# Jurisdictional Statement — Horne v. Chafin

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Jurisdictional Statement
- **Published:** January 1, 1984
- **Citation:** 466 U.S. 933

## Text

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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
ET » + unsitis66.6000¢ 06ds owambiensaae i
PEGE bbs bese cicvons Nd 0 be MEUERS 8 ve octet sdous ii
EES. Ss wadendo sébebb sobs se ebeeudces iii
ED s.Ubuttbacdndkeceenebeteeads iv
TL Cs. diatnace ket nnchacssececrvee de 2
i. tnaceh ckesbee seddesespbereeecdws 2
Constitutional and statutory provisions involved .... 2
i 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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1257%3A1. Public record. Not legal advice.