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.

I.

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;
see also Deane Hill Country Club, Inc.
v. Knoxville, 379 F.2d 321, 325 (6 Cir.
1967) (Fourteenth Amendment challenges
cannot be based on pecuniary
repercussions in the form of the ordi-
nary incidence of city taxation).4/ No

suspect classification or fundamental

4/ Given our conclusion that the
Fourteenth Amendment is not violat-
ed where, as here, the proposed
annexation does not impinge on
fundamental rights or create sus-
pect classifications, there is no
right under the Fourteenth
Amendment to challenge annexation
decisions alleged merely to be
arbitrary and capricious. There
is, accordingly, no federal right
to have state courts hear such
challenges to allegedly arbitrary
and capricious annexation deci-
sions; the availability of such
— is solely a matter of state

aw.

-l6a-

right is therefore implicated, and the

ordinances thus do not abridge the
Fourteenth Amendment to the United

States Constitution.

IV.

Although we conclude that plain-
tiffs have not asserted claims entitling
them to relief, we think that the claims
were not so frivolous, unreasonable or
groundless that the district court
abused its discretion in declining to
award attorneys' fees to the City of

Charlotte.

AFFIRMED.

-l7a-

APPENDIX B

Floyd C. and Ruby S. BALDWIN, William
Edward Kirby, Jr. and Brenda Head Kirby,
Richard B. and Frances S. Charles,
Plaintiffs,

and

Raymond and Dorothy Wigley,
Intervenors,

Vv.

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,
Defendants.

No. C-81-838-WS.
United States District Court,
M. D. North Carolina,
Winston-Salem Division.

July 28, 1982.

MEMORANDUM OPINION AND ORDER

HIRAM H. WARD, Chief Judge.

The Complaint (December 16, 1981)
alleged a fourteenth amendment attack on
the North Carolina annexation statutes,
N.C. Gen. Stat. §§ 160A-45 et seqg., and
the annexation by the City of
Winston-Salem of the plaintiffs‘ prop-
erty. No one disputes that in annexing
the plaintiffs' property the City accu-
rately followed the procedure set forth
in the statutes and that the annexation
was completed and implemented before the
plaintiffs began this lawsuit. The
parties have filed cross-motions for
summary judgment.

Plaintiffs seek a declaratory judg-
ment that portions of the statutes are
unconstitutional. In particular, they

claim that N.C. Gen. Stat. § 160A-50

restricts state court review of
annexations and prevents annexation
challenges based on due process grounds.
Motion (February 17, 1982). Defendants
seek dismissal of the entire action on
numerous grounds, including: failure to
state a claim upon which relief can be
granted, statute of limitations bar,
laches, res judicata and collateral
estoppel, and lack of standing. The
North Carolina Supreme Court has already
upheld this same annexation in a suit
brought by different landowners repre-
sented by different attorneys. In Re

Annexation Ordinance, Etc., 303 N.C.

220, 278 S.E.2d 224 (1981). This Court
conducted a hearing on the motions on
July 26, 1982.

Both the United States Supreme

Court and the Fourth Circuit Court of

-3b-

Appeals have unequivocally resolved the
dispositive legal issue presented in

this case. In Berry v. Bourne, 588 F.2d

422, 423-424 (4th Cir. 1978), the court
stated:

Hunter v. Pittsburgh
(1907) 207 U.S. 161,
178-179, 28 S.Ct. 40
[46], 52 L.Ed. 151,
declared that annexation
by a city or town is
purely a state political
or legislative matter,
entirely within the power
of the state legislature
to regulate. ‘ts lan-
guage was suf.iiciently
broad, as an unfriendly
commentator has observed,
"to dispose of every
conceivable challenge to
annexation.” ... hus,
it has been held to fore-
close attacks on a state
procedure specifically on
either due process or
equal protection grounds.

Accord Carlisle v. City of Charlotte,
(W.D.N.C. 1982) (C-C-81-553-M, July 13,
1982).

This Court is bound to follow the
decision of the Fourth Circuit and
cannot distinguish its firm language
from the facts of this case.3/ Plain-
tiffs fail to state a claim upon which
relief can be granted under the
fourteenth amendment.

IT IS, THEREFORE, ORDERED that
plaintiffs' Motion for Partial Summary
Judgment be, and the same hereby is,
DENIED. IT IS FURTHER ORDERED that
defendants' Motion for Summary Judgment
be, and the same hereby is, GRANTED.

A judgment dismissing this action

will be entered accordingly.

5/ Exceptions to the rule stated in
Berry v. Bourne, 588 F.2d 422,
423-424 (4th Cir. 1978), do not
arise in this case.

-5b-

APPENDIX C
RAINTREE
HOMEOWNERS ASSOCIATION, INC.,
et al., Plaintiffs,

Vv.

CITY OF CHARLOTTE,
et al., Defendants.

Nos. C-C-81-553-M, C-C-82-325-M.

United States District Court,

W. D. North Carolina,
Charlotte Division.

June 2, 1982.
Memorandum of Decision and Order
July 13, 1982.

ORDER

McMILLAN, District Judge.

This matter is before the court on
the plaintiffs' motion for a temporary
restraining order. The action was filed
on May 25, 1982. Notice was given to
counsel for all parties on May 26, 1982,
that a hearing would be held on this

motion at 9:30 a. m. on May 27, 1982.

-le-

7
J a

Counsel for all parties appeared at such
date and time.

The defendant City and its defen-
dant Council members caused a resolution
to be adopted on April 26, 1982, pursu-
ant to N.C.G.S. § 160A-49(a), stating
their intent to consider annexation of
an area generally described as the
Raintree/Providence Plantation Area.
That area is further described in the
resolution by a metes and bounds
description. That same resolution
called for a public hearing to be held
on the question of annexing this area at
3:00 p. m. on May 27, 1982. Pursuant to
N.C.G.S. § 160A-49(e), the defendant
City and defendant Council members may
not adopt any ordinance annexing any or
all of the area until the seventh day

following the public hearing.

-2c-

In view of the facts presented to
the court, and the decisions of Hunter

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

S.Ct. 40, 52 L.Ed. 151 (1907);
Gomillion v. Lightfoot, 364 U.S. 339, 81

S.Ct. 125, 5 L.Ed.2d 110 (1960) and

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

1978), it is unlikely that the plain-
tiffs will succeed in their Fourteenth
Amendment claims. Further, the plain-
tiffs have not shown sufficient danger
of irreparable injury to justify the
relief they now seek.

IT IS THEREFORE ORDERED that the
plaintiffs' motion for a temporary

restraining order is denied.

-3c-

MEMORANDUM OF DECISION
AND ORDER

On Motions For Summary Judgment
and Dismissal
The plaintiffs in these actions,

filed under 42 U.S.C. § 1983, are resi-
dents of areas known as Coulwood (No.
C-C-81-553-M), and Raintree/Providence
Plantation (No. C-C-82-325-M)
("Raintree"). The City of Charlotte
(the "City") has effectively annexed
Coulwood and has adopted an ordinance
which makes the annexation of the
Raintree/Providence Plantation areas
effective in 1983. The plaintiffs
allege that as a result of these
annexations, they have been deprived of
constitutional rights guaranteed under
the due process clause of the Fourteenth
Amendment. Because dispositive legal
issues are common to each case, these

actions have been considered together.

COULWOOD

The Coulwood area lies to the
northwest of the center of Charlotte.
Major roads running through Coulwood
include Mount Holly, Tom Sadler and
Valleydale as well as Bellhaven Boule-
vard. The area contains over 800
dwelling units and about 2,700 resi-
dents, and covers about 1,300 acres.

The City's proposal to annex Coulwood
describes the area as primarily resi-
dential with some commercial uses along
Bellhaven Boulevard, Tom Sadler and
Mount Holly Roads.

On March 24, 1980, the City Council
adopted Annexation Ordinance 301-x
annexing Coulwood into the City. The
ordinance was challenged by Coulwood
residents in Mecklenburg County Superior

Court. By statute this stayed the

-5Sc-

effective date of the annexation. On
September 10, 1980, that court entered
an order affirming the annexation. The
North Carolina Supreme Court affirmed
the annexation on December 1, 1981. The
Coulwood annexation became effective on
December 21, 1981. This action was then
filed on December 30, 1981. The plain-
tiffs are individual homeowners and res-
idents of Coulwood.
RAINTREE/PROVIDENCE
PLANTATION
The Raintree and Providence
Plantation areas lie to the southeast of
the center of Charlotte. The area to be
included within the City, includes, but
is not limited to, about 2,280 acres
which are used for residential purposes.
Much of the remaining acreage is used
for commercial, industrial,

institutional and governmental purposes.

On April 26, 1982, the City Council
adopted a resolution to annex the
Raintree and Providence Plantation
areas. On May 25, 1982, the plaintiffs,
the Raintree Homeowners Association and
five individual residents of these
areas, filed this action. No previous
challenge to the annexation has been
initiated in the state courts. At the
plaintiffs' request, a hearing on a
motion for a temporary restraining order
to stop further action by the City was
held on May 27, 1982. On June 2, 1982,
an order was entered denying that
motion.

On June 3, 1982, the City Council
adopted Annexation Ordinance No. 1182-x
annexing the Raintree and Providence
Plantation areas. However, the
annexation is not to become effective

until May 30, 1983.

MOTIONS BEFORE THE COURT
The City has moved to dismiss the
Coulwood action on the grounds that the

suit is barred by laches, res judicata

and the statute of limitations, and that
the plaintiffs lack standing. The City
has moved to dismiss the
Raintree/Providence Plantation action on
grounds of comity and federalism, and
assert that the plaintiffs lack standing
and that there is no case or controversy
before the court.

It is doubtful that these defenses
bar either of the actions. However,
final resolution of these issues is not ©
necessary to the court's decision. The
interests of the parties are best served
by a prompt and complete decision on the

merits of these cases.

DUE PROCESS CLAIMS

On February 25, 1982, the Coulwood
plaintiffs filed a motion for a partial
summary judgment on their first cause of
action. On June 14, 1982, the
Raintree/Providence Plantation plain-
tiffs filed an identical motion.

The City, on May 26, 1982, filed a
motion for dismissal of the entire cause
of action for failure to state a claim
and for summary judgment in the Coulwood
case. On June ll, 1982, the City filed
a motion to dismiss the
Raintree/Providence Plantation action.

A hearing on these motions was
conducted on June 22, 1982.

The plaintiffs state two causes of
action in each case:

l. That N.C.G.S. § 160A-
50(f£), which governs judicial

-9c-

review by state courts of all
annexations within the state, as
interpreted by the North Carolina
Supreme Court, is unconstitutional
under the due process clause of the
Fourteenth Amendment to the United
States Constitution.

2. That the annexation by the
City of Coulwood, or of
Raintree/Providence Plantation, is
arbitrary, capricious, unrea-
sonable, and an abuse of discretion
by the City in violation of the due
process clause of the Fourteenth
Amendment to the United States Con--
stitution.
In support of these claims, the

complaint in the Coulwood action

alleges, inter alia, that:

-10¢c-

Evidence in the Superior
Court action demonstrated
that the City acted
improperly in drawing the
boundaries of the annexed
areas by including some
tracts and not others.

Evidence showed that the

City services were

neither requested nor

wanted by residents of

Coulwood.

These allegations are essentially
repeated in the Coulwood plaintiffs'
motion for partial summary judgment.
They contend that the facts before the
Superior Court and the City Council

were, inter alia, that:

The primary result of the
annexation for Coulwood
residents is higher
taxes.

That city services were
neither needed nor wanted
by Coulwood residents.

That the City excluded a
nearby area because it
contains housing units of
low value.

-lle-

The Raintree/Providence Plantation
plaintiffs allege in their complaint
that, if permitted by N.C.G.S. §
160A-50(f£), they would challenge the
annexation with evidence that:

If the area belongs in
any municipality, it
should be Matthews (a
nearby town) rather than
Charlotte.

The City included
Raintree and Providence
Plantation but not the
less affluent areas of
Oakdale-Hunter Acres,
which are in greater need
of the City's services.

The City has not annexed
the very affluent area of
Quail Hollow, which
plaintiffs claim is
closer to the center of
town than are Raintree
and Providence
Plantation.

The City has deleted
certain areas to meet
certain statutory stan-
dards.

The City's primary

purpose is to raise tax
revenue.

-l2c-

Raintree and Providence

Plantation have services

which are superior to

those offered by the

City.

The Raintree/Providence Plantation
plaintiffs repeat these allegations as
the undisputed material facts in support
of their motion for partial summary
judgment. Specifically, they state
that, if permitted by the judicial
review provision, they would introduce
evidence in Superior Court to show the
"unreasonableness" of the annexation.

An affidavit by Larry L. Falcone, a
Raintree resident and president of the
Raintree Homeowners Association, is also
offered in support of the
Raintree/Providence Plantation motion
for summary judgment. His assertions of
fact are identical to those in the com-

plaint and those in support of the

motion for partial summary judgment.

-l3c-

The facts alleged by the plaintiffs
to be undisputed are only offered in
support of their motion for summary
judgment on their first cause of action,
which challenges the judicial review
portion of the annexation laws. The
plaintiffs are not asking for summary
judgment on their claim that each of the
challenged annexations is, in fact,
arbitrary, capricious and unreasonable.
Rather, they assert that it is
undisputed that they would introduce
evidence to try to show that the
annexations are arbitrary, capricious
and unreasonable if permitted to do so
under the judicial appeal provision of
the statute.

For the reasons discussed below,
the court is of the opinion that the

plaintiffs' motion in each action should

-l4c-

be denied, and that the City's motions
for dismissal for failure to state a
claim should be granted in each action.

The Coulwood and the
Raintree/Providence Plantation plain-
tiffs (the "plaintiffs") allege that
N.C.G.S. § 160A-50(f£) is unconsti-
tutional under the due process clause of
the Fourteenth smendment to the United
States Constitution because, as inter-
preted by the North Carolina Supreme
Court, it denies them adequate review of
the annexations in state court. The
challenged provision states that:

(£) The court shall

fix the date for review

of annexation proceedings

under this Part, which

review date shall prefer-

ably be within 30 days

following the last day

for receiving petitions

to the end that review

shall be expeditious and

without unnecessary

delays. The review shall
be conducted by the court

-15c-

without a jury. The
court may hear oral
arguments and receive
written briefs, and may
take evidence intended to
show either

(1) That the statu-
tory procedure was
not followed, or

(2) That the provi-
sions of G.S.
160A-47 were not
met, or

(3) That the provi-
sions of G.S.
160A-48 have not
been met.

The statutory procedure referred to
in (f£)(1) is set out in N.C.G.S. §
160A-49. That provision requires notice
of a public hearing, and sets out guide-
lines for the public hearing prior to an
annexation. N.C.G.S. § 160A-47 requires
the City to prepare maps and plans for
the services to be provided to the
annexed areas. N.C.G.S. § 160A-48

establishes guidelines for the character

-16c-

of areas to be annexed. Section 160A-48
requires certain contiguous boundaries
between the City and the annexed area,
and requires that part or all of the
area be developed for urban purposes.
Urban purpose is defined, in part, in
terms of population and usage of the
area to be annexed.

Plaintiffs assert that their
Fourteenth Amendment rights are denied
because § 160A-50(f) limits the grounds
upon which they may challenge an
annexation to those specifically enu-
merated in the statute and bars them
from arguing that a annexation is arbi-
trary, capricious and unreasonable. In

In Re Annexation Ordinance, 303 N.C.

220, 278 S.E.2d 224 (1981), the North
Carolina Supreme Court rejected the

assertion that plaintiffs challenging

-17c-

Winston-Salem annexation had a right to
argue that an annexation was arbitrary
and unreasonable independent of the
grounds listed in N.C.G.S. § 160A-50(f).
The Court held that on review of an
annexation, a Superior Court may only
hear claims based upon the grounds set
out in § 160A-50(f), and expressly
Stated, "Nor do we find a separate test
of 'reasonableness' within the limited
scope of judicial review permitted in
annexation cases." 278 S.E.2d at 231.
Assuming, arguendo, that the due
process clause of the Fourteenth
Amendment gives the plaintiffs the right
to argue on appeal that the annexations
are unreasonable, the plaintiffs
nonetheless would not be entitled to the
relief they seek under their first cause

-18c-

the provisions incorporated therein,
amount to a requirement that the
Superior Court determine whether an
annexation is reasonable. The language
of the provisions does not speak in
terms of arbitrariness, capriciousness
or unreasonableness. However, the
effect of the statute is to give sub-
Stantial protection against arbitrary,
capricious and unreasonable acts by the
City. Upon a challenge to North
Carolina's annexation law shortly after
its enactment in 1959, the North
Carolina Supreme Court in In Re

Annexation Ordinafices Nos. 866-870,

etc., 253 N.C. 802, 117 S.E.2d 795
(1961), upheld the provisions,
explaining that:
It certainly cannot be
considered a mere shell
or ritual of conformity

when the governing body
of a municipality, in

-19c-

good faith, obtains all
the information required
by the Act, with respect
to the character of the
area or areas to be
annexed, the density of
the resident population
therein, the extreme
boundaries thereof, and
the percentage of such
boundaries which are
adjacent or contiguous to
the municipality's bound-
aries, which must be at
least one-eighth; and a
further provides or makes
provision to extend all
the governmental services
to the newly annexed area
Or areas, comparable to
the services provided for
the residents within the
city prior to annexation
of the new area or areas.

117 S.E.2d at 802.

Further, the plaintiffs are not en-
titled to relief because their allega- |
tions do not bring them within the pro-
tection of the Fourteenth Amendment. In

Hunter v. Pittsburgh, 207 U.S. 16l,

178-79, 28 S.Ct. 40, 46-47, 52 L.Ed. 151

(1907), the United States Supreme Court

-20c-

held that challenges to annexations
generally are not actionable under the

Fourteenth Amendment. Berry v. Bourne,

588 F.2d 422 (4th Cir. 1978) makes it

clear that Hunter v. Pittsburgh is still

good law. In Berry v. Bourne, the dis-

trict court's dismissal of the plain-
tiff's motion for a preliminary injunc-
tion to stop an annexation was affirmed.
The Berry plaintiffs claimed that the
challenged annexation violated their
rights under the equal protection clause
of the Fourteenth Amendment because
registered voters were not given an
opportunity to vote on the annexation.

Hunter v. Pittsburgh, supra, was cited

by the court for the principle that:

[A]nnexation by a city or
town is purely a state
political or legislative
Matter, entirely within
the power of the leg-
islature to regulate....
Thus [Hunter v. Pitts-

-2lc-

burgh], has been held to

foreclose attacks on a

state procedure

specifically on either

due process or equal pro-

tection grounds.

588 F.2d at 424.

Exceptions to the rule that chal-
lenges to annexations do not generally
lie under the Fourteenth Amendment have
been recognized in limited
circumstances. A city may not manipu-
late its boundaries for the purpose of

removing voters from the city because of

their race; Gomillion v. Lightfoot, 364

U.S. 339, 345, 81 S.Ct. 125, 129, 5
L.Ed.2d 10 (1960). If the state chooses
to give residents of an area to be :
annexed an opportunity to vote on the
annexation, that right must be afforded
in a manner which comports with the

equal protection clause, Hayward v.

Clay, 573 F.2d 187 (4th Cir. 1978) (If

-22c-

the right to vote is given, all
registered voters, not just freeholders,
must be allowed to vote). However,
these limited exceptions are not invoked
by the allegations in the actions before
the court.

Implicit in those decisions is the
principle that faicness requires that
those who share in the benefits of a
nearby city bear a proportionate share
of the costs of providing those bene-
fits.

The allegations in the actions
before the court describe a conflict
between people who now live just outside
Charlotte, but who derive benefit from
the City, and City officials who are
obliged to seek funding for the benefits
the City provides. These cases thus

fall squarely within the letter and the

-23c-

spirit of the law that state
legislatures have the responsibility for
deciding where and how issues arising
out of annexation are to be resolved.
Thus, taking all of the plaintiffs'
allegations and showings as true, Hunter

v. Pittsburgh, supra, and Berry v.

Bourne, supra, make it clear that

neither cause of action, in either of
these cases, presents a basis upon which
relief could be granted.

IT IS THEREFORE ORDERED that:

1. Plaintiffs' motions for partial
summary judgment are denied.

2. The defendants' motions for
dismissals are allowed.

3. These actions are dismissed.

-24c-

APPENDIX D

IN THE UNITED STATES DISTRICT
COURT FOR THE MIDDLE DISTRICT
OF NORTH CAROLINA WINSTON-SALEM
DIVISION

HENRY BREWER, et al.,

Plaintiffs,
Vv. C-82-801-WwS

CITY OF WINSTON-SALEM,
et al.,

Defendants.

eee eee ee eee ee ee

JUDGMENT

THIS CAUSE came on for hearing on
plaintiffs' motion for summary judgment
as to their first and second causes of
action, and on defendants' motion for
summary judgment, before the undersigned
at the Federal Courthouse in Greensboro,
North Carolina on Friday, October l,
1982. At the hearing on said motions

the plaintiffs were represented by Mr.

-lda-

Rosbon D. B. Whedbee of Winston-Salem,
North Carolina and by Mr. James Hamilton
of the Washington, D.C. law firm of
Ginsburg, Feldman, Weil and Bress, Char-
tered; and the defendants were repre-
sented by Roddey M. Ligon, Jr. of the~
Winston-Salem law firm of Womble,
Carlyle, Sandridge & Rice, and by City
Attorney Ronald G. Seeber. The Court,
having considered the pleadings, affida-
vits, motions, briefs, and oral
arguments, adjudges as follows:

1. Plaintiffs' First Cause of

Action.

The plaintiffs moved for summary
judgment on their first cause of action
asserting that the annexations by the
City of Winston-Salem challenged by this
action are unconstitutional in that they

cannot be subjected to proper judicial

)
-2d-

review under state law. With respect to
this contention, this Court adopts the
opinion of Chief Judge Ward entered in

the case of Baldwin, et al. v. City of

Winston-Salem, et al., C-81-838-WS,

filed July 28, 1982, and dealing with
the same issue as that raised in this
portion of plaintiffs' motion.
The memorandum opinion of Chief
Judge Ward states, in part:
"Both the United States
Supreme Court and the Fourth Cir-
cuit Court of Appeals have unequiv-
ocally resolved the dispositive
legal issue presented in this case.

In Berry v. Bourne, 588 F.2d 422,

423-424 (4th Cir. 1978), the court
stated:

‘Hunter v. pitbspuril (1907)
207 U.S. 1 ’ 1 8-1 ’ §.Ct. 40,
52 L.Ed. 151, declared that

annexation by a city or town is
purely a state political or

-3d-

legislative matter, entirely within
the power of the state legislature
to regulate. Its language was suf-
—. ficiently broad, as an unfriendly

commentator has observed, “to
\dispose of every conceivable chal-
henge to annexation." .. . Thus,
it has been held to foreclose
attacks on a state procedure
specifically on either due process
Or equal protection grounds.'

Accord, Carlisle v. City of

Charlotte, F. Supp.

(W. D.N.C. 1982) (C-C-81-533-M,
July 13, 1982).

This Court is bound to follow
the decision of the Fourth Circuit
and cannot distinguish its firm
language from the facts of this
case.6/ Plaintiffs fail to state a
Claim upon which relief can be
granted under the fourteenth

amendment.

6/ "Exceptions to the rule stated in
Berry v. Bourne, 588 F.2d 422,
423-4 (4th Cir, 1978), do not

arise in this case."

-4d-

IT IS, THEREFORE, ORDERED that
plaintiffs' Motion for Partial Sum-
mary Judgment be, and same hereby
is, DENIED."

For the reasons stated therein, the
plaintiffs' motion for summary judgment
as to its first cause of action must be
denied.

2. Plaintiffs' Second Cause of

Action.

The plaintiffs next move for sum-
mary judgment on their second cause of
action. They assert that the
annexations by the City challenged in
this action are unconstitutional because
persons such as plaintiffs Henry Brewer,
Robert M. Bircham and Gladys Norman
reside or operate businesses in the
annexed areas but do not own real prop-

erty in the annexed areas; and,

-5d-

therefore, cannot seek judicial review
of the annexation under the North
Carolina statutes. The defendants
respond that the North Carolina law
allows any property owner -- not just
real property owners -- to challenge
North Carolina annexations. During oral
argument counsel for the plaintiffs-and
defendants advised the Court that Henry
Brewer, Robert M. Bircham and Gladys
Norman are parties plaintiff to a pend-
ing action in the Superior Court of
Forsyth County, North Carolina, which
said action challenges the validity of
the annexations involved here. Conse-
quently, this Court is of the opinion
that this portion of plaintiffs' motion
for summary judgment is moot. This
Court does not feel that these plain-

tiffs may, at this time, contend in this

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Court that they do not have a right to
contest the annexations in state court
when they are in fact at this time con-
testing the annexations in state court.
Thus, the Court feels that the plain-
tiffs' motion for summary judgment as to
their second cause of action must be
denied. The Court holds, however, that
should the state court judicially
determine that the above-named plain-
tiffs do not have standing to contest
the validity of the annexation in state
court, plaintiffs would be authorized to
reopen this case in order to raise this
issue at that time.

3. Defendants' Motion for Summary
Judgment.

The defendants move for summary

judgment as to all of plaintiffs’

claims. For the reasons stated herein,

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as well as those stated in the
Memorandum Opinion of Chief Judge Ward
adopted by this Court, the defendants'
motion for summary judgment should be
allowed.

IT IS, THEREFORE, ORDERED ADJUDGED
AND DECREED that the plaintiffs' motion
for summary judgment on the first cause
of action is denied; that plaintiffs'
motion for summary judgment on the
second cause of action is deemed to be
moot and thus denied subject to the
right of plaintiffs Henry Brewer, Robert
M. Bircham and Gladys Norman to reopen
this case in the event the state court
should hold that said plaintiffs do not.
have standing in the state court action;
and, the defendants’ motion for summary

judgment is allowed.

United States District Judge
November 16, 1982

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APPENDIX E
FOURTEENTH AMENDMENT
TO THE UNITED STATES CONSTITUTION
SECTION 1. All persons born or
naturalized in the United States and
subject to the jurisdiction thereof, are
citizens of the United States and of the
State wherein they reside. No State
shall make or enforce any law which
shall abridge the privileges or
immunities of citizens of the United
States; nor shall any State deprive any
person of life, liberty, or property,
withvut due process of law; nor deny to
any person within its jurisdiction the

equal protection of the laws.

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Appendix F

§ 160A-50. Appeal. -- (a) Within
30 days following the passage of an
annexa ion ordinance under authority of
this Part, any person owning property in
the annexed territory who shall believe
that he will suffer material injury by
reason of the failure of the municipal
governing board to comply with the pro-
cedure set forth in this Part or to meet
the requirements set forth in G.S.
160A-48 as they apply to his property
may file a petition in the superior
court of the county in which the munici-
pality is located seeking review of the
action of the governing board.

(b) Such petition shall explicitly
state what exceptions are taken to the
action of the governing board and what

relief the petitioner seeks. Within

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five days after the petition is filed

with the court, the person seeking

review shall serve copies of the peti-

tion by registered mail, return receipt

requested, upon the municipality.

(c) Within 15 days after receipt

of the copy of the petition for review,

or within such additional time as the

court may allow, the municipality shall

transmit to the reviewing court

(1)

(2)

A transcript of the por-
tions of the municipal
journal or minute book in
which the procedure for
annexation has been set
forth and

A copy of the report
setting forth the plans
for extending services to
the annexed area as

required in G.S. 160A-47.

(d) If two or more petitions for
review are submitted to the court, the
court may consolidate all such petitions
for review at a single hearing, and the
municipality shall be required to submit
only one set of minutes and one report
as required in subsection (c).

(e) At any time before or during
the .eview proceeding, any petitioner or
petitioners may apply to the reviewing
court for an order staying the operation
of the annexation ordinance pending the
outcome of the review. The court may
grant or deny the stay in its discretion
upon such terms as it deems proper, and
it may permit annexation of any part of
the area described in the ordinance con-
cerning which no question for review has

been raised.

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(f) The court shall fix the date
for review of annexation proceedings
under this Part, which review date shall
preferably be within 30 days following
the last day for receiving petitions to
the end that review shall be expeditious
and without unnecessary delays. The
review shall be conducted by the court
without a jury. The court may hear oral
arguments and receive written briefs,
and may take evidence intended to show
either

(1) That the statutory proce-
dure was not followed, or

(2) That the provisions of
G.S. 160A-47 were not
met, or

(3) That the provisions of
G.S. 160A-48 have not

been met.

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(g) The court may affirm the

action of the governing board without

change, or it may

(1)

(2)

Remand the ordinance to
the municipal governing
board for further pro-
ceedings if procedural
irregularities are found
to have materially preju-
diced the substantive
rights of any of the
petitioners.

Remand the ordinance tc
the municipal governing
board for amendment of
the boundaries to conform
to the provisions of G.S.
160A-48 if it finds that
the provisions of G.S.

160A-48 have not been

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met; provided, that the
court cannot remand the
ordinance to the muni-
cipal governing board
with directions to add
area to the municipality
which was not included in
the notice of public
hearing and not provided
for in plans for service.
(3) Remand the report to the

municipal governing board
for amendment of the
plans for providing
services to the end that
the provisions of G.S.
160A-47 are satisfied.

If any municipality shall fail to take

action in accordance with the court's

instructions upon remand within three

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months from receipt of such
instructions, the annexation proceeding
shall be deemed null and void.

(h) Any party to the review pro-
ceedings, including the municipality,
may appeal to the Supreme Court from the
final judgment of the superior court
under rules of procedure applicable in
other civil cases. The appealing party
may apply to the superior court for a
stay in its final determination, or a
stay of the annexation ordinance, which-
ever shall be appropriate, pending the
outcome of the appeal to the Supreme
Court; provided, that the superior court
may, with the agreement of the munici-
pality, permit annexation to be
effective with respect to any part of
the area concerning which no appeal is

being made and which can be incorporated

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into the city without regard to any part
of the area concerning which an appeal
is being made.

(i) If part or all of the area
annexed under the terms of an annexation
ordinance is the subject of an appeal to
the superior or Supreme Court on the
effective date of the ordinance, then
the ordinance shall be deemed amended to
make the effective date with respect to
such area the date of the final judgment
of the superior or Supreme Court, which-
ever is appropriate, or the date the
municipal governing board completes
action to make the ordinance conform to
the court's instructions in the event of
remand. (1959, c. 1009, s. 6; 1973, c.
426, s. 74.)

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0567%3A1. Public record. Not legal advice.