Jordan v. Town of Morningside , 30 F. App'x 144 ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
ANDRE R. JORDAN; CYNTHIA J. 
JORDAN,
Plaintiffs-Appellants,
v.  No. 01-1615
TOWN OF MORNINGSIDE, MD,
Defendant-Appellee.

Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Peter J. Messitte, District Judge.
(CA-00-3082-PJM)
Argued: January 22, 2002
Decided: March 1, 2002
Before WILLIAMS and KING, Circuit Judges, and
Cynthia H. HALL, Senior Circuit Judge of the
United States Court of Appeals for the Ninth Circuit,
sitting by designation.
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: Isaac Henry Marks, O’MALLEY, MILES, NYLEN &
GILMORE, P.A., Calverton, Maryland, for Appellants. Kevin Bock
Karpinski, ALLEN, JOHNSON, ALEXANDER & KARP, Baltimore,
Maryland, for Appellee.
2 JORDAN v. TOWN OF MORNINGSIDE
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Andre and Cynthia Jordan (the Jordans) appeal from the district
court’s dismissal of their 42 U.S.C.A. § 1983 action for failure to state
a claim. Because we agree that the Jordans failed to allege a cogniza-
ble claim under § 1983, we affirm.
I.
The Jordans live on McKeldin Drive in Suitland, Maryland. On or
about November 30, 1999, the Town of Morningside, Maryland
approved a resolution to annex McKeldin Drive and several neighbor-
ing areas. The resolution became effective on January 14, 2000. After
approving the annexation, Morningside caused Prince George’s
County, Maryland to assess and collect real property taxes from the
Jordans in the amount of $773.00 for the July 1, 2000 to June 30,
2001 tax year. On September 22, 2000, the Jordans filed this action
pursuant to § 1983 in the Circuit Court for Prince George’s County,
Maryland against Morningside, alleging various violations of state
law, as well as violations of the First and Fourteenth Amendments,
arising out of the purportedly unlawful annexation.1
The Jordans claim that in approving the annexation, Morningside
violated Maryland’s statutory scheme for annexation. Article 23A,
§ 19 of the Maryland Code provides in relevant part as follows:
(a) Legislative body authorized to enlarge corporate
boundaries. — The legislative body, by whatever
name known, of every municipal corporation in this
State may enlarge its corporate boundaries as provided
1
On October 26, 2000, the Jordans amended their complaint to include
a Fifth Amendment due process claim.
JORDAN v. TOWN OF MORNINGSIDE 3
in this subheading; but this power shall apply only to
land:
....
(b) Initiation by legislative body. — (1) The proposal for
change may be initiated by resolution regularly intro-
duced into the legislative body of the municipal corpo-
ration, in accordance with the usual requirements and
practices applicable to its legislative enactments, and
also in conformity with the several requirements con-
tained in subsections (b) and (c) of § 13 of this subtitle,
but only after the legislative body has obtained the
consent for the proposal from not less than 25 percent
of the persons who reside in the area to be annexed and
who are registered as voters in county elections and
from the owners of not less than 25 percent of the
assessed valuation of the real property located in the
area to be annexed.
....
(f) Petition for referendum by residents of area to be
annexed. — At any time within the 45 day period fol-
lowing the final enactment of the resolution, a number
of persons equal to not less than 20 percent of the per-
sons who reside in the area to be annexed and who are
registered as voters in county elections in the precinct
or precincts in which the territory to be annexed is
located may, in writing, petition the chief executive
and administrative officer of the municipal corporation
for a referendum on the resolution. Upon the presenta-
tion of a petition to the officer, he shall cause to be
made a verification of the signatures thereon and shall
ascertain that the persons signing the petition represent
at least 20 percent of the persons who reside in the
area to be annexed and who are registered as voters in
county elections in the precinct or precincts in which
the territory to be annexed is located. Upon verifying
that the requirements of this subsection have been
4 JORDAN v. TOWN OF MORNINGSIDE
complied with, the officer shall by proclamation sus-
pend the effectiveness of the resolution, contingent
upon the results of the referendum.
Md. Code Ann. 1957, Art. 23A, § 19 (Miche 1998). The Jordans con-
tend that Morningside failed to obtain the signatures required to annex
their property, thus violating § 19(b)(1). The Jordans further contend
that Morningside violated § 19(f) by failing to initiate a referendum
after they presented a petition containing the signatures of 20% of the
persons residing in the area to be annexed. These violations, the Jor-
dans argue, resulted in an unlawful annexation, creating unlawful tax
liability.
After removing the case to the United States District Court for the
District of Maryland, Morningside filed a motion to dismiss pursuant
to Federal Rule of Civil Procedure 12(b)(6). The district court granted
Morningside’s motion and dismissed the Jordans’ § 1983 claim with
prejudice. The Jordans filed a motion to alter or amend the district
court’s order to provide for a remand to the state court of the Jordans’
state law claims, which the district court denied. On April 19, 2001,
the Jordans filed a notice of appeal to this court, appealing only the
district court’s dismissal of their Fourteenth Amendment due process
claim.2 On appeal, the Jordans contend that Morningside’s failure to
abide by § 19 and the resultant unlawful tax increase violated due pro-
cess, a claim that they argue is cognizable pursuant to § 1983.
II.
We review the grant of a motion to dismiss de novo. See Mayes v.
Rapoport, 198 F.3d 457, 460 (4th Cir. 1999). "In reviewing a 12(b)(6)
dismissal, we construe factual allegations in the nonmoving party’s
favor, treating them as true, and we will affirm a dismissal for failure
to state a claim only if it appears that the plaintiffs would not be enti-
tled to relief under any facts which could be proved in support of their
claim." Id.2
The Jordans have disavowed any intent to appeal the district court’s
dismissal of their First or Fifth Amendment claims. (Appellant’s Br. at
5 n.1.)
JORDAN v. TOWN OF MORNINGSIDE 5
The Supreme Court has made clear that our review of municipal
annexation decisions under the Fourteenth Amendment is tightly cir-
cumscribed, recognizing that the state is vested with the exclusive
power to make annexation decisions and that the state’s exercise of
that power generally does not give rise to federal constitutional
claims. Hunter v. Pittsburgh, 207 U.S. 161, 178-79 (1907); see also
Baldwin v. Winston-Salem, 710 F.2d 132, 135 (4th Cir. 1983) ("[T]he
creation and redrawing of the political subdivisions of a state, unlike
the exercise of power by those subdivisions, are peculiarly matters
involving state political concerns."); Campbell v. Sales Tax District
No. 3 of St. Tammany Parish, 673 F. Supp. 790, 796 (E.D. La. 1987),
aff’d without opinion, 864 F.2d 789 (5th Cir. 1988) ("[A]nnexation by
a city or town is purely a state political matter, entirely within the
power of the state legislature to regulate."). In applying Hunter, we
have identified two situations that support a Fourteenth Amendment
claim: (1) where the annexation decision infringes upon fundamental
rights; or (2) where the annexation decision creates suspect classifica-
tions. Baldwin, 710 F.2d at 135.
The Jordans argue that their case fits within the former, contending
that the arbitrary and capricious imposition of taxes incident to an
unlawful annexation deprives the Jordans of their fundamental right
to due process. This argument, however, is foreclosed by Baldwin,
wherein we held, "there is no right under the Fourteenth Amendment
to challenge annexation decisions alleged merely to be arbitrary and
capricious." Id. at 135 n.3. We further noted, "[n]or is there any fun-
damental right to be free of additional state taxation" resulting from
such alleged arbitrary and capricious annexation decisions. Id. at 135.
Likewise, in Hunter, the Supreme Court rejected challenges to an
annexation decision by taxpayers, stating, "[a]lthough the inhabitants
and property owners may . . . suffer inconvenience, and their property
may be lessened in value by the burden of increased taxation . . . there
is nothing in the Federal Constitution which protects them from these
injurious consequences." Hunter, 207 U.S. at 179. The Jordans
attempt to distinguish Baldwin and Hunter, but their proffered distinc-
tions lack merit. See Berry v. Bourne, 588 F.2d 422, 424 (4th Cir.
1978) ("[Hunter] has been held to foreclose attacks on a state [annex-
ation] procedure specifically on either due process or equal protection
grounds."). Indeed, were we to accept the Jordans’ argument, we
would be required to review nearly every annexation decision pursu-
6 JORDAN v. TOWN OF MORNINGSIDE
ant to the Fourteenth Amendment, a result that explicitly was prohib-
ited by the Supreme Court in Hunter and by this court in Baldwin.
Because federal review of the Jordans’ Fourteenth Amendment
claim is foreclosed by Hunter and Baldwin, the district court properly
dismissed the Jordans’ § 1983 action with prejudice. Although no fed-
eral cause of action exists for the alleged violations of Maryland’s
annexation scheme, we note that the Jordans may seek redress in state
court for the alleged violations of state law.3
AFFIRMED
3
The Jordans’ complaint stated that the suit was brought pursuant to 42
U.S.C.A. § 1983. (J.A. at 44.) Section 1983 is a mechanism to redress
violations of federal law, not state law. White v. Chambliss, 112 F.3d
731, 738 (4th Cir. 1997) (rejecting argument that state statutes create
rights enforceable through § 1983). Accordingly, Morningside concedes
that the dismissal of the Jordans’ § 1983 action in no way affects their
ability to bring a subsequent suit in state court for the alleged violations
of state law.