Ovalee Barefoot, et al., Plaintiffs - Appellants, versus City of Wilmington, North Carolina, Defendant - Appellee.
Nos. 01-1185(L) (CA-00-182-7-3-BO)
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
Filed: September 12, 2002
O R D E R
On the cover sheet, section 1 -- the status is changed from “UNPUBLISHED” to “PUBLISHED.”
On page 6, section 4 -- the section is changed to begin “Affirmed by published opinion....”
On page 6 -- the reference to the use of unpublished opinions as precedent is deleted.
Entered at the direction of Judge Gregory, with the concurrence of Judge Wilkins and Judge Luttig.
For the Court
/s/ Patricia S. Connor
Clerk
OVALEE BAREFOOT; GEORGE WRAGE; SHARON ALLEN; NICHOLAS FOKAKIS; ALGERON LEE BUTLER, JR.; SUSAN DEIBERT BUTLER; JOHN ELLIS BRYANT; SHERRY WILLIAMS BRYANT; THEODORE HERRING HEWLETT, SR.; ANN JOYCE HEWLETT; WILLIAM ADDISON HURST; LILLIAN WILLIAMSON HURST; MILES CREAMER HIGGINS; MARGARET GLENDY WILLIARD HIGGINS; MILES CREAMER HIGGINS, III; COLLEEN MITHCEL HIGGINS; JANET MOORE HICKS; JOHN RUSSELL HICKS; CAROLYN TIMMS HICKS; ALBERT EMERSON WILLARD; ELIZABETH WHITE WILLARD; MARTIN STEVENSON WILLARD; GABRIELLE HOLMES WILLARD; RICHARD BENTLEY WALDKIRCH; CAROL WELCH WALDKIRCH; SALLY HICKS REARDON; WILLIAM MARTIN WILLARD; THOMAS LEO JOYCE; SUZANNE SPENCE JOYCE; JOHN JAMES ORMOND; DAVID LEWIS ORMOND; MARY CAIN ORMOND; CLAUDE HUNTLEY MCALLISTER, JR.; NANCY HARDACRE MCALLISTER; KEVIN SLEAN SCULLY; MADELINE MARGURITE SCULLY; HARRIETT RIEMAN; JACK A. ALFORD; ALLAN L. ANTES; JANE L. ANTES; JOSEPH F. AUGUSTINE; CAROLYN R. AUGUSTINE; ROBERT C. BOWEN, SR.; MARY L. BOWEN; JULIAN H. BRADBERRY, JR.; MARY A. BRADBERRY; VANDER M. CLEMMONS; GLORIA R. DEGNAN; MURRAY J. DEGNAN; GEORGE
Nos. 01-1185, 01-2191
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
Argued: February 28, 2002. Decided: June 10, 2002
Before WILKINS, LUTTIG, and GREGORY, Circuit Judges.
Appeals from the United States District Court for the Eastern District of North Carolina, at Wilmington. Terrence W. Boyle, Chief District Judge. (CA-00-182-7-3-BO)
PUBLISHED
COUNSEL
ARGUED: Mary Margaret McEachern Nunalee, NUNALEE & NUNALEE, L.L.P., Wilmington, North Carolina; James Edison Eldridge, THE ELDRIDGE LAW FIRM, P.C., Wilmington, North Carolina, for Appellants. Thomas Clyde Pollard, City Attorney for City of Wilmington, Wilmington, North Carolina, for Appellees.
OPINION
GREGORY, Circuit Judge:
The Appellants challenge the City of Wilmington‘s decision to annex territory on which they reside. They assert that the annexation violates the Equal Protection Clause of the
I.
The City of Wilmington is located in eastern North Carolina in New Hanover County. Wilmington‘s current land area encompasses approximately 54.3 square miles, with a population of approximately 90,400. On June 2, 1998, the Wilmington City Council adopted an ordinance to annex an area known as the “1998 Annexation Area.” The 1998 Annexation Area consisted of approximately 9.27 square miles of land, lying between the pre-annexation eastern city limit and the Intracoastal Waterway (opposite the Masonboro Inlet), with a population of approximately
In addition to the General Assembly‘s delegation of authority to municipalities, the General Assembly has the authority to adopt local acts specifying the boundaries of municipalities, and the manner of any alteration.
Run (Ch. 94, 1999 N.C. Sess. Laws). In Holden Beach, the residents of the municipality must approve the annexation while in the other towns, an annexation is subject to a referendum by the residents of the proposed annexation area.
Appellants Barefoot, Wrage and Fokakis (the “Plaintiff-Appellants“), and approximately 100 Interveners (the “Intervener-Appellants“) (collectively the “Appellants“), reside in the 1998 Annexation Area. J.A. 21-29. The Appellants are opposed to the annexation. The first attempt to block the annexation was made in state court. All but approximately eighteen of the Appellants filed a joint petition for review in the New Hanover County Superior Court pursuant to
The Plaintiff-Appellants commenced this action on September 29, 2000 in the Eastern District of North Carolina alleging that the annexation violated the Equal Protection Clause of the
II.
The court reviews a district court‘s dismissal under
III.
Before reaching the merits of the appeal, there is a preliminary issue that requires attention. For the first time on appeal, the City argues that the federal courts lack subject matter jurisdiction under the Rooker-Feldman doctrine. The Rooker-Feldman doctrine generally bars district courts from “sit[ting] in direct review of state court decisions.” District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 483 n. 16 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413, 415-16 (1923). The prohibition extends “not only to issues actually decided by a state court but also to those that are inextricably intertwined with questions ruled upon by a state court.” Safety-Kleen, Inc. v. Wyche, 274 F.3d 846, 857-58 (4th Cir. 2001) (quotation marks omitted). “A federal claim is `inextricably intertwined’ with a state court decision if success on the federal claim depends upon a determination that the state court wrongly decided the issues before it.” Id. In addition, the Rooker-Feldman doctrine bars issues that could have
been raised in the state court proceeding. Feldman, 460 U.S. at 482 n. 16; Allstate Insurance Co. v. West Virginia State Bar, 233 F.3d 813, 819 (4th Cir. 2000); Guess v. Board of Medical Examiners of the State of South Carolina, 967 F.2d 998, 1003 (4th Cir. 1992). Claims by individuals not party to the state court proceedings, however, are not barred. Gross v. Weingarten, 217 F.3d 208, 218 n. 6 (4th Cir. 2000). Because the Rooker-Feldman doctrine goes to subject matter jurisdiction, it may be raised at any time. Plyler v. Moore, 129 F.3d 728, 731 n.6 (4th Cir. 1997).
Part of the City‘s argument is easily dismissed. Three of the Plaintiffs-Appellants,
As for the Appellants that were parties in the state court proceeding, we hold that the Rooker-Feldman doctrine bars this suit. The Appellants admit that the prior state proceedings addressed “whether [the City] had properly complied with North Carolina‘s annexation statutes . . . .” Appellants’ Reply Br. at 2-3. They further admit that the present action seeks a ruling that those same statutes are unconstitutional. The City contends that the Appellants had a “reasonable opportunity,” Brown & Root, Inc. v. Breckenridge, 211 F.3d 194, 201 (4th Cir. 2000), to litigate the constitutional issues in state court. Feldman, 460 U.S. at 482 n. 16; Allstate Insurance, 233 F.3d at 819; Guess, 967 F.2d at 1003. According to the City, North Carolina state courts may consider both state and federal constitutional challenges in reviewing annexation ordinances. See, e.g., In re Annexation Ordinance (Winston-Salem), 303 N.C. 220, 227, 278 S.E.2d 224 (1981) (considering and rejecting
IV.
The Appellants’ first argument on the merits is that the North Carolina statutory scheme violates the Equal Protection Clause. We hold that it does not. The Equal Protection Clause of the
To begin, there is no substantive constitutional right to vote on annexation. Hunter v. City of Pittsburgh, 207 U.S. 161 (1907); Berry v. Bourne, 588 F.2d 422 (4th Cir. 1978); Hayward v. Clay, 573 F.2d 187 (4th Cir. 1978); Muller v. Curran, 889 F.2d 54 (4th Cir. 1989). So thoroughly a matter of state political concern is annexation that the Supreme Court stated early last century that annexation is “entirely within the power of the state legislature to regulate.” Hunter, 207 U.S. at 178-79. Annexation
Later decisions, however, have qualified the state‘s power to some degree, subjecting annexations to some scrutiny under the
But this limitation on the state‘s discretion has not changed the consistent understanding that “[t]here is no basis for an equal protection claim when no one is granted the right to vote on the matter of annexation.” Berry, 588 F.2d at 424. It is only when the right to vote on a proposed annexation has been granted that “the equal protection clause requires that . . . restrictions on 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; see also Harper v. Virginia Bd. of Elections, 383 U.S. 663, 665 (1966) (“[O]nce the franchise is granted to the electorate, lines may not be drawn which are inconsistent with the Equal Protection Clause of the
Given this state of the law, the City appropriately acknowledges and describes the real gravamen of the Appellants’ equal protection claim:
Since there is no constitutional right to vote on annexation, the Appellants’ equal protection claim is based on the fact that the General Assembly of North Carolina through various local acts has allowed referenda on incorporation, consolidation or annexation in other parts of the state. The Appellants then contend that there must be a compelling state interest for denying them a right to vote on the City‘s annexation ordinance.
Appellee‘s Br. at 15.
We think this fails to state a claim under the Equal Protection Clause. There are two ways that annexation can be accomplished in North Carolina. Both are designed to operate uniformly throughout the state. Under
Because North Carolina‘s scheme does not burden a fundamental right or employ a suspect classification, annexation decisions are within “the absolute discretion of the State.” Hunter, 207 U.S. at 178. Consequently, we do not believe that North Carolina needs to articulate any basis for its annexation decisions. But even if we were to undertake rational basis review, there is surely a rational basis for North Carolina‘s approach to annexation, which delegates the authority to annex to municipalities, but which also provides that the General Assembly may, by local act, determine the manner by which the boundaries of a municipality will be altered. The General Assembly may not have the local knowledge necessary to make a final decision on annexation in some cases where the municipality has not exercised its power. Providing for a vote in such cases would maintain local input. See, e.g., Thompson v. Whitley, 344 F. Supp. 480, 485 (E.D.N.C. 1972) (suggesting that General Assembly may conclude that rural, less-densely populated, areas do not have a compelling
need for municipal services and that the provision of such services should be subject to a veto by the persons affected). In other cases, however, the General Assembly may find that overriding state concerns make a local referendum unnecessary or undesirable. See, e.g.,
V.
The Appellants’ next contention is that the district court erred in dismissing their substantive due process claim that North Carolina‘s annexation scheme violates their fundamental right to vote on annexation. As stated above, there is no such right. Hunter v. Pittsburgh, 207 U.S. 161; Berry v. Bourne, 588 F.2d 422; Hayward v. Clay, 573 F.2d 187; Muller v. Curran, 889 F.2d 54. Accordingly, the district court appropriately dismissed this claim.4
VI.
The Appellants next argue that the North Carolina provisions for judicial review of annexation decisions deny them procedural due process. See
due process claim, the Appellants must demonstrate that “there exists a liberty or property interest which has been interfered with by the State” and that “the procedures attendant upon that deprivation” were constitutionally deficient. Ky. Dep‘t of Corr. v. Thompson, 490 U.S. 454, 460 (1989). The Appellants contend that their “fundamental right to vote on annexation” is a protected liberty interest. As explained above, the Appellants do not have the right to vote on annexation. Consequently, the Appellants have been deprived of no cognizable liberty interest.5
Moreover, assuming that the Appellants were deprived of a liberty interest in voting on annexation, that deprivation was caused by the generally applicable annexation scheme enacted by the North Carolina General Assembly. When a legislature passes a law which affects a general class of persons, the political process provides all the process that is due. As Justice Holmes wrote for the Court in Bi-Metallic Investment Company v. State Board of Equalization, 239 U.S. 441, 445 (1915): “General statutes within the state power are passed that affect the person or property of individuals, sometimes to the point of ruin, without giving them a chance to be heard. Their rights are protected in the only way they can be in a complex society, by their power, immediate or remote, over those who make the rule.” See also Londoner v. Denver, 210 U.S. 373 (1908). Accordingly, we hold that the Appellants have not been deprived of due process of law.
VII.
The Appellants next argue that the district court erred in dismissing its takings claim.6 There are two categories of government action that are treated as per se takings. First, a physical invasion of an owner‘s property is a taking, “no matter how minute the intrusion, and no matter how weighty the public purpose behind it.” Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1015 (1992); Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, No. 00-1167, slip op. at 18 (U.S. April 23, 2002). Second, regulations that deny all economically beneficial and productive use of land are compensable takings. Lucas, 505 U.S. at 1017; Tahoe-Sierra, slip op. at 26; Front Royal v. Town of Front Royal, Virginia, 135 F.3d 275, 285 (4th Cir. 1998). It is obvious that neither of these categories apply here. The Appellants complain about the possibility of a physical invasion (such as the widening of streets), but the possibility of a taking is not a taking. The Appellants also complain that the annexation has affected their economic interests, but it is apparent that not all productive use of their land has been denied. Lucas, 505 U.S. at 1017.
Finally, North Carolina‘s scheme is not a taking under the Supreme Court‘s non-categorical approach. Penn Central Transportation Co. v. New York City, 438 U.S. 104, 124 (1978). This is simply not the type of regulation that “goes too far” and is consequently a taking under the
VIII.
The Appellants next argue that the district court erred in dismissing their claim that the annexation violated the Privileges and Immunities Clause of Article IV, § 2. As an initial matter, we observe that although the Appellants state that their claim is under Article IV, they quote the text of the
In any event, their claim fails under either. The Privileges and Immunities Clause of Article IV is “designed to ensure to a citizen of State A who ventures into State B the same privileges which the citizens of State B enjoy.” Toomer v. Witsell, 334 U.S. 385, 395 (1948). The Appellants make no argument regarding any discrimination between citizens of different States, nor can we conceive of any. Accordingly, the Appellants have failed to state a claim under Article IV.
The Privileges and Immunities Clause of the
IX.
Finally, the Appellants argue that the district court abused its discretion in denying their joinder motion. The motion sought to join Walter Futch as a plaintiff and the Town of Leland as a defendant. As stated above, the Town of Leland is a separate municipal corporation from the City of Wilmington. Futch is a resident of an area recently annexed by the Town of Leland.
X.
For the foregoing reasons, we conclude that the district court did not err in granting the City of Wilmington‘s motion to dismiss, or in denying the Appellants’ joinder motion. Accordingly, the judgment of the district court is affirmed.
AFFIRMED
Notes
Id. at 135 n. 3. That the Appellants are here asserting that they were deprived of a fundamental right does not give rise to a right to a judicial forum to pursue that assertion. The right to vote—to the extent it exists and an individual has been deprived of it—is certainly a protected liberty interest, and the Due Process Clause requires fair and adequate procedures if an individual is deprived of his/her liberty. But the Due Process Clause was not meant to require direct judicial review for every mere assertion of the deprivation of a (non-existent) liberty interest. The Appellants’ suggestion to the contrary puts the cart before the horse. And at any rate, North Carolina courts do permit constitutional challenges on direct review of annexation decisions. See ante at 10. So it appears that most of the Appellants already have an entitlement to all the process they are seeking. The only exception would be Sharon Allen, who, because she is not a property owner, has no right to appeal the annexation decision at all.Given our conclusion that the
Fourteenth Amendment is not violated where, as here, the proposed annexation does not impinge on fundamental rights or create suspect classifications, there is no right under theFourteenth Amendment to challenge annexation decisions alleged merely to be arbitrary and capricious. There is, accordingly, no federal right to have state courts hear such challenges to allegedly arbitrary and capricious annexation decisions; the availability of such review is solely a matter of state law.