# Amicus Brief — Baldwin v. City of Winston-Salem

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## Record

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

## Text

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0567%3A4. Public record. Not legal advice.