Amicus Brief — Baldwin v. City of Winston-Salem

No. 83-572

IN THE

Supreme Court of the United States

OCTOBER TERM, 1983

FLOYD C. BALDWIN, et ai.,

Petitioners,

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

Respondents.

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Fourth Circuit

MOTION OF NORTH CAROLINA FARM BUREAU

FEDERATION, INC,, ET AL., FOR LEAVE TO FILE

BRIEF AMICI CURIAE

AND

BRIEF OF NORTH CAROLINA FARM BUREAU

FEDERATION, INC., ET AL., AS AMICI CURIAE

IN SUPPORT OF PETITION FOR

WRIT OF CERTIORARI

Eugene Gressman

School of Law

University of North Carolina

Chapel Hill, N.C. 27514

(919) 962-4120

Attorney for Amici Curiae

North Carolina Farm Bureau

November 10, 1983 Federation, Inc., et al.

a ee ee ey

THE CASILLAS PRESS, INC.~1717 K Street, N W.-Weshington, OD. C.~223-1220

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.

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Fourth Circuit

Motion of North Carolina Farm

Bureau Federation, Inc., et al.,

for Leave to File Brief Amici Curiae

The North Carolina Farm Bureau Fed-

eration, Inc., et all/ move this Court

l/ The organizations filing this

Motion as amici curiae are: North

[Footnote continued]

——

for leave to file the attached brief

amici curiae pursuant to Rule 36.1 of

{Continued from previous page]

Carolina Farm Bureau Federation,

Inc.; North Carolina State Grange;

Winston-Salem Chapter of NAACP;

Citizens Opposed to Annexation by

Valdese; Forsyth Citizens Opposing

Annexation, Inc. -~- Chapter II;

Franchised Garbage Collectors of

Forsyth County; Shasta Lane Citi-

zens Opposing Annexation; North

Albemarle Community Association;

Rural Gilford TEA Party; Opponents

of Forced Annexation, Inc.; New

Hanover Right to Vote Association;

Crowfield Condominium Association;

Western Carolina Industries, Inc.;

Ballentree Homeowners Association,

Inc.; South Side Shopping Center;

Skyline Sanitary Service; Save Our

Suburbs; N.C. League of Concerned

Citizens; Concerned Citizens

Against Involuntary Annexation;

Citizens For Fair Growth; Gaston

County Taxpayers Association; Burke

County Property Owners and

Taxpayers Association; Little

Yellow Mountain Property Owners

Association; People of Oak Hill

Against Forced Annexation;

Cumberland County Fire Chiefs Asso-

ciation; Opponents of Forced

Annexation.

@ ii -

the Rules of the Court. (Respondents

City of Winston-Salem, N.C., et al.,

have refused to consent to the filing of

a brief amici curiae.) Amici organiza-

tions represent or serve more than

460,000 North Carolina citizens who

live, work, or own property in areas

recently annexeG, currently being

annexed, or threatened with annexation

by North Carolina cities, or who other-

wise are or would be affected by such

annexations.

These organizations and the persons

they represent and serve, which are

described in Appendix A, support the

petition for writ of certiorari because

the judicial review provision of the

North Carolina annexation statute --

N.C. Gen. Stat. § 160A-50, found at

Appendix F of the petition for writ of

- iii -

certiorari -- prohibits amici from

raising significant federal constitu-

tional issues in North Carolina state

court proceedings challenging

annexations. For example, persons

represented by amicus North Carolina

Farm Bureau Federation, Inc., cannot

assert in North Carolina state courts

that annexations that arbitrarily engulf

vast amounts of farm land undeveloped

for urban purposes are unconstitutional

under the due process clause of the

Fourteenth Amendment. Moreover, members

of amicus Winston-Salem Chapter of NAACP

may not attack an annexation in a North

Carolina state court for being motivated

by a racially discriminatory purpose.

In addition, under the opinion of the

Court of Appeals for the Fourth Circuit

in the case before this Court, persons

- iv-

cannot challenge an annexation in

federal court on the ground that it is

arbitrary and capricious and thus uncon-

stitutional. North Carolina citizens,

including those amici represent, are

thus left to oppose sta’ e annexations

stripped of the ability to raise

fundamental constitutional issues.

As demonstrated by the number of

amici supporting the petition for writ

of certiorari, there is w despread con-

cern over North Carolina's unconsti-

tutional procedure for reviewing

annexations. This Court should grant

amici's request to file the attached

brief to allow them to express their

concern and to explain why fundamental

constitutional doctrine requires that

}

the petition for writ of certiorari be

issued.

November 10,

Respectfully submitted,

Eugene Gressman

School of Law

University of North Carolina

Chapel Hill, N.C. 27514

(919) 962-4120

Attorney for Amici Curiae

North Carolina Farm

Bureau Federation, Inc.,

et al.

1983

- vi-o-

QUESTIONS PRESENTED FOR REVIEW

he Should this Court limit the

broaG dicta in Hunter v. City of

Pittsburgh, which the Fourth Circuit

construed to effectively make the due

process clause of the Fourteenth

Amendment inapplicable to municipal

annexations?

2. Does the due process clause of

the Fourteenth Amendment to the United

States Constitution prohibit annexations

by municipalities that are arbitrary and

capricious?

36 Does the judicial review pro-

vision of the North Carolina annexation

Statute violate the due process clause

on its face and as applied to the

annexations before the Court because

this provision does not allow state

court review of significant

- vii -

constitutional issues -- e.g., whether

an annexation is arbitrary and

capricious?

- wili -

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW .... vii

TABLE OF AUTHORITIES .....ccecceeee X

INTEREST OF AMICI CURIAE .......... 1

REASONS FOR GRANTING THE WRIT ..... 2

NE 5 icin cyiassnncavecunies. an

APPENDICES

ADDENGLRD A cocvncisececsescseer la

TABLE OF AUTHORITIES

Adams v. City of Colorado Springs,

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

aff'd, 399 U.8. SOL (1970) .cccceedl,lS

American Beauty Homes Corp. v.

Louisville, 379 S.W.2d

450 (Ky. Re Sedacebaeoeue es 60sueneeee

Avery v. Midland County,

390 UeBbe 474 et) §Seerrrrr rere ee

Baldwin v. City of Winston-Salem,

544 F.Supp. 123 (M.D.N.C. 1982)......6

Baldwin v. City of Winston-Salem,

a0 F.44 132 (4th Cir. 19GS) cccceseb"7

Berry v. Bourne,

S86 £7.26 422 (4th Cir. LD97TE)ccccesecsd?

Boddie v. Connecticut,

401 U.S. 371 TPE ti ikcae eceweeweeweul

Brewer v. City of Winston-Salem,

(UNFEPOTted) .ecccccccccccccccscccseec®

Butterworth v. Boyd,

12 Cal.2d 140, 82 P.2d 434

PROFS de wcwcevetscccevvciececsvesescene

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

Minnesota, 134 U.S. 418 (1890)...25-26

City of Birmingham v. Community

Fire District, 336 So. 2d 502

(Ala. BUFO ht 0e beteneteveseeeseoeesenn

Page

Columbus Board of Education v.

Penick, 443 U.S. 449 flo, ) ees?

Cooper v. Aaron,

358 U.S. l f. errr Tere eT Te ee ee

Crowell v. Benson,

285 Uses 22 CREE) 60 betes bbeenenenne

Doyle v. Municipal Commission of

Minnesota, 340 F.Supp. 841

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

626 (Oth Cir. 1972) ccceceee L9—-1] ,14-15

Florida ex rel. Davis v. City

of Stuart, 97 Fla. 283, 120

So. 335 8 | Perr rT rrr rrrTrerr: (ee

Food Town Stores v. City of

Salisbury, 300 N.C. 21,

Bee Memecee 222 (2968) ccccvccesesecsd™al

Garren v. City of Winston-Salem,

wee Poem SS (ER Cis. 1972) cccccsccslté

Gaskill v. Costlow,

270 N.C. 686, 155 S.E.2d 148

0 ey

Gomillion v. Lightfoot,

364 Uebe 339 Ph «oss 6¢&saes-s sees

Hayward v. Clay,

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

cert. denied, 439 U.S.

ee a cg sw bites» sca 0 ene eel

Holt Civic Club v. Cit

Tuscaloosa, 439 U.S. 60 Prrvere ¢.

- xi-

Page

Humphries v. City of Jacksonville,

300 N.C. 186, 265 S.E.2d 189

CEPOO Pewee ccececsseccecesoeceoceeeceae

Hunter v. City of Pittsburgh,

207 i # 161 (1907). .eeeeeeeeee se passim

P ~tado v. California,

io U.S. 516 Aree,

Ingraham v. Wright,

430 = & 65 ( MEAS Ge hbUb es pbeeeabesen

Johnson v. Robison,

415 U.S. 361 Co eee ere

In Re Annexation Ordinance,

303 N.C. 220, 278 S.E. 2d 224

CREE Raoeebeeeeebesescoessccoescntmae

Kel-Kan Investment Corp. v.

Village of Greenwood, 393 So. 2d

818 (La. Cte App. CO ery ees

Kendall v. Beiling,

245 Ky. 782, if S.W.2d 489

CAE Pech eeeseeesvecevesesececeusneeae

Kramer v. Union Free School District,

395 Dele 621 [epee sebeesecocceoeceecease

Logan v. Zimmerman Brush Co.,

_ 455 U.S. 422 Pit «éb¢ewhos ceeds Senme

Milliken v. Bradley,

418 AR 717 CAs elbcccccocevccecesecesae

- xii -

Page

Moody v. Town of Carrboro,

301 N.C. 318, 271 S.E.2d 265

CBPOeDesecccceceeeboceeescevceesoavean

Moorman v. Wood,

504 F.Supp. 467 (E.D. Ky.

Di Dehene6éeen Cobb bweeeecsncnedséeacene

Nebbia v. New York,

291 U.S. 502 Pt Miccinwsebebesebvasen

Nevada ex rel. Bibb v. City of

Reno, 64 Nev. 127, 178 P.2d

366 CREO Deeccesececoctoseeceeeheaagar

Ohio Valley Water Co. v. Ben

Avon Borough, 253 U.S. 287

CaPSU podvccccececccccccccecesceessawae

Plyler v. Doe, 451 U.S. 968

PPT rererrreerererrrrrirry? |.

Portland General Electric Co. v.

City of Estacada, 194 Or. 145,

Se Bee, Bret |) ers ee

Pyle v. City of Shreveport,

215 La. 57 40 So.2d 235

Ol) RATT err er ererrererreerrirry |.

Raintree Homeowners Ass'n v. City

of Charlotte, 543 F.Supp. 625

(W.D.N.C. Deptteseteseeeoeesebaueouven

Ralpho v. Bell,

569 F.2d (D.C. Circ.

oo) PPA PrrrrrTrrerrrrirrirre try |

- xiii -

Page

Reynolds v. Sims,

377 1 7 533 CI9SS4 ceoccccesvsanswtenne

St. Joseph Stock Yards Co. v.

United States, 298 U.S. 38

CLPSO) oeessecccervesenvééesaeeessene

Slochower v. Board of Higher Education

Of New York, 350 U.S. 551 (1956).....9

Standard Computing Scale Co. v.

Parrell, 269 UcOe DIL CIFSPhccvcccsene

State v. Northern Pac. Ry. Co.,

229 Minn. 312, 39 N.W.2d 752

CASED Dcwccetesccevenstéesneceseckbeusvene

Taylor v. City of Raleigh,

290 N.C. 608; 227 S.B.2d 576

(1976) cccccccccccccsccceccccccccesceenl

Texas ex rel. Walker v. City

Of Gladewater, 139 S.W.2d 283

(Tex. Civ. App. 1940 )ccccoscvsceocsague

Ungar v. Smith,

667 F.2d 188 (D.C. Cir. 1981)....27=-28

West Point Island Civic Ass'n v.

own She Committee, 54 N.J. 339, 255

A.2d eee dee6 essen eke see

Wolff v. McDonnell,

418 O. 539 C2074) ccvovccecscsevencnuun

- xiv -

Page

Statutes

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

N.C. Gen. Stat. § lL60A-47.....e ee eee eo l8

N.C. Gen. Stat. § l60A-48...ccceccceeeld

N.C. Gen. Stat. § 160A-50.........-passim

No. 83-572

In the

Supreme Court of the United States

October Term, 1983

FLOYD C. BALDWIN, et al.,

Petitioners,

Ve

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

Respondents.

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Fourth Circuit

Brief of North Carolina Farm

Bureau Federation, Inc., et al.,

As Amici Curiae in Support of Petition for

Writ of Certiorari

INTEREST OF AMICI CURIAE

The interest of the North Carolina

Farm Bureau Federation, Inc., et al., as

amici curiae is set forth in the Motion

for Leave to File Brief Amici Curiae,

pp. i-vi, Supra.

REASONS FOR GRANTING THE WRIT

l. The Lower Courts Ruling

That The Due Process

Clause Of The Fourteenth

Amendment Does Not Prohibit

Arbitrary And Capricious

Annexations Presents An

Important Constitutional

Question.

Before the Court are rulings in

four cases challenging annexations by

Winston-Salem or Charlotte, North

Carolina. Plaintiffs alleged facts

demonstrating that the annexations are

arbitrary, capricious, unreasonable, and

an abuse of discretion, and thus violate

the Fourteenth Amendment's due process

clause for some or all of the following

reasons:

(1) Amnexation boundarics arbi-

trarily have been gerrymandered (a) to

include valuable industrial property or

huge amounts of agricultural land or

other property not developed for urban

purposes, whose annexation standing

alone was impermissible, (b) to exclude

other areas needing city services that

have lower tax bases or would be more

expensive to service (in one instance

creating a virtual island of unin-

corporated land within a city), (c) to

exclude tracts that qualify for

annexation much closer to the city

center than areas annexed, and (d) to

exclude areas that are integral parts of

the areas annexed,

(2) The annexations bring into the

city areas with services superior to

those the city provides, which did not

need city services.

(3) They were motivated solely or

primarily by a desire to increase the

city's tax revenues or revenue~sharing

funds.

(4) There has been an attempt to

annex territory that, if it belongs in

any municipality, should be in another

one.2/

Moreover, plaintiffs alleged that,

under the judicial review provision of

the North Carolina annexation statute,

N.C. Gen. Stat. § 160A-50, the

annexations could not be subjected to

the judicial review required by the due

process clause be. wuse fundamental

=~

—~—

2/ Comparison of the complaints with

the Fourth Circuit's opinion will

demonstrate that the Court of

Appeals mischaracterizes plain-

tiffs' allegations in these

regards.

ne

constitutional questions -- i.e.,

whether defendants' actions were arbi-

trary and thus offended due process

principles -- could not be examined by

the state courts.

All plaintiffs moved for partial

summary judgment on this latter claim,

setting forth supporting material facts

that essentially were undisputed. In

each case, the district court denied

plaintiffs' motion for partial summary

judgment and dismissed the suit.

Relying on Berry v. Bourne, 588 F.2d 422

(4th Cir. 1978), the district courts

ruled that Hunter v. City of Pittsburgh,

207 U.S. 161 (1907), "“foreclose[d]”

attacks on municipal annexations under

the due process clause and that plain-

tiffs thus had failed to state a claim

upon which relief can be granted.

Baldwin v. City of Winston-Salem, 544 F,

Supp. 123, 124 (M.D.N.C. 1982); Raintree

Homeowners Ass'n v. City of Charlotte,

543 F.Supp. 625, 627-28 (W.D.N.C. 1982);

Brewer v. City of Winston-Salem,

(unreported); Appendix D to petition for

certiorari (hereinafter "Cert. App.

*943/

The Court of Apoeals for the Fourth

Circuit affirmed these rulings, relying

mainly on Hunter. Baldwin v. City of

Winston-Salem, 710 F.2d 132 (4th Cir.

3/ The district courts made no factual

findings that the annexations at

issue were not arbitrary and

capricious. Nor did they conclude

that the allegations were

insufficiemt to allege arbitrary

annexations. Such a finding would

have been impermissible for

numerous state cases have found

arbitrary conduct in situations

quite similar to those at bar.

See, e.g., cases cited infra

Ppp. 1 = ’ 29.

1983); Cert. App. A. After recognizing

that the Fourteenth Amendment prohibits

annexations that discriminate on racial

grounds or against a class of voters,

the court said:

We think it plain...

that the exercise by a state

of the discretion accorded to

it in structuring its internal

political subdivisions is sub-

ject to judicial review under

the Fourteenth Amendment only

where that exercise involves

the infringement of fundamen-

tal rights or the creation of

Suspect classifications.

710 F.2d at 135; Cert. App. A,

l4a-15a.

Finding "({n]o ... fundamental right

«++ implicated" in this case, the court

said:

Given our conclusion that the

Fourteenth Amendment is not

violated where, as here, the

proposed annexation does not

impinge on fundamental rights

Or create suspect classifica-

tions, 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 arbi-

trary and capricious

annexation decisions; the

availability of such review is

solely a matter of state law.

710 F.2d at 135 n.3 (emphasis added);

Cert. App. A, l6a n.4.

The conclusion that the due process

Clause of the Fourteenth Amendment does

not prohibit arbitrary and capricious

annexations is wholly at odds with basic

constitutional doctrine announced by

this Court. It is commonplace law that

the Fourteenth Amendment prohibits arbi-

trary state action, whether or not the

right involved is considered to be

"fundamental." See Ingraham v. Wright,

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

McDonnell, 418 U.S. 539, 558 (1974);

Slochower v. Board of Higher Education

of New York, 350 U.S. 551 (1956); Nebbia

v. New York, 291 U.S. 502 (1934). In

Slochower, 350 U.S. at 559, the Court

recognized that Mr. Justice Cardozo had

viewed "the ‘protection of the individ-

ual against arbitrary action’... as

the very essence of due process. Ohio

Bell Telephone Co. v. Public Utilities

Commission, 301 U.S. 292, 302 [1937]."4/

Moreover, "the right to due process

reflects a fundamental value in our

American Constitutional system." Boddie

v. Connecticut, 401 U.S. 371, 374

(1971). The Fourth Circuit's conclusion

4/ In Wolff v. McDonnell, 418 U.S. at

558, this Court said that "(t]he

touchstone of due process is pro-

tection of the individual against

’ arbitrary action of govern-

ment. .. .”

- 10 -

that there is no “fundamental” due

process right to be free from arbitrary

conduct simply is not tenable.

It is no answer to say that the due

process clause applies only to matters

other than annexations. This Court

repeatedly has affirmed that both the

due process and the equal protection

clauses apply to "every" state action,

including actions by municipalities.

E.g., Plyler v. Doe, 451 U.S. 968

(1982); Avery v. Midland County, 390

U.S. 474, 480 (1968) .5/

5/ See also Columbus Board of

Education v. Penick, 443 U.S. 449,

457 n.5 (1979); Milliken v.

Bradley, 418 U.S. 717, 744 (1974);

Cooper v. Aaron, 358 U.S. 1, 16-17

(1958); Standard compaein Scale

571, 577

Co. v. Farrell, 249 U.

(1919) (Brandeis, J. a “More

specifically, several federal

cases -- Moorman v. Wood, 504 F.

Supp. 467, 473, 477 (E.D. hy.

1980); Doyle v. Municipal

[Footnote continued]

- ll -

The out-dated case of Hunter v.

{Continued from previous page]

Commission of Minnesota, 340 F.

Supp. 841, 844 (D. Minn.), aff'd,

468 F.2d 620 (8th Cir. 1972); and

Adams v. City of Colorado Springs,

308 F. Supp. 1397, 1405 (D. Colo.),

aff'd, 399 U.S. 901 (1970) -=-

expressly state that annexations

and annexation procedures are gov-

erned by due process principles and

that arbitrary annexations run

afoul of the Fourteenth Amendment.

Various authoritative, well-

reasoned state cases also have held

that an arbitrary annexation

violates the due process clause of

the Fourteenth Amendment. See

Nevada ex rel. Bibb v. City of

Reno, 64 Nev. 127, 178 P.2d 366,

368 (1947) ("an annexation which is

arbitrary, unreasonable, unjust and

unnecessary will be held invalid");

Texas ex rel. Walker v. City of

Gladewater, 139 S.W.2d 283, 286

(Tex. Civ. App. 1940) (attempted

annexation was "arbitrary, unrea-

sonable and violative of the

inhibitions of [the] Federal Con-

Stitution .. . amend. 14.");

Portland General Electric Co. v.

City of Estacada, 194 Or. 145, 241

P.2d 1129, 1135 (1952); Florida ex

rel. Davis v. City of Stuart, 97

Fla. 283, 120 So. 335, 345 (1929).

«» 329 «

City of Pittsburgh, 207 U.S. 161 (1907),

upon which the Fourth Circuit princi-

pally relied, no longer mandates the

conclusion that the due process clause

does not prohibit an arbitrary

annexation. Hunter actually adjudicated

a rather narrow issue: whether the cit-

izens of one municipality may defeat by

their vote annexation by another munici-

pality. However, the Hunter Court, in

dicta, broadly declared that annexation

by a city or town is purely a state

political matter, entirely within the

power of the state legislature to

regulate, and that a state "at its

pleasure" without constitutional

restraints could alter municipal bound-

aries. 207 U.S. at 178-79. It was

those dicta that the Fourth Circuit

elevated into a constitutional

principle.

- 13-

This Court recognized in Holt Civic

Club v. City of Tuscaloosa, 439 U.S. 60,

71 (1978), that -- while Hunter remains

Significant in emphasizing the

considerable latitude that states have

in structuring their political

subdivisions -- "the broad statements as

to state control over municipal

corporations contained in Hunter have

undoubtedly been qualified by the

holdings of later cases" such as Kramer

v. Union Free School District, 395 U.S.

621 (1969) (emphasis added) .6/

Another case restricting Hunter is

Gomillion v. Lightfoot, 364 U.S. 339

(1960), which declares that a municipal

6/ Kramer held that the Fourteenth

Amendment's equal protection clause

prohibits discrimination where

voting rights are concerned.

» 14 =

boundary change "lies within the scope

of relevant limitations imposed by the

United States Constitution.” 364 U.S. at

344-45. This case, which invalidated

discriminatory boundary adjustments in

Tuskegee, Alabama, was decided under the

Fifteenth, not the Fourteenth,

Amendment. Nonetheless, numerous

courts, including this Court, have rec-

ognized that Gomillion's broad language

pertains to constitutional limitations

found in the Fourteenth Amendment. See,

e.g., Reynolds v. Sims, 377 U.S. 533,

566 (1964); Hayward v. Clay, 573 F.2d

187, 190 (4th Cir.), cert. denied, 439

U.S. 959 (1978); Garren v. City of

Winston-Salem, 463 F.2d 54, 56 (4th Cir.

1972); Doyle v. Municipal Commission of

Minnesota, 340 F. Supp. 841, 843 (D.

Minn.), aff'd, 466 F.2d 620 (8th Cir.

- 15 -

1972); Adams v. City of Colorado

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

of Birmingham v. Community Fire

District, 336 So. 2d 502, 507 (Ala.

1976). That Hunter's sweeping dicta no

longer constitute good law is establish-

ed in great detail in the petition for

certiorari in the present case (pp.

13-32).

In sum, the Fourth Circuit's con-

clusion that the due process clause does

not prevent arbitrary municipal

annexations is contrary to extant con-

stitutional law set forth in “modern”

decisions of the Court. Moreover, the

Fourth Circuit's decision conflicts with

decisions in other circuits that plainly

recognize that an arbitrary, capricious

a.nexation violates the due process

- 16 -

Clause. See supra note 5, at 10-ll.

For these reasons the petition for cer-

tiorari should be granted.

2. The North Carolina Annexa-

tion Statute Prohibiting

Review of Allegedly Unconsti-

tutional Conduct Raises Major

Due Process Questions.

The Fourth Circuit declined to hold

that the North Carolina annexation stat-

ute unconstitutionally restricts judi-

cial review. This action also

disregarded basic constitutional law

recognized by this Court, and thus the

petition for certiorari should be

granted on that issue.

In various recent decisions, the

North Carolina Supreme Court has held

that, under N.C. Gen. Stat. § 160A-

50(f), state courts may review an

annexation to determine only if certain

easily adhered to statutory requirements

= 3) =

are met.7/ Under these opinions, how-

ever, state courts may not separately

examine an annexation to determine if it

is arbitrary and unreasonable, and thus

unconstitutional.

Most prominent in this regard is In

Re Annexation Ordinance, 303 N.C. 220,

278 S.E.2d 224 (1981), which involved

annexations by Winston-Salem before this

Court. In the state case the plaintiffs

(who are not before this Court)

presented evidence demonstrating that

the annexations were arbitrary, unrea-

sonable and improperly motivated. The

7/ Section 160A-50(f) provides the

only means to challenge annexations

in the North Carolina state courts.

9 food v. Town of Carrboro,

N.C. - ’ S.£.

(1980); Pay tot v. City of Raseian,

290 N.C. 608, S.E.

(1976); Gaskill v. Costlow, 270

N.C. 686, re S.E.2d EL 11967).

- 16 -

Superior Court, however, declined to

consider such evidence and excluded

similar evidence.

The North Carolina Supreme Court

affirmed the lower court, stating:

The superior court's

review of the annexation ordi-

nance of a municipal governing

body is limited by statute.

Upon review the judge may ex-

amine the annexation pro-

ceedings to determine only

whether the municipal

governing board substantially

complied with the requirements

of the applicable annexation

Statutes ... .

G.S. 160A-50(f£) provides

in effect that on judicial

review the court may hear oral

arguments, receive written

briefs, and may take evidence

intended to show,

(1) that the statutory proce-

dure was not followed, or

(2) that the provisions of

G.S. 160A-47 [concerning

required documents and plans

for city services] were not

met, Or

- 19 -

(3) that the provisions of

G.S. 160A-48 [concerning

whether an area meets very

flexible criteria regarding,

e.g., population density, lot

size and contiguousness]) have

not been met.

This section clearly specifies

the inquiries to which the

court is limited.

278 S.E. 2d at 230-31 (emphasis added).

The court concluded that state

courts could not separately examine the

"reasonableness" of an annexation. 278

S.E.2d at 231. And it said:

The legislature has the right,

unhampered by constitutional

restrictions, to grant the

power given in the annexation

statute under consideration to

municipalities having a pop-

ulation of five thousand or

more since the power is inci-

dental to municipal government

in matters of purely local

concern.

278 S.E.2d at 228 (emphasis added) .8/

8/ The provision specifying a state

court's options if it finds an

[Footnote continued]

- 20 -

To the same effect are Food Town

Stores v. City of Salisbury, 300 N.C.

[Continued from previous page]

annexation faulty -- N.C. Gen.

Stat. 160A-50(g) -- is also signif-

icant. Under this provision, a

court may only:

(1) Remand so that proper

procedures can be followed, if

petitioners were "materially

injured" by the failure to do so;

(2) Remand for amendment of

annexation boundaries to adhere to

the statutory provision specifying

the nature of the area that can be

annexed; or

(3) Remand for amendment of

the plans for provision of city

services to meet statutory stan-

dards.

Invalidation of an annexation

because it is arbitrary or unrea-

sonable is not allowed by this pro-

vision. As In Re Annexation

Ordinance illustrates, North

Carolina courts have considered

whether the annexation statute is

constitutional, but they will not

review the conduct of city offi-

cials to determine whether they

have acted unconstitutionally. See

278 S.E.2d at 229-32.

= 2) -

21, 265 S.E.2d 123 (1980), Moody v. Town

of Carrboro, 301 N.C. 318, 271 S.E.2d

265, 268 (1980), and Humphries v. City

of Jacksonville, 300 N.C. 186, 265

S.E.2d 189, 190 (1980). Moreover, in

the two Charlotte cases before this

Court, the district court agreed that,

under the North Carolina statute, state

petitioners may argue only that the

statutory criteria have not been met,

but may not separately contend that an

annexation is arbitrary and thus uncon-

stitutional. See Cert. App. C.

The result of the North Carolina

Supreme Court decisions is that, for

example, the following unconstitutional

actions totally escape judicial scrutiny

in North Carolina state courts:

a. An arbitrary gerryman-

dering of annexation borders, solely to

e 22 «-

gain tax revenues, to clude large

amounts of agricultural land that are

not developed for urban purposes and

need no city services.

b. An arbitrary attempt to

annex an area to dilute a city's black

vote and thus retain political power for

white incumbents.

Ce Abusive conduct by

authorities who accept bribes to vote

for an annexation.

It is well-settled, however, that

the due process clause of the Fourteenth

Amendment requires that parties alleg-

edly injured by unconstitutional state

conduct be given access to the state

courts, that those courts pass judgment

on this conduct, and that they give

redress to persons injured by such

actions. This proposition is

» 23 «©

established, for example, by Ohio Valley

Water Co. v. Ben Avon Borough, 253 U.S.

287 (1920). There a state utility

commission, finding that a water com-

pany's rates were unreasonably high, re-

duced them. The Pennsylvania Supreme

Court upheld the commission's action,

but on appeal this Court reversed.

The Court first decided that the

state Supreme Court had interpreted the

rate setting statute to preclude judi-

cial review of the constitutional ques-

tion involved: "(W]e are compelled to

conclude that the [Pennsylvania] Supreme

Court interpreted the statute as

withholding from the courts power to

determine the question of confiscation

according to their own independent judg-

ment when the action of the Commission

comes to be considered on appeal." 253

U.S. at 289.

@ 24 «

The Court then held that a denial

of the opportunity for review of consti-

tutional questions was itself a denial

of due process of law: "[I]f£ the owner

claims confiscation of his property will

result, the State must provide a fair

opportunity for submitting that issue to

a judicial tribunal for determination

upon its own independent judgment as to

both law and facts; otherwise the order

is void because in conflict with the due

process clause, Fourteenth Amend-

ment." Id. Reversal was required

because "(t]hus far [the water company}

has not succeeded in obtaining the re-

view . . . which the Fourteenth Amend-

ment requires the state to provide.”

Id.

In St. Joseph Stock Yards Co. v.

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

- 25 ~

(1936), which involved a Department of

Agriculture rate order, the Court recog-

nized a Fifth Amendment due process

rignt to judicial review of constitu-

tional questions arising in federal

administrative proceedings. In a

well-known concurring passage, Justice

Brandeis said: "The 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 proceeding 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 constitutionality." 298

U.S. at 84. See also Chicago, M. & St.

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

= 2% «

(1890) (state statute prohibiting

judicial review of railroad rates set by

commission denied due process of law);

Hurtado v. California, 110 U.S. 516,

534-35 (1884).9/

Also pertinent are the various fed-

eral decisions that have construed

administrative statutes to allow judi-

cial review to avoid the constitutional

question that failure to provide review

would raise.l10/ For example, in Johnson

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

9/ Cf. Logan v. Zimmerman Brush Co.,

455 U.S. 422, 432-33 (1982).

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

[. eS

~

oO

= 27 «

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, this Court read the statute to

permit judicial review of such claims.

4.5 U.S. at 366. See also Ralpho v.

Bell, 569 F.2d 607, 618-22 (D.C. Cir.

1977) (Micronesian Claims Act inter-

preted to allow judicial review of

Claims Commission rulings allegedly

offending due process to avoid constitu-

tional question that denial of review

would present);11/ ungar v. Smith, 667

1l/ The court said: "If the courts are

disabled from requiring administra-

tive officials to act constitu-

tionally, it is difficult to see

who would perform that function."

569 F.2d at 620.

= 28 «-

F.2d 188, 193 (D.C. Cir. 1981) (statute

interpreted to allow judicial review of

claims that Department of Justice vio-

lated due process in order not "to court

the constitutional dangers inherent in

denying a forum" in which to challenge

department's actions) .12/

Not surprisingly, even where no

statute provided for review, various

12/ State courts have also held that

review of allegedly arbitrary

administrative action is constitu-

tionally required. See Kendall v.

Beiling, 245 Ky. 782, 783, 175 S.W.

2d 489, 491 (1943); Butterworth V.

Boyd, 12 Cal. 2d 140, 144, 82 P.2d

434, 439 (1938); American Beauty

Homes Corp. v. Louisville, 379

2d 450, 456-57 (Ky. 1964);

v. Northern Pac. Ry. Co., 229

Minn. 312, 39 N.W.2d 752 (1949).

These decisions at times rest on

state constitutional provisions

rather than on the Fourteenth

Amendment, but nonetheless speak

persuasively to the dictates of due

process.

= 29 «

state courts have felt compelled to

examine annexations alleged to be arbi-

trary and thus contrary to due process.

See Nevada ex rel. Bibb v. City of Reno,

64 Nev. 127, 178 P.2d 366, 368 (1947);

Texas ex rel. Walker v. City of

Gladewater, 139 S.W.2d 283, 286 (Tex.

Civ. App. 1940); Florida ex rel. Davis

v. City of Stuart, 97 Fla. 283, 120 So.

335, 345 (1929); Portland General

Electric Co. v. City of Estacada, 194

Or. 145, 241 P.2d 1129, 1135 (1952);

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

40 So. 2d 235, 242 (1949).13/

13/ See also as to the judicial review

required in deannexation pro-

ceedings, Kel~Kan Investment Corp.

v. Village of Greenwood, So. 2d

618, 820-21 (La. Ct. App. 1981);

west Point Island Civic Ass'n v.

Township Committee, 54 N.J. 339,

- 30 -

Unlike courts that have been able

to construe statutes to permit judicial

review, this Court is unable through

statutory construction to avoid the con-

stitutional question. As has been

admitted by defendants, the North

Carolina Supreme Court's definitive

interpretation of N.C. Gen. Stat.

§ 160A-50(f) is binding on the federal

courts. This Court thus should allow

the petition for certiorari and apply

the uncontestable principle that a state

Statute interpreted by a state's highest

court to deny judicial review of consti-

tutional claims is itself unconsti-

tutional.14/

14/ Because courts in other states will

review allegations of unconsti-

tutional conduct in annexation pro-

ceedings, the principal result of a

ruling for petitioners in this case

would be to force North Carolina

[Footnote continued]

= 3] -

CONCLUSION

For the reasons presented, the

petition for certiorari should be

granted as to both issues presented in

this case.

Respectfully submitted,

Eugene Gressman

School of Law

University of North Carolina

Chapel Hill, N.C. 27514

(919) 962-4120

Attorney for Amici Curiae

North Carolina Farm

Bureau Federation, Inc.,

et al.

November 10, 1983

[Continued from previous page]

courts similarly to hear constitu-

tional questions. A ruling for

petitioners here thus would not

provoke more federal litigation,

but would only compel North

Carolina courts to act in constitu-

tional fashion.

APPENDIX A

DESCRIPTION OF AMICI CURIAE1/

Re North Carolina Farm Bureau

Federation, Inc.

This organization, the largest

agricultural organization in North

Carolina; represents more than 224,000

farm family members (including at least

400,000 persons). It was formed in 1936

and has a chapter in each county in

North Carolina. It opposes annexation

of farm land for arbitrary reasons, such

as where a city annexes for no purpose

other than to increase its tax revenues.

2. North Carolina State Grange

This organization has 10,000 North

Carolina citizens as members. It

opposes annexation of farm lands for

arbitrary reasons.

1/_ All municipalities referenced are

North Carolina municipalities.

3s Winston-Salem Chapter of NAACP

This organization, which has 4,000

North Carolina citizens as members, gen-

erally opposes annexations that focus on

predominantly white areas and thus

dilute the effectiveness of the votes of

black city residents.

4. Citizens Opposed to Annexation

by Valdese

This group represents 900 residents

in the Valdese area whose properties

were either annexed in 1982 or now are

under threat of imminent annexation by

that municipality.

5. Forsyth Citizens Opposing

Annexation, Inc. -- Chapter II

This group represents 9,748 citi-

zens living near Winston-Salem. It

opposes an August l, 1983 decision by

the city's Board of Aldermen to annex

six additional areas adjacent to that

city.

-2a-

6. Franchised Garbage Collectors

of Forsyth County

This organization serves 18,000

citizens and opposes consummated or

threatened annexations by Winston-Salem

(including those objected to by the

Forsyth Citizens group) that have caused

or likely will cause severe economic

hardship to privately-owned garbage

collecting services operating in county

areas.

uP Shasta Lane Citizens Opposing

Annexation

This group represents 25 citizens

iving in an area annexed by Hudson,

which for several years has failed to

provide services to the annexed area,

but nonetheless seeks to impose city

taxes on area residents for the entire

period since the annexation became

effective.

-3a-

8. North Albemarie Community

Association

This group represents 700 citizens

whose property was recently annexed by

Albemarle.

9. Rural Gilford TEA Party

This group represents 3,200 citi-

zens living in areas annexed by High

Point in June 1983.

10. Opponents of Forced Annexation, Inc.

Some 15,000 citizens are represent-

ed by this group that was formed as a

result of Greensboro's 1981 attempt to

annex this area. This matter is still

in litigation in state courts.

ll. New Hanover Right to

Vote Association

Eight thousand citizens are repre-

sented by this group, which was formed

in 1977 to oppose annexation attempts by

Wilmington. The annexations involved

-4a-

are now being challenged in state

courts.

12. Crowfields Condominium Association

Western Carolina Industries, Inc.

Ballentree Homeowners ASSOciation, Inc.

South Side Shopping Center

Skyline Sanitary Service

These entities, which together

represent and serve some 1,350 citizens,

oppose recent annexations by Ashville.

The Skyline Sanitary Service may be

forced out of business by the city's

actions.

13. Save Our Suburbs

This organization represents 133

citizens and opposes a threatened

annexation by Tryon.

14. N.C. League of Concerned Citizens

This group represents 300 citizens

and opposes a recently consummated

annexation and an attempted annexation

by Newton.

-5a-

15. Concerned Citizens Against

Involuntary Annexation

This group represents some 150 cit-

izens whose property was annexed by

Conover in June, 1982.

16. Citizens For Fair Growth

This organization represents 690

citizens and opposes an annexation by

Salisbury that is being challenged in

State courts.

l7. Gaston County Taxpayers Association

This group, which has 3,000 members

who are residents of Gaston County,

opposes forced annexations. It coordi-

nates the efforts of and educates North

Carolina citizens -- particularly those

in Gaston County -- who desire to

prevent unwanted annexations.

-6a-

18. Burke County Property Owners

and Taxpayers Association

Six hundred citizens are members of

this group, which is associated with the

Gaston County Taxpayers Association and

opposes annexations in Burke County.

19. Little Yellow Mountain Property

Owners Association

This group represents 100 citizens

and opposes a recent annexation by the

Highlands effected after lengthy litiga-

tion.

20. People of Oak Hill Against

Forced Annexation

This group represents 1,940 citi-

zens from a community near Morgantown,

which apparently intends to annex the

community within the next several years.

21. Cumberland County Fire

Chiefs Association

This group has some 800 members

from Cumberland County, where

-7a-

municipalities are preparing for

annexations. Volunteer fire departments

in the county are concerned that

annexations will force them out of

existence.

22. Opponents of Forced

Annexation

This group has 500 members who are

citizens of areas adjacent to Mebane,

which the city decided to annex in

January 1983. This matter is now pend-

ing in North Carolina superior court.