Opposition — Baldwin v. City of Winston-Salem

83-572 | NOV

NO.

IN THE

Supreme Court of the United States

OCTOBER TERM, 1983

Petitioners,

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

Respondents.

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Roddey M. Ligon, Jr.

Counsel of Record

Womble, Carlyle, Sandridge

& Rice

2400 Wachovia Building

Post Office Drawer 84

Winston-Salem, N.C. 27102

(919) 721-3619

(Other counsel listed on inside cover)

APPE «A EPR SERY ms HER TA RiCHw C VA B04 643 a

QUESTION PRESENTED FOR REVIEW

Is the decision of the United States

Court of Appeals for the Fourth Circuit

upholding North Carolina's annexation

statutes, and Respondent's actions there-

under, consistentwith decisions of the

Supreme Court of the United States and

applicable constitutional principles?

(i)

TABLE OF CONTENTS

Page

QUESTION PRESENTED FOR REVIEW... i

wees GE Cillzmeeem ew th tw ew tl tlt el lt 6

TABLE OF AUTHORITIES .....e.e-e <dii

STATEMENT OF THE CASE .....« « 3

ot, a ee ee a ee ee ee ee er 4

REASONS FOR DENYING THE PETITION. 6

I. THE DECISION OF THE UNITED

STATES COURT OF APPEALS FOR

THE FOURTH CIRCUIT IS

CONSISTENT WITH APPLICABLE

LAW ESTABLISHED BY THE

UNITED STATES SUPREME COURT . 6

A. Applicable Law of the

Supreme Court ...<« « « 7

B. The Law of the Fourth

Circuit Is Consistent

With the Law of the

Supreme Court ...... 16

Il. THE NORTH CAROLINA SUPREME

COURT DOES REVIEW ANNEXA-

TIONS TO DETERMINE REASON-

ABLENESS AND COMPLIANCE WITH

DUE PROCESS AS WELL AS OTHER

CONSTITUTIONAL STANDARDS .. 21

COUCEAMION 2.1. ewe eu nest ne OF

(ii)

TABLE OF AUTHORITIES

Cases Page

Adams v. City of Colorado Springs,

308 F.Supp. 1397 (D.Colo.),

afft*‘d 399 U.S. 901 (1970)... . 20

Baldwin v. City of Winston-

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

132 (4th Cir. 1983) ..... . passim

Berry v. Bourne, 588 F.2d

422 (4th Cir. 1978) ..... . passim

Citizens Committed to Oppose

Annexation v. City of

Lynchburg, 528 F.2d 816

(4th Cir.), application

denied 423 U.S. 1943 (1976). . . 20

Doyle v. Municipal Commission

of Minnesota, 340 F.Supp.

841 (D.Minn.), aff'd 468

F.2d 620 (8th Cir. 1972) .... 20

Garren v. City of Winston-

Salem, 463 F.2d 54 (4th Cir.),

cert. denied 409 U.S. 1039

ey Va eae ee er ae

Gaskill v. Costlow, 270 N.C.

686, 155 S.E.2d 148 (1967) .. . 27, 28

Gomillion v. Lightfoot 364

U.S. 339 (1960) ...... +. . passim

Hawks v. Town of Valdese,

299 N.C. 1, 261 S.E.2d

ee |, rm a ter

(iii)

vif

tet 2 hi

- oo ‘<=

Page

Holt Civic Club v. City of

Tuscaloosa, 439 U.S. 60

ree «iG es » @.6 © «© © « « + Seen

Hunter v. Pittsburgh, 207

Dom. Bee CI907) . « oe te eh el «6S

In Re Annexation Ordinance

Adopted by the City of

Charlotte, 284 N.C. 442,

agua SsmseG 143 (1974) . ...- 2

In Re Annexation Ordinance

#D-21927, 303 N.C. 220,

nae eee a2a8 (3983) .« « « « Se 28

In Re Annéxation Ordinance

#301-x, 304 N.C. 565, 284

= Cy, Bee!» }

In Re Annexation Ordinance

No. 866, 253 N.C. 637,

Bee wememe 795 (196i) . - « « Ba

In Re Ordinance of Annexation

No. 1977-4, 296 N.C. 1, 249

2 ee Be Eby) | ee

Moody v. Carrboro, 301 N.C.

318, 271 S.E.2d 265 (1980) .. 24, 27

Ohio Bureau of Employment

Services v. Hodory, 431

ee Peneee” «4 «-c- 6. «2

Raintree Homeowners Association

v. City of Charlotte, 543

F.Supp. 625 (W.D.N.C. 1982) . 3, 18, 24

(iv)

Page

Texfi Industries, Inc. v.

City of Fayetteville, 301

N.C. 1, 269 S.E.2d 142 (1980) . 27

Thompson v. Whitley, 344

F. Supp. 480 (E.D.N.C. 1972) .. 20

Constitution, Statutes and Rules

U.S. Const. amend. XIV§ 1... . passim

United States Supreme

L.UEG BUlS L7G) . « 0 oe to 2 oe 64 Ree

N.C. Gen. Stat. § 160A-50 .... 24

(v)

oe pane

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.

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Respondents are the cities of

Winston-Salem and Charlotte, North

Carolina, and their respective Mayors

and members of their governing boards.

Respondents respectfully submit this

brief in opposition to the petition for

writ of certiorari to the United States

Court of Appeals for the Fourth Circuit

in the case of Baldwin v. City of

je

Winston-Salem,

North Carolina,

132 (4th Cir.

1983).

710 F.

2d

4 7

s

wap

STATEMENT OF THE CASE

Petitioners ask the Supreme Court of

the United States to review a decision of

the United States Court of Appeals for

the Fourth Circuit affirming decisions by

the Middle and Western Districts of North

Carolina which sustained the North Caro-

lina annexation statutes. / Relying

primarily on Hunter v. Pittsburgh, 207 U.S.

161 (1907) and Berry v. Bourne, 588 F.2d

422 (4th Cir. 1978), and applicable

lealdwin v. City of Winston-Salem

(82-1761(L)) and Carlisle v. City of

Charlotte (82-1768) involve annexations

upheld by the North Carolina Supreme Court.

(In Re Annexation Ordinance #D-21927, 303

N.C. 220, 279 S.E.20 224 (1981); In Re

Annexation Ordinance 301-xX, 304 N.C. 565,

264 S.B.2d 475 (1981)). Both Baldwin and

Carlisle challenge annexations which were

fully implemented prior to filing and

remain today incorporated within the muni-

cipal Respondents. Brewer v. City of

Winston-Salem (82-2120) and Raintree Home-

owners Association, Inc. (82-1767) involve

annexations which have been affirmed at

the trial level and are now waiting review

by the North Carolina Court of Appeals.

ao

North Carolina statutes, the Federal Dist-

rict Court in each case dismissed the

Petitioners' actions after determining

that the allegations did not establish a

basis for relief under the due process

clause of the Fourteenth Amendment. The

United States Court of Appeals for the

Fourth Circuit affirmed the trial courts

(710 F.2d 132) in a per curiam decision.

The Fourth Circuit, relying on Hunter as

well as Gomillion v. Lightfoot, 364 U.S.

339 (1960) and Holt Civic Club v. City

of Tuscaloosa, 439 U.S. 60 (1978), held

that the Petitioners' allegations, even

if true, failed to establish a claim

entitling them to relief under the

Fourteenth Amendment. 710 F.2d at 135.

SUMMARY

The decision of the Fourth Circuit

is consistent with the decisions of the

Supreme Court of the United States

-4-

interpreting the Fourteenth Amendment and

this petition for writ of certiorari should

therefore be denied. The Fourth Circuit

correctly recognized that "it has long

been held that the creation and redrawing

of the political subdivisions of the

state, unlike the exercise of power by

those subdivisions, are peculiarly matters

involving state political concerns."

710 F.2d at 134. The Fourth Circuit

further observed that later decisions of

the Supreme Court of the United States

have reaffirmed the Hunter decision;

and, that while municipal annexations

are subject to scrutiny under the

Fourteenth Amendment when the infringement

of fundamental rights or the creation of

suspect classifications are alleged, no

such issue is implicated in this case.

Therefore, Petitioners' allegations, even

if true, would not entitle them to relief

under the Fourteenth Amendment. 710 F.2d

Se

at 135. The decision of the Fourth Circuit

is consistent not only with Hunter, but also

with *he subsequent cases of Gomillion v.

Lightfoot, supra and Holt Civic Club v.

Tuscaloosa, supra.

Contrary to Petitioners' allegations,

the scope of judicial review of annexa-

tions in North Carolina is not limited.

Case law makes it abundantly clear that

the North Carolina courts will review and

decide the constitutionality of annexa-

tions and the annexation statutes.

Compliance with those statutes, the courts

have held, where the statutes themselves

are constitutional, establishes that the

annexations are not arbitrary or

unreasonable.

REASONS FOR DENYING THE PETITION

I. THE DECISION OF THE UNITED STATES COURT

OF APPEALS FOR THE FOURTH CIRCUIT IS

CONSISTENT WITH APPLICABLE LAW ESTA-

BLISHED BY THE UNITED STATES SUPREME COURT.

oGe

A. Epplicable Law of the Supreme Court.

The law applicable to this case, and

relied upon by the District Courts and the

Fourth Circuit, is clearly set out by the

United States Supreme Court in the case

of Hunter v. Pittsburgh, supra (and has

been followed by the Fourth Circuit in

this case and in the case of Berry v.

Bourne, supra). Hunter arose from a

challenge of a Pennsylvania statute

which permitted a larger municipality to

annex a smaller one despite the fact that

a majority of the citizens of this

smaller municipal corporation desired not

to be annexed. The plaintiffs in Hunter

challenged the annexation on a number of

points, including due process grounds

similar to those raised in this case.

Hunter at 168-169.

This Court upheld the annexation,

despite plaintiffs' constitutional

challenge, on the basis of the following

_ Po

governing principles:

Municipal corporations are

political subdivisions of the

state, created as convenient

agencies for exercising such of

the governmental powers of the

state as may be intrusted to

them. For the purpose of

executing these powers properly

and efficiently they usually

are given the power to acquire

and manage personal and real

property. The number, nature

and duration of the powers

conferred upon these corpora-

tions and the territory over

which they shall be exercised

rests in the absolute discretion

of the state. Neither their

charters, nor any law conferring

governmental powers, or vesting

in them property to be used for

governmental purposes, or

authorizing them to hold or

manage such property, or

exempting them from taxation

upon it, constitutes a contract

with the state within the mean-

ing of the Federal Constitution.

The state, therefore, at its

pleasure may modify or withdraw

all such powers, may take with-

out compensation such property,

hold in itself, or vest it in

other agencies, expand or contract

the territorial area, unite the

whole or a part of it with

another municipality, repeal

the charter and destroy the

corporation. All this may be

done, conditionally or uncondi-

tionally, with or without the

aii

consent of the citizens, or even

against their protest. In all

of these respects the state is

supreme, and its legislative

body, conforming its action to

the state Constitution, may do

as it will, unrestrained by any

provision of the Constitution of

the United States. Although the

inhabitants and property owners

may, by such changes, suffer

inconvenience, and their property

may be lessened in value by the

burden of increased taxation,

or for any other reason, they have

no right, by contract or

otherwise, in the unaltered or

continued existence of the

corporation or its powers, and

there is nothing in the Federal

Constitution which protects them

from these injurious consequences.

The power is in the state, and

those who legislate for the

states are alone responsible for

any unjust or oppressive

exercise of it. Id. at 178-79.

Thus, in Hunter, this Court made it

absolutely clear that the extension of

municipal boundaries was a matter governed

by state rather than federal law.

Petitioners have gone to great

lengths in an effort to create the

illusion that the legal principles

supporting Hunter "have long since been

~_

overruled and that, as a consequence,

Hunter itself has lost much of its pre-

cedential force." (Petition, p. 15).

Their theory as to Hunter's demise is

contradicted by two recent decisions of

this Court reaffirming Hunter.

In Gomillion v. Lightfoot, supra,

this Court affirmed the basic principles

of Hunter. While the Supreme Court

originally decided to hear that case in

order to consider issues under both the

Fourteenth and Fifteenth Amendments, its

decision was based solely upon the Fifteenth

Amendment (voting rights denied on the

basis of race). In doing so, the

Gomillion Court expressly held:

Thus, a correct reading

of the seemingly unconfined

dicta of Hunter and kindred

cases is not that the State

has plenary power to manipu-

late in every conceivable way,

for every conceivable purpose,

the affairs of its municipal

corporations, but rather that

the State's authority is

unrestrained by the particular

=20~

xD

prohibition of the Constitution

considered in those cases. 364

U.S. at 344 (emphasis added).

Gomillion expressly recognizes Hunter

to be good law. Gomillion expressly recog-

nizes that Hunter holds that the Fourteenth

Amendment's Due Process Clause does not

apply to annexations by municipal corpora-

tions and re-affirms that holding. The

proposition bears restatement: Gomillion

expressly affirms Hunter's holding that a

state's authority to modify the boundaries

of its political subdivisions is

"unrestrained" by the Fourteenth Amendment's

Due Process Clause.

The Gomillion opinion makes it clear

that its decision in reference to the

Fifteenth Amendment does not alter the

Hunter decision as to the application of

the Fourteenth Amendment -- ". .. [I]f

one principle clearly emerges from the

numerous decisions of this Court dealing

with taxation, it is that the Due Process

«ji-«

Clause affcrds no immunity against mere

inequalities in tax burden, nor does it

afford protection against their increase

as an indirect consequence of a State's

exercise of its political power." Id.

at 343. "When a State exercises power

wholly within the domain of state

interest, it is insulated from federal

judicial review." Id. at 347.

The constitutional principles

established by Hunter were most recently

reaffirmed by this Court in Holt Civic

Club v. City of Tuscaloosa, supra. While

Petitioners have quoted one statement from

Holt out of context suggesting that Hunter

has been "qualified by later cases"

(Petition, p. 31), they fail to recognize

that Holt represents a strong affirmation

of the underlying principle that the

circumstances presented by this case raise

no issue of Fourteenth Amendment due

process rights.

ai 2eo

In Holt, the plaintiff organization

challenged a state statute authorizing

municipalities to exercise certain powers

over persons and property within three

miles of their city limits. Persons

residing within the affected extra-

territorial area could not vote for the

city's elected officials. The Supreme

Court dismissed the challenge to the

state statute on the grounds that it

lacked substantive merit as it "alleged

no claim cognizable under the United

States Constitution." Id. at 66.

In reaching its determination in

Holt, this Court held that persons within

the extraterritorial area did not have the

constitutional right to vote on municipal

policies affecting the persons and property

within the subject area. Id. at 69-70.

"Thus stripped of its voting rights attire,

the equal protection issue presented by

appellants becomes whether the Alabama

=} Se

statutes giving extraterritorial force to

certain municipal ordinances and powers

bear some rational relationship to a

legitimate state purpose." Id. at 70.

In this regard, the Court noted

the following:

Government, observed

Mr. Justice Johnson, ‘is the

science of experiment,' Anderson

v. Dunn, 6 Wheat 204, 226 (1821),

and a State is afforded wide

leeway when experimenting with

the appropriate allocation of’

state legislative power. This

Court has often recognized that

political subdivisions such as

cities and counties are created

by the State ‘as convenient

agencies for exercising such of

the governmental powers of the

State as may be entrusted to

them'. Hunter v. Pittsburgh,

207 U.S. 161, 178. See also,

e.g., Sailors v. Board of

Education, 387 U.S., at 108

(1967); Reynolds v. Sims, 377

U.8. 533, 375 (1964). In

Hunter v. Pittsburgh, the Court

discussed at length the relation-

ship between a State and its

political subdivisions,

remarking: ‘The number,

nature and duration of the

powers conferred upon [muni-

cipal] corporations and the

territory over which they shall

be exercised rests in the

elée

absolute discretion of the State.'

Ibid. While the broad statements

as to state control over munici-

pal corporations contained in

Hunter have undoubtedly been

qualified by ‘the holdings of

later cases such as Kramer v.

Union Free School Dist., supra,

we think that the case continues

to have substantial constitutional

Significance in emphasizing the

extraordinarily wide latitute

that States have in creating

various types of political

subdivisions and conferring

authority upon them. Holt at

71 (footnote omitted).

Thus, it is clear that Hunter is alive

and well, and is still the governing law

as to the questions involved in this

case.

This Court concluded "that

Alabama's police jurisdiction statutes

violate neither the Equal Protection

Clause nor the Due Process Clause of the

Fourteenth Amendment." Id. at 75.

Obviously, the same holding is appropriate

in this case. As in Holt, the state

statute challenged by Petitioners is a

reasonable exercise of North Carolina's

«13=

power to provide for municipal government.

Therefore, pursuant to Hunter and Holt,

the statute is not subject to consititutional

challenge. See also, Ohio Bureau of

Employment Services v. Hodory, 431 U.S.

471, 489 (1977) ("The statute does not

involve any discernable fundamental

interest or affect with particularity any

protected class ... [T]he test of con-

stitutionality, therefore, is whether the

statute has a rational relation to a

legitimate state interest.")

B. The Law of the Fourth Circuit Is

Consistent With the Law of the

Supreme Court.

The decision of the Fourth Circuit

in this case, Baldwin v. City of Winston-

Salem, supra, and Berry v. Bourne, supra,

follow the principles of Hunter,

Gomillion and Holt Civic Club. Respondents

respectfully submit that the Petitioners

have misrepresented the Fourth Circuit

-16-

decision in Baldwin when they say "because

the Fourth Circuit in this case held that

arbitrary and capricious annexation did

not violate federal due process, it also

held that there is no federal constitutional

right to have state courts hear challenges

to arbitrary and capricious annexation

decisions." (Petition, op. 33-34). The

court's conclusion was based on its

determination that the Fourteenth Amendment

is not violated where, as in the case

before the court, the "proposed annexation

does not impinge on fundamental rights or

create suspect classifications... ."

Indeed, the Fourth Circuit's conclusion

in this regard was based on the fact that

the allegations of the Plaintiffs in

Baldwin, even if true, did not raise a

colorable claim under the Fourteenth

Amendment. Baldwin at 135. As the

Fourth Circuit pointed out, the

exceptions to Hunter which have been

at F=

recognized by the United States Supreme

Court in Gomillion and Holt have not been

alleged in this case. "No suspect classi-

fication or fundamental right is therefore

implicated and the ordinances thus do not

abridge the Fourteenth Amendment to the

United States Constitution." Baldwin at

135.

Support for the Fourth Circuit's

decision in Baldwin is also found in the

decision of Judge McMillan of the Western

District of North Carolina in Raintree

Homeowners Association v. Charlotte, 543

F.Supp. 625 (W.D.N.C. 1982), one of the

four cases consolidated in the Fourth

Circuit. The Federal District Court in

that case stated:

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 of action. N.C.G.S.

-18<-

160A-50(f) and 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 unreasonable-

ness. However, the effect of

the statute is to give sub-

stantial protection against

arbitrary, capricious and

unreasonable acts by the City.

543 F.Supp. at 629.

The governing decision in the Fourth

Circuit prior to Baldwin, Berry v. Bourne,

supra, properly construed the relationship

between Hunter and Gomillion. Hunter, the

Berry Court said:

has been held to foreclose

attacks on a state procedure

specifically on either due

process or equal protection

grounds. The single exception

to the rule, [citing Gomillion

in a footnote] which subsequent

decisions have established, is

confined to challenges resting

on alleged racial discrimination.

We are not concerned here with a

racial claim, only with an equal

protection claim. Berry at

423-24 (footnotes omitted).

Thus in Berry, as in other decisions of the

-19<

Fourth Circuit, involuntary annexations

have been upheld as being consistent with

the U.S. Constitution. See Citizens Com-

mitted to Oppose Annexation v. City of

Lynchburg, 528 F.2d 816 (4th Cir.),

application denied 423 U.S. 1043 (1976);

Garren v. City of Winston-Salem, 463 F.2d

54 (4th Cir.), cert. denied 409 U.S. 1039

(1972); Thompson v. Whitley, 344 F.Supp.

480 (E.D.N.C. 1972) (three-judge district

court). “

*petitioners allege (Petition, p. 32,

n.5) a "division in the circuits" based on

Doyle v. Municipal Commission of Minnesota

340 F.Supp. 841 (D. Minn.), aff'd,468 F.2d

620 (8th Cir. 1972); and Adams v. City o1

Colorado Springs, 308 F.Supp. 1397, 1405

(D.Colo.), aff'd 399 U.S. 901 (1970).

Respondents note that these decisions are

not federal court of appeals decisions as

called for under Rule 17.1(a) of the

Revised Rules of the Supreme Court of the

United States. Doyle considered the

reasonableness of statutory provisions for

judicial review. Doyle at 844. Adams

dealt with the reasonableness of the statu-

tory classification of areas for annexation.

Adams at 1403-04. In both cases, the deci-

Sions of the court were to uphold statutory

provisions. Respondents respectfully submit

that these decisions are not inconsistent

with the position of the Fourth Circuit.

=26=

II. THE NORTH CAROLINA SUPREME COURT DOES

REVIEW ANNEXATIONS TO DETERMINE

REASONABLENESS AND COMPLIANCE WITH DUE

PROCESS AS WELL AS OTHER CONSTITUTIONAL

STANDARDS.

Petitioners' request for review by this

Court is also based on their assertion that

under North Carolina law judicial review

of annexations is limited and that the North

Carolina Supreme Court will not review the

constitutionality or reasonableness of

municipal annexations. (Petition, pp.

32-33) The Petitioners are simply

incorrect with reference to this basic

premise. It is very clear from the deci-

sions of the North Carolina Supreme Court

that annexations are subject to judicial

review for alleged constitutional infirmi-

ties, including the general complaints of

unreasonableness raised by Petitioners.

The first decision concerning the

constitutionality of the annexation statutes

=2i-

at issue in this case considered all manner

of constitutional questions including whether

those statutes violated due process of law

under the Fourteenth Amendment of the

U.S. Consititution. In Re Annexation

Ordinance No. 866, 253 N.C. 637, 640-41,

117 S.E.2d 795, 798 (1961). In this semi-

nal decision, it was held that the pro-

cedures provided by the statutes are

substantial ones which protect the rights

of newly-annexed citizens.

It certainly cannot be

considered a mere shell or

ritual of conformity when the

governing body of a municipality,

in good faith, obtains all the

information required by the Act,

with respect to the character

of the area or areas to be

annexed, the dQ sity of the

resident population therein,

the extreme boundaries thereof,

and the percentage of such

boundaries which are adjacent

or contiguous to the munici-

pality's boundaries, which

must be at least one-eighth;

and further provides or makes

provision to extend all the

governmental services to the

newly annexed area or areas;

comparable to the services

=22@

provided for the residents

within the city prior to annexa-

tion of the new area or areas.

253 N.C. at 647, 117 &.E.2d

at 802.

In view of its judicial review of and

interpretation of the statutes, the North

Carolina Supreme Court held that they

were not in violation of due process.

The petitioners contend

that by reason of these annexa-

tions in the manner in which

they have been brought about,

they have been deprived of

their liberty and property

without due process of law,

in violation of Article I,

Section 17 of the Consitution

of North Carolina and the

Fourteenth Amendment to the

Constitution of the United

States. The record in these

proceedings does not support

the petitioners' contention

in this respect. Certainly it

would seem that they do not

desire to have their respec-

tive properties subject to the

levy of city taxes. Even so,

where additional territory is

annexed in accordance with

the law, the fact that the

property of the residents in

such area will thereby

become subject to city taxes

levied in the future, does not

constitute a violation of the

due process clause of the

=23<

of the State and Federal

Constitutions. 253 N.C. at

651-52, 117 S.E.2d at 805.

With respect to whether or not the

North Carolina court will review "“reason-

ableness", the North Carolina Supreme

Court said in Moody v. Carrboro, 301

N.C. 318, 271 S.E.2d 265 (1980): "The

review (of annexations) is afforded pursuant

to G.S. 160A-50 and serves as a safe-

guard against unreasonable and arbitrary

action by the annexing municipality."

The principle that compliance with a

constitutional statute established consti-

tutional reasonableness was recognized by

Judge McMillan in Raintree Homeowners

Association v. City of Charlotte, supra,

one of the cases joined in this Petition.

N.C.G.S. 160A-50(f) and 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 arbitrari-

ness, cCapriciousness or unreason-

ableness. However, the effect of

-24-

the statute is to give

substantial protection against

arbitrary, capricious and

unreasonable acts by the city.

Id. at 629.

The willingness of the North Carolina

Supreme Court to consider constitutional

questions other than "reasonableness" which

are properly raised in state court pro-

ceedings is fully illustrated by its

consideration of the same annexations

which are at issue in the Baldwin case.

In Re Annexation Ordinance #D-21927, 303

N.C. 220, 278 S.E.2da 224 (1981). In that

case, the North Carolina Supreme Court

considered several constitutional questions

and addressed generalized grievances

concerning the "reasonableness" of the

annexations and held: (1) that the

annexation statutes were not an unconsti-

tutional delegation of authority by the

state to the governing boards of munici-

palities; (2) that the statutes were not

=28-

unconstitutionally vague; (3) that the fact

that persons residing within the annexed

areas did not get to vote on the matter

did not violate either due process or

equal protection; (4) that the residents

of the annexed areas were protected in their

rights to receive municipal services such

that no constitutional questions were at

issue in that regard; (5) that unilateral

annexation was not unconstitutional as

"taxation without representation" pursuant

to either due process or equal protection

guarantees; and, (6) that the annexation

statutues were not unconstitutional on the

grounds that judicial review if provided

by a judge sitting as trier-of-fact, rather

than by way of a jury trial. 303 N.C. at

224-30, 278 S.E.2d at 228-30.

It is obvious that the North Carolina

Supreme Court was more than willing to

review, and in fact did review, constitu-

tional questions raised in reference to

=26<

the annexations involved in the Baldwin

case. Moreover, it is apparent from that

Opinion and numerous other cases that the

North Carolina Supreme Court has frequently

reviewed these issues in annexation cases.

For example, the state courts have, consi-

dered the applicability of due process

guarantees of the Fifth Amendment of the

U.S. Consititution, in addition to those

guarantees provided by the Fourteenth

Amendment. E.g., Moody v. Town of Carrboro,

Supra. The state courts have applied an

equal protection analysis in appropriate

instances (unlike the annexations herein

challenged). E.g., Texfi Industries, Inc.

v. City of Fayetteville, 301 N.C. 1, 269

S.E.2d 142 (1980). The North Carolina

Supreme Court has demonstrated its

willingness to declare annexations to be

invalid. E.g., Hawks v. Town of Valdese,

299 N.C. 1, 261 S.E.2d 90 (1980); see

also, Gaskill v. Costlow, 270 N.C. 686,

=27e

155 S.E.2d 148 (1967). The North Carolina

Supreme Court will consider whether an

annexation based solely upon the desire

to generate revenue is invalid. See, In

Re Ordinance of Annexation No. 1977-4,

296 N.C. 1, 19, 249 S.E.2d 698, 708 (1978).

Further, consistent with the foregoing

authority, the state court will consider

impropriety in the annexation process

itself if allegations of the same are

supported by "competent and substantial

evidence". In Re Annexation Ordinance

Adopted by the City of Charlotte, 284 N.C.

442, 452, 202 S.E.2d 143, 149 (1974)

(challenging an annexation on grounds that

"the City ‘acted arbitrarily, capriciously,

and unreasonably in that it did not uni-

formly apply the same standards throughout

the entire Annexation Area'"). In the

Charlotte case cited above, the North

Carolina Supreme Court found the annexa-

tion of petitioner's land to be invalid

=280

and reversed the inclusion of petitioner's

lands within the annexed area on the basis

of an unreasonable application of the

annexation statutes. 284 N.C. at 457, 202

S.E.2d at 152.

It is clear from these opinions that

the statutory annexation requirements

are carefully reviewed to ensure compliance

with constitutional principles.

CONCLUSION

Respondents respectfully submit that

the per curiam decision of the United

States Court of Appeals for the Fourth

Circuit is consistent with long-standing

principles of law articulated by the

United States Supreme Court. The challenged

decision of the Fourth Circuit creates no

division among the Circuit Courts. Also,

the constitutionality of the North Carolina

annexation statutes and the review afforded

in state court under those statutues has

been established in both state and

=29a

federal courts. As the Federal District

Courts and Fourth Circuit Court of Appeals

recognize in this case, Petitioners'

allegations even if found to be true would

not entitle them to relief under the

due process clause. For the reasons

set forth above, Respondents respectfully

submit that the writ of certiorari to the

United States Court of Appeals of the

Fourth Circuit should be denied.

Respectfully submitted,

Counsel of Reco

Womble, Carlyle, Sandridge

& Rice

2400 Wachovia Building

Post Office Drawer 84

Winston-Salem, N.C. 27102

(919) 721-3619.

Ronald G. Seeber

Ralph D. Karpinos

-30-

City Attorney's Office

Post Office Box 2511

Winston-Salem, N.C. 27102

(919) 727-2056

Henry W. Underhill

H. Michael Boyd

City Attorney's Office

City of Charlotte

500 East Trade Street

Charlotte, N.C. 28202

(704) 374-2254

Attorneys for Respondents

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