# Opposition Brief — Barefoot v. City of Wilmington

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2002
- **Citation:** 537 U.S. 1019

## Text

| anil a Cam, 7
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No. 02-390 | OCT11 2002

In the | OM Yh) RK |
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_0393%3A2. Public record. Not legal advice.