# Opposition — Baldwin v. City of Winston-Salem

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## Record

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

## Text

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

=3l=

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0567%3A2. Public record. Not legal advice.