Opposition Brief — Barefoot v. City of Wilmington

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No. 02-390 | OCT11 2002

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Supreme Court of the United States i

OVALEE BAREFOOT, ET AL.,

Petitioners,

CITY OF WILMINGTON, ET AL.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

CourRT OF APPEALS FOR THE FOURTH CIRCUIT

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

Roy Cooper Thomas C. Pollard

North Carolina Attorney General Counsel of Record

Charles J. Murray Wilmington City Attorney

Special Deputy Attorney General Post Office Box 1810

North Carolina Department 102 N. Third Street

of Justice Wilmington, NC 28402

Post Office Box 629 Telephone: (910) 341-7820

Raleigh, NC 27602-0629 Facsimile: (910) 341-5824

Telephone: (919) 716-6800 Attorney for Respondent

Attorneys for Respondent State of - City of Wilmington

North Carolina

Curry & TaAY.or @¢ (202) 393-4141 6 HTTPY//USsSsCINFO.cOoM

i

PARTIES TO THE PROCEEDING AND

STATEMENT PURSUANT TO RULE 29.6

Petitioners

The Petitioners are:

OVALEE BAREFOOT; GEORGE WRAGE;

NICHOLAS FOKAKIS; SHARON - ALLEN;

ALGERNON L. BUTLER, JR.; SUSAN D. BUTLER;

JOHN E. BRYANT; SHERRY W. BRYANT;

WILLIAM A. HURST; LILLIAN W. HURST; MILES

C. HIGGINS; MARGARET G. W. HIGGINS; MILES

C. HIGGINS, III; COLLEEN M. HIGGINS; JOHN R.

HICKS; CAROLYN T. HICKS; ALBERT E.

WILLARD; ELIZABETH W. WILLARD; MARTIN

S. WILLARD; GABRIELLE H. WILLARD; SALLY

H. REARDON; WILLIAM M. WILLARD; THOMAS

L. JOYCE; SUZANNE S. JOYCE; JOHN J.

ORMOND; DAVID L. ORMOND; MARY C.

‘ORMOND; CLAUDE H. McALLISTER, JR.;

NANCY H. MCALLISTER; KEVIN S. SCULLY;

MADELINE M. SCULLY; HARRIETT RIEMAN;

JACK A. ALFORD; JULIAN H. BRADBERRY, JR.;

MARY A. BRADBERRY; VANDER M.

CLEMMONS; MURRAY J. DEGNAN; GLORIA R.

DEGNAN; GEORGE DITCHEOS; BARBARA

DITCHEOS; RONALD L. DOWNING; BARBARA J.

DOWNING; HENRY P. DOZIER; FRANCES M.

DOZIER; GARY D. GALLOWAY; JENNIE

GALLOWAY; GREGORY V. GIAMMALVO;

GLORIA J. GIAMMALVO; WILLIAM BB.

HAVERTY; EDNA B. HAVERTY; CHARLES E.

HORTON; FLOYD P. KIRBY; LINDA N. KIRBY;

CLIFF C. MABRY, JR.; MARTY MABRY; C. ROY

il

MALLOTT; RICHARD H. MARSTON, JR.; JOAN

P. MARSTON; HUGH A. McEACHERN, JR.;

MARY L. McEACHERN; JOHN V. METTS; SUSAN

METTS; BESSIE G. PENNINGTON; KARL O.

PIERCE; JUDY PIERCE; JOEL T. PINER; H. VAN

REID; DOROTHY B. REID; JAMES W. ROUSE,

JR.; JANIS M. ROUSE; PHILLIP A. SCARRELL;

MONA R. SMALLEY; KENNETH SMITH; PAULA

SMITH; EDWIN E. SPENCER; MONICA R.

SPENCER; HOWARD J. TALLEY; BETSY

TALLEY; RICHARD L. WOODBURY; SUZANNE

M. WOODBURY; BARBARA D’EMELIO;

HERCHEL E. ROGERS; JULIA P. ROGERS; JOHN

C. BYRNES, Ill; MARGARET J. BYRNES; ROBERT

E. DOYLE; JAMES RAYBURN; SARAH

RAYBURN; CATHERINE C. TAMISIEA; DANIEL

J. FILOMENA; CATHERINE FILOMENA; KIRK A.

HOWARD;- BARBARA A. HOWARD; J. DON

BULLARD; FAYDENE S. CORBETT.

Based on the pleadings, the Petitioners are individuals

residing in New Hanover County, North Carolina and

owning real and personal property in the area annexed

by the City of Wilmington.

Respondents

The Respondents are the CITY OF WILMINGTON

and the STATE OF NORTH CAROLINA. The City of

Wilmington is a municipal corporation organized under

the laws of the State of North Carolina for the

government of the people within its jurisdiction. No

publicly held company holds any interest in either of

the Respondents.

PARTIES TO THE PROCEEDINGS

TABLE OF CONTENTS

TABLE OF CITED AUTHORITIES

lil

TABLE OF CONTENTS

eceeeeeeseeeseseeeeeeeeseseeeeeeeeeeeeeeeeee

REASONS FOR DENYING PETITION FOR WRIT OF CERTIORARI

CONCLUSION

THE FOURTH CIRCUIT'S DECISION ON

THE RIGHT TO VOTE CLAIM DOES

NOT CONFLICT WITH THE RELEVANT

DECISIONS OF THIS COURT AND IS

THE FOURTH CIRCUIT'S DECISION ON

ROOKER-FELDMAN DID NOT RENDER

ACCESS TO THE FEDERAL COURTS

IMPOSSIBLE. ............000sccccccccscsssccccees

THE FOURTH CIRCUIT'S DECISION ON

THE ROOKER-FELDMAN DOCTRINE

DID NOT AFFECT ITS DECISION ON

iV

TABLE OF CITED AUTHORITIES

Page

CASES:

ADAMS V. CITY OF COLORADO SPRINGS, 308 F.

Supp. 1397 (D. COLO. 1970), AFF'D, 399 U.S.

CI eds cette anius atetterckek ec ees a 3

BALDWIN V. CITY OF WINSTON-SALEM, 710 F. 2D

132 (4™ Cir. 1983), CERT. DENIED 464 U.S. 1012

iiss ol cade ciacci wink ve can kp aaah sears cis Sadics bis 6

BERRY V. BOURNE, 588 F. 2D 422 (4™ Cir. 1978)....... ee

BROWN & ROOT, INC. V. BRECKENRIDGE, 211 F.

ee ee I Gs icicsis k's ck troeieass cies saaseeddenkan 9

CARBONELL V. LOUISIANA DEPARTMENT OF HEALTH

AND HUMAN RESOURCES, 772 F. 2D 185 (5™ Cir.

PI ies Savini hac BGS Gass Ged bd bce ce R UL ic oicRcn as 8

CARLYN V. CITY OF AKRON, 726 F. 2D 287 (6™

Sees SN Cle ous iva chcnavankilndeetnateie te suede ice caus 2

DISTRICT OF COLUMBIA COURT OF APPEALS V.

FELDMAN, 460 U.S. 462 (1983).................. 7, 8,9, 11

FCC v. BEACH COMMUNICATIONS, INC., 508 U.S.

ee Ce fats Seheccaaconbcivaccantudbbchoickesinkpinasvidacine 6

GUESS V. BOARD OF MEDICAL EXAMINERS, 967 F.

ee Ms PM ickuk ccticin can dishsenavunddusiectevetbve 8

HARPER V. VIRGINIA BOARD OF ELECTIONS, 383

Sh Ns kvivhivnebibonstlenstriipeascmiobiusenabiessounes 1

Vv

HAYWARD V. CLAY, 573 F.2D 187 (4™ Cir. 1978),

CERT. DENIED 439 U.S. 959 (1978) ......:0-sseeeeereee 2,4

HELLER V. DOE, 509 U.S. 312 (1993).....::esseeeeeeeereeeeees 6

HILL V. STONE, 421 U.S. 289 (1975) ....0.::esreeeeeerereeeeees 1

HOLT CIvic CLUB V. TUSCALOOSA, 439 U.S. 60 |

(1978).....sccscccscssescrsscconceverevescnscsencacesewscsooeees pa

HUNTER V. PITTSBURGH, 207 U.S. 161 (2987) ... 0200. 2.4.3

Ps

IN RE ANNEXATION ORDINANCES, 253 N.C. 637,

117 S. E. 2D 795 (1961)........ceceeeererenerneneeeeeereneees 10

IN RE ANNEXATION ORDINANCE ( WINSTON-SALEM),

303 N.C. 220, 278 S.E. 2D 224 (1981) .....--..2sseeeee 10

JEFFERSON TP. V. CITY OF WEST CARROLLTON, 517

F. Supp. 417 (S.D. OHIO 1981), AFF'D, 718 F.

2D 1099 (6™ CIR. 1983) ......seeeeeeeeeeeeerereeerseeneeeeseess 3

JORDAHL V. DEMOCRATIC PARTY OF VIRGINIA, 122

F. 3p 192 (4™ Cir. 1997), CERT. DENIED 522

U.S. 1077 (1998) ....ccccceessssceeeesseneeeeenseeeeeenees 7, 8,9

KIRBY V. CITY OF PHILADELPHIA, 905 F. Supp. 222

(ED. PA. 1995) cacssosssoscccncsssssssnsesnscscssonversevecsenes g

KRAMER V. UNION FREE SCHOOL DISTRICT, 395

U.S. 621 (1969)........sccescssreccecescsscnsencescnseesoeserees 1

MCGOWAN V. MARYLAND, 366 U.S. 420 (1961) ........+--. 3

vi

MOORMAN V. Woop, 504 F. Supp. 467 (E.D. Ky.

MULLER V. CURRAN, 889 F. 2D 54 (4™ Cir. 1989),

CERT. DENIED 493 U.S. 1074 (1990).................ccceeees 2

MURPHY V. KANSAS CITY, 347 F. Supp. 837 (W.D.

es: CTH dich vkdeacbnanipaiéuuiadaktadvebedinkelbobtevaoucouns 3

RAINTREE HOMEOWNERS ASSOCIATION V.

CHARLOTTE, 543 F. SuPP. 625 (W.D.N.C. 1982)........ 6

ROGERS, ET. AL. V. CITY OF WILMINGTON,

(UNPUBLISHED), DISC. REVIEW DENIED, 352 N.C.

FOR POO eke BUD Ce GD vicskssccsansntscesvetencssaseas 10

ROOKER V. FIDELITY TRUST COMPANY, 263 U.S.

FEF EEE Piitnetkauncxesalhuacksehriteiaisbayasaisantbessinens 7

SALSBURG V. MARYLAND, 346 U.S. 545 (1954).............. 3

THOMPSON V. WHITLEY, 344 F. Supp. 480

ee TF TIED vo bcxaea shes aidbskicnicdanevassiadbvassacdentas 3

STATUTES:

SP Salles: NEE: thas scxthanateakd cndbiandabehdaticnndeiainlinte 12

N.C. Gen. Stat. §160A-49 (2001) Sakis hnenaanbanbmadmubenatel 2

N.C. Gen. Stat. §160A-50 (2001) .........cscssssssssseseeseseeees 10, 11

l

REASONS FOR DENYING THE

PETITION FOR WRIT OF CERTIORARI

PFEILIVN EVANS Se Ee

I. THE FOURTH CIRCUIT'S DECISION ON THE

RIGHT TO VOTE CLAIM DOES NOT

CONFLICT WITH THE RELEVANT DECISIONS

OF THIS COURT AND IS CORRECT.

The Petitioners contend that the Fourth Circuit's

decision conflicts with this Court's decisions in Harper v.

Virginia Board of Elections, 383 U.S. 663 (1966), Kramer

vy. Union Free School District, 395 U.S. 621 (1969) and

Hill v. Stone, 421 U.S. 289 (1975). All of these cases,

however, involved an election, where there was some

burden or limitation placed on a group's right to participate

in the election. Since there was no vote on the City of

Wilmington's (“City”) annexation here, these cases have no

application. As this Court said in Kramer,

States do have latitude in determining

whether certain public officials shall be

selected by election or chosen by appointment

and whether various questions shall be

submitted to the voters... . However,

‘once the franchise is granted to the

electorate, lines may not be drawn which are

inconsistent with the Equal Protection Clause

of the Fourteenth Amendment.’ [Citing

arper v. Virginia Bd. of Elections

395 U.S. at 629.

It is only when the franchise is granted in a

particular election that strict scrutiny applies to any

2

classification of voters. This Court has limited the

application of the voting cases cited by the Petitioners to

situations where individuals otherwise have the right to vote

based on residency. Holt Civic Club v. Tuscaloosa, 439

U.S. 60, 68 (1978). These cases merely stand for the

proposition that “where the state [has] agreed to have

important municipal issues made by voters, the equal

protection clause must be applied to all within the

jurisdiction whose rights are affected." [emphasis added]

Carlyn v. City of Akron, 726 F. 2d 287, 289 (6" Cir.

1984). These cases have not been applied to require state-

wide uniformity on the local issues presented to local voters.

"In this case, no one has been given the right to vote

on the annexation proposed by the City of Wilmington."

Barefoot v. City of Wilmington, Pet., App. A at 13a. The

statutory basis for the City's annexation does not provide a

right to vote. N.C. Gen. Stat. §160A-49 (2001), Pet., App.

C at 82a. Therefore, there are no restrictions or limitations

on the Petitioners’ exercise of their franchise. There is no

constitutional right to vote on annexation. Hunter v.

Pittsburgh, 207 U.S. 161 (1907); Berry v. Bourne, 588 F.

2d 422 (4" Cir. 1978); Hayward v. Clay, 573 F. 2d 187 (4"

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

Curran, 889 F. 2d 54 (4" Cir. 1989), cert. denied 493 U.S.

1074 (1990). There is no compelling equal protection ciaim

for consideration by this Court.

Even though no one had a right to vote on the City's

annexation, the Petitioners contend that the Fourth Circuit

should have focused on the entire state instead of the City of

Wilmington in deciding their equal protection claim. The

Petitioners, however, can not show how a vote by the

residents of Holden Beach (Pet., App. C at 128a) or a vote

by potential annexees near River Bend (Pet., App. C at

3

122a) on local annexation decisions is of any interest to the

Petitioners residing adjacent to the City of Wilmington.

Every federal court that has reviewed a challenge to an

annexation where a state's annexation procedures allowed a

vote in some cases but not in others, has rejected the

Petitioners’ argument. See: Morgan v. Florissant, 147 F.

3d 772 (8 Cir. 1998); Jefferson Tp. v. City of West

Carrollton, 517 F. Supp. 417 (S.D. Ohio 1981), aff'd, 718

F. 2d 1099 (6" Cir. 1983); Murphy v. Kansas City, 347 F.

Supp. 837 (W.D. Mo. 1972); Thompson v. Whitley, 344 F.

Supp. 480 (E.D.N.C. 1972) (three-judge panel); Adams v.

City of Colorado Springs, 308 F. Supp. 1397 (D. Colo.

1970) (three-judge panel), aff'd, 399 U.S. 901 (1970).

Murphy v. Kansas City, 347 F. Supp. 837, was an

equal protection challenge to an annexation based in part on

the fact that the residents of the area were not permitted to

vote while residents of proposed annexation areas in other

parts of the state were permitted to vote. The Murphy

Court upheld Missouri's annexation laws stating: "It is

established law that a state has wide discretion in deciding

whether its laws shall operate state wide, or shall operate

only in certain areas or shall affect one group of citizens

differently from others. [Citations omitted]" Id. at 845.

As this Court has held, ". . . the Equal Protection clause

relates to equality between persons as such, rather than

between areas and . . . territorial uniformity is not a

constitutional prerequisite." McGowan v. Maryland, 366

U.S. 420, 427 (1961); Salsburg v. Maryland, 346 U.S. 545

(1954). That North Carolina provides several procedures

"by which annexation to a municipal corporation might be

had is not violative of any Federal Constitutional doctrine."

v. Ci West roliton, 517 F. Supp. at

420. While annexation may be a matter of general interest

to the community, there is no “basis for an equal protection

4

claim when no one is granted the right to vote on the

matter" of annexation. [Citation omitted] Berry v. Bourne,

588 F. 2d at 424. It is only when "the right to vote is

established [that] the equal protection clause requires that, in

matters of general interest to the community, restriction of

the franchise on grounds other than age, citizenship and

residence can be tolerated only upon proof that it furthers a

compelling state interest." Hayward v. Clay, 573 F. 2d at

190.

The Petitioners take issue with the Fourth Circuit's

reliance upon Hunter v. Pittsburgh, 207 U.S. 161, in

determining that North Carolina need not "articulate any

basis for its annexation decisions." Pet., App. A. at 15a.

Hunter, however, recognized that states have broad power

in structuring municipalities. As the Hunter Court stated:

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 . . .. The number, nature,

and duration of powers conferred upon these

corporations and the territory over which

they shall be exercised rests in the absolute

discretion of the state. .. . The state,

therefore, at its pleasure, may modify or

withdraw all such powers, . . . expand or

contract the territorial area, unite the whole

or a part of it with another municipality,

repeal the charter and destroy the

corporation. All this may be done,

conditionally or unconditionally, with or

without the consent of the citizens, or even

against their protest. In all these respects,

5

the state is supreme, and its legislative body .

. may do as it will, unrestrained by any

provision of the Constitution of the United

States.

207 U.S. at 178-79. It is absolutely clear that the

extension of municipal boundaries is a matter

governed by state rather than federal law.

In 1968, this Court stated that Hunter v. Pittsburgh,

"continues to have substantial constitutional significance in

emphasizing the extraordinarily wide latitude that States

have in creating various types of political subdivisions and

conferring authority upon them." Holt Civic Club_v.

Tuscaloosa, 439 U.S. at 71. As the Holt court stated, "a

State is afforded wide leeway when experimenting with the

appropriate allccation of state legislative power." Id. It has

been stated that Hunter applies principles of federalism that

are a central tenet of American constitutionalism. Moorman

v. Wood, 504 F. Supp. 467, 471 (E.D. Ky. 1980).

. . . [A]nnexation . . . is a political question

in the sense that under our Constitution's

principles of federalism, it is the prerogative

of the individual states to resolve the

conflicting interests involved in annexation

disputes as they see fit. It is true that the

prerogative is subject to limitations of equal

protection and due process, but Hunter

requires that these limitations be interpreted

in light of that federalism.

Id. at 473. If the Petitioners’ arguments are accepted, the

federal courts would become super state legislatures

overseeing the manner in which the right to vote is provided

6

on a multitude of local issues in every state. Such an

eventuality would conflict with the principles of federalism

set forth in Hunter.

Based on Hunter, the general rule is that challenges

to annexations do not generally lie under the Fourteenth

Amendment and exceptions to this rule have been

recognized only in limited circumstances. A city may not

manipulate its boundaries for the purposes of removing

voters from the city because of their race. If a state chooses

to give residents of an area an opportunity to vote on

annexation, that right must be afforded in a manner that

comports with equal protection. Raintree Homeowners

Association v. Charlotte, 543 F. Supp. 625 (W.D.N.C.

1982), aff'd Baldwin v. City of Winston-Salem, 710 F. 2d

132 (4" Cir. 1983), cert. denied 464 U.S. 1012 (1983).

Neither the allegations in the Petitioners’ complaints nor the

facts will support a Fourteenth Amendment challenge on

either of these grounds.

The Fourth Circuit was correct in stating that North

Carolina did not need to state a basis for its different

methods of annexation. At most the different methods of

annexation are subject to rational basis review, and the

Petitioners' equal protection claims are insufficient to

overcome the presumption of rationality accorded North

Carolina's annexation _ statutes. FCC _v. Beach

Communications, Inc., 508 U.S. 307 (1993); Heller v. Doe,

509 U.S. 312 (1993). The Fourth Circuit correctly upheld

the dismissal of the Petitioners’ complaints and its decision

does not conflict with any decision of this Court.

7

Il. THE FOURTH CIRCUIT'S DECISION ON

ROOKER-FELDMAN. DID NOT RENDER

ACCESS TO THE FEDERAL COURTS

IMPOSSIBLE.

The Petitioners' primary contention is that the

Fourth Circuit's decision incorrectly broadened the ‘Rooker-

Feldman doctrine. District of Columbia Court of Appeals

v. Feldman, 460 U.S. 462 (1983); Rooker v. Fidelity Trust

Company, 263 U.S. 413 (1923). The Fourth Circuit

determined that Rooker-Feldman barred suit by all of the

Petitioners that were parties to the state court action

challenging the City's annexation ("state petitioners"). Pet.,

App. A at lla. The Petitioners contend that the state court

proceeding only considered the City's compliance with

North Carolina law and the claims asserted here are

independent of the state claims. The Petitioners also

contend that they did not have a reasonable opportunity to

present the federal claims in‘state court "considering North

Carolina's bias and judicial history respecting the issue of

forcible annexation." Pet. at 15. Although the entire suit

should have been dismissed under Rooker-Feldman, the

Fourth Circuit's decision as to the state petitioners was

correct.

In this case, entertaining the federal claims of the

state petitioners would be the equivalent of an appellate

review of a state court order that arises out of a particular

adjudication. Jordahl v. Democratic Party of Virginia, 122

F. 3d 192, 202 (4" Cir. 1997), cert. denied 522 U.S. 1077

(1998); See also: Feldman, 460 U.S. 462. Rooker-

Feldman is implicated "if in order to grant the federal

plaintiff the relief sought, the federal court . . . must take

action that would render the [state court] judgment

ineffectual." [citations and internal quotes omitted]

8

Jordahl, 122 F. 3d at 202. While Rooker-Feldman does not

bar general constitutional challenges to legislative acts,

Feldman, 460 U.S. at 479, whenever a plaintiff's federal

court complaint is "inextricably intertwined" with a specific

state court adjudication, it will not be allowed to proceed as

a general challenge. Kirby v. City of Philadelphia, 905 F.

Supp. 222 (E.D. Pa. 1995); See also: Jordahl v.

Democratic Party of Virginia, 122 F. 3d 192. To determine

whether or not a general challenge has been made to a

legislative enactment, the courts look to the nature of the

relief requested. “Artificial attempts to redefine the relief

sought are not sufficient to overcome the requirements of

Feldman." Guess v. Board of Medical Examiners, 967 F.

2d 998, 1004 (4" Cir. 1992). Feldman directs the court to

undertake a realistic consideration of the nature of the

underlying claim. Carbonell v. Louisiana Department of

Health and Human Resources, 772 F. 2d 185, 189 (5™ Cir.

1985).

Even if the federal claims are not raised in the state

court proceedings or not ruled upon, the doctrine will

preclude the review of such claims. “[I]f Plaintiffs who

lose in state court recast their claims in federal court under

the guise of federal constitutional claims that were not raised

or decided by the state court, Feldman will preclude

jurisdiction if the constitutional claims are inextricably

intertwined with the merits of the state court judgment.”

Guess, 967 F. 2d at 1002. As the Feldman Court stated in

an often cited footnote,

Moreover, the fact that we may not have

jurisdiction to review a final state-court

judgment because of a petitioner’s failure to

raise his constitutiona] claims in state court

does not mean that a United States District

9

Court should have jurisdiction over the

claims. By failing to raise his claims in state

court a plaintiff may forfeit his right to obtain

review of the state-court decision in any

federal court. This result is imminently

defensible on policy grounds. We have noted

the competence of state courts to adjudicate

federal constitutional claims. [citations

omitted] We also noted in Cardinale that one

of the policies underlying the requirement

that constitutional claims be raised in state

court as a predicate to our certiorari

jurisdiction is the desirability of giving the

state court the first opportunity to consider a

-state statute or rule in light of federal

constitutional arguments. A state court may

give the statute a saving construction in

response to those arguments. [citation

omitted]

Feldman, 460 U.S. at 482, note 16. It has also been stated

that a claimant cannot avoid Rooker-Feldman by recasting

his federal claim as a Section 1983 claim. Jordahl, 122 F.

3d at 202. One inquiry that the courts must make to

determine if the constitutional claims are “inextricably

intertwined with” questions ruled upon by a state court is

whether or not a party had a reasonable opportunity to raise

his federal claim in the state proceedings. Brown & Root,

Inc. v. Breckenridge, 211 F. 3d 194, 201 (4" Cir. 2000).

When the above standards are applied to the case at

bar, Rooker-Feldman is clearly implicated by the state

petitioners’ complaints in this action and they were correctly

dismissed for lack of subject matter jurisdiction. The

complaints filed by the Petitioners requested that the

10

annexation ordinance be declared invalid, null, void and of

no effect and that the City be enjoined from enforcing the

ordinance. The state petition for review pursuant to N.C.

Gen. Stat. §160A-50 (1999) requested the same relief. The

New Hanover County Superior Court upheld the annexation

ordinance and the state petitioners appealed to the North

Carolina Court of Appeals, which affirmed the trial court’s

decision. Rogers, et. al. v. City of Wilmington, N.C. App.

No. COA99-674 (New Hanover Cty. April 18, 2000), Pet.,

App. E at 130a. The state petitioners then sought

discretionary review in the North Carolina Supreme Court

_ which was denied on August 24, 2000. Rogers, et. al. v.

City of Wilmington, 352 N.C. 591, 544 S.E. 2d 784

(2000), Pet., App. E at 138a. To grant the relief

requested by the state petitioners, the District Court would

have been required to take action that rendered the state

court judgment ineffectual, and Rooker-Feldman is clearly

implicated.

Even though the state petitioners’ recast their claims

against the annexation under the guise of _ federal

constitutional claims, such claims are _ inextricably

intertwined with the state court judgment and Feldman

precludes jurisdiction. Despite the Petitioners’ contentions

to the contrary, there was a reasonable opportunity to raise

the federal claims in the state proceedings. The actual

practice of the North Carolina courts has been to consider

both federal and state constitutional challenges to the

‘ underlying statutes in reviewing annexation ordinances.

See: In re Annexation Ordinance (Winston-Salem), 303

N.C. 220, 278 S.E. 2d 224 (1981); In re Annexation

Ordinances, 253 N.C. 637, 117 S. E. 2d 795 (1961).

The Petitioners contend that the present action does

not seek review of the state court decisions but is a general

1]

constitutional challenge to North Carolina's annexation

legislation. Yet, one of the Petitioners’ challenges was

based on the purported limited review afforded by N.C.

Gen. Stat. §160A-50 (2001). Pet., App. A at i7a. This is

a direct challenge to the level of review employed by the

State court. By not raising their constitutional claims in the

State court proceedings, the state petitioners denied the

North Carolina courts the Opportunity to “give the statute a

Saving construction in response to those [constitutional ]

arguments.” Feldman, 460 U.S. at 482, note 16.

The state petitioners admit that they specifically

declined to bring their constitutional challenges in state

court. Pet. at 15-16. Despite what the state petitioners

think about the fairness of the North Carolina courts, they

are fully competent to adjudicate federal constitutional

claims. Id. The state petitioners had the Opportunity to

bring their federal claims in state court and then petition for

a writ of certiorari to review any adverse state judgment.

By failing to raise their federal constitutional claims in state

court, the state petitioners waived such claims. Id. The

decision of the Fourth Circuit dismissing the constitutional

claims of the state petitioners under the Rooker-Feldman

doctrine was correct.

Ill. THE FOURTH CIRCUIT'S DECISION ON THE

ROOKER-FELDMAN DOCTRINE DID NOT

AFFECT ITS DECISION ON THE MERITS.

While the state petitioners were correctly dismissed

under Rooker-Feldman, this Court should not consider this

issue because it did not affect the Fourth Circuit's

determination on the merits. The City contended on appeal

for the first time that the Rooker-Feldman doctrine barred

12

the consideration of the Petitioners’ claims. The Fourth

Circuit dismissed all of the state petitioners, but considered

the claims of approximately eighteen Petitioners that were

not parties to the state court proceedings. Pet. App. A at

10a-lla. If any of the remaining Petitioners had prevailed

on their claims, then all of the Petitioners would have

procured the relief they sought. Thus, even if the Fourth

Circuit committed error in its application of Rooker-

Feldman, such error did not affect the substantial rights of

the state petitioners. Cf. 28 U.S.C. §2111 ("On the hearing

of any appeal or writ of certiorari in any case, the court

shall give judgment after an examination of the record

without regard to errors or defects which do not affect the

substantia] rights of the parties."). Therefore, the Rooker-

Feldman issue should not be considered by this Court.

CONCLUSION

For the reasons set forth above, the Respondents

respectfully request that this Honorable Court deny the

petition for writ of certiorari.

Roy Cooper Thomas C. Pollard

North Carolina Attorney Counsel of Record

General Wilmington City Attorney

Charles J. Murray Post Office Box 1810

Special Deputy Attorney 102 N. Third Street

General Wilmington, NC 28402

North Carolina Department Telephone: (910) 341-7820

of Justice Facsimile: (910) 341-5824

Post Office Box 629 Attorney for Respondent

Raleigh, NC 27602-0629 City of Wilmington

Telephone: (919) 716-6800

Attorneys for Respondent

State of North Carolina