Jurisdictional Statement — Horne v. Chafin

FITe®

ALEXANOER \ STEVAS,

CLERK

Supreme Court of the Hnited Stites

October Term, 1983

NORTH CAROLINA ex rel. CHARLES E. HORNE,

Individually, and on behalf of all others

similarly situated, for the benefit of

the City of Charlotte and the

County of Mecklenburg, North Carolina,

Appellant,

v.

BETTY CHAFIN, HARVEY GANTT, MILTON SHORT,

PAT LOCKE, DON CARROLL, CHARLES DANELLY,

RON LEEPER, DR. LAURA FRECH, MINETTE TROSCH,

GEORGE SELDEN, THOMAS COX, JR., Individually,

and as Members of the Charlotte City Council,

KENNETH R. HARRIS, Individually, and as

Mayor of the City of Charlotte, EDWIN H.

PEACOCK, ANN THOMAS, ELISABETH HAIR, W.

THOMAS RAY, Individually, and as Members of

the Board of County Commissioners of the

County of Mecklenburg, and THE CHARLOTTE

CHAMBER OF COMMERCE, a corporation,

Appellees.

ON APPEAL FORM THE SUPREME COURT OF

NORTH CAROLINA

JURISDICTIONAL STATEMENT

and APPENDIX

EDWIN VIEIERA, JR.

13877 Napa Drive

Manassas, Virginia 22110

(703) 791-6780

Counsel of Record for Appellant

a

DiCesare and Associates Printing © Washington, D.C. © (262) 331-8101

QUESTIONS PRESENTED

Whether advocating the adoption of legislation is a

political or ideological activity under the First Amendment

to the Constitution of the United States.

Whether a state statute authorizing public funds derived

from taxes to be expended for the purpose of advocating the

adoption of legislation, and the expenditure of public funds

pursuant thereto, contravenes the First and Fourteenth

Amendments to the Constitution of the United States.

PARTIES

All parties to this appeal are listed in the caption of the

case, except that the Attorney General of North Carolina

may be authorized to intervene under the authority of

Section 2403(b) of Title 28 of the United States Code.

TABLE OF CONTENTS

Page

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ED s.Ubuttbacdndkeceenebeteeads iv

TL Cs. diatnace ket nnchacssececrvee de 2

i. tnaceh ckesbee seddesespbereeecdws 2

Constitutional and statutory provisions involved .... 2

i <.iod bounwewsebecseceeseaec’ 3

Substantiality of the Questions Presented ........... 5

EY Civnahn db bw cethes eebeeed bo ecas<ccceee 11

Appendix

Opinion of the Supreme Court

EE FO ee A-l

Opinion of the Court of Appeals

Oe PRCT CD — ei 55sec cccncccccscccccces A-4

Judgment of the Superior Court of

Mecklenburg County, North Carolina ....... A-10

PO OE ITO. eis ccc tanscivecccoscadeust’ A-12

iv

TABLE OF AUTHORITIES

Cases

Abood v. Detroit Board of Education,

ae BE. BOP CEST oc bscctvcvctceves 5, 6, 7, 8, 9, 12

Anderson v. City of Boston, 376 Mass. 178,

Bt PE ID EROE is cos cba deeectcustivesce 8

Arrow v. Dow, 544 F. Supp. 458 (D V.M.) 1982) . 7,9

Citizens To Protect Public Funds v. Board of

Education, 13 N.J. 172, 98 A.2d 673 (1953) ...... 8

City of Cleveland v. Artl, 62 Ohio App. 210

Be PE ED. Wve cbse heb abaarviccccccecsc 8

City of Glendale v. White, 67 Ariz. 231,

SEE ctcagvebsesbévccecccecccace 8

City of Phoenix v. Michael, 61 Ariz. 238,

ee oi kk se Fade ss e046 onde cvee 8

Community-Service Broadcasting of Mid-

America, Inc. v. Federal Communications

Commission, 593 F.2d 1102 (D.C. Cir. 1978) ..... 7

Doremus v. Board of Education, 342 U.S. 429

SE ohh wadboauebandibes vdrhednenet coe se cvgs 2

Ellis v. Brotherhood of Railway, Airline and

Steamship Clerks, _ U.S. ——, 103

EEE A descend bbccdncteccscccccces 8

Falk v. State Bar of Michigan, 411 Mich. 63,

395 N.W.2d 201 (1981) .....ccceeceeceecceees 7,9

Field v. City of Shawnee, 7 Okl. 73, 54 P.

SEP EISGEE. Secdcisccdcncededcccacscccccvesavess 8

Fitts v. Commission of the City of Birmingham,

224 Ala. 600, 141 So. 354 (1932) .......ceeeeeees 8

"3

Galda v. Bloustein, 686 F.2d 159 (3rd Cir. 1982) ... 7,9

Gavette v. Alexander, 477 F. Supp. 1035

Re SPEED otbeavetvcsncudssepibtsccouccons 7

Henderson v. City of Covington, 14 Bush (Ky.)

PEEUEEEE. 6c hoc cévdcoessdicweemeebedensatbenuhe 8

League of Women Voters v. Federal Communications

Commission, 547 F. Supp. 379 (C.D. Calif. 1983) . 10

Lewis v. White, 287 N.C. 625, 216 S.E.2d 134

DEN cincsck cdoW>s oes sheeeehedhabeuhetcncecey 4

Massachusetts v. Mellon, 262 U.S. 447 (1923) ...... 2

Meehan v. Parsons, 271 Ill. 546, 111 N.E.

ED cadue wan eAbeeeees ccunceaseeh se dcCete 8

Miller v. Miller, 87 Cal. App. 3d 767, 151 Cal.

Rptr. 197 (Dist. Ct. App. 1978) ...........5005- 7,8

Mines v. Del Valle, 201 Cal. 273, 257 P. 530

SEE cicvdbescdhe: S¥abeawesngenetascdecocens ite 8

Mountain States Legal Foundation v. Denver School

District No. 1, 459 F. Supp. 357 (D. Colo.

SUA sd Kdnden ch naacedeetidcts sa cchie Sedodwas aed x

Muir v. Alabama Educational Television Commission,

688 F.2d 1033 (Sth Cir. 1982) ...........0c ee eeee 7

Olson v. C.W.A., 559 F. Supp. 754 (D.N.J. 1983) ... 7

Peacock v. Georgia Municipal Association, 247 Ga.

740, 279 S.E.2d 434 (1981) .......cceeeeeeees 7,8

Porter v. Tiffany, 11 Or. App. 542, 502 P.2d

SP CRETED -Kodecccoccsicdbevcncusasecvesobecns 8

Powell v. City and County of San Francisco, |

62 Cal. 2d 291, 144 P.2d 617 (1944) ............. 8

Reilly v. Ozzard, 33 N.J. 529, 166 A.2d 360

(De Gin CétUeedartrerebhasbebeneceds 8

Review of the State Bar, 334 N.W.2d 544 (Wisc.

SEY p90 Vonwen dh adebivdenssockemdudehiewceesce 7

Reynolds v. State Bar of Montana, 660 P.2d 581

Se re ee tia ha eiieeib dees 7,9

Robinson v. State of New Jersey, 547 F. Supp.

i i Pe bad cnarenenetseeracesceses A

Rochester Gas & Electric Corporation v. Public

Service Commission of the State of New York,

51 N.Y.2d 823, 413 N.E.2d°359 (1980) ........... 7

Schneider v. Collegio de Abrogados de Puerto Rico

565 F. Supp. 963 (D.P.R. 1983) ............... 7,9

Shannon v. City of Huron, 9 S.D. 356,

AEE Sananédulndes cdoccpecsvevies 8

Stanson v. Mott, 17 Cal. 3d 206, 130

Cal. Rptr. 697, 551 P.2d 1 (1976) ............... 8

State ex rel. Port of Seattle v. Superior

Court of Washington, 93 Wash. 267,

i i «kod pew spencer besedenrtsnecde 8

Stern v. Kramarsky, 84 Misc. 2d 447, 375

ee EEE ohn) win dt nnd be vocbentes wore 8

Stewart v. Scheinert, 84 Misc. 2d 672, 374

PE SP REEEE ce chdgicuaesedrentdesedacnne 8

West Virginia State Board of Education v.

Barnette, 319 U.S. 624 (1943) ........eeeeee 5, 9, 12

Wooley v. Maynard, 430 U.S. 705 (1977) . 5, 7, 8, 9, 12

Constitutional Provisions

Amendment I, Constitution of the United States .......

i, 2, 4, 10, 11

Amendment XIV, Section 1., Constitution of the

United States ........6. ‘WishbMbwak oe aes 0h i, 3, 4

Article V, Section 2(1), Constitution of the

ee Ge FOOD GID bn cic Kcviccassevccconce 4

Article V. Section 2(5), Constitution of the

i i a cea vebemenne pia hee cathe 4

Statutes

EPC eS rpcnccvebcnconvoscesesansus 9

i is oc wree bene gh eses seydeoksanseees 9

RE So or + bb eedbecpeageuubeses 2

EE ob 0650.60 dep ec¥dshveseaenones ii

Cis n SU ses eees cooseéhtecekseeeies 4

Se Ca SEED ib cccebesncvcdcacebivcsbiceee 9

i i EE «ce cdocestccivensevuctevenes 9

47 U.S.C. §399 ste eeeeeeereneeeeeeeeseeaees 9, 10

Pea -E. Fee FOSS, SOCGR BID: occ cccnvccccedcsess 9

Pub. L. No. 95-429, Section 607(a) ...........e000- 9

ER MEP ED ccncvecdedevecucccedsees 3, 4, 5

Other Materials

113 Congressional Record 12990 ..........seeeeees 10

48 Federal Register 50860 ..........-.seeeeeeees 9, 10

Jurisdictional Statement for the United

States, League of Women Voters v.

Federal Communications Commission,

DMPO s<n0cheupedsivcsaees Codd Pre rere te 11

No.

IN THE

Supreme Court of the Muited States

October Term, 1983

a

NORTH CAROLINA ex rei. CHARLES E.

HORNE, Individually, and on behalf

of all others similarly situated,

for the benefit of the City of

Charlotte and the County of Meck-

lenburg, North Carolina,

Appellant,

v.

BETTY CHAFIN, HARVEY GANTT, MILTON

SHORT, PAT LOCKE, DON CARROLL,

CHARLES DANELLY, RON LEEPER, DR.

LAURA FRECH, MINETTE TROSCH, GEORGE

SELDEN, THOMAS COX, JR., Individually,

and as Members of the Charlotte City

Council, KENNETH R. HARRIS, Individually,

and as Mayor of the City of Charlotte,

EDWIN H. PEACOCK, ANN THOMAS, ELISABETH

HAIR, W. THOMAS RAY, Individually, and

as Members of the Board of County

Commissioners of the County of Mecklen-

burg, and THE CHARLOTTE CHAMBER OF

COMMERCE, a corporation,

Appellees.

ON APPEAL FROM THE SUPREME COURT OF

NORTH CAROLINA

JURISDICTIONAL STATEMENT

and APPENDIX

CHARLES E. HORNE respectfully appeals the decision

of the Supreme Court of North Carolina in the above

captioned case.

DECISIONS BELOW

The judgment of the Superior Court of Mecklenburg

County is not reported, and is set forth at pages A-10 and A-

il of the Appendix. The opinion of the Court of Appeals of

North Carolina has been reported at 62 N.C. App. 95 and at

302 S.E.2d 281, and is set forth at pages A-4 through A-9 of

the Appendix. The opinion of the Supreme Court of North

Carolina has been reported at N.C. at and 309

S.E.2d 239, and is set forth at pages A-1 through A-3 of the

Appendix.

JURISDICTION

This proceeding is an appeal from the judgment of the

Supreme Court of North Carolina dated December 6, 1983.

Notice of Appeal to this Court was filed in the Supreme

Court of North Carolina on February 29, 1984.

This Court has jurisdiction under Section 1257(2) of Title

28 of the United States Code, because the Supreme Court of

North Carolina found that a state statute, N.C.G.S. 120-

47.8(3), which authorizes the use of funds derived from

taxation for lobbying, is not repugnant to the First and

Fourteenth Amendments to the Constitution of the United

States.

This Court has jurisdiction under the rule, affirmed in

Massachusetts v. Mellon, 262 U.S. 447, 486 (1923), and

reaffirmed in Doremus v. Board of Education, 342 U.S.

429, 434 (1957), that resident taxpayers may sue to enjoin an

illegal use of the moneys of a municipal corporation where

there is a measureable appropriation or disbursement of

funds occasioned solely by the activities complained of.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

AMENDMENT I, Constitution of the United States

“Congress shall make no law respecting an establishment

of religion, or prohibiting the free exercise thereof; or

oa

abridging the freedom of speech, or of the press, or the right

of the people peaceably to assemble, and to petition the

Government for a redress of grievances.”

Section 1, AMENDMENT XIV, Constitution of the

United States

... nor shall any State deprive any person of life, liberty,

or property, without due process of law...”

Chapter 120, Section 47.8(3), North Carolina General

Statutes

“The provisions of this Article shall not be construed to

apply to any of the following:

(3) A duly elected or appointed official or employee of the

State, the United States, a county, municipality, school

district or other governmental agency, when appearing

solely in connection with matters pertaining to his office

and public duties.”

STATEMENT OF THE CASE

On April 24, 1979, the City Government of Charlotte,

North Carolina, and the County Government of

Mecklenburg County, North Carolina, hosted a legislative

reception honoring a local state senator who had recently

been elected President Pro-Tempore of the North Carolina

Senate. The acknowledged purpose of the reception was to

assist in persuading the members of the North Carolina

General Assembly to enact a legislative package previously

approved by city and country officials. This

consisted of statewide legislation—including tax legislation

as well as local bills. The reception cost the city and the

county $2603.15 each, which was paid out of funds derived

from taxes paid in part by appellant Charles E.. Horne.

Objecting both to significant parts of this legislative

package and to the use of his tax funds to advocate

positions with which he disagreed, Horne brought a civil

action in the Superior Court of Mecklenburg County to

recover those funds for the taxpayers of the city and county,

and to return them to the respective treasuries. The

complaint alleged that the expenditures in question:

(1) were not for a public purpose, as required by

Section 2(1) of Article V of the Constitution of

North Carolina;

(2) were not authorized by a general law

uniformly applicable throughout the state as

required by Section 2(5) of Article V of the

Constitution of North Carolina; and

(3) were in violation of the First and Fourteenth

Amendments to the Constitution of the United

States.

Horne brought this action under North Carolina law,

Lewis v. White, 287 N.C. 625, 216 S.E.2d 134 (1975), and

under Section 1983 of Title 42 of the United States Code.

Following discovery, the Superior Court entered

summary judgment for appellees.

On appeal, the Court of Appeals of North Carolina held

that lobbying served a public purpose and was authorized

by a general law in N.C.G.S. 120-47.8(3). With respect to

the federal constitutional question, the Court of Appeals

ruled that Horne’s argument:

-

is without merit because defendants were not

lobbying to promote an ideological position. They

were promoting legislation, mainly consisting of

requests for increased state funding of existing

programs, to benefit their constituents who

presumably are the majority of the voters in

Charlotte and Mecklenburg County. Obviously,

this is not in violation of [Horne’s] First

Amendment rights.

62 N.C. App. at , 302 S.E.2d at 284.

On appeal to the Supreme Court of North Carolina, the

question of whether N.C.G.S. 120-47.8(3), as construed by

the Court of Appeals, is repugnant to the First and

Fourteenth Amendments to the Constitution was explicity

raised in oral argument. The Supreme Court of North

Carolina affirmed per curiam.

SUBSTANTIALITY OF THE QUESTIONS

PRESENTED

The question of whether public funds may be used for

political and ideological advocacy, over the objection of a

dissenting tax payer, requires plenary consideration by this

Court because the holding below both conflicts with the

holdings of this Court, and such throws into question the

validity of federal statutes and regulations on the subject.

1. The holding below ignores the First Amendment

principle this court articulated in Wooley v. Maynard, 430

U.S. 705 (1977), and Abood v. Detroit Board of Education,

431 U.S. 209 (1977).

In Wooley, this Court explained that the strictures of

West Virginia State Board of Education v. Barnette, 319

U.S. 624 (1943), were applicable outside of an educational

setting:

We begin with the proposition that the right of

freedom of thought protected by the First

Amendment against state action includes both the

right to speak freely and the right to refrain from

speaking at all. ... A system which secures the right

to proselytize religious, political, and ideological

causes must also guarantee the concommitant

right to decline to foster such concepts. The right

to speak and the right to refrain from speaking are

complementary components of the broader

concept of “individual freedom of mind.”

430 U.S. at 714.

In Abood, the Court extended this principle to

encompass compelled contributions to the political and

ideological operations of a labor union:

The fact that the appellants. are compelled to

make, rather than prohibited from making,

contributions for political purposes, works no less

infringement on their constitutional rights. For at

the heart of the First Amendment is the notion

that an individual should be free to believe as he

will, and that in a free society one’s beliefs should

be shaped by his mind and his conscience rather

than coerced by the State.... And the freedom of

belief is no incidental or secondary aspect of the

First Amendment's protections:

“If there is any fixed star in our constitutional

constellation, it is that no official, high or

petty, can prescribe what should be orthodox

in politics, nationalism, religion, or other

matters of opinion or force citizens to confess

by word or act their faith therein. ...”

These principles prohibit a State from compelling

any individual to affirm his belief in God, ... or

associate with a political party ... as a condition of

retaining public employment. They are no less

applicable to the case at bar.

431 U.S. at 234-35 (citations omitted).

This constitutional rule has been applied by a number of

courts. Galda v. Bloustein, 686 F.2d 159, 161 n.5 (3rd Cir.

1982) (mandatory student fee at state university used to

support lobbying); Schneider v. Collegio de Abrogados de

Puerto Rico, 565 F. Supp. 963 (D.P.R. 1983) (mandatory

bar dues used to support lobbying); Olson v. CWA, 559 F.

Supp. 754 (D.N.J. 1983); Robinson v. State of New Jersey,

547 F. Supp. 1297, 1316 (D.N.J. 1982) (union dues used to

support lobbying); Arrow v. Dow, 544 F. Supp. 458, 459

(D.N.M. 1982) (mandatory state bar dues used to support

lobbying); Gavette v. Alexander, 477 F. Supp. 1035, 1040

(D.D.C. 1979) (NRA dues used to support lobbying); Fa/k

v. State Bar of Michigan, 411 Mich. 63, 305 N.W.2d 201

(1981); Reynolds v. State Bar of Montana, 660 P.2d 581

(Mont. 1983); Review of State Bar, 334 N.W.2d 544 (Wisc.

1983) (mandatory state bar dues used to support lobbying).

See Rochester Gas & Electric Corporation v. Public Service

Commission of the State of New York, 51 N.Y.2d 823, 413

N.E.2d 359 (1980) (utility fees used for informational

advertising). On the other hand, however, several courts

have taken a conflicting position. Muir v. Alabama

Educational Television Commission, 688 F.2d 1033, 1038

(Sth Cir. 1982) (en banc); Community-Service Broadcasting

of Mid-America, Inc. v. Federal Communications

ommission, 593 F.2d 1107, 1110 n. 17 (D.C. Cir. 1978)

(government may promote ideological causes; Abood not

nor discussed). Peacock v. Georgia Municipal

iation, Inc., 247 Ga. 740, 279 S.E.2d 434 (1981);

Miller v. Miller, 87 Cal. App. 3rd 767, 151 Cal. Rptr. 197

(Dist. Ct. App, 1978) (public funds used to support

lobbying; neither Wooley nor Abood cited or discussed). In

cases decided before Wooley and Abood, courts generally

held that the use of taxpayers’ funds to advocate the

adoption (or defeat) of legislation was improper in the

context of a referendum. Miller v. Miller, supra, Stanson v.

Mott 17 Cal. 3d 130, Cal. Rptr. 697, 551 P.2d 1 (1976);

Mines v. Del Valle, 201 Cal. 273, 257 P. 530 (1927);

Mountain States Legal Foundation v. Denver School

District No. 1, 459 F. Supp. 357 (D. Colo. 1978) (neither

Abood nor Wooley cited or discussed); Anderson v. City of

Boston, 376 Mass. 178, 380 N.E.2d 628 (1978), judgment

stayed, 439 U.S. 1389, motion to vacate stay denied, 439

U.S. 951 (1978), appe *! dismissed, 439 U.S. 1060 (1979);

Citizens to Protect Public Funds v. Board of Education, 13

N.J. 172, 98 A.2d 673 (1953) (per Brennan, J.); Stewart v.

Scheinert, 84 Misc. 2d 672, 374 N.Y.S.2d 585 (1975); Stern

v. Kramarsky, 84 Misc. 2d 447, 375 N.Y.S.2d 235 (1975);

Porter v. Tiffany, 11 Or. App. 542, 502 P.2d 1385 (1972);

Shannon v. City of Huron, 9 S.D. 356, 69 N.W. 598 (1896);

State ex rel. Port of Seattle v. Superior Court of

Washington, 93 Wash. 267, 160 P. 755 (1916). The courts

were divided in the context of lobbying a state legislature.

Fitts v. Commission of the City of Birmingham, 224 Ala.

600, 141 So. 354 (1932); Miller v. Miller, supra; Powell v.

City and County of San Francisco, 62 Cal. 2d 291, 144 P.2d

617 (1944); Peacock v. Georgia Municipal Association,

supra; Meehan v. Parsons, 271 111. 546, 111 N.E. 529

(1916); Anderson v. City of Boston, supra; Reilly v. Ozzard,

33 N.J. 529, 166 A.2d 360 (1960); (legislative lobbying

permitted); City of Phoenix v. Michael, 61 Ariz. 238, 148

P.2d 353 356-57 (1944); City of Glendale v. White, 67 Ariz.

231, 194 P.2d 435, 437 (1948); Henderson v. City of

Covington, 14 Bush (Ky.) 312 (1878); City of Cleveland v.

Artl, 62 Ohio App. 210, 23 N.E.2d 525 (1939); Field v. City

of Shawnee, 7 Okl. 73, 54 P. 318 (1898) (lobbying of

Secretary of Interior; legislative lobbying not permitted).

The limit of this principle in the union context is now

before the Court in Ellis v. Brotherhood of Railway, Airline

and Steamship Clerks, No. 82-1150, cert. granted ____ U.S.

—_— , 103 S. Ct. 1767 (1983).

The means of compulsion in these cases was the denial of

a government benefit, e.g., public education (Barnette,

Galda), public employment (Abood, Robinson), admission

to practice before the courts (Schneider, Falk, Reynolds,

Arrow), or the use of a motor vehicle on public roads

(Wooley). The use of compulsion here is not contingent on

the acceptance of a particular government benefit. The

means of compulsion here is the full force of the taxing

power. Horne has been compelled to contribute directly to

the support of an orthodoxy in politics with which he

disagrees.

Il. Precisely the opposite principle has been embodied in

several congressional enactments. For example, Section

1913 of Title 18 of the United States Code prohibits the use

of funds appropriated by the Congress directly or indirectly

to influence federal legislation. Criminal penalties attach to

federal employees who use appropriated funds in violation

of its provisions. Similar prohibitions, without explicit

criminal penalties, are found in certain authorization

statutes, e.g., 5 U.S.C. §4107 (b) (1); 42 U.S.C. §2996¢ (c)

(2); 42..U.S.C. §2996f (a) (5); 47 U.S.C. §399, and in

appropriation acts, e.g., District of Columbia

Appropriation Act of 1980, Pub. L. No. 96-93, Section 219,

93 Stat. 713, 719; Treasury, Postal Service and General

Government Appropriation Act of 1979, Pub. L. No. 95-

429, Section 607(a), 92 Stat. 1001.

The Office of Management and Budget has sought to

enforce these provisions in an amendment to Circular A-

122, 48 Federal Register 50860, November 3, 1983. This

proposal prohibits the use of appropriated funds to lobby

Congress and, with a few exceptions, state legislatures. 48

Federal Register 50863. It states among its justifications

that:

10

...there are serious constitutional problems with a

system that permits tax money to be used for the

political expression of private individuals or

groups. Americans have the First Amendment

right both to engage freely in speech and political

expression, and to refrain from speaking, without

interference or control on the part of the

government or its agents. Wooley v. Maynard,

430 U.S. 705, 714 (1977).

...[ I]t is a distortion of the marketplace of ideas for

the government to use its financial power to “tip

the electoral process,” Elrod v. Burns, 427 U.S.

353, 356 (1976), by subsidizing the political

advocacy activities of private organizations and

corporations. This proposal will ensure, to the

extent consistent with the communications

function of government, that taxpayers are not

required, directly or indirectly, “to contribute to

the support of an ideological cause [they] may

oppose.” Abood v. Detroit Board of Education,

431 U.S. 209, 235-236 (1977).

48 Federal Register at 50861.

Provisions of this type been found to violate the First

Amendment rights of persons receiving these appropriated

funds by at least one court. League of Women Voters v.

Federal Communications Commission, 547 F. Supp. 379

(C.D. Calif. 1983). At issue in this case was Section 399 of

Title. 47 of the United States Code, which prohibited

advocacy through editorializing in public broadcasts

subsidized by the Corporation for Public Broadcasting.

Section 399 was adopted to meet the concerns of members

of Congress that government-subsidized advocacy—

specifically including lobbying—would impinge on First

Amendment rights. 113 Cong. Rec. 12990, 12992-93 (May

17, 1967). The district court found that this provision

abridged the right of federal grantees to speak freely on any

subject, but did not discuss the contention that the

provision protects the countervailing right of federal

taxpayers not to contribute to advocacy with which they

disagree. The government appealed to this Court in No. 82-

912. In the Jurisdictional Statement the Solicitor Gerfgal

argued that:

The prohibition of editorializing serves a second

highly important government interest not

discussed by the district court: it prevents the use

of taxpayers money to promote controversial

private views and thus obviates First Amendment

problems. In‘ Abood v. Detroit Board of

Education, 431 U.S. 209, 234-235 (1977), this

Court held that citizens may not be compelled to

contribute to organizations that promote

ideological causes with which the contributors

may not agree. This is so because “contributing to

an organization for the purpose of spreading a

political message,” as well as refraining from

making such contributions, is protected by the

First Amendment (431 U.S. at 234). It might

therefore raise constitutional problems to collect

tax money from unwilling contributors and then

give it to television and radio stations for the

purpose of propagandizing concerning editorial

positions with which a great many taxpayers

might disagree.

Jurisdictional Statement in No. 82-912, at 19-20.

CONCLUSION

The holding of the Supreme Court of North Carolina

conflicts with the First Amendment principles announced

12

by this Court in Barnette, Wooley, and Abood. If affirmed,

this holding would undermine, if not entirely dissipate, the

constitutional basis for a number of federal strictures on

lobbying. The Court should note probable jurisdiction,

grant plenary consideration, and reverse.

Respectfully submitted,

Edwin Vieira, Jr.

13877 Napa Drive

Manassas, Virginia 22110

(703) 791-6780

Counsel of Record for Appellant

APPENDIX

SUPREME COURT OF NORTH CAROLINA

NORTH CAROLINA ex rel.

CHARLES E. HORNE,

Individually, and upon

behalf of all others

similarly situated, for

the benefit of the City

of Charlotte and the

County of Mecklenburg,

North Carolina

Vv

BETTY CHAFIN, HARVEY GANTT,

MILTON SHORT, PAT LOCKE,

DON CARROLL, CHARLES DANELLY,

RON LEEPER, DR. LAURA FRECH,

MINETTE TROSCH, GEORGES

SELDEN, THOMAS COX, JR.,

Individually, and as Members

of the Charlotte City Council,

KENNETH R. HARRIS, Individually,

and as Mayor of the City of

Charlotte, EDWIN H. PEACOCK,

ANN THOMAS, ELISABETH HAIR,

W. THOMAS RAY, Individually,

and as Members of the Board

of County Commissioners of

the County of Mecklenburg,

THE CHARLOTTE CHAMBER OF

COMMERCE, a Corporation

No. 304PA82 -

Mecklenburg

allel etl tl i

Appeal as a matter of right under G.S. 7A-30(1) from the

decision of the Court of Appeals, 62 N.C. App. 95, 302

S.E.2d 281 (1983) affirming summary judgment in favor of

the defendants entered by Griffin, Judge on 5 January 1982

in Superior Court, Mecklenburg County. Heard in the

Supreme Court 9 November 1983.

HUGH JOSEPH BEARD, JR., for the plaintiff

appellant.

FRANK B. AYCOCK, III, for the defendant

appellees, Chafin, Gantt, Short, Locke, Carroll,

Danelly, Leeper, Frech, Trosch, Selden, Cox, and

Harris.

RUFF, BOND, COBB, WADE & McNAIR, by

JAMES O. COBB and MARVIN A. BETHUNE,

for the defendant appellees, Hair, Peacock, Ray

and Thomas.

HELMS, MULLIS & JOHNSTON, by

ROBERT B. CORDLE, for the defendant

appellee, The Charlotte Chamber of Commerce.

PER CURIAM.

The plaintiff brought this action against the defendants

alleging that they illegally used tax funds to pay for a

reception for members of the General Assembly and others.

The plaintiff contends that these funds were used for the

purpose of lobbying members of the General Assembly in

an effort to induce them to pass legislation affecting the City

of Charlotte and Mecklenburg County which legislation

was contrary to the plaintiff's beliefs.

The defendants, city council and chamber of commerce

members, filed motions under Rule 12(b) (6) to dismiss for

failure to state a claim for relief. The plaintiff and the

defendant county commissioners filed motions for

summary judgment. After considering all materials filed

during discovery and the arguments of counsel, the trial

A-3

court treated the motions to dismiss under Rule 12(b) (6) as

motions for summary judgment and granted summary

judgment in favor of all of the defendants. The Court of

Appeals affirmed.

It is not necessary that this Court consider or pass upon

each of the statements contained in the opinion of the Court

of Appeals in order to affirm the result reached therein. The

holding of the Court of Appeals affirming summary

judgment for the defendants by the trial court is

AFFIRMED.

‘

v

ih re.

“A4

No. 8226SC463

NORTH CAROLINA COURT OF APPEALS

Filed: 3 May 1983

NORTH CAROLINA et rel. CHARLES E.

HORNE, Individually, and upon behalf of all

others similarly situated, for the benefit of the

City of Charlotte and the County of

Mecklenburg, North Carolina

Vv.

BETTY CHAFIN, HARVEY GANTT,

MILTON SHORT, PAT LOCKE, DON

CARROLL, CHARLES DANELLY, RON

LEEPER, DR. LAURA FRECH, MINETTE

TROSCH, GEORGE SELDEN, THOMAS

COX, JR.. Individually, and as Members of the

Charlotte City Council, KENNETH R.

HARRIS, Individually, and as Mayor of the

City of Charlotte, EDWIN H. PEACOCK,

ANN THOMAS, ELISABETH HAIR, W.

THOMAS RAY, Individually, and as

Members of the Board of County

Commissioners of the County of Mecklenburg,

THE CHARLOTTE CHAMBER OF

COMMERCE, a Corporation

Mecklenburg County

No. 81CVS3704

Appeal by plaintiff from Griffin, Judge. Judgment

entered 5 January 1982 in Superior Court, Mecklenburg

County. Heard in the Court of Appeals 14 March 1983.

Plaintiff brought this action against the City Council of

Charlotte, the Mayor of Charlotte, the Board of County

Commissioners of Mecklenburg County, the Charlotte

Chamber of Commerce, and the individual members

\

A-5

thereof, alleging they illegally used a total of $7,809.44 of

public funds to pay for a reception honoring the North

Carolina General Assembly and State Senate President Pro

Tem W. Craig Lawing. The uncontradicted facts are as

follows. The reception was held on 24 April 1979. The

following people, and their spouses, were invited: all the

members of the General Assembly, the Council of State,

Senate officials, County officials, Judges of the North

Carolina Court of Appeals, Justices of the North Carolina

Supreme Court, Senate and House Sergeants-at-Arms’

staff, legislative staff members, the Lieutenant Governor's

staff, the Speaker’s office staff, the House and Senate

Principal Clerks’ office staff, the General Assembly

Librarian, and several special invitations for Lawing’s

friends and relatives. The cost of the reception was split

evenly by the City, the County, and the Chamber of

Commerce.

The total cost, $7,809.44, inciuded rental of a hall in the

Releigh Civic Center, food and refreshments,

entertainment, a chartered bus, miscellaneous expenses,

and travel expenses.

According to defendants, the purpose of the reception

was to promote legislative goals of the City of Charlotte and

Mecklenburg County. These goals included increasing state

aid for Medicaid sponsorship, state funding for the

Mecklenburg Mental Health Inpatient program, increasing

the daily wage for substitute teachers, increasing the interest

rate on delinquent taxes, and increasing the state funding

for foster care. Almost all the goals involved increasing

state participation in existing social programs.

The City Council and Chamber of Commerce defendants

filed Rule 12(b) (6) motions to dismiss for failure to state a

claim for relief. Plaintiff and the County Commissioner

defendants filed motions for summary judgment. The trial

A~6

judge, considering all the materials filed in discovery and

the arguments by counsel for all the parties, treated the Rule

12(b) (6) motions as motions for summary judgment and

granted all the defendants’ motions for summary judgment.

Hugh Joseph Beard, Jr., for plaintiff appellant.

City Attorney Henry W. Underhill, Jr., for defendant

appellee, Charlotte City Council.

Frank B. Aycock III, for defendant appellees, City

Council members, Chafin, Gantt, Short, Locke, Carroll,

Danelly, Leeper, Frech, Trosch, Selden, Cox and Harris.

Ruff, Bond, Cobb, Wade and McNair, by James O.

Cobb, for defendant appellees, County Commissioners

Hair, Peacock, Ray and Thomas.

Helms, Mulliss and Johnston, by Robert B. Cordle, for

defendant appellee, Charlotte Chamber of Commerce.

VAUGHN, Chief Judge.

The sole question is whether the trial court erred in

granting defendants’ motions for summary judgment.

Summary judgment shall be rendered if “the pleadings,

depositions, answers to interrogatories, and admissions on

file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that any party is

entitled to a judgment as a matter of law.” G.S. 1A-1, Rule

56(c). Since the facts are not at issue, the only question is

whether defendants are entitled to a judgment as a matter of

law. °

Plaintiff argues that the expenditure of public funds for

the reception violates Article V, Sections 2(1) and 2(5) of the

North Carolina Constitution. Section 2(1) provides: “Power

of taxation. The power of taxation shall be exercised in a

ne She We See pee 2 CR wb

A-7

just and equitable manner, for public purposes only, and

shall never be surrendered, suspended, or contracted away.”

Although this section refers only to the power of taxation,

the power to appropriate money from the treasury is no

greater than the power to levy the tax. Mitchell v. North

Carolina Industrial Development Financing Authority, 273

N.C. 137, 159 S.E. 2d 745 (1968). Plaintiff contends that the

expenditure for the reception was not for a public purpose

and thus violated Article V, Section 2(1) of the North

Carolina Constitution. “[F]Jor a use to be public its benefits

must be in common and not for particular persons, interests,

or estates; the ultimate net gain or advantage must be the

public’s as contradistinguished from that of an individual or

private entity.” Martin v. North Carolina Housing Corp.,

277 N.C. 29, 43, 175 S.E. 2d 665, 673 (1970). The purpose of

the reception was to influence the General Assembly to pass

legislation which, as seen by defendants, was favorable to

Charlotte and Mecklenburg County residents. We have

found no North Carolina cases on this issue, however, a

recent Georgia Supreme Court opinion addresses this point.

In the Georgia case, Peacock v. Georgia Municipal

Association, Inc., 247 Ga. 740, 279 S.E. 2d 434 (1981), the

plaintiffs alleged that defendant, whose members were 400

towns and cities in Georgia, was illegally using public funds

in various lobbying activities to influence the state

legislators. The Supreme Court of Georgia held that the

activities carried out by defendant were necessary activities

for the administration of local governments, and

representing the views of the constituents to the legislators

on pending issues was one of the functions of officers of

municipalities and counties. We agree with the Georgia

Supreme Court. Local government officials have a duty to

represent their constituents, and presenting local interests to

the state legislators in hope of getting favorable bills passed

in the General Assembly is obviously a public and not a

A-8

private purpose. The alleged extravagance of the reception

does not convert the public purpose to a private one.

Plaintiff's remedy is to air his opinion at the ballot box.

Plaintiff argues that defendants’ expenditures also

violated Article V, Section 2(5) of the North Carolina

Constitution. That section provides:

Purposes of property tax. The General Assembly

shall not authorize any county, city or town, special

district, or other unit of local government to levy taxes

on property, except for purposes authorized by general

law uniformly applicable throughout the State, unless

the tax is approved by a majority of the qualified voters

of the unit who vote thereon.

Plaintiff contends this was violated because the expenditure

was not a “purpose authorized by general law.” Defendants

contend, and we agree, that lobbying is authorized by

general law, by implication, in G.S. 120-47.8(3), which

exempts from the registration requirements imposed on

lobbyists. “A duly elected or appointed official or employee

of the State, the United States, a county, municipality,

school district or other governmental agency, when

appearing solely in connection with matters pertaining to

his office and public duties.” Since lobbying by city and

county officials is permitted, Article V, Section 2(5) was not

violated. Urging policies which benefit their constituents is

one of the ways local officials promote their constituents’

interests.

Plaintiff's third argument is that defendants’ expenditures

violated his First Amendment rights through the

Fourteenth Amendment of the Federal Constitution. He

argues that the First Amendment protects a person's right

against being compelled to speak, and these expenditures

were made to promote ideological positions contrary to his

A-9

viewpoint. Without addressing the question of whether

plaintiff, as a taxpayer, has standing to raise this issue, it is

clear that his argument is without merit because defendants

were not lobbying to promote an ideological position. They

were promoting legislation, mainly consisting of requests

for increased state funding for existing programs, to benefit

their constituents who presumably are the majority of the

voters in Charlotte and Mecklenburg County. Obviously,

this is not in violation of plaintiff's First Amendment rights.

Since we agree with the trial court that there is no issue of

fact, and defendants are entitled to judgment as a matter of

law, there is no need to address the issue of defendants’

immunity.

Affirmed.

Judges WEBB and EAGLES concur.

A-10

STATE OF NORTH CAROLINA

COUNTY OF MECKLENBURG

IN THE GENERAL COURT OF JUSTICE

SUPERIOR COURT DIVISION

81-CVS-3704

NORTH CAROLINA ex rel. CHARLES E.

HORNE, Individually, and upon behalf

of all others similarly situated, for

benefit of the City of Charlotte and

the County of Mecklenburg, North

Carolina,

JUDGMENT

Vv.

)

)

)

)

)

)

)

Plaintiff, )

)

BETTY CHAFIN, et al., )

)

)

Defendants.

This cause came on to be heard and was heard by the under-

signed Judge Presiding over the December 14, 1981, Civil

Jury Session of the Superior Court Division for

Mecklenburg County;

And this cause was heard upon a motion for summary

judgment filed on behalf of the plaintiff, a motion for

summary judgment filed on behalf of the defendants Hair,

Peacock, Ray, and Thomas, a Rule 12(b)(® motion filed on

behalf of The Charlotte Chamber of Commerce, and upona

Rule 12(b)6) motion filed on behalf of all remaining

defendants;

A-11

And the undersigned having considered the record in this

cause, including the materials filed in connection with

discovery, having studied the legal memoranda filed by the

parties, and having heard arguments of counsel for all

parties;

And the undersigned having considered matters outside

the pleadings (the materials produced by discovery), and

having determined that the Rule 12(b)(6) motions filed on

behalf of The Charlotte Chamber of Commerce and on

behalf of the defendants other than Hair, Peacock, Ray, and

Thomas should be treated as motions for summary

judgment pursuant to Rules 12(b) and 56;

And the undersigned having concluded that there is no

genuine issue as to any material fact and resolution of this

case by summary judgment is appropriate;

And the parties having stipulated in open court that the

judgment may be signed and entered after the Session at

which the hearing was held;

And the undersigned having concluded that the plaintiff's

motion for summary judgment should be denied as a matter

of law and that the defendants’ motions for summary

judgment should be granted as a matter of law;

It is hereby ORDERED, ADJUDGED, and DECREED

that the plaintiff's motion for summary judgment be and the

same hereby is denied and that the defendants’ motions for

summary judgment should be and the same hereby are

granted; and it is further ORDERED, ADJUDGED, and

DECREED that this action is dismissed with prejudice to

the plaintiff and with the plaintiff to be taxed with the court

costs.

This 5 day of January, 1982.

/s/ Kenneth A. Griffin

Superior Court Judge

~*

~ ne

A-12

No. 304PA83 TWENTY-SIXTH DISTRICT

IN THE

SUPREME COURT OF NORTH CAROLINA

NORTH CAROLINA ex rel.

CHARLES E. HORNE,

Individually, and upon behalf

of all others similarly ji

situated, for the benefit of

the City of Charlotte and

County of Mecklenburg,

North Carolina,

v.

BETTY CHAFIN, et al.

NOTICE OF APPEAL

NOW COMES the Appellant herein, the State of

NORTH CAROLINA ex rel. CHARLES E. HORNE,

Individually, and on behalf of all others similarly situated,

for the benefit of the City of Charlotte and the County of

Mecklenburg, North Carolina, through Counsel and

pursuant to Section 1257(2) of Title 28 of the United States

Code and Rule 10 of the Rules of the Supreme Court of the

United States, and gives Notice of Appeal to the Supreme

Court of the United States from the Judgement of the

Supreme Court of North Carolina entered in this cause on

December 6, 1983.

This 29 day of February, 1984.

/s/ William R. Titchener

WILLIAM R. TITCHENER

Seay, Rouse, Harvey &

Titchener

Post Office Box 18807

Raleigh, North Carolina

27619

(919) 782-6700

[Filed in the Office of the Clerk, Supreme Court of North

Carolina, at 3:19 P.M., February 29, 1984.]

A-13

STATEMENT AND CERTIFICATE OF SERVICE

Several of the defendants appellees have sued as officers

of the City of Charlotte or of the County of Mecklenburg,

both of which are political subdivisions of the State of North

Carolina. Nevertheless, Section 2403(b) of Title 28 of the

United States Code may be applicable. For this reason,

service has been made on the Attorney General of North

Carolina pursuant to Rule 28.4(b) of the Rules of the

Supreme Court of the United States.

I hereby certify that one—(1)—copy of the foregoing and

attached NOTICE OF APPEAL has been duly served on

each party to this civil action and on the Attorney General of

North Carolina pursuant to Rule 28 of the Rules of the

Supreme Court of the United States by depositing the same

in an United States mailbox, with first class postage

prepaid, addressed to the counsel of record for each party

and to the Attorney General of North Carolina, as follow:

Frank B. Aycock, III, Esq.

905 Cameron Brown Building

Charlotte, North Carolina

28204

James O. Cobb, Esq.

2100 First Union Plaza

Charlotte, North Carolina

28282

Robert B. Cordle, Esq.

2800 NCNB Plaza

Charlotte, North Carolina

28280

Hon. Rufus Edmisten

Attorney General of No. Car.

Post Office Box 829

Raleigh, North Carolina

a

A-14

This 29th day of February, 1984.

/s/ William R. Titchener

WILLIAM R. TITCHENER

Seay, Rouse, Harvey &

Titchener

Post Office Box 18807

Raleigh, North Carolina

27619

(919) 782-6700

CERTIFICATE OF SERVICE

Several of the defendants appellees have been sued as

officers of the City of Charlotte or of the County of

Mecklenburg, both of which are political subdivisions of the

State of North Carolina. Nevertheless, Section 2403(b) of

Title 28 of the United States Code may be applicable. For

this reason, service of the Notice of Appeal and of the

Jurisdictional Statement has been made on the Attorney

General of North Carolina pursuant to Rule 28.4(b) of the

Rules of the Supreme Court of the United States.

I hereby certify that three (3) copies of the foregoing and

attached JURISDICTIONAL STATEMENT have been

duly served on each party to this civil action and on the

Attorney General of North Carolina pursuant to Rule 28 of

the Rules of the Supreme Court of the United States by

depositing the same in an United States mailbox, with first

class postage prepaid, addressed to the counsel of record for

each party and the Attorney General of North Carolina, as

follow:

Frank B. Aycock, III, Esq.

905 Cameron Brown Building

Charlotte, North Carolina 28204

James O. Cobb, Esq.

2100 First Union Plaza

Charlotte, North Carolina 28282

Robert B. Cordle, Esq.

2800 NCNB Plaza

Charlotte, North Carolina 28280

Hon. Rufus Edmisten

Attorney General of North Carolina

Post Office Box 829

Raleigh, North Carolina

EDWIN VIEIRA, JR.

13877 Napa Drive

Manassas, Virginia 22110

(703) 791-6780

Counsel of Record for Appellant