U.S. v. McGee
| Decision Date | 26 July 1983 |
| Docket Number | No. 82-3068,82-3068 |
| Citation | 714 F.2d 607 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. James H. McGEE, et al., Defendants-Appellants. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Robert E. Albright, Richard C. Brahm (argued), Lucas, Prendergast, Albright, Gibson, Newman & Gee, Columbus, Ohio, for defendants-appellants.
Arthur E. Gowran (argued), Robert D. Clark, Dirk D. Snel, Land & Natural Resources Div., Appellate Section, Washington, D.C., for plaintiff-appellee.
Before LIVELY and MARTIN, Circuit Judges, and PHILLIPS, Senior Circuit Judge.
This case involves the continuing efforts of the City of Dayton, Ohio, and other nearby municipalities to annex land belonging to the United States Wright-Patterson Air Force Base, located in Greene and Montgomery Counties, Ohio. In the present appeal Dayton challenges a permanent injunction against such annexation issued by the Southern District Court of Ohio on November 17, 1981. We affirm the decision of the district court enjoining the annexation.
The Wright-Patterson Air Force Base has been under the exclusive jurisdiction of the United States since 1945. The base covers roughly 8,146 acres of land and serves as headquarters for the Air Force's Logistical Command, its Aeronautical Systems and Foreign Technology Divisions, its Institute of Technology and its four Aeronautical Laboratories. Approximately 24,000 military and civilian personnel work at this facility.
The dispute over annexation of the territory within the boundaries of the Wright-Patterson Air Force Base has a complex and lengthy history involving five years of litigation in the district court and two previous appeals to the Sixth Circuit. In February 1976, various landowners in the Dayton area petitioned the Montgomery County Commissioners to annex an area of land, including the Wright-Patterson land, to the City of Dayton. The petition was approved by the County and forwarded to Dayton for acceptance or rejection pursuant to Ohio law. Before the City acted on the petition, however, the United States commenced an action in the Southern District of Ohio seeking a preliminary injunction against the annexation. United States v. Pope, Civil No. C-3-76-145 (S.D.Ohio 1976). District Judge Carl Rubin granted the injunction and the City appealed to this court.
While that appeal was pending, the Ohio Legislature amended Ohio Rev.Code § 709.01 to provide that no territory within the boundaries of a United States military base could be annexed to any Ohio Municipal corporation without the approval of the Secretary of Defense. The effective date of this amendment was October 1, 1976, and it was made applicable to all annexation petitions that were pending on that date. In light of this development, this court issued an order remanding the Pope case to the district court with instructions to determine whether § 709.01 applied to the current annexation proceedings, and, if so, to dismiss the case as moot. On remand, the district court issued an order dated May 3, 1977, in which it concluded that the new amendment had "direct applicability to the facts in the case." The case was dismissed and no appeal was filed.
Despite the order of the district court, the Dayton Board of City Commissioners subsequently approved the annexation of the Wright-Patterson land without the consent of the Secretary of Defense. This prompted the United States to file the present action on May 10, 1977, in an effort to enjoin Dayton from implementing the annexation and from exercising any municipal powers over the base.
On May 24, 1977, the district court issued a preliminary injunction against Dayton. In its findings of fact and conclusions of law, the court analogized the case to the situation before the Court of Appeals for the Eighth Circuit in United States v. City of Bellevue, Nebraska, 474 F.2d 473 (8th Cir.), cert. denied, 414 U.S. 827, 94 S.Ct. 46, 38 L.Ed.2d 60 (1973), and held that the potential for friction between military and city officials in the event of annexation justified its decision to grant the injunction. United States v. McGee, 432 F.Supp. 557, 560-61 (S.D.Ohio 1977). The court also stated as follows:
In the belief that the plaintiff is entitled to a preliminary injunction and the defendants are entitled to a hearing thereon, the Court does submit Findings of Fact and Conclusions of Law. Counsel may request and will receive an opportunity to present evidence on the accuracy of such findings. Should counsel by agreement forgo further hearing, the Court will adopt these findings and conclusions as the basis for a permanent injunction. Id. at 558.
On June 7, 1977, Dayton moved for the district court to vacate the preliminary injunction and dismiss the case. District Judge Rubin interpreted a portion of Dayton's motion as a request for an evidentiary hearing and scheduled one for July 28, 1977. Prior to the date of the hearing, however, Dayton appealed the case. On November 5, 1979, this Court entered an order holding that the district court had not abused its discretion in granting the preliminary injunction. The evidentiary hearing was postponed during the time the case was pending on appeal.
The case remained dormant until July 2, 1981, when the United States filed a motion for summary judgment. On September 25, 1981, the district court issued an order requiring Dayton to show cause why the court should not make permanent the previously issued preliminary injunction. In response to this order, Dayton argued that a permanent injunction could not be granted until it had been afforded an evidentiary hearing. At the show cause hearing subsequently held, the district court indicated that an evidentiary hearing would be fruitless in the case.
On November 17, 1981, the court entered an order and judgment holding that it was unnecessary to hear further evidence in the case and making the injunction permanent. It held that Ohio Rev.Code § 709.01, as amended effective October 1, 1976, applied to the present case and precluded further annexation proceedings with respect to the Wright-Patterson Air Force Base without the consent of the Secretary of Defense. As an alternative basis for issuing the permanent injunction, the court adopted its May 24, 1977 holding concerning the potential for friction between the military base and the City if the Wright-Patterson land were annexed. This appeal followed. Reference is made to the reported decision of the district court at 432 F.Supp. 557 for a recitation of additional pertinent facts.
The City of Dayton advances several arguments on appeal in support of vacating the injunction. First, it asserts that the district court abused its discretion in granting a permanent injunction without affording it an evidentiary hearing. Second, the City argues that Ohio Rev.Code § 709.01 is inapplicable to the present case because the annexation petition was no longer pending on the effective date of this statute. Third, it argues that even if § 709.01 does apply, the injunction should be vacated because the statute violates the Ohio Constitution's prohibitions against special legislation and retroactive legislation. Fourth, it contends that the district court erred to the extent that its decision to grant the injunction against Dayton was based on the potential for friction between military and city officials in the event of annexation. Finally, Dayton asserts that granting the injunction violated the tenth amendment to the Constitution of the United States because it allowed the federal government to interfere with state and local procedures for expanding the boundaries of a state municipality.
We look first to the question of whether Ohio Rev.Code § 709.01 (Page 1982 Supp.), as amended, governs this dispute. This section provides:
Territory may be annexed to, or detached from, municipal corporations, in the manner provided in sections 709.01 to 709.47 of the Revised Code. No territory lying within the boundaries of a military base, camp, or similar installation under the jurisdiction of a military department of the United States government, that is used for the housing of members of the armed forces of the United States and is a center for military operations of the department shall be annexed to a municipal corporation under sections 709.01 to 709.21 of the Revised Code without the approval of the secretary of defense of the United States, his designee, or other person having authority under federal law to give such approval.
As previously mentioned, the effective date of the amendment was October 1, 1976. Furthermore, § 3 of Ohio House Bill 1482, which amended § 709.01 to read as quoted above, clarifies the applicability of this section as follows:
SECTION 3. Petitions for incorporation filed pursuant to Chapter 707. of the Revised Code and petitions for annexation filed pursuant to Chapter 709. of the Revised Code which are pending on the effective date of this act shall be governed by the terms of this act.
See Ohio Rev.Code § 709.01 (Page 1982 Supp. at p. 7, emphasis added).
Dayton claims that § 709.01 does not apply to the annexation petition in the present case because the petition was not still pending on the effective date of the amendment. It asserts that the petition ceased to "pend" when the county board of commissioners approved it on April 14, 1976, even though the City of Dayton did not give its required approval until May 5, 1977.
We conclude that this argument is completely without merit. The district court stated as follows in its November 17, 1981, order, in which it held for the second time that § 709.01 applied to the present annexation process:
The law of Ohio is clear that the annexation is not completed until an annexation ordinance has been passed and published as required by Ohio Rev.Code § 709.04. Bach v. Goff, 24 CC(NS) 561; State Ex Rel South Brooklyn, v....
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