Moorman v. Wood

Decision Date17 December 1980
Docket NumberCiv. A. No. 80-130.
Citation504 F. Supp. 467
PartiesBernard MOORMAN, Thomas Beehan, Thomas Benton, Walter Bubenzer, Irvin Callery v. Albert WOOD, Kenton County Court Clerk.
CourtU.S. District Court — Eastern District of Kentucky

Sheryl G. Snyder, Francis J. Mellen, Jr., Janet G. Marcum, Louisville, Ky., for plaintiffs.

Robert Ruberg, Covington, Ky., for Wood.

Frank A. Wichmann, Covington, Ky., for Ft. Wright.

Jonathan A. Mason, Covington, Ky., for Crescent Spgs.

MEMORANDUM OPINION

BERTELSMAN, District Judge.

FACTS1

The court is here presented with a constitutional attack on a state annexation statute. The exact counterpart of this controversy has apparently not been the subject of any other judicial decision.

The 1980 session of the Kentucky General Assembly enacted K.R.S. 81A.430,2 which authorizes any city to designate for annexation a contiguous part of another city. If there is an objection, the matter can be placed on the ballot and the citizens of the annexation area then vote on the matter and a majority of those voting decide the issue.3

Plaintiffs here are citizens of the City of Covington, portions of which are sought to be annexed by the defendants, the smaller cities of Ft. Wright and Crescent Springs. Plaintiffs seek to block the annexation on the ground that K.R.S. 81A.430 is unconstitutional in that it contravenes their right to equal protection under the Fourteenth Amendment to the Constitution of the United States. They contend that the law must fall because it does not permit all of the voters of Covington to vote on what amounts to the deannexation of part of their city, a matter in which they claim a substantial interest.

The rationale of the 1980 annexation statutes cannot be understood in a vacuum. Some background is essential.

Annexation wars have been rife in Kentucky for generations. They have been the subject of particularly bitter controversies in the northern area of the state in which this court sits. This northern area is composed of some 50 cities, contained in three counties.4 The largest of the cities, Covington, has a population of about 50,000 and the smallest contains only a few hundred residents.

It is important to an understanding of the statutes here involved and of this decision to grasp that these disputes have no racial overtones.5 Nor do they usually involve conflicting class interests of wealth and poverty.

Although the plaintiffs here claim that the annexations are the result of the efforts of two "affluent subdivisions" to attempt to avoid their fair share of urban problems, this is not always, nor even usually the case in local annexation controversies. The court has known citizens of an unincorporated area with no municipal services whatever and a blue collar population to resist annexation to an affluent city of 15,000 and, in another case, a ferocious court battle to be waged to resist annexation to a city with a population of 3,000 or less, where neither the annexors nor the annexees could be described as affluent.

Although, of course, there may be some desire to escape higher taxes and urban problems, in many instances, the motivation for resisting annexation in this vicinity is that many of the people like to live in their small towns where they can know the mayor, city council members and other officials personally, and where they can live their lives, as they see it, relatively free from regulation and have a direct voice in such municipal matters as zoning or the granting of a liquor license.

Where financial considerations are a primary motive in opposing annexations, frequently they involve a conscious desire to accept fewer municipal services as a trade off for lower taxes. For example, many of the smaller communities, both incorporated and unincorporated, keep taxes rather low by utilizing volunteer fire departments, part-time police forces, septic tanks instead of sewers, no city manager or engineer, etc.6 From this point of view, the prevention of annexation enables those with limited financial resources better to own their own homes. To such people terms like "metro government" and "annexation" are calls to a holy war of resistance.

The annexing cities, on the other hand, are often motivated by a desire to expand their tax base and a perceived need to end the confusion and inefficiency which they contend results from the profusion of small government entities. The court expresses no opinion as to the wisdom of either of these positions. They are described here solely to explain the emotionally-charged dilemma with which the legislature was presented.

It is out of this history that the present controversy arises. In 1962 the City of Covington, certain citizens of which are individual plaintiffs here, commenced efforts to annex extensive unincorporated areas of Kenton County. At that time annexations were resisted in Kentucky by remonstrance suits, under which the state court in the context of an equitable action determined, under prescribed statutory tests, whether an annexation was appropriate.7

The 1962 annexation litigation worked its tortuous way through the courts until it finally concluded in 1979, with a decision in favor of the annexing City of Covington. The proceedings are too complicated even to attempt to describe here.8 In 1979 Covington was ultimately successful in finalizing the annexation of these large unincorporated areas. Some of this territory which went to Covington at the conclusion of this 18 years of forensic hostilities is now sought to be detached from Covington and joined to Crescent Springs and Ft. Wright by what amounts to a preemptive strike.

This was made possible because such bitter animosities had been engendered by the prolonged conflict that the vanquished citizens of these areas, refusing to accept their defeat, set up a type of underground resistance movement, sought aid from the General Assembly of the Commonwealth and induced it to repeal the old annexation statutes and enact the one at issue here.

These citizens, who regard themselves as freedom fighters of a sort, then formed an alliance with the smaller cities of Ft. Wright and Crescent Springs to annex them away from Covington under the new law.9 The annexation was challenged by the filing of appropriate petitions, and the issue scheduled to be placed on the ballot at the general election of November 4, 1980, pursuant to the new statute. The plaintiffs here as citizens of Covington attacked the new law and sought to enjoin the holding of the election, claiming the statute violated their equal protection rights in that it did not permit all the citizens of Covington to vote in the annexation election, although all had a substantial interest in the result.10

A preliminary injunction was sought from, but denied by this court, and the election held. There were other annexation issues on the ballot, through which Covington was attempting to annex certain unincorporated areas of Kenton County. The results are in the margin. In interpreting them, it must be recalled that a vote for the Ft. Wright and Crescent Springs annexation is actually an anti-annexation vote with respect to the City of Covington.11 As these results show, popular local enthusiasm for annexation to Covington is somewhat restrained.

ISSUE

Thus the issue is presented:

Does a violation of the Equal Protection Clause of the Fourteenth Amendment result from the efforts of the legislature of the Commonwealth of Kentucky to resolve the difficult political problems of annexation by providing that the residents of an annexation area, to the exclusion of other affected citizens, decide by popular referendum the city in which they shall live?12

The resolution of this issue involves both the equal protection doctrine and principles of federalism. This court holds that the legislature's solution to the annexation quandary is not unconstitutional.

JUSTICIABILITY

Defendants suggest that this case involves a non-justiciable controversy under the doctrine of Hunter v. City of Pittsburgh.13 As the discussion which follows shows, the court does not regard that decision as one relating to the justiciability doctrine, but as one applying principles of federalism. Therefore, the court holds that this case is justiciable.

PRINCIPLES OF FEDERALISM

It has been said that the division of powers between the branches of the federal government and between federal and state government is "the most central tenet of American constitutionalism."14

In the infancy of our Republic, great emphasis was placed on the autonomy of the states as a "barrier against the enterprises of ambition."15

"At the outset, only a small number of explicit substantive limitations on the exercise of governmental authority were thought essential; in the main, it was believed that personal freedom could be secured more effectively by decentralization than by express command. From the thought of seventeenth century English liberals, particularly as elaborated in eighteenth century France by Montesquieu, the Constitution's framers had derived the conviction that human rights could best be preserved by inaction and indirection-shielded behind the play of deliberately fragmented centers of countervailing power, in a vision almost Newtonian in its inspiration."16

In the context of municipal government, this principle is best exemplified by Hunter v. City of Pittsburgh.17 Hunter was an annexation case, exhibiting some of the conflicting policy problems found in the case at bar. There, the court held a statute of the State of Pennsylvania, providing for the merger of contiguous cities, constitutional under the Fourteenth Amendment, where the votes of both the larger and smaller cities were pooled, thus in effect giving the larger city the right to annex the smaller one contrary to the will of a majority of its citizens. In language that has been much quoted and frequently construed, the Court said:

"We think
...

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    ...principles of consolidated metropolitan government nor those of decentralized government in villages and towns." (Moorman v. Wood (E.D.Ky.1980) 504 F.Supp. 467, 473, 477.) The majority's conclusion is perhaps attributable to an underlying concern that, on the facts of this case, the elector......
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    ...restricting the franchise in local boundary elections. Two local election boundary decisions are particularly helpful: Moorman v. Wood, 504 F.Supp. 467 (E.D.Ky.1980), and City of New York v. State, 158 A.D.2d 169, 557 N.Y.S.2d 914, 916 (N.Y.App.Div.), aff'd, 76 N.Y.2d 479, 561 N.Y.S.2d 154,......
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1 books & journal articles
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    ...their development. See Gerald Frug, The City as a Legal Concept, 93 HARV. L. REV. 1057, 1083-90 (1980). (176.) See Moorman v. Wood, 504 F. Supp. 467, 469 (E.D. Ky. 1980); BRIFFAULT & REYNOLDS, supra note 58 (excerpting (177.) See, e.g., Gillette, supra note 58; Reynolds, supra note 58. ......

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