# Motion — Brewer v. City of Winston-Salem

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Motion
- **Published:** January 1, 1984
- **Citation:** 469 U.S. 802

## Text

_ Office-Supreme Court, U.S.
84-152 FILED
NO. AUG 25 1984
ae
IN THE }

Supreme Court of the United States

OCTOBER TERM, 1984

HENRY BREWER, et al.

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

On Appeal From the North
Carolina Court of Appeals

MOTION TO DISMISS OR AFFIRM

Roddey M. Ligon, Jr.
Counsel of Record

WOMBLE CARLYLE SANDRIDGE & RICE
Post Office Drawer 84
Winston-Salem, NC 27103

(919) 721-3600

APPELLATE PRINTING SERVICES. INC . HERITAGE BLDG . RICHMOND. VA (804) 643-7789

~ BEST AVAILABLE COPY

Ronald G. Seeber

Ralph D. Karpinos

City Attorney's Office
115 City Hall
Winston-Salem, NC 27101
(919) 727-2056

Attorneys for Appellees

August 20, 1984

TABLE OF CONTENTS

TABLE OF AUTHORITIES... .ccccccccsece
I. STATEMENT OF THE CASE...........
II. SUMMARY OF ARGUMENT............

III. REASONS FOR DISMISSING THE
APPEAL OR AFFIRMING THE
DECISION OF THE NORTH
CAROLINA COURT OF APPEALS.....

A. Applicable Supreme
ee EMC Fcc e sce es

B. The Decision of the
North Carolina Court
of Appeals Is Consistent
With the Law of the
Supreme Court.....ccccccce

Cc. The North Carolina
Appellate Court Do Review
Annexations to Determine
Reasonableness and Com-
pliance With Due Process
as Well as Other Consti-
tutional Standards........

IV. CONCLUSION... .cccccccccsvccscccce
APPENDICES
EEE ER SUES bce ce SW eccesess
Appendix Debeeeeedeosseoceveses
CERTIFICATE OF SERVICE... cccccccccce

i

17

20
29

la
lb
31

TABLE OF AUTHORITIES

Cases: Page
Anderson v. Dunn, 6 Wheat 15

,
Baldwin v. oty of Winston- 4, 5,
Salem, 710 F.2d 132, cert. fy

denied 104 . Ct. 536 (1983)

Citizens Committed to Oppose 18
Annexation v. City of

Lynchburg, 528 F. a3 816 (4th

Cir.), application denied
423 U.S. Te (1976

Forsyth Citizens Opposing ae
Annexation, et al. v. City Sec Be
of Winston-Salem, et al., 67 », 24,
N.C.App. 165, 312 S.E.2d 517 28
ee denied so ’

315 S.E.2da 701 (1984)

Garren v. City of Winston-Salem, 18
463 F.2a 54 aa Cars), GOEt.

denied 408 U.S. 1039 (1972)

Gaskill v. Costlow, 270 N.C. 27
686, 155 S.E.2dq 148 (1967
Gomillion v. Lightfoot, 364 6, 10
U.S. 339 (1960) he Gee
At, a9
Hawks v. Town of Valdese, 299 27
N.C. 1, 2601 S.E.2q 90 (1980)

ii

Cases:

Hayward v. Clay, 573 F.2d
184 (4th Cir.) cert. denied
439 U.S. 959 (1978)

Holt Civic Club v. Tuscaloosa,
439 U.S. 60 (1978)

Hunter v. Pittsburgh, 207 U.S.
161 (1907)

In re Annexation Ordinance,
303 N.C. 220, 2/8 S.E.2d
(1981)

In Re Annexation Ordinance
Adopted by the City of
Charlotte, 284 N.C. 442, 452
202 S.E.2d0 143, 149 (1974)

In Re Annexation Ordinance
No. 866, 253 N.C. 637, 640-41,
117 S.E.2d 795, 798 (1961)

In Re Annexation Ordinance
#D-21927, 303 N.C. 220, 278
S.E.2d 224 (1981)

In re Durham Annexation
Ordinance, 66 N.C.App.
473, 311 S.E.2d 898 (1984)

iii

Page

19

6, 13,
14, 16,
17

2, 6,
7, 10,
li, 12,
a3, 15,
16, 17,
18, 19
2

28

21
24-25
28-20

Cases:

In Re Ordinance of Annexation
1977-4, 296 N.C. 1, 19, 249
S.E.2q 698, 708 (1978)

Moody v. Carrboro, 301 N.C.
8, S.E. 265 (1980)
Raintree Homeowners Assoc. v.
City of Charlotte, 543 F.Supp.
625 (W.D.N.C. 1982), aff'd.

710 F.2d 132 (4th Cir.) cert.
denied, 104 S.Ct. 536 (1983)

Reynolds v. Sims, 337 U.S.
53. 575 (1964)

Sailors v. Board of Education,

387 U.S. at 108 (1967)

Texfi Industries, Inc. v. City
of Fayetteville, 301 N.c. l,
269 S.E. 1 (1980)

Thompson v. Whitley, 344 F.Supp.

480 (E.D.N.C. 1972)

iv

15

15

27

19

MOTION TO DISMISS OR AFFIRM

Appellees are the City of Winston-
Salem, North Carolina, and its Mayor and
members of its governing board. Pursuant
to Rule 16 of the Supreme Court Rules,
Appellees move the Court to dismiss the
appeal seeking review of the decision of
the North Carolina Court of Appeals in

the case of Forsyth Citizens Opposing

Annexation, et al. v. City of Winston-

Salem, et al., 67 N.C.App. 165, 312 S.E.

2d 517, pet. denied, N.C. ¢ Sas

S.E.2d 701 (1984) [which is referred to by
Appellants in their Jurisdictional

Statement as Brewer, et al. v. City of

Winston-Salem] on the ground that said

appeal does not present a substantial
federal question. In the alternative,
Appellees respectfully move the Supreme

Court of the United States to summarily

affirm the decision of the North Carolina
Court of Appeals on the basis that the
decision of the North Carolina Court is
in accord with constitutional principles
and requirements. In support hereof,
Appellees respectfully submit the follow-
ing statement of the case and argument.

I. STATEMENT OF THE CASE

Appellants ask the Supreme Court of
the United States to accept jurisdiction
of a decision of the North Carolina

Court of Appeals. Relying on Hunter v.

Pittsburgh, 207 U.S. 161 (1907), Raintree

Homeowners Assoc. v. City of Charlotte,

543 F.Supp. 625 (W.D.N.C. 1982), aff'd,
710 F.2d 132 (4th Cir.), cert. denied, 104

S.Ct. 536 (1983), and In re Annexation

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

(1981) and applicable North Carolina

statutes, the North Carolina Court of

Ts)

Appeals upheld the trial court's decision
that North Carolina's annexation laws and
Appellees' actions thereunder were consti-

tutionally sound. Forsyth Citizens Oppos-

ing Annexation, et al. v. City of Winston-

Salem, et al., 67 N.C.App. 165, 312 S.E.2d

517, pet. denied, 3.¢c. » was

S.E.2d 701 (1984). The Supreme Court of
North Carolina dismissed the appeal and
denied Appellants' petition for discretion-
ary review.

Notice of appeal to the Supreme Court
of the United States was given on July 24,
1984 and Appellants submitted their Juris-
dictional Statement on July 27, 1984.
Pursuant to Rule 16 of the Rules of the
United States Supreme Court, Appellees
submit this motion to dismiss the appeal
or affirm the decision of the North

Carolina Court of Appeals.

II. SUMMARY OF ARGUMENT

At the outset Appellees ask this Court
to take note that this is the second time
these Appellants have asked the Supreme
Court of the United States to consider this

case. Baldwin v. City of Winston-Salem,

710 F.2d 132 (4thCir.), cert. denied, 104

S.Ct. 536 (1983) involved challenges to four
annexations in the Cities of Winston-Salem
and Charlotte, North Carolina. One of the

four cases, Brewer v. City of Winston-Salem,

was a challenge to the same annexation as
this case. The unreported decision of
Erwin, J., United States District Court
Judge for the Middle District of North
Carolina dismissing that case is set forth
in Appendix A. The four cases were consoli-

dated in a per curiam decision by the United

States Court of Appeals for the Fourth Cir-

cuit and this Court on December 5, 1983,

denied the petition for writ of certiorari.
The questions presented in that petition
for writ of certiorari are set forth as
Appendix B and demonstrate that the issues
raised in Appellants' Jurisdictional State-
ment are virtually the same as in the
Baldwin case. The briefs submitted by
Appellants then, and now, are substantially
the same.

The annexation involved in this appeal
went into effect on May 1, 1984. Thus,
the residents of the annexed areas have
been receiving City services since that
date, and have been subject to City taxa-
tion since that date.

The decision of the North Carolina
Court of Appeals is consistent with the
decisions of the Supreme Court of the

United States interpreting the Fourteenth

Amendment as it applies to annexations.

No substantial federal question therefore
exists and this appeal should be dismissed.
North Carolina's annexation statutes, and
in particular N.C.G.S. 160A-50(f), give
substantial protection against arbitrary,
capricious and unreasonable acts by a
municipality. Protections afforded by
North Carolina's statutes comport with due
process. The provisions of 160A-50(f) and
the statutes incorporated therein amount
to a requirement that North Carolina Courts
determine whether an annexation is reason-

able. Forsyth Citizens, supra, at 166,

312 S.E.2d at 518. The decision of the
North Carolina Court of Appeals is con-
Sistent not only with Hunter, but also

with the subsequent cases of Gomillion

v. Lightfoot, 364 U.S. 339 (1960) and

Holt Civic Club v. Tuscaloosa, 439 U.S.

60 (1978).

Contrary to Appellants' allegations,
the scope of judicial review of annexations
in North Carolina is not limited. Case law
makes it abundantly clear that the North
Carolina courts will review and decide the
constitutivcnality of annexations and the
annexation statutes.

III. REASONS FOR DISMISSING THE

APPEAL OR AFFIRMING THE DECISION
OR OLINA

A. Applicable Supreme Court Decisions.

The law applicable to this case is
clearly set out by the United States

Supreme Court in the case of Hunter v.

Pittsburgh, supra. Hunter questioned

the validity of an annexation based

upon a Pennsylvania statute which per-
mitted a larger municipality to annex a
smaller one despite the fact that a
majority of the citizens of this smaller
municipal corporation desired not to be

7

annexed. The plaintiffs in Hunter chal-
lenged the annexation on a number of
grounds, including due process grounds
similar to those raised in this case.
Hunter at 168-169.
This Court upheld the annexation with
the following governing principles:

Municipal corporations are
political subdivisions of the
state, created as convenient
agencies for exercising such
of the governmental powers of
the state as may be intrusted
to them. For the purpose of
executing these powers proper-
ly and efficiently they usual-
ly are given the power to ac-
quire and manage personal and
real property. The number,
nature and duration of the
powers conferred upon these
corporations and the territory
over which they shall be exer-
cised rests in the absolute
discretion of the state.
Neither their charters, nor
any law conferring govern-
mental powers, or vesting in
them property to be used for
governmental purposes, or au-
thorizing them to hold or man-
age such property, or exempting

them from taxation upon it,
constitutes a contract with

the state within the meaning

of the Federal Constitution.

The state, therefore, at its
pleasure may modify or with-
draw all such powers, may take
without compensation such
property, hold it itself, or
vest it in other agencies, ex-
pand or contract the territori-
al area, unite the whole or a
part of it with another munici-
pality, repeal the charter and
destroy the corporation. All
this may be done, conditionally
or unconditionally, with or with-
out the consent of the citizens,
or even against their protest.

In all of these respects the
state is supreme, and its legis-
lative body, conforming its ac-
tion to the state Constitution,
may do as it will, unrestrained
by any provision of the Consti-
tution of the United States.
Although the inhabitants and
property owners may, by such
changes, suffer inconvenience,
and their property may be less-
ened in value by the burden of
increased taxation, or for any
other reason, they have no right,
by contract or otherwise, in the
unaltered or continued existence
of the corporation or its powers,
and there is nothing in the Feder-
al Constitution which protects
them from these injurious conse-
quences. The power is in the

9

state, and those who legislate

for the states are alone re-

sponsible for any unjust or

oppressive exercise of it. Id.

at 178-79.
Thus, in Hunter, this Court made it abso-
lutely clear that the extension of municipal
boundaries was a matter governed by state
rather than federal law.

Appellants have gone to great lengths
in an effort to create the illusion that
the legal principles supporting Hunter have
been eroded and that Hunter should have
"little continuing precedential force.”
(Jurisdictional Statement, p. 30) Their
theory as to Hunter's demise is contra-
dicted by two recent decisions of this

Court reaffirming Hunter.

In Gomillion v. Lightfoot, supra, this

Court affirmed the basic principles of
Hunter. While the Supreme Court originally

decided to hear that case in order to

10

consider issues under both the Fourteenth
and Fifteenth Amendments, its decision

was based solely upon the Fifteenth Amend-
ment (voting rights denied on the basis of

race). In doing so, the Gomillion Court

expressly held:

Thus, a correct reading of
the seemingly unconfined dicta
of Hunter and kindred cases is
not that the State has plenary
power to manipulate in every
conceivable way, for every con-
ceivable purpose, the affairs
of its municipal corporations,
but rather that the State's
authority is unrestrained by
the particular prohibition of
the Constitution considered in
those cases. 364 0.S. at 344
(emphasis added).

Gomillion expressly recognizes Hunter

to be good law. Gomillion expressly recog-

nizes that Hunter holds that the Fourteenth
Amendment's Due Process Clause does not ap-
ply to annexations by municipal corporations

and re-affirms that holding. The proposi-

tion bears restatement: Gomillion expressly

ll

affirms Hunter's holding that a state's
authority to modify the boundaries of its
political subdivisions is "unrestrained"
by the Fourteenth Amendment's Due Process
Clause.

The Gomillion opinion makes it clear

that its decision in reference to the
Fifteenth Amendment does not alter the
Hunter decision as to the application of
the Fourteenth Amendment—". . .[I]f one
principle clearly emerges from the numer-
ous decision of this Court dealing with
taxation, it is that the Due Process
Clause affords no immunity against mere
inequalities in tax burden, nor does it
afford protection against their increase
as an indirect consequence of a State's
exercise of its political power." Id.
at 343. “When a State exercises power

wholly within the domain of state

12

interest, it is insulated from federal
judicial review." Id. at 347.

The constitutional principles
established by Hunter were most recently

reaffirmed by this Court in Holt Civic

Club v. City of Tuscaloosa, supra. While

Appellants have quoted one statement from
Holt out of context suggesting that Hunter
has been "qualified by later cases" (Juris-
dictional Statement. p. 38), they fail to
recognize that Holt represents a strong
affirmation of the underlying principle
that the circumstances presented by this
case raise no issue of Fourteenth Amend-
ment due process rights.

In Holt, the plaintiff organization
challenged a state statute authorizing
municipalities to exercise certain powers

over persons and property within three

miles of their city limits. Persons

13

residing within the affected extra-
territorial area could not vote for the
city's elected officials. The Supreme
Court dismissed the challenge to the state
statute on the grounds that it lacked sub-
stantive merit as it “alleged no claim
cognizable under the United States Consti-
tution." Id. at 66,

In reaching its determination in Holt,
this Court held that persons within the
extraterritorial area did not have the con-
stitutional right to vote on municipal
policies affecting the persons and property
within the subject area. Id. at 69-70.
"Thus stripped of its voting rights attire,
the equal protection issue presented by
appellants becomes whether the Alabama
statutes giving extraterritorial force to
certain municipal ordinances and powers

bear some rational relationship to a

14

legitimate state purpose." Id. at 70.
In this regard, the Court noted the
followina:

Govexnment, observed Mr.
Justice Johnson, ‘is the
science of experiment, '
Anderson v. Dunn, 6 Wheat

, , and a
State is afforded wide
leeway when experimenting
with the appropriate allo-
cation of state legislative
power. This Court has often
recognized that political sub-
divisions such as cities and
counties are created by the
State ‘as convenient agencies
for exercising such of the
governmental powers of the
State as may be entrusted to
them'. Hunter v. Pittsburgh,
207 U.S. 161, 178. See also,
e.g., Sailors v. Board of —
Education, 3&7 U.S. at 108
(1967); Reynolds v. Sims, 377
U.S. 338, (1964). In
Hunter v. Pittsburgh, the
Court discussed at length the
relationship between a State
and its political subdivi-
sions, remarking: 'The num-
; ber, nature and duration of
the powers conferred upon
[municipal] corporations and
the territory over which they
shall be exercised rests in
the absolute discretion of the

15

State.' Ibid. While the
broad statements as to state
control over municipal cor-
porations contained in

Hunter have undoubtedly been
qualified by the holdings of
later cases such as Kramer v.
Union Free School Dist., supra,
we think that the case contin-
ues to have substantial consti-
tutional significance in em-
phasizing the extraordinarily
wide latitude that States have
in creating various types of
political subdivisions and con-
ferring authority upon them.
Holt at 71 (footnote omitted).

Thus, it is clear that Hunter is alive and
well, and is still the governing law as to
the questions involved in this case.

This Court concluded "that Alabama's
police jurisdiction statutes violate
neither the Equal Protection Clause nor
the Due Process Clause of the Fourteenth
Amendment." Id. at 75. Obviously, the
same holding is appropriate in this case.
As in Holt, the state statute challenged

by Appellants is a reasonable exercise of

16

ee

North Carolina's power to provide for muni-
cipal government. Therefore, pursuant to
Hunter and Holt, the statute is not subject
to this constitutional challenge.

B. The Decision of the North Carolina Court

of Appeals Is Consistent With the Law of
the Superme Court.

The decision of the North Carolina Court

in this case, Forsyth Citizens Opposing Annexa-

tion v. City of Winston-Salem, follows the prin-

ciples of Hunter, Gomillion, and Holt Civic

Club and thus no federal question exists.
Further, the decision involves the one of the
same annexations and the same issues involved

in Baldwin v. City of Winston-Salem, 710 F.2d

132 (4th Cir.), cert. denied, 104 S.Ct. 536

(1983). The Fourth Circuit in Baldwin deter-

minted that the Fourteenth Amendment is not
violated where, the "proposed annexation does
not impinge on fundamental rights or create

suspect classifications." Indeed, the

17

Fourth Circuit's ‘conclusion in this regard
was based on the fact that the allegations

of the plaintiffs in Baldwin, even if true,

did not raise a colorable claim under the

Fourteenth Amendment. Baldwin at 135. As

the Fourth Circuit pointed out, the excep-
tions to Hunter which have been recognized
by the United States Supreme Court in

Gomillion and Holt have not been all al-

leged in this case. "No suspect classifi-
cation or fundamental right is therefore
implicated and the ordinances thus do not
abridge the Fourteenth Amendment to the

United States Constitution." Baldwin at

135. See Raintree, 543 F.Supp. 625. See

Brewer (Appendix A). See also Citizens

Committed to Oppose Annexation v. City of

Lynchburg, 528 F.2d 816 (4th Cir.), appli-

cation denied 423 U.S. 1043 (1976);

Garren v. City of Winston-Salem, 463 F.2d

18

54 (4th Cir.), cert. denied 408 U.S. 1039

(1972); Thompson v. Whitley, 344 F.Supp.

480 (E.D.N.C. 1972) (three-judge district
court).
The North Carolina Court of Appeals

followed these principles in Forsyth Citi-

zens Opposing Annexation. N.C.G.S. 160A-

50(f) and the provisions incorporated
therein, the Court said, "amount to a
requirement that the courts determine
whether an annexation is reasonable."
Id. at 166. 312 S.E.2d at 518. Statutory
appeal procedures comport with due process

and none of -the allegations in Gomillion

Or Hayward v. Clay, 573 F.2d 187 (4th

Cir.), cert. denied 439 U.S. 959 (1978),

were involved. Following this Court's
decision in Hunter, the North Carolina
Court of Appeals thus properly affirmed

the trial court's judgment upholding the

19

i

annexation.

C. The North Carolina Appellate Courts
Do Review Annexations to Determine
Reasonableness and Compliance With
Due Process as Well as Other Consti-
tutional Standards.

Appellants' reyuest for review by this
Court is also based on their assertion
that under North Carolina law judicial re-
view of annexations is limited and that
the North Carolina Appellate Courts will
not review the constitutionality or reason-
ableness of municipal annexations. (Juris-
dictional Statement, pp. 40-48). The Ap-
pellants are simply incorrect with reference
to this basic premise. It is very clear
from the decisions of the North Carolina
Supreme Court and Court of Appeals that
annexations are subject to judicial review
for alleged constitutional infirmities, in-
cluding the general complaints of unreason-

ableness raised by Appellants.

20

The first decision concerning the con-
stitutionality of the annexation statutes
at issue in this case considered all manner
of constitutional questions, including
whether those statutes violated due pro-
cess of law under the Fourteenth Amendment
of the United States Constitution. In Re

Annexation Ordinance No. 866, 253 N.C. 637,

640-41, 117 S.E.2d 795, 798 (1961). In

this seminal decision, it was held that the
procedures provided by the statutes are sub-
stantial ones which protect the rights of
newly-annexed citizens:

It certainly cannot be
considered a mere shell or
ritual of conformity when
the governing body of a mu-
nicipality, in good faith,
obtains all the information
required by the Act, with
respect to the character of
the area or areas to be an-
nexed, the density of the
resident population therein,
the extreme boundaries there-
of, and the percentage of

21

such boundaries which are
adjacent or contiguous to
the municipality's boun-
daries, which must be at
least one-eighth; and
further provides or makes
provision to extend all of
the governmental services
to the newly annexed area
or areas; comparable to the
services provided for the
residents within the city
prior to annexation of the
new area or areas. 253 N.C.
at 647, 117 S.B.2d at 802.

In view of its judicial review of and in-
terpretation of the statutes, the North
Carolina Supreme Court held that they were
not in violation of due process.

The petitioners contend
that by reason of these an-
nexations in the manner in
which they have been brought
about, they have been de-
prived of their liberty and
property without due process
of law, in violation of Arti-
cle I, Section 17 of the
Constitution of North Caro-
lina and the Fourteenth Amend-
ment to the Constitution of
the United States. The record
in these proceedings does not
support the petitioners'

22

contention in this respect.
Certainly it would seem that
they do not desire to have
their respective properties
subject to the levy of city
taxes. Even so, where addi-
tional territory is annexed
in accordance with the law,
the fact that the property
of the residents in such area
will thereby become subject
to city taxes levied in the
future, does not constitute
a violation of the due pro-
cess clause of the State and
Federal Constitutions. 253
N.C. at 651-52, 117 S.E.2d
at 805.

With respect to whether or not the
North Carolina court will review "“reason-
ableness", the North Carolina Supreme

Court said in Moody v. Carrboro, 301 N.C.

318, 271 S.E.2d 265 (1980): "The review
(of annexations) is afforded pursuant to
G.S. 160A-50 and serves as a safeguard
against unreasonable and arbitrary ac-
tion by the annexing municipality."

The principle that compliance with a

constitutional statute establishes

23

constitutional reasonableness was recog-

nized by Judge McMillan in Raintree Home-

owners Association v. City of Charlotte:

N.C.G.S. 160A-50(f) and

the provisions incorporated
therein, amount to a re-
quirement that the Supeior
Court determine whether an
annexation is reasonable.

The language of the provi-
sions does not speak in terms
of arbitrariness, capricious-
ness or unreasonableness.
However, the effect of the
statute is to give substantial
protection against arbitrary,
capricious and unreasonable
acts by the city.

Id. at 629. Accord Forsyth Citizens Oppos

ing Annexation, et al. v. City of Winston-

Salem, supra.

The willingness of the North Carolina
Supreme Court to consider constitutional
questions which are properly raised in
state court proceedings is fully il-
lustrated by its consideration of a

Winston-Salem annexation. In Re

24

Annexation Ordinance #D-21927, 303 N.C.

220, 278 S.E.2d 224 (1981). In that
case, the North Carolina Supreme Court
considered several constitutional ques-
tions and addressed generalized griev-
ances concerning the "reasonablenss" of
the annexations and held: (1) that the
annexation statutes were not an unconsti-
tutional delegation of authority by the
state to the governing boards of munici-
palities; (2) that the statutes were not
unconstitutionally vague; (3) that the
fact that persons residing within the an-
nexed areas did not get to vote on the
matter did not violate either due process
or equal protection; (4) that the resi-
dents of the annexed areas were protected
in their rights to receive municipal ser-
vices such that no constitutional ques-

tions were at issue in that regard;

25

(5) that unilateral annexation was not
unconstitutional as “taxation without
representation" pursuant to either due
process or equal protection guarantees;
and, (6) that the annexation statutes were
not unconstitutional on the grounds that
judicial review is provided by a judge
Sitting as trier-of-fact, rather than by
way of a jury trial. 303 N.C. at 224-30,
278 S.E.2d at 228-30.

It is obvious from this North Caro-
lina Supreme Court decision and numerous
other cases that the North Carolina courts
have frequently reviewed constitutional
issues in annexation cases. For example,
the state courts have considered the ap-
plicability of due process guarantees of
the Fifth Amendment of the United States
Constitution, in addition to those guaran-

tees provided by the Fourteenth Amendment.

26

E.g., Moody v. Town of Carrboro, supra.

The state courts have applied an equal
protection analysis in appropriate in-
stances (unlike the annexations herein

challenged). E.g., Texfi Industries,

Inc. v. City of Fayetteville, 301 N.C.

1, 269 S.E.2d 142 (1980). The North
Carolina Supreme Court has demonstrated
its willingness to declare annexations

to be invalid. E.g., Hawks v. Town of

Valdese, 299 N.C. 1, 261 S.E.2d 90 (1980);

see also, Gaskill v. Costlow, 270 N.C.

686, 155 S.E.2d 148 (1967). The North
Carolina Supreme Court will consider
whether an annexation based solely upon
the desire to generate revenue is invalid.

See, In Re Ordinance of Annexation No.

1977-4, 296 N.C. 1, 19, 249 S.E.2d 698,
708 (1978). Further, consistent with the

foregoing authority, the state court will

a7

consider impropriety in the annexation
process itself if allegations of the same
are supported by "competent and substan-

tial evidence". In Re Annexation Ordi-

nance Adopted by the City of Charlotte,

284 N.C. 442, 452, 202 S.E.2d 143, 149
(1974) (challenging an annexation on
grounds that "the City ‘acted arbitrari-
ly, capriciously, and unreasonably in

that it did not uniformly apply the same
standards throughout the entire Annexa-
tion Area'"). In the Charlotte case
cited above, the North Carolina Supreme
Court found the annexation of petitioner's

land to be invalid and reversed the inclu-

sion of petitioner's lands within the an-
nexed area on the basis of an unreasonable
application of the annexation statutes.
284 N.C. at 457, 202 S.E.2d at 152. See

also, Forsyth Citizens, supra; In re

28

Durham Annexation Ordinance, 66 N.C.App.

473, 311 S.E.2d 898 (1984).

It is clear from these opinions that
the statutory annexation requirements are
carefully reviewed to ensure compliance
with constitutional principles.

IV. CONCLUSION

Appellees respectfully submit that the
decision of the North Carolina Court of
Appelas presents no substantial federal
question and is consistent with long-
standing principles of law articulated by
the United States Supreme Court. The
constitutionality of the North Carolina
annexation statutes and the review af-
forded in state court under those statutes
has been established in both state and
federal courts. For the reasons set forth
above, Appellees respectfully submit that

this Court should affirm the decision of

29

the North Carolina Court of Appeals or

dismiss the appeal as not presenting a

Substantial federal question.
Respectfully submitted this 20%

day of August, 1984.

Counsel 6f Record

WOMBLE CARLYLE SANDRIDGE & RICE
Post Office Drawer 84
Winston-Salem, NC 27102

(919) 721-3600

Sg heer

Ronald G. Seeber

Ahh D Kosa:
Ralph D. Karpifios

City Attorney's Office
115 City Hall
Winston-Salem, NC 27101

(919) 727-2056

Attorneys for Appellees

August 20, 1984

30

APPENDIX A
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
WINSTON-SALEM DIVISION
HENRY BREWER, et al.,
Plaintiffs,
C-82-801-WS

Vv.

CITY OF WINSTON-SALEM,
et al.,

Defendants.

meee eee ee ee ee”

JUDGMENT

THIS CAUSE came on for hearing on
plaintiffs' motion for stmmary judgment as
to their first and second causes of action,
and on defendants' motion for summary judg-
ment, before the undersigned at the Federal
Courthouse in Greensboro, North Carolina on
Friday, October 1, 1982. At the hearing on
said motions the plaintiffs were represented
by Mr. Rosbon D. B. Whedbee of Winston-Salem,

North Carolina and by Mr. James Hamilton of

la

the Washington, D.C. law firm of Ginsburg,

Feldman, Weil and Bress, Chartered; and

the defendants were represented by

Roddey M. Ligon, Jr. of the Winston-Salem
law firm of Womble, Carlyle, Sandridge &
Rice, and by City Attorney Ronald G. Seeber.
The Court, having considered the pleadings, /
affidavits, motions, briefs, and oral argu-
ments, adjudges as follows:

l. Plaintiffs' First Cause of Action.

The plaintiffs moved for summary judg-
ment on their first cause of action assert-
ing that the annexations by the City of
Winston-Salem challenged by this action
are unconstitutional in that they cannot be
subject to proper judicial review under
state law. With respect to this contention,
this Court adopts the opinion of Chief Judge

Ward entered in the case of Baldwin, et al.

v. City of Winston-Salem, et al., C-81-838-WS,

2a

filed July 28, 1982, and dealing with the
same issue as that raised in this portion
of plaintiffs' motion.

The memorandum opinion of Chief Judge
Ward states, in part:

"Both the United States Supreme

Court and the Fourth Circuit Court of Ap-
peals have unequivocally resolved the dis-
positive legal issue presented in this case.

In Berry v. Bourne, 588 F.2d 422, 423-424

(4th Cir. 1978), the court stated:

‘Hunter v. Pittsburgh (1907) 207
U.S. 161, 178-179, 28 S.Ct. 40, 52
L.Ed. 151, declared that annexation
by a city or town is purely a state
political or legislative matter, en-
tirely within the power of the state
legislature to regulate. Its language
was sufficiently broad, as an unfriend-
ly commentator has observed, "to dis-
pose of every conceivable challenge
to annexation." .. . Thus, it has
been held to foreclose attacks on a
state procedure specifically on either
due process or equal protection grounds.'

Accord, Carlisle v. City of Charlotte,

F.Supp. (W.D.N.C. 1982) (C-C-81-533-M,
3a

July 13, 1982).

This Court is bound to follow the
decision of the Fourth Circuit and cannot
distinguish its language from the facts of
this case.+ Plaintiffs fail to state a
claim upon which relief can be granted
under the fourteenth amendment.

IT IS, THEREFORE, ORDERED that
plaintiffs' Motion for Partial Summary
Judoment be, and same hereby is, DENIED.
For the reasons stated there..n, the plain-
taiffs' motion for summary judgment as to
its first cause of action must be denied.

s

2. Plaintiffs' Second Cause of Action.

The plaintiffs next move for summary

jJudement on their second cause of action.

ixceptions to the rule stated in
Berry v. Bourne, 588 F.2d 422, 423-424
(4th Cir. IS78), do not arise in this
case .*

4a

They assert that the annexations by the City
challenged in this action are unconstitu-
tional because persons such as plaintiffs
Henry Brewer, Robert M. Bircham and Gladys
Norman reside or operate businesses in the
annexed areas but do not own real property
in the annexed areas; and, therefore, cannot
seek judicial review of the annexation under
the North Carolina statutes. The defendants
respond that the North Carolina law allows
any property owner—not just real property
owners——-to challenge North Carolina annexa-
tions. During oral argument counsel for the
plaintiffs and defendants advised the Court
that Henry Brewer, Robert M. Bircham and
Gladys Norman are parties plaintiff to a
pending action in the Superior Court of
Forsyth County, North Carolina, which said
action challenges the validity of the an-

nexations involved here. Consequently, this

5a

is of the opinion that this portion of plain-
tiffs' motion for summary judgment is moot.
This Court does not feel that these plain-
tiffs may, at this time, contend in this
Court that they do not have a right to con-
test the annexations in state court when
they are in fact at this time contesting
the annexations in state court. Thus, the
Court feels that the plaintiffs' motion

for summary judgment as to their second
cause of action must be denied. The Court
holds, however, that should the state court
judicially determine that the above-named
plaintiffs do not have standing to contest
the validity of the annexation in state
court, plaintiffs would be authorized to
reopen this case in order to raise this
issue at that time.

3. Defendants' Motion for Summary
Judgment.

The defendants move for summary judgment

6a

—

as to all of plaintiffs' claims. For the
reasons stated herein, as well as those
stated in the Memorandum Opinion of Chief
Judge Ward adopted by this Court, the de-
fendants' motion for summary judgment
should be allowed.

IT IS, THEREFORE, ORDERED ADJUDGED
AND DECREED that the plaintiffs' motion
for summary judgment on the first cause of
action is denied; that plaintiffs' motion
for summary judgment on the second cause
of action is deemed to be moot and thus
denied subject to the right of plaintiffs
Henry Brewer, Robert M. Bircham and Gladys
Norman to reopen this case in the event
the state coult should hold that said
plaintiffs do not have standing in the

state court action; and, the defendants’

7a

motion for summary judgment is allowed,

sp Richard Cc. Brwin
nited States District Judge

November 16, 1982

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
WINSTON-SALEM DIVISION
HENRY BREWER, et al.,
Plaintiffs,
Vv. C-82-801-WS

CITY OF WINSTON-SALEM,
et al.,

Defendants.

ee ee

ORDER OF DISMISSAL

This matter came before the court for
a hearing on October 1, 1982 for ruling on
plaintiffs' motion for summary judgment as
to the first cause of action, plaintiffs'
motion for summary judgment as to its
second cause of action, and defendants'
motion for summary judgment. For the rea-
sons stated in the judgment, IT IS ORDERED
that this action be, and the same hereby
is, dismissed. However, the plaintiffs

Henry Brewer, Robert M. Burcham and Gladys

9a

Norman shall have leave to reopen this case
in the event that the state court holds
that they do not have standing in the an-

nexation proceeding now before it.

s/Richard C. Erwin
United States District Judge

November 16, 1982

10a

APPENDIX B

QUESTIONS PRESENTED FOR REVIEW
l. Does the due process clause of the
Fourteenth Amendment prohibit arbitrary
actions by municipalities in annexing
territory?
2. Does the due process clause continue
to require judicial review by state
courts of constitutional challenges to

state action?

(From "Petition for Writ of Certiorari to
the United States Court of Appeals for the

Fourth Circuit" in Baldwin, et al. v. City

of Winston-Salem, et al. No. 83-572)

lb

CERTIFICATE OF SERVICE
The undersigned hereby certifies that
a copy of the MOTION TO DISMISS OR AFFIRM
was served on opposing counsel on the

24th day of August, 1984.

¢
Kay eee
7 / 7 4,
James Hamilton

Robert L. Deitz

Ginsburg, Feldman and Bress, Chartered
1700 Pennsylvania Avenue, N.W.
Washington, D.C. 20006

Rosbon D.B. Whedbee

3307 Bonbrook Circle
Winston-Salem, NC 27106

31

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_0053%3A2. Public record. Not legal advice.