Armed Services; Cities and Towns--annexation--federal Servicemembers Civil Relief Act--
plain statement rule
The trial court did not err in an annexation case by granting respondent city's motion to
dismiss based on the petition being time-barred even though petitioners contend the federal
Servicemembers Civil Relief Act tolled their time to seek review, because: (1) petitioners sought
judicial review after expiration of the 60-day period provided by N.C.G.S. § 160A-60(a); (2)
although the plain statement rule applies when a federal statute intends to interfere with a state's
regulation of its municipalities, the federal Act in this case does not contain a plain statement
showing an unmistakably clear intent to intrude upon North Carolina's state sovereignty in the
area of annexations when the word “annexation” does not appear anywhere in the statute, the
Act's fundamental purpose is to address personal financial claims rather than large-scale
government action, and petitioners failed to cite a single case which applies the Act to
nonpersonal claims challenging large-scale government action; and (3) petitioners have not
asserted any personal right and the remedy sought is too broad when it could halt the annexation
almost indefinitely, thus going beyond the stated purpose of the Act.
Parker, Poe, Adams, & Bernstein, L.L.P., by R. Bruce Thompson
II, and Anthony Fox; and City Attorney Karen M. McDonald, for
respondent appellee.
The Brough Law Firm, by Robert E. Hornik, Jr., for petitioner
appellants.
Andrew L. Romanet, Jr., and Gregory F. Schwitzgebel, III, for
North Carolina League of Municipalities, Amicus Curiae.
McCULLOUGH, Judge.
Petitioner appellants appeal from an order granting
respondent's motion to dismiss. On 24 November 2003, the City of
Fayetteville adopted an ordinance annexing approximately 28 squaremiles of land and over 40,000 residents. The annexation was to
become effective on 30 June 2004. In North Carolina, an owner of
annexed property can seek judicial review if he or she files a
petition “[w]ithin 60 days following the passage of an annexation
ordinance.” N.C. Gen. Stat. § 160A-50(a) (2003).
A group of Cumberland County residents, the Gates Four
community, filed the only timely petition for review. The City of
Fayetteville and Gates Four settled their dispute, and pursuant to
N.C. Gen. Stat. § 160A-50(m) (2003), the superior court entered a
consent judgment on 12 May 2004. Thus, the Gates Four community
was excluded from the annexation.
Petitioners filed this challenge on 14 June 2004. This was
five months after the 60-day period had ended, two-and-a-half years
after the annexation was first publicized, and sixteen days before
the annexation's effective date.
Although they petitioned for review after the 60-day period
ended, petitioners argued that the federal Servicemembers Civil
Relief Act (“Act”) tolled their time to seek review. The trial
court rejected this contention and dismissed the action as time-
barred on 28 June 2004. Petitioners appeal.
On appeal, petitioners argue that the trial court erred by
dismissing their petition as time-barred. We disagree and affirm
the decision of the trial court.
Petitioners contend that the trial court erred in dismissing
their appeal. Although they acknowledge that they sought judicial
review after the 60-day period ended, petitioners argue that theAct tolled their time to seek review. They rely on Section 206 of
the Act which states that:
The period of a servicemember's military
service may not be included in computing any
period limited by law, regulation, or order
for the bringing of any action or proceeding
in a court, or in any board, bureau,
commission, department, or other agency of a
State (or political subdivision of a State) or
the United States by or against the
servicemember or the servicemember's heirs,
executors, administrators, or assigns.
50 App. U.S.C. § 526 (as amended by Pub. L. 108-189, § 206(a) Dec.
19, 2003)).
Petitioners suggest that since they were in the military
during the 60-day period, the Act tolled the statutory period for
them. We disagree.
As announced by the United States Supreme Court, the plain
statement rule dictates that a federal statute cannot be
interpreted to intrude upon state sovereignty unless the statute
contains a plain statement showing an unmistakably clear intent to
intrude. Gregory v. Ashcroft, 501 U.S. 452, 460-61, 115 L. Ed. 2d
410, 424 (1991). “This plain statement rule is nothing more than
an acknowledgment that the States retain substantial sovereign
powers under our constitutional scheme, powers with which Congress
does not readily interfere.” Id. at 461, 115 L. Ed. 2d at 424.
Therefore, the plain statement rule preserves the balance between
state and federal power by ensuring that courts do not accidentally
erode state power where Congress did not intend such a result. Recently, the United States Supreme Court confirmed that the
plain statement rule applies when a federal statute intends to
interfere with a state's regulation of its municipalities. Nixon
v. Missouri Municipal League, 541 U.S. 125, 158 L. Ed. 2d 291
(2004). In Nixon, the federal Telecommunications Act of 1996
prohibited the states from barring “any entity” from the
telecommunications business. Id. at 128, 158 L. Ed. 2d at 298.
However, the State of Missouri adopted a statute prohibiting its
own municipalities from providing telecommunications services. Id.
at 129, 158 L. Ed. 2d at 298. Municipalities in Missouri
challenged the state statute arguing that they fell within the
federal Act's broad “any entity” language; the municipalities also
claimed that the federal statute preempted the state law and
invalidated Missouri's attempt to bar them from the
telecommunications business. Id.
The United States Supreme Court rejected the municipalities'
claim and declined to inject a federal statute into a state's
sovereign right to govern its municipal subdivisions:
Preemption [by the Federal Telecommunications
Act] would come only by interposing federal
authority between a State and its municipal
subdivisions, which our precedents teach, “are
created as convenient agencies for exercising
such of the governmental powers of the State
as may be entrusted to them in its absolute
discretion.”
Id. at 140, 158 L. Ed. 2d at 305 (citation omitted). The Supreme
Court also explained that
federal legislation threatening to trench on
the States' arrangements for conducting theirown governments should be treated with great
skepticism, and read in a way that preserves a
State's chosen disposition of its own power,
in the absence of the plain statement Gregory
requires.
Id. Therefore, in spite of the broad “any entity” language, the
Supreme Court found no plain statement for the Telecommunications
Act to apply to municipalities.
Although they are undertaken by municipalities, annexations
derive from this State's sovereign power. The North Carolina
Constitution vests the General Assembly with the exclusive, but
delegable power, to regulate municipal borders. N.C. Const. art.
VII, § 1. Municipal borders are fundamentally a State concern
because municipalities are agents of the State. See Smith v.
Winston-Salem, 247 N.C. 349, 354, 100 S.E.2d 835, 838 (1957) (“A
municipal corporation, city or town, is an agency created by the
State to assist in the civil government of a designated territory
and the people embraced within these limits.”). Therefore, to
interfere with how the General Assembly shapes municipal borders is
to interfere with its sovereignty.
The issue is whether the federal Act contains a plain
statement showing an unmistakably clear intent to intrude upon
North Carolina's state sovereignty in the area of annexations. For
several reasons, we conclude that it does not.
First, the word “annexation” appears nowhere in the statute,
and petitioners have not cited a single case in which the tolling
provision applied to annexations. It is difficult to imagine that
Congress, intending to so dramatically alter state annexations, didso casually and quietly. If Congress truly aimed to overhaul state
annexations, it surely would have used the word “annexation” at
least once.
Second, the Act's fundamental purpose is to address personal
financial claims, not large-scale government action. Numerous
provisions seek to relieve servicemembers from worrying about
standard financial claims and transactions. For instance, Section
201 limits creditors' ability to obtain default judgments against
servicemembers. 50 App. U.S.C. § 525 (as amended by Pub. L. 108-
189, § 201, Dec. 19, 2003). Section 207 lowers interest rates for
indebtedness. Id. at § 207. Section 301 restricts evictions of
servicemembers. Id. at § 301. And, other sections affect
termination of motor vehicle leases, limit foreclosures against
property, and protect servicemembers' rights under life insurance
policies. Finally, and perhaps most importantly, petitioners have
failed to cite a single case which applies the Act to non-personal
claims challenging large-scale government action.
In fact, accepting respondents' position would cripple the way
municipalities determine their borders. Indefinitely tolling the
time to challenge annexations would give individual servicemembers
substantial power over governments and entire communities.
Petitioners concede that under their interpretation of the law, a
single servicemember could challenge the validity of an annexation
for years or even decades after the annexation's completion. Our
courts presume that the legislature acted reasonably and “'did not
intend an unjust or absurd result. . . .'” Best v. Wayne Mem'lHosp., Inc., 147 N.C. App. 628, 635, 556 S.E.2d 629, 634 (2001)
(citation omitted), appeal dismissed, disc. review denied, 356 N.C.
433, 572 S.E.2d 426 (2002). Allowing a single servicemember to
hold up an annexation for years and perhaps decades would paralyze
a municipality's ability to provide services to its citizens. This
absurd and potentially damaging result goes beyond the stated
purpose of the Act which allows “the temporary suspension of
judicial and administrative proceedings[.]” 50 App. U.S.C. § 525
(as amended by Pub. L. 108-189 § 2(2)). It further reveals that
Congress did not intend to intrude upon North Carolina's state
sovereignty in the area of annexations.
Finally, we cannot grant petitioners' relief because it is
overly broad. Section 2 of the Act is designed “to provide for the
temporary suspension of judicial and administrative proceedings
. . . that may adversely affect the civil rights of servicemembers
during their military service.” Id. (emphasis added). In the
present case, petitioners have not asserted any personal right.
They have not sought to limit the scope of the annexation or
exclude their property from the annexation as the members of the
Gates Four community did. Instead, the relief requested is a
complete nullification, or at the very least, a potential long-term
holdup, of the annexation. This remedy is broad and would go
beyond the stated purpose of the Act. Nullifying an annexation is
not simply an action to preserve the rights of servicemembers
during their military service. Rather, it would allow the tolling
provision to be improperly applied to non-servicemembers, peoplewho would then receive the benefits and burdens of having the
annexation nullified even if they failed to take timely action in
seeking judicial review. Furthermore, as petitioners have
acknowledged, the relief they request is not temporary because it
could halt the annexation almost indefinitely.
While we recognize and appreciate the sacrifices of the
members of our armed forces, we believe that Congress did not
intend to defeat municipalities' ability to operate, including
their ability to complete annexations with finality. Petitioners
did not seek to exempt their own property and did not seek judicial
review within the 60-day time period. The Act's tolling provision
has never been applied to large-scale governmental action, such as
annexations. Finally, since the Act does not reveal a clear intent
to intrude upon North Carolina's state sovereignty in the area of
annexations, we hold that the trial court acted properly in
granting respondent's motion to dismiss. The order is
Affirmed.
Judges HUNTER and LEVINSON concur.
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